author: LANDAU, J.

text:
    FRANK CARPENTER v. FREEDOM OF INFORMATION COMMISSION ET AL.
    (AC 19144)
    Landau, Mihalakos and Pellegrino, Js.
    Argued May 1
    officially released July 25, 2000

      William J. Dolan, for the appellant (plaintiff).

      Victor R. Perpetua, appellate attorney, with whom, on the brief, was Mitchell W. Pearlman, general counsel, for the appellee (named defendant).

      Ralph G. Elliot, for the appellees (defendant The Hartford Courant et al.).
   Opinion

LANDAU, J.

This is an appeal by the plaintiff, Frank Carpenter, from the judgment of the trial court dismissing his administrative appeal from a decision of the defendant freedom of information commission (commission). The sole issue on appeal is whether the court improperly concluded that records that relate to a teacher’s personal misconduct that occurs during class time and involves the use of school facilities is not exempt from disclosure pursuant to General Statutes § 10-15 lc. We affirm the judgment of the trial court.

The genesis of this freedom of information appeal was a June 2, 1997 request from The Hartford Courant (Courant) to the board of education of the town of Plymouth, seeking certain school records that involved the plaintiff. The superintendent of schools wrote to the plaintiff, informing him of the request and asking whether he objected to the records’ being disclosed. On June 4, 1997, the plaintiff wrote to the superintendent objecting to the disclosure of the subject records. The superintendent so informed the Courant and denied its request. The Courant then filed a complaint with the commission, pursuant to the Freedom of Information Act, General Statutes (Rev. to 1997) § l-18a et seq., now § 1-200 et seq. The substance of the Courant’s complaint was the board of education’s failure to disclose all records “relating to incidents in which school employees are alleged to have allowed, either inadvertently or intentionally, students to have access to pornography or sexually explicit material.”

At a hearing before the commission, the plaintiff, an elementary school teacher, appeared and was made a party. The hearing officer conducted an in camera inspection of the records sought by the Courant and found that the records concerned the plaintiffs personal conduct and did not relate to his teaching or other professional duties. The commission adopted the hearing officer’s preliminary report and ordered the board of education to disclose the records. The plaintiff appealed to the Superior Court, which dismissed the appeal, concluding that “the documents do not constitute records of employee performance and evaluation within the meaning of [General Statutes] § 10-151c. The documents do relate to a specific incident of alleged misconduct.”

On appeal, as he did before the Superior Court, the plaintiff argues that § 10-151c exempts the requested documents concerning his misconduct from disclosure because they are records of “teacher performance and evaluation” that are not public records and, therefore, are not subject to disclosure. He also maintains that the statutory phrase “records of teacher performance and evaluation” has been given a broad meaning by judicial gloss, and that the Superior Court improperly determined that the subject records were not “records of teacher performance and evaluation.”

“Judicial review of [an administrative agency’s] action is governed by the Uniform Administrative Procedure Act (General Statutes, c. 54, §§ 4-166 through 4-189), and the scope of that review is very restricted. . . . Neither this court nor the trial court may retry the case or substitute its own judgment for that of the defendant. . . . New Haven v. Freedom of Information Commission, 205 Conn. 767, 773, 535 A.2d 1297 (1988). Even as to questions of law, [t]he court’s ultimate duty is only to decide whether, in light of the evidence, the [agency] has acted unreasonably, arbitrarily, illegally, or in abuse of its discretion. . . . Conclusions of law reached by the administrative agency must stand if the court determines that they resulted from a correct application of the law to the facts found and could reasonably and logically follow from such facts. . . . [Id., 774.] Although the interpretation of statutes is ultimately a question of law ... it is the well established practice of this court to accord great deference to the construction given [a] statute by the agency charged with its enforcement. . . . Griffin Hospital v. Commission on Hospitals & Health Care, 200 Conn. 489, 496, 512 A.2d 199, appeal dismissed, 479 U.S. 1023, 107 S. Ct. 781, 93 L. Ed. 2d 819 (1986); see also New Haven v. Freedom of Information Commission, supra, 773-74; Wilson v. Freedom of Information Commission, 181 Conn. 324, 342-43, 435 A.2d 353 (1980). . . . Perkins v. Freedom of Information Commission, [228 Conn. 158, 164-65, 635 A.2d 783 (1993)]. . . . Connecticut Alcohol & Drug Abuse Commission v. Freedom of Information Commission, 233 Conn. 28, 39, 657 A.2d 630 (1995).” (Internal quotation marks omitted.) Shew v. Freedom of Information Commission, 44 Conn. App. 611, 616-17, 691 A.2d 29 (1997), aff'd, 245 Conn. 149, 714 A.2d 664 (1998), quoting Hartford v. Freedom of Information Commission, 41 Conn. App. 67, 72-73, 674 A.2d 462 (1996).

Where our resolution of a plaintiffs claim requires us to apply the provisions of a statute, namely § 10-151c, to a specific factual scenario, we must be guided by the well established tenets of statutory interpretation. “It is fundamental that statutory construction requires us to ascertain the intent of the legislature and to construe the statute in a manner that effectuates that intent. . . . Starr v. Commissioner of Environmental Protection, 236 Conn. 722, 737, 675 A.2d 430 (1996). 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. . . . Fleming v. Garnett, 231 Conn. 77, 92, 646 A.2d 1308 (1994); State v. Metz, 230 Conn. 400, 409, 645 A.2d 965 (1994). Furthermore, in construing this statute, we are mindful that exemptions to statutes are to be strictly construed. Conservation Commissioner v. Price, 193 Conn. 414, 424, 479 A.2d 187 (1984); Aaron v. Conservation Commission, 183 Conn. 532, 549, 441 A.2d 30 (1979). Finally, common sense must be used in statutory interpretation, and courts will assume that the legislature intended to accomplish a reasonable and rational result. . . . Elliot v. Sears, Roebuck & Co., 229 Conn. 500, 515, 642 A.2d 709 (1994); State v. Hinton, 227 Conn. 301, 320, 630 A.2d 593 (1993).” (Internal quotation marks omitted.) Cannata v. Dept. of Environmental Protection, 239 Conn. 124, 140-41, 680 A.2d 1329 (1996).

“[I]t is well established that the general rule under the Freedom of Information Act [FOIA] is disclosure, and any exception to that rule will be narrowly construed in light of the general policy of openness expressed in the FOIA legislation. Board of Education v. Freedom of Information Commission, [208 Conn. 442, 450, 545 A.2d 1064 (1988)]. The burden of proving the applicability of an exception to the FOIA rests upon the party claiming it. Rose v. Freedom of Information Commission, 221 Conn. 217, 232, 602 A.2d 1019 (1992).” (Internal quotation marks omitted.) Ottochian v. Freedom of Information Commission, 221 Conn. 393, 398, 604 A.2d 351 (1992).

“When the legislature uses a broad term [records] ... in an administrative context, without attempting to define that term, it evinces a legislative judgment that the agency should define the parameters of that term on a case-by-case basis. Cos Cob Volunteer Fire Co. No. 1, Inc. v. Freedom of Information Commission, [212 Conn. 100, 106, 561 A. 2d 429 (1989)].” (Internal quotation marks omitted.) Ottochian v. Freedom of Information Commission, supra, 221 Conn. 398-99. It is the commission’s task to determine whether the records at issue were “ ‘records of teacher performance and evaluation’ within the broad meaning of that term. The practical construction placed on the statute by the agency, if reasonable, is highly persuasive.” Id., 399.

Applying these principles to the present case, we are persuaded, as was the trial court, that the commission reasonably concluded that the board of education documents related only to a specific incident of personal misconduct, and were not records of teacher performance and evaluation. Only the plaintiffs personal conduct was at issue; nothing in the record relates to the plaintiffs ability to teach. Not all disciplinary records are the same; each presents a separate factual issue. Our Supreme Court upheld as reasonable the commission’s determination that “the legislature did not intend to exempt from disclosure nonevaluative information from a letter pertaining to a teacher . . . .” Id. Because the commission’s determination in this case is reasonable, we will not disturb it.

A record of personal misconduct occurring during class hours does not automatically fall under the heading of “teacher performance and evaluation.” To include all records of serious teacher misconduct, up to and including assault or sexual violation, under the language of the statute would exclude such records from public scrutiny and inquiry for criminal prosecution. Such an exclusion would defy our common sense, rational result approach to statutory interpretation. Records of a teacher’s personal misconduct occurring during class time, but unrelated to teaching, that exposes a child to noninstructional, sexually explicit material therefore should not be protected from disclosure under § 10-151c. The Superior Court properly applied the law to the facts found by the commission and dismissed the plaintiffs appeal.

The judgment is affirmed.

In this opinion the other judges concurred.

       The other defendants are the Plymouth board of education and the superintendent of schools (collectively the board of education), and The Hartford Courant, Matthew Brown and Ken Byron (collectively the Courant).

       General Statutes § 10-151c provides: “Any records maintained or kept on file by any local or regional board of education which are records of teacher performance and evaluation shall not be deemed to be public records and shall not be subject to the provisions of section 1-210, provided that any teacher may consent in writing to the release of his records by a board of education. Such consent shall be required for each request for a release of such records. For the purposes of this section the term ‘teacher’ shall include each certified professional employee below the rank of superintendent employed by a board of education in a position requiring a certificate issued by the State Board of Education.”

       The commission ordered the correspondence between the plaintiff and the superintendent disclosed, but not the board’s notes concerning its investigation of the incident.

