author: BISHOP, J. FOTI, J.,

text:
    JANNINE FALVEY v. ROSE ZUROLO ET AL.
    (AC 31860)
    Bishop, Gruendel and Foti, Js.

      Argued November 30, 2010
    officially released July 19, 2011

      William J. Kupinse, Jr., with whom, on the brief, was Andrew M. McPherson, for the appellant (plaintiff).

      Peter C. Barrett, for the appellee (defendant Robert Mirto, conservator of the person and estate of the named defendant).
   Opinion

BISHOP, J.

The plaintiff, Jannine Falvey, appeals from the judgment of the Superior Court denying her appeal from the order of the Probate Court for the district of Orange, which denied her application to become conservator of the person and the estate of her mother, Rose Zurolo. On appeal, the plaintiff claims that the Superior Court improperly (1) interpreted General Statutes § 45a-650 (h) when it affirmed the Probate Court’s appointment of the defendant attorney Robert Mirto as a neutral third party conservator and (2) found that there was substantial evidence in the record to support the Probate Court’s denial of her application to be appointed conservator on the ground that she had an existing or potential conflict of interest. We reverse in part and affirm in part the judgment of the Superior Court.

The following facts, as found by the court, and procedural history are relevant to our resolution of the plaintiffs appeal. In 1998, the plaintiff began assisting Zurolo in her financial and health decisions. In 2002, the plaintiff became a cosigner on Zurolo’s bank account and subsequently began signing checks for Zurolo. On February 8, 2007, the plaintiff, by way of affidavit, invoked a springing power of attorney granted to her by Zurolo. On August 30,2007, because Zurolo was exhibiting signs of dementia, the plaintiff applied to the Probate Court for the district of Orange to become conservator of Zurolo and her estate. Although the interested parties involved in the probate trial all agreed that Zurolo would be best served by the appointment of a conservator, the plaintiffs sister, Vanessa Ramadon, and Zurolo’s court-appointed attorney, Theresa Nikols, advocated for having a neutral third party, and not the plaintiff, appointed as conservator. Over the course of a four day trial, the Probate Court received testimony from nine witnesses regarding Zurolo’s condition, her estate, and the qualifications of the plaintiff to become conservator. The defendant did not testify at the trial nor was there any evidence regarding his potential suitability for appointment. Indeed, his name never arose as a potential conservator.

On April 8, 2008, the Probate Court, by way of a memorandum of decision, found by clear and convincing evidence that a conservator should be appointed for the person and the estate of Zurolo. The Probate Court, however, denied the plaintiffs application to be appointed, finding that she acted improperly in 2005, when she personally received funds and wrote checks from Zurolo’s bank account payable to herself or to cash. On the basis of this existing or potential conflict of interest, the Probate Court found that the plaintiff was disqualified from being appointed conservator pursuant to § 45a-650 (h), as amended by Public Acts 2007, No. 07-116, § 16 (h) (P.A. 07-116). At the same time the court disqualified the plaintiff, the Probate Court appointed the defendant as conservator of Zurolo and her estate.

On April 28, 2008, the plaintiff appealed to the Superior Court claiming, inter alia, that the Probate Court improperly denied her application to be her mother’s conservator. The plaintiff also challenged the Probate Court’s appointment of the defendant. On December 23, 2009, the Superior Court, Beilis, J., by way of a memorandum of decision, denied the plaintiffs appeal regarding her disqualification and the defendant’s appointment. That court concluded that the defendant had been appointed properly as conservator pursuant to § 45a-650 (h), and rejected the plaintiffs claim that the Probate Court had a statutory obligation to conduct a hearing regarding the defendant’s qualifications. The court also found that there was substantial evidence to support the Probate Court’s finding that the plaintiff had a conflict of interest and, consequently, the Probate Court properly denied her application to serve as her mother’s conservator. This appeal followed.

I

The plaintiff first claims that the appointment of the defendant, as a neutral third party conservator, was based on an incorrect construction of § 45a-650 (h). As noted, § 45a-650 (h) provides that, absent a designation of a proposed conservator by the conserved person, the court “may appoint any qualified person, authorized public official or corporation in accordance with subsections (a) and (b) of section 45a-644.” Section 45a-650 (h) further states that the court shall consider certain factors “[i]n considering who to appoint as conservator.” In this case, the Probate Court denied the plaintiffs application to be appointed conservator of the person and the estate of her mother, and, instead, without giving the parties notice of its intentions or an opportunity to be heard on the designation of the conservator, appointed the defendant. Although the court, in its memorandum of decision, stated that it had considered the factors enumerated in § 45a-650 (h), it is undisputed that there was no evidence presented as to those factors as they related to the defendant. The plaintiff contends that this deficiency renders the court’s appointment of the defendant improper. We agree.

Because the question of whether § 45a-650 (h) requires the court to hear evidence before the appointment of a neutral third party conservator presents a question of statutory interpretation, our review is plenary. See Saunders v. Firtel, 293 Conn. 515, 525, 978 A.2d 487 (2009). “The process of statutory interpretation involves the determination of the meaning of the statutory language as applied to the facts of the case . . . . When construing a statute, [o]ur fundamental objective is to ascertain and give effect to the apparent intent of the legislature. ... In other words, we seek to determine, in a reasoned manner, the meaning of the statutory language as applied to the facts of [the] case. ... In seeking to determine that meaning . . . [General Statutes] § l-2z directs us first to consider the text of the statute itself and its relationship to other statutes. If, after examining such text and considering such relationship, the meaning of such text is plain and unambiguous and does not yield absurd or unworkable results, extratextual evidence of the meaning of the statute shall not be considered. . . . When a statute is not plain and unambiguous, we also look for interpretive guidance to the legislative history and circumstances surrounding its enactment, to the legislative policy it was designed to implement, and to its relationship to existing legislation and common law principles governing the same general subject matter .... We recognize that terms in a statute axe to be assigned their ordinary meaning, unless context dictates otherwise . . . .” (Internal quotation marks omitted.) State v. Leak, 297 Conn. 524, 532-33, 998 A.2d 1182 (2010).

Faced with this task of statutory interpretation, the initial question we must answer is whether the language of § 45a-650 (h) clearly and unambiguously provides that the court may appoint a neutral third party conservator without taking evidence of the person’s suitability and qualifications. We believe the silence of the statute in this regard renders the statute ambiguous. It is appropriate, therefore, for us to search the legislative history, as well as to review the entire relevant statutory scheme, in our effort to determine the meaning the legislature intended to give the language of the statute at hand.

Public Act 07-116 made procedural changes to various Probate Court proceedings, including the appointment of conservators. Public Act 07-116 established the requirement that certain probate proceedings, including all applications for conservatorship, be heard on the record. See General Statutes § 45a-645a. Public Act 07-116, § 16, now codified as § 45a-650, pertains specifically to hearings on applications for involuntary representation. It dictates that the rules of evidence apply to all hearings and that all testimony be given under oath or affirmation. See General Statutes § 45a-650 (b). It also prescribes the factual findings that the Probate Court is required to make in considering an application for conservatorship and the evidentiary standards by which the court must make its determinations. For instance, § 45a-650 (a) mandates that the court require clear and convincing evidence that the court has jurisdiction, that the respondent has been given notice and that the respondent has been advised of the right to retain an attorney. See General Statutes § 45a-650 (a). Prior to appointing a conservator, P.A. 07-116 requires the court to find by clear and convincing evidence that the respondent is incapable of managing his or her affairs or is incapable of caring for himself or herself, or both; see General Statutes § 45a-650 (f) (1) and (2); and sets forth factors for the court’s consideration in making such a finding. See General Statutes § 45a-650 (g).

Although § 45a-650 (h) sets forth factors for consideration by the court in appointing a conservator, it does not prescribe the evidentiary standard by which the court must examine these factors. In fact, the statute does not specifically require that the court hear evidence pertaining to these factors. Despite the absence of explicit language regarding the evidentiary burden to be applied to these factors, or any requirement of an evidentiary hearing, the language of the statute does not plainly and unambiguously establish that the court need not take evidence in determining whom to appoint as conservator. To the contrary, a reasonable inference from the statute is that the court should base its determination on evidence adduced dming a hearing at which interested parties have the right to participate.

In reaching this conclusion, our analysis is aided by reference to the statutory scheme as a whole. In examining the language of § 45a-650, in addition to the other provisions enacted under P.A. 07-116, it is apparent that one of the primary goals of P.A. 07-116 was to have probate proceedings recorded in order to promote transparency and accountability in probate proceedings, as well as to facilitate the appeals process from those proceedings. This is supported by a review of the legislative history of P.A. 07-116. The legislative history reveals that several legislators recognized the need for accountability in the probate system, and expressed the fact that this bill addressed that need. For instance, Senator Mary Ann Handley commented that the bill provides “a good deal of accountability for the probate judge and the conservators who have been appointed.” 50 S. Proc., Pt. 10, 2007 Sess., p. 3234. Similarly, Representative Gerald M. Fox III remarked that one of the goals of the act was to “ensure that . . . due process safeguards are in place before a probate court interferes with an individual’s civil rights by forming a conservator.” 50 H.R. Proc., Pt. 16, 2007 Sess., pp. 5150-51. To that end, P.A. 07-116 requires that a record be made of the conservator proceedings. Id., p. 5151. Representative James F. Spallone echoed that sentiment in stating: “[W]hat we’re trying to do here is put in procedural protections to ensure that if a person’s liberty interest is at stake that they will be treated fairly, and that a proper record will be kept so that if an appeal is necessary, we’ll know what happened, and so that the press and public can monitor how the probate system is working with respect to conservatorships.” Id., p. 5155. In the same vein, attorney Deborah Tedford, who had previously testified before the General Assembly on behalf of the Connecticut Bar Association and regularly practices in the Probate Court, expressed the importance of having a record in probate proceedings to provide some accountability in the system and to change the culture in general. Conn. Joint Standing Committee Hearings, Judiciary, Pt. 17, 2007 Sess., pp. 5540-41.

