author: Daly, J.

text:
    State of Connecticut v. Charles L. Ross
    (6646)
    Borden, Daly and Foti, Js.
    Argued February 1
    decision released May 23, 1989

      Mark Rademacher, for the appellant (defendant).

      Frederick W. Fawcett, assistant state’s attorney, with whom, on the brief, were Donald A. Browne, state’s attorney, and C. Robert Satti, Jr., assistant state’s attorney, for the appellee (state).
   Daly, J.

The defendant appeals from the judgment rendered after a jury trial convicting him of manslaughter in the first degree in violation of General Statutes § 53a-55 (a) (3). He claims that the trial court erred (1) in denying his motion to suppress certain statements he had made to police and his motion to suppress the gun seized as a result of a warrantless arrest and inadequate Miranda warnings, (2) excluding evidence concerning third party culpability for the crime, and (3) in restricting his closing argument. We find error.

The jury could reasonably have, found the following facts. On the evening of December 26, 1986, the victim, a student at the University of Bridgeport, was working as a bouncer at the Austin Street Cafe in Bridgeport. The cafe catered primarily to the college students in the area. On that evening, the defendant and a companion entered the cafe. Shortly before 10:30 p.m., the defendant’s companion and the victim became engaged in a heated argument because the victim refused to permit him to leave the cafe with a beer bottle. The defendant did not participate in this exchange, but rather urged his companion to leave the premises. After both the defendant and his companion were asked to leave the cafe, the companion slammed his beer bottle on a table. The defendant left the cafe, followed by his companion and the victim. Within eight to ten seconds after the departure of the defendant and his companion, the victim, who was standing in the cafe doorway, was shot in the chest. The victim died at the hospital shortly thereafter.

At approximately 8:30 p.m. on December 27, 1986, Jose Burgos-Ortiz arrived at the Bridgeport police headquarters and made a statement in which he stated that he had been with the defendant at the Austin Street Cafe the previous night and that the defendant had shot the victim. On the basis of this statement, three Bridgeport police detectives proceeded to the defendant’s apartment. Although the police did not have an arrest warrant, the defendant was arrested in his home, and he received a partial recitation of his Miranda rights. Following his arrest, a detective asked the defendant whether he owned a gun. He replied that he did and, in response to the inquiry concerning its location, he stated that the gun was under his bed mattress. One of the detectives retrieved the .38 caliber pistol. At trial, one of the state’s experts testified that the bullet extracted from the victim’s chest was fired from the defendant’s pistol, while another of the state’s experts testified that he was unable to make any conclusion linking the gun and the bullet.

The defendant was taken to police headquarters where, at approximately 10:15 p.m., he was fully advised of his Miranda rights. The defendant denied, both orally and in writing, that he had been in the Austin Street Cafe the previous evening. He stated that he had gone to visit his daughter in Buffalo, New York, but had gotten lost and eventually had returned home. The defendant, who had a valid city gun permit, admitted that he was carrying his pistol that evening.

At approximately midnight, the detectives arranged a confrontation between the defendant and Burgos-Ortiz, who was still at police headquarters. Burgos-Ortiz accused the defendant of shooting the victim; the defendant denied being with Burgos-Ortiz the previous evening.

The following day, December 28, 1987, the defendant made a second statement to the police. In this statement, he indicated that on December 26,1987, he had been drinking heavily after leaving work early. He also stated that he had been wearing his pistol in a holster that night. He recalled drinking in several bars with Burgos-Ortiz but remembered nothing of the dispute in the Austin Street Cafe. The next thing he remembered was waking up in a car being driven by Burgos-Ortiz on the New Jersey turnpike. When he awoke, he found his gun in the jacket he was wearing, which belonged to Burgos-Ortiz. The two drove to the home of Burgos-Ortiz’ sister in Camden, New Jersey. While there, the defendant gave his gun to Burgos-Ortiz, who wanted to clean it. Prior to handing the gun over, the defendant extracted four live bullets and one shell. The defendant and Burgos-Ortiz returned to Bridgeport shortly thereafter.

Burgos-Ortiz disappeared from Bridgeport after leaving police headquarters on the night of December 27, 1987. He never reported back to work or to his probation officer. The police made several inquiries as to his whereabouts, but were unable to locate him.

I

The defendant first claims that the trial court erred in refusing to suppress the oral statements made by him at his apartment and the .38 caliber pistol seized as a result of those statements. He claims that both should have been suppressed because they followed an illegal warrantless arrest made in violation of his federal and state constitutional rights. He also claims the statements should have been suppressed because they followed inadequate Miranda warnings, in violation of his rights under the fifth and fourteenth amendments to the United States constitution.

We turn first to the defendant’s fifth amendment claim. The trial court denied the motion to suppress the statements and the gun, finding that the statements were not taken in violation of Miranda, and that they were voluntarily made. Thus, the question for our review is whether the trial court’s decision was clearly erroneous in light of the evidence in the whole record. Practice Book § 4061; State v. Enright, 17 Conn. App. 142, 146, 550 A.2d 1095 (1988).

It is by now axiomatic that, prior to any custodial interrogation, a suspect must be warned that he has a right to remain silent, that any statements he does make can be used as evidence against him, that he has a right to the presence of an attorney and that if he is indigent, an attorney will be appointed to represent him. Miranda v. Arizona, 384 U.S. 436, 444, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966). In Miranda, the court held that the fifth amendment requires the exclusion of any statement made by an accused during custodial interrogation, unless he has been advised of these four rights and has voluntarily waived them. Id.

In State v. Gray, 200 Conn. 523, 531, 512 A.2d 217, cert. denied, 479 U.S. 940, 107 S. Ct. 423, 93 L. Ed. 2d 373 (1986), our Supreme Court followed the dictates enunciated in California v. Prysock, 453 U.S. 355, 359, 101 S. Ct. 2806, 69 L. Ed. 2d 696 (1981), and recognized that although deviation from the express language of Miranda may be tolerated in a warning, a suspect must nevertheless receive a fully effective equivalent of the four essential warnings.

It is clear from the record in the present case that the defendant did not receive the four essential Miranda warnings or a fully effective equivalent thereof. We recognize that federal cases have held that the failure to include one of the four essential Miranda warnings does not constitute a per se fifth amendment violation. See Michigan v. Tucker, 417 U.S. 433, 444, 94 S. Ct. 2357, 41 L. Ed. 2d 182 (1974) (defendant never informed that an attorney would be appointed for him if he could not afford one). In the present case, however, the defendant was not informed of his right to have appointed counsel present before and during any questioning nor was he informed of the consequences of waiving his right against self-incrimination. Both of these warnings have been held to be required in order to comply with Miranda. See Estelle v. Smith, 451 U.S. 454, 467, 101 S. Ct. 1866, 68 L. Ed. 2d 359 (1981) (defendant never informed of his right to remain silent, which violated his fifth amendment rights); Eagan v. Duckworth, 843 F.2d 1554, 1557 (7th Cir.), cert. granted, 488 U.S. 888, 109 S. Ct. 218, 102 L. Ed. 2d 209 (1988) (defendant never informed of right to presence of counsel during questioning). The objective of Miranda warnings is not to mold police conduct for its own sake; the purpose of the warnings instead is to dissipate the compulsion inherent in custodial interrogation and, in doing so, guard against abridgement of a suspect’s fifth amendment rights. Moran v. Burbine, 475 U.S. 412, 425, 106 S. Ct. 1135, 89 L. Ed. 2d 410 (1986). Clearly, the warning that the defendant received was not a mere deviation from the language of Miranda. Rather, there was a total absence of two essential warnings. On the basis of our review of the record, we conclude that the trial court erred in finding that the defendant had been fully advised of his constitutional rights. Accordingly, the court erred in failing to suppress the defendant’s statements made at his apartment about the existence and location of his gun.

We also find error in the court’s failure to suppress the gun seized at the defendant’s apartment. Because the gun was seized as a direct result of the defendant’s statements, which we hold should have been suppressed, the gun likewise should have been suppressed. See United States v. Lee, 699 F.2d 466, 468 (9th Cir. 1982); United States v. Downing, 665 F.2d 404, 409 (1st Cir. 1981); United States v. Guarino, 629 F. Sup. 320, 326 (D. Conn. 1986).

The erroneous denial of the defendant’s motion to suppress requires us to reverse his conviction and remand the case for a new trial. Because they are likely to arise at a new trial, we also must address the defendant’s remaining claims.

II

We first consider the defendant’s claim that the trial court erred in excluding evidence that a third party, namely Burgos-Ortiz, could have committed the crime.

In his offer of proof, the defendant sought to introduce direct evidence through numerous witnesses that Burgos-Ortiz had lived in Bridgeport for a substantial period of time prior to the shooting and that he left town suddenly one day after the crime. He also sought to introduce evidence that Burgos-Ortiz had been involved in an altercation in another bar one week prior to the shooting and that, in that incident, Burgos-Ortiz had been seen with a handgun and the defendant had intervened in the fight. The court excluded the evidence on the grounds of relevance.

“ ‘A defendant’s right to present witnesses and offer evidence is a fundamental element of due process of law. . . . Both this state and other jurisdictions have recognized that a defendant may introduce evidence which indicates that a third party, and not the defendant committed the crime with which the defendant is charged. . . . The defendant, however, must show some evidence which directly connects a third party to the crime with which the defendant is charged. . . . It is not enough to show that another had the motive to commit the crime . . . nor is it enough to raise a bare suspicion that some other person may have committed the crime of which the defendant is accused. . . .’ (Citations omitted.) State v. Echols, 203 Conn. 385, 392, 524 A.2d 1143 (1987).” State v. Holeman, 18 Conn. App. 175, 182, 556 A.2d 1052 (1989).

The admissibility of evidence of third party culpability is governed by the rules of relevancy, and the trial court has broad discretion in ruling on such questions. Id. Unless the court has abused its discretion or injustice appears to have been done, the ruling will be upheld. Id.

