text:
    RICHARD DEL TORO v. CITY OF STAMFORD ET AL.
    (AC 20207)
    Schaller, Spear and O’Connell, Js.
    Argued January 16 —
    officially released June 26, 2001

      Gary J. Wilson, for the appellant (plaintiff).

      James L. Sullivan, with whom was James D. Moran, Jr., for the appellees (defendants).
   Opinion

SCHALLER, J.

The plaintiff, Richard Del Toro, appeals from the decision of the workers’ compensation review board (board) affirming the denial by the workers’ compensation commissioner (commissioner) of his motion to preclude the defendant city of Stamford from contesting liability. On appeal, the plaintiffs sole claim is that the board improperly upheld the commissioner’s decision on the ground that subject matter jurisdiction did not exist. We reverse the decision of the board.

The relevant facts as found by the commissioner are as follows. Between 1981 and 1996, the plaintiff was employed as a police officer for the defendant city. On or about November 30,1985, the plaintiff, while working within the scope of his employment, was involved in a shooting incident that resulted in the death of a civilian. He thereafter sought treatment to address the potential psychological distress resulting from the shooting incident. On May 12, 1994, Mark Rubinstein, a physician, examined the plaintiff pursuant to the defendants’ request and opined that the plaintiff did not require psychiatric treatment or psychological counseling with respect to the shooting incident. Approximately one year later, a psychiatrist concluded to the contrary and, as a result, the plaintiff began receiving psychiatric treatment in connection with the shooting incident.

On July 9,1996, the plaintiff filed a form 30C in which he alleged a repetitive trauma stress injury with a July 27, 1995 date of injury. The injury is described in the form as “officer involved shooting on 11-30-85.” The defendants failed to contest the claim within twenty-eight days of receipt of written notice of the claim as mandated by General Statutes § 31-294c (b), which establishes a conclusive presumption of liability if the employer fails to so contest. Consequently, on August 28, 1996, the plaintiff filed a motion to preclude the defendants from contesting liability. The commissioner denied that motion and, in doing so, accepted the defendants’ argument that the plaintiff’s injury was not a compensable “injury” within the meaning of General Statutes § 31-275 (16) (B) (ii). That statute precludes recovery for a mental or emotional injury unless it arises from a “physical injury” or “occupational disease.” Id.

The plaintiff then appealed to the board from the commissioner’s decision. Although the defendants had failed to contest the claim within twenty-eight days as required by § 31-294c (b), the board affirmed the commissioner’s ruling on the ground that the commissioner lacked jurisdiction over the injury alleged by the plaintiff. In support of its decision, the board relied on Biasetti v. Stamford, 250 Conn. 65, 735 A.2d 321 (1999). The plaintiff now appeals from the board’s decision.

The plaintiff claims that the board improperly upheld the commissioner’s decision denying the motion to preclude on the ground that subject matter jurisdiction did not exist. The crux of his claim is that the board mischaracterized the determination of whether the injury was compensable under § 31-275 (16) (B) (ii) as a jurisdictional matter, thereby circumventing the mandatory presumption of liability contained in §31-294c (b). Such a determination, according to the plaintiff, does not implicate subject matter jurisdiction, and there is no claim questioning the existence of an employer-employee relationship. In response, the defendants argue that subject matter jurisdiction requires proof, not only of the employee-employer relationship, but also proof that the injury is the type of injury compensable under the Workers’ Compensation Act, General Statutes § 31-275 et seq. We disagree.

Before addressing the merits of the plaintiffs claim, we set forth our standard of review applicable to workers’ compensation appeals. “The principles that govern our standard of review in workers’ compensation appeals are well established. The conclusions drawn by [the commissioner] from the facts found must stand unless they result from an incorrect application of the law to the subordinate facts or from an inference illegally or unreasonably drawn from them. ... It is well established that [although not dispositive, we accord great weight to the construction given to the workers’ compensation statutes by the commissioner and review board. ... A state agency is not entitled, however, to special deference when its determination of a question of law has not previously been subject to judicial scrutiny. . . . Where ... [a workers’ compensation] appeal involves an issue of statutory construction that has not yet been subjected to judicial scrutiny, this court has plenary power to review the administrative decision.” (Citations omitted; internal quotation marks omitted.) Dowling v. Slotnik, 244 Conn. 781, 797-98, 712 A.2d 396, cert. denied sub nom. Slotnik v. Considine, 525 U.S. 1017, 119 S. Ct. 542, 142 L. Ed. 2d 451 (1998). Because this issue of statutoiy construction has not been subjected to judicial scrutiny, our review is plenary.

We begin by examining the statute that precludes the employer from contesting liability. Section 31-294c (b) provides in relevant part: “Whenever liability to pay compensation is contested by the employer, he shall file with the commissioner, on or before the twenty-eighth day after he has received a written notice of claim, a notice . . . stating that the right to compensation is contested . . . . [A]n employer who fails to contest liability for an alleged injury or death on or before the twenty-eighth day after receiving a written notice of claim and who fails to commence payment for the alleged injury or death on or before such twenty-eighth day, shall be conclusively presumed to have accepted the compensability of the alleged injury or death.”

Although the conclusive presumption contained in § 31-294c (b) is phrased in absolute language, it does not preclude the employer from challenging the commissioner’s subject matter jurisdiction. Castro v. Viera, 207 Conn. 420, 427, 541 A.2d 1216 (1988). “Jurisdiction of the subject-matter is the power [of the court] to hear and determine cases of the general class to which the proceedings in question belong. ... A court has subject matter jurisdiction if it has the authority to adjudicate a particular type of legal controversy. ... It is a familiar principle that a court which exercises a limited and statutory jurisdiction is without jurisdiction to act unless it does so under the precise circumstances and in the manner particularly prescribed by the enabling legislation. . . .

“This concept, however, is not limited to courts. Administrative agencies [such as the commission] are tribunals of limited jurisdiction and their jurisdiction is dependent entirely upon the validity of the statutes vesting them with power and they cannot confer jurisdiction upon themselves. . . . We have recognized that [i]t is clear that an administrative body must act strictly within its statutory authority, within constitutional limitations and in a lawful manner. ... It cannot modify, abridge or otherwise change the statutory provisions, under which it acquires authority unless the statutes expressly grant it that power. . . .

* * *

“[0]nce the question of lack of jurisdiction of a court is raised, [it] must be disposed of no matter in what form it is presented . . . and the court must fully resolve it before proceeding further with the case. . . . Subject matter jurisdiction, unlike jurisdiction of the person, cannot be created through consent or waiver.” (Citations omitted; internal quotation marks omitted.) Id., 427-30. The dispositive question, therefore, is whether the compensability of an injury is a jurisdictional issue so that the conclusive presumption of § 31-294c (b) does not apply. We answer that question in the negative.

The concept that subject matter jurisdiction encompasses the issue of the compensability of an injury finds no support in our case law. To the contrary, our case law reveals that, in the context of workers’ compensation proceedings, subject matter jurisdiction is implicated only with issues concerning the existence of an employee-employer relationship; id., 430-37; or the proper initiation of the claim itself. Infante v. Mansfield Construction Co., 47 Conn. App. 530, 534, 706 A.2d 984 (1998). Our courts have repeatedly refused to characterize as issues of subject matter jurisdiction claims involving whether an injury arose in the course of employment. In such circumstances, the courts precluded the employers from circumventing the conclusive statutory presumption of liability imposed if they failed to contest liability. LaVogue v. Cincinnati, Inc., 9 Conn. App. 91, 93, 516 A.2d 151, cert. denied, 201 Conn. 814, 518 A.2d 72 (1986); Bush v. Quality Bakers of America, 2 Conn. App. 363, 372-74, 479 A.2d 820, cert. denied, 194 Conn. 804, 482 A.2d 709 (1984). We also have concluded that subject matter jurisdiction does not include the issue of causation and, thus, does not allow the employer to circumvent the statutory presumption of liability. See DeAlmeida v. M.C.M. Stamping Corp., 29 Conn. App. 441, 451, 615 A.2d 1066 (1992). Likewise, we conclude today that the issue of compensability of an injury does not implicate the subject matter jurisdiction of the commissioner and, accordingly, the statutory presumption of liability cannot be circumvented.

To hold otherwise would undermine the purpose of § 31-294c (b). “The manifest purpose of [that statute] is to ensure that employers investigate claims promptly and that employees be timely advised of the specific reason for the denial of their claim. . . . Extending the exception beyond that of subject matter jurisdiction would be at variance with the legislative intent.” (Citation omitted.) Id., 448-49.

In the present case, the defendants’ jurisdictional claim is illusory. It does not challenge the threshold matter of whether an employee-employer relationship existed or whether the claim was properly initiated. Rather, the defendants merely challenge whether the plaintiffs injury is the type of injury that is compensable under § 31-275 (16) (B) (ii). Relying on Biasetti v. Stamford, supra, 250 Conn. 65, the defendants reason, as did the board, that such a challenge is jurisdictional in nature. The defendants, however, misconstrue Biasetti. There, a police officer was involved in a shooting and attempted to recover for mental stress arising from the incident. Our Supreme Court held that, under § 31-275 (16) (B) (ii), although mental stress is an “occupational disease,” “the legislature [did not intend] to extend coverage to an emotional impairment that is itself an occupational disease.” (Emphasis in original.) Id., 80. It is true that the court held that the injury was noncompensable, but nowhere in the opinion did it characterize the claim as a jurisdictional matter. Because the matter here does not implicate subject matter jurisdiction and the defendants failed to contest liability within twenty-eight days of receiving notice of the claim, we conclude that the plaintiffs motion for preclusion should have been granted, as the defendants’ liability is conclusively presumed in accordance with § 31-294c (b).

The decision of the workers’ compensation review board is reversed and the case is remanded to the board with direction to remand the matter to the workers’ compensation commissioner for further proceedings consistent with this opinion.

In this opinion the other judges concurred.

       The other defendant is the administrator of the city’s workers’ compensation insurance, Connecticut Interlocal Risk Management Agency.

       A form 30C is the form prescribed by the workers’ compensation commission of Connecticut for use in filing a notice of claim under the Workers’ Compensation Act, General Statutes § 31-275 et seq.