The judiciary committee also heard testimony from several members of the public regarding their experience with conservators and how P.A. 07-116 would help to eliminate similar problems in the future. The testimony revealed that many of the problems with conservators stemmed from those who did not know the needs or preferences of the conserved persons. Notably, one constituent complained that the Probate Court went against her mother’s wishes to have her appointed as her conservator and, instead, appointed a nonfamily member, to her mother’s detriment. She complained that: “Probate judges have broad discretion for the selection of conservators. These are often patronage appointments which can also lead to conflicts of interest since many judges are part time and appoint those who practice before them and contribute to their elections.” Id., p. 5504. That same constituent praised P.A. 07-116 for providing “oversight and accountability of the Probate Courts by requiring recorded hearings and findings . . . .” Id., p. 5505. Royal Stark, a professor and the director of the health law clinic at Quinnipiac Law School, served on the committee charged with drafting the bill. He commented on the need to “transform the culture of the Probate Courts”; id., p. 5464; and to change “the culture of informality” in the probate system. Id., p. 5474. Representative Gañ K. Hamm also noted the importance of “accountability” in the probate system so that there is “some movement on the culture” and so that the legislators “have some sense that [they’re] not just changing the law, [but] that [they’re] changing the system.” Id., p. 5473.

From our review of these legislative proceedings, it is clear that the legislature contemplated and intended that P.A. 07-116 would result in substantial changes in the probate system, one of which being that, going forward, certain proceedings, including those involving conservatorships, would be on the record and, thus, more formal, providing accountability, transparency and due process safeguards for those involved. By requiring a proceeding on the record, it is more reasonable to believe that the legislature also contemplated that the consideration of the factors enumerated in § 45a-650 (h) would be based upon evidence in the record rather than the alternative; that a judge could select someone arbitrarily without any evidence regarding the factors the statute requires the court to consider and without giving interested parties an opportunity to present evidence relevant to the court’s selection of a conservator. Indeed, it is only through the presentation of evidence that the court may become properly informed as to the proposed conservator’s knowledge of the person’s preferences regarding care and management of his or her affairs or any existing or potential conflicts of interest. Additionally, requiring that there be evidence on the record regarding a potential conservator’s qualifications and suitability is consistent with the legislature’s aim to establish transparency in probate proceedings. Requiring evidence regarding the factors for consideration to be on the record also helps to ensure that a proposed conserved person and other interested parties are afforded due process and that the record is adequate for appellate review by the trial court and this court.

Finally, there is an absence in § 45a-650 (h) of an explicit reference to the requisite evidentiary standard for appointing a conservator, as opposed to other portions of the statute which do set forth an evidentiary standard. Those portions of the statute that set forth a higher burden of proof required for certain considerations cannot fairly be understood to suggest that one area of consideration requires evidence and, by silence regarding the level of proof required, another area of consideration requires no proof at all. Instead, a more sensible understanding of the contrasting sections is that the absence of any specification regarding the burden of proof required for the selection of a qualified conservator means only that the default burden of fair preponderance should be utilized instead of the clear and convincing standard, which must be made explicit if it is to be utilized. See Goldstar Medical Services, Inc. v. Dept. of Social Services, 288 Conn. 790, 819, 955 A.2d 15 (2008).

Here, although the Probate Court indicated that it considered the factors set forth in § 45a-650 (h) in appointing the defendant, necessarily implying that it found him to be qualified, the record is bereft of any evidence regarding the defendant or his qualifications to be conservator. Additionally, it is clear from the record that the interested parties in this matter did not have the opportunity to weigh in on his selection. Because the record contains no evidence regarding the defendant, any finding regarding the defendant’s qualifications finds no support in the record. The appointment of the defendant was therefore arbitrary and constituted an abuse of discretion.

II

The plaintiff also claims that the Probate Court improperly denied her application for conservator on the ground that there was substantial evidence that she had an existing or potential conflict. We disagree.

We begin by setting forth the applicable standard of review for appeals from a Probate Court. As noted, General Statutes § 45a-186b provides in relevant part: “[T]he Superior Court shall not substitute its judgment for that of the Court of Probate as to the weight of the evidence on questions of fact. The Superior Court shall affirm the decision of the Court of Probate unless the Superior Court finds that substantial rights of the person appealing have been prejudiced because the findings, inferences, conclusions or decisions are ... clearly erroneous in view of the reliable, probative and substantial evidence on the whole record, or . . . arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion. . . .” Given that § 45a-186b was also a component of the legislature’s probate reform in 2007, there is a lack of appellate jurisprudence regarding its application. See P.A. 07-116. The language of § 45a-186b, however, is virtually identical to the language used in General Statutes § 4-183 Q) of the Uniform Administrative Procedure Act. Given the similarity of this statutory language, our application of § 4-183 (j) is instructive.

As this court has previously noted, the scope of our review regarding an administrative appeal is restricted. A court must “determine whether there is substantial evidence in the administrative record to support the agency’s findings of basic fact and whether the conclusions drawn from those facts are reasonable. . . . Neither this court nor the trial court may retry the case or substitute its own judgment for that of the administrative agency on the weight of the evidence or questions of fact. . . . Our ultimate duty is to determine, in view of all of the evidence, whether the agency [or court], in issuing its order, acted unreasonably, arbitrarily, illegally or in abuse of its discretion.” (Internal quotation marks omitted.) Finley v. Commissioner of Motor Vehicles, 113 Conn. App. 417, 422-23, 966 A.2d 773 (2009). “The substantial evidence standard is satisfied if the record provides a substantial basis of fact from which the fact in issue can be reasonably inferred.” (Internal quotation marks omitted.) Prioleau v. Commission on Human Rights & Opportunities, 116 Conn. App. 776, 781, 977 A.2d 267 (2009). “As an appellate court, we do not review the evidence to determine whether a conclusion different from the one reached could have been reached. . . . The goal of our analysis is simply to decide whether the trial court’s conclusion was reasonable.” (Internal quotation marks omitted.) Zahringer v. Zahringer, 124 Conn. App. 672, 679, 6 A.3d 141 (2010). Using this standard as a backdrop, we will give deference to the Probate Court’s determination of the credibility of witnesses and its factual determinations. Cf. Kirei v. Hadley, 47 Conn. App. 451, 457, 705 A.2d 205 (1998) (credibility of witnesses within province of hearing officer).

Relying on § 45a-650 (h), the Probate Court rejected the plaintiffs application, finding that she possessed an existing or potential conflict of interest. See General Statutes § 45a-650 (h). Whether a conflict of interest existed is inherently a factual issue. See Timber Trails Associates v. Planning & Zoning Commission, 99 Conn. App. 768, 775, 916 A.2d 99 (2007). In support of its finding, the Probate Court cited to the plaintiffs testimony coupled with evidence that she received and wrote checks out to herself from Zurolo’s bank account in 2005. The Probate Court also referred to the contentious relationship between the plaintiff and Ramadon as further evidence that the appointment of the plaintiff as conservator would not comport with the statutory requirement of implementing the least restrictive means available.

The plaintiff asserts that the Probate Court’s conclusion regarding her conflict of interest cannot reasonably be drawn from the facts. Specifically, she argues that the Probate Court improperly inferred that the checks that she had written out to herself in 2005 illustrated a misappropriation of her power of attorney because, at the time, she had not invoked that power. Although it does appear that the Probate Court confused the plaintiffs authority in 2005, as a cosigner on Zurolo’s bank account, with her duties under a power of attorney in 2007, we conclude that this miscalculation was harmless error which does not negate the evidentiary basis for the Probate Court’s finding that the execution of those checks, combined with the plaintiffs testimony, created an inference of impropriety and illustrated an existing or potential conflict of interest. See Driscoll v. Norwich Savings Society, 139 Conn. 346, 350, 93 A.2d 925 (1952) (“[a]n obvious mistake will be disregarded . . . where the court makes it in stating one of its conclusions, where the subordinate facts found accorded with the allegations of the pleadings and supported the judgment” [internal quotation marks omitted]). All five checks were either made out to the plaintiff or were made out to cash, totaling $38,000. Although the plaintiff testified that the checks were gifts from her mother, she was unable to explain why these gifts did not appear in her mother’s tax returns for 2005, even though she was involved in assisting Zurolo’s attorney in compiling financial and tax information. Additionally, Patricia Morrissey, a registered nurse and one of Zurolo’s health care providers at her assisted living community, testified that the acrimonious relationship between the plaintiff and Ramadon had a detrimental effect on Zurolo’s overall well-being. During Nikols’ closing remarks, she argued that she was not comfortable with either of Zurolo’s daughters being appointed conservator, and that she was especially concerned given that “there is something or someone stopping people from communicating with [my client].” At the time, the plaintiffs duties as power of attorney had commenced and Ramadon had limited contact with Zurolo. On the basis of the foregoing, we conclude that the Probate Court’s determination that there was an existing or potential conflict of interest regarding the plaintiffs application to become conservator is supported by substantial evidence. Accordingly, the court’s denial of the plaintiffs application was not improper.

