author: SCHALLER, J.

text:
    NADIM HANNA v. CAPITOL REGION MENTAL HEALTH CENTER ET AL.
    (AC 21828)
    Schaller, Bishop and West, Js.
    Argued September 13
    officially released December 24, 2002

      Thomas J. Ring, assistant attorney general, with whom, on the brief, were Richard Blumenthal, attorney general, and Richard J. Lynch, assistant attorney general, for the appellant (named defendant).

      David W. Bush, for the appellee (plaintiff).
   Opinion

SCHALLER, J.

The defendant Capitol Region Mental Health Center (health center) appeals from the judgment of the trial court denying its motion to dismiss the complaint. On appeal, the sole issue is whether the court properly denied the health center’s motion to dismiss under the doctrine of sovereign immunity. We conclude that the health center is entitled to sovereign immunity and, accordingly, reverse the judgment of the trial court.

The following facts are set forth in the plaintiff’s complaint. The health center is a state owned and operated mental health and addiction services treatment facility located in Hartford. It provides mental health support services, including, but not limited to, the assessment of patients’ ability to live independently in the community and the monitoring of patients’ compliance with medication orders and treatment plans. On or about June 18, 1998, Lemont Cross, a health center patient, violently attacked and seriously injured the plaintiff, Nadim Hanna. Cross had been referred to the health center because of noncompliance with medication orders and treatment plans.

In the first count of the complaint, the plaintiff alleges that Cross’ attack on the plaintiff was proximately caused by the negligent acts of the health center’s employees. Specifically, the plaintiff alleges that the health center’s employees failed to properly monitor, supervise and treat Cross, failed to have him admitted to an appropriate treatment facility, and failed to warn others of his violent tendencies. In the second count, the plaintiff alleges the same omissions by the health center’s employees, but characterizes them as reckless rather than negligent. The third and fourth counts of the complaint are directed toward the Center for Human Development, Inc., and the fifth and sixth counts are directed toward Moon Hee Yoo, a psychiatrist who treated Cross.

The health center and Yoo filed separate motions to dismiss the respective counts directed against them. The court denied Yoo’s motion on March 29, 2001. The health center, apparently believing that its motion had been denied, commenced this appeal on April 23, 2001. In response to the health center’s subsequent motion for articulation, the court filed a memorandum of decision on May 31,2001, denying the health center’s motion to dismiss and articulating the reasoning for the denial of both the health center’s and Yoo’s motions. The health center filed the present amended appeal on June 19, 2001.

On appeal, the health center claims that the court improperly denied its motion to dismiss the complaint. Specifically, the health center argues (1) that the court improperly based its decision on the motion to dismiss on General Statutes § 4-165 and (2) that the health center is immune from suit under the common-law doctrine of sovereign immunity.

The following additional facts are necessary for our resolution of the health center’s claim. The health center’s motion to dismiss the first and second counts was based on the doctrine of sovereign immunity while Yoo’s motion to dismiss the fifth and sixth counts was based on statutory immunity pursuant to § 4-165. In its articulation, the court stated that the plaintiff had alleged sufficient facts to constitute reckless conduct by Yoo, thereby bringing her within the exception under § 4-165 for “wanton, reckless or malicious” conduct. The court therefore concluded that Yoo was not entitled to statutory immunity under § 4-165. Then, turning its attention to the health center’s motion to dismiss on the ground of sovereign immunity, the court concluded: “Since Dr. Yoo is an employee of the state and may not be immune from suit, the state, acting through her, may be liable and, therefore, the motion to dismiss filed by [the health center] is denied.”

Our standard of review is well established. “[T]he doctrine of sovereign immunity implicates subject matter jurisdiction and is therefore a basis for granting a motion to dismiss.” (Internal quotation marks omitted.) Kizis v. Morse Diesel International, Inc., 260 Conn. 46, 51, 794 A.2d 498 (2002). “In ruling upon whether a complaint survives a motion to dismiss, a court must take the facts to be those alleged in the complaint, including those facts necessarily implied from the allegations, construing them in a manner most favorable to the pleader. ... A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction.” (Internal quotation marks omitted.) Brookridge District Assn. v. Planning & Zoning Commission, 259 Conn. 607, 611, 793 A.2d 215 (2002). “A determination regarding a trial court’s subject matter jurisdiction is a question of law. When . . . the trial court draws conclusions of law, our review is plenary and we must decide whether its conclusions are legally and logically correct and find support in the facts that appear in the record.” (Internal quotation marks omitted.) Martinez v. Dept. of Public Safety, 258 Conn. 680, 683, 784 A.2d 347 (2001).

We first address the health center’s argument that the court improperly relied on § 4-165 in deciding the motion to dismiss. We agree that the court’s reliance on § 4-165 was misplaced. The issue before the court was whether the doctrine of sovereign immunity bars the plaintiffs claims against the health center. Common-law sovereign immunity is distinct from the statutory immunity provided by § 4-165. See Martin v. Brady, 64 Conn. App. 433, 438, 780 A.2d 961 (2001), aff'd, 261 Conn. 372, 802 A.2d 814 (2002). By its own terms, § 4-165 applies only to state officers and employees sued in their personal capacities, and is therefore inapplicable to the determination of whether the health center, which is a state agency, is immune from suit. Consequently, we agree with the health center that the court should have based its analysis on the common-law doctrine of sovereign immunity, which governs actions against the state.

We now turn to the health center’s argument that it is immune from suit under the common-law doctrine of sovereign immunity. “It is well established law that the state is immune from suit unless it consents to be sued by appropriate legislation waiving sovereign immunity in certain prescribed cases.” (Internal quotation marks omitted.) Martinez v. Dept. of Public Safety, supra, 258 Conn. 683. “[A]s Mr. Justice Holmes wrote: A sovereign is exempt from suit, not because of any formal conception or obsolete theory, but on the logical and practical ground that there can be no legal right as against the authority that makes the law on which the right depends. Kawananakoa v. Polyblank, 205 U.S. 349, 353, 27 S. Ct. 526, 51 L. Ed. 834 [1907], ... The modem rationale for the doctrine, however, rests on the more practical ground that the subjection of the state and federal governments to private litigation might constitute a serious interference with the performance of their functions and with their control over their respective instrumentalities, funds and property. J. Block, ‘Suits Against Government Officers and the Sovereign Immunity Doctrine,’ 59 Harv. L. Rev. 1060, 1061 (1946).” (Internal quotation marks omitted.) Shay v. Rossi, 253 Conn. 134, 165-66, 749 A.2d 1147 (2000).

“In its pristine form the doctrine of sovereign immunity would exempt the state from suit entirely, because the sovereign could not be sued in its own courts and there can be no legal right as against the authority that makes the law on which the right depends. . . . This absolute bar of actions against the state has been greatly modified both by statutes effectively consenting to suit in some instances as well as by judicial decisions in others.” (Citations omitted; internal quotation marks omitted.) Id., 168.

