author: SHEA, J.

text:
    EDWARD LOFTUS v. RAY VINCENT
    (AC 16681)
    Foti, Lavery and Shea, Js.

      Argued February 25
    officially released June 16, 1998

      Prescott W. May, for the appellant (defendant).

      Bruce S. Gordon, with whom were Ronald D. Japha and, on the brief, Richard S. Scalo and Abraham I. Gordon, for the appellee (plaintiff).
   Opinion

SHEA, J.

The defendant, Ray Vincent, doing business as Vincent’s Texaco, appeals from the decision of the workers’ compensation commissioner that the defendant violated General Statutes § 31-290a (a) by discharging his employee, Edward Loftus, the plaintiff, because of a workers’ compensation claim that arose in the course of his employment. The commissioner awarded the plaintiff “damages,” “out-of-pocket” costs and attorney’s fees.

The defendant contends that the decision should be reversed for the following reasons: (1) the plaintiff was never discharged; (2) the evidence is insufficient to satisfy the requirements established by our precedent for proof of a wrongful termination; (3) one of the commissioner’s findings is unsupported by the evidence; and (4) the commissioner’s award should be reduced by the amount the plaintiff received as workers’ compensation benefits during the period for which the commissioner awarded him back wages. We conclude that only the final claim has merit.

The relevant facts are taken from the commissioner’s findings. The plaintiff began working for the defendant, who operated a service station, in August, 1994, averaging forty-four hours per week. On May 21, 1995, the plaintiff was working the 2 p.m. to 11 p.m. shift when, at approximately 9 p.m., he injured his back as he was emptying a garbage can into the dumpster on the premises. He immediately telephoned his employer, the defendant, informed him of his injury and requested assistance. The defendant told him to close the gas station early and, if necessary, to go to a hospital.

The plaintiff had begun to close the gas station when the defendant telephoned and inquired about the nature of the plaintiffs injury and how it occurred. The defendant indicated that he was doubtful about the plaintiffs account of the accident. The plaintiff closed the gas station early and went to a hospital emergency room, where he was treated for his injury and released. A physician at the hospital gave him a note for his employer indicating that he should not work for three days.

The next morning, the plaintiff sent his son to deliver the note to the defendant. The defendant refused to accept or read the note and told the son to inform the plaintiff that he must return his keys and uniforms immediately or he would call the police. When his son returned with this message, the plaintiff telephoned the defendant and, after a heated discussion, the defendant again threatened to call the police if the plaintiff failed to return the keys and uniforms immediately. The plaintiff sent his son back to the defendant’s house to deliver the keys and uniforms as requested. The plaintiff never attempted to return to his job at the defendant’s gas station, nor did the defendant request that he return.

I

The defendant maintains that, because he never told the plaintiff expressly that he was discharged or fired, the plaintiff has not established an essential element of his case.

Section 31-290a (a) contains no requirement that any particular word be used in the process of terminating an employee’s employment. Any words or conduct that an employee would reasonably understand to signify that his employment was terminated are sufficient. On appeal, the defendant does not contest the commissioner’s finding that the defendant told the plaintiff during their telephone conversation on May 22, 1995, that the uniforms and keys to the gas station should be delivered to the defendant immediately, or he would call the police. The defendant does not challenge the finding that he had given the same message to the plaintiffs son earlier that morning. The defendant’s conduct does not warrant any inference that the plaintiff should have drawn from the demand that he return the items he needed to continue his employment, except that his employment was terminated. We conclude that the finding of a discharge is amply supported by the evidence.

II

The defendant maintains that the evidence presented to the commissioner fails to satisfy the standards established in Ford v. Blue Cross & Blue Shield of Connecticut, Inc., 216 Conn. 40, 54, 578 A.2d 1054 (1990), for proof of a retaliatory discharge in violation of § 31-290a (a). We disagree.

“The plaintiff bears the initial burden of proving by the preponderance of the evidence a prima facie case of discrimination. ... In order to meet this burden, the plaintiff must present evidence that gives rise to an inference of unlawful discrimination. ... If the plaintiff meets this initial burden, the burden then shifts to the defendant to rebut the presumption of discrimination by producing evidence of a legitimate, nondiscriminatory reason for its actions. ... If the defendant carries this burden of production, the presumption raised by the prima facie case is rebutted, and the factual inquiry proceeds to a new level of specificity. . . . The plaintiff then must satisfy [his] burden of persuading the factfinder that [he] was the victim of discrimination either directly by persuading the court . . . that a discriminatory reason more likely motivated the employer or indirectly by showing that the employer’s proffered explanation is unworthy of credence.” (Citations omitted; internal quotation marks omitted.) Id., 53-54.

Despite the defendant’s claim to the contrary, we conclude that the commissioner’s factual findings and the conclusions drawn therefrom adequately satisfy these criteria. The commissioner found that (1) the plaintiff had worked several years for the defendant and had a good work history, (2) after the plaintiff had quit his employment at the gas station, approximately one month before his discharge, the defendant persuaded him to return and allowed him to earn substantial amounts of overtime pay at the gas station, (3) although the defendant briefly discussed a customer complaint with the plaintiff at the start of his shift on the date he was injured, their relationship remained harmonious until the plaintiff telephoned him about his injury and the defendant realized that a workers’ compensation claim might arise and (4) the reaction of the defendant, when he received the note from a physician directing a suspension of the plaintiffs employment for three days, was highly significant in establishing that the plaintiffs discharge had resulted from the defendant’s concern about his liability for a workers’ compensation claim. Those findings are adequately supported by the evidence and sufficiently establish a prima facie case of a violation of § 31-290a (a).

III

The finding that the defendant claims is not supported by the evidence relates to testimony of a witness called by the defendant at the healing. At the hearing, the defendant testified that he was not satisfied with the plaintiffs job performance because of numerous complaints from customers about his refusing to check the oil in their engines, closing the station early and telling them falsely that the air compressor was not working when they wanted him to inflate their tires. Only one of those customers, however, testified at the hearing. She said that “about a year ago” she had gone to the gas station and asked the plaintiff to check the oil in her car, but he had refused in a very rude manner. The date of the hearing was August 14, 1996, and “about a year ago” would refer to approximately August 14,1995. The defendant concedes that the plaintiff did not work at the gas station after May 21, 1995. The commissioner’s finding mistakenly assumes that this witness was referring to a date “approximately one year before” May 21, 1995, i.e., May 21, 1994. One of the commissioner’s conclusions alludes to “questionable witness testimony” presented by the defendant in his “futile attempt to characterize the [plaintiff] as a poor employee.”

The commissioner’s misapprehension concerning the time of the incident related by the customer is of little consequence, however, in view of his remaining conclusions, which are well supported by the evidence. Significantly, he concluded that the “employer’s termination of the [plaintiff] began within a short time of the [plaintiffs] first notifying the employer of his injury on the night of May 21,1995, as was manifested by the employer’s return phone call to the [plaintiff] at the business shortly after the [plaintiff] made the initial phone call, at which time the employer began to question the cause of [the plaintiffs] injury and deny that it could have happened as described by the [plaintiff].” Although the defendant may not have been wholly satisfied with the plaintiffs performance, he never indicated that he intended to discharge him until after he learned of the plaintiffs injury. As the fact finder, the commissioner had broad discretion in determining the facts. Nothing in the defendant’s presentation obligated the commissioner to conclude that the defendant had rebutted the presumption that arose from the plaintiffs prima facie case. The determination of factual issues depends largely on the fact finder’s evaluation of the credibility of witnesses and an appellate court must accept the fact finder’s resolution of those issues if it is reasonably supported by the evidence. Doyle v. Kulesza, 197 Conn. 101, 105, 495 A.2d 1074 (1985); Bead Chain Mfg. Co. v. Saxton Products, Inc., 183 Conn. 266, 276-77, 439 A.2d 314 (1981). The commissioner’s findings satisfy that standard.

IV

The defendant’s final claim is that the commissioner failed to offset the award of $12,747.24 by the amount that the plaintiff received as workers’ compensation benefits as a result of the injury he sustained on May 21, 1995, the day before he was discharged. In his decision, the commissioner does not mention the compensation benefits the plaintiff received, but during oral argument it was not disputed that the amount of those payments was approximately $6000.

Long ago, this state adopted the position that “[o]ur [Workers’ Compensation] Act does not permit double compensation.” Olmstead v. Lamphier, 93 Conn. 20, 23, 104 A. 488 (1918). 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. Maciejewski v. West Hartford, 194 Conn. 139, 151, 480 A.2d 519 (1984); Middletown v. Local 1073, 1 Conn. App. 58, 65-66, 467 A.2d 1258 (1983), cert. dismissed, 192 Conn. 803, 471 A.2d 244 (1984). 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.

The plaintiff maintains that workers’ compensation payments cannot be offset against an award for retaliatory discharge because of the collateral source rule. We need not explore the intricacies of that claim. 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.

The plaintiff also contends that, unlike the Workers’ Compensation Act, which imposes liability on the employer regardless of fault for injuries sustained during employment, § 31-290a applies only to the intentional act of an employer in discharging an employee for a reason prohibited by law. We are not concerned with the possible merit of that argument in an action at law pursuant to § 31-290a (b), in which the statute provides for an award of “punitive damages” and “any other damages caused by such discrimination or discharge” in addition to reinstatement of the job, back wages, reestablishment of employee benefits and reasonable attorney’s fees. The plaintiff elected the forum provided by the commissioner for adjudication of his claim. In a proceeding before the commissioner under § 31-290a (b), there is no provision for “punitive damages” or “any other damages caused by” a retaliatory discharge. The only monetary awards that the commissioner was authorized to make were back wages and reasonable attorney’s fees.

Although we affirm the commissioner’s finding of a retaliatory discharge in violation of § 31-290a (b), the award of back wages must be reversed because of the failure of the commissioner to make “due allowance,” as required by § 31-314, for the payments made by the defendant during the period of the plaintiffs disability resulting from his injury.

The decision of the workers’ compensation commissioner is reversed only as to the award of back wages, and the case is remanded to the commissioner for further proceedings consistent with this opinion.

