text:
    JANET HANSON v. TRANSPORTATION GENERAL, INC., ET AL.
    (AC 16527)
    Dupont, C. J., and Spear and Hennessy, Js.
    Argued March 18
    officially released June 10, 1997

      Lawrence C. Sgrignari, for the appellant (plaintiff).

      Jason M. Dodge, for the appellees (defendants).
   Opinion

HENNESSY, J.

The plaintiff, Janet Hanson, surviving spouse of Allen Hanson, appeals from a decision of the compensation review board of the workers’ compensation commission affirming the trial commissioner’s denial of benefits. The sole issue in this appeal is whether the commissioner properly determined that the decedent, Allen Hanson, was not an employee under the Workers’ Compensation Act. General Statutes § 31-275 et seq. We affirm the board’s decision.

The facts necessary to the resolution of this appeal may be summarized as follows. The named defendant Transportation General, Inc., doing business as Metro Taxi, operated a fleet of taxicabs through the use of both owner-operator and lease agreements. Drivers could either lease or purchase cabs from the defendant. The decedent, under an owner-operator agreement, drove a Metro Taxi from 1987 until he was murdered while operating a Metro Taxi on April 16, 1990. Under the terms of the defendant’s standard owner-operator agreement, the defendant held legal title to the vehicle and the owner-operator maintained a beneficial ownership. Upon the termination of the relationship, which could be done by either party after forty-eight hours notice, legal title would be transferred back to the owner-operator. In return for the weekly payment by the owner-operator of “stand dues” in the approximate amount of $425, plus an additional $100 per week if a second driver was used, the defendant, under a certificate issued to it by the department of transportation, allowed the owner-operator the right to operate a taxicab. The defendant required the owner-operator to be properly licensed, to use a taxicab meter and radio approved by the department of transportation and to obey its regulations and to adhere to all federal, state and local laws. The owner-operators also were required to maintain insurance in the minimum amount required by law at their own expense and to pay for the use and operation of the vehicle including repairs, maintenance, fines, tickets, towing and all taxes or other assessments imposed by governmental agencies. Under the agreement, the owner-operator could set the hours of operation, hire a driver for the taxicab, use the vehicle for personal use and keep all fares derived from the operation of the vehicle. The defendant did not pay the owner-operator, provide benefits, request income records or collect payroll or social security taxes.

I

The plaintiffs initial claim is that the review board improperly failed to adopt the relative nature of the work test as an alternative to the right to control test in analyzing the relationship between the decedent and the defendant. The plaintiff contends that the decedent would have been found to be an employee of the defendant and entitled to benefits in accordance with the Workers’ Compensation Act had the relative nature of the work test been applied in this case.

Both the relative nature of the work and the right to control tests are used to determine if a person is an employee. See IB A. Larson, Workmen’s Compensation Law (1996) § 43.52. The relative nature of the work test applies when the work being done is an integral part of the regular1 business of the employer and when the worker, relative to the employer, does not furnish an independent business or professional service. The right to control test, utilized in this state, has been described as follows: “One is an employee of another when he renders a service for the other and when what he agrees to do, or is directed to do, is subject to the will of the other in the mode and manner in which the service is to be done and in the means to be employed in its accomplishment as well as in the result to be attained. . . . The controlling consideration in the determination whether the relationship of master and servant exists or that of independent contractor exists is: Has the employer the general authority to direct what shall be done and when and how it shall be done—the right of general control of the work?” (Citation omitted.) Kaliszewski v. Weathermaster Alsco Corp., 148 Conn. 624, 629, 173 A.2d 497 (1961).

In summary, the relative nature of the work test focuses on the closeness of the relationship between the work being performed and the business of the company, while the right to control test focuses on the general authority that exists and is exercised over the person performing the work. There is no question that the right to control test is the test to be applied in this state: “There is no dispute about the ultimate test. It is the right of general control of the means and methods used by the person whose status is involved.” Ross v. Post Publishing Co., 129 Conn. 564, 567, 29 A.2d 768 (1943); DaSilva v. Danbury Publishing Co., 39 Conn. App. 653, 656, 666 A.2d 440, cert. denied, 235 Conn. 936, 668 A.2d 374 (1995).

