author: Freedman, J.

text:
    City of Stamford v. Zdravko Kovac
    (11526)
    Heiman, Schaller and Freedman, Js.
    Argued September 13
    decision released December 6, 1994

      Sigmund L. Miller, for the appellant (defendant).

      James V. Minor, assistant corporation counsel, with whom was Daniel M. McCabe, corporation counsel, for the appellee (plaintiff).
   Freedman, J.

This matter is before us on remand from the Supreme Court. Previously, in Stamford v. Kovac, 31 Conn. App. 599, 626 A.2d 792 (1993), we concluded that the trial court had improperly accepted the report of the attorney trial referee and had rendered judgment against the defendant without allowing oral argument on the defendant’s exceptions and objections to the initial and supplemental reports of the referee. The Supreme Court granted certification, reversed our judgment and remanded the case to this court for consideration of the remaining issues raised by the defendant. Stamford v. Kovac, 229 Conn. 627, 642 A.2d 1190 (1994).

This is an action brought by the plaintiff seeking to enjoin claimed violations of the Inland Wetlands and Watercourses Act, General Statutes §§ 22a-36 through 22a-45, as well as local regulations that implement that act. The plaintiff claimed that the defendant had illegally dumped fill and debris in regulated areas without a permit. After a trial before an attorney trial referee, the referee found in favor of the plaintiff and recommended injunctive relief and an award of attorney’s fees and costs. The trial court accepted the report of the attorney trial referee and rendered judgment thereon, and the defendant appeals.

On appeal, the defendant claims that the trial court incorrectly (1) found a violation of the inland wetlands statute, (2) sustained the attorney trial referee’s preclusion of testimony by certain expert witnesses, and (3) awarded costs, fees and expenses that included the overhead costs of the municipal enforcement agency and attorney’s fees for services performed by salaried city attorneys.

The attorney trial referee made the following findings of fact. The defendant owns property located at the southwest corner of Northwood Lane and Long Ridge Road in Stamford, which includes a well defined watercourse and extensive wetlands area. On August 28, 1985, the defendant filed an application with the Stamford environmental protection board (EPB) for a permit to construct a dwelling on his property. As part of the application, the defendant submitted certain plans prepared by a surveyor, Fiorenzo Corbo, and a soil scientist, Thomas W. Pietras, of Soil Science Services. According to these plans, the wetlands were delineated by a yellow north to south line (the Pietras line) and all property to the west of the yellow line constituted wetlands. These plans were presented to the plaintiff by the defendant and were represented by the defendant to be a correct delineation of the wetlands. In reliance on these plans, the plaintiff approved the defendant’s application with several conditions.

The attorney trial referee further found that on several occasions prior to February 2, 1987, the defendant, “without legal authority,” performed grading and filling operations on said wetlands and was instructed by the plaintiff to cease such operations. The defendant then submitted to the plaintiff a proposed revised plan that showed the eastern edge of the wetlands in the same location as the north to south yellow line shown on the plans prepared by Corbo and Pietras, and indicated all of the wetlands as a crosshatched area on the plan. The revised plan showed that all proposed construction was to be confined to uplands at a distance greater than twenty-five feet from the wetlands. On the basis of the revised plan, and in reliance on the twenty-five foot buffer shown thereon, the plaintiff determined that no EPB permit was required.

The attorney trial referee found that prior to October 20,1987, the defendant permitted up to 500 cubic yards of fill to be deposited in the wetlands and in the established twenty-five foot buffer area, in violation of the plaintiff’s wetlands regulations and in violation of the terms of the application submitted by the defendant. This condition was discovered in an October 20, 1987 staff inspection by the plaintiff. On October 23, 1987, the plaintiff issued a cease and desist order to the defendant and, on October 29,1987, a show cause hearing was conducted before the EPB. The EPB ordered that the cease and desist order continue in effect as modified to require the defendant to perform certain specified corrective action. On November 16, 1987, a staff inspection by the EPB revealed that, with the permission of the defendant, County Excavating and Blakeslee Arpaia and Chapman were dumping and grading materials on the wetlands and buffer area adjacent to the wetlands.

Prior to December 2, 1987, the defendant removed or caused to be removed some but not all of the fill from the wetlands area. On December 17, 1987, the plaintiff received from the defendant a revised report prepared by J. L. Jarvis of Soil Science Services showing a new wetlands line (the Jarvis line) located to the west of the original wetlands line. The wetlands line on this report reduced the amount of wetlands to the defendant’s benefit.

The attorney trial referee found that the Jarvis line was not accurate and did not reflect a natural wetlands line. Rather, it reflected conditions after the performance of unauthorized and unlawful dumping, filling and grading in the wetlands by the defendant and, thus, did not reflect the original, natural wetlands. The attorney trial referee found that the natural wetlands line was the Pietras line. On the basis of these facts, the referee recommended that an injunction issue against the defendant. The trial court accepted the report of the attorney trial referee and rendered judgment thereon.

I

The defendant first asserts that the trial court incorrectly found that he violated the Inland Wetlands Act. The defendant claims that due to a discrepancy between the dates of the finished survey and Corbo’s field notes, the Corbo survey was incorrect. Therefore, the defendant argues, the Corbo survey should not have been the basis for determining that the Inland Wetlands Act had been violated. The plaintiff argues, however, that the court properly determined that the yellow line on the Corbo survey correctly depicted the wetlands. We agree with the plaintiff.

“In addressing a challenge to the facts found by the trial referee and adopted by the trial court, this court’s function is to determine whether those findings were clearly erroneous. Practice Book § 4061. Because the resolution of conflicting factual claims falls within the province of the trial court, we can reverse the judgment only if the findings are clearly erroneous. Nor’easter Group, Inc. v. Colossale Concrete, Inc., 207 Conn. 468, 473, 542 A.2d 692 (1988). We cannot retry the facts or pass on the credibility of the witnesses. Id.” Plikus v. Plikus, 26 Conn. App. 174, 177, 599 A.2d 392 (1991).

The record in the present case supports the attorney trial referee’s finding that the Corbo survey rather than the Jarvis survey accurately showed the wetlands on the defendant’s property. At trial, soil scientist Kenneth Stevens testified that both the Pietras and the Jarvis lines were correct but that “the wetland line prepared by Jamie Jarvis was prepared because of fill on top of wetlands.” We conclude, on the basis of this testimony, that the attorney trial referee’s finding that the wetlands line on the Corbo survey correctly depicted the wetlands was not clearly erroneous.

The defendant also asserts that the trial court improperly applied a twenty-five foot buffer to the wetlands when the regulation providing for such a buffer was first adopted by the EPB on June 5,1989, almost two years after the claimed violation. The plaintiff posits that the defendant had acquiesced in the requirement of the twenty-five foot buffer as a condition of approval.

The trial court’s memorandum of decision on the defendant’s objections to the attorney trial referee’s report noted that the defendant had acquiesced with regard to the twenty-five foot buffer. The record adequately supports this conclusion. In October, 1985, the defendant’s application was granted with conditions, one of which was that a modified plan that located the house twenty feet from the regulated wetlands be submitted prior to the issuance of a permit. Subsequently,, by letter dated August 20, 1986, the defendant was informed that if all activities took place outside of the twenty-five foot buffer, no permit would be required. In February, 1987, the defendant submitted a revised house location plan showing the twenty-five foot buffer. On the basis of this evidence, we cannot say that the trial court’s findings were clearly erroneous.

II

The defendant next claims that the trial court improperly sustained the attorney trial referee’s preclusion, pursuant to Practice Book § 220 (D), of two expert witnesses, Dominick M. Schefiliti, a professional engineer and land surveyor, and Robert T. Hamilton, a professional land surveyor. The defendant admitted at trial that no formal disclosure of these experts had been made, but argues that they nonetheless should have been permitted to testify. The trial court found that no good cause was shown at trial that would justify allowing these experts to testify. We agree.

We recently “note[d] the emphatic tone of the final sentence of § 220 (D) which reads in relevant part that if there has not been a compliance with this section ‘such expert shall not testify except in the discretion of the court for good cause shown.’ (Emphasis added.)” Sung v. Butterworth, 35 Conn. App. 154, 159, 644 A.2d 395 (1994). “ ‘Neither § 220 (D) nor the cases interpreting it define what constitutes “good cause.” The language of the rule, however, makes clear that the trial court is to exercise broad discretion in determining whether good cause exists in a given case.’ Berry v. Loiseau, [223 Conn. 786, 800, 614 A.2d 414 (1992)]. In determining whether the trial court has abused its discretion, an appellate court should entertain every reasonable presumption in favor of the trial court’s decision.” Knock v. Knock, 224 Conn. 776, 782-83, 621 A.2d 267 (1993).

On the basis of the record before us, we conclude that the trial court correctly sustained the attorney trial referee’s preclusion of these expert witnesses. The attorney trial referee noted that had the defendant intended to call Schefiliti as an expert witness, he should have filed a motion for extension of time to disclose an expert. Because no such motion was made, and because counsel for the defendant was apprised in 1989 of the subject of Schefiliti’s testimony, the attorney trial referee precluded Schefiliti from testifying. Hamilton was called as a witness to testify regarding a survey done on February 15, 1991, the purpose of which was to “locate the top and bottom of the existing fill lines.” Hamilton was never disclosed as an expert, however, prior to March 27, 1991. Although recognizing the importance of the proposed testimony, the attorney trial referee precluded Hamilton from testifying because of noncompliance with § 220. On the basis of the foregoing, the trial court correctly sustained the attorney trial referee’s preclusion of testimony by both expert witnesses.

Ill

The defendant’s final argument is that the trial court improperly awarded EPB staff costs of $4618.65 and counsel fees of $12,406.25 to the plaintiff, pursuant to General Statutes § 22a-44 (b).

