text:
    FAIRFAX PROPERTIES, INC., ET AL. v. CHRISTOPHER O. LYONS ET AL.
    (AC 21559)
    Dranginis, Bishop and Dupont, Js.

      Argued February 21
    officially released September 24, 2002

      Robert A. Harris, for the appellant (plaintiff Fairfax Properties, Inc.).

      David S. Hardy, with whom, on the brief, was Anthony M. Fitzgerald, for the appellees (defendant Christopher O. Lyons et al.).

      James R. Fogarty, for the appellee (Fairfax Properties, Inc.).
   Opinion

DUPONT, J.

The plaintiff Fairfax Properties, Inc. (Fairfax), acting by George C. Lyons, Jr. (George, Jr.), appeals from the judgment of the trial court dismissing its cause of action brought pursuant to General Statutes § 33-743 seeking injunctive relief and the removal of two directors of Fairfax. The plaintiffs complaint, filed by the law firm Zeldes, Needle & Cooper, P.C., alleges that the defendants, Christopher O. Lyons and William C. Lyons, Sr., abused their authority and discretion as directors of Fairfax by failing to appoint an additional director in contravention of a unanimous resolution of the shareholders dated June 21, 1999. The judgment of dismissal was rendered before any answer was filed and was based on the jurisdictional claim that George, Jr., lacked authorization to bring the complaint on behalf of Fairfax. The judgment of dismissal was in response to two motions for dismissal, one filed on April 28, 2000, by the defendants and the other filed on May 8, 2000, by the law firm Fogarty, Cohen, Selby & Nemiroff, LLC, on behalf of Fairfax. The court ruled only on the motion that was filed by the defendants.

Prior to the dismissal of the complaint on January 2, 2001, the court on May 22, 2000, granted the motion of William C. Lyons, Jr. (William, Jr.), and Timothy P. Lyons, two other shareholders of Fairfax, to be joined as parties plaintiff. Subsequently, the defendants filed a motion to reargue. In its memorandum of decision, the court granted the defendants’ motion to dismiss and acted on the motion to reargue by vacating its prior order to grant joinder. William, Jr., and Timothy P. Lyons thereafter did not appeal from the vacation of the order that, in effect, denied joinder.

This case is complicated by the fact that Fairfax is a corporation that is primarily owned and operated by one family, all of whom are descendents of George W. Lyons, Sr. (George, Sr.), who founded the parent company of Fairfax. Most of the individuals connected with this action share the same surname, with some also sharing the same given name, distinguished only by the designations of junior and senior.

This case is further complicated by the fact that two attorneys with adverse positions have filed an appearance on behalf of Fairfax. The complaint was filed for the plaintiff Fairfax by attorney Robert A. Harris of Zeldes, Needle & Cooper, P.C. A February 25, 2000 resolution, adopted by a four to two vote of the board of directors, via a telephone conference call, stated that the actions of the plaintiffs attorney was without the authority of Fairfax and, “ultra vires, and not for the benefit of and in the best interest” of Fairfax. The resolution also stated that “Fogarty, Cohen, Selby & Nemir-off, LLC be and they hereby are retained and appointed as attorneys to represent [Fairfax] in the Action, and in any related matters including the recovery of any damages to which [Fairfax] may be entitled; and to take such actions in connection therewith as the President shall in his discretion determine.”

In the defendants’ memorandum of law in support of the motion to dismiss, they state that “the majority of the [b]oard voted that this suit be withdrawn. It authorized the hiring of James R. Fogarty to act as [Fairfax’s] counsel in doing so. Mr. Fogarty, will, simultaneously with the filing of this motion, enter his appearance for [Fairfax] and withdraw the claim made on its behalf.” On April 27, 2000, Fogarty, Cohen, Selby & Nemiroff, LLC, filed an appearance for the plaintiff, Fairfax Properties, Inc., which stated that it was “in addition to appearance already on file.”

The very narrow issue in this appeal is whether a shareholders’ unanimous resolution on June 21, 1999, gave George, Jr., the continuing authority to act as an agent on behalf of the corporation to initiate an action to enforce an agreement to elect a seventh director to the Fairfax board, regardless of a subsequent vote of a majority of the board of directors rescinding that authority. We start by outlining the appropriate standard of review for examining actions taken by a trial court on a motion to dismiss that is based on a claim of lack of standing to initiate the action. A lack of standing implicates the jurisdiction of the court.

“A determination regarding atrial court’s subject matter jurisdiction is a question of law. When . . . the trial court draws conclusions of law, our review is plenary and we must decide whether its conclusions are legally and logically correct and find support in the facts that appear in the record.” (Internal quotation marks omitted.) Doe v. Roe, 246 Conn. 652, 660, 717 A.2d 706 (1998); see Brookridge District Assn. v. Planning & Zoning Commission, 259 Conn. 607, 610-11, 793 A.2d 215 (2002). “In ruling upon whether a complaint survives a motion to dismiss, a court must take the facts to be those alleged in the complaint, including those facts necessarily implied from the allegations, construing them in a manner most favorable to the pleader. . . . A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction. . . .” (Internal quotation marks omitted.) Brookridge District Assn. v. Planning & Zoning Commission, supra, 611.

Practice Book § 10-31 (a) provides in relevant part that “[t]he motion to dismiss shall be used to assert (1) lack of jurisdiction over the subject matter. . . . This motion shall always be filed with a supporting memorandum of law, and where appropriate, with supporting affidavits as to facts not apparent on the record.” “When issues of fact are necessary to the determination of a court’s jurisdiction, due process requires that a trial-like hearing be held, in which an opportunity is provided to present evidence and to cross-examine adverse witnesses.” (Internal quotation marks omitted.) Lampasona v. Jacobs, 7 Conn. App. 639, 642-43, 509 A.2d 1089 (1986), cert. denied, 492 U.S. 919, 109 S. Ct. 3244, 106 L. Ed. 2d 590 (1989), quoting Standard Tallow Corp. v. Jowdy, 190 Conn. 48, 56, 459 A.2d 503 (1983). In this case, a hearing was held, but no testimony was taken or evidence presented. Prior to the hearing, depositions had been taken, and affidavits filed.

The following procedural history and the facts that were before the trial court are relevant to our resolution of the plaintiffs appeal. Until June, 1999, Fairfax was a wholly owned subsidiary of The Bilco Company (Bilco). Bilco was formed more than seventy years ago by George, Sr. When disputes arose over the operation of Bilco, the descendents of George, Sr., decided to divide Bilco’s assets, including Fairfax. Effective June 21,1999, Fairfax ceased being a subsidiary of Bilco, and ownership was transferred to the families of George, Sr.’s three sons, George, Jr., William, Sr., and Edward Lyons. There were twenty-four family members taking ownership of Fairfax as shareholders.

In connection with the separation from Bilco, a document entitled “Structure of Fairfax Properties, Inc. Board of Directors After Bilco Restructuring” was drafted. The family members refer to that document as the “BOD term sheet,” and that document will be referred to as such in this opinion. The BOD term sheet set forth procedures for electing a seven member board of directors for Fairfax. As a result of the process to elect directors, each of George, Sr.’s sons’ families would have two directors appointed to the board. In regard to the seventh director, the BOD term sheet states: “The six (6) board members so elected shall unanimously appoint (1) board member who is not related through blood or marriage to any of the shareholders, and the person so appointed must be a professional knowledgeable and experienced in the business of the Company (the ‘outside director’).”

As part of the June 21, 1999 restructuring of Fairfax, the shareholders unanimously enacted a resolution that incorporated the BOD term sheet and was entitled “Consent Resolution of the Shareholders of Fairfax Properties, Inc.” (consent resolution). A portion of the consent resolution adopted all of the agreements in the BOD term sheet. A second portion, which gave George, Sr.’s three sons the power to enforce the resolution, states: “Resolved, that William C. Lyons, Sr., George W. Lyons, Jr., and Edward F. Lyons be and hereby are duly authorized, directed and empowered, to act as agents of the Company, acting individually or jointly, for purposes of taking any and all action as is necessary on behalf of the Company to fully implement and effect each of the foregoing resolutions, including, without limitation, the authority to execute and deliver on behalf of the Company any and all confirmations, agreements, instruments and other documents as are required to fully and completely implement and effect each of the resolutions and the actions contemplated thereunder.” (Emphasis added.) It is the consent resolution that the plaintiff claims, in the first count of its complaint, authorized George, Jr., to bring the action. In accordance with the June 21, 1999 resolution, a settlement agreement was executed, shares of stock were issued and the Fairfax board of directors was empowered to act.