The plaintiff now urges this court to adopt the relative nature of the work test as an alternative to the traditional right to control test. This court, however, cannot overrule our Supreme Court’s decision in Ross to use the right to control test. The plaintiffs claim, therefore, must fail.

II

The plaintiff next claims that the review board improperly found that the commissioner’s conclusions were consistent with the subordinate facts. The plaintiff argues that the application of the facts found by the commissioner does not support the conclusion that the decedent was an independent contractor pursuant to the right to control test.

The plaintiff points to the following findings in support of her contention: (1) all Metro cabs were painted the same color and bore the Metr o name and telephone number as directed by the defendant; (2) the drivers were required to utilize a meter, to obey all laws pertaining to the operation of a taxicab and to report loss of license and all traffic citations to the defendant; (3) the drivers were expected to keep the taxicab clean, help passengers with their luggage and exercise courtesy in dealing with the public; (4) if the driver chose to use a radio and agreed to a service call through the radio dispatcher, he or she would be under the orders and direction of the dispatcher.

The review board upheld the commissioner’s conclusion that the decedent was an independent contractor and, therefore, not covered as an employee under the Worker’s Compensation Act. The board’s decision was based on the findings that the decedent paid $425 per week for the right to drive the taxicab and that the decedent was allowed to keep all his fares and to work as many hours as he chose. The review board also found that the facts that the decedent was not paid a salary, that he could use the vehicle for his own personal use and have his own personal customers and that he had signed an agreement characterizing himself as an independent contractor supported the commissioner’s determination.

“Our courts have long recognized that independent contractors are not within the coverage of the Workers’ Compensation Act. . . . The determination of the status of an individual as an independent contractor or employee is often difficult . . . and, in the absence of controlling considerations, is a question of fact. . . . The fundamental distinction between an employee and an independent contractor depends upon the existence or nonexistence of the right to control the means and methods of work.” (Citations omitted; internal quotation marks omitted.) Chute v. Mobil Shipping & Transportation Co., 32 Conn. App. 16, 19-20, 627 A.2d 956, cert. denied, 227 Conn. 919, 632 A.2d 688 (1993). “The commissioner, as trier of facts, has the power and duty to determine the facts, and the conclusions drawn from those facts as found must stand unless they result from an incorrect application of the law to the subordinate facts or from an inference illegally or unreasonably drawn from them. . . . Our scope of review of the actions of the review division is similarly limited. ” (Citations omitted; internal quotation marks omitted.) DaSilva v. Danbury Publishing Co., supra, 39 Conn. App. 655.

The board concluded that the facts found by the commissioner supported the determination that the decedent was an independent contractor. Because the conclusions drawn by the commissioner reflect an appropriate application of the law to the subordinate facts, we conclude that the board properly affirmed the decision of the commissioner.

Ill

The plaintiffs last claim is that the review board improperly upheld the commissioner’s refusal to correct the findings and award. The plaintiff maintains that the facts that she sought to add to the commissioner’s findings are material facts that would have made a difference in the result of this case.

“The finding of the commissioner cannot be changed ‘unless the record discloses that the finding includes facts found without evidence or fails to include material facts which are admitted or undisputed.’ Wheat v. Red Star Express Lines, 156 Conn. 245, 248, 240 A.2d 859 (1968). ‘It [is] the commissioner’s function to find the facts and determine the credibility of witnesses . . . and a fact is not admitted or undisputed merely because it is uncontradicted.’ . . . Id., 249. A material fact is one that will affect the outcome of the case. See Tutsky v. YMCA of Greenwich, 28 Conn. App. 536, 540, 612 A.2d 1222 (1992).” Tovish v. Gerber Electronics, 32 Conn. App. 595, 599, 630 A.2d 136 (1993), appeal dismissed, 229 Conn. 587, 642 A.2d 721 (1994).

After a review of the requests made in the motion to correct the finding and award, we conclude that even if the findings were corrected as requested, the ultimate conclusion would not change. The review board, therefore, properly refused to order the findings to be corrected.

The decision of the compensation review board is affirmed.

In this opinion the other judges concurred.