       General Statutes § 31-294c (b) provides in relevant part: “Whenever liability to pay compensation is contested by the employer, he shall file with the commissioner, on or before the twenty-eighth day after he has received a written notice of claim, a notice in accord with a form prescribed by the chairman of the Workers’ Compensation Commission stating that the right to compensation is contested, the name of the claimant, the name of the employer, the date of the alleged injury or death and the specific grounds on which the right to compensation is contested. ... If the employer or his legal representative fails to file the notice contesting liability on or before the twenty-eighth day after he has received the written notice of claim, the employer shall commence payment of compensation for such injury or death on or before the twenty-eighth day after he has received the written notice of claim, but the employer may contest the employee’s right to receive compensation on any grounds or the extent of his disability within one year from the receipt of the written notice of claim, provided the employer shall not be required to commence payment of compensation when the written notice of claim has not been properly served in accordance with section 31-321 or when the written notice of claim fails to include a warning that (1) the employer, if he has commenced payment for the alleged injury or death on or before the twenty-eighth day after receiving a written notice of claim, shall be precluded from contesting liability unless a notice contesting liability is filed within one year from the receipt of the written notice of claim, and (2) the employer shall be conclusively presumed to have accepted the compensability of the alleged injury or death unless the employer either files a notice contesting liability on or before the twenty-eighth day after receiving a written notice of claim or commences payment for the alleged injury or death on or before such twenty-eighth day. An employer shall be entitled, if he prevails, to reimbursement from the claimant of any compensation paid by the employer on and after the date the commissioner receives written notice from the employer or his legal representative, in accordance with the form prescribed by the chairman of the Workers’ Compensation Commission, stating that the right to compensation is contested. Notwithstanding the provisions of this subsection, an employer who fails to contest liability for an alleged injury or death on or before the twenty-eighth day after receiving a written notice of claim and who fails to commence payment for the alleged injury or death on or before such twenty-eighth day, shall be conclusively presumed to have accepted the compensability of the alleged injury or death.”

       General Statutes § 31-275 (16) (B) provides in relevant part: “ ‘Personal injury’ or ‘injury’ shall not be construed to include . . . (ii) A mental or emotional impairment, unless such impairment arises from a physical injury or occupational disease . . .

       Ordinarily, an appeal from the affirmance of the denial of a motion to preclude is not a final judgment because after a motion to preclude is denied, further proceedings will be held before the commissioner. See Pereira v. State, 228 Conn. 535, 538, 637 A.2d 392 (1994); Timothy v. Upjohn Co., 3 Conn. App. 162, 165, 485 A.2d 1349 (1985). This case differs from the usual case because the board upheld the denial of the plaintiffs motion to preclude on the ground that it lacked subject matter jurisdiction because the plaintiffs ipjury fell beyond the ambient of workers’ compensation coverage under Biasetti v. Stamford, supra, 250 Conn. 65. In reaching that conclusion, the board noted that “[ojur conclusion, of course, permits the [plaintiff] to pursue whatever other legal remedy may be available to him.” The board’s ruling in this case is a final judgment because it forecloses any subsequent workers’ compensation proceedings that might afford the plaintiff relief.

       Here, the plaintiff claims an injury as defined under General Statutes § 31-275 (16) (B) (ii).


source: Caselaw Access Project

author: STOUGHTON, J.

license: Public Domain

text:
    ANTHONY BARASSO v. REAR STILL HILL ROAD, LLC, ET AL.
    (AC 20507)
    Lavery, C. J., and Mihalakos and Stoughton, Js.

      Argued January 24 —
    officially released June 26, 2001

      Robert M. Frost, Jr., with whom, on the brief, were Jonathan P. Whitcomb and Craig P. Nowak, for the appellants (defendants).

      Jo-Ann R. Sensale, with whom, on the brief, was Leonard A. Fasano, for the appellee (plaintiff).
   Opinion

STOUGHTON, J.

The defendants, Rear Still Hill Road, LLC, and Emerald Realty, Inc., appeal from the judgment of strict foreclosure rendered in favor of the plaintiff, Anthony Barasso, after the trial court granted the plaintiffs motion to strike special defenses pleaded by the defendants. The defendants claim that the court improperly granted the motion because the motion failed to specify the grounds of insufficiency as required by Practice Book § 10-41. We agree with the defendants and, therefore, reverse the judgment of the trial court.

The following facts and procedural history are relevant to our resolution of this appeal. The plaintiff holds a note, which is now in default, dated October 7, 1994, for $250,000 from the defendant Emerald Realty, Inc., secured by a mortgage on certain property in Hamden. Emerald Realty, Inc., subsequently conveyed the property by quitclaim deed to Rear Still Hill Road, LLC. Emerald Realty, Inc., holds a mortgage on the property bearing the same date as the quitclaim deed. Frank Verderame has an assignment of a prior mortgage on the property. The assignment was dated and recorded in August, 1997, and the mortgage was dated and recorded in July, 1993.

The plaintiff initiated this foreclosure action on September 2, 1998, and on or about December 21, 1998, the defendants filed an answer and special defenses. Thereafter, the plaintiff filed a motion to strike the special defenses. The defendants objected to the plaintiffs motion to strike, arguing, inter alia, that the motion failed to specify the grounds of insufficiency of the defendants’ special defenses. On July 28, 1999, the defendants filed an answer with revised special defenses. On July 30, 1999, the court granted the plaintiffs motion to strike the defendants’ revised special defenses. On January 24, 2000, the court rendered judgment of strict foreclosure in favor of the plaintiff. This appeal followed.

We begin by noting that the record is adequate for our review. As the plaintiff has pointed out, the record on appeal; see Practice Book § 68-2; does not contain a memorandum of decision or a transcribed copy of an oral decision signed by the trial court as required by Practice Book § 64-1 (a). A signed transcript from the hearing on the motion to strike, however, was distributed to this court before this appeal was argued. See Practice Book § 64-1 (b). Because the transcript includes detailed rulings made by the trial judge and is more than an “autographed colloquy between the trial court and trial counsel”; Auric Answering Service, Inc. v. Glenayre Electronics, Inc., 54 Conn. App. 86, 88, 733 A.2d 307, cert. denied, 250 Conn. 926, 738 A.2d 653 (1999); we will not exalt form over substance and refuse to review this appeal. See Mikolinski v. Commissioner of Motor Vehicles, 55 Conn. App. 691, 699, 740 A.2d 885 (1999), cert. denied, 252 Conn. 922, 747 A.2d 518 (2000). We now turn to the merits of the defendants’ claim.

On appeal, the defendants’ claim that the court improperly granted the plaintiffs motion to strike the defendants’ special defenses. The defendants claim that the plaintiffs motion was fatally defective because it failed to state the alleged grounds of insufficiency as required by Practice Book § 10-41. In response, the plaintiff claims that his motion to strike was not fatally defective because the attached memorandum of law in support of his motion set forth the specified reasons of insufficiency. We agree with the defendants.

“Our standard of review is undisputed. Because a motion to strike challenges the legal sufficiency of a pleading and, consequently, requires no factual findings by the trial court, our review of the court’s ruling on [a motion to strike] is plenary.” (Internal quotation marks omitted.) Melanson v. West Hartford, 61 Conn. App. 683, 687, 767 A.2d 764, cert. denied, 256 Conn. 904, 772 A.2d 595 (2001); see Eskin v. Castiglia, 253 Conn. 516, 522, 753 A.2d 927 (2000). A party wanting to contest the legal sufficiency of a special defense may do so by filing a motion to strike. “The purpose of a special defense is to plead facts that are consistent with the allegations of the complaint but demonstrate, nonetheless, that the plaintiff has no cause of action.” (Internal quotation marks omitted.) Danbury v. Dana Investment Corp., 249 Conn. 1, 17, 730 A.2d 1128 (1999); Practice Book § 10-50. In ruling on a motion to strike, the court must accept as true the facts alleged in the special defenses and construe them in the manner most favorable to sustaining their legal sufficiency. Connecticut National Bank v. Douglas, 221 Conn. 530, 536, 606 A.2d 684 (1992); Melanson v. West Hartford, supra, 687.

Practice Book § 10-41 requires that a motion to strike raising a claim of insufficiency “shall distinctly specify the reason or reasons for each such claimed insufficiency.” Motions to strike that do not specify the grounds of insufficiency are “fatally defective” and, absent a waiver by the party opposing the motion, should not be granted. Lubas v. McCusker, 153 Conn. 250, 253, 216 A.2d 289 (1965); see Bouchard v. People’s Bank, 219 Conn. 465, 468 n.4, 594 A.2d 1 (1991). Our Supreme Court has stated “that a motion to strike that does not specify the grounds of insufficiency is fatally defective . . . and that Practice Book § [10-42], which requires a motion to strike to be accompanied by an appropriate memorandum of law citing the legal authorities upon which the motion relies, does not dispense with the requirement of [Practice Book § 10-41] that the reasons for the claimed pleading deficiency be specified in the motion itself.” (Citation omitted; internal quotation marks omitted.) Morris v. Hartford Courant Co., 200 Conn. 676, 683 n.5, 513 A.2d 66 (1986); King v. Board of Education, 195 Conn. 90, 94 n.4, 486 A.2d 1111 (1985); see Bouchard v. People’s Bank, supra, 468 n.4.

In the present case, the plaintiffs motion clearly fails to specify the grounds of insufficiency. It merely states: “A Memorandum of Law in support of this motion, which discusses the legal insufficiency of each Special Defense, is attached.” Accordingly, the plaintiffs motion is fatally defective. The defendants brought this issue to the attention of the court, and the plaintiffs motion should not have been granted. The plaintiffs assertion that his motion is not fatally defective because the specific grounds of insufficiency are set forth in a supporting memorandum of law is meritless. See Morris v. Hartford Courant Co., supra, 200 Conn. 683 n.5.

Therefore, because the plaintiffs motion failed to specify the grounds of insufficiency as required by Practice Book § 10-41, we must conclude that the court improperly granted the plaintiffs motion to strike.

The judgment is reversed and the case is remanded with direction to deny the plaintiffs motion to strike and for farther proceedings in accordance with law.

