text:
    ADELE EBERHARDT v. IMPERIAL CONSTRUCTION SERVICES, LLC
    (AC 27380)
    Flynn, C. J., and McLachlan and Peters, Js.
    Argued March 21
    officially released June 19, 2007

      Barry T. Pontolillo, for the appellant (defendant).

      Vincent T. McManus, Jr., for the appellee (plaintiff).
   Opinion

PETERS, J.

“[T]o establish title by adverse possession, the claimant must oust an owner of possession and keep such owner out without interruption for fifteen years by an open, visible and exclusive possession under a claim of right with the intent to use the property as his [or her] own and without the consent of the owner.” (Internal quotation marks omitted.) Alexson v. Foss, 276 Conn. 599, 614 n.13, 887 A.2d 872 (2006); General Statutes § 52-575. The dispositive issue in this appeal is whether, as the trial court found, the claimant satisfied her burden of proving, by clear and positive proof, that she had occupied the property at issue under a claim of right. Because we are persuaded that the court’s finding was not clearly erroneous, we affirm the judgment in favor of the claimant.

In an amended one count complaint filed February 16, 2005, the plaintiff, Adele Eberhardt, sought a judgment declaring that she was the owner of three parcels of adjoining property in a Meriden subdivision that abutted land to which she had acquired title in 1966. The defendant, Imperial Construction Services, LLC, denied the allegations in the complaint and filed a special defense in which it alleged that the plaintiff had used the disputed property in accordance with an oral license agreement, recently withdrawn, that had been granted to her by the defendant’s predecessor in title. After a court trial, the court found that, by clear and positive proof, the plaintiff had proven the elements of adverse possession with respect to one of the parcels in dispute and rendered judgment accordingly. The defendant has appealed.

In its careful and extensive memorandum of decision, the trial court made the following largely undisputed findings of fact. On or about July 27, 1966, the plaintiff and her husband, Harry Eberhardt, contracted with Joseph Carabetta, a principal in Carabetta Brothers, Inc., for the construction of a house at Country View Heights in Meriden. Country View Heights was a subdivision owned by Meadow Haven, Inc. (Meadow Haven), a Connecticut corporation. Carabetta was the treasurer and chief executive officer of Meadow Haven and, at all times relevant to this case, was acting on behalf of Meadow Haven.

Although the plaintiff allegedly complained about the shape of the lot that she had acquired from Meadow Haven, Carabetta denied that there was any conversation about adding any property to the northeast side of lot 7 that she had purchased. The deed conveyed only lot 7 to the plaintiff.

Six years later, in 1972, Meadow Haven obtained approval for a resubdivision map known as Country View Heights Section II. The southwest boundary of one of the new lots, designated lot H.O. #23, is the entire northeast boundary of lot 7 purchased by the plaintiff in 1966.

In early 1972, at the request of the plaintiffs husband, a substantial chain-link fence, approximately 800 feet long and five feet high, was installed by Carabetta’s brother, who also was connected to Meadow Haven. This fence enclosed not only the entire backyard of the plaintiffs lot but also enclosed the parcel, now denominated parcel C, that is a substantial portion of the adjacent lot, lot H.O. #23. Parcel C is the property that the plaintiff claims to have acquired by adverse possession.

The installation of the fence made the area, comprised of the plaintiffs backyard and parcel C, inaccessible except through the gate that was located in the fence near the plaintiffs garage. Thereafter the plaintiff utilized and maintained parcel C in connection with the use of her backyard as would any property owner with a large backyard, particularly one where the rear portion was wooded, as was parcel C. The plaintiff extended her lawn approximately thirty feet onto parcel C, built a gazebo, planted flowers and shrubs, constructed a dog kennel with a cement floor, dug a 230 foot deep well in 1988, landscaped the area along the fence with rhododendron bushes and pine trees and regularly picked up fallen trees and other debris within parcel C. Since 1972, when the fence was installed, and continuing to the present, the plaintiff and her husband have had sole possession and use of parcel C to the exclusion of all others.

In early 2001, as a result of Meadow Haven’s bankruptcy, lot H.O. #23 was acquired by 23 Shaker Court, LLC (Shaker Court). A representative of Shaker Court placed survey stakes along the common boundary between that lot and the plaintiffs property. After the plaintiff noticed the survey stakes, her attorney wrote to inform Shaker Court that it was trespassing.

Thereafter, the defendant, having purchased H.O. #23 from Shaker Court, wrote a letter to the plaintiff on August 14, 2002, to inform her of its ownership of the property. The letter asked the plaintiff to remove the fence that had been placed on the property “under a license agreement with a former owner, Meadow Haven, Inc.” The plaintiff responded by filing the present declaratory judgment action.

At trial, although the defendant disputed whether the plaintiff had been in continuous, uninterrupted, open and notorious possession of parcel C for more than fifteen years, it principally relied on its special defense, namely, its claim that the plaintiffs possession was not “under a claim of right” because Carabetta had put up the fence to be “neighborly.” According to the defendant, in order to accommodate the plaintiffs request for a play area and a dog run, Carabetta had granted her an oral license to use the lot. Such an oral license is revocable and, according to the defendant, was withdrawn by its August 14, 2002 letter. In further support of its special defense, the defendant noted that record title to parcel C had continued uninterrupted during the period of the plaintiffs possession, that the plaintiff had never given anyone notice of her claimed right to parcel C and that neither the plaintiff nor her husband had ever paid any real property taxes on parcel C.

The court ruled against the defendant’s special defense because of testimony by Carabetta about the circumstances under which the fence was built. Carabe-tta testified that, until the property was surveyed by his own surveyor in 2001, Meadow Haven was unaware of where the plaintiffs fence had been located in 1972. Although the fence had been intended to have been placed on the boundary between the plaintiffs lot 7 and the abutting land owned by Meadow Haven, it inadvertently had been wrongly located to include parcel C. As the court expressly found, this testimony, which it found credible, entirely destroyed the factual predicate for the defendant’s claim that the location of the fence resulted from Carabetta’s grant of an oral license to the plaintiff.

In its appeal, the defendant does not challenge the sufficiency of the evidence to support this crucial finding by the court with regard to its special defense. It argues, instead, that it was clearly erroneous for the court to find that the plaintiff had satisfied her own affirmative burden of establishing, by clear and convincing proof, that her possession of parcel C was under a claim of right. In the defendant’s view, the plaintiff was required to document “open, visible or hostile acts” on her own part, or that of her husband, “to actively exclude” the defendant or its predecessors in title from parcel C. We are not persuaded.

A finding of “[a]dverse possession is not to be made out by inference, but by clear and positive proof. . . . [C]lear and convincing proof denotes a degree of belief that lies between the belief that is required to find the truth or existence of the [fact in issue] in an ordinary civil action and the belief that is required to find guilt in a criminal prosecution. . . . [The burden] is sustained if evidence induces in the mind of the trier a reasonable belief that the facts asserted are highly probably true, that the probability that they are true or exist is substantially greater than the probability that they are false or do not exist.” (Internal quotation marks omitted; citations omitted.) Wildwood Associates, Ltd. v. Esposito, 211 Conn. 36, 42, 557 A.2d 1241 (1989). The burden of proof is on the party claiming adverse possession. Top of the Town, LLC v. Somers Sportsmen’s Assn., Inc., 69 Conn. App. 839, 844, 797 A.2d 18, cert. denied, 261 Conn. 916, 806 A.2d 1058 (2002). Despite that exacting standard, our scope of review is limited. “Adverse possession is a question of fact, and when found by the trial court will not be reviewed by this court as a conclusion from evidential facts, unless it appears that these facts, or some of them, are legally or logically necessarily inconsistent with that conclusion.” (Internal quotation marks omitted.) Wildwood Associates, Ltd. v. Esposito, supra, 43.

As the trial court accurately observed, “[a] ‘claim of right’ does not necessarily mean that the adverse possessor claims that it is the proper titleholder, but that it has the intent to disregard the true owner’s right to possession. Horowitz v. F. E. Spencer Co., 132 Conn. 373, 378, 44 A.2d 702 (1945); Mentz v. Greenwich, 118 Conn. 137, 146, 171 A. 10 (1934).” We note that the defendant did not ask the court to articulate the manner in which the evidence produced by the plaintiff in this case demonstrated that she had the requisite intent. See Practice Book § 66-5.

Relying on our holding in Top of the Town, LLC v. Somers Sportsmen’s Assn., Inc., supra, 69 Conn. App. 843, the defendant argues that the plaintiff could not prove “a claim of right” without producing some evidence to establish when she conducted herself so as to manifest her intent to dispossess Meadow Haven from parcel C. In the defendant’s view, the plaintiff had to demonstrate that she or her husband had taken overt steps “to actively exclude” the defendant or its predecessors in title from this parcel. In Top of the Town, LLC, however, the claimant’s possession of the disputed property originally had taken the form of a license so that the claimant was required to establish when and how its occupation of the property had been “converted” to a claim of right. Id., 845. The fact that, in this case, the court found that the plaintiff never occupied parcel C pursuant to a license means that Top of the Town, LLC, is not controlling.

