author: SHEA, J.

text:
    JOSEPH GRIGERIK v. GARY SHARPE
    (AC 15099)
    Landau, Spear and Shea, Js.
    Argued October 28, 1999
    officially released January 4, 2000

      LorindaS. Coon, with whom, on the brief, was Elizabeth Fairbanks Flynn, for the appellants (defendants).

      Timothy Brignole, for the appellee (plaintiff).
   Opinion

SHEA, J.

When this appeal was before this court the first time, we reversed the judgment of the trial court awarding damages to the plaintiff landowner on the negligence count of the complaint pursuant to a jury verdict on that count against the defendants, Gary Sharpe and Angus McDonald-Gary Sharpe and Associates, Inc. The defendants had been employed by the plaintiffs grantor to perform percolation tests on his land for the purpose of obtaining a building permit. The plaintiffs grantor later sold the land to the plaintiff, Joseph Grigerik. Grigerik v. Sharpe, 45 Conn. App. 775, 699 A.2d 189 (1997), rev’d, 247 Conn. 293, 721 A.2d 526 (1998). We upheld the defense of the statute of limitations pleaded by the defendants because the action had not been commenced within two years of the date when the negligence of the defendants was discovered or should have been discovered, as provided by General Statutes § 52-584. We rejected the plaintiffs claim that the applicable statute of limitations was General Statutes § 52-584a, which allows actions to be brought against architects and professional engineers within seven years after substantial completion of an improvement to real property. The Supreme Court, after granting certification to appeal, reversed our decision with respect to the applicable statute of limitations and upheld the plaintiffs claim that the proper statute to be applied was § 52-584a, which allows seven years after substantial completion of an improvement to bring an action for negligence against professional engineers, such as the defendants. The plaintiff had satisfied that requirement. The Supreme Court, therefore, remanded the case to this court with direction to consider the defendants’ claim that the trial court had abused its discretion in permitting the plaintiff to amend his complaint to add further specifications of negligence after the jury had been selected. Grigerik v. Sharpe, 247 Conn. 293, 309-18, 721 A.2d 526 (1998).

The negligence count of the original complaint alleged that the defendant Sharpe was negligent in performing the site plan work for the property purchased by the plaintiff in one or more of the following ways: (a) he failed to perform percolation tests at the subject property; (b) he indicated that a percolation rate test of approximately 13.3 minutes per inch or less was obtained at the subject property; (c) he failed to utilize the services of trained servants and employees in physically performing said percolation rate tests; and (d) he failed to supervise properly servants and employees retained by him to physically perform said percolation rate tests.

The plaintiffs motion to amend the complaint, which the trial court granted, added the following specifications of negligence as to the defendant Sharpe and the defendant corporation, which had been joined as an additional party earlier in the proceedings: (e) they failed to validate the percolation test information provided on the site plan; (f) they failed to take the percolation test in the proper place or area; (g) they failed to follow the proper protocol in completing the site plan in violation of § 19-13-B103e of the Regulations of Connecticut State Agencies; (h) they designed the septic tank system in a faulty manner; (i) they failed to allow an adequate time for the presoak portion of the percolation test in violation of the Public Health Code Regulation, Technical Standards Chapter VII; and (j) they failed to meet the proper conditions of the percolation test in violation of the Public Health Code Regulations, Technical Standards Chapter VII.

The four specifications of negligence in the original complaint refer expressly to the claim of negligent performance of the percolation tests. Of the six specifications added by the amendment, four, (e), (f), (i) and Q), also refer expressly to that claim. Even without an amendment, evidence to prove the facts alleged in those four specifications would have been admissible under the allegations of negligence in performing the percolation tests as alleged in the original complaint. “The modem trend is to read pleadings broadly and realistically, rather than narrowly and technically.” DeMartin v. Yale-New Haven Hospital, 4 Conn. App. 387, 390, 494 A.2d 1222, cert. denied, 197 Conn. 813, 499 A.2d 62 (1985); see Beaudoin v. Town Oil Co., 207 Conn. 575, 587-88, 542 A.2d 1124 (1988).

The remaining two specifications, (g) and (h), refer respectively to failure to follow the proper protocol in completing the site plan in violation of a state regulation and to faulty design of the septic tank system. Paragraphs eight, nine and ten of the original complaint allege that the defendant Sharpe provided a site plan to the plaintiffs grantor representing that he had performed deep-pit tests and percolation rate tests that indicated a satisfactory percolation rate, and that the plaintiff had relied on those representations in purchasing the property. It appears that the faulty percolation tests were the basis for the claim that the site plan and the design of the septic tank system were faulty, as alleged in (g) and (h). Paragraph 6a of the interrogatories submitted to the jury joined performance of soil testing and site plan work in inquiring whether the defendants had breached the applicable standard of care, and provided for a single answer, “yes” or “no.” The defendants never objected to that form of the interrogatory, which the jury answered affirmatively.

The trial court allowed the amendment, relying on the principle that when the original complaint fairly apprises the defendant of the nature of the plaintiffs claim, additional specifications in support of that claim are permissible. “It is proper to amplify or expand what has already been alleged in support of a cause of action, provided the identity of the cause of action remains substantially the same.” (Internal quotation marks omitted.) Bielaska v. Waterford, 196 Conn. 151, 154, 491 A.2d 1071 (1985); Giglio v. Connecticut Light & Power Co., 180 Conn. 230, 239, 429 A.2d 486 (1980). As requested by the defendants, the court granted a continuance, requiring suspension of the trial for one day, to permit the defendants to depose the plaintiffs expert witness with respect to the specifications of negligence added by the amendment.

“A trial court has wide discretion in granting or denying amendments to the pleadings and rarely will this court overturn the decision of the trial court.” Hanson Development Co. v. East Great Plains Shopping Center, Inc., 195 Conn. 60, 67, 485 A.2d 1296 (1985). “In exercising its discretion with reference to a motion for leave to amend, a court should ordinarily be guided by its determination of the question whether the greater injustice will be done to the mover by denying him his day in court on the subject matter of the proposed amendment, or to his adversary by granting the motion, with the resultant delay.” DuBose v. Carabetta, 161 Conn. 254, 263, 287 A.2d 357 (1971). We conclude that the defendants were not unfairly prejudiced by allowing the additional specifications of negligence and that the trial court did not abuse its discretion in allowing the amendment.

With respect to the negligence count, the judgment is affirmed; with respect to the breach of contract count, the judgment is reversed and the case is remanded with direction to render judgment for the defendants.

In this opinion the other judges concurred.

       General Statutes § 52-584 provides: “No action to recover damages for injury to the person, or to real or personal property, caused by negligence, or by reckless or wanton misconduct, or by malpractice of a physician, surgeon, dentist, podiatrist, chiropractor, hospital or sanatorium, shall be brought but within two years from the date when the injury is first sustained or discovered or in the exercise of reasonable care should have been discovered, and except that no such action may be brought more than three years from the date of the act or omission complained of, except that a counterclaim may be interposed in any such action any time before the pleadings in such action are finally closed.”

       General Statutes § 52-584a provides: “(a) No action or arbitration, whether in contract, in tort, or otherwise, (1) to recover damages (A) for any deficiency in the design, planning, contract administration, supervision, observation of construction or construction of, or land surveying in connection with, an improvement to real property; (B) for injury to property, real or personal, arising out of any such deficiency; (C) for injury to the person or for wrongful death arising out of any such deficiency, or (2) for contribution or indemnity which is brought as a result of any such claim for damages shall be brought against any architect, professional engineer or land surveyor performing or furnishing the design, planning, supervision, observation of construction or construction of, or land surveying in connection with, such improvement more than seven years after substantial completion of such improvement.
      “(b) Notwithstanding the provisions of subsection (a) of this section, in the case of such an injury to property or the person or such an injury causing wrongful death, which injury occurred during the seventh year after such substantial completion, an action in tort to recover damages for such an injury or wrongful death may be brought within one year after the date on which such injury occurred, irrespective of the date of death, but in no event may such an action be brought more than eight years after the substantial completion of construction of such an improvement.
      “(c) For purposes of subsections (a) and (b) of this section, an improvement to real property shall be considered substantially complete when (1) it is first used by the owner or tenant thereof or (2) it is first available for use after having been completed in accordance with the contract or agreement covering tire improvement, including any agreed changes to the contract or agreement, whichever occurs first.
      “(d) The limitation prescribed by this section shall not be asserted by way of defense by any person in actual possession or the control, as owner, tenant or otherwise, of such an improvement at the time any deficiency in such an improvement constitutes the proximate cause of the injury or death for which it is proposed to bring action.”
      Section 52-584a was amended in 1998 for purposes not relevant to this opinion. We refer in this opinion to the current revision for convenience.

       The Supreme Court also reversed the judgment of this court on the contract count. This court had reversed the judgment of the trial court, pursuant to the verdict on that count, that the plaintiff was a third party beneficiary of the contract between the defendant engineer and the plaintiffs grantor, who had employed the defendant to perform percolation tests on the land for the purpose of obtaining a building permit. Grigerik v. Sharpe, 247 Conn. 293, 309-18, 721 A.2d 526 (1998). The Supreme Court held that the plaintiff had no direct relationship with the defendant entitling him to enforce that contract. Id., 317. The remand relating to that count directs this court to remand it to the trial court with direction to render judgment for the defendants on that count. Id., 318.

