author: PER CURIAM.

text:
    STATE OF CONNECTICUT v. MICHAEL FRANKLIN
    (AC 28483)
    Bishop, Lavine and Borden, Js.
    Argued April 20
    officially released June 23, 2009

      Laljeebhai R. Patel, for the appellant (defendant).

      RaheemL. Mullins, deputy assistant state’s attorney, with whom, on the brief, were David I. Cohen, state’s attorney, and Richard Colangelo, senior assistant state’s attorney, for the appellee (state).
   Opinion

PER CURIAM.

The defendant, Michael Franklin, appeals from the judgment of conviction, rendered after a jury trial, of assault in the first degree as an accessory in violation of General Statutes §§ 53a-59 (a) (5) and 53a-8. On appeal, the defendant claims that the evidence was insufficient to support his conviction. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. On May 30, 2005, at approximately noon, the victim, Elliott Snider, and his friend, Patrick Priest, witnessed a fight between two men at Neon Park in Norwalk. One of the men involved in the fight, Carlos, who was from the same section of town as the defendant, ended up on the ground bleeding. While the victim attempted to break up the fight, the defendant arrived with Eugene Davis, his codefendant. Davis and the defendant argued with the victim over what they perceived as the victim’s participation in the beating of Carlos. Despite the victim’s attempts to clarify that he was trying to break up the fight, the defendant and Davis angrily left the park with Carlos. The victim remained at the park with Priest.

Shortly thereafter, Davis and the defendant returned to the park driving a black Acura. Davis got out of the driver’s side of the vehicle, accusing the victim of having “a problem” with his friend, Carlos. The victim again attempted to explain that he did not have a problem with Carlos when the defendant emerged from the passenger side of the vehicle with a bandana covering his face and a gun in his hand. The defendant chased the victim through the park and fired four to five gunshots at him, one of which pierced the victim through his right buttocks and came out through his hip. The defendant then got back into the black Acura and drove away with Davis. The victim was transported by ambulance to a hospital where he remained for two days.

The defendant and Davis were subsequently arrested. The defendant was charged with two counts of assault in the first degree as an accessory in violation of §§ 53a-59 (a) (5) and 53a-8 and two counts of commission of a class A, B or C felony with a firearm in violation of General Statutes § 53-202k. The defendant was also charged with being a persistent felony offender pursuant to General Statutes § 53a-40 (f). The jury found the defendant guilty of one count of assault in the first degree, the commission of a class A, B or C felony with a firearm and of being a persistent felony offender. He was sentenced to a total effective term of eight years incarceration and five years special parole. This appeal followed.

On appeal, the defendant claims that the evidence was insufficient to support his conviction. Specifically, the defendant claims that the victim’s testimony was inconsistent and unreliable and that certain evidence was admitted improperly. Neither of these claims is actually a sufficiency of the evidence claim. The first asks this court to examine the credibility of a witness. Because it is the sole province of the trier of fact to assess the credibility of witnesses, it is not our role to second-guess such credibility determinations. State v. Linarte, 107 Conn. App. 93, 107, 944 A.2d 369, cert. denied, 289 Conn. 901, 957 A.2d 873 (2008).

The following additional facts are relevant to the defendant’s second claim. Unbeknownst to the victim, William Dickey witnessed the shooting. The victim had seen Dickey in the park earlier in the day but did not see him at the time of the shooting. Approximately one month after the shooting, Dickey, who was being held at the Norwalk police station on unrelated narcotics charges, provided a written and an audiotaped statement in which he indicated that he had seen the defendant shoot the victim. At trial, Dickey recanted his statement and claimed that he never saw the shooting; he claimed that he had only heard about it. Thus, Dickey’s written statement was admitted at trial, after redaction, without objection, pursuant to State v. Whelan, 200 Conn. 743, 753, 513 A.2d 86, cert. denied, 479 U.S. 994, 107 S. Ct. 597, 93 L. Ed. 2d 598 (1986).

The defendant now claims, for the first time on appeal, that Dickey’s statement should not have been admitted into evidence because, in violation of Giglio v. United States, 405 U.S. 150, 92 S. Ct. 763, 31 L. Ed. 2d 104 (1972), the police allegedly promised Dickey that he would be released from jail if he provided the statement. This claim fails for two reasons. First, it is well established that we do not review evidentiary claims raised for the first time on appeal. See State v. Jose G., 290 Conn. 331, 341 n.8, 963 A.2d 42 (2009). Second, the defendant conceded, at trial and at oral argument before this court, that Dickey’s statement was admitted properly pursuant to Whelan. Thus, he waived his right to raise this claim on appeal.

The judgment is affirmed.

       The surname of Carlos is not apparent from the record.

       In State v. Whelan, supra, 200 Conn. 753, our Supreme Court determined that an out-of-court statement is admissible as substantive evidence if (1) the statement is a prior inconsistent statement, (2) it is signed by the declarant, (3) the declarant has personal knowledge of the facts stated therein and (4) the declarant testifies at trial and is subject to cross-examination. See also Conn. Code Evid. § 8-5 (1).


source: Caselaw Access Project

license: Public Domain

text:
    RICHARD GATES v. ESLA EUGENE GATES ET AL.
    (AC 30249)
    Flynn, C. J., and Lavine and Hennessy, Js.
    Argued April 21
    officially released June 23, 2009

      Robert H. Boynton, for the appellant (plaintiff).

      Gavan F. Meehan, with whom, on the brief, was Steven D. Ecker, for the appellees (defendants).
   Opinion

PER CURIAM.

The plaintiff, Richard Gates, appeals from the judgment of the trial court dismissing his appeal from the judgment of the Probate Court. On appeal, the plaintiff claims that the court improperly concluded that it was without subject matter jurisdiction over the appeal due to the plaintiffs failure to file his complaint with the Superior Court within thirty days of the mailing of the Probate Court’s memorandum of decision, as required by General Statutes § 45a-186 (a).

After examining the record on appeal and considering the briefs and the arguments of the parties, we conclude that the judgment of the trial court should be affirmed. Because the court’s memorandum of decision resolves properly the issue raised in this appeal, we adopt the court’s concise and well reasoned decision as a statement of the facts and the applicable law on the issue. See Gates v. Gates, 51 Conn. Sup. 148, 975 A.2d 147 (2008). Any further discussion by this court would serve no useful purpose. See, e.g., Socha v. Bordeau, 289 Conn. 358, 362, 956 A.2d 1174 (2008).

The judgment is affirmed.


author: WEST, J.

text:
    STATE OF CONNECTICUT v. JAVIER L. SAEZ
    (AC 28209)
    Flynn, C. J., and DiPentima and West, Js.
    Argued February 19
    officially released June 23, 2009

      Suzanne Z. Curtis, assistant public defender, for the appellant (defendant).

      Timothy J. Sugrue, senior assistant state’s attorney, with whom, on the brief, were Jonathan C. Benedict, state’s attorney, and Kelley P. Swift, former assistant state’s attorney, for the appellee (state).
   Opinion

WEST, J.

The defendant, Javier L. Saez, appeals from the judgment of conviction, rendered after a jury trial, of larceny in the sixth degree in violation of General Statutes §§ 53a-119 (9) and 53a-125b and, subsequently, by guilty plea, of being a persistent larceny offender in violation of General Statutes § 53a-40 (e). On appeal, the defendant claims that the evidence adduced at trial was insufficient to support his conviction of larceny in the sixth degree. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. On May 5, 2005, the defendant purchased a large piece of foam poster board from the Staples store located on Kings Highway in Fairfield. Judy Suba, a Staples sales associate operating a cash register at the time, rang up the defendant’s purchase. Soon after completing the sales transaction with the defendant, Suba went to the service desk located at the front of the store near the customer entrance. This entrance to the store consists of a rectangular shaped glass foyer with four automatic doors. Two doors are located on opposite sides of the foyer, perpendicular to the service desk, and serve as entry and exit between the foyer and the store itself. The two remaining doors are parallel to the service desk and serve as entry and exit between the foyer and the sidewalk in front of the store. Put another way, one enters the store from the sidewalk through an automatic door into the foyer, then gains entry to the store proper through another automatic door. These doors are opened by the same pressure plate located in front of the store on the sidewalk, open simultaneously and remain open for seven to ten seconds. Exit from the store is accomplished similarly by the other pair of automatic doors. Adjacent to the doors into and out of the store (from and into the foyer) are theft detecting sensors that rise from the floor and flank patrons as they enter and exit the store; no sensors are located in the foyer. The sensors are housed in two parallel plastic carapaces that extend from the floor to a height of approximately five feet, but the sensors themselves do not cover the area from the floor to approximately twelve inches above it.