       The named defendant’s workers’ compensation insurance carrier is also a defendant in this action. We refer to Transportation General, Inc., as the defendant in this opinion.

       The defendant was required to hold legal title to the vehicle because, in accordance with Connecticut law, all taxicabs are required to be titled in the name of the certificate holder, in this case, the defendant.

       “Stand dues” are a combination of leasing, taxes and insurance costs.

       The relative nature of the work test “contains these ingredients: the character of the claimant’s work or business—how skilled it is, how much of a separate calling or enterprise it is, to what extent it may be expected to carry its own accident burden and so on—and its relation to the employer’s business, that is, how much it is a regular part of the employer’s regular work, whether it is continuous or intermittent, and whether the duration is sufficient to amount to the hiring of continuing services as distinguished from contracting for the completion of a particular job.” 1B A. Larson, supra, § 43.52.


source: Caselaw Access Project

author: MIHALAKOS, J.

license: Public Domain

text:
    PETER KELLEY v. NEW ENGLAND RAILROAD CONSTRUCTION COMPANY, INC., ET AL.
    (AC 15947)
    O’Connell, Hennessy and Mihalakos, Js.
    Argued February 27
    officially released June 17, 1997

      Matthew B. Beizer, assistant attorney general, with whom, on the brief, were Richard Blumenthal, attorney general, and William J. McCullough, assistant attorney general, for the appellant (defendant second injury fund).

      Timothy E. Welsh, for the appellee (named defendant et al.).
   Opinion

MIHALAKOS, J.

The question presented in this appeal is whether the compensation review board improperly affirmed the trial commissioner’s determination that the notice of the defendant Wausau Underwriters Insurance Company (insurer) to the second injury fund (fund) of its intent to transfer liability to the fund was timely under the requirements of General Statutes § 31-349. We conclude that the insurer failed to notify the fund in a timely manner and, therefore, could not transfer its liability to the fund.

The following facts are relevant to this appeal. On July 3,1990, the plaintiff, Peter Kelley, sustained a work related injury to his lower back. He received continuous payment for temporary total disability from July 4,1990, through March 19, 1991.

On February 7, 1991, the plaintiffs only authorized treating physician, James Sabshin, found, after examination, that the plaintiff had reached maximum medical improvement with a 25 percent permanent partial disability to his lower back. In his report, Sabshin indicated that the plaintiff could possibly return to work with numerous limitations placed on the type of work he could perform. Further, Sabshin indicated that the plaintiff could benefit from job training or vocational rehabilitation.

On April 29, 1991, the insurer sent a form 36 to the commissioner and to the plaintiff, indicating its intent to reduce payments. The plaintiffs benefits were to be reduced retroactively to February 7, 1991, the date on which the plaintiff reached maximum medical improvement. The plaintiff received reduced payments from March, 1991, through September 24, 1993. The total benefits received, including full and partial benefits, spanned a period of more than three years.

On May 7, 1991, another physician, Willard Greenwald, an independent medical examiner, concurred with Sabshin that the plaintiff was able to return to work on February 7, 1991, with numerous physical limitations. He also concluded, without specifying any date, that maximum medical improvement had been reached.

The defendant employer and the plaintiff executed a voluntary agreement for permanent partial disability dated April 13,1992. The agreement stated that the date of maximum medical improvement was May 7, 1991. On May 1, 1992, the insurer gave written notice to the fund of its intention to transfer liability pursuant to § 31-349. The fund rejected the transfer, claiming that the notice was not timely.

A formal hearing was held on October 20, 1994. The commissioner, in her finding and award dated January 13, 1995, found that notice was timely and, therefore, that liability for the claim was to be transferred to the fund. The fund filed a petition for review by the review board, which issued its decision on April 23, 1996, affirming the decision of the commissioner. This appeal followed.