       The plaintiff has not contested the commission’s conclusion that the board of education records are not exempt under General Statutes § 1-19 (b) (2). To establish the applicability of § 1-19 (b) (2), the plaintiff must demonstrate both that the information sought did not pertain to legitimate matters of public concern and that the information was highly offensive to a reasonable person. Perkins v. Freedom of Information Commission, 228 Conn. 158, 175, 635 A.2d 783 (1993).


source: Caselaw Access Project

author: PETERS, J.

license: Public Domain

text:
    THOMAS S. LUX v. ENVIRONMENTAL WARRANTY, INC.
    (AC 19035)
    Lavery, C. J., and Mihalakos and Peters, Js.

      Argued May 8
    officially released July 25, 2000

      Richard P. Weinstein, with whom, on the brief, was Nathan A. Schatz, for the appellant-appellee (plaintiff).

      Jeanine M. Dumont, for the appellee-appellant (defendant).
   Opinion

PETERS, J.

This appeal arises in the context of corporate downsizing that results in termination of the employment of individual employees on the basis of economic conditions unrelated to the quality of the employees’ services during their employment. The employee in this case does not challenge on appeal the propriety of the decision to terminate his employment. He relies instead on various terms in his employment contract to support his claims to recover unpaid severance and vacation pay.

The plaintiff, Thomas S. Lux, brought a three count action against the defendant, Environmental Warranty, Inc., in which he claimed that the defendant (1) had a contractual obligation to pay him severance and vacation pay upon termination, (2) had a statutory obligation pursuant to General Statutes § 31-71a or General Statutes § 31-76k to pay him severance and vacation pay upon termination, and (3) had a contractual obligation to continue to pay him salary and fringe benefits due to its failure to give him proper termination notice. The defendant denied the allegations of the complaint, raised several special defenses and filed a counterclaim. The counterclaim alleged that the plaintiff had engaged in a course of conduct that interfered with the defendant’s operations, and that such conduct was a breach of fiduciary duty by the plaintiff in his role as a stockholder in a closely held corporation and one of its key employees.

The court rendered a judgment in favor of the defendant on the plaintiffs complaint and in favor of the plaintiff on the defendant’s counterclaim. The plaintiff has appealed and the defendant has cross appealed. On the plaintiffs appeal, we affirm the judgment with respect to severance pay, but remand the case for further articulation with respect to vacation pay. On the defendant’s cross appeal, we affirm the judgment.

I

THE PLAINTIFF’S APPEAL

On appeal, the plaintiff pursues his claim for severance and vacation pay under the first and second counts of his complaint. Without challenging the validity of the facts recited in the court’s memorandum of decision, the plaintiff disagrees with the legal conclusions that the court drew therefrom. The gravamen of the plaintiff’s appeal is his claim that the court misconstrued the terms of the employment contract between the parties. Under that contract, according to the plaintiff, in the absence of a showing of cause for discharge, the defendant had no authority to terminate the plaintiffs employment without paying him severance pay and accrued vacation pay.

The court’s memorandum of decision and the record reveal the following relevant facts. The defendant corporation was formed in 1992 to broker insurance for three carriers that insure against environmental risks associated with commercial real estate. That year, the defendant hired the plaintiff as a senior technical officer to assist in the evaluation of environmental risks for one of the carriers with whom the defendant dealt. The other carriers had their own in-house technical officers.

On April 15, 1994, the plaintiff and the defendant entered into a formal employment contract. Before agreeing to the contract, the plaintiff consulted with private counsel.

In 1995, the defendant learned that one of its three carriers would be ending its business relationship with the defendant. By 1996, this carrier had ceased doing business with the defendant. Unfortunately for the plaintiff, this carrier was the one for which the plaintiff had been acting as a senior technical officer. Accordingly, on January 29, 1996, the defendant informed the plaintiff that his expertise would no longer be needed after March 31,1996, the expiration date of his contract of employment. The defendant paid the plaintiffs salary until that date. The defendant also offered the plaintiff the use of office space and office resources to ease the plaintiffs transition to other employment. The plaintiff availed himself of these services until March 29, 1996, and thereafter did not return for work at the defendant’s place of business.

The record does not document any further exchanges between the parties until May 1,1996, when the plaintiff wrote the defendant to assert his claimed right to severance and vacation pay. The defendant rejected the severance pay claim. With respect to the claim for accrued vacation time, the defendant, while disputing its validity, offered to pay the claim in part. The plaintiff declined to accept this offer.

A

Severance Pay

The dispute between the parties concerning the plaintiffs claim for severance pay arises out of the parties’ divergent interpretations of the terms of the plaintiffs employment contract. The court concluded, as the defendant had argued, that the defendant had no liability for severance pay because the contract permitted the defendant, with proper notice, to terminate the plaintiffs employment at the expiration of the term of his employment. The plaintiff contends, to the contrary, that the defendant had no such authority because his employment could not be ended except by compliance with the “termination” clause in the contract. The dis-positive issue, then, is whether the contract limited the authority of the defendant, in discharging an employee without cause, to only one proper way to effectuate such a discharge.

Our review of the court’s judgment in favor of the defendant is plenary. In any case in which the parties dispute the meaning of definitive contract language, the determination of what the parties intended by their contractual commitments is a question of law. Pesino v. Atlantic Bank of New York, 244 Conn. 85, 91-92, 709 A.2d 540 (1998); Levine v. Massey, 232 Conn. 272, 277-78, 654 A.2d 737 (1995); Gateway Co. v. DiNoia, 232 Conn. 223, 229, 654 A.2d 342 (1995); Mulligan v. Rioux, 229 Conn. 716, 740, 643 A.2d 1226 (1994); Morales v. Pentec, Inc., 57 Conn. App. 419, 438, 749 A.2d 47 (2000).

The parties agree, as the court held, that their dispute must be resolved by a construction of three provisions in the employment contract. One provision is article II, § 2.2, denominated “Term of Employment.” The second provision is article II, § 2.6, denominated “Termination.” The third provision is article V, denominated “Severance.”

Section 2.2 describes the plaintiffs term of employment as having commenced on April 1,1994, and continuing until March 31, 1996, “unless sooner terminated.” It also states that subject to certain provisions in the termination article of the contract, the employment agreement “shall be extended automatically” for additional one year periods.

Section 2.6.1 states that “[t]he employment period shall be terminated upon the first to occur of the following events . . . .” Only one of the stated “events” is arguably relevant. Section 2.6.1 (e) permits the defendant, “at any time after the Expiration Date” to terminate the plaintiffs employment ten days after the defendant so notifies the plaintiff. This section applies to termination “for any reason or no reason.”

Finally, article V entitles an employee to severance pay in the event of a termination “pursuant to the provision of Section 2.6.1 (e).” It describes the manner in which such severance pay is to be calculated and the time when it is to become payable.

The issue raised by these three provisions is whether, regardless of the expiration date in the agreement, the agreement precludes the employer from ending the employment of any employee “for any reason or no reason,” unless the employer follows the termination procedures set out in § 2.6.1 (e). If that were so, any no fault termination would require a ten day notice and severance pay. As the trial court aptly observed, such a construction of the contract language is difficult to square with § 2.2. Although the latter article contemplates the possibility of automatic renewals, it does not mandate them. The court construed this language as authorizing the defendant, upon giving timely notice of nonrenewal, to terminate the agreement of employment at the end of any term of employment without liability for severance pay. We agree with the court.

The plaintiff argues that, properly construed, the employment agreement neither permitted its term to expire nor empowered the defendant to fail to renew it. In his view, the absence of an express provision for expiration or nonrenewal is dispositive.

He claims that the automatic renewal provision in § 2.2 requires the employment contract to continue in force until it is terminated in accordance with § 2.6.1 (e).

It is common ground that this court must reconcile the provisions of § 2.6.1 (e) with those of § 2.2. The latter section describes the commencement date and the expiration date of the plaintiffs contract with the defendant. It further provides that the stated expiration date is effective unless the plaintiffs employment is “sooner terminated.” Section 2.2 expressly requires compliance with § 2.6.1 (e) and (f) upon renewal of the employment agreement and makes such renewal automatic in the event of inaction by the defendant. We are not persuaded that the defendant was required by the contract to acquiesce in the automatic renewal of the employment contract. The more reasonable construction of the contract is that it permitted the defendant to take steps, i.e., timely notice, to avoid automatic renewal and thereby to make the stated expiration date effective. Otherwise, little meaning would attach to the clause setting an effective date. Such a construction comports with the well established rule of construction that, when interpreting a contract, “we must look at the contract as a whole, consider all relevant portions together and, if possible, give operative effect to every provision in order to reach a reasonable overall result.” O’Brien v. United States Fidelity & Guaranty Co., 235 Conn. 837, 843, 669 A.2d 1221 (1996); Tremaine v. Tremaine, 235 Conn. 45, 57, 663 A.2d 387 (1995); Ceci v. National Indemnity Co., 225 Conn. 165, 175, 622 A.2d 545 (1993); Board of Education v. State Board of Labor Relations, 217 Conn. 110, 116, 584 A.2d 1172 (1991).

In effect, the plaintiffs argument would convert the plaintiffs employment agreement into a contract for permanent employment or for an indefinite time period, subject only to termination in accordance with § 2.6 of article II. That argument would not avail the plaintiff because, under case law of long standing, contracts for permanent employment or for an indefinite term are terminable at will. See, e.g., Torosyan v. Boehringer Ingelheim Pharmaceuticals, Inc., 234 Conn. 1, 14, 662 A.2d 89 (1995); Coelho v. Posi-Seal International, Inc., 208 Conn. 106, 118, 544 A.2d 170 (1988); D’Ulisse-Cupo v. Board of Directors of Notre Dame High School, 202 Conn. 206, 211 n.1, 520 A.2d 217 (1987); Finley v. Aetna Life & Casualty Co., 202 Conn. 190, 201 n.6, 520 A.2d 208 (1987); Magnan v. Anaconda Industries, Inc., 193 Conn. 558, 562-63, 479 A.2d 781 (1984); Turrill v. Erskine, 134 Conn. 16, 21, 54 A.2d 494 (1947); Emerick v. Connecticut General Life Ins. Co., 120 Conn. 60, 65, 179 A. 335 (1935). The only relevant exception to that rule is “definitive contract language” to the contrary. Torosyan v. Boehringer Ingelheim Pharmaceuticals, Inc., supra, 15. As we have observed previously in this opinion, there is no contract language in this case that definitively demonstrates that the parties had agreed to automatic renewal of the employment agreement regardless of the defendant’s express notice of non-renewal.