The defendant also relies on Rudder v. Mamanasco Lake Park Assn., Inc., 93 Conn. App. 759, 783-85, 890 A.2d 645 (2006), for the proposition that the plaintiff failed to prove an unequivocal intent to dispossess the defendant from parcel C. In Rudder, this court affirmed the trial court’s finding that the plaintiff in that case had not proven the elements of adverse possession because the plaintiffs possession was not unequivocal. Id. The defendant argues that the factual similarities between Rudder and the present case require us to reverse the court’s finding of adverse possession. Even if we were to accept the defendant’s contention that the facts in Rudder are analogous to the present case, we fail to see how this court’s affirmance of factual findings in Rudder would require us to decide, in this case, that the court’s findings were clearly erroneous. To the contrary, we are reminded that adverse possession is a finding of fact by which we are bound if the finding is supported by sufficient evidence. Id., 779.

The court’s findings establish, and the defendant does not dispute, that the significant improvements that the plaintiff made on parcel C were visible to anyone who cared to look. The limited access to parcel C, which required entry near the plaintiff’s garage, supports the court’s finding that the plaintiff occupied parcel C to the exclusion of all others. In every visible respect, therefore, the plaintiff manifested her unequivocal intent “to use the property as her own and without the consent of the owner.” 1525 Highland Associates, LLC v. Fohl, 62 Conn. App. 612, 622, 772 A.2d 1128, cert. denied, 256 Conn. 919, 774 A.2d 137 (2001). We agree with the trial court that no greater showing was required.

Consequently, in light of the totality of the record and the findings in this case, especially the court’s finding that Carabetta credibly testified about the circumstances surrounding the erection of the fence encompassing parcel C, we conclude that it was not clearly erroneous for the court to find that “[t]he plaintiff has proven by clear and positive proof all of the elements of adverse possession with respect to parcel C, as it is described on Exhibit 2, a boundary survey of the property of the plaintiff, Adele G. Eberhardt, at 100 Sandy Lane, Meriden, Connecticut, prepared by Jeffrey A. Sanborn, L.S. on May 16, 2001.”

The defendant’s argument to the contrary is unavailing.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 52-575 (a) provides in relevant part: “No person shall make entry into any lands or tenements but within fifteen years next after his right or title to the same first descends or accrues or within fifteen years next after such person or persons have been ousted from possession of such land or tenements . . . .”

       Although she did not allege it as a distinct count, the plaintiff claimed at trial that the defendant had promised a conveyance of additional property at some future time subsequent to her initial purchase of her lot. The court found against the plaintiff on this claim. Because neither party has challenged this part of the court’s decision, we decline to review it further.

       The trial court’s holding with respect to two other parcels, denominated parcels B and D, has not been appealed. We, therefore, consider only the parties’ rights with respect to parcel C.

       The property to the northeast of the plaintiffs lot was owned at that time by Carabetta’s brother, Donald Logodicio. By 1972, this property had been acquired by Meadow Haven.

       We note several factual differences between the claimed possession of land in Rudder v. Mamanasco Lake Park Assn., Inc., supra, 93 Conn. App. 759, and the possession of parcel C in the present case.
      We first note that the plaintiff in Rudder did not enclose its property, to the exclusion of all others, with a fence. Id., 785. In this case, the court specifically found that the plaintiffs fence completely enclosed her backyard and that the only method of entrance was through a gate near her garage. We also deem it noteworthy that the court in Rudder found that the plaintiff had used the parcel at issue with permission; id., 783; which is in stark contrast with the court’s finding in this case that the plaintiff had not used the property pursuant to an oral license and therefore without permission.


source: Caselaw Access Project

author: BISHOP, J.

license: Public Domain

text:
    STATE OF CONNECTICUT v. STEVEN S.

    (AC 27185)
    Bishop, Gruendel and Lavine, Js.

      Argued March 23
    officially released June 19, 2007

      Michael Zariphes, special public defender, for the appellant (defendant).

      Lisa A. Riggione, senior assistant state’s attorney, with whom, on the brief, was Matthew C. Gedansky, state’s attorney, for the appellee (state).

       In accordance with our policy of protecting the privacy interests of the victims of the crime of risk of injury to a child, we decline to identify the victim or others through whom the victim’s identity may be ascertained. See General Statutes § 54-86e.

   Opinion

BISHOP, J.

The defendant, Steven S., appeals from the judgment of conviction rendered by the trial court following the denial of his motions to withdraw his guilty pleas. The defendant claims that the court (1) improperly denied his motions to withdraw his pleas because they were not entered into knowingly, intelligently and voluntarily, and (2) violated his due process rights in not apprising him of certain special conditions of probation at the time of his pleas. We affirm the judgment of the trial court.

The following factual and procedural background is relevant to the resolution of the defendant’s appeal. The defendant was charged in two informations with disorderly conduct and risk of injury to a child as a result of two incidents that occurred in April, 2004, namely, a domestic dispute with his wife and an incident in which he allegedly struck his son in the face. As a result, restraining orders and protective orders were imposed on the defendant forbidding physical or verbal contact with his wife or children. Within the next several months, the defendant was involved in several other cases relating to his wife and children. He was charged by way of twelve additional informations with, among other things, harassment, violation of a protective order and assault on public safety personnel.

The defendant, acting pro se and with standby counsel to assist him, negotiated a plea agreement that covered all fourteen informations. In sum, the agreement provided for the defendant to plead guilty to twelve charges in exchange for a term of eight years of incarceration, execution suspended after forty months, with four years of probation. Although there was no specific agreement as to any special conditions of probation concerning the defendant’s contact with his wife and children because there were still matters pending in the family and juvenile courts, the defendant was made aware that there would be special conditions imposed at sentencing relating to access to his children. The defendant pleaded guilty to the charges, and the court accepted the pleas.

On June 8, 2005, the defendant moved to withdraw his guilty pleas, claiming that they were not knowing, intelligent or voluntary. He claimed that the pleas were based on a belief that he would not be barred from contacting his children upon sentencing or expiration of the restraining order or during the period of his probation. The defendant also claimed that his pleas were based on a belief that the court-ordered evaluation to determine whether he would be serving his sentence at the Whiting Forensic Division of Connecticut Valley Hospital (Whiting) in Middletown or in prison would be conducted within fifteen days of the evaluation order, as required by General Statutes § 17a-566.

On August 4, 2005, a hearing was held on the defendant’s motion to withdraw his guilty pleas. At the hearing, the motion was orally modified to reference the docket numbers of all of the charges to which the defendant had pleaded guilty and to add the claim that he was under the influence of medication at the time the pleas were made and, therefore, that they were not knowing, voluntary or intelligent. On that same date, the motion was denied. The defendant then, on August 26, 2005, filed a written motion incorporating the previous oral modifications that were made during the August 4, 2005 hearing. That motion was also denied.

Following the court’s denial of these motions, the defendant was sentenced to the agreed upon term. As part of the sentence, the court imposed special conditions of probation that, among other things, limited the defendant’s contact with his children. The court stated that the defendant should not have “any contact with [his] children beyond the contact that would be allowed by [the department of children and families] and the Juvenile Court.” This appeal ensued.

As a preliminary matter, we identify the legal principles and the standard of review germane to our discussion. “Practice Book § [39-27] specifies circumstances under which a defendant may withdraw a guilty plea after it has been entered. [0]nce entered, a guilty plea cannot be withdrawn except by leave of the court, within its sound discretion, and a denial thereof is reversible only if it appears that there has been an abuse of discretion. . . . The burden is always on the defendant to show a plausible reason for the withdrawal of a plea of guilty.” (Internal quotation marks omitted.) State v. Sutton, 95 Conn. App. 139, 145, 895 A.2d 805, cert. denied, 278 Conn. 920, 901 A.2d 45 (2006).

“[I]t is axiomatic that unless a plea of guilty is made knowingly and voluntarily, it has been obtained in violation of due process and is therefore voidable. ... A plea of guilty is, in effect, a conviction, the equivalent of a guilty verdict by a jury. ... In choosing to plead guilty, the defendant is waiving several constitutional rights, including his privilege against self-incrimination, his right to trial by juiy, and his right to confront his accusers. . . . The . . . constitutional essentials for the acceptance of a plea of guilty are included in our rules and are reflected in Practice Book §§ [39-19 and 39-20]. . . . The failure to inform a defendant as to all possible indirect and collateral consequences does not render a plea unintelligent or involuntary in a constitutional sense.” (Internal quotation marks omitted.) State v. Reid, 277 Conn. 764, 780, 894 A.2d 963 (2006).