In this opinion the other judges concurred.

       General Statutes § 31-290a (a) provides: “No employer who is subject to the provisions of this chapter shall discharge, or cause to be discharged, or in any manner discriminate against any employee because the employee has filed a claim for workers’ compensation benefits or otherwise exercised the rights afforded to him pursuant to the provisions of this chapter.”

       The plaintiff testified at the hearing that, in their telephone conversation the morning after the injury occurred, the defendant had talked about the workers’ compensation claim and his concern about such a claim.

       See 4 A. Larson & L. Larson, Workers’ Compensation Law § 57.65 (1997); 9 A. Larson & L. Larson, supra, §§ 96.00 through 97.53 (1997).


source: Caselaw Access Project

author: HENNESSY, J.

license: Public Domain

text:
    WILLIAM PETAWAY v. COMMISSIONER OF CORRECTION
    (AC 16990)
    O’Connell, C. J., and Landau and Hennessy, Js.
    Submitted on briefs March 2
    officially released June 16, 1998

      Michael L. Moscowitz, special public defender, filed a brief for the appellant (petitioner).

      Michael Dearington, state’s attorney, and Ellen Jawilz and Christopher Alexy, assistant state’s attorneys, filed a brief for the appellee (respondent).
   Opinion

HENNESSY, J.

The petitioner, William Petaway, appeals from the denial of certification to appeal and the dismissal of his writ of habeas corpus. We affirm the habeas court’s denial of certification to appeal.

On July 30, 1992, the petitioner entered nolo contendere pleas with respect to charges arising from three separate shooting incidents. The trial court sentenced him to a total effective sentence of twenty-five years imprisonment, execution suspended after sixteen years, followed by three years probation. On October 17,1996, the petitioner filed a writ of habeas corpus alleging ineffective assistance of counsel.

Specifically, the petitioner’s writ alleged that his counsel was ineffective because he failed (1) to suppress a photographic array identification of the petitioner and (2) to advise the petitioner adequately with respect to the nolo contendere pleas that were entered. An evidentiary hearing was held on January 14, 1997, before the habeas court, Bishop, J., at which time the court dismissed the petition due to the petitioner’s failure to meet his burden of proving prejudice, as required by Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). Thereafter, the petitioner filed for certification to appeal the dismissal, which was denied on February 25, 1997.

“Faced with a habeas court’s denial of a petition for certification to appeal, a petitioner can obtain appellate review of the dismissal of his petition for habeas corpus only by satisfying the two-pronged test enunciated by our Supreme Court in Simms v. Warden, 229 Conn. 178, 640 A.2d 601 (1994), and adopted in Simms v. Warden, 230 Conn. 608, 612, 646 A.2d 126 (1994). First, he must demonstrate that the denial of his petition for certification constituted an abuse of discretion. Id. Second, if the petitioner can show an abuse of discretion, he must then prove that the decision of the habeas court should be reversed on its merits. Id.

“To prove an abuse of discretion, the petitioner must demonstrate that the [resolution of the underlying claim involves issues that] are debatable among jurists of reason; that a court could resolve the issues [in a different manner]; or that the questions are adequate to deserve encouragement to proceed further. . . . Id., 616, quoting Lozada v. Deeds, 498 U.S. 430, 432, 111 S. Ct. 860, 112 L. Ed. 2d 956 (1991). . . . Tatem v. Commissioner of Correction, 39 Conn. App. 813, 815-16, 667 A.2d 1295 (1995), cert. denied, 236 Conn. 904, 670 A.2d 1305 (1996).” (Internal quotation marks omitted.) Larkin v. Commissioner of Correction, 45 Conn. App. 809, 811, 699 A.2d 207 (1997).

We decline to reach the habeas court’s resolution of the petitioner’s ineffective assistance of counsel claim because we conclude that he has failed to prove that the habeas court abused its discretion. The petitioner incorrectly argues that the mere claim of ineffective assistance of counsel is sufficient to establish an abuse of discretion. He ignores the distinction between an allegation of an abuse of discretion and proving an abuse of discretion. As our courts have applied Lozada v. Deeds, supra, 498 U.S. 430, the mere allegation of a violation of a constitutional right is insufficient to meet the initial hurdle of proving an abuse of discretion when the habeas court has denied certification to appeal.

The appeal is dismissed.

In this opinion the other judges concurred.

       The petitioner pleaded nolo contendere to assatdt in the first degree in violation of General Statutes §§ 53a-8 and 53a-59 (a) (3), in connection with the November 12, 1991 shooting of Steven LeClaire. He also pleaded nolo contendere to two charges of attempt to commit assault in the first degree in violation of General Statutes §§ 53a-8 and 53a-59 (a) (1), in connection with the November 18,1991 shootings of Travis Pittman and Jeffrey Walker.

       The petitioner raised a pure ineffective assistance of counsel claim. To succeed, he must prove “(1) that his counsel’s performance fell below the required standard of reasonable competence or competence displayed by lawyers with ordinary training and skill in the criminal law; and (2) that this lack of competence contributed so significantly to his conviction as to have deprived him of a fair trial. Valeriano v. Bronson, 209 Conn. 75, 85-86, 546 A.2d 1380 (1988); see also Strickland v. Washington, [supra, 466 U.S. 687], A reviewing court can find against the petitioner on whichever ground is easier. Valeriano v. Bronson, supra [85-86]; Nardini v. Manson, 207 Conn. 118, 124, 540 A.2d 69 (1988). . . . Magnotti v. Meachum, 22 Conn. App. 669, 674, 579 A.2d 553 (1990).” (Internal quotation marks omitted.) Beasley v. Commissioner of Correction, 47 Conn. App. 253, 261-62, 704 A.2d 807 (1997), cert. denied, 243 Conn. 967, 707 A.2d 1268 (1998).


author: FOTI, J. SHEA, J.,

text:
    ALCA CONSTRUCTION COMPANY, INC. v. WATERBURY HOUSING AUTHORITY
    (AC 17325)
    Foti, Lavery and Shea, Js.
    Argued February 25
    officially released June 16, 1998

      Timothy S. Fisher, with whom were Frances Z. Calafiore and, on the brief, James N. Royster, for the appellant (plaintiff).

      Charles F. Corcoran III, with whom were Naomi B. Graubard and Roxanne Sinclair, for the appellee (defendant).
   Opinion

FOTI, J.

The plaintiff appeals from the judgment rendered by the trial court denying its application to compel arbitration and to appoint an arbitrator. The plaintiff claims that the trial court improperly concluded that (1) article 31 of the general conditions of the contract between the parties does not constitute an agreement to arbitrate and (2) the terms of a subsequent agreement were part of the contract between the parties and that agreement did not constitute an impermissible modification of the general conditions. We affirm the judgment of the trial court.

The material facts are not disputed. On April 22,1993, the plaintiff, ALCA Construction Company, Inc., and the defendant, the housing authority for the city of Waterbury, entered into a construction contract that called for the renovation of six buildings in a Waterbury public housing project known as Berkley Heights. The defendant received funding for the project from the Federal Department of Housing and Urban Development (HUD) and agreed to abide by HUD rules and regulations. Pursuant to HUD regulations, local housing authorities that receive HUD funding are required to use certain contract forms contained in HUD’s “procurement handbook,” and cannot modify those forms without HUD’s written approval. Form number 5370, entitled “General Conditions of the Contract for Construction,” is one of the forms that local housing authorities are required to use in accordance with HUD regulations.

On December 10,1996, the plaintiff submitted a claim to the defendant pursuant to article 31 of the general conditions of the contract between the parties. On February 24, 1997, the plaintiff filed a demand for arbitration with the American Arbitration Association. On March 17,1997, the defendant filed an answer and setoff to the plaintiffs demand. Two days later, on March 19, 1997, the defendant withdrew its answer and setoff, claiming that there was no agreement to arbitrate. On April 11,1997, the plaintiff filed an application to compel arbitration and to appoint an arbitrator. On June 3,1997, the trial court rendered judgment denying the plaintiffs application. The trial court concluded that the contract between the parties “cannot reasonably be read to mean that the parties entered into an agreement to arbitrate.”

I

As a preliminary matter, we must address the defendant’s claim that this appeal is moot and that we therefore lack subject matter jurisdiction to hear the appeal. The defendant alleges that the plaintiff has filed a complaint in the Superior Court raising the identical claim that it seeks to arbitrate. The defendant argues that, by filing a complaint, the plaintiff has acted inconsistently with the arbitration right that it claims to possess and, therefore, has waived that right.

Mootness deprives this court of subject matter jurisdiction. See First Trust National Assn. v. Hitt, 36 Conn. App. 171, 174, 649 A.2d 798 (1994). “When, during the pendency of an appeal, events have occurred that preclude an appellate court from granting any practical relief through its disposition of the merits, a case has become moot.” (Internal quotation marks omitted.) Loisel v. Rowe, 233 Conn. 370, 378, 660 A.2d 323 (1995). The test for determining mootness of an appeal is “whether there is any practical relief this court can grant the appellant.” Citicorp Mortgage, Inc. v. Hairston, 34 Conn. App. 138, 139, 640 A.2d 146 (1994). “[I]t is not the province of appellate courts to decide moot questions, disconnected from the granting of actual relief or from the determination of which no practical relief can follow. ... If no practical relief can be afforded to the parties, the appeal must be dismissed.” (Citations omitted; internal quotation marks omitted.) Gagnon v. Planning Commission, 24 Conn. App. 413, 415-16, 588 A.2d 1385 (1991), aff'd, 222 Conn. 294, 608 A.2d 1181 (1992).

In the present case, the plaintiff filed both an application to compel arbitration and a complaint for damages based on the defendant’s alleged breach of contract. General Statutes § 52-409 provides that “[i]f any action ... is brought by any party to a written agreement to arbitrate, the court in which the action ... is pending, upon being satisfied that any issue involved in the action ... is referable to arbitration under the agreement, shall, on motion of any party to the arbitration agreement, stay the action . . . until an arbitration has been had in compliance with the agreement . . . .” Because the other action may be stayed upon an order compelling arbitration in this action, this court is capable of providing practical relief to the plaintiff. Furthermore, we have held that “[t]he rule permitting dismissal of an action because of a prior pending action does not apply when the two actions are for different purposes or ends, or where they involve different issues.” Fishman v. Middlesex Mutual Assurance Co., 4 Conn. App. 339, 347-48, 494 A.2d 606, cert. denied, 197 Conn. 806, 499 A.2d 57 (1985). Here, the other action seeks damages for the defendant’s alleged breach of the parties’ contract; this action seeks only an order compelling the defendant to arbitrate. See id., 348.