Soon after arriving at the service desk, Suba saw the defendant near the sensor located at the door designated for entering the store from the glass foyer. Suba saw the defendant crouching down and “scooting” a box along the floor, between the theft alarm censors; he no longer had the poster board that he had purchased. The defendant then went out the door with the box, into the glass foyer, then exited the store. Suba alerted a fellow employee and both exited the store in pursuit of the defendant. In front of the store was another employee assisting a customer in loading purchased items into her vehicle from a dolly. The employee who accompanied Suba from the store yelled “drop the box” to the defendant. The defendant then placed the box onto the dolly with the items being loaded into the customer’s vehicle. The defendant quickly left the area and soon was out of sight of the group that had gathered. Suba retrieved the box, discovered that it contained a Uniden telephone, in its original packaging, that was offered for sale in Staples and brought it back into the store.

In the meantime, the store manager, Christopher Raucci, exited the store upon hearing the commotion going on in the parking lot and started to investigate. The defendant, at this point in time, was not in sight. Soon, however, the customer who was loading purchased items into her automobile, saw the defendant in the parking lot and pointed him out to Raucci. Raucci saw the defendant get into a gray sport-utility vehicle, crouch down and drive away. Raucci recognized the defendant as a customer with whom he had had a brief conversation in the store just moments before. Raucci took down the license plate number and, after conferring with his supervisor, called the police. Charles Ricco, a Fairfield police officer, came to the store to investigate the shoplifting incident and took a joint statement from Suba and Raucci. After acquiring the address of the registered owner of the gray sport-utility vehicle, Ricco went to the residence. There, in the driveway, he found a gray Kia with the same license plate number as the vehicle seen leaving the parking lot; the hood was still warm from recent use. Ricco spoke with the registered owner, the defendant’s girlfriend, as well as the defendant’s brother, Luis Saez, who supplied Ricco with the defendant’s name.

Some time later, Ricco, upon receiving a dispatch from police headquarters, returned to the police station and met the defendant and his brother in the lobby. Ricco testified that upon meeting him, the defendant stated: “I want to own up to what I did. I took a box, a phone at Staples, and I put it down after the woman yelled at me and told me to stop. I didn’t think I did anything wrong and I left, I was nervous, and I want to own up to what I did and be a man about it and take responsibility.” After being read his Miranda rights, the defendant signed a written statement that subsequently was read into the record during his trial. The defendant was arrested and charged by two part information with having committed larceny in the sixth degree by shoplifting and with being a persistent larceny offender. After the defendant was found guilty by the jury of larceny in the sixth degree, and after he pleaded guilty to being a persistent larceny offender, the court sentenced him to three years of incarceration. This appeal followed. Further facts will be set forth as necessary.

The defendant claims on appeal that the evidence adduced at trial was insufficient to support his conviction of larceny in the sixth degree by shoplifting. Specifically, the defendant contends that the evidence was insufficient to prove that he possessed the requisite intent to convert the property to his use without paying for it or that his conduct constituted concealment of the item that he allegedly had shoplifted. Preliminarily, we set forth the proper standard of review applicable here.

“In reviewing the sufficiency of the evidence to support a criminal conviction we apply a two-part test. First, we construe the evidence in the light most favorable to sustaining the verdict. Second, we determine whether upon the facts so construed and the inferences reasonably drawn therefrom the [finder of fact] reasonably could have concluded that the cumulative force of the evidence established guilt beyond a reasonable doubt. . . .

“We note that the jury must find every element proven beyond a reasonable doubt in order to find the defendant guilty of the charged offense, [but] each of the basic and inferred facts underlying those conclusions need not be proved beyond a reasonable doubt. . . . If it is reasonable and logical for the jury to conclude that a basic fact or an inferred fact is true, the jury is permitted to consider the fact proven and may consider it in combination with other proven facts in determining whether the cumulative effect of all the evidence proves the defendant guilty of all the elements of the crime charged beyond a reasonable doubt. . . .

“Moreover, it does not diminish the probative force of the evidence that it consists, in whole or in part, of evidence that is circumstantial rather than direct. . . . It is not one fact, but the cumulative impact of a multitude of facts which establishes guilt in a case involving substantial circumstantial evidence. ... In evaluating evidence, the [finder] of fact is not required to accept as dispositive those inferences that are consistent with the defendant’s innocence. . . . The [finder of fact] may draw whatever inferences from the evidence or facts established by the evidence it deems to be reasonable and logical. . . .

“Finally, [a]s we have often noted, proof beyond a reasonable doubt does not mean proof beyond all possible doubt . . . nor does proof beyond a reasonable doubt require acceptance of every hypothesis of innocence posed by the defendant that, had it been found credible by the [finder of fact], would have resulted in an acquittal. . . . On appeal, we do not ask whether there is a reasonable view of the evidence that would support a reasonable hypothesis of innocence. We ask, instead, whether there is a reasonable view of the evidence that supports the [finder of fact’s] verdict of guilty.” (Internal quotation marks omitted.) State v. Pascal, 109 Conn. App. 55, 60-61,950 A.2d 566, cert. denied, 289 Conn. 917, 957 A.2d 880 (2008).

“A person commits larceny when, with intent to deprive another of property or to appropriate the same to himself or a third person, he wrongfully takes, obtains or withholds such property from an owner . . . .” General Statutes § 53a-119. “Connecticut courts have interpreted the essential elements of larceny as (1) the wrongful taking or carrying away of the personal property of another; (2) the existence of a felonious intent in the taker to deprive the owner of [the property] permanently; and (3) the lack of consent of the owner. . . . Because larceny is a specific intent crime, the state must show that the defendant acted with the subjective desire or knowledge that his actions constituted stealing. . . . Larceny involves both taking and retaining. The criminal intent involved in larceny relates to both aspects. The taking must be wrongful, that is, without color of right or excuse for the act . . . and without the knowing consent of the owner. . . . The requisite intent for retention is permanency.” (Citation omitted; internal quotation marks omitted.) State v. Torres, 111 Conn. App. 575, 584-85, 960 A.2d 573 (2008), cert. denied, 290 Conn. 907, 964 A.2d 543 (2009). Also, for a conviction of larceny by shoplifting, the state must prove that the property taken by the defendant was goods, wares or merchandise exposed for sale within the store. General Statutes § 53a-119 (9); see footnote 1. The defendant claims that the state failed to prove beyond a reasonable doubt that he had the requisite intent under § 53a-119 (9).

“It is well established that the question of intent is purely a question of fact. . . . Intent may be, and usually is, inferred from the defendant’s verbal or physical conduct. . . . Intent may also be inferred from the surrounding circumstances. . . . The use of inferences based on circumstantial evidence is necessary because direct evidence of the accused’s state of mind is rarely available. . . . Intent may be gleaned from circumstantial evidence such as . . . the events leading up to and immediately following the incident. . . . Furthermore, it is a permissible, albeit not a necessary or mandatory, inference that a defendant intended the natural consequences of his voluntary conduct.” (Citation omitted; internal quotation marks omitted.) State v. Porter, 76 Conn. App. 477, 487-88, 819 A.2d 909, cert. denied, 264 Conn. 910, 826 A.2d 181 (2003). Also, this court has stated that “[j Jurors are not expected to lay aside matters of common knowledge or their own observations and experiences, but rather, to apply them to the facts as presented to arrive at an intelligent and correct conclusion.” (Internal quotation marks omitted.) State v. Williams, 48 Conn. App. 361, 372, 709 A.2d 43, cert. denied, 245 Conn. 907, 718 A.2d 16 (1998).

The following additional facts are pertinent to the defendant’s claim. The defendant testified both as to the events that took place at Staples and those that took place later that day at the police station. He testified that he came across the box containing the telephone in the glass foyer as he exited the store immediately after paying for the poster board. He further testified that he never left the store with the box and that Suba approached him soon after he picked up the box, demanded its return and that he handed it directly to her. He also testified that at no time during the incident at Staples was he aware that the box contained a telephone that was offered for sale by the store. He testified that not only had he never left the store with the box, he never intended to leave without paying for it. The defendant also testified that he went directly to his girlfriend’s vehicle, without any Staples’ employees following him, and left the premises.