“In order for a plea to be valid, the record must affirmatively disclose that the defendant understands the nature of the charge upon which the plea is entered . . . the mandatoiy minimum sentence, if any . . . the fact that a statute does not permit the sentence to be suspended . . . the maximum possible sentence . . . and that the defendant has the right to plead not guilty or to persist in that plea if already made, the right to a trial by a jury or judge, the right to assistance of counsel, the right to confront the defendant’s accusers and the right against compelled self-incrimination. . . . The record must further disclose that the plea is voluntary and not the result of threats or promises.” (Internal quotation marks omitted.) State v. Samuel, 94 Conn. App. 715, 718-19, 894 A.2d 363, cert. denied, 278 Conn. 911, 899 A.2d 39 (2006). With the foregoing in mind, we now turn to the defendant’s specific claims.

I

The defendant first claims that the court abused its discretion in denying his motions to withdraw the guilty pleas because they were not knowing, intelligent and voluntary. Specifically, the defendant alleges that (1) he was impaired by medication at the time he entered the pleas, (2) the pleas were based on a belief that the court-ordered evaluation would be conducted within fifteen days of the evaluation order as required by § 17a-566, and (3) he was unfamiliar with the potential impact of pending civil and juvenile matters on his ability to have unrestricted contact with his children once he was released.

A

The defendant first claims that his pleas were not knowing, intelligent and voluntary because when he entered them, he was under the influence of Seroquel, a prescription medication that he alleges impaired his vision and decision-making ability and caused him to act impulsively.

During the plea canvass, the defendant indicated that he had taken the medication that day, that his head was clear and that he understood everything that was taking place. In moving to withdraw his pleas, the defendant claimed that the Seroquel made him drowsy and disoriented, that he was sound asleep during the plea canvass and that a physician had informed him that the medication would cause him to make irrational decisions. In support of his claim that the Seroquel affected his pleas, the defendant offered the testimony of Eleanor Fritz, a nurse practitioner. Fritz explained that Sero-quel is used to attempt to help people organize their thoughts to promote more efficient thinking, to slow the speed of their thought and to stop the pressure of speech “so that they can make more reasonable decisions . . . and be better able to problem solve and control their behaviors.” Fritz testified that although she did not recall the defendant’s specific dosage, she likely prescribed the lowest proven effective dosage of 100 milligrams. She further testified that she evaluates the drug’s effect on patients, and, in the defendant’s case, she did not change the dosage.

The court found that Fritz’ testimony did not support the defendant’s claim that the Seroquel rendered his pleas unknowing and involuntary. Rather, her testimony indicated that the Seroquel was prescribed to help organize thoughts and to slow the thought process to improve problem solving and to control behavior. Consistent with Fritz’ testimony, the court found that the defendant was totally engaged during the one hour and forty minute plea canvass, that he answered all of the court’s questions and that there was no evidence to support the assertion that the defendant was unable to control his impulses on the day that he entered his pleas. The court noted that it had had a long time to observe the defendant during the lengthy canvass, that he was clearheaded and did not appear to be acting impulsively, and that he corrected the state and the court more than once “when there were things incorrectly stated” and chose the counts to which he would enter straight guilty pleas and those to which he would enter Alford pleas. On the basis of the foregoing, the record supports the court’s determination that the defendant failed to demonstrate that the medication rendered his pleas unknowing and involuntary.

B

The defendant next claims that his pleas were invalid because although he believed that he would be examined pursuant to § 17a-566 and a report would be completed within fifteen days, the report was not completed within that time period. We disagree.

On May 26, 2005, the defendant entered his guilty pleas, and the court ordered that he be evaluated under § 17a-566 to determine whether Whiting was an appropriate setting for him to serve his sentence. Although the plea agreement included a promise that the defendant would be evaluated under § 17a-566, the record does not disclose any other promises pertaining to the evaluation. On June 14, 2005, the cases were docketed at the court’s request to address the time limitations to complete the report within the time period prescribed by § 17a-566. The court indicated that the examiners were seeking a fifteen day extension to complete the report and gave the defendant the option, if he wanted to pursue the evaluation, either to have the court reorder the examination or agree to waive the fifteen day period imposed by § 17a-566. In order to keep open the possibility of placement at Whiting, the defendant agreed to a fifteen day extension and waived the requirement that a report be filed within fifteen days of the order.

Prior to deciding to waive the time period, the defendant and the court had discussed his options, and the defendant articulated his concerns. The record shows that the defendant knew that he could refuse to agree to the extension but that he decided that waiving the time limit would benefit him. The defendant lost nothing by completing the evaluation because it would leave open the possibility that he would be sentenced to Whiting. If he did not agree to the extension, he would be foreclosed from that possibility unless it was reordered by the court. Additionally, the public defender’s office had hired a private psychologist to examine the defendant, and the evaluation had not been completed at that time. The defendant himself sought an extension to finish that evaluation. On the basis of the foregoing waiver, this claim must fail.

C

The defendant next claims that his pleas were not knowing, intelligent and voluntary because he did not understand that he could be precluded from seeing his children on the basis of the pending civil and juvenile matters even though his access was not being restricted by his plea agreement. The record belies this claim.

In ruling on the motions to withdraw the guilty pleas, the court found that at the time of his pleas, the defendant was told that the protective orders would end at sentencing and that although the restraining orders expired six months after issuance by operation of law, they could be extended by the family or civil court after the criminal case is finished. The court noted that in all of the conversations it had observed, including those on the record, the state had clearly indicated to the defendant that it could not guarantee that he would see his children because although the protective order would end at sentencing, the rest would be resolved in family court.

When the defendant pleaded guilty on May 26, 2005, the state summarized the special conditions of probation that were part of the plea agreement as follows: “[The defendant] is going through a custody hearing down in Waterford at Juvenile Court there. Presently, he is barred from having any contact with any of the children. We need language as a condition of his probation that’s going to deal with whether he is going to be allowed to have contact with his children and that is similar to his wife. Presently, there are restraining orders that bar him from contact. Those restraining orders have a lifetime. The last one was renewed for a six month period. Whether that gets renewed or not is another story. So, we need some language dealing with that. And then, finally, we need some language dealing with the defendant’s ability to be on school grounds where his children are going to be going to school, and I suppose some of that will have to do with whatever language we put in about his children.”

Subsequently, the court thoroughly canvassed the defendant, and at no time during the canvass did he question the state’s recitation of the anticipated special conditions of probation. Because the defendant was apprised of the possibility that his access to his children would be affected by the proceedings in the family courts, his claim that he was unaware of such a possibility lacks merit.

II

The defendant next claims that the court imposed a special condition of probation that restricted his contact with his children, which was not part of the plea agreements, and that he therefore was denied due process of law. We disagree.

This is not a case in which the defendant was not informed of the possibility of the imposition of a condition of probation that might affect his access to his children. Indeed, at the plea hearing, as indicated previously, the state indicated that there would need to be a condition of the defendant’s probation regarding contact with his wife and children but that that condition had not yet been worked out. The court thoroughly canvassed the defendant and confirmed that some of the conditions of probation were “to be worked out and others will be agreed upon.” The defendant agreed to these terms and entered his guilty pleas, leaving the special conditions of probation open to be determined at a later date.

On appeal, the defendant relies on statements made by the court on a date subsequent to the plea hearing but before sentencing in claiming that he was told that his probation would not address his contact with his children. Although we acknowledge that the court did make such representations, because they were made subsequent to the pleas, it cannot be said that these representations induced the defendant to plead guilty. In fact, the conditions of probation imposed at sentencing flowed directly from the representations made at the plea hearing. Thus, the defendant was aware of the possibility that such conditions might be imposed at the time he entered the plea agreements. Accordingly, the defendant was not denied due process as a result of the imposition of the special conditions. On the basis of the foregoing, we conclude that the court did not abuse its discretion by denying the defendant’s motions to withdraw his pleas.

The judgment is affirmed.

In this opinion the other judges concurred.

       The defendant pleaded guilty under the Alford doctrine to some of the charges; see North Carolina v. Alford, 400 U.S. 25, 91 S. Ct. 160, 27 L. Ed. 2d 162 (1970); and entered straight guilty pleas to the other charges.