Section 31-349 requires that notice of transfer must be made ninety days prior to the expiration of the first 104 weeks of disability, or in the ninety-first week of disability. See Vaillancourt v. New Britain Machine/Litton, 224 Conn. 382, 392-94, 618 A.2d 1340 (1993). The fund argues that because the plaintiff was injured on July 3,1990, and was continuously disabled for more than two years, the 104 week period expired on June 29, 1992, and, therefore, April 2, 1992, was the end of the statutory notice period. Because notice was not given until May, 1992, the fund argues that notice was not timely and that the review board’s decision, therefore, must be reversed. The insurer maintains that the plaintiffs voluntary agreement not to seek benefits for the period February to May 7, 1991, adds three months to the term and that the notice was, therefore, timely.

Our Supreme Court recently held in Six v. Thomas O’Connor & Co., 235 Conn. 790, 796, 669 A.2d 1214 (1996), that the date by which notice must be given of an insurer’s intent to transfer liability to the fund is determined by the period of actual disability, and that the commissioner is charged with determining that period on the basis on all of the evidence presented at the hearing. Particular emphasis is given to medical evidence without consideration of any agreement between the plaintiff and the insurer. See id., 799-800.

In Six, the plaintiff suffered an injury on August 4, 1987, and received benefits continuously from August 5, 1987, to April 23, 1990. The plaintiff was released by his treating physician to light duty work with limitations on his activity on January 5, 1988. Notice of intent to transfer liability to the fund was given on April 23,1990. The date of maximum medical improvement was May 21,1990. Subsequently, in an agreement dated February 20,1992, the plaintiff and the insurer stipulated retroactively, two years after the dates at issue, that “ ‘[t]here would seem to be no entitlement to any disability benefits from 1-5-88 to 9-25-88.’ ” Id., 797. The commissioner initially found that notice was timely, then corrected his findings and reversed his decision, holding that notice was untimely. Id., 794.

The fund appealed the commissioner’s decision to the review board. The board reasoned that the agreement was the plaintiffs acknowledgment that he was not disabled after January 5, 1988, and that the plaintiffs disability did not recommence until May 21, 1990, the date of maximum medical improvement. Id., 795-96. The review board, therefore, excluded the period from January 5, 1988 to the date of notice, April 23,1990, from its calculation of the period of disability. It concluded that the plaintiff had been disabled for twenty-one or twenty-two weeks at the time of notice and that notice was timely. It, therefore, reversed the decision of the commissioner. Id.

The fund appealed to the Appellate Court from the review board’s decision, and the Supreme Court transferred the appeal to itself pursuant to Practice Book § 4023 and General Statutes § 51-199 (c). Relying on the commissioner’s findings twelve and thirteen, the fund argued that notice had been untimely because the plaintiff was continuously disabled from August 5, 1987, forward. It argued that notice was therefore due in May, 1989, but not made until April 23, 1990. Id., 796-97. Further, it argued that even if the period set forth in the agreement were eliminated from the calculation, notice was untimely because eliminating that period would have extended the deadline only to January, 1990. The insurer, relying on finding six, argued that notice was timely because the disability began on August 5, 1987, and expired on January 5,1988, and did not recommence until maximum medical improvement was reached on May 21, 1990. It, therefore, argued that notice was not due until September, 1990, making the April 24, 1990 notice timely. Id., 797.

The Supreme Court, agreeing with the fund, stated that “[finding six is based solely on an agreement between the defendant and the claimant that states that ‘[t]here would seem to be no entitlement to any disability benefits from 1-5-88 until 9-25-88.’ Therefore, the fund argues that, by eliminating that time period, the deadline for notice was extended from May, 1989, to January, 1990. Consequently, the notice on April 24, 1990, was untimely.” Id., 797. The Supreme Court concluded that “notice to the fund was due either in May, 1989, or in January, 1990, depending on whether the commissioner eliminated the period set out in the agreement upon which finding six is based.” Id., 800. The court took note of the fact that it must afford great deference to the commissioner’s conclusion that notice was not timely, as long as it was reasonably based on the evidence before him. It reasoned that interpreting finding six as an adoption of the parties’ stipulation that there was no disability during the stated period would conflict with several other findings of evidence that a disability existed during that period. Id. It chose instead to interpret finding six as merely a “recitation by the commissioner of a statement made by the claimant and not as an adoption by the commissioner of the substance of the statement.” Id., 801.