In Conservation Commission v. Price, 5 Conn. App. 70, 74, 496 A.2d 982 (1985), we stated that “an assessment of attorney’s fees [pursuant to General Statutes § 22a-44 (b)] is discretionary with the court, by the statute’s express terms.” We further noted that “it is clear from the express terms of General Statutes § 22a-44 (b) that costs and fees were intended ‘to restore the affected wetlands or watercourses to their condition prior to the violation, whenever possible,’ and to place the financial burden of restoration upon the violator. ” (Emphasis added.) Id., 75.

The defendant argues that the trial court incorrectly interpreted the phrase “all costs, fees and expenses” to apply to “the ‘overhead’ of the agency, including supplies.” The plaintiff counters that the court properly entered this award pursuant to General Statutes § 22a-44 (b), which provides in relevant part that “[a]ll costs, fees and expenses in connection with such action shall be assessed as damages against the violator together with reasonable attorney’s fees which may be allowed, all of which shall be awarded to the commissioner, municipality, district or person which brought such action.”

“If the language of a statute is clear and unambiguous, its meaning is not subject to construction. . . . When application of the statute to a particular situation reveals a latent ambiguity in seemingly unambiguous language, however, we turn for guidance to the purpose of the statute and its legislative history to resolve that ambiguity.” (Citation omitted.) University of Connecticut v. Freedom of Information Commission, 217 Conn. 322, 328, 585 A.2d 690 (1991). In the present case, we conclude that the language of § 22a-44 (b) is clear and unambiguous; thus, there is no need to review its legislative history.

The statute does not define the terms “costs,” “fees” and “expenses.” “Where a statute does not define a term, it is appropriate to look to the common understanding expressed in the law and in dictionaries.” Doe v. Manson, 183 Conn. 183, 186, 438 A.2d 859 (1981). Because the statute does not define these terms, they must be given their plain and ordinary meanings. Id.; see also Bolt Technology Corp. v. Commissioner of Revenue Services, 213 Conn. 220, 228, 567 A.2d 371 (1989).

The word “costs” is defined in Black’s Law Dictionary (6th Ed. 1990) as “[a] pecuniary allowance, made to the successful party (and recoverable from the losing party), for his expenses in prosecuting or defending an action or a distinct proceeding within an action.” The word “fee” is defined as “[a] fixed charge or perquisite charged as recompense for labor; reward, compensation, or wage given to a person for performance of services or something done or to be done.” “Expense” is defined as “[a]n outlay; charge; cost; price. The expenditure of money, time, labor, resources and thought.” We conclude that the phrase “costs, fees and expenses” in § 22a-44 (b) includes all direct costs, fees and expenses incurred by the agency in connection with an action brought to restrain a continuing violation of the Inland Wetlands and Watercourses Act.

Here, the attorney trial referee’s award of $4618.65 for “EPB staff costs” was accepted by the trial court. The record reveals that this amount was calculated by taking the employees’ hourly rates, adding to it the hourly cost of the benefits received by the employees, and multiplying that amount by the number of hours that the employees worked on this matter. To this amount was added a fee for copying or document preparation. On the basis of the foregoing, and considering the policy of § 22a-44 (b) to “place the financial burden of restoration upon the violator”; Conservation Commission v. Price, supra, 5 Conn. App. 74; we conclude that these direct costs, fees and expenses are recoverable pursuant to § 22a-44 (b). Therefore, the defendant’s claim must fail.

The defendant also claims that any award of counsel fees in this case was an abuse of discretion as the attorneys for the plaintiff were salaried city attorneys. As the trial court noted, however: “There is nothing in § 22a-44 which countenances any distinction between fees paid a salaried employee and those paid an outside attorney at a specific hourly rate.”

In Benavides v. Benavides, 11 Conn. App. 150, 526 A.2d 536 (1987), we held that in family matters, the prevailing party may be awarded counsel fees even when that party is represented without fee by a nonprofit legal services organization. We noted in Benavides that “[a] party should not be encouraged to litigate under the assumption that no counsel fee will be awarded in favor of the indigent party represented by public legal services . . . .” Id., 154. Similarly, here, the defendant should not be encouraged to pursue the defense of his claims under the assumption that he will not be required to pay the fees of the plaintiffs attorney.

The defendant additionally argues that because of the previous action qr inaction on the part of the plaintiffs counsel, resulting in the failure to settle the case and a “horrendous trial experience,” the award of attorney’s fees to the plaintiff was an abuse of discretion. The trial court noted that, even if the defendant’s representations are true, there was no evidence that the plaintiff’s failure to settle the case was “done other than in the client’s best interest.” On the basis of the record before us, we cannot say that the award of counsel fees to the plaintiff was an abuse of discretion. See Conservation Commission v. Price, supra, 5 Conn. App. 74.

The judgment is affirmed.

In this opinion the other judges concurred.

       Although there is no specific finding by the attorney trial referee as to the date the application was approved, the record reveals that it was approved in October, 1985.

       Specifically, the defendant challenges the attorney trial referee’s conclusion that the yellow line on the Corbo survey correctly depicted the wetlands because the yellow line was put on the survey on June 19, 1985, whereas Corbo’s notes, which were the basis for the yellow line, were dated June 29, 1985.

       Stevens testified as follows:
      “Q. Let me rephrase. Today, as you sit here, is it your belief that Mr. Pietras was correct, that as of the date of his report in 1985, the wetland line shown in lot D was the correct line between wetland soils and upland soils?
      “A. Yes.
      “Q. And is it your opinion, as you sit here today, based upon your experience, based upon your observation of the events that you just discussed, that the wetland line prepared by Jamie Jarvis was prepared because of fill on top of the wetlands?
      “A. Yes.”

       The memorandum of decision states the following: “The defendant next claims that no requirement for a twenty-five foot buffer existed and therefore any fill that was deposited within twenty-five feet of the wetland was done so lawfully. The simple answer to this is that the twenty-five foot buffer was made an express condition of the approval issued by the plaintiff to the defendant on August 20,1986. The record is clear that the defendant acquiesced in this condition when he commenced work on the land in accordance with the approval issued.”

       Practice Book § 220 (D) provides in pertinent part: “[A]ny plaintiff expecting to call an expert witness at trial shall disclose the name of that expert, the subject matter on which the expert is expected to testify, the substance of the facts and opinions to which the expert is expected to testify, and a summary of the grounds for each opinion, to all other parties within 60 days from the date the case is claimed to a trial list. Each defendant shall disclose the names of his or her experts in like manner within 120 days from the date the case is claimed to a trial list. ...”

       The attorney trial referee noted that “the most germane issue to the case” was where the correct line was located based on the flags placed by the soil scientist. The referee then stated: “It was the issue in 1985, it was the issue in 1987, and it certainly was the issue when this case was brought in 1989. And counsel for the defendant in 1989 could well have been apprised of the fact that this was going to be the key issue. The way to go around § 220 is . . . [t]o ask the court by appropriate short calendar motion for the late filing of an expert report and the courts are generally very lenient about it. But, the very purpose of § 220 is just this: That a witness can’t be hired the week of the trial without the court’s permission and put forward without adequate opportunity of the other side to have their own expert, and it’s trial by ambuscade.”

       The attorney trial referee stated: “[I]t may very well be that the evidence that this witness has to give is very pertinent to the decision of the case. But a trial having begun on February 13, and the witness having done his work on February 15, and it being disclosed at this time, on March 27, is just out of line with the compliance with disclosure, and with § 220.”

       General Statutes § 22a-44 (b) provides: “Any person who commits, takes part in, or assists in any violation of any provision of sections 22a-36 to 22a-45, inclusive, including regulations adopted by the commissioner and ordinances and regulations promulgated by municipalities or districts pursuant to the grant of authority herein contained, shall be assessed a civil penalty of not more than one thousand dollars for each offense. Each violation of said sections shall be a separate and distinct offense, and, in the case of a continuing violation, each day’s continuance thereof shall be deemed a separate and distinct offense. The superior court, in an action brought by the commissioner, municipality, district or any person, shall have jurisdiction to restrain a continuing violation of said sections, to issue orders directing that the violation be corrected or removed and to assess civil penalties pursuant to this section. All costs, fees and expenses in connection with such action shall be assessed as damages against the violator together with reasonable attorney’s fees which may be allowed, all of which shall be awarded to the commissioner, municipality, district or person which brought such action. The moneys collected pursuant to this section shall be used by the commissioner of environmental protection, to restore the affected wetlands or watercourses to their condition prior to the violation, wherever possible.”

       The trial court found that “the terms ‘costs and expenses’ are easily broad enough to support the referee’s award of actual costs incurred by the environmental protection board in paying for its personnel, employee benefits and supplies.”

       Specifically, the record indicates that the figure of $4618.65 was arrived at by adding the total cost of the salary and benefits of Richard Talamelli, environmental planner for the city of Stamford, EPB, and David Emerson, executive director of the EPB, with the cost of copying and document preparation at the EPB. According to the record, the total cost for the salary and benefits of Talamelli was $4063.04 and the total cost for the salary and benefits of Emerson was $288.61. Additionally, the amount charged for copying and document preparation was $267. The total amount was $4618.65.


source: Caselaw Access Project

author: Landau, J.

license: Public Domain

text:
    Russell Geren v. Board of Education of the Town of Brookfield et al.
    (11858)
    Landau, Schaller and Freedman, Js.

      Argued September 19
    decision released December 6, 1994

      William M. Laviano, for the appellant (plaintiff). Robert J. Murphy, with whom, on the brief, was Catherine M. Thompson, for the appellees (defendants).
   Landau, J.

The plaintiff, Russell Geren, appeals from the judgment of the trial court rendered on a jury verdiet in favor of the defendants, the Brookfield board of education and Michael Perrone. Geren claims that the trial court improperly (1) commented on the evidence in its charge to the jury, (2) failed to create an appropriate record of the trial proceedings, (3) failed to charge the jury regarding his liberty interest claim, (4) denied counsel access to the courtroom during part of the trial proceedings, (5) found that he was not entitled to a hearing pursuant to General Statutes § 10-151 to determine the issue of the voluntariness of his resignation, and (6) refused to admit testimony concerning employee rules and written board policies. We affirm the judgment.