Relying on the affidavit of William C. Lyons, Sr., and Edward F. Lyons, which affidavit was an exhibit in support of the motion to dismiss that was filed April 28, 2000, the defendants argue that the June 21, 1999 resolution “merely intended to allow the implementation of the closing of the Settlement and Reorganization Agreement with the Bilco Company and others, and of various ‘housekeeping’ tasks until the new Board of Directors could meet and take control of Fairfax’s affairs, and was not intended to usurp in perpetuity the authority and powers of the Board.” Thus, the individual directors themselves agree that a new board of directors had to be named in the future to conduct the business of the corporation.

Pursuant to the BOD term sheet, six directors were selected, including the defendants, William, Sr., and Christopher O. Lyons. Once the board was formed and the six directors were in place, members of the board began to make efforts to recruit and appoint a qualified outside seventh director.

The complaint alleges that two of the plaintiffs, directors, Mark C. Lyons, son of George, Jr., and Daria Lyons O’Connor, daughter of George, Jr., attempted, without success to obtain the cooperation of the other four directors to appoint a seventh director. The complaint alleges that the defendants thwarted the efforts to appoint a seventh director by expressing their belief that a seventh director was not necessary, refusing to participate in interviews with candidates, proposed only candidates who had a close connection to the defendants, discouraged qualified candidates from agreeing to serve, exerted familial pressure to delay the appointment of a seventh director and admitted that a seventh director would imperil the compensation being paid to the defendant Christopher O. Lyons, who also serves as the managing director of Fairfax.

The complaint also alleges that the defendants have caused Fairfax to take substantive business actions that should only have been carried out with the input of a seventh director, including the sale of 667 acres in New Mexico. The complaint also alleges other specific instances of impropriety, including the failure to disclose details of financial transactions and the action of electing officers for Fairfax, despite the protest by the plaintiffs that the seventh director should be elected before taking such action.

Prior to the filing of the motion to dismiss, shareholder William, Jr., on March 29, 2000, and shareholder Timothy P. Lyons on April 3, 2000, each separately filed motions for leave to be joined as parties plaintiff. On May 15, 2000, they filed a joint memorandum in support of their motions. They argued that they had an interest in the action as shareholders and that their joinder was necessary because their shares, combined with the shares of the parties plaintiff named in the complaint, would exceed the 10 percent required by § 33-743 (a) and, therefore, the defendants’ motion to dismiss that was filed on April 28, 2000, would have to be denied. They also argued that if the joinder were not allowed and the case were dismissed due to lack of subject matter jurisdiction, “it is fairly easy to predict that the next step for all five [potential plaintiffs] . . . will be to file another complaint, this time listing all five parties along with the shares they own, beginning a brand new action with the same allegations.” They argued that this would be a waste of judicial resources. Both of those motions were granted on May 22, 2000, and William, Jr., and Timothy P. Lyons were added as parties plaintiff.

On June 6, 2000, William, Jr., who had been recently made a party plaintiff, filed a motion to cite in Fairfax as a party defendant. On June 15, 2000, the defendants objected to the motion to cite in Fairfax as a defendant and argued that the court could not adjudicate that motion until it had ruled on their motion to dismiss. On that day, the defendants also filed a motion for reconsideration and argued that the court’s decision to grant William, Jr., and Timothy P. Lyons’ motion for leave to be joined as parties plaintiff should not have been adjudicated while the motion to dismiss for lack of subject matter jurisdiction was pending.

On January 2, 2001, the court granted the individual defendants’ motion to dismiss. The court stated in its ruling that “the June 21 resolutions were intended to address the anticipated procedural needs of [Fairfax] during its transition from a subsidiary of Bilco to an independent company and was not intended to serve as a continuing source of authority.” On the same date, the court also vacated its prior granting of the motion to join as parties plaintiff that had been filed by William, Jr., and Timothy P. Lyons.

Whether the court should have considered the motion to join additional plaintiffs before determining whether the case should be dismissed is not before this court because the plaintiff interveners did not appeal from the decision to vacate the motion to grant joinder, even though that ruling is an appealable final judgment. See Rosado v. Bridgeport Roman Catholic Diocesan Corp., 60 Conn. App. 134, 141, 758 A.2d 916 (2000). If the court properly could have considered the motion to join before acting on the motion to dismiss, the court would have had jurisdiction because the two shareholders who sought joinder would have provided a statutory cause of action due to their holding of at least 10 percent of the shares pursuant to § 33-743 (a).

The court found that the June 21, 1999 resolution and the BOD term sheet were “intended to address the anticipated procedural needs of [Fairfax] during its transition from a subsidiary of Bilco to an independent company and was not intended to serve as a continuing source of authority. . . . The document was drafted to facilitate the closing, settlement and reorganization of the Bilco Company and the distribution of Fairfax stock to the settling shareholders. Pursuant to the resolutions, a settlement agreement was executed, shares of stock were issued and the Fairfax board was empowered to act.”

When the language of a contract is clear and unambiguous, the intent of a contract is a matter of law. See Gateway Co. v. DiNoia, 232 Conn. 223, 232, 654 A.2d 342 (1995); Grass v. Grass, 47 Conn. App. 657, 662-63, 706 A.2d 1369 (1998); Expressway Associates II v. Friendly Ice Cream Corp., 22 Conn. App. 124, 127, 576 A.2d 575 (1990), rev’d in part on other grounds, 218 Conn. 474, 590 A.2d 431 (1991); see also Rumbin v. Utica Mutual Ins. Co., 254 Conn. 259, 286, 757 A.2d 526 (2000). “Where . . . there is clear and definitive contract language, the scope and meaning of that language is not a question of fact but a question of law.” (Internal quotation marks omitted.) Alco Standard Corp. v. Charnas, 56 Conn. App. 568, 571, 744 A.2d 924 (2000). In the current case, no testimony was required as to intent because intent was not an issue of fact.

The language of the June 21,1999 consent resolution, on which George, Jr., claims that his authority is based, states that he is “duly authorized, directed and empowered, to act as [an agent] of [Fairfax], acting individually or jointly, for purposes of taking any and all action as is necessary on behalf of [Fairfax] to fully implement and effect each of the foregoing resolutions . . . .” (Emphasis added.) The resolutions signed by all of the shareholders also incorporated the terms of the BOD term sheet and stated that the bylaws shall “conform in all respects with the terms and conditions of governance set forth in the [BOD term sheet] . . . .” The resolution also stated that in a situation in which the bylaws conflict, with the BOD term sheet, the BOD term sheet shall prevail.

It is clear from the language in the resolution that the shareholders intended to enforce the BOD term sheet fully and that all three brothers were authorized to take any action to enforce that agreement, including the filing of a lawsuit. The defendants’ position that the resolution did not authorize this action is in direct conflict with the clear language of the resolution. This court will not alter the language of the resolution due to the defendants’ claim that such language was only a ministerial delegation of authority only.

The defendants also argue that the doctrine of ejus-dem generis should apply to the language of the resolution. The doctrine of ejusdem generis is a rule of construction and applies when “(1) the [clause] contains an enumeration by specific words; (2) the members of the enumeration suggest a specific class; (3) the class is not exhausted by the enumeration; (4) a general reference [supplements] the enumeration . . . and (5) there is [no] clearly manifested intent that the general term be given a broader meaning than the doctrine requires. ... It rests on particular insights about everyday language usage. When people list a number of particulars and add a general reference like ‘and so forth’ they mean to include by use of the general reference not everything else but only others of like kind.” (Citation omitted; internal quotation marks omitted.) 24 Leggett Street Ltd. Partnership v. Beacon Industries, Inc., 239 Conn. 284, 297, 685 A.2d 305 (1996).