The judgment is reversed to the extent that it affirms the Probate Court’s decision appointing the defendant as conservator and the case is remanded to the Superior Court with direction to set aside the decision of the Probate Court in that regard and to remand the case to the Probate Court for a hearing on the appointment of a neutral conservator in accordance with this opinion. The judgment is affirmed in all other respects.

In this opinion GRUENDEL, J., concurred.

FOTI, J.,

dissenting in part. I respectfully disagree with the majority’s conclusion that the trial court improperly construed General Statutes § 45a-650 (h) when it affirmed the Probate Court’s appointment of the defendant attorney Robert Mirto as a neutral third party conservator without first receiving evidence regarding his qualifications. In contradistinction from the majority, I do not believe that the absence of language in § 45a-650 (h), requiring that a Probate Court receive evidence on the qualifications of a neutral third party conservator, renders the plain language of the statute ambiguous. Accordingly, I dissent from part I of the majority decision.1 agree with the facts set forth in the majority’s opinion and will not repeat them in this opinion.

In addition to the majority’s enunciation of our process of statutory interpretation, I note that “ [t]he legislature is always presumed to have created a harmonious and consistent body of law .... [T]his tenet of statutory construction . . . requires [this court] to read statutes together when they relate to the same subject matter. . . . Accordingly, [i]n determining the meaning of a statute ... we look not only at the provision at issue, but also to the broader statutory scheme to ensure the coherency of our construction. . . . [T]he General Assembly is always presumed to know all the existing statutes and the effect that its action or [nonaction] will have upon any one of them.” (Internal quotation marks omitted.) Wilton Meadows Ltd. Partnership v. Coratolo, 299 Conn. 819, 828, 14 A.3d 982 (2011). “A statute is ambiguous if, when read in context, it is susceptible to more than one reasonable interpretation.” Id., 825.

It is against this legal backdrop that I begin by underscoring the plain language of the statute with respect to a Probate Court’s authority to appoint a neutral third party conservator. Section 45a-650 (h) provides in relevant part: “[I]f the court does not appoint the person appointed, designated or nominated by the respondent or conserved person, the court may appoint any qualified person, authorized public official or corporation in accordance with subsections (a) and (b) of section 45a-644. In considering who to appoint as conservator, the court shall consider (1) the extent to which a proposed conservator has knowledge of the respondent’s or conserved person’s preferences regarding the care of his or her person or the management of his or her affairs, (2) the ability of the proposed conservator to carry out the duties, responsibilities and powers of a conservator, (3) the cost of the proposed conservator-ship to the estate of the respondent or conserved person, (4) the proposed conservator’s commitment to promoting the respondent’s or conserved person’s welfare and independence, and (5) any existing or potential conflicts of interest of the proposed conservator.” (Emphasis added.) I construe this language to be plain and unambiguous when read in context with the statute as a whole. It specifies clearly that if the Probate Court does not appoint the person nominated by petition to be conservator, then it may, at its discretion, appoint any qualified person. Prior to any appointment, § 45a-650 (h) mandates only that the Probate Court “shall consider” the enumerated factors set forth in the statute. In the present case, after disqualifying the plaintiffs petition to be conservator because of a conflict of interest, the Probate Court stated expressly, “[h]aving considered the factors set forth in § 45a-650 (h) . . . and the evidence obtained through this trial, this court appoints attorney Robert Mirto ... as the conservator of the person of [Rose Zurolo] and as conservator of the estate of [Zurolo].” Within the context of the statute, the court went no further than was expressly provided by the legislature. See Wilton Meadows Ltd. Partnership v. Coratolo, supra, 299 Conn. 826.

The majority contends, however, that the plain language of § 45a-650 (h) is rendered ambiguous because there is no guidance in this particular section with respect to whether the court must receive evidence pertaining to the suitability and qualifications in the appointment of a neutral third party conservator. I note, however, that statutory silence does not immediately or necessarily equate to ambiguity. See Dept. of Public Safety v. State Board of Labor Relations, 296 Conn. 594, 605-606, 996 A.2d 729 (2010) (statutory silence regarding additional requirements that managerial employees exercise independent judgment did not render statute ambiguous); Wilton Meadows Ltd. Partnership v. Coratolo, supra, 299 Conn. 829-30 (statutory silence with respect to spousal liability of nursing home expenses not ambiguous).

I do not agree that the trial court’s construction of § 45a-650 (h), in conjunction with General Statutes § 45a-186 (a), will yield absurd and unworkable results or is ambiguous as the majority posits. The plain language of § 45a-650 (h) instructs that a Probate Court must appoint the person nominated by the conserved person, unless the person declines or “there is substantial evidence to disqualify such person”; however, in order to appoint a conservator subsequent to such a disqualification, the court is obligated only to consider the enumerated factors in the statute. See General Statutes § 45a-650 (h). I presume that by using different language to distinguish between disqualifying and appointing a conservator, the legislature intended to continue to allow Probate Courts the discretion to appoint a conservator without a hearing when there is substantial evidence to disqualify a petitioner. See Dias v. Grady, 292 Conn. 350, 361, 972 A.2d 715 (2009) (“when the legislature uses different language [within a statute], the legislature intends a different meaning” [internal quotation marks omitted]). Consequently, I agree with the trial court’s conclusion that in circumstances in which the legislature has intended a specific evidentiary standard with respect to conservatorships, it has provided for such a standard expressly. See, e.g., General Statutes § 45a-650 (f) (1) (“clear and convincing evidence” standard required to render decision that respondent is incapable of managing own affairs in order to appoint conservator); General Statutes § 45a-650 (f) (2) (“clear and convincing evidence” standard required to render decision that respondent is incapable of caring for himself or herself); General Statutes § 45a-650 (a) and (b) (Probate Court must conduct hearing and apply normal rules of evidence for involuntary representation). Given the breadth of substantive reform ushered in by Public Acts 2007, No. 07-116 (P.A. 07-116), the absence of any additional requirements on a probate judge prior to appointing a neutral third party conservator is, in a word, conspicuous.

“Where a statute, with reference to one subject contains a given provision, the omission of such provision from a similar statute concerning a related subject . . . is significant to show that a different intention existed. . . . That tenet of statutory construction is well grounded because [t]he General Assembly is always presumed to know all the existing statutes and the effect that its action or non-action will have upon any one of them.” (Internal quotation marks omitted.) State v. Fernando A., 294 Conn. 1, 21, 981 A.2d 427 (2009). Certainly, if the legislature had intended to require a hearing or a specific evidentiary standard regarding the appointment of a neutral third party conservator it could have expressly done so, as it has clearly articulated in other subsections of § 45a-650. See, e.g., General Statutes § 45a-650 (a) and (b), and (f) (1) and (2). Cf. Wilton Meadows Ltd. Partnership v. Coratolo, supra, 299 Conn. 826 (if legislature had intended to extend spousal liability to include nursing home expenses, it could have done so expressly); Dept. of Public Safety v. State Board of Labor Relations, supra, 296 Conn. 605 (if legislature had intended to impose additional statutory requirements regarding duties of managerial employees it could have done so expressly).

A plain reading of the statute, however, reveals that the legislature has chosen specifically not to mandate such a requirement in circumstances such as these. Moreover, the language contained in the statute, prior to the reforms instituted by P.A. 07-116 regarding a Probate Court’s authority to appoint a conservator in similar situations, is virtually identical to the language of § 45a-650 (h). This only serves to buttress the point that the legislature’s omission to require an increased evidentiary standard was purposeful. It is firmly established that “[w]e are not permitted to supply statutory language that the legislature may have chosen to omit.” (Internal quotation marks omitted.) Dept. of Public Safety v. State Board of Labor Relations, supra, 296 Conn. 605. Nor are we permitted to go any further than the legislature has gone. See Wilton Meadows Ltd. Partnership v. Coratolo, supra, 299 Conn. 826. Despite these precedential prohibitions, I believe that the majority has substituted its understanding of what the statute should have expressed in place of what was a purposeful omission by the legislature by interpreting ambiguity where none exists. Although I am sensitive to what the majority is aspiring to accomplish, the result of that endeavor requires this court to legislate. This we cannot do. See Hayes v. Smith, 194 Conn. 52, 65, 480 A.2d 425 (1984). Accordingly, I would affirm the trial court’s judgment affirming the Probate Court’s appointment of Mirto as conservator of Zurolo’s person and estate.

I respectfully dissent.

       On April 8, 2008, the Probate Court, Carangelo, J., appointed Mirto to be the conservator of Zurolo and of her estate. Mirto participates in this appeal in his capacity as conservator. Vanessa Ramadon, Zurolo’s other daughter, is also a defendant but has not participated directly in this appeal. For convenience, we shall refer solely to Mirto as the defendant.