The defendant argues that Burgos-Ortiz’ involvement in a similar incident in a bar one week prior to the Austin Street Cafe shooting and Burgos-Ortiz’ unexplained flight from the area after implicating him in the crime, taken together with the other evidence in the case arguably linking Burgos-Ortiz to the crime, constituted sufficient evidence to connect Burgos-Ortiz directly to the crime. Accordingly, he argues, the evidence should have been admitted. We agree. Taken together with the other evidence in the case, the proferred evidence showed more than mere motive or a bare suspicion that Burgos-Ortiz may have committed the crime. “ ‘Evidence is admissible when it tends to establish a fact in issue or to corroborate other direct evidence in the case. . . . “One fact is relevant to another fact whenever, according to the common course of events, the existence of one, taken alone or in connection with other facts, renders the existence of the other either certain or more probable. . . . ” ’ ” (Citations omitted.) State v. Echols, supra, 393.

In the present case, justice requires that the proferred evidence be admitted on the remand. In this case, there were no eyewitnesses to the crime other than Burgos-Ortiz. The jury heard evidence that Burgos-Ortiz was with the defendant at the scene of the crime and had started the argument that led to their expulsion from the bar immediately before the shooting. The jury also heard the testimony of one Bridgeport police officer regarding the department’s attempts to locate Burgos-Ortiz. Once that evidence was adduced, however, the rules of relevancy dictated that the defendant’s evidence be admitted, as the proferred evidence rendered Burgos-Ortiz’ culpability for the crime more probable. Accordingly, the evidence would have aided the jury in determining whether the state had proven its case against the defendant beyond a reasonable doubt. Thus, the court erred in refusing to allow the defendant to present this evidence.

Ill

Finally, we consider the defendant’s claim that the trial court impermissibly restricted his closing argument and therefore abridged his right to present final argument. The defendant attempted to argue to the jury that the failure of Burgos-Ortiz to testify could be the source of a reasonable doubt. The defendant, however, did not attempt to argue a Secondino inference. The trial court ruled that the defendant could argue that a reasonable doubt could be based upon a lack of evidence but that, in making such an argument, he could not mention Burgos-Ortiz. The defendant argues on appeal that the court’s ruling was erroneous. Under the circumstances of the case, we agree.

“Counsel may comment upon facts properly in evidence and upon reasonable inferences to be drawn from them. State v. Kinsey, 173 Conn. 344, 348, 377 A.2d 1095 (1977). Counsel may not, however, comment on or suggest an inference from facts not in evidence. State v. Manley, 195 Conn. 567, 580, 489 A.2d 1024 (1985). In general, the scope of final argument lies within the sound discretion of the court; Schwarz v. Waterbury Public Market, Inc., 6 Conn. App. 429, 437, 505 A.2d 1272 (1986); subject to appropriate constitutional limitations. Herring v. New York, 422 U.S. 853, 95 S. Ct. 2550, 45 L. Ed. 2d 593 (1975) (complete denial of right to argue violates sixth amendment).” (Emphasis in original.) State v. Huff, 10 Conn. App. 330, 340-41, 523 A.2d 906, cert. denied, 203 Conn. 809, 525 A.2d 523 (1987).

In order to prove guilt beyond a reasonable doubt, the state must produce evidence that precludes every reasonable hypothesis of innocence, is consistent with guilt and is inconsistent with any other rational conclusion. State v. Kluttz, 9 Conn. App. 686, 706, 521 A.2d 178 (1987). We note that, in final argument, the state is entitled to comment on the weakness of the defendant’s case by bringing to the jury’s attention the accused’s failure to call witnesses to contradict the factual character of the state’s case, or his failure to support his own factual theories with witnesses. Id. These comments fall within the bounds of legitimate final argument provided they do not indirectly and imper-missibly call into question the defendant’s decision not to testify. Moreover, these comments do not fall within the ambit of a Secondino inference argument. See State v. Magnotti, 198 Conn. 209, 220, 502 A.2d 404 (1985); State v. Kluttz, supra; State v. Allen, 9 Conn. App. 169, 178-80, 517 A.2d 1043 (1986), rev’d on other grounds, 205 Conn. 370, 533 A.2d 559 (1987).

Although it is true that in a criminal prosecution the state bears the burden of proof and the defendant need prove nothing, the trial court must exercise caution in restricting a defendant’s right to argue about reasonable doubt. The lack of evidence, for whatever reason, creates an inference of reasonable doubt. See D. Borden & L. Orland, Connecticut Criminal Jury Instructions § 2.9, p. 51. Just as the state may comment on the weakness of the defendant’s case due to his failure to call witnesses, so too should the defendant be permitted to argue to the jury concerning the inference of reasonable doubt that can be drawn from the lack of evidence. See United States v. Keplinger, 776 F.2d 678, 702-703 (7th Cir. 1985); United States v. Mahone, 537 F.2d 922, 927-28, cert. denied, 429 U.S. 1025, 97 S. Ct. 646, 50 L. Ed. 2d 627 (7th Cir. 1976). While we are sensitive to the discretion of the trial court in limiting argument to the actual issues of the case, tight control over argument is undesirable when counsel is precluded from raising a significant issue. United States v. Mahone, supra. Under the facts of this case, the trial court erred in restricting the defendant’s final argument. On the state’s theory of the case, Burgos-Ortiz was the sole eyewitness to the shooting. On remand, the defendant should be permitted to refer to the absence of Burgos-Ortiz’ testimony in his comments on the reasonable doubt raised by a lack of evidence in the case.

There is error, the judgment is set aside and the case is remanded for a new trial.

In this opinion the other judges concurred.

       General Statutes § 53a-55 provides in pertinent part: “(a) A person is guilty of manslaughter in the first degree when: ... (3) under circumstances evincing an extreme indifference to human life, he recklessly engages in conduct which creates a grave risk of death to another person, and thereby causes the death of another person.”

        Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).

       The defendant was advised only that he had a right to an attorney and a right to remain silent.

       Burgos-Ortiz was on probation in December, 1987, pursuant to the conditions imposed in a 1985 sentence.

       U.S. Const., amend IV.

       Conn. Const., art. I, § 7.

       There is no question that the defendant was subjected to custodial interrogation, thereby necessitating the warnings. See Orozco v. Texas, 394 U.S. 324, 89 S. Ct. 1095, 22 L. Ed. 2d 311 (1969) (Miranda warnings required when defendant is questioned in his own home and he was not free to leave.)

       Because we hold that the gun and statements should be suppressed under the fifth amendment, it is unnecessary for us to consider the defendant’s fourth amendment claims.

       See Secondino v. New Haven Gas Co., 147 Conn. 672, 674-76, 165 A.2d 598 (1960) (the failure of a party to produce a witness who is within his power to produce and who would naturally have been produced by him permits the inference that the evidence of the witness would be unfavorable to the party’s cause). This rule also applies in criminal cases. State v. Annunziato, 169 Conn. 517, 536, 363 A.2d 1011 (1975). A Secondino inference would not have been proper in the present case because one of the requirements is that the witness be available. Seperack v. Solaz, 17 Conn. App. 684, 689, 556 A.2d 175 (1989). Clearly, Burgos-Ortiz was not available.


source: Caselaw Access Project

author: Borden, J.

license: Public Domain

text:
    CCH Computax, Inc. v. Orest T. Dubno, Commissioner of Revenue Services
    (7167)
    Dupont, C. J., Bokden and Daly, Js.
    Argued March 1
    decision released May 23, 1989

      Scott P. Moser, with whom was Antonio B. Braz, for the appellant (plaintiff).

      Jane D. Comerford, assistant attorney general, with whom, on the brief, were Clarine Nardi Riddle, acting attorney general, and Joseph I. Lieberman, former attorney general, for the appellee (defendant).
   Borden, J.

The plaintiff appeals from the judgment of the trial court rendered in favor of the defendant commissioner of revenue services on the plaintiffs appeal from the defendant’s assessment of additional sales taxes. The sole issue is whether the computer and data processing services the plaintiff provides to its customers are rendered for resale in the ordinary course of business within the meaning of General Statutes § 12-407 (3). We find no error.

The defendant audited the plaintiff’s sales tax returns for the period of October 1, 1980, through March 31, 1984, and assessed the plaintiff an additional amount of $197,541.50 plus interest. The plaintiff appealed to the trial court from that assessment pursuant to General Statutes § 12-422, claiming that it did not owe the additional amount (1) because it did not provide computer and data processing services under General Statutes § 12-407 (2) (i) (A), and (2) because its services were sold for resale in the ordinary course of business within the meaning of General Statutes § 12-407 (3), and thus were not subject to the sales tax imposed by General Statutes § 12-408. The parties stipulated to certain facts, which were supplemented by other facts found as a result of an evidentiary hearing. The court determined that the plaintiff did provide computer and data processing services, and that the services were not sold for resale. From the ensuing judgment for the defendant, this appeal followed.

■ General Statutes § 12-408 (1) provides in pertinent part: “For the privilege of making any sales as defined in subsection (2) of section 12-407, at retail, in this state for a consideration, a tax is hereby imposed on all retailers at the rate of seven and one-half per cent of the gross receipts of any retailer . . . from the rendering of any services constituting a sale in accordance with subdivision (i) of subsection (2) of section 12-407 . . . . ” (Emphasis added.) General Statutes § 12-407 (2) (i) (A) includes computer and data processing services. General Statutes § 12-407 (3) provides in pertinent part: “ ‘Retail sale’ or ‘sale at retail’ means and includes a sale for any purpose other than resale in the ordinary course of business ... of any service described in any of the subdivisions of subsection (2) of this section.” (Emphasis added.) General Statutes § 12-410 (1) provides in pertinent part: “For the purpose of the proper administration of this chapter and to prevent evasion of the sales tax it shall be presumed that all gross receipts are subject to the tax until the contrary is established. The burden of proving that a sale of . . . service is not a sale at retail is upon the person who makes the sale . . . .” Thus, the plaintiff’s gross receipts from its sale of computer and data processing services were taxable unless it established that those services were sold to its customers for resale in the customers’ ordinary course of business.