The doctrine of ejusdem generis is not applicable to the current case because the third paragraph of the consent resolution explicitly incorporates the BOD term sheet. The following paragraph authorizes George, Jr., to “fully implement and effect each of the foregoing resolutions . . . .” The language of the June 21, 1999 resolution also states: “These resolutions shall not take effect until the closing (as defined under the settlement agreement), at which time, such resolutions shall be deemed in full force and effect.” In addition, that language does not support the court’s finding that the document was not a continuing source of authority with respect to enforcing the terms of the BOD term sheet and was limited to the period of transition from a subsidiary to an independent corporation. According to the language of the resolution, the authority on which George, Jr., relies did not even begin until the closing took place. After the closing, Fairfax already would be an independent corporation, separate from Bilco. The language of the resolution indicates that its terms continue into the future to ensure that the resolution and the BOD term sheet are properly executed after the closing.

The language of the BOD term sheet also indicates that the document would have effect in the future. The BOD term sheet describes the procedure for changing the formation of the board of directors. It states that “[t]he board structure described above shall remain in place for a minimum of two (2) years; thereafter, it may be altered if the board (by majority vote) so recommends to the shareholders and such recommendation is approved by a super majority vote (being the affirmative vote of shareholders owning at least 67% of the issued and outstanding stock . . . .” Thus, the board structure, including the requirement of a seventh director was guaranteed for at least two years.

The trial court found that the BOD term sheet “was intended to address the anticipated procedural needs of [Fairfax] . . . .” The formation of a board of directors is essential to the normal operation of a corporation and is a procedural need of a corporation. According to General Statutes § 33-735, “(a) each corporation shall have a board of directors [and] (b) [a]ll corporate powers shall be exercised by or under the authority of, and the business and affairs of the corporation managed by or under the direction of, its board of directors . . . .” The number of board of directors shall be “specified in or fixed in accordance with the certificate of incorporation or bylaws.” General Statutes § 33-737 (a). “The number of directors may be increased or decreased from time to time by amendment to, or in the manner provided in, the certificate of incorporation or the bylaws.” General Statutes § 33-737 (b).

The BOD term sheet stated the procedure for electing the board of directors. Even the defendants state in their brief that the June 21, 1999 resolution authorized George, Jr., or his brothers to “execute and otherwise deal with instruments necessary to put the agreed board structure into effect . . .

We conclude that the election of a full board of directors as directed by the BOD term sheet was an essential procedural need of the corporation and the shareholders, and could not be altered by a majority of the six members of the board of directors. We therefore hold that that the shareholders unanimously gave George, Jr., authority to act as an agent on behalf of the corporation to enforce the agreements set forth in the BOD term sheets as adopted by the June 21,1999 resolution.

Having determined that the June 21, 1999 resolution gave George, Jr., the authority to initiate the action on behalf of the plaintiff Fairfax, we next address the four to two vote of the board of directors, which declared that George, Jr., did not have authority to initiate the action and that his actions were “ultra vires.”

The BOD term sheet and the June 21,1999 resolution were, in essence, a valid shareholder agreement that set forth the parameters of electing a board of directors. See General Statutes § 33-717 (a) (3). According to General Statutes § 33-717 (b), “[a]n agreement authorized by this section shall be: (1) Set forth (A) in the certificate of incorporation or bylaws and approved by all persons who are shareholders at the time of the agreement or (B) in a written agreement that is signed by all persons who are shareholders at the time of the agreement and is made known to the corporation; (2) subject to amendment only by all persons who are shareholders at the time of the amendment, unless the agreement provides otherwise; and (3) valid for ten years, unless the agreement provides otherwise.”

According to that statute, the board of directors would not have the power to alter the agreements because the documents did not give them the authority to repeal those rights set forth. The agreement did outline a procedure for altering the future makeup of the board of directors, after two years, but that authority is not the same as recanting the authority of George, Jr., to take action to enforce the BOD term sheet as set forth in the June 21, 1999 resolution, which had been adopted unanimously by the shareholders. Also, the authority to alter the configuration of the board of directors would require the approval of 67 percent of the total shareholder votes in addition to a recommendation by the board of directors.

The June 21, 1999 resolution states “that [Fairfax] hereby amends its Bylaws to conform in all respects with the terms and conditions of governance set forth in the [BOD term sheet] it being understood and agreed that to the extent the Bylaws as written prior to this amendment conflict with the BOD Term Sheet, the BOD Term Sheet shall prevail . . . .’’As such, the BOD term sheet was an amendment to the bylaws of Fairfax. According to General Statutes § 33-806, the board of directors can amend the bylaws of the corporation, but only if the bylaws or certificate of incorporation does not reserve such power to the shareholders. The BOD term sheet states the procedure for altering the makeup of the board, which, after two years, includes a recommendation by the board of directors and a vote of 67 percent of the shareholders. The board of directors did not have the authority during the time involved in the allegations of the plaintiffs complaint to deviate from the BOD term sheet. As such, the four to two vote of the board of directors could not negate the authority of George, Jr., to enforce these particular provisions of the Fairfax bylaws as stated in the June 21, 1999 resolution.

The judgment is reversed and the case is remanded for further proceedings in accordance with law.

In this opinion the other judges concurred.

       Mark Lyons and Daria Lyons O’Connor also are plaintiffs. They have not appealed from the judgment of the trial court dismissing the cause of action that is at issue in this appeal. We therefore refer in this opinion to Fairfax as the plaintiff.

       General Statutes § 33-743 provides: “(a) The superior court for the judicial district where a corporation’s principal office or, if none in this state, its registered office is located may remove a director of the corporation from office in a proceeding commenced either by the corporation or by its shareholders holding at least ten per cent of the outstanding shares of any class if the court finds that (1) the director engaged in fraudulent or dishonest conduct or gross abuse of authority or discretion, with respect to the corporation and (2) removal is in the best interest of the corporation.
      “(b) The court that removes a director may bar the director from reelection for a period prescribed by the court.
      “(c) If shareholders commence a proceeding under subsection (a) of this section, they shall make the corporation a party defendant.”

       Fogarty did not file an appearance in lieu of Harris and then file a motion to withdraw the action. Instead, on May 8, 2000, he filed a motion to dismiss counts one and two of the complaint, the corporate causes of action, on the basis of a claim of lack of subject matter jurisdiction. The motion alleged that George, Jr., lacked authority to initiate the action on behalf of Fairfax. Fogarty thus took a position identical to that of the individual defendants and inimical to that of Fairfax as the plaintiff. Fogarty has continued to act as if Fairfax were a defendant throughout this action with the explicit knowledge of the court, as is clear from the transcript of the hearing on the motion to dismiss.
      The law firm Fogarty, Cohen, Selby & Nemiroff, LLC, filed a brief on behalf of Fairfax as a defendant-appellee, although the firm’s appearance was for the plaintiff, Fairfax, “in addition to appearance already on file.” The brief of the plaintiff-appellant was filed by the law firm Zeldes, Needle & Cooper, P.C., as “counsel of record for plaintiffs-appellants Fairfax Properties, Inc.”
      On April 12, 2002, this court directed the parties to appear on April 30, 2002, “to give reasons, if any, regarding . . . [w]hy the brief captioned ‘Brief of the defendant-appellee,’ filed on behalf of Fairfax Properties, Inc., by Fogarty, Cohen, Selby & Nemiroff, LLC, should not be stricken as an improper brief, as the record reflects that Fairfax Properties, Inc., was the plaintiff below and is the plaintiff-appellant in this appeal.”
      We do not strike the brief because its filing caused no actual confusion or prejudice, and both counsel were at all times candid with the court concerning the nature and thrust of their representation. We take this opportunity, however, to address the difficult issue of professional conduct when counsel are confronted with a disagreement as to who speaks for the corporation.
      When Connecticut adopted the Rules of Professional Conduct, it embraced the “entity notion” of corporate representation. Thus, “[a] lawyer employed or retained by an organization represents the organization acting through its duly authorized constituents.” Rules of Professional Conduct 1.13 (a). “Hence, a corporation’s lawyer is not employed ‘by’ its officers or board of directors, but ‘by’ and ‘for’ the corporation acting through those agents.” (Emphasis in original.) 1 G. Hazard & W. Hodes, The Law of Lawyering (2d Ed. 1990) § 1.13:105, p. 393. In adopting the entity theory of corporate representation, the drafters of the model rules rejected the competing view that a corporate lawyer represents the group of people who comprise corporate leadership, e.g., the board of directors and principal officers. In fastening on the corporation itself as the client, the drafters intended to avoid the conflict of interest that can arise when corporate leadership is at odds. Id. Accordingly, at the outset, when counsel are retained, they must make a diligent effort to determine whether 1he individuals who seek to retain legal services on behalf of the corporation are acting with corporate authority, and once that decision is made, counsel must exercise care to represent only the entity and not others whose interests may not be identical to that of the corporation.
      Our rules of practice contemplate a process for resolving conflicts over representation in pending cases. Practice Book § 3-8 provides, in part, that if an attorney files an appearance in lieu of another attorney’s appearance, the successor attorney must provide notice to the attorney whose appearance is being replaced. The rule further provides the initial attorney an opportunity to object to the subsequent appearance. Had that procedure been followed, the court would have been given an early opportunity to determine which, if either, law firm properly represented the interests of Fairfax in the pending litigation.