“When sovereign immunity has not been waived, the claims commissioner is authorized by statute to hear monetary claims against the state and determine whether the claimant has a cognizable claim. See General Statutes §§ 4-141 through 4-165b. The claims commissioner, if he deems it ‘just and equitable,’ may sanction suit against the state on any claim ‘which, in his opinion, presents an issue of law or fact under which the state, were it a private person, could be hable.’ General Statutes § 4-160 (a). This legislation expressly bars suits upon claims cognizable by the claims commissioner except as he may authorize, an indication of the legislative determination to preserve sovereign immunity as a defense to monetary claims against the state not sanctioned by the commissioner or other statutory provisions. General Statutes §§ 4-148 (b), 4-160.” (Internal quotation marks omitted.) Krozser v. New Haven, 212 Conn. 415, 421, 562 A.2d 1080 (1989), cert. denied, 493 U.S. 1036, 110 S. Ct. 757, 107 L. Ed. 2d 774 (1990).

In the present case, the plaintiff has not cited any statute waiving the state’s sovereign immunity, nor is the court aware of any such statute. On the contrary, § 4-160 (b) expressly contemplates the submission of claims “alleging malpractice against ... a state hospital or a sanitorium” to the claims commissioner to determine whether to authorize suit. Additionally, the plaintiff has not alleged that the claims commissioner has authorized this action. We therefore conclude that there has been no waiver of sovereign immunity with regard to the plaintiffs claims against the health center. The court lacked subject matter jurisdiction and should have granted the health center’s motion to dismiss the first and second counts of the complaint.

The judgment is reversed and the case is remanded with direction to grant the motion to dismiss filed by the defendant Capitol Region Mental Health Center and to render judgment thereon.

In this opinion the other judges concurred.

       The Center for Human Development, Inc., and Moon Hee Yoo are named in the plaintiffs complaint as additional defendants. The present appeal is brought by the health center only. We therefore refer in this opinion to the health center as the defendant.

       Our Supreme Court held in Shay v. Rossi, 253 Conn. 134, 164, 749 A.2d 1147 (2000) (en banc), that the denial of a motion to dismiss based on a colorable claim of sovereign immunity is a final judgment for purposes of appeal.

       General Statutes § 4-165 provides in relevant part: “Immunity of state ol'iicers and employees from personal liability. No state officer or employee shall be personally liable for damage or injury, not wanton, reckless or malicious, caused in the discharge of his duties or within the scope of his employment. Any person having a complaint for such damage or injury shall present it as a claim against the state under the provisions of this chapter. . . .”

       Because the present appeal involves only the health center’s motion to dismiss, we do not review the court’s denial of Yoo’s separate motion to dismiss at this time. We express no opinion as to whether the court properly analyzed Yoo’s motion under General Statutes § 4-165.

       See General Statutes §§ 4-141 and 17a-450 (b).

       General Statutes § 4-160 (b) provides: “In any claim alleging malpractice against the state, a state hospital or a sanitorium or against a physician, surgeon, dentist, podiatrist, chiropractor or other licensed health care provider employed by the state, the attorney or party filing the claim may submit a certificate of good faith to the Claims Commissioner in accordance with section 52-190a. If such a certificate is submitted, the Claims Commissioner shall authorize suit against the state on such claim.”

       The plaintiff nevertheless argues that the health center is not entitled to sovereign immunity because the allegations in the complaint are sufficient to establish that the health center’s employees acted in excess of their statutory authority. That argument is based on a line of cases holding that sovereign immunity does not bar an action brought against a state employee in his official capacity if the complaint alleges that the employee acted in excess of his statutory authority. See Shay v. Rossi, supra, 253 Conn. 168-69; Antinerella v. Rioux, 229 Conn. 479, 642 A.2d 699 (1994). The rationale behind those cases is that “[s]uch conduct on the part of state officials would exceed their powers and, as such, would not be the conduct of the state of Connecticut.” Simmons v. Parizek, 158 Conn. 304, 307, 259 A.2d 642 (1969); see also Shay v. Rossi, supra, 168-69. In the present case, the only claims before us are against a state agency, rather than a state employee sued in his official capacity. Consequently, there is no question that the plaintiff has alleged conduct of the state of Connecticut, and the “in excess of statutory authority” analysis is irrelevant.


source: Caselaw Access Project

author: PETERS, J.

license: Public Domain

text:
    DEAN M. HOTTLE v. BDO SEIDMAN, LLP BDO SEIDMAN, LLP v. DEAN M. HOTTLE
    (AC 22636)
    (AC 22666)
    Foti, Schaller and Peters, Js.

      Argued September 19
    officially released December 24, 2002

      William J. Wenzel, with whom was Aimee J. Wood, for the appellant (plaintiff in the first case, defendant in the second case).

      Donald E. Frechette, with whom, on the brief, was Jeffrey J. Medeiros, for the appellee (defendant in the first case, plaintiff in the second case).
   Opinion

PETERS, J.

The Federal Arbitration Act (arbitration act), 9 U.S.C. § 1 et seq., establishes a federal policy favoring arbitration. These appeals raise the question of whether an arbitration panel is disqualified because of structural bias if the panel consists only of partners in the accounting firm. The trial court concluded that an arbitration agreement including such a description of eligible arbitrators was enforceable against a claimant who was a former member of the partnership. We agree.

These appeals arise out of a dispute over the payment of compensation between the plaintiff, Dean M. Hottle, a former partner, and the defendant partnership, BDO Seidman, LLP, an accounting firm. After his withdrawal from the firm, the plaintiff initiated judicial proceedings by filing an application for a prejudgment remedy. In response, the defendant filed a motion to stay the court proceedings and an independent action to compel arbitration under §§ 3 and 4 of the arbitration act. The defendant argued that the plaintiff was obligated to arbitrate his claims pursuant to § 14.8 of the partnership agreement.* * The trial court agreed and rendered judgment in favor of the defendant. The plaintiff has appealed.

In support of his appeals, the plaintiff argues that the arbitration provision is unenforceable because it does not provide for a neutral third party decision maker. It is the defendant that controls the list of prospective arbitrators, all of whom are partners of the firm. For this reason, the plaintiff contends that the proceedings authorized by § 14.8 do not qualify as an arbitration agreement. The plaintiff therefore urges us to reverse the trial court’s ruling staying his court action and compelling arbitration.

The defendant argues, to the contrary, that the arbitration provision is not unenforceable simply because partners serve as arbitrators. The defendant also contends that the plaintiff knowingly signed the partnership agreement and cannot now claim to have been unaware of its terms. As long as the arbitral process affords a fundamental level of fairness, the defendant argues, the trial court properly compelled the parties to proceed to arbitration.

These appeals require us to construe the terms of the partnership agreement. The parties have stipulated that New York law governs the agreement. Under New York law, the interpretation of a contract is a question of law and, accordingly, our review is plenary. 805 Third Avenue Co. v. M. W. Realty Associates, 58 N.Y.2d 447, 451, 448 N.E.2d 445, 461 N.Y.S.2d 778 (1983).

I

The arbitration act creates a “body of federal substantive law of arbitrability, applicable to any arbitration agreement within the coverage of the Act.” Moses H. Cone Memorial Hospital v. Mercury Construction Corp., 460 U.S. 1, 24, 103 S. Ct. 927, 74 L. Ed. 2d 765 (1983). The act governs any arbitration agreement “involving commerce”; 9 U.S.C. § 2; whether the case arises in state court or in federal court. Southland Corp. v. Keating, 465 U.S. 1, 14-15, 104 S. Ct. 852, 79 L. Ed. 2d 1 (1984). Federal law has, however, looked to state law to provide basic contract principles to supplement the act. Doctor’s Associates, Inc. v. Casarotto, 517 U.S. 681, 686-87, 116 S. Ct. 1652, 134 L. Ed. 2d 902 (1996).