The following facts are undisputed. The plaintiff, a wholly owned subsidiary of Commerce Clearing House, Inc., provides computer generated tax returns to its customers, who are accountants, attorneys and banks. Those customers professionally prepare tax returns for their clients. The plaintiff’s customers submit their clients’ financial information to the plaintiff on forms supplied by the plaintiff. The plaintiff does not study, analyze, alter or adjust any of the tax information furnished to it. It processes the information through its computer and thereby generates tax returns which it ships to its customers. The plaintiff does not sign the returns it produces or assume responsibility for their correctness other than for the accuracy of the calculations performed, based on the information supplied by the customers. The plaintiff’s customers review the returns and return them to the plaintiff for any corrections. When the customers are satisfied with the returns, they sign them as preparers and submit them to their clients for execution and filing.

The plaintiff collects a basic charge for its services, plus additional amounts depending on the number of schedules, the amount of data on each page and certain calculation options. The basic charges range from $15 to $25 for a simple individual return to $60 or more for a complex individual return. The plaintiffs computer services also generate partnership and corporate returns. The plaintiffs charges are unrelated to the taxpayers’ incomes or tax liabilities.

The plaintiff’s customers pass the plaintiff’s charges on to their clients either as part of their fees or as separate itemized expenses. Some of the plaintiff’s witnesses were members of large accounting firms, who testified that their firms do not itemize the plaintiff’s charges on their bills to their clients. Their fees range from approximately $150 for simple individual returns to several hundred dollars for more complex individual returns.

The plaintiff claims that the court erred by determining that the plaintiff’s services were not sold for resale, because the undisputed facts compel the conclusion that the tax returns generated by the plaintiff are sold to its customers for resale to the clients of those customers. The plaintiff’s argument in essence is the following syllogism: the plaintiff sells tax returns to its customers; the plaintiff’s customers sell those tax returns to their taxpayer clients; therefore, those sales by the plaintiff to its customers are necessarily sales for resale. We disagree.

Although taxing statutes are strictly construed against the taxing authority, statutes creating tax exemptions are strictly construed against the party claiming the exemption. White Oak Corporation v. Department of Revenue Services, 198 Conn. 413, 421, 503 A.2d 582 (1986). Thus, we must construe the sale for resale exemption strictly against the plaintiff. Id. The plaintiff has the burden to establish that it is entitled to the exemption. General Statutes § 12-410.

Whether a transaction involves services sold for resale or for some other purpose depends on the intention of the parties to the transaction. Id., 422. The court must determine the “true object” of the transaction among the parties; Dine Out Tonight Club, Inc. v. Department of Revenue Services, 210 Conn. 567, 571, 556 A.2d 580 (1989); American Totalisator Co. v. Dubno, 210 Conn. 401, 406, 555 A.2d 414 (1989); and the “primary purpose” for which those services were purchased and put to use. American Totalisator Co. v. Dubno, supra, 409. This determination must be made “ ‘in the light of the situation of the parties and the circumstances surrounding them.’ ” Id., 406, quoting United Aircraft Corporation v. O’Connor, 141 Conn. 530, 538, 107 A.2d 398 (1954). Moreover, when a transaction is merely incidental to a service performed for the purchaser, that transaction is not a sale for tax purposes. White Oak Corporation v. Department of Revenue Services, supra. Finally, in construing taxing statutes, like other statutes, common sense must be employed. See Hall v. Planning Board, 2 Conn. App. 49, 52, 475 A.2d 1114 (1984).

In this case, we cannot ignore the role played by the clients of the plaintiff’s customers, because the transaction between the plaintiff and its customers is shaped by those clients and their needs. That role is integral to the situation of the immediate parties to the sale, namely, the plaintiff and its customers, and to the circumstances surrounding them; American Totalisator Co. v. Dubno, supra; because it determines whether the tax returns “sold” by the plaintiff to its customers are “resold” by those customers to their clients.

Contrary to the plaintiffs claim, the true object of the transaction between the taxpayers and the plaintiffs customers is not the purchase of a tax return. The plaintiffs characterization grossly oversimplifies the nature of that transaction. The taxpayer’s primary purpose in engaging the services of a professional tax preparer is not to have someone merely perform what may be sophisticated calculations and to put them in their proper places on a tax return; rather, the taxpayer expects the preparer to render the professional expertise and judgment that are essential to a properly prepared tax return. There are no “sales” of tax returns by the preparers to their clients because the plaintiff’s generation of unsigned tax returns and the furnishing of signed tax returns by the plaintiff’s customers to their clients are “only incidental to [the professional] service performed for” those clients. White Oak Corporation v. Department of Revenue Services, supra.

These conclusions come from the undisputed facts of this case, their implications and common sense. It is inherent in the nature of the professional relationship between the plaintiff’s customers and their clients that the customers apply their professional expertise in eliciting from the clients the proper tax information, in culling out what is irrelevant, and in reviewing that information before forwarding it to the plaintiff. That same expertise is brought to bear at the other end of the transaction, when the plaintiff’s customers review the plaintiff’s work product — the unsigned return — and send it back to the plaintiff for correction before signing it as preparer and forwarding it to the client for execution and filing.

This distinction between what' the plaintiff sells to its customers, namely, computer and data processing services resulting in unsigned tax returns, and what those customers sell to their clients, namely, professional services reflected in tax returns signed by the preparers, is underscored by their relative fee arrangements. Whereas the plaintiff’s fees are based on a basic amount augmented by the number of schedules required and the amount of data required to be processed, the fees for the professional services of the plaintiff’s customers are determined by the complexities of the returns and the amount of money involved, and thus reflect the degree of responsibility assumed.

We therefore agree with the trial court that the plaintiff failed to meet its burden of establishing that the sale of its computer services to its customers is a sale for resale and is not a sale at retail.

There is no error.

In this opinion the other judges concurred.

       The plaintiff does not challenge that determination on appeal.


author: Stoughton, J.

text:
    Michael Ruotolo v. Inland Wetlands Agency of the Town of Madison
    (6717)
    Dupont, C. J., Stoughton and Jacobson, Js.

      Argued February 10
    decision released May 23, 1989

      Gail S. Kotowski, with whom was Philip N. Costello, for the appellant (defendant).

      Kenneth G. Bartlett, for the appellee (plaintiff).
   Stoughton, J.

This is an appeal by the defendant Madison Inland Wetlands Agency from the judgment of the trial court sustaining the plaintiff’s appeal and reversing the agency’s denial of the plaintiff’s application for a permit to conduct a regulated activity.

The defendant claims that the court erred in concluding that the agency lacked subject matter jurisdiction and that it exceeded its powers of review when it concluded, sua sponte, that a cease and desist order was void and that the agency had not placed on the record the reasons for its decision.

The plaintiff desired to create a farm pond of less than three acres and a nursery where he planned to grow evergreen trees on a parcel of land in Madison consisting of approximately twenty-seven acres, part of which had been designated as wetlands. On or about October 13, 1986, before purchasing the land he went to the office of the defendant agency to inquire about establishing a nursery and farm pond. His plan was to spread the spoils of his pond construction on the adjacent area. He was informed that a farm pond and nursery were permitted uses as of right in a wetland. The plaintiff then entered into an agreement with the owner of the parcel to purchase it, and a bond for deed was signed. The plaintiff began digging a pond and clearing the area for a nursery.

On December 24,1986, an inspector for the defendant visited the property and discovered that a crossing of the watercourse on the property was under construction. A letter was sent to the plaintiff by certified mail on stationery of the defendant but signed by the zoning enforcement officer. The plaintiff was informed by the letter that in the opinion of the agency the crossing was beyond the scope of the “as of right” operations and uses delineated in the agency regulations, that there was considerable turbidity of the pond of an abutting owner, and that the entire project was having or would have significant impact or major effect on the wetlands. The plaintiff was ordered to cease and desist from any further operations on the property until he had appeared before the agency at its regular meeting on January 5, 1987, to show cause why the order should not remain in effect. The letter was dated December 27,1986, but mailed on December 24,1986, which was twelve days before the regular meeting date. General Statutes § 22a-44 (a) requires a show cause hearing within ten days of the issuance of an order to cease any activity, and both § 22a-44 (a) and § 8.2 of the agency regulations require a hearing within ten days of an order to correct a condition.

At the hearing on January 5,1987, the agency agreed that the plaintiff was proceeding “as of right.” A task force was appointed to work with the plaintiff, and the agency voted that the plaintiff provide it with a “courtesy application” to conduct a regulated activity outlining his intended activities; which were to be worked out with the task force.

Section 22a-44 (a) requires that within ten days of the completion of the hearing, the agency send notice by certified mail that the original order remains in effect or that it has been revised or withdrawn. The record shows that on January 7, 1987, the two task force members believed that the cease and desist order should remain in effect after they had inspected the property. The record also shows that notice, signed by one of them, was sent by certified mail to the plaintiff.

On February 2,1987, the agency reviewed the report of the task force and considered the matter again. The agency voted that the cease and desist order stay in effect until such time as it received an application and full site development plan, except that the plaintiff was to put in a silt fence and hay bales downstream from a culvert.

On February 10, 1987, the plaintiff filed, on a form provided by the defendant, an application to conduct a regulated activity in a designated wetlands area. He wrote the word “courtesy” on the application, and he submitted with it a notice that it was submitted to the agency as a courtesy because the proposed activity was permitted “as of right” under General Statutes § 22a-40 (a) (1), and because three representatives of the defendant had informed him that the proposed activity was permitted “as of right.” The application recited that it was the plaintiff’s purpose to “bring back to farm conditions similar to the harvested fields approximately thirty years ago, pond nursery operations and uses as defined as Section 2.1.1.”