       General Statutes § 17a-566 (a) provides in relevant part: “Except as provided in section 17a-574 any court prior to sentencing a person convicted of an offense for which the penally may be imprisonment in the Connecticut Correctional Institution at Somers, or of a sex offense involving (1) physical force or violence, (2) disparity of age between an adult and a minor or (3) a sexual act of a compulsive or repetitive nature, may if it appears to the court that such person has psychiatric disabilities and is dangerous to himself or others, upon its own motion or upon request of any of the persons enumerated in subsection (b) of this section and a subsequent finding that such request is justified, order the commissioner to conduct an examination of the convicted defendant by qualified personnel of the division. Upon completion of such examination the examiner shall report in writing to the court. Such report shall indicate whether the convicted defendant should be committed to the diagnostic unit of the division for additional examination or should be sentenced in accordance with the conviction. Such examination shall be conducted and the report made to the court not later than fifteen days after the order for the examination. . . .”

         Although the defendant was evaluated within the fifteen day period, on June 8, 2005, further evaluation was deemed necessary because he had a limited history of formal psychiatric treatment.


author: GRUENDEL, J.

text:
    LAW OFFICES OF NEIL JOHNSON v. ADMINISTRATOR, UNEMPLOYMENT COMPENSATION ACT, ET AL.
    (AC 27506)
    Bishop, Gruendel and Lavine, Js.

      Argued March 23
    officially released June 19, 2007

      Neil Johnson, for the appellant (plaintiff).

      Richard T. Sponzo, assistant attorney general, with whom, on the brief, were Richard Blumenthal, attorney general, and William J. McCullough, assistant attorney general, for the appellee (named defendant).
   Opinion

GRUENDEL, J.

The plaintiff, the Law Offices of Neil Johnson, appeals from the judgment of the trial court dismissing its appeal from the decision of the employment security board of review (board). The board affirmed the decision of the defendant administrator of the Unemployment Compensation Act, General Statutes § 31-222 etseq., finding the plaintiff liable for unemployment contributions regarding Dorothy V. Parsons, its former employee. On appeal, the plaintiff contends that (1) our rules of practice required the board to provide the plaintiff a certified copy of the administrative record, (2) the court improperly acted on the defendant’s motion for judgment and (3) the court improperly concluded that Parsons was eligible for unemployment benefits. He also alleges a due process violation. We affirm the judgment of the trial court.

The relevant facts are as follows. The plaintiff hired Parsons as a paralegal in November, 1999. At that time, Parsons asked to be paid each Friday for that week’s work. Although the plaintiff paid its other employees for work performed in the preceding week, it agreed to Parson’s request. That compensation arrangement continued over the next four years. It ended in the summer of 2004.

The employment security appeals referee (referee) made the following findings of fact in its written decision: “In late June or early July, 2004, the [plaintiffs] bookkeeper advised [the plaintiff] to put [Parsons] on the same pay schedule as the other employees. . . . On July 6, 2004, the [plaintiff] asked [Parsons] to sign a document acknowledging the [plaintiffs] right to change her paycheck schedule to coincide with that of the other employees and to authorize the [plaintiff] to begin paying her one week behind, effective August 2, 2004. The document specified that [Parsons] would therefore not receive a paycheck on August 2, 2004. [Parsons] did not sign the authorization and indicated to the [plaintiff] that it would cause a problem with her finances. [Parsons] advised the [plaintiff] that she would think about it. ... As of Friday, July 15, 2004, [Parsons] had not signed the authorization form because her condominium fees were coming due and it would have caused her financial hardship to have a week with no income. ... On Friday, July 15, 2004, the [plaintiff] did not pay [Parsons] her weekly wages. . . . On July 19, 2004, [Parsons] resigned. After resigning, [she] received the check for the week of July 15, 2004, in the mail.”

Parsons subsequently filed a claim for unemployment benefits, which the defendant granted. The plaintiff appealed the matter to the referee, who heard Parsons’ claim de novo and affirmed the defendant’s determination. The plaintiff then appealed that determination to the board. In its October 26, 2005 memorandum of decision, the board stated: “The record discloses that, at the time of hire, [Parsons] specifically negotiated for the [plaintiff] to pay her at the end of a work week, rather than the following week, which was the [plaintiffs] usual practice. Thus . . . the [plaintiff] substantially changed the working conditions when it announced that [Parsons] would now have to wait until the week following a week of work to get paid for that week. Thus, we concur in the referee’s conclusion that [Parsons] had good cause attributable to the [plaintiff] to leave the job. We find that the parties have not offered any argument in support or in opposition to the appeal which would disturb the referee’s findings of fact. We further find that the findings are supported by the record and that the conclusion reached by the referee is consistent with those findings and the provisions of the Connecticut Unemployment Compensation Act. Accordingly, we adopt the referee’s findings of fact and decision.”

From that judgment, the plaintiff appealed to the Superior Court on December 2, 2005. On February 3, 2006, the defendant filed a motion for judgment that sought the dismissal of the plaintiffs appeal. In response, the plaintiff filed an objection, which the court expressly considered and overruled. On February 16, 2006, the plaintiff filed a “motion for default and/or order,” complaining that the defendant failed to comply with Practice Book § 10-12 by not providing it a certified copy of the record. On February 22, 2006, the court granted the defendant’s motion for judgment, dismissing the plaintiffs appeal. The plaintiff filed a motion to reargue on March 3, 2006. In denying reargument, the court stated that it “fully considered the [plaintiffs] arguments as stated in its objection before ruling on the [defendant’s] motion for judgment.”

The plaintiff thereafter requested an articulation of the court’s judgment, which the court granted. In its articulation, the court stated: “The court considered all of the [plaintiffs] arguments, as stated in its objection to the [defendant’s] motion for judgment, and resolved them as follows: (1) The [defendant’s] motion for judgment and its supporting memorandum of law were filed two months after a certified copy of the record had been filed with the court. In that time period, the [plaintiff] had not claimed the case for the short calendar or taken any other action regarding the appeal such as moving to correct a finding of the board within two weeks of the filing of the record, as required by Practice Book § 22-4. The motion for judgment substantially complied with Practice Book § 22-2 (b) and, along with its supporting memorandum of law, provided the [plaintiff] with adequate notice of the grounds of the motion so that the [plaintiff] could respond in a meaningful way . . . and the court could address the issues raised on this limited statutory appeal from the decision of the board .... No rights of the [plaintiff] were violated by the [defendant’s] motion for judgment. (2) The [plaintiff] received adequate notice of the issues to be heard and decided by the referee and the board . . . and none of the procedures employed by the referee or the board in hearing and deciding the claim made by [Parsons] violated any of the [plaintiffs] constitutional rights. (3) The board’s findings of fact were supported by evidence in the record, and its conclusions were not arbitrary, unreasonable or illegal, nor did they result from a misapplication of the applicable law to the facts found. (4) No provision of the General Statutes or the Practice Book requires that a copy of the record be provided to the [plaintiff]. The only requirement is that the board, not the [defendant], certify a copy of the record of proceedings before it to the court; General Statutes § 31-249b; Practice Book § 22-1 (b); and the board complied with that requirement on December 2, 2005. After that date the record was available to the [plaintiff] for all purposes, including the filing of a motion to correct the record, if necessary, within two weeks of the filing of the record with the court.” This appeal followed.

I

We address first the plaintiffs claim that our rules of practice required the board to provide the plaintiff a certified copy of the administrative record. Our review of that claim is plenary. See Travelers Property & Casualty Co. v. Christie, 99 Conn. App. 747, 757, 916 A.2d 114 (2007).

Practice Book § 10-12 requires counsel in civil actions to serve on each other party who has appeared copies of pleadings, written motions and papers relating to discovery, request, demand, claim, notice or similar paper. See footnote 2. Reasoning that the present appeal is a civil action, the plaintiff insists that Practice Book § 10-12 required the board to provide it a copy of the administrative record. We do not agree. Significantly, the board is not a party to this appeal. Although the board may intervene in such proceedings pursuant to General Statutes § 31-249c, it did not do so in this case. As such, Practice Book § 10-12 is inapplicable.

Chapter 22 of our rules of practice governs unemployment compensation proceedings in the Superior Court. Upon the commencement of an appeal therein, Practice Book § 22-1 (b), which mirrors General Statutes § 31-249b, requires that “the chair of the board shall cause to be mailed to the clerk a certified copy of the record, which shall consist of the notice of appeal to the referee and the board, the notices of hearing before them, the referee’s findings of fact and decision, the findings and decision of the board, all documents admitted into evidence before the referee and the board or both, and all other evidentiary material accepted by them.” Nothing in the General Statutes or our rules of practice requires the board to furnish a copy of that record to the plaintiff.

General Statutes § 31-237g provides in relevant part that “[t]he board shall adopt regulations . . . concerning the rules of procedure for the hearing and disposition of appeals under the provisions of this chapter. . . .” Section 31-237g-51 of the Regulations of Connecticut State Agencies requires the board to certify the administrative record in a given matter to the Superior Court. It further requires the board to deliver a written notice of certification to the parties, attorneys and authorized agents of record. The plaintiff received such notice in the present case. It was free, therefore, either to review the certified administrative record or to obtain a copy thereof. It opted not to do so.