As a threshold matter, we must determine, therefore, whether the arbitration act applies to § 14.8 of the partnership agreement. Section 1 of the act defines “commerce” to include “commerce among the several States . ...” 9 U.S.C. § 1. The United States Supreme Court has construed § 1 broadly. The court has explained that “involving commerce” is the equivalent of “affecting commerce,” and accordingly, the term “signals an intent to exercise Congress’ commerce power to the full.” (Internal quotation marks omitted.) Allied-Bruce Ter-minix Cos. v. Dobson, 513 U.S. 265, 277, 115 S. Ct. 834, 130 L. Ed. 2d 753 (1995).

The defendant is a nationwide accounting firm with offices in several states. The plaintiff also had clients located both within and outside of the state of New York. We conclude that the partnership agreement “involves commerce” and is governed by the arbitration act. See id., 281-82.

Pursuant to the arbitration act, we must decide whether the court properly granted the motion to stay court proceedings and to compel arbitration. 9 U.S.C. §§ 3, 4. Under the circumstances of this case, the court was required to resolve two issues. It had to determine (1) whether the parties agreed to arbitrate, and (2) whether the agreement was enforceable.

II

Before addressing the enforceability of the arbitration provision, we first note what these appeals do not involve. The parties do not dispute the existence of the partnership agreement under New York law. State law governs issues of formation. Doctor’s Associates, Inc. v. Casarotto, supra, 517 U.S. 686-87.

Similarly, the parties do not dispute that the plaintiff knowingly agreed to the arbitration clause in the partnership agreement and to the standard expectations associated with arbitration. Having signed the agreement, the plaintiff is presumed, under New York law, to have knowledge of its contents. Metzger v. Aetna Ins. Co., 227 N.Y. 411, 416, 125 N.E. 814 (1920). It is well established that the parties may define the arbitral process by contract. Volt Information Sciences, Inc. v. Board of Trustees of Leland Stanford Junior University, 489 U.S. 468, 479, 109 S. Ct 1248, 103 L. Ed. 2d 488 (1989). We conclude, therefore, that the parties properly entered into an agreement to arbitrate.

Finally, the parties agree that their dispute falls within the scope of § 14.8 of the partnership agreement. According to the federal policy favoring arbitration, arbitration agreements should be construed as broadly as possible. Oldroyd v. Elmira Savings Bank, FSB, 134 F.3d 72, 76 (2d Cir. 1998). Any doubt concerning the scope of arbitrable issues is to be resolved in favor of arbitration. Moses H. Cone Memorial Hospital v. Mercury Construction Corp., supra, 460 U.S. 24-25. “[T]he existence of a broad agreement to arbitrate creates a presumption of arbitrability which is only overcome if it may be said with positive assurance that, the arbitration clause is not susceptible of an interpre tation that {it} covers the asserted dispute.” (Emphasis in original; internal quotation marks omitted.) Oldroyd v. Elmira Savings Bank, FSB, supra, 76.

The arbitration provision in this case provides in relevant part that “[a]ny controversy or dispute relating to this agreement or to the Partnership and its affairs shall be resolved and disposed of in accordance with this section . . . .” The dispute in this case concerns the amount of compensation owed to the plaintiff under the withdrawal agreement. The withdrawal agreement to which the plaintiff subscribed incorporated the arbitration provision contained in the partnership agreement. Accordingly, we conclude that the plaintiff’s claims fall well within the scope of the arbitration agreement.

Ill

We now turn to the enforceability of the arbitration provision. The plaintiff challenges its validity on the ground that it deprives him of a right to a neutral arbitrator because the designated arbitration pool consists only of partners in the accounting firm. We disagree.

Although the requirement of a neutral arbitrator has often been stated; Wolsey, Ltd. v. Foodmaker, Inc., 144 F.3d 1205, 1208 (9th Cir. 1998); Harrison v. Nissan Motor Corp. in U.S.A., 111 F.3d 343, 350 (3d Cir. 1997); AMF, Inc. v. Brunswick Corp., 621 F. Sup. 456, 460 (E.D.N.Y. 1985); the parties have not cited, and we have not found, an authoritative definition of the requisite neutrality. As a matter of first impression, we hold that neutrality requires an absence of structural bias that demonstrates probable partiality in favor of one of the parties to the dispute.

Some courts have phrased the need for neutrality in terms of “institutional bias” and “evident partiality.” The arbitration act allows a court to vacate an award because of “evident partiality” on the part of the arbitrators. 9 U.S.C. § 10 (a) (2). “Evident partiality” requires a showing of a “reasonable impression of partiality on the arbitrator’s behalf.” (Internal quotation marks omitted.) Scott v. Prudential Securities, Inc., 141 F.3d 1007, 1015 (11th Cir. 1998), cert. denied, 525 U.S. 1068, 119 S. Ct. 798, 142 L. Ed. 2d 660 (1999). The alleged partiality must be “direct, definite and capable of demonstration rather than remote, uncertain and speculative.” (Internal quotation marks omitted.) Id.; Harter v. Iowa Grain Co., 220 F.3d 544, 553 (7th Cir. 2000). This standard requires more than an appearance of bias, but less than a showing of actual bias. Andersons, Inc. v. Horton Farms, Inc., 166 F.3d 308, 325 (6th Cir. 1998).

For present purposes, we treat these terms as functionally identical to structural bias. Appearance of bias is not, however, enough to disqualify an arbitrator. Harter v. Iowa Grain Co., supra, 220 F.3d 555-56; Andersons, Inc. v. Horton Farms, Inc., supra, 166 F.3d 329. Connecticut law is to the same effect. Clisham v. Board of Police Commissioners, 223 Conn. 354, 361-62, 613 A.2d 254 (1992).

We have found no case that is identical to this case in all respects. In Rosenberg v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 170 F.3d 1 (1st Cir. 1999), and Woods v. Saturn Distribution Corp., 78 F.3d 424 (9th Cir.), cert. dismissed, 518 U.S. 1051, 117 S. Ct. 30, 135 L. Ed. 2d 1123 (1996), however, the courts discussed structural bias in a manner that we find informative. It is true that the relationships in those cases were not that of a partner to a partnership. Nonetheless, the cases are relevant to the resolution of the issue that is before us.

In Rosenberg, the United States Court of Appeals for the First Circuit considered a claim of structural bias arising out of a close relationship between the New York Stock Exchange and a member of the exchange. Rosenberg v. Merrill Lynch, Pierce, Fenner & Smith, Inc., supra, 170 F.3d 14-16. As in this case, the dispute arose prior to the selection of the arbitration panel. The plaintiff employee had signed the standard “U-4 form” required of all employees in the securities industry. Id., 4. In response to the plaintiff’s subsequent action alleging age and gender discrimination, the defendant employer filed a motion to compel arbitration before a New York Stock Exchange arbitration panel. The court determined that the exchange’s arbitration rules were not structurally biased. The court nonetheless affirmed the District Court’s judgment on an alternate ground of waiver. Id., 18-19.