Moreover, the court noted that the fund, in effect, admitted that the plaintiff was disabled to some degree until September 25, 1988. The court also took note of medical reports spanning the date of injury through 1990, indicating that the plaintiff was disabled to some degree throughout that period. Referring to a physician’s decision to release the plaintiff to light work with restrictions, the court stated that, “[i]f the claimant were no longer disabled, there would have been no reason to restrict his work options.” Id. The court found that the commissioner’s conclusion that notice was untimely was not “based on an incorrect application of the law to the subordinate facts or on an inference illegally or unreasonably drawn from those facts” and reversed the board’s decision. Id., 801-802. It is apparent from the court’s decision in Six that calculation of the date notice of intent to transfer liability to the fund is due must be based on the period of actual disability. This should be determined by the commissioner on the basis of all of the evidence placed before her, in particular the medical evidence, and not based on any agreement between the plaintiff and the insured. Id.

Our Supreme Court has consistently stated that courts of appeal should afford great deference to a commissioner’s conclusion that notice to the fund has been timely provided and that it is reasonably based on the evidence before her. The evidence before the commissioner in this case demonstrates unequivocally that there was a continuous period of either full or partial disability from July 3, 1990, forward. The commissioner incorrectly applied the law to the subordinate facts by basing her finding as to the period of actual disability on the voluntary agreement, rather than on the evidence.

The holding in Six that the period of actual disability determines the date notice of intent to transfer liability is due, when applied to the undisputed medical reports of Sabshin and Greenwald, must lead to the conclusion that notice to the fund was untimely in this case. Despite the presumption in favor of upholding a commissioner’s decision, the commissioner’s decision in this case must be reversed.

The decision of the compensation review board is reversed and the case is remanded to the board with direction that it reverse the decision of the commissioner.

In this opinion the other judges concurred.

       General Statutes § 31-349 provides in relevant part: “Compensation for second disability. Payment of insurance coverage. Second Injury Fund closed July 1, 1995, to new claims. Procedure, (a) The fact that an employee has suffered a previous disability, shall not preclude him from compensation for a second injury, nor preclude compensation for death resulting from the second ip jury. If an employee having a previous disability incurs a second disability from a second injury resulting in a permanent disability caused by both the previous disability and the second injury which is materially and substantially greater than the disability that would have resulted from the second injury alone, he shall receive compensation for (1) the entire amount of disability, including total disability, less any compensation payable or paid with respect to the previous disability, and (2) necessary medical care, as provided in this chapter, notwithstanding the fact that part of the disability was due to a previous disability. For purposes of this subsection, ‘compensation payable or paid with respect to the previous disability’ includes compensation payable or paid pursuant to the provisions of this chapter, as well as any other compensation payable or paid in connection with the previous disability, regardless of the source of such compensation.
      “(b) As a condition precedent to the liability of the Second Injury Fund, the employer or i1s insurer shall: (1) Notify the custodian of the fund by certified mail no later than three calendar years after the date of ipjury or no later than ninety days after completion of payments for the first one hundred and four weeks of disability, whichever is earlier, of its intent to transfer liability for the claim to the Second Injury Fund . . . .”

       There appears to be some discrepancy in the opinion as to whether the date of notice was April 23 or April 24, 1990.

       Finding twelve provides: “ 'The employer and insurer respondents completed payments of 104 weeks for disability to the claimant on August 5, 1989.’ ” Six v. Thomas O’Connor & Co., supra, 235 Conn. 794-95 n.5. Finding thirteen provides: “ ‘The claimant continued to be disabled after January 5, 1988 due to the work related injury to his left knee. Respondent has failed to prove .that disability ceased prior to 90 days before expiration of the statutory 104 week period.’ ” Id.

       Finding six provides: “ ‘The Claimant has acknowledged that he was not entitled to these temporary partial benefits paid from January 5, 1988 in an agreement dated 2/20/92 and signed by the claimant.’ ” Six v. Thomas O’Connor & Co., supra, 235 Conn. 794 n.5.


author: O’CONNELL, J.

text:
    STATE OF CONNECTICUT v. EDWARD T. CAPRILOZZI
    (AC 15211)
    O’Connell, Landau and Mulcahy, Js.