On February 17, 1987, at a special meeting of the agency, the plaintiff filed an amendment to the application entitled Schedule A which reads as follows:

“ — create farm pond of less than three (3) acres and deposit excavated spoil from pond area to raise levels of adjacent fields by up to two (2) feet to enable planting and maintenance of nursery stock:
“ — rebuild three (3) existing stream crossings as indicated on site plan entitled ‘proposed improvements,’ by U.S.D.A., David Lord CT-NH87-1.
“ — relocate secondary water course as indicated on site plan noted above.
“ — clear cut fill and grade portions of uplands and wetlands as per plans submitted — noted above.”

A special public hearing was scheduled for March 9, 1987. At the hearing, the plaintiff again stated that his use was exempt from regulation. The agency asserted jurisdiction and voted that the application “with maps as submitted and the proposal as orally presented be denied with prejudice as having been nonpersuasive and incomplete with respect to engineering details and exact planned work.”

On February 10,1987, General Statutes § 22a-40 provided in part as follows: “permitted operations and uses, (a) The following operations and uses shall be permitted in wetlands and watercourses, as of right: (1) Grazing, farming, nurseries, gardening and harvesting of crops and farm ponds of three acres or less >>

Section 22a-40 was amended by Public Acts 1987, No. 87-533, which took effect on July 1,1987. After July 1, 1987, the relevant portion of § 22a-40 was as follows: “(a) The following operations and uses shall be permitted in wetlands and watercourses, as of right: (1) Grazing, farming, nurseries, gardening and harvesting of crops and farm ponds of three acres or less essential to the farming operations. The provisions of this subdivision shall not be construed to include road construction or the erection of buildings not directly related to the farming operation, relocation of watercourses with continual flow, filling or reclamation of wetlands or watercourses with continual flow, clear cutting of timber except for the expansion of agricultural crop land, the mining of top soil, peat, sand, gravel or similar material from wetlands or watercourses for the purpose of sale.”

General Statutes § 22a-42 (a) as it was before July 1, 1987, declared it to be the public policy of the state to encourage municipalities to regulate their wetlands and watercourses in order to carry out the purposes of the Inland Wetlands and Watercourses Act. Public Acts 1987, No. 87-533, amended § 22a-42 (a) to require rather than encourage municipal regulation of wetlands and watercourses.

The town of Madison has enacted wetlands and watercourses regulations by ordinance. On February 10, 1987, § 2 of the regulations provided, in part, as follows: “Section 2. Permitted Operations and Uses. 2.1 The following operations and uses shall be permitted in Inland Wetlands and Watercourses as of right; 2.1.1 Grazing, farming, nurseries, gardening, and harvesting of crops and farm ponds of three acres or less.”

The record does not reveal whether the Madison regulations have been amended since July 1, 1987.

The plaintiff appealed to the Superior Court, which remanded the case, at the request of the parties, so that the agency might consider it in light of the amendments to the statutes. The parties reported that the agency did not reconsider the matter but insisted that the plaintiff file a new application. Thereafter, the trial court reversed the decision of the agency.

The trial court concluded that thé cease and desist order was issued on December 24, 1986, when it was deposited in the mail. A hearing was scheduled for and held on January 5, 1987, some twelve days later. Because both General Statutes § 22a-44 (a) and § 8.2 of the agency regulations require a hearing within ten days of the issuance of the order, and because the hearing occurred more than ten days after December 24, 1986, the court concluded that the cease and desist order was void ab initio and that the agency had no jurisdiction to conduct a hearing on January 5, 1987, and subsequent dates.

The court also observed that under General Statutes § 22a-40 (a) (1) and § 2.1.1 of the regulations, nurseries and farm ponds of three acres or less are permitted operations and uses of right in wetlands and watercourses, that the plaintiff had never agreed that the agency had jurisdiction over his use of his land for those purposes, and that his courtesy application was not a waiver of his claim. The court observed further that even if the plaintiffs operations were a regulated activity, General Statutes § 22a-42a (d) and § 6.6 of the regulations require the agency to state the reasons for its decision on the record and that no reasons were placed on the record. It observed that the parties had agreed that the amendments to § 22a-40 (a) (1), which were effective on July 1,1987, did not apply to this matter. Although not spelled out, a fair reading of the court’s conclusions is that the plaintiff’s activities in attempting to create a nursery and a farm pond of less than three acres were exempt from regulation. The court thereupon reversed the decision of the agency.

On January 6,1988, the defendant moved for clarification and articulation, seeking to discover what affirmative relief had been granted to the plaintiff and what further course of conduct was required of the defendant. The court responded that the motion was premature, no appeal having been taken at that time, and that the judgment held that the agency lacked subject matter jurisdiction for reasons spelled out in the memorandum of decision.

Whether the provision in General Statutes § 22a-44 (a) that within ten days of the issuance of a cease and desist order the agency shall hold a hearing is mandatory or merely directory depends upon whether the provision “relates to matter of substance or to matter of convenience.” Donohue v. Zoning Board of Appeals, 155 Conn. 550, 554, 235 A.2d 643 (1967). Although the use of the word “shall” is significant, it does not automatically create a mandatory duty because statutes must be viewed as a whole in order to ascertain the legislative intent. Tramantano v. Dilieto, 192 Conn. 426, 433-34, 472 A.2d 768 (1984); In re Adrien C., 9 Conn. App. 506, 510, 519 A.2d 1241, cert. denied, 203 Conn. 802, 522 A.2d 292 (1987).

While it is undoubtedly true that under the statute it is mandatory that the defendant hold a hearing on the merits after issuing a cease and desist order, it does not necessarily follow that the time period is also mandatory. See Winslow v. Zoning Board, 143 Conn. 381, 387, 122 A.2d 789 (1956).

It is well settled that one of the more reliable guides in determining whether a statutory provision is directory or mandatory is whether the provision is accompanied by language that expressly invalidates any action taken after noncompliance with the provision. See Chesson v. Zoning Commission, 157 Conn. 520, 527, 254 A.2d 864 (1969); Donohue v. Zoning Board of Appeals, supra; Winslow v. Zoning Board, supra, 384; Arrieu v. Litchfield, 17 Conn. App. 320, 324, 552 A.2d 445 (1989); see also Fidelity Trust Co. v. BVD Associates, 196 Conn. 270, 278, 492 A.2d 180 (1985).

There is nothing in the language of General Statutes § 22a-44 (a) that suggests that, if the agency does not hold a hearing within ten days of the issuance of the order, all of its actions taken thereafter will be void. We note also that the agency may issue a cease and desist order whenever it finds a violation of the Inland Wetlands and Watercourses Act or of the regulations. Since the act allows the agency the discretion to issue cease and desist orders whenever it finds such a violation, the agency could immediately reassert its jurisdiction by issuing a cease and desist order after ten days. Thus, it makes little sense to conclude that the legislature intended the ten day period to be mandatory. Viewed in its proper context, the provision is designed not to set an inflexible time limit, but to secure a prompt and systematic dispatch of the proceedings relating to the cease and desist order. Donohue v. Zoning Board of Appeals, supra; In re Adrien C., supra. Hence, the provision relates to procedure and is merely directory. Consequently, the fact that the agency sent out the notice of the hearing two days early was not a defect fatal to its jurisdiction.

On the merits of this case, we do not agree that the defendant did not state the reasons for its decision on the record as is required by General Statutes § 22a-42a (d) and § 6.6 of its regulations. At the conclusion of the meeting of March 9, 1987, there was a motion made and seconded that the application as submitted with maps and the proposal as orally presented be denied with prejudice “as having been nonpersua-sive and incomplete with respect to engineering details and exact planned work.” This motion carried unanimously. The record contains a copy of a letter containing that information dated March 16, 1987, and sent to the plaintiff by certified mail.

The trial court considered that the application was to establish a nursery and a farm pond on the property. Because of the agreement that General Statutes § 22a-40 (a) (1) as amended in 1987 did not apply, the court apparently did not consider the effect of the amendment made by the plaintiff to his application on February 17, 1987. It seems clear that the trial court concluded that the activity proposed by the plaintiff was not a regulated activity for which a permit was required because it simply reversed the defendant’s denial of the permit without ordering the issuance of the permit.

The parties incorrectly agreed that this matter was not controlled by General Statutes § 22a-40 (a) (1) as amended. The regulation in effect at the time of the decision of a court is controlling, as opposed to that in effect when the proceedings were instituted or when the administrative agency entered its decision upon the application. McCallum v. Inland Wetlands Commission, 196 Conn. 218, 223, 492 A.2d 508 (1985); Hegyi v. Planning & Zoning Commission, 14 Conn. App. 365, 369, 540 A.2d 1068 (1988).

• The record of the various hearings before the agency demonstrates that the agency was concerned that the plaintiff was planning to change watercourses, to move earth in order to level parts of the property and to raise the level of the ground in order to plant his nursery stock. Whether the plaintiff is permitted to carry on his activities as he has apparently planned to do must be determined under General Statutes § 22a-40 (a) as amended.

It is apparent from the amended application that the plaintiff is reclaiming wetlands, which requires a permit, and that the plan includes relocation of a secondary watercourse, which may also require a permit, depending upon whether it is a watercourse with continual flow.

There is error, the judgment is set aside and the case is remanded with direction to dismiss the plaintiffs appeal.

In this opinion the other judges concurred.

       General Statutes § 22a-44 (a) provides: “penalty, court orders. (a) If the inland wetlands agency or its duly authorized agent finds that any person is conducting or maintaining any activity, facility or condition which is in violation of sections 22a-36 to 22a-45, inclusive, or of the regulations of the inland wetlands agency, the agency or its duly authorized agent may issue a written order by certified mail, to such person conducting such activity or maintaining such facility or condition to cease immediately such activity or to correct such facility or condition. Within ten days of such issuance of such order the agency shall hold a hearing to provide the person an opportunity to be heard and show cause why the order should not remain in effect. The agency shall consider the facts presented at the hearing and within ten days of the completion of the hearing notify the person by certified mail that the original order remains in effect, that a revised order is in effect, or that the order has been withdrawn. The original order shall be effective upon issuance and shall remain in effect until the agency affirms, revises or withdraws the order. The issuance of an order pursuant to this section shall not delay or bar an action pursuant to subsection (b) of this section. The commissioner may issue orders pursuant to sections 22a-6 to 22a-7, inclusive, concerning an activity, facility or condition which is in violation of said sections 22a-36 to 22a-45, inclusive, if the municipality in which such activity, facility or condition is located has failed to enforce its inland wetlands regulations.”

