author: FLYNN, J.

text:
    JACQUELINE CABLE v. BIC CORPORATION ET AL.
    (AC 22840)
    Schaller, Flynn and Mihalakos, Js.
    Argued May 1
    officially released September 2, 2003

      Joseph J. Passaretti, Jr., for the appellants (defendants).

      John J. D’Elia, for the appellee (plaintiff).
   Opinion

FLYNN, J.

The defendants, Bic Corporation (Bic) and Liberty Mutual Insurance Company, appeal from the finding and award of the workers’ compensation commissioner rendered in favor of the plaintiff, Jacqueline Cable, on her discriminatory discharge claim. On appeal, the defendants claim that the commissioner (1) failed to articulate the basis of the alleged discrimination, (2) applied the incorrect evidentiary standard by failing to apply the correct burden shifting analysis and (3) improperly concluded that the plaintiff met her burden of proof. We affirm the commissioner’s decision.

In his February 19, 2002 decision, the commissioner-set forth, inter alia, the following relevant facts. The plaintiff was an employee of Bic for nearly thirty-two years. She had several work-related injuries that caused her to lose time from work throughout her many years of service.

The plaintiff sustained an injury on November 10, 1989, which caused several conditions that required various surgeries to her upper extremities between 1989 and 2001. In 1993, the parties filed a voluntary agreement setting a weekly rate of compensation for an injury to the plaintiffs left thumb. The parties entered into another voluntary agreement in early 1994 setting a rate of compensation and establishing a 15.5 percent permanent partial disability of the plaintiff’s left master hand. In early 1995, the parties entered into another voluntary agreement awarding an 8.5 percent permanent partial disability of the right nonmaster hand of the plaintiff. In February, 2000, the parties entered into another voluntary agreement establishing a 14 percent permanent partial disability of the right nonmaster hand of the plaintiff, with 8.7 percent having previously been paid.

On March 29, 2000, after her fourth surgery, the plaintiff returned to work in a light duty capacity, securing a ball popper position with Bic. In the spring or summer of 2000, after Bic eliminated the ball popper position by combining it with a utility operator position, the plaintiff sought that combined position, with modifications, but Bic refused to award her the position. In August, 2000, the plaintiff seemed an ink inspector position, but, after three weeks of performing that job, she had difficulties with her hands.

In early January, 2001, the plaintiff returned to the ink inspector position after Bic made some minor modifications to the job to accommodate the plaintiffs work-related hand disabilities. The plaintiff received oral warnings about her failure to attain the necessary rapidity in performance of that job and about shutting down the machine, but her inability to attain the necessary rapidity was due to her work caused disability. Nevertheless, the plaintiff did not receive any written warnings concerning her performance. On January 31, 2001, however, just four weeks after she returned to work, Bic laid off the plaintiff.

The plaintiff alleged, and the commissioner found, that her January 31,2001 termination from employment was a discriminatory discharge under General Statutes § 31-290a, and the commissioner awarded her certain remedies provided under § 31-290a (b) (2). Additionally, the plaintiff sought, and the commissioner awarded, permanent partial disability benefits for an additional 6 percent permanent partial impairment of the plaintiffs left master hand. The commissioner based that award on the conclusion of the plaintiffs treating physician, Robert B. Tross,that, after further surgery to the plaintiffs hand in April, 2001, she had this additional disability. The defendants appeal from the finding and award of the commissioner.

I

The defendants initially claim on appeal that the commissioner improperly failed to articulate the basis of the alleged discrimination for which the commissioner awarded remedies to the plaintiff. The defendants argue that the commissioner’s only stated basis for the plaintiffs award was that her work-related injury prevented her from obtaining the necessary rapidity to perform her job properly. If the commissioner had an additional basis for his conclusion, the defendants argue in their brief, “then his failure to so articulate such reason is error.”

In this case, “the plaintiff had the choice of filing a complaint with the workers’ compensation commission or bringing an action in the Superior Court. Because these proceedings are comparable, the commissioner acted, in effect, as the trial court in hearing the plaintiffs claims. For example, pursuant to General Statutes § 31-290a (b) (1), the trial court makes findings of fact and conclusions of law, and, pursuant to § 31-290a (b) (2), [t]he workers’ compensation commissioner has the power and the duty to determine the facts, and we will not review facts reasonably found by the commissioner. The commissioner’s conclusions that are drawn from those facts must stand unless they result from an incorrect application of the law to the subordinate facts or from an inference illegally or unreasonably drawn from them. . . .

“Under normal circumstances, this court will not remand a case to correct a deficiency that the appellant should have remedied. . . . The plaintiff elected to bring [a] complaint to the workers’ compensation commission rather than to proceed in the Superior Court. Under these circumstances, the [defendants were] not absolved of the requirement of filing a motion for articulation and seeking appropriate review in this court, where such review was necessary to create an adequate record for our review of [the defendants’] claim. Without an adequate record on which to review the findings of the trial court, this court must assume that the trial court acted properly. . . . Likewise, [where the defendants fail to provide an] adequate record from which to review the decision of the commissioner, we must assume that the commissioner acted properly.” (Citations omitted; internal quotation marks omitted.) Plati v. United Parcel Service, 33 Conn. App. 490, 494-95, 636 A.2d 395 (1994); see also Sidella v. Kelly Services, Inc., 41 Conn. App. 116, 118, 675 A.2d 1 (1996).

When the commissioner issued his finding and award in the present case, he specifically found that the plaintiff had been discharged discriminatorily in violation of § 31-290a. The need for articulation or clarification of the findings made in support of this factual conclusion should have been raised directly before the commissioner through either a motion for correction of findings; Regs., Conn. State Agencies § 31-301-4; or through a motion for rectification or articulation. Practice Book § 66-5.

In this case, as in Smith v. Connecticut Light & Power Co., 73 Conn. App. 619, 808 A.2d 1171 (2002), the defendants “followed neither approach and instead [raise] the issue for the first time on appeal. Because the [defendants] failed to pursue the issue before the commissioner, [they are] precluded from doing so on appeal. See Practice Book § 60-5. The [defendants have] offered no compelling reason for us to deviate from the requirement that to consider that issue, it should have been raised first before the commissioner.” Smith v. Connecticut Light & Power Co., supra, 628. Accordingly, we decline to review this claim.

II

The defendants next claim that the commissioner applied the incorrect evidentiary standard by failing to apply the burden shifting analysis set forth by our Supreme Court in Ford v. Blue Cross & Blue Shield of Connecticut, Inc., 216 Conn. 40, 578 A.2d 1054 (1990). We are not persuaded.

We begin by setting forth our standard of review. The defendants’ claim requires that we determine whether the commissioner applied the appropriate legal standard in evaluating the plaintiffs claim of discriminatory discharge. That issue presents a question of law, and our review is, therefore, plenary. See Hartford Courant Co. v. Freedom of Information Commission, 261 Conn. 86, 96-97, 801 A.2d 759 (2002) (where issue requires that reviewing court decide whether trial court applied correct legal standard, review is plenary).