In essence, the plaintiff asks us to rewrite the aforementioned regulation and Practice Book § 22-1. We decline that invitation. To the contrary, we conclude that the board was not required to provide the plaintiff with a copy of the certified administrative record.

II

We next consider the procedural vehicle employed by the defendant in the present case. Two months after the administrative record was certified, the defendant filed a motion for judgment that sought the dismissal of the plaintiffs appeal. The plaintiff contends that that motion is improper in the context of unemployment compensation appeals. Our review of that question of law is plenary. See Dept. of Social Services v. Saunders, 247 Conn. 686, 696, 724 A.2d 1093 (1999).

The administrative record was certified to the Superior Court on December 2, 2005. Practice Book § 22-2 provides: “(a) Appeals from decisions of the employment security board of review are privileged with respect to their assignment for trial, but they shall be claimed for the short calendar. The judicial authority, however, may order the appeal placed on the administrative appeal trial list, (b) In any appeal in which one of the parties is not represented by counsel and in which the party taking the appeal does not claim the case for the short calendar or trial within a reasonable time after the return day, the judicial authority may of its own motion dismiss the appeal, or the party ready to proceed may move for nonsuit or default as appropriate.” Thus, the plaintiff was required to claim its appeal for the short calendar within a reasonable time.

Likewise, Practice Book § 22-4 specifies that amotion to correct a finding of the board must be filed within two weeks of the certification of the record. In the two weeks following certification, the plaintiff neither claimed the appeal for the short calendar nor moved to correct any of the board’s findings. In fact, more than two months passed without any action whatsoever by the plaintiff. On February 3, 2006, the defendant filed the motion for judgment. The motion maintained that because the board correctly determined that Parsons was eligible for unemployment benefits, the appeal should be dismissed. The issue before us is whether such a motion is permitted. We answer that question affirmatively.

Ordinarily, administrative appeals are subject to the pleading and filing requirements specified in Practice Book § 14-7 (a). Notably, Practice Book § 14-7 (b) excepts unemployment compensation appeals from those requirements, providing that “[a]ppeals from the employment security board of review shall follow the procedure set forth in chapter 22 of these rules.” Practice Book § 22-9, entitled “Function of the Court,” provides in relevant part that unemployment compensation appeals “are heard by the court upon the certified copy of the record filed by the board. The court does not retry the facts or hear evidence. It considers no evidence other than that certified to it by the board, and then for the limited purpose of determining whether the finding should be corrected, or whether there was any evidence to support in law the conclusions reached. It cannot review the conclusions of the board when these depend upon the weight of the evidence and the credibility of witnesses. In addition to rendering judgment on the appeal, the court may order the board to remand the case to a referee for any further proceedings deemed necessary by the court. . . .” (Emphasis added.) Practice Book § 22-9 (a). Plainly, then, the court’s primary function is rendering judgment on the appeal.

The plaintiff confuses the defendant’s motion for judgment with one for nonsuit or default due to the plaintiffs failure to claim the appeal for the short calendar. The defendant’s motion was neither. Rather, it was a motion for judgment on the merits, requesting the court to exercise its core function in unemployment compensation appeals. We see no good reason, nor has the plaintiff demonstrated any, why a party should not be permitted to claim an unemployment compensation appeal to the short calendar on the merits, when such adjudication is the ultimate task of the court. Indeed, this procedure is commonplace in Connecticut courts. Moreover, the court could not in the present case consider any evidence other than that certified to it by the board, as the two week period for filing a motion to correct contained in Practice Book § 22-4 had passed. We concur with the court’s observation that the defendant’s motion for judgment, along with its supporting memorandum of law, provided the plaintiff with adequate notice of the grounds of the motion so that the plaintiff could respond in a meaningful way. The court’s consideration of the defendant’s motion for judgment, therefore, was not improper.

Ill

The plaintiff also assails the court’s determination on the merits. He claims that the court improperly concluded that Parsons was eligible for unemployment benefits. “[R]eview of an administrative agency decision requires a court to determine whether there is substantial evidence in the administrative record to support the agency’s findings of basic fact and whether the conclusions drawn from those facts are reasonable. . . . Neither this court nor the trial court may retry the case or substitute its own judgment for that of the administrative agency on the weight of the evidence or questions of fact. . . . Our ultimate duty is to determine, in view of all of the evidence, whether the agency, in issuing its order, acted unreasonably, arbitrarily, illegally or in abuse of its discretion.” (Internal quotation marks omitted.) Reeder v. Administrator, Unemployment Compensation Act, 88 Conn. App. 556, 557-58, 869 A.2d 1288, cert. denied, 275 Conn. 918, 883 A.2d 1245 (2005).

The plaintiff does not quarrel with any of the factual findings made by the referee and adopted by the board. Rather, he claims that those facts do not support the conclusion that Parsons was eligible for unemployment benefits due to good cause attributable to the plaintiff. We disagree.

General Statutes § 31-236 (a) (2) (A) provides in relevant part that “no individual shall be ineligible for benefits if the individual leaves suitable work (i) for good cause attributable to the employer, including leaving as a result of changes in conditions created by the individual’s employer . . . .” Section 31-236-19 of the Regulations of Connecticut State Agencies, entitled “Good cause attributable to the employer,” states that “[i]n determining whether an individual’s reason for leaving suitable work is for good cause attributable to the employer, the [defendant] must find that the reason relates to wages, hours or working conditions which comprise the employment that the individual voluntarily left.” Section 31-236-20 of the Regulations of Connecticut State Agencies further requires, in determining that an individual voluntarily left suitable work for good cause attributable to the employer, that the defendant must find that the employer “breached the original employment agreement” and that the individual “expressed his dissatisfaction regarding wages to his employer and unsuccessfully sought a remedy through those means reasonably available to him before leaving his employment.”

In its October 26, 2005 memorandum of decision, the board stated: “The record discloses that, at the time of hire, [Parsons] specifically negotiated for the [plaintiff] to pay her at the end of a work week, rather than the following week, which was the [plaintiffs] usual practice. Thus . . . the [plaintiff] substantially changed the working conditions when it announced that [Parsons] would now have to wait until the week following a week of work to get paid for that week. Thus, we concur in the referee’s conclusion that [Parsons] had good cause attributable to the [plaintiff] to leave the job.”

The decision of the board, like that of the referee, was predicated on the plaintiffs breach of the employment agreement it negotiated with Parsons. Further, the board’s findings include the fact that Parsons declined to sign the authorization form prepared by the plaintiff. Parsons informed the plaintiff that the proposed change to the employment agreement “would cause a problem with her finances” on July 6, 2004. The board also found that, “[a]s of Friday, July 15, 2004, [Parsons] had not signed the authorization form because her condominium fees were coming due, and it would have caused her financial hardship to have a week with no income.” Parsons ultimately decided not to sign the authorization form; she resigned on July 19, 2004.

In light of the evidence contained in the certified administrative record, we conclude that the board did not act unreasonably, arbitrarily, illegally or in abuse of its discretion in concluding that Parsons was eligible for unemployment benefits. As such, the plaintiffs claim fails.

IV

The plaintiffs final claim is that the notice of the hearing before the referee violated its right to due process. That claim merits little discussion. The notice provided to the plaintiff stated in relevant part: “An appeal has been filed from a determination by the [defendant] on a claim for unemployment benefits. The appeal will be heard by the undersigned referee. . . . The hearing will cover the issue(s) and provisions of the law which appear on page two of this notice. ...” The second page of the notice stated: “[Section] 31-236 (a) (2) (A) of the General Statutes and §§ 31-236-17 through 31-236-23 of the Regulations of Connecticut State Agencies. Issue: Whether [Parsons] voluntarily left suitable work without good cause attributable to the [plaintiff], including leaving due to a change in the conditions of employment created by the [plaintiff].”

On appeal, the plaintiff alleges that it had no notice that whether Parsons voluntarily left work with good cause attributable to the plaintiff was an issue before the referee. The plaintiff states in its appellate brief that it “should not be held in a position to blindly enter a proceeding” unaware of the allegations asserted against it. We are mystified by that assertion. The notice that it challenges on appeal explicitly indicated that whether Parsons voluntarily left work with good cause attributable to the plaintiff was an issue to be decided by the referee. Accordingly, the plaintiff cannot, by any stretch of the imagination, maintain that the notice violated its right to due process.