The jury reasonably could have found the following facts. Geren was a tenured high school teacher employed by the Brookfield board of education. During the fall of 1987, he handed a series of flirtatious notes and a birthday card to a sixteen year old female student. Upon receiving the last note, the student showed Geren’s correspondence to her parents, who contacted the school principal. After the principal ordered Geren to have no contact with the student pending completion of the investigation, Geren approached her and inquired why she had reported him. A defendant Michael Perrone, the superintendent of the school, was apprised of the situation and ordered Geren suspended with pay pending resolution of the matter.

Shortly thereafter, Perrone met with Geren to discuss the student’s allegations. Geren contended that he could not recall writing the notes because at the time of the correspondence he had been under extreme stress as a result of the stock market crash of October, 1987. Perrone discussed the seriousness of the matter, suggested that Geren resign, and indicated that he would seek Geren’s termination in the absence of a resignation.

On December 16,1987, the board of education voted to consider the termination of Geren’s contract of employment pursuant to General Statutes § 10-151, the Teacher Tenure Act. Subsequently, Geren agreed to resign in exchange for his being placed on leave with pay for one year and receiving $3500 in “job location” assistance. On December 21,1987, the board accepted Geren’s resignation, effective December 31, 1988.

In August, 1988, Geren wrote to the board of education, revoking his resignation on the ground that it had been induced by pressure from the defendants while he was afflicted with depression and stress. Perrone refused to accept the revocation. Thereafter, Geren filed a writ of summons and revised complaint alleging that the defendants’ failure to hold a hearing to determine the voluntariness of his resignation deprived him of a “property and liberty interest” without procedural due process and breached his employment contract. After a verdict and judgment for the defendants on both counts, this appeal followed.

I

Geren first claims that the trial court improperly commented on the evidence in its charge to the jury regarding the issue of whether he was capable of making an intelligent, knowing, and voluntary resignation. The effect of the comments, Geren asserts, was that the trial court usurped the fact-finding function of the jury.

At trial, Geren introduced and the court admitted a medical report addressed to his psychiatric condition. In it, Arthur Africano, a psychiatrist, diagnosed Geren as having an “adjustment disorder” and an “obsessive-compulsive personality.” Africano, who did not testify, drew no conclusions in the report as to whether these conditions had a bearing on Geren’s ability to resign voluntarily. He expressed no causal connection between the diagnosis and Geren’s act of resignation.

Geren now objects to the following portions of the trial court’s charge: (1) “The case is silent with respect to any professional testimony about the impact of these manifestations upon his ability to make a knowing, voluntary and intelligent decision with regard to his resignation”; (2) “The manifestations, Geren’s categorizations and Africano’s diagnosis fall far short medically of establishing any inability to reach a knowing, voluntary and intelligent choice or decision or judgment on the alternatives available to him”; and (3) “You certainly can consider his mental status. He described it to you, but you must also remember there’s no professional evidence that says he could not make a free choice . . . .”

“In reviewing a challenge to jury instructions, we must examine the charge in its entirety.” Felsted v. Kimberly Auto Services, Inc., 25 Conn. App. 665, 668, 596 A.2d 14, cert. denied, 220 Conn. 922, 597 A.2d 342 (1991). “While the instructions need not be exhaustive, perfect or technically accurate, they must be correct in law, adapted to the issues and sufficient for the guidance of the jury.” (Internal quotation marks omitted.) Id., quoting Preston v. Keith, 217 Conn. 12, 17, 584 A.2d 439 (1991).

The matter of commenting on evidence rests within the discretion of the trial court and impropriety will be found only where that discretion has been abused. Heslin v. Malone, 116 Conn. 471, 477-78, 165 A. 594 (1933); Felsted v. Kimberly Auto Services, Inc., supra, 25 Conn. App. 669. It is not only the right, but often the duty of the trial court to comment on the evidence. Felsted v. Kimberly Auto Services, Inc., supra, 669. Accordingly, it is sometimes proper for the court to remark on the absence of particular evidence; see id., 670; and “[i]t is no objection to such comments that they will tend to uncover the weakness of a weak case . . . .” (Internal quotation marks omitted.) Heslin v. Malone, supra, 477. The trial court’s discretion in this matter is tempered only by the mandate that its comments be reasonable and fair and not misstate facts or evidence. Id. “The nature and extent of such comment must largely depend upon the facts involved in the particular case and the manner in which it has been tried.” Id., 478.

In this case, the trial court pointed out to the jury that Geren had presented no direct medical evidence proving that he was incapable of voluntarily resigning. Rather, Geren offered a medical report and other evidence from which that inference might be drawn. In highlighting this distinction, the trial court did not remove from the jury the question of whether Geren voluntarily resigned. A review of the record and the entire charge confirms that the trial court did not abuse its discretion in this case.

II

Geren next claims that the trial court failed to create a proper record of the proceedings. He complains that the court maintained no record of the portion of testimony that was read back to the jury in response to a particular inquiry from the jury.

“If a claim on appeal is nonconstitutional in nature, the burden of establishing that the error was harmful is on the appellant.” State v. Williams, 231 Conn. 235, 250, 645 A.2d 999 (1994); State v. Truppi, 182 Conn. 449, 465, 438 A.2d 712 (1980), cert. denied, 451 U.S. 941, 101 S. Ct. 2024, 68 L. Ed. 2d 329 (1981). For this reason, bare assertions of error, devoid of analysis, are insufficient to warrant appellant review. Gaudio v. Gaudio, 23 Conn. App. 287, 311, 580 A.2d 1212, cert. denied, 217 Conn. 803, 584 A.22d 471 (1990); State v. Franklin, 20 Conn. App. 96, 99, 563 A.2d 1383 (1989).

Here, Geren asserts that the court’s failure to maintain the missing portion of testimony constitutes prejudicial error. He does not define, however, which portion is missing, nor what issue he would have raised were the transcript available. He also does not analyze the specific harm resulting from his inability to raise that issue. Accordingly, we decline to review this claim because it has been inadequately briefed. Practice Book § 4065; State v. Yopp, 35 Conn. App. 740, 750, 646 A.2d 298 (1994).

Ill

Geren next asserts that the trial court improperly failed to charge the jury on his claim that the defendants’ actions deprived him of a constitutionally protected liberty interest. Geren argues that he pleaded all of the facts necessary to sustain a liberty interest claim under the fourteenth amendment to the United States constitution, and that the trial court was therefore obligated to charge the jury on such a claim. In its memorandum of decision dated October 13, 1992, the trial court stated that its decision not to charge was based on Geren’s failure to set forth in his complaint allegations sufficient to raise a liberty interest claim.

“It is axiomatic that the parties are bound by their pleadings.” Calabro v. Calabro, 33 Conn. App. 842, 847, 639 A.2d 1046 (1994). Consequently, “[cjlaims of error addressed to the charge are tested by the pleadings and by the evidence relevant to the claimed error as presented in narrative form (with appropriate reference to pages of the transcript) in the parties’ briefs.” Tierney v. American Urban Corp., 170 Conn. 243, 250, 365 A.2d 1153 (1976). The trial court “should submit to the jury all issues as outlined by the pleadings and reasonably supported by the evidence.” Calabro v. Calabro, supra, 847; see also Goodmaster v. Houser, 225 Conn. 637, 648, 625 A.2d 1366 (1993). Conversely, “[tjhe court has a duty to submit to the jury no issue upon which the evidence would not reasonably support a finding.” Calabro v. Calabro, supra, 847, quoting Batick v. Seymour, 186 Conn. 632, 641, 443 A.2d 471 (1982).

“[Tjhe interpretation of pleadings is always a question of law for the court. . . .” (Citations omitted.) Cahill v. Board of Education, 198 Conn. 229, 236, 502 A.2d 410 (1985). Thus, in order to evaluate the trial court’s decision not to charge the jury on a liberty interest claim, we must first decide whether its conclusion that the allegations in Geren’s complaint failed to plead such a claim was “legally and logically correct.” Pandolphe’s Auto Parts, Inc. v. Manchester, 181 Conn. 217, 221, 435 A.2d 24 (1980).

The gist of Geren’s liberty interest claim is that, in the absence of a presuspension or postsuspension hearing at which he might explain his actions, he will be subject to “ridicule and stigmatization” and his standing in the community will be denigrated. In the context of public employment, an interest in one’s “good name, reputation, honor, or integrity” is included within the constitutional protection of liberty. See Paul v. Davis, 424 U.S. 693, 96 S. Ct. 1155, 47 L. Ed. 2d 405 (1976); Board of Regents v. Roth, 408 U.S. 564, 573, 92 S. Ct. 2701, 33 L. Ed. 2d 548 (1972); Wisconsin v. Constantineau, 400 U.S. 433, 91 S. Ct. 507, 27 L. Ed. 2d 515 (1971). Thus, when a public employer suspends or terminates an employee in a manner “that might seriously damage his standing and associations in the community” or might impose on him “a stigma or other disability that foreclose[sj his freedom to take advantage of other employment opportunities,” a liberty interest under the due process clause is impaired. Board of Regents v. Roth, supra, 573.

An essential element of a liberty interest claim is an allegation by the complainant that “the employer create[d] and disseminatefd] a false and defamatory impression about the employee in connection with his termination . . . Codd v. Velger, 429 U.S. 624, 628, 97 S. Ct. 882, 51 L. Ed. 2d 92 (1977). This element is necessary because “the remedy mandated by the Due Process Clause of the Fourteenth Amendment is an opportunity to refute the charge. . . . The purpose of such notice and hearing is to provide the person an opportunity to clear his name. . . . [I]f the hearing mandated by the Due Process Clause is to serve any useful purpose, there must be some factual dispute between an employer and a discharged employee which has some significant bearing on the employee’s reputation.” (Citations omitted; internal quotation marks omitted.) Id., 627. The absence, therefore, of any allegation of a falsehood propagated by the employer is fatal to an employee’s liberty interest claim. Id.; see also Statewide Grievance Committee v. Presnick, 215 Conn. 162, 170, 575 A.2d 210 (1990).