We conclude, therefore, that the plaintiffs claim for the recovery of severance pay cannot be sustained. We affirm the judgment of the court on that issue.

B

Vacation Pay

In the first count of his complaint, the plaintiff sought, in addition to severance pay, vacation pay allegedly accrued prior to his termination. The court’s findings on this issue are opaque. At one point, the court apparently concluded that the plaintiff was entitled to five days of vacation pay, until March 31, 1996, diminished only by two personal days for funeral leave. It calculated the amount due as $1097.25. Thereafter, however, the court noted that the plaintiff had not raised his claim for vacation pay until several weeks after the expiration date of his contract. The court also found that, once alerted to the plaintiffs claim, the defendant, perhaps without conceding liability, offered to compensate the plaintiff for three days of vacation pay, in the amount of $1097.25. The plaintiff rejected that offer.

Without ruling further on the plaintiffs contract claim for vacation pay, the court concluded that the plaintiffs statutory claim could not be sustained in light of the defendant’s offer of payment. The court then rejected the plaintiffs claims for relief in their entirety.

On this state of the record, we cannot determine how the court ruled on the plaintiffs contractual claim for vacation pay in count one. Although it would have been more prudent for the plaintiff to have filed a motion for articulation to perfect the record on appeal; see Practice Book § 66-5; we decline to rest our judgment on that ground. As the defendant’s various offers of payment indicate, a trier of fact reasonably might determine that the defendant has not categorically denied its liability for some amount of vacation pay. Certainly, the court made no finding to the contrary.

We conclude, therefore, that the plaintiff’s contract claim for vacation pay should be determined, on remand, by a focused inquiry into the extent, if any, to which this claim should be sustained. Accordingly, the case is remanded for an articulation of the trial court’s ruling with respect to vacation pay.

II

THE DEFENDANT’S CROSS APPEAL

The defendant’s counterclaim alleged that the plaintiff, as a minority shareholder in the defendant, had engaged in conduct that interfered with, harassed and embarrassed the defendant, and that such conduct was a breach of the plaintiff’s fiduciary duty to the defendant. The conduct of which the defendant complained involved the sending of a letter by the plaintiffs attorney to the defendant’s attorney. That letter contained allegations falsely impugning the integrity of the defendant’s president. That conduct was actionable, according to the defendant, even though the plaintiff was not a majority shareholder, because the defendant is a closely held corporation. The defendant sought damages. The plaintiff did not dispute the underlying factual allegations in the counterclaim but denied that he had any fiduciary duty to the defendant. Accordingly, the plaintiff denied the validity of its claim for damages.

In its memorandum of decision, the court recited the undisputed facts. Without determining whether the plaintiff was a fiduciary as a result of his minority stock-holding, the court concluded that the plaintiff’s conduct was not a breach of fiduciary duties. It focused on the fact that the defendant’s claim arose out of a communication between the parties’ attorneys. There was no allegation that the plaintiff had published his accusations in any other way. The defendant’s president, however, published the letter to the defendant’s board of directors, and then expended corporate time and energy to disprove its allegations.

The court held that the disclosure by the defendant’s president did not constitute a breach of a fiduciary duty by the plaintiff. Although the court, therefore, did not have to reach the issue of whether the defendant had proven its claim for damages, it observed that the defendant had failed to make the requisite evidentiary showing. It noted that none of the allegations of injury to the defendant had been quantified or priced out. Accordingly, the court rendered a judgment in favor of the plaintiff on the counterclaim.

In its cross appeal, the defendant challenges both the evidentiary basis for the court’s ruling and the legal conclusion reach by the court. “The scope of our appellate review depends upon the proper characterization of the rulings made by the trial court. To the extent that the court has made findings of fact, our review is limited to deciding whether such findings were clearly erroneous. When, however, the 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.) Napoletano v. CIGNA Healthcare of Connecticut, Inc., 238 Conn. 216, 232, 680 A.2d 127 (1996), cert. denied, 520 U.S. 1103, 117 S. Ct. 1106, 137 L. Ed. 2d 308 (1997); Pandolphe’s Auto Parts, Inc. v. Manchester, 181 Conn. 217, 221-22, 435 A.2d 24 (1980); Berger v. Fitzgerald, 55 Conn. App. 138, 145, 739 A.2d 287, cert. denied, 251 Conn. 922, 742 A.2d 358 (1999); Practice Book § 60-5.

The defendant’s challenge to the court’s factual findings focuses not on the findings the court made but on the findings it did not make. According to the defendant, it presented credible evidence that the plaintiff harassed his former coemployees in order to pressure the defendant to settle his claimed right to severance and vacation pay. The only evidentiary support for this proposition that the defendant cites is the testimony of Natalie Chausse. Chausse testified that, on several occasions, the plaintiff had made her uncomfortable by speaking to her about his lawsuit with the intent of extracting information that would assist him in the pursuit of his claim. We agree with the plaintiff that the court reasonably might have found this testimony to be insufficient to substantiate the defendant’s claim of harassment. The court’s finding of facts was not clearly erroneous.

The defendant’s challenge to the legal conclusions of the court decries the validity of the court’s holding that the letter written by the plaintiff’s counsel to the defendant’s counsel did not establish a breach of fiduciary duty by the plaintiff. The plaintiff now concedes that the allegations in the letter were incorrect.

We are doubtful that a minority shareholder, even in a closely held corporation, is a fiduciary. See Banks v. Vito, 19 Conn. App. 256, 262, 562 A.2d 71 (1989); W. Knepper & D. Bailey, Liability of Corporate Officers and Directors (5th Ed. 1993) § 1-13, pp. 31-33. The court did not decide that issue, and we need not address it.

The defendant claims that the court improperly concluded that the plaintiffs conduct was not in breach of his fiduciary obligation, if any, because, according to the defendant, the plaintiffs letter was a publication of his charges against the defendant’s president in a manner that was reckless and malicious. The defendant makes two arguments. First, it disputes the court’s determination that it was the defendant’s president, rather than the plaintiff, who published the plaintiffs erroneous allegations. Second, it contends that the court overlooked additional evidence presented at trial to support the defendant’s claim that the letter established a breach of fiduciary duty.

The defendant argues that the court should have held that the fact that the plaintiffs counsel sent the letter was sufficient to establish the publication of allegations contained therein. The defendant claims that the court was legally bound to recognize that the president was obliged to disclose the plaintiffs allegations to the defendant’s board of directors, especially because the defendant was then engaged in negotiating the sale of the majority of its stock. The defendant’s criticism of the court’s ruling with respect to publication may well be right.

Even if that subordinate conclusion was improper, however, we are not persuaded that the defendant has produced incontrovertible evidence to support its claim of breach of fiduciary duty. The fact that the plaintiffs allegations were incorrect does not demonstrate that they were reckless or malicious. The court reasonably could have concluded, as it did, that the plaintiff merely misconstrued the import of documents referring to a past corporate initiative that the corporation, unbeknownst to the plaintiff, had chosen not to pursue. The court was not obligated to conclude that, on its face, sending the letter was a breach of any fiduciary duty that the plaintiff might have owed the defendant.

The defendant maintains, however, that the court should have considered, as evidence of recklessness and malice, two additional matters of record. One was that the letter was a threat to sue the defendant’s president personally. The second was that the plaintiff had never retracted his incorrect allegations. Even if we were to agree with the defendant about the impropriety of the threat contained in the letter, that would not suffice to establish the defendant’s claim. It was reasonable for the court to conclude that, in the midst of litigation, a threat to seek further judicial relief in the event of an unpaid judgment does not demonstrate harassment or a breach of fiduciary duty.

We similarly disagree with the defendant’s contention that the court was required to assign dispositive weight to the fact that the plaintiff, although asked to retract his allegations of misconduct, declined to do so. The premise for the defendant’s argument is its assertion that the plaintiff lacked any factual basis for his incorrect allegations. The court, however, found to the contrary. It found that the plaintiffs claim was the result of the plaintiffs extrapolation “from [the defendant’s] financial statements and assumptions as to [the salary of the defendant’s president.” Apparently, the court deemed credible the plaintiffs testimony that be believed it to be “highly unlikely but possible” that his allegations were wrong.

In light of the record as a whole and the findings of the court, we concur in the court’s conclusion that the defendant failed to prove that the plaintiff breached a fiduciary duty.

Even if we had any doubt about the merits of this conclusion, we would nonetheless affirm the judgment because we are persuaded that the defendant has failed to prove the damages that it incurred as a result of the plaintiffs alleged breach of his alleged fiduciary duty to the defendant.

The court concluded that the defendant had not provided evidentiary support to establish its claim of harm. The court found that the defendant had not introduced specific information to demonstrate how the defendant’s prospects for sale of its company were impaired by the plaintiffs incorrect representations. The court further found that the “time spent by [the defendant’s president to rebut the plaintiffs allegations] was not quantified or priced out.” It summed up by stating: “Had the issue of damages been reached, the court would have been left to speculate.”