      Argued March 20
    officially released June 17, 1997

      Robert P. Pickering, with whom, on the brief, was F. Mac Buckley, for the appellant (defendant).

      Peter A. McShane, assistant state’s attorney, with whom, on the brief, -was Kevin T. Kane, state’s attorney, for the appellee (state).
   Opinion

O’CONNELL, J.

The defendant appeals from the judgment of conviction, following a jury trial, of larceny in the first degree in violation of General Statutes § 53a-122 and conspiracy to commit larceny in the first degree in violation of General Statutes §§ 53a-48 and 53a-122. The defendant claims that the trial court improperly (1) admitted a state’s exhibit into evidence, (2) admitted evidence of a coconspirator’s guilty plea and (3) admitted a conclusory hearsay opinion of a nonexpert witness into evidence. In addition, the defendant claims (4) that there was insufficient evidence to support his conviction on either count. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. In June, 1994, Humprey Amedeo, the owner of Connecticut Beverage Company (company) located in Norwich, was informed that approximately 773 cases of beer were unaccounted for during the June, 1994 inventory. The defendant was employed at the company as the day shift warehouse manager from June, 1992, to October, 1994. His duties and responsibilities included the day-to-day operation of the warehouse and the loading of delivery trucks. The defendant also participated in the inventory of stock. Inventory was required twice a year by the liquor control commission and was conducted as follows: Two teams began at opposite ends of the warehouse, and each team conducted an independent inventory of the entire warehouse. When the two teams completed their counts, they met to determine if the numbers reconciled. If the two teams agreed, the numbers were recorded. If they did not agree, the teams recounted until the numbers reflected an accurate amount.

The following precautions were also used by the company to prevent loss of stock. The night manager loaded the trucks and counted each load to ascertain that each truck contained the correct number of cases. The night manager signed a load sheet indicating the contents of each truck. The next morning, the day manager and the driver would verify the count and the day manager would sign off on the load sheet. A final count was conducted after any add-ons were placed on the trucks. Once the add-ons and final count were completed, the truck doors were closed and the truck left the warehouse to begin its delivery route.

As a result of the shortage disclosed by the June inventory, Amedeo ordered another inventory in September, 1994. That inventory, conducted in the same manner as the semiannual inventories, revealed an additional shortage of 408 cases of beer. When Amedeo apprised the defendant of the June inventory shortage, the defendant responded that there must be a bookkeeping error.

Following discovery of the inventory shortage, Amedeo hired a private investigator, Arthur Heely, to help determine the cause of the inventory loss. Heely eventually focused on Eric Finley, one of the drivers, and followed him on his delivery route. On September 26, 1995, Heely observed Finley taking a case of beer from his truck and placing it in the trunk of a car belonging to Beansy Carrigan.

When Heely confronted Finley, Finley admitted that he and the defendant were involved in a scheme to steal beer for their personal use as well as to sell to package store owners. Finley testified that he and the defendant had loaded extra cases onto Finley’s truck without accounting for them. The defendant would sign off on the load sheet despite the additional cases on the truck. Finley would then sell them to people along his route for cash, and he and the defendant would divide the money. This scheme continued for ten to eleven months, during which Finley and the defendant earned approximately $700 each per month. The defendant warned Finley that they should stop stealing the beer because the “inventory was really messed up.”

I

The defendant first claims that the trial court improperly admitted into evidence a state’s exhibit that consisted of a computer generated inventory control sheet bearing handwritten calculations. The state argued that the exhibit was admissible under the business exception to the hearsay evidence rule contained in General Statutes § 52-180. A hearsay document may be admitted into evidence if (1) it was made in the regular course of business, (2) it was the regular course of business to make such a writing, and (3) the writing was made at the time of the transaction or occurrence or within a reasonable time thereafter. Id.

The defendant contends that the business entry exception does not apply in the present case because the exhibit was prepared in anticipation of litigation. For purposes of this decision, we assume, without deciding, that a statement prepared to support an insurance claim is the equivalent of a document prepared in anticipation of litigation. The defendant relies on Amedeo’s testimony that the exhibit was prepared in order to submit a claim to his insurance company. Accordingly, the defendant argues that the exhibit does not meet the requirements (1) that it be prepared in the regular course of business and (2) that it was the regular course of business to make the exhibit. We are not persuaded.