In Woods, the United States Court of Appeals for the Ninth Circuit held that bias is not established by a demonstration that prospective arbitrators have a direct pecuniary relationship with one of the parties to the dispute. The parties agreed to arbitrate a dispute about a claim of breach of a franchise agreement. Woods v. Saturn Distribution Corp., supra, 78 F.3d 426. After the panel issued an award favoring Saturn Distribution Corporation, the franchisee filed a motion to vacate the award. Id. The District Court declined to do so. Id. On appeal, the Court of Appeals rejected the franchisee’s argument that an arbitration panel consisting of two Saturn dealers and two Saturn employees was structurally biased. The court observed that the franchisee, when he signed the franchise agreement, was aware of the relationship between the prospective arbitrators and the parties. Id., 428. Significantly, the court held that this financial relationship, in and of itself, did not rise to the level of “evident partiality.” Id., 428-29.

Several other federal circuits, in their review of the propriety of arbitration awards, have considered and addressed claims of structural bias. The fact that those cases, like Woods, arise in the context of postaward challenges does not diminish the guidance that they provide in this case. The claim is the same: the arbitration provision is alleged to be unenforceable because of the pecuniary relationship between the pool of prospective arbitrators and one of the parties to the dispute.

Those cases, like the other federal cases cite, hold that a structural linkage of the arbitration panel to one side of the dispute does not prove a violation of § 10 (a) (2). Industry relationships may demonstrate an appearance of bias, but do not in and of themselves establish “evident partiality.” Harter v. Iowa Grain Co., supra, 220 F.3d 555-57; Andersons, Inc. v. Horton Farms, Inc., supra, 166 F.3d 325-26, 328-29; Scott v. Prudential Securities, Inc., supra, 141 F.3d 1015-16.

The plaintiff has not demonstrated the likelihood of any significant financial incentive that would, in fact, influence present partners as potential arbitrators. Unsurprisingly, before the selection of the arbitral panel, it is difficult to present any such evidence. At this juncture, the plaintiffs claims demonstrate nothing more than an appearance of bias and that is not enough to demonstrate structural bias.

In his argument for reversal of the judgment of the trial court, the plaintiff relies on several cases rejecting arbitration provisions that strongly favored one side. These cases are readily distinguishable. They have refused to enforce arbitration provisions on the ground of unconscionability. Murray v. United Food & Commercial Workers International Union, 289 F.3d 297, 302-303 (4th Cir. 2002); Hooters of America, Inc. v. Phillips, 173 F.3d 933, 938-40 (4th Cir. 1999).

In finding unconscionability, these decisions emphasize the unequal economic power and difference in sophistication between the contracting parties. The contracting parties therein consisted of an employer and employee (or job applicant). The employers had an overwhelming economic advantage. By contrast, this plaintiff is an educated and experienced professional who knowingly entered into a partnership agreement that fully described the applicable arbitration agreement.

Finally, the plaintiff argues that because a partnership and its partners, for many purposes, are viewed as a single legal entity, the arbitration provision improperly allows the defendant to arbitrate its own disputes. The defendant is a limited liability partnership formed under New York law. See, e.g., N.Y. Partnership Law §§ 2,121-1500 (McKinney Sup. 2002). Generally, a partnership and its partners share the same legal identity. Williams v. Hartshorn, 296 N.Y. 49, 51, 69 N.E.2d 557 (1946); Dembitzer v. Chera, 285 App. Div. 2d 525, 576, 728 N.Y.S.2d 78 (2001). The plaintiff has, however, made no showing that the New York statute that describes the relationship between the partners also applies to the validity of an arbitration provision.

We therefore conclude that the arbitration provision contained in § 14.8 of the partnership agreement is enforceable against the plaintiff. The arbitral process is not structurally biased against the plaintiff simply because of the relationship between the prospective arbitrators and the defendant.

The judgment is affirmed.

In this opinion the other judges concurred.

       In the action to compel arbitration, BDO Seidman, LLP, is the plaintiff and Hottle is the defendant. For convenience, we refer to the parties by their status in the first case, that is, to Hottle as the plaintiff and to BDO Seidman, LLP, as the defendant.

       Section 3 of the arbitration act provides: “If any suit or proceeding be brought in any of the courts of the United States upon any issue referable to arbitration under an agreement in writing for such arbitration, the court in which such suit is pending, upon being satisfied that the issue involved in such suit or proceeding is referable to arbitration under such an agreement, shall on application of one of the parties stay the trial of the action until such arbitration has been had in accordance with the terms of the agreement, providing the applicant for the stay is not in default in proceeding with such arbitration.” 9 U.S.C. § 3.
      Section 4 of the arbil ration act provides in relevant part: “A party aggrieved by the alleged failure, neglect, or refusal of another to arbitrate under a written agreement for arbitration may petition any United States district court which, save for such agreement, would have jurisdiction under title 28, in a civil action or in admiralty of the subject matter of a suit arising' out of the controversy between the parties, for an order directing that such arbitration proceed in the manner provided for in such agreement. . . . The court shall hear the parties, and upon being satisfied that the making of the agreement for arbitration or the failure to comply therewith is not in issue, the court shall make an order directing the parties to proceed to arbitration in accordance with the terms of the agreement. ... If the making of the arbitration agreement or the failure, neglect, or refusal to perform the same be in issue, the court shall proceed summarily to the trial thereof. ..." 9 U.S.C. § 4.

       Section 14.8 of the partnership agreement states: “Any controversy or dispute relating to this agreement or to the Partnership and its affairs shall be resolved and disposed of in accordance with this section, except that any accounting provided for in this agreement, to be conclusive, shall not be subject to this procedure, but shall be conclusive upon the Partners and the Partners agree and accept to be bound by any such accounting. Any dispute or controversy shall be considered and decided by an arbitration panel consisting of two (2) members of the Board of Directors (other than the Chairman and Chief Executive Partner) selected by the Board of Directors and three (3) Partners from the Partnership’s practice offices who are not members of the Board of Directors. The members of the arbitration panel shall be mutually agreed to by the Board of Directors and the parties to the controversy or dispute, provided that no member of the panel shall be from an office in which any complaining Partner was located at the time of the filing of the complaint, nor be otherwise involved in the controversy or dispute. The arbitration panel shall be selected as soon as possible after notice to the Partnership by any Partner that such a controversy or dispute exists. The conduct of the arbitration shall be in accordance with such procedures as the Board of Directors adopts and communicates to the Partners. The vote of a majority of the arbitration panel shall determine the resolution and disposition of any such dispute or controversy. The determination of such arbitration panel shall be conclusive and binding on all the Partners, and shall not be subject to further determination in any type of proceeding within or without the Partnership.”

       We note that, under Connecticut law, the trial court’s ruling to compel arbitrationis afinaljudgment. Success Centers, Inc. v. Huntington Learning Centers, Inc., 223 Conn. 761, 768-69, 613 A.2d 1320 (1992); see also Travelers Ins. Co. v. General Electric Co., 230 Conn. 106, 107-108, 644 A.2d 346 (1994). The arbitration act has not been held to supersede state procedural laws. Volt Information Sciences, Inc. v. Board of Trustees of Leland Stanford Junior University, 489 U.S. 468, 477 n.6, 109 S. Ct. 1248, 103 L. Ed. 2d 488 (1989).

       The partners making up the pool of arbitrators are located in offices throughout the United States.

       Section 16.9 of the agreement contains a choice of law provision stating that “[t]his agreement, its validity, construction, administration and effect, shall be governed by and construed in accordance with the laws of the State of New York.”