The defendant challenges the validity of the court’s conclusion. It points to the evidence given by the defendant’s president that he had spent two weeks addressing the issues raised by the plaintiffs letter. The defendant asserts that this evidence sufficed to establish damages because “in a small company, such a loss of time by the president means an immediate loss of money to the company in terms of sales.” The defendant does not, however, cite to any evidence of record about a decline in the defendant’s sales or about expenses incurred or opportunities forgone as a result of the president’s inability to focus directly on company business during this time. As was the court, we are at a loss to discern a dollar amount that would measure the harm that the defendant claims to have suffered. The defendant accurately describes the law of damages as permitting a claimant to prevail by presenting only that “degree of proof of damages which the facts permit, but no more.” Bead Chain Mfg. Co. v. Saxton Products, Inc., 183 Conn. 266, 278-79, 439 A.2d 314 (1981). Bead Chain Mfg. Co. does not, however, allow a litigant to assert a claim for damages that lacks any quantifiable basis whatsoever. Id.

We affirm the judgment of the court in favor of the plaintiff on the defendant’s counterclaim. The defendant has failed to establish a factual foundation either for his claim of breach of fiduciary duty by the plaintiff or for his claim of damages caused to the defendant.

The judgment is affirmed except for the plaintiffs claim to recover accrued vacation pay. On the issue of vacation pay, the case is remanded to the trial court for an articulation of whether the plaintiff is entitled to recover vacation pay and, if so, what the amount of his recovery should be.

In this opinion the other judges concurred.

       The plaintiff does not challenge the validity of the judgment against him on the third count of his complaint.

       If the plaintiff was entitled to severance pay, article V of the contract, entitled “Severance,” specified that the due date for such payment was “in one installment thirty days following the Termination Date.”

       The plaintiff also sought an extension of his stock option agreement with the defendant. That request was granted, and the plaintiff purchased 100 shares in July, 1996.

       Section 2.2 of article II states: “Term of Employment. EWI agrees to continue the employ of Employee, and Employee agrees to accept such employment with EWI for a term commencing April 1,1994 (the ‘Commencement Date’) and continuing until March 31, 1996 (the ‘Expiration Date’), unless sooner terminated as provided in this Agreement (the ‘Employment Period’). In addition, subject to Sections 2.6.1 (e) and (f), this Agreement shall be extended automatically and without further action for an additional one (1) year period, and thereafter shall continue to be extended for successive one (1) year periods as of each anniversary of the Expiration Date (in any such case, the ‘Extension Period’). Any Extension Period shall be included with the definition of ‘Employment Period’.”

       Section 2.6.1 of article II states: “Termination. The Employment Period shall be terminated upon the first to occur of the following events:
      “(a) Automatically upon the death of Employee;
      “(b) By EWI upon the date of determination by EWI of the ‘permanent disability’ of Employee as hereinafter provided;
      “(c) By EWI upon the date of written notification by EWI of Employee that his employment will be terminated for ‘Cause’ as hereinafter defined;
      “(d) By Employee upon the date on which Employee notified EWI that his employment will be terminated for ‘Cause’ as hereinafter defined;
      “(e) By EWI at any time after the Expiration Date, upon the date ten (10) days following written notice by EWI to Employee of termination for any reason or no reason; or
      “(f) By Employee at any time after the Expiration Date, upon the date thirty (30) days following written notice by Employee to EWI of termination for any reason or no reason.”

       Presumably, the defendant had no authority to terminate the plaintiffs employment without cause during the initial two year term of the employment contract.

       Article V, entitled “Severance,” states: “In the event Employee is terminated by EWI pursuant to the provisions of Section2.6.1 (e) hereof, Employee will receive a severance payment equal to two months of his current base salary as of the effective date of termination multiplied by the number of full years of service of Employee (measured from Employee’s employment commencement date), provided the maximum period of severance pay shall be six (6) months (the ’Severance Pay’). The Severance Pay will be paid to Employee in one installment thirty days following the Termination Date.”

       The plaintiff also invoices the parol evidence rule in support of his construction of the agreement. In the case of a fully integrated contract, usually manifested by its inclusion of a merger clause, the parties are deemed to have agreed that the terms of their written contract supersede all prior and contemporaneous communications between them. Under such circumstances, a court may not add additional terms to 1he contract. See, e.g., Tallmadge Bros., Inc. v. Iroquois Gas Transmission System, L.P., 252 Conn. 479, 746 A.2d 1277 (2000). In this case, however, the plaintiff has not pointed out any merger clause in the contract. Further, the plaintiff does not indicate that he presented to the trial court any argument based on the parol evidence rule, and the trial court’s memorandum of decision does not address the issue. We, therefore, decline to address it. Practice Book § 60-5; Crest Pontiac Cadillac, Inc. v. Hadley, 239 Conn. 437, 444 n.10, 685 A.2d 670 (1996).

       The defendant’s brief characterizes this offer as nothing more than a calculation of the amount of vacation pay that was at issue. That proposition is not sustained by the trial court’s finding.

       On July 2, 1996, the defendant, again denying liability, made another proffer of payment by tendering a check in the amount of $789.54. The plaintiff rejected this offer as well and returned the check.
      The fact that this second offer was in the form of a tender of payment does not discharge the defendant from its contractual obligation if it is held to have liability for vacation pay. Refusal of a tender of payment does not discharge a debt. State v. Lex Associates, 248 Conn. 612, 629, 730 A.2d 38 (1999); Bronson v. Leibold, 87 Conn. 293, 300, 87 A. 979 (1913).

       The plaintiff has not appealed from the court’s rejection of his statutory claim.

       On May 8, 1997, Richard P. Weinstein, attorney for the plaintiff, wrote to Jeanine M. Dumont, attorney for the defendant, as follows: “I have reason to suspect that substantially large sums of money are being extracted by Mr. Perry [the defendant’s president] from Environmental Warranty, Inc., and that perhaps he has even set up one or more phantom companies. I will be compelled to pursue same in the event we secure a judgment or are unable to satisfy our claims in full. Also, we will reserve the right to pursue those remedies at the present time to the extent that we develop appropriate information.
      “If you should have any questions, please feel free to contact me.”

         One of the clauses in the employment contract between the plaintiff and the defendant gave the plaintiff an option to purchase shares of the defendant. The plaintiff exercised that option in July, 1996, to acquire 100 shares of the defendant’s stock. The court found that, as a result, the plaintiff became one of three common shareholders in the defendant. According to the defendant, the plaintiff became a 10 percent shareholder in the defendant.

       Natalie Chausse testified that, on several occasions, she had encountered the plaintiff at the local post office. She felt uncomfortable in his presence because he asked her questions about how things were going with the company, financially and otherwise, and asked her to comment about “this lawsuit and Charlie.” She also testified that, when the plaintiff came to the office to make his COBRA payment for interim health insurance, he would start asking questions. Duly instructed by the defendant, Chausse did not reply to the plaintiffs questions.


author: O’CONNELL, J.

text:
    EUGENE LIDMAN ET AL. v. LINDA NUGENT
    (AC 18996)
    Spear, Mihalaltos and O’Connell, Js.
    Submitted May 11
    officially released July 25, 2000

      John J. Sheedy, for the appellant (defendant).

      Albert R. Annunziata, with whom, on the brief, was Giancarlo Rossi, for the appellees (plaintiffs).
   Opinion

O’CONNELL, J.

This case comes here on remand from our Supreme Court, Lidman v. Nugent, 252 Conn. 933, 746 A.2d 788 (2000), ordering us to reconsider our decision in Lidman v. Nugent, 55 Conn. App. 905, 741 A.2d 13 (1999), in light of Wichers v. Hatch, 252 Conn. 174, 745 A.2d 789 (2000). The issue is whether the verdict should be set aside as inadequate as a matter of law when the jury returns a verdict awarding the plaintiffs economic damages but zero noneconomic damages. We reverse the judgment of the trial court.

The incident giving rise to this appeal occurred on December 23, 1994, on the Post Road in Milford, where the defendant was operating her automobile in bumper-to-bumper traffic. Her vehicle rolled into the rear of a vehicle operated by Cruz Diaz, causing the Diaz vehicle to roll forward and touch the rear bumper of a vehicle operated by the plaintiff Eugene Lidman. Lidman’s wife, the plaintiff Eleanor Lidman, was a passenger in the vehicle at the time of the incident. There was no damage to the front of the defendant’s vehicle or to the rear of the plaintiffs’ vehicle. The only property that was damaged was the front bumper of the Diaz vehicle, which damage totaled $535. No ambulance was called, and it was not necessary to tow any of the vehicles from the scene.

The plaintiffs brought this action against the defendant, Linda Nugent, claiming personal injuries. They did not bring an action against Diaz. The jury awarded Eugene Lidman $4117.26 in economic damages but zero noneconomic damages, and Eleanor Lidman $3304.24 in economic damages and zero noneconomic damages.

The plaintiffs filed a motion to set aside the verdict as to damages only. The trial court, relying on Johnson v. Franklin, 112 Conn. 228, 152 A. 64 (1930), granted the motion and ordered a new trial, ruling that the verdict must be set aside because “the jury awarded substantial economic damages for the treatment of pain but nothing for the enduring of the pain or [the] physical injuries sustained . . . .”

The defendant appealed, and we summarily affirmed the judgment of the trial court. Lidman v. Nugent, supra, 55 Conn. App. 905. Our Supreme Court subsequently granted the defendant’s petition for certification to appeal and remanded the case to us for reconsideration in light of its recent decision in Wichers v. Hatch, supra, 252 Conn. 174.

In Wichers, the Supreme Court concluded that the per se rule from Johnson was no longer useful or viable and therefore overruled Johnson. Id., 188. The Supreme Court held that “the jury’s decision to award economic damages and zero noneconomic damages is best tested in light of the circumstances of the particular case before it.” Id.

Accordingly, we now turn to a review of the jury verdict in the present case. The well accepted test that is applied to determine whether a verdict should be set aside is whether the award of damages falls somewhere within the necessarily uncertain limits of fair and reasonable compensation in the particular case, or whether the size of the verdict so shocks the sense of justice as to compel the conclusion that the jury was influenced by partiality, mistake or corruption. Bartholomew v. Schweizer, 217 Conn. 671, 687, 587 A.2d 1014 (1991).

