text:
    FRANK W. BUGRYN, JR., ET AL. v. CITY OF BRISTOL ET AL. CITY OF BRISTOL v. FRANK W. BUGRYN, JR., ET AL. CITY OF BRISTOL v. FRANK W. BUGRYN, JR.
    (AC 20511)
    Lavery, C. J., and Foti and Peters, Js.
    Argued February 22
    officially released April 24, 2001

      Bridget C. Gallagher, with whom, on the brief, was Anthony A. Denorfia, for the appellants (plaintiffs in the first case, defendants in the second and third cases).

      Brian T. Henebry, for the appellees (defendants in the first case, plaintiff in the second and third cases).
   Opinion

FOTI, J.

The plaintiffs, owners of certain parcels of land in the city of Bristol, appeal from the trial court’s judgments denying their requests for injunctive relief against the defendants. The plaintiffs sought to enjoin the defendants from exercising the state’s power of eminent domain to condemn their properties as part of a plan to construct an industrial park. The plaintiffs claim that the court improperly (1) concluded that the defendants did not violate the plaintiffs’ state and federal constitutional rights, (2) concluded that the defendants did not act in excess of the authority conferred on them by the Economic Development and Manufacturing Assistance Act, General Statutes § 32-220 et seq., (3) concluded that the defendants did not act unreasonably, in bad faith or in abuse of their power in seeking to acquire all of the subject property by eminent domain, and (4) prejudiced their case by admitting into evidence certain testimony concerning the fair market value of the property and mediation efforts between the parties. We affirm the judgments of the trial court.

The following facts underlie the plaintiffs’ claims. As early as 1996, the defendant city of Bristol (city) began developing a plan to create the Southeast Bristol Mini-Industrial Park. Various city entities contacted the plaintiffs in an attempt to achieve the voluntary sale to the city of property owned by the plaintiffs to satisfy the plan’s requirements. The plaintiffs repeatedly indicated their lack of interest in selling their property. In May, 1998, the city made final settlement offers to the plaintiffs. On May 21, 1998, the plaintiffs filed the present action seeking temporary and permanent injunctive relief to restrain the defendants from acquiring then-properties by eminent domain. On March 25, 1999, the defendant development authority of the city of Bristol unanimously adopted the plan to acquire the subject property as part of the industrial park plan, and the members of the city council of the city unanimously voted to acquire the plaintiffs’ property through condemnation. The commissioner of the Connecticut department of economic and community development subsequently approved the development plan. The court granted the city’s application for mediation, and the parties attended mediation proceedings before a court-appointed mediator in April, 1999; those efforts did not resolve the dispute. On May 25, 1999, the city filed two statements of compensation for the properties with the Superior Court.

On June 4,1999, the plaintiffs filed motions for temporary and permanent injunctive relief in the two condemnation cases to restrain the defendants from taking further action concerning their property. The city served notice of the taking by eminent domain, pursuant to General Statutes § 8-129, and subsequently filed the required record of notice with the clerk of the Superior Court. The court consolidated the three pending proceedings related to this dispute. With that action pending, the defendants properly refrained from taking any further steps to acquire the subject property. The plaintiffs brought the present appeal after the court denied the injunctive relief.

I

The plaintiffs first claim that the court improperly failed to conclude that the defendants violated the plaintiffs’ state and federal constitutional rights. We disagree.

The plaintiffs claim that “the underlying purpose of the subject condemnation was to retain a particular manufacturer, Yarde Metals, within the city of Bristol. The evidence presented clearly supports a conclusion that the condemnation would confer a substantial benefit upon said private party.” Although the plaintiffs state this claim in constitutional terms, it arises out of the court’s factual determinations. “It is fundamental that, as an attribute of sovereignty, the state government or any properly designated agency thereof may take private property under its power of eminent domain if the taking is for a public use and if just compensation is paid therefor.” Gohld Realty Co. v. Hartford, 141 Conn. 135, 141, 104 A.2d 365 (1954). We must ascertain whether the court’s factual finding that the industrial park constitutes a public use and that this taking was not to benefit a private entity was clearly erroneous.

“An appellate court’s review of a trial court’s decision is circumscribed by the appropriate standard of review. As we have often stated: The scope of our appellate review depends upon the proper characterization of the rulings made by the trial court. To the extent that the trial court has made findings of fact, our review is limited to deciding whether such findings were clearly erroneous.” (Internal quotation marks omitted.) Powers v. Olson, 252 Conn. 98, 104-105, 742 A.2d 799 (2000). “The trial court’s findings are binding upon this court unless they are clearly erroneous in light of the evidence .... We cannot retry the facts or pass on the credibility of the witnesses. ... A finding of fact is clearly erroneous when there is no evidence in the record to support it ... or when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.” (Internal quotation marks omitted.) Melillo v. New Haven, 249 Conn. 138, 151, 732 A.2d 133 (1999).

The plaintiffs argue that the evidence adduced before the court “establishe[d] a clear chronology of events which supported a finding that the condemnation and contemplated redistribution of the property would benefit a specific and identifiable private interest, Yarde Metals. The trial court erred in failing to make this finding.” Our careful review of the record reveals more than ample evidence supporting the court’s finding that the city “approached the homeowners with the intention to purchase their properties for the purpose of building an industrial park. Although the city had numerous discussions with and made plans to have Yarde Metals as an anchor tenant in the proposed industrial park, no agreement or contract, written or oral, was made with Yarde Metals. Furthermore, and more telling, the evidence shows [that] the city plans on developing the industrial park whether or not Yarde Metals indeed becomes a tenant.”

The plaintiffs seek to have us reevaluate the evidence, viewing it harmoniously with their theory that the defendants seek to condemn their property primarily to benefit Yarde Metals. Even if the taking would later provide a site for Yarde Metals, a consequence that would be neither undesirable to the defendants nor adverse to the goals that the park plan seeks to achieve, that fact would not support the plaintiffs’ claim in light of the ample evidence in the record concerning the plan as a whole. “[W]here the public use which justifies the taking of the area in the first instance exists, an element over which there is no controversy in the present case, that same public purpose continues even though the property is later transferred to private persons.” Broad-river, Inc. v. Stamford, 158 Conn. 522, 533-34, 265 A.2d 75 (1969), cert. denied, 398 U.S. 938, 90 S. Ct. 1841, 26 L. Ed. 2d 270 (1970).

Given the soundness of the court’s factual determinations and the fact that it is not disputed that the development of an industrial park constitutes a public use, we can discern no violation of the plaintiffs’ constitutional rights.

II

The plaintiffs next claim that the court improperly concluded that the defendants did not exceed the authority conferred on them by the Economic Development and Manufacturing Assistance Act, General Statutes § 32-220 et seq. (act). This claim rests on the plaintiffs’ factual argument that the city sought to condemn the plaintiffs’ property to prevent “losing Yarde Metals to the town of Southington or the town of Cheshire . . . .” They argue that this purpose behind the taking conflicts with the legislative objectives in the act and that, therefore, the defendants’ action is not for a valid public use for purposes of the act. We disagree.

We first note our standard of review. Under the act, the legislature has vested those agencies authorized to exercise the state’s power of eminent domain “to promote the retention and expansion and increase the competitiveness of manufacturing and other economic base businesses” in Connecticut. General Statutes § 32-221. The legislature sought to maintain and to develop the state’s manufacturing sector, as well as to maintain and to create the jobs that accompany that sector of the economy. See General Statutes § 32-221. The act permits municipalities to designate implementing agencies to exercise the powers delegated under the act, including the power to condemn property. General Statutes § 32-224 (a). “Such authority having been reposed in the agency, the agency’s decision is conclusive unless, on judicial review, it is found to be unreasonable, or the result of bad faith, or an abuse of the power conferred.” Pet Car Products, Inc. v. Barnett, 150 Conn. 42, 51, 184 A.2d 797 (1962); see also Graham v. Houlihan, 147 Conn. 321, 328, 160 A.2d 745 (question of whether agency properly sought to condemn certain property under redevelopment act primarily matter for redevelopment agency, and decision subject to judicial review only to discover whether agency acted unreasonably, in bad faith or in abuse of its powers), cert. denied, 364 U.S. 833, 81 S. Ct. 70, 5 L. Ed. 2d 57 (1960).