       The defendants raised the amendment issue before this court, but our disposition of the negligence count in favor of the defendants on the ground of the statute of limitations rendered consideration of that issue superfluous.


source: Caselaw Access Project

author: SPEAR, J.

license: Public Domain

text:
    JCV INVESTMENT GROUP, INC. v. RICHARD MANJONEY
    (AC 18757)
    Foti, Landau and Spear, Js.

      Argued September 23, 1999
    officially released January 4, 2000

      David S. Doyle, for the appellant (plaintiff).

      Lee Marlow, for the appellee (defendant).
   Opinion

SPEAR, J.

The plaintiff, JCV Investment Group, Inc., appeals from the judgment of the trial court confirming an arbitration award in favor of the defendant, Richard Manjoney. The plaintiff claims that the court improperly confirmed the award because (1) the plaintiff was not a party to the contract that contained the arbitration clause, and (2) the court engaged in fact-finding and substituted its findings for those of the arbitrator by concluding that the plaintiff did business as JCV Rare Coin, the signatory to the contract. We affirm the judgment of the trial court.

This dispute arose out of a contract executed by the defendant and “JCV Rare Coin” (JCV). The contract provided that JCV would auction certain rare coins belonging to the defendant in return for a fee of 10 percent of the selling price. A disagreement developed over whether the defendant was to receive a minimum price for each coin that was offered for auction. The defendant demanded arbitration pursuant to a clause in the contract that provided: “In the event of any dispute or disagreement with JCV involving the interpretation or application of any of the terms of this agreement, or either party’s compliance or breach thereof, the same shall be settled and resolved by the Dallas, Texas, office of the American Arbitration Association, pursuant to its commercial arbitration rules.”

The defendant directed the demand for arbitration to the plaintiff at its office in Dallas. After a hearing, the arbitrator awarded the defendant $48,900. Thereafter, the plaintiff filed an application to vacate the award in Superior Court, alleging that the arbitrator had exceeded his powers by “proceeding against an entity [that] was not a party to [the] arbitration agreement.” The defendant filed a motion to confirm the award. The trial court denied the application to vacate and granted the defendant’s motion to confirm. This appeal followed.

I

The plaintiff claims that the arbitrator lacked authority to decide the dispute because the plaintiff did not sign the contract at issue. This is the equivalent of a claim that the dispute is not arbitrable in that it challenges the authority of the arbitrator to decide the case.

There are two ways to preserve for judicial resolution a challenge to the authority of an arbitrator. “First, a party may refuse to submit to arbitration at the outset and instead compel a judicial determination of the issue of arbitrability. . . . Alternatively, threshold questions of arbitrability may properly be committed to the arbitrators themselves for determination under the terms of the contract, along with the merits of the underlying dispute.” (Citations omitted; internal quotation marks omitted.) White v. Kampner, 229 Conn. 465, 476, 641 A.2d 1381 (1994).

Here, the plaintiff did not force the defendant to file an application to compel arbitration pursuant to General Statutes § 52-410. Rather, the plaintiff chose to proceed with the arbitration. Further, although the plaintiff claims that it challenged the authority of the arbitrator to proceed against it, nothing in the record before us indicates that such a claim was made. The plaintiff did not provide the trial court or this court with a transcript of the arbitration proceedings or any document filed with the arbitrator that challenged his authority to decide the case. See Hartford v. IAFF, Local 760, AFL-CIO, CLC, 24 Conn. App. 254, 257, 587 A.2d 435 (1991). It is the appellant’s responsibility to present a record that is adequate to review the claims that it makes on appeal. State v. Silva, 43 Conn. App. 488, 496, 684 A.2d 725 (1996), cert. denied, 239 Conn. 956, 688 A.2d 329 (1997). Under these circumstances, we have no basis for reviewing the trial court’s conclusion that the plaintiff failed to show that the arbitrator lacked authority to decide the dispute.

II

The plaintiff asserts that the trial court improperly concluded that the arbitrator found that the plaintiff did business as JCV Rare Coin. This assertion is based on the court’s use of ellipses in quoting the finding in the arbitration award that the plaintiff conducted business under the name of “. . . JCV Rare Coins.” The arbitrator’s award found against the plaintiff doing business as “David A. Vogel Associates; and/or JCV Group; and/or JCV Investment JCV Rare Coins.” This claim is irrelevant.

Because of the broad language of the arbitration clause, we, like the trial court, view the submission to the arbitrator as unrestricted. The plaintiff makes no claim to the contrary. “If the submission does not contain limiting or conditional language, then the submission is unrestricted. . . . [I]f the submission is unrestricted, an arbitrator is not required to decide the issues presented according to law. . . . Thus, [w]here the submission does not otherwise state, the [arbitrator is] empowered to decide factual and legal questions and an award cannot be vacated on the grounds that the construction placed upon the facts or the interpretation of the agreement by the [arbitrator] was erroneous. Courts will not review the evidence nor, where the submission is unrestricted, will they review the [arbitrator’s] decision of the legal questions involved.” (Internal quotation marks omitted.) Metropolitan District Commission v. AFSCME, Council 4, Local 3713, 35 Conn. App. 804, 808, 647 A.2d 755 (1994).

Because the submission was unrestricted, the court’s review was limited to ascertaining whether the award conformed to the submission. Connecticut Ins. Guaranty Assn. v. Zasun, 52 Conn. App. 212, 229, 725 A.2d 406 (1999); AFSCME, Council 15, Local 3153 v. Newtown, 49 Conn. App. 443, 451-52, 717 A.2d 759 (1998). The plaintiff does not complain that the award does not so conform. Given the limited nature of the court’s review, even if the use of the ellipses was improper, it would make no difference because the court could not review the arbitrator’s fact-finding or engage in fact-finding of its own.

The judgment is affirmed.

In this opinion the other judges concurred.

       The plaintiff also claims that the court improperly confirmed the award because (1) the defendant’s tort claim of fraudulent inducement was, by its very nature, outside the contract and therefore not arbitrable, and (2) the award violated public policy in that it was contrary to the clear language of the contract. We do not review these claims due to an inadequate record. Appellate courts, except with respect to plain error or claimed constitutional violations, do not review claims that were not presented to and passed on by the trial court. State v. Francis, 246 Conn. 339, 345, 717 A.2d 696 (1998); State v. Morales, 33 Conn. App. 184, 190, 634 A.2d 1193 (1993), rev’d on other grounds, 232 Conn. 707, 657 A.2d 585 (1995). Because the trial court’s memorandum of decision does not address either of these claims, they were either not presented or, if presented, were not decided. If the claims were presented to the trial court but not decided, the plaintiff’s failure to request an articulation renders the record inadequate for review. Saybrook Point Marina Partnership v. Old Saybrook, 49 Conn. App. 106, 113, 712 A.2d 980, cert. denied, 247 Conn. 904, 720 A.2d 515 (1998); McNeil v. Riccio, 45 Conn. App. 466, 476, 696 A.2d 1050 (1997).

       A second claim that alleged the arbitrator acted with evident partiality for the defendant was not addressed by the trial court and is not an issue on appeal.

       General Statutes § 52-410 (a) provides in relevant pari,: “A party to a written agreement for arbitration claiming the neglect or refusal of another to proceed with an arbitration thereunder may make application to the superior court . . . for an order directing the parties to proceed with the arbitration in compliance with their agreement. ...”


author: SCHALLER, J.

text:
    RICHARD SZCZAPA v. UNITED PARCEL SERVICE, INC.
    (AC 18541)
    Schaller, Spear and Hennessy, Js.

      Argued September 28, 1999
    officially released January 11, 2000

      Neil Johnson, for the appellant (plaintiff).

      Bernard F. Gaffney, for the appellee (defendant).
   Opinion

SCHALLER, J.

The plaintiff appeals from the judgment rendered by the trial court after granting the defendant’s motion to strike the plaintiffs complaint. On appeal, the plaintiff claims that the trial court improperly determined that General Statutes § 31-293U does not permit him to bring an action against his employer on the theory of vicarious liability for the negligence of the plaintiffs fellow employee in the operation of a motor vehicle. We affirm the judgment of the trial court.

The following facts are necessary to our resolution of this appeal. On June 7, 1995, the plaintiff, Richard Szczapa, who was an employee of the defendant, United Parcel Service, Inc., was injured while working on the defendant’s truck loading dock. While the plaintiff had one foot on the dock and one foot on a tractor trailer truck, a fellow employee negligently moved the truck away from the loading dock, thereby causing the plaintiff to suffer injuries. The plaintiff, who was acting within the scope of his employment at the time of his injury, received workers’ compensation benefits from his employer.

The plaintiff commenced an action against the defendant to recover damages for his personal injuries. The defendant moved to strike the plaintiffs complaint, asserting that an employee cannot maintain a claim against his employer pursuant to General Statutes § 31-284 (a) of the Workers’ Compensation Act (act). The plaintiff objected to the motion to strike claiming that, under § 31-293a, an employee is allowed to assert a tort claim against a fellow employee and against the owner of the vehicle when the claim involves the fellow employee’s negligent operation of a motor vehicle. The trial court, in granting the defendant’s motion to strike, held that § 31-293a does not allow a plaintiff to bring a direct cause of action against his employer on the basis of vicarious liability for the negligence of a fellow employee in the operation of a motor vehicle.