“The burden of proof in actions involving § 31-290a is stated in Ford v. Blue Cross & Blue Shield of Connecticut, Inc., [supra, 216 Conn. 53], and Chiaia v. Pepperidge Farm, Inc., 24 Conn. App. 362, 366, 588 A.2d 652, cert. denied, 219 Conn. 907, 593 A.2d 133 (1991). The plaintiff bears the initial burden of proving by the preponderance of the evidence a prima facie case of discrimination. ... In order to meet this burden, the plaintiff must present evidence that gives rise to an inference of unlawful discrimination. ... If the plaintiff meets this initial burden, the burden then shifts to the defendant to rebut the presumption of discrimination by producing evidence of a legitimate, nondisciiminatory reason for its actions. ... If the defendant carries this burden of production, the presumption raised by the prima facie case is rebutted, and the factual inquiry proceeds to a new level of specificity. . . . The plaintiff then must satisfy [the] burden of persuading the factfinder that [the plaintiff] was the victim of discrimination either directly by persuading the court [or jury] that a discriminatory reason more likely motivated the employer or indirectly by showing that the employer’s proffered explanation is unworthy of credence.” (Internal quotation marks omitted.) Knoblaugh v. Marshall, 64 Conn. App. 32, 38, 779 A.2d 218, cert. denied, 258 Conn. 916, 782 A.2d 1243 (2001).

In the present case, as in Chernovitz v. Preston Trucking Co., 52 Conn. App. 570, 573, 729 A.2d 222 (1999), “[t]he commissioner’s decision does not contain specific statements as to the standard of proof or the burden of proof. Briefs of the parties were submitted to the commissioner, however, in which the plaintiff correctly set out the burden of proof as stated in Ford.” Id., 575. Although we conclude that it was improper for the commissioner to fail to specifically set forth the Ford burden shifting analysis in his finding and award, because this analysis clearly was set forth in the briefs of the parties, and there is no indication that the commissioner did not apply that test in rendering his decision, we are not persuaded that such analysis was not performed by the commissioner. Further, the defendants did not seek an articulation as to whether the commissioner did, in fact, apply this burden shifting analysis.

After the hearings on the plaintiffs discriminatory discharge claim, the commissioner issued his finding and award, in which he stated in his ultimate finding that the plaintiff was “entitled to reinstatement of employment because her separation from work was a discriminatory discharge under Section 31-290a.” (Emphasis added.) Despite this clear finding, the defendants urge us to overturn the commissioner’s decision on the ground that the commissioner failed to apply the Ford burden shifting analysis in his decision and that the subordinate factual findings do not support the ultimate conclusion that the plaintiffs separation from work was a discriminatory discharge. The defendants ask in their brief: “Where is the discrimination? On what does the [plaintiff] rely to set forth a prima facie case? Where is the evidence that the commissioner applied the burden-shifting analysis set for by Ford?”

“It is the appellant’s burden to provide an adequate record for review. ... It is, therefore, the responsibility of the appellant to move for an articulation or rectification of the record where the trial court has failed to state the basis of a decision ... to clarify the legal basis of a ruling ... or to ask the trial judge to rule on an overlooked matter.” (Citations omitted.) Willow Springs Condominium Assn., Inc. v. Seventh BRT Development Corp., 245 Conn. 1, 52, 717 A.2d 77 (1998). The defendants did not move for an articulation or rectification in relation to the commissioner’s finding and award.

Accordingly, the defendants have failed to establish that the commissioner did not apply the appropriate legal standard. In the absence of a motion for articulation, we will not assume that the commissioner failed to apply the proper legal standard simply because he did not fully articulate his reasoning. Consequently, on the basis of the record provided to us, we reject the defendant’s argument that the commissioner applied the incorrect legal standard.

Ill

The defendants next claim that, even if the commissioner did employ the correct evidentiary standard, the plaintiff did not meet her burden of proof, by a fair preponderance of the evidence, that Bic discharged her in a discriminatory manner in violation of § 31-290a. Additionally, the defendants claim that even if the plaintiff did meet her initial burden of proof, they successfully rebutted any presumption of discrimination. The defendants’ claim, that the plaintiff did not meet her burden of proof by a fair preponderance of the evidence, is without merit. There was evidence presented to support the award in favor of the plaintiff. Whether such evidence satisfied the plaintiff’s burden of proof in this case was a question for the commissioner to decide.

“A workers’ compensation commissioner has the power to determine the facts and we cannot disturb them when reasonably found.” Chernovitz v. Preston Trucking Co., supra, 52 Conn. App. 573. “The conclusions drawn by him from the facts found must stand unless they result from an incorrect application of the law to the subordinate facts or from an inference illegally or unreasonably drawn from them.” (Internal quotation marks omitted.) Knoblaugh v. Marshall, supra, 64 Conn. App. 37. It is also within the province of the commissioner to determine credibility and the effect to be given the testimony of witnesses. See id., 39. Additionally, it is the commissioner’s right to consider evidence, draw logical deductions and make reasonable inferences from facts proven. See id., 37.

Upon reviewing the transcript of the hearing and the findings of the commissioner, we conclude that there is sufficient evidence in the record to support the commissioner’s ultimate finding that the plaintiffs separation from Bic was a discriminatory discharge. The evidence presented to the commissioner was sufficient for him to conclude reasonably that the plaintiff made out a prima facie case and successfully proved her claim by a fair preponderance of the evidence.

A review of the testimony at the hearing reveals that the plaintiff was employed in a point and support position in March, 2000, when she began having trouble with her previously injured left hand. She underwent surgery to correct this and missed approximately four weeks of work. Upon the plaintiffs return to work in April, 2000, Bic notified her that the point and support position had been changed and reclassified as a utility job. The plaintiff requested that some modifications be made to the utility position to accommodate her work-related disability, but Bic did not offer that reclassified position to the plaintiff, despite her having experience with all phases of it. Rather, Bic presented the plaintiff with a list of positions that she could “bump” into. The plaintiff was allowed only to observe two of the seven listed positions, however. Robin Stricoff, Bic’s ergonomist, also told the plaintiff that she would be unable to perform one of those two positions. The plaintiff, therefore, selected the only position that was left, that of ink inspector.

After attempting to perform the ink inspector job in October, 2000, the plaintiff experienced additional work-related discomfort to her hands and was unable to continue working after October 20, 2000. In November, Tross, her treating physician, met with representatives from Bic and suggested several modifications to the ink inspector position, and, after these modifications were made, the plaintiff returned to work on January 2, 2001, in the ink inspector position.

Jackie Sebas, a union steward, testified that Laurie DeSantis, the plaintiffs supervisor, had stated that she was willing to give the plaintiff additional time to build up her speed and that DeSantis knew and understood the issues surrounding the plaintiffs hand injuries. Steve Burgert, Bic’s manager of safety and health services, testified that management understood that the plaintiff would never be able to perform the ink inspector position at top speed during her qualifying period.

Sebas also testified that DeSantis had told her that the plaintiff was doing “pretty well” in the ink position, and Sebas never saw any writing that would contradict that representation. Additionally, Sebas explained that there was a two week qualifying period for the ink inspector position and that any extensions of that period had to be in writing. If an extension was not requested, pursuant to the union contract, the employee seeking to qualify was deemed qualified upon the expiration of the initial two week period. In the case of the plaintiff, Bic never sought an extension of the two week qualifying period.

The plaintiff was told that she would have an eight week training period for the ink inspector position, but was laid off on January 31,2001, following only eighteen days of actual training in this new position, for failing to attain the necessary rapidity in performance, after having received absolutely no written warnings concerning her job performance. This dismissal occurred despite both DeSantis’ and Burgert’s acknowledgment that they knew at the outset that the plaintiff would not be able to attain the normal rapidity during her training period and that this would not cause them concern.