       Section 8.2 of the Wetlands and Watercourses Regulations of the town of Madison provides: “Any person who commits, takes part in, or assists in any violation of any provision of these Regulations shall be subject to the penalties provided in section 22a-44 of the General Statutes, and to such other penalties as the law may provide. If the Agency determines that any person is engaging in any regulated activity without a proper permit, or is exceeding the condition or limitations placed on his permit, or the scope of work as set forth in the application, or has obtained a permit through deception or through inaccurate information or is engaging in any other violation of these Regulations or of Sections 22a-36 through 22a-45 of the General Statutes, as amended, it shall:
      “A. Issue a written order by certified mail, to such person to correct such violation. Within ten (10) days of the issuance of such order the Agency shall hold a hearing to provide the person an opportunity to be heard and show cause why the order should not remain in effect . . . .”

       One of the members of the defendant agency first used the phrase “courtesy application” at the meeting of January 5, 1987.


text:
    Terry L. Christensen v. Bic Corporation
    (6642)
    Spallone, Stoughton and Noecott, Js.
    Argued March 10
    decision released May 23, 1989

      George P. Birnbaum, for the appellant-appellee (defendant).

      Joseph D. Garrison and JoNel Newman, for the appellee-appellant (plaintiff).
   Stoughton, J.

This is an appeal by the defendant after a jury verdict in favor of the plaintiff. The plaintiff filed a cross appeal asserting error in the trial court’s refusing to permit the jury to find that a bonus constituted a wage within the meaning of General Statutes § 31-71a. We find error on the appeal.

In an amended complaint, the plaintiff raised the following allegations: he received a bonus for each year of his employment except 1983; it was the custom and practice of the defendant to pay a bonus based on performance of the company and of the individual; the bonus constituted wages within the meaning of General Statutes § 31-71a; he was entitled to a bonus for 1983; and he was owed wages in the amount of the unpaid bonus. In a second count, the plaintiff alleged that the defendant was unjustly enriched in the amount of the unpaid bonus. At the conclusion of the plaintiff’s case, the defendant moved for a dismissal or, in the alternative, for a directed verdict. There was a lengthy colloquy between the court and counsel during which the court suggested that, unless there were something produced in addition to what it had heard, the count alleging unjust enrichment would not be considered, and that it did not consider that the plaintiff’s claim was one for wages. The following day, before any evidence was introduced, there was further colloquy. The defendant argued that the complaint alleged a claim for wages, that the second count alleged unjust enrichment, and that there was no count alleging a breach of contract. The plaintiff offered to amend by adding a third count to conform to the proof if the complaint did not allege implied contract sufficiently. The court then said that it had decided that the second count which alleged unjust enrichment, would not go to the jury and that a bonus is not a wage, and that the jury would consider whether to allow a bonus.

The motion for dismissal was improperly made under the circumstances. See Practice Book § 302. The court did not rule specifically on the motion for directed verdict, but the clear implication was that the court would not direct a verdict because it stated that the jury would consider whether to allow a bonus.

The court had suggested during the examination of the first witness that counsel refrain from taking exception each time one of them disagreed with one of his rulings. In reliance upon this suggestion, the plaintiff did not except to the ruling of the court, to the extent that there was one, on his complaint. He subsequently filed a second amended complaint alleging that it was the custom, practice and policy of the defendant to pay a bonus based upon performance of the company and the individual during the preceding year, that, by promulgating the custom, practice and policy of paying an annual bonus in exchange for enhanced performance, the defendant had created a legitimate expectation on the part of the plaintiff that he would be paid a bonus for 1983, that the plaintiff had relied upon this expectation, that the defendant knew or should have known that the plaintiff would rely upon its custom, practice and policy, and that the defendant had breached its implied contract with the plaintiff by failing to pay his bonus for 1983. The jury returned a verdict for the plaintiff, and the defendant moved to set it aside. The motion was denied and the defendant appeals.

The defendant claims that the trial court erred in refusing to set aside the verdict, in excluding certain evidence, and in refusing to charge in accordance with its requests to charge.

The jury could reasonably have found the following facts. The plaintiff began working for the defendant, the Bic Corporation, in 1975, and his employment was terminated in December, 1983. During his employment by Bic, the plaintiff received periodic promotions and, starting in 1976, he received a bonus every year except 1983. The plaintiff did not become aware that Bic paid bonuses to its employees until after he had started working there. The plaintiff advanced to become one of the top twenty employees at Bic. Starting in 1979, he was responsible for hiring, firing, supervising and recommending bonuses for several other employees. The plaintiff made his recommendations for bonuses on a list of employees working under him. That list was furnished by his supervisor. At the time of his discharge, the plaintiff was earning a yearly salary of $66,100. In late February or early March of each year, the plaintiff received a bonus that was based on corporate and individual performance during the preceding year. After his discharge, the plaintiff received almost $36,000 in severance pay. In October, 1984, the plaintiffs lawyer wrote a letter to Bic claiming that the plaintiff was entitled to receive a bonus paid in March, 1984.

The defendant contends that at trial the plaintiff failed to produce any evidence that it had entered into an implied contract by which it would pay the plaintiff a bonus even if he was discharged before the bonuses were authorized.

An implied contract depends upon the existence of an actual agreement between the parties. Coelho v. Posi-Seal International, Inc., 208 Conn. 106, 111, 544 A.2d 170 (1988). Whether the parties have entered into such an agreement is a question of fact. Corriveau v. Jenkins Bros., 144 Conn. 383, 387, 132 A.2d 67 (1957). It is the plaintiffs burden to prove, by a preponderance of the evidence, that the defendants had agreed by either words or deeds to recognize and undertake a contractual commitment to pay a bonus for the preceding year even though the plaintiff was no longer an employee. See Coelho v. Posi-Seal International, Inc., supra; D’Ulisse-Cupo v. Board of Directors of Notre Dame High School, 202 Conn. 206, 212 n.2, 520 A.2d 217 (1987); Rahmati v. Mehri, 188 Conn. 583, 587, 452 A.2d 638 (1982). Absent specific contract language, whether there was a contract, and the terms of that contract, are questions of fact. Bolmer v. Kocet, 6 Conn. App. 595, 608, 507 A.2d 129 (1986); Finley v. Aetna Life & Casualty Co., 5 Conn. App. 394, 404, 499 A.2d 64 (1985), rev’d on other grounds, 202 Conn. 190, 520 A.2d 208 (1987); see also Bead Chain Mfg. Co. v. Saxton Products, Inc., 183 Conn. 266, 274-75, 439 A.2d 314 (1981).

We agree with the defendant that the plaintiffs evidence does not show that Bic, either by its words or by its conduct, entered into an implied contract with the plaintiff to pay him a bonus based upon the preceding year’s work even though he was no longer an employee when bonuses were authorized.

The plaintiff testified that he had never been given a written document stating that employees were entitled to bonuses even if they were discharged before the bonuses were authorized. The plaintiff also testified that no one at Bic had ever orally promised or discussed with him the fact that he was entitled to a bonus in the event that he was discharged before bonuses were authorized, that Bic did not know that he thought he was entitled to the March, 1984 bonus until he so informed Bic in October, 1984, and that he did not know of a single Bic employee who had been terminated from employment and still received a bonus after termination. While Vincent Geijoo, another discharged Bic employee, testified that he knew of one discharged employee who had received such a bonus, there was no testimony that the plaintiff knew about this employee.

Clearly, there was no evidence in the aforementioned testimony to show that Bic intended to be contractually bound to pay the plaintiff a bonus in the event that he was discharged. The fact that in previous years Bic had given the plaintiff a bonus does not create a contract unless it was shown that this was a result of a contractual commitment by Bic. See Corriveau v. Jenkins Bros., supra. As the plaintiff correctly admits, contracts are not created by evidence of customs and usage. See L. F. Pace & Sons, Inc. v. Travelers Indemnity Co., 9 Conn. App. 30, 38, 514 A.2d 766, cert. denied, 201 Conn. 811, 516 A.2d 886 (1986).

Insofar as documentary evidence is concerned, the plaintiff testified that each year he received Bic’s written bonus policy guidelines. These guidelines were distributed each year to Bic’s supervisors as a guide in determining how bonuses were to be determined for the employees under their supervision. The plaintiff received these guidelines in his capacity as a supervisor. .

The plaintiff claims that the documents communicate every aspect of Bic’s bonus policy except its policy that discharged employees were not entitled to a bonus. It is his contention that these documents, coupled with his testimony that the documents led him to believe that he would receive a bonus regardless of whether he was still employed by Bic, were sufficient to prove that an implied contract had been formed.

It is true that under appropriate circumstances statements in an employee handbook or manual may give rise to an implied contract between an employer and its employee. See Finley v. Aetna Life & Casualty Co., 202 Conn. 190, 198-99, 520 A.2d 208 (1987); Magnan v. Anaconda Industries, Inc., 193 Conn. 558, 564, 479 A.2d 781 (1984). In this case, however, the bonus guidelines contain no language that can reasonably be construed as a basis for a contractual promise. See Finley v. Aetna Life & Casualty Co., 202 Conn. 190, 199 n.2, 520 A.2d 208 (1987). Although the plaintiff stressed at oral argument that the guidelines contain the phrase “Bonuses . . . will be paid. . . .” we find this unpersuasive. A contractual promise cannot be created by plucking phrases out of context; there must be a meeting of the minds between the parties. See Bridgeport Pipe Engineering Co. v. DeMatteo Construction Co., 159 Conn. 242, 246, 268 A.2d 391 (1970); Lucier v. Norfolk, 99 Conn. 686, 699, 122 A.2d 711 (1923).

