text:
    FLORENCE HAAS v. ARTHUR J. HAAS
    (AC 33569)
    Lavine, Sheldon and Peters, Js.

      Argued May 24 —
    officially released August 7, 2012

      David M. Wattman, for the appellant (defendant).

      Linnea J. Levine, for the appellee (plaintiff).
   Opinion

PETERS, J.

In the proper circumstances, a statute of limitations may be tolled under the continuous course of conduct doctrine to reflect the policy that, “during an ongoing relationship, lawsuits are premature because specific tortious acts or omissions may be difficult to identify and may yet be remedied.” (Internal quotation marks omitted.) Watts v. Chittenden, 301 Conn. 575, 583-84, 22 A.3d 1214 (2011). The dispositive issue in this appeal is whether the trial court properly applied the doctrine to toll the statute of limitations on an elderly mother’s claims against her son for mismanagement of her funds and concealment of his wrongdoing. We affirm the judgment of the court.

On February 17, 2011, the plaintiff, Florence Haas, filed a revised third amended complaint against the defendant, Arthur J. Haas, alleging claims for an accounting, fraud, constructive fraud and punitive damages. The defendant denied his liability and asserted a number of special defenses, alleging, inter alia, that the plaintiffs claims were barred by the applicable statute of limitations, General Statutes § 52-577. Following a court trial and a forensic accounting, the court, S. Freedman, J., rendered judgment in favor of the plaintiff on her claims for constructive fraud and punitive damages and on the defendant’s special defenses, finding that the statute of limitations was tolled by the continuing course of conduct doctrine. The defendant’s appeal challenges the propriety of the judgment rendered on the plaintiff’s claim for constructive fraud and the amount of damages awarded to the plaintiff.

I

FACTUAL FINDINGS OF THE TRIAL COURT

In its May 23, 2011 memorandum of decision, the court made extensive findings of fact that the defendant does not contest on appeal. At the time of the judgment, the plaintiff was an eighty-eight year old widow. The defendant is her son. Before she became widowed, the plaintiff had relied on her husband to manage her finances and investments. Following the death of the plaintiffs husband in 1986, the defendant assumed his father’s role in managing the plaintiffs financial affairs. The defendant, who was a certified public accountant, agreed to serve the plaintiff in a fiduciary capacity. The defendant’s duties included, inter alia, managing the plaintiffs investments and filing her tax returns. The defendant placed his own name on the plaintiffs brokerage accounts and, from 1986 to 2000, all account statements were sent directly to the defendant.

For five consecutive years, from 1991 to 1995, the defendant failed to prepare or file tax returns on behalf of the plaintiff. The defendant did not inform the plaintiff that he had failed to file her tax returns and falsely informed her that she was on extension for unfiled tax returns. During all of these years, the defendant failed to provide the plaintiff with an accounting of his dealings with her accounts, bills and taxes.

As a result of the defendant’s failure to file the plaintiffs tax returns, income from stock sales and dividends was attributed to the plaintiff, and she accumulated significant tax liabilities that went uncontested and unpaid. The Internal Revenue Service (IRS) began to levy on the plaintiffs assets. In 2000, the IRS seized approximately $70,400 from the plaintiffs brokerage account. Although the defendant, as the named account holder, was informed of the seizure, he took no action to reclaim the seized funds. Moreover, he failed to inform the plaintiff of the seizure and allowed the two year window for contesting the IRS takings to pass without informing the plaintiff or her attorney. In 2001, the IRS seized $49,118.98 from the plaintiffs retirement account and $8156.17 from the plaintiffs personal bank account. The IRS also issued garnishments against the plaintiffs social security retirement income and her wages from her part-time employment income and placed a tax hen on the plaintiffs home.

The plaintiff did not discover the defendant’s failure to file her tax returns until 2001, after she had retained an attorney, Samuel Starks, to help her with estate planning and to ascertain why she had stopped receiving her social security checks and why the IRS had placed a tax hen on her house. The defendant failed to respond to Starks’ numerous requests for information relating to the plaintiffs taxes and to identify assets belonging to the plaintiff that remained under the defendant’s control.

In April, 2002, Starks received a letter from the IRS asking for the plaintiffs year 2000 tax return and reflecting alleged stock sale income of $120,080 and dividend income of $5001. Starks was unable to file the plaintiffs 2000 tax return because the documentation needed to account for the stock sales and dividends was in the defendant’s possession, and the defendant refused to provide it. Starks filed the plaintiffs tax returns for 2001 through 2003, reporting the income actually received by the plaintiff during those years.

In 2004, the plaintiff retained a certified public accountant, Keith H. Dommreis, to prepare her tax returns. Dommreis prepared the plaintiffs delinquent tax returns starting with tax year 1996. Because the plaintiff had not received the income generated by stock sales reported to the IRS for years 1996 to 2000, Domm-reis attributed all income from sale of the plaintiffs stocks during those years to the defendant. According to Dommreis, the records disclosing the basis of the stock sales, which were needed to file proper tax returns, were in the defendant’s possession. All the refunds due to the plaintiff on income tax returns prepared by Starks and Dommreis were applied to her outstanding tax liabilities.

From 2001 to 2008, the plaintiff and her attorney made numerous requests of the defendant to identify assets belonging to the plaintiff that remained under his control and to release the plaintiffs financial and tax records. The defendant never responded to any of these requests and continued to withhold documents and information in his possession. At trial, the defendant attributed his failure to provide the requested information to his fear that he would be sued. He also claimed that relevant records had been lost as a result of a fire in his home in December, 2004. The court expressly found that the alleged fire was “not helpful to the defendant’s case.”

Even after the plaintiff filed the present action, in October, 2005, the defendant continued this pattern of withholding information by contesting the plaintiffs attempts to obtain pretrial discovery. The defendant did not produce the documents that established the basis for the sale of the plaintiffs stocks until 2008. The plaintiff did not learn the location and the amount of the plaintiffs brokerage accounts controlled by the defendant until June, 2008. The defendant did not disclose the IRS seizure of funds from the plaintiffs brokerage account to the plaintiff or her attorney until the first day of trial, August 19, 2008. The defendant repeatedly failed to produce personal financial records that were requested by the corut-appointed forensic accountant and delayed the production of other evidence. It was not until the last day of trial that the defendant finally produced a spreadsheet that outlined the stock transactions on the plaintiffs brokerage accounts between 1978 and 2001, including the basis of the stock sales.

In fight of these factual findings documenting the defendant’s continuing misconduct, the court concluded that the fiduciary relationship between the defendant and the plaintiff continued until the commencement of the 2008 trial, because, until that time, the defendant withheld significant and highly relevant information from the plaintiff. For a period of approximately twelve years, the defendant had withheld and refused to disclose information and documents in his possession that potentially could have reduced or eliminated the plaintiffs tax liabilities. The defendant’s deliberate concealment of evidence of his culpability for the plaintiffs losses demonstrated a course of continuing misconduct that tolled the applicable statute of limitations, § 52-577.

The court awarded the plaintiff damages in the amount of $206,117.34, representing the amounts levied on the plaintiffs assets and unaccounted for funds missing from the plaintiffs two brokerage accounts. The court also awarded the plaintiff punitive damages in the amount of $17,500, for a total award of $223,617.34.

II

THE DEFENDANT’S APPEAL

In his appeal to this court, the defendant claims that the trial court improperly (1) applied the continuing course of conduct doctrine to toll the statute of limitations on the plaintiffs claims and (2) awarded the plaintiff $45,522 in damages representing unaccounted for funds missing from the plaintiffs brokerage accounts. We affirm the judgment of the court.

A

The defendant’s principal claim on appeal is that the court improperly applied the continuing course of conduct doctrine to toll the three year statute of limitations governing the plaintiffs claims, § 52-577. We disagree.

The question of whether a party’s claim is barred by the statute of limitations is one of law subject to plenary review. Certain Underwriters at Lloyd’s, London v. Cooperman, 289 Conn. 383, 407-408, 957 A.2d 836 (2008). “The issue, however, of whether a party engaged in a continuing course of conduct that tolled the running of the statute of limitations is a mixed question of law and fact. . . . We defer to the trial court’s findings of fact unless they are clearly erroneous.” (Citation omitted.) Giulietti v. Giulietti, 65 Conn. App. 813, 833, 784 A.2d 905, cert. denied, 258 Conn. 946, 947, 788 A.2d 95, 96, 97 (2001).

“[F]actual findings of atrial court . . . are reversible only if they are clearly erroneous. . . . This 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. . . . We do not examine the record to determine whether the trier of fact could have reached a conclusion other than the one reached. Rather, we focus on the conclusion of the trial court, as well as the method by which it arrived at that conclusion, to determine whether it is legally correct and factually supported.” (Internal quotation marks omitted.) Id., 837.

“Section 52-577 applies to . . . actions alleging fraud. . . . It is a statute of repose in that it sets a fixed limit after which the tortfeasor will not be held hable and in some cases will serve to bar an action before it accrues. . . . Nonetheless, [w]hen the wrong sued upon consists of a continuing course of conduct, the statute does not begin to run until that course of conduct is completed. . . .