       The consent resolution states in relevant part: “Resolved, that the Company hereby amends its Bylaws to conform in all aspects with the terms and conditions of governance set forth in the document entitled ‘Structure of Fairfax Properties, Inc. Board of Directors After Bilco Restructuring’ (the ‘BOD Term Sheet’) it being understood and agreed that to the extent the Bylaws as written prior to this amendment conflict with the BOD Term Sheet, the BOD Term Sheet shall prevail, and that the Company be and hereby is authorized, directed and empowered to take such other actions as may be necessary to fully implement the terms of the BOD Term Sheet . . . .”

       A copy of the consent resolution was attached to the affidavit of William C. Lyons, Sr., and Edward F. Lyons, which affidavit was an exhibit in support of the motion to dismiss that was filed April 28, 2000.

       There were three counts in the complaint. We are only concerned with count one because two and three concerned the other two plaintiffs who have not appealed, and Fairfax, on appeal, seeks a reversal as to count one only.

       Christopher O. Lyons is the son of Edward Lyons. Two of the other directors included Kathleen Serlo, daughter of William, Sr., and Peter Lyons, son of Edward Lyons. Serio and Peter Lyons are not parties to this case.

       Neither William, Jr., nor Timothy P. Lyons is a director.

       Such an action was, in fact, filed by William, Jr., and Timothy P. Lyons, and by Mark C. Lyons and Daria Lyons O’Connor, who originally were plaintiffs in the current action, but who are not part of this appeal. The subsequent action was filed on November 23, 2001, seeking the removal of the defendants as directors pursuant to General Statutes § 33-743. George, Jr., is not a plaintiff in that action.

       The motion was made to comply with General Statutes § 33-743 (c), which requires shareholders to make the corporation a party defendant, if they, shareholders with 10 percent of the outstanding shares, have commenced a proceeding pursuant to § 33-743 (a).

       The court did not act on Fairfax’s motion to dismiss that was filed by attorney Fogarty. The grounds for the motions to dismiss were identical, however, and the failure to act on Fairfax’s motion does not affect this appeal.

       Usually, when the issue of subject matter jurisdiction arises, it must be determined before any other matters can be considered and rulings made thereon. Federal Deposit Ins. Corp. v. Peabody, N.E., Inc., 239 Conn. 93, 99, 680 A.2d 1321 (1996); Baldwin Piano & Organ Co. v. Blake, 186 Conn. 295, 297-98, 441 A.2d 183 (1982); Kohn Display & Woodworking Co. v. Paragon Paint & Varnish Corp., 166 Conn. 446, 448, 352 A.2d 301 (1974). There is decisional authority, however, that allows an amendment to a complaint to add an alternative basis for subject matter jurisdiction after jurisdiction has been questioned. LaBow v. LaBow, 171 Conn. 433, 370 A.2d 990 (1976); see also DiLieto v. County Obstetrics & Gynecology Group, Superior Court, judicial district of Waterbury, Docket No. 150435 (January 31,2000) (26 Conn. L. Rptr. 345); see also General Statutes § 52-109; Practice Book § 9-20.
      In Federal Deposit Ins. Corp., the third party plaintiff wanted to amend its complaint in an attempt to make it fit “within the parameters of the limited waiver of the state’s sovereign immunity . . . .” Federal Deposit Ins. Corp. v. Peabody, N.E., Inc., supra, 239 Conn. 100. In the current case, the movants desired to be joined as parties plaintiff and did not seek to amend the allegations of the complaint.

       See footnote 2.

       General Statutes § 33-717 (a) provides in relevant part: “An agreement among the shareholders of a corporation that complies with this section is effective among the shareholders and the corporation even though it is inconsistent with pne or more other provisions of sections 33-600 to 33-998, inclusive, in that it . . .
      “(3) Establishes who shall be directors or officers of the corporation, or their terms of office or manner of selection or removal . . . .”

       General Statutes § 33-806 provides: “(a) A corporation’s board of directors may amend or repeal the corporation's bylaws unless: (1) The certificate of incorporation or sections 33-600 to 33-998, inclusive, reserve this power exclusively to the shareholders in whole or part; or (2) the shareholders in amending or repealing a particular bylaw provide expressly that the board of directors may not amend or repeal that bylaw.
      “(b) A corporation’s shareholders may amend or repeal the corporation’s bylaws even though the bylaws may also be amended or repealed by its board of directors.”

       The certificate of incorporation and the bylaws were not a part of the appellate record. We are, therefore, unaware of the procedure to amend the bylaws. We have only the language of the BOD term sheet to guide us as to the procedure for naming seven directors and for removing or altering the makeup of the board of directors.

       Although we hold that George, Jr., had authority to bring the action on behalf of Fairfax, we do not decide who should represent Fairfax or whether the allegations of the complaint have merit. We decide only that jurisdiction existed, but express no opinion as to whether the individual defendants, in fact, violated the terms of the shareholder agreement.


source: Caselaw Access Project

author: WEST, J.

license: Public Domain

text:
    JOY WISLOCKI v. TOWN OF PROSPECT ET AL.
    (AC 22146)
    Foti, Dranginis and West, Js.
    Argued June 3
    officially released September 24, 2002

      Edward T. Dodd, Jr., with whom, on the brief, was Jonathan H. Dodd, for the appellant (plaintiff).

      Taka Iwashita, assistant attorney general, with whom were Michael J. Belzer, assistant attorney general, and, on the brief, Richard Blumenthal, attorney general, and William J. McCullough, assistant attorney general, for the appellant (defendant second injury fund).
   Opinion

WEST, J.

This appeal from the decision of the workers’ compensation review board (board) requires us to construe General Statutes (Rev. to 1987) § 31-306 (a) (l) of the Workers’ Compensation Act (act), General Statutes § 31-275 et seq., to determine whether the plaintiff, the employee’s widow, who was not married to the employee at the time of his injury but who was married to, living with and dependent on him at the time of his death, is entitled to survivor’s benefits pursuant to the act. We conclude that she is not so entitled because she was not a presumptive dependent at the time of the employee’s injury.

The parties stipulated to and the commissioner found the following facts. On September 29,1988, Ronald Wis-locki, the deceased employee, sustained a compensable heart injury while in the employ of the defendant town of Prospect. At the time, he did not have a wife with whom he resided or for whom he provided regular support. The employee and the employer entered into a voluntary agreement. On November 28, 1994, liability for the employee’s benefits was transferred to the defendant second injury fund (fund).

At the time of his injury, the employee did not know Joy Caruso, but she became his wife on September 22, 1990. She is now known as Joy Wislocki (plaintiff). The employee died on January 18, 1999, as a consequence of his compensable heart injury or condition. At the time of his death, the employee was receiving temporary total disability benefits as well as social security disability benefits. At that time, the plaintiff was earning a sum far less than the total of the employee’s benefits. She was, therefore, economically dependent in part on the employee and benefiting from funds paid to him. The plaintiff and the employee were married to one another and living together at the time of his death.

Following the employee’s death, the plaintiff sought survivor’s benefits pursuant to § 31-306 because she was married to the employee and dependent on his financial resources when he died. She claimed that she was entitled to benefits as a presumptive dependent, dependent or dependent in fact. The fund rejected the claim, citing the language of the act, because the plaintiff was not a presumptive dependent, dependent or a dependent in fact due to her lack of a relationship with the employee at the time of his injury.