       The plaintiff also claims that she should not be personally responsible for attorney’s fees incurred in this action after the defendant’s appointment in April, 2008. Nowhere in the Probate Court’s decision or the memorandum of decision from the Superior Court are there any orders regarding whether the plaintiff should be able to collect from the estate the fees she incurred or may have incurred following the defendant’s appointment. Rather, it appears that the Superior Court actually agreed with the plaintiff regarding her claim that the Probate Court incorrectly determined that her incurrence of fees prior to the defendant’s appointment was improper. Accordingly, the plaintiffs claim is not properly before this court as it does not arise from any order reflected in the record.

       Nikols stated that the contentious relationship between the plaintiff and Ramadon was a significant factor regarding her decision to advocate for a neutral third party conservator.

       General Statutes § 45a-650 (h), as amended by Public Acts 2007, No. 07-116, § 16, provides in relevant part: “The respondent or conserved person may appoint, designate or nominate a conservator ... or may, orally or in writing, nominate a conservator who shall be appointed unless the court finds that . . . there is substantial evidence to disqualify such person. If there is no such appointment ... or if the court does not appoint the person appointed . . . the court may appoint any qualified person .... In considering who to appoint as conservator, the court shall consider (1) the extent to which a proposed conservator has knowledge of the respondent’s or conserved person’s preferences regarding the care of his or her person or the management of his or her affairs, (2) the ability of the proposed conservator to carry out the duties, responsibilities and powers of a conservator, (3) the cost of the proposed conservatorship to the estate of the respondent or conserved person, (4) the proposed conservator’s commitment to promoting the respondent’s or conserved person’s welfare and independence, and (5) any existing or potential conflicts of interest of the proposed conservator.”

       The Probate Court stated expressly: “Having considered the factors set forth in § 45a-650 (h) . . . and the evidence obtained through this trial, this court appoints attorney Robert Mirto ... as [the] conservator of the estate of [Zurolo].” The defendant’s appointment as conservator became effective upon the Probate Court’s receipt of a $10,000 surety bond. Although not stated explicitly, the Probate Court’s bond requirement is in accordance with § 45a-650 (i), requiring a bond for a court-appointed conservator.

       In addition to her appeal, the plaintiff also filed a motion for a temporary iryunction and a motion to stay the order of the Probate Court. On May 1, 2008, the court, Hon. John W. Moran, judge trial referee, granted the plaintiffs motion for a temporary injunction and subsequently granted the plaintiffs motion to stay, pending her appeal to the Superior Court.

       Pursuant to General Statutes § 45a-186 (a), as amended by P.A. 07-116, § 2, the court’s review of the plaintiffs appeal was conducted on the record. This standard of review reflected a change in the law regarding review of probate appeals taken under § 45a-650. Section 45a-186 (a) provides in relevant part: “Any person aggrieved by any order, denial or decree of a court of probate in any matter, unless otherwise specially provided by law, may . . . appeal therefrom to the Superior Court. . . . Appeals from any decision rendered in any case after a recording is made of the proceedings under section 17a-498,17a-685,45a-650,51-72 or 51-73 shall be on the record and shall not be a trial de novo.”

       The court reviewed the plaintiffs claims pursuant to General Statutes § 45a-186b, which provides in relevant part: “In an appeal taken under section 45a-186 from a matter heard on the record in the Court of Probate, the Superior Court shall not substitute its judgment for that of the Court of Probate as to the weight of the evidence on questions of fact. The Superior Court shall affirm the decision of the Court of Probate unless the Superior Court finds that substantial rights of the person appealing have been prejudiced because the findings, inferences, conclusions or decisions are . . . clearly erroneous in view of the reliable, probative and substantial evidence on the whole record, or . . . arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion. ...”

       General Statutes § 45a-645a provides: “Each court of probate shall cause a recording to be made of all proceedings held under sections 45a-644 to 45a-663, inclusive. The recording shall be part of the court record and shall be made and retained in a manner approved by the Probate Court Administrator.”

       That is not to say that such a hearing could not be waived if interested parties have notice of the court’s intention to appoint a person other than the applicant as conservator. Here, as noted, the court appointed the defendant as conservator through the vehicle of the same memorandum of decision in which it denied the plaintiffs application. Thus, neither the plaintiff nor any other interested parties had notice that the court might appoint someone else and, consequently, they had no opportunity to be heard regarding the naming of the conservator.

       Although we are not unmindful that probate judges often have detailed information about and experience with persons they appoint to serve as conservators, we agree with the plaintiffs observation that if we interpreted the statute to permit the court to appoint any person of its choosing without evidence regarding the person’s suitability and competence, interested parties would, as a practical matter, be without any recourse on appeal because of the absence of a record regarding the appointment. Such a construction, as noted, would be contradictory to the overarching purposes of the newly framed statutory scheme to be transparent and accountable. Nor do we believe that some measure of accountability may be achieved by the requirement that any appointment is subject to a periodic review. The promise of an after the fact review of the activities of a conservator is a measure too late and is no substitute for a meaningful process leading to the initial appointment as the criteria for each are not the same.

       In her appellate brief, the plaintiff also raises separate claims that the Probate Court impermissibly considered factors not enumerated in § 45a-650 (h), namely, her contentious relationship with her sister, in rendering its decision. The plaintiff also claims that there was substantial evidence on the record to appoint her as conservator. These claims are inextricably related to the plaintiff’s claim that there was not substantial evidence to disqualify her as conservator. Because our conclusion that there was substantial evidence contained in the record to find that the plaintiff had an existing or potential conflict of interest is dispositive, we need not reach these claims.

       The only substantive difference between § 45a-186b and § 4-183 (j) is that § 45a-186b refers to a “court of probate” rather than “agency” as stated in § 4-183 Q)-

       Prior to invoking her power of attorney, the plaintiff was a cosigner on Zurolo’s bank account. In its memorandum of decision, the Probate Court referred specifically to five checks made out to the plaintiff or to cash as being a factor in its decision that the plaintiff had an existing or potential conflict of interest. Specifically, the Probate Court stated that the plaintiff “acting as the power of attorney . . . acted improperly by writing checks out to herself . . . .” Only two out of the five checks were actually signed by the plaintiff.

       General Statutes § 45a-644 (lc) provides: “ ‘Least restrictive means of intervention’ means intervention for a conserved person that is sufficient to provide, within the resources available to the conserved person either from the conserved person’s own estate or from private or public assistance, for a conserved person’s personal needs or property management while affording the conserved person the greatest amount of independence and self-determination.” (Emphasis added.)

       Prior to invoking the springing power of attorney, the plaintiff was a cosigner on Zurolo’s bank account. In 2005, five checks totaling $38,000 were made out to the plaintiff or to cash. Each check was in the amount of $7600. Two of those checks were made out to the plaintiff and signed by the plaintiff under her authority as cosigner. With respect to the three other checks, two were made out to the plaintiff and one was made out to cash and all three were signed by Zurolo.

       I join the majority’s conclusion that there was sufficient evidence in the record to affirm the Probate Court’s determination that there was either an existing or potential conflict of interest regarding the application of the plaintiff, Jannine Falvey, to become conservator of her mother’s estate. I also agree with the conclusion that the plaintiffs claim pertaining to attorney’s fees is not properly before this court.

       I note that neither Zurolo’s court-appointed attorney nor Vanessa Rama-don, the plaintiffs sister, opposed the appointment of Mirto as a neutral third party conservator.

       When read in context, the plain language of the statute illustrates that the legislature sought purposefully to maintain the Probate Court’s ability to appoint a conservator in circumstances such as these given the adequate statutory protections in place after the conservator is appointed by the court. For example, “[t]he Probate Court is under an affirmative duty to protect the assets of a [conserved person’s] estate. . . . The court, and not the conservator, is primarily entrusted with the care and management of the [conserved person’s] estate, and, in many respects, the conservator is but the agent of the court." (Citation omitted; emphasis altered; internal quotation marks omitted.) Marcus’ Appeal from Probate, 199 Conn. 524, 529, 509 A.2d 1 (1986). Contrary to the majority’s assertion, I believe that there are ample statutory provisions for review of the Probate Court’s appointment of a conservator. General Statutes § 45a-705a specifically allows a conserved person to appeal the legality of guardianship pursuant to a writ of habeas corpus. See General Statutes § 45a-705a. Additionally, the Probate Court is required to “review each conservatorship not later than one year after the conservatorship was ordered, and not less than every three years after such initial one-year review.” General Statutes § 45a-660 (c). Subsequent to that review, a conserved person may request, and the Probate Court must grant, a hearing to modify the conservatorship under § 45a-660. See General Statutes § 45a-660 (d).

       Even if I were to accept the majority’s position, that the absence of an evidentiary requirement requires us to delve into the statutory history of the statute, the previous language of this provision, when juxtaposed with the extensive probate reforms instituted by Public Acts 2007, No. 07-116, illustrate that the legislature intended to maintain that omission purposefully to allow probate judges the discretion to appoint neutral third party conservators. This is because of a Probate Court’s unique position within its community to understand the needs of a conserved person in conjunction with its experience regarding the capabilities of neutral third party conservators to fulfill those needs. See footnote 5 of this dissent.