We conclude that the filing of a civil complaint for damages based on the defendant’s alleged breach of the parties’ contract does not deprive this court of subject matter jurisdiction to determine whether the defendant may be compelled to arbitrate the plaintiffs claim.

II

The plaintiff makes two claims on appeal. First, that the trial court improperly concluded that article 31 of the general conditions of the contract between the parties does not constitute an agreement to submit to arbitration any disputes arising under the contract, and second, that the trial court improperly concluded that a subsequent agreement of the parties stating certain supplemental general conditions was part of the contract between the parties and did not constitute an impermissible modification of the general conditions.

“The authority for arbitration must be derived from the agreement of the parties . . . and the relevant provisions of applicable statutory directives.” (Citations omitted; internal quotation marks omitted.) Fink v. Golenbock, 238 Conn. 183, 194, 680 A.2d 1243 (1996); see General Statutes § 52-408 et seq. “An order to arbitrate the particular grievance should not be denied unless it may be said with positive assurance that the arbitration clause is not susceptible of an interpretation that covers the asserted dispute. Doubts should be resolved in favor of coverage.” (Emphasis in original; internal quotation marks omitted.) John A. Errichetti Associates v. Boutin, 183 Conn. 481, 489, 439 A.2d 416 (1981), quoting Board of Education v. Frey, 174 Conn. 578, 582, 392 A.2d 466 (1978). Whether there is a duty to arbitrate and, if so, the scope of that duty, “depend upon the terms of the agreement between the parties to [the] contract.” W. J. Megin, Inc. v. State, 181 Conn. 47, 51, 434 A.2d 306 (1980). Therefore, we must determine what arbitration provisions, if any, are contained in the contract.

Article 31 (e) of the general conditions of the contract between the parties provides: “The Contracting Officer’s decision [on a claim by the contractor] shall be final unless the Contractor (1) appeals in writing to a higher level in the PIIA/IHA in accordance with the PHA’s/IHA’s policy and procedures, (2) refers the appeal to an independent mediator or arbitrator, or (3) files suit in a court of competent jurisdiction. Such appeal must be made within (30 unless otherwise indicated) days after receipt of the Contracting Officer’s decision.”

After reviewing article 31, the trial court stated “that article 31 is merely a contract provision setting forth a series of potential or possible procedures which might be used in the resolution of disputes. . . . [I]t falls short of constituting an agreement to mediate or arbitrate. . . . [Conspicuously lacking from the agreement is a provision clearly stating that all, or a portion of any, disagreements or disputes arising out of the contract or the breach thereof shall be submitted to arbitration.” The trial court concluded that section (e) of article 31 is meaningless standing alone and that additional language is required to select one of the dispute resolution procedures set forth in that section. We do not agree.

The language contained in section (e) of article 31 is clear and unambiguous and does not require any supplemental language to effectuate its purpose. The parties clearly agreed, pursuant to section (e) of article 31, to give the contractor who is aggrieved by a decision of the contracting officer the unilateral right to exercise one of three options. One of those options is to appeal to an independent mediator or arbitrator. The parties agreed, therefore, that the plaintiff could appeal to an independent arbitrator.

Our conclusion that article 31 of the general conditions of the contract between the parties constitutes an agreement to arbitrate does not end our review of the plaintiffs claim. The parties entered into a subsequent agreement entitled “Supplemental General Conditions.” Article 31 of the supplemental general conditions provides:

“Forum Provision: Choice of Law, Consent to Jurisdiction and Venue
“This Contract shall be deemed to be executed in the City of Waterbury, State of Connecticut, regardless of the domicile of the Contractor, and shall be governed by and construed in accordance with the laws of the State of Connecticut.
“The parties agree that any and all claims asserted by or against the PHA arising under this Contract or related thereto shall be heard and determined either in the courts of the United States located in Connecticut (‘Federal Courts’) or in the courts of the State of Connecticut (‘Connecticut State Courts’) located in the County of New Haven, Connecticut. To affect this agreement and intent, the Contractor agrees:
“(a) If the PHA initiates any action against the Contractor in Federal Court or in Connecticut State Courts, service of process may be made on the Contractor either in person, wherever such Contractor may be found, or by registered mail addressed to the Contractor at its address as set forth in this Contract, or to such other address as the Contractor may provide to the PHA in writing; and
“(b) With respect to any action between the PHA and the Contractor in Connecticut State Courts, the Contractor hereby expressly waives and relinquishes any rights it might otherwise have (i) to move to dismiss on grounds of forum non conveniens, (ii) to remove to Federal Court; and (iii) to move for a change of venue to a Connecticut State Court outside New Haven County.
“(c) With respect to any action between the PHA and the Contractor in Federal Court located in Connecticut, the Contractor expressly waives and relinquishes any right it might otherwise have to move to transfer the action to a United States Court outside the State of Connecticut.
“(d) If the Contractor commences any action against the PHA in a court located other than in the City of Waterbury and State of Connecticut, upon request of the PHA, the Contractor shall either consent to a transfer of the action to a court of competent jurisdiction located in the City of Waterbury and State of Connecticut or, if the court where the action is initially brought will not or cannot transfer the action, the Contractor shall consent to dismiss such action without prejudice and may thereafter reinstitute the action in a court of competent jurisdiction in the City of Waterbury, Connecticut.”

The trial court relied on this forum selection provision to conclude that the parties did not agree to submit their disputes to arbitration. In addition, the court determined that the supplemental general conditions merely supplement the general conditions and do not violate any HUD regulations. We agree.

“[P]arties axe free to contract for whatever terms on which they may agree [and] ... a court must enforce the contract as drafted by the parties . . . unless the contract is voidable on grounds such as mistake, fraud or unconscionability.” (Internal quotation marks omitted.) Gibson v. Capano, 241 Conn. 725, 730-31, 699 A.2d 68 (1997). “Whether the parties to a contract intended to modify the contract is a question of fact.” Herbert S. Newman & Partners, P.C. v. CFC Construction Ltd. Partnership, 236 Conn. 750, 762, 674 A.2d 1313 (1996). However, “[w]here there is definitive contract language, the determination of what the parties intended by then-contractual commitments is a question of law. . . . Mulligan v. Rioux, 229 Conn. 716, 740, 643 A.2d 1226 (1994).” (Internal quotation marks omitted.) Gateway Co. v. DiNoia, 232 Conn. 223, 229, 654 A.2d 342 (1995). “When . . . the trial court draws conclusions of law, [the scope of our appellate] review is plenary and we must decide whether its conclusions are legally and logically correct and find support in the facts that appear in the record. Practice Book § 4061 [now Practice Book (1998 Rev.) § 60-5]; United Illuminating Co. v. Groppo, 220 Conn. 749, 752, 601 A.2d 1005 (1992); Zachs v. Groppo, 207 Conn. 683, 689, 542 A.2d 1145 (1988); Pandolphe’s Auto Parts, Inc. v. Manchester, 181 Conn. 217, 221-22, 435 A.2d 24 (1980).” Morton Buildings, Inc. v. Bannon, 222 Conn. 49, 53, 607 A.2d 424 (1992).

In this case, the trial court’s determination that the supplemental general conditions are part of the contract between the parties and do not constitute an impermissible modification of the general conditions was a conclusion of law. Our review leads us to agree with the trial court that the supplemental general conditions are part of the contract between the parties. When viewed in its entirety, the contract clearly expresses the agreement of the parties to supplement section (e) of article 31 of the HUD general conditions by selecting one of the three dispute resolution procedures provided in that section. The definitive language of the contract, therefore, expresses the parties’ agreement to resolve their disputes in a court of law rather than by arbitration. In addition, we do not consider the supplemental general conditions to be an impermissible modification of the general conditions in violation of HUD regulations. Pursuant to the general conditions, the plaintiff had a unilateral right to select one of three options to appeal an adverse decision of the contracting officer. The plaintiff forfeited two of those options, however, by agreeing to supplement the general conditions. The supplemental agreement did not impermissibly modify the contract, but rather, supplemented its meaning by designating which of the three methods of dispute resolution, referenced in article 31 of the general conditions, would be employed by the parties in the event that a dispute should arise.

The judgment is affirmed.

In this opinion LAVER Y, J., concurred.

SHEA, J.,

concurring in part and dissenting in part. I agree with part I of the majority opinion, which rejects the defendant’s claim of mootness based on the plaintiffs pending suit in the Superior Court for breach of contract against the defendant. I also agree with the portion of part II stating that “[t]he parties clearly agreed, pursuant to section (e) of article 31 [of the general conditions], to give the contractor who is aggrieved by a decision of the contracting officer the unilateral right to exercise one of three options. One of those options is to appeal to an independent mediator or arbitrator. The parties agreed, therefore, that the plaintiff could appeal to an independent arbitrator.”

I disagree, however, with the remainder of part II in which the choice of forum provision of article 31 of the supplemental general conditions is deemed to override the arbitration option created by article 31 of the general conditions, despite the provision in the HUD procurement manual prohibiting any modification of the general conditions without HUD approval. The defendant does not claim to have obtained any such approval. The majority opinion does not challenge the effectiveness of that provision, but maintains that elimination of the arbitration option granted by article 31 of the general conditions is not a modification thereof. Any substantial change in the legal rights of a party to a contract, including the procedural right to arbitrate a dispute, would constitute such a modification. Since the majority opinion construes article 31 of the general conditions to give the plaintiff three options for dispute resolution, it follows that restricting the plaintiff to a single choice, a lawsuit, as provided in article 31 of the supplemental conditions, constitutes a modification prohibited by the HUD procurement manual.