As we discussed in part I of this opinion, the court’s factual finding that the defendants acted for public, not private, purposes finds support in the record. We, likewise, can discern no reason to upset the court’s conclusion that the defendants did not violate the statutory authority conferred on them by the act. The legislature intended a broad construction of the provisions of the act. General Statutes § 32-233 (a) provides that “[t]he powers enumerated in sections 32-220 to 32-234, inclusive, shall be interpreted broadly to effectuate the purposes thereof and shall not be construed as a limitation of powers.”

The plaintiffs urge us to interpret the act as fostering development of the state’s manufacturing sector at the expense of, or in competition with, other states and the international community. In their reply brief, the plaintiffs argue that they “do not dispute that the park plan appears on its face to meet the legislative mandate . . . .” (Emphasis in original.) They claim, instead, that they introduced evidence that demonstrated that the defendants’ motive, or ulterior purpose, in constructing the park was to compete with neighboring municipalities and to retain a particular manufacturer, Yarde Metals. Given the evidence supporting the court’s factual determinations, however, we have little difficulty concluding that the defendants did not act unreasonably, in bad faith or outside of their statutory authority in developing their plan for an industrial park.

The court had ample evidence before it that refuted the plaintiffs’ arguments that the defendants sought to condemn their property primarily to compete with surrounding towns for Yarde Metals, or for any other company. Evidence adduced before the court demonstrated, as well, that the state had recognized the city as an economically disadvantaged community and that the industrial park would serve the public good by creating or retaining manufacturing jobs, creating additional industrial land in the city and increasing the tax base.

In light of the broad powers conferred on the implementing agency under the act and the complex goals sought to be achieved under the act, the court had ample evidence before it that demonstrated that the condemnations were for a public use as set forth in the act.

Ill

The plaintiffs next claim that the court improperly failed to find that the defendants acted with unreasonableness, bad faith or in abuse of their power in seeking to acquire all of the subject property by eminent domain. We disagree.

It is well settled that “[t]he determination of what property is necessary to be taken in any given case in order to effectuate the public purpose is, under our constitution, a matter for the exercise of the legislative power. When the legislature delegates the making of that determination to another agency, the decision of that agency is conclusive; it is open to judicial review only to discover if it was unreasonable or in bad faith or was an abuse of the power conferred.” Gohld Realty Co. v. Hartford, supra, 141 Conn. 146.

The act permits a municipality to designate an implementing agency to exercise the powers conferred under the act. General Statutes § 32-224 (a). Once the agency’s development plan is approved in accordance with the act, the agency may “by purchase, lease, exchange or gift acquire or rent real property necessary or appropriate for the project as identified in the development plan . . . .” General Statutes § 32-224 (g). The agency may also “with the approval of the legislative body of the municipality, and in the name of the municipality, condemn . . . any real property necessary or appropriate for the project as identified in the development plan . . . .” (Emphasis added.) General Statutes § 32-224 (g).

As a reviewing court, we are bound to determine whether the court’s factual determination that the defendants did not act unreasonably in seeking to acquire all of the plaintiffs’ property was clearly erroneous. Our Supreme Court has stated that the appropriate standard in determining whether a certain parcel of land is necessary for purposes of this type of inquiry is whether the taking is “reasonably necessary” given the approved development plan. West Hartford v. Talcott, 138 Conn. 82, 91, 82 A.2d 351 (1951).

The plaintiffs’ claims in this regard are threefold. First, the plaintiffs claim that the defendants gave preferential treatment to another manufacturer whose property is within the project plan area. They claim that the defendants chose not to condemn land owned by an electric company although it lies within the project area. They claim that the defendants intend to build necessary infrastructure for the park on the property of the electric company, but intend to allow the company to retain title to its property. Second, the plaintiffs’ claim that the defendants seek to acquire more of the plaintiffs’ property than is necessary as part of a plan to intimidate or pressure all of the plaintiffs to sell their property voluntarily. Third, the plaintiffs claim that the defendants’ underlying purpose in condemning then-properties is to benefit Yarde Metals.

The court rejected the claim that the taking was not necessary. It concluded that no evidence before it demonstrated that the defendants acted with “unreasonableness, bad faith or [in] abuse of their power . . . ,”

The arguments advanced by the plaintiffs in this claim once again rest on their interpretation of conflicting evidence before the court. Our review of the record discloses that the defendants did not seek to condemn the electric company’s property because there simply was never any need to do so. Jonathan Rosenthal, the executive director of the development authority, testified that electric company officials had always manifested their willingness to work with the city to develop the park and had expressed their willingness to sell land necessary to accommodate neighbor industries and to enter into codevelopment agreements with the city in accordance with the city’s needs concerning the plan for the park. That evidence belies the plaintiffs’ claim that the defendants gave preferential treatment to an adjacent landowner to the extent such evidence would have helped their claim.

The plaintiffs also argue, essentially, that the defendants should have excluded residential properties from the proposal and that the condemnation of their properties was intended solely to benefit Yarde Metals. The record, however, reflects that the subject property was necessary to the defendants’ plan. The plaintiffs’ argument is that the defendants could have developed the industrial park without acquiring their land. Again, neither this court nor the trial court can second-guess the decision of the agency or the municipality that adopted the plan. To the extent that the plaintiffs challenge the action on the basis that it was intended solely to benefit Yarde Metals, we addressed that claim in parts I and II of this opinion.

While we recognize that the state should not condemn any more property than is necessary to satisfy the legislative mandate, courts are not well suited to second-guess determinations of this nature. “Where it appears that an honest judgment has been reasonably and fairly exercised after a full hearing, courts should be cautious about disturbing the decision of the local authority.” (Internal quotation marks omitted.) Graham v. Houli-han, supra, 147 Conn. 329. The defendants justified to the court their decision to acquire the plaintiffs’ land as part of their proposed industrial park. Although the plaintiffs are concerned about their parcels of land, the defendants’ decisions reflected planning and development concerns regarding the significance of the plaintiffs’ land to the entire project plan. See Broadriver, Inc. v. Stamford, supra, 158 Conn. 534.

IV

The plaintiffs next claim that the judgments should be reversed because the court improperly admitted into evidence certain testimony concerning the fair market value of the property and prior mediation between the parties. We disagree.

The plaintiffs originally claimed that the city failed to make reasonable efforts to negotiate with them in determining the compensation for the proposed taking. The plaintiffs later withdrew that claim during the hearing. The plaintiffs claim that the court improperly admitted certain evidence concerning the fair market value of their properties on the basis of the defendants’ assertions that the evidence was relevant to defend the claim of failure to negotiate. The plaintiffs argue that the evidence was irrelevant and that the court should have excluded it.

The plaintiffs also argue that the court improperly admitted into evidence certain testimony concerning the prior mediation between the parties, which was used to determine the fair market value of the property. The plaintiffs cite the long-standing evidentiary rule that mediation and settlement discussions are generally not admissible at trial. See Conn. Code Evid. § 4-8.

The plaintiffs argue that those evidentiary rulings prejudiced them because they could have led “the court to believe that the plaintiffs were fighting over merely money.” They further claim that the admission of that evidence “improperly placed the focus on what the property was worth and what the plaintiffs believed it was worth.”