The mere fact that the plaintiff believed the guidelines to constitute a contract does not bind Bic without some evidence that it intended to be bound to such a contract. See Brighenti v. New Britain Shirt Corporation, 167 Conn. 403, 407, 356 A.2d 181 (1974).

Since there was no evidence that Bic had contracted to pay a bonus to persons it no longer employed, the trial court should not have submitted the case to the jury and erred in denying the defendant’s-motion to ■ set aside the verdict. See D’Arcy v. Shugrue, 5 Conn. App. 12, 15, 496 A.2d 967, cert. denied, 197 Conn. 817, 500 A.2d 1336 (1985). It is thus unnecessary to consider the defendant’s remaining claims of error.

In light of our conclusion that the plaintiff presented insufficient evidence to show that Bic was contractually obligated to pay a bonus, whether such a bonus would have been wages within the meaning of General Statutes § 31-71a is an academic question we will not pursue.

There is error on the appeal, the judgment is set aside and the case is remanded with direction to render judgment for the defendant. The plaintiffs cross appeal is dismissed.

In this opinion the other judges concurred.

       Other documentary evidence submitted by the plaintiff consisted of the following: a copy of Bic’s 1983 Annual Report which was used to establish that Bic had made a profit in the year that the plaintiff was discharged; charts that had been made by the plaintiff to depict his own performance history and the salary and bonuses he had received; the plaintiff’s chart of the employment levels of various Bic employees; copies of the plaintiff’s pay stubs; a chart by Bic that showed a history of the bonuses paid to various employees; a 1975 memorandum concerning Bic’s new compensation program which was to go into effect on January 1, 1976; a 1976 bulletin that stated when new employees would become eligible to receive bonus consideration; a December, 1983 memorandum concerning Bic’s five year history of bonuses; and a policy bulletin concerning Bic’s severance benefits.
      The plaintiff testified that he never saw the bulletin concerning severance benefits until after he had been discharged. It was agreed that he had never seen the memorandum on the new compensation program, and there was no testimony that he had ever seen the bulletin concerning new employees or Bic’s five year bonus history or Bic’s chart which showed a history of bonuses paid to various employees.
      The memoranda concerning bonuses for each year, which the plaintiff did see, were virtually identical and, as an example, provided as follows:
      “BONUSES
      “Based on Calendar Year 1980
      “1. Bonuses for calendar year 1980 will be paid as a percentage to an individual’s salary with the following máximums:

        “Exempt Levels
      “Level IA maximum 20%
      “Level I maximum 20%
      “Level II maximum 15%
      “Level III maximum 10%
      “Level IV maximum 7.5%
      “Non-Exempt Levels
      “Grade 1 - maximum 7.5%
      “Grade 2 - maximum 5%
      “Grade 3 - maximum 5%
      “Grade 4 - maximum 5%
      “Grade 5 - maximum 5%
      “2. These percentages can be reduced in future years (at a rate to be determined) if the profits of the Company are less than the previous year’s profits.
      “3. Bonuses will be paid some time during the first quarter, after the operating results for the previous year are announced.
      “4. Determination of the bonuses to be paid to an individual must take the following into consideration:
      “a. Performance of the Company;
      “b. Performance of the individual in that position.
      “5. The maximum referred to in paragraph No. 1 above will be based on the previous year’s salary.
      “6. All bonuses must be approved by Mr. Robert Adler before they are announced.
      “2/6/81”

       We emphasize that in this case we are not dealing with an employee handbook, but with a policy memorandum that was distributed only to supervisors.
      The language of the memoranda does not facially imply that they are intended to be contractual obligations because they refer to bonuses, not salaries. The common meaning of the word “bonus” is “ ‘something given or received that is over and above what is expected.’ ” Silver v. Silver, 170 Conn. 305, 309, 365 A.2d 1188 (1976), quoting Webster, Third New International Dictionary.
      “[A] promise must be sufficiently certain in its terms to enable the court to understand what the promisor undertakes.” 1 S. Williston, Contracts (3d Ed.) § 24. “[M]ere expression of intention or general willingness to do something on the happening of a particular event or in return for something to be received does not amount to an offer.” Id., § 26; see also Borden v. Skinner Chuck Co., 21 Conn. Sup. 184, 191, 150 A.2d 60 (1958).


author: O’Connell, J. Borden, J.,

text:
    State of Connecticut v. Christopher P. Bruens
    (7235)
    Borden, O’Connell and Stoughton, Js.
    Argued January 3
    decision released May 23, 1989

      CarlD. Eisenman, public defender, for the appellant (defendant).

      Mitchell S. Brody, deputy assistant state’s attorney, with whom, on the brief, was Frank S. Maco, state’s attorney, for the appellant (state).
   O’Connell, J.

The defendant appeals from the judgment of conviction, rendered after a jury trial, of sexual assault in the fourth degree, in violation of General Statutes § 53a-73a, and risk of injury to a minor, in violation of General Statutes § 53-21. The defendant claims that the court erred in admitting the testimony of the victim’s mother concerning a statement made by the victim. We find no error.

The jury could reasonably have found the following facts. On August 4,1987, sometime between 8 p.m. and 9:30 p.m., the defendant visited his cousin and her three and one-half year old daughter at their home. Shortly after the defendant arrived, the child’s mother went into the bathroom leaving the defendant and her daughter in the kitchen together. Upon returning several minutes later, she found her daughter under the table. The child’s head was hanging, her hands were held up to her face and her legs were spread apart. The defendant was beside the table with one hand inside the child’s shorts in her genital area. The mother yelled at the defendant and told him to leave. She immediately picked up the child and hugged her. While she was doing so, the child stated that the defendant “put his finger up her pookie and hiney.”

At trial, neither party called the child as a witness. As part of the state’s case, the victim’s mother testified as to the victim’s statement. The defendant did not object. On appeal, however, he claims that the statement was inadmissible as hearsay and warrants our review under State v. Evans, 165 Conn. 61, 70, 327 A.2d 576 (1973), because its admission violated his constitutional right of confrontation and to a fair trial, under the state and federal constitutions.

Here, we have not only a failure to take an exception, but the more basic circumstance of a failure to object to the admission of evidence. Thus, a question arises as to whether the lack of objection was through oversight or negligence or whether it was a matter of trial tactics. “ ‘ “Only in most exceptional circumstances can and will this court consider a claim, constitutional or otherwise, that has not been raised and decided in the trial court.” State v. Evans, [supra, 69]. “The policy behind this rule is both ancient and sound and ‘does not permit a defendant in a criminal case to fail, whether from a mistake of law, inattention or design, to object to matters occurring during a trial until it is too late for them to be corrected or even considered and then, if the outcome proves unsatisfactory, to raise them for the first time on an appeal.’ . . .”’ In this case, we undertake a review for the limited purpose of determining whether there has been an infringement of a constitutional right.” (Citations omitted.) State v. Stevenson, 198 Conn. 560, 567-68, 504 A.2d 1029 (1986).

This court will undertake a limited review of unpreserved claims where the record adequately demonstrates that a constitutional right is implicated. State v. Bailey, 209 Conn. 322, 329-30 n.4, 551 A.2d 1206 (1988). A hearsay claim, however, does not automatically invoke a constitutional right to confrontation. State v. Veal, 201 Conn. 368, 376, 517 A.2d 615 (1986); State v. Daley, 11 Conn. App. 236, 238, 526 A.2d 560 (1987). Claims involving out of court statements that fall within a firmly rooted hearsay exception are sufficiently reliable and raise an evidentiary, rather than constitutional issue. State v. Wood, 208 Conn. 125, 135, 545 A.2d 1026, cert. denied, 488 U.S. 895, 109 S. Ct. 235, 107 L. Ed. 2d 225 (1988). Thus, they are not entitled to Evans review. State v. Smith, 209 Conn. 423, 426, 551 A.2d 742 (1988).

The defendant argues that his claim rises to constitutional magnitude because the state offered the contested statement under the constancy of accusation exception to the hearsay rule but failed to meet the exception’s requirement that the victim testify. See State v. Dabkowski, 199 Conn. 193, 199, 506 A.2d 118 (1986); C. Tait & J. LaPlante, Connecticut Evidence (2d Ed. 1988) § 11.22, p. 408. Contrary to this argument, the state claims that the statement was properly offered under the excited utterance exception which does not require the victim to testify. See State v. Yednock, 14 Conn. App. 333, 346, 541 A.2d 887 (1988); C. Tait & J. LaPlante, supra, § 11.11.1, p. 373.

We need not determine whether the constancy of accusation or the excited utterance exception applied in this case because both are firmly rooted hearsay exceptions. Thus, even if the defendant had objected to the statement at trial, any ruling made by the court would have invoked evidentiary rather than constitutional principles. Without a proper objection, this court is precluded from reviewing his evidentiary claim. State v. Smith, supra.

There is no error.

In this opinion Stoughton, J., concurred.

Borden, J.,

concurring. I agree with the majority. I write separately, however, to express my view that it is clear from this record that, had an objection been interposed at trial, the state’s response would have been based solely on the excited utterance exception to the hearsay rule; the. constancy of accusation exception was plainly inapplicable because the victim had not yet testified and, in fact, never testified in the case. Thus, the defendant’s entire argument on appeal regarding constancy of accusation constitutes the classic “straw man.” Not only did he not object at trial; he claims error on appeal on the basis of an argument that has no roots whatsoever in the record. This does not even amount to a minimal pass at compliance with the requirements of Evans review.