Even if there were no prohibition in the HUD procurement manual against modification of the general conditions without HUD approval, the conflict between the dispute resolution procedures set forth in the general conditions and those in the supplemental general conditions create an ambiguity. Ambiguities in contract documents are ordinarily construed against the party who drafted them, in this case the defendant. As the majority opinion recognizes, the law favors arbitration and that procedure must be followed “unless it may be said with positive assurance that the arbitration clause is not susceptible of an interpretation that covers the asserted dispute.” John A. Errichetti Associates v. Boutin, 183 Conn. 481, 489, 439 A.2d 416 (1981).

The majority opinion, despite its conclusion that article 31 of the general conditions gave the plaintiff three options for dispute resolution, including arbitration, assumes that the plaintiff exercised the lawsuit option by executing the contract, which contained both the general and the supplemental general conditions. I do not understand how the same stroke of the pen in executing that contract can both create the option of arbitration and also nullify it long before any dispute arose that would occasion its exercise.

I would reverse the judgment.

       In addition to arguing that the language of the contract constituted an agreement between the parties to submit their disputes to arbitration, the plaintiff also argued that because the defendant initially filed an answer and setoff, it waived its right to object to arbitration. The plaintiff did not pursue this claim on appeal.

       The trial court also stated that “in any event, the supplemental general conditions are still enforceable as between the actual signatories to the contract . . . .”

       Article 4 of the document entitled “Form of Contract” was signed by the parties on April 22,1993, and provides in relevant part that “ [t] he contract shall consist of this instrument and the following component parts . . . Supplemental General Conditions ....
      “In the event that any provision in any component part of this Contract conflicts with any provision in any other component part, the provision in the component part first enumerated in this Article 4 shall govern, except as otherwise specifically stated. . . .”


text:
    DANIEL F. LAKE v. ROSE MARIE LAKE
    (AC 16732)
    Spear, Hennessy and Sullivan, Js.
    Argued February 24
    officially released June 16, 1998

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

      Lisa A. Faccadio, with whom, on the brief, was Christine S. Dorsey, for the appellee (defendant).
   Opinion

HENNESSY, J.

The plaintiff, Daniel F. Lake, appeals from the judgment of the trial court dissolving his marriage to the defendant, Rose Marie Lake. He claims that the trial court improperly ordered him to obtain and to maintain life and medical insurance for the benefit of the defendant as part of the judgment of dissolution. We agree and reverse the judgment of the trial court in part.

I

The plaintiff first claims that the trial court did not have sufficient evidence before it regarding the cost and availability of life insurance and, therefore, in accordance with our holding in Michel v. Michel, 31 Conn. App. 338, 624 A.2d 914 (1993), the court abused its discretion in rendering an order that the plaintiff insure his life for the benefit of the defendant. In response, the defendant contends that General Statutes § 46b-82 allows the court to order either party to maintain life insurance for the benefit of the other in order to secure an award of alimony. In support of her argument, the defendant cites Papageorge v. Papageorge, 12 Conn. App. 596, 598, 533 A.2d 229 (1987), for the proposition that if there is a life insurance policy in effect at the time that dissolution orders are set forth, the court, as a matter of law, has sufficient information before it to order that the plaintiff obtain and maintain a life insurance policy on himself for the defendant’s benefit.

Here, the trial court ordered the plaintiff to maintain life insurance in an amount of no less than $100,000, naming the defendant as the irrevocable beneficiary. The plaintiffs financial affidavit reflected that he had one life insurance policy in the face amount of $80,000. At the time of the dissolution, however, pursuant to the order of the court, he was required to liquidate the cash value of this policy and pay one half of the policy’s value to the defendant’s counsel.

Our standard of review is well settled. “We review financial awards in dissolution actions under an abuse of discretion standard. Rostain v. Rostain, 214 Conn. 713, 715-16, 573 A.2d 710 (1990).” Puris v. Puris, 30 Conn. App. 443, 449, 620 A.2d 829 (1993). “In order to conclude that the trial court abused its discretion, we must find that the court either incorrectly applied the law or could not reasonably conclude as it did. Beede v. Beede, 186 Conn. 191, 194, 440 A.2d 283 (1982).” Sweet v. Sweet, 190 Conn. 657, 664, 462 A.2d 1031 (1983).

The pivotal issue in this appeal is whether the court had sufficient evidence before it regarding the cost and the availability of the life insurance that it ordered the plaintiff to obtain and to maintain for the defendant’s benefit. We conclude that the resolution of this issue is controlled by Michel v. Michel, supra, 31 Conn. App. 338. In Michel, we held that “the trial court, in its commendable desire to ensure that funds would be available for the support of the defendant . . . attempted to make a fund available for that purpose through the vehicle of life insurance. Such an order is very often an appropriate and necessary component of a judgment of dissolution of marriage. Indeed, orders requiring the maintenance of life insurance have been approved on numerous occasions by our courts. See Leo v. Leo, 197 Conn. 1, 495 A.2d 704 (1985); Wolk v. Wolk, 191 Conn. 328, 464 A.2d 780 (1983); Broaca v. Broaca, 181 Conn. 463, 435 A.2d 1016 (1980); Mauro v. Mauro, 16 Conn. App. 680, 548 A.2d 471 (1988); Papageorge v. Papageorge, [supra, 12 Conn. App. 533]. In each of these cases, however, it is important to note that the life insurance policy was in existence at the time of the judgment. The trial court in each of these cases, therefore, had available to it all of the information necessary to craft an appropriate order regarding such insurance. . . . Without knowing the availability of such insurance, the trial court has entered an order with which the plaintiff may not be able to comply. . . . Under these circumstances, we must conclude that the court’s order regarding life insurance lacks a reasonable basis in the facts.” Michel v. Michel, supra, 340-41; see also Wolf v. Wolf, 39 Conn. App. 162, 171-72, 664 A.2d 315 (1995).

In the present case, there was no evidence before the trial court regarding the cost to the plaintiff of obtaining and maintaining life insurance in the amount of $100,000, or whether such insurance is available to the plaintiff. Pursuant to our decision in Michel, this evidence was requisite to the trial court’s determination that the plaintiff obtain and maintain a life insurance policy.

II

The plaintiffs second claim is that the trial court improperly ordered that he maintain medical insurance for the benefit of the defendant as long as the plaintiff is obligated to pay alimony. We agree.

The trial court had the testimony of both the plaintiff and the defendant along with their respective financial affidavits before it for consideration. The extent of the evidence that was proffered regarding medical insurance was limited to the defendant’s testimony that she had recently “gone through some [medical] exams” and “everything came back negative.”

There was no evidence of the availability of medical insurance or its cost. Therefore, the evidence before the court did not allow it to evaluate the ability of the plaintiff to comply with the order to obtain and to maintain medical insurance for the defendant. On April 17, 1997, the plaintiff filed a motion for articulation requesting, inter alia, that the trial court articulate its basis for the order of medical insurance. This motion was denied by the trial court and the plaintiff filed a motion for review with this court. We granted review but denied the relief that was requested by the plaintiff.

The defendant relies on Damon v. Damon, 23 Conn. App. 111, 114, 579 A.2d 124 (1990), wherein this court upheld a trial court order that the husband provide lifetime alimony and lifetime maintenance of medical insurance for his wife. In Damon, this court made no mention of the availability, cost or insurability as prerequisites for an order requiring the maintenance of medical insurance. The defendant contends that Damon supports the proposition that no such prerequisites are required here. We disagree.

The facts in Damon differ from those in the present case in that, in Damon, the order to maintain medical insurance was conditioned on the medical coverage being “available as an incident of his employment or former employment.” Id., 114-15. In the present case, there exists an obligation both to seek out and to maintain medical insurance after the cessation of benefits, irrespective of its availability. We conclude that the trial court could not reasonably find as it did.

In an alternative argument, the defendant contends that, in any event, the award should be upheld because, as part of an alimony order, the order to maintain medical insurance can be modified if it is unavailable or too costly. This argument does not persuade us. The issue here is not whether the order is modifiable but whether the court had a sufficient evidentiary basis for issuing the order. There was no evidence regarding cost or availability of medical insurance before the court on which it could base its order and evaluate the effect of this order on the remaining financial orders. Accordingly, we do not agree that an improper order is insulated from reversal simply because the plaintiff may, in an endeavor to correct the order, argue changed circumstances.

“Because the financial orders in an action for dissolution of marriage are of necessity interwoven and because the rendering of a judgment in an action for the dissolution of marriage is ‘a carefully crafted mosaic’; Ehrenkranz v. Ehrenkranz, 2 Conn. App. 416, 424, 479 A.2d 826 (1984); we must remand the case to the trial court for a new trial on all financial matters. Mulholland v. Mulholland, 26 Conn. App. 585, 590, 602 A.2d 1054 (1992).” Michel v. Michel, supra, 31 Conn. App. 341.

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

In this opinion the other judges concurred.

       The court order provides: “The plaintiff shall pay to the defendant as alimony $650 per week, terminable upon the death of either party or the defendant’s remarriage. As additional alimony, subject to the same contingencies, the plaintiff shall maintain medical insurance for the benefit of the defendant for so long as he is obligated to pay alimony. As part of this order, the plaintiff is ordered to arrange for and pay for the defendant’s COBRA benefits for so long as she is entitled under the law. When COBRA benefits cease, the plaintiff also as alimony, subject to the same contingencies, shall pay two thirds of the cost of the insurance policy and the defendant shall pay the balance.”


author: LANDAU, J.

text:
    KAREN GRIMES v. CONSERVATION COMMISSION OF THE TOWN OF LITCHFIELD
    (AC 14698)
    O’Connell, C. J., and Lavery and Landau, Js.
    Submitted March 5
    officially released June 16, 1998

      William C. Franklin, for the appellant (plaintiff).

      Gail E. McTaggart, for the appellee (named defendant).

      Kenneth R. Slater, Jr., for the appellee (defendant James B. Irwin).
   Opinion

LANDAU, J.