The plaintiff received oral warnings about moving more quickly, but DeSantis never gave her instruction on the proper manner in which to perform her job and discover defects, nor did she ever tell the plaintiff that she was in danger of losing her job because of her inability to move more quickly. Additionally, Burgert stated that there was no written request to extend the plaintiffs qualifying period, and he was unaware of any verbal request having been made. There was no written job description for the ink inspector position that indicated any particular speed at which the job needed to be performed. DeSantis did not bring any documents to the hearing to show that the plaintiffs work was performed too slowly or improperly, despite the acknowledgment that performance related documents normally were kept by Bic. DeSantis stated that the testing materials used to assess the plaintiffs performance were “missing.”

Additionally, DeSantis testified that she was unhappy that the plaintiff had bumped another employee from the ink inspector position, that she thought that the plaintiff was not trying to learn the position, that the plaintiffs hands got in her way, and that she thought the plaintiff was faking injury to her hands during the first couple of hours of training.

After being laid off, the plaintiff applied for several other positions with Bic, and, on February 12, 2001, Burgert offered the plaintiff the utility position, which she accepted. Sebas also testified that Dinnette Kennedy, a human resource representative with the authority to offer the plaintiff this position, did make such an offer, which the plaintiff accepted. Her union representative, however, later advised the plaintiff that Bic would not award her the utility position. Sebas also testified that this offer was taken away.

“[Once] the plaintiff meets [her] initial burden [of proof], 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 her burden of persuading the factfinder that she was the victim of discrimination either directly by persuading the court [or the commissioner] 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.) Barrett v. Hebrew Home & Hospital, Inc., 73 Conn. App. 327, 333-34, 807 A.2d 1075 (2002).

Despite any claimed nondiscriminatory reason advanced by Bic for laying off the plaintiff, we conclude that there was sufficient evidence in the record to support the commissioner’s ultimate finding that the plaintiffs discharge from Bic was discriminatory in violation of § 31-290a. The plaintiff produced evidence that was sufficient to support the conclusion that she satisfied both her burden of proof and her burden of persuasion. The testimony discussed, coupled with the factual findings made by the commissioner, supports the award to the plaintiff.

The decision of the workers’ compensation commissioner is affirmed.

In this opinion the other judges concurred.

       Initially, we note that the appellants have failed to comply with various sections of the Practice Book.
      Practice Book § G7-4 (c) provides that an appellant is required to include in its brief “[a] statement of the nature of the proceedings and of the facts of the case bearing on the issues raised. The statement of facts shall be in narrative form, shall be supported by appropriate references to the page or pages of the transcript or to the document upon which the party relies, and shall not be unnecessarily detailed or voluminous.” (Emphasis added.) The defendants have provided no references to the transcripts or other documents from which their facts were drawn. “While a failure to comply fully with [Practice Book § 67-4 (c)] may preclude appellate review . . . such review, while more difficult, may nevertheless be appropriate.” Haynes v. Bronson, 13 Conn. App. 708, 710, 539 A.2d 592 (1988).
      Practice Book § 67-4 (d) provides in relevant part that “[t]he argument on each point shall include a separate, brief statement of the standard of review the appellant believes should be applied.” The appellants have failed to provide this court with the appropriate standard of review for their claims. See Willow Springs Condominium Assn., Inc. v. Seventh BRT Development Corp., 245 Conn. 1, 20-21, 717 A.2d 77 (1998) (noting noncompliance with requirement in Practice Book § 4064C (d), now § 67-4 (d), as to brief statement of standard of review but proceeding with review).
      The plaintiff has made similar omissions in her brief.

       General Statutes § 31-290a provides in relevant part: “(a) 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 [such employee] pursuant to the provisions of this chapter.
      “(b) Any employee who is so discharged or discriminated against may . . . (2) file a complaint with the [chairperson] of the Workers’ Compensation Commission alleging violation of the provisions of subsection (a) of this section. Upon receipt of any such complaint, the [chairperson] shall select a commissioner to hear the complaint, provided any commissioner who has previously rendered any decision concerning the claim shall be excluded. The hearing shall be held in the workers’ compensation district where the employer has its principal office. After the hearing, the commissioner shall send each party a written copy of [the rendered] decision. The commissioner may award the employee the reinstatement of [the employee’s] previous job, payment of back wages and reestablishment of employee benefits to which [the employee] otherwise would have been eligible if [the employee] had not been discriminated against or discharged. Any employee who prevails in such a complaint shall be awarded reasonable attorney’s fees. Any party aggrieved by the decision of the commissioner may appeal the decision to the Appellate Court.”

       The commissioner, in his findings, refers to the plaintiff’s authorized treating physician as Doctor Luther Tross.

       When the defendants were asked specifically at oral argument whether they were claiming “that the commissioner’s findings [were] not adequate to support the claim or [whether] there wasn’t sufficient evidence to produce these findings,” counsel for the defendants responded that he was claiming “that the commissioner’s findings [were] not sufficient.”

       Section 31-301-4 of the Regulations of Connecticut State Agencies provides in relevant part: “If the appellant desires to have the finding of the commissioner corrected he must . . . file with the commissioner his motion for the correction of the finding and with it such portions of the evidence as he deems relevant and material to the corrections asked for . . . (Emphasis added.)

       Practice Book § 66-5 provides in relevant part: “A motion seeking corrections in the transcript or the trial court record or seeking an articulation or further articulation of the decision of the trial court shall be called a motion for rectification or a motion for articulation, whichever is applicable. Any motion filed pursuant to this section shall state with particularity the relief sought. ...”

       Practice Book § 60-5 provides in relevant part: “The court may reverse or modify the decision of the trial court if it determines that the factual findings are clearly erroneous in view of the evidence and pleadings in the whole record, or that the decision is otherwise erroneous in law.
      “The court shall not be bound to consider a claim unless it was distinctly raised at the trial or arose subsequent to the trial. The court may in the interests of justice notice plain error not brought to the attention of the trial court. . . .”


source: Caselaw Access Project

author: BISHOP, J.

license: Public Domain

text:
    ROBERT B. CAFFERY v. MARTIN S. STILLMAN
    (AC 23512)
    Bishop, McLachlan and Mihalakos, Js.
    Argued June 5
    officially released September 2, 2003

      John R. Williams, for the appellant (plaintiff).

      James V. Somers, with whom were Kristi E. Mackin and, on the brief, James M. Sconzo, for the appellee (defendant).
   Opinion

BISHOP, J.

In this appeal from the summary judgment rendered in favor of the defendant, Martin S. Stillman, the plaintiff, Robert B. Caffery, claims that the trial court improperly determined that his claims were barred by the statute of limitations and that he was collaterally estopped from asserting claims that could have been raised in an allied workers’ compensation claim. We affirm the judgment of the trial court.

The following procedural history and factual background are germane to our discussion of the issues on appeal. On April 16,1992, the plaintiff sustained injuries in the course of his employment with the city of New Britain (city). Later that summer, the plaintiff retained the defendant to represent him in his workers’ compensation claim and in regard to any claims that could be asserted against the city. On February 16, 1994, with the assistance of the defendant, and after being canvassed by the workers’ compensation commissioner (commissioner), the plaintiff stipulated to a full, final and complete settlement of his workers’ compensation claim against the city for the sum of $95,000.