We review these claims in accordance with a well established standard of review. “[A] trial court may exercise its discretion with regard to evidentiary rulings, and the trial court’s rulings will not be disturbed on appellate review absent abuse of that discretion. ... In our review of these discretionary determinations, we make every reasonable presumption in favor of upholding the trial court’s ruling. . . . Evidentiary rulings will be overturned on appeal only where there was an abuse of discretion and a showing by the [appellant] of substantial prejudice or injustice.” (Citation omitted; internal quotation marks omitted.) Cafro v. Brophy, 62 Conn. App. 113, 127, 774 A.2d 206 (2001).

Furthermore, a party seeking a new trial because of an improper evidentiary ruling has “the burden of demonstrating that the error was harmful. . . . When determining that issue in a civil case, the standard to be used is whether the erroneous ruling would likely affect the result.” (Internal quotation marks omitted.) Washington v. Christie, 58 Conn. App. 96,100, 752 A.2d 1127, cert. denied, 254 Conn. 906, 755 A.2d 884 (2000). The party “is entitled to relief from an erroneous ruling on the admissibility of evidence only if the error is also harmful. . . . [T]he plaintiff [bears the] burden of demonstrating that the erroneous ruling was likely to affect the result of the trial.” (Citation omitted.) Chouinard v. Marjani, 21 Conn. App. 572, 577, 575 A.2d 238 (1990).

After reviewing the record and the court’s memorandum of decision, we conclude that the plaintiffs have failed to demonstrate that the evidentiary rulings in any way affected the outcome of the trial. Although the evidence concerning the fair market value of the property appears to have been relevant to the issue of why the city needed to acquire all of the plaintiffs’ land and the evidence concerning the mediation efforts appears to have been elicited prior to the plaintiffs’ withdrawal of their claim concerning the city’s failure to negotiate, we need not reach the issue of whether the court properly admitted the evidence because those evidentiary matters were not material to its decision. The plaintiffs’ assertions that the evidence may have lured the court into believing that the dispute centered on money does not satisfy their burden of demonstrating to this court that the rulings likely affected the result.

The judgments are affirmed.

In this opinion the other judges concurred.

       The plaintiffs in the first case, defendants in the second and third cases, are Frank W. Bugryn, Jr., Nellie Fillipetti, Mary Dudko, Michael Dudko and John Bugryn. For convenience, we refer in this opinion to the property owners as the plaintiffs.

       The defendants in the first case are the city of Bristol, the Bristol development authority and the planning commission of the city of Bristol. The city is the plaintiff in the second and third cases. We refer to the defendants in the first case as the defendants in this opinion.

       The subject properties are located at 269 Middle Street and 299 Middle Street in Bristol.

       The mediator's report reflects that the plaintiffs would not accept fair offers of compensation because they did not want to leave their homes.

       Pursuant to General Statutes § 32-224 (g), the implementing agency may condemn property in accordance with sections 8-128 to 8-133. General Statutes § 8-129 provides in relevant part: “The redevelopment agency shall determine the compensation to be paid to the persons entitled thereto for such real property and shall file a statement of compensation, containing a description of the property to be taken and the names of all persons having arecord interest therein and setting forth the amount of such compensation, and a deposit as provided in 8-130, with the clerk of the superior court for the judicial district in which the property affected is located. Upon filing such statement of compensation and deposit, the redevelopment agency shall forthwith cause to be recorded, in the office of the town clerk of each town in which the property is located, a copy of such statement of compensation, such recording to have the same effect as and to be treated the same as the recording of a lis pendens, and shall forthwith give notice, as hereinafter provided, to each person appearing of record as an owner of property affected thereby and to each person appearing of record as a holder of any mortgage, lien, assessment or other encumbrance on such property or interest therein . . . .”

       The first matter was the plaintiffs’ action for injunctive relief, the second matter was the condemnation proceeding filed by the city for 299 Middle Street and the third matter was the condemnation proceeding filed by the city for 269 Middle Street.

       The plaintiffs claim that because a specific and identifiable private interest would benefit because of the taking by eminent domain, the taking violated their rights under the fifth amendment to the United States constitution, made applicable to the states through the fourteenth amendment to the United States constitution. The fifth amendment to the United States constitution provides in relevant part that private property shall not “be taken for public use, without just compensation.” They also claim that it violated their rights under the constitution of Connecticut, article first, § 11, which provides: “The property of no person shall be taken for public use, without just compensation therefor.”
      The plaintiffs further claim that the court improperly failed to apply a heightened level of scrutiny to their claim. The plaintiffs argue, in this regard, that courts should employ heightened scrutiny “[wjhere condemnation authority is exercised in a way that benefits a specific and identifiable private interest” to ascertain whether the public interest is the predominant interest being advanced. The plaintiffs have failed to cite any Connecticut authority to support this argument, and, to the contrary, our Supreme Court has not applied a heightened standard of review in previous disputes concerning the nature of a taking, even where the resale of the subject property to private entities is contemplated. See Fishman v. Stamford, 159 Conn. 116, 267 A.2d 443 (land condemned under redevelopment plan later sold to church), cert. denied, 399 U.S. 905, 90 S. Ct. 2197, 26 L. Ed. 2d 560 (1970); Gohld Realty Co. v. Hartford, 141 Conn. 135, 104 A.2d 365 (1954) (land condemned under redevelopment plan offered for sale or lease at fair value to redevelopers).

       We disagree, as well, with the defendants’ assertion that the plaintiffs failed to provide us with an adequate record to review this claim. Although the court discussed the issue with relative brevity, we find ample support for the court’s conclusion in other portions of its memorandum of decision.

       For example, the court heard testimony from Jonathan Rosenthal, the executive director of the development authority, as to what types of businesses the city targeted to relocate and which businesses have already committed to locate, in the park. Rosenthal testified that his office targets and has successfully lured companies from several other states. “[I]t is well established that the evaluation of [a witness’] testimony and credibility are wholly within the province of the trier of fact.” (Internal quotation marks omitted.) Greene v. Perry, 62 Conn. App. 338, 342, 771 A.2d 196 (2001). No evidence demonstrated that the park was even contingent on Yarde Metals’ plans.

       Given the appropriately deferential standard of review afforded this type of determination and the fact that the court made adequate determinations concerning the factual issues presented in this claim, we reject the defendants’ assertion that the record is inadequate for our review of this claim.

       See footnote 9.

       Frank Nicastro, the mayor of the city of Bristol and the chairman of the development authority, testified that although the city council approved the condemnation of forty acres of 299 Middle Street, the defendants sought to condemn only thirty-two acres of the property so that the plaintiffs could retain some of their land. Testimony at trial also established that the defendants sought to condemn the property at 269 Middle Street because omitting this parcel from the overall park plan would cause additional acreage to be taken out of productive use in the park and would cause the park to take on an irregular shape. Testimony also established that the defendants determined that the lot was needed to give the park necessary frontage and visibility for marketing purposes. The defendants also indicated that they were concerned about the risk that the substandard condition of the structures at 269 Middle Street would affect the marketability of the industrial park and that eventually the defendants might have to do grading work on other areas of the park that might necessitate work on this parcel.

       The plaintiffs presented this court with three additional claims, namely, that the court improperly determined that (1) the harms alleged by the plaintiffs did not constitute serious or material injuries, (2) the plaintiffs would not suffer irreparable harm if an injunction did not issue and (3) the hardships to the defendants would outweigh the hardships to the plaintiffs if the court, granted the injunction. While the court addressed those issues in its memorandum of decision, it did not need to do so. The issue before the court was whether it should grant the injunctive relief requested. The plaintiffs claimed, essentially, that the defendants impending taking was violative of state law and of the federal and state constitutions. Once the court, resolved those issues in favor of the defendants, its analysis was complete.


source: Caselaw Access Project

author: SCHALLER, J.

license: Public Domain

text:
    MARK NELSON, ADMINISTRATOR (ESTATE OF PARISE NELSON), ET AL. v. HOUSING AUTHORITY OF THE CITY OF HARTFORD
    (AC 19817)
    Schaller, Zarella and Dranginis, Js.
    Argued December 8, 2000
    officially released April 24, 2001

      David K. Jaffe, with whom was Arnold L. Beizer, for the appellants (plaintiffs).