In this case, Geren’s complaint is devoid of any allegation that the defendants generated a false and defamatory impression about him in connection with his suspension or resignation. In his complaint, Geren states that “he will be subject to embarrassment, humiliation and public disgrace,” but fails to make any claim that such disgrace is a result of any action by the defendants. He fails to assert a causal connection between the defendants’ actions in the suspension process and the damage to his reputation. As a result, he did not properly plead a liberty interest claim under the due process clause of the fourteenth amendment. The trial court’s decision not to submit Geren’s insufficient liberty interest claim to the jury was legally and logically correct.

IV

Geren’s fourth claim is that the trial court improperly conferred with the clerk and stenographer outside of the presence of the jury, litigants, and counsel for the purpose of reviewing what testimony would be read back in response to a jury request. Geren claims that this private conference deprived him of his right to a public trial by an impartial jury as guaranteed by article first, § 8, of the Connecticut constitution. We disagree.

On May 1, 1992, during its deliberations, the jury requested to rehear certain testimony. After a lunch recess, the trial court met with the clerk and stenographer in the locked courtroom, off the record, to review which testimony would be read back to the jury in response to its request. After reviewing the stenographer’s notes, the judge opened the courtroom to the litigants and jury and continued the proceedings.

A threshold question is whether Geren is correct in his assertion that his claim is of constitutional magnitude. He relies on Ostolaza v. Warden, 26 Conn. App. 758, 603 A.2d 768, cert. denied, 222 Conn. 906, 608 A.2d 692 (1992), to support his contention that the trial court’s private conference deprived him of a constitutional right to a public trial. In that case, in a discussion regarding whether the trial court was justified in closing the courtroom during a certain witness’ testimony, the reviewing court reiterated that a compelling need must exist to exclude the public and press from a criminal trial. Id., 770-71.

Ostolaza and the constitutional right to a public trial concern the authority of the trial court to close the courtroom during trial proceedings. In the case at hand, the trial court did not close any trial proceeding. Rather, the judge excluded everyone from an administrative conference with his staff. Geren “has placed a constitutional tag on a nonconstitutional issue. State v. Smith, 219 Conn. 160, 165, 592 A.2d 382 (1991) . . . .” (Citations omitted.) State v. Harvey, 27 Conn. App. 171, 183, 605 A.2d 563 (1992).

“ ‘What portions of the record, if any, will be submitted to the jury for their consideration is a matter of sound judicial discretion.’ ” State v. Harris, 227 Conn. 751, 770-71, 631 A.2d 309 (1993); State v. Smith, 35 Conn. App. 51, 67, 644 A.2d 923 (1994). Geren asserts that counsel should have been given an opportunity to participate in the decision concerning what testimony would be read back to the jury so that no relevant portions were omitted. That decision, however, rests within the discretion of the trial court, not the parties or their counsel. Geren cites no authority, and we find none, for the proposition that the trial court may not confer in private with its staff on administrative matters. For these reasons, we find no abuse of discretion in the trial court’s decision to confer in private with the stenographer and clerk for the purpose of reviewing which portions of testimony would be resubmitted to the jury.

V

Geren next claims that the trial court improperly denied his motion for a directed verdict. He argues that, because the exclusive forum for the decision regarding whether his resignation was voluntary was an administrative hearing pursuant to General Statutes § 10-151, it was improper for the issue to be submitted to the jury. Consequently, Geren contends that the trial court should have granted a directed verdict on the first count of his complaint and ordered an administrative hearing to be held. We are unpersuaded.

In denying Geren’s motion for a directed verdict, the trial court arrived at the legal conclusion that a hearing pursuant to § 10-151 is not the proper forum for the determination of whether a resignation was voluntary. We must therefore determine whether this conclusion was “legally and logically correct and whether [it] find[s] support in the facts set out in the memorandum of decision. . . .” Pandolphe’s Auto Parts, Inc. v. Manchester, supra, 181 Conn. 221.

“Section 10-151 protects a tenured teacher from termination of employment except for cause or elimination of the teaching position. Cahill v. Board of Education, 198 Conn. 229, 240, 502 A.2d 410 (1985). We recognize that not all separations from employment as a teacher are encompassed by the statute. Since, by its terms, the statute contemplates termination initiated by the board of education, a teacher’s retirement or voluntary resignation would not trigger the act’s protections.” Kolenberg v. Board of Education, 206 Conn. 113, 120, 536 A.2d 577, cert. denied, 487 U.S. 1236, 108 S. Ct. 2903, 101 L. Ed. 2d 935 (1988).

Among the protections afforded by the act is the right to a hearing before an impartial hearing officer or panel. The role of the hearing officer or panel is to make factual findings from which to determine whether adequate grounds existed for the teacher’s discharge. Tomlinson v. Board of Education, 226 Conn. 704, 727, 629 A.2d 333 (1993). The hearing provides a tenured teacher due process upon contract termination. The initiation of a hearing presupposes the resolution of the question of the voluntariness of an employee’s separation from employment; that is, it presupposes that the separation was employer initiated. Otherwise, the remedy afforded by the hearing, i.e., a determination of whether adequate grounds existed for a discharge, would be meaningless, as there would be no discharge to evaluate.

The determination of voluntariness, then, is logically prior to and, thus, outside the scope of a hearing pursuant to § 10-151. Geren’s claim that such a hearing was the proper and exclusive forum for the determination of the voluntariness of his resignation is without merit. We conclude that the trial court properly denied Geren’s motion for a directed verdict.

VI

The final claim made by Geren is that the trial court improperly excluded from evidence relevant written board policies and employee rules. Geren asserts that he pleaded a breach of contract cause of action in count two of his complaint. He claims, therefore, that he was entitled to introduce the policies and rules in order to prove the terms of his contract and a breach thereof.

“Our rules of practice place the burden of proving error squarely on the appellant.” State v. Ong, 30 Conn. App. 45, 51, 618 A.2d 583, cert. denied, 225 Conn. 909, 621 A.2d 290 (1993). The appellant must also prove that any error established was harmful. State v. Williams, supra, 231 Conn. 250. In his brief, Geren asserts that the written board policies that he attempted to introduce are probative of a breach of contract by the defendants. His brief, however, “fails to comply with Practice Book § 4065, which requires the appellant to support the statement of facts with appropriate references to the record or transcript, and does not permit reliance on any fact that is not set forth in a statement of facts or appropriately incorporated into the brief.” State v. Ong, supra, 51-52.

Geren’s failure to set out the salient facts in the manner required by Practice Book § 4065 leaves us unaware of the policies he offered into evidence, the content of those policies, and their relevance to his claim. The absence of such evidence, adequately supported by reference to the transcript, prevents us from determining whether the trial court acted properly in excluding the evidence. It is not our role “to guess at possibilities, but to review claims based on a complete factual record developed by a trial court.” (Internal quotation marks omitted.) State v. Hoeplinger, 27 Conn. App. 643, 647, 609 A.2d 1015, cert. denied, 223 Conn. 912, 612 A.2d 59 (1992). Consequently, we deny review of this claim. See Taylor v. American Thread Co., 200 Conn. 108, 509 A.2d 512 (1986); State v. Ong, supra, 30 Conn. App. 52.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 10-151 provides in pertinent part: “(d) The contract of employment of a teacher who has attained tenure shall be continued from school year to school year, except that it may be terminated at any time for one or more of the following reasons: (1) Inefficiency or incompetence; (2) insubordination against reasonable rules of the board of education; (3) moral misconduct; (4) disability, as shown by competent medical evidence; (5) elimination of the position to which the teacher was appointed or loss of a position to another teacher, if no other position exists to which such teacher may be appointed if qualified, provided such teacher, if qualified, shall be appointed to a position held by a teacher who has not attained tenure, and provided further that determination of the individual contract or contracts of employment to be terminated shall be made in accordance with either (A) a provision for a layoff procedure agreed upon by the board of education and the exclusive employees’ representative organization or (B) in the absence of such agreement, a written policy of the board of education; or (6) other due and sufficient cause. . . . Within twenty days after receipt of written notice by the board of education that contract termination is under consideration, such teacher may file with such board a written request for a hearing. . . . Such hearing shall commence within fifteen days after receipt of such request, unless the parties mutually agree to an extension, (A) before the board of education or a subcommittee of the board, (B) if indicated in such request or if designated by the board before an impartial hearing panel or, (C) if the parties mutually agree, before a single impartial hearing officer chosen by both parties. . . . Within ninety days after receipt of the request for a hearing, the impartial hearing panel, subcommittee of the board or hearing officer, unless the parties mutually agree to an extension, shall submit written findings and a recommendation to the board of education as to the disposition of the charges against the teacher, and shall send a copy of such findings and recommendation to the teacher. The board of education shall give the teacher concerned its written decision within fifteen days of receipt of the written recommendation of the impartial hearing panel, subcommittee or hearing officer. . . . The hearing shall be public if the teacher so requests or the board, panel or subcommittee so designates. The teacher concerned shall have the right to appear with counsel at the hearing, whether public or private. . . . Nothing herein contained shall deprive a board of education of the power to suspend a teacher from duty immediately when serious misconduct is charged without prejudice to the rights of the teacher as otherwise provided in this section.”

       The trial court filed this memorandum of decision in response to three postverdict motions filed by Geren, in which he moved to set aside the verdict, for judgment non obstante veredicto, and for a directed verdict. In those motions, Geren made the same claim that he now asserts on appeal, namely, that the trial court improperly failed to charge the jury on his liberty interest claim.

       Moreover, Geren never denied the reasons for his suspension; that is, he never denied that he sent the notes to the student. What he seeks in the way of due process, then, is an opportunity to explain or justify his conduct, not to refute the charges against him. In the public employment context, however, the due process clause affords a hearing “to provide the [employee] an opportunity to clear his name. If he does not challenge the substantial truth of the material in question; no hearing would afford a promise of achieving that result for him.” Codd v. Velger, supra, 429 U.S. 627.