Citing the relevant sections of the act, the commissioner agreed with the fund and dismissed the claim because at the time of the employee’s injury, the plaintiff was not a member of his family or next of kin wholly or partially dependent on him pursuant to General Statutes (Rev. to 1987) § 31-275 (4), was not wholly dependent on him pursuant to § 31-306 (b) (2) and was not a presumptive dependent because she was not married to and living with him or receiving support regularly from him at the time of his injury pursuant to § 31-306 (a) (1). The commissioner also relied on § 31-306 (a) (4), which provides in relevant part that “questions of dependency shall be determined in accordance with the fact, as the fact may be at the time of injury . . . .”

The plaintiff appealed to the board from the commissioner’s decision, arguing that she was presumed to be wholly dependent on the decedent pursuant to § 31-306 (a) (1) because subsection (a) includes two categories of widows, namely, those who lived with the employee at the time of the injury and those who received support regularly from the injured employee at the time of his death. The board affirmed the commissioner’s decision to dismiss the claim, reasoning that the plaintiffs appeal was controlled by the date of injury rule, citing § 31-306 (b) (6) and Wheat v. Red Star Express Lines, 156 Conn. 245, 240 A.2d 859 (1968).

We begin our review by setting forth the applicable standard of review. “Our role is to determine whether the review [board’s] decision results from an incorrect application of the law to the subordinate facts or from an inference illegally or unreasonably drawn from them.” (Internal quotation marks omitted.) Dixon v. United Illuminating Co., 57 Conn. App. 51, 54, 748 A.2d 300, cert. denied, 253 Conn. 908, 753 A.2d 940 (2000). “The conclusions drawn by [the commissioner] from the facts found must stand unless they result from an incorrect application of the law to the subordinate facts or from an inference illegally or unreasonably drawn from them. . . . Neither the review board nor this court has the power to retry facts. ... It is well established that [although not dispositive, we accord great weight to the construction given to the workers’ compensation statutes by the commissioner and the review board.” (Citations omitted; internal quotation marks omitted.) Schiano v. Bliss Exterminating Co., 57 Conn. App. 406, 411, 750 A.2d 1098 (2000). Our Supreme Court has “determined . . . that the traditional deference accorded to an agency’s interpretation of a statutory term is unwarranted when the construction of a statute . . . has not previously been subjected to judicial scrutiny [or to] ... a governmental agency’s time-tested interpretation . . . .” (Internal quotation marks omitted.) Donahue v. Southington, 259 Conn. 783, 787, 792 A.2d 76 (2002).

The issue raised by the plaintiff on appeal requires us to construe § 31-306 (a) (1). “Statutory construction is a question of law and therefore our review is plenary. . . . [0]ur fundamental objective is to ascertain and give effect to the apparent intent of the legislature. . . . In seeking to discern that intent, we look to the words of the statute itself, to the legislative history and circumstances surrounding its enactment, to the legislative policy it was designed to implement, and to its relationship to existing legislation and common law principles governing the same general subject matter. ... As with any issue of statutory interpretation, our initial guide is the language of the operative statutory provisions.” (Citations omitted; internal quotation marks omitted.) Kelly v. Bridgeport, 61 Conn. App. 9, 13-14, 762 A.2d 480 (2000), cert. denied, 255 Conn. 933, 767 A.2d 104 (2001). “The purpose of statutory construction is to give effect to the intended purpose of the legislature. ... If the language of a statute is plain and unambiguous, we need look no further than the words actually used because we assume that the language expresses the legislature’s intent.” (Internal quotation marks omitted.) State v. DeFrancesco, 235 Conn. 426, 435, 668 A.2d 348 (1995).

The substance of the plaintiffs argument is that she is entitled to survivor’s benefits because she received support regularly from the employee, her husband, at the time of his death. The plaintiff does not dispute that she did not live with the employee at the time of his injury. She argues that because the words “at the time of his injury” do not follow “from whom she receives support regularly,” she is entitled to survivor’s benefits pursuant to § 31-306 (3). She also claims that the commissioner’s decision, as affirmed by the board, defies the humanitarian purposes of the act and narrowly interprets the law contrary to case law, which states that the act is to be construed liberally to achieve those purposes. See, e.g., Davis v. Forman School, 54 Conn. App. 841, 844, 738 A.2d 697 (1999).

“In construing a statute, common sense must be used, and courts will assume that the legislature intended to accomplish a reasonable and rational result.” (Internal quotation marks omitted.) King v. Board of Education, 203 Conn. 324, 332-33, 524 A.2d 1131 (1987). “We have previously recognized that our construction of the Workers’ Compensation Act should make every part operative and harmonious with every other part insofar as is possible .... In applying these principles, we are mindful that the legislature is presumed to have intended a just and rational result.” (Internal quotation marks omitted.) Duni v. United Technologies Corp., 239 Conn. 19, 24, 682 A.2d 99 (1996).

We consider the plaintiffs appeal to determine whether she is entitled to survivor’s benefits pursuant to § 31-306 (3) on the basis of her claim that as a matter of law, she is a presumptive dependent under § 31-306 (a) (1). See Whalen v. New Haven Pulp & Board Co., 127 Conn. 394, 395, 17 A.2d 145 (1940). Section 306 (a) (1) provides that a woman is presumed to be wholly dependent for support on a deceased employee if she is “[a] wife upon a husband with whom she lives at the time of his injury or from whom she receives support regularly . . . .” (Emphasis added.)

“Benefits under the [Workers’] Compensation Act are payable only as that act prescribes. To qualify for an award, a claimant must have been a ‘dependent’ of the employee whose injury or death is the basis of an award. The statutory definition of a dependent is ‘a member of the injured employee’s family or next of kin who was wholly or partly dependent upon the earnings of the employee at the time of the injury.’ ” (Emphasis added.) Wheat v. Red Star Express Lines, supra, 156 Conn. 249-50. The definitions of dependents have not changed since the legislature passed the act. “Our Act, as enacted in 1913, defines dependents as meaning and including ‘members of the injured employee’s family or next of kin who were wholly or partly dependent upon the earnings of the employee at the time of the injury.’ ” (Emphasis added.) Piccinim v. Connecticut Light & Power Co., 93 Conn. 423, 424-25, 106 A. 330 (1919). The definition of a dependent was the same when the employee was injured as when he died.

Although we acknowledge that the language of § 31-306 (a) (1) may be inartful and susceptible to the interpretation suggested by the plaintiff, i.e., two classes of presumptive dependent wives, those living with the employee at the time of injury and those dependent on him for regular support at the time of his death, that interpretation is not plausible in the context of the other sections of the act, which must be harmonized. A presumptive dependent is wholly dependent. General Statutes (Rev. to 1987) § 31-306 (a). Section 31-306 (b) (2) provides that survivor’s benefits shall be paid to “those wholly dependent upon the deceased employee at the time of his injury . . . .” (Emphasis added.) For purposes of receiving survivor’s benefits pursuant to the act, we conclude that a wife is a presumptive dependent of her employee husband only if, at the time of his injury, she lives with him or receives support regularly. The plaintiff here, therefore, is not a presumptive dependent of the employee.

The plaintiff also argues that because the statutes in question do not specifically preclude a person in her position from receiving benefits, they should be liberally interpreted to comport with their humanitarian purpose. That we cannot do. “It is the duty of the court to interpret statutes as they are written . . . and not by construction read into statutes provisions which are not clearly stated.” (Citation omitted; internal quotation marks omitted.) Luce v. United Technologies Corp., 247 Conn. 126, 133, 717 A.2d 747 (1998).

The court’s summation in Wheat v. Red Star Express Lines, supra, 156 Conn. 245, a case presenting facts of a similar sorrowful nature, is compelling. “The Compensation Statute is designed to compensate in a measure for the pecuniary loss sustained by reason of the death of a person to whom the claimant looked for support and while the statute will be liberally construed to effectuate that purpose, it cannot be extended by the courts to include any persons not mentioned in the act, however deserving they may be and however great may be their loss. 9 Schneider, Workmen’s Compensation Text (Perm. Ed.) § 1901, p. 6. Since we are dealing with statutory requirements which are imperative and jurisdictional in character, the equitable considerations in this case, although strong, do not permit either the commissioner or the court to vary or change the requirements. The legislative will as expressed in the compensation act is conclusive.” (Internal quotation marks omitted.) Wheat v. Red Star Express Lines, supra, 252-53. For those reasons, we agree with the decision of the board.