       General Statutes (Rev. to 2007) § 45a-650 (e) provides in relevant part: “[I]n the absence of any such nomination [of a proposed conservator by the conserved person], the court may appoint any qualified person, authorized public official or corporation in accordance with subsections (a) and (b) of section 45a-644.” (Emphasis added.) Although P.A. 07-116 subsequently supplemented the criteria that a probate judge shall consider prior to appointing a neutral third party conservator, the revisions made no mention of a requirement for the Probate Court to receive evidence in pertinence to those enumerated factors. Compare General Statutes (Rev. to 2007) § 45a-650 (e) with General Statutes § 45a-650 (h).


source: Caselaw Access Project

author: ROBINSON, J.

license: Public Domain

text:
    EDDIE C. TOSADO v. ADMINISTRATOR, UNEMPLOYMENT COMPENSATION ACT, ET AL.
    (AC 32400)
    Lavine, Robinson and Lavery, Js.

      Argued April 21
    officially released July 19, 2011

      Michael G. Durham, with whom, on the brief, was Matthew H. Geelan, for the appellant (defendant The Wellpoint Companies, Inc.).

      Eddie C. Tosado, pro se, the appellee (plaintiff).
   Opinion

ROBINSON, J.

The defendant, The Wellpoint Companies, Inc., appeals from the judgment of the Superior Court sustaining the appeal by the pro se plaintiff, Eddie C. Tosado, from the determination of the employment security board of review (board) denying the plaintiff unemployment compensation benefits. On appeal, the defendant claims that the court improperly determined that the board’s factual findings did not support the board’s conclusion that the plaintiff was discharged for wilful misconduct. We agree and, accordingly, reverse the judgment of the trial court.

The following facts and procedural history are relevant to our resolution of the defendant’s appeal. From October, 2004, until December 17, 2008, the plaintiff was employed by the defendant as a full-time manager of enrollment and billing. On November 22, 2008, a subordinate of the plaintiff, Kenya Comfort, brought her sixteen year old daughter to work, allowing her to staple invoices that contained protected health information. Subsequently, on November 25, 2008, an associate of the plaintiff, Dawn Giammetti, informed the plaintiff via e-mail that Comfort had permitted her daughter to staple all of her invoices with an electric stapler. In the e-mail, Giammetti asserted that “ ‘[e]thically, due to [the Health Insurance Portability and Accountability Act (HIPAA)] and safety issue[s] it bothered [her].’ ”

The defendant’s “Standards of Ethical Business Conduct” (policy) defined protected health care information to include members’ names, addresses, telephone numbers and medical claim information. The invoices at issue contained at least members’ names. Pursuant to the policy, the plaintiff was required to report all known or suspected violations of the policy. The plaintiff did not report that there was a known or suspected violation of the policy.

In response to Giammetti’s e-mail, the plaintiff told Giammetti to “ ‘keep quiet’ ” about the violation of the policy that she had suspected. He perceived Giammetti as a “ ‘trouble maker’ ” who had an agenda to harm her fellow employees. Subsequently, Giammetti reported the suspected violation of the policy and the plaintiffs failure to take action on the suspected violation of the policy to the defendant’s human resources department (department). On the basis of the information provided by Giammetti, the department commenced an investigation into the matter. The department advised the plaintiff to keep the ensuing investigation confidential, directing him not to discuss the investigation with anyone.

Despite being directed not to discuss the investigation with anyone, the plaintiff proceeded to discuss the matter with more than one individual. The plaintiff discussed the investigation with his director, Nicole Collins. Also, on December 10, 2008, Comfort e-mailed the plaintiff to notify him that Giammetti and another employee had filed the complaint to sabotage him. In response to that e-mail, the plaintiff called Giammetti to a meeting. During the meeting, the plaintiff asked Giammetti to speak to his director on his behalf, and she agreed to do so. Subsequently, the plaintiff e-mailed Collins, stating that Giammetti was willing to talk to her “ ‘about the entire situation.’ ”

The plaintiffs employment was terminated on December 17, 2008, for violating the defendant’s policy by failing to report a suspected violation of the policy and for failing to maintain confidentiality regarding the defendant’s investigation of the matter. Following his termination, the plaintiff filed a claim for unemployment compensation benefits. In response to the plaintiffs claim, the defendant submitted a statement alleging the following: “[The plaintiff] was discharged for violating company policy. . . . The [plaintiff] was reminded during the course of . . . [an] investigation to maintain confidentiality regarding the investigation. This confidentiality was breached. [The plaintiff] violated the policy by failing to report a potential breach of policy, and failing to take the expected actions of a manager within the organization.” On January 29, 2009, after a hearing, an adjudicator granted the application for benefits, finding that the plaintiff was discharged for reasons other than wilful misconduct in the course of his employment.

On February 12, 2009, the defendant appealed the adjudicator’s determination to an appeals referee (referee) on the issue of whether the plaintiff was discharged for reasons other than wilful misconduct. After a de novo hearing, the referee issued his decision in which he dismissed the defendant’s appeal and upheld the adjudicator’s award. In his decision, the referee made several findings of fact and determined that the defendant had “failed to undermine the [plaintiffs] testimony that he did not believe that the bills contained [protected health care information] material.” The referee, therefore, determined that the plaintiffs failure to report the suspected violation of policy was due to an error in judgment. Accordingly, the referee concluded that the plaintiff was discharged for reasons other than wilful misconduct in the course of his employment. On March 25, 2009, the defendant filed a timely appeal to the board.

After reviewing the record, including a tape recording of the referee’s hearing, but hearing no further evidence, the board reversed the referee’s decision and sustained the defendant’s appeal. In doing so, the board adopted most of the referee’s findings of fact but modified five of the findings. Importantly, the board adopted the referee’s finding that the plaintiff “was aware that [the policy] includfed] HIPAA requirements, which must be followed when dealing with [protected health information],” and that the plaintiff “was aware that pursuant to [the policy], he was required to report all known or suspected violations of [the policy] . . . (Internal quotation marks omitted.) The board concluded that the plaintiffs conduct constituted wilful misconduct on three separate bases: (1) the plaintiffs failure to report the suspected violation of the policy constituted deliberate misconduct in wilful disregard of the defendant’s interests; (2) the plaintiffs failure to keep the investigation confidential constituted deliberate misconduct in wilful disregard of the defendant’s interests; and (3) the plaintiffs “failure to report the suspected violations of the visitor’s policy and ethics policy constituted knowing violations of reasonable, effectively communicated and uniformly enforced employer policies which were reasonably applied to discharge [the plaintiff].” Accordingly, the board concluded that the plaintiff was discharged “for wilful misconduct under either the deliberate misconduct or rule violation definitions.” (Internal quotation marks omitted.)

The plaintiff appealed the board’s decision to the Superior Court on September 7, 2009. The court conducted a hearing on February 22,2010, at which it heard arguments from the plaintiff, the defendant and the administrator of the Unemployment Compensation Act. At the hearing, the plaintiff argued that the board erred in concluding that his conduct constituted wilful misconduct. The plaintiff argued that his failure to report the suspected violation did not constitute wilful misconduct because it was his professional opinion that the bills involved in the incident did not contain protected health care information. The plaintiff further argued that his discussion of the incident with Collins during the investigation did not constitute wilful misconduct because he believed that speaking with his director about the incident was the right course of action and, at most, constituted an error in judgment. Counsel for the administrator of the Unemployment Compensation Act countered that the board’s conclusions were supported by the board’s factual findings and that the plaintiff essentially was challenging those factual findings. Counsel further contended that, because the plaintiff faded to file a motion to correct pursuant to Practice Book § 22-4, the plaintiff was precluded from challenging the board’s factual findings.

In its memorandum of decision, the court acknowledged that the plaintiff had failed to file a motion to correct and, due to the limited scope of review, would consider only “whether the administrative action resulted from an incorrect application of the law to the facts found or could not reasonably or logically have followed from such facts.” (Internal quotation marks omitted.) The court first considered whether the factual findings supported the board’s conclusion that the plaintiffs failure to report the suspected violation of the policy constituted wilful misconduct. With regard to this conclusion, the court stated: “Here, the board found that the plaintiff did not report a suspected or known violation of [the policy] regarding protected health care information even though the invoices contained at least the members’ names. This finding of fact cannot reasonably support a conclusion that the plaintiffs failure to report the incident was ... an intentional violation of [the policy] because there is no reference to the plaintiffs state of mind at the time he decided not to report the incident.”

The court next considered whether the factual findings supported the board’s conclusion that the plaintiff s failure to maintain confidentiality during the investigation constituted wilful misconduct. The court determined that this conclusion could not reasonably be supported by the factual findings because the board failed to make a requisite finding, namely, that the plaintiffs discussion of the incident with others was not “motivated or seriously influenced by mitigating circumstances of a compelling nature” as required by § 31-236-26a (c) of the Regulations of Connecticut State Agencies.