Slightly less than three years later, on January 28, 1997, the plaintiff filed a legal malpractice claim against the defendant in which he alleged, in sum, that the defendant had not represented him adequately before the commissioner, and that the nature and extent of the injuries entitled the plaintiff to a sum greater than that which he had received through the stipulation. The court dismissed the 1997 action on September 3, 1997, reasoning that because the plaintiff had not first sought to open the workers’ compensation case, in which that procedure had been available, the court lacked subject matter jurisdiction. No appeal was taken from the court’s order of dismissal.

The plaintiff did, however, seek to open the workers’ compensation case. Unsuccessful in that effort, he appealed to this court. We affirmed the determination of the workers’ compensation review board (board) supporting the commissioner’s denial of the plaintiffs attempt to open the workers’ compensation case against the city. See Caffery v. New Britain, 54 Conn. App. 902, 733 A.2d 923 (1999).

Subsequently, on September 8, 1999, the plaintiff brought this two count action, claiming, in count one, negligence on the part of the defendant for his failure to inform the commissioner of the full extent of the injuries and, in count two, breach of contract for incorrectly informing the plaintiff that he could bring a liability action against the city for the injuries in addition to his workers’ compensation claim.

Count two purports to set forth a contract claim, alleging that the defendant had agreed to “pursue vigorously all legal rights and remedies available to the plaintiff for damages sustained as a result of his said work-related injuries and to diligently represent, protect and defend the plaintiff’s rights to a full and fair economic recovery, and to provide the plaintiff with competent and accurate advice concerning his legal rights and remedies in connection therewith.”

The plaintiff additionally alleged that the defendant had told him that in conjunction with the settlement of the workers’ compensation claim, the plaintiff could still bring a separate action against the city for negligence and that “the defendant promised the plaintiff that he would institute such a suit on the plaintiff’s behalf.” The plaintiff further alleged that “the defendant’s advice was grossly incorrect, in that the plaintiff had no right to bring a separate suit against the City of New Britain and any lawyer practicing law at that time would have known such fact.”

On July 1, 2002, the defendant filed a motion for summary judgment, claiming that count one was patently barred by General Statutes § 52-577, the statute of limitations for a legal malpractice claim based on negligence, i.e., a tort, and that count two similarly was barred because it was, in effect, a negligence claim merely couched in contract language. The defendant also asserted that the plaintiff was estopped as a matter of law because his claims already had been heard and decided in the workers’ compensation forum. Agreeing with the defendant on all of the bases claimed, the court granted the motion and rendered summary judgment as to both counts on September 10, 2002. This appeal followed.

The pathway to our analysis is well trodden. Summary judgment is appropriate where “the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. ” (Internal quotation marks omitted.) Miller v. United Technologies Corp., 233 Conn. 732, 744-45, 660 A.2d 810 (1995). Because the court’s decision on a motion for summary judgment is a legal determination, our review on appeal is plenary. Faigel v. Fairfield University, 75 Conn. App. 37, 40, 815 A.2d 140 (2003).

General Statutes § 52-577, which applies to legal malpractice claims based on negligence, provides that “[n]o action founded upon a tort shall be brought but within three years from the date of the act or omission complained of.” Because the alleged behavior of the defendant took place in conjunction with the settlement of the workers’ compensation claim, the latest date of any such behavior would have taken place at the time of the final stipulation in February, 1994. That action, however, was brought substantially more than three years after the acceptance of the stipulation by the workers’ compensation commissioner.

The plaintiff claims, nevertheless, that his action is saved by the provisions of General Statutes § 52-592, the accidental failure of suit statute. The plaintiff clearly is incorrect because to enjoy the protection of § 52-592 (a), a plaintiff must file an action “for the same cause at any time within one year after the determination of the original action . . . .” General Statutes § 52-592 (a). Here, the record is plain that more than one year elapsed between the date the court dismissed the original action, September 3,1997, and September 8,1999, when this action was brought. In an effort to circumvent the clear import of § 52-592, the plaintiff has claimed that, in effect, the court did not dismiss the original action, but rather deferred the action until he had returned to the workers’ compensation forum. Our review of the record discloses no basis for that argument. Rather, the record leaves no doubt that on September 3, 1997, the court dismissed the action, leaving no life ring for the survival of the plaintiff’s claims other than the one year grace period provided in § 52-592.

As to the second count, the plaintiff asserts that the court incorrectly determined that it was, in fact, a negligence claim governed by § 52-577, the statute of limitation for tort claims. Rather, the plaintiff asserts that the second count sounds in contract, which is governed by the six year statute of limitations set forth in General Statutes § 52-576 (a), which provides that “[n]o action for an account, or on any simple or implied contract, or on any contract in writing, shall be brought but within six years after the right of action accrues, except as provided in subsection (b) of this section.”

The question, then, before the trial court and for our review is whether the allegations of the second count set forth a claim in contract or in tort. If a contract claim was set forth, the claim was timely under the six year statute of limitations because the action was brought within six years of the alleged conduct of the defendant. If a tort claim was set forth, however, the action is time barred because it was brought more than three years after the alleged conduct and not within one year of the dismissal of the prior action. We believe the language of the second count, even when construed in the light most favorable to its preservation, was no more than a tort claim clothed in contract terms.

We begin our analysis with the observation that “[t]he interpretation of pleadings is always a question of law for the court. Cahill v. Board of Education, 198 Conn. 229, 236, 502 A.2d 410 (1985) . . . .” (Citations omitted.) Jacques All Trades Corp. v. Brown, 33 Conn. App. 294, 302, 635 A.2d 839 (1993). Our review, therefore, is plenary.

At the outset, we agree with the plaintiffs statement of law that one may bring against an attorney an action sounding in both negligence and contract. See Mac’s Car City, Inc. v. DeNigris, 18 Conn. App. 525, 529-30, 559 A.2d 712, cert. denied, 212 Conn. 807, 563 A.2d 1356 (1989). Mac’s Car City, Inc., does not stand for the proposition, however, that one may bring an action in both negligence and contract merely by couching a claim that one has breached a standard of care in the language of contract. Thus, we believe that a claim that a defendant promised to work diligently or in accordance with professional standards is not made a contract claim simply because it is couched in the contract language of promise and breach. Additionally, that case is distinguishable from a true contract claim in which a plaintiff asserts that a defendant who is a professional breached an agreement to obtain a specific result. See Rumbin v. Baez, 52 Conn. App. 487, 491, 727 A.2d 744 (1999).

At oral argument, the plaintiff claimed that the present case is indistinguishable from Hill v. Williams, 74 Conn. App. 654, 662, 813 A.2d 130, cert. denied, 263 Conn. 918, 822 A.2d 242 (2003), in which we concluded that one of the plaintiffs counts did sound in contract and, thus, was not barred by the tort statute of limitations. Contrary to the plaintiffs assertions, our determination of the issue before us is not governed by the reasoning of Hill.

In Hill, we found that the plaintiff had alleged that the defendant had promised to take specific actions that he later refused to undertake and that the plaintiff suffered damages as a result. Id., 659. Here, although the plaintiff alleged that the defendant had promised to bring a liability action against the city, the plaintiff does not claim that he sustained damages as a consequence of the defendant’s failure to bring such an action. Rather, he claims that the promise to bring such an action was premised on an incorrect understanding of the law and that he suffered damages as a result of the defendant’s failure to understand the limits of the legal remedy.