The decision of the workers’ compensation review board is affirmed.

In this opinion the other judges concurred.

       General Statutes (Rev. to 1987) § 31-306 (a) provides in relevant part: “The following-described persons shall be conclusively presumed to be wholly dependent for support upon a deceased employee and are referred to hereinafter as presumptive dependents: (1) A wife upon a husband with whom she lives at the time of his injury or from wham she receives support regularly . . . .” (Emphasis added.)
      Effective July 1,1991, Public Acts 1991, No. 91-32, § 21, repealed § 31-306 (a) and provided for a definition of presumptive dependents in § 1 of that act. That definition, which is codified at General Statutes § 31-275 (19), did not change the language of the Workers’ Compensation Act, General Statutes § 31-275 et seq., that is relevant to the plaintiffs appeal.

       General Statutes (Rev. to 1987) § 31-306 (b) provides in relevant part: “Compensation shall be paid on account of death resulting from an accident arising out of and in the course of employment or from an occupational disease as follows ... (2) To those wholly dependent upon the deceased employee at the time of his injury . . . .” (Emphasis added.)

       In its decision, the board stated that the specific question presented by the plaintiffs appeal has not been presented to the board or to this state’s courts of appeal. We know of no appellate decision that is factually on all fours with the facts here, and the parties have not brought one to our attention.

       General Statutes (Rev. to 1987) § 31-306 (3) provides: “If the surviving spouse is the sole presumptive dependent, compensation shall be paid until death or remarriage if such should occur.”

       This court can envision a number of different scenarios in which a wife does not live with her husband but receives support from him regularly, e.g., pendente lite orders preliminary to a dissolution of marriage or benefits received pursuant to the act while the husband is confined to a medical facility or incarcerated.

       In Wheat, claimants were the decedent employee’s three young children with whom he did not live and for whom he did not provide support at the time of his employment related death. Wheat v. Red Star Eccpress Lines, supra, 156 Conn. 246-47.


author: DRANGINIS, J.

text:
    INESSA SLOOTSKIN ET AL. v. COMMISSION ON HUMAN RIGHTS AND OPPORTUNITIES ET AL.
    (AC 21867)
    Foti, Dranginis and Healey, Js.

      Argued May 28
    officially released September 24, 2002

      Marc L. Zaken, with whom were Alison Jacobs Wice and, on the brief, Charles D. Ray, for the appellant (defendant John Brown Engineering and Construction, Inc.).

      David M. Cohen, with whom was Alex K. Sherman, for the appellee (named plaintiff).

      Joanne V. Yandow, assistant commission counsel, with whom, on the brief, was Raymond P. Pech, for the appellee (named defendant).
   Opinion

DRANGINIS, J.

In this employment discrimination action, the defendant John Brown Engineering and Construction, Inc., appeals from the judgment of the Superior Court sustaining, in part, the appeal by the plaintiff Inessa Slootskin and remanding the case to the commission on human rights and opportunities (commission) for further proceedings related to the issue of the appropriate award of damages. On appeal, the defendant claims that the court improperly (1) sustained the plaintiffs appeal when substantial evidence existed in the record to support the award of damages by the commission’s hearing officer and (2) issued directions on remand to the commission for further proceedings. We affirm, in part, and reverse, in part, the judgment of the trial court.

The following facts and procedural history are pertinent to our resolution of the defendant’s appeal. In 1984, the defendant employed the plaintiff as an entry-level engineer. Due to a work shortage, the plaintiff left her employment with the defendant, but rejoined the company in October, 1988, as a senior engineer in the defendant’s heating, ventilating and air conditioning (HVAC) department. The defendant, at the time, was located in Stamford.

On June 5, 1992, the defendant terminated the plaintiffs employment on the ground of an alleged lack of work. At the time of her termination, the plaintiff was fifty-four years old. Shortly thereafter, the plaintiff filed a complaint with the commission, alleging that the defendant had engaged in discriminatory employment practices, and terminated her employment due to age and sex discrimination in violation of General Statutes § 46a-60 (a) (l). A hearing before a commission hearing officer ensued.

The hearing officer concluded that the plaintiff’s termination was due to the defendant’s overt practice of age discrimination. Specifically, the hearing officer determined that “[t]he justification by the [defendant] that there was a lack of work was pretextual as it was clear that the older workers were not assigned work, when the younger workers were so busy that they had substantial overtime.” In support of that conclusion, the hearing officer found that from January, 1992, until June, 1992, the defendant terminated the employment of four other engineers in the HVAC department, all of whom were older than forty-five. Four other engineers in the department, however, who were younger than forty, were not discharged. Moreover, evidence was adduced that Joseph Cozza, the defendant’s vice president and director of engineering who was responsible for employment decisions in the HVAC department, had stated to several employees that the company needed “new blood” and “young engineers.” In her written decision, the hearing officer noted in finding of fact number twenty-four that in “March of 1994, the [defendant] relocated its offices from Stamford to New Jersey. At that time, only one engineer remained, Carl Halpem.”

Pursuant to General Statutes § 46a-86 (a) and (b), the hearing officer then awarded $109,174.28 in damages to the plaintiff in the form of back pay. The hearing officer based the award on the length of time that the plaintiff would have remained employed by the defendant, had she not been discharged for discriminatory reasons. Apparently relying on finding of fact number twenty-four, the hearing officer determined that the plaintiff was entitled to back pay from the date of her termination in June, 1992, through March, 1994, the time when the defendant relocated its HVAC department to New Jersey. In fashioning the award, the hearing officer stated that the “[e]vidence presented indicates that [the defendant] had a corporate relocation in March of 1994, and all remaining employees in the HVAC department were laid off, except Carl Halpem.” The plaintiff contended that she would have remained at the defendant company until her retirement, but the hearing officer found that “[t]his argument is speculative in light of the corporation’s downsizing and relocation to New Jersey.”

The plaintiff appealed to the trial court pursuant to General Statutes § 4-183, challenging the damages award on the ground that the hearing officer improperly limited her recovery of back pay in contravention of the substantial evidence in the record. Specifically, the plaintiff urged that had she not been “terminated unlawfully by [the defendant] in June, 1992, on the basis of her age, she would have been fully eligible for continued employment with the company when the Stamford location was closed and the remaining members of the HVAC department were transferred to New Jersey.”

After thoroughly reviewing the record, the court agreed with the plaintiff and concluded in its memorandum of decision that the commission had “erroneous [ly] conclufded] that [the] ‘[e]vidence presented indicates that [the defendant] had a corporate relocation in March of 1994, and all remaining employees in the HVAC department were laid, off, except Carl Halpem.” (Emphasis in original.) Specifically, the court concluded that the hearing officer improperly limited the plaintiffs recovery in back pay to the date of March, 1994, because substantial evidence existed in the record demonstrating that the remaining HVAC engineers were not laid off but, rather, were given the opportunity to relocate. Accordingly, the court remanded the matter to the commission for further proceedings. The defendant now appeals from the court’s decision.

The defendant claims that the court improperly concluded that the substantial evidence in the record failed to support the hearing officer’s decision to limit to March, 1994, the plaintiffs recovery of damages in the form of back pay. Further, the defendant contends that the court improperly substituted its factual findings for those of the commission. We are not persuaded.

We first set forth the applicable standard of review. “Judicial review 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. . . . This so-called substantial evidence rule is similar to the sufficiency of the evidence standard applied in judicial review of jury verdicts, and evidence is sufficient to sustain an agency finding if it affords a substantial basis of fact from which the fact in issue can be reasonably inferred. . . . [I]t imposes an important limitation on the power of the courts to overturn a decision of an administrative agency . . . and to provide a more restrictive standard of review than standards embodying review of weight of the evidence or clearly erroneous action. . . . The United States Supreme Court, in defining substantial evidence in the directed verdict formulation, has said that it is something less than the weight of the evidence, and the possibility of drawing two inconsistent conclusions from the evidence does not prevent an administrative agency’s finding from being supported by substantial evidence. . . . This substantial evidence rule is embodied in General Statutes § 4-183 (j) (5) and (6).” (Internal quotation marks omitted.) Commission on Human Rights & Opportunities v. Truelove & Maclean, Inc., 238 Conn. 337, 352, 680 A.2d 1261 (1996).