In this opinion the other judges concurred.

       Practice Book § 10-41 provides: “Each motion to strike raising any of the claims of legal insufficiency enumerated in the preceding sections [of the rules of practice] shall separately set forth each such claim of insufficiency and shall distinctly specify the reason or reasons for each such claimed insufficiency.”

       We note that the defendants also have claimed on appeal that the court (1) failed to credit excess payments on another debt toward the mortgage debt when granting the plaintiffs motion to strike as to the first special defense, (2) considered evidence outside of the pleadings when granting the plaintiffs motion to strike as to the first special defense and (3) improperly granted the motion to strike certain equitable defenses. In light of our conclusion that the court improperly granted the plaintiffs motion to strike because the motion failed to specify the grounds of insufficiency, we need not reach those claims.

       The plaintiffs motion to strike states: “The plaintiff in the above entitled matter moves to strike the following from the defendant[s’] Special Defenses, the First through the Thirteenth Special Defenses. The Plaintiff makes this request because the mentioned Special Defenses are insufficient as a matter of law.
      “A Memorandum of Law in support of this motion, which discusses the legal insufficiency of each Special Defense, is attached.”

       We note that in Bouchard v. People’s Bank, 219 Conn. 465, 468 n.4, 594 A.2d 1 (1991), and in Morris v. Hartford Courant Co., 200 Conn. 676, 683 n.5, 513 A.2d 66 (1986), our Supreme Court considered the fatally defective motions to strike in the form that they were presented to the trial courts because the parties opposed to the motions failed to object to their form at trial and because Practice Book § 10-41 is not jurisdictional in nature. In the present case, however, the defendants properly raised this issue in their objection to the plaintiffs motion to strike.


author: MIHALAKOS, J.

text:
    YALE-NEW HAVEN HOSPITAL, INC. v. HELEN JACOBS, EXECUTRIX (ESTATE OF BEATRICE YOKELY), ET AL.
    (AC 20442)
    Foti, Mihalakos and Dupont, Js.
    Argued February 16 —
    officially released June 26, 2001

      Tara M. Barbara, with whom, on the brief, was Patrick M. Bimey, for the appellant (plaintiff).

      Lawrence A. Dubin, for the appellees (defendants).
   Opinion

MIHALAKOS, J.

The plaintiff, Yale-New Haven Hospital, Inc., appeals from the judgment rendered by the trial court dismissing its appeal from an order of the Probate Court for the district of New Haven. At issue is the Probate Court’s order permitting the executrix of the estate of Beatrice Yokely to repair real property of the estate using estate funds and to distribute the remaining funds to creditors other than the plaintiff, which has a claim pending against the estate for medical bills incurred by Yokely (the decedent) during her last sickness. On appeal, the plaintiff claims that expenditures for repairs that are unnecessary to preserve or conserve the estate do not constitute “expenses of settling the estate” and, therefore, are not assigned second priority pursuant to General Statutes § 45a-365. Consequently, the plaintiff argues, the Probate Court misapplied § 45a-365 in declining to assign the plaintiffs claim priority over the proposed expenditure for the repairs. Alternatively, the plaintiff claims that the Probate Court’s order permitting the expenditure was improper because it impliedly authorized the executrix to waste estate assets. We are persuaded by the plaintiffs initial claim and, accordingly, reverse the judgment of the trial court.

The following facts and procedural history are relevant to this appeal and are undisputed. The decedent died on February 18, 1994. Thereafter, an estate was opened for the decedent in the Probate Court for the district of New Haven. The decedent’s sister, Helen Jacobs, was appointed executrix as directed by the decedent’s will. On or about April 25, 1994, the plaintiff presented a claim against the estate in the amount of $77,455.22, for medical bills that the decedent had incurred in September, 1993, during her last sickness.

On or about June 8, 1994, the executrix filed in the Probate Court an inventory and appraisal of the decedent’s estate. Those documents indicated that the estate was worth $122,000 and that it consisted of two houses in New Haven. The first house, located at 535-537 Winchester Avenue, was appraised at $78,000, and the second, located at 50 Thompson Street, was appraised at $44,000. Shortly after the executrix filed the inventory and appraisal, a fire destroyed the house on the Winchester Avenue property. It was insured against loss by fire, however, and the estate received indemnification in the amount of $87,733.12. On or about May 31, 1995, the plaintiff amended its claim, reducing the amount requested to $75,484.17.

On October 19, 1995, the Probate Court conducted a hearing on the account of the estate. During the hearing, the executrix reported that $84,729.79 of the insurance proceeds remained. She also requested the Probate Court’s permission to allocate those proceeds toward rebuilding the house on Winchester Avenue and renovating the house on Thompson Street, which was not in compliance with the New Haven housing code. Last, the executrix indicated to the Probate Court that she wanted the beneficiaries of the decedent’s estate to live in the two houses. Before concluding the hearing, the Probate Court approved a partial distribution in the amount of $28,268.89 for the following purposes: (1) cleaning and storage fees ($5525.25); (2) property insurance ($257); (3) attorney’s fees ($8125); (4) property taxes ($5827.76); (5) utilities ($5752.86); (6) Fleet Finance mortgage ($2249.80); and (7) Kasden/Elm City Fuel ($631.22). The Probate Court recommended that the executrix file a separate motion addressing the distribution of the remaining proceeds, which totaled $56,380.90. Later that day, the plaintiff filed a motion to stay the partial distribution. On or about October 31, 1995, the executrix filed a motion for permission to allocate the remaining $56,380.90 toward rebuilding or renovating the two properties.

On November 30,1995, the Probate Court conducted a hearing, during which it granted the executrix’s motion for permission and denied the plaintiffs motion to stay the partial distribution. The Probate Court did stay, however, the allocation of the remaining $56,380.90 to allow for an appeal by the plaintiff.

On December 14, 1995, the plaintiff appealed to the Superior Court. On appeal, the plaintiff claimed, inter alia, that the Probate Court should not have allocated any of the insurance proceeds toward rebuilding the house on Winchester Avenue or renovating the house on Thompson Street because those proposed expenditures did not constitute “expenses of settling the estate” and, thus, did not have priority over the plaintiffs claim due for the last sickness of the decedent. Because no record was made of the underlying probate proceedings, the trial court conducted a trial de novo. See Andrews v. Gorby, 237 Conn. 12, 16, 675 A.2d 449 (1996). At the conclusion of the trial, the court, relying on Horton v. Upham, 72 Conn. 29, 43 A. 492 (1899), dismissed the plaintiffs appeal. This appeal followed. Additional facts and procedural history will be presented as necessary.

First, we must determine whether a repair to property of an estate may constitute “expenses of settling the estate” pursuant to § 45a-365. That is a question of statutory interpretation, and, therefore, our review of that issue is plenary. See Oxford Tire Supply, Inc. v. Commissioner of Revenue Services, 253 Conn. 683, 690, 755 A.2d 850 (2000).

“The process of statutory interpretation involves a reasoned search for the intention of the legislature. ... In other words, we seek to determine, in a reasoned manner, the meaning of the statutory language as applied to the facts of this case .... In seeking to determine that meaning, we look to the words of the statute itself, to the legislative history and circumstances surrounding its enactment, to the legislative policy it was designed to implement, and to its relationship to existing legislation and common law principles governing the same general subject matter.” (Internal quotation marks omitted.) Winchester v. Northwest Associates, 255 Conn. 379, 386, 767 A.2d 687 (2001).

Neither the General Statutes nor the Public Acts contain a definition of the phrase “expenses of settling the estate.” Common-law principles, however, provide significant insight. In Corbin v. Townshend, 92 Conn. 501, 506, 103 A. 647 (1918), our Supreme Court stated: “Administration expenses embrace any expense incurred by an executor or administrator in the care, preservation and conservation of the assets of the estate, in converting the assets, and in paying the debts and legacies, and also all expenses incurred by operation of law and in turning over the assets remaining to the residuary legatees or distributees.” Applying the foregoing principle, we hold that a repair to property of an estate can constitute an expense of settling the estate pursuant to § 45a-365 only if it is (1) necessary to conserve the overall value of the estate or (2) ordinary and necessary to preserve the property in question. Second, in applying that rule to the present case, we must determine whether the challenged expenses permitted by the court, namely, the costs of repairing the two houses, constitute expenses of settling the estate pursuant to § 45a-365. We conclude that they do not.

The following additional procedural history is relevant to our inquiry. During the trial de novo, Joseph Perrelli, a real estate appraiser, testified on behalf of the plaintiff. Perrelli testified that the estimated reconstruction cost of the house on Winchester Avenue was $190,000, which was “slightly in excess of $50 per square foot.” Perrelli further testified that if the house were reconstructed, it would have an estimated market value of only $90,000 because of “external obsolescence.” Regarding the house on Thompson Street, Perrelli testified that the estimated cost of renovating it, including “bring[ing] it up to code,” was $64,300 and that the house, if renovated, would have a market value of approximately $50,000. No one else testified at the trial. Additionally, three exhibits were admitted into evidence: A copy of the plaintiffs claim against the estate, Perrelli’s summary appraisal report concerning the property on Winchester Avenue and Perrelli’s summary appraisal report concerning the property on Thompson Street. Perrelli’s testimony was consistent with the information contained in his reports.

Thereafter, the court issued its memorandum of decision, which stated in relevant part: “The plaintiff urges that the sum of $53,360.90 be used for the payment of its bill for the decedent’s last sickness.

“The case of Horton v. Upham, [supra, 72 Conn. 29], was a suit to determine the construction of a will. The testator left a house and outbuildings to his grandson. The buildings were destroyed by fire, and the administrator collected the amount of the policy.

“The court ruled: ‘The insurance money which has been collected goes as the land goes, and is to be treated as real estate.’

“The court held that the Superior Court was correct. See Estate of Freud, 131 Cal. 667, 63 P. 1080 (1901).

“The appeal is dismissed.”

The court neither evaluated Perrelli’s testimony nor addressed whether the repairs constituted expenses of settling the estate.