       Geren also relies on Tedesco v. Stamford, 215 Conn. 450, 576 A.2d 1273 (1990), on remand, 24 Conn. App. 377, 588 A.2d 656 (1991), rev’d, 222 Conn. 233, 610 A.2d 574 (1992), asserting that the case stands for the proposition that “hyper-technical pleading requirements will not defeat a constitutional claim, absent surprise to the defendant.” Geren’s analysis of this cáse, however, is inaccurate. In Tedesco, the defendant appealed from a judgment for the plaintiff, claiming that the trial court improperly concluded that the plaintiffs complaint stated a cause of action. Despite the fact that the complaint was in fact missing a necessary allegation, the cause of action was contested on its merits and a judgment was rendered thereon. On appeal, the plaintiff asserted that the defendant had not objected at trial to the introduction of evidence at variance with the cause of action, and was not prejudiced or misled by the admission of such evidence.
      The Supreme Court held that the absence of a requisite allegation in a complaint that results in the failure to state a cause of action “is not a sufficient basis for vacating a judgment unless the pleading defect has resulted in prejudice [to the defendant].” Id., 457. Although parties are bound by their pleadings, “if [they] will insist on going to trial on issues framed in a slovenly manner, they must abide the verdict; judgment will not be arrested for faults in statement when facts sufficient to support the judgment have been substantially put in issue and found. . . . Want of precision in alleging the cause of an injury for which an action is brought, is waived by contesting the case upon its merits without questioning such defect.” (Citation omitted; internal quotation marks omitted.) Id. The court further noted that “[i]f the defendant had timely objected to the evidence introduced at trial [that varied from the pleadings], the plaintiff might have been permitted to amend his complaint and any prejudice could have been cured by a request for a continuance. ‘Where a case has been litigated wholly upon the merits a party is not permitted after judgment to take advantage of defects in procedure which, had attention been called to them at the trial, could readily have been amended.’ ” Id., 462.
      It is important to note that in Tedesco, it was the defendant challenging the sufficiency of the plaintiff’s cause of action after judgment without ever having challenged the variance between pleadings and proof at trial. Here, Geren failed to plead a liberty interest cause of action. When he attempted to offer evidence supporting such a claim, the defendants successfully objected to the introduction of such proof. Geren never requested permission to amend his complaint, nor did he opt to begin his case anew. No judgment was rendered on a liberty interest cause of action. Geren cannot now rely on Tedesco to “cure [his] pleading defects.” We conclude that Tedeseo is inapposite to the circumstances of this case.

       Article first, § 8, of the Connecticut constitution provides in pertinent part: “In all criminal prosecutions, the accused shall have a right to . . . [a] public trial by an impartial jury. . . .”
      Geren also asserts that the trial court’s actions deprived him of “effective assistance of counsel.” This claim, however, is unsupported by analysis or legal authority. As noted above, bare assertions of error, devoid of analysis, are insufficient to warrant appellant review. Gaudio v. Gaudio, supra, 23 Conn. App. 311; State v. Franklin, supra, 20 Conn. App. 99. We therefore deem this claim to be abandoned.

       See footnote 1.

       In reaching its verdict, the jury answered fourteen interrogatories. In its answer, the jury specifically found that Geren’s resignation was not coerced by the threat of criminal prosecution or public humiliation, and that he submitted his resignation voluntarily.


author: Heiman, J.

text:
    Angela Conaci v. Hartford Hospital et al.
    (12882)
    Foti, Landau and Heiman, Js.
    Argued September 28
    decision released December 6, 1994

      JohnH. Hanks, with whom, on the brief, was Stephen P. Bertucio, for the appellant (plaintiff).

      Robert W. Murphy, with whom, on the brief, was James L. Pomeranz, for the appellees (defendants).
   Heiman, J.

The plaintiff appeals from the decision of the compensation review board of the workers’ compensation commission dismissing her appeal to that board. On appeal to this court, the plaintiff claims that the review board improperly determined that her appeal was jurisdictionally defective because it was not timely filed pursuant to General Statutes § 31-301 (a).

The following facts are relevant to this appeal. The plaintiff was injured on October 22,1985, in the course of her employment by the defendant Hartford Hospital as a maintenance worker. The plaintiff sought workers’ compensation benefits from her employer for her injury. On December 17,1987, the plaintiff entered into a voluntary agreement with the hospital and its insurer, the defendant Aetna Casualty and Surety. Pursuant to that agreement, the plaintiff was awarded specific compensation in the form of permanent partial disability payments based on a finding of 15 percent disability of her back.

Upon completion of payment of the specific award, the plaintiff requested compensation in the form of temporary total benefits under General Statutes § 31-307, claiming that she was totally incapacitated. On May 17, 1990, the defendants filed a “Form 36” notice of intention to discontinue payments, claiming that the plaintiff was no longer entitled to compensation and denying the plaintiff’s claim for temporary total benefits. Formal hearings were held before the commissioner of the first compensation district on June 11, 1990, November 30,1990, and April 29, 1991. The commissioner’s finding and order, dated July 15,1991, concluded that the plaintiff was no longer entitled to § 31-307 benefits.

On July 31, 1991, the plaintiff filed an appeal to the compensation review board, claiming, inter alia, that the commissioner had failed to consider the plaintiff’s limited education and diligent efforts at finding employment in his determination that she was no longer entitled to benefits. The defendants moved to dismiss the appeal on jurisdictional grounds, claiming that it was filed more than ten days after the entry of the commissioner’s decision on July 15,1991. In its opposition to the defendants’ motion to dismiss, the plaintiff claimed that her appeal was timely, in that it was filed within ten days of the date on which notice of the decision was received. The board found that the plaintiff received notice of the commissioner’s decision on July 23, 1991.

The compensation review board’s ruling of September 14, 1993, dismissed the plaintiff’s appeal as untimely. In its decision, the review board determined that the ten day limitation period of General Statutes § 31-301 (a) begins to run from the date of the entry of the decision by the commissioner, as long as notice of the decision is received by the party seeking to appeal within the ten day period. The board further found that the appeal period is extended only if notice of the decision is not received within ten days of the entry of the commissioner’s decision.

On appeal to this court, the plaintiff claims that the compensation review board improperly dismissed her appeal to that board as untimely. We agree.

“ ‘In construing a statute, common sense must be used, and the courts will assume that the legislature intended to accomplish a reasonable and rational result .... A statute . . . should not be interpreted to thwart its purpose.’ (Citations omitted; internal quotation marks omitted.) Board of Education v. State Board of Labor Relations, [217 Conn. 110, 126-27, 584 A.2d 1172 (1991)].” Police Dept. v. State Board of Labor Relations, 225 Conn. 297, 303, 622 A.2d 1005 (1993).

It has long been established that the most reasonable interpretation of the limitation provision applicable to appeals to the compensation review board is one that takes into consideration notice to the party aggrieved by the commissioner’s decision. Murphy v. Elms Hotel, 104 Conn. 351, 352, 133 A. 106 (1926). In Murphy, our Supreme Court considered the ten day limitation period of General Statutes (1918 Rev.) § 5366, as amended by Public Acts 1919, c. 142, § 14, the predecessor to General Statutes § 31-301. The court concluded that “[undoubtedly the General Assembly intended this provision to mean ten days after notice to the party of the entry of such finding . . . .” (Emphasis added.) Murphy v. Elms Hotel, supra, 352.

As recently as 1992, our Supreme Court stated: “Although [General Statutes § 31-301] specifies that an appeal should be taken ‘within ten days after entry’ of a commissioner’s award, we have interpreted this statutory requirement to include a requirement of notice to the party who might wish to appeal. Murphy v. Elms Hotel, [supra, 104 Conn. 352]. Fundamental rights to procedural due process mandate such a construction. See Kron v. Thelen, 178 Conn. 189, 193-97, 423 A.2d 857 (1979).” Trinkley v. Ella Grasso Regional Center, 220 Conn. 739, 743, 601 A.2d 515 (1992).

“ ‘[T]he right of appeal, if it is to have any value, must necessarily contemplate that the person who is to exercise the right be given the opportunity of knowing that there is a decision to appeal from and of forming an opinion as to whether that decision presents an appeal-able issue. Until the prospective appellant has either actual or constructive notice that a decision has been reached, the right of appeal is meaningless.’ Hubbard v. Planning Commission, 151 Conn. 269, 271-72, 196 A.2d 760 (1964); Norwich Land Co. v. Public Utilities Commission, 170 Conn. 1, 8, 363 A.2d 1386 (1975) (Bogdanski, J., dissenting); see Akin v. Norwalk, 163 Conn. 68, 73, 301 A.2d 258 (1972); Foran v. Zoning Board of Appeals, 158 Conn. 331, 336, 260 A.2d 609 (1969).” Kroner. Thelen, supra, 178 Conn. 193. “Fundamental tenets of due process, moreover, require that all persons directly concerned in the result of an adjudication be given reasonable notice and the opportunity to present their claims or defenses.” Id.

Our courts have, therefore, interpreted appeal provisions such as General Statutes § 31-301 (a) to require notice to the parties affected by a decision, even when a statute does not specifically provide for such a requirement. See, e.g., Kron v. Thelen, supra, 178 Conn. 197.

In addition, notice that comports with the constitutional requirements of due process has been deemed to be the date on which notice of the appealable decision is given to the party who might want to appeal. See id., 197 n.3 (holding that appeal period for probate decisions commences on date that Probate Court sends notice); Hubbard v. Planning Commission, supra, 151 Conn. 269 (holding that appeal period for zoning decisions commences on date of publication of notice of commission’s decision). “In order to effectuate the right of appeal, it is necessary that the appeal period commence at the time when the commission gives notice of its decision to persons entitled thereto, not when the decision is obscurely filed with a mass of other documents at the commission’s office.” Norwich Land Co. v. Public Utilities Commission, supra, 170 Conn. 9.