Although the defendant couches his arguments in terms of insufficiency of the evidence, he, however, confuses the issues of sufficiency and credibility. The defendant’s arguments that the evidence of his intent to shoplift the Uniden telephone from Staples was insufficient to support his conviction involve the vast discrepancies between his testimony and the testimony of Suba and Raucci concerning the incident at Staples. The defendant, relying on his version of events, contends that there was no evidence as to how the telephone got into the store’s foyer or of him placing it there. There also was no evidence, he asserts, of his acting suspiciously or being near the area in the store where the telephones were offered for sale. As a result, the defendant purports, the jury could not reasonably find that he had the requisite intent to deprive the owner of the telephone permanently because the telephone had the status of abandoned property. The defendant seems to argue that all the testimony was identical and supported a finding that the foyer was the location of the box when the defendant came upon it. He apparently contends that even Suba testified that she first saw the defendant with the box in the glass foyer and not in the store proper. A thorough review of the record, however, including Suba’s testimony and the photographs of the store’s layout, entered as full exhibits by both the state and the defendant, show clearly that this is inaccurate. Suba testified, as detailed previously, that she first saw the defendant with the box in the store itself and not in the foyer. Therefore, the defendant’s argument that there was no evidence to support the jury’s finding of the requisite intent has no basis in the record, and, therefore, this claim concerns, in actuality, a credibility determination. In other words, his assertions as to the telephone’s having the status of abandoned property are based solely on his version of events, and it is within the province of the jury to believe all, part or none of the defendant’s testimony. See State v. Meehan, 260 Conn. 372, 381, 796 A.2d 1191 (2002). As this court has stated many times, “[questions of whether to believe or to disbelieve a competent witness are beyond our review. As a reviewing court, we may not retry the case or pass on the credibility of witnesses. . . . We must defer to the trier of fact’s assessment of the credibility of the witnesses that is made on the basis of its firsthand observation of their conduct, demeanor and attitude.” (Internal quotation marks omitted.) State v. Osoria, 86 Conn. App. 507, 514-15, 861 A.2d 1207 (2004), cert. denied, 273 Conn. 910, 870 A.2d 1082 (2005).

On the basis of the record before us, we conclude that the jury was free to credit the testimony of Suba and Raucci and that their testimony amply supports the finding by the jury beyond a reasonable doubt that the defendant intended to convert the Uniden telephone to his use permanently without consent and without paying for it. Moreover, there was ample other evidence adduced at trial to support the jury’s finding of guilt beyond a reasonable doubt of larceny in the sixth degree, including the defendant’s written statement made to police as well as his statements made to Ricco in the police department lobby on the date of the incident. Furthermore, the evidence of his conduct in scooting the box—a Uniden telephone offered for sale in its original packaging—below the range of the theft detector located at the door designated for entry into the store and then exiting with it is sufficient to support reasonably the inference that the defendant intended to convert the property to his use without paying for it. As we have stated “[i]t is . . . the absolute right and responsibility of the jury to weigh conflicting evidence and to determine the credibility of the witnesses.” State v. Reddick, 33 Conn. App. 311, 333, 635 A.2d 848 (1993), cert. denied, 228 Conn. 924, 638 A.2d 38 (1994). Therefore, because we cannot decide issues of credibility, the defendant’s claim must fail.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 53a-125b provides in relevant part: “A person is guilty of larceny in the sixth degree when he commits larceny as defined in section 53a-119 and the value of the property or service is two hundred fifty dollars or less.”
      General Statutes § 53a-119 (9) provides in relevant part: “A person is guilty of shoplifting who intentionally takes possession of any goods, wares or merchandise offered or exposed for sale by any store or other mercantile establishment with the intention of converting the same to his own use, without paying the purchase price thereof. . . .”

       General Statutes § 53a-40 (e) provides: “A persistent larceny offender is a person who (1) stands convicted of larceny in the third degree in violation of the provisions of section 53a-124 in effect prior to October 1, 1982, or larceny in the fourth, fifth or sixth degree, and (2) has been, at separate times prior to the commission of the present larceny, twice convicted of the crime of larceny.”

       The defendant claims and the state concedes that if this court concludes that the evidence was insufficient to support his conviction of larceny in the sixth degree and reverses the judgment of the trial court, we also must reverse his conviction, which resulted from his guilty plea, for being a persistent larceny offender. As we are affirming the judgment, we need not reach this issue.

       See Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).

       The following was read into the record in the presence of the jury: “This is a document from the Fairfield Police Department. It’s headed, ‘Voluntary Statement.’ It was dated May 5, 2005. There are two pages. Name of the person giving the statement is Javier Saez. It’s got his date of his birth, phone number, address, name of the p.erson taking the statement, Officer Charles Ricco, and the questions begin. . . .
      “ ‘The above named person [does] make the following voluntary statement to Officer Charles Ricco of the Fairfield Police Department. Knowing that I have been advised of—that any statement made herein, which I do not believe to be true, and which statement is intended to mislead a public servant in the performance of his official function may be punishable under Connecticut General [Statutes § 53a-157].’
      “And then there’s the questions.
      ‘Question: Why are you giving this statement?
      ‘Answer: Because I turn myself in and want to take care of [these] problems. . . .
      ‘Question: Were you given your notice of rights?
      ‘Answer: Yes. . . .
      ‘Question: Were you promised anything in return for this statement?
      ‘Answer: No.
      ‘Question: Why did you turn yourself in?
      ‘Answer: I want to take responsibility for my own actions.
      ‘Question: You are a suspect of a shoplifting at Staples in Fairfield, Connecticut, this afternoon at about 3:23 p.m., did you take merchandise out of the store without paying for it?
      ‘Answer: Yes. I was in Staple[s] buying something. On my way out, I saw a box near the front door, I saw that it was a phone, I picked it up and walked outside the store with it. The lady from the store ran out and yelled, hey, hey. So I put the box down, got in my girlfriend’s car, and left. . . .
      T have read the statement consisting of two pages and hereby declare [that] the facts contained therein are true and correct.’
      “It’s signed by Javier Saez, and it’s sworn and signed on the same day, May 5th, 2005. . . .
      “Second page, additional questions, it’s also signed by Mr. Javier Saez. This is page two.
      ‘Question: Why did you leave?
      ‘Answer: I was nervous, and I thought I really didn’t do anything wrong. I heard from my family that the police were looking for me, so I turned myself in. . . .
      ‘Question: Do you have anything else to add to this statement?
      ‘Answer: I’m sorry I took off, but I was nervous.’ ”


author: DiPENTIMA, J.

text:
    KENNETH MCFARLAND v. DEPARTMENT OF DEVELOPMENTAL SERVICES ET AL.
    (AC 29525)
    Bishop, DiPentima and Lavine, Js.

      Argued February 20
    officially released June 23, 2009

      Michael J. Belzer, assistant attorney general, with whom, on the brief, were Richard Blumenthal, attorney general, and William J. McCullough, assistant attorney general, for the appellee (named defendant).

      Edward T. Dodd, Jr., with whom, on the brief, was Laura Ondrush, for the appellee (plaintiff).
   Opinion

DiPENTIMA, J.

The defendant department of developmental services appeals from the decision of the workers’ compensation review board (board) affirming the decision of the workers’ compensation commissioner (commissioner) awarding the plaintiff, Kenneth McFarland, temporary total disability payments, interest and attorney’s fees. On appeal, the defendant claims that the commissioner improperly (1) ordered payment of temporary total disability benefits even though the plaintiff had received his full wages, (2) denied its motion to correct, (3) found the plaintiff to be a credible witness and (4) awarded attorney’s fees. We agree with some of the defendant’s claims and, accordingly, reverse in part and affirm in part the decision of the board.

The following factual and procedural history is relevant to the issues presented on appeal. The plaintiff had been a longtime employee of the defendant. In May, 1987, he suffered a compensable injury to his right shoulder for which he received all benefits to which he was entitled. In May, 1996, the plaintiff sustained a second injury to his right shoulder that also was deemed compensable. That injury required surgery, and the plaintiff again received all benefits to which he was entitled. The plaintiffs right shoulder progressively became more symptomatic and required treatment from Michael J. Kaplan, the surgeon who previously had operated on the plaintiffs shoulder. Kaplan opined that the plaintiff became temporarily totally disabled from June 16, 2004, to March 29, 2005. During this time period, the plaintiff received only twelve weeks of temporary total disability payments.

On August 14, 2004, Craig Foster, a physician, performed an independent medical examination. Foster diagnosed the plaintiff with early arthritis and assigned a 12 percent disability rating to the plaintiffs right shoulder. Foster did not review any other medical reports pertaining to the plaintiff, including any of the prior injuries to his right shoulder.