      Robert J. Flanagan, Jr., for the appellee (defendant).
   Opinion

SCHALLER, J.

The plaintiffs appeal, challenging the action of the trial court denying their motion to set aside a judgment of nonsuit that previously had been rendered against them. On appeal, the plaintiffs claim that the court improperly granted the defendant’s motions for a nonsuit on March 6, 1997, because the plaintiffs failed to revise their complaint and to comply with the defendant’s written discovery requests. The plaintiffs also claim that the court improperly denied their March 10, 1999 motion to set aside the judgment of nonsuit and failed to hear argument or to allow them to present evidence on their motion to set aside the nonsuit and, that the trial judge failed to recuse himself from action on their motion to reconsider. We agree with the plaintiffs’ claims challenging the granting of the motions for nonsuit, and because those claims are dispositive of the appeal, we reverse the judgment of the trial court without addressing the remaining claims.

The following facts and procedural history are relevant to our disposition of the appeal. This negligence action arises out of a fatal apartment fire that occurred in Hartford on April 9, 1994. The present action, the second brought in connection with the incident, was made returnable on March 26, 1996. On July 17, 1996, the defendant housing authority of the city of Hartford filed a request to revise the amended complaint, which had been filed on April 8, 1996. On September 25, 1996, the defendant filed three motions for nonsuit, two for failing to comply with written discovery requests that had been filed on July 17, 1996, and the third for failing to revise the amended complaint.

The plaintiffs filed their revised complaint on February 28, 1997. They also filed on that date a notice of objection to the defendant’s motion for nonsuit for failing to revise the amended complaint and attached an unsigned copy of the revised complaint to the notice of objection. On March 4, 1997, the plaintiffs complied with all of the defendant’s outstanding discovery requests. They filed their responses with the court clerk on that date.

Thereafter, on March 6, 1997, the court granted the three motions for nonsuit. In ruling on the motion for nonsuit for failure to revise the amended complaint, the court indicated that the plaintiffs had failed to file a revised complaint because the complaint attached to the plaintiffs’ objection was not properly executed and certified to counsel. The court file, however, contained a properly executed and certified revised complaint, and counsel for the defendant received a copy of the revised complaint prior to the granting of the motion for nonsuit. In addition, the court file contained the relevant discovery compliances, which were date stamped by the clerk as having been received on March 4, 1997.

The plaintiffs filed a motion on March 10, 1999, to set aside the judgment of nonsuit and requested oral argument on the motion. The defendant filed an objection to the motion and also requested oral argument. On May 4,1999, the court denied the motion to set aside without hearing oral argument. The plaintiffs thereafter filed a motion to reconsider dated June 10, 1999, in which they asked the trial judge to recuse himself from hearing the motion to reconsider. They also requested oral argument on the motion. The court denied the motion on June 29,1999, without hearing oral argument. This appeal followed.

I

The plaintiffs claim first that the court improperly rendered the judgment of nonsuit against them for failing to revise their amended complaint. According to the plaintiffs, the court failed to note that the court file did contain a properly executed and certified revised complaint, and that counsel for the defendant had received a copy of the revised complaint prior to the nonsuit being rendered. We agree.

Pursuant to Practice Book § 13-14, a trial court has the “discretion to impose appropriate sanctions for the failure to comply with discovery requests ‘as the ends of justice require.’ The factors to be considered by the court include: (1) whether noncompliance was caused by inability, rather than wilfulness, bad faith or other fault; (2) whether and to what extent noncompliance caused prejudice to the other party, including the importance of the information sought to that party’s case; and (3) which sanction would, under the circumstances of the case, be an appropriate judicial response to the noncomplying party’s conduct.” Biro v. Hill, 231 Conn. 462, 464-65, 650 A.2d 541 (1994). We note that all of these factors are based on the premise that the party, in fact, did not comply. In addition, we note that although a nonsuit is a permissible sanction for the trial court to impose, such a sanction “is a drastic remedy and should be considered only as a last resort.” Id., 468 (Berdon, J., concurring).

On appeal, we review a trial court’s decision regarding sanctions under an abuse of discretion standard. “[T]he ultimate issue for us is whether the trial court could have reasonably concluded as it did.” Id., 465. With these principles in mind, we turn to the facts of the present case.

The record reveals that the court could not reasonably have concluded as it did because the plaintiffs actually complied with the order by properly filing a revised complaint. In rendering the judgment of nonsuit for failure to revise the amended complaint, the court improperly relied on the copy of an unsigned and uncer-tified complaint that was attached to the plaintiffs’ objection. The court overlooked the properly executed and certified revised complaint that had been filed prior to the nonsuit being rendered. Under these circumstances, we conclude that the court abused its discretion in rendering the judgment of nonsuit against the plaintiffs for failure to revise their amended complaint.

II

The plaintiffs’ second claim is that the court improperly rendered the judgment of nonsuit against them for failing to comply with the defendant’s written discovery requests. The plaintiffs argue, as with their first claim, that they, in fact, complied with the discovery requests prior to the nonsuit’s being rendered.

As discussed in part I of this opinion, the decision of whether to impose sanctions is a matter within the discretion of the trial court. We reiterate that appellate review of such a decision is governed by an abuse of discretion standard and that “[t]he ultimate issue for us is whether the trial court could have reasonably concluded as it did.” Id., 465.

After reviewing the record, we conclude that the court could not reasonably have found as it did. The defendant agrees, as it must, that the plaintiffs, in fact, complied with the discovery requests prior to the granting of the motions for nonsuit. The file contains both discovery compliances, which are date stamped by the clerk as having been received on March 4,1997. As with the first claim, the court failed to take into account the discovery compliances. We conclude, therefore, that the court abused its discretion in rendering the judgment of nonsuit against the plaintiffs for failure to comply with the discovery requests.

The judgment is reversed and the case is remanded for further proceedings.

In this opinion the other judges concurred.

       The plaintiff Mark Nelson brought claims individually and as the administrator of the estate of his minor daughter, Parise Nelson. The deceased minor’s mother, Tracie Keaton, is also a plaintiff in this action.

       The action was originally commenced in May, 1995, but the court dismissed that action because the plaintiffs did not comply with written discovery requests. Subsequently, the plaintiffs refiled the action.

       Practice Book § 13-14 provides: “(a) If any party has failed to answer interrogatories or to answer them fairly, or has intentionally answered them falsely or in a manner calculated to mislead, or has failed to respond to requests for production or for disclosure of the existence and contents of an insurance policy or the limits thereof, or has failed to submit to a physical or mental examination, or has failed to comply with a discovery order made pursuant to Section 13-13, or has failed to comply with the provisions of Section 13-15, or has failed to appear and testily at a deposition duly noticed pursuant to this chapter, or has failed otherwise substantially to comply with any other discovery order made pursuant to Sections 13-6 through 13-11, the judicial authority may, on motion, make such order as the ends of justice require.
      “(b) Such orders may include the following:
      “(1) The entry of a nonsuit or default against the party failing to comply;
      “(2) The award to the discovering party of the costs of the motion, including a reasonable attorney’s fee;
      “(3) The entry of an order that the matters regarding which the discovery was sought or other designated facts shall be taken to be established for the purposes of the action in accordance with the claim of the party obtaining the order;
      “(4) The entry of an order prohibiting the party who has failed to comply from introducing designated matters in evidence;
      “(5) If the party failing to comply is the plaintiff, the entry of a judgment of dismissal.

        “(c) The failure t,o comply as described in this section may not be excused on the ground that the discovery is objectionable unless written objection as authorized by Sections 13-6 through 13-11 has been filed.”


author: MIHALAKOS, J.

text:
    ANTHONY DALEY v. WESLEYAN UNIVERSITY
    (AC 18983)
    Landau, Mihalakos and Daly, Js.
    Argued October 31, 2000
    officially released May 1, 2001

      Jacques J. Parenteau, for the appellant (plaintiff).