In Trinkley v. Ella Grasso Regional Center, supra, 220 Conn. 739, the provision at issue in this case was considered. Our Supreme Court implied that the operative date from which the limitation period for appeals to the compensation review board should run is the date that notice is given to the party who might want to appeal. Id., 743. In Trinkley, the court declined to hold that the compensation review board lacked jurisdiction to hear the appeal, stating that “[t]o establish that the . . . appeal was untimely . . . [one] cannot rely on the date when the workers’ compensation commissioner made his award. The record contains no finding about when notice of this award was given to the [appellant]. In the absence of such a finding, we decline to hold that the compensation review division lacked jurisdiction to hear the . . . appeal.” Id.

We follow the direction taken by the Supreme Court in Trinkley, and conclude that the proper interpretation of the limitation period contained in General Statutes § 31-301 (a) is that the ten day period begins to run on the day on which the party wanting to appeal is sent meaningful notice of the commissioner’s decision. Trinkley v. Ella Grasso Regional Center, supra 220 Conn. 743; see also Kron v. Thelen, supra, 178 Conn. 197 n.3; Hubbard v. Planning Commission, supra, 151 Conn. 272-73.

We decline to adopt the plaintiff’s position that the appeal period commences when notice of the appealable decision is received. Such a holding would create undue delay and difficulties in proving receipt by the party wanting to appeal. See Hubbard v. Planning Commission, supra, 151 Conn. 272. Implementation and application of our holding relies, rather, on the records of the commission as to when notice is sent.

Nor do we agree with the compensation review board that the ten day appeal period in General Statutes § 31-301 (a) is tolled only if notice to the party wanting to appeal is received later than ten days from the date of the decision. Such a holding would create absurd results. According to the review board, a party receiving notice of a decision nine days after its entry has only one day in which to appeal, while a party receiving notice on the eleventh day has ten days in which to appeal. We find such a rule inconsistent and unreasonable. “Such a bizarre result could not have been intended by the legislature. ‘The law favors a rational statutory construction and we presume that the legislature intended a sensible result.’ ” State v. Jiminez, 228 Conn. 335, 341, 636 A.2d 782 (1994).

The compensation review board must, therefore, determine the date on which notice of the commissioner’s decision was sent to the parties to assess properly whether the plaintiff’s appeal was timely. See Trinkley v. Ella Grosso Regional Center, supra, 220 Conn. 743; see also Kron v. Thelen, supra, 178 Conn. 197 n.3; Hubbard v. Planning Commission, supra, 151 Conn. 272-73.

The decision of the compensation review board is reversed and the case is remanded for further proceedings consistent with this opinion.

In this opinion the other judges concurred.

       General Statutes § 31-301b provides: “Any party aggrieved by the decision of the compensation review board upon any question or questions of law arising in the proceedings may appeal the decision of the compensation review board to the appellate court.”

       General Statutes § 31-301 (a) provides in pertinent part: “At any time within ten days after entry of such award by the commissioner, after a decision of the commissioner upon a motion or after an order by the commissioner according to the provisions of section 31-299b, either party may appeal therefrom to the compensation review board . . . .”

       General Statutes § 31-307 provides in pertinent part: “(a) If any injury for which compensation is provided under the provisions of this chapter results in total incapacity to work, the injured employee shall be paid a weekly compensation . . . and the compensation shall not continue longer than the period of total incapacity.”

       General Statutes § 31-296 provides in pertinent part that “[b]efore discontinuing or reducing payment on account of total or partial incapacity under [a voluntary] agreement, the employer, if it is claimed by or on behalf of the injured person that his incapacity still continues, shall notify the commissioner and the employee, by certified mail, of the proposed discontinuance or reduction of such payments, with the date of such proposed discontinuance or reduction and the reason therefor, and, such discontinuance or reduction shall not become effective unless specifically approved in writing by the commissioner.”


author: Cretella, J.

text:
    Joanne Farrell v. Frank Farrell et al.
    (12268)
    O’Connell, Foti and Cretella, Js.
    Argued September 22
    decision released December 6, 1994

      Maureen P. Temchin, with whom, on the brief, were Earl M. Temchin and William J. Nulsen, for the appellants (named defendant et al.).

      Edward J. Dolan, with whom, on the brief, was Kent Harvey, for the appellee (plaintiff).
   Cretella, J.

In this action seeking dissolution of marriage and an equitable decree voiding certain fraudulent conveyances, the defendants Frank Farrell, Susan Cifarelli and the East Pearl Development Company appeal from the judgment rendered in favor of the plaintiff, Joanne Farrell.

The case was tried before a state trial referee, who granted the dissolution. As to the fraudulent conveyance claim, he found that the named defendant was the equitable owner of three properties located in New Haven and North Haven. The referee ordered two of these three properties transferred to the plaintiff. The defendants argue on appeal that (1) the findings with respect to the three properties were not supported by the record, (2) the referee abused his discretion in awarding attorney’s fees, (3) the fraudulent conveyance of the three properties was not proven by clear and convincing evidence, and (4) the referee abused his discretion in ordering two of the properties transferred to the plaintiff.

We affirm the judgment as to the finding that the properties had been fraudulently conveyed. We must consider, however, who is liable for the payment of the plaintiff’s attorney’s fees, as well as whether the court abused its discretion with regard to the amount of the fee awarded.

The referee found the following facts. The plaintiff and the named defendant were married in 1969 and were separated in 1982. In 1982, after leaving the plaintiff, the named defendant moved in with the defendant Susan Cifarelli. In 1973, the named defendant had purchased a property located at 77 East Pearl Street in New Haven for $8000. He testified that after he “fixed . . . up” the property, he “sold it” to the defendant Leon Crockett for the mortgage balance of $4365 and cash of $6000. The referee found that 77 East Pearl Street earns rents of $1000 per month and that the “sale” of the property for the price stated was not “believable.”

In 1976, the named defendant and the defendant Pasquale Palmieri bought the second of the subject properties, located at 177-179 Ferry Street in New Haven. The purchase price was $33,000. After the named defendant “remodeled” it, the property returned rents of $2340 per month. In 1978, the named defendant sold his “half interest” in this property to Palmieri for $7700, who in turn later transferred it to Crockett. The referee found that $7700 was a fraction of what it cost the named defendant to buy the property, and that this “sale” also was not “believable.”

The referee noted that according to the testimony at trial, Crockett had formed a corporation, the East Pearl Development Company, to own, hold title to, and administer the two properties at 77 East Pearl Street and 177-179 Ferry Street. After creation of the corporation, Crockett transferred his stock to Cifarelli. The referee therefore found that “with one stroke of the pen . . . Cifarelli, who had Crockett’s power of attorney, deeded these properties to herself, with her signature, without any consideration being passed.”

The last of the subject properties, 12 Chapel Hill Road in North Haven, was purchased by Cifarelli herself. The referee found, however, that none of the moneys allegedly used to purchase the property came from Cifarelli. Rather, the referee found that the funds came from the named defendant.

The referee farther noted that Darlene Farrell, the daughter of the named defendant, testified “that she had been told on several occasions by [the named defendant] and . . . Cifarelli that [the named defendant] owned all of the properties and that the East Pearl Development Company had been formed to make sure that the plaintiff . . . would be unable ever to get anything.”

The referee granted the dissolution and ordered that two of the properties, 77 East Pearl Street and 177-179 Ferry Street, be conveyed or transferred to the plaintiff from the defendants, pursuant to General Statutes §§ 46b-66a and 46b-81. The court farther ordered the defendants Frank Farrell, Cifarelli and Palmieri, jointly and severally, to pay the plaintiffs attorney’s fee of $30,000.

I

The defendants make several arguments regarding the facts as found by the referee. They first argue that the findings of the referee with respect to the three properties were not supported by the evidence. “ ‘The factual findings of a trial court on any issue are reversible only if they are clearly erroneous. . . .This court cannot retry the facts or pass upon the credibility of the witnesses.’ (Citations omitted.) Holy Trinity Church of God in Christ v. Aetna Casualty & Surety Co., 214 Conn. 216, 223, 571 A.2d 107 (1990).” Rosick v. Equipment Maintenance & Service, Inc., 33 Conn. App. 25, 40-41, 632 A.2d 1134 (1993). “A finding of fact is clearly erroneous when there is no evidence in the record to support it ... or when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed. . . .” (Citations omitted; internal quotation marks omitted.) Id., 41. We are unable to conclude, on the basis of the record before us, that the referee’s findings were clearly erroneous.

The defendants also argue that the trial court incorrectly found by clear and convincing evidence that the three properties had been fraudulently conveyed. “A party who seeks to set aside a conveyance as fraudulent bears the burden of proving that the conveyance was made without substantial consideration and that, as a result, the transferor was unable to meet his obligations (constructive fraud) or that the conveyance was made with fraudulent intent in which the transferee participated (actual fraud).” Tessitore v. Tessitore, 31 Conn. App. 40, 42, 623 A.2d 496 (1993). “A fraudulent conveyance must be proven by clear and convincing evidence.” Id., 43. Whether a conveyance is fraudulent is purely a question of fact. Tyers v. Coma, 214 Conn. 8, 11, 570 A.2d 186 (1990). For the reasons stated above, we cannot conclude that the trial court’s factual findings that the properties had been fraudulently conveyed were clearly erroneous.

Finally, the defendants argue that the trial court abused its discretion in ordering the East Pearl Street and Ferry Street properties transferred to the plaintiff. Specifically, the defendants claim that the court did not consider all of the statutory criteria required by General Statutes § 46b-81 (c) before ordering the properties transferred to the plaintiff. The trial court specifically noted, however, that it had “properly considered and weighed the application of all statutory relevant facts prior to deciding this case.” On the basis of the record before us, we cannot say that the trial court abused its discretion in ordering the properties transferred to the plaintiff.