       This body of law emanates from § 2 of the arbitration act. This section provides: “A written provision in any maritime transaction or a contract evidencing a transaction involving commerce to settle by arbitration a controversy thereafter arising out of such contract or transaction, or the refusal to perform the whole or any part thereof, or an agreement in writing to submit to arbitration an existing controversy arising out of such a contract, transaction, or refusal, shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract.” 9 U.S.C. § 2 (2001).

       The plaintiff relies heavily on the contraiy ruling of the District Court in Rosenberg v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 995 F. Sup. 190 (D. Mass. 1998). Such reliance is misplaced in light of the decision of the Court of Appeals.

       The plaintiff also argues that the discovery process is inherently unfair. Arbitration procedures must conform to notions of fundamental fairness. “[A] fundamentally fair hearing requires only notice, opportunity to be heard and to present relevant and material evidence and argument before the decision makers, and that the decision makers are not infected with bias.” Bowles Financial Group, Inc. v. Stifel, Nicolaus & Co., 22 F.3d 1010, 1013 (10th Cir. 1994). The defendant’s arbitration rules, however, which provide for notice and the presentation of evidence, are not fundamentally unfair.

       The plaintiff also relies on Penn v. Ryan’s Family Steak Houses, Inc., 95 F. Sup. 2d 940 (N.D. Ind. 2000), aff'd, 269 F.3d 753 (7th Cir. 2001). In that case, an employee signed a job application that included an arbitration clause. That clause provided that Employment Dispute Services, Inc. (EDS), would resolve all disputes between the defendant and its employees. Id., 941. After being terminated, the employee brought an action against the employer, alleging violations of the Americans with Disabilities Act (ADA), 42 U.S.C. § 12111 et seq. Penn v. Ryan’s Family Steak Houses, Inc., supra, 941. The employer filed a motion to compel arbitration under the arbitration act. Id. The District Court determined that the arbitration agreement was unenforceable because it was structurally biased and not fully communicated to the employee. Id., 946-48, 955.
      The Court of Appeals affirmed on different grounds. Penn v. Ryan’s Family Steak Houses, Inc., 269 F.3d 753, 755 (7th Cir. 2001). That court determined that the agreement between the employer and EDS was so vague as to be unenforceable. Id., 758-60.
      Even if the District Court’s opinion had some precedential value, it would not aid the plaintiff in the present case. The court based its decision largely on Hooters of America, Inc. v. Phillips, 173 F.3d 933 (4th Cir. 1999). As in Hooters of America, Inc., the District Court’s determination is not determinative in the plaintiff’s situation.


text:
    MICHAEL D. BARILE v. LENSCRAFTERS, INC., ET AL.
    (AC 22475)
    Mihalakos, Dranginis and West, Js.
    Submitted on briefs October 31
    officially released December 24, 2002

      Laura Lee A. Dorflinger filed a brief for the appellant (plaintiff).

      Kenneth W. Gage and Mark J. Chumley filed a brief for the appellee (named defendant).

      Otto P. Witt filed a brief for the appellee (defendant Jennifer E. Sailer).
   Opinion

PER CURIAM. The plaintiff, Michael D. Barile,

appeals from the summary judgment rendered in favor of the defendants, LensCrafters, Inc., and Jennifer E. Sailer.

The following facts and procedural history are relevant to our disposition of the plaintiffs appeal. The plaintiff commenced this action against the defendants, alleging defamation, wrongful discharge and negligent and intentional infliction of emotional distress. On August 18,2000, Sailer filed a motion for summary judgment. On December 27, 2000, LensCrafters, Inc., filed a motion for summary judgment. The court scheduled a hearing on both motions for August 13,2001; however, at the request of the plaintiffs counsel, the hearing was continued to August 20, 2001. On August 17, 2001, three days before the scheduled hearing, the plaintiff filed his memorandum of law in opposition to the motion filed by LensCrafters, Inc. He did not file opposition papers regarding Sailer’s motion until the morning of the hearing.

After the hearing, the court granted the defendants’ motions for summary judgment on the ground that the plaintiff had failed to comply with Practice Book § 17-45. Thereafter, the plaintiff filed a motion to reargue, which the court denied. This appeal followed.

“The standards governing our review of a trial court’s decision to grant a motion for summary judgment are well established. Practice Book [§ 17-49] provides that summary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. . . . The party seeking summary judgment has the burden of showing the absence of any genuine issue [of] material facts which, under applicable principles of substantive law, entitle him to a judgment as a matter of law . . . and the party opposing such a motion must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact.” (Internal quotation marks omitted.) H.O.R.S.E. of Connecticut, Inc. v. Washington, 258 Conn. 553, 558-59, 783 A.2d 993 (2001).

“The existence of the genuine issue of material fact must be demonstrated by counteraffidavits and concrete evidence.” (Internal quotation marks omitted.) Pion v. Southern New England Telephone Co., 44 Conn. App. 657, 663, 691 A.2d 1107 (1997). “If the affidavits and the other supporting documents are inadequate, then the court is justified in granting the summary judgment, assuming that the movant has met his burden of proof.” (Internal quotation marks omitted.) 2830 Whitney Avenue Corp. v. Heritage Canal Development Associates, Inc., 33 Conn. App. 563, 569, 636 A.2d 1377 (1994). When a party files a motion for summary judgment “and there [are] no contradictory affidavits, the court properly [decides] the motion by looking only to the sufficiency of the [movant’s] affidavits and other proof.” Heyman Associates No. 1 v. Ins. Co. of Pennsylvania, 231 Conn. 756, 795, 653 A.2d 122 (1995). “Finally, the scope of our review of the trial court’s decision to grant the [defendants’ motions] for summary judgment is plenary.” H.O.R.S.E. of Connecticut, Inc. v. Washington, supra, 258 Conn. 560.

The plaintiff claims that the court abused its discretion by granting the defendants’ motions for summary judgment on procedural grounds rather than addressing the merits of his claims. The court, citing Inwood Condominium Assn. v. Winer, 49 Conn. App. 694, 697-98, 716 A.2d 139 (1998), granted the defendants’ motions on the ground that the “plaintiff failed to file [opposing] affidavits [as] mandated by [Practice Book] § 17-45.” Section 17-45 provides in relevant part that “[t]he adverse party shall at least five days before the date the motion is to be considered on the short calendar file opposing affidavits and other available documentary evidence. ...” (Emphasis added.) Moreover, in its memorandum of decision on the plaintiffs motion to reargue, the court stated that the “plaintiff failed to file opposition papers in a timely manner.” We agree with the court. See Practice Book § 17-45; Inwood Condominium Assn. v. Winer, supra, 697-98.

The judgment is affirmed.

       Practice Book § 17-45 provides in relevant part: “A motion for summary judgment shall be supported by such documents as may be appropriate, including but not limited to affidavits, certified transcripts of testimony under oath, disclosures, written admissions and the like. . . . The adverse party shall at least five days before the date the motion is to be considered on

        the short calendar pile opposing affidavits and other available documentary evidence. . . .” (Emphasis added.)


author: LAVERY, C. J.

text:
    KENNETH A. SCHWARTZ v. KAREN A. MURPHY ET AL.
    (AC 22318)
    Lavery, C. X, and Foti and Drangmis, Js.

      Argued September 12
    officially released December 24, 2002

      Karen A. Murphy, pro se, and Kathleen A. Murphy, pro se, the appellants (defendants).