Finally, the court considered whether the factual findings supported the board’s conclusion that the plaintiffs failure to report the suspected violation of the policy constituted a knowing violation of a reasonably, effectively communicated and uniformly enforced employer policy which was reasonably applied to discharge the plaintiff. The court determined that the record did not indicate that the board considered “whether the rule of the [defendant] was reasonably applied, in light of the plaintiffs employment history with [the defendant], or the existence of any compelling circumstance [as was required by § 31-236-26b (d) of the Regulations of Connecticut State Agencies]. The board makes the legal conclusion that [the defendant] reasonably applied its policies to discharge the plaintiff, but made no finding of fact to support its conclusion. Consequently, the plaintiffs failure to report the incident cannot reasonably be held to be a knowing violation of [the] policy which was reasonably applied to discharge the plaintiff.” For those reasons, the court sustained the plaintiffs appeal and reversed the decision of the board. This appeal followed.

On appeal, the defendant claims that the court improperly determined that the board’s factual findings did not support the board’s conclusion that the plaintiff was discharged for wilful misconduct. Specifically, the defendant claims that the court improperly determined that the factual findings did not support the board’s conclusion that the plaintiffs failure to report the suspected violation of the defendant’s policy constituted wilful misconduct. We agree.

We begin by setting forth our standard of review and the principles that guide our analysis. “To the extent that an administrative appeal, pursuant to General Statutes § 31-249b, concerns findings of fact, a court is limited to a review of the record certified and filed by the board of review. The court must not retry the facts nor hear evidence. ... If, however, the issue is one of law, the court has the broader responsibility of determining whether the administrative action resulted from an incorrect application of the law to the facts found or could not reasonably or logically have followed from such facts. Although the court may not substitute its own conclusions for those of the administrative board, it retains the ultimate obligation to determine whether the administrative action was unreasonable, arbitrary, illegal or an abuse of discretion.” (Citations omitted.) United Parcel Service, Inc. v. Administrator, Unemployment Compensation Act, 209 Conn. 381, 385-86, 551 A.2d 724 (1988).

A plaintiff s “failure to file a timely motion [to correct] the board’s findings in accordance with [Practice Book] § 22-4 prevents further review of those facts found by the board.” (Internal quotation marks omitted.) Shah v. Administrator, Unemployment Compensation Act, 114 Conn. App. 170, 176, 968 A.2d 971 (2009). In the absence of a motion to correct the findings of the board, the court is not entitled to “retry the facts or hear evidence. It considers no evidence other than that certified to it by the board, and then for the limited purpose of determining whether . . . there was any evidence to support in law the conclusions reached. [The court] cannot review the conclusions of the board when these depend upon the weight of the evidence and the credibility of witnesses. ...” Practice Book § 22-9 (a). It is undisputed that the plaintiff did not file a motion to correct the board’s findings in the present case.

General Statutes § 31-236 (a) (2) (B) provides in relevant part that an individual is not eligible for unemployment compensation benefits if “in the opinion of the administrator, the individual has been discharged . . . [for] wilful misconduct in the course of the individual’s employment . . . .” “[W]ilful misconduct means deliberate misconduct in wilful disregard of the employer’s interest, or a single knowing violation of a reasonable and uniformly enforced rule or policy of the employer, when reasonably applied, provided such violation is not a result of the employee’s incompetence . . . .” (Internal quotation marks omitted.) General Statutes § 31-236 (a) (16); see also Regs., Conn. State Agencies § 31-236-26. “Whether the circumstances of an employee’s termination constitute wilful misconduct on the employee’s part is a mixed question of law and fact.” United Parcel Service, Inc. v. Administrator, Unemployment Compensation Act, supra, 209 Conn. 386.

To establish that an individual was discharged for deliberate misconduct in wilful disregard of the employer’s interest, the board must find that the individual’s act or omission constituted misconduct and that such misconduct was done deliberately and in wilful disregard of the employer’s interests. Regs., Conn. State Agencies § 31-236-26a. “To find that any act or omission is misconduct, the [board] must find that the individual committed an act or made an omission which was contrary to the employer’s interest, including any act or omission which is not consistent with the standards of behavior which an employer, in the operation of his business, should reasonably be able to expect from an employee.” Regs., Conn. State Agencies § 31-236-26a (a). “To determine that misconduct is deliberate, the [board] must find that the individual committed the act or made the omission intentionally or with reckless indifference for the probable consequences of such act or omission.” Regs., Conn. State Agencies § 31-236-26a (b).

Finally, “[t]o find that deliberate misconduct is in wilful disregard of the employer’s interest, the [board] must find that: (1) the individual knew or should have known that such act or omission was contrary to the employer’s expectation or interest; and (2) at the time the individual committed the act or made the omission, he understood that the act or omission was contrary to the employer’s expectation or interest and he was not motivated or seriously influenced by mitigating circumstances of a compelling nature. Such circumstances may include: (A) events or conditions which left the individual with no reasonable alternative course of action; or (B) an emergency situation in which a reasonable individual in the same circumstances would commit the same act or make the same omission, despite knowing it was contrary to the employer’s expectation or interest.” Regs., Conn. State Agencies § 31-236-26a (c).

After a thorough review of the certified record, we conclude that the board’s factual findings support the conclusion that the plaintiffs failure to report the suspected violation of the defendant’s policy constituted wilful misconduct. Specifically, the board found that the plaintiff was aware that Comfort’s daughter had seen the defendant’s invoices, that the invoices contained at least the members’ names, and that the employer’s policy defined protected health care information to include members’ names. The board adopted the referee’s findings that the plaintiff “was aware that [the policy] includ[ed] HIPAA requirements, which must be followed when dealing with [protected health care information],” and that the plaintiff “was aware that pursuant to [the policy], he was required to report all known or suspected violations of [the policy] . . . .” (Emphasis added; internal quotation marks omitted.) The board also found that the plaintiff received notification from Giammetti that a suspected violation of the policy had occurred, yet he failed to report the suspected violation. In fact, the board found that rather than reporting the suspected violation, the plaintiff told Giammetti to “keep quiet about the violation that she suspected.” In making these findings, the board did not find credible the plaintiffs assertion that he did not think that he violated the policy because the information on the invoices did not appear to contain protected health care information. Accordingly, we conclude that the court improperly determined that the factual findings did not support the board’s conclusion that the plaintiffs failure to report the suspected violation of the defendant’s policy constituted wilful misconduct.

The judgment is reversed and the case is remanded with direction to render judgment for the defendant.

In this opinion the other judges concurred.

       We note that the defendant administrator of the Unemployment Compensation Act filed a separate appeal from the judgment of the trial court. See Tosado v. Administrator, Unemployment Compensation Act, 130 Conn. App. 278, 22 A.3d 701 (2011). We refer to The Wellpoint Companies, Inc., as the defendant in this opinion.

       Practice Book § 22-4 provides: “If the appellant desires to have the finding of the board corrected he or she must, within two weeks after the record has been filed in the superior court, unless the time is extended for cause by the board, file with the board a motion for the correction of the finding and with it such portions of the evidence as he or she deems relevant and material to the corrections asked for, certified by the stenographer who took it; but if the appellant claims that substantially all the evidence is relevant and material to the corrections sought, he or she may file all of it, so certified, indicating in the motion so far as possible the portion applicable to each correction sought. The board shall forthwith upon the filing of the motion and of the transcript of the evidence, give notice to the adverse party or parties.”

       The defendant also claims that the court improperly determined that the board’s factual findings did not support the board’s conclusions that the plaintiff’s failure to maintain confidentiality during the investigation constituted wilful misconduct and that the plaintiffs failure to report the suspected violation of policy constituted a knowing violation of a reasonably, effectively communicated and uniformly enforced employer policy, which was reasonably applied to discharge the claimant. Because we agree with the defendant that the court improperly determined that the factual findings did not support the board’s conclusion that the plaintiffs failure to report the suspected violation of the policy constituted wilful misconduct, we need not address the defendant’s remaining claims.

       General Statutes § 31-249b provides in relevant part: “At any time before the board’s decision has become final, any party, including the administrator, may appeal such decision, including any claim that the decision violates statutory or constitutional provisions, to the superior court for the judicial district of Hartford or for the judicial district wherein the appellant resides. ...”

       At oral argument before this court, the plaintiff acknowledged that he had failed to file a motion to correct and that he was bound by the board’s findings of fact. “Although we are mindful of our policy to be solicitous of pro se litigants . . . such policy is applicable only when it does not interfere with the rights of other parties. Although our courts allow pro se litigants some latitude, the right of self-representation provides no attendant license not to comply with relevant rules of procedural and substantive law. . . . Significantly, this court repeatedly has held that a pro se litigant’s failure to file a motion for correction precludes further review of the board’s findings by the Superior Court.” (Citations omitted; internal quotation marks omitted.) Shah v. Administrator, Unemployment Compensation Act, supra, 114 Conn. App. 177. Accordingly, we are obligated to accept the board’s findings of fact.


text:
    EDDIE C. TOSADO v. ADMINISTRATOR, UNEMPLOYMENT COMPENSATION ACT, ET AL.
    (AC 32401)
    Lavine, Robinson and Lavery, Js.
    Argued April 21
    officially released July 19, 2011

      Krista Dolson O’Brien, assistant attorney general, with whom, on the brief, were Richard Blumenthal, former attorney general, and Philip M. Schulz, assistant attorney general, for the appellant (named defendant).

      Eddie C. Tosado, pro se, the appellee (plaintiff).
   Opinion

ROBINSON, J.