The commissioner found that the plaintiff was entitled to temporary total disability benefits, for the approximate nine month time period from June 16, 2004, to March 29, 2005. The commissioner determined that the defendant had withheld payment of the temporary total disability payments because the plaintiff had been suspended without pay as a result of a disciplinary matter. Specifically, the commissioner found that the defendant had “believed that it would prevail in [the disciplinary] hearing and that [the plaintiff] would then be obligated to refund money to the [state]. Their failure to pay temporary total disability benefits would minimize the amount [the plaintiff] would have to refund

Subsequent to June 1, 2005, the plaintiff was exonerated from any fault or responsibility with respect to the disciplinary hearing. The defendant then paid all wages owed to the plaintiff for the time period of his total disability. Aside from the twelve weeks of benefits, the plaintiff had not received any other disability benefits for the time that he was totally disabled. The commissioner found the delay of benefits to be unreasonable and awarded the plaintiff interest and attorney’s fees.

The defendant filed its appeal from the commissioner’s decision to the board on December 27, 2006. On January 4, 2007, the defendant filed a motion to correct the commissioner’s decision. On January 12, 2007, the commissioner denied the motion to correct in its entirety.

On December 21, 2007, the board issued its decision affirming the commissioner’s finding and award. The board concluded that the commissioner’s factual findings were supported by the record, that the plaintiff was entitled to workers’ compensation benefits and that the award of interest and attorney’s fees did not constitute an abuse of discretion. This appeal followed. Additional facts will be set forth as necessary.

Before addressing the specific claims presented by the defendant, we set forth certain general principles pertaining to our workers’ compensation jurisprudence. “Our workers’ compensation scheme indisputably is a remedial statute that should be construed generously to accomplish its purpose. . . . The humanitarian and remedial purposes of the act counsel against an overly narrow construction that unduly limits eligibility for workers’ compensation [benefits]. ... To recover under the Workers’ Compensation Act [General Statutes § 31-275 et seq.], a plaintiff must prove that the claimed injury is connected causally to the employment by demonstrating that the injury (1) arose out of the employment and (2) occurred in the course of the employment.” (Internal quotation marks omitted.) Marandino v. Prometheus Pharmacy, 105 Conn. App. 669, 677, 939 A.2d 591, cert. granted on other grounds, 286 Conn. 916, 917, 945 A.2d 977 (2008).

“A party aggrieved by a commissioner’s decision to grant or deny an award may appeal to the board pursuant to General Statutes § 31-301. The board is obliged to hear the appeal on the record and not retry the facts. . . . [T]he power and duty of determining the facts rests on the commissioner, the trier of facts. . . . 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. . . . Our scope of review of the actions of the board is similarly limited. . . . The role of this court is to determine whether the . . . [board’s] decision results from an incorrect application of the law to the subordinate facts or from an inference illegally or unreasonably drawn from them.” (Citation omitted; internal quotation marks omitted.) Brown v. United Technologies Corp., 112 Conn. App. 492, 496-97, 963 A.2d 1027, cert. granted on other grounds, 291 Conn. 906, 967 A.2d 1220 (2009); see also Brinson v. Finlay Bros. Printing Co., 77 Conn. App. 319, 323, 823 A.2d 1223 (2003).

I

The defendant first claims that the commissioner improperly ordered payment of temporary total disability benefits even though the plaintiff had received his full wages. Specifically, it argues that the plaintiffs receipt of both his full wages and temporary total disability benefits for the same time period constitutes a double recovery. We agree that the commissioner’s decision permits such a double recovery and therefore is improper.

The following additional facts are necessary for our discussion. Between June 16, 2004, and March 29, 2005, the plaintiff received only twelve weeks of temporary total disability payments. At some point during this time period, the plaintiff became involved in a disciplinary hearing and was suspended without pay. Subsequent to June 1, 2005, the plaintiff was exonerated from any wrongdoing, and the defendant paid the plaintiff his wages for the aforementioned time period. It bears emphasizing that both parties agree that the plaintiff received all of his wages for the time period during which he was temporarily totally disabled.

In his decision, the commissioner ordered the defendant to pay the plaintiff, inter alia, temporary total disability payments from June 16, 2004, until March 29, 2005. The defendant does not challenge the commissioner’s finding that the plaintiff met his burden of establishing his entitlement to workers’ compensation benefits. The defendant does challenge the commissioner’s failure to consider the defendant’s prior payment of wages for that time period. The record indicates that the plaintiff has received wages and temporary total disability benefits for the same period. In other words, the commissioner did not order a deduction or offset to prevent a double recovery.

In Loftus v. Vincent, 49 Conn. App. 66, 713 A.2d 892 (1998), this court considered a situation similar to the present case. In Loftus, the plaintiff injured his back while working at the defendant’s service station. Id., 68. The defendant became suspicious of the plaintiffs injuries and refused to read the physician’s note stating that the plaintiff should not work for three days. Id., 68-69. The next day, the defendant threatened to call the police if the plaintiff did not return his keys and uniform. Id., 69. This court affirmed the commissioner’s decision that the defendant committed a retaliatory discharge in violation of General Statutes § 31-290a. Id., 70-71.

We agreed, however, with the defendant in Loftus that the commissioner failed to offset the award by the amount of workers’ compensation received by the plaintiff. Id., 72-74. Specifically, we stated: “Long ago, this state adopted the position that [o]ur [Workers’ Compensation] Act does not permit double compensation. . . . When an injury entitles a worker to benefits both under the compensation statute and under other legislation, so that a double burden would be imposed on the employer, our courts have held that compensation payments during the period of disability reduce the employer’s obligation created by other legislation. ... A similar policy of avoiding a double recovery or double burden is incorporated in General Statutes § 31-314: In fixing the amount of any compensation under this chapter, due allowance shall be made for any sum which the employer has paid to any injured employee or to his dependents on account of the injury, except such sums as the employer has expended or directed to be expended for medical, surgical or hospital service. Because both that provision and § 31-290a are contained in chapter 568 of our statutes, it is evident that the legislature did not intend to impose on the employer the double burden of back wages and workers’ compensation payments for the same period of unemployment. ... In this case, both the retaliatory discharge and the workers’ compensation awards involve the same source, the defendant, and the period for which an allowance of back wages was made by the commissioner overlaps the period of disability resulting from the injury.” (Citations omitted; emphasis added; internal quotation marks omitted.) Id., 73-74.

Likewise, the plaintiff in the present case received wages and benefits for the same time period. As observed by a member of this panel at oral argument, there is nothing in the commissioner’s decision as affirmed by the board that would require the plaintiff to reimburse the defendant. Were the commissioner’s decision to stand unchallenged, the plaintiff would receive both his wages and the temporary total disability benefits, with no mechanism to effectuate the return of one to the defendant. We cannot countenance such a double recovery. As we noted previously, our workers’ compensation jurisprudence has long prohibited such “double dipping.” Pasquariello v. Stop & Shop Cos., 281 Conn. 656, 660, 916 A.2d 803 (2007); see also Ancona v. Norwalk, 217 Conn. 50, 56, 584 A.2d 454 (1991); Olmstead v. Lamphier, 93 Conn. 20, 23, 104 A. 488 (1918). We therefore reverse the decision of the board affirming the decision of the commissioner as to the amount of the award of temporary total disability benefits and remand the matter for a calculation by the commissioner of the amount due to the plaintiff.

II

The defendant next claims that the commissioner improperly denied its motion to correct. Specifically, it argues that certain facts found by the commissioner were unsupported by the record and that other facts should have been included in the commissioner’s findings. We agree with some of the arguments presented by the defendant.

We begin by setting forth the applicable standard of review and legal principles that guide our resolution of the defendant’s claim. “The commissioner is the sole trier of fact and [t]he 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. . . . The review [board’s] hearing of an appeal from the commissioner is not a de novo hearing of the facts. . . . [I]t is [obligated] to hear the appeal on the record and not retry the facts. ... On appeal, the board must determine whether there is any evidence in the record to support the commissioner’s finding and award. . . . Our scope of review of [the] actions of the [board] is [similarly] . . . limited. . . . [However] [t]he decision of the [board] must be correct in law, and it must not include facts found without evidence or fail to include material facts which are admitted or undisputed. . . . Put another way, the board is precluded from substituting its judgment for that of the commissioner with respect to factual determinations.” (Internal quotation marks omitted.) Anderson v. R & K Spero Co., 107 Conn. App. 608, 613-14, 946 A.2d 273 (2008); see also Regs., Conn. State Agencies § 31-301-3 et seq.

In its motion to correct, the defendant sought, inter alia, the deletion of paragraphs fourteen and fifteen, as well as paragraph B of the commissioner’s findings and conclusion, and the insertion of paragraphs detailing the lack of credibility of the plaintiff. The defendant also requested the insertion of a paragraph stating that Kaplan’s opinion that the plaintiff has “absolutely no work capacity through March 28, 2005, and then, on March 29, had unrestricted full duty capacity” was not logical. The commissioner denied these requests. Likewise, the board rejected the defendant’s arguments with respect to the motion to correct. We address each of the defendant’s arguments in turn.