The purpose of a motion to strike is to challenge the legal sufficiency of a pleading. Mingachos v. CBS, Inc., 196 Conn. 91, 108, 491 A.2d 368 (1985); Ivey, Barnum & O’Mara v. Indian Harbor Properties, Inc., 190 Conn. 528, 530 n.2, 461 A.2d 1369 (1983). “The role of the trial court [is] to examine the [complaint], construed in favor of the plaintiffs, to determine whether the [pleading party has] stated a legally sufficient cause of action.” (Internal quotation marks omitted.) Dodd v. Middlesex Mutual Assurance Co., 242 Conn. 375, 378, 698 A.2d 859 (1997), quoting Napoletano v. CIGNA Healthcare of Connecticut, Inc., 238 Conn. 216, 232-33, 680 A.2d 127 (1996), cert. denied, 520 U.S. 1103, 117 S. Ct. 1106, 137 L. Ed. 2d 308 (1997).

We note at the outset that General Statutes (Rev. to 1995) § 31-284 (a) provides in relevant part: “An employer shall not be liable to any action for damages on account of personal injury sustained by an employee arising out of and in the course of his employment or on account of death resulting from personal injury so sustained . . . .” The purpose of the act is to compensate workers for injuries arising out of and in the course of employment, without regard to fault, by imposing a form of strict liability on employers. Jett v. Dunlap, 179 Conn. 215, 217, 425 A.2d 1263 (1979); Klapproth v. Turner, 156 Conn. 276, 279, 240 A.2d 886 (1968). Under the act, an employee compromises his right to a common-law tort action against his employer for work-related injuries in exchange for relatively quick and certain compensation. Mingachos v. CBS, Inc., supra, 196 Conn. 97. Our Supreme Court has long recognized that “where a worker’s personal injury is covered by the act, statutory compensation is the sole remedy and recovery in common-law tort against the employer is barred.” Jett v. Dunlap, supra, 217; Mancini v. Bureau of Public Works, 167 Conn. 189, 193, 355 A.2d 32 (1974); Crisanti v. Cremo Brewing Co., 136 Conn. 529, 531, 72 A.2d 655 (1950).

The plaintiff in this case claims that § 31-293a grants an employee a right of action against an employer when the employee has sustained injuries resulting from the negligent operation of a motor vehicle by a fellow employee. The relevant portion of § 31-293a provides: “If an employee . . . has a right to benefits or compensation under this chapter on account of injury or death from injury caused by the negligence or wrong of a fellow employee, such right shall be the exclusive remedy of such injured employee . . . and no action may be brought against such fellow employee unless such wrong was wilful or malicious or the action is based on the fellow employee’s negligence in the operation of a motor vehicle . . . .”

“In construing any statute, we seek to ascertain and give effect to the apparent intent of the legislature.” Brennan v. Burger King Corp., 46 Conn. App. 76, 82, 698 A.2d 364 (1997), aff'd, 244 Conn. 204, 707 A.2d 30 (1998); see American Universal Ins. Co. v. DelGreco, 205 Conn. 178, 193, 530 A.2d 171 (1987). If the language of the statute is plain and unambiguous, we will not look beyond the words themselves because we will assume that the language expresses the legislative intent. American Universal Ins. Co. v. DelGreco, supra, 193; Mazur v. Blum, 184 Conn. 116, 118-19, 441 A.2d 65 (1981). We are mindful that “[e]very word in a legislative enactment is presumed to have meaning.” Mingachos v. CBS, Inc., supra, 196 Conn. 98; State v. Freedom of Information Commission, 184 Conn. 102, 107, 441 A.2d 53 (1981); State ex rel. Kennedy v. Frauwirth, 167 Conn. 165, 168, 355 A.2d 39 (1974). Furthermore, in construing the meaning of a statute, “courts do not torture words to import ambiguity where the ordinary meaning leaves no room for it.” Heffernan v. Slapin, 182 Conn. 40, 46, 438 A.2d 1 (1980).

On several occasions, this court and our Supreme Court have resolved issues involving a plaintiffs attempt to maintain an action against his employer, contrary to the general rule set forth in § 31-284 (a) mandating that workers’ compensation benefits are an employee’s sole remedy against an employer for personal injuries arising out of and in the course of his employment. In Velardi v. Ryder Truck Rental, Inc., 178 Conn. 371, 423 A.2d 77 (1979), the plaintiff filed suit, under § 31-293a, against his employer for injuries sustained in a motor vehicle accident allegedly resulting from the employer’s negligent operation of a motor vehicle. Our Supreme Court rejected the plaintiffs argument that the defendant was a “fellow employee” within the meaning of § 31-293a and held that “[s]o long as the employer and the alleged tortfeasor are one, the plaintiff is limited to the benefits provided by [workers’] compensation.” Id., 377.

Likewise, in Hoyt v. Second Taxing District, 183 Conn. 508, 439 A.2d 428 (1981), our Supreme Court denied the plaintiff a cause of action against her decedent’s employer. The court rejected the plaintiffs arguments made under §§ 31-293 and 31-293a advocating circumvention of the obstacle set forth in § 31-284 (a).

In Hoyt, the first assertion of the plaintiff essentially mirrored the plaintiffs argument in Velardi, claiming that the employer was a “fellow employee” within the meaning of § 31-293a because the employer was operating the power shovel that allegedly injured the plaintiffs decedent at the time of the accident. Id., 509. In her second assertion, the plaintiff maintained, as did the plaintiff in Velardi, that the defendant should be liable as the owner of the vehicle that caused the decedent’s injuries. In Hoyt, the plaintiff also relied on the language of § 31-293, which authorizes “an employer who has been named as a party defendant in an action brought by an employee against a third party ‘to join as a party plaintiff in such action.’ ” Id., 510. Ultimately, our Supreme Court refused to “conclude from the mere provision for realignment of parties under certain circumstances that the legislature intended to contradict what it had clearly and unambiguously stated in § 31-284.” Id., 511.

As in Velardi and Hoyt, the plaintiff in this case seeks to escape the mandates of § 31-284 by claiming that the employer is, in essence, a “fellow employee” based on the theory of vicarious liability. While it is true that employers are generally liable for the actions of their employees, we cannot conclude that the legislature intended employees and employers to be treated alike for the purposes of § 31-293a. Indeed, as articulated in Velardi, if “the employer and the alleged tortfeasor are one, the plaintiff is limited to the benefits provided by [workers’] compensation.” Velardi v. Ryder Truck Rental, Inc., supra, 178 Conn. 377.

Furthermore, the plaintiffs argument that the defendant should be liable to the plaintiff as the owner of the motor vehicle duplicates the argument advanced by the plaintiff in Hoyt, which our Supreme Court rejected. The court noted that such a reading of the statute would “contradict what [the legislature] had clearly and unambiguously stated in § 31-284.” Hoyt v. Second Taxing District, supra, 183 Conn. 511; see also Christopherson v. Hallmark Cards, Inc., 27 Conn. App. 917, 606 A.2d 1333, cert. denied, 223 Conn. 910, 612 A.2d 55 (1992) (per curiam opinion affirming trial court decision barring employee from maintaining action against employer for injuries sustained in automobile accident when employee passenger in automobile owned by employer).

In the present case, we follow the previous holdings in Velardi, Hoyt and Christopherson and conclude that § 31-293a does not authorize the plaintiffs action against his employer arising out of a fellow employee’s negligent operation of the employer’s motor vehicle.

The trial court’s granting of the defendant’s motion to strike the plaintiffs complaint was, therefore, proper.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 31-293a provides: “If an employee or, in case of his death, his dependent has a right to benefits or compensation under this chapter on account of injury or death from injury caused by the negligence or wrong of a fellow employee, such right shall be the exclusive remedy of such injured employee or dependent and no action may be brought against such fellow employee unless such wrong was wilful or malicious or the action is based on the fellow employee’s negligence in the operation of a motor vehicle as defined in section 14-1. For purposes of this section, contractors’ mobile equipment such as bulldozers, powershovels, rollers, graders or scrapers, farm machinery, cranes, diggers, forklifts, pumps, generators, air compressors, drills or other similar equipment designed for use principally off public roads are not ‘motor vehicles’ if the claimed injury involving such equipment occurred at the worksite on or after October 1, 1983. No insurance policy or contract shall be accepted as proof of financial responsibility of the owner and as evidence of the insuring of such person for injury to or death of persons and damage to property by the Commissioner of Motor Vehicles required by chapter 246 if it excludes from coverage under such policy or contract any agent, representative or employee of such owner from such policy or contract. Any provision of such an insurance policy or contract effected after July 1, 1969, which excludes from coverage thereunder any agent, representative or employee of the owner of a motor vehicle involved in an accident, with a fellow employee shall be null and void.”

       The trial court, thereafter, granted the plaintiff’s motion for judgment.

       Our Supreme Court has, however, carved out two exceptions to the exclusivity of the act. Panaro v. Electrolux Corp., 208 Conn. 589, 599, 545 A.2d 1086 (1988); Blancato v. Feldspar Corp., 203 Conn. 34, 43, 522 A.2d 1235 (1987) (allowing illegally employed minor to state cause of action against his employer); Jett v. Dunlap, supra, 179 Conn. 221 (permitting action against employer by employee for intentional torts committed by employer).


author: FOTI, J.

text:
    KIMBERLY FERNANDEZ v. ESTATE OF FRED AYERS ET AL.
    (AC 19093)
    Foti, Lavery and Hennessy, Js.
    Submitted on briefs November 3, 1999
    officially released January 11, 2000

      Lorenzo J. Cicchiello filed a brief for the appellant (plaintiff).