      Felix J. Springer, with whom was Kenneth W. Gage, for the appellee (defendant).
   Opinion

MIHALAKOS, J.

The plaintiff, Anthony Daley, appeals from the judgment of the trial court, rendered after a jury trial, in favor of the defendant, Wesleyan University, in this action concerning the alleged breach of an employment contract. On appeal, the plaintiff claims that the court improperly (1) instructed the jury concerning his breach of contract claim and (2) excluded expert testimony relating to his scholarship. We affirm the judgment of the trial court.

The record discloses the following facts and procedural history. On January 26, 1987, the defendant offered the plaintiff a four year initial appointment as an assistant professor in its department of government. The following month, the plaintiff accepted the offer, which included an annual salary of $26,500. The position commenced on July 1,1987, and was scheduled to terminate on June 30, 1991.

When the plaintiff began his employment, the defendant provided him with a manual titled, “The Blue Book,” which included the bylaws of the faculty. It is undisputed that the employment contract between the parties incorporated the provisions of The Blue Book, and that The Blue Book’s terms and provisions apply to every faculty member.

During the third year of the plaintiffs initial appointment, the tenured faculty of the department of govemment (tenured faculty) evaluated his performance. Three basic criteria were used: Teaching, scholarship and colleagueship. Overall, the tenured faculty’s evaluation of him was favorable; however, concerns were expressed about the plaintiffs level of scholarship. On or about July 2, 1990, the plaintiff received a letter from the chairperson of the department of government (chairperson), informing him of the favorable evaluation and that he had been reappointed to a second four year term, which would expire on June 30, 1995. The letter also conveyed the tenured faculty’s concerns about his scholarship: “We are concerned that you take the time to revise your dissertation before getting too far along in your new project. It is important to complete the dissertation project in its revision to a book manuscript and sent [sic] out for review. The dissertation is a little unwieldy in length and focus. You have proposed revisions that will make the work more sharply focused .... We are confident that you will be able to make the necessary changes, and that the resulting book will be first-rate.”

During the next three years, the plaintiff, in an effort to generate a quality manuscript, revised his dissertation by adding five new chapters and modifying three existing chapters. The plaintiff, however, declined offers from the tenured faculty to review his manuscript and to counsel him on how to improve his scholarship.

In May, 1993, the plaintiff, who was nearing the end of his sixth year as an assistant professor, applied for tenure. The plaintiffs application included his manuscript, the names of three professors outside of Wesleyan and a request that the department of government consult them when evaluating his scholarship. In response, the department of government solicited appraisals of the plaintiffs scholarship from nine professors outside of Wesleyan, including the three named in the plaintiffs application. By October 12, 1993, each of the nine professors had responded by letter. Generally, the appraisals of the plaintiffs scholarship were mixed. Several of the professors criticized the manuscript for its lack of clarity and organization.

The tenured faculty convened eight times to consider the plaintiffs application for tenure. Again, the three basic criteria were used: Teaching, scholarship and colleagueship. The tenured faculty conducted a lengthy and thorough review of the plaintiffs record, which included (1) all the published and unpublished material that the plaintiff authored and submitted, (2) the plaintiffs statement about his research, teaching and scholarship, (3) syllabi from the courses that the plaintiff taught, (4) evaluations of the plaintiffs teaching and (5) the nine letters of appraisal from professors outside of Wesleyan. At the conclusion of its deliberations, the tenured faculty voted eight to one not to recommend the plaintiff for tenure. On October 26, 1993, the chairperson notified the plaintiff of the decision.

On November 2, 1993, the chairperson wrote a letter to the vice president for academic affairs, detailing why the plaintiff was not recommended for tenure. The letter also contained and discussed excerpts from several of the appraisals that had been received from professors outside of Wesleyan. In sum, eight of the nine tenured faculty members of the department of government did not consider the plaintiffs scholarship to be of sufficient strength to merit tenure.

During the plaintiffs eighth and final year as an assistant professor, the department of government permitted him to apply for reconsideration of its decision. The tenured faculty unanimously found that the plaintiffs scholarly record failed to meet “the exceptional standards required for an eighth year reconsideration.” Subsequently, the plaintiff exercised all of the procedural rights of review afforded to him under The Blue Book. The decisions of the tenured faculty were affirmed, and the plaintiffs employment ended on June 30, 1995.

On December 5,1995, the plaintiff brought the action that is the subject of this appeal. On January 11, 1996, the plaintiff filed a four count amended complaint, alleging, inter alia, that the defendant had breached its employment contract with him. Additional facts and procedural history will be provided as necessary.

I

The plaintiffs first claim consists of several related challenges to the jury instructions concerning his breach of contract claim. The plaintiff alleges that the court improperly instructed the jury to find in his favor on his breach of contract claim only if he proved by a preponderance of the evidence that the defendant’s decision denying his application for tenure was made arbitrarily, capriciously or in bad faith. The plaintiff also argues that (1) the court, in its instructions, failed to “ ‘unlink’ what could be considered two separate contract claims” and that (2) neither of those contract claims required him to prove that the defendant acted arbitrarily, capriciously or in bad faith to prevail. We disagree.

In part I A, we will examine the plaintiffs amended complaint and determine (1) the scope of his contract claims, (2) which facts properly were alleged in support of those claims and (3) of those facts, which were placed at issue by virtue of the evidence in the case. In part I B, we determine, given our conclusions in part I A, that the plaintiff did have the burden of establishing, inter aha, that the defendant acted arbitrarily, capriciously or in bad faith.

A

The Amended Complaint and the Evidence

“A court’s charge is not to be examined in a vacuum. Rather, it is to be viewed in the context of the factual issues raised at the trial.” (Internal quotation marks omitted.) State v. Austin, 244 Conn. 226, 237, 710 A.2d 732 (1998). Because “[f]acts found but not averred cannot be made the basis for a recovery”; Malone v. Steinberg, 138 Conn. 718, 721, 89 A.2d 213 (1952); accord Tedesco v. Stamford, 20 Conn. App. 51, 57, 563 A.2d 1046 (1989), rev’d on other grounds, 215 Conn. 450, 576 A.2d 1273 (1990); “[i]t is fundamental in our law that the right of a plaintiff to recover is limited to the allegations of his complaint.” (Internal quotation marks omitted.) Matthews v. F.M.C. Corp., 190 Conn. 700,705,462 A.2d 376 (1983). Consequently, “[t]he plaintiff was entitled to have the jury correctly, fairly and adequately instructed in accordance with the matters and law in issue by virtue of the pleadings and the evidence in the case”; Faulkner v. Reid, 176 Conn. 280, 281, 407 A.2d 958 (1978); and “[t]he trial court need charge only on those points of law that arise pursuant to the claims of proof advanced by the parties in their pleadings.” Drummond v. Hussey, 24 Conn. App. 247, 248, 588 A.2d 223 (1991); accord Nesbitt v. Mulligan, 11 Conn. App. 348, 351, 527 A.2d 1195, cert. denied, 205 Conn. 805, 531 A.2d 936 (1987); see Goodmaster v. Houser, 225 Conn. 637, 648, 625 A.2d 1366 (1993) (“[t]he court should, however, submit to the jury all ‘issues as outlined by the pleadings and as reasonably supported by the evidence’ ”). Accordingly, our analysis begins with an examination of the pleadings.

The second count of the amended complaint consists of the plaintiffs allegation that the defendant breached its contract with him. The facts alleged by the plaintiff as constituting the breach are contained in paragraphs eighteen and nineteen. They state as follows: “18. The University has breached the contract of employment between itself and Daley, including the implied covenant of good faith and fair dealing, by violating the specific and implicit promises made to Daley with respect to the methods to be employed by the University to determine his eligibility for tenure.