The named defendant, the administrator of the Unemployment Compensation Act, appeals from the judgment of the Superior Court sustaining the appeal by the plaintiff, Eddie C. Tosado, from the determination of the employment security board of review (board) denying the plaintiff unemployment compensation benefits. On appeal, the defendant claims that the court improperly determined that the board’s factual findings did not support the board’s conclusion that the pla.iutiff was discharged for wilful misconduct. We agree and, accordingly, reverse the judgment of the trial court.

In the related case of Tosado v. Administrator, Unemployment Compensation Act, 130 Conn. App. 266 22 A.3d 675 (2011), we addressed the claim of error raised by the present appeal. We adopt the reasoning and conclusion of that opinion to resolve the present appeal.

The judgment is reversed and the case is remanded with direction to render judgment for the defendant.

In this opinion the other judges concurred.

       We note that the defendant, The Wellpoint Companies, Inc., filed a separate appeal from the judgment of the trial court. See Tosado v. Administartor, Unemployment Compensation Act, 130 Conn. App. 266, 22 A.3d 675 (2011). We refer to the administrator of the Unemployment Compensation Act as the defendant in this opinion.


author: GRUENDEL, J.

text:
    JULIO FLAMENCO v. INDEPENDENT REFUSE SERVICE, INC., ET AL.
    (AC 32881)
    Gruendel, Espinosa and Lavery, Js
    Argued May 19
    officially released July 19, 2011

      Alan Scott Pickel, for the appellant (plaintiff).
   Opinion

GRUENDEL, J.

The plaintiff, Julio Flamenco, appeals from the decision of the workers’ compensation review board (board), which dismissed his petition for review of the decision of the workers’ compensation commissioner for the seventh district (commissioner) imposing a sanction of $100 following his counsel's late appearance at an informal hearing. The plaintiff contends that the commissioner improperly imposed the sanction in violation of his right to fundamental fairness in administrative proceedings. We reverse the decision of the board.

The undisputed facts, gleaned from the record before us, are as follows. The plaintiff sustained an injury on December 17, 2007, and thereafter instituted a claim for workers’ compensation benefits against the defendant Independent Refuse Service, Inc. An informal hearing before the commissioner was scheduled for 9 o’clock in the morning of September 28, 2010. The plaintiffs counsel, attorney Alan Scott Pickel, arrived for that hearing at 9:55 a.m. Without conducting an evidentiary hearing or affording Pickel an opportunity to be heard, the commissioner on that date imposed a sanction, pursuant to General Statutes §§ 31-288 and 31-300, of $100 “for [his] late appearance at a duly noticed hearing resulting in undue delay.”

From that decision, the plaintiff appealed to the board, which dismissed the plaintiffs petition for review. In its order, the board stated: “No record exists. Absent a record, this board cannot properly consider an appeal under [General Statutes §] 31-301.” The board thus dismissed the appeal and remanded the matter to the commissioner “for a formal hearing or other appropriate proceedings.” This appeal followed.

At the outset, we note the standard under which we review the plaintiffs claim. “The board sits as an appellate tribunal reviewing the decision of the commissioner .... [T]he power and duty of determining the facts rests on the commissioner. . . . The conclusions drawn by [the commissioner] from the facts found must stand unless they result from an incorrect application of the law to the subordinate facts or from an inference illegally or unreasonably drawn from them. . . . Once the commissioner makes a factual finding, [we are] bound by that finding if there is evidence in the record to support it.” (Citations omitted; internal quotation marks omitted.) Williams v. State, 124 Conn. App. 759, 763-64, 7 A.3d 385 (2010).

On appeal, the plaintiff claims that the commissioner imposed the sanction in violation of his right to fundamental fairness. As this court has observed, “[a]dministrative hearings, including those held before workers’ compensation commissioners, are informal and governed without necessarily adhering to the rules of evidence or procedure. . . . Nonetheless, administrative hearings must be conducted in a fundamentally fair manner so as not to violate the rules of due process. ... A fundamental principle of due process is that each party has the right to receive notice of a hearing, and the opportunity to be heard at a meaningful time and in a meaningful manner.” (Citations omitted.) Bryan v. Sheraton-Hartford Hotel, 62 Conn. App. 733, 740, 774 A.2d 1009 (2001); see also Huck v. Inland Wetlands & Watercourses Agency, 203 Conn. 525, 536, 525 A.2d 940 (1987) (administrative due process requires due notice and right to produce relevant evidence). That precept applies with equal force in attorney discipline proceedings. See, e.g., CFM of Connecticut, Inc. v. Chowdhury, 239 Conn. 375, 393, 685 A.2d 1108 (1996) (“As a procedural matter, before imposing . . . sanctions, the court must afford ... a proper hearing on the . . . [proposed] sanctions. . . . There must be fair notice and an opportunity for a hearing on the record.” [Citation omitted; internal quotation marks omitted.), overruled in part on other grounds by State v. Salmon, 250 Conn. 147, 154-55, 735 A.2d 333 (1999); Statewide Grievance Committee v. Botwick, 226 Conn. 299, 308, 627 A.2d 901 (1993) (attorney entitled to notice of charges, fair hearing and appeal to court for determination of whether he was deprived of due process before discipline may be imposed); In the Matter of Presnick, 19 Conn. App. 340, 351, 563 A.2d 299 (holding that “due process must be afforded” before court may sanction attorney), cert. denied, 213 Conn. 801, 567 A.2d 833 (1989).

Section 31-288 (b) (2) provides: “Whenever either party to a claim under this chapter has unreasonably, and without good cause, delayed the completion of the hearings on such claim, the delaying party or parties may be assessed a civil penalty of not more than five hundred dollars by the commissioner hearing the claim for each such case of delay. Any appeal of a penalty assessed pursuant to this subsection shall be taken in accordance with the provisions of section 31-301.” In the present case, the commissioner pursuant to that statute issued a sanction by letter to the plaintiffs counsel. In her September 28, 2010 letter, the commissioner stated: “The above file was scheduled for an informal hearing at 9:00 a.m. on September 28,2010, and notice of same was sent to your company. Your office appeared at 9:55 a.m. Pursuant to [§§] 31-288 [and] 31-300 of the Workers’ Compensation Act, the following sanction is imposed against your company for failure to appear on time at the September 28, 2010 hearing: one hundred dollars for your late appearance at a duly noticed hearing resulting in undue delay.” The commissioner’s letter was received by the board on October 12, 2010. On January 10, 2011, the board certified it as part of the record for this appeal.

The necessary predicate to imposition of a sanction under the plain language of § 31-288 (b) (2) is a finding that the offending party “unreasonably, and without good cause, delayed the completion of the hearings . . . .” General Statutes § 31-288 (b) (2). The record before us contains no finding by the commissioner that the tardiness of the plaintiffs counsel was unreasonable and without good cause. Even if we were to presume such an implicit finding on the part of the commissioner, the record is bereft of any evidence to support that finding. The commissioner did not conduct a hearing on the matter, nor did she provide the plaintiff with a meaningful opportunity to be heard thereon. Imposing the sanction in such an instance violated the plaintiffs right to fundamental fairness. See Bryan v. Sheraton-Hartford Hotel, supra, 62 Conn. App. 740.

Section 31-288 (b) (2) explicitly provides that “any appeal” by a party sanctioned thereunder “shall be taken” to the board. The plaintiff complied with that statutory mandate by appealing the sanction imposed by the commissioner to the board via his October 1, 2010 petition for review. In dismissing that appeal, the order of the board stated that because “[n]o record exists” the board “cannot properly consider an appeal . . . .” We disagree. It is well established that the board, in sitting as an appellate tribunal reviewing the decision of the commissioner, must examine the record before it to determine whether it contains evidence to support the facts found by the commissioner. See Williams v. State, supra, 124 Conn. App. 763-64. As the certified record for this appeal submitted by the board exemplifies, a record does indeed exist. The board had before it copies of the commissioner’s September 28, 2010 letter imposing the sanction, the plaintiffs October 1, 2010 petition for review and the plaintiffs October 1, 2010 letter titled “Reasons for Appeal,” in which the plaintiff alleged, inter alia, that “§ 31-288 provides that a penalty may be assessed only where a party has ‘unreasonably, and without good cause’ delayed completion of hearings on a claim. The commissioner took no evidence and thus could not have made any such finding.”

The board correctly observed that it was presented with no record to substantiate a determination that the tardiness of the plaintiffs counsel was either unreasonable or without good cause, resulting in undue delay to the completion of the hearings at issue. In the face of such evidential paucity, the commissioner’s finding cannot stand. Accordingly, we conclude that the board improperly dismissed the plaintiffs appeal.

The decision of the workers’ compensation review board is reversed and the case is remanded to the board with direction to order the workers’ compensation commissioner to vacate the $100 sanction.

In this opinion the other judges concurred.

       By motion dated February 9, 2011, the defendant employer notified this court that it had no interest in the present appeal. We then ordered that the appeal would be considered on the basis of the record and the plaintiffs brief alone. The third party administrator of the defendant’s workers’ compensation plan, The Hartford, was also a defendant in the proceedings before the commissioner and the board, but has not participated in this appeal.