“[I]n order [t]o support a finding of a continuing course of conduct that may toll the statute of limitations there must be evidence of the breach of a duty that remained in existence after commission of the original wrong related thereto. That duty must not have terminated prior to commencement of the period allowed for bringing an action for such a wrong. . . . Where [our Supreme Court has] upheld a finding that a duty continued to exist after the cessation of the act or omission relied upon, there has been evidence of either a special relationship between the parties giving rise to such a continuing duty or some later wrongful conduct of a defendant related to the prior act. . . . The continuing course of conduct doctrine is conspicuously fact-bound. . . .

“In sum, a precondition for the operation of the continuing course of conduct doctrine is that the defendant must have committed an initial wrong upon the plaintiff. . . . Second, there must be evidence of the breach of a duty that remained in existence after commission of the original wrong related thereto. . . . [T]hat continuing wrongful conduct may include acts of omission as well as affirmative acts of misconduct . . . .” (Citations omitted; internal quotation marks omitted.) Id., 833-35.

In the present case, it is undisputed that the defendant initially violated his fiduciary obligations to the plaintiff by failing, in 1991 and for five consecutive years thereafter, to prepare and to file tax returns on her behalf. It is equally undisputed that the plaintiff discovered the defendant’s failure to file her taxes in 2001, and did not initiate litigation against the defendant until October, 2005. If nothing further had transpired in the relationship between the parties, the defendant properly could rely on the statute of limitations to bar the plaintiffs present cause of action. See General Statutes § 52-577 (“[n]o action founded upon a tort shall be brought but within three years from the date of the act or omission complained of’). The critical questions are, therefore, whether the court properly found that, between 2001 and 2005, the defendant engaged in further misconduct related to his initial wrongful acts and properly concluded that this subsequent misconduct tolled the running of the statute of limitations. See Jarvis v. Lieder, 117 Conn. App. 129, 148-49, 978 A.2d 106 (2009); Giulietti v. Giulietti, supra, 65 Conn. App. 833-34.

The court’s conclusion that the continuing course of conduct doctrine applied to toll § 52-577 was based on its factual findings of (1) a special relationship between the parties that gave rise to a continuing duty on the part of the defendant and (2) a pattern of continuing misconduct by the defendant that related back to his initial wrongful acts. The court’s pivotal determination was its finding that the defendant’s duty to the plaintiff was prolonged by the defendant’s active concealment and withholding of documents and information relating to his initial failure to file the plaintiffs taxes. This course of conduct continued until the time of the filing of the plaintiffs complaint and even thereafter, when the defendant deliberately resisted requests for discovery. Our review of the record persuades us that these factual findings are not clearly erroneous.

It is undisputed that the defendant, an accountant, assumed a fiduciary responsibility to act for the benefit of the plaintiff, his elderly and fiscally unsophisticated mother, in managing her financial affairs. The record reveals that the defendant was aware of the financial predicament that inevitably would result from his failure to file the plaintiffs taxes, but did not inform the plaintiff of his failure to act or advise her to seek the assistance of another accountant or a tax attorney. Moreover, the record reveals that the defendant actively concealed his misdeeds and impeded the plaintiffs efforts to discover the resultant harm. The defendant refused to provide the plaintiffs attorney with financial documents in his possession and refused to disclose the locations and amounts of the plaintiffs accounts that had remained under his control. He failed to cooperate in discovery prior to trial and continued to withhold significant information and documents after trial began.

“[T]he continuing course of conduct doctrine reflects the policy that, during an ongoing relationship, lawsuits are premature because specific tortious acts or omissions may be difficult to identify and may yet be remedied.” (Internal quotation marks omitted.) Watts v. Chittenden, supra, 301 Conn. 583-84; see Giulietti v. Giulietti, supra, 65 Conn. App. 834. This case presents precisely the relationship and the misconduct contemplated by such a policy. The defendant’s later misconduct deliberately made it difficult for the plaintiff to discover his initial wrongdoing and, once that wrongdoing came to light, made it difficult for her to obtain the information she needed to prosecute her claims. Given the court’s factual findings, which are supported by the record, we are persuaded that the court’s conclusion that the continuing course of conduct doctrine applied to toll the statute of limitations on the plaintiffs claims was legally correct.

B

The defendant also claims that the court improperly awarded the plaintiff $46,522 in damages representing unaccounted for funds missing from the plaintiffs two brokerage accounts. We disagree.

“[T]he trial court has broad discretion in determining damages. . . . The determination of damages involves a question of fact that will not be overturned unless it is clearly erroneous.” (Internal quotation marks omitted.) Bhatia v. Debek, 287 Conn. 397, 418-19, 948 A.2d 1009 (2008).

We conclude that there is sufficient evidence in the record to support the court’s damages award. Richard Finkel, the forensic accountant appointed by the court to conduct an accounting of the plaintiffs financial records, testified that he had examined every transaction from the plaintiffs two brokerage accounts from 1986 through 2000, and that he was able to account for all but $45,522 of the disbursements made from those accounts. Finkel testified that he had identified checks drawn on the plaintiffs brokerage accounts that were deposited into the defendant’s personal bank account. Although Finkel asked the defendant to provide him with copies of his personal bank account statements and checks, the defendant refused to provide statements from the years 1992, 1993 and 1999. The court was entitled to credit Fmkel’s testimony. See id., 419. Furthermore, the evidence adduced at trial supports the court’s finding that the defendant had exclusive access to the plaintiffs accounts. We conclude, therefore, that the trial court’s award of damages in the amount of $45,522, representing the unaccounted for funds missing from the plaintiffs brokerage accounts, was not clearly erroneous.

In sum, we conclude that the court properly applied the continuing course of conduct doctrine to toll the statute of limitations on the plaintiffs claims and properly awarded damages thereon.

The judgment is affirmed.

In this opinion the other judges concurred.

       The plaintiff commenced the present action against the defendant on October 19, 2005. In August, 2008, the case was tried to the court, J. R Downey, J., which ordered a forensic accounting and reserved judgment on the remaining claims and special defenses. Because Judge Downey left the judiciary before the completion of the case, pursuant to General Statutes § 51-183Í, the case was assigned to a successor judge, S. Freedman, J., to conclude the hearing of evidence and to render judgment on the ultimate issues. The plaintiffs revised third amended complaint was filed in accordance with the court’s request that the parties amend the pleadings pursuant to Practice Book § 10-1 to conform to the evidence and to better reflect the basis on which the case was tried and briefed.

       General Statutes § 52-577 provides: “No action founded upon a tort shall be brought but within three years from the date of the act or omission complained of.”

       The plaintiffs claim for an accounting was decided in the plaintiffs favor in 2008, when the court, J. R. Downey, J., ordered that a forensic accounting be conducted.

       The defendant lost his certified public accountant license in 1987, but did not inform the plaintiff of this fact. He continued to work as an accountant and to exercise complete control over the plaintiffs financial affairs.

       The defendant, in fact, failed to prepare or file tax returns on behalf of the plaintiff for ten consecutive years, from 1991 to 2000. The basis of the court’s judgment and award of damages is the defendant’s failure to file tax returns for years 1991 through 1995.

       Dommreis prepared the plaintiffs tax returns for years 1996 through 2000 using data reported to the IRS by third party reporting agencies. Domm-reis was unable to obtain reported data for years 1991 through 1995 and, for those years, substitute tax returns were prepared by the IRS, calculating the plaintiffs adjusted gross and taxable incomes and accessing tax thereon.

       The court stated: “The coincidence, if such it was, is not helpful to the defendant’s case. The alleged fire is seen against the background of the defendant’s refusal to cooperate with the plaintiffs attorneys; against the background of the defendant’s delaying to turn over requested documents needed by the plaintiff to rectify her situation with the IRS; against the background of the defendant’s failure to turn over the tax basis of stocks until the time of trial; against the background of a letter that the defendant produced at trial that the court found the plaintiff never received; and against the background of the defendant’s failure to come forward and reclaim and rescue the plaintiffs funds, although he had the information necessary to achieve that. Considering this background, the defendant’s testimony — that he had a fire in his house, that it happened to be in the area of the house where he had his office, and that it happened in the area of the office where the plaintiffs records were contained — is frankly overly suspicious. . . . [I]t is asking a lot to accept the heavy number of coincidences that the claim of destroyed documents entails. ... On the question of credibility, the defendant was his own worst enemy.” The defendant did not provide the plaintiff with financial documents that had survived the fire until 2008.

       As of October 7, 2007, the plaintiff had a combined state and federal tax liability of $160,595.34. Following a due process hearing, the IRS agreed to put a hold on any additional tax liens during the course of the plaintiffs lifetime, due to her inability to pay, but retained the right to seek a postdeath tax lien on the plaintiffs estate.

       The defendant does not dispute that the plaintiffs claims are governed by § 52-577.