      Michael E. Driscoll and Robert G. Tukey filed a brief for the appellees (defendants).
   Opinion

FOTI, J.

The plaintiff, Kimberly Fernandez, appeals from the summary judgment rendered in favor of the defendants. On appeal, the plaintiff claims that the trial court improperly concluded that there existed no genuine issue of material fact. We affirm the judgment of the trial court.

The pleadings, accompanying affidavits and other documentary evidence presented to the trial court reveal the following facts. The plaintiff claims that she was injured on July 29, 1996, as a result of a fall while walking on a driveway at 64 Ayers Drive in Canterbury. At the time, the property was owned by the defendant Lora Ayers (Ayers), a resident of Florida. Ayers’ husband, Fred Ayers, had died in 1995. Prior to his death, title to that property was held by the Ayerses in survivor-ship. At the time of the plaintiffs fall, the premises were occupied by a tenant, Shirley Baker. Baker occupied the premises for a number of years and, pursuant to an oral agreement with Ayers, was in possession and control on July 29, 1996, and for several years prior.

The plaintiff did not file a counteraffidavit or allege in her complaint that at the time of her fall Ayers was in possession and control of the premises. The complaint alleged that the defendants were residents of Florida. As a result of a request for production, the plaintiff received and submitted to the court the declaration page of a homeowner’s policy concerning 64 Ayers Drive in the name of Lora Ayers, insuring the premises at the time of the fall for fire, liability and medical payments. The plaintiff also claimed in her deposition that she observed Ayers on the property at some unknown time in the past. The trial court concluded that neither submission created an issue of fact as to possession and control, thereby entitling the defendants to judgment as a matter of law.

The standard of review for summary judgment is well established. “Practice Book § [17-49] mandates that summary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. ... In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party.” (Internal quotation marks omitted.) Fernandez v. Standard Fire Ins. Co., 44 Conn. App. 220, 222, 688 A.2d 349 (1997).

Our Supreme Court has recognized that the desire for judicial efficiency inherent in the summary judgment procedure would be frustrated if parties were forced to try a case where there was no real issue to be tried. Kakadelis v. DeFabritis, 191 Conn. 276, 281, 464 A.2d 57 (1983); Dowling v. Kielak, 160 Conn. 14, 16, 273 A.2d 716 (1970); Dorazio v. M. B. Foster Electric Co., 157 Conn. 226, 228, 253 A.2d 22 (1968).

The plaintiff neither filed a counteraffidavit nor introduced facts showing that Ayers, although residing in Florida, retained control over the premises. The plaintiff failed to plead possession and control; she did not bring forth evidentiary facts or substantial evidence from outside the pleadings from which, even if pleaded, those allegations could be inferred. See Wadia Enterprises, Inc. v. Hirschfeld, 27 Conn. App. 162, 168-69, 604 A.2d 1339, aff'd, 224 Conn. 240, 618 A.2d 506 (1992). “Mere statements of legal conclusions or that an issue of fact does exist are not sufficient to raise the issue.” United Oil Co. v. Urban Redevelopment Commission, 158 Conn. 364, 377, 260 A.2d 596 (1969).

Our examination of the plaintiffs “evidence” submitted in support of her claim that Ayers was in possession and control of the premises leaves us unpersuaded that the trial court acted improperly in rendering summary judgment. She failed to present the requisite underlying factual basis sufficient to raise a genuine issue of material fact relating to possession and control. Liability for a claimed injury due to a defective premises depends on possession and control and not on title. Farlow v. Andrews Corp., 154 Conn. 220, 225, 224 A.2d 546 (1966). Ayers provided documentary proof that possession and control of the premises had been relinquished to Baker some years prior to the incident.

The plaintiffs sole claim regarding a policy of insurance maintained by Ayers is insufficient to contradict the documentation Ayers presented. Because nothing was presented to counter the evidence before the trial court that the defendants did not possess and control the premises at the time of the alleged injury, no duty was owed by the defendants, and they were entitled to summary judgment as a matter of law.

The judgment is affirmed.

In this opinion the other judges concurred.

       The plaintiff named Lois Ayers and the estate of Fred Ayers as defendants. Fred Ayers had died prior to the plaintiffs alleged injury. The trial court rendered judgment dismissing the action against the estate for lack of jurisdiction because it was not a legal entity capable of being sued. No issue was raised on appeal by the plaintiff pertaining to this ruling.

       Along with her “Objection to Motion for Summary Judgment,” the plaintiff filed a request for leave to amend along with a proposed amended complaint that sought to supplement the complaint by adding that “in addition to owning the property at issue, the defendant Ayers, also possessed and controlled the property.”

       The record fails to disclose that 1he plaintiff deposed either Ayers or Baker relative to the agreement relinquishing possession and control.


author: VERTEFEUILLE, J.

text:
    CATHERINE QUINDAZZI v. DANIEL QUINDAZZI
    (AC 18191)
    Foti, Spear and Vertefeuille, Js.
    Argued October 19, 1999
    officially released January 11, 2000

      C. Michael Budlong, with whom was Campbell D. Barrett, for the appellant (defendant).

      Charles F. Stelljes, with whom, on the brief, was Marvin Borofsky, for the appellee (plaintiff).
   Opinion

VERTEFEUILLE, J.

The defendant, Daniel Quindazzi, appeals from the judgment of the trial court in this action for dissolution of marriage. The defendant claims that the court improperly ordered him to maintain life insurance for the benefit of the parties’ minor children without evidence of (1) the availability of such insurance, (2) the cost of such insurance and (3) his insurability. We agree with the defendant, reverse the judgment with respect to the court’s financial orders and remand the matter for a new trial.

The following facts are relevant to this appeal. The parties were married on April 7, 1981, and there were two minor children of the marriage at the time of the dissolution. The plaintiff, Catherine Quindazzi, brought this dissolution action in June, 1996. The matter was claimed to the contested trial list and was referred to the regional family trial docket. On the assigned trial date, the defendant, whose attorney had withdrawn his appearance with the permission of the court a few days earlier, failed to appear despite knowing that the trial was going forward. The court therefore treated the matter as an uncontested dissolution. The court heard testimony from the plaintiff and listened to the arguments of her counsel and counsel for the children. The court then rendered a judgment of dissolution that included certain financial orders. The court ordered the defendant to pay the plaintiff $150 per week as support for the two minor children, and ordered him to maintain life insurance in the amount of $100,000 and to name the children as irrevocable beneficiaries until the youngest of them reaches age nineteen.

“Our standard of review in a domestic relations case is well settled. We will not substitute our judgment for that of the trial court and will not disturb an order of the trial court absent an abuse of discretion or findings lacking a reasonable basis in the facts.” (Internal quotation marks omitted.) Papa v. Papa, 55 Conn. App. 47, 50, 737 A.2d 953 (1999). An order for life insurance “is very often an appropriate and necessary component of a judgment of dissolution of marriage.” Michel v. Michel, 31 Conn. App. 338, 340, 624 A.2d 914 (1993). Such an order, however, must have a reasonable basis in the evidence. Papa v. Papa, supra, 50.

Our review of the record reveals that the court’s order that the defendant maintain fife insurance lacks a reasonable basis in the facts. There was no evidence that the defendant had a fife insurance policy at the time of the dissolution, nor was there any evidence of his insurability or the cost of the insurance as of that time. The only testimony regarding insurance was the plaintiffs testimony that the defendant had a $100,000 life insurance policy prior to the separation of the parties. We therefore conclude that the court did not have sufficient evidence before it that would create a proper foundation for the order to provide life insurance.

On appeal, the plaintiff concedes that the life insurance order was improper, but contends that it is not necessary to remand this matter for a new trial on all financial issues because she is willing to withdraw any claim for life insurance. We do not agree.

The court ordered the life insurance for the benefit of the children, who were represented by court-appointed counsel. Under these circumstances, the plaintiff does not have standing to act on behalf of the children. Lord v. Lord, 44 Conn. App. 370, 375, 689 A.2d 509, cert. denied, 241 Conn. 913, 696 A.2d 985 (1997).

“The issues involving financial orders are entirely interwoven. The rendering of a judgment in a complicated dissolution case is a carefully crafted mosaic, each element of which may be dependent on the other.” (Internal quotation marks omitted.) Papa v. Papa, supra, 55 Conn. App. 51. Under the circumstances here, we therefore must remand this matter for a new trial on all financial issues.

The judgment is reversed as to the financial orders only and the case is remanded for a new trial on all financial issues.

In this opinion the other judges concurred.

       The defendant raises several other challenges. His claim that the court should have recused itself is moot pursuant to General Statutes § 51-183c, which requires that a different judge preside at the new trial. In addition, the defendant at oral argument abandoned his claim under § 12132 of the Americans with Disabilities Act, 42 U.S.C. § 12101 et seq., which was not raised at trial. Because we agree with the defendant on the life insurance issue and therefore reverse the court’s financial orders and remand this case for a new trial, we need not address these other claims.


author: LAVERY, J.

text:
    SUMMERBROOK WEST, L.C. v. GEOFFREY FOSTON ET AL.
    (AC 18326)
    Lavery, Landau and Hennessy, Js.
    Argued September 14, 1999
    officially released January 11, 2000

      William F. Healy, for the appellant (plaintiff).