This matter is currently before us on remand from our Supreme Court. Grimes v. Conservation Commission, 243 Conn. 266, 703 A.2d 101 (1997). The plaintiff, Karen Grimes, appealed to this court from a judgment of the trial court dismissing her appeal from the decision of the conservation commission of the town of Litchfield acting pursuant to the Inland Wetlands and Watercourses Act. General Statutes § 22a-36 et seq. A divided panel of this court reversed the judgment of the trial court, concluding that the plaintiff was given insufficient notice of a site visit that was performed by the commission on the applicant’s property. Grimes v. Conservation Commission, 43 Conn. App. 227, 682 A.2d 589 (1996). Our Supreme Court granted the commission’s petition for certification, limited to the following issue: “[D]id the Appellate Court properly conclude that the plaintiff was deprived of due process of law by the conduct of the conservation commission regarding its September 14,1993 site visit?” Grimes v. Conservation Commission, 239 Conn. 944, 686 A.2d 121 (1996). Our Supreme Court reversed the judgment of the Appellate Court, concluding that the notice provided to the plaintiff was sufficient, and remanded the case for our consideration of the plaintiffs remaining claims. The plaintiff claims that the trial court improperly (1) found that a commission member who failed to attend the site visit was eligible to vote, (2) found that the public notice for the site visit was adequate to confer subject matter jurisdiction on the commission and (3) failed to require the commission to consider the entire property owned by the applicant when deciding whether a feasible and prudent alternative to his plan existed.

Our prior opinion summarizes the relevant facts. “The applicant is the owner of a 14.9 acre unimproved parcel of real property located on Hutchinson Parkway in the town of Litchfield. The plaintiff is an abutting property owner. On July 16,1993, the applicant submitted several applications to the commission to obtain permits to conduct regulated activities on the subject property associated with the development of a proposed four-lot single family residential subdivision. Public hearings concerning the applications began September 1, 1993. On September 14,1993, after a public notice was posted in the town clerk’s office, five members of the commission, together with Dennis McMorrow, the applicant’s engineer, conducted a site visit to the subject property. Following the site visit, additional public hearings were held oh September 29, 1993, October 27, 1993, and November 17,1993. On December 22,1993, the commission voted to approve the applicant’s proposal with certain modifications. Thereafter, the plaintiff appealed the commission’s decision to the Superior Court claiming, inter alia, that the commission ‘acted arbitrarily, illegally and in abuse of its discretion.’ Upon finding that the commission’s decision was supported by substantial evidence in the record, the trial court dismissed the plaintiffs appeal.” Grimes v. Conservation Commission, supra, 43 Conn. App. 229-30. This appeal followed.

I

The plaintiff first argues that the trial court improperly found that a commission member who failed to attend the site visit was eligible to vote. The plaintiff argues that the commission member’s disqualification would have caused the number of voting members to fall below the number required to constitute a quorum, thereby rendering the vote void. We disagree.

Additional facts are necessary to a resolution of this issue. Fred J. Minck, a member of the commission, voted to approve the application in the present case. Minck did not attend the site visit that occurred on September 14, 1993. Minck did, however, review the minutes of the site visit. Minck testified that he had attended a site visit to the same property in connection with a prior application by the applicant in the present case.

On appeal, our Supreme Court discussed site visits. “Although site visits are not required by the act, we have recognized that they may be necessary for commissioners thoroughly to evaluate property that is the subject of an application. Manor Development Corp. v. Conservation Commission, 180 Conn. 692, 701, 433 A.2d 999 (1980) (responsibilities conferred on commission by act necessitate site inspection); see also Samperi v. Inland Wetlands Agency, [226 Conn. 579, 582, 628 A.2d 1286 (1993)]. Commissioners are permitted to base their decisions in part on facts within their ‘peculiar knowledge,’ including information gleaned from a site inspection, as long as those facts are disclosed to the parties. Manor Development Corp. v. Conservation Commission, supra, 701-702; see also Huck v. Inland Wetlands & Watercourses Agency, [203 Conn. 525, 547, 525 A.2d 940 (1987)] (‘[knowledge obtained through personal observations of the locus may properly be considered by the agency’). A site visit is therefore an appropriate investigative tool.

“As the Appellate Court stated, and we agree, ‘[t]he purpose of a site visit is to acquaint the members of a commission with the property at issue.’ Grimes v. Conservation Commission, supra, 43 Conn. App. 228 n.3. By contrast, the purpose of a hearing is to afford the parties the opportunity to present and to rebut evidence upon which the commission relies in reaching its decision. See General Statutes § 22a-42a (c) (1); Huck v. Inland Wetlands & Watercourses Agency, supra, 203 Conn. 536; Connecticut Fund for the Environment, Inc. v. Stamford, [192 Conn. 247, 249, 470 A.2d 1214 (1984)]. Investigative procedures, such as site inspections, therefore, are not an integral part of the hearing process, although the agency must disclose to the parties any information relied upon in reaching a decision so that they may comment upon it.” Grimes v. Conservation Commission, supra, 243 Conn. 277-78. Our Supreme Court then concluded that “the September 14, 1993 meeting was neither a hearing nor an integral part of the hearing process . . . .” Id., 279.

The cases the plaintiff cites allow a commissioner who misses a hearing to vote “if he acquaints himself sufficiently with the issues raised, the evidence presented and the arguments made during his absence so that he can make an informed judgment.” Brunswick v. Inland Wetlands Commission, 29 Conn. App. 634, 640-41, 617 A.2d 466 (1992), citing Dana-Robin Corp. v. Common Council, 166 Conn. 207, 216-17, 348 A.2d 560 (1974). Unlike the cases cited by the plaintiff, in which members voted after missing a hearing, Minck failed to attend a site visit that our Supreme Court specifically classified as a meeting rather than a hearing. Because the site visit was not a hearing or an integral part of the hearing process, the case law on the subject does not specifically extend to such a meeting.

Even if Minck was required to become sufficiently informed so as to be able to make an informed judgment regarding the site visit, it was the plaintiffs burden to prove that Minck did not sufficiently acquaint himself with the appropriate information to make an informed judgment. Dana-Robin Corp. v. Common Council, supra, 166 Conn. 217. Minck testified that he reviewed the minutes of the site visit. He further testified that he had attended a site visit to the same property on a prior occasion. The trial court concluded, and our Supreme Court agreed, that the material contents of the site visit were discussed through testimony at the subsequent public hearing, where the plaintiff was afforded an opportunity to rebut the testimony. As a result, even if we required commission members to acquaint themselves sufficiently with the issues, evidence and arguments during a meeting other than a hearing, the plaintiff has not met her burden of proving that Minck failed to do so.

II

The plaintiff next argues that the trial court improperly found that the public notice for the site visit, which was posted in the town clerk’s office, was adequate to confer subject matter jurisdiction on the commission. The plaintiff argues that General Statutes § 22a-42a (c) does not authorize notice of a “public hearing” to be provided simply by posting notice in the town clerk’s office, and, as a result, the notice was defective. We disagree.

Our Supreme Court held that the site visit was “neither a hearing nor an integral part of the hearing process . . . .” Grimes v. Conservation Commission, supra, 243 Conn. 279. The court reasoned that the plaintiff failed to meet her burden of proving that the site visit was a hearing so as “to avail herself of the more stringent notice requirements of § 22a-42a.” Id., 278. As a result, we conclude that the notice provided by the commission was sufficient and did not defeat the commission’s subject matter jurisdiction.

III

The plaintiffs final claim is that the trial court improperly failed to require the commission to consider the “entire” property owned by the applicant in deciding whether a feasible and prudent alternative to his plan existed. In making this determination, the plaintiff argues that a separate parcel of land, also owned by the applicant, which adjoins the parcel of land at issue in the present case, should have been considered by the commission. We disagree.

Pursuant to General Statutes (Rev. to 1993) § 22a-41 (b), the commissioner must find that a “feasible and prudent” alternative to the applicant’s development plan does not exist before issuing a permit. In making this finding, the commissioner “shall take into consideration all relevant facts and circumstances, including but not limited to” the six statutory factors in determining whether a feasible and prudent alternative exists. (Emphasis added.) General Statutes (Rev. to 1993) § 22a-41 (a). The plaintiff relies on our decision in Hoffman v. Inland Wetlands Commission, 28 Conn. App. 262, 267, 610 A.2d 185, cert. denied, 223 Conn. 925, 614 A.2d 822 (1992), for the proposition that an applicant’s interest in an adjoining lot is relevant in determining whether to grant a permit to an applicant. As a result, the plaintiff argues that, because consideration of an adjoining lot is relevant and § 22a-41 (a) requires consideration of “all relevant facts,” the commission was required, in the present case, to consider,the applicant’s adjacent land.

In Hoffman, the commission unanimously denied the plaintiffs’ request for a permit for “lot thirty-four” because “ ‘the proposed plan would result in a significant impact on the wetlands.’ ” Id., 264. In that case, the plaintiffs claimed that the commission should not have been permitted to consider their ownership of property adjoining lot 34. Id., 266. We reasoned that the statutory language permitting the commission’s consideration of “all relevant facts and circumstances, including but not limited to” the six named factors enabled the commission to consider permits in context, rather than “as an entity unto itself.” Id., 267. We reasoned that the legislative findings “recognize that wetlands and watercourses are ‘an interrelated web of nature,’ which must be protected and preserved.” Id., quoting General Statutes § 22a-36. As a result, we concluded that consideration of adjoining property is relevant in determining whether to grant a permit, because “[t]o require a commission to regard each parcel with blinders, ignoring the overall development of an area and, in particular, the ownership of abutting parcels, would defeat the statute’s purposes.” Hoffman v. Inland Wetlands Commission, supra, 28 Conn. App. 267-68.

Hoffman does not require, as the plaintiff claims, the commission to consider adjoining land; rather, it merely permits the commission to consider adjoining land when such land is relevant. We agree with the plaintiff that the wetlands and watercourses must be preserved and protected, as we concluded in Hoffman. If, as in Hoffman, the commission is considering a proposal, the development of which will have a significant impact on the wetlands and watercourses, then consideration of adjoining land would be relevant in preserving and protecting the wetlands and watercourses and in determining whether a feasible and prudent alternative exists. Adjoining land becomes irrelevant, however, when the proposed development does not have a significant impact on the wetlands and watercourses.