       The defendant’s argument that the statute of limitations began to run in 2001 is unavailing in light of this later misconduct, which, while related to the defendant’s initial wrongful acts, does not flow from the same nucleus of facts known to the plaintiff in 2001. Cf. Mountaindale Condominium Assn., Inc. v. Zappone, 59 Conn. App. 311, 327, 757 A.2d 608 (violation of building code known to plaintiff in 1992 flowed from same nucleus of facts known to plaintiff in 1989), cert. denied, 254 Conn. 947, 762 A.2d 903 (2000).

       The defendant does not contest the $160,595.34 in damages, representing the amount levied on the plaintiffs assets by the state and federal governments, or the $17,500 in punitive damages awarded to the plaintiff.

       We are not persuaded by the defendant’s contention that the court improperly shifted the burden of proof to the defendant to prove that he was not responsible for the missing funds. The court, as trier of fact, is the sole arbiter of witness credibility and is entitled to adopt whatever testimony it reasonably believes to be credible. United Technologies Corp. v. East Windsor, 262 Conn. 11, 26, 807 A.2d 965 (2002).


source: Caselaw Access Project

author: SCHALLER, J.

license: Public Domain

text:
    KAREN GUERRI, ADMINISTRATOR (ESTATE OF CRAIG S. GUERRI) v. MARK FIENGO ET AL.
    (AC 33090)
    Robinson, Bear and Schaller, Js.

      Argued January 17 —
    officially released August 14, 2012

      Stephen M. Reck, with whom was Joseph P. Zeppieri, for the appellant (plaintiff).

      Thomas W. Boyce, with whom was Jennifer Antog-nini-O’Neill, for the appellee (named defendant).
   Opinion

SCHALLER, J.

The plaintiff, Karen Guerri, the administrator of the estate of Craig S. Guerri (decedent), appeals from the judgment of the trial court rendered after a jury verdict in favor of the defendant Mark Fiengo, a cardiologist. On appeal, the plaintiff claims that the court improperly refused to submit an allegation of negligence to the jury. Specifically, the plaintiff claims that the evidence presented at trial, in fact, did establish that the defendant had a duty to contact the decedent’s treating physician despite the absence of a “critical value” on the decedent’s electrocardiogram. We affirm the judgment of the trial court.

The following facts and procedural history are relevant to the present appeal. At approximately 8 a.m. on December 17, 2006, the decedent, suffering from chest pains and numbness in his left arm, went to the emergency room of the Pequot Treatment Center in Groton. Pursuant to established procedures, a triage nurse performed an electrocardiogram. The results of the electrocardiogram indicated an “abnormal result.” Michael Alper, a physician working in the emergency room at that time, reviewed the results of the electrocardiogram and examined the decedent. Apler subsequently diagnosed the decedent with atypical chest wall pain and discharged him. At approximately 10 a.m., the defendant, the on-call cardiologist at Lawrence and Memorial Hospital, received and reviewed a copy of the decedent’s electrocardiogram. The defendant concluded that no critical values were present and took no further action. On December 20, 2006, the decedent died. According to the testimony of the medical examiner, the cause of the decedent’s death was a myocardial infarction brought on by a spontaneous dissection of the coronary artery.

On March 16, 2009, the plaintiff commenced the present action against the defendant alleging medical malpractice. Paragraph 20 of the operative complaint, filed on June 10, 2010, alleged that the defendant was negligent in that he: “(a) failed to record a complete and accurate reading of the electrocardiogram that had been taken from the decedent . . . that morning, (b) failed to call the Pequot Treatment Center and/or the treating physician to report critical findings of the electrocardiogram, (c) failed to take steps to confirm whether or not [the decedent] was having a myocardial infarction and/ or [a] dangerous cardiac event, (d) failed to inform the Pequot Treatment Center and/or the treating physician that the [decedent] had suffered or may have suffered a myocardial infarction, (e) failed to take steps to properly diagnose [the decedent], (f) failed to take steps to properly treat [the decedent], (g) failed to follow the Lawrence and Memorial Hospital [p]olicy [on] [c]ritical [t]ests and [c]riticai [vjalues in that [the defendant] did not call the ordering physician to inform him of findings that could cause serious adverse outcomes to the [decedent], (h) failed to contact the Pequot Treatment Center and/or the treating physician to further discuss the [decedent], (i) failed to recommend that the Pequot Treatment Center immediately obtain serum troponin and cardiac enzyme levels on the blood of [the decedent], (j) failed to recommend that [the decedent] be admitted to the hospital and (k) improperly diagnosed [the decedent].”

At trial, the plaintiff offered the expert testimony of Mark Schiffer, a board certified cardiologist. On direct examination, the plaintiffs attorney questioned Schiffer about the standard of care applicable to each allegation of negligence contained in the complaint. Schiffer offered the following testimony relating to the allegation of negligence contained within paragraph 20 (b):

“Q. What is the standard of care regarding calling the emergency room doctor caring for the patients with . . . critical findings [on their electrocardiogram]?

“A. The standard of care requires the interpreting cardiologist to call the referring doctor, or the treating doctor, to inform him of the critical findings.”

Shortly thereafter, Schiffer offered the following testimony relating to the allegation of negligence contained within paragraph 20 (h):

“Q. What is the standard of care regarding the cardiologist’s duty to contact the people at [the] treatment center and/or the treating physician to further discuss issues concerning the patients?

“A. In the course of calling to report the critical findings, the standard of care would be to have a discussion if initiated by the treating physician regarding circumstances of the case to shed further light on the clinical situation to further aid the doctor in making the most accurate interpretation of the treating possible.”

During cross-examination, defense counsel asked Schiffer the following question: “[I]f the overreader reads the [electrocardiogram] and is of the opinion that it does not present evidence of a critical value then he was to record his interpretations and that interpretation then gets filed?” Schiffer responded, “Yes.” Defense counsel continued: “You’re not suggesting that every single [electrocardiogram] that has on it from the computer ‘abnormal’ requires the overreader to [contact] the ordering physician?” Schiffer responded, “Certainly not.”

On redirect examination, Schiffer expounded on this concept, indicating that some abnormalities represent a critical value and that these abnormalities require a call to the treating physician. Specifically, Schiffer testified: “[T]here axe certain abnormalities that rise to the level of being a critical value. And that is something that can be recognized by a cardiologist. And that when they see that critical value or type of abnormality that requires a call. That’s the standard of care not for minor abnormalities or things that could reasonably be expected to be a nonserious problem.”

After the close of evidence, the defendant objected to the court’s proposed jury instructions pertaining to the allegation of negligence set forth in paragraph 20 (h), arguing that the broadness of the allegation would require an overreading cardiologist to contact the treating physician in every circumstance but that the standard of care established by Schiffer’s testimony requires such contact only when a critical value is present. The court agreed and, accordingly, refused to instruct the jury on the allegation of negligence set forth in paragraph 20 (h). The jury subsequently returned a verdict in favor of the defendant. This appeal followed.

On appeal, the plaintiff claims that the court erred in concluding that Schiffer’s testimony did not demonstrate that the standard of care owed by the defendant as an overreading cardiologist included a duty to contact Alper despite the absence of a critical value. The plaintiff argues that, as a result, the court improperly prevented the jury from considering the allegation of negligence contained within paragraph 20 (h).

“Our standard of review concerning claims of instructional error is well settled. . . . The trial court must adapt its instructions to the issues raised in order to give the jury reasonable guidance in reaching a verdict and not mislead them. . . . Claims of error addressed to the [jury] charge are tested by the pleadings and by the evidence .... The court has a duty to submit to the jury no issue upon which the evidence would not reasonably support a finding. . . . The court should, however, submit to the jury all issues as outlined by the pleadings and as reasonably supported by the evidence.” (Citation omitted; internal quotation marks omitted.) Rua v. Kirby, 125 Conn. App. 514, 516-17, 8 A.3d 1123 (2010); see also DiLieto v. County Obstetrics & Gynecology Group, P.C., 297 Conn. 105, 136, 998 A.2d 730 (2010). “When reviewing atrial court’s decision that the evidence was not sufficient to support the submission of an issue to the jury, we must consider the evidence produced by the plaintiff in the light most favorable to him. . . . Whether the plaintiff has established a prima facie case entitling the plaintiff to submit a claim to a trier of fact is a question of law over which our review is plenary.” (Citation omitted.) DiStefano v. Milardo, 276 Conn. 416, 421-22, 886 A.2d 415 (2005).

The elements of a medical malpractice claim are well established. The plaintiff is required to prove the following by a preponderance of the evidence: “(1) the requisite standard of care for treatment, (2) a deviation from that standard of care, and (3) a causal connection between the deviation and the claimed injury.” (Internal quotation marks omitted.) Hayes v. Camel, 283 Conn. 475, 484, 927 A.2d 880 (2007). “Physicians are required to exercise the degree of skill, care, and diligence that is customarily demonstrated by physicians in the same line of practice. ... To prove that a physician has breached the standard of care, the plaintiff must produce some evidence that the conduct of the physician was negligent. . . . The plaintiff, generally, must present the testimony of expert witnesses to establish the applicable standard of care and the defendant’s failure to conform to this standard.” (Citations omitted; internal quotation marks omitted.) Dallaire v. Hsu, 130 Conn. App. 599, 604, 23 A.3d 792 (2011).