      James V. Somers, for the appellee (Right Property Management Company, Inc.).
   Opinion

LAVERY, J.

The substitute plaintiff, Summerbrook West, L.C. (Summerbrook), appeals from the trial court’s judgment denying Summerbrook’s motion for permission to bring an action against the court-appointed receiver of the real property that is the subject of this foreclosure action. Summerbrook claims that the court improperly found that it failed to establish a prima facie case that the receiver exceeded its authority. We affirm the judgment of the trial court.

The pertinent facts are as follows. In August, 1993, CTB Realty Services, Inc. (CTB Realty), the original plaintiff, brought a foreclosure action on an apartment complex located at 510-554 Saw Mill Road in West Haven (premises). In October, 1993, CTB Realty moved for the appointment of a receiver to collect rents, to pay maintenance and operating expenses and to manage the premises, including the negotiation of leases, the hiring of necessary employees and the making of reasonably necessary repairs. The court granted the motion and appointed Right Property Management Company, Inc. (Right Property), as receiver. The court also ordered Right Property to post a $250,000 bond, which it thereafter posted. In March, 1994, the court granted permission for BCS Acquisition, L.P. (BCS Acquisition), the assignee of the mortgage deed and note, to be substituted as the plaintiff in lieu of CTB Realty. Later that month, the court rendered judgment of strict foreclosure, and the named defendant appealed to this court. We affirmed the judgment of strict foreclosure in CTB Realty Services, Inc. v. Foston, 36 Conn. App. 929, 651 A.2d 290 (1994).

In July, 1995, Summerbrook, the assignee of BCS Acquisition, was substituted as the party plaintiff. Also in the summer of 1995, Right Property moved to be discharged as receiver, and to have its final accounting and fees accepted. Before Right Property’s motions were heard, Summerbrook moved for the court’s permission to bring an action against Right Property for mismanaging the premises and committing waste by failing to keep the premises in good repair and to minimize vacancies. In its motion, Summerbrook alleged that Right Property had taken direction from BCS Acquisition regarding the management of the premises in derogation of the court’s order of appointment.

The court held a hearing on Summerbrook’s motion on March 28, 1998. In support of its motion, Summerbrook offered into evidence a July 5, 1995 letter (letter) from Right Property’s president, Frederick Mott, to Rene Rodriguez of Summerbrook. Summerbrook also put into evidence a financial statement summarizing the income and expenditures related to the premises during the time Right Property served as receiver. Summerbrook claimed that the sentence in the letter stating, “Our direction from BCS [Acquisition] was to minimize all expenses when operating the property, and the new note-holders wanted the property with as many vacancies as possible,” was sufficient proof that the receiver took direction from someone other than the court. The court disagreed, concluding that the sentence was not proof that the receiver had followed the direction given by BCS Acquisition. Thereafter, Summerbrook presented testimony from Mott.

On the basis of the two exhibits and Mott’s testimony, the court ruled from the bench, stating, “Well, there is no question in my mind that the evidence elicited here today indicated that Mr. Mott did contact other people. As I stated previously, I see nothing wrong with that. The court, for whom the receiver is performing, is not the real party in interest, except that the court wishes that justice be done. Now, I find that it’s well within his rights as a receiver to notify anyone who might have an interest in the property ... to keep them apprised of what’s going on and, indeed, to permit them to have such information as would perhaps lead them to a resolution of the problem, [to determine] what they should do relative to this foreclosure action, even to the extent of abandoning it if they see fit. But, at the same time, the receiver, while he communicates, while he may receive information from external sources—his duty remains constant. He is to do what he is charged with doing by direction of the court that appointed him. All that having been said, I find nothing demonstrated here this morning which indicates that the receiver, Mr. Mott, did exceed his duties or was derelict in his duties.”

On appeal, Summerbrook claims that the court improperly found that it had not made a prima facie case that Right Property had acted outside the scope of its authority. Summerbrook claims that whether it established a prima facie case is a question of law, citing Wordie v. Staggers, 27 Conn. App. 463, 465, 606 A.2d 734 (1992). Right Property argues that pursuant to Practice Book § 60-5 we review that issue to determine whether the trial court’s finding was clearly erroneous.

“A receiver appointed by judicial authority cannot, in the absence of a statute to the contrary, be subjected to suit without the leave of the court whose officer he is, granted in the cause in which he was appointed. Porter v. Sabin, 149 U.S. 473 [13 S. Ct. 1008, 37 L. Ed. 815 (1893)]. He is presumed to be acting according to the will of that court.” Links v. Connecticut River Banking Co., 66 Conn. 277, 284, 33 A. 1003 (1895); see also Walsh v. Raymond, 58 Conn. 251, 20 A. 464 (1889). “[T]he question whether a court will permit its receiver to be sued is largely a matter of discretion. There is no reason why the Superior Court, being in possession of the property and able to administer full relief to the petitioner, should allow him to bring another action in the same court . . . .” Davis v. Holden, 92 Conn. 96, 98, 101 A. 485 (1917).

“On appeal, it is the function of this court to determine whether the decision of the trial court is clearly erroneous. See Practice Book § [60-5]. This involves a two part function: where the legal conclusions of the court are challenged, we must determine whether they are legally and logically correct and whether they find support in the facts set out in the memorandum of decision; where the factual basis of the court’s decision is challenged we must determine whether the facts set out in the memorandum of decision are supported by the evidence or whether, in light of the evidence and the pleadings in the whole record, those facts are clearly erroneous. That is the standard and scope of this court’s judicial review of decisions of the trial court.” Pandolphe’s Auto Parts, Inc. v. Manchester, 181 Conn. 217, 221-22, 435 A.2d 24 (1980).

“We do not examine the record to determine whether the trier of fact could have reached a conclusion other than the one reached. Rather, we focus on the conclusion of the trial court, as well as the method by which it arrived at that conclusion, to determine whether it is legally correct and factually supported.” Id., 222.

In ruling from the bench, the court stated that it found nothing to support Summerbrook’s claim that Right Property exceeded the scope of its authority as receiver. Summerbrook clearly believes it presented evidence to the contrary. Summerbrook failed, however, to file a motion seeking an articulation of the court’s reasoning pursuant to Practice Book § 66-5.

We must first address the threshold question of whether this appeal is reviewable. The record on appeal does not contain a written memorandum of decision. See Practice Book § 64-1 (a). Summerbrook did, however, submit a signed copy of the transcript of the entire March 28, 1998 hearing. “The duty to provide this court with a record adequate for review rests with the appellant. Practice Book § 61-10 . . . Auric Answering Service, Inc. v. Glenayre Electronics, Inc., 54 Conn. App. 86, 87, 733 A.2d 307, cert. denied, 250 Conn. 926, 738 A.2d 653 (1999). This court has repeatedly emphasized the importance of compliance with Practice Book § 64-1 and has frequently declined to review claims when the appellant fails to provide the court with an adequate record for review. State v. Beliveau, 52 Conn. App. 475, 480-81, 727 A.2d 737, cert. denied, 249 Conn. 920, 733 A.2d 235 (1999); Chase Manhattan Bank/City Trust v. AECO Elevator Co., 48 Conn. App. 605, 608-609, 710 A.2d 190 (1998); Emigrant Savings Bank v. Erickson, 46 Conn. App. 51, 53-54, 696 A.2d 1057, cert. denied, 243 Conn. 921, 701 A.2d 341 (1997); State v. Rios, 30 Conn. App. 712, 714-15, 622 A.2d 618 (1993).” Mikolin ski v. Commissioner of Motor Vehicles, 55 Conn. App. 691, 694-95, 740 A.2d 885 (1999).

“The requirements of Practice Book § 64-1 are not met by simply filing with the appellate clerk a transcript of the entire trial court proceedings. Tolchinsky v. East Lyme, 43 Conn. App. 456, 457, 683 A.2d 747 (1996); see State v. Yopp, 35 Conn. App. 740, 749-50, 646 A.2d 298 (1994) (declining review when neither written memorandum of decision nor transcript signed by trial court was included in record). A transcript is not even required to be filed in all appeals. See Practice Book § 63-4 (a) (3) . . . . Moreover, a transcript of colloquies between the trial court and counsel is of limited, if any, assistance to the reviewing court. Thus, we have held that the signature of the trial court on an entire trial transcript does not satisfy Practice Book § 64-1. Auric Answering Service, Inc. v. Glenayre Electronics, Inc., supra, 54 Conn. App. 88. Perhaps of greater significance is the fact that the Appellate Court is not even required to consult a transcript, although it may do so in a proper case. Practice Book § 67-1 .... Thus, it is moré than possible that significant matters that are only in the transcript and not in the briefs or appendices may not come to the attention of the reviewing court. This is because they are not in the ‘record on appeal.’ ” Mikolinski v. Commissioner of Motor Vehicles, supra, 55 Conn. App. 695-96.