A

In paragraph fourteen of the finding, the commissioner stated: “It is known and administratively noticed that [the defendant] withheld payment of temporary total disability payments during the period in question because [the plaintiff] was enmeshed in a departmental disciplinary hearing and was suspended without pay during its duration.” We conclude that evidence in the record supports this finding.

At the May 8, 2006 hearing, the commissioner and counsel for the parties held a discussion off the record. The commissioner then requested that counsel for the defendant place his representations on the record. The assistant attorney general acknowledged that the plaintiff had been suspended and that, following a “quasi-judicial administrative hearing,” was found to be entitled to reinstatement and was given “full pay going all the way back.” The assistant attorney general then stated: “I want Your Honor to understand that in the [defendant] taking some of the positions that [it has] taken in this case, that part of [its] position was that since [the plaintiff] had, he was not working because of cause, which was his claimed misbehavior, that therefore was no entitlement to benefits because we interpret workers’ compensation as being something where someone is not getting wages because of lost opportunity, and if the lost opportunity would have been lost at any rate because of outside conduct, so therefore it’s not justified.”

We recently stated: “Judicial admissions are voluntary and knowing concessions of fact by a party or a party’s attorney occurring during judicial proceedings. . . . They excuse the other party from the necessity of presenting evidence on the fact admitted and are conclusive on the party making them. . . . The statement relied on as a binding admission [however] must be clear, deliberate and unequivocal.” (Citation omitted; internal quotation marks omitted.) O & G Industries, Inc. v. All Phase Enterprises, Inc., 112 Conn. App. 511, 523 n.5, 963 A.2d 676 (2009); see also LaSalle National Bank v. Freshfield Meadows, LLC, 69 Conn. App. 824, 829-30, 798 A.2d 445 (2002).

We conclude that the statements by the defendant’s counsel constitute a judicial admission. We are mindful of the general rule that “admissions, if relevant and material, made by an attorney incidental to the general authority of the attorney to represent his client in connection with and for the purpose of controlling the matter committed to him, are admissible against the client.” Collens v. New Canaan Water Co., 155 Conn. 477, 496, 234 A.2d 825 (1967); see also Rockwell v. Quinter, 96 Conn. App. 221, 234 n.10, 899 A.2d 738 (party may be bound by admission made in open court), cert. denied, 280 Conn. 917,908 A.2d 538 (2006); Levine v. Levine, 88 Conn. App. 795, 804, 871 A.2d 1034 (2005) (“[a] party is bound by a concession made during the trial by his attorney” [internal quotation marks omitted]); Shuster v. Buckley, 5 Conn. App. 473,479,500 A.2d 240 (1985) (actions of attorney are binding on client).

The defendant’s attorney admitted at the formal hearing that the plaintiff did not receive workers’ compensation benefits during this time period and did not receive his wages until the disciplinary matter had been resolved in his favor. We conclude that there was evidence in the record to support the findings set forth in paragraph fourteen of the commissioner’s decision, and, therefore, the motion to delete paragraph fourteen properly was denied.

B

In paragraph fifteen, the commissioner stated: “[The defendant] believed that it would prevail in [the disciplinary] hearing and that [the plaintiff] would then be obligated to refund money to the [state]. Their failure to pay temporary total disability benefits would minimize the amount [the plaintiff] would have to refund the [state].” We have conducted a complete review of the record and have discovered no basis to support this finding by the commissioner.

Only the plaintiff testified at the hearing, and he did not make any statements regarding the defendant’s motives for not paying total disability benefits or concerns regarding repayment. The documentary evidence submitted to the commissioner consisted of the plaintiffs medical records, an affidavit setting forth the fees for the plaintiffs counsel, correspondence between the assistant attorney general and Kaplan, a printout showing payments made by the defendant to the plaintiff and Foster’s deposition testimony. Nothing in the testimony or the documents addresses the defendant’s subjective belief that it would prevail in the disciplinary hearing or its belief regarding the issue of repayment to the defendant. We conclude, therefore, that this constitutes a fact found without evidence and that it therefore was improper. Accordingly, the commissioner should have granted the motion to correct with respect to the deletion of paragraph fifteen.

C

In paragraph B of the findings and conclusion to his decision, the commissioner stated: “Between June 16, 2004, and March 29, 2005, [the plaintiff] received only twelve weeks of temporary total disability payments. No other payments were forthcoming because [the defendant] sincerely believed that [the plaintiff] was going to be responsible to repay benefits as a result of the departmental hearing in which he was involved. When [the plaintiff] was exonerated in that hearing, [the defendant] paid all wages owed to [the plaintiff] for the period in question. If this were a novel, or a historical recitation, the fact that [the plaintiff] received all of his benefits would more easily lead to the conclusion that restitution had been made and, hence, there was no damage to the [plaintiff]. However, this is neither a novel nor a historical recitation. It is a real life situation involving a family and a man who must provide the necessities of life for the health and well-being of its members. A delay of more than nine months without benefits to which he was entitled is unreasonable. [The defendant] could not find justification in withholding payment by expecting to prevail in its disciplinary hearing .... This was an unreasonable delay and [the plaintiff] is entitled to interest at the statutory rate. [The plaintiff] is further entitled to attorney’s fees in an amount to be determined by evidence and testimony at a future hearing.” (Citation omitted.)

The parties agreed that the plaintiff had received only twelve weeks of temporary total disability payments and that the defendant had paid the plaintiff all of the wages owed following the resolution of the disciplinary hearing. However, as set forth in part IIB, we conclude that the findings that (1) the defendant “sincerely believed that [the plaintiff] was going to be responsible to repay benefits as a result of the departmental hearing in which he was involved” and (2) “[the defendant] could not find justification in withholding payment by expecting to prevail in its disciplinary hearing” are not supported by the evidence. There is nothing in the record to support the findings regarding the defendant’s motivation. We conclude, therefore, that the commissioner should have granted the motion to correct with respect to these findings set forth in paragraph B of the commissioner’s findings and conclusion.

D

In its motion to correct, the defendant sought the inclusion of paragraphs eighteen through twenty. The purpose of these additions was to set forth a finding establishing the plaintiffs lack of credibility. As we explain in part III, issues of credibility are reserved for the commissioner’s determination. See Anderson v. R & K Spero Co., supra, 107 Conn. App. 613-14. We conclude, therefore, that the commissioner properly denied the motion to correct with respect to insertion of paragraphs eighteen through twenty.

E

The defendant also sought the inclusion of a proposed paragraph twenty-one, which stated: “Given the physical demands of [the plaintiffs] job with the state, it is not logical that the [plaintiff] had absolutely no work capacity through March 28, 2005, and then, on March 29, had unrestricted full duty capacity.” The defendant argues that it “is neither reasonable [n]or logical, in lieu of some extraordinary piece of evidence, to conclude that a person disabled from any gainful employment of any kind, in one day went from that status to a person cleared to perform unrestricted at a labor intensive employment.”

The plaintiffs treating physician, following a course of treatment consisting of therapy and injections, endorsed the plaintiffs request for a full return to work. The defendant did not challenge this determination with its own expert. One of the commissioner’s functions is to determine the weight of the evidence presented and the credibility of the testimony offered by expert witnesses. See Anderson v. R & K Spero Co., supra, 107 Conn. App. 616. Contrary to the defendant’s argument, the commissioner, having been presented with no expert testimony, was free to accept Kaplan’s medical opinions regarding the plaintiffs work status. We conclude, therefore, that the commissioner properly denied the motion to correct with respect to this claim.

Ill

The defendant next argues that the commissioner improperly found the plaintiff to be a credible witness. Specifically, it argues that on the basis of the certain statements contained in the plaintiffs testimony, the commissioner should have found him to be an unreliable witness. We are not persuaded.

During cross-examination, the plaintiff was asked if, in June, 2005, he received treatment for any other medical condition besides his right shoulder. The plaintiff responded that he had been treated for asthma and other chronic illness not related to his shoulder. He then acknowledged that he may have received treatment for a left shoulder injury but that he did not recall whether he received injections in that shoulder. The defendant argues that the failure to include immediately the fact that he had medical treatment with respect to his left shoulder, coupled with the fact that the medical reports indicated that he had received injections in that shoulder, demonstrated the plaintiffs lack of credibility.

We quickly may dispose of the defendant’s claim. “It [is] the commissioner’s function to find the facts and determine the credibility of witnesses . . . .” (Emphasis added; internal quotation marks omitted.) Mleczko v. Haynes Construction Co., 111 Conn. App. 744, 748, 960 A.2d 582 (2008) Put another way, the commissioner is the sole arbiter of the credibility of witnesses. Greene v. Aces Access, 110 Conn. App. 648, 652, 955 A.2d 616 (2008); 1 A. Sevarino, Connecticut Workers’ Compensation After Reforms (3d Ed. 2008) § 10.84.2, p. 1769.