Finally, we note that the plaintiff, in its reply brief, claims for the first time that “the Superior Court in this appeal further denied the plaintiff its due process rights by not even letting the plaintiff be heard on the merits of the appeal. It subjected the plaintiff to arbitrary rules and standards which not only do not exist as a matter of law, but were apparently created out of thin air so that only the [defendant] knows [what] the rules are, rather than the rules outlined by statute and Practice Book.” That two sentence paragraph is devoid of any analysis or citation to legal authority. Moreover, it is “a well established principle that arguments cannot be raised for the first time in a reply brief.” (Internal quotation marks omitted.) Willow Springs Condominium Assn., Inc. v. Seventh BRT Development Corp., 245 Conn. 1, 48 n.42, 717 A.2d 77 (1998). We therefore decline to review that claim.

The judgment is affirmed.

In this opinion the other judges concurred.

       Parsons was named as a defendant but is not a party to this appeal. We therefore refer to the administrator of the Unemployment Compensation Act as the defendant.

       Practice Book § 10-12 provides: “(a) It is the responsibility of counsel or a pro se party filing the same to serve on each other party who has appeared one copy of every pleading subsequent to the original complaint, every written motion other than one in which an order is sought ex parte and every paper relating to discovery, request, demand, claim, notice or similar paper. When a party is represented by an attorney, the service shall be made upon the attorney unless service upon the party is ordered by the judicial authority.
      “(b) It shall be the responsibility of counsel or a pro se party at the time of filing a motion for default for failure to appear to serve the party sought to be defaulted with a copy of the motion. Upon good cause shown, the judicial authority may dispense with this requirement when judgment is rendered.
      “(c) Any pleading asserting new or additional claims for relief against parties who have not appeared or who have been defaulted shall be served on such parties.”

       It is undisputed that the board did so on December 2, 2005.

       By contrast, Practice Book § 22-1 (a) specifically requires the board to provide copies of an appeal petition to the court and all parties.

       See, e.g., Dubois v. Administrator, Unemployment Compensation Act, Superior Court, judicial district of Waterbury, Docket No. CV-05-4008859-S (July 3, 2006); New Britain v. Administrator, Unemployment Compensation Act, Superior Court, judicial district of New Britain, Docket No. HHB-CV-05-4008872-S (June 20, 2006); Millard v. Administrator, Unemployment Compensation Act, Superior Court, judicial district of Fairfield, Docket No. CV-05-4007929-S (March 23, 2006); Bellocchio v. Administrator, Unemployment Compensation Act, Superior Court, judicial district of Fairfield, Docket No. CV-04-4003167-S (January 26, 2006); Figueroa v. Administrator, Unemployment Compensation Act, Superior Court, judicial district of Fairfield, Docket No. CV-05-4007979-S (January 19, 2006); Dagostino v. Administrator, Unemployment Compensation Act, Superior Court, judicial district of New Britain, Docket No. HHB-CV-05-4006352-S (September 26, 2005); Colonial BT, LLC v. Administrator, Unemployment Compensation Act, Superior Court, judicial district of Windham at Putnam, Docket No. CV-04-4000194S (July 27, 2005); Cramer v. Administrator, Unemployment Compensation Act, Superior Court, judicial district of Stamford-Norwalk, Docket No. CV-04-0199684-S (January 7, 2005).

       As noted in part n, the plaintiff did not file a motion to correct any finding of the board within two weeks of the certification of the record as required by Practice Book § 22-4. As a result, we cannot consider any evidence other than that certified by the board.

       The plaintiff claims that it thought the issue before the referee was whether a hostile work environment existed. The notice of the hearing before the referee contains no reference to a hostile work environment.


author: BISHOP, J. MCDONALD, J.,

text:
    EDUARDO MARTINEZ ET AL. v. SOUTHINGTON METAL FABRICATING COMPANY
    (AC 27201)
    Bishop, Rogers and McDonald, Js.
    Argued February 20
    officially released June 19, 2007

      Patrick Tomasiewicz, with whom, on the brief, was Jonathan A. Cantor, for the appellants (named plaintiff et al.).

      Lawrence L. Connelli, for the appellee (defendant).
   Opinion

BISHOP, J.

The plaintiff Eduardo Martinez appeals from the trial court’s determination that his complaint for damages resulting from a work-related injury was barred by General Statutes § 31-284, the exclusivity provision of the Workers’ Compensation Act (act), General Statutes § 31-275 et seq. On appeal, the plaintiff contends that the trial court improperly granted the defendant’s motion for summary judgment because his claim falls within an exception to the exclusivity statute for cases in which the employee can prove that the employer intentionally created a dangerous condition that made the plaintiffs injuries substantially certain to occur. We affirm the judgment of the trial court.

The plaintiff claims that he was injured on February 13, 2002 while working for the defendant, the South-ington Metal Fabricating Company. He alleges that, on that date, he was assisting a coworker, Cristobal Nieves, in the operation of a metal bending machine. Nieves operated the control switch of the machine with his back partially turned away from the plaintiff, who stood in front of the machine and lifted a large sheet of steel plate that was approximately eight feet by two feet into the machine. Nieves thought that he heard the plaintiff say “okay,” causing him to activate the machine. At the time, the plaintiff was still positioning the steel plate and his left arm was still under the clamp of the machine. Once the machine was activated, Nieves was unable to stop it, resulting in a severe crush injury to the plaintiffs left arm, ultimately requiring surgical treatment and amputation of his left arm below the elbow.

The plaintiff filed this action alleging that the defendant intentionally created a dangerous condition that made his injuries substantially certain to occur. The defendant moved for summary judgment on the basis that the plaintiffs complaint was barred by the exclusivity provision of the act. The court granted the defendant’s motion for summary judgment, finding that the plaintiff failed to present any evidence indicating the existence of an issue of material fact as to whether intentional acts by the defendant created a substantial certainty that the plaintiffs injury would occur. This appeal followed.

“Summary judgment is appropriate when 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. . . . Thus, because the court’s decision on a motion for summary judgment is a legal determination, our review on appeal is plenary . . . .” (Citations omitted; internal quotation marks omitted.) Heussner v. Day, Berry & Howard, LLP, 94 Conn. App. 569, 572-73, 893 A.2d 486, cert. denied, 278 Conn. 912, 899 A.2d 38 (2006).

“In seeking summary judgment, it is the movant who has the burden of showing the nonexistence of any issue of fact. The courts are in entire agreement that the moving party for summary judgment has the burden of showing the absence of any genuine issue as to all the material facts, which, under applicable principles of substantive law, entitle him to a judgment as a matter of law. The courts hold the movant to a strict standard. To satisfy his burden the movant must make a showing that it is quite clear what the truth is, and that excludes any real doubt as to the existence of any genuine issue of material fact. ... As the burden of proof is on the movant, the evidence must be viewed in the light most favorable to the opponent. . . .

“It is frequently stated in Connecticut’s case law that, pursuant to Practice Book §§ 17-45 and 17-46, a party opposing a summary judgment motion must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact. . . . [T]ypically, [demonstrating a genuine issue requires a showing of evidentiary facts or substantial evidence outside the pleadings from which material facts alleged in the pleadings can be warrantably inferred. . . . Moreover, [t]o establish the existence of a material fact, it is not enough for the party opposing summary judgment merely to assert the existence of a disputed issue. . . . Such assertions are insufficient regardless of whether they are contained in a complaint or a brief. . . . Further, unadmitted allegations in the pleadings do not constitute proof of the existence of a genuine issue as to any material fact.” (Citations omitted; internal quotation marks omitted.) Rockwell v. Quintner, 96 Conn. App. 221, 228-29, 899 A.2d 738, cert. denied, 280 Conn. 917, 908 A.2d 538 (2006).

General Statutes § 31-284 (a) exempts employers from liability for civil damages “on account of personal injury sustained by an employee arising out of and in the course of his employment . . . .” “ ‘Arising out of and in the course of his employment’ ” is defined as an accidental injury or occupational disease originating while the employee is engaged “in the line of [his] duty in the business or affairs of the employer upon the employer’s premises . . . .” General Statutes § 31-275 (1). “ ‘Personal injury’ ” includes accidental injury and “injury to an employee which is causally connected with [his] employment and is the direct result of repetitive trauma or repetitive acts incident to such employment, and occupational disease.” General Statutes § 31-275 (16) (A).

“Our Workers’ Compensation Act indisputably is a remedial statute that should be construed generously to accomplish its purpose. . . . Section 31-284 (a), the exclusivity provision in the act, manifests a legislative policy decision that a limitation on remedies under tort law is an appropriate trade-off for the benefits provided by workers’ compensation. That trade-off is part and parcel of the remedial purpose of the act in its entirety. Accordingly, our case law on workers’ compensation exclusivity reflects the proposition that these statutes compromise an employee’s right to a common law tort action for work related injuries in return for relatively quick and certain compensation.” (Citations omitted; internal quotation marks omitted.) Driscoll v. General Nutrition Corp., 252 Conn. 215, 220-21, 752 A.2d 1069 (2000).