“The scope of our appellate review depends upon the proper characterization of the rulings made by the trial court. To the extent that the trial court has made findings of fact, our review is limited to deciding whether such findings were clearly erroneous.” (Internal quotation marks omitted.) Gateway v. DiNoia, 232 Conn. 223, 229, 654 A.2d 342 (1995); see also Practice Book § 60-5. “A factual finding is clearly erroneous when it is not supported by any evidence in the record or when there is evidence to support it, but the reviewing court is left with the definite and firm conviction that a mistake has been made.” Hartford Electric Supply Co. v. Allen-Bradley Co., 250 Conn. 334, 345-46, 736 A.2d 824 (1999). “When, however, the trial court draws conclusions of law, our review is plenary and we must decide whether its conclusions are legally and logically correct and find support in the facts that appear in the record.” (Internal quotation marks omitted.) Gateway v. DiNoia, supra, 229; see also Practice Book § 60-5.

We have reviewed the record of the trial court, and we conclude that it did not make findings that are relevant to determining whether the repairs constituted expenses of settling the estate. Our review of the record reveals, however, that none of the evidence presented indicates that the contemplated repairs were either (1) necessary to conserve the overall value of the decedent’s estate or (2) ordinary and necessary to preserve the properties in question. Therefore, assuming arguendo that the court had found that the repairs were either necessary to conserve the estate or ordinary and necessary to preserve the properties in question, we would be obligated to rule that that finding is clearly erroneous because no evidence in the record supports it. See Hartford Electric Supply Co. v. Allen-Bradley Co., supra, 250 Conn. 345-46. On the contrary, the evidence, which included Perrelli’s testimony and his appraisal reports, indicates strongly that the repairs permitted by the Probate Court, which totaled $56,380.90, were not necessary to conserve the overall value of the decedent’s estate. Additionally, the evidence indicates strongly that the repairs contemplated for either the Winchester Avenue property or the Thompson Street property were not ordinary. Those observations lead us to conclude that the contemplated repairs do not constitute “expenses of settling the estate” pursuant to § 45a-365 and, thus, are not afforded second priority in the order of payment of claims against the estate. See footnote 1. Because it appears from the record that the plaintiffs claim is the only pending third priority claim, the plaintiff is entitled to the remaining insurance proceeds in partial satisfaction of its claim.

Last, we note that we are not persuaded by the executrix’s counterargument that the court properly relied on Horton v. Upham, supra, 72 Conn. 29, in deciding to allocate a majority of the insurance proceeds toward repairing the two houses. In Horton, a testator’s grandson brought an action to determine the appropriate construction of the testator’s will. The will contained a “residuary clause [that] created an estate tail by implication in the testator’s grandson [the appellant], both as to the real and personal estate, and gave the Congregational Society [the appellee] a contingent remainder in the real estate, dependent upon the decease of the first taker [the grandson] without leaving surviving issue . . . .” Id., 30-31. After the testator died, several buildings that the testator had owned at the time of his death were destroyed by fire. Those buildings were insured, and the administrator collected the amount of the policy. The will did not account for that exigency, and litigation ensued.

Our Supreme Court concluded, inter alia, that the grandson was entitled to the possession and management of the insurance proceeds during his lifetime and that the proceeds would pass upon his death, as the buildings would have, had they not been destroyed. Id., 31-32. In so doing, our Supreme Court stated: “The insurance money which has been collected goes as the land goes, and is to be treated as real estate.” Id., 31.

In the present case, the court improperly relied on that statement as support for its decision permitting the executrix of the estate to use fire insurance proceeds to pay for extraordinary repairs to two properties, one of which was not subject to a fire. That statement applies only when (1) the court is construing a will containing a specific devise, (2) at least some of the devised property was destroyed and (3) the estate is indemnified for the loss. In the present case, however, the proper construction of the decedent’s will is not at issue. Additionally, the decedent’s will does not contain a specific devise of the subject property, unlike the will in Horton. Thus, that statement appears to have little, if any, applicability in this setting. Moreover, even if we were to apply that statement to the present case, it appears to favor distributing the insurance proceeds to the creditors because the house on Winchester Avenue, had it not been destroyed by fire, would have been sold and the proceeds from that sale would have been distributed to the creditors in accordance with § 45a-365.

The judgment is reversed and the case is remanded with direction to render judgment ordering the executrix of the decedent’s estate to distribute the remaining insurance proceeds to the plaintiff in partial satisfaction of its claim due for the last sickness of the decedent.

In this opinion the other judges concurred.

       General Statutes § 45a-365 provides: “Claims, expenses and taxes in the settlement of a decedent’s estate shall be entitled to preference and payment in the following order of priority: (1) Funeral expenses; (2) expenses of settling the estate; (3) claims due for the last sickness of the decedent-, (4) all lawful taxes and all claims due the state of Connecticut and the United States; (5) all claims due any laborer or mechanic for personal wages for labor performed by such laborer or mechanic for the decedent within three months immediately before the decease of such person; (6) other preferred claims; and (7) all other claims allowed in proportion to their respective amounts.” (Emphasis added.)
      In its brief, the plaintiff refers to another statute, General Statutes § 45a-392, which also provides an order of payment of claims against a decedent’s estate; however, § 45a-392 should be applied only if the decedent died prior to October 1, 1987. Because the decedent in the present case died on or after October 1, 1987, General Statutes § 45a-365 applies, and it, instead, provides the basis for our decision.

       The beneficiaries, all of whom are older than eighteen years of age, are the other defendants in this action.

       Specifically, the court relied on the following statement in Horton v. Upham, supra, 72 Conn. 31: “The insurance money which has been collected goes as the land goes, and is to be treated as real estate.” As discussed later in this opinion, we conclude that this rule is limited in scope and does not apply to the present case.

       In Black’s Law Dictionary (6th Ed. 1990), “repair” is defined as follows: “To mend, remedy, restore, renovate. To restore to a sound or good state after decay, injury, dilapidation, or partial destruction. . . . The word ‘repair’ contemplates an existing structure or thing which has become imperfect, and means to supply in the original existing structure that which is lost or destroyed, and thereby restore it to the condition in which it originally existed, as near as may be.” (Citation omitted.) We adopt that definition for the purposes of this opinion.

       See footnote 1.

       In Black’s Law Dictionary (6th Ed. 1990), “conserve” is defined as follows: “To save and protect from loss or damage.” We adopt that definition for the purposes of this opinion.

       In Black’s Law Dictionary (6th Ed. 1990), “preservation” is defined as follows: “Keeping safe from harm; avoiding injury, destruction, or decay; maintenance. It is not creation, but the saving of that which already exists, and implies the continuance of what previously existed.” We adopt that definition for the purposes of this opinion.

       It is important to note that the real property of the decedent’s estate was not specifically devised. Consequently, General Statutes § 45a-428, which requires that the devisees of real property receive personal notice of the pendency of an application for a decree authorizing the sale or mortgage of the property, does not apply to the present case.


author: LANDAU, J.

text:
    NICHOLAS D. GALGANO v. METROPOLITAN PROPERTY AND CASUALTY INSURANCE COMPANY ET AL.
    (AC 19617)
    Landau, Mihalakos and Daly, Js.
    Argued January 12 and March 19 —
    officially released June 26, 2001

      Kevin P. Walsh, with whom, on the brief, was Robert J. Flanagan, Jr., for the appellant (jplaintiff).

      Ronald W. Lindlauf, Jr., for the appellee (named defendant).

      Jack G. Steigelfest, for the appellee (defendant Patriot General Insurance Company).

       After the plaintiff filed this appeal, the defendant Metropolitan Property & Casualty Insurance Company filed a motion to dismiss the appeal for lack of a final judgment. This court denied the motion to dismiss without prejudice to raising the issue at oral argument. During oral argument on January 12, 2001, we asked the parties to submit supplemental briefs on the question: “Can subject matter jurisdiction be perfected in an appeal where it did not exist when the appeal was filed?” The parties appeared before us on March 19, 2001, to argue that question.

   Opinion

LANDAU, J.

In this uninsured motorist action, the plaintiff, Nicholas D. Galgano, appeals from the judgment rendered in favor of the defendants, Metropolitan Property and Casualty Insurance Company (Metropolitan) and Patriot General Insurance Company (Patriot General), following the granting of their respective motions for summary judgment. On appeal, the plaintiff claims that the trial courts improperly granted the defendants’ motions for summary judgment by concluding that a claim for bystander emotional distress under Clohessy v. Bachelor, 237 Conn. 31, 675 A.2d 852 (1996) (en banc), is a derivative action inextricably attached to the claims of the plaintiffs son, who is not a party to this action. Metropolitan claims that the judgment rendered in its favor should be affirmed on alternate grounds, specifically, on the basis of General Statutes § 38a-336 (d). We dismiss the appeal for lack of a final judgment.

The following facts, as alleged in the complaint, are relevant to our resolution of this appeal. On June 18, 1995, at about 9 p.m., the plaintiff was operating his motorcycle on Franklin Avenue in Torrington. His son, Nicholas A. Galgano, was a passenger on the motorcycle when it was struck by a motor vehicle, throwing the plaintiff and his son from the motorcycle. The child was transported to Hartford Hospital by Life Star helicopter. The tortfeasor, Jerry Smulski, was operating an unregistered, uninsured vehicle while his license was under suspension.

The plaintiffs son suffered a permanent, debilitating injury to his leg and a traumatic brain injury. The plaintiff suffered personal physical injuries and has lost a significant amount of time from his employment as a result of the accident. He also suffers from a traumatic stress disorder as a result of experiencing firsthand the injuries to his son.

On the date of the accident, the plaintiff had a policy of automobile insurance with Metropolitan, which provided $100,000 in uninsured motorist coverage. The plaintiff also had a policy of insurance from Patriot General that provided $20,000 in uninsured motorist coverage. Byway of his two count complaint, one count against each defendant, the plaintiff sought uninsured motorist benefits for his personal injuries and associated losses, and for bystander emotional distress as a result of witnessing the injuries to his son.