“19. More specifically, the University failed to make a good faith effort to determine the quality of Daley’s work by ignoring the opinions of those qualified to judge the merits of Daley’s work. Instead, the University relied upon the recommendations of the Government Department which were biased, inexpert, and inaccurate.” (Emphasis added.)

“ [T]he interpretation of pleadings is always a question of law for the court .... [Our Supreme Court has] pointed out that [t]he burden [is] upon the pleaders to make such averments that the material facts should appear with reasonable certainty; and for that purpose [the pleaders] were allowed to use their own language. Whenever that language fails to define clearly the issues in dispute, the court will put upon it such reasonable construction as will give effect to the pleadings in conformity with the general theory which it was intended to follow, and do substantial justice between the parties. . . . But essential allegations may not be supplied by conjecture or remote implication.” (Citations omitted; internal quotation marks omitted.) Cahill v. Board of Education, 198 Conn. 229, 236, 502 A.2d 410 (1985).

The plaintiff alleges, inter alia, that the court, in its jury instructions, failed to “ ‘unlink’ what could be considered two separate contract claims,” namely, that the defendant (1) breached the contract when it erroneously concluded that the plaintiffs scholarship was insufficient to merit tenure and (2) breached the contract when the department of government either (a) failed to inform him of its “conception of what constituted a ‘completed major work’ ” or (b) failed to apply the definition of “completed major work” that it communicated to him. Implicit in the plaintiffs argument is the assumption that both of those contract claims were pleaded adequately. See Drummond v. Hussey, supra, 24 Conn. App. 248.

Our examination of paragraphs eighteen and nineteen of the second count discloses that two separate claims for breach of contract are pleaded; however, we disagree with the plaintiffs implicit characterization of them. Paragraph eighteen of the amended complaint is unartfully drafted. Its language, which presumably was chosen by the plaintiff, fails to define clearly the issues in dispute, for it does not aver material facts with reasonable certainty. See Cahill v. Board of Education, supra, 198 Conn. 236. The phrase “specific and implicit promises,” and the word “methods” are imprecise and, when unaccompanied by further defining language, are inadequate to convey material facts with reasonable certainty. Only by conjecture or remote implication can a court or an opposing party hope to ascertain what promises were made and which were broken, and what methods were promised and which were employed instead. Construing paragraph eighteen reasonably, all we discern is that the plaintiff alleges that the defendant (1) breached a contract with the plaintiff, and (2) breached the covenant of good faith and fair dealing.

While paragraph nineteen is also unartfully drafted, it does provide some guidance. In it, the plaintiff claims that the defendant “failed to make a good faith effort to determine the quality of [his] work,” and he alleges two facts in support of his claim: The defendant (1) “ignorfed] the opinions of those qualified to judge the merits of [his] work” and (2) “relied upon the recommendations of the Government Department which were biased, inexpert, and inaccurate.” While the latter of the two facts is averred with reasonable certainty, the former is not, for it does not, inter alia, indicate who is qualified to judge the plaintiffs work. Although we recognize that “essential allegations may not be supplied by conjecture or remote implication”; (internal quotation marks omitted) id.; we assume arguendo that the former is adequate and that, in it, the plaintiff is alleging that the defendant “ignor[ed]” the nine letters appraising his scholarship that were received from professors outside of Wesleyan. Furthermore, in paragraph nineteen, the plaintiff expressly claims only that the defendant breached the covenant of good faith and fair dealing. Because paragraph nineteen begins with the phrase “[m]ore specifically,” the factual allegations contained therein reasonably can be construed as supporting the two claims alleged in paragraph eighteen, i.e., breach of contract, and breach of the covenant of good faith and fair dealing.

From here on, we assume arguendo that in the second count of his amended complaint, the plaintiff alleges that the defendant breached its contract with him, along with the covenant of good faith and fair dealing, when it “ignor[ed]” the nine letters appraising his scholarship that were received from professors outside of Wesleyan and relied on the department of government’s recommendations, “which were biased, inexpert, and inaccurate..” (Emphasis added.)

As alluded to previously, “[t]he [trial] court has a duty to submit to the jury no issue upon which the evidence would not reasonably support a finding.” (Internal quotation marks omitted.) Goodmaster v. Houser, supra, 225 Conn. 648. Our exhaustive review of the record discloses that the jury could not reasonably have found that the defendant “ignor[ed]” the nine letters. The plaintiff did not present any evidence that tended to prove that the defendant did not consider all nine letters before determining that he did not merit tenure. In fact, there was strong evidence to the contrary: The defendant’s employees, namely the tenured faculty, included and discussed excerpts of several of the letters in its letter to the vice president for academic affairs that detailed why it decided not to recommend the plaintiff for tenure. We assume arguendo, however, that the plaintiff instead alleged that the defendant, through the tenured faculty, did not afford enough weight to the nine letters when evaluating the plaintiffs scholarship in connection with his application for tenure. We also conclude that the plaintiff, through that allegation, seeks to prove that the tenured faculty’s determination that he did not merit tenure was inaccurate. Consequently, that factual allegation is subsumed by the plaintiffs remaining factual allegation that the defendant relied on the department of government’s recommendations, “which were biased, inexpert, and inaccurate.” (Emphasis added.)

Regarding the remaining factual allegation, the plaintiff at trial did not argue or present evidence indicating that the tenured faculty was not authorized to consider his application for tenure. In fact, The Blue Book, which was admitted into evidence at trial, overwhelmingly establishes that the tenured faculty was authorized to consider his application for tenure. See footnote 7. The evidence also overwhelmingly establishes that the defendant did not “rely” on the tenured faculty’s recommendation until after the plaintiff had exhausted all of the procedural rights of review afforded to him under The Blue Book.

In sum, two contract claims remain: The defendant (1) breached its contract with the plaintiff, along with (2) the covenant of good faith and fair dealing, when some of its employees, specifically, the tenured faculty of the department of government, rendered negative recommendations concerning the plaintiffs tenure application that “were biased, inexpert, and inaccurate,” recommendations that, in effect, foreclosed the possibility that the defendant would award him tenure.

B

The Burden

The plaintiff, in effect, claims also that the court mischaracterized the tenured faculty’s decision not to recommend him for tenure as an academic decision and that, consequently, the court’s instructions to the jury were improper. The plaintiff argues that the court should not have instructed the jury to find in his favor on his contract claims only if he proved by a preponder-anee of the evidence that the tenured faculty’s decision not to recommend him for tenure was made arbitrarily, capriciously or in bad faith. The plaintiff argues that (1) the tenured faculty’s decision not to recommend him for tenure was an employment decision, and (2) consequently, he should not have been required to prove that the tenured faculty acted arbitrarily, capriciously or in bad faith to prevail. We conclude that the court properly characterized the tenured faculty’s decision and that the plaintiff was required to prove by a preponderance of the evidence that it made its decision arbitrarily, capriciously or in bad faith.

A proper characterization of the tenured faculty’s decision must take into account the language of the contract between the plaintiff and the defendant as well as any circumstances that provide assistance in interpreting the contract language. See Gupta v. New Britain General Hospital, 239 Conn. 574, 582, 687 A.2d 111 (1996). On the present record, that assessment is purely a question of law. See id.

The Blue Book created a hybrid relationship between the plaintiff and the defendant, for on its face it enumerates requirements representative of an employment relationship as well as requirements representative of an academic relationship. See id. Under The Blue Book, a full-time, nontenured member of the faculty is required, inter alia, to teach, engage in scholarly pursuits and contribute to the collegial life of the faculty, and the defendant is required, inter alia, to pay him a salary. An inquiry such as whether the defendant failed to pay the plaintiff, for example, concerns a requirement representative of an employment relationship. See id., 587 & n.12. In contrast, an inquiry into whether an evaluation of a faculty member’s “teaching,” “scholarship” or “colleagueship” was accurate, as those terms are defined in The Blue Book, concerns a requirement representative of an academic relationship because conducting such evaluations is a specialty that is strongly associated with institutions of higher learning, and such an evaluation “has little to do with the normal attributes of an employee relationship.” Id., 586-87. Because of the hybrid nature of the contract between the plaintiff and the defendant, a functional analysis of its terms in relation to the alleged breach is required. See id.