Here, Summerbrook submitted a signed copy of the entire transcript. The transcript, however, is not an adequate record in that it does not identify the facts and legal basis on which the court relied in reaching its conclusion. It was, therefore, incumbent on Summerbrook to move for an articulation of the court’s ruling pursuant to Practice Book § 66-5. Thus, “[w]e . . . are left to surmise or speculate as to the existence of a factual predicate for the trial court’s [ruling]. Our role is not to guess at possibilities, but to review claims based on a complete factual record developed by a trial court. . . . Without the necessary factual and legal conclusions furnished by the trial court . . . any decision made by us respecting [the defendant’s claims] would be entirely speculative.” (Internal quotation marks omitted.) State v. Collic, 55 Conn. App. 196, 209, 738 A.2d 1133 (1999).

In this case, the court conducted a hearing in an effort to exercise its discretion as to whether to permit Summerbrook to bring an action against the receiver. The court simply denied Summerbrook’s motion without making any findings of fact on the record. Without an articulation, we do not have a record adequate to review the court’s factual findings, which formed the basis for the exercise of its discretion. Therefore, we decline to review the claim.

The judgment is affirmed.

In this opinion the other judges concurred.

       Right Property was not a party to the foreclosure action in the trial court. After this appeal was taken, Right Property moved for permission to be made a party for purposes of appeal. We remanded the motion to the trial court, which granted the motion.

       The motion was filed pursuant to Practice Book § 21-23, which provides: “The court in which the action is pending, or the appointing judge, may make such orders for the governance of the receiver as circumstances require. The judge shall certify any order passed by the judge in chambers to the court in which the action may be pending."

       Prior to the hearing, the court accepted Right, Property’s accounting, approved its fees and discharged it as receiver, but did not release the bond Right Property had posted.

       The letter states as follows:
      “Thank you for your letter of July 1. Although I realized that you [were] in the process of closing the purchase of a note from BCS [Acquisition] for some time, I was not aware that the transaction had been consummated.
      “Also, I am sure you are aware [that] our reporting responsibilities to the court require us to file income and expense statements on a quarterly basis. These records are available through the court. We have for your convenience, however, enclosed a current rent roll and have included operating statements for the most current month.
      “Concerning your comment about the management of West Orange Manor, I would like to point out that prior to the fire experience in May, 1994, we had an occupancy rate of 93 [percent]. Since that fire, one building, or 17 [percent] of the complex, has had plywood on its windows. Coupled with the lack of capital to improve the units, it has been very difficult to attract tenants to West Orange Manor. Our direction from BCS [Acquisition] was to minimize all expenses when operating the property, and the new note-holders wanted the property with as many vacancies as possible.
      “I am sure that this property, like so many other properties we have managed over the years, could have become a real success story had a minimal amount of capital been available for obvious repairs and the building, which sustained in the fire loss, had been repaired with the insurance proceeds.
      “I look forward to working with you in the future.”

       The issue in Wordie v. Staggers, supra, 27 Conn. App. 463, was whether the trial court, properly dismissed the plaintiffs cause of action, pursuant, 1,o Practice Book § 302, now § 15-8, for failing to make out a prima facie case after the plaintiff had produced evidence and rested at trial.

       Practice Book § 60-5 provides in relevant part: “The court may reverse or modify the decision of the trial court if it determines that the factual findings are clearly erroneous in view of the evidence and pleadings in the whole record, or that the decision is otherwise erroneous in law. . . .
      “If the court deems it necessary to the proper disposition of the cause, it may remand the case for a further articulation of the basis of the trial court’s factual findings or decision.

        “It is the responsibility of the appellant to provide an adequate record for review as provided in Section 61-10.”

       As pointed out by Right Property in its brief, Summerbrook also failed to reproduce testimony in its brief or appendix in contravention of Practice Book § 67-1.

       See Mikolinski v. Commissioner of Motor Vehicles, supra, 55 Conn. App. 696-97, for a discussion of what constitutes a record for appeal.


author: LAVER Y, J.

text:
    ARNOLD L. BEIZER v. DEPARTMENT OF LABOR
    (AC 18242)
    (AC 18898)
    O’Connell, C. X, and Lavery and Hennessy, Js.

      Argued October 18, 1999
    officially released January 11, 2000

      Richard F. Wareing, with whom, on the brief, was Anthony J. Natale, for the appellant-appellee (plaintiff).

      Thadd A. Gnocchi, assistant attorney general, with whom, on the brief, were Richard Blumenthal, attorney general, and Charles A. Overend, assistant attorney general, for the appellee (defendant).

      Jon L. Schoenhom, with whom, on the brief, was Jeanne M. Zulick, for the appellee-appellant (intervening defendant).
   Opinion

LAVER Y, J.

The plaintiff, Arnold L. Beizer, doing business as the Law Offices of Arnold L. Beizer, appeals from the trial court’s judgment dismissing his administrative appeal from a decision rendered by the commissioner of the defendant department of labor (department). The inteivening defendant, Albert P. Lenge, cross appeals from the trial court’s judgment dismissing his counterclaim for lack of subject matter jurisdiction. We affirm the judgments of the trial court.

The following procedural history and facts are relevant to our resolution of both appeals. On or about November 17, 1994, the department received a complaint from Lenge alleging that the plaintiff had discriminated against him in violation of General Statutes § 31-226a. The complaint was assigned to a hearing officer, who held a hearing on March 25, May 11 and July 7, 1995. The hearing officer issued a proposed decision on January 4, 1996. The plaintiff filed exceptions to the hearing officer’s proposed decision and requested oral argument before the commissioner. The plaintiff and Lenge both filed additional briefs and were heard in oral argument before the commissioner on November 26,1996. The commissioner issued a final decision dated February 24,1997, in which the following facts relevant to these appeals were found.

On July 13,1994, Lenge entered into a written employment contract with the plaintiff to become an associate in the plaintiffs law firm. The plaintiff established Lenge’s priorities and directed his caseload. The plaintiff set all of the office policy and attendance standards and made all personnel decisions. Lenge had no authority to hire or fire personnel. Between July and the end of October, 1994, Lenge had made several mistakes, which the plaintiff brought to his attention.

On October 26, 1994, the plaintiff entered Lenge’s office with a client and discussed the cases of other clients with Lenge. The plaintiff left Lenge’s office, leaving the client sitting in a chair. Lenge followed the plaintiff and told him he could not work with a client sitting in his office. An argument ensued and Lenge left the office for two hours to take a walk. When he returned, Lenge found that his diplomas and art work had been removed from the walls, and the office manager informed him that the plaintiff wanted him to go home. Lenge agreed, saying he would take a personal leave day. Lenge returned to work on October 27,1994, and had a discussion with the plaintiff at the end of the day; there appeared to be no hard feelings between the two. Several days later, the plaintiff asked Lenge in a loud voice why he, not a paralegal, was working on the dormancy list.

On September 6, 1994, the plaintiff had employed Heidi Gulino as a secretary to perform the majority of Lenge’s secretarial work. During the term of her employment, the plaintiff told Lenge that he was going to fire Gulino; Lenge responded that Gulino was doing good work for him. The plaintiff refrained temporarily from firing Gulino but eventually terminated Gulino’s employment on October 21, 1994. The office manager told Lenge that Gulino was fired because she made an excessive number of telephone calls. Lenge agreed that Gulino made telephone calls and acknowledged that others thought her use of the telephone was excessive, but he himself did not think her use of the telephone was excessive.

Following her termination, Gulino asked Lenge if he would write her a letter of recommendation. Lenge agreed and wrote Gulino a letter “to whom it may concern” dated October 28, 1994, on his personal stationery. The letter of recommendation stated in part: “Heidi Gulino was employed in 1994 as my personal secretary at the Law Offices of Arnold L. Beizer .... Ms. Gulino . . . created the kind of ‘first impression’ that we wanted for prospective clients. . . . She was punctual and was always the first employee to arrive at the job each day.” At the hearing before the hearing officer on Lenge’s discrimination claim, Lenge testified that the pronoun we referred to him and Donald O’Brien, an attorney also employed by the plaintiff.

Gulino filed a claim for unemployment compensation benefits. Prior to the hearing on her claim, Gulino asked Lenge if she could use the letter of recommendation at the hearing. Lenge gave her permission to use the letter at the hearing. Subsequently, Lenge overheard the office manager and another of the plaintiffs employees discussing the fact that the plaintiff intended to oppose Gulino’s claim for unemployment benefits.

At the November 4, 1994 hearing on Gulino’s unemployment claim, the office manager represented the plaintiff and claimed that Gulino was terminated for just cause due to the fact that she was not punctual and that her work was not good. Gulino presented Lenge’s letter of recommendation.

The plaintiff was on a business trip on November 4, 1994, and learned of Lenge’s letter of recommendation on Sunday, November 6,1994. Lenge worked on November 7, 1994, without incident. The plaintiff gave his office manager a note concerning statements in Lenge’s recommendation with which the plaintiff disagreed. On November 8, 1994, the office manager, at the plaintiffs direction, asked Lenge to write to the department explaining that his letter of recommendation for Gulino was misleading. According to the office manager, an item of disagreement concerned the time of Gulino’s arrival in the office. Lenge refused to write the requested letter.

On November 8, 1994, Lenge also received a letter from the plaintiff dated November 7, 1994, which was a written reprimand outlining a series of actions taken by Lenge with which the plaintiff was displeased. The reprimand referred to the events of October 26, 1994, and the letter of recommendation for Gulino. The letter informed Lenge that he would not be paid for the day he was sent home for insubordination, i.e., October 26, 1994.