On the basis of the commissioner’s firsthand observation of the plaintiffs conduct, demeanor and attitude, he made a determination regarding the plaintiff and his testimony. See, e.g., Tang v. Bou-Fakhreddine, 75 Conn. App. 334, 352, 815 A.2d 1276 (2003). We decline the defendant’s invitation to invade the province of the commissioner and make a contrary credibility determination on the basis of a cold, printed record. See, e.g., Sokoloski v. McCorison, 108 Conn. App. 296, 303, 947 A.2d 1022 (2008); 1 A. Sevarino, supra, § 10.85.1, pp. 1781-83 (commissioner’s credibility assessment virtually inviolable).

IV

The defendant’s final claim is that the commissioner improperly awarded attorney’s fees to the plaintiff. We agree that the award of attorney’s fee was improper.

General Statutes § 31-300 provides in relevant part: “In cases where, through the fault or neglect of the employer or insurer, adjustments of compensation have been unduly delayed, or where through such fault or neglect, payments have been unduly delayed, the commissioner may include in the award interest at the rate prescribed in section 37-3a and a reasonable attorney’s fee in the case of undue delay in adjustments of compensation and may include in the award in the case of undue delay in payments of compensation, interest at twelve per cent per annum and a reasonable attorney’s fee. . . .” The decision to award attorney’s fees is within the commissioner’s discretion and dependent on the findings of fact. See Coollick v. Windham, 7 Conn. App. 142, 147, 508 A.2d 46 (1986).

The commissioner found that the defendant’s failure to pay the disability benefits because it expected to prevail in the plaintiffs disciplinarily hearing was not justified and therefore unreasonable. This provided the sole articulated basis for the commissioner’s award of attorney’s fees. We previously have determined that the commissioner’s finding as to why the defendant failed to pay the plaintiff disability payments was not supported by the record. Without a factual predicate underlying the award of attorney’s fees, that award cannot stand.

In summary, we conclude that the commissioner improperly (1) failed to address the issue of offsetting the award to the plaintiff to prevent a double recovery, (2) failed to grant certain portions of the defendant’s motion to correct and (3) awarded attorney’s fees. On remand, the commissioner must determine the amount of the award to which the plaintiff is entitled and the amount of interest owed to the plaintiff.

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

In this opinion the other judges concurred.

       GAB Robins North America, Inc., was named as a defendant in this case. For convenience, we refer in this opinion to the department as the defendant.

       We note that the defendant has not challenged the commissioner’s award of interest, and, therefore, it is not a subject for review on appeal.

       The plaintiff had been assigned a 21 percent permanent partial disability rating to his right shoulder.

       The plaintiff has been assigned an additional 10 percent permanent partial disability rating to his right shoulder.

       “There are two types of workers’ compensation disability in Connecticut for which benefits may be awarded: total incapacity and partial incapacity. See General Statutes §§ 31-307 and 31-308. Within total incapacity there are two categories: temporary total incapacity and permanent total incapacity. Temporary total incapacity applies to an employee . . . who is unable to seek any type of employment because of disability. Total permanent incapacity refers to an employee who is totally incapacitated and receives an additional benefit based on the permanent loss of a body part. This is in contrast to partial disability, where the employee is able to find alternative employment but experiences a wage loss as a result of the disability.” Laliberte v. United Security, Inc., 261 Conn. 181, 182-83 n.l, 801 A.2d 783 (2002).

       Kaplan diagnosed the plaintiff with post-traumatic arthrosis.

       The commissioner’s award stated that the amount of attorney’s fees would be “determined by evidence and testimony at a future hearing.”

       In Ms brief, the plaintiff states that “[o]bviously [he] is not asserting any right to a double recovery here, as he would be required to reimburse the [defendant] for any temporary total benefits paid, minus the interest and attorney’s fees.” At oral argument, counsel for the plaintiff offered to stipulate that the plaintiff was not seeldng a double recovery. The court rejected his offer, noting that it was limited to consideration only of the record before it.
      Furthermore, we note that in his brief to the board and in Ms appellate brief, the plaintiff stated that he would be obligated to reimburse the defendant for his temporary total disability benefits, but at oral argument, he offered to reimburse the state for his wages, not the temporary total disability benefits.

       “In workers’ compensation cases, the injured employee bears the burden of proof, not only with respect to whether an injury was causally connected to the workplace, but that such proof must be established by competent evidence.” (Internal quotation marks omitted.) Greene v. Aces Access, 110 Conn. App. 648, 651-52, 955 A.2d 616 (2008).

       In Laliberte v. United Security, Inc., 261 Conn. 181, 186-89, 801 A.2d 783 (2002), our Supreme Court held that General Statutes § 31-307 (a) contained no provision for the discontinuance of temporary total disability benefits on the basis of the subsequent incarceration of the injured employee. It reasoned that it was not the role of the court to engraft language into the intricate and comprehensive workers’ compensation scheme.
      We are not aware of language in our statutes that expressly prohibits the receipt of both wages and temporary total disability benefits. Nevertheless, despite the lack of such an express prohibition, we must construe statutes “in view of [their] societal purpose in order to obtain a result which is neither incongruous nor irrational.” (Internal quotation marks omitted.)
        Ancona v. Norwalk, 217 Conn. 50, 56, 584 A.2d 454 (1991); see also Middletown v. Local 1073,1 Conn. App. 58,63,467 A.2d 1258 (1983), cert. dismissed, 192 Conn. 803, 471 A.2d 244 (1984).

       We do not suggest that there are no means by which the defendant could attempt to seek reimbursement.

       The requested insertions, as set forth in the defendant’s motion to correct, provided:
      “18. Under cross-examination, the [plaintiff] was asked if from June, 2004-March, 2005, he had treated for any other body part other than his right shoulder. The [plaintiffs] answer [was that] ‘[Kaplan] . . . was also aware of a left shoulder injury and that I might have been incidentally treating for that at the same time.’ He had no recall of getting injections for his left shoulder. T., pp. 18-19
      “19. [The plaintiffs] testimony is contradicted by the medical record. When he went to Dr. Kaplan in August, 2004, it was because of both shoulders, and the [plaintiff] himself requested a left shoulder injections, which was then given. Dr. Kaplan, August 12,2004 and February 23,2004 report. On February 23, 2005, another injection was done on the left shoulder. Dr. Kaplan March 29, 2005 report.
      “20. Comparing [the plaintiffs] testimony to the medical reports, for whatever reason, the [plaintiff] could reasonably be viewed as an unreliable witness. In fact, after Dr. Kaplan’s December 15, 2004 report, it is [the plaintiffs] left should[er] which was his most pervasive problem. T., pp. 18-19, Dr. Kaplan’s reports.”


author: BISHOP, J.

text:
    KENDALL R. LEWIS v. FRAZAO BUILDING CORPORATION ET AL.
    (AC 29126)
    Flynn, C. J., and Bishop and Borden, Js.

      Argued January 20
    officially released June 23, 2009

      James Colin Mulholland, for the appellant (plaintiff).

      Katherine L. Matthews, with whom was R. Bradley Wolfe, for the appellees (defendants).
   Opinion

BISHOP, J.

This case concerns a home improvement contract dispute. The matter was referred to attorney fact finder Tegan Blackburn, who filed a report, on the basis of which the trial court subsequently rendered judgment awarding only a portion of the damages claimed by the plaintiff, Kendall R. Lewis, against the defendant Frazao Building Corporation (Frazao Building) and no damages against the individual defendant Dennis Frazao. The plaintiff claims on appeal that the court improperly (1) found that there was sufficient evidence in the record to support the findings of fact made by the attorney fact finder, (2) considered the plaintiffs claim under the clearly erroneous standard of review and (3) failed to find Frazao personally liable for the breach of contract. We affirm the judgment of the trial court.

The following facts were adduced during hearings before the fact finder and subsequently accepted by the trial court. On April 17, 2003, the plaintiff and Frazao Building entered into a home improvement contract regarding renovations to be done to the plaintiffs home. Under the terms of the contract, the work was to be completed in accordance with plans prepared by the project’s architect, Hartford Design Associates, for the sum of $43,015. The contract provided that certain changes had been discussed and approved for the installation of abasement hatchway for $1025, the installation of heating radiators for $3500, the installation of Trex flooring for an additional $850 and the reroofing of the front of the house for an additional $1100. The contract further provided that all fixtures were to be installed by the plumber. As of July 10, 2003, the plaintiff had paid the defendant $28,951.