The plaintiff, in effect, alleges that the defendant (1) breached its contract with him, along with (2) the covenant of good faith and fair dealing, when some of its employees, specifically, the tenured faculty of the department of government, rendered negative recommendations concerning his tenure application that “were biased, inexpert, and inaccurate,” recommendations that, in effect, foreclosed the possibility that the defendant would award him tenure. Under The Blue Book, the tenured faculty, when considering an application for tenure, is required to judge the applicant’s performance and promise in three categories: Teaching, scholarship and colleagueship. See footnote 3. As we previously intimated, we conclude that a decision that, on its face, is based exclusively on a faculty member’s “teaching,” “scholarship” and “colleagueship,” is an academic decision. Accordingly, we conclude that the tenured faculty’s decision in this case not to recommend the plaintiff for tenure is, on its face, an academic decision. Because an academic institution is afforded considerable discretion when, through its employees, it exercises its professional judgment on academic matters, the plaintiff was required to prove by a preponderance of the evidence that the tenured faculty’s decision not to recommend him for tenure was made arbitrarily, capriciously or in bad faith. See id., 595. In sum, we are not persuaded by the plaintiffs claim that the jury instructions were improper.

II

Finally, the plaintiff claims that the court improperly excluded the testimony of five expert witnesses. We disagree.

The following facts and procedural history are relevant to the plaintiffs claim. At trial, the plaintiff offered expert testimony from five of the nine professors outside of Wesleyan who had provided the tenured faculty with written appraisals of his scholarship. The plaintiff offered the five professors’ testimony for the purpose of having each of them (1) explain further the content of his appraisal, specifically (a) his written opinion concerning the quality of the plaintiffs scholarship, (b) his written opinion of the plaintiffs standing in his field among scholars of comparable age and experience, and (c) his written opinion as to whether the plaintiff would merit tenure either at the professor’s institution or at a comparable institution; (2) testify that, in his opinion, the standard employed by the tenured faculty when evaluating the plaintiffs scholarship was “inappropriately narrow;” (3) testify that, in his opinion, the tenured faculty, in its letter to the vice president for academic affairs, misrepresented the letters of appraisal in a manner that “was unsavory in academic quarters”; and (4) testify that, in his opinion, the tenured faculty’s decision not to recommend the plaintiff for tenure was made arbitrarily or capriciously.

The court did not permit the five professors to present expert testimony; however, all nine letters of appraisal were admitted into evidence, as was the tenured faculty’s letter to the vice president for academic affairs. Furthermore, no evidence was presented that tended to prove that the plaintiff and the defendant had agreed (1) to supplement the definition of scholarship that is expressed in The Blue Book or (2) to evaluate the plaintiffs scholarship in accordance with a standard used by other academic institutions.

“[T]he trial court has wide discretion in ruling on the admissibility of expert testimony and, unless that discretion has been abused or the ruling involves a clear misconception of the law, the trial court’s decision will not be disturbed. . . . Expert testimony should be admitted when: (1) the witness has a special skill or knowledge directly applicable to a matter in issue, (2) that skill or knowledge is not common to the average person, and (3) the testimony would be helpful to the court or jury in considering the issues.” (Citations omitted; internal quotation marks omitted.) State v. Billie, 250 Conn. 172, 180, 738 A.2d 586 (1999). Furthermore, “[t]he proffering party bears the burden of establishing the relevance of the offered testimony. Unless such a proper foundation is established, the evidence ... is irrelevant.” (Internal quotation marks omitted.) State v. Barnes, 232 Conn. 740, 747, 657 A.2d 611 (1995). “Relevant evidence is evidence that has a logical tendency to aid the trier in the determination of an issue. . . . One fact is relevant to another if in the common course of events the existence of one, alone or with other facts, renders the existence of the other either more certain or more probable. . . . Evidence is irrelevant or too remote if there is such a want of open and visible connection between the evidentiary and principal facts that, all things considered, the former is not worthy or safe to be admitted in the proof of the latter. . . . Evidence is not rendered inadmissible because it is not conclusive. All that is required is that the evidence tend to support a relevant fact even to a slight degree, so long as it is not prejudicial or merely cumulative.” (Internal quotation marks omitted.) State v. Billie, supra, 181.

We now consider, in the order that they previously were presented, the plaintiffs four purposes for offering the professors’ testimony. First, the plaintiff sought to have each of the professors further explain the content of his letter of appraisal. When the tenured faculty was considering the plaintiffs application for tenure, it did not have the benefit of the explanations of the letters of appraisal that the plaintiff proffered. Moreover, The Blue Book did not require the tenured faculty to solicit such explanations. The issue before the jury was whether the tenured faculty made its decision arbitrarily, capriciously or in bad faith, and, thus, each of the letters of appraisal, all of which were admitted into evidence, “speaks for itself.” State v. Reddick, 36 Conn. App. 774, 791, 654 A.2d 761, cert. denied, 232 Conn. 922, 656 A.2d 671 (1995). Because the proffered testimony did not have “a logical tendency to aid the trier in the determination of [the] issue”; (internal quotation marks omitted) State v. Billie, supra, 250 Conn. 181; it properly was excluded.

Second, the plaintiff sought to have each of the professors testify that, in his opinion, the standard employed by the tenured faculty when evaluating the plaintiffs scholarship was “inappropriately narrow.” At trial, no evidence was presented that tended to establish that the plaintiff and the defendant had agreed (1) to supplement the definition of scholarship that is expressed in The Blue Book or (2) to evaluate the plaintiffs scholarship in accordance with a standard used by other academic institutions. Moreover, none of the five professors had special knowledge regarding the defendant’s standards for granting tenure. Thus, the plaintiff failed to meet his burden of establishing a proper foundation for that testimony.

Third, the plaintiff sought to have each of the professors testify that, in his opinion, the tenured faculty, in its letter to the vice president for academic affairs, misrepresented the letters of appraisal in a manner that “was unsavory in academic quarters.” Presumably, the plaintiff offered that testimony as circumstantial evidence that the tenured faculty acted in “bad faith” when it decided not to recommend him for tenure. All of the letters that ordinarily would be scrutinized when conducting such an inquiry were admitted into evidence. Expert testimony should be admitted only when, inter alia, the expert’s “skill or knowledge is not common to the average person.” (Internal quotation marks omitted.) State v. Billie, supra, 250 Conn. 180. It is unclear why the jury, absent the assistance of expert testimony, could not have read and compared the letters at issue, and properly discerned whether they constituted evidence of bad faith on the part of the tenured faculty. Accordingly, we conclude that the court did not abuse its wide discretion in excluding the professors’ testimony. See id.

Fourth, the plaintiff sought to have each of the professors testify that, in his opinion, the tenured faculty’s decision not to recommend the plaintiff for tenure was made arbitrarily or capriciously. “An expert witness ordinarily may not express an opinion on an ultimate issue of fact, which must be decided by the trier of fact.” State v. Vilalastra, 207 Conn. 35, 41, 540 A.2d 42 (1988). An expert may, however, “give an opinion on an ultimate issue where the trier, in order to make intelligent findings, needs expert assistance on the precise question on which it must pass. ” (Internal quotation marks omitted.) State v. Rodgers, 207 Conn. 646, 652, 542 A.2d 1136 (1988). The plaintiff did not argue in his briefs to this court or at oral argument why the jury needed expert testimony to decide the ultimate issue in this case. Furthermore, our review of the record does not disclose any basis for concluding that the court abused its wide discretion when it excluded that testimony.