      J. Paul Johnson, with whom was John B. Gaffney, for the appellee (plaintiff).
   Opinion

LAVERY, C. J.

The defendants, Karen A. Murphy and Kathleen A. Murphy, appeal from the judgment of the trial court, rendered after a trial to the court, determining that a view easement exists over a portion of their property in favor of the plaintiff, Kenneth A. Schwartz, and granting a mandatory injunction ordering the defendants to maintain that easement in accordance with the court’s specifications. The principal issues on appeal are whether the court properly (1) determined that a view easement exists over the defendants’ property for the benefit of the plaintiffs property and (2) granted a mandatory injunction ordering the defendants to maintain the view easement. We affirm, in part, and reverse, in part, the judgment of the trial court.

The record reveals the following facts that are relevant to the defendants’ appeal. The parties are the owners of adjoining parcels of land in the Shippan Point area of Stamford. The plaintiff obtained title to his property, at 60 Saddle Rock Road, from Marsi T. Hope by a warranty deed that was recorded in the land records on August 28, 1985. The defendants obtained title to their property, at 68 Saddle Rock Road, from Charles McManus and Lynne McManus by a warranty deed that was recorded in the land records on May 14, 1999.

The defendants’ deed indicates that their property is subject to, inter alia, the following restrictions: (1) “Restriction as to view obstruction and location of accessory structures affecting the southeasterly comer of the premises as shown on said map, 12226,” (2) “Notations as shown on Maps numbered 10716 and 12226” and (3) “Restrictive covenants and agreements set forth in a certain agreement between Faye Dunaway and John A. Contegni, et al., dated February 2, 1981

On September 15, 2000, the plaintiff commenced the present action against the defendants, alleging that the defendants’ property is subject to a view easement in his favor, “as shown on Map No. 12226 . . . .” He further alleged that the defendants have permitted a privet hedge and a large tree to remain in the easement area, thereby obstructing his view of Long Island Sound in violation of the view easement. As a remedy, the plaintiff sought a mandatory injunction requiring the defendants to maintain “their privet hedge trimmed to not more than six feet in height along the easement area to remove the tree existing in the easement area and to keep the easement free from blockage of any kind.”

The defendants denied the plaintiffs material allegations and raised a number of special defenses, including adverse use, abandonment, unclean hands, laches and a claim that the easement is void for vagueness. The defendants also filed a counterclaim to determine the respective rights of the patties with respect to the view easement and to quiet title.

After a trial, the court issued a memorandum of decision onAugust30,2001. In its memorandum of decision, the court found that a view easement exists over the defendants’ property, the plaintiff may enforce the view easement, and the defendants are violating the view easement by permitting their hedge and tree to grow to a height that impinges on the plaintiffs view of Long Island Sound. The court granted a mandatory injunction in favor of the plaintiff, ordering the defendants to maintain the view easement in accordance with the court’s specifications. The court also rendered judgment in favor of the plaintiff on the defendants’ counterclaim. This appeal followed. Additional facts will be set forth as necessary.

I

We first consider whether the court properly determined that a view easement exists over the defendants’ property for the benefit of the plaintiffs property. We conclude that it did.

In its memorandum of decision, the court concluded that “the source for the view easement in favor of the plaintiffs property as the dominant estate . . . over the defendants’ property as the servient estate is the deed by which the defendants obtained title to their property, which contains certain conditions or restrictions . . . .” The court further concluded that although the plaintiffs deed did not refer to the view easement, “the plaintiff is still able to enforce this restriction or condition because both the defendants’ predecessor in title, Dunaway, and the plaintiffs predecessor, [George P. Egbert and Judith B.] Egbert, signed an agreement estabhshing this restriction on the defendants’ use of their property.” We agree with the court.

A servitude is created if the owner of the property to be burdened enters into a contract or makes a conveyance intended to create a servitude. See 1 Restatement (Third), Property, Servitudes § 2.1, p. 51 (2000). “[T]he determination of the intent behind language in a deed, considered in the light of all the surrounding circumstances, presents a question of law on which our scope of review is plenary. . . . Thus, when faced with a question regarding the construction of language in deeds, the reviewing court does not give the customary deference to the trial court’s factual inferences. . . .

“The principles governing the construction of instruments of conveyance are well established. In construing a deed, a court must consider the language and terms of the instrument as a whole. . . . Our basic rule of construction is that recognition will be given to the expressed intention of the parties to a deed . . . and that it shall, if possible, be so construed as to effectuate the intent of the parties. ... In arriving at the intent expressed ... in the language used, however, it is always admissible to consider the situation of the parties and the circumstances connected with the transaction, and every part of the writing should be considered with the help of that evidence. ... In addition, when a deed sets forth two different descriptions of the property to be conveyed, the one containing the less certainty must yield to that possessing the greater, if apparent conflict between the two cannot be reconciled. . . .

“In the construction of a deed or grant, the language is to be construed in connection with, and in reference to, the nature and condition of the subject matter of the grant at the time the instrument is executed, and the obvious purpose the parties had in view. . . . [I]f the meaning of the language contained in a deed or conveyance is not clear, the trial court is bound to consider any relevant extrinsic evidence presented by the parties for the purpose of clarifying the ambiguity.” (Citations omitted; emphasis in original; internal quotation marks omitted.) Mulla v. Maguire, 65 Conn. App. 525, 531-32, 783 A.2d 93, cert. denied, 258 Conn. 934, 785 A.2d 229 (2001).

Furthermore, “[a] reference to [a] map in [a] deed, [f]or a more particular description, incorporates [the map] into the deed as fully and effectually as if copied therein. Bankers Trust Co. v. Zoning Board of Appeals, 165 Conn. 624, 631, 345 A.2d 544 (1974). [T]he identifying or explanatory features contained in maps referred to in a deed become part of the deed, and so are entitled to consideration in interpreting the deed as though they were expressly recited therein.” (Internal quotation marks omitted.) Bolan v. Avalon Farms Property Owners Assn., Inc., 250 Conn. 135, 141-42, 735 A.2d 798 (1999); see also General Statutes § 7-31.

In the present case, the defendants’ deed indicates that their property was conveyed subject to a “Restriction as to view obstruction and location of accessory structures affecting the southeasterly comer of the premises as shown on said map, 12226.” (Emphasis added.) Map no. 12226, entitled “Map Showing Adjustment of Property Lines Prepared for Spring Realty Corporation,” contains the following notation: “No accessory structures or view obstmctions shall be placed in this area.” That notation refers to a 50 foot by 100 foot by 110 foot triangular area located in the northeasterly comer of “Lot No. 3,” which is now the defendants’ property. Map no. 12226 was recorded in the land records on June 27, 1990.

The defendants’ deed also indicates that the property was conveyed subject to “Notations as shown on Maps Numbered 10716 and 12226.” Map no. 10716, entitled “Map Showing Subdivision Of Property Prepared For Faye Dunaway,” contains the same notation as that on map no. 12226, concerning the view easement, and it also locates the easement in the northeasterly comer of the defendants’ property. Map no. 10716 was recorded in the land records on June 26, 1981.