The parties’ professional relationship began to deteriorate following the plaintiffs request for numerous changes to the original plans. The plaintiffs proposed changes, which were not incoiporated into the contract by written change order, primarily concerned the deck, the roof and the dimensions of a bathroom and its adjoining wall. Because the parties could not agree on what the building code requirements were for the proposed changes, the defendant was hesitant to proceed because he would have to correct, at his expense, any renovations later determined to be in violation of the building code. Accordingly, the parties were unable to reach a resolution concerning the plaintiffs proposed modifications. On August 9, 2003, the plaintiff sent Frazao Building a letter stating that the remaining work was to be completed in one week. Frazao Building construed the letter as terminating its services, and on August 13, 2003, it ceased working on the project. The plaintiff claims that he incurred additional expenses to complete the project and to repair some of Frazao Building’s work.

On February 1, 2004, the plaintiff filed the present action against the defendants, seeking damages totaling $17,777.65 for breach of contract. The complaint alleged, inter alia, that Frazao Building and Frazao “unilaterally ceased work on the contract leaving the home improvements called for under the contract substantially incomplete” and that the plaintiff suffered actual losses as a consequence of the defendants’ breach. The defendants filed an answer and special defense on May 18,2004, asserting that the plaintiff had terminated their services, thereby excusing the defendants’ performance.

Pursuant to Practice Book § 23-53, the case was referred to an attorney fact finder, who heard evidence on the matter on April 18, May 16 and July 11, 2005. The fact finder concluded that Frazao Building did not meet its burden of proof by offering any evidence or credible testimony that it was discharged or otherwise justified in abandoning the project. The fact finder noted that the plaintiff offered extensive evidence of his material and labor costs. The fact finder determined from the plaintiffs testimony that numerous changes not part of the original contract were made during the course of renovations, that certain areas of work were to be completed at an additional cost under the original contract and that the construction delays were due to the plaintiffs proposed changes. The fact finder concluded that the completed project improvements were not the same as those contemplated under the original contract. The fact finder recommended that the plaintiff be awarded $5000 in contract damages and $11,000 in attorney’s fees for a total award of $16,000. The fact finder further recommended that Frazao Building should only be required to remove debris from the project site, to repair damage to the home’s landscaping and to return the site to its original condition because those items fell within the scope of the original contract. The fact finder did not find that Frazao should be held individually hable.

The plaintiff objected to the acceptance of the findings of fact on December 6, 2005, arguing that (1) there was no evidence in the record to support the fact finder’s finding that the project improvements as completed were not contemplated in the original contract, (2) there was no evidence in the record to support the fact finder’s finding that certain changes made dining the course of renovations were not included in the original contract or contract price, (3) the fact finder’s finding that certain projects were to be completed at an extra cost was legally incorrect because the contract unambiguously includes these costs, (4) there was substantial credible evidence in the record to support a finding that the plaintiff incurred additional costs to correct work inadequately performed by the defendants and (5) there was substantial credible evidence in the record to support a judgment against Frazao. Following the filing of the plaintiffs objections, the fact finder submitted supplemental findings of fact, and, on October 26, 2006, the court, Miller, J., accepted the fact finder’s report and supplemental findings over the plaintiffs objections. This appeal followed. Additional facts will be set forth as necessary.

We begin our analysis by setting forth the applicable standard of review. “Attorney fact finders are empowered to hear and decide issues of fact on contract actions pending in the Superior Court .... On appeal, [o]ur function ... is not to examine the record to see if the trier of fact could have reached a contrary conclusion. . . . Rather, it is the function of this court to determine whether the decision of the trial court is clearly erroneous. . . . This involves a two part function: where the legal conclusions of the court are challenged, we must determine whether they are legally and logically correct and whether they find support in the facts set out in the memorandum of decision; where the factual basis of the court’s decision is challenged we must determine whether the facts set out in the memorandum of decision are supported by the evidence or whether, in light of the evidence and the pleadings in the whole record, those facts are clearly erroneous.” (Internal quotation marks omitted.) Mastroianni v. Fairfield County Paving, LLC, 106 Conn. App. 330, 335, 942 A.2d 418 (2008). “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.” (Internal quotation marks omitted.) Carroll v. Perugini, 83 Conn. App. 336, 339-40, 848 A.2d 1262 (2004).

“Finally, we note that, because the attorney [fact finder] does not have the powers of a court and is simply a fact finder, [a]ny legal conclusions reached by an attorney [fact finder] have no conclusive effect. . . . The reviewing court is the effective arbiter of the law and the legal opinions of [an attorney fact finder], like those of the parties, though they may be helpful, carry no weight not justified by their soundness as viewed by the court that renders judgment.” (Internal quotation marks omitted.) Mastroianni v. Fairfield County Paving, LLC, supra, 106 Conn. App. 335. With the foregoing in mind, we now turn to the plaintiffs specific claims.

I

The plaintiff first claims that the court improperly found that there was sufficient evidence in the record to support the findings of fact made by the fact finder. Specifically, the plaintiff argues that he offered evidence showing that he had incurred additional costs to complete and to correct work performed by the defendants and that those project improvements were contemplated under the original contract. He claims, therefore, that the fact finder’s findings from the evidence were clearly erroneous. We do not agree.

The following additional facts are necessary for our review of the plaintiffs claim. During the hearings before the fact finder, the plaintiff offered invoices, receipts and a one page summary sheet to show the construction costs that he had incurred from other tradespeople to complete the project. The sheet listed a number of contractors, the work that they had performed and the cost of their services. The plaintiff claims that these contractors completed and repaired work that had been included in the architect’s plans and that, under the original contract, the defendants were obligated to complete the project in accordance with those plans. Additionally, the plaintiff offered testimony, photographs of the project site and a building inspector’s report in an effort to show that the defendants’ work was done incorrectly and had to be redone.

The plaintiff contends that he offered ample evidence to show that he had incurred additional costs to complete and to repair the defendants’ work and that those costs related to items that were contemplated under the original contract. Conversely, the fact finder found that “[t]he plaintiff did not offer any testimony or evidence from any of the trades he used to complete the project to support his claim that the defendants’ work needed to be corrected, nor did he indicate what costs, if any, were attributable to the corrections. The plaintiff homeowner’s testimony and the photographs offered into evidence did not establish anything other than unresolved issues and construction in progress.” The fact finder noted that in August, 2003, when the inspection report was issued, many of the project items remained unresolved due to the parties’ inability to agree on the applicable building code requirements for the plaintiffs proposed changes. The fact finder also noted that it was evident from the architect’s testimony that the final project differed from the original plans.

Our careful review of the record reveals that there was sufficient evidence to support the fact finder’s finding that the plaintiff failed to prove that he had incurred additional costs due to the defendants’ breach. There was ample evidence that the plaintiff proposed numerous changes to the plans as the project progressed and that the parties did not incorporate those changes into the contract by written change order. Moreover, the record supports the fact finder’s findings that the documents that the plaintiff offered to show the construction costs he had incurred to complete the project were so general that it was impossible to determine which costs, if any, were incurred to repair the defendants’ work, and which may have related to change orders not contemplated in the original contract. Finally, although the plaintiff offered an August, 2003 home inspection report to show that the defendants’ work required repair, the state of the record supports the fact finder’s finding that the inspector’s report provided an inadequate evidentiary foundation for an award of damages equal to the costs allegedly incurred by the plaintiff in completing the project with the changes he had made while the project was underway. On this basis, we conclude that the court did not incorrectly determine that the fact finder’s determinations were supported by the record.

II

The plaintiff next claims that the court improperly considered the fact finder’s determination of the scope of the work performed pursuant to the home improvement contract under the clearly erroneous standard of review. Specifically, the plaintiff argues that because the contract was clear and unambiguous, the interpretation of the contract involved a legal determination, which a fact finder is not empowered to make. Accordingly, the plaintiff claims that the court should have accorded plenary review to the fact finder’s assessment of the scope of the contract. In response, Frazao Building argues that because the terms of the contract were not clear and unambiguous, it was appropriate for the fact finder to attempt to assess the intent of the parties in forming the contract, an essentially fact bound determination. On that basis, the defendants argue that the court properly assessed whether the fact finder’s conclusions were clearly erroneous. We agree with the defendants.