Unlike lot 34 in Hoffman, where the commission found that its development would have a significant impact on the wetlands and watercourses, the lot that the applicant seeks to develop was specifically found to have an “acceptable,” rather than a significant, impact on the wetlands and watercourses. The commission concluded, in the minutes from December 22,1993, that “[t]he environmental impact of the proposed action as reflected in that the proposed activities will, as modified by the commission, have no significant impact on the site’s wetlands and watercourses natural capacity to support desirable biological life, to prevent flooding, to supply water, to control sediment, to facilitate drainage and to promote public health and safety.” (Emphasis added.)

In addition, the plan for lot 1 in the present case was to “correct erosion/pollution to wetlands caused by Town drainage.” The applicant's plan for lot 2 would place a “house, drive, well and septic within 150’ of channel or watercourse,” but would affect “[z]ero acreage of wetlands.” The plan for lot 3 would place a “septic . . . within 150’ of the watercourse but wetlands [would not be] affected.” The plan for lot 4 would place a “common driveway over wetlands, 0.04 acres of wetlands affected.” As a result of these findings, the commission approved the applicant’s plans.

If we required the commission to consider whether the applicant’s adjacent land contained a feasible and prudent alternative, then the plaintiff would be allowed to dictate where an applicant can develop land even when the commission is satisfied that the subject property does not interfere with the wetlands and watercourses. As a result, we decline to require the commission to consider adjoining land owned by an applicant.

The judgment is affirmed.

In this opinion the other judges concurred.

       The defendants are the conservation commission of the town of Litchfield (commission) and James B. Irwin (applicant), who intervened pursuant to Practice Book (1998 Rev.) § 9-6, formerly § 85, and General Statutes § 52-102.

       “The applicant requested permits to conduct the following regulated activities: (1) construction of a common driveway for lots 3 and 4 resulting in a wetlands disturbance limited to 0.04 acres; (2) correction of the existing pollution and erosion caused by the intermittent stream created from two drainage culverts off Hutchinson Parkway owned by the town of Litchfield; (3) construction of a home and septic system on lot 2 within 150 feet of a watercourse with no impact on wetlands or watercourses; and (4) construction of a septic system on lot 3 within 150 feet of a watercourse with no impact on wetlands or watercourses.” Grimes v. Conservation Commission, supra, 43 Conn. App. 229 n.4.

       “The minutes of the site visit state in relevant part: ‘The site was walked from lots 1 to 5. The drainage watercourse on lot 1 was examined and alternatives were discussed. The other drainage through the property [was] also noted and discussed. The wetland crossing for driveways to lots 4 and 5 was noted and alternatives discussed.’ ” Grimes v. Conservation Commission, supra, 43 Conn. App. 229-30 n.5.

       General Statutes § 22a-42a (c) (1) provides in relevant part: “Notice of the hearing shall be published at least twice at intervals of not less than two days, the first not more than fifteen days and not fewer than ten days, and the last not less than two days before the date set for the hearing in a newspaper having a general circulation in each town where the affected wetland or watercourse, or any part thereof, is located. . . .”

       Because we conclude that notice was sufficient, we need not discuss the plaintiffs additional argument that the trial court improperly prevented her from offering evidence to show that she was denied access to the site visit due to lack of notice.

       The plaintiff concedes that, if the applicant owned only the 14.9 acre parcel of land to which the plan applied, rather than his entire ownership consisting of 83.5 acres, the commission properly found that there was no feasible and prudent alternative. Therefore, we must decide only whether the commission must consider the entire property owned by the applicant when determining whether a feasible and prudent alternative exists.

       We note that the plaintiffs use of the word “aborning” throughout her brief is misleading because, although the two parcels of land owned by the applicant are neighboring, they are separated by a brook. We do not, however, consider the difference to be relevant in the present case.

       General Statutes (Rev. to 1993) § 22a-41 (a) provides in relevant part: “[T]he commissioner shall take into consideration all relevant facts and circumstances, including but not limited to:
      “(1) The environmental impact of the proposed action;
      “(2) The alternatives to the proposed action;
      “(3) The relationship between short-term uses of the environment and the maintenance and enhancement of long-term productivity;
      “(4) Irreversible and irretrievable commitments of resources which would be involved in the proposed activity;
      “(5) The character and degree of injury to, or interference with, safety, health or the reasonable use of property which is caused or threatened; and
      “(6) The suitability of such activity to the area for which it is proposed.”


author: PER CURIAM.

text:
    IRVING LASSITER v. JAMES MARSHALL ET AL.
    (AC 16740)
    O’Connell, C. J., and Lavery and Schaller, Js.
    Argued March 31
    officially released June 16, 1998

      Max F. Brunswick, for the appellant (plaintiff).

      Henry Lyons III, with whom was Leia Berla, for the appellee (named defendant).
   Opinion

PER CURIAM.

The plaintiff brought this action pursuant to General Statutes § 31-72 seeking the minimum wage, double damages and attorney’s fees with respect to the period of his domestic employment in the residence of the defendants pursuant to an oral agreement providing for wages of $40 per week plus room and board. The trial court rendered judgment in favor of the plaintiff in the amount of $5215.76, consisting of the amount of the minimum wages, based on a forty hour week during the entire thirteen month period of employment, less the maximum allowable amounts for room and board under applicable federal regulations. The trial court denied the plaintiffs claim for double damages and attorney’s fees.

The plaintiff, appealing from the judgment of the trial court, claims that the trial court abused its discretion in (1) refusing to award double damages and attorney’s fees under General Statutes §§ 31-72 and 31-68 (a), and (2) crediting the defendants with the maximum amount allowed by federal law for room and board.

We have fully reviewed the record and briefs and considered the oral arguments of the parties. The appeal largely relies on factual issues. The trial court’s findings are supported by the evidence and the inferences that may be drawn therefrom. Having applied the appropriate standard of review; Matteson v. Great Eastern Development, Ltd., 18 Conn. App. 618, 621, 559 A.2d 1165 (1989); we conclude that the trial court did not abuse its discretion and that its decision conforms to the applicable law.

The judgment is affirmed.

       General Statutes § 31-72 provides in relevant part: “When any employer fails to pay an employee wages in accordance with the provisions of sections 31-71a to 71i, inclusive . . . such employee . . . may recover, in a civil action, twice the full amount of such wages, with costs and such reasonable attorney’s fees as may be allowed by the court . . .


author: SPEAR, J.

text:
    SAYBROOK POINT MARINA PARTNERSHIP v. TOWN OF OLD SAYBROOK ET AL.
    (AC 16251)
    Foti, Landau and Spear, Js.

      Argued February 23
    officially released June 16, 1998

      Deborah J. Blood, with whom were Linda L. Morkan and, on the brief, Gurdon H. Buck, for the appellant (plaintiff).

      Jeremiah Donovan, for the appellees (defendants).
   Opinion

SPEAR, J.

The defendant tax assessor for the town of Old Saybrook (assessor) assessed two parcels of the plaintiffs property located in Old Saybrook. The plaintiff challenged the tax assessments in two separate actions before the defendant board of tax review for the town of Old Saybrook (board), which decreased the assessor’s valuation of one parcel and upheld the valuation of the second parcel. The plaintiff then brought two separate actions pursuant to General Statutes (Rev. to 1989) § 12-118 and General Statutes § 12-119, claiming that the properties had been wrongfully assessed and improperly valued. The trial court, which heard the cases together, dismissed certain portions of the plaintiffs complaints as time barred, reduced the valuation of each “condominium” unit from $400,000 to $275,000, and affirmed the board’s decisions in all other respects.

On appeal, the plaintiff claims that the trial court improperly (1) concluded that the residential buildings could be assessed as condominiums, (2) dismissed certain counts of each complaint as time barred, (3) failed to apply the bulk sale method of appraisal, (4) denied the plaintiffs motion to stay this action pending the resolution of a related case, and (5) failed to award interest upon reducing the valuation of the units. We reverse the trial court’s determination that the plaintiffs property was properly assessed as condominiums and order a new trial. Consequently, we do not need to address the bulk sale appraisal method, the interest and the stay issues. We affirm the trial court’s judgment with respect to the dismissed claims because the record is inadequate to review the timeliness issues.

The following facts are relevant to this appeal. The plaintiff bought the subject parcels of land in 1980 and began constructing an inn and marina on one parcel and a condominium complex on the second parcel. When the three condominium buildings were completed in 1990, 1991 and 1992, the plaintiff was unable to sell them as condominiums due to an unfavorable real estate market. Instead, the plaintiff rented out the units as apartments.

Beginning in 1989, the assessor determined the fair market value and the assessed value of the plaintiffs property, revising the valuations annually as the residential and commercial projects were completed or altered. The plaintiff now challenges the assessor’s valuations and assessments of its property from 1989 through 1993. The plaintiff contends that its residential complex was improperly assessed as condominiums rather than as apartments. The plaintiff also claims that the trial court’s valuation of its property grossly exceeds the property’s fair market value because the court appraised the “condominiums” as if they were to be sold individually, rather than applying the bulk sale method of appraisal. The plaintiff now seeks review of trial court’s decision affirming the assessor’s appraisal methods and evaluation of the plaintiffs properties.

I

The plaintiff first claims that the trial court improperly concluded that its residential complex was properly assessed as condominiums, rather than as apartments. We agree.

The plaintiff specifically argues that its failure to file a “declaration of condominium,” as required by General Statutes § 47-220 (a), precludes the assessor from assessing its property as condominiums. Our case law clearly supports the plaintiffs argument. In Stratford Arms Co. v. Stratford, 7 Conn. App. 496, 500, 508 A.2d 842 (1986), this court concluded that the plaintiffs property should have been assessed as apartments rather than condominiums because no declaration of condominium had been filed at the time of the assessment. The Stratford Arms Co. court stated: “General Statutes § 47-71 (b) provides that any declaration of condominium or other condominium instruments ‘shall not be of legal effect until filed or recorded on [such] land records . . . .’It is clear, therefore, that regardless of any intention or preparatory conduct of a property owner to convert its property to condominiums, the property has no condominium status until proper condominium instruments; see General Statutes § 47-68a (d); are recorded.” Stratford Arms Co. v. Stratford, supra, 500; see also Fyber Properties Killingworth Ltd. Partnership v. Shanoff 228 Conn. 476, 483-84, 636 A.2d 834 (1994); Hall Manor Owner’s Assn. v. West Haven, 212 Conn. 147, 153, 561 A.2d 1373 (1989).