There is no question that the restrictions in the defendants’ deed express the intent to establish a view easement over the defendants’ property. There is a discrepancy, however, between the text of the restrictive covenant in the deed and the survey maps incorporated into the deed with respect to the exact location of the easement on the defendants’ property. To clarify that ambiguity, we consider the circumstances surrounding the conveyance, including any extrinsic evidence bearing on the issue. See Mulla v. Maguire, supra, 65 Conn. App. 535; see also Castonguay v. Plourde, 46 Conn. App. 251, 263, 699 A.2d 226 (“terms of a covenant . . . cannot be construed in a vacuum, but are to be understood in context”), cert. denied, 243 Conn. 931, 701 A.2d 660 (1997).

First, we note that although the text of the restrictive covenant describes the view easement as “affecting the southeasterly comer” of the defendants’ property, it further states that the easement is shown on map no. 12226. According to the mies of construction previously outlined, the general description in the text of the deed must yield to the more specific description in the survey map incorporated into the deed by explicit reference thereto. See, e.g., Mulla v. Maguire, supra, 65 Conn. App. 535.

Also, although map nos. 10716 and 12226 both contain handwritten markings that indicate which direction is north, those markings are not easily discerned and, without that directional guidance, the view easement at issue appears to be located in the southeasterly corner of the defendants’ property because of the directional orientation of the maps. The reference to “southeasterly” in the text of the deed, therefore, likely is attributable to the failure of the parties to discern the correct directional orientation of the maps. Indeed, it appears that the court also made that mistake. Accordingly, we conclude that the correct location of the view easement on the defendants’ property is depicted on map nos. 10716 and 12226, i.e., the triangular area that abuts the portion of the plaintiffs property that is adjacent to Long Island Sound.

The defendants’ deed further indicates that the property was conveyed subject to “Restrictive covenants and agreements set forth in a certain agreement between Faye Dunaway and John A. Contegni, et al., dated February 2, 1981 . . . .” On June 14, 1978, the Deleo Brothers Development Corporation (Deleo Brothers) received permission from the Stamford planning board to subdivide its Saddle Rock Road property consisting of 2.94 acres into several lots. In granting that subdivision application, the planning board, inter alia, imposed a condition that a triangular area in the comer of what is presently the defendants’ property be subject to a view easement. Several neighboring property owners, including the former owners of the plaintiffs property, the Egberts, appealed to the court from the planning board’s decision to grant the subdivision application. In the meantime, Deleo Brothers conveyed the property at issue to Faye Dimaway.

On February 2, 1981, Dunaway and the neighboring property owners came to an agreement, resolving their differences with respect to the planned subdivision. Specifically, the parties agreed that Dunaway’s property would not be subdivided into more than three lots and the subdivision would be subject to certain restrictive covenants. One of those restrictive covenants states: “No dwelling, accessory structure or view obstmction shall be located in the triangular area 50’ x 95’ x 110’ at the southwesterly comer of said premises.” (Emphasis added.) The Dunaway-Contegni agreement further provides in relevant part: “The intent of these restrictive covenants and agreements is to protect property values. The parties hereto, their successors and assigns and heirs, shall all have the right to enforce the terms of this agreement in case of its violation by such court action that may be appropriate, including but not limited to, application for injunctive relief.”

In light of the explicit reference to the Dunaway-Contegni agreement in the defendants’ deed, to which the plaintiffs predecessor in title was a party, we conclude that the plaintiff is entitled to enforce the view easement. Accordingly, our plenary review of the court’s construction of the defendants’ deed and examination of the surrounding circumstances to the conveyance convinces us that the court properly determined that a view easement exists over a portion of the defendants’ property for the benefit of the plaintiffs property as shown on map nos. 10716 and 12226.

II

We next consider whether the court properly granted a mandatory injunction ordering the defendants to maintain the view easement. We conclude that it did not.

The following additional facts are relevant to our resolution of the defendants’ claim. On the defendants’ property, there is a privet hedge that runs along the boundary line between the plaintiffs and the defendants’ properties. The hedge has existed there for at least twenty-two years. It is about fifteen feet high for most of its length; however, along the view easement area it is about six feet high because the plaintiff has been pruning it to that height. There also is a “Siberian elm” tree growing in the view easement area. That tree has existed there for at least forty years.

In its memorandum of decision, the court found that if the hedge is permitted to grow much higher, it “will inevitably impinge on the view easement.” The court also found that if the tree is permitted to grow “without any trimming, it will adversely affect . . . the plaintiffs view easement.” On the basis of those findings, the court issued an injunction ordering the defendants to maintain the view easement in accordance with the court’s specifications. Specifically, the court ordered the defendants to “keep their hedge, and any other bushes in the area of the view easement, to a height of not more than six feet,” and to “keep the tree trimmed and pruned so that it is reasonably similar in shape and height to the way it existed in September of 2000 . . . .”

An “[injunction is the proper remedy to stop interference with an owner’s use and enjoyment of an easement.” (Internal quotation marks omitted.) DiSorbo v. Grand Associates One Ltd. Partnership, 8 Conn. App. 203, 208 n.4, 512 A.2d 940 (1986). “[T]he holder of an easement ... is entitled to use the servient estate in a manner that is reasonably necessary for the convenient enjoyment of the servitude. . . . [T]he holder [however] is not entitled to cause unreasonable damage to the servient estate or interfere unreasonably with its enjoyment.” 1 Restatement (Third), supra, § 4.10, p. 592; see also Gager v. Carlson, 146 Conn. 288, 292-94, 150 A.2d 302 (1959).

“The law is settled that the obligation of the owner of the servient estate, as regards an easement, is not to maintain it, but to refrain from doing or suffering something to be done which results in an impairment of it.” (Internal quotation marks omitted.) Kelly v. Ivler, 187 Conn. 31, 45, 450 A.2d 817 (1982); see also 1 Restatement (Third), supra, § 4.13, p. 631. “The duty of maintaining an easement so that it can perform its intended function [therefore] rests on the owner of the easement absent any contrary agreement.” Powers v. Grenier Construction, Inc., 10 Conn. App. 556, 560, 524 A.2d 667 (1987); see also 1 Restatement (Third), supra, § 4.13, p. 631.

In the present case, the defendants, by the express terms of the restrictive covenant in their deed, are prohibited from placing accessory structures or view obstructions in the easement area. It is undisputed that the hedge and tree existed in the easement area prior to the creation of the view easement. The defendants, therefore, have not violated the terms of the restrictive covenant by allowing the hedge and tree to continue to grow in the easement area. Furthermore, the defendants’ deed contains no language concerning, nor is there evidence of, any other agreement that requires the defendants to maintain the view easement for the plaintiff. Under such circumstances, the law is clear that it is the plaintiffs responsibility to maintain the view easement at his expense, and he had no right to compel the defendants to maintain it for his benefit. See Powers v. Grenier Construction, Inc., supra, 10 Conn. App. 560; Labbadia v. Bailey, 147 Conn. 82, 89, 157 A.2d 237 (1959); 1 Restatement (Third), supra, § 4.13, p. 631.

We conclude that the court improperly issued a mandatory injunction ordering the defendants to maintain the plaintiffs view easement.

The judgment is reversed insofar as it grants a mandatory injunction in favor of the plaintiff and the case is remanded with direction to dissolve the injunction and to determine the respective rights and obligations of the parties with respect to the maintenance of the view easement in accordance with this opinion. In all other respects the judgment is affirmed.

In this opinion the other judges concurred.