Our Supreme Court first recognized a narrow exception to the exclusivity provision in Jett v. Dunlap, 179 Conn. 215, 425 A.2d 1263 (1979). In Jett, the Supreme Court recognized a possible exception to the exclusivity of workers’ compensation where the employer intentionally directs or authorizes another employee to assault the injured party. Id., 218.

In Mingachos v. CBS, Inc., 196 Conn. 91, 491 A.2d 368 (1985), our Supreme Court declined the invitation to extend the exception to situations in which an injury resulted from the employer’s intentional, wilful or reckless violations of safety standards established pursuant to federal or state laws. The court held: “To bypass the exclusivity of the act, the intentional or deliberate act or conduct alleged must have been designed to cause the injury that resulted.” Id., 102. This intent is distinguishable from reckless behavior. Id., 102-103. High foreseeability or strong probability are insufficient to establish this intent. Id. Although such intent may be proven circumstantially, what must be established is that the employer knew that the injury was substantially certain to follow the employer’s deliberate course of action. Id. To hold otherwise would undermine the statutory scheme and purpose of the workers’ compensation law and usurp legislative prerogative. See id., 106.

Definitive explication of the intentional injury exception to workers’ compensation exclusivity came in Suarez v. Dickmont Plastics Corp., 229 Conn. 99, 639 A.2d 507 (1994) (Suarez I), in which the court stated that “intent refers to the consequences of an act . . . [and] denote [s] that the actor desires to cause [the] consequences of his act, or that he believes that the consequences are substantially certain to follow from it. ... A result is intended if the act is done for the purpose of accomplishing such a result or with knowledge that to a substantial certainty such a result will ensue.” (Citation omitted; internal quotation marks omitted.) Id., 108. The plaintiff in Suarez I alleged that the defendant required the plaintiff and other employees to clean a plastic molding machine while it was running, refused to allow the plaintiff to use safer methods to clean the machine and refused to place a protective cover on the machine. Id., 101. It also was alleged that the defendant had told the plaintiff that if he used safer methods to clean the machine, his employment would be terminated. Id. Our Supreme Court stated that “the defendant’s [alleged] conduct constituted more than a mere failure to provide appropriate safety or protective measures, and that the plaintiffs injury was the inevitable and known result of the actions required of him by the defendant.” Id., 111. In Suarez I, the documentary evidence submitted in opposition to a motion for summary judgment raised a genuine dispute concerning the employer’s belief that an employee would inevitably amputate his fingers as a result of the employer’s demands of the employee. Id. The Supreme Court remanded the case for trial, which resulted in a plaintiffs verdict. The matter was appealed again.

In Suarez v. Dickmont Plastics Corp., 242 Conn. 255, 698 A.2d 838 (1997) (Suarez II), our Supreme Court described its earlier ruling as establishing an exception to the workers’ compensation exclusivity provision if the employee can prove “either that the employer actually intended to injure the plaintiff (actual intent standard) or that the employer intentionally created a dangerous condition that made the plaintiffs injuries substantially certain to occur (substantial certainty standard).” Id., 257-58. The Supreme Court reiterated that “[substantial certainty centers on whether the employer believed the injury was substantially certain to follow the employer’s acts or conduct . . . .” (Emphasis in original.) Id., 280-81.

Since Suarez, the exception to exclusivity has been further elucidated. The substantial certainty test permits a plaintiff “to maintain a cause of action against an employer where the evidence is sufficient to support an inference that the employer deliberately instructed an employee to injure himself.” (Internal quotation marks omitted.) McCoy v. New Haven, 92 Conn. App. 558, 563, 886 A.2d 489 (2005). “[T]he plaintiff must allege facts to establish either that the employer actually intended to injure the plaintiff (actual intent standard) or that the employer intentionally created a dangerous condition that made the plaintiffs injuries substantially certain to occur (substantial certainty standard). Under either theory of employer liability, however, the characteristic element [of wilful misconduct] is the design to injure either actually entertained or to be implied from the conduct and circumstances. ... Not only the action producing the injury but the resulting injury also must be intentional.” (Internal quotation marks omitted.) Morocco v. Rex Lumber Co., 72 Conn. App. 516, 523, 805 A.2d 168 (2002).

Although it is less demanding than the actual intent standard, the substantial certainty standard is, nonetheless, an intentional tort claim requiring an appropriate showing of intent to injure on the part of the defendant. Suarez I, supra, 229 Conn. 109-10. This court has stated: “It is important to note that the substantial certainty standard is a subset of the intentional tort exception. . . . Whereas the intentional tort test requires that both the act producing the injury and the specific injury to the employee must be intentional . . . the substantial certainty standard requires a showing that the act producing the injury was intentional or deliberate and the resulting injury, from the standpoint of the employer, was substantially certain to result from the employer’s acts or conduct.” (Citations omitted.) Ramos v. Branford, 63 Conn. App. 671, 679-80, 778 A.2d 972 (2001). In sum, the substantial certainty standard requires that the plaintiff establish that the employer intentionally acted in such a way that the resulting injury to the employee was substantially certain to result from the employer’s conduct. Id., 680; Sullivan v. Lake Compounce Theme Park, Inc., 277 Conn. 113, 118, 889 A.2d 810 (2006). To satisfy the substantial certainty standard, a plaintiff must show more than “that [a] defendant exhibited a ‘lackadaisical or even cavalier’ attitude toward worker safety . . . .” Stebbins v. Doncasters, Inc., 263 Conn. 231, 234, 819 A.2d 287 (2003). Rather, a plaintiff must demonstrate that his employer believed that its conduct was substantially certain to cause the employee harm. Id.

With the foregoing principles in mind, we now analyze the plaintiffs claim that the court improperly granted the defendant’s motion for summary judgment. In opposition to the motion for summary judgment, the plaintiff claimed that the defendant violated twenty of its own safety regulations, in addition to many regulations of the Occupational Safety and Health Administration (OSHA). Essentially, the plaintiff claimed that the defendant failed to provide appropriate training to him in working with the metal bending machine and failed to take any safety precautions to prevent his injury. The plaintiff argued that the combined effect of the large number of safety violations and the lack of training created a situation that would allow a trier of fact to find that the defendant intentionally created a dangerous situation in which it had been substantially certain that his injury would occur. We disagree.

“A wrongful failure to act to prevent injury is not the equivalent of an intent to cause injury.” Melanson v. West Hartford, supra, 61 Conn. App. 689 n.6. An employer’s “intentional, wilful or reckless violation of safety standards established pursuant to federal and state laws” is not enough to extend the intentional tort exception for the exclusivity of the act. Ramos v. Branford, supra, 63 Conn. App. 678. As noted in Mingachos v. CBS, Inc., supra, 196 Conn. 104, the act contains a provision that allows for more compensation if the injury resulted from an OSELA violation, which demonstrates a clear understanding by the legislature that such injuries would be covered by the act. See General Statutes § 31-307.* ***

The plaintiff also provided expert testimony that his injuries were substantially certain to occur. The critical flaw in the plaintiffs argument, however, is that it ignores the requirement of a showing of the employer’s subjective belief that the injury was substantially certain to occur. It is not the gravity of the employer’s conduct that comes under scrutiny but, rather, the employer’s subjective belief. Suarez II, supra, 242 Conn. 279. Thus, an opinion by an expert that an injury was substantially certain to occur does not support the requirement that the defendant believed that its conduct was substantially certain to cause the employee harm. See Stebbins v. Doncasters, Inc., supra, 263 Conn. 234.

Although the defendant admitted that, because the machine was capable of bending metal, it knew that it could probably harm a person, there is no evidence that the plaintiff was instructed to work with the machine turned on. Here, the evidence submitted indicates that the machine was turned off when the plaintiff inserted his hand into the machine and that the machine was turned on as a result of miscommunication with another employee. Because the plaintiff failed to demonstrate the existence of a genuine issue of material fact as to the defendant’s intent to create a dangerous situation that it knew was substantially certain to injure him, the court properly rendered summary judgment in favor of the defendant.

The judgment is affirmed.

In this opinion ROGERS, J., concurred.

MCDONALD, J.,

dissenting. I respectfully disagree that the plaintiff Eduardo Martinez has not presented evidentiary facts or substantial evidence to defeat a motion for summary judgment.

In this case, the plaintiff submitted evidence that his injury was caused at the point of operation of a metal forming machine when its clamp severed his forearm. He was loading and positioning metal into the machine when a coworker, without verbal clearance from the plaintiff, put the machine into operation. The plaintiffs work assignment to assist in the loading and positioning of metal into the machine, which bent or formed metal under pressure, was improper. The operation of the machine required the plaintiffs coworker to have his back to the plaintiff while the plaintiff loaded and positioned metal at the machine’s point of operation. At the time, the Occupational Safety and Health Administration (OSHA) found that the machine had no guards or sensing devices to prevent its operation while an employee was loading and positioning metal into the point of operation.