Telling as to that point is the colloquy during the summary judgment hearing. After defense counsel had argued that the second count was no more than a negligence claim dressed in contract language, the following statement was made by the plaintiffs counsel: “[For] breach of contract, as [the court has] heard, there’s a six year statute of limitations, and the breach here was the failure to meet the minimum standard of care, not that something was promised and that that action wasn’t given . . . .” Because the second count is, in reality, a negligence claim, it is governed by the three year statute of limitations for tort claims and not the six year statute for contract actions.

Having determined that the court correctly found that both counts were governed by the three year statute of limitations for tort actions as set forth in § 52-577, we need not reach the plaintiffs last claim regarding the correctness of the court’s ruling on collateral estoppel.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 52-576 (b) concerns legally incapable persons and is inapplicable.


author: HENNESSY, J.

text:
    STATE OF CONNECTICUT v. LEOPOLD LACHOWICZ
    (AC 23138)
    Schaller, Mihalakos and Hennessy, Js.
    Argued June 6
    officially released September 2, 2003

      Scott Abkowicz, deputy assistant public defender, for the appellant (defendant).

      Elizabeth Bodine, assistant state’s attorney, with whom, on the brief, were Scott J. Murphy, state’s attorney, and Debra A. Collins, assistant state’s attorney, for the appellee (state).
   Opinion

HENNESSY, J.

The defendant, Leopold Lachowicz, appeals from the judgment of the trial court revoking his probation and committing him to the custody of the commissioner of correction to serve the remaining seven years of his previously suspended sentence of incarceration. On appeal, the defendant claims that the court improperly (1) found that he had violated his probation, (2) found that the beneficial purposes of probation were no longer being served and (3) deprived him of a fair trial in violation of his due process rights. We affirm the judgment of the trial court.

The following facts are relevant to the defendant’s appeal. On November 18, 1994, the defendant was convicted of sexual assault in the first degree in violation of General Statutes § 53a-70 and was sentenced to ten years of incarceration, suspended after three years, with a period of five years of probation. On December 31, 1996, the defendant began his probation. Five special conditions of probation were imposed on the defendant: (1) have no contact with the victim or the victim’s family, (2) participate in a sex offender treatment program (program), (3) maintain full-time employment, (4) provide restitution to the victim for any out-of-pocket expenses incurred as a result of the assault and (5) maintain support of his minor child.

On October 15, 1996, pursuant to his participation in a sex offender treatment program, the defendant signed a treatment contract with The Connection, Inc., and its special services center for the treatment of problem sexual behavior (special services). The relevant portions of the treatment contract included punctual attendance at all treatment sessions, unless granted permission from a staff member to be late or to miss a session; abstaining from committing any criminal offenses; refraining from behavior that adversely affects treatment; and full and active participation in treatment sessions. The contract also stated in relevant part: “I understand and agree that any violation of the conditions of this contract may be grounds for termination from the program at the discretion of the staff.” (Emphasis added.)

On December 4, 2001, the defendant was discharged from the program for failure to abide by the terms of the treatment contract. On December 18, 2001, the defendant was charged with violation of probation pursuant to General Statutes § 53a-32 (a). The application for an arrest warrant included the affidavit of Craig J. Hanson, the defendant’s probation officer, which stated that the defendant had failed to attend nine group sessions in 2001 and provided medical excuses only for “less than one-half . . . .” The affidavit also stated that the defendant “disclosed that he had recently used prostitutes over the past several months” and had used those encounters “to counter his deviant fantasies over the course of his probation.” The defendant also “admitted that he actively fantasizes around sexual contact with minors and visualizes these prepubescent contacts while engaging in sex acts with adult females.” The affidavit further stated that the defendant had failed to complete homework assignments related to his treatment, such as an action plan related to high risk situations, and “has failed to consistently meet the expectations” of the program. On March 16, 2002, the defendant was arrested pursuant to a warrant.

On April 9, 2002, the court began a hearing to determine whether the defendant had violated his probation. Charles Shideler, a staff therapist with special services, testified that failure to abide by the conditions of the treatment contract could result in discharge from the program. He testified that the defendant had missed nine treatment sessions in violation of the contract. Shideler also stated that the defendant had failed to complete action plans, failed to complete homework and, in five years, had completed only one stage of the six stage program. According to Shideler, the defendant was still a high risk to the community and had not been rehabilitated in the program.

Hanson testified that the beneficial purposes of probation were no longer being served as to the defendant. Hanson testified that the twenty days remaining in the defendant’s probation would not reduce his risk to the community because the defendant’s “actions already with the prostitutes and fantasizing about having [and] visualizing sex with minors while having sex with prostitutes” was a “red flag” and might actually lead to the defendant’s committing a crime against a child.

Following the presentation of the evidence and closing arguments, the court found that the defendant had violated the condition of probation requiring sex offender treatment and, thus, was in violation of his probation. As a result, the probation was revoked, and the court ordered the defendant to serve the remaining seven years of his sentence. This appeal followed.

I

The defendant first claims that the court improperly found that he had violated his probation. He argues that the state did not prove by a preponderance of the evidence that (1) he did not complete his homework and action plans for dealing with high risk situations he would encounter, (2) that he missed program classes in 2001 without a valid excuse and (3) that he violated a criminal law based on his admission that he had engaged the services of a prostitute. We do not need to address that claim because the defendant waived it during the hearing.

At various times throughout the revocation of probation hearing, the defendant’s attorney conceded that the defendant had violated his probation. The defendant’s attorney also stated that “the question, of course, Your Honor, is what is the remedy for this violation.” (Emphasis added.) Clearly, the defendant waived any claim that he did not violate the terms of his probation.

II

The defendant next claims that the court improperly found that the beneficial purposes of probation were no longer being served. The defendant argues that the evidence presented during the hearing was insufficient for the court to conclude that his probation should be revoked and that he should be sentenced to the time remaining on his term of imprisonment. We disagree.

The defendant’s claim involves the second component of a probation revocation hearing. If the court finds a violation of probation on the basis of the facts presented in the first component, it then must “determine whether probation should be revoked because the beneficial aspects of probation are no longer being served.” (Internal quotation marks omitted.) State v. Holmes, 70 Conn. App. 4, 7, 796 A.2d 561 (2002). General Statutes § 53a-32 (b) provides in relevant part: “No such revocation [of probation] shall be ordered, except upon consideration of the whole record and unless such violation is established by the introduction of reliable and probative evidence and by a preponderance of the evidence.”

“When reviewing the second component of a probation revocation hearing, an appellate court must determine whether the trial court exercised its discretion properly by reinstating the original sentence and ordering incarceration. ... In making this second determination [whether the defendant’s probationary status should be revoked], the trial court is vested with broad discretion. ... In determining whether there has been an abuse of discretion, every reasonable presumption should be given in favor of the correctness of the court’s ruling . . . [and] [Reversal is required only where an abuse of discretion is manifest or where injustice appears to have been done. ... In determining whether to revoke probation, the trial court shall consider the beneficial purposes of probation, namely rehabilitation of the offender and the protection of society.” (Citations omitted; internal quotation marks omitted.) State v. Treat, 38 Conn. App. 762, 770-71, 664 A.2d 785, cert. denied, 235 Conn. 920, 665 A.2d 907 (1995). We will review the record to determine whether the court abused its discretion when it determined that the beneficial purposes of probation were no longer being served and by imposing the remainder of the defendant’s sentence of incarceration.