In regard to the plaintiffs claim, we must determine whether the court employed the proper standard of review in assessing the fact finder’s report, and, within this determination, we must assess whether the fact finder correctly determined that the scope of the work to be completed, as set forth in the contract, was uncertain. This issue presents a mixed question of law and fact, requiring us to assess applicable law as well as the record. Accordingly, our review is plenary. Duperry v. Solnit, 261 Conn. 309, 318, 803 A.2d 287 (2002) (“[questions of law and mixed questions of law and fact receive plenary review”). “Under plenary review, we must decide whether the trial court’s conclusions of law are legally and logically correct and find support in the record.” (Internal quotation marks omitted.) Joyner v. Simkins Industries, Inc., 111 Conn. App. 93, 97, 957 A.2d 882 (2008).

Our initial task is to determine whether the contract at issue was ambiguous, thereby making the fact finder’s interpretation of the contract’s scope a factual determination. Our review of this issue is guided by the following principles. “If a contract is unambiguous within its four comers, intent of the parties is a question of law requiring plenary review. . . . When the language of a contract is ambiguous, the determination of the parties’ intent is a question of fact, and the trial court’s interpretation is subject to reversal on appeal only if it is clearly erroneous.” (Citation omitted; internal quotation marks omitted.) Honulik v. Greenwich, 290 Conn. 421, 433, 963 A.2d 979 (2009).

“Well established principles guide our analysis in determining whether the language of a contract is ambiguous. [A] contract is ambiguous if the intent of the parties is not clear and certain from the language of the contract itself. [A]ny ambiguity in a contract must emanate from the language used by the parties. . . . In contrast, [a] contract is unambiguous when its language is clear and conveys a definite and precise intent. . . . The court will not torture words to impart ambiguity where ordinary meaning leaves no room for ambiguity. .. . Moreover, the mere fact that the parties advance different interpretations of the language in question does not necessitate a conclusion that the language is ambiguous.” (Internal quotation marks omitted.) Jo-Ann Stores, Inc. v. Property Operating Co., LLC, 91 Conn. App. 179, 190, 880 A.2d 945 (2005). We turn now to the relevant contract language.

The first paragraph of the contract states that “[w]e hereby propose to furnish all labor and materials— complete in accordance with the above specifications, for the sum of: $43,015.00.” The second paragraph states that “[a]ll work to be performed for addition is very clearly explained in the job blue prints supplied by the home owner.” The third paragraph states that “[t]he following changes have been discussed and approved for the following items, [i]nstall a basement [h]atchway to a full basement which does not appear on the prints for $1,025.00. Install [T]rex flooring to outside deck and covered porch for an additional $850.00. Reroof [the] front of the house to match the new addition for an additional $1,100.00. Install [h]eating radiators in [the] new addition and install to existing boiler for $3,500.00.” A handwritten note beneath the third paragraph states: “All fixtures to be installed by plumber per plumber.” The fourth paragraph provides the following payment schedule: the first payment of $8603 is to be paid at the contract signing, the second payment of $6682 is to be paid after the foundation is poured, the third payment of $13,366 is to be paid after the framing and roof are complete, the fourth payment of $6682 is to be paid after the electrical and plumbing is installed, the fifth payment of $6682 is to be paid after the Sheetrock is completed and the final payment of $1000 is to be paid after all miscellaneous work is complete, for a total sum of $43,015. A handwritten note beneath the fourth paragraph states that “[t]he above payment schedule includes all charges and costs associated with the addition project . . . .”

We agree with the defendants’ argument that it is not clear from the language of the contract whether the parties intended for the items listed in paragraph three to be included in the contract price of $43,015, or if they were additional costs. In paragraph three, the contract expressly states that the Trex flooring and roofing are to be installed for an additional fee. Beneath paragraph four, however, a handwritten note states that all charges and costs associated with the addition are included in the payment schedule. These two provisions appear to contradict one another, resulting in ambiguity. Moreover, the payment schedule, which totals $43,015, makes direct reference to certain project items but does not include any of the additional items listed in paragraph three.

On the basis of the foregoing, we conclude that the contract is ambiguous because the intent of the parties is not clear and certain from the language of the contract itself. See Jo-Ann Stores, Inc. v. Property Operating Co., LLC, supra, 91 Conn. App. 190. We further conclude that the fact finder’s interpretation of the ambiguous contract was thereby a factual determination that the court properly considered under the clearly erroneous standard of review. See Honulik v. Greenwich, supra, 290 Conn. 433. Moreover, because the contract is ambiguous, it was not improper for the fact finder to look to the plaintiff to adduce sufficient evidence of the scope of the work contemplated in the contract as well as to prove that any additional work he had performed by other contractors after Frazao Building left the job related to work contemplated in the contract.

Ill

The plaintiff finally claims that the court improperly failed to find Frazao personally liable for the breach of contract. Specifically, the plaintiff argues that there was ample evidence showing that Frazao Building was under Frazao’s complete control, Frazao used Frazao Building to the plaintiffs detriment, and, as such, Frazao should have been found individually hable under the “instrumentahty rule.” The plaintiff additionally contends that the question of whether the corporate veil should be pierced is one of law requiring plenary review. We do not agree.

“Whether the corporate veil should be pierced presents a question of fact, which we review under the clearly erroneous standard. . . . The instrumentahty test for piercing the corporate veil . . . requires . . . proof of three elements: (1) Control, not mere majority or complete stock control, but complete domination, not only of finances but of pohcy and business practice in respect to the transaction attacked so that the corporate entity as to this transaction had at the time no separate mind, will or existence of its own; (2) that such control must have been used by the defendant to commit fraud or wrong, to perpetrate the violation of a statutory or other positive legal duty, or a dishonest or unjust act in contravention of plaintiffs legal rights; and (3) that the aforesaid control and breach of duty must proximately cause the injury or unjust loss complained of.” (Citation omitted; internal quotation marks omitted.) Connecticut Light & Power Co. v. Westview Carlton Group, LLC, 108 Conn. App. 633, 640, 950 A.2d 522 (2008).

The fact finder stated in the supplemental findings of fact that “[t]he plaintiff did not estabhsh a sufficient basis for the imposition of damages against the defendant personally.” The fact finder noted that all of the contract documents “clearly reflect that the plaintiff was engaging the services of . . . Frazao Building . . . and that he was dealing with the corporate entity.” The fact finder also noted that although Frazao Building was responsible for some of the damages for the incomplete project, there was no wrongful or deceitful intent on its part or on the part of Frazao in abandoning the project. The fact finder also attributed the demise of the home improvement project to the plaintiffs architect, who was unable to resolve the issues that arose from the plaintiffs modifications to the original plans.

The record reveals that there is insufficient evidence to support finding Frazao individually liable. Frazao does not meet the first prong of the instrumentality rule because he does not have complete dominion over Frazao Building, as evidenced by the fact that he is an employee of Frazao Building, does not own any shar es of it and does not have exclusive control over its checkbook. Frazao’s relationship to Frazao Building does not meet the second and third prongs of the instrumentality rule. Moreover, even if Frazao did have complete control of Frazao Building, no fraud was committed that resulted in an injury to the plaintiff. See Connecticut Light & Power Co. v. Westview Carlton Group, LLC, supra, 108 Conn. App. 640. Frazao Building did not abandon the project with the intent to defraud the plaintiff. Rather, it left the project due to frustration over a number of unresolved issues, including the determination of what the building code requirements were for the proposed modified bathroom and garage demising wall, which the defendants would have had to correct at their expense if the work failed to meet the local standards. Moreover, Frazao Building was found responsible for a portion of the homeowner’s damages for the incomplete project. We conclude, therefore, that the court properly concluded that Frazao was not hable individually.

The judgment is affirmed.

In this opinion the other judges concurred.

       Pursuant to the corresponding blueprints, the roughed in plumbing for the bathroom toilet and sink were to be completed by Frazao Building, and the plaintiff was responsible for the bathroom fixtures.

       Practice Book § 23-53 provides in relevant part: “The court, on its own motion, may refer to a fact finder any contract action pending in the superior court ... in which money damages only are claimed, which is based upon an express or implied promise to pay a definite sum, and in which the amount, legal interest or property in controversy is less than $50,000, exclusive of interest and costs. . .

       The plaintiff additionally argues that the fact finder improperly concluded that general plumbing work was not contemplated under the original contract because it was referenced in the blueprints and incorporated by reference into the contract. We agree with the plaintiff that the fact finder’s finding that plumbing was not included in the original contract may be clearly erroneous in light of the plumbing specifications set forth in the plans referenced in the contract. This point, however, does not advance the plaintiff’s damages claims on appeal because the fact finder determined that the plaintiff had not met his burden of proof as to his claim for damages related to additional work performed after Frazao Building left the job. In other words, even if the fact finder erroneously determined that plumbing was not contemplated in the contract, the record does not belie her finding that the plaintiff failed to prove that the plumbing work completed by another contractor related to the original contract.

       Frazao’s mother and father each own 50 percent of Frazao Building’s stock.