The allegation of negligence at issue in the present case is that the defendant “failed to contact the Pequot Treatment Center and/or the treating physician to further discuss the [decedent].” This paragraph alleges that an overreading cardiologist has a duty to discuss every electrocardiogram with the treating physician. The record contains no evidence supporting such a standard of care. Indeed, Schiffer’s testimony affirmatively indicates that the overreading cardiologist has a duty to contact the treating physician when a critical value is present. Specifically, when questioned directly by the plaintiffs attorney about the standard of care applicable to the allegation of negligence contained in paragraph 20 (h), Schiffer stated that “[i\n the course of calling to report the critical findings, the standard of care would be to have a discussion if initiated by the treating physician regarding circumstances of the case to shed further light on the clinical situation . . . (Emphasis added.)

The plaintiff contends that, despite the previously cited testimony of Schiffer, the standard of care required to support the allegation of negligence contained within paragraph 20 (h) may be found elsewhere in Schiffer’s testimony. Specifically, the plaintiff draws this court’s attention to a portion of Schiffer’s testimony regarding the issue of lead misplacement. On direct examination, Schiffer testified that when lead misplacement is suspected “there would be a phone call to the treating doctor saying this, you know, we cannot exclude that there is a heart attack going on here and even if there’s a potential of lead misplacement certainly the patient has to have another [electrocardiogram] to determine whether [the heart attack is] real or whether it’s due to an error in the way the test was performed.” The plaintiff claims that this testimony establishes a standard of care that requires an overreading cardiologist to contact the treating physician every time lead misplacement is suspected. Schiffer’s testimony, however, explicitly predicates the overreading cardiologist’s duty to contact the treating physician regarding the possibility of lead misplacement on the presence of a critical value, namely, readings indicative of an acute or ongoing heart attack. Consequently, this portion of Schiffer’s testimony does not support a standard of caxe that would have required the defendant to contact the decedent’s treating physician despite the absence of a critical value.

Absent evidence that the defendant possessed a duty to contact the decedent’s treating physician when no critical value was present, the court correctly concluded that the plaintiff failed to establish a prima facie case requiring the submission of the allegation of negligence contained within paragraph 20 (h) of the operative complaint to the jury.

The judgment is affirmed.

In this opinion the other judges concurred.

       The original complaint also named Fiengo’s employer, Lawrence and Memorial Hospital, Inc., as a defendant. The trial court consolidated the present action with a case filed by the plaintiff against Michael Alper, another physician who had rendered care to the decedent. On August 20, 2010, the plaintiff withdrew her claim against the hospital. On February 28, 2011, the plaintiff withdrew her claim against Alper. We refer to Feingo as the defendant hereafter.

       A “critical value” is defined in Lawrence and Memorial Hospital’s policy on critical tests and critical values as “[a]ny test value/level/interpretation where delay in reporting may cause serious adverse outcomes for patients.” Established hospital procedures require that “[a] list of critical values specific to the department will be maintained in the clinical laboratory, imaging services and cardiology departments, and is approved by the medical staff.” The hospital’s department of cardiology maintained a list stating that the following electrocardiogram results were considered “critical”: (1) malignant arrhythmia, (2) acute or recent unsuspected myocardial infarction, (3) pacemaker malfunction and (4) a “QT” segment interval of greater than five tenths of a millisecond. The plaintiff does not argue in the present appeal that the decedent’s electrocardiogram contained a critical value. See footnote 8 of this opinion.

       Approximately 80 percent of the electrocardiograms reviewed by the defendant each day contain an “abnormal result.”

       Electrocardiograms administered at the Pequot Treatment Center are forwarded electronically to Lawrence and Memorial Hospital to be reviewed by the on-call cardiologist. This process is known as “overreading.”

       We note that the transcripts and briefs filed with this court refer to this allegation by its designation in the original complaint, paragraph 20 (e). For the purposes of the present appeal, we refer to this allegation as it is numbered in the operative complaint.

       The allegations of negligence contained within subparagraphs (c), (e), (f), (h) and Q) of the operative complaint were not submitted to the jury. The plaintiffs sole claim in the present appeal relates to the allegation of negligence contained within paragraph 20 (h).

       According to the testimony offered at trial, lead misplacement occurs when the individual administering the electrocardiogram places the electronic leads in the incorrect location on the patient’s body. Such misplacement can cause errors in the electrocardiogram.

       The allegation that the defendant failed to contact the decedent’s treating physician to report the presence of a critical value was set forth in paragraph 20 (b) of the operative complaint and submitted to the jury as a separate claim of negligence. The court’s disposition of this allegation in favor of the defendant is not at issue in the present appeal. The plaintiffs sole claim of error is that the trial court erred in refusing to submit the allegation of negligence set forth in paragraph 20 (h) to the jury. The plaintiff does not argue in her brief that the decedent’s electrocardiogram contained a critical value.

       The plaintiff also draws this court’s attention to Schiffer’s statement that the particular abnormality contained within the decedent’s electrocardiogram, a condition known as “poor R wave progression,” indicates the presence of an “old myocardial infarction as recent as [twelve] hours old” and, consequently, requires a follow up with the treating physician. As with the discussion of lead misplacement set forth previously, Schiffer’s testimony that the decedent’s poor R wave progression required the defendant to contact the decedent’s treating physician is predicated on the conclusion that the decedent’s electrocardiogram was indicative of a recent unsuspected myocardial infarction. Like an acute myocardial infarction, a recent unsuspected myocardial infarction represents a critical value. See footnote 2 of this opinion. Again, the plaintiff does not claim that such a reading was contained on the decedent’s electrocardiogram. See footnote 8 of this opinion. Consequently, this testimony also does not establish a standard of care that would have required the defendant to contact the decedent’s treating physician despite the absence of a critical value.


author: ROBINSON, J.

text:
    MIREILLE DESROSIERS v. DIAGEO NORTH AMERICA, INC., ET AL.
    (AC 33235)
    DiPentima, C. J., and Robinson and Mihalakos, Js.

      Argued April 25 —
    officially released August 14, 2012

      John T. Bochanis, for the appellant (plaintiff).

      Kenneth W. Gage, for the appellee (named defendant).

      Michael J. Soltis and Akintokunbo Akinbajo filed a brief for the Connecticut Business and Industry Association, Inc., as amicus curiae.

      Todd D. Steigman and Justin E. Theriault filed a brief for the Connecticut Employment Lawyers Association as amicus curiae.

      Charles Krich, principal attorney, filed a brief for the commission on human rights and opportunities as amicus curiae.
   Opinion

ROBINSON, J.

The plaintiff, Mireille Desrosiers, appeals from the partial summary judgment rendered by the trial court in favor of the defendants Diageo North America, Inc. (Diageo), and Lawrence D. Levine. On appeal, the plaintiff claims that the court erred in granting in part the defendants’ motion for summary judgment (1) on the claim alleging discrimination based on a perceived disability because it improperly determined that a claim for discrimination based on a perceived disability does not exist in Connecticut, (2) on the claim for negligent misrepresentation because material questions of fact exist as to whether the defendants made negligent misrepresentations to her and (3) on the claim of promissory estoppel because material questions of fact exist as to whether the doctrine of promissory estoppel should have precluded the defendants from terminating the plaintiffs employment. We affirm the judgment of the trial court.

The following facts and procedural history are relevant to the resolution of the plaintiffs claims. Diageo is a producer of alcoholic beers, wines and spirits. The plaintiff began working for Diageo in 1993. When Diageo merged with another alcoholic beverages company in 2001, the plaintiffs position was eliminated, however, Levine allowed the plaintiff to serve in the position of a value added packaging buyer.

Diageo had a formal performance evaluation program in place in which an employee could receive a ranking of below expectations, satisfactory, fully meets expectations or exceeds expectations. In February, 2004, the plaintiff was rated as satisfactory. In April, 2004, the plaintiff was still struggling in the new position; therefore, Levine drafted a document entitled “Mireille’s Key Criteria and Deliverables,” which listed five areas where the plaintiff needed to improve. In the August, 2004 evaluation, Levine rated the plaintiffs performance as below expectations. In September, 2004, the plaintiff was evaluated and informed that certain aspects of her job performance were still inadequate as she had only met two of her five goals. The plaintiff thereafter was placed in a ninety day performance improvement plan prepared for her by Levine. On November 17, 2004, the plaintiff met with Levine to talk about her progress. According to the plaintiffs affidavit, Levine informed her that her progress was satisfactory, she was no longer in need of the performance improvement plan and she no longer had to worry about the criteria stated in the document delivered to her in September, 2004.

The plaintiff took vacation time from December 21, 2004 through January 4, 2005. When the plaintiff returned to work on January 4, 2005, she informed Levine that she would need to take time off from work to undergo surgery for a tumor on her right shoulder. On January 5, 2005, Levine informed the plaintiff that her employment was terminated. The defendants’ stated reason for terminating her employment was that her performance had not sufficiently improved.