II

The defendants make several arguments with respect to the award of attorney’s fees. They first argue that the court abused its discretion under General Statutes § 46b-62 by awarding attorney’s fees against the non-spouse defendants, Cifarelli and Palmieri. Pursuant to § 46b-62, “the court may order . . . either spouse or either parent to pay the reasonable attorney’s fees of the other in accordance with their respective financial abilities and the criteria set forth in section 46b-82.” (Emphasis added.) Accordingly, attorney’s fees in this case may be awarded only against a spouse. While not disputing this, the plaintiff presents several arguments in support of the award.

The plaintiff first argues that since Palmieri did not appeal the judgment, it is conclusive as to him. In Gino’s Pizza of East Hartford, Inc. v. Kaplan, 193 Conn. 135, 141-42, 475 A.2d 305 (1984), however, the Supreme Court noted that a party who fails to appeal a judgment may nonetheless benefit from an appellate decision rendered in the context of an appeal brought by another party in the same case.

The plaintiff argues that the award of counsel fees against the other nonspouse defendant, Cifarelli, was not based on § 46b-62, but rather on “the trial court’s common law powers to award attorney’s fees as an element of punitive damages.” In support of this argument, the plaintiff refers to her prayer for relief in the second amended complaint, which included a request for punitive damages against all defendants.

Generally, attorney’s fees may not be recovered, either as costs or damages, absent contractual or statutory authorization. O’Leary v. Industrial Park Corp., 211 Conn. 648, 651, 560 A.2d 968 (1989); Plikus v. Plikus, 26 Conn. App. 174, 179, 599 A.2d 392 (1991). Attorney’s fees may be awarded, however, as a component of punitive damages. O’Leary v. Industrial Park Corp., supra, 651; Plikus v. Plikus, supra, 179. “To furnish a basis for recovery of such damages, the pleadings must allege and the evidence must show wanton or wilful malicious misconduct, and the language contained in the pleadings must be sufficiently explicit to inform the court and opposing counsel that such damages are being sought.” Markey v. Santangelo, 195 Conn. 76, 77, 485 A.2d 1305 (1985). Punitive damages may be awarded upon a showing of fraud. O’Leary v. Industrial Park Corp., supra, 651; Plikus v. Plikus, supra, 180.

In the present case, the referee did not make any findings with regard to wanton or wilful malicious misconduct. He did find, however, that the properties at issue had been fraudulently conveyed; accordingly, he found that the case was controlled by General Statutes § 52-552, governing fraudulent conveyances. Therefore, although there was a finding of fraud, which might justify an award of punitive damages, the fraud in this case falls within the parameters of § 52-552, which does not provide for an award of attorney’s fees. Derderian v. Derderian, 3 Conn. App. 522, 529, 490 A.2d 1008, cert. denied, 196 Conn. 810, 811, 495 A.2d 279 (1985). We therefore vacate that portion of the judgment requiring Cifarelli and Palmieri to pay the plaintiff’s attorney’s fees.

The defendants next argue, pursuant to General Statutes § 46b-82, that the trial court failed to consider the financial ability of the named defendant to pay the fees. We do not agree.

The award of counsel fees was made after a full trial on the merits. The court specifically stated that the award was issued “in order not to undermine the property awards to her, and also because of her physical condition that necessitates her wearing a full body cast and being unable to work.” The court further noted that the plaintiff has no significant employment skills. On the basis of the foregoing, we cannot say that the award of attorney’s fees to the plaintiff was an abuse of discretion. Tessitore v. Tessitore, supra, 31 Conn. App. 44; Passamano v. Passamano, 28 Conn. App. 854, 860-61, 612 A.2d 141, rev’d on other grounds, 228 Conn. 85, 634 A.2d 891 (1993).

The final argument on appeal is that the trial court failed to substantiate on the record the plaintiff’s attorney’s fee request. No motion for articulation was filed, however, requesting that the trial court articulate on the record the basis on which it ordered the payment of counsel fees. See Practice Book § 4051. Without some evidence to the contrary, we will not presume that the trial court improperly applied the law. See Passamano v. Passamano, supra, 28 Conn. App. 861.

The judgment is reversed in part and the case is remanded with direction to render judgment as on file except as modified to eliminate the ordered payment of attorney’s fees by the defendants Susan Cifarelli and Pasquale Palmieri.

In this opinion the other judges concurred.

       The defendants named in this action were Frank Farrell, Susan Cifarelli, the East Pearl Development Company, Leon Crockett and Pasquale Palmieri. Crockett did not appear in the action and was not present at trial. Palmieri was not present at trial and has not appealed the trial court’s ruling. As used in this opinion, the word defendants refers to Frank Farrell, Cifarelli and the East Pearl Development Company.

       With regard to 77 East Pearl Street and 177-179 Ferry Street, the referee’s memorandum of decision further states:
      “Frank Farrell originally purchased the East Pearl Street and Ferry Street properties, fixed them up himself and ‘conveyed’ them to Crockett and Palmieri for minimal considerations.
      “After holding the properties for a short period of time Crockett and Palmieri each gave them to Cifarelli, the live in girl friend of the defendant Farrell.
      “During these brief periods, Susan Cifarelli collected the rents. After she was given the properties, either she or the defendant Farrell continued to collect the rents.

        “Mr. Farrell testified that he tells people he owns the properties because it makes him feel good ... he says he owns the properties, ‘because it makes it easier to collect the rents for Susan.’ ”

       General Statutes § 46b-66a (a) provides: “At the time of entering a decree annulling or dissolving a marriage or for legal separation pursuant to a complaint under section 46b-45, the superior court may order the husband or wife to convey title to real property to the other party or to a third person.”

       General Statutes § 46b-81 (a) provides: “At the time of entering a decree annulling or dissolving a marriage or for legal separation pursuant to a complaint under section 46b-45, the superior court may assign to either the husband or wife all or any part of the estate of the other. The court may pass title to real property to either party or to a third person or may order the sale of such real property, without any act by either the husband or the wife, when in the judgment of the court it is the proper mode to carry the decree into effect.”

       Palmieri has not appealed this ruling. See footnote 1.

       General Statutes § 46b-81 (c) provides in relevant part: “In fixing the nature and value of the property, if any, to be assigned, the court. . . shall consider the length of the marriage, the causes for the annulment, dissolution of the marriage or legal separation, the age, health, station, occupation, amount and sources of income, vocational skills, employability, estate, liabilities and needs of each of the parties and the opportunity of each for future acquisition of capital assets and income. The court shall also consider the contribution of each of the parties in the acquisition, preservation or appreciation in value of their respective estates.”

       The judgment provides: “The court further orders the defendants, Frank Farrell, Susan Cifarelli and Pasquale Palmieri, jointly and severally to pay the plaintiff’s attorney fees to her counsel Edward Dolan in the amount of $30,000 within ninety days from the date of this judgment.”

       General Statutes § 52-552 was repealed by Public Acts 1991, No. 91-297, and we have adopted General Statutes § 52-552a, the Uniform Fraudulent Transfer Act. Prior to that adoption, General Statutes § 52-552 governed fraudulent conveyances. Because § 52-552 was in effect when the disputed transfers took place, we must consider this action under that statute. Tyler v. Schnabel, 34 Conn. App. 216, 220-21, 641 A.2d 388 (1994).
      Prior to its repeal in 1991, § 52-552 provided: “All fraudulent conveyances, suits, judgments, executions or contracts, made or contrived with intent to avoid any debt or duty belonging to others, shall, notwithstanding any pretended consideration therefor, be void as against those persons only, their heirs, executors, administrators or assigns, to whom such debt or duty belongs.”


author: Foti, J.

text:
    Dime Savings Bank of New York v. W. Brian Grisel et al.
    (13224)
    Foti, Schaller and Spear, Js.

      Argued September 28
    decision released December 13, 1994

      Paul L. Rubin, with whom, on the brief, was Barry F. Armata, for the appellant (plaintiff).

      James R. Mark, for the appellee (Gary R. DeMayo).
   Foti, J.

The plaintiff appeals from the judgment of the trial court approving a foreclosure by sale of property owned by the named defendant et al. The plaintiff alleges that the trial court acted improperly by failing (1) to follow the mandates of General Statutes § 49-25, (2) to find the actions of the committee of sale improper in its refusal to reopen the bidding process, and (3) to disapprove of the foreclosure sale because it resulted in an inequity. We reverse the judgment in part.

The following facts are relevant to this appeal. The plaintiff commenced this action to foreclose its mortgage on property located in Chaplin. A judgment of foreclosure by sale was rendered on April 19,1993. The value of the property was found to be $170,000 and the debt was found to be $139,728.72. The foreclosure sale was ordered to take place at the premises on July 10, 1993, at noon. A committee of sale was appointed and an appraiser was also appointed to prepare an appraisal, which was to be filed with the clerk of the court by June 1,1993. The court further ordered that bidders be required to deposit $17,000 in the form of a bank check or certified check with the committee. The plaintiff was excused from that requirement.

On the date of the sale, the committee began the auction at noon. Although approximately twenty-two people arrived to inspect the property, only Gary R. DeMayo registered with the committee as a bidder and submitted his deposit check. His was the only bid, at $30,000. There being no other bids, the committee accepted DeMayo’s bid, closed the bidding and concluded the sale. At approximately 12:10 p.m., the plaintiff’s attorney arrived and requested that he be permitted to submit a bid on behalf of the plaintiff. The committee refused the request. At that time, the successful bidder, DeMayo, was in the process of executing a bond for deed with the committee.

On January 3,1993, a hearing was held on the committee’s motions seeking approval of the sale, deed and report, along with an allowance for committee’s fees and expenses. The plaintiff, prior to this hearing, filed an objection to the committee’s motions. The plaintiff noted that its attorney had arrived late because he was unable to locate the property, that the bid accepted was inadequate compared to the value of the property that had previously been found to be $170,000, and that the plaintiff was prepared to bid $101,000 in the event a resale was ordered.

The trial court confirmed the sale. No current appraisal report had been filed with the court at that time. The record is clear that the trial court did not have such an appraisal, as ordered pursuant to § 49-25, on the date that the sale was confirmed.