“Under General Statutes § 4-183 (j), the substantial evidence rule governs judicial review of administrative fact- finding. ... In determining whether an administrative finding is supported by substantial evidence, the reviewing court must defer to the agency’s assessment of the credibility of the witnesses and to the agency’s right to believe or disbelieve the evidence presented by any witness, even an expert, in whole or in part. . . . [A]n agency is not required to use in any particular fashion any of the materials presented to it so long as the conduct of the hearing is fundamentally fair. . . . The determination of issues of fact by the administrative agency should be upheld if the record before the agency affords a substantial basis of fact from which the fact in issue can be reasonably inferred. . . . Ultimately, the question is not whether the trial court would have reached the same conclusion but whether the record before the [agency] supports the action taken. ... If the decision of the agency is reasonably supported by the evidence in the record, it must be sustained.” (Citations omitted; internal quotation marks omitted.) Levy v. Commission on Human Rights & Opportunities, 35 Conn. App. 474, 486-87, 646 A.2d 893 (1994), aff'd, 236 Conn. 96, 671 A.2d 349 (1996).

As the court properly noted, the hearing officer fashioned the plaintiffs award in damages on the basis of the fundamental conclusion that “the [e]vidence presented indicates that [the defendant] had a corporate relocation in March of 1994, and all remaining employees in the HVAC department were laid off, except Carl Halp-em.” Specifically, the hearing officer limited the plaintiffs award in back pay to cover the period from June, 1992, through March, 1994, “in light of the corporation’s downsizing and relocation to New Jersey.” Accordingly, the heating officer found it highly speculative that absent the discrimination, the plaintiff would have remained at the defendant company after March, 1994.

The court concluded that the hearing officer’s statement regarding the layoff of all remaining employees in the HVAC department, with the exception of Carl Halpern, lacked any support in the record. Specifically, it found that there was no corroboration in the record between the hearing officer’s finding that “[i]n March of 1994, the [defendant] relocated its offices from Stamford to New Jersey. At that time, only one engineer remained, Carl Halpern,” and the subsequent proposition in the damages section of the hearing officer’s decision that all other remaining employees had been laid off.

After conducting a thorough review of the stipulated record, the court determined, rather, that the evidence in the record demonstrated that the defendant gave many of the remaining HVAC employees the opportunity either to transfer to a different department or to relocate to the New Jersey office. The court then proceeded to list those HVAC engineers who transferred from one department to another, left the defendant’s employ altogether or relocated to New Jersey.

After thoroughly reviewing the stipulated record, we agree with the court that the record lacks substantial evidence to support the hearing officer’s determination that due to downsizing and the corporate relocation to New Jersey, the defendant would have laid off the plaintiff in 1994. There was no such evidence adduced to support such a finding. To the contrary, as the court noted, the evidence demonstrates that in 1994 the defendant did not necessarily layoff any of the remaining HVAC engineers upon relocating to New Jersey. Rather, the record discloses that when the defendant decided to close its HVAC department in the Connecticut office, it gave the remaining HVAC engineers the opportunity to remain with the company by either relocating to New Jersey or transferring to another department. In her findings of fact, the hearing officer failed to refer to the defendant’s laying off employees in 1994, nor does the record reveal any such occurrences. Although all of the HVAC engineers who were offered the opportunity, except for Halpem, ultimately declined the option to relocate to New Jersey, and thereafter either quit or terminated their employment, the fact remains that the defendant offered them the opportunity to remain in its employ. The defendant, moreover, did not provide any testimony or evidence during the hearing regarding the viability of its Connecticut office and whether it engaged in HVAC department wide layoffs in 1994.

Given that the defendant offered other HVAC engineers the opportunity to continue working in its New Jersey location or to transfer between departments, there is nothing in the record to suggest that absent its discriminatory actions, the defendant would have precluded the plaintiff from relocating as well. We therefore conclude that the record does not contain substantial evidence from which the hearing officer reasonably could have determined that absent the defendant’s discriminatory action and due to the defendant’s downsizing and layoffs, the plaintiffs employment would have otherwise ended in March, 1994. Our search of the record persuades us that the evidence adduced at the hearing is insufficient to support the hearing officer’s determination that the defendant laid off all of its employees, except Halpem, in 1994.

In so concluding, we emphasize that the only issue we have decided here is whether substantial evidence in the record exists with respect solely to the defendant’s downsizing and layoffs in 1994. Although we find that the hearing officer improperly limited the plaintiffs recovery of back pay damages as it relates to the defendant’s actions in 1994, our determination does not conclude or imply that the record lacks substantial evidence for restricting the plaintiffs recovery on other grounds.

The defendant argues that in disturbing the hearing officer’s award of damages and remanding the matter, the court exceeded its restricted role and substituted its discretion for that of the commission. Particularly, the defendant contends that the court improperly reweighed the evidence and adjudicated the facts rather than search the record for substantial evidence. With respect to whether substantial evidence exists in the record to support a finding that the defendant engaged in layoffs in 1994, we conclude, as previously set forth, that the court properly reviewed the record for a “substantial basis of fact from which the fact in issue can be reasonably inferred,” Miko v. Commission on Human Rights & Opportunities, 220 Conn. 192, 201, 596 A.2d 396 (1991), and did not base its decision on improper fact-finding.

In raising its claim, however, the defendant additionally refers, in part, to numerous findings that the court inserted into its memorandum of decision related to whether the plaintiff would have accepted a position in New Jersey or remained at the defendant company until her retirement. As mentioned in our discussion of the appropriate standard of review, it rests within the province of the administrative agency to weigh the evidence and to adjudicate the facts. Id., 200-201. A court, in reviewing an administrative agency’s decision, cannot “substitute its judgment for that of the agency as to the weight of the evidence on questions of fact. . . .” General Statutes § 4-183 (j). We further reiterate that “[a]n administrative finding is supported by substantial evidence if the record affords a substantial basis of fact from which the fact in issue can be reasonably inferred.” (Emphasis added; internal quotation marks omitted.) Elf v. Dept. of Public Health, 66 Conn. App. 410, 418, 784 A.2d 979 (2001).

In its memorandum of decision, the court set forth a series of facts that were not addressed by the hearing officer and that were extraneous to analyzing the exact issue before the court. Specifically, the court referred to the testimony of Joel Parisy, the manager of the HVAC department, stating that he personally recommended that the plaintiff be rehired in the future; the plaintiffs testimony that Parisy informed her that he would not discharge two other HVAC engineers, Ashok G. Krishnamurthy and Frank Tierno, because one was getting married and the other recently had purchased a home; the plaintiff’s testimony that after the termination of her employment, she unsuccessfully sought to obtain other employment in the engineering field; that she would relocate for a job opportunity; that she had accepted employment that was not engineering related to earn an income and that she unsuccessfully applied twice for jobs in the defendant’s New Jersey office. During the hearing, the hearing officer did not refer to any of that testimony or evidence, nor does the record reveal that the hearing officer contemplated or took into account any of those statements.

We, accordingly, agree with the defendant that the court improperly invaded the realm of the hearing officer in making those additional findings of fact. We conclude, however, that the extraneous findings did not influence or impact the court’s ultimate determination. The principal issue before the court was whether substantial evidence existed in the record to support the hearing officer’s award of damages, which was based on her finding that the defendant had laid off all but one of its HVAC engineers by March, 1994. Although the court engaged in fact-finding and went beyond the exact inquiry with which it had been presented, it nonetheless continued to review the record appropriately to determine whether substantial evidence supported the hearing officer’s award on the ground of layoffs in 1994.

In its memorandum of decision, the court stated that it had “searched the stipulated portions of the record and determined that the fundamental conclusion reached by the commission that ‘all remaining employees in the IIVAC department were laid off, except Carl Halpem,’ is unreasonable in light of the substantial evidence to the contrary.” On the basis of our review of the stipulated record and the memorandum of decision, we conclude that the court relied only on those facts related to the defendant’s actions in 1994 in analyzing the salient issue before it and reaching its ultimate determination.