       The defendants also claim that the court improperly (1) admitted certain evidence in violation of their due process rights, (2) permitted the plaintiff to amend his complaint, (3) effected a deed reformation, (4) ignored the statute of limitations set forth in General Statutes § 52-575a and the doctrine of adverse possession, and (5) excluded certain evidence. On the basis of our review of the record, we conclude that those claims are entirely without merit.

       The injunction stated that “the defendants shall keep their hedge and any other bushes in the area of the view easement to a height of not more than six feet, and shall also keep the tree trimmed and pruned so that it is reasonably similar in shape and height to the way it existed in September of 2000, when this lawsuit began.”

       The court also noted that “if the view easement is not for the benefit of the plaintiffs property, it is difficult to discern the identity of any other beneficiary.”

       General Statutes § 7-31 provides in relevant part: “When any person having an interest in land has caused it to be surveyed and plotted or laid out into lots and projected highways, and a map made, which map shall bear the seal of the surveyor and a certification that it is substantially correct to the degree of accuracy shown thereon, and when such projected highways have been approved by the municipal authorities empowered to approve the layout of highways, the map may be received and placed on file in the office of the clerk of the town in which such land is situated and shall thereupon be deemed a part of the deeds referring thereto (Emphasis added.)

       The Dunaway-Contegni agreement was recorded in the land records on June 26, 1981. Thereafter, the neighboring property owners withdrew then-appeal, and Dunaway’s property was subdivided into three lots, which she conveyed to Spring Realty Corporation. In 1991, Spring Realty Corporation conveyed lot no. 3 to the McManuses, who, as previously noted, conveyed it to the defendants in 1999.

       The court found that the reference to the “southwesterly” comer in the Dunaway-Contegni agreement was “obviously a typographical error, as the map shows that the view easement area is clearly at the easterly or southeasterly comer of the defendants’ property and toward the water." (Emphasis added.) We agree with the court that the reference to the “southwesterly” corner is a scrivener’s error and that the correct location of the easement, as previously discussed, is depicted on map no. 10716. We also note that, significantly, map no. 10716 is entitled “Map Showing Subdivision Of Property Prepared For Faye Dunaway.”

       I Restatement (Third), supra, § 4.13, p. 631, provides in relevant part: “Unless the terms of a servitude . . . provide otherwise, duties to repair and maintain the servient estate . . . are as follows:
      “(1) The beneficiary of an easement . . . has a duty to the holder of the servient estate to repair and maintain the portions of the servient estate . . . that are under the beneficiary’s control, to the extent necessary to
      “(a) prevent unreasonable interference with the enjoyment of the servient estate, or
      “(b) avoid liability of the servient-estate owner to third parties.
      “(2) Except as required by § 4.9, the holder of the servient estate has no duty to the beneficiary of an easement... to repair or maint ain the servient estate . . . .”
      1 Restatement (Third), supra, § 4.9, p. 581, provides in relevant part: “Except as limited by the terms of the servitude . . . the holder of the servient estate is entitled to make any use of the servient estate that does not unreasonably interfere with enjoyment of the servitude.”

       Although the plaintiff is entitled to maintain the view easement in a manner that is reasonably necessary for his enjoyment of it, he must do so without causing unreasonable harm to the existing hedge and tree. See 1 Restatement (Third), supra, § 4.10, p. 592; see also Gager v. Carlson, supra, 146 Conn. 292-94. We agree with the court that it is not necessary to remove or to excessively trim and to prune the hedge and tree for the plaintiff to conveniently enjoy the view easement. We also agree with the court’s finding that if the hedge and other bushes in the view easement area are kept at a height of six feet and the tree is trimmed so that it is kept at approximately the same shape and height as it is shown in exhibits twelve and thirteen, which are photographs of the property, there is no impingement on the plaintiffs view of Long Island Sound.


author: PER CURIAM.

text:
    ANTHONY J. CICHOCKI v. DALE J. QUESNEL ET AL.
    (AC 22003)
    Mihalakos, Flynn and Hennessy, Js.
    Submitted on briefs September 16
    officially released December 24, 2002

      Dale J. Quesnel, pro se, the appellant (defendant), filed a brief.

      Michael J. Kopsick filed a brief for the appellee (plaintiff).
   Opinion

PER CURIAM.

The defendant Dale J. Quesnel appeals, pro se, from the judgment of the trial court, rendered following a trial to the court, in favor of the plaintiff, Anthony J. Cichocki. The defendant claims that the court acted improperly in refusing (1) to allow him to testify (a) about the meaning of National Association of Securities Dealers’ Rules of Fair Practice (NASD rules) and (b) that he had witnessed the plaintiff violate NASD rules, and (2) to admit other evidence in support of his representation that the plaintiff had violated NASD rules. We decline to review the defendant’s claims because his brief to this court does not comply with Practice Book § 67-4 (c) and (d) (3).

Section 67-4 (c) provides that an appellant is required to include in his 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.” The defendant’s cryptic five page brief to this court does not include any page references to the transcript of the trial. Additionally, it does not include a statement of the nature of the proceedings or a statement of the facts of the case.

Section 67-4 (d) (3) provides that “[w]hen error is claimed in any evidentiary ruling in a court or jury case, the brief or appendix shall include a verbatim statement of the following: the question or offer of exhibit; the objection and the ground on which it was based; the ground on which the evidence was claimed to be admissible; the answer, if any; and the ruling.” The defendant’s claims, all of which are evidentiary, have not been properly presented. The defendant did not file an appendix, and his brief (1) does not identify with any degree of precision the evidence that was excluded or (2) include any arguments made in favor of admitting the evidence, any of the plaintiffs objections or any of the court’s evidentiary rulings. “When raising evidentiary issues on appeal, all briefs should identify clearly what evidence was excluded or admitted, where the trial counsel objected and preserved his rights and why there was error.” Aspiazu v. Orgera, 205 Conn. 623, 636-37 n.5, 535 A. 2d 338 (1987). A brief that consists only of abstract assertions that a court acted improperly in excluding certain evidence is insufficient. Insufficiencies of that type are amplified further when the appellant has failed to include any page references to the transcript. “For evidentiary rulings claimed to be improper to be reviewed by this court, they must be set forth in the briefs as required and outlined by the rules of practice.” Roberto v. Honeywell, Inc., 43 Conn. App. 161, 163, 681 A.2d 1011, cert. denied, 239 Conn. 941, 684 A.2d 712 (1996).

“Although we 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.” (Internal quotation marks omitted.) State v. Brown, 256 Conn. 291, 303, 772 A.2d 1107, cert. denied, 534 U.S. 1068, 122 S. Ct. 670, 151 L. Ed. 2d 584 (2001). On the basis of the foregoing reasons, we decline to review the defendant’s claims.

The judgment is affirmed.

       The other defendant in this action, Eastern Financial Group, LLC, also appealed. This court dismissed its appeal because a proper appearance was not timely filed on its behalf. Hereinafter, we refer to Quesnel as the defendant.

       We are not required to search transcripts to locate challenged evidentiary rulings. Sanders v. Officers Club of Connecticut, Inc., 196 Conn. 341, 347, 493 A.2d 184 (1985) (“[w]e are under no duty to search a transcript of the testimony to find a ruling under attack”). By complying substantially with Practice Book § 67-4, appellants better enable this court to consider their claims with efficiency and judiciousness.