Shideler testified that the purpose of sex offender treatment is to “provide a client with the tools to interrupt deviant behavior and deviant arousal, and to develop appropriate skills or appropriate sexual interests or expressions of those interests that don’t cause a person to commit criminal behavior.” He stated that in the six months prior to the defendant’s discharge from the treatment program, his behavior exemplified several risk factors that indicated that the defendant might commit a sex crime against a child in the future. Most notable here is the defendant’s admission to Shideler that he had engaged in sexual activity with prostitutes intermittently throughout his probation. In addition, while having sex with the prostitutes, the defendant was fantasizing about having sex with children. Shideler testified that when asked how the defendant would fulfill his sexual needs if a prostitute was not readily available, the defendant responded that he “didn’t know.” Shideler stated that this type of activity is a “very strong precursor to reoffending because it does not represent that [the defendant] has developed appropriate escape skills or tools to interrupt his arousal and process those feelings appropriately.” Shideler stated that in his opinion, the “defendant represents a strong potential to re-offend in the community.”

Hanson’s testimony also was relevant to the court’s determination to impose further incarceration. Hanson testified that the defendant’s conduct thwarted the rehabilitative purpose of probation. He further testified that “a fantasy is one step leading to actually doing that offense” and that the defendant was a high risk to again engage in criminal behavior. Hanson stated that “a period of incarceration followed by a period of probation would be apropos” because the beneficial services of probation were not being served.

The record reveals that the defendant had failed to perform his obligations within the sex offender treatment program and was a high risk to engage in criminal behavior in the future. The court reasonably could have concluded that the beneficial purposes of probation were no longer being served. In addition, the court’s remarks that it was “gravely concerned about the protection of society in this particular case, and I recognize, of course, the need to protect society [and] it’s my opinion that you present a person of high risk to the . . . community,” reveal that the court properly considered the beneficial purposes of probation prior to the revocation of that probation. The court did not abuse its discretion by revoking the defendant’s probation.

Ill

The defendant’s third claim is that the court deprived the defendant of a fair trial in violation of his due process rights. We do not agree.

“Probation revocation proceedings fall within the protections guaranteed by the due process clause of the fourteenth amendment to the federal constitution. . . . That clause provides in relevant part: [N]or shall any State deprive any person of life, liberty or property, without due process of law .... U.S. Const., amend. XIV, § 1. Probation itself is a conditional liberty and a privilege that, once granted, is a constitutionally protected interest. . . . The revocation proceeding must comport with the basic requirements of due process because termination of that privilege results in a loss of liberty. . . . [T]he minimum due process requirements for revocation of [probation] include written notice of the claimed [probation] violation, disclosure to the [probationer] of the evidence against him, the opportunity to be heard in person and to present witnesses and documentary evidence, the right to confront and cross-examine adverse witnesses in most instances, a neutral hearing body, and a written statement as to the evidence for and reasons for [probation] violation. . . . Despite that panoply of requirements, a probation revocation hearing does not require all of the procedural components associated with an adversarial criminal proceeding.” (Citations omitted; internal quotation marks omitted.) State v. Gauthier, 73 Conn. App. 781, 789, 809 A.2d 1132 (2002), cert. denied, 262 Conn. 937, 815 A.2d 137 (2003).

The defendant argues that the court did not follow proper procedure for finding a violation of probation because it did not state with specificity its rationale for the revocation of his probationary status. The defendant failed to preserve his claim at trial and now requests that we review it under State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989). We find that the defendant’s claim fails to satisfy the third prong of Golding. The constitutional violation did not clearly exist, and the defendant was not deprived of a fair trial. See id.

The court did not abuse its discretion by failing to articulate the specific reasons on which the revocation of probation was based. As long as “the ultimate findings of the court, that there was a violation of a condition of probation and that probation should have been revoked, were reasonable . . . the court need not have made specific subsidiary findings of fact.” State v. Baxter, 19 Conn. App. 304, 321, 563 A.2d 721 (1989).

The defendant further argues that his due process rights were violated because he was not provided an opportunity to present evidence and witnesses. Our review of the record reveals that the defendant was accorded a proper hearing within the requirements of § 53a-32. During the evidentiary phase of the hearing, the state presented two witnesses, who were then cross-examined by the defendant. The defendant then testified as a witness during his defense. The defendant’s contention that he was not provided with an opportunity to present witnesses to testify on behalf of his character is, therefore, completely unfounded.

After closing arguments by both attorneys, the court took a biief recess. The court then asked if the parties were ready for sentencing. The court then stated its finding that the defendant had violated his probation. Subsequently, both defense counsel and the defendant made arguments to the court. The court then asked: “Anything else?” The defendant replied: “That’s it. Thank you.” (Emphasis added.) Consequently, the defendant’s contention that he did not have the opportunity to present witnesses to testify as to an appropriate sentence is equally unfounded.

Finally, the court concluded the hearing by stating: “As Fve already said, I find you in violation of your probation, and I have thoroughly reviewed the sentencing alternatives that are available to me and the record that you present with regard to your past convictions and your performance while a probationer, and it’s my opinion that you present a person of high risk to the welfare of the community and to the safety of the community.”

On the basis of our review of the transcript and the briefs, we conclude that the court conducted a probation revocation hearing that complied with the requirements of due process. The defendant was afforded a full two part probation revocation hearing prior to having his probation revoked.

On the basis of the foregoing analysis, the finding of the court that the defendant was in violation of his probation for failing to complete a special condition of his probation was not clearly erroneous, the court did not abuse its discretion by revoking his probation and incarcerating him to complete the remainder of his sentence, and his due process rights were not violated.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 53a-32 (a) provides in relevant part: “[U]pon an arrest by warrant [for a violation of probation], the court shall cause the defendant to be brought before it without unnecessary delay lor a hearing on the violation charges. At such hearing the defendant shall be informed of the manner in which such defendant is alleged to have violated the conditions of such defendant’s probation or conditional discharge, shall be advised by the court that such defendant has the right to retain counsel and, if indigent, shall be entitled to the services of the public defender, and shall have the right to cross-examine witnesses and to present evidence in such defendant’s own behalf.”

       The court was not required to find that the defendant had violated a criminal law by engaging the services of a prostitute. Hanson testified that the defendant knew that sexual activity with prostitutes, as an outlet for his fantasies involving sex with children, was behavior prohibited by his treatment contract. Collectively, the sex acts, the failure to attend treatment sessions, the failure to perform homework assignments and to complete action plans establish a material breach of his contract with special services. The breach of contract constituted the violation of probation, not the finding that the defendant had committed the crime of patronizing a prostitute in violation of General Statutes § 53a-83.

       The following colloquy occurred during closing arguments:
      “The Court: [The defendant] is in violation of his probation. Even you can see that.
      “[Defense Counsel]: Yes, Your Honor. There was a violation.
      “The Court: So, we’re talking about a probation violator.
      “[Defense Counsel]: Correct. . . .”