Despite our conclusion, however, that the additional facts found were harmless relative to the court’s decision, we nevertheless agree with the defendant that those findings were improper and could act impermissibly to influence the commission on remand. Specifically, on remand, the commission would be compelled to adopt those additional facts found in redetermining the proper award of damages. We therefore reverse the judgment to the extent that the trial court made findings of facts that are unrelated to the central issue of whether the defendant engaged in department wide layoffs in 1994. We affirm, however, the court’s decision to sustain the plaintiffs appeal with respect to the limited issue of whether substantial evidence existed to support the hearing officer’s decision to restrict the award of damages on the basis of layoffs that occurred in 1994.

The judgment is reversed with respect to the findings of fact that were made by the trial court on pages twelve through fourteen of its memorandum of decision and the matter is remanded to that court with direction to vacate those findings and to remand the matter to the commission for further proceedings consistent with this opinion. The judgment is affirmed with respect to the limited issue of whether substantial evidence existed to support the hearing officer’s decision to restrict the award of damages on the basis of layoffs that occurred in 1994.

In this opinion the other judges concurred.

       The commission on human rights and opportunities (commission) and the plaintiff Inessa Slootskin originally appealed to the Superior Court from the decision by the commission’s hearing officer. See General Statutes §§ 4-183 and 46a-94a; Commission on Human Rights & Opportunities v. Truelove & Maclean, Inc., 238 Conn. 337, 342-43, 680 A.2d 1261 (1996). Named as defendants were Inessa Slootskin’s employer, John Brown Engineering and Construction, Inc., and the commission, acting in its quasi-judicial capacity through its hearing officer. The court sustained the appeal and remanded the matter to the commission. It now is the defendant employer that appeals from the judgment of the trial court. We therefore refer in this opinion to John Brown Engineering and Construction, Inc., as the defendant and to Inessa Slootskin as the plaintiff.

       General Statutes § 46a-60, entitled '‘Discriminatory employment practices prohibited,” provides in relevant part: “(a) It shall be a discriminatory practice in violation of this section: (1) For an employer, by himself or his agent, except in the case of a bona fide occupational qualification or need, to refuse to hire or employ or to bar or to discharge from employment any individual or to discriminate against him in compensation or in terms, conditions or privileges of employment because of the individual’s race, color, religious creed, age, sex, marital status, national origin, ancestry, present or past history of mental disorder, mental retardation, learning disability or physical disability, including, but not limited to, blindness . . . (Emphasis added.)

       The hearing officer dismissed the plaintiffs claims that she had been discriminated against on the basis of her gender and had been denied equal pay relative to that of male engineers, finding that she had failed to establish a prima facie case for either claim.

       In her brief, the plaintiff raises the additional argument that the hearing officer improperly ordered the parties to file simultaneous briefs on the issue of damages. The plaintiff complied with the requirements of Practice Book § 63-1 (a) in asserting that claim. Given our conclusion, we find it unnecessary, as did the trial court, to address that issue.

       Specifically, the court noted the evidence in the record that four HVAC engineers, Joel Pansy, James Mulligan, Halpem and Ashok G. Krishnamurthy, all ultimately relocated to New Jersey to workforthe defendant. Krishnamurthy transferred to a different department in the New Jersey office, and Mulligan soon thereafter quit. Stanley Armistead, also an HVAC engineer, was able to switch departments and continue to work in Connecticut. Another HVAC engineer, Frank Tierno, declined the opportunity to transfer to New Jersey and subsequently quit working for the defendant.
      We find it of interest to point out that the hearing officer explicitly listed Tierno, Mulligan, Krishnamurthy and Armistead as the four engineers younger than forty whose employment the defendant did not terminate in 1992. The hearing officer contrasted those four men with the four engineers in the HVAC department, including the plaintiff, who were older than forty-five, whose employment the defendant terminated between January and June, 1992.

       We note that the record discloses that the defendant terminated the employment of four HVAC engineers in 1992, including the plaintiff, and laid off another HVAC engineer in 1993. The hearing officer, however, in limiting the plaintiff’s award in damages, referred solely to the defendant’s actions in 1994.

       The defendant in i1s principal brief concedes that “[engineer James] Mulligan voluntarily left [the defendant], while [engineer Joel] Pansy’s and [engineer Frank] Tierno’s jobs in Stamford were eliminated and their employment terminated when they each ultimately declined to move to New Jersey.” (Emphasis added.) The defendant also states in its brief that it “offered [engineer Ashok G.] Krishnamurihy a transfer to the New Jersey office to do Validation work. . . . Based on all of these departures, by March, 1994, Halpem was the only engineer in the Stamford HVAC department who still remained in that department.” Those statements undercut the defendant’s claim that ample evidence exists in the record that it had engaged in across-the-board layoffs and downsizing in 1994.

       In raising its claim, the defendant misconstrues the “fact in issue” that the court was called on to review. The defendant asserts in its principal brief that the “only proper inquiry for the Superior Court was whether substantial evidence supported the hearing officer’s decision that the plaintiffs claim for damages beyond March, 1994, was too speculative to expand the back pay award.” The hearing officer explicitly stated in the order for damages that, the plaintiffs argument that she would have worked for the defendant until her retirement “is speculative in light of the corporation’s downsizing and relocation to New Jersey.’’ (Emphasis added.) Moreover, the order is clear that the hearing officer based the award of damages on her conclusion that the defendant had laid off all of its HVAC engineers, except Halpern, by March, 1994. The hearing officer did not refer to, nor did she appear to take into account, the plaintiffs arguments that she would have remained in the defendant’s employ after March, 1994. Any such inquiry would have been pointless in light of the hearing officer’s conclusion that the defendant had discharged all of its HVAC engineers. Accordingly, the court properly reviewed the record for a substantial basis from which the “fact in issue” reasonably could be inferred.

       We note that in its memorandum of decision, the court did not intermingle the additional facts it found with its review of the record for evidence supporting whether the defendant had engaged in layoffs in 1994. The court separately set forth the two groups of facts.

       The defendant asserts that this ease is governed by the ruling of our Supreme Court in Miko v. Commission on Human Rights & Opportunities, supra, 220 Conn. 192. The defendant’s reliance is misplaced. In Miko, our Supreme Court reversed the judgment of the trial court and ordered that court on remand to dismiss the plaintiffs appeal because the trial court considered evidence that had been excluded by the hearing officer and made findings of facts on the basis of that evidence. Id., 201. In the present case, the court restricted its inquiry to those facts contained in the stipulated record. To the extent that the court engaged in fact-finding, unlike the situation in Miko, those facts found were irrelevant to the ultimate conclusion. Accordingly, the holding of Miko is not controlling.

       Specifically, we refer to the findings contained on pages twelve through fourteen of the memorandum of decision, namely, Parisy’s testimony that he personally would have recommended that the plaintiff be rehired and her competence; testimony about the plaintiff’s performance evaluation; the plaintiffs testimony about why Krishnamurthy and Tiemo were not fired; and the plaintiffs testimony about her job searches after her termination.

       In issuing the remand, we note that the defendant also challenges the remand by the trial court. The defendant argues in its principal brief that the court’s remand improperly “decided that the plaintiffs back pay damages could not be limited in the manner decided by the commission.” We agree with the defendant to the extent that its claim refers to the court’s additional findings of fact and, accordingly, have ameliorated that issue.
      We disagree with the defendant, however, in its argument that notwithstanding the improper fact-finding, the court’s remand improperly was restrictive. “[W]hen a trial court concludes that an administrative agency has made invalid or insufficient findings, the court must remand the case to the agency for further proceedings if the evidence does not support only one conclusion as a matter of law . . . .” (Internal quotation marks omitted.) Salmon v. Dept, of Public Health & Addiction Services, 259 Conn. 288, 304-305, 788 A.2d 1199 (2002). As the defendant argues, the court “should remand the matter to the commission with an instruction to fashion an appropriate back pay remedy based on a full review of the administrative record.” In remanding the matter for further proceedings, we have in fact accomplished that. We have adhered to the precedent of our Supreme Court and the statutory mandate set forth in General Statutes § 4-183 (j) in issuing that remand.