When the pleadings were closed, Patriot General filed a motion for summary judgment. Patriot General argued that summary judgment should be rendered in its favor because (1) bystander emotional distress is a derivative action inextricably attached to the claim of the plaintiffs son, who is not a party to this action, (2) the plaintiffs son is not a party to this action, and, therefore, the plaintiff cannot assert a claim of bystander emotional distress and (3) the plaintiffs son has received a settlement in excess of the plaintiffs policy limits. The trial court, Hon. Walter M. Pickett, judge trial referee, granted Patriot General’s motion for summary judgment, citing only Martin v. Reliance Ins. Co., 954 F. Sup. 476, 480 (D. Conn. 1997). The summary judgment rendered addressed only the plaintiffs claim for bystander emotional distress. Neither the plaintiff nor Patriot General asked the court to articulate its reasons for granting the motion. Pursuant to our rules of practice, the plaintiff gave notice of his intent to appeal following the granting of Patriot General’s motion for summary judgment. See Practice Book § 61-3.

Metropolitan also filed a motion for summary judgment on the grounds that (1) the plaintiffs claims were barred by § 38a-336 (d) and (2) the plaintiffs bystander emotional distress claim was barred for the same reasons raised by Patriot General in its motion for summary judgment. The trial court, Kocay, J., granted Metropolitan’s motion for summary judgment, stating that the issues were identical to those presented by Patriot General and that the motion similarly should be granted in accordance with Martin v. Reliance Ins. Co., supra, 954 F. Sup. 480. The court did not address Metropolitan’s claim that the motion for summary judgment should be granted on the basis of § 38a-336. Metropolitan did not file a motion for reargument requesting that the court address its § 38a-336 claim, and neither party sought an articulation.

The plaintiff prepared a judgment file that was signed by a clerk and appealed to this court. Subsequent to the filing of the appeal, Metropolitan filed a motion to dismiss the appeal for lack of a final judgment. This court denied the motion without prejudice to raising the issue at the time of full argument. The question of final judgment was raised again during oral argument. See Governor’s Grove Condominium Assn., Inc. v. Hill Development Corp., 187 Conn. 509, 511 n.6, 446 A.2d 1082 (1982), overruled on other grounds, Morelli v. Manpower, Inc., 226 Conn. 831, 628 A.2d 1311 (1993).

I

We first consider that portion of the plaintiffs appeal pertaining to the granting of Patriot General’s motion for summary judgment, which we dismiss for want of a final judgment.

Count two of the complaint seeks uninsured motorist benefits, pursuant to the plaintiffs policy with Patriot General, for personal injuries and bystander emotional distress. “The purpose of a complaint ... is to limit the issues at trial, and it is calculated to prevent surprise. ... It must provide adequate notice of the facts claimed and the issues to be tried.” (Citation omitted; internal quotation marks omitted.) New Milford Savings Bank v. Roina, 38 Conn. App. 240, 244, 659 A.2d 1226, cert. denied, 235 Conn. 915, 665 A.2d 609 (1995). Patriot General filed a motion for summary judgment with respect to the plaintiffs claim for bystander emotional distress only, although its motion did not in any way indicate that it sought a partial summary judgment. The court granted the motion for summary judgment without considering the allegations of personal injury. Neither the plaintiff nor Patriot General brought the matter to the court’s attention, and it is possible that they were not aware of the distinction until Metropolitan filed its motion to dismiss the plaintiffs appeal for lack of a final judgment.

This court lacks jurisdiction to hear an appeal that is not taken from a final judgment. See General Statutes § 52-263; Practice Book § 61-4; State v. Curcio, 191 Conn. 27, 30, 463 A.2d 566 (1983). Curcio sets forth the test to determine whether an appeal is taken from a final judgment. “An otherwise interlocutory order is appealable in two circumstances: (1) where the order or action terminates a separate and distinct proceeding, or (2) where the order or action so concludes the rights of the parties that further proceedings cannot affect them.” State v. Curcio, supra, 31.

Here, the summary judgment rendered in favor of Patriot General did not conclude the rights of the parties because it did not encompass the plaintiffs claim for personal physical injuries and associated claims. This court, therefore, lacks subject matter jurisdiction, and that portion of the plaintiffs appeal as to Patriot General is dismissed.

II

We now turn to the judgment rendered in favor of Metropolitan. The plaintiff claims that the court improperly granted Metropolitan’s motion for summary judgment when it concluded that a bystander emotional distress claim is a derivative action. On appeal, Metropolitan argues that we should affirm the summary judgment on alternate grounds, namely, § 38a-336 (d), which was the primary ground it relied on in its motion for summary judgment. The plaintiff did not address Metropolitan’s argument regarding § 38a-336 (d) in the trial court or in his brief to this court. We also do not address Metropolitan’s claim because the plaintiffs appeal with regard to it suffers the same jurisdictional infirmity as the portion of the appeal concerning Patriot General. The motions for summary judgment were both decided on the same ground and addressed only a portion of the complaint, e.g., the bystander emotional distress claims. In dismissing the appeal, we offer no opinion as to the merits of Metropolitan’s § 38a-336 (d) claim. The appeal as to Metropolitan is also dismissed.

The appeal is dismissed.

In this opinion the other judges concurred.

       Metropolitan paid the plaintiffs son $100,000 in uninsured motorist benefits.

       The basis of Patriot General’s motion for summary judgment was not that, there were no genuine issues of material fact but that the plaintiffs allegations of bystander emotional distress failed to state a cause of action. We note that a motion to strike is the proper manner in which to contest the legal sufficiency of the allegations of a complaint. See Practice Book § 10-39.

       Because we do not reach the issue of bystander emotional distress, we take no position with respect to whether a claim for bystander emotional distress is a derivative claim or whether Martin v. Reliance Ins. Co., supra, 954 F. Sup. 480, is applicable.

       In count two, paragraph eight contains allegations of personal injuries that the plaintiff sustained in the accident, paragraph nine alleges a claim for bystander emotional distress, paragraph ten alleges loss related to absences from employment, and paragraph eleven alleges loss of past and future life’s enjoyment.

       General Statutes § 38a-336 (d) provides in relevant part: “If any person insured for uninsured and underinsured motorist coverage is an occupant of an owned vehicle, the uninsured and underinsured motorist coverage afforded by the policy covering the vehicle occupied at the time of the accident shall be the only uninsured and underinsured motorist coverage available.” (Emphasis added.)

       In support of its motion for summary judgment, Metropolitan submitted, among other things, the plaintiffs responses to Metropolitan’s requests for admission. The plaintiff admitted that he was the owner and operator of the motorcycle involved in the accident. He also admitted that he had registered and insured the motorcycle in his name, and that it was insured by Patriot General. Metropolitan submitted a certified copy of its policy of insurance that revealed that the motorcycle is not an insured vehicle under the policy.

       Metropolitan's claim is that, pursuant to § 38a-336 (d), as a matter of law, it. is not responsible for either the plaintiff’s claims for personal injuries and associated losses, or his claim for bystander emotion distress.

       Although Metropolitan was the first to raise the question of final judgment on appeal, it elected not to file a supplemental brief on that question.

       As to the issue that we asked the parties to address in their supplemental briefs, a jurisdictional defect renders an appeal void ab initio and can not be corrected. Stroiney v. Crescent Lake Tax District, 197 Conn. 82, 86 n.3, 495 A.2d 1063 (1985).
      The plaintiff relies on Zamstein v. Marvasti, 240 Conn. 549, 692 A.2d 781 (1997), which is factually distinct. Here, the plaintiff has not withdrawn his personal physical injury claim and has taken the position that there is a final judgment or, alternatively, if this court determines that there is no final judgment, that we dismiss the appeal with an explanation so that the case may return to the trial court for further proceedings.


author: SCHALLER, J.

text:
    PAMELA KNOBLAUGH v. DANIEL MARSHALL
    (AC 20454)
    Schaller, Flynn and O’Connell, Js.
    Argued February 23 —
    officially released June 26, 2001

      Neil Johnson, for the appellant (plaintiff).

      Richard C. Robinson, for the appellee (defendant).
   Opinion

SCHALLER, J.

The plaintiff, Pamela Knoblaugh, appeals from the decision of the workers’ compensation commissioner (commissioner), rendered in a corrected finding and award, dismissing her complaint that the defendant, Daniel Marshall, a physician, terminated her employment in violation of General Statutes § 31-290a, which prohibits employers from retaliating against employees for pursuing their rights under the Workers’ Compensation Act, General Statutes § 31-275 et seq. On appeal, the plaintiff claims that the commissioner improperly revisited the issue of liability after having concluded in a previous hearing that the defendant was liable for violating § 31-290a. Alternatively, the plaintiff claims that the commissioner improperly determined that the defendant did not terminate her employment in violation of § 31-290a. We affirm the decision of the commissioner.

The following facts and procedural history are relevant to our disposition of this appeal. In June, 1989, the plaintiff was employed as an office nurse for the defendant. Part of the plaintiff’s duties included placing a full bottle of water on the water cooler when it became empty. While performing that duty on June 24, 1989, the plaintiff injured her back, but failed to mention the incident to anyone in the office on that day. The plaintiffs pain became progressively worse over the weekend. Thereafter, the plaintiff contacted the defendant to inform him that she had injured her back when changing the water cooler bottle and that she would need some time off to heal and to seek medical attention. Because of the injury, the plaintiff missed work for one week. She returned to work on the following Monday and, during the week, the defendant did not indicate any displeasure with her. At the end of that week, however, the defendant summoned the plaintiff into his office and dismissed her because she had a back injury that prevented her from performing her duties. The defendant, at that time, did not know of the plaintiffs intention to file a workers’ compensation claim.

Thereafter, the plaintiff filed a workers’ compensation claim to recover damages for her back injury. She also claimed that the defendant had violated § 31-290a. With respect to the latter claim, commissioner Robin W. Waller held a hearing on the matter. At the hearing, the plaintiff testified that the defendant had violated § 31-290a by dismissing her because she had pursued her rights under the Workers’ Compensation Act. The defendant, on the other hand, testified that such a charge could not be valid because he was unaware of the plaintiffs intention to file a workers’ compensation claim when he dismissed her. On August 15, 1997, the commissioner issued his initial finding and award. The commissioner found the defendant liable under the statute but did not determine damages.