       The defendant could not prevail even if we reached the merits of his claim that the court improperly found by a preponderance of the evidence that he had violated the terms of his probation. The court heard evidence that the defendant’s dismissal from the sex offender treatment program resulted from his exceeding the number of allowed unexcused absences, his failure to complete homework assignments, his failure to complete action plans and his failure to make progress during treatment.

       In addition, the defendant argues that his due process rights were violated because the prosecutor improperly argued uncharged misconduct to the court during closing remarks. After a thorough examination of the transcript, we cannot find prosecutorial misconduct. During the defendant’s direct examination, the defendant, himself, stated that he originally had been charged with sexually assaulting two girls, ages six and nine, respectively. In actuality, the defendant was charged with and convicted of sexually assaulting only the six year old. During closing argument, the prosecutor clarified the defendant’s own miseharacterization of the charges surrounding his conviction by reiterating three times that “the underlying offense was for the rape of a six year old.”
      The defendant’s main contention concerns a colloquy between the prosecutor and the court regarding the nine year old girl mentioned by the defendant during direct examination and cross-examination. The prosecutor gave the court a copy of the presentence investigation report, which indicated that a sexual assault of an additional child had occurred around the same time as the offense against the six year old. To clarify for the court that the underlying charges were with respect to the six year old child only, the prosecutor stated: “The underlying [charge] was, in fact, only for the six year old, not the nine year old, which was actually disclosed later, as testified [about] by the defendant. . . . Although the defendant was under the impression that he was charged with the [assault of the] nine year old as well.”
      The court then inquired as to whether the defendant had been charged in the assault of the nine year old. The prosecutor answered: “Your Honor, it was not until this moment that I realized that. When he stated, and my notes are frantic and circled, stating that he has admitted to raping a nine year old child. We may have a statute of limitations problem. It was in 1994, and the child may have surpassed the age of sixteen.” The prosecutor then continued her closing argument.
      That response to a direct inquiry by the court cannot be construed as improper prosecutorial conduct because the prosecutor’s remarks served to clarify the defendant’s misstatement to the court. The prosecutor was indicating that the defendant had not been charged with respect to the nine year old. Because nothing in the record reveals prosecutorial misconduct, we do not address that claim.

       “Under Golding, a defendant can prevail on a claim of constitutional error not preserved at trial only if all the following conditions are met: (1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt. ... In the absence of any one of these conditions, the defendant’s claim will fail. The appellate tribunal is free, therefore, to respond to the defendant’s claim by focusing on whichever condition is most relevant in the particular circumstances.” (Citation omitted; emphasis in original; internal quotation marks omitted.) State v. Hobson, 68 Conn. App. 40, 47, 789 A.2d 557, cert. denied, 260 Conn. 910, 796 A.2d 557 (2002).

       See footnote 1.

       The defendant contends that he was not afforded a bifurcated hearing in which a violation of probation is found and then a separate hearing is held to determine if the beneficial purposes of probation are still being served. The defendant’s attorney acknowledged that the defendant had violated his probation. See part I. The only issue before the court, therefore, according to the defendant’s attorney, was whether the beneficial purposes of probation were still being served. The court, however, did make a separate finding that the defendant had violated his probation and then gave him an opportunity to be heard and to present evidence.


author: LAVERY, C. J.

text:
    L. SUZIO CONCRETE COMPANY, INC. v. BIRMINGHAM CONSTRUCTION SERVICES COMPANY, INC., ET AL.
    (AC 23005)
    Lavery, C. J., and West and DiPentima, Js.
    Argued June 10
    officially released September 2, 2003

      Richard P. Savitt, for the appellant (defendant David Cassetti).

      Kevin P. Thornton, for the appellee (plaintiff).
   Opinion

LAVERY, C. J.

This case involves an action brought by the plaintiff, L. Suzio Concrete Company, Inc., to recover a balance due for concrete building materials furnished to the defendant Birmingham Construction Services Company, Inc. (Birmingham), pursuant to a credit agreement, which the defendant David Cassetti signed as a guarantor. The defendant appeals from the judgment of the trial court rendered in favor of the plaintiff. On appeal, the defendant claims that the court improperly (1) determined that he was hable as a guarantor because the subject guarantee was no longer effective, (2) failed to find that the plaintiff did not mitigate its damages with respect to the defendant, which the plaintiff allegedly was obligated to do by law, (3) determined that the credit agreement did not limit the defendant’s liability to $5000 and (4) failed to find that there was no binding contract between the parties because there was no “meeting of the minds.” We affirm the judgment of the trial court.

The following undisputed facts and procedural history are relevant to our resolution of the defendant’s appeal. On July 29, 1991, Birmingham entered into a credit agreement with the plaintiff for concrete building materials. The defendant, who was a principal in Birmingham at that time, signed the agreement as a guarantor. On October 24, 1995, the defendant conveyed all his stock in Birmingham to Michael Kane, Birmingham’s other principal, and left the corporation. After he left Birmingham, the defendant did not revoke the guarantee, nor did he advise the plaintiff that he had left the corporation.

By way of a five count amended complaint dated March 28, 2001, the plaintiff brought the present action, seeking to recover a balance due on an open account for materials it furnished to Birmingham between May and November, 1998, pursuant to the credit agreement. The first two counts of the amended complaint were directed against Birmingham, and the remaining three counts were directed against the defendant. The defendant filed an answer, special defenses and a counterclaim. The court dismissed the two counts of the amended complaint directed against Birmingham, two of the counts directed against the defendant and the defendant’s counterclaim, leaving only the third count of the amended complaint for disposition. As to the third count, which alleged the defendant’s liability as guarantor, the court rendered judgment in favor of the plaintiff. This appeal followed.

I

The defendant first claims that the court improperly determined that he was liable as a guarantor because, he asserts, the continuing guarantee was no longer effective. Specifically, he argues that it was unreasonable to impose liability on him pursuant to the guarantee after he left Birmingham in October, 1995. We disagree.

“An offer for a continuing guarantee] is ordinarily effective until revoked by the guarantor or extinguished by some rule of law. ... To revoke a continuing guarantee], the guarantor usually must give notice of the revocation to the creditor. . . . However, [e]ven a continuing guarantiee] that is, in terms, unlimited as to duration, imposes liability upon a guarantor only for such period of time as is reasonable in fight of all the circumstances of the particular case. . . . The interpretation of a continuing guarantiee], as well as the question of its revocation, ordinarily is a question of fact.” (Citations omitted; internal quotation marks omitted.) Associated Catalog Merchandisers, Inc. v. Chagnon, 210 Conn. 734, 742-43, 557 A.2d 525 (1989). “Our review of the factual findings of the trial court is limited to a determination of whether they are clearly erroneous. ... A finding of fact is clearly erroneous when there is no evidence in the record to support it . . . or when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.” (Internal quotation marks omitted.) Ridgefield v. Eppoliti Realty Co., 71 Conn. App. 321, 328, 801 A.2d 902, cert. denied, 261 Conn. 933, 806 A.2d 1070 (2002).

In the present case, the guarantee states in relevant part that the defendant “individually agrees this is a continuing guarantee and shall remain in full force and effect until revoked by written notice to seller, but said revocation shall be effective only as to transactions entered into after sellers receipt of such notice.” (Emphasis added.) The guarantee further states that the defendant acknowledged that he read and understood the agreement.