Here, the plaintiff has not filed a declaration of condominium. Nevertheless, the trial court determined that the plaintiffs property should be assessed as condominiums by improperly distinguishing Stratford Arms Co. on its facts. In its memorandum of decision, the trial court emphasized that the plaintiff in the present case had always intended to use its property as condominiums, and was only using them as apartments on a temporary basis, while the property owner in Stratford Arms Co. had always used his property as apartments prior to the assessment. Our case law and statutes make clear, however, that this distinction has no significance. While an owner’s intent to convert its property to condominiums in the immediate future is material for purposes of establishing the fair market value of that property; see Carol Management Corp. v. Board of Tax Review, 228 Conn. 23, 38, 633 A.2d 1368 (1993); Stamford Apartments Co. v. Stamford, 203 Conn. 586, 592, 525 A.2d 1327 (1987); it is not determinative of whether the property may be properly assessed as a condominium. See Stratford Arms Co. v. Stratford, supra, 7 Conn. App. 500. Rather, the sole factor in determining whether property should be assessed as a condominium is the existence of a valid declaration of condominium. Id.

In determining that the plaintiffs property should be assessed as condominiums, the trial court also relied on local land use regulations that prohibit apartments where the plaintiffs property is located. Whether the plaintiffs use of its property as apartments would have violated local land use regulations is irrelevant for tax assessment purposes. When the trial court found that no declaration of condominium had been filed, it could not uphold the assessment of the plaintiffs property as condominiums. Id. In holding otherwise, the trial court improperly construed our case law and statutes so as to be consistent with local zoning regulations. See Fyber Properties Killingworth Ltd. Partnership v. Shanoff supra, 228 Conn. 486, which stated that “municipal regulations provide limited guidance for the interpretation of state statutes. . . . Thus, local regulations must be consistent with statutes, but [courts] are not obligated to read statutes so as to be consistent with local regulations.” (Citations omitted.) Whether the plaintiffs use of its property is consistent with local zoning regulations is outside the context of this tax appeal.

Because it is undisputed that the plaintiff has never filed a declaration of condominium, the trial court’s finding that the property could be assessed as condominiums was improper.

II

The plaintiff next claims that the trial court improperly dismissed portions of its complaint as time barred. The trial court found that it was without jurisdiction to hear counts three and four of the plaintiffs § 12-119 action, and counts three, four, five and six of the § 12-118 action, finding that they were not brought within the time limits mandated by those statutes. Specifically, § 12-119 provides that the property owner must bring a manifestly excessive tax action “within one year from the date as of which the property was last evaluated for purposes of taxation.” General Statutes (Rev. to 1989) § 12-118 provides that a property owner “claiming to be aggrieved by the findings or determinations of the Connecticut appeals board for property valuation may, within two months from the time of such action, make application, in the nature of an appeal therefrom, to the superior court . . . .”

Regarding the § 12-119 action, the plaintiff asserts that the trial court should have found that the action was timely filed. In the alternative, the plaintiff contends that the defendants are equitably estopped from claiming that portions of the plaintiffs complaint are time barred because the defendants did not provide a final assessment of the plaintiffs property until four months after they claimed to have done so. Regarding the § 12-118 action, the plaintiff claims that it never received notice that the assessor had increased the value of its property pursuant to General Statutes § 12-55.

In its memorandum of decision, the trial court merely stated that the specific counts of the plaintiffs actions were “brought outside of the time limits mandated by [§§] 12-118 and 12-119.” The plaintiffs did not request an articulation of the court’s reasons for these conclusions. Neither the transcripts nor the record provides this court with the necessary facts to decide whether the trial court improperly found the plaintiffs actions to be time barred, or whether the plaintiffs equitable estoppel and lack of notice claims had merit. Accordingly, there is no basis for our reviewing that decision. Because the plaintiff failed to provide us with an adequate record, we decline to afford review of its claim. See State v. Coleman, 48 Conn. App. 260, 274, 709 A.2d 590, cert. granted, 245 Conn. 907, 718 A.2d 15 (1998); see also Practice Book § 4061, now Practice Book (1998 Rev.) § 60-5.

The judgments are reversed with respect to the assessment of the plaintiffs property as condominiums and the case is remanded for a new trial on the issues of assessment and valuation of the property. The judgments are affirmed as to the dismissal of counts three and four of the plaintiffs action filed pursuant to General Statutes § 12-119, and as to the dismissal of counts three, four, five and six of the plaintiffs action filed pursuant to General Statutes (Rev. to 1989) § 12-118.

In this opinion the other judges concurred.

       The defendants in this appeal are the tax assessor, the board of tax review for the town of Old Saybrook, and the town of Old Saybrook.

       General Statutes (Rev. to 1989) § 12-118, now General Statutes § 12-117a, provides in relevant part: “Any person, including any lessee of real property whose lease has been recorded as provided in section 47-19 and who is bound under the terms of his lease to pay real property taxes, claiming to be aggrieved by the findings or determinations of the Connecticut appeals board for property valuation may, within two months from the time of such action, make application, in the nature of an appeal therefrom, to the superior court . . . .”

       General Statutes § 12-119 provides in relevant part: “When it is claimed that a tax has been laid on property not taxable in the town or city in whose tax list such property was set, or that a tax laid on property was computed on an assessment which, under all the circumstances, was manifestly excessive and could not have been arrived at except by disregarding the provisions of the statutes for determining the valuation of such property, the owner thereof or any lessee thereof whose lease has been recorded as provided in section 47-19 and who is bound under the terms of his lease to pay real property taxes, prior to the payment of such tax, may, in addition to the other remedies provided by law, make application for relief to the superior court . . . .”

       We do not, know what appraisal testimony will be offered in the new trial or what appraisal method the trial court might find to be most appropriate. The trial court has discretion to assess such evidence. The question of whether to award interest necessarily depends on the outcome of the new trial with respect to the value of the property. Because we conclude that the buildings are not condominiums, the motion to stay this case, pending the resolution of the plaintiffs challenge to the zoning regulations that limit multifamily residences in the subject area to condominiums, is moot.

       General Statutes § 47-220 provides in relevant part: “(a) A common interest community may be created pursuant to this chapter only by recording a declaration .... The declaration shall be recorded in every town in which any portion of the common interest community is located . . . .”

       General Statutes §§ 47-68a through 47-90c, entitled the “Condominium Act,” govern the creation of condominiums and the rights and obligations incident thereto.

       Counts three and four of the plaintiffs § 12-119 action allege that the 1989 assessment wrongfully assessed its Marina Point Apartments as condominiums and as waterfront property.

       Counts three, four, five and six of the plaintiffs § 12-118 action allege that the 1989, 1991 and 1992 valuations of its inn and marina complex and the 1989 valuation of its apartments grossly exceed the fair market value of those properties.

       Under General Statutes § 12-117a, “Connecticut appeals board for property valuation” is now replaced by the “board of tax review or the board of assessment appeals.”


author: SCHALLER, J.

text:
    TERRY ANN WILLIAMS v. SHAWMUT MORTGAGE COMPANY ET AL.
    (AC 16854)
    Foti, Schaller and Spear, Js.
    Argued January 22
    officially released June 23, 1998

      Philip L. Steele, for the appellant (plaintiff).

      Kevin D. O’Leary, with whom, on the brief, was Richard Voigt for the appellees (defendants).
   Opinion

SCHALLER, J.

The plaintiff, Terry Ann Williams, appeals from the decision of the workers’ compensation commissioner (commissioner) dismissing her wrongful discharge claim against the defendant Shawmut Mortgage Company (Shawmut). The plaintiff filed her claim pursuant to General Statutes § 31-290a, and appeals directly to this court pursuant to General Statutes § 31-290a (b). The dispositive issue on appeal is whether the commissioner properly determined that he lacked subject matter jurisdiction to hear the matter. We agree with the plaintiff and reverse the judgment of the commissioner.

The following facts are relevant to a resolution of this appeal. The plaintiff began her employment with the defendant in October, 1979, and worked in a variety of supervisory office positions. The plaintiff last worked for the defendant in January, 1991, when she left work allegedly suffering from depression and other psychiatric conditions caused by ongoing stress and harassment at work. In February, 1991, the plaintiff filed a claim for compensation under the Connecticut Workers’ Compensation Act, General Statutes § 31-275 et seq. At that time, she also began seeing Marvin Zelman, a psychiatrist, for the treatment of her depression.

In February and March, 1991, Zelman reported to the defendant that the plaintiff was unable to return to work because of her depression. In April, 1991, Zelman told the defendant that the plaintiff would be able to return to work if she was transferred to a new division. Between April and July, 1991, the plaintiff and the defendant discussed that possibility, but no accord was reached regarding a suitable position. In August, 1991, the plaintiff began receiving disability benefits from the defendant. The plaintiff told the defendant’s rehabilitation consultant that she was enrolled in computer classes and wanted to be contacted for future employment with the defendant in May, 1992, upon completion of her classes. She had not heard from the defendant when, in November, 1992, she accepted employment as a full-time secretaiy, purportedly on a temporary basis, at Colt’s Manufacturing Company, Inc., (Colt’s) receiving a lower salary than that she had earned while working for the defendant. The plaintiff notified the defendant of her employment at Colt’s and stopped receiving disability benefits in January, 1993.

In January and April, 1993, formal hearings were held on the plaintiffs claim. The parties agreed to settle the claim and entered into a stipulation. Under the terms of the stipulation, the defendant paid the plaintiff $17,000, in addition to paying the plaintiffs outstanding medical bills, in settlement of all past, present and future workers’ compensation claims against the defendant arising from the alleged incidents of harassment. The stipulation was signed by both parties and approved by the workers’ compensation commission (commission) on July 7, 1993.