The plaintiffs amended complaint sets forth five counts against the defendants. The first three counts alleged disparate treatment discrimination under General Statutes § 46a-51 et seq. The third count of the complaint alleged that the plaintiff was discriminated against on the basis of her physical disability and/or her perceived disability. The fourth and fifth counts of the complaint alleged negligent misrepresentation and promissory estoppel, respectively.

On May 3, 2010, the defendants filed a motion for summary judgment. On September 9, 2009, the court granted the defendants’ motion for summary judgment on counts one, two, four and five. As to count three, the court granted the defendants’ motion for summary judgment to the extent that it alleged a cause of action based on a perceived disability, but denied the motion as to the allegation of discrimination based on a physical disability. In its memorandum of decision on the defendants’ motion for summary judgment, the court expressly determined that “a cause of action based on a perceived disability is not a legally recognized action in Connecticut.” A jury trial was held on the remainder of count three, resulting in a verdict in favor of the defendants. This appeal followed. Additional facts will be set forth where necessary.

Our standard of review for summary judgment is well settled. “Practice Book § 17-49 provides that summary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party. . . . The party moving for summary judgment has the burden of showing the absence of any genuine issue of material fact and that the party is, therefore, entitled to judgment as a matter of law. . . . Our review of the trial court’s decision to grant [the defendants’] motion for summary judgment is plenary.” (Internal quotation marks omitted.) Plato Associates, LLC v. Environmental Compliance Services, Inc., 298 Conn. 852, 862, 9 A.3d 698 (2010).

“The party opposing a motion for summary judgment must present evidence that demonstrates the existence of some disputed factual issue .... The movant has the burden of showing the nonexistence of such issues but the evidence thus presented, if otherwise sufficient, is not rebutted by the bald statement that an issue of fact does exist. ... To oppose a motion for summary judgment successfully, the nonmovant must recite specific facts . . . which contradict those stated in the movant’s affidavits and documents. . . . The opposing party to a motion for summary judgment must substantiate its adverse claim by showing that there is a genuine issue of material fact together with the evidence disclosing the existence of such an issue.” (Internal quotation marks omitted.) Gianetti v. Health Net of Connecticut, Inc., 116 Conn. App. 459, 464-65, 976 A.2d 23 (2009).

I

The plaintiffs first claim on appeal is that the court erred in granting the defendants’ motion for summary judgment in part on count three when it concluded that a claim for discrimination based on a perceived physical disability does not exist in Connecticut. The plaintiff argues that a claim for discrimination based on a perceived disability exists under General Statutes § 46a-60 (a). We disagree.

Generally, when confronted with an issue of statutory interpretation we look to General Statutes § l-2z to guide our analysis. Francis v. Fonfara, 303 Conn. 292, 297, 33 A.3d 185 (2012). The plaintiff, however, cites Curry v. Allan S. Goodman, Inc., 286 Conn. 390, 403, 944 A.2d 925 (2008), in which our Supreme Court, in determining whether § 46a-60 (a) (1) imposes on employers the duty to provide reasonable accommodations to disabled employees, determined that its analysis was not limited by § l-2z. The court in Curry noted that “[w]hen ... a statutory provision is silent with respect to [the issue at hand], our analysis is not limited by ... § l-2z, which provides that the meaning of statutes shall be ascertained from only their text and their relationship to other statutes if those sources reveal an unambiguous meaning that is not absurd or unworkable. ... In addition to the words of the statute itself, we look 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.” (Citation omitted; internal quotation marks omitted.) Id., 407. Because § 46a-60 was silent with respect to reasonable accommodations, the court in Curry looked to the legislative history and circumstances surrounding its enactment in reaching its decision. Id., 408.

In the present case, the plaintiff claims that she was discriminated against on the basis of a perceived disability in violation of § 46a-60. Section 46a-60 (a) provides in relevant part: “It shall be a discriminatory practice in violation of this section: (1) For an employer, by the employer or the employer’s agent, except in the case of a bona fide occupational qualification or need, to refuse to hire or employ or to bar or to discharge from employment any individual or to discriminate against such individual in compensation or in terms, conditions or privileges of employment because of the individual’s race, color, religious creed, age, sex, gender identity or expression, marital status, national origin, ancestry, present or past history of mental disability, intellectual disability, learning disability or physical disability, including, but not limited to, blindness . . . .” The plaintiff urges this court to follow Curry and to look at the pertinent legislative history in determining whether § 46a-60 provides protection for those who are regarded as physically disabled, because § 46a~60 is silent with respect to that issue. Although § 46a-60 does not reference the phrase “regarded as,” we must also look to the definitions of the statute’s relevant terms found in § 46a-51. Section 46a-51 (15) defines the term “physically disabled” and the definition is silent as to whether it covers those who are regarded as disabled by their employer. At the same time, however, § 46a-51 (20), which defines “mental disability,” does in fact use the phrase “regarded as” in its definition. The present case, therefore, is distinguishable from Curry, where the phrase “reasonable accommodations” was entirely absent from the relevant statutory scheme. In the present case, the legislature chose to use the phrase “regarded as” in its definition of “mental disability,” and that definition is found in the same section as the definition of “physically disabled.” As a result, we cannot say that the statutory provision is silent with respect to the issue at hand as it was in Curry. We therefore look to § l-2z to guide our analysis.

“When construing a statute, [o]ur fundamental objective is to ascertain and give effect to the apparent intent 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 [the] case, including the question of whether the language actually does apply. ... In seeking to determine that meaning ... § l-2z directs us first to consider the text of the statute itself and its relationship to other statutes. If, after examining such text and considering such relationship, the meaning of such text is plain and unambiguous and does not yield absurd or unworkable results, extra-textual evidence of the meaning of the statute shall not be considered. . . . When a statute is not plain and unambiguous, we also look for interpretive guidance 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.) Francis v. Fonfara, supra, 303 Conn. 297.

We begin our review with the text of the relevant statutory provisions. As previously stated, in order to properly interpret § 46a-60, we must look to the definition of “physically disabled” found in § 46a-51 (15). Section 46a-51 (15) defines “physically disabled” as “any individual who has any chronic physical handicap, infirmity or impairment, whether congenital or resulting from bodily injury, organic processes or changes or from illness, including, but not limited to, epilepsy, deafness or hearing impairment or reliance on a wheelchair or other remedial appliance or device . . . .”

Physically disabled is therefore defined under the provision as any individual who has any chronic physical handicap, infirmity or impairment. There is no language in the provision that supports an interpretation that it includes those who may be regarded as disabled by their employers. Rather, the use of the word “has” by the legislature evinces the intent to protect those who actually suffer from some type of handicap, infirmity or impairment, not those whose employer may incorrectly regard as being disabled. “The test to determine ambiguity is whether the statute, when read in context, is susceptible to more than one reasonable interpretation.” (Internal quotation marks omitted.) Francis v. Fonfara, supra, 303 Conn. 297. When reading the statutory language at issue, § 46a-51 (15) is not susceptible to more than one reasonable interpretation. Rather, the language clearly demonstrates that it protects those who are physically disabled, and no language is used to support an interpretation that it also protects those who are regarded as physically disabled.

Furthermore, to conclude that the language used in § 46a-51 (15) allows for an inteipretation that § 46a-60 protects those who are regarded as physically disabled, would render the language used in § 46a-51 (20) superfluous. It is a “basic tenet of statutory construction that the legislature [does] not intend to enact meaningless provisions. . . . [I]n construing statutes, we presume that there is a purpose behind every sentence, clause, or phrase used in an act and that no part of a statute is superfluous. . . . Put differently, [t]he use of the different terms . . . within the same statute suggests that the legislature acted with complete awareness of their different meanings . . . and that it intended the terms to have different meanings . . . .” (Citation omitted; internal quotation marks omitted.) Felician Sisters of St. Francis of Connecticut, Inc. v. Historic District Commission, 284 Conn. 838,849-50,937 A.2d 39 (2008). The legislature explicitly chose to include the phrase “regarded as” in its definition of mental disability. To conclude that the language of § 46a-51 (15) allows for § 46a-60 to provide protection for those who are regarded as physically disabled by their employers would cause the phrase in § 46a-51 (20) to have no meaning. After examination of the definition of “physically disabled,” we conclude that the text of § 46a-60 is clear and unambiguous in that it does not cover claims of discrimination based on a perceived physical disability. We therefore conclude that the court did not err in granting the defendants’ motion for summary judgment on the plaintiffs claim of discrimination based on a perceived disability.

II

The plaintiffs next claim on appeal is that the court erred in granting the defendants’ motion for summary judgment on count four of her complaint, which alleged negligent misrepresentation. She argues that sufficient questions of material fact exist as to whether the defendants made negligent misrepresentations to her. We disagree.

The following additional facts are necessary for resolution of the plaintiffs claim. In her amended complaint, the plaintiff alleged that the defendants “represented to the [p]laintiff that she satisfactorily completed her probationary period in her . . . position and was satisfactorily performing her work for the [defendants . . . and as a result the [defendants represented that they would continue to employ the [p]laintiff in the . . . position.” The defendants do not dispute the plaintiffs statement in her affidavit that “on November 17, 2004 at a meeting held with my manager, Lawrence D. Levine, I was told my progress was satisfactory, I was no longer in need of the performance improvement plan, and I no longer had to worry about the criteria stated in the memo delivered to me on September 15, 2004.” According to Levine’s affidavit, by December 1, 2004, however, he concluded that the plaintiffs performance had not sufficiently improved.