Accordingly, we conclude that the court properly excluded the expert testimony proffered by the plaintiff.

The judgment is affirmed.

In this opinion the other judges concurred.

       The Blue Book states in relevant part: “PREAMBLE TO FACULTY GOVERNANCE AND POLICIES. Appointment to the Wesleyan Faculty, whether on a part-time, full time, non-tenured or tenured basis, is subject to and governed by the terms and provisions of the following section.”

       The Blue Book states in relevant part,: “Before the end of the third year of an initial appointment of four years, a decision shall be made either to terminate the appointment at the end of the fourth year or to reappoint. Such reappointment shall normally be for four years . . . .”

       The Blue Book states in relevant part: “Teaching, scholarship, and colleagueship are the three basic criteria by which a candidate for appointment, reappointment, and promotion to the high ranks should be judged. Both performance and promise in these categories should be evaluated.
      “(1) For purposes of evaluation, teaching refers primarily to classroom performance and promise as evaluated by students and other teachers. The influence on and contribution of the candidate to the teaching of his/her colleagues should also be considered. Supplementary evidence might include a candidate’s contribution to formulating new or improved courses, programs, or teaching techniques and also his/her availability to and effect on students as a counselor.
      “(2) Scholarship refers to intellectual power, depth and breadth of knowledge, originality and skill in research, creativity and significance of executed work, past contributions to knowledge, and promise of future growth. Published, performed, and executed works, important as a contribution to knowledge and understanding, are also the clearest measure of their author’s scholarship. Other evidence might include mastery of skills and disciplines outside the candidate’s field.
      “(3) Colleagueship refers to contributions to the collegial life of the faculty as a community of scholars. Of particular importance is effectiveness in stimulating the thinking of colleagues, and encouragement and constructive criticism of their work, both on the more formal occasions when Faculty meet for serious discussion and in day-to-day associations with colleagues inside or outside the department. More generally, the value of a colleague is a measure of his/her participation in the intellectual life of the University beyond the classroom and beyond special research interests, and of the colleague’s share in establishing the conditions for sustaining a stimulating intellectual atmosphere at Wesleyan.”

       The Blue Book states in relevant part: “Reappointment should not be taken to imply a subsequent favorable decision on tenure.”

       The Blue Book states in relevant part: “Promotions conferring tenure may be made at any time. Decisions on such promotions must be made by the end of the seventh year of the appointee’s full-time college or university teaching . . . .”
      The Blue Book defines “tenure” as a status granted to faculty members “[a]fter the expiration of a probationary period” that signifies that their service “should be terminated only for adequate cause, except in the case of retirement for age, or under extraordinary circumstances because of financial exigencies.”

       The Blue Book states in relevant part: “Guidelines for the Evaluation of Candidates for Promotion Incurring Tenure . . .
      * ** *
      “(2) Scholarship
      “a. Outside Opinions
      “1. Ordinarily the chair should solicit from outside the Wesleyan faculty three to five opinions from qualified authorities of the department’s choosing.
      “2. The candidate may name additionally up to three such authorities and request the chair to consult them. There may be more or fewer for cause. In both cases, the replies should be held in confidence from the candidate. The solicitors of the letters should represent that these practices of confidentiality are in force .... The letters of solicitation should inquire at least concerning (a) the degree of acquaintance with the work of the candidate, (b) an appraisal of the work itself and (c) the candidate’s standing in his/ her field amongst scholars of comparable age and experience. . .

       The Blue Book states in relevant part: “After appropriate consultation with the department, and with the concurrence of a majority of the tenured faculty, the Chair recommends to the President promotion to tenure or not.”

       See footnote 3.

       The Blue Book states in relevant part: “Guidelines for the Evaluation of Candidates for Promotion Incurring Tenure . . .
      “(2) Scholarship
      “c. Bases of Judgment. The usual evidence of scholarly publications consists of books, monographs, and articles published in, or accepted for publication by, recognized scholarly journals. Such evidence might include anthologies, translations, technical reports, reviews, commentaries, textbooks, and so on, where such productions are pertinent to the evaluation of the candidate’s performance and promise as a scholar.”

       In the letter, the chaiiperson states in relevant part: “The decision not to recommend tenure is based principally on our assessment of the scholarly record. The Department’s customary standard for tenure is the completion of a maj or project of research and writing in the form of a book, a monograph, or a series of related articles. We also require significant progress toward the completion of a second scholarly project. In our judgment, Tony has not met this standard.
      ***
      “Tony’s chief scholarly undertaking to date is his manuscript ‘Labor Mobilization and Labor Policy: The Demise of French Exceptionalism.’ The manuscript is an outgrowth of his dissertation, ‘Labor and Industrial Change: The Politics of Steel in France.’ Tony did not include the dissertation in the material he submitted for the tenure review. In response to an inquiry from us, he reported that the manuscript and the dissertation were, in his own words, ‘two very different projects which share the same empirical base.’
      “The manuscript has not been published in either form, and this weighed heavily in our deliberations. But the lack of a published manuscript was not decisive. All of us agree the manuscript as it now stands needs revisions, and, with one exception, we believe it is in need of major substantive changes before it can be considered a completed, major project of research and writing, even if published in its current draft. Essentially, the project remains unfinished. Let me elaborate.
      “In his manuscript, Tony undertook a case study of managed capitalism, using France and the French steel industry as his focal point. Case studies of this kind are widely accepted and widely employed in political science. The best case studies go beyond the mere descriptive, or the mere telling of a story. The best are rooted in the literature and are used to confirm, dispute and refine general propositions, and on occasion to generate new ones. In our judgment, Tony’s manuscript does not measure up to what is expected of such a study.
      * * *
      “Nor, in our judgment, has Tony produced a series of related articles that would constitute a major project of research and writing.”

       The Blue Book states in relevant part: “These general University criteria [i.e., teaching, scholarship and colleagueship] are meant to be interpreted by departments and programs in the specific terms appropriate to their fields and disciplines. Such interpretations, which may be in writing, should be communicated by department and program chairs both to faculty members when hired and to the administration.”

       It is important to note that the plaintiff never filed a motion for permission to file a second amended complaint. During a trial, whenever a disparity develops between a party’s allegations and the evidence that has been admitted, it is that party’s responsibility to file a motion for permission to amend its pleadings, and then, if permission is granted, to amend its pleadings so that they conform to the evidence. See Strimiska v. Yates, 158 Conn. 179, 185, 257 A.2d 814 (1969).

       On at least, one occasion, the court asked the plaintiff, ‘'What did I do with this complaint, this broad, broad, broad complaint?”

       “Ignore” is defined as “to refuse to take notice of.” Merriam-Webster’s Collegiate Dictionary (10th Ed. 1999).

       See footnote 3.

       The Blue Book states in relevant part: “Faculty Salaries
      “(1) In recruiting faculty, the Chair makes recommendations to the President;
      “(2) The Chair also makes recommendations to the President on merit increases for continuing faculty . . . .”

       See footnote 3.

       The plaintiff did not argue that the implied covenant of good faith and fair dealing provides greater protection than that afforded him under the arbitrary, capricious or bad faith standard previously discussed. Therefore, we assume that the implied covenant provides protection less than or equal to that afforded him under the arbitrary, capricious or bad faith standard. See Gupta v. New Britain General Hospital, supra, 239 Conn. 598. Consequently, the plaintiffs breach of the implied covenant claim is either subsumed by or coterminous with his breach of contract claims. In either case, it no longer is relevant to our analysis.

       “Bad faith means more than mere negligence; it involves a dishonest purpose.” (Internal quotation marks omitted.) Gupta v. New Britain General Hospital, supra, 239 Conn. 598.

       As previously stated, all nine letters of appraisal were admitted into evidence, as was the tenured faculty’s letter to the vice president for academic affairs.