       He bases his claim on the sixth amendment to the United States constitution and article first of the Connecticut constitution. The defendant, however, does not advance a separate argument under the state constitution. Therefore, we will consider only his federal claim. State v. Hall, 17 Conn. App. 502, 505 n.1, 554 A.2d 746 (1989).


author: Dupont, C. J.

text:
    Craftsmen, Inc. v. Lorraine Young
    (7195)
    Dupont, C. J., Daly and Jacobson, Js.
    Argued March 2
    decision released May 23, 1989

      Philip R. Mancini III, with whom, on the brief, was Linda M. Guliuzza, for the appellant (plaintiff).

      Todd R. Bainer, for the appellee (defendant).

      Clarine Nardi Riddle, acting attorney general, Joseph I. Lieberman, former attorney general, and Stephen R. Park, Neil G. Fishman and Robert Langer, assistant attorneys general, filed a brief for the State of Connecticut as amicus curiae.
   Dupont, C. J.

This appeal involves the plaintiffs claim for damages based upon breach of contract and quantum meruit. The plaintiff appeals from the trial court’s granting of the defendant’s motion for summary-judgment, claiming that the court erred in holding that the contract between the parties was invalid and unenforceable under General Statutes § 20-429 (a) of the Home Improvement Act and § 42-135a of the Home Solicitation Sales Act.

The plaintiff’s complaint specifically alleged that it prepared an estimate for work to be performed, at the request of the defendant, in order to facilitate the defendant’s purchase of property owned by the New Haven Redevelopment Agency. The complaint further alleged that the defendant requested that the plaintiff begin demolition work on the premises and, in accordance with the defendant’s request and specifications, the plaintiff performed the demolition work. Despite demand, the defendant allegedly refused to pay for the services rendered by the plaintiff. The plaintiff thereafter initiated the present action against the defendant for payment for goods and services rendered. The defendant counterclaimed against the plaintiff, alleging that the plaintiff contracted to undertake an entire renovation and rehabilitation of the premises and that the plaintiff defaulted by abandoning the job without explanation, with only an insignificant portion of the overall job completed.

The plaintiff’s first claim is that the trial court erred in granting the defendant’s motion for summary judgment on the basis that the contract between the parties was invalid and unenforceable under General Statutes § 20-429 (a) of the Home Improvement Act.

In evaluating the propriety of a summary judgment, we are confined to an examination of whether the “pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Practice Book § 384; State v. Hossan-Maxwell, Inc., 181 Conn. 655, 657 n.1, 436 A.2d 284 (1980).

“A ‘genuine’ issue has been variously described as ‘triable,’ ‘substantial’ or ‘real’ issue of fact . . . and has been defined as one which can be maintained by substantial evidence. . . . Hence, the ‘genuine issue’ aspect of summary judgment procedure requires the parties to bring forward before trial evidentiary facts, or substantial evidence outside the pleadings, from which the material facts alleged in the pleadings can warrantably be inferred. ... A ‘material’ fact has been defined adequately and simply as a fact which will make a difference in the result of the case. . . . ‘Issue of Fact’ encompasses not only evidentiary facts in issue but also questions as to how the trial would characterize such evidentiary facts and what inferences and conclusions it would draw from them.” (Citations omitted.) United Oil Co. v. Urban Redevelopment Commission, 158 Conn. 364, 378-79, 260 A.2d 596 (1969).

In its memorandum of decision, the trial court found that it was undisputed by the parties that the contract between them was oral. Concluding that § 20-429 (a) of the Home Improvement Act rendered oral contracts for home improvements unenforceable, the court granted the defendant’s motion for summary judgment.

Section 20-429 (a) provides: “No home improvement contract shall be valid unless it is in writing and unless it contains the entire agreement between the owner and the contractor.” The operative effect of § 20-429 (a) depends on whether the work contemplated by the parties constitutes a “home improvement” within the meaning of § 20-419 (4). Our review of the pleadings, supporting affidavits and interrogatories submitted by the parties reveals that a genuine factual dispute exists as to the subject matter of the oral contract contemplated by the parties.

In the plaintiffs reply to the defendant’s special defense based on the Home Improvement Act; General Statutes §§ 20-419 and 20-429 (a); the plaintiff admitted that the action was brought upon an oral contract, yet denied the remainder of the defendant’s special defense. The plaintiff consistently maintained that the services contemplated by the contract were limited to exploratory and demolition work and the removal of debris. The defendant, in her responsive pleadings and supporting affidavit, alleged that the work contemplated by the contract was not limited to exploratory work but, rather, also encompassed complete rehabilitation and renovation of the premises.

“In passing on a defendant’s motion for summary judgment, the trial court is limited to deciding whether an issue of fact exists, but in passing on that motion it cannot try that issue if it does exist.” United Oil Co. v. Urban Redevelopment Commission, supra, 377. As evidenced by the pleadings, affidavits and other proofs submitted, there is a genuine issue of material fact to be resolved by the trier about the type of work that was contemplated by the parties under the oral contract. That issue of fact is whether the contract was limited to exploratory and demolition work, or, as the defendant'contends, included complete restoration and rehabilitation. Because there are genuine issues of material fact to be determined, the court erred in granting the defendant’s motion for summary judgment.

The plaintiff’s next claim is that the trial court erred in granting the defendant’s motion for summary judgment on the basis that the contract was invalid and unenforceable under General Statutes § 42-135a of the Home Solicitation Sales Act. Specifically, the plaintiff contends that the Home Solicitation Sales Act is inapplicable to the oral contract of the parties in that the services rendered by the plaintiff were not “consumer goods or services”; General Statutes § 42-134a (b); and that the plaintiff was not a “seller” as defined by § 42-134a (c).

The trial court found that there was undisputed evidence indicating (1) that there was no signed written agreement, (2) that the plaintiff met with the defendant at her home on at least one occasion, and (3) that any negotiations or “contract talks” occurred at a place other than the place of the business of the seller. Relying on Maisano Bros., Inc. v. Halprin, 36 Conn. Sup. 271, 418 A.2d 97 (1980) (the installation of an asphalt driveway constitutes “consumer goods and services” as used in § 42-134a (a) definition of “home solicitation sale”), the trial court held that the services rendered by the plaintiff, exploratory and demolition work and the removal of debris, fell within the meaning of “consumer goods and services.” General Statutes § 42-134a (b). The trial court therefore concluded that the contract in question was not enforceable under the Home Solicitation Sales Act. General Statutes § 42-135a.

Section 42-134a (b) defines “consumer goods and services” as: “goods or services purchased, leased, or rented primarily for personal, family, or household purposes . . . . ” In the plaintiffs reply to the defendant’s special defense of the Home Solicitation Sales Act; General Statutes §§ 42-134a et seq. and 42-135a; the plaintiff admitted that the action was brought upon an oral contract, yet denied the remainder of the special defense, disputing that the exploratory, demolition work and the removal of debris performed were “consumer goods and services” because they were not for “personal, family or household purposes.” General Statutes § 42-134a (b). The pleadings, affidavits and other proof submitted in connection with the defendant’s motion for summary judgment reflect a genuine dispute between the parties about whether the work performed by the plaintiff was for “personal, family or household purposes.” This genuine factual issue must be resolved by the trier and may not be disposed of by summary judgment.

The plaintiff last claims that the trial court erred in granting the defendant’s motion for summary judgment without addressing the plaintiff’s claim for damages under the theory of quantum meruit. Because of our disposition of the plaintiff’s first two claims it is unnecessary to consider this claim.

There is error, the judgment is set aside and the case is remanded for further proceedings.

In this opinion the other judges concurred.

       General Statutes § 20-419 (4) provides: “ ‘Home improvement’ includes but is not limited to, the repair, replacement, remodeling, alteration, conversion, modernization, improvement, rehabilitation or addition to any land or building or that portion thereof which is used or designed to be used as a private residence or dwelling place, or the construction, replacement, installation or improvement of driveways, swimming pools, porches, garages, roofs, siding, insulation, solar energy systems, flooring, patios, landscaping, fences, doors and windows and water-proofing in connection with such land or building or that portion thereof which is used or designed to be used as a private residence or dwelling place, in which the total cash price for all work agreed upon between the contractor and owner exceeds two hundred dollars. ‘Home improvement’ does not include: (A) The construction of a new home; (B) the sale of goods by a seller who neither arranges to perform nor performs, directly or indirectly, any work or labor in connection with the installation or application of the goods or materials; (C) the sale of goods or services furnished for commercial or business use or for resale; (D) the sale of appliances, such as stoves, refrigerators, freezers, room air conditioners and others which are designed for and are easily removable from the premises without material alteration thereof; (E) any work performed by the owner on his own premises.”

       General Statutes § 42-135a provides in pertinent part: “No agreement of the buyer in a home solicitation sale shall be effective if it is not signed and dated by the buyer . . . .”


author: O’Connell, J.

text:
    Steeltech Building Products, Inc. v. Edward Sutt Associates, Inc., et al.
    (6236)
    Dupont, C. J., O’Connell and Foti, Js.
    Submitted on briefs December 12, 1988
    decision released May 30, 1989

      Bernard Green and Susan C. Webb filed a brief for the appellants (defendants).

      Dennis C. Cavanaugh and Victor N. Morganthaler filed a brief for the appellee (plaintiff).
   O’Connell, J.

The defendants, Edward Sutt Associates, Inc. (the corporation), and Edward Sutt, individually (Sutt), appeal from the judgment rendered after a trial to the court in an action to recover damages for breach of contract or, in the alternative, under a theory of quantum meruit. They claim that the trial court erred in finding that a contract existed between the parties. In the alternative, they claim that, if there was a contract, the court erred in determining the type and amount of damages recoverable, and in holding the defendant Sutt individually liable. We find no error.

The trial court found that, in response to the defendants’ solicitation of bids, the plaintiff’s employees John Denton and Kent Hammerlind had met on January 27, 1984, with Sutt and his architect, Roger Braley, at the Southgate Condominium project site to present their written bid of $188,700 for their role in that project. Sutt responded that they were waiting for another bid. He and Braley went into another room and contacted a third party who gave them an oral bid.