The jury is “not obliged to believe that every injury causes pain or the pain alleged.” (Internal quotation marks omitted.) Vajda v. Tusla, 214 Conn. 523, 538, 572 A.2d 998 (1990), quoting Boggavarapu v. Ponist, 518 Pa. 162, 167, 542 A.2d 516 (1988). In the present case, given the minimal nature of the incident and the alleged injuries, there can be no amount of monetary award that would be so extremely low as to shock the conscience. The jury was not compelled to accept the plaintiffs’ claims as to the severity of their injuries, nor was it required to award noneconomic damages merely because it had awarded economic damages. “The trier [of fact] is free to accept or reject, in whole or in part, the evidence offered by either party.” (Internal quotation marks omitted.) Leo v. Leo, 197 Conn. 1, 6, 495 A.2d 704 (1985). The weight to be accorded to testimony is a matter for the jury to determine; Lemonious v. Burns, 27 Conn. App. 734, 737, 609 A.2d 254, cert. denied, 223 Conn. 915, 614 A.2d 823 (1992); and the assessment of damages is peculiarly within its province. Slabinski v. Dix, 138 Conn. 625, 629, 88 A.2d 115 (1952). The jury reasonably could have concluded that the plaintiffs were not entitled to noneconomic damages.

Although the trial court acted in accordance with the state of the law at the time it rendered its decision setting aside the verdict, that decision is not consistent with the law as now set forth by the Supreme Court in Wichers. In view of the Supreme Court’s remand to this court to reconsider our decision in light of Wichers, we must presume that the Supreme Court intended that we apply Wichers retroactively. See Marone v. Waterbury, 244 Conn. 1, 10, 707 A.2d 725 (1998).

The prior judgment of this court in this case is vacated; the judgment of the trial court is reversed and the case is remanded with direction to reinstate the verdict and to render judgment thereon.

In this opinion the other judges concurred.

       The defendant brought an apportionment complaint against Cruz Diaz and Egno Diaz, the owner of the vehicle, claiming that they may be liable for all or some of the plaintiffs’ damages.

       The jury found that the apportionment defendant Cruz Diaz was 50 percent responsible for the accident. Accordingly, the verdict for Eugene Lidman was reduced to $2058.63 in economic damages.

       Eleanor Lidman’s verdict was reduced to $1652.12. See footnote 1.


text:
    HERMAN PLATCOW, ADMINISTRATOR (ESTATE OF LAUREL PLATCOW) ET AL. v. YASUDA FIRE AND MARINE INSURANCE COMPANY OF AMERICA ET AL.
    (AC 20027)
    Lavery, C. X, and Mihalakos and Peters, Js.

      Argued May 8
    officially released July 25, 2000

      Phillip A. Escoriaza, with whom was Howard A. Jacobs, for the appellants (plaintiffs).

      Jon Berk, for the appellees (defendants).
   Opinion

PETERS, J.

The principal issue in this case is whether, under the terms of a long-term automobile lease and the requirements of our insurance statutes and regulations, a lessor must provide uninsured motorist coverage to protect the lessee in the event of the lessee’s injury by an uninsured motorist. The appeal comes to us on a stipulation of facts attached to a reservation of questions by the trial court. We conclude that the lessor had no such obligation.

The plaintiffs, Herman Platcow and June Hansted, are coadministrators of the estate of Laurel Platcow (Platcow). They filed a complaint against the defendants, Nissan Motor Acceptance Corporation (Nissan) and Yasuda Fire & Marine Insurance Company of America (Yasuda). Nissan was the lessor of a private passenger automobile to Platcow under a long-term lease. Yasuda provided liability insurance for the automobile to Nissan. The plaintiffs allege that the defendants were obligated to provide uninsured motorist coverage for Platcow’s benefit. The defendants deny their liability.

The parties requested the court to reserve three questions for appellate review. The stipulated questions are: “(1) Under the circumstances of this case, is Yasuda Fire & Marine Insurance Company of America obligated to extend to the Estate of Laurel Platcow any uninsured/ underinsured motorist benefits? (2) If Yasuda Fire & Marine Insurance Company of America is obligated to extend uninsured motorist protection to the Estate of Laurel Platcow, is the obligation to pay inapplicable due to the statutory mandate of [General Statutes] § 38a-336 (d)? (3) If Yasuda Fire & Marine Insurance Company of America is obligated to extend uninsured motorist protection to the Estate of Laurel Platcow, is the obligation greater than $100,000?” The court granted the parties’ request.

The stipulation of facts establishes the following. On February 8, 1997, Platcow leased an automobile from Nissan. The lease gave her the option to purchase the automobile at the end of the lease period of three years.

The lease required Platcow to purchase liability coverage for the leased automobile. She was obligated, inter alia, to obtain coverage for bodily injury liability of $100,000 per person and $300,000 per occurrence. For the protection of Nissan, the insurance policy to be purchased by Platcow was required to list Nissan as an additional insured.

The lease said nothing about uninsured motorist coverage. The lease did not inform Platcow about her options to purchase additional insurance, either to increase the amount of her liability coverage or to obtain uninsured motorist coverage.

Platcow purchased an insurance policy from Travelers Property & Casualty Insurance Company (Travelers) that provided the coverage required by the lease. The policy also provided uninsured motorist coverage for Platcow in the amount of $100,000.

In addition to requiring Platcow to obtain insurance to indemnify Nissan in the event of loss, Nissan purchased an insurance policy from Yasuda that provided $1 million in excess liability coverage for leased automobiles, including the Platcow automobile. The named insured under the Yasuda policy was Nissan. Neither Platcow as an individual nor lessees as a class were so designated.

In addition to this coverage for the protection of Nissan, the Yasuda policy also provided limited coverage for lessees such as Platcow. The relevant paragraph states in pertinent part, “For the lessee . . . operating the ‘leased auto’ with the permission of [Nissan], the Limit of Insurance provided by this endorsement is the minimum limit required by any applicable compulsory or financial responsibility law.”

On August 8, 1998, while both the Travelers policy and the Yasuda policy were in full effect, Platcow was killed in an accident resulting from the negligence of an uninsured motorist. Travelers paid the plaintiffs $100,000 in accordance with the terms of the policy Platcow had obtained.

The plaintiffs claim that they may pursue a claim under the Yasuda policy for the remaining unpaid damages. They advance three arguments in support of their claim. In their view: (1) Nissan was required to obtain uninsured motorist coverage for Platcow within the Yasuda policy because Nissan, as the owner of the leased automobile, fell within the statutory mandate of General Statutes § 38a-336 (a) (2), under which an automobile insurer must provide uninsured motorist coverage in the same amount as the liability coverage; (2) ambiguities in the Nissan lease and the Yasuda policy must be construed against the defendants so as to require uninsured motorist coverage for Platcow; and (3) the term in the lease that required Platcow to purchase liability insurance in the amount of $100,000 precluded Platcow from exercising a meaningful choice to obtain uninsured motorist coverage in a greater amount. We are not persuaded by the plaintiffs’ arguments.

I

APPLICABILITY OF § 38a-336 (a)

Section 38a-336 is one of a series of statutes governing motor vehicle insurance in this state. Under General Statutes § 38a-371 (a) (1), the owner of a private passenger motor vehicle that is required to be registered in this state must “provide and continuously maintain throughout the registration period security in accordance with [General Statutes §§] 38a-334 to 38a-343, inclusive.” See also General Statutes § 14-12b (a) (1). The minimum amount of motor vehicle insurance coverage that will satisfy this statutory requirement is liability coverage of $20,000 per person for bodily injury or death and $40,000 per accident. See General Statutes § 38a-335 (a); General Statutes § 14-112 (a); Regs., Conn. State Agencies § 38a-334-5 (e).

Section 38a-336 (a) (2) builds on this foundation by requiring any motor vehicle liability insurance policy to include “uninsured and underinsured motorist coverage with limits for bodily injury and death equal to those purchased to protect against loss resulting from the liability imposed by law unless any named insured requests in writing a lesser amount . . . .” The plaintiffs argue that § 38a-336 (a) (2) required the Yasuda policy to include uninsured motorist coverage for Plat-cow in the amount of $1 million.

As the defendants aptly observe, the difficulty with the plaintiffs’ reliance on § 38a-336 (a) (2) is that the plaintiffs fail to take into account the provisions of General Statutes § 38a-363 (d). That section defines the person who is the owner of a motor vehicle for purposes of the statutory provisions governing no-fault motor vehicle insurance. It provides that for multiyear automobile leases that include an option for purchase by the lessee, the “owner” of the automobile is its lessee. Pursuant to § 38a-371 (a) (1), the owner of a private passenger motor vehicle must provide and maintain security, by a policy of insurance, on the vehicle. See Middlesex Ins. Co. v. Quinn, 225 Conn. 257, 269, 622 A.2d 572 (1993). In this case, therefore, the defendants maintain that the statutory obligation to insure fell on Platcow and not on Nissan or its insurer, Yasuda.