On August 3, 1993, the defendant sent the plaintiff a notice informing her of her right to continue receiving group health insurance benefits at her own expense. The notice stated that the “loss of [the plaintiffs group health insurance] coverage has occurred due to Termination of Employment on 01/23/93.” (Emphasis added.) The plaintiff claims that this notice was the first notification she received that her employment with the defendant had been terminated.

On February 10, 1994, the plaintiff filed a wrongful discharge claim with the commission, alleging that the defendant had terminated her employment on August 3, 1993, in retaliation for her workers’ compensation claim and in violation of § 31-290a. The claim was heard by the commissioner for the first district on September 24, 1996. At the commencement of the hearing, the defendant asserted that the commissioner lacked jurisdiction to hear the plaintiffs claim because her right to file such a claim had been waived in the July 7, 1993 stipulation. The commissioner allowed the hearing to continue, reserved his judgment on whether he had subject matter jurisdiction to hear the claim and directed the parties to submit briefs on the issue.

The plaintiff was the sole witness at the hearing. A substantial portion of her testimony on direct examination concerned the circumstances of her § 31-290a claim. The plaintiff also testified that she had accepted the job at Colt’s because she did not want to wait for an opening with the defendant, and sought to mitigate damages and to provide for herself until she could return. The plaintiff asserted that her temporary employment at Colt’s did not constitute an abandonment of her employment with the defendant. She further testified that prior to receiving the defendant’s August 3,1993 health insurance notice, there had been no indication that the defendant had terminated her employment. The plaintiff did not offer any testimony regarding the parties’ intentions in executing the stipulation, although she had initially stated that she would offer evidence on that issue.

At the conclusion of the plaintiffs direct examination, the defendant began cross-examining the plaintiff. The commissioner, however, suspended the hearing for the day prior to the completion of cross-examination. There was no redirect examination. Although the commissioner stated that further testimony would be taken on a future date, no additional hearings were scheduled in this matter. Instead, after receiving the parties’ briefs on the jurisdictional issue, the commissioner dismissed the claim, concluding that he had no jurisdiction to hear it. Nevertheless, the commissioner made several findings on the merits in granting the defendant’s motion to dismiss. Specifically, the commissioner found that (1) the plaintiffs termination from the defendant’s employment occurred on the date she began to work at Colt’s, prior to the date of the stipulation, and (2) the stipulation barred the plaintiff from pursuing her § 31-290a claim against the defendant. This appeal by the plaintiff followed.

The plaintiffs principal claim on appeal is that the commissioner improperly dismissed her claim for lack of subject matter jurisdiction. We agree.

“Subject matter jurisdiction is the power to hear and determine cases of the general class to which the proceedings in question belong.” (Internal quotation marks omitted.) Parker v. Commissioner of Correction, 27 Conn. App. 675, 683, 610 A.2d 1305, cert. denied, 223 Conn. 909, 612 A.2d 57 (1992). “Administrative agencies [such as the workers’ compensation commission] are tribunals of limited jurisdiction and their jurisdiction is dependent entirely upon the validity of the statutes vesting them with power . . . .” (Internal quotation marks omitted.) Figueroa v. C & S Ball Bearing, 237 Conn. 1, 4, 675 A.2d 845 (1996).

Section 31-290a (b) specifically provides that an employee who is wrongfully discharged for filing a workers’ compensation claim against his employer may “file a complaint with the chairman of the Workers’ Compensation Commission . . . ,” The commission, therefore, is competent to entertain the plaintiffs action because the legislature’s enactment of § 31-290a created her cause of action and vested in the commission the jurisdiction to entertain it. See Demar v. Open Space & Conservation Commission, 211 Conn. 416, 425, 559 A.2d 1103 (1989).

Whether the stipulation should be interpreted as barring the plaintiff from filing a wrongful discharge claim is one of the issues to be decided by the commissioner. Regardless of the wording of the stipulation, it cannot deprive the commissioner of jurisdiction over the plaintiffs claim because “[s]ubject matter jurisdiction cannot be waived ... by consent.” Id., 424. Moreover, whether the stipulation should be interpreted to bar the plaintiffs action depends on whether the alleged violation of § 31-290a occurred prior to the time the stipulation was entered into and what the parties’ intentions were regarding the scope of the stipulation. See Muldoon v. Homestead Insulation Co., 231 Conn. 469, 479-83, 650 A.2d 1240 (1994). These questions of fact must be decided on the merits after a full hearing in which both parties are accorded “the right to introduce evidence of those relevant and material facts which logically [tend] to prove the issues involved and [which are] not excluded by some rule of law.” Moran v. New York, N. H. & H. R. Co., 107 Conn. 454, 457, 140 A. 818 (1928); see Berndston v. Annino, 177 Conn. 41, 44, 411 A.2d 36 (1979); Borkowski v. Sacheti, 43 Conn. App. 294, 322, 682 A.2d 1095, cert. denied, 239 Conn. 945, 686 A.2d 120 (1996).

In the present case, the matter did not proceed to a full hearing on the merits. Nevertheless, in ruling on the defendant’s motion to dismiss, the commissioner made two critical findings: (1) “the [plaintiff] was terminated from employment prior to the time that the stipulation was entered into when she began to work for another employer in December of 1992,” and (2) in accordance with Rondini v. Tectonic Industries, 10 Conn. Workers’ Comp. Rev. Op. 210 (1992), the “stipulation ended all rights arising from the [plaintiffs] workers’ compensation claim.” The commissioner concluded, citing Rondini, that he lacked subject matter jurisdiction to hear the plaintiffs claim.

By deciding that he had no jurisdiction to consider the merits of the plaintiffs claim, the commissioner terminated the hearing process before deciding the issues on the merits. His findings as to the date of termination and the scope of coverage of the stipulation were made before the hearing was finished and before the parties rested. The commissioner, therefore, made findings on the issues to be decided on their merits, and then decided that those findings compelled him to dismiss the claim because he lacked subject matter jurisdiction to decide the pertinent issues. In effect, the commissioner proceeded as if the mere existence of the stipulation denied him jurisdiction over the plaintiffs claim. In any case, we conclude that the commissioner did have jurisdiction to hear the claim pursuant to § 31-290a. Accordingly, we remand the matter to the workers’ compensation commission for a hearing on the preclusive effect, if any, of the stipulation. If the stipulation is determined not to be preclusive, the commissioner should conduct a full hearing on the merits.

The decision of the workers’ compensation commissioner is reversed and the matter is remanded to the commission for further proceedings.

In this opinion the other judges concurred.

       In addition to the named defendant, Hartford Insurance Group, as insurer, is also a defendant. Shawmut is the successor to Connecticut National Bank, against which the original workers’ compensation claim was made. We refer in this opinion to Shawmut as the defendant.

       General Statutes § 31-290a (a) provides: “No employer who is subject to the provisions of this chapter shall discharge, or cause to be discharged, or in any manner discriminate against any employee because the employee has filed a claim for workers’ compensation benefits or otherwise exercised the rights afforded to him pursuant to the provisions of this chapter.”

       General Statutes § 31-290a (b) provides in relevant part: “Any employee who is so discharged or discriminated against may ... (2) file a complaint with the chairman of the Workers’ Compensation Commission alleging violation of the provisions of subsection (a) of this section. . . . Any party aggrieved by the decision of the commissioner may appeal the decision to the Appellate Court.”

       The plaintiff makes five other claims on appeal. The plaintiff claims that the commissioner improperly determined that (1) the plaintiff was terminated from employment prior to entering into a stipulated agreement with the defendant to settle her workers’ compensation claim for repetitive trauma and stress, (2) the stipulated agreement barred the plaintiff from filing 1he present retaliatory termination claim pursuant to § 31-290a, (3) a purported agreement that was not executed was not admissible into evidence and (4) the plaintiff was not allowed discovery from the defendant at the hearing. In view of our disposition of the principal issue in this appeal, we need not address these claims because we cannot say that they are likely to occur on remand. See State v. Arroyo, 180 Conn. 171, 181-82, 429 A.2d 457 (1980). The plaintiffs fifth claim is that the commissioner improperly relied on Rondini v. Tectonic Industries, 10 Conn. Workers’ Comp. Rev. Op. 210 (1992), in dismissing her claim.
      Finally, in its appellate brief, the defendant claims that the plaintiffs appeal to this court is improper because she failed to file a motion to correct with the commissioner. Because the defendant raises this issue for the first time in its appellate brief, we decline to review it here. See Practice Book (1998 Rev.) § 60-5.

       The fifth paragraph on page two of the stipulation provided: “The payment of said SEVENTEEN THOUSAND ($17,000.00) DOLLARS as aforesaid shall be made and accepted as a full and final settlement of all compensation for said injuries, and for all results upon the claimant past, present and future, and for all claims for past, present and future medical, surgical, hospital and incidental expenses, and all compensation which may be due to anyone in case of the death of the claimant, to the end that the payment of such sum shall constitute a complete satisfaction of all claims due or to become due at any time in favor of anybody on account of the claimed injuries, or on account of any condition in any way resulting out of the said injuries, or on account of the death of the claimant.”

       At the hearing, the following colloquy took place:
      “The Commissioner: [W]hat I’m getting at is, was there something in the actions and words of the parties that occurred on July 7, 1993, in the way which would have relevance as to whether or not a wrongful discharge claim was intended to be included in this [stipulation]?
      “[Plaintiffs Counsel]: Yes, yes, there will be evidence offered on that

       At the conclusion of the hearing, the commissioner stated, “Okay, I think this is a good time to take a break. We’ll suspend the taking of testimony, and we’ll have to reassign this." (Emphasis added.)

       See footnote 3.

         Rondini is factually distinguishable from this case because there was no dispute in Rondini that the plaintiff was fired prior to the time that the parties entered into the stipulation. Moreover, the compensation review board in Rondini incorrectly held that the preclusive effect of that stipulation deprived the commissioner of subject matter jurisdiction. For a more thorough discussion of this issue, see part I of this opinion.

       See footnotes 6 and 7.