Upon returning to Denton and Hammerlind, Braley told them that their price was good and asked that they get started immediately. Denton responded by asking Sutt if they had a deal. Sutt replied, “Yes, it’s your job,” and they shook hands. Braley, Denton and Ham-merlind spent the next one and one-half hours going over the project specifications. During this time, Den-ton produced a “proposal and contract” form for Sutt to sign. Sutt declined, however, saying that he wanted to examine it over the weekend. As an alternative, he agreed to prepare and sign a letter of intent. Shortly thereafter, Denton and Hammerlind offered to take Sutt and Braley to lunch to celebrate their deal. Sutt declined and said he would have the letter of intent ready when they returned. After lunch, the letter was produced but Sutt was unavailable to sign it. As a result, the parties agreed that it would be mailed to the plaintiffs office. Upon leaving, Denton and Ham-merlind were given a set of drawings and the original copy of the foundation plans for the project.

Shortly after the January 27,1984 meeting, the plaintiff’s structural design engineers commenced preparation of drawings for the defendant’s approval. They also reserved a time slot in their steel fabrication shop from the last week in February through the third week in March for the Southgate project in accordance with the timetable agreed upon by the parties.

The parties were in frequent contact between February 1 and February 13, despite Sutt’s failure to mail the signed letter of intent or the proposal and contract form. During that time, the plaintiff drew up written plans, which Braley reviewed, and the parties negotiated minor changes to the plans and price adjustments. On February 20, however, Sutt telephoned Denton to say that the plaintiff had lost the job by $7000 to another bidder.

At the conclusion of the trial, the court rendered judgment in favor of the plaintiff awarding it $52,000 for lost profits, general administrative overhead, idle labor and actual labor costs.

In their first claim, the defendants argue that the trial court erred in finding that a contract existed between the parties because the defendants had not signed the plaintiff’s proposal and contract form or the letter of intent.

It is a fundamental principle of contract law that the existence and terms of a contract are to be determined from the intent of the parties. Menard v. Gentile, 7 Conn. App. 211, 213, 508 A.2d 456 (1986). The parties’ intentions manifested by their acts and words are essential to the court’s determination of whether a contract was entered into and what its terms were. Finley v. Aetna Life & Casualty Co., 202 Conn. 190, 199, 520 A.2d 208 (1987). Whether the parties intended to be bound without signing a formal written document is an inference of fact for the trial court that we will not review unless we find that its conclusion is unreasonable. Menard v. Gentile, supra, 213. Our examination of the record satisfies us that the trial court’s determination that a contract existed was a reasonable conclusion supported by the evidence.

Having found that a contract existed, we now turn to the defendants' claims that the court erred in calculating damages. They argue first that the trial court’s finding of $24,900 in lost profits was unsupported by the evidence. In addition, they argue that the separate award of $11,987 for general and administrative overhead expenses is included in the lost profits figure and, in effect, was awarded twice. Last, they argue that the court erred in awarding $14,462 for “idle labor” costs.

At the outset, in a breach of contract action for damages, the aggrieved party is entitled to be placed in the same economic position it would have been in if the contract had been performed. West Haven Sound Development Corporation v. West Haven, 207 Conn. 308, 317, 541 A.2d 858 (1988); Beckman v. Jalich Homes, Inc., 190 Conn. 299, 309, 460 A.2d 488 (1983). Such party may recover lost profits which do not need to be proven by mathematical precision. West Haven Sound Development Corporation v. West Haven, 201 Conn. 305, 320-21, 514 A.2d 734 (1986); Southern New England Contracting Co. v. State, 165 Conn. 644, 661, 345 A.2d 550 (1974).

The trial court found that the plaintiff’s lost profits totaled $24,900 which included “buy-outs” of materi-ais and services to be performed. The testimony of the plaintiffs chief executive officer and exhibits prepared by its certified public accountant formed the factual basis upon which the court reasonably concluded that the sum equalled the plaintiffs lost profits. Moreover, it clearly established that the plaintiff did not calculate general office and administrative overhead expenses in its lost profits figure. Rather, it presented evidence of these expenses separately. Such evidence amply supports the trial court’s award of $11,987. See Southern New England Contracting Co. v. State, supra, 660-63. Therefore, the defendants’ arguments relating to the lost profits award are meritless.

Turning to the defendants’ claim concerning the court’s award of idle labor costs, they argue that the plaintiff failed to prove that these costs were proximately caused by the defendants’ breach and that they were reasonably foreseeable. In addition, they argue that the plaintiff failed to make all reasonable efforts to mitigate such loss.

The trial court found that the plaintiff is a relatively small operation that schedules one job per time slot. In accordance with its contract with the defendants, it reserved four weeks, commencing the last week in February, to complete its portion of this project. As a result of the defendants’ breach, the six employees assigned to the project were 67 percent less productive due to the unavailability of a comparable replacement project and the court awarded the plaintiff $14,462 to cover its idle labor costs.

In Connecticut, the recovery of idle labor costs is an issue of first impression. In making this award, the trial court relied on General Ins. Co. v. Hercules Construc tion Co., 385 F.2d 13 (8th Cir. 1967). There, the court of appeals upheld an award of overtime wages due to a breach of contract as a natural and foreseeable consequence. Id., 21. Norton & Lamphere Construction Co. v. Blow & Cote, Inc., 123 Vt. 130, 183 A.2d 230 (1962), is the only other case found that discusses the issue in the present context. In Norton, the plaintiff sought to recover $1800 paid to its workers for the six weeks they were idle due to the defendant’s refusal to permit performance pursuant to a contract. The Supreme Court of Vermont held that this expenditure was made solely for the purpose of performing the contract. It arose naturally from the breach of the contract and was reasonably within the contemplation of both parties at the time of the making of the contract and, hence, recoverable. Id., 235, citing Hadley v. Baxendale, 156 Eng. Rep. 145, 9 Ex. 341 (1854).

Here, the defendants claim they should not be held accountable for the plaintiff’s idle labor costs merely because it is the plaintiff’s policy to pay its employees a forty hour per week salary regardless of the amount of work available. We follow the reasoning in Norton & Lamphere Construction Co. v. Blow & Cote, Inc., supra, and disagree with the defendants.

The defendants also argue that the plaintiff cannot recover these damages because it failed to present evidence to prove that it had refused other jobs for the same four week period it had alloted for the Southgate project. Again, we disagree. The plaintiff did not learn of the defendants’ breach until February 20, only a few days before it was scheduled to commence work on the Southgate project. Being a small shop incapable of handling more than one job of this type at a time, the plaintiff had no reason to solicit work for this period after contracting with the defendants. Moreover, the record supports the trial court’s finding that the plaintiff attempted to mitigate its damages by obtaining work for this time period but was unsuccessful because comparable projects were difficult to secure at that time of year on such short notice. Nevertheless, the plaintiff assigned whatever work it could find, thus mitigating the defendants’ damages by approximately one third.

In view of the facts of this case, the trial court correctly concluded that the plaintiff’s idle labor costs were recoverable as a direct result of the defendants’ breach.

In their last claim, the defendants argue that the trial court erred in holding Sutt individually liable. In support of this claim, they assert that the court failed to provide a basis for this holding. It is rudimentary law, however, that “[tjhe appellant bears the burden of presenting an adequate appellate record. . . . Where the basis of the trial court’s decision is unclear, proper utilization of the motion for articulation serves to dispel any ambiguity by clarifying the factual and legal basis upon which the trial court rendered its decision.” (Citations omitted.) Pantlin & Chananie Development Corporation v. Hartford Cement & Bldg. Supply Co., 196 Conn. 233, 239, 492 A.2d 159 (1985). The defendants’ failure to do so precludes us from reviewing this claim.

There is no error.

In this opinion the other judges concurred.

       The defendants do not challenge the $621.06 award for actual labor costs.

       The “buy-out” figures represent the difference between the plaintiff’s costs and the prices it would have charged the defendants.


author: Spallone, J.

text:
    Statewide Grievance Committee v. Daniel V. Presnick
    (6714)
    Spallone, Daly and Jacobson, Js.

      Argued April 5
    decision released May 30, 1989

      Daniel V. Presnick, pro se, the appellant (defendant).

      Seymour N. Weinstein, for the appellee (plaintiff).
   Spallone, J.

Upon presentment by the Statewide Grievance Committee, the trial court found the defendant, an attorney admitted to practice in the state of Connecticut, to be in violation of disciplinary rules 1-102 (A) (1) (4) (engaging in conduct involving dishonesty, fraud or deceit), 9-102 (A) and (B) (preserving identity of funds and property of a client) and 2-101 (A) through (D) (misleading and deceptive advertising) of the code of professional responsibility. From the judgment rendered thereon the defendant appeals.

The defendant has stated eighteen claims of error, including an assertion that the trial court erroneously applied the “fair preponderance of the evidence” standard of proof rather than the “clear and convincing” standard. We agree that the standard of proof that should apply is the “clear and convincing evidence” standard.

In response to the defendant’s motion for articulation, the trial court expressly stated: “The standard of proof used by the court in the above captioned matter was that of a fair preponderance of the evidence.”

This court in Statewide Grievance Committee v. Presnick, 18 Conn. App. 316, 323, 559 A.2d 220 (1989), held that the standard of proof applicable in determining whether an attorney has violated the code of professional responsibility is clear and convincing evidence. For an analysis of the various standards of proof, see Cookson v. Cookson, 201 Conn. 229, 233-35, 514 A.2d 323 (1986), and Schaffer v. Lindy, 8 Conn. App. 96, 104-105, 511 A.2d 1022 (1986). Because the clear and convincing evidence standard of proof was not applied in this case, a new trial is required.

Because we find error and remand for a new trial, we do not reach the other claims of error advanced by the defendant.

There is error, the judgment is set aside and a new trial is ordered.

In this opinion the other judges concurred.