In its memorandum of decision, the court first noted that the plaintiff was an at-will employee. The court concluded that before determining whether there exists a genuine issue of material fact as to whether Levine knew or should have known that the statement he made to the plaintiff was false, the issue was whether the plaintiff, as an at-will employee, could have justifiably relied on Levine’s statement. The court concluded that “Levine did not make to the plaintiff any guarantee of employment or otherwise alter her status as an at-will employee.” Therefore, the court determined that Levine’s statement did not constitute negligent misrepresentation and granted summary judgment on that count.

“Our Supreme Court has long recognized liability for negligent misrepresentation. . . . The governing principles [of negligent misrepresentation] are set forth in similar terms in § 552 of the Restatement (Second) of Torts (1977): One who, in the course of his business, profession or employment . . . supplies false information for the guidance of others in their business transactions, is subject to liability for pecuniary loss caused to them by their justifiable reliance upon the information, if he fails to exercise reasonable care or competence in obtaining or communicating the information.” (Internal quotation marks omitted.) Rafalko v. University of New Haven, 129 Conn. App. 44, 52, 19 A.3d 215 (2011). A plaintiff is also required to show that he reasonably relied on the misrepresentation. Id.

The plaintiff contends that she relied on Levine’s representation that she was performing her work in a satisfactory manner to her detriment and remained employed with Diageo with the expectation that she would not be discharged for any performance issues. The defendants contend that the record demonstrates that the plaintiff did not reasonably or detrimentally rely on the statement made by Levine. We agree with the defendants.

“In Connecticut, an employer and employee have an at-will employment relationship in the absence of a contract to the contrary. Employment at will grants both parties the right to terminate the relationship for any reason, or no reason, at any time without fear of legal liability-” (Internal quotation marks omitted.) Thibodeau v. Design Group One Architects, LLC, 260 Conn. 691, 697-98, 802 A.2d 731 (2002). In reaching its conclusion that Levine’s statement did not constitute negligent misrepresentation, the trial court relied upon Petitte v. DSL.net, Inc., 102 Conn. App. 363, 952 A.2d 457 (2007). We also find that case instructive.

In Petitte, the plaintiff alleged that a letter from the defendant offering him a position constituted negligent misrepresentation when the defendant had not yet consulted with the plaintiffs references. Id., 372. The defendant rescinded its offer three days later on the basis of the information received from the plaintiff’s references. Id., 366. On appeal, this court determined that the employment offer did not constitute negligent misrepresentation because the offer did not guarantee employment and it explicitly stated that the employment was at will, and therefore “the plaintiffs reliance on the letter as a guarantee of employment was not justifiable as a matter of law.” Id., 373. This court stated: “As noted by the [trial] court, ‘the offer letter was fraught with risk because [the defendant] reserved unfettered discretion to end the employment relationship at any time.’ ” Id. This court therefore affirmed the trial court’s rendering of summary judgment as to the plaintiffs negligent misrepresentation claim. Id.

Although Levine indicated that the plaintiffs performance may no longer have been in need of improvement, his statement did not alter the fact that the plaintiff was an employee at will. Levine’s statement did not change the terms of the plaintiffs employment; she still could be terminated for any reason or no reason at any time. As in Petitte, although the plaintiff may have been encouraged by Levine’s statement that her work was now satisfactory, her reliance on the statement was not justifiable when Diageo still reserved the “unfettered discretion to end the employment relationship at any time.” (Internal quotation marks omitted.) Id. We therefore conclude that summary judgment was properly rendered as to the plaintiffs negligent misrepresentation claim.

Ill

The plaintiffs last claim on appeal is that the court erred in granting the defendants’ motion for summary judgment on her promissory estoppel claim. She contends that material questions of fact exist as to whether the doctrine of promissory estoppel should have precluded the defendants from terminating her employment. We disagree.

The plaintiff’s claim of promissory estoppel stems from the same statement she relied on for her negligent misrepresentation claim, namely, Levine’s statement to her that her progress was satisfactory and that she was no longer in need of the performance improvement plan. In its memorandum of decision, the court concluded that even if Levine’s statement was considered a clear and definite promise, Levine would have had no objective reason to expect the plaintiff to rely on it. The court thereafter granted the defendants’ motion for summary judgment on that count.

“Under the law of contract, a promise is generally not enforceable unless it is supported by consideration. . . . [Our Supreme Court] has recognized, however, the development of liability in contract for action induced by reliance upon a promise, despite the absence of common-law consideration normally required to bind a promisor. . . . Section 90 of the Restatement [(Second) of Contracts] states that under the doctrine of promissory estoppel [a] promise which the promisor should reasonably expect to induce action or forbearance on the part of the promisee or a third person and which does induce such action or forbearance is binding if injustice can be avoided only by enforcement of the promise. ... A fundamental element of promissory estoppel, therefore, is the existence of a clear and definite promise which a promisor could reasonably have expected to induce reliance. Thus, a promisor is not hable to a promisee who has relied on a promise if, judged by an objective standard, he had no reason to expect any reliance at all.” (Internal quotation marks omitted.) Saye v. Howe, 92 Conn. App. 638, 647-48, 886 A.2d 1239 (2005).

The plaintiff argues that Levine’s statement constituted a promise that her employment would be secure and that there were no longer any performance issues with her work. The plaintiff relies on Stewart v. Cendant Mobility Services Corp., 267 Conn. 96, 837 A.2d 736 (2003), to support her argument that the representation in the present case was clear and definite and constituted a promise on which she reasonably could have relied. In Stewart, the plaintiff asked her defendant employer whether it would affect her employment if her husband secured employment with a competing firm. Id., 103. The defendant apprised her that it had no concerns about her husband working for a competing firm and assured her that she was a highly valued employee. Id. After her husband began working for a competing firm, the defendant reduced the plaintiffs duties and ultimately terminated her employment. Id., 100. On appeal, our Supreme Court determined that there was sufficient evidence to constitute a claim for promissory estoppel. Id., 106. The court determined that the defendant’s representations were sufficiently clear and definite to constitute a promise that her employment would not be affected adversely by her husband’s employment with a competitor. Id. The court further determined that the plaintiff detrimentally relied upon the defendant’s representations when she chose to remain employed with the defendant despite other available employment opportunities where she could have received a signing bonus of approximately $812,700. Id., 112.

The plaintiff argues that in the present case, like in Stewart, Levine’s representation constituted a promise on which the plaintiff reasonably could have relied. The plaintiffs reliance on Stewart, however, is misplaced. In Stewart, the plaintiff went to her employer with a specific issue and was reassured that this issue would not affect her employment. In the present case, the plaintiff had continuously been performing at an unsatisfactory level and was taken off of the performance improvement plan by Levine when her work was satisfactory. Unlike in Stewart, there was no express promise made to the plaintiff that her future employment with Diageo was secure.

Furthermore, the statement was not one which Levine reasonably would have expected the plaintiff to rely on. After numerous performance issues, Levine apprised the plaintiff that her work was satisfactory and she no longer needed to be on the performance improvement plan. A reasonable person in Levine’s position would not expect that this statement would cause the plaintiff to rely on it as a promise of secured employment with Diageo. The plaintiff was an employee at will, and nothing in Levine’s statement was indicative of a promise of future employment. We therefore conclude that summary judgment was properly rendered as to the plaintiffs promissory estoppel claim.

The judgment is affirmed.

In this opinion the other judges concurred.

       Summary judgment was rendered on all but one count of the plaintiffs amended complaint. Nevertheless, a trial on the remaining count was held and judgment was rendered in favor of the defendants prior to the filing of the present appeal.

       The plaintiff named Colleen Ooten as an additional defendant. The trial court concluded that neither the original nor amended complaints contained any allegations of conduct by Ooten for which she may be individually liable, and, therefore, Ooten was a defendant in name only. The court’s conclusion as to Ooten was not appealed by the plaintiff. Therefore, for the purposes of this appeal, we refer to Diageo and Levine as the defendants.

       The defendants described this position as “the practice of repackaging [Diageo’s] products for holidays, special occasions, or other promotions.”

       The first count alleged that the plaintiff was discriminated against on the basis of her race, color and national origin. The second count alleged that the plaintiff was discriminated against on the basis of her age.

       General Statutes § 46a-51 (15) defines “physically disabled” as “any individual who has any chronic physical handicap, infirmity or impairment, whether congenital or resulting from bodily injury, organic processes or changes or from illness, including, but not limited to, epilepsy, deafness or hearing impairment or reliance on a wheelchair or other remedial appliance or device . . . .”

       General Statutes § 46a-51 (20) defines “mental disability” as “an individual who has a record of, or is regarded, as having one or more mental disorders, as defined in the most recent edition of the American Psychiatric Association’s‘Diagnostic and Statistical Manual of Mental Disorders’ . . . (Emphasis added.)