Subsequently, the defendant filed an appeal with this court. We declined, however, to address the merits of the defendant’s appeal. Acting sua sponte, we dismissed the appeal after concluding that the commissioner’s August 15,1997 decision did not constitute a final judgment because damages had not been determined.

On September 14,1999, the commissioner conducted a further hearing to determine damages. Although the parties primarily contested the issue of damages during the hearing, the defendant also requested that the commissioner overturn the August 15,1997 decision regarding liability. On January 6, 2000, the commissioner issued a corrected finding and award in which he reversed his position as to the liability of the defendant. In doing so, the commissioner reasoned that “[s]ince [the plaintiff] did not file her workers’ compensation claim until after she was terminated, the [defendant] did not discharge her because she had filed a workers’ compensation claim.” The commissioner also found that “there is no evidence that the [defendant] discharged her because she had exercised any rights afforded to her pursuant to the Workers’ Compensation Act.” On the basis of those findings, the commissioner concluded that the plaintiff had failed to meet her burden of proving that the defendant had dismissed her in violation of § 31-290a. The plaintiff now appeals from that decision.

I

The plaintiff initially claims that the commissioner improperly revisited the issue of liability in the subsequent hearing and, thus, the January 6, 2000 corrected finding and award is invalid. According to the plaintiff, the doctrine of res judicata precluded the commissioner from revisiting the issue of liability because he already had determined liability in the original August 15, 1997 finding and award. The plaintiffs claim is without merit.

The plaintiffs reliance on the doctrine of res judicata is misplaced. “Under the doctrine of res judicata, a final judgment, when rendered on the merits, is an absolute bar to a subsequent action, between the same parties or those in privity with them, upon the same claim.” (Emphasis added; internal quotation marks omitted.) Dowling v. Finley Associates, Inc., 248 Conn. 364, 373, 727 A.2d 1245 (1999). In the present case, the plaintiff cannot demonstrate that the commissioner’s August 15, 1997 decision constituted a final judgment. To the contrary, we already have concluded that the commissioner’s August 15, 1997 decision was not a final judgment for purposes of an appeal because damages were not determined. “[T]he traditional standard of finality for purposes of appeal will generally also provide the standard of finality for purposes of preclusion.” CFM of Connecticut, Inc. v. Chowdhury, 239 Conn. 375, 398, 685 A.2d 1108 (1996), overruled in part on other grounds, State v. Salmon, 250 Conn. 147, 155, 735 A.2d 333 (1999). Accordingly, the doctrine of res judicata did not preclude the commissioner from revisiting the issue of liability.

Furthermore, the doctrine of the law of the case does not preclude a commissioner from changing an interlocutory decision. See Bowman v. Jack’s Auto Sales, 54 Conn. App. 289, 293-94, 734 A.2d 1036 (1999) (applying doctrine of law of case to workers’ compensation proceedings). That doctrine provides that “[w]here a matter has previously been ruled upon interlocutorily, the court in a subsequent proceeding in the case may treat that decision as the law of the case, if it is of the opinion that the issue was correctly decided, in the absence of some new or overriding circumstance.” (Emphasis added.) Breen v. Phelps, 186 Conn. 86, 99, 439 A.2d 1066 (1982). “The law of the case ... is a flexible principle of many facets adaptable to the exigencies of the different situations in which it may be invoked. ... In essence it expresses the practice of judges generally to refuse to reopen what has been decided and is not a limitation on their power. ... A judge should hesitate to change his own rulings in a case and should be even more reluctant to overrule those of another judge. . . . Nevertheless, if the case comes before him regularly and he becomes convinced that the view of the law previously applied . . . was clearly erroneous and would work a manifest injustice if followed, he may apply his own judgment.” (Internal quotation marks omitted.) State v. Arena, 235 Conn. 67, 80, 663 A.2d 972 (1995). Under the doctrine, the commissioner could have treated his August 15, 1997 decision as the law of the case, but he was not bound to treat it as such. We conclude that the commissioner did not improperly revisit the issue of liability in the subsequent hearing and, therefore, the January 6, 2000 corrected finding and award is valid.

II

In the alternative, the plaintiff claims that the commissioner improperly determined that the defendant did not terminate her employment in violation of § 31-290a. She concedes that such a determination is a factual matter but argues that the commissioner’s finding on that matter was erroneous. We are not persuaded.

We emphasize that our review of the commissioner’s factual findings is very limited. “The commissioner has the power and duty, as the trier of fact, to determine the facts. Castro v. Viera, 207 Conn. 420, 435, 541 A.2d 1216 (1988). The conclusions drawn by him from the facts found must stand unless they result from an incorrect application of the law to the subordinate facts or from an inference illegally or unreasonably drawn from them.” (Internal quotation marks omitted.) Biasetti v. Stamford, 250 Conn. 65, 71, 735 A.2d 321 (1999).

“The burden of proof in actions involving § 31-290a is stated in Ford v. Blue Cross & Blue Shield of Connecticut, Inc., 216 Conn. 40, 53, 578 A.2d 1054 (1990), and Chiaia v. Pepperidge Farm, Inc., 24 Conn. App. 362, 366, 588 A.2d 652, cert. denied, 219 Conn. 907, 593 A.2d 133 (1991). The plaintiff bears the initial burden of proving by the preponderance of the evidence a prima facie case of discrimination. ... In order to meet this burden, the plaintiff must present evidence that gives rise to an inference of unlawful discrimination. ... 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. ... 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. . . . The plaintiff then must satisfy [the] burden of persuading the factfinder that [the plaintiff] 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.” (Internal quotation marks omitted.) Chernovitz v. Preston Trucking Co., 52 Conn. App. 570, 572-73, 729 A.2d 222 (1999).

In the present case, we conclude that the commissioner reasonably determined that the plaintiff had failed to meet her burden of proving that the defendant violated § 31-290a. The commissioner found that at the time of the plaintiffs dismissal, the defendant was unaware of her intention to file a workers’ compensation claim for her injury. During the hearings before the commissioner, the plaintiff did not dispute that fact. Nevertheless, the plaintiff testified that the defendant dismissed her because he believed she would file a claim. The defendant, however, testified that he dismissed the plaintiff because she could no longer perform her duties because of the injury. We note that the “authority to find the facts entitles the commissioner to determine the weight of the evidence presented and the credibility of the testimony offered by lay and expert witnesses.” (Internal quotation marks omitted.) Funaioli v. New London, 52 Conn. App. 194, 197, 726 A.2d 626 (1999). Acting within the scope of his duty, the commissioner was free to believe the defendant’s testimony regarding the reason for the plaintiff’s dismissal. Accordingly, the commissioner properly determined that the defendant did not terminate the plaintiff in violation of § 31-290a.

The decision of the workers’ compensation commissioner is affirmed.

In this opinion the other judges concurred.

       General Statutes § 31-290a (a) provides: “No employer who is subject to the provisions of this chapter shall discharge, or cause to be discharged, or in any manner discriminate against any employee because the employee has filed a claim for workers’ compensation benefits or otherwise exercised the rights afforded to him pursuant to the provisions of this chapter.”
      Appeals from the commissioner’s decision in an action brought under § 31-290a may be made directly to the Appellate Court. General Statutes § 31-290a (b).

       With regard to that claim, commissioner A. Thomas White found that the plaintiff had suffered a compensable injury while employed by the defendant. The plaintiffs appeal does not, however, involve that decision.

       The plaintiff also argues, in a bare assertion devoid of any legal authority, that the commissioner improperly revisited the issue of liability because he did so without providing the plaintiff with notice. Because that claim is inadequately briefed, we decline to review its merits. See Keeney v. Old Saybrook, 237 Conn. 135, 142 n.7, 676 A.2d 795 (1996); Commissioner of Environmental Protection v. Connecticut Building Wrecking Co., 227 Conn. 175, 181 n.4, 629 A.2d 1116 (1993).

       Under § 31-290a, “[a] discriminatory discharge does not include a discharge because the worker is unable to perform his or her work due to a work-related iryury . . . (Citation omitted.) Chernovitz v. Preston Trucking Co., supra, 52 Conn. App. 573.


author: SPEAR, J.

text:
    JOHN M. HOFFER v. ZONING BOARD OF APPEALS OF THE TOWN OF OXFORD
    (AC 20537)
    Schaller, Spear and Peters, Js.

      Argued March 1 —
    officially released June 26, 2001

      Frederick D. Stanek, with whom, on the brief, was Steven P. Kulas, for the appellant (plaintiff).

      George R. Temple, for the appellee (defendant).
   Opinion

SPEAR, J.

The plaintiff, John M. Hoffer, appeals from the judgment of the trial court dismissing his appeal from the decision of the defendant zoning board of appeals of the town of Oxford (board), denying his application for variances. The plaintiff claims that the court improperly concluded that (1) the plaintiff had failed to establish hardship and (2) there was no confiscation of the plaintiffs property. We affirm the judgment of the trial court.

The following facts and procedural history are relevant to this appeal. The plaintiff owns seven small contiguous lots on Cherokee Drive and Osage Road in Oxford. The lots are in a single-family residential district. The plaintiff, who desired to build a single-family dwelling on his property, applied to the board for variances to permit construction of a dwelling on property that (1) slopes more than twenty degrees, (2) is less than one and one-half acres in size and (3) may not meet the requirement that only one lot can depend on an easement of access or private right-of-way.

After a public hearing, the board denied the plaintiffs application without explanation. The plaintiff appealed to the Superior Court, which dismissed his appeal. This appeal followed.

Our standard of review when considering an appeal from the judgment of a court regarding the decision of a zoning board to grant or deny a variance is well established. “We must determine whether the trial court correctly concluded that the board’s act was not arbitrary, illegal or an abuse of discretion. . . . Courts are not to substitute their judgment for that of the board . . . and decisions of local boards will not be disturbed so long as honest judgment has been reasonably and fairly exercised after a full hearing. . . . Upon appeal, the trial court reviews the record before the board to determine whether it has acted fairly or with proper motives or upon valid reasons. . . . We, in turn, review the action of the trial court. . . . The burden of proof to demonstrate that the board acted improperly is upon the plaintiffs.” (Citations omitted; internal quotation marks omitted.) Bloom v. Zoning Board of Appeals, 233 Conn. 198, 205-206, 658 A.2d 559 (1995).