Lenge was upset about the written reprimand and spoke to the plaintiff about it. During the conversation, Lenge told the plaintiff he could not take any more, that he was going to resign and that he was giving the four weeks’ notice mandated by the employment contract. The plaintiff said, “Go ahead and resign.” Lenge left the plaintiffs office to speak with O’Brien. After he calmed down, Lenge changed his mind about resigning. Later in the day, Lenge received a memorandum from the plaintiff accepting his resignation and requesting that it be put in writing. In response to the plaintiffs memorandum, Lenge had a memorandum rescinding his resignation delivered to the plaintiff. Lenge worked on November 8 and 9, 1994, without further incident. On November 10, 1994, the plaintiff placed an advertisement in the Hartford Courant seeking an attorney with litigation and personal injury experience.

Although Lenge had received full pay for the two pay periods immediately following October 26, 1994, one day’s pay was withheld from his November 10, 1994 paycheck for the time he was absent from work on October 26,1994. Lenge was disturbed that the plaintiff had withheld one day’s pay. On November 11, 1994, Lenge left a message on the answering machine at the law offices saying that he was sick and was not coming into work. In fact, Lenge was not physically ill but contributed his time to a political campaign that day. Lenge later explained that on November 11, 1994, he was so distraught over the treatment he had received from the plaintiff that he needed to take a day off to sort out his feelings and recover his composure.

On Sunday, November 13, 1994, Mark Melly, another lawyer in the plaintiffs employ, went to Lenge’s home to deliver Lenge’s personal effects and a letter from the plaintiff. The letter, dated November 11, 1994, stated, among other things, “After repeated wilful misconduct, insubordination, reprimands and disagreements, your intentional failure to report to work today is one further example of misconduct. ... I accepted your resignation on Monday, November 7th. . . . Your abuse of authority and discretion with regard to an improper and unauthorized letter of reference for a terminated employee as I pointed out to you undermined the workings of our office and such conduct cannot be tolerated. I consider these actions above referenced among others a material breach of contract.” Lenge considered himself fired. He did not return to the plaintiffs law firm. Lenge was not able to secure new employment until March 6, 1995.

The commissioner found that Lenge had proved by a preponderance of the evidence that the plaintiff had discharged Lenge for assisting Gulino’s claim for unemployment compensation, giving rise to a rebuttable presumption of discrimination. The commissioner also found that the plaintiff had rebutted the presumption of intentional discrimination by producing evidence that Lenge had not been discharged but had quit. The commissioner found, however, that the plaintiffs evidence was not credible. He concluded that the plaintiff had discharged Lenge from his employ in violation of § 31-226a because Lenge had assisted Gulino in filing for unemployment compensation benefits.

The commissioner awarded Lenge $16,923.04 in back pay, a portion of annualized health insurance payments of $913.12, costs and reasonable attorney’s fees. The plaintiff appealed to the Superior Court from the commissioner’s decision pursuant to General Statutes § 4-183 and § 31-226 (b). Lenge moved to intervene as a defendant in the appeal and filed a counterclaim against the plaintiff. The court affirmed the commissioner’s decision and dismissed the plaintiffs appeal and Lenge’s counterclaim. These appeals followed.

I

We turn first to the plaintiffs appeal. The plaintiff claims that the trial court improperly dismissed his administrative appeal because the commissioner improperly determined that the plaintiff had discriminated against Lenge by dismissing him in violation of § 31-226a. Specifically, the plaintiff claims that the commissioner improperly (1) found that Lenge’s use of the pronoun we in a letter of recommendation referred to Lenge and an unnamed person, (2) ignored his own finding that Lenge resigned when he later concluded that Lenge was wrongfully terminated and (3) awarded Lenge money damages for health benefits. We are not persuaded.

Appeals to the trial court from administrative decisions are governed by the Uniform Administrative Procedure Act (act), General Statutes § 4-166 et seq. See Rivera v. Liquor Control Commission, 53 Conn. App. 165, 169, 728 A.2d 1153 (1999). “The court shall not substitute its judgment for that of the agency as to the weight of the evidence on questions of fact. The court shall affirm the decision of the agency unless the court finds that substantial rights of the person appealing have been prejudiced because the administrative findings, inferences, conclusions, or decision are: (1) In violation of constitutional or statutory provisions; (2) in excess of the statutory authority of the agency; (3) made upon unlawful procedure; (4) affected by other error of law; (5) clearly erroneous in view of the reliable, probative, and substantial evidence on the whole record; or (6) arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion. If the court finds such prejudice, it shall sustain the appeal and, if appropriate, may render a judgment under subsection (k) of this section or remand the case for further proceedings. . . .” General Statutes § 4-183 Q).

In retaliatory discharge cases, the commissioner may look to federal law for the allocation of burdens of proof. See Ford v. Blue Cross & Blue Shield of Connecti cut, Inc., 216 Conn. 40, 53, 578 A.2d 1054 (1990). “In McDonnell Douglas Corporation v. Green, 411 U.S. 792, 93 S. Ct. 1817, 36 L. Ed. 2d 668 (1973), the United States Supreme Court set forth the basic allocation of burdens and order of presentation of proof in cases involving claims of employment discrimination. The plaintiff bears the initial burden of proving by the preponderance of the evidence a prima facie case of discrimination. Id., 802. In order to meet this burden, the plaintiff must present evidence that gives rise to an inference of unlawful discrimination. Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 252-53, 101 S. Ct. 1089, 67 L. Ed. 2d 207 (1981). If the plaintiff meets this initial burden, the burden then shifts to the defendant to rebut the presumption of discrimination by producing evidence of a legitimate, nondiscriminatory reason for its actions. McDonnell Douglas Corporation v. Green, supra [802], ‘If the defendant carries this burden of production, the presumption raised by the prima facie case is rebutted, and the factual inquiry proceeds to a new level of specificity.’ Texas Department of Community Affairs v. Burdine, supra, 255. The plaintiff then must satisfy her burden of persuading the fact-finder that she was the victim of discrimination ‘either directly by persuading the court [or jury] that a discriminatory reason more likely motivated the employer or indirectly by showing that the employer’s proffered explanation is unworthy of credence.’ Id., 256; see McDonnell Douglas Corporation v. Green, supra, 804-805.” Ford v. Blue Cross & Blue Shield of Connecticut, Inc., supra, 53-54.

A

The plaintiffs first two claims concern the sufficiency of the evidence. Our Supreme Court has “interpreted the standard of review set forth in the act as limiting our review such that [w]ith regard to questions of fact, it is neither the function of the trial court nor of this court to retry the case or to substitute its judgment for that of the administrative agency. . . . Connecticut Light & Power Co. v. Dept. of Public Utility Control, 219 Conn. 51, 57, 591 A.2d 1231 (1991); see DiBlasi v. Zoning Board of Appeals, 224 Conn. 823, 829-30, 624 A.2d 372 (1993). An agency’s factual determination must be sustained if it is reasonably supported by substantial evidence in the record taken as a whole. Connecticut Resources Recovery Authority v. Planning & Zoning Commission, 225 Conn. 731, 744, 626 A.2d 705 (1993); Connecticut Light & Power Co. v. Dept. of Public Utility Control, supra, 57. Substantial evidence exists if the administrative record affords a substantial basis of fact from which the fact in issue can be reasonably inferred. . . . Connecticut Building Wrecking Co. v. Carothers, 218 Conn. 580, 601, 590 A.2d 447 (1991); Connecticut Light & Power Co. v. Dept. of Public Utility Control, supra, 57. This substantial evidence standard is highly deferential and permits less judicial scrutiny than a clearly erroneous or weight of the evidence standard of review. Connecticut Light & Power Co. v. Dept. of Public Utility Control, 216 Conn. 627, 640, 583 A.2d 906 (1990).” (Internal quotation marks omitted.) Office of Consumer Counsel v. Dept. of Public Utility Control, 246 Conn. 18, 36, 716 A.2d 78 (1998).

1

The plaintiffs first sufficiency claim is that the hearing officer improperly found that Lenge’s use of the pronoun we in the letter of recommendation he wrote for Gulino referred to him and an unnamed person. We disagree.

The plaintiff asked the trial court and now asks this court to reinterpret the letter of recommendation Lenge wrote on behalf of Gulino, specifically finding that the pronoun we refers to Beizer and Lenge. The letter was written on Lenge’s personal stationery, and Lenge testified that he was referring to O’Brien and himself when he used the pronoun. The plaintiff argues that Lenge’s use of the pronoun we misrepresents the plaintiffs opinion of Gulino’s performance, and, therefore, the letter of recommendation is not protected activity under § 31-226a.

The commissioner based his findings on the letter of recommendation, the testimony of the parties and the credibility of the witnesses. We conclude, therefore, that the trial court properly determined that there was substantial evidence in the record to support the commissioner’s conclusion.

2

The plaintiffs second sufficiency claim is that the commissioner ignored his own finding that Lenge resigned when he later concluded that Lenge was wrongfully terminated. Again, we do not agree.

The plaintiff argues that because the commissioner made findings of fact that Lenge, “after receiving the letter of reprimand . . . went into the [plaintiffs] office and said he cannot take this any more and said he was going to resign, giving the [plaintiff] the four weeks notice mandated by the employment contract. The [plaintiff] said go ahead and resign.” The commissioner also found that “after he calmed down, [Lenge] changed his mind about resigning. Later in the day on November 8, 1994, [Lenge] received another memorandum from the [plaintiff] accepting [Lenge’s] resignation and requesting it be put in writing. The employment contract provided . . . that ‘[e]ither party may terminate this contract upon four (4) weeks’ advance written notice. After receiving the [plaintiffs second memorandum, Lenge] notified the [plaintiff] that he had changed his mind about resigning. He had a memorandum hand-delivered by a secretary rescinding his resignation.”