       We note that the plaintiff has proffered numerous policy reasons to support her argument that § 46a-60 should be interpreted to protect those who are regarded as physically disabled by their employers. We consistently have held, however, that “the task of changing the law lies with the legislature, and not with the judiciary. In construing a statute, the cardinal principle of construction is to ascertain the intent of the legislature. If an act passed by the legislature is within its constitutional power, it is not the business of the court to attempt to twist the interpretation of the law to conform to the ideas of the judges as to what the law ought to be or to attempt to make the law coincide with their ideas of social justice. The judicial function should not invade the province of the legislature.” (Internal quotation marks omitted.) Director of Health Affairs Policy Planning v. Freedom of Information Commission, 293 Conn. 164, 182, 977 A.2d 148 (2009).


author: ALVORD, J.

text:
    SCOTT E. HURLBURT v. SCOTT D. DEROSA ET AL.
    (AC 33890)
    Gruendel, Lavine and Alvord, Js..

      Syllabus

      Argued June 1 —
    officially released August 14, 2012

      Thomas E. Cronan, for the appellant (plaintiff).

      Alan J. Tyma, for the appellees (defendants).

      Bridget M. Ciarlo, for the appellee (named defendant).
   Opinion

ALVORD, J.

This action involves a claimed drainage easement over property owned by the defendants, Scott D. DeRosa, Carl F. DeRosa, Patricia A. DeRosa and Cori DeRosa Quirk. The plaintiff, Scott E. Hurlburt, appeals from the judgment of the trial court rendered after the granting of the defendants’ motion for a judgment of dismissal for failure to make out a prima facie case. Specifically, the plaintiff claims that the court (1) misapplied the legal standard required for a dismissal under Practice Book § 15-8 and (2) improperly determined that he failed to provide evidence of harm or damage by the defendants’ interference with his right to drain surface waters across their property. We affirm the judgment of the trial court.

In September, 2008, the plaintiff commenced this action against the defendants seeking monetary damages, injunctive relief and a judgment quieting title in the plaintiff with respect to his claimed right to drain surface waters across the defendants’ property. The plaintiffs six count complaint alleged intentional obstruction of a drainage easement, negligent obstruction of a drainage easement, nuisance, trespass and breach of warranty covenants. The sixth count, captioned “Quiet Title,” alleged that the defendants claimed estates or interests that were adverse to the plaintiffs title.

The plaintiff presented the following evidence at trial, which we view in the light most favorable to him. See Sullivan v. Thorndike, 104 Conn. App. 297, 299, 934 A.2d 827 (2007), cert. denied, 285 Conn. 907, 908, 942 A.2d 415, 416 (2008). The plaintiff is the owner of property located at 888 Indian Hill Road in Orange, which is described in his 1994 deed of conveyance as lot 123 and a portion of lot 124 as shown on a 1942 revised map of Indian Hill Estates. The legal description of his property includes the following language: “Together with an agreement contained in a deed from Harry B. Cook to Cullen B. Snell, dated July 6,1937, and recorded in Volume 148, Page 520 of the Orange Land Records.” The agreement in the 1937 deed provides: “It is hereby understood and agreed between the parties hereto and their respective heirs and assigns, that within a reasonable time they shall cooperate in opening the natural water course extending over the piece hereby conveyed [lot 133 on the map of Indian Hill Estates] so as to drain any surface water from Lots Nos. 123 and 124 shown on said Map, and in maintaining said water course to so drain said Lots.” Lot 133, over which the plaintiff claims the right to drain surface waters from his property, is now owned by one or more of the defendants and was acquired by warranty deed recorded in May, 2000. The defendants’ deed did not reference the drainage rights contained in the 1937 deed.

In 2005, the plaintiff deposited fill on his property to eliminate some of the pitch from the existing swale, and he also raised the elevation at the rear of his yard with stones to create a hole that was approximately one and one-half feet deep (Hurlburt hole). The Hurlb-urt hole is at the southerly edge of the plaintiffs property and is partially located on the defendants’ property. The plaintiff connected gutters from his house to a twelve inch reinforced concrete pipe on his property, and water from that pipe and the plaintiffs modified swale flows into the Hurlburt hole. The water that flows into the Hurlburt hole empties into an underground twelve inch reinforced concrete pipe that goes through the defendants’ property. The piping has a life expectancy of between twenty-five and fifty years.

In 2007, the defendants graded the rear yard of lot 133 by depositing between 100 and 200 cubic yards of fill. They wanted to even the level of the yard by filling in the lower areas as they removed weeds and trash from the premises. According to John Paul Garcia, a licensed professional engineer, the defendants’ grading operations changed the previously existing topographical conditions that existed in the rear portion of lot 133. One witness testified that the fill raised the elevation of the rear portion of lot 133 to a point at least two feet higher than the lowest elevation at the rear of the plaintiffs property. The plaintiff testified that the change in topographical conditions caused by the defendants’ actions has interfered with the use of his deeded drainage easement and has resulted in an increase of surface waters on his property. The plaintiff presented evidence that on at least two occasions, surface water backed up onto his property.

The plaintiff withdrew his nuisance claim and his request for actual damages during his case-in-chief. He pursued his claim for punitive damages for the obstruction of the drainage easement, injunctive relief to prevent the defendants’ future interference with the drainage easement and a judgment quieting title in the plaintiff to the right to drain surface waters across the defendants’ property. The plaintiff did not withdraw the counts alleging trespass and breach of warranty covenants. At the close of the plaintiffs case, the defendants orally moved for a judgment of dismissal pursuant to Practice Book § 16-8 for failure to make out a prima facie case. The court heard argument by the parties and ordered them to submit briefs addressed to the defendants’ motion for a judgment of dismissal.

On September 6, 2011, the court issued its memorandum of decision. With respect to the first two counts alleging intentional and negligent obstruction of a drainage easement, the court concluded that the plaintiff failed to make out a prima facie case that he had an easement because there was no evidence that there had been a natural watercourse on the defendants’ property. Further, the court stated that even if the plaintiff had submitted sufficient evidence regarding the existence of a natural watercourse, he had not shown irreparable damage or imminent harm from the claimed obstruction of the easement. The plaintiffs trespass count, alleging an increase in the flow of surface waters on his property, failed because there was no evidence of direct injury resulting from the defendants’ actions. The third party beneficiary claim, alleging the breach of warranty covenants with respect to the drainage easement, likewise failed because of the lack of evidence to support the existence of a natural watercourse. Finally, the court dismissed the quiet title claim because the plaintiff “failed to present sufficient evidence during his casein-chief to establish that the defendants acted unreasonably so as to cause any harm or imminent injury to the plaintiff.” For those reasons, the court dismissed the five remaining counts of the plaintiffs complaint. This appeal followed.

“The standard for determining whether the plaintiff has made out a prima facie case, under Practice Book § 16-8, is whether the plaintiff put forth sufficient evidence that, if believed, would establish a prima facie case, not whether the trier of fact believes it. ... In testing the sufficiency of the evidence, the court compares the evidence with the allegations of the complaint. ... In order to establish a prima facie case, the proponent must submit evidence which, if credited, is sufficient to establish the fact or facts which it is adduced to prove. . . . [T]he evidence offered by the plaintiff is to be taken as true and interpreted in the light most favorable to [the plaintiff], and every reasonable inference is to be drawn in [the plaintiffs] favor.” (Citations omitted; emphasis in original; internal quotation marks omitted.) Gambardella v. Apple Health Care, Inc., 86 Conn. App. 842, 846, 863 A.2d 735 (2005). Whether the plaintiff has made out a prima facie case is a question of law, over which our review is plenary. Cadle Co. v. Errato, 71 Conn. App. 447, 456, 802 A.2d 887, cert. denied, 262 Conn. 918, 812 A.2d 861 (2002).

I

The plaintiffs first claim is that the court misapplied the legal standard required for a judgment of dismissal under Practice Book § 15-8. At oral argument before this court, the plaintiff conceded that the court set forth the proper standard in its memorandum of decision. The plaintiff argues, however, that the court failed to apply the standard that it articulated. He claims that the evidence presented during his case-in-chief was sufficient to satisfy the low threshold for making out a prima facie case.

In reviewing the plaintiffs claim, we must compare the evidence admitted at trial with the allegations of the complaint. With respect to three of the remaining five counts, the plaintiff pleaded that he had the right to drain surface waters over the defendants’ property by virtue of a drainage easement created in a 1937 deed. Those three counts alleged intentional obstruction of a drainage easement, negligent obstruction of a drainage easement and third party beneficiary rights arising from the warranty covenants in the chain of title that included the right to drain in the 1937 deed. The drainage easement, on which all of these claims are based, expressly provides that the parties, and their heirs and assigns, were to “cooperate in opening the natural water course extending over [lot 133] so as to drain any surface water from Lots Nos. 123 and 124 . . . and in maintaining said water course to so drain said Lots.” (Emphasis added.) The court concluded that the plaintiff failed to present sufficient evidence to establish his right to enforce the drainage easement because he failed to present evidence that a natural watercourse was on the defendants’ property or had ever been on the defendants’ property. Our careful review of the record supports the court’s determination.