“[T]he board may grant variances with respect to a parcel of land where, owing to conditions especially affecting such parcel but not affecting generally the district in which it is situated, a literal enforcement of such bylaws, ordinances or regulations would result in exceptional difficulty or unusual hardship so that substantial justice will be done and the public safety and welfare secured. ... To support a variance, therefore, a hardship must arise from a condition different in kind from that generally affecting properties in the same zoning district and must be imposed by conditions outside the property owner’s control. . . . The applicant bears the burden of demonstrating the existence of a hardship.” (Internal quotation marks omitted.) Norwood v. Zoning Board of Appeals, 62 Conn. App. 528, 533, 772 A.2d 624 (2001).

I

The plaintiff claims that the court improperly concluded that he had not established the hardship necessary to support the granting of the variances. He asserts that the size and configuration of his property prevented his compliance with the regulations while still using the property for the construction of a dwelling. He asserted that those factors demonstrated the necessary hardship.

Because the board did not state the reasons for its denial of the variances, the trial court reviewed the record before the board to determine whether that record supported the action taken. See id., 532 (“[wjhere . . . the board has not articulated the reasons for its actions, the court must search the entire record to find a basis for the board’s decision”).

The plaintiff argues that the regulation prevents him from constructing a single-family dwelling and, therefore, creates a hardship. He asserts that the hardship arises because the area “consists of single-family residential structures and that other variances have been granted in the subdivision over time.” He cites no authority for the proposition that the existence of other single-family homes in the area establishes hardship, and the trial court correctly noted that the granting of other variances has no bearing on whether the variances in this particular case should have been granted.

Any hardship that the plaintiff alleged was not unusual or different in kind from the type of harm suffered by other landowners in the area with similar lots, and, therefore, no variance was warranted. The court could not substitute its judgment for that of the board and neither can we, as long as honest judgment was reasonably and fairly exercised after a full hearing. Bloom v. Zoning Board of Appeals, supra, 233 Conn. 206. For these reasons, we conclude that the court’s decision was proper.

II

The plaintiff also claims that the court improperly concluded that the board’s decision did not amount to a confiscation of his property. The plaintiff presented evidence to the trial court showing that the value of his property was greatly reduced as a result of the defendant’s application of the zoning regulations. That evidence showed that the property, with the requested variances, would be worth $69,000, but without the variances its value was $5000 to $10,000. In addition, the plaintiff asserts that the board’s decision bears little relationship to the purposes of the zoning laws and that the effect of such a strict application of the regulations to his property is confiscatory and arbitrary. This claim is without merit.

“[T]he determination of whether a taking has occurred must be made on the facts of each case with consideration being given not only to the degree of diminution in the value of the land but also to the nature and degree of public harm to be prevented and to the alternatives available to the landowner.” (Internal quotation marks omitted.) Cioffoletti v. Planning & Zoning Commission, 209 Conn. 544, 562-63, 552 A.2d 796 (1989). “Disadvantage in property value or income, or both, to a single owner of property, resulting from application of zoning restrictions, does not, ordinarily, warrant relaxation in his favor on the ground of . . . unnecessary hardship. . . . Financial considerations are relevant only in those exceptional situations where a board could reasonably find that the application of the regulations to the property greatly decreases or practically destroys its value for any of the uses to which it could reasonably be put and where the regulations, as applied, bear so little relationship to the puiposes of zoning that, as to particular premises, the regulations have a confiscatory or arbitrary effect. . . . Zoning regulations have such an effect in the extreme situation where the application of the regulations renders the property in question practically worthless.” (Citation omitted; internal quotation marks omitted.) Norwood v. Zoning Board of Appeals, supra, 62 Conn. App. 534-35.

The court properly found that there was no confiscation of the plaintiffs property. There is nothing in the record to show that the board acted unfairly or with improper motives or reasons, and, therefore, the board’s denial of the plaintiffs variance was not arbitrary, illegal or an abuse of discretion. Additionally, the plaintiffs property is not “practically worthless.” See id., 535. It still possesses value as a recreational property, which is a use the court noted is similar to other lots of similar size in the area.

The judgment is affirmed.

In this opinion the other judges concurred.

       “Property” as used in this opinion refers to all of the plaintiffs seven small contiguous lots.

       Article two, § 28, of the Oxford zoning regulations provides in relevant part: “No building shall be placed in an area where the predeveloped slopes are in excess of twenty degrees. ...”

       Article five, § 4, of the Oxford zoning regulations provides in relevant part: “Each lot shall have a minimum land area of one and one-half acres and shall be of such shape that a square with 160 feet on each side will fit on the lot. . . . Only one lot may depend upon an easement of access or private right of way for exclusive access

       See footnote 3.


text:
    ROBERT GOULD v. ROBERT A. HALL, JR., ET AL.
    (AC 20351)
    Lavery, C. J., and Schaller and Cretella, Js.
    Argued February 13 —
    officially released June 26, 2001

      Eric R. Posmantier, with whom, on the brief, was Andrew P. Nemiroff, for the appellant (defendant).

      Stephen D. Wippermann, for the appellee (plaintiff).
   Opinion

SCHALLER, J.

The defendant, Robert A. Hall, Jr., appeals from the judgment of the trial court, rendered upon acceptance of a report from an attorney trial referee, in favor of the plaintiff, Robert Gould, on the third count of the defendant’s counterclaim in which he sought damages for breach of contract. The defendant claims on appeal that the trial court improperly accepted the attorney trial referee’s report over his objection, which was based on claims that the referee failed to consider a document admitted into evidence as a full exhibit and whether an implied contract existed between the parties. We affirm the judgment of the trial court.

The plaintiff was the managing partner and held 80 percent of the ownership interest in a general partnership, Kingsley Associates, that owned an apartment building, Kingsley Court. The defendant, an attorney, held an 8 percent interest in the partnership as trustee. The partnership, which was created by written agreement in May, 1982, was to expire in May, 1992. The plaintiff and the defendant could not reach an agreement as to the disposition of the partnership property. In November, 1996, the defendant, acting as a general partner on behalf of Kingsley Associates, conveyed eight condominium units belonging to Kingsley Associates to himself as trustee.

The plaintiff thereafter filed a two count complaint. In the first count, the plaintiff sought damages for the defendant’s improper transfer of title to eight condominium units. The second count of the complaint sought the reconveyance of the eight condominiums to the partnership, Kingsley Associates.

In response, the defendant filed an answer and a three count counterclaim. In the first count, the defendant sought the permanent appointment of a receiver to wind up the affairs of the partnership. In the second count, he requested partition in kind of the remaining twenty-two condominium units owned by the partnership. In the third count, the defendant sought damages for breach of contract.

The case was referred to an attorney trial referee. The referee found the following pertinent facts. The defendant prepared the 1982 partnership agreement as the attorney for the plaintiffs father, Harry Gould, who was the majority owner and managing partner of Kingsley Associates. Harry Gould died in 1985, and his interest in the partnership passed to the plaintiff. The defendant, as an attorney, never billed the plaintiff or the partnership for legal services, and the defendant failed to produce any evidence that he rendered legal services to the plaintiff or to the partnership. The apartments were converted to condominiums in September, 1987, and the partnership was due to expire on May 13, 1992. Fifty-one condominium units were sold and twenty-two units remained unsold. The defendant conveyed eight units to himself as trustee without authorization. The parties could not agree on an orderly dissolution of the partnership. As to his breach of contract claim, the defendant failed to produce any written agreement with either the plaintiff or the partnership entitling him to $175,000 for services rendered in connection with converting the apartments to condominiums.

The attorney trial referee concluded that (1) the defendant did not prove that he rendered legal services to the plaintiff or to the partnership, (2) the defendant rendered legal services only to and on behalf of Harry Gould, (3) the eight units that the defendant conveyed to himself as trustee, without authority from the plaintiff or the partnership, should be reconveyed to the partnership, (4) Edward Schecter, an accountant, who was appointed temporary receiver by agreement of the parties, should be appointed a permanent receiver to supervise the orderly dissolution of the partnership and (5) the defendant was not entitled to additional compensation for condominium conversion because he failed to prove that the plaintiff breached an express contract to pay him a condominium conversion fee and because he did not request alternative relief, for example, under a quasi contract claim.

The defendant prevailed on the first count of the complaint, which sought damages for improper transfer of the condominium units, and the first count of the counterclaim, which sought the appointment of a receiver. The plaintiff prevailed on the second count of the complaint, which sought reconveyance of the eight condominium units to the partnership, and the third count of the counterclaim, which sought damages for breach of contract. The attorney trial referee concluded that the ruling on the first count of the counterclaim rendered the second count of the counterclaim, which sought partition of the remaining twenty-two condominium units, moot.

The defendant moved to correct the attorney trial referee’s report, pursuant to Practice Book (1998) §§ 19-12 and 19-14, as follows: (1) the referee’s reference to a business record admitted into evidence but “not for its truth” should be corrected to read the “report is evidence of the alleged agreement because it reflects moneys that were due to [the defendant] for the conversion”; (2) the “agreement” between the plaintiff and the partnership for a conversion fee, as alleged in the counterclaim, was improperly limited to an express contract when it properly included a claim for an implied in fact contract; (3) a September 20,1988 letter was evidence of the agreement regarding conversion expenses; (4) acts undertaken by the defendant manifest an intention on the part of the plaintiff to pay him a condominium conversion fee in the amount claimed; and (5) the defendant is entitled to recover $53,803.70 as the balance due for his conversion fee.

The attorney trial referee declined to make any substantive changes in her report or recommendations in response to the defendant’s motion to correct. The court adopted the report and rendered judgment in accordance with the report. The defendant now appeals from that judgment.

We begin by setting forth the applicable standards of review regarding questions of fact and issues of law. “It is axiomatic that [a] reviewing authority may not substitute its findings for those of the trier of the facts. This principle applies no matter whether the reviewing authority is the Supreme Court . . . the Appellate Court ... or the Superior Court reviewing the findings of . . . attorney trial referees. See Practice Book § 443 [now § 19-17] .... This court has articulated that attorney trial referees and factfinders share the same function . . . whose determination of the facts is reviewable in accordance with well established procedures prior to the rendition of judgment by the court. . . .