In its memorandum of decision, the court stated: “The defendant argues that the court should look to the intention of the parties for the duration of the guarantee. The guarantee in question has no termination date, but gives the guarantor, the defendant, the right of revocation. He chose not to exercise that right, even though he sold his shares in 1995, four years after executing the guaraní [ee], and a schedule attached to his stock sale agreement listed the plaintiff as a creditor of the company from which [he] was withdrawing. . . . The fact that the plaintiff did not review the guarantee each time it extended credit is of no moment. Such guarantee clauses are usually in repose until they are resorted to in case of a default.”

We conclude that in light of all the evidence and circumstances of this case, it was not unreasonable to impose liability on the defendant as the guarantor of the security agreement. The guarantee expressly provided the defendant with the right to revoke the guarantee in writing, but he failed to exercise that right. Also, the defendant did not keep himself informed as to his liability under the guarantee. See Connecticut National Bank v. Foley, 18 Conn. App. 667, 673-74, 560 A.2d 475 (1989); see also Hartford-Aetna National Bank v. Anderson, 92 Conn. 643, 648, 103 A. 845 (1918) (guarantor’s failure to keep himself informed as to his liability under guarantee constitutes sufficient ground to hold guarantor liable). Moreover, as the court stated, this is not a case like Monroe Ready Mix Concrete, Inc. v. Westcor Development Corp., 183 Conn. 348, 352, 439 A.2d 362 (1981), in which there was a significant period of inactivity between the parties when no credit was extended. See Connecticut National Bank v. Foley, supra, 674. Here, credit was extended continuously for the seven year period in dispute.

After reviewing the entire record, we conclude that the court’s determination that it was reasonable to impose liability on the defendant under the guarantee, despite the fact that he had left Birmingham in October, 1995, is not clearly erroneous.

II

The defendant next claims that it was improper for the court to fail to find that the plaintiff did not mitigate its damages with respect to the defendant, which the defendant contends the plaintiff was obligated to do by law. The defendant appears to argue that because one of the plaintiffs employees testified that he knew the defendant had left Birmingham, that knowledge should have been imputed to the plaintiff and that to mitigate damages, the plaintiff “should have inquired as to the status of [Birmingham’s] account” and notified the defendant that “it was permitting [Birmingham] to run up its debt without payment to [the defendant’s] detriment.”

We do not agree with the defendant that the plaintiff was obligated to notify the defendant of his exposure pursuant to the guarantee under the circumstances in this case. The defendant would have us, in essence, shift to the plaintiff the defendant’s burden of keeping himself informed as to his liability under the continuing guarantee. See id., 673-74. The defendant cites no authority, and we have found none, for such a proposition. Indeed, as the court stated, under the circumstances, “[t]his theory borders on the frivolous.” Accordingly, we reject the defendant’s claim.

Ill

The defendant next claims that the court improperly determined that the credit agreement did not limit his liability to $5000. Specifically, he argues that the language in the agreement, “Monthly credit limit required: $5000,” is ambiguous and that the court should have resolved the ambiguity in his favor by determining that the language limited his liability under the credit agreement to $5000. We disagree.

The governing law applicable in this case is well established. “Although ordinarily the question of contract interpretation, being a question of the parties’ intent, is a question of fact . . . [w]here there is definitive contract language, the determination of what the parties intended by their contractual commitments is a question of law. ... A contract must be construed to effectuate the intent of the parties, which is determined from the language used interpreted in the light of the situation of the parties and the circumstances connected with the transaction. . . . [T]he intent of the parties is to be ascertained by a fair and reasonable construction of the written words and . . . the language used must be accorded its common, natural, and ordinary meaning and usage where it can be sensibly applied to the subject matter of the contract. . . . Where the language of the contract is clear and unambiguous, the contract is to be given effect according to its terms. A court will not torture words to import ambiguity where the ordinary meaning leaves no room for ambiguity .... Similarly, any ambiguity in a contract must emanate from the language used in the contract rather than from one party’s subjective perception of the terms.” (Citation omitted; internal quotation marks omitted.) Niehaus v. Cowles Business Media, Inc., 263 Conn. 178, 188-89, 819 A.2d 765 (2003).

In applying that law to the facts of the present case, we, like the trial court, conclude that the language, “Monthly credit limit required: $5000,” is clear and unambiguous. In its memorandum of decision, the court stated in relevant part: “The figure of $5000 was inserted by [the defendant], who now claims he understood this to be the limit of his liability. . . . [T]here is no ambiguity to resolve. The language clearly sets forth what the credit applicant anticipates his needs will be ... in effect [the applicant] is saying, 1 anticipate needing $5000 a month in credit.’ ” (Emphasis added.) We agree with the court that the language, which is in the informational portion of the credit agreement, clearly represented an estimate of what Birmingham anticipated it needed in terms of monthly credit and not a limit of Birmingham’s liability. The defendant’s subjective perception of the subject language does not create ambiguity. See id., 189. Accordingly, we conclude that the court properly determined that the credit agreement did not limit the defendant’s liability to $5000.

IV

Finally, the defendant claims that the court improperly failed to find that there was no binding contract between the plaintiff and Birmingham because there was no “meeting of the minds.” He contends that because there was no “meeting of the minds” giving rise to a binding credit agreement, he should not have been found hable as a guarantor of that agreement.

The defendant did not distinctly raise his claim before the trial court. This court “shall not be bound to consider a claim unless it was distinctly raised at the trial or arose subsequent to the trial. ...” Practice Book § 60-5; see also Rivera v. Double A Transportation, Inc., 248 Conn. 21, 33, 727 A.2d 204 (1999) (claims not addressed or decided by trial court not properly before reviewing court). Accordingly, we decline to address the claim.

The judgment is affirmed.

In this opinion the other judges concurred.

       Birmingham is not involved in this appeal. We therefore refer in this opinion to Cassetti as the defendant.

       The defendant did not include a statement of issues in his appellate brief. We have interpreted his claims, therefore, in a manner consistent with the arguments and analyses presented in his brief.

       The court dismissed the first two counts, which were directed against Birmingham, because the plaintiff failed to prosecute those claims. The court dismissed the fourth and fifth counts, which were directed against the defendant, because they were duplications of the third count, and it dismissed the defendant’s counterclaim because no evidence was offered in support thereof.

       The court rendered judgment for the plaintiff in the amount of $9562.56 plus interest of $3944.52. As the credit agreement provided for the recovery of reasonable attorney’s fees, the court also awarded the plaintiff $8467 in fees and stated that the defendant would be given an opportunity to contest that award. Following postjudgment proceedings on that and other issues, the court increased the award of attorney’s fees to $9747.57.

        We note that the amount of the plaintiffs judgment cited in the judgment file in the record is apparently incorrect as it does not reflect the change in the amount of the award of attorney’s fees. That change would have increased the plaintiffs recovery to $23,254.65 plus taxable costs.

       We note that the court specifically found that although “[t]he [plaintiffs] employee testified that he spoke to . . . Kane, who told him [that] he and his partner were splitting up ... he didn’t know [the defendant] was the partner.”

       We note that Leonardo H. Suzio, a principal in the plaintiff corporation, testified at trial that the purpose of the “monthly credit limit required” information on the credit application was “to get an estimate from the customer of how much they think they’re going to charge on a monthly basis.”

       In his appellate brief, the defendant appears to concede that his claim was not distinctly raised before the trial court.