The plaintiff also submitted a copy of the safety plan of the defendant employer, the Southington Metal Fabricating Company. That plan stated that its purpose was to avoid injury at the workplace. With reference to a forming machine, the plan specifically stated that the point of operation must be guarded where it can cause injury and that an interlocking device must be considered. A pressure sensing device, as required for point of operation devices, must protect the machine operator by interlocking into the control circuit to prevent or stop its slide motion if the operator’s hand or other part of his body is within the sensing field of the device during the operation of the press slide. The plan also required guards to protect all areas of point of entry to the point of operation not protected by the pressure sensing device. The plan also required that all employees be given regular and continuing safety training. The plaintiff submitted evidence that neither he nor his coworker operating the machine had received any safety training.

In Suarez v. Dickmont Plastics Corp., 229 Conn. 99, 111-12, 639 A.2d 507 (1994) (Suarez I), our Supreme Court held that a showing much like that made by the plaintiff here would allow a finder of fact to infer that the employer believed an injury was substantially certain to follow from his acts or conduct. The jury in Suarez v. Dickmont Plastics Corp., 242 Conn. 255, 280, 698 A.2d 838 (1997) (Suarez II), did not draw such an inference but did find that the employer intended to injure the employee, albeit, our Supreme Court held, without sufficient evidence of specific intent to injure. Our Supreme Court remarked in Suarez II that the evidence presented might sustain a finding that the employer believed an injury was substantially certain to occur where ill will or malevolence on the part of the employer was not required. Id., 279.

In this case, the plaintiff produced evidence of specific violations of the employer’s own safety manual and OSHA requirements for safety devices within and outside the forming machine and evidence that the operators were not trained in the safe operation of the machine. The plaintiff also produced expert evidence that this conduct made the plaintiffs injury a predictable and substantially certain event.

As to the requirement that the defendant could be found to have believed to a substantial certainty that the conduct would result in employee injury, it must be considered that the employer adopted its own specific safety plan to avoid such an injury with a metal forming machine and then knowingly did not implement the plan in any way. The defendant’s multiple failures to obey OSHA requirements, which it promised to abide by in the safety plan, is further evidence of the knowing nature of the employer’s conduct. When considered with the employer’s knowledge of the danger inherent in the improper use of the metal forming machine, I believe that a trier of fact could find an intentional injury defined as one that the employer believed was substantially certain to follow from the employer’s acts or conduct. Although a failure to make the workplace safe may not itself render an employer’s conduct intentional, when, as here, that fact is coupled with the employer’s recognition in its safety plan that the forming machine must be made safe to avoid employee injury at the point of operation, the combination may render the conduct intentional.

I would conclude that the plaintiffs submissions raise an issue of material fact regarding the defendant’s conduct toward the plaintiff and the defendant’s knowledge that his injury was substantially certain to occur. See Suarez I, supra, 229 Conn. 111. “[Wjhether the actor knows that the consequences of his or her conduct are certain or substantially certain to result from his or her act and still proceeds with the conduct, so that he or she should be treated by the law as though he or she in fact desired to produce the result, is a question of fact for the jury.” Id.

Accordingly, I respectfully dissent.

       The plaintiffs wife, Maria Borrero, also is a plaintiff. Southington Metal Fabricating Company also intervened as a plaintiff, seeking reimbursement for certain workers’ compensation payments it has paid or may become obligated to pay to Martinez. For purposes of this appeal, we refer in this opinion to Martinez as the plaintiff and to Southington Metal Fabricating Company as the defendant.

       General Statutes § 31-284 (a) provides in relevant part: “An employer who complies with the requirements of subsection (b) of this section shall not be liable for any action for damages on account of personal injury sustained by an employee arising out of and in the course of his employment or on account of death resulting from personal injury so sustained, but an employer shall secure compensation for his employees as provided under this chapter, except that compensation shall not be paid when the personal injury has been caused by the wilful and serious misconduct of the injured employee or by his intoxication. All rights and claims between an employer who complies with the requirements of subsection (b) of this section and employees, or any representatives or dependents of such employees, arising out of personal injury or death sustained in the course of employment are abolished other than rights and claims given by this chapter, provided nothing in this section shall prohibit any employee from securing, by agreement with his employer, additional compensation from his employer for the iiqury or from enforcing any agreement for additional compensation.”

       Here, the plaintiff relies on the substantial certainty standard, not the actual intent standard.

       In his complaint, the plaintiff alleged that the defendant intentionally created a dangerous condition in which his injuries were substantially certain to occur in that it:
      “[a] failed to have the clamp start-button function only under constant positive pressure by the operator;
      “[b] failed to install a light curtain across the face of the aforesaid leaf break machine;
      “[c] failed to install a trip wire along the face of the machine;
      “[d] failed to limit the operation of the machine to one employee;
      “[e] failed to provide and require the use of hand tools to position sheet stock into the point of operation of the aforesaid leaf break machine;
      “[f] failed to reduce the opening height of the clamp by pre-determining and pre-setting the height of the clamp opening of the bender prior to production;
      “[g] failed to out source the operation even though the operation of bending and/or crimping sheets of plate steel is infrequently performed;
      “[h] failed to install guards at all points of operation of the aforesaid leaf break machine to prevent employees from having any part of their body in the danger zones during the operating cycles of the aforesaid machine in violation of 29 C.F.R. 1910.212 (a) (3) (ii);

        “[i] removed guards that were located at all points of operation of the aforesaid leaf break machine causing, or allowing and permitting, employ ees to have parts of their bodies in the danger zones during the operating cycles of the aforesaid machine in violation of 29 C.F.R. 1910.212 (a) (3) (ii);
      “[j] refrained from training and instructing employees in safe methods of work before starting work on a mechanical power press in violation of 29 C.F.R. 1910.217 (f) (2) when they knew, or should have know[n], that such reasonable measures were available to make—and would malee—the machine the plaintiff was working on considerably safer;
      “[k] failed to provide the plaintiff with adequate warnings, instructions, safety precautions or other information concerning the use of the subject leaf bréale machine;
      “[1] failed to provide adequate, permanent instruction labeling or permanent warning labels even though the [defendant was or should have been aware that the leaf break machine was substantially certain to cause the type of harm suffered by the plaintiff;
      “[m] failed to provide the plaintiff with adequate warnings, instruction or safety precaution information even though it was foreseeable the plaintiff would not be aware of the danger in using the leaf break machine; and
      “[n] failed to provide pressure sensitive mats for the front of the aforesaid machine which would prohibit operation of the machine while person(s) were standing thereon.”

       General Statutes § 31-307 (b) provides: “Notwithstanding the provisions of subsection (a) of this section, any employee who suffers any injury or illness caused by the employer’s violation of any health or safety regulation adopted pursuant to chapter 571 or adopted by the federal Occupational Safety and Health Administration and listed in 29 CFR, Chapter XVn, after the violation has been cited in accordance with the provisions of section 31-375 or the provisions of the Occupational Safety and Health Act of 1970, 84 Stat. 1601 (1970), 29 USC 658 and not abated within the time fixed by the citation, provided the citation has not been set aside by appeal to the appropriate agency or court having jurisdiction, shall receive a weekly compensation equal to one hundred per cent of the employee’s average weekly earnings at the time of the injury or illness.”

       In his reply brief and at oral argument, the plaintiff referred to Sorban v. Sterling Engineering Corp., 79 Conn. App. 444, 450, 830 A.2d 372, cert. denied, 266 Conn. 925, 835 A.2d 473 (2003), positing that the court should employ an objective standard in examining the substantial certainty test. To the extent that dicta in Sorban may be viewed as inconsistent with Suarez, “[w]e are not at liberty to overrule or discard the decisions of our Supreme Court but are bound by them. . . . [I]t is not within our province to reevaluate or replace those decisions.” (Internal quotation marks omitted.) Mazzuca v. Sullivan, 94 Conn. App. 97, 102, 891 A.2d 83, cert. denied, 278 Conn. 905, 896 A.2d 107 (2006).

       The plan states: “It is the intent, of [the defendant] to comply with all laws concerning the operation of the business and the health and safety of our employees and the public.”

       Our Supreme Court, in a per curiam opinion, adopted a trial court’s decision that defined substantially certain as equivalent to inevitability. See Stebbins v. Doncasters, Inc., 263 Conn. 231, 819 A.2d 287 (2003), aff'g, 47 Conn. Sup. 638, 820 A.2d 1137 (2002); see also Sorban v. Sterling Engineering Corp., 79 Conn. App. 444, 451 n.3, 830 A.2d 372, cert. denied, 266 Conn. 925, 835 A.2d 473 (2003).