“The factual findings of a [trial referee] on any issue are reversible only if they are clearly erroneous. . . . [A reviewing court] cannot retry the facts or pass upon the credibility of the witnesses. ... 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.” (Citation omitted; internal quotation marks omitted.) Meadows v. Higgins, 249 Conn. 155, 162, 733 A.2d 172 (1999).

I

The defendant first claims that the court improperly accepted the attorney trial referee’s report over his objection, which was based on claims that the referee improperly failed to consider a document admitted into evidence as a full exhibit. We are not persuaded.

Schecter, who was appointed temporary receiver by agreement of the parties, generated an audit report that showed moneys due the defendant for the conversion. Schecter generated the report in response to the defendant’s concern that a third party who managed the apartment units, Charles Sabine, had overpaid himself for the process of converting the apartments to condominium units. Additional evidence on the contract claim considered by the attorney trial referee included an unsigned copy of a document on the defendant’s letterhead that the defendant claimed to be an agreement between himself and Gould dated September 21, 1988. The document stated that the defendant was to be paid $175,000 for services “pertaining to all phases of the condominium conversion.” There also was a computer printout from Sabine detailing conversion expenses. The defendant did not call Schecter as a witness to authenticate his report. The plaintiff testified that he had confronted the defendant after receiving the report as to the figure reflecting the defendant’s fees. The plaintiff also presented a letter sent to the defendant dated September 24, 1988, which indicated that the original agreement reflected the fees for the conversion.

The defendant’s claim focuses on the attorney trial referee’s statement that Schecter’s “report was entered as a business report and not for its truth.” The defendant claims that this statement establishes that the referee failed to accord the report the proper weight. The defendant does not contend that the referee improperly excluded the report.

It is without question that business records may be admitted under an exception to the hearsay rule. See State v. Berger, 249 Conn. 218, 230, 733 A.2d 156 (1999). It is further without question that “[h]earsay is an out-of-court statement offered for the truth of the matter asserted therein.” Rogers v. Board of Education, 252 Conn. 753, 767, 749 A.2d 1173 (2000). The statement by the attorney trial referee misstated evidentiary law. This misstatement as to the basis for admissibility is not, however, ground for reversal.

The attorney trial referee, as the trier of fact, made a number of statements regarding the evidence offered by the defendant. The referee directed her statements at the credibility of and the weight to be given to the evidence and testimony adduced by the defendant. “Nothing, of course, is more elementary than that the trier is the final judge of the credibility of witnesses and of the weight to be accorded their testimony.” (Internal quotation marks omitted.) Koennicke v. Maiorano, 43 Conn. App. 1, 14 n.13, 682 A.2d 1046 (1996). The context of the referee’s statement at issue reflects her intrinsic duty to determine the weight and credibility to be given to the evidence presented by the defendant.

Mindful of the role of the attorney trial referee to make credibility determinations, we conclude that the statement regarding the report is nothing more than such a determination and, accordingly, was not improper. The referee “was free to accept or reject any portion of the evidence presented by either party.” Coombs v. Phillips, 5 Conn. App. 626, 627, 501 A.2d 395 (1985). The decision of the attorney trial referee to accord the report lesser weight than the plaintiffs testimony is not improper. The defendant failed to support the report with testimony of the accountant who had created it. In contrast, the plaintiff testified before the attorney trial referee that he disagreed with the amount quoted in the report as due the defendant. We conclude that the determination of the attorney trial referee is properly characterized as an evaluation of the credibility and weight accorded to evidence and, as such, was proper.

II

The defendant next claims that the attorney trial referee improperly interpreted his third count as being solely a breach of express contract claim. The defendant argues that the court misconstrued the third count of his counterclaim and did not address his claim of breach of an implied in fact contract. We disagree and conclude that the pleadings are most accurately described as setting forth a claim for breach of an express contract.

“ [T]he interpretation of pleadings is always a question of law for the court .... We have pointed out that [t]he burden [is] upon the pleaders to make such averments that the material facts should appear with reasonable certainty; and for that purpose [the pleaders] were allowed to use their own language. Whenever that language fails to define clearly the issues in dispute, the court will put upon it such reasonable construction as will give effect to the pleadings in conformity with the general theory which it was intended to follow, and do substantial justice between the parties.” (Internal quotation marks omitted.) United Components, Inc. v. Wdowiak, 239 Conn. 259, 264, 684 A.2d 693 (1996).

The court, reviewing the report of the attorney trial referee, concluded that “[t]he counterclaim . . . did not contain an allegation of quasi contract, a contract implied in fact or unjust enrichment. The counterclaim was alleged and tried on the basis of an express, written contract. Therefore, the attorney trial referee was justified in refusing to award a conversion fee to the defendant Hall on some theory neither pleaded nor proved.” This construction by both the court and the attorney trial referee of the counterclaim as a breach of an express agreement claim is not unreasonable.

“A contract implied in fact depends on an actual agreement that there be an obligation created by law that imposes a duty to perform, and it may be inferred from words, actions or conduct. ... It is not fatal to a finding of an implied contract that there were no express manifestations of mutual assent if the parties, by their conduct, recognized the existence of contractual obligations. . . . Whether and on what terms a contractual commitment has been undertaken are ultimately questions of fact which, like any other findings of fact, may be overturned only if the trial court’s determinations are clearly erroneous.” (Citations omitted; internal quotation marks omitted.) Homecare, Inc. v. Acquarulo, 38 Conn. App. 772, 775, 663 A.2d 412 (1995).

The defendant’s offer of proof consisted of a letter that included an unsigned agreement between himself and the plaintiff dated September 21,1988. The counterclaim alleges that “[o]n or about September 30, 1988, the plaintiff agreed that the defendant, Robert A. Hall, Jr., was entitled to receive a condominium conversion fee . . . for his services in converting a seventy-three (73) unit apartment complex . . . .” The agreement produced is partially executed, signed only by the defendant and printed on the defendant’s letterhead, and states that the defendant would be paid $175,000 for his services. The counterclaim states that the defendant “was entitled to receive a condominium conversion fee of $175,000 . . . .” The remaining offer of proof consisted of a computer printout detailing conversion expenses, the Schecter report and the defendant’s testimony as to services performed. In light of the substantial similarity between the date and content of the letter agreement and the relevant date and content of the counterclaim, it was reasonable for the attorney trial referee and the court to limit the claim to breach of an express contract. We conclude, therefore, that the court properly limited the counterclaim to breach of an express agreement.

The judgment is affirmed.

In this opinion the other judges concurred.

       This action was brought against the defendant Robert A. Hall, Jr., in his individual capacity and as trustee. We refer to Robert Hall in his individual capacity as the defendant in this opinion.

       The business report in question cannot be construed as a nonhearsay statement, such as a verbal act, that is, evidence offered to show the declarant’s feelings or state of mind, a statement to show the effect on the hearer or reader, or a statement to test the credibility of a witness. See C. Tait & J. LaPlante, Connecticut Evidence (2d Ed. 1988) § 11.3, pp. 321-25.

       The attorney trial referee’s report states in relevant part: “ [The defendant] testified to having seen the original, fully executed letter in Sabine’s office, several weeks after its date. [The defendant’s] testimony on the issue of the agreement is hollow and lacking in credibility.

        “[The defendant] was an experienced attorney. Why would he not retain at least one fully executed original contract for his files, particularly when it involved issues of the nature and magnitude involved? [The defendant] was not believable in his testimony that he observed a copy of the fully executed agreement in Sabine’s office. He did not state that he requested the original agreement, for his own files, from Sabine, or even a copy.”
      With respect to the weight accorded the audit report, the attorney trial referee stated: “Schecter was not called as a witness, and he would have been the proper parly to authenticate the report. In addition, [the plaintiff] testified that he confronted [the defendant] after having received the report with concerns and questions as to [the defendant’s] fees. Schecter’s report does not prove [the defendant’s] claims for breach of contract.”

       The defendant’s counterclaim states in relevant part:
      “5. On or about September 30,1988, the plaintiff agreed that the defendant, Robert A. Hall, Jr., was entitled to receive a condominium conversion fee of $175,000 for his services in converting a seventy-three (73) unit apartment complex ....
      “6. The defendant was to be paid said fee at the rate of $2054.79 as each unit was sold and the balance of $25,000 to be paid upon the sale of the last unit.
      “7. Based upon the plaintiffs percentage ownership of the property that comprised said partnership, he is liable to the defendant for 72.5 [percent] of said fees.
      “8. Fifty-one (51) of the seventy-three (73) units have been sold entitling the defendant to a fee of $104,794.
      “9. The defendant has received $75,788.
      “10. The defendant is owed $29,006 for which the plaintiff is liable for $21,029.35.
      “11. The plaintiff is also liable to the defendant for the additional amount of $50,899.35 representing his percentage share of the balance of said conversion fee.”

       We also note that the defendant, having failed to establish an express agreement, failed to adhere to the requirement of Practice Book (1998) § 19-13, repealed as of January 1, 2000, to correct the attorney trial referee’s report when the referee omitted facts required to establish a contract implied in fact. The parties were bound by the rules of practice in place at the time of the action, which provided as follows: “The parties may seek additions and corrections to the facts contained in [the attorney trial referee’s] report by filing a motion to correct with the attorney trial referee pursuant to Practice Book § 438, now Practice Book ... § 19-12. After the attorney trial referee responds to any motions to correct, the parties may file with the 1 rial court exceptions to findings of fact pursuant to Practice Book § 439, now Practice Book ... § 19-13, or objections to factual conclusions or rulings pursuant to Practice Book § 440, now Practice Book ... § 19-14.” Kallas v. Harnen, 48 Conn. App. 253, 256, 709 A.2d 586, cert. denied, 244 Conn. 935, 717 A.2d 232 (1998). In the present case, the defendant did not file a motion pursuant to Practice Book § 19-13 to contest facts that the referee found or failed to find. Having failed to do so, he is limited to the facts in the record, which are inadequate to establish the existence of an implied in fact contract.