I

The plaintiff first claims that the trial court failed to obtain an appraisal of the subject property as required by § 49-25, thereby having no basis for determining the fairness of the single bid accepted by the committee. DeMayo concedes that the trial court did not have the benefit of the appraisal report required by § 49-25, but argues that there was, nonetheless, sufficient evidence by which the court could determine whether to approve the sale. DeMayo points to two previous appraisals indicating values of $180,000 and $170,000. He notes that the house had a dirt cellar containing various animals, that the attic contained bats, and that, despite extensive efforts to attract buyers, only one bid of $30,000 was submitted. From this, he concludes that a property is worth only what a prospective purchaser is willing to pay for it, and that the court was justified in determining that the actual value of the property was closer to $30,000 than to $170,000. We do not agree with DeMayo’s reasoning that, under these circumstances, the sale price was determinative of value and the appraisal required pursuant to § 49-25 need not have been utilized by the court.

As a preliminary matter, we note that this claim by the plaintiff was not raised before the trial court. As a general rule, we will not consider a claim on appeal that was not distinctly raised at the trial level. Sarad jian v. Saradjian, 25 Conn. App. 411, 419, 595 A.2d 890 (1991). The plaintiff, however, asks that we review this claim under the plain error doctrine. “Plain error is reserved for instances where the error is so obvious that it affects the fairness and integrity of and public confidence in the judicial proceedings. . . . Our Supreme Court has stated that a trial court’s failure to follow the mandatory provisions of a statute prescribing trial procedures . . . constitutes plain error.” (Citation omitted.) State v. Robins, 34 Conn. App. 694, 706, 643 A.2d 881 (1994). The plain error doctrine is properly invoked in this case.

Section 49-25 provides in relevant part that in a foreclosure by sale “the court shall appoint one disinterested appraiser who shall, under oath, appraise the property to be sold .... Upon motion of the owner of the equity of redemption, the court shall appoint a second appraiser in its decree. ...” While an appraisal under the statute is not conclusive as to the value of the property for purposes of fixing the amount of a deficiency; Cronin v. Gager-Crawford Co., 128 Conn. 688, 692, 25 A.2d 652 (1942); it serves to assist the court in determining whether to approve the sale as one that fairly realized the value of the property. Bryson v. Newton Real Estate & Development Corp., 153 Conn. 267, 274, 216 A.2d 176 (1965). While the trial court is not bound to accept the appraised value; Dan-bury Savings & Loan Assn., Inc. v. Hovi, 20 Conn. App. 638, 641, 569 A.2d 1143 (1990); it may assist the trial court in the exercise of its discretion, in accepting or rejecting a proposed sale. See Fidelity Trust Co. v. Irick, 206 Conn. 484, 490, 538 A.2d 1027 (1988).

The trial court in a foreclosure matter acts as a court of equity and has full authority to refuse to confirm a sale on equitable grounds where an unfairness has taken place or where the price bid was inadequate. Id.; see also Citicorp Mortgage, Inc. v. Burgos, 227 Conn. 116, 121-23, 629 A.2d 410 (1993). The court must exercise its discretion and equitable powers with fairness not only to the foreclosing mortgagee, but also to subsequent encumbrancers and the owners. Farmers & Mechanics Savings Bank v. Sullivan, 216 Conn. 341, 354, 579 A.2d 1054 (1990). The appraisal procedure provided by § 49-25 performs the function of giving the trial court guidance on the question of whether to approve the sale. New England Savings Bank v. Lopez, 227 Conn. 270, 279, 630 A.2d 1010 (1993).

This function of providing the trial court with guidance on the question of whether to approve the sale could not be accomplished in the present matter. The court therefore could not reasonably exercise its discretion. Without an appraisal, the court could not determine whether to approve the sale as fairly realizing the value of the property. DeMayo argues that the court used other evidence to determine the value of the property, and that the court’s determination should be upheld unless it is found to be clearly erroneous. We are aware that a fair market value is generally achieved where a sale results from fair negotiations between a willing buyer and a willing seller, neither being under pressure to deal. New Haven Savings Bank v. West Haven Sound Development, 190 Conn. 60, 71, 459 A.2d 999 (1983). We are also aware that foreclosure sales are often at a price substantially less than fair market value. Cronin v. Gager-Crawford Co., supra, 128 Conn. 692. An appraisal under § 49-25, however, is a prerequisite for the exercise of the court’s discretion in determining whether to approve a foreclosure sale. Further, while the confirmation of a foreclosure sale is a final determination that the mortgaged property was sold at a fair price; id., 693; unless an appraisal is conducted pursuant to § 49-25, the criteria for determining when a deficiency judgment may be obtained, in accordance with General Statutes § 49-28, cannot be satisfied.

We conclude that a new hearing, subject to compliance with the appraisal procedure of § 49-25, is necessary for a determination of the fair value of the property. Accordingly, we reverse.

II

The plaintiff also claims that the trial court abused its discretion in confirming the sale because the committee, as an agent of the court, acted improperly in not reopening the bidding process and in obtaining a grossly inadequate sales price at the foreclosure sale. The plaintiff relies on principles of equity and fairness in arguing that the committee should have reopened the bidding process.

The court is the vendor in a foreclosure by sale resulting from a judicial proceeding, and the committee of sale is the mere agent of the court. Citicorp Mortgage, Inc. v. Burgos, supra, 227 Conn. 120; Raymond v. Gil-man, 111 Conn. 605, 614, 151 A. 248 (1930). The balancing of the equities and the determination of what is required by equity in a particular case are matters of discretion for the trial court. Harbour Landing Develop ment Corp. v. Herman, 27 Conn. App. 98, 102, 603 A.2d 779 (1992). Our review of the particular facts and circumstances of this case leads us to the determination that the trial court did not abuse its discretion. According to its articulation, the trial court found that the plaintiffs attorney had arrived after the bidding had closed and DeMayo’s bid had been approved by the committee. The court further found that DeMayo and the committee had “played by the rules,” and that the plaintiff had not been present for the bidding “because of its own mistake or error.” The court concluded that it could not reject the sale under these circumstances without undermining the integrity of the foreclosure by sale concept.

Our review of the court’s factual determinations is limited to whether those facts are supported by the evidence, or whether, in light of the evidence and the pleadings in the whole record, those facts are clearly erroneous. Pandolphe’s Auto Parts, Inc. v. Manchester, 181 Conn. 217, 221-22, 435 A.2d 24 (1980). We conclude, on the basis of the record before us, that the trial court did not abuse its discretion when it declined to set aside the sale on the basis of the committee’s refusal to reopen the bidding process.

The judgment is reversed as to the approval of the sale only, and the case is remanded for further proceedings consistent with this opinion.

In this opinion the other judges concurred.

       The defendants are W. Brian Grisel and Karen W. Grisel, owners of record, and the Federal Deposit Insurance Corporation (FDIC), a subsequent encumbrancer to the plaintiff’s claim. On April 20,1994, we granted the motion of the successful bidder, Gary R. DeMayo, to appear as an appellee. We also determined during oral argument that because the deed of sale has not been executed, title has not vested in DeMayo, and this appeal is not moot. See Barclays Bank of New York v. Ivler, 20 Conn. App. 163, 166, 565 A.2d 252, cert. denied, 213 Conn. 809, 568 A.2d 792 (1989). The only appellee before us is DeMayo.

       General Statutes § 49-25 provides: “When the court in any such proceeding is of the opinion that a foreclosure by sale should be decreed, it shall, in its decree, appoint a person to make the sale and fix a day therefor, and shall direct whether the property shall be sold as a whole or in parcels, and how the sale shall be made and advertised; but, in all cases in which such sale is ordered, the court shall appoint one disinterested appraiser who shall, under oath, appraise the property to be sold and make return of the appraisal to the clerk of the court. Upon motion of the owner of the equity of redemption, the court shall appoint a second appraiser in its decree. If the plaintiff is the purchaser at sale, or if the property is redeemed at any time prior to the approval of the sale, or if for any reason the sale does not take place, the expense of the sale and appraisal or appraisals shall be paid by the plaintiff and be taxed with the costs of the case. If, after judgment has been rendered, the amount found to be due and for which foreclosure is decreed, together with the interest and the costs, is paid to the plaintiff before the sale, all further proceedings in the suit shall be stayed.”

       As to whether the court made a finding of value and the basis for that finding, the court articulated: “Yes, to the extent that the value was closer to the $30,000 successful bid than the appraisal. This was based on:
      “a) The sale was approximately seven (7) months after the appraisal of December 21,1992, which was not updated. The prior appraisal of March, 1992, was higher, reflecting a decline in the market.
      “b) More importantly, twenty-two (22) prospective bidders were at the sale, notices and invitations had been sent to forty (40) real estate agents, and extensive advertising had been done. Weather and traffic were not a problem at time of sale, property was well kept although it had been vacant for over one (1) year. See Committee Report dated July 10, 1993, and Recommendation of Committee dated November 10,1993. Everything had been done to attract buyers who would pay a fair/competitive price.” (Emphasis in original.)

       General Statutes § 49-28 provides in relevant part: “If the proceeds of the sale are not sufficient to pay in full the amount secured by any mortgage or lien thereby foreclosed, the deficiency shall be determined, and thereupon judgment may be rendered in the cause for the deficiency against any party liable to pay the same .... If the property has sold for less than the appraisal provided for in section 49-25, no judgment shall be rendered in the suit or in any other for the unpaid portion of the debt . . . of the party . . . upon whose motion the sale was ordered, nor shall the same be collected by any other means than from the proceeds of the sale until one-half of the difference between the appraised value and the selling price has been credited upon the debt . . . as of the date of sale . . . .”

       While our remand requires a new hearing, we deem it necessary to address this claim dealing with the committee’s refusal to reopen the bidding process.

       This issue is subsumed in the first issue.

       The plaintiff did not seek to correct the court’s articulation.