       We note that the board’s order dismissing the plaintiffs petition for review is appealable pursuant to General Statutes § 31-30 lb, which provides: “Any party aggrieved by the decision of the Compensation Review Board upon any question or questions of law arising in the proceedings may appeal the decision of the Compensation Review Board to the Appellate Court, whether or not the decision is a final decision within the meaning of section 4-183 or a final judgment within the meaning of section 52-263.”

       Although the plaintiff alleges a due process violation, his claim more properly is described as a violation of the right to fundamental fairness. See Grimes v. Conservation Commission, 243 Conn. 266, 273 n.11, 703 A.2d 101 (1997); Megin v. Zoning Board of Appeals, 106 Conn. App. 602, 607 n.6, 942 A.2d 511, cert. denied, 289 Conn. 901, 957 A.2d 871 (2008).

       We note that § 31-288 (b) (2) authorizes the commissioner to levy a civil penalty against “the delaying party or parties . . . .” The plaintiff in this appeal raises no claim regarding the propriety of a sanction against a party’s counsel, rather than the party itself, pursuant to that statute.


author: PER CURIAM.

text:
    PAUL ANTOGIOVANNI v. AMERICA’S HOMES AND COMMUNITIES REAL ESTATE, LLC, ET AL.
    (AC 32464)
    Bishop, Beach and Espinosa, Js.
    Argued March 23
    officially released July 19, 2011

      Edward L. Parker, pro se, the appellant (defendant).

      Michael F. Dowley, for the appellee (plaintiff).
   Opinion

PER CURIAM.

In this action related to the sale of certain real property, the defendant Edward L. Parker appeals from the judgment of the trial court awarding the plaintiff, Paul Antogiovanni, attorney’s fees and interest on such fees. The defendant claims that the court improperly relied on the written statement of attorney’s fees submitted by the plaintiffs attorney. We reject his claim and affirm the judgment of the trial court.

The gravamen of the plaintiffs complaint was that the defendant, in representing the plaintiff as his real estate agent, had breached his fiduciary duties in connection with the plaintiffs attempt to purchase certain real property. Ultimately, the property was purchased by Kate Porch, who, at the time of the sale, was the defendant’s fiancee and had a business relationship with him. By the conclusion of the court trial, the plaintiff was relying on the counts of his complaint alleging fraud, interference with business opportunity, breach of fiduciary duty, breach of contract, breach of the duty of good faith and fair dealing and a violation of the Connecticut Unfair Trade Practices Act (CUTPA), General Statutes § 42-110a et seq. In its memorandum of decision, the court set forth its findings of fact and concluded that, as to the defendant, the plaintiff had proven each of these causes of action. Turning to the issue of damages, however, the court concluded that the plaintiff had failed to sustain his burden of proving his damages to any reasonable degree of certainty. The court awarded the plaintiff nominal and punitive damages. Having concluded that the plaintiff had prevailed under his CUTPA claim, the court awarded the plaintiff $24,571.15 in attorney’s fees and interest on the award of attorney’s fees in the amount of $3576.47.

In its memorandum of decision, the court specified that it had relied on an affidavit and a billing statement submitted by the plaintiffs attorney, Michael F. Dowley. The defendant claims that the court improperly relied on these materials because they were submitted only by way of the plaintiffs posttrial brief and the billing statement contained charges that should not have been included in the court’s award of attorney’s fees. The defendant states that this procedure deprived him of his right to challenge Dowley’s fees.

Our review of the record reveals that, during the presentation of evidence on the final day of the trial, Dowley referred to the CUTPA count and informed the court that he had a prepared statement of his attorney’s fees. Dowley indicated, however, that he still needed to redact a portion of that statement before offering it to the court. With regard to offering his statement of fees, Dowley stated: “I could do it a couple of different ways .... If the court feels that CUTPA [attorney’s fees] would be due, I could file an affidavit with my stuff later on or before I rest with the witness. I wanted to get my bill in. I can do it a couple of different ways. I don’t know what the court would prefer.” The court replied: “I would just . . . expunge that part and put it in. And then you’re going to give me a brief on the CUTPA [claim]?” Dowley agreed, and the defendant did not object. Thereafter, on February 22, 2010, Dowley filed an affidavit and a detailed statement of attorney’s fees with his posttrial brief. In his lengthy posttrial brief, filed on March 9, 2010, the defendant did not challenge the statement of attorney’s fees or the method by which Dowley submitted such statement to the court.

Our resolution of the attorney’s fee issue is guided by the analysis in Smith v. Snyder, 267 Conn. 456, 480-81, 839 A.2d 589 (2004). In Smith, the defendants claimed that the trial court improperly awarded the plaintiffs $20,000 in attorney’s fees. Id., 480. At trial, the plaintiffs in Smith had not presented evidence of attorney’s fees but, in their post-damages hearing brief, merely had requested $25,000 in attorney’s fees. Id. In resolving the claim on appeal, the Supreme Court announced a general rule that “when a court is presented with a claim for attorney’s fees, the proponent must present to the court at the time of trial or, in the case of a default judgment, at the hearing in damages, a statement of the fees requested and a description of services rendered. Such a rule leaves no doubt about the burden on the party claiming attorney’s fees and affords the opposing party an opportunity to challenge the amount requested at the appropriate time.” Id., 479.

Under the circumstances present in Smith, however, the court affirmed the court’s award of attorney’s fees. Id., 480. The court’s conclusion was based on the fact that “the defendants did not oppose or otherwise take any action in response to the plaintiffs’ request for $25,000 in fees in their post-damages hearing brief.” Id. The court reasoned that “once the plaintiffs . . . did make such a request, the defendants should have objected or at least responded to that request. Had the defendants demonstrated any interest in objecting to the plaintiffs’ request for attorney’s fees, the trial court would have been obligated to grant the defendants an opportunity to be heard. ... [A] reversal of the award ... is not justified in light of the defendants’ failure, prior to this appeal, to interpose any objection whatsoever to the plaintiffs’ request for attorney’s fees. In other words, the defendants, in failing to object to the plaintiffs’ request for attorney’s fees, effectively acquiesced in that request, and, consequently, they now will not be heard to complain about that request.” (Citation omitted; emphasis in original.) Id., 481.

In the present case, Dowley made clear during the presentation of evidence that the plaintiff intended to request attorney’s fees and that he was going to submit a statement of his fees to the court for consideration. Thereafter, the plaintiff submitted a detailed statement of such fees along with an affidavit from Dowley regarding the same. Although he filed his posttrial brief after the plaintiffs filing, the defendant did not object to the submission of the statement of fees or its content. The first objection to the request for fees was made in this appeal. Under these circumstances, in which the defendant acquiesced in the submission of the statement of attorney’s fees, we decline to grant relief with regard to this claim.

The judgment is affirmed.

       The plaintiff named Parker, Kate Porch, America’s Homes & Communities Real Estate, LLC (America’s Homes), and U.S. Bank National Association as defendants in this action. Prior to trial, the court rendered a judgment of default for failure to appear against America’s Homes, and the plaintiff withdrew his causes of action against U.S. Bank National Association. Thus, the plaintiff proceeded to trial against Parker and Porch. The court found in favor of Porch as to all claims raised against her. The court rendered judgment against Parker and America’s Homes. Parker, who was a self-represented party before the trial court and is self-represented in bringing this appeal, is the only defendant who is a party to this appeal. We therefore refer to Parker as the defendant in this opinion.

       In his brief, the defendant raises several additional claims unrelated to the issue of attorney’s fees. Having carefully reviewed the claims, we conclude that they are without merit and decline to discuss them in this opinion. See, e.g., Statewide Grievance Committee v. Ankerman, 74 Conn. App. 464, 465 n.1, 812 A.2d 169, cert. denied, 263 Conn. 911, 821 A.2d 767 (2003).

       Likewise, the record does not reflect that Porch, who filed a posttrial brief on March 8,2010, objected to the plaintiffs request for attorney’s fees.

       Another aspect of the defendant’s claim concerning attorney’s fees warrants a brief discussion. In a claim of judicial bias raised for the first time on appeal, the defendant asserts that the court improperly “[had] a conference with [Dowley] instructing him as to how he should prepare his charges of CUTPA against the defendants but never instructed the defendants to the procedural fact that the defendants [had] the right to challenge [Dowley’s] charges.” Generally, apart from plain error review of the issue, this court does not consider claims of judicial bias raised for the first time on appeal. See, e.g., Mercer v. Cosley, 110 Conn. App. 283, 290-91, 955 A.2d 550 (2008). The defendant has not sought any extraordinary level of review of this claim, such as plain error review. Furthermore, apart from referring us to the court’s response to the inquiry of Dowley concerning the submission of his statement of attorney’s fees, set forth in the body of this opinion, the defendant has not referred us to any evidence that the court had “instructed” Dowley with regard to his preparation of the CUTPA claim. Finally, the defendant has not presented this court with any authority for the proposition that the court had a duty to advise him concerning his right to challenge the statement of attorney’s fees submitted by the plaintiff. To the contrary, our case law is clear that the role of the trial judge is to maintain a fair trial, but not to dispense legal advice, even to self-represented parties. See, e.g., Natarajan v. Natarajan, 107 Conn. App. 381, 391 n.5, 945 A.2d 540, cert. denied, 287 Conn. 924, 951 A.2d 572 (2008).