The trial court, after reviewing the commissioner’s decision, concluded that the hearing officer’s finding that Lenge had been terminated for supporting Gulino’s unemployment compensation claim was supported by substantial evidence for the following reasons. Lenge revoked his oral resignation. The plaintiff clearly intended to fire Lenge when he had Melly deliver the November 11, 1994 letter and Lenge’s personal effects to his home. The trial court agreed that Lenge’s writing a letter of recommendation for Gulino was protected activity within § 31-226a and that the plaintiffs reason for firing Lenge was discriminatory. On November 8, 1994, the plaintiff asked Lenge to write another letter to the department to clarify his letter of recommendation on Gulino’s behalf. Lenge refused and received a letter of reprimand from the plaintiff. On November 10, 1994, the plaintiff withheld one day’s pay for the October 26, 1994 incident after two uneventful pay periods. The plaintiffs November 11, 1994 letter specifically references Lenge’s protected activity as improper conduct and a material breach of contract, thereby justifying his termination. The commissioner rejected the plaintiffs argument that Lenge was fired for not reporting to work on November 11, 1994, as not credible, because on November 10, 1994, the plaintiff had placed an advertisement seeking an attorney to replace Lenge.

The trial court concluded that it was reasonable and logical for the commissioner to find that Lenge’s protected activity was the reason for his termination. The trial court noted that even if Lenge’s failure to report to work on November 11, 1994, justified the plaintiffs firing him, Lenge may still prevail under a mixed-motives analysis. See Price Waterhouse v. Hopkins, 490 U.S. 228, 246, 109 S. Ct. 1775, 104 L. Ed. 2d 268 (1989). The trial court properly reviewed the commissioner’s findings of fact.

B

The plaintiffs final claim is that the commissioner improperly awarded Lenge damages for health benefits. We agree with the trial court.

The following additional facts are necessary for our review of this claim. By way of addendum, the employment contract provided that the plaintiff agreed to pay Lenge the difference in cost between the health insurance he had under his prior employer’s health plan and the insurance provided by the plaintiff.

“Judicial review of conclusions of law reached administratively is also limited. The court’s ultimate duty is only to decide whether, in light of the evidence, the [agency] has acted unreasonably, arbitrarily, illegally, or in abuse of its discretion.” (Internal quotation marks omitted.) Connecticut Light & Power Co. v. Dept. of Public Utility Control, supra, 219 Conn. 57-58. Where “the issue is one of law, the court has the broader responsibility of determining whether the administrative action resulted from an incorrect application of the law to the facts found or could not reasonably or logically have followed from such facts. Although the court may not substitute its own conclusions for those of the administrative board, it retains the ultimate obligation to determine whether the administrative action was unreasonable, arbitrary, illegal or an abuse of discretion.” United Parcel Service, Inc. v. Administrator, Unemployment Compensation Act, 209 Conn. 381, 385-86, 551 A.2d 724 (1988).

Section 31-226a (b) authorizes the commissioner to award health insurance benefits that are provided under the employment contract. The trial court, therefore, properly concluded that the commissioner appropriately awarded Lenge pro rata health benefits to which he was entitled.

For all of the foregoing reasons, the trial court properly dismissed the plaintiffs appeal.

II

Lenge cross appeals from the judgment of the trial court dismissing his counterclaim against the plaintiff. On appeal, Lenge claims that the trial court improperly (1) concluded that it did not have subject matter jurisdiction to hear the counterclaim, (2) denied his motion for summary judgment and (3) sustained the plaintiffs objection to his offer of judgment. We affirm the judgment of the trial court.

The following additional facts are necessary for our resolution of Lenge’s cross appeal. After the trial court granted his motion to intervene as a party defendant, Lenge filed a counterclaim against the plaintiff alleging that the plaintiff failed to pay him the damages awarded by the commissioner. Subsequent to the trial court’s dismissal of the plaintiffs appeal, Lenge filed a motion for summary judgment claiming, on the basis of the dismissal, that there were no genuine issues of material fact and that he was entitled to judgment on his counterclaim. The plaintiff objected to the motion for summary judgment arguing that, pursuant to Practice Book § 14-7, summary judgment is not permitted in an administrative appeal of this type. The trial court determined that it did not have subject matter jurisdiction over Lenge’s counterclaim and dismissed it. We affirm the trial court’s judgment, but on a different basis.

Resolution of Lenge’s appeal requires us to differentiate between the trial court’s jurisdiction and its statutory authority. “Subject matter jurisdiction involves the authority of a court to adjudicate the type of controversy presented by the action before it. 1 Restatement (Second), Judgments § 11. A court does not truly lack subject matter jurisdiction if it has competence to entertain the action before it. Monroe v. Monroe, 177 Conn. 173, 185, 413 A.2d 819, appeal dismissed, 444 U.S. 801, 100 S. Ct. 20, 62 L. Ed. 2d 14 (1979). Once it is determined that a tribunal has authority or competence to decide the class of cases to which the action belongs, the issue of subject matter jurisdiction is resolved in favor of entertaining the action. Craig v. Bronson, 202 Conn. 93, 101, 520 A.2d 155 (1987). It is well established that, in determining whether a court has subject matter jurisdiction, every presumption favoring jurisdiction should be indulged. Connecticut Light & Power Co. v. Costle, 179 Conn. 415, 420-21 n.3, 426 A.2d 1324 (1980).

“Although related, the court’s authority to act pursuant to a statute is different from its subject matter jurisdiction. The power of the court to hear and determine, which is implicit in jurisdiction, is not to be confused with the way in which that power must be exercised in order to comply with the terms of the statute. Bailey v. Mars, 138 Conn. 593, 601, 87 A.2d 388 (1952).” (Internal quotation marks omitted.) Arnodio v. Amodio, 247.Conn. 724, 727-28, 724 A.2d 1084 (1999).

Agency appeals to the Superior Court exist under statutory authority only. See Allied Plywood, Inc. v. Planning & Zoning Commission, 2 Conn. App. 506, 509, 480 A.2d 584, cert. denied, 194 Conn. 808, 483 A.2d 612 (1984). Section 3l-226apermits appeals to the Superior Court from decisions of the department’s hearing officers pursuant to the act. Section 4-183 (j) authorizes the Superior Court to sit as a court of appeals to review agency decisions with respect to their constitutionality and adherence to statutes and lawful procedure, and to determine whether they are affected by errors of law or are clearly erroneous on the basis of the evidence in the whole record or whether there was some abuse of discretion. Nothing in § 4-183 (j) gives the trial court authority to rule on a motion for summary judgment or to grant Lenge the relief he sought. Although the trial court, sitting as a court of general jurisdiction, may have the subject matter jurisdiction and authority to grant Lenge the relief he seeks, it does not have that authority when it sits as an appellate court pursuant to the act. We hold, therefore, that the dismissal of Lenge’s counterclaim was proper.

The judgments are affirmed.

In this opinion the other judges concurred.

       General Statutes § 31-226a provides: “(a) No employer shall discharge, discipline, penalize or in any manner discriminate against any employee because the employee has filed a claim or instituted or caused to be instituted any proceeding under this chapter, or has testified or is about to testify in any such proceeding or because of the exercise by such employee on behalf of himself or others of any right afforded by this chapter.
      "(b) Any employee who believes that he has been discharged, disciplined, penalized or otherwise discriminated against by any person in violation of this section may file a complaint with the Labor Commissioner alleging violation of the provisions of subsection (a) of this section. Upon receipt of any such complaint, the commissioner shall hold a hearing. After the hearing, the commissioner shall send each party a written copy of his decision. The commissioner may award the employee all appropriate relief including rehiring or reinstatement of his previous job, payment of back wages and reestablishment of employee benefits to which he otherwise would have been eligible if he had not been discharged, disciplined, penalized or discriminated against. Any employee who prevails in such a complaint shall be awarded reasonable attorney’s fees and costs. Any party aggrieved by the decision of the commissioner may appeal the decision to the Superior Courl in accordance with the provisions of chapter 54.”

       Apparently, Gulino was the first to arrive because she was to start work one-half hour earlier than the other secretaries.

       In addition to other issues of credibility contained in this opinion, the commissioner found that one of the plaintiffs witnesses was not credible with respect to the period of time she worked for the plaintiff.

       General Statutes § 4-183 (a) provides: “A person who has exhausted all administrative remedies available within the agency and who is aggrieved by a final decision may appeal to the Superior Court as provided in this section. The filing of a petition for reconsideration is not a prerequisite to the filing of such an appeal.”

       The plaintiffs November 11, 1994 letter states in part: “Your abuse of authority and discretion with regard to an improper and unauthorized letter of reference for a terminated employee as I pointed out to you undermined the worldngs of our office and such conduct cannot be tolerated.”

       "We can sustain a right decision although it may have been placed on a wrong ground.” Stapleton v. Lombardo, 151 Conn. 414, 417, 198 A.2d 697 (1964).

       Because we hold that the trial court properly dismissed Lenge’s counterclaim, we need not address his other claims.