The plaintiffs respond to this statutory difficulty by pointing to the fact that no statute expressly “exempts” automobile lessors from providing uninsured motorist coverage. No such exemption is required when the applicable insurance statutes, read together, impose such a duty only on an “owner” of an automobile. Section 38a-363 describes its definitional provisions as applicable to General Statutes §§ 38a-363 to 38a-388. Section 38a-371 (a) (1), in turn, links the definition of “owner” to § 38a-336 by requiring that “[t]he owner of a private passenger motor vehicle . . . shall provide . . . security in accordance with sections 38a-334 to 38a-343, inclusive.” The logical inference from this panoply of interrelated statutory provisions is that, for long-term leases, a lessor has no statutory obligation to purchase any insurance for the protection of a lessee. “[W]e are guided by the principle that the legislature is always presumed to have created a harmonious and consistent body of law .... Indeed, this tenet of statutory construction requiring us to read statutes together is particularly applicable when the statutes relate to the same subject matter.” (Internal quotation marks omitted.) Commission on Human Rights & Opportunities v. Truelove & Maclean, Inc., 238 Conn. 337, 347, 680 A.2d 1261 (1996), quoting Paige v. Town Plan & Zoning Commission, 235 Conn. 448, 455, 668 A.2d 340 (1995); Derwin v. State Employees Retirement Commission, 234 Conn. 411, 420, 661 A.2d 1025 (1995); Daly v. DelPonte, 225 Conn. 499, 510, 624 A.2d 876 (1993).

It does not assist the plaintiffs’ argument to note that our Supreme Court has held that General Statutes (Rev. to 1989) § 38-175c, the predecessor to § 38a-336, is unambiguous. Travelers Indemnity Co. v. Malec, 215 Conn. 399, 403-404, 576 A.2d 485 (1990). Unambiguously, the statute required Travelers to provide Platcow uninsured motorist coverage in the same amount as her liability coverage. Unambiguously, the statute did not require Yasuda to provide her such coverage because Yasuda was insuring Nissan as lessor and had no obligation to insure Platcow as owner.

We conclude that the insurance statutes applicable to this case impose no duty on Nissan to obtain an insurance policy, or for Yasuda to draft an insurance policy, that provides long-term lessees such as Platcow with insurance coverage for injuries caused by uninsured motorists. Further, we can discern no statutory basis for requiring Nissan or Yasuda to inform long-term lessees such as Platcow of the variety of insurance options that they might exercise. Nissan was not Plat-cow’s insurer, either in fact or in law. Yasuda was under no statutory obligation to act as Platcow’s insurer. Accordingly, we conclude that § 38a-336 (a) (2) does not provide the plaintiffs the relief that they seek.

II

OBLIGATIONS UNDER THE NISSAN LEASE AND THE YASUDA POLICY

The plaintiffs’ second claim is that Platcow was entitled to uninsured motorist coverage because ambiguities in the Nissan lease and the Yasuda policy must be resolved in her favor to provide such coverage. We discern no such ambiguity.

The plaintiffs base their argument on an alleged inconsistency in the defendants’ view of their obligations. The defendants maintain that, although they had no statutory obligation to provide uninsured motorist coverage for Platcow, they voluntarily, in a consensual agreement, decided to afford Platcow limited insurance coverage, which they denominate as “step down” or “cut back” coverage.

The plaintiffs argue that the defendants’ position is internally inconsistent because, on the one hand, the defendants state that they could have chosen not to provide any uninsured motorist coverage and yet, on the other hand, the Yasuda policy provides some such coverage. We fail to see the inconsistency. Statutes that make motorist insurance mandatory in some circumstances do not preclude contractual agreements that voluntarily provide coverage for a distinct class of beneficiaries for whom the statutes provide no relief. See Cook v. Collins Chevrolet, Inc., 199 Conn. 245, 253, 506 A.2d 1035 (1986).

As the defendants document, a number of state courts have validated provisions in insurance policies that afford limited insurance coverage for cases in the absence of statutory mandates for full coverage. See, e.g., Aubrey v. Harleysville Ins. Co., 140 N.J. 397, 405-406, 658 A.2d 1246 (1995); Liberty Mutual Ins. Co. v. Aetna Casualty Ins. Co., 168 App. Div. 2d 121, 131-33, 571 N.Y.S.2d 735 (1991); Universal Underwriters v. Metropolitan Property & Life Ins. Co. 298 S.C. 404, 409, 380 S.E.2d 858 (1989). We agree with the reasoning of these decisions.

Under the circumstances of this case, the cut back provision affords no remedy to the plaintiffs. The policy expressly provided coverage to lessees only for “the minimum limit required by any applicable compulsory or financial responsibility law.” The most uninsured motorist coverage that Platcow could have received under this policy provision was $20,000. Even that recovery is unavailable to the plaintiffs because they have recovered $100,000 under the Travelers policy. See General Statutes § 38a-336 (d).

We conclude, therefore, that neither the Nissan lease nor the Yasuda policy furnishes contractual support for the plaintiffs’ claimed entitlement to $1 million in uninsured motorist coverage. It follows from our con-elusion in part I of this opinion that neither Nissan nor Yasuda had any statutory obligation to provide any uninsured motorist coverage to Platcow, and that they had no such contractual obligation to Platcow unless, voluntarily, they chose to undertake it. Accordingly, they had no contractual obligation to disclose to Plat-cow that she could not look to them for insurance coverage that the written documents did not include expressly. The relevant documents were not ambiguous on their face and did not become ambiguous by virtue of the inclusion of the cut back provision in the Yasuda policy.

Ill

UNCONSCIONABILITY

The plaintiffs’ final claim is that the provision in the Nissan lease that required Platcow to purchase bodily injury liability coverage in the amount of $100,000 per person and $300,000 per occurrence had the effect of precluding her from purchasing insurance in a greater amount. Indisputably, broader liability insurance would have provided broader uninsured motorist coverage for Platcow. The plaintiffs argue that Nissan had a duty to dispel any erroneous inferences about the light to purchase such additional insurance that Platcow might have drawn from the lease provision as written. According to the plaintiffs, it was unconscionable for Nissan not to clarify Platcow’s options. They contend, therefore, that the lease and the Yasuda policy are unenforceable to the extent that they fail to provide $100,000 in uninsured motorist coverage to Platcow. The plaintiffs’ claim cannot be sustained on the present record.

The plaintiffs articulate their claim as follows. Once Platcow read the insurance clause in the lease, she would not have understood that (1) she was free to buy more or different liability coverage or uninsured motorist coverage, (2) Nissan had no statutory obligation to provide additional insurance for her benefit if the stipulated coverage of $100,000 and $300,000 proved to be inadequate and (3) Nissan had no statutory obligation to protect her from injury at the hands of a third person or to provide uninsured motorist coverage for such an occurrence.

Because the stipulated facts do not purport to address whether Platcow was, in fact, misled in any way, the plaintiffs’ claim devolves into the proposition that, as a matter of law, any lease that is a form contract is unconscionable and unenforceable if its terms fail to provide guidance to a lessee about insurance options that are not precluded by the lease. Although the ultimate determination of whether a contract is unconscionable is a question of law; Cheshire Mortgage Service, Inc. v. Montes, 223 Conn. 80, 87, 612 A.2d 1130 (1992); courts do not decide such issues of law in a factual vacuum. Cf. General Statutes § 42a-2-302 (b).

The plaintiffs have cited no authority for the broad proposition that they advocate. Indeed, recent Connecticut case law points in the other direction. In Smith v. Mitsubishi Motors Credit of America, Inc., 247 Conn. 342, 351, 721 A.2d 1187 (1998), our Supreme Court held that a lessor’s use of a form contract did not, per se, impose on the lessor “a sua sponte duty to direct the attention of any potential individual lessee to important clauses contained in the automobile lease.” In the absence of an unconditional duty to explain the terms that are stated in a long-term lease, we are unprepared to impose on a lessor an unconditional duty to explain what such a lease does not contain. We conclude, therefore, that there is no support for the plaintiffs’ claim of unconscionability.

IV

CONCLUSION

We must answer the reserved questions in light of the conclusions that we have reached with respect to each of the plaintiffs’ alleged claims for relief.

The first reserved question is: “Under the circumstances of this case, is Yasuda Fire & Marine Insurance Company of America obligated to extend to the Estate of Laurel Platcow any uninsured/underinsured motorist benefits?” We answer this question “No.”

We decline to answer either the second or the third reserved question. Each of these questions assumes, contrary to our answer to question one, that Yasuda was obligated to extend uninsured motorist protection to the estate of Laurel Platcow. Even though an issue is raised by a reserved question rather than by an appeal after judgment, discretionary prudential concerns counsel against answering a question that lacks both a factual and a legal predicate. Cf. Motor Vehicle Manufacturers Assn. of the United States, Inc. v. O’Neill, 203 Conn. 63, 75-76, 523 A.2d 486 (1987); State v. Zach, 198 Conn. 168, 178, 502 A.2d 896 (1985); State v. Sanabria, 192 Conn. 671, 684-85, 474 A.2d 760 (1984).

No costs will be taxed to either party.

In this opinion the other judges concurred.

       In this opinion, we use the term “uninsured” to include both uninsured and underinsured motorist coverage.

       None of the reserved questions addresses the potential liability of Nissan. Nissan nonetheless has standing to pursue this appeal because answers to the reserved questions require a determination of whether Nissan owed Platcow the duty to obtain a different insurance policy from Yasuda.

       Paragraph thirteen of the lease agreement provides in relevant part: “Insurance: I realize I am responsible for the following types and amounts of coverage during the lease term:
      “(a) Comprehensive, including fire and theft insurance if the Vehicle is a car . . . with a maximum deductible of $1500;
      “(b) Collision insurance with a maximum deductible of $1500;
      “(c) Property damage liability of $50,000 per occurrence; and “(d) Bodily injury liability of $100,000 per person and $300,000 per occurrence.
      “I understand that the insurance policy must name you as loss payee on coverages (a) and (b) and provide you primary coverage as an additional insured on coverages (c) and (d). At your request, I will provide you with proof that the coverages are in effect. . . .”

       The plaintiffs refer in their brief to Nissan’s alleged failure to inform Platcow about a range of options that she might have wanted to consider. Because the stipulated facts do not address the manner in which the lease agreement was negotiated, we do not know what conversations Nissan might have had with Platcow at that time. With respect to alleged defects in the leasing arrangement, we are, therefore, limited to a consideration of what is stated, or not stated, in the lease agreement itself.