“We begin by setting forth the applicable standard of review. For a determination of the character and extent of an easement created by deed we must look to the language of the deed, the situation of the property and the surrounding circumstances in order to ascertain the intention of the parties. . . . The language of the grant will be given its ordinary import in the absence of anything in the situation or surrounding circumstances which indicates a contrary intent. . . . [T]he determination of the intent behind language in a deed, considered in the light of all the surrounding circumstances, presents a question of law on which our scope of review is plenary. ... In determining the scope of an express easement, the language of the grant is paramount in discerning the parties’ intent. In order to resolve ambiguities in the language, however, the situation and circumstances existing at the time the easement was created may also be considered.” (Internal quotation marks omitted.) Herasimovich v. Wallingford, 128 Conn. App. 413, 421-22, 17 A.3d 502, cert. denied, 302 Conn. 919, 28 A.3d 339 (2011).

The clear and unambiguous language in the deed creating the subject easement evidenced the parties’ intent that they were to open the natural watercourse on lot 133 to permit the surface waters from lots 123 and 124 to drain into that watercourse. The surface waters would then drain over lot 133 by way of that watercourse. The watercourse then was to be maintained to insure the continued drainage of those surface waters. The particular method of drainage, i.e., via the watercourse, was expressly stated. Contrary to the plaintiffs argument, the deed did not create a general right to drain surface waters over lot 133; the drainage had to be effectuated through the use of the natural watercourse.

As the trial court determined, there simply was no evidence that the parties to the 1937 deed, or their heirs or assigns, ever opened a natural watercourse on lot 133 to permit the drainage of surface waters from lots 123 and 124. No testimony or exhibits were presented that indicated a watercourse existed on the plaintiffs property or the defendants’ property at the time the plaintiff purchased his property in 1994, nor was any evidence submitted that a natural watercourse existed on the defendants’ property at the time of trial or any time prior thereto. Accordingly, the court did not improperly dismiss the first, second and fifth counts of the plaintiffs complaint for failure to make out a prima facie case.

II

The remaining two counts of the complaint, counts four and six, alleged trespass and sought a declaratory judgment quieting title in the plaintiff with respect to his claimed right to drain surface waters across the defendants’ property. Those counts were dismissed by the trial court because the plaintiff failed to present evidence that he had suffered any harm as the result of the defendants’ conduct. Although the plaintiff failed to present evidence of his right to enforce the deeded drainage easement, he still could prevail on counts four and six of his complaint if he demonstrated that the defendants discharged or diverted surface waters in such a way as to substantially damage his property. See Ferri v. Pyramid Construction Co., 186 Conn. 682, 686, 443 A.2d 478 (1982); Page Motor Co. v. Baker, 182 Conn. 484, 488, 438 A.2d 739 (1980). Because the plaintiff was seeking injunctive relief rather than actual damages, he was required to present evidence that the defendants’ actions caused him irreparable harm and that he lacked an adequate remedy at law. See Berin v. Olson, 183 Conn. 337, 340, 439 A.2d 357 (1981). The plaintiff failed to do so.

The trial court noted in its memorandum of decision that “[t]here is no evidence that at any time from the plaintiffs purchase of his property that the ‘Hurlburt hole’ fully filled up with water or the pipes clogged to substantially interfere with the plaintiffs use and enjoyment of his property. ... In addition, there is no evidence of damage or harm to the plaintiffs property as a result of water backing up from the defendants’ property. . . . There is no evidence that the defendants intentionally caused any surface water to flow onto the plaintiffs property which resulted in damage or harm to the plaintiffs property. The plaintiffs claim at best is anticipatory with no evidence of actual damage or imminent harm.” Our review of the record supports the court’s determination.

The plaintiff testified that he fears that if he is not able to drain the surface waters freely from his property onto the defendants’ property, those waters “eventually” will make their way to the foundation of his house. Although he acknowledged that he never has had water come into his house, he believed that his house and his yard were “in jeopardy.” Additionally, the plaintiff expressed concern that because he now has more water flowing onto his property as the result of the defendants’ actions, he might experience flooding if the reinforced concrete pipes became clogged or broken. In summary, neither the plaintiff nor any other witness presented evidence that the plaintiffs property had been irreparably harmed or was in danger of imminent harm. Accordingly, the court did not improperly dismiss the fourth and sixth counts of the plaintiffs complaint for failure to make out a prima facie case.

The judgment is affirmed.

In this opinion the other judges concurred.

       Practice Book § 15-8 provides: “If, on the trial of any issue of fact in a civil matter tried to the court, the plaintiff has produced evidence and rested, a defendant may move for judgment of dismissal, and the judicial authority may grant such motion if the plaintiff has failed to make out a prima facie case. The defendant may offer evidence in the event the motion is not granted, without having reserved the right to do so and to the same extent as if the motion had not been made.”

       Carl DeRosa, Patricia DeRosa and Cori DeRosa Quirk are the record owners of 900 Indian HUI Road in Orange. Scott DeRosa, Carl DeRosa and Patricia DeRosa are the record owners of 849 Dogbum Road in Orange. Both properties are located to the south of the plaintiffs property. In 2005, a certificate of variance was recorded in the Orange land records for the property at 900 Indian Hill Road. That variance permitted the reapportionment of land between the defendants’ two properties. At the time of trial, the defendants had not yet executed deeds effectuating the proposed conveyances. Accordingly, all four defendants remain defendants in this action because one or more of the defendants have an interest in lot 133, which is a portion of 900 Indian Hill Road.

       The trial court summarized the evidence presented as follows: “The plaintiff did have water back up into his yard in the winter months of 2007 during a heavy snow and then freezing rain. In addition, during periods of heavy rain, water from the defendants’ property did make its way onto the plaintiffs property, but demonstrative evidence submitted showed that there was water standing on both the plaintiffs and defendants’ property without any evidence of substantial or lasting backup.”
      With respect to the incident in the winter of 2007, the plaintiff testified that water overflowed from the Hurlburt hole onto his property because leaf litter, debris and heavy snow had accumulated, and the frozen snow prevented the water from draining. That was the only occasion the plaintiff could recall that the Hurlburt hole had been filled with water. The problem was quickly resolved when he broke through the ice and snow covering the hole.

       Count three of the plaintiffs complaint alleged a private nuisance.

       “Surface waters are those casual waters which accumulate from natural sources and which have not yet evaporated, been absorbed into the earth, or found their way into astream or lake.” (Internal quotation marks omitted.) Page Motor Co. v. Baker, 182 Conn. 484, 486, 438 A.2d 739 (1980).

       “Although the third party beneficiary doctrine was originally developed in the law of contracts, [our Supreme Court] has recognized that third party beneficiaries may enforce covenants in land.” Wykeham Rise, LLC v. Federer, 305 Conn. 448, 473, 62 A.3d 702 (2012).

       The 1937 deed did not define the term watercourse. As early as 1893, however, our Supreme Court defined a watercourse as follows: “A watercourse consists of bed, banks and water. Yet the water need not flow continually; there are many water-courses which are sometimes dry. To maintain the right to a water-course it must be made to appear that the water usually flows in a certain direction, and by a regular channel, with banks and sides. ... It may be natural, as where it is made by the natural flow of the water caused by the general superficies of the surrounding land from which the water is collected into one channel .... A water-course implies a source, a current and a place of discharge. ... A water-course as defined in the law means a living stream with definite banks and channel, not necessarily running all the time, but fed from more permanent sources than mere surface water.” (Citations omitted; internal quotation marks omitted.) Chamberlain v. Hemingway, 63 Conn. 1, 6-6, 27 A. 239 (1893).

       The plaintiff testified only that there was a swale on his property that continued onto the defendants’ property. Scott DeRosa testified that there was no natural watercourse that ran through the plaintiffs property or the defendants’ property when the defendants purchased their land in 2000. Garcia, the plaintiffs expert witness, testified that there was no existing natural watercourse on the defendants’ property when he viewed the property in July, 2008. Further, he testified that he had no information, other than the reference in the 1937 deed, that showed the existence of a natural watercourse or a stream bed on the defendants’ property from 1937 forward.

       “The essentials of an action for trespass are: (1) ownership or possessory interest in land by the plaintiff; (2) invasion, intrusion or entry by the defendant affecting the plaintiffs exclusive possessory interest; (3) done intentionally; and (4) causing direct injury.” (Internal quotation marks omitted.) Bristol v. Tilcon Minerals, Inc., 284 Conn. 55, 87, 931 A.2d 237 (2007).

       Garcia also testified that the plaintiffs property would flood if the pipes were to fail. On cross-examination, however, he conceded that there was nothing to indicate that the pipes were in imminent danger of failing.

       The plaintiff argues that he presented evidence that the defendants’ actions caused more water to flow onto his property and that that fact alone is sufficient to establish the harm necessary to warrant injunctive relief. We disagree. The plaintiff provides no case law in support of this position.