       Paragraph four of a provision in the Yasuda policy entitled “Liability Coverage” states: “The insurance provided by this endorsement is excess over any other collectible insurance, whether primary, excess or contingent, unless such insurance is specifically written to apply in excess of this policy. ”

       Under General Statutes § 14-154a, Nissan was at risk of tort liability to third parlies for injuries caused by the operation of the automobile leased to Platcow. “For more than 100 year’s, § 14-154a and its statutory antecedents have imposed on owners of leased vehicles obligations that significantly supplement common-law principles of vicarious liability. We have construed the statute as having created a ‘statutory suretyship,’ pursuant to which the owner of a leased automobile, driven by an authorized driver, is directly liable for injuries caused by the operation of the vehicle. See Gionfriddo v. Avis Rent A Car System, Inc., 192 Conn. 280, 284, 287-88, 472 A.2d 306 (1984); Levick v. Norton, 51 Conn. 461, 469 (1884).” Smith v. Mitsubishi Motors Credit of America, Inc., 247 Conn. 342, 346, 721 A.2d 1187 (1998).

       Under General Statutes § 14-112, the minimum amount of insurance coverage is $20,000 per person and $40,000 per occurrence.

       Travelers is not a party to the present litigation.

       We address these claims in an order that differs from the presentation in the plaintiffs’ brief.

       General Statutes § 38a-371 provides in relevantpart: “Mandatory security requirements, (a) (1) The owner of a private passenger motor vehicle required to be registered in this state shall provide and continuously maintain throughout the registration period security in accordance with sections 38a-334 to 38a-343, inclusive. . . .
      “(b) The security required by this section, may be provided by a policy of insurance complying with this section issued by or on behalf of an insurer licensed to transact business in this state . . .
      “(d) The owner of any private passenger motor vehicle required to be registered in this state who operates it or permits it to be operated in this state is guilty of a class C misdemeanor if he fails to provide the security required by this section.
      “(e) An owner of a private passenger motor vehicle with respect to which security is required who fails to have such security in effect at the time of an accident shall have all of the rights and obligations of an insurer under sections 38a-363 to 38a-388, inclusive, and shall remain subject to all the obligations of the Financial Responsibility Law, sections 14rll2 to 14-133, inclusive. . . .”

       General Statutes § 38a-335 (a) provides: “Each automobile liability insurance policy shall provide insurance in accordance with the regulations adopted pursuant to section 38a-334 against loss resulting from the liability imposed by law, with limits not less than those specified in subsection (a) of section 14-112, for damages because of bodily injury or death of any person and injury to or destruction of property arising out of the ownership, maintenance or use of a specific motor vehicle or motor vehicles within any state, territory, or possession of the United States of America or Canada. ”
      Section 38a-334-5 (e) of the Regulations of Connecticut State Agencies provides in relevant part: “Limits ofliability. The limit of the insurer’s liability shall not be less than the applicable limits for bodily injury and property damage liability specified in subsection (a) of section 14-112 of the general statutes. ...”
      General Statutes § 14-112 (a) requires “proof of financial responsibility to satisfy any claim for damages by reason of personal injury to, or the death of, any one person, of twenty thousand dollars, or by reason of personal injury to, or the death of, more than one person on account of any accident, of at least forty thousand dollars, and for damage to property of at least ten thousand dollars . . . .”

       General Statutes § 38a-336 (a) (2) provides in relevant part: “Notwithstanding any provision of this section to the contrary, each automobile liability insurance policy issued or renewed on and after January 1, 1994, shall provide uninsured and underinsured motorist coverage with limits for bodily injury and death equal to those purchased to protect against loss resulting from the liability imposed by law unless any named insured requests in writing a lesser amount, but not less than the limits specified in subsection (a) of section 14-112. . . . No such written request for a lesser amount shall be effective unless any named insured has signed an informed consent form which shall contain: (A) An explanation of uninsured and underinsured motorist insurance approved by the commissioner; (B) a list of uninsured and underinsured motorist coverage options available from the insurer; and (C) the premium cost for each of the coverage options available from the insurer. Such informed consent form shall contain a heading in twelve-point type and shall state: ‘WHEN YOU SIGN THIS FORM, YOU ARE CHOOSING A REDUCED PREMIUM, BUT YOU ARE ALSO CHOOSING NOT TO PURCHASE CERTAIN VALUABLE COVERAGE WHICH PROTECTS YOU AND YOUR FAMILY. IF YOU ARE UNCERTAIN ABOUT HOW THIS DECISION WILL AFFECT YOU, YOU SHOULD GET ADVICE FROM YOUR INSURANCE AGENT OR ANOTHER QUALIFIED ADVISER.’ ”

       General Statutes § 38a-363 provides in relevant part: “As used in sections 38a-19 and 38a-363 to 38a-388, inclusive . . . (d)‘Owner’of a private passenger motor vehicle means the person who owns the legal title thereto, except where the motor vehicle is the subject of a security agreement or lease with option to purchase with the debtor or lessee having the right to possession, in which event ‘owner’ means the debtor or lessee. . . .”

       For the text of General Statutes § 38a-871, see footnote 10.

       For the contrary proposition, the plaintiffs cite two Connecticut trial court cases in which those courts concluded that car rental agencies must provide uninsured motorist coverage. George v. Allstate Ins. Co., Superior Court, judicial district of New Haven, Docket No. 368984 (July 17, 1998) (22 Conn. L. Rptr. 450); Aversano v. Agency Rent-A-Car, Superior Court, judicial district of Danbury, Docket No. 367302 (October 31, 1997) (20 Conn. L. Rptr. 553). If these cases involve short-term rentals, they are distinguishable; if they involve long-term leases, they are unpersuasive because they fail to take into account the provisions of General Statutes § 38a-371 that are applicable to long-term leases.
      The plaintiffs also argue that we should follow the reasoning in Moon v. Guarantee Ins. Co., 764 P.2d 1331, 1334-35 (Okla. 1988), in which the insurer of a car rental company was held to have a duty to provide uninsured motorist coverage for the benefit of a lessee;. Again, the opinion does not disclose whether the agreement between the rental company and the lessee was short-term or long-term. More important, Oklahoma apparently has no statutory definition that distinguishes between short-term rentals and long-term leases.

       Connecticut insurance regulations permit an insurer of a lessor to exclude entirely any liability coverage for customers of the lessor. Regs., Conn. State Agencies § 38a-334-5 (c) (11) (B) (ii). It is undisputed that, in this state, mandatory uninsured motorist coverage operates in parity with liability insurance coverage. The plaintiffs have cited no statute that imposes a duty on an insurer to provide uninsured motorist coverage under circumstances in which the insurer need not afford liability coverage.

       Our conclusion does not conflict with the holdings of Connecticut cases that condition the enforceability of reduction in uninsured motorist coverage on the informed consent of the insured. See, e.g., Colonial Penn Ins. Co. v. Bryant, 245 Conn. 710, 721-22, 714 A.2d 1209 (1998); Nationwide Mutual Ins. Co. v. Pasion, 219 Conn. 764, 770-71, 594 A.2d 468 (1991). These cases involve the purchase of uninsured motorist coverage by an insured from his or her insurer. Platcow bought insurance, and received uninsured motorist coverage, from Travelers and no1 from Yasuda.

       The plaintiffs’ brief does not contest the proposition that literal application of the terms of the Yasuda policy affords them no relief.

       See also footnote 12.

       Notably, the plaintiffs’ complaint does not allege that Platcow was misled by the terms of the Nissan lease. It contains no claim of unconscionability and does not claim that either of the defendants had any duty of disclosure to Platcow.

       The plaintiffs’ complaint does not allege that Platcow was a consumer lessee or that she had leased the car for private rather than professional purposes.


author: LAVERY, C. J.

text:
    ELLEN BERTY v. DENNIS GORELICK ET AL. DENNIS GORELICK ET AL. v. EMILY MONTANARO
    (AC 16455)
    Lavery, C. J., and Foti and Pellegrino, Js.
    Argued May 2
    officially released July 25, 2000

      Mark M. Kratter, for the appellant (named defendant in the first case, named plaintiff in the second case).

      Carolyn R. Linsey, with whom, on the brief, was Susan E. Stauder, for the appellee (substitute plaintiff in the first case, defendant in the second case).
   Opinion

LAVERY, C. J.

Dennis Gorelick, the named defendant in the first case, the named plaintiff in the second case, appeals from the judgment of the trial court in these consolidated cases in which the substitute plaintiff in the first case, the defendant in the second case, Emily Montanaro, executrix of the estate of the named plaintiff in the first case, Ellen Berty, was awarded $147,712.06 plus costs in connection with her claims of conversion, breach of fiduciaiy duty and undue influence. On appeal, Dennis Gorelick claims that the court improperly (1) found that he owed a fiduciary duty to Berty, (2) placed the burden of proof on him to show that he did not breach his fiduciary duties to Berty and (3) failed to credit certain evidence presented at trial. We affirm the judgment of the trial court.

The following facts are relevant to this appeal. Glen Gorelick and Dennis Gorelick are the grandsons of the original plaintiff in the first case, Ellen Berty, now deceased. Montanaro is the daughter of Berty. In its memorandum of decision, the trial court stated: “On April 19, 1976, Berty conveyed 487-491 Grand Street in Bridgeport to Dennis Gorelick, retaining a life estate in the property for herself. At the same time, Dennis Gorelick executed a deed conveying a half interest in the property to Glen Gorelick, which deed was never recorded. Berty resided on the first floor of her property until the illness in October, 1993, resulting in her death. The second floor was occupied by tenants. On May 28, 1993, Dennis Gorelick transferred his interest in the property to himself as trustee for his children and to Glen Gorelick in trust for his children. From 1987 to 1993, Dennis Gorelick assisted Berty in her financial transactions, and was a joint account holder with Berty on savings accounts, checking accounts, money market accounts and certificates of deposit. Between 1990 and 1993, Dennis Gorelick withdrew approximately $147,712.06 from Berty’s bank accounts for the personal use of himself and Glen Gorelick.

“On December 17, 1992, Berty wrote a blank check to Montanaro, which Montanaro used to withdraw the $41,133.98 contained in [a checking] account. Mon-tanaro set up a joint account with Berty at another bank, and the same day Berty wrote two checks to Montanaro from the account totaling $25,000. On March 5,1993, Montanaro and Dennis Gorelick were appointed co-attomeys-in-fact for Berty.”

On September 23,1993, Berty filed a four count complaint against the Gorelicks, alleging two counts of conversion, one count of breach of fiduciary duty against Dennis Gorelick individually, and one count of fraudulent conveyance against Dennis Gorelick and Glen Gor-elick as trustees. On October 19, 1993, Berty died and Montanaro was appointed executrix of her estate. On February 14, 1994, Glen Gorelick and Dennis Gorelick filed a two count amended complaint against Mon-tanaro. The first count alleged that Montanaro had used undue influence to induce Berty to transfer to Mon-tanaro money that Dennis Gorelick claimed rightfully was his. The second count alleged that Montanaro had wrongfully induced Berty to file a frivolous lawsuit against the Gorelicks.

On August 9, 1996, the court rendered judgment in the first case in favor of Montanaro in the amount of $147,712.06 plus costs on her claims of conversion, breach of fiduciary duty and undue influence, and in favor of the Gorelicks on Montanaro’s claim of fraudulent conveyance. The court rendered judgment in the second case in favor of Montanaro on the Gorelicks’ claims against her of undue influence. This appeal followed.

I

Dennis Gorelick (Gorelick) contends on appeal that the court improperly concluded that he had a fiduciary relationship with Berty. We need not address this claim on its merits because in his answer to Montanaro’s amended complaint, Gorelick admitted without qualification the allegation that he “owed a duty to Ellen Berty to represent her interests, financial and otherwise, as a fiduciary.” This admission ends the matter. “An admission in a defendant’s answer to an allegation in a complaint is binding as a judicial admission. ... An admission in pleading dispenses with proof, and is equivalent to proof. ... It is the full equivalent of uncontradicted proof of these facts by credible witnesses . . . and is conclusive on the pleader.” (Citations omitted; internal quotation marks omitted.) Days Inn of America, Inc. v. 161 Hotel Group, Inc., 55 Conn. App. 118, 126, 739 A.2d 280 (1999); see Connecticut Hospital for the Insane v. Brookfield, 69 Conn. 1, 4, 36 A. 1017 (1897).

Gorelick contends that because other paragraphs in the amended complaint refer to him as attomey-in-fact and grandson, his admission of a fiduciary relationship with Berty applied only when both conditions existed. Neither the allegation in the amended complaint discussed previously nor its corresponding answer, however, stated any limitation.

“Pleadings should be direct, precise and specific. . . . The court should not have to mathematically dissect the pleadings in order to understand them.” (Citation omitted.) Vigue v. John Hancock Mutual Life Ins. Co., 147 Conn. 305, 306, 160 A.2d 484 (1960). An admission by answer carries all reasonable implications of fact and legal conclusions arising from it. Guiel v. Barnes, 100 Conn. 737, 743, 125 A. 91 (1924). We will not torture the ordinary meaning of pleadings to reach the result a party wants and do not accept the limitations the defendant attempts to place on his admission. Accordingly, the court correctly determined that Gore-lick owed a duty to represent Berty’s interests as a fiduciary.

II

Gorelick next contends that the court improperly placed on him the burden of proof to show that he did not breach Berty’s trust and confidence in dealing with her as a fiduciary. We disagree.

When issues on appeal involve questions of law, this court reviews those claims de novo. Miles v. Foley, 54 Conn. App. 645, 648, 736 A.2d 180 (1999), aff'd, 253 Conn. 381, 752 A.2d 503 (2000). Our de novo review reveals that the court properly followed our case law by placing the burden on Gorelick to show that he did not breach his fiduciary duties to Berty. “[A] fiduciary or confidential relationship is characterized by a unique degree of trust and confidence between the parties, one of whom has superior knowledge, skill or expertise and is under a duty to represent the interests of the other. . . . The superior position of the fiduciary or dominant party affords him great opportunity for abuse of the confidence reposed in him. . . . Once a [fiduciary] relationship is found to exist, the burden of proving fair dealing properly shifts to the fiduciary.'’ (Citation omitted; emphasis added; internal quotation marks omitted.) Konover Development Corp. v. Zeller, 228 Conn. 206, 219, 635 A.2d 798 (1994).

In other words, Gorelick had the burden to prove that he dealt fairly with Berty. See id. The court properly determined that he owed a fiduciary duty to Berty. Accordingly, the court also properly placed the burden on Gorelick to show that fair dealing occurred between him and Berty. We therefore agree with the court’s allocation of the burden of proof.

Ill

Gorelick also argues that the court improperly failed to give appropriate weight to evidence he submitted. We disagree.

“If the factual basis of the court’s decision is challenged, our review includes determining whether the facts set out in the memorandum of decision are supported by the evidence or whether, in light of the evidence and the pleadings in the whole record, those facts are clearly erroneous.” (Internal quotation marks omitted.) Keefe v. Norwalk Cove Marina, Inc., 57 Conn. App. 601, 606, 749 A.2d 1219, cert. denied, 254 Conn. 903, 755 A.2d 881 (2000). “The court’s findings of fact are binding on this court unless they are clearly erroneous in light of the evidence and the pleadings in the record as a whole.” Breiner v. State Dental Commission, 57 Conn. App. 700, 704, 750 A.2d 1111 (2000).

Ample evidence existed before the court that supports its conclusion that Gorelick breached his fiduciary duties to Berty. The court found that from 1987 until 1993, Gorelick assisted Berty with her financial transactions, and was a joint account holder with Berty on savings accounts, checking accounts, money market accounts and certificates of deposit. The court further found that between 1990 and 1993, Gorelick withdrew $147,712.06 without Berty’s authorization.

Other testimony at trial, not explicitly mentioned in the court’s memorandum of decision but contained in the trial transcript, pertains as well to Gorelick’s misuse of Berty’s funds. For example, Gorelick admitted that he had forged Berty’s name on at least two checks payable to himself that totaled approximately $19,477. Gorelick produced a written authorization to sign checks bearing Berty’s signature, which an expert for Montanaro testified had been altered and cut down from its original size. The expert also testified on the basis of his examination of the state of dryness of the written ink that Berty’s signature was written at a significantly earlier date than the written body of the document. Finally, the expert testified that another letter bearing Berty’s signature exhibited signs of alteration and forgery.

As the court stated in its memorandum of decision: “The evidence demonstrates that because of the control exercised by Dennis Gorelick over Berty’s financial affairs, because her various accounts were also in Dennis Gorelick’s name, and because of Berty’s advanced age, physical and mental condition, Dennis Gorelick occupied a fiduciaiy position with respect to Berty. Furthermore, as such a finding shifts the burden to Dennis Gorelick, he has failed to prove by clear and convincing evidence that the withdrawals of the funds amounting to over $147,000 constituted gifts or were authorized by Berty. Accordingly, it is this court’s finding that Dennis Gorelick breached his fiduciary duty toward Berty.”

We need go no further. The function of our appellate courts is not to examine the record and see if the trier of fact could have reached a contrary conclusion. Westport Taxi Service, Inc. v. Westport Transit District, 235 Conn. 1, 14, 664 A.2d 719 (1995). “Simply put, we give great deference to the findings of the trial court because of its function to weigh and interpret the evidence before it and to pass upon the credibility of witnesses.” (Internal quotation marks omitted.) Hartford Electric Supply Co. v. Allen-Bradley Co., 250 Conn. 334, 346, 736 A.2d 824 (1999). The court’s factual findings were not clearly erroneous.

The judgment is affirmed.

In this opinion the other judges concurred.

       Dennis Gorelielc is a party to this appeal in both his personal capacity and his capacity as trustee. Glen Gorelick, the other defendant in the first case and plaintiff in the second case, is not a party to this appeal.

       On September 23, 1993, Ellen Berty, the late grandmother of Dennis Gorelick and Glen Gorelick, filed a four count complaint against the Gore-licks. Berty alleged two counts of conversion, one count of breach of fiduciary duty against Dennis Gorelick individually, and one count of fraudulent conveyance against Dennis Gorelick and Glen Gorelick as trustees.
      On February 14, 1994, Glen Gorelick and Dennis Gorelick filed a two count amended complaint against Emily Montanaro, the executrix of Berty’s estate, who thereafter was substituted as the plaintiff in the other action after Berty’s death. In the first count, the Gorelicks claimed that Montanaro had used undue influence to induce Berty to transfer to Montanaro money that Dennis Gorelick claimed rightfully was his. In the second count, the Gorelicks alleged that Montanaro had wrongfully induced Berty to file a frivolous lawsuit against the Gorelicks. At the conclusion of the trial, the Gorelicks withdrew count two of their amended complaint.

       When Berty died, Montanaro moved to substitute herself as the plaintiff in the first case. The motion was granted by agreement on September 5,1995.

       Montanaro has not appealed from the judgment in favor of the Gorelicks on her claim of fraudulent conveyance.

       Dennis Gorelick filed a motion for articulation, which was denied on August 26, 1996. On appeal, Gorelick’s counsel conceded that he did not file a motion for review of the trial court’s denial of the motion for articulation. See Baron v. Planning & Zoning Commission, 22 Conn. App. 255, 259, 576 A.2d 589 (1990) (burden of ensuring record sufficient for review rests with appellant).