Appellate review of business entry claims is limited to determining whether the trial court abused its discretion in ruling that a document qualified under § 52-180. River Dock & Pile, Inc. v. O & G Industries, Inc., 219 Conn. 787, 795, 595 A.2d 839 (1991). That statute is to be liberally construed and records will not be excluded where the statutory requirements can reasonably be assumed to have been met. Jefferson Garden Associates v. Greene, 202 Conn. 128, 141, 520 A.2d 173 (1987); C. Tait & J. LaPlante, Connecticut Evidence (2d Ed. 1988) § 11.14.3, p. 386.

Even if the challenged exhibit was prepared solely for litigation, its exclusion would not be automatic. “The generally accepted view ... is that documents prepared for litigation are excluded, not on a per se basis, but rather upon an inquiry into whether such documents bear circumstantial indicia of lack of trustworthiness. In the exercise of appropriate discretion, courts may exclude such records where they are self-serving and a motive for falsification can be demonstrated. . . . Although this court has recognized that the trustworthiness of business records, under § 52-180, comes from their being used for business and not for litigation . . . we have not thereby mandated the exclusion of multipurpose documents that have ancillary utility in subsequent litigation. We have emphasized, instead: that § 52-180 should be liberally construed . . . that the essential hallmark of admissibility under § 52-180 is the trustworthiness of the document . . . and that appellate review in these cases is limited to ascertaining whether the trial court abused its discretion.” (Citations omitted; internal quotation marks omitted.) Jefferson Garden Associates v. Greene, supra, 202 Conn. 140-41.

Despite Amedeo’s testimony that he was planning to submit an insurance claim, it was within the trial court’s discretion to determine whether the statute was satisfied. We attach no significance to the facts that the purpose of the January and June inventories, also admitted as exhibits, was to satisfy state liquor control commission requirements and that the impetus of the September inventory, the challenged exhibit, was to identify the reason for the shortage that came to light in the June inventory. It is reasonable that a warehouse business would inventory the content of its warehouse and that records of the inventory would be made. The September, 1994 inventory was conducted in the same manner as the semiannual inventories. We conclude, therefore, that the challenged inventory record contained sufficient indicia of reliability and trustworthiness for the trial court to allow its admission under the business record exception to the hearsay rule.

The defendant also argues that the exhibit was inadmissible for the reason that Amedeo’s notes and calculations were written at the bottom of the page. Amedeo explained that the calculations were of the amount of his loss, the multiplication of the wholesale price by the number of cases missing. It was necessary that the state prove the value of the property alleged to have been stolen, and these calculations could have been performed in the presence of the jury. Accordingly, it is irrelevant that the calculations had been performed in advance and appeared as notations on the computer sheets.

The trial court did not abuse its discretion in admitting into evidence the computer printout of the inventory.

II

The defendant next complains that the trial court improperly allowed the state to question Finley, the defendant’s coconspirator, concerning his guilty plea to a similar charge. The defendant concedes that he did not object to this line of questioning, nor did he request a curative instruction. During his cross-examination, the defendant asked Finley six questions concerning his conviction.

Notwithstanding his failure to preserve the claim, the defendant seeks appellate review pursuant to State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989), or under the plain error doctrine. Practice Book § 4061 (formerly § 4185).

To qualify for Golding review, the defendant’s claim must meet all four Golding conditions and the appellate tribunal is free to respond to the claim by focusing on whichever condition is most relevant in the particular case. State v. Golding, supra, 213 Conn. 239-40. In the present case, we focus on the second prong, i.e., that the claim is of constitutional magnitude alleging the violation of a fundamental right. See State v. Gooch, 186 Conn. 17, 18, 438 A.2d 867 (1982). “Generally, the admissibility of evidence is a matter of state law and unless there is a resultant denial of fundamental fairness or the denial of a specific constitutional right, no constitutional issue is involved.” (Internal quotation marks omitted.) State v. Vilalastra, 207 Conn. 35, 46, 540 A.2d 42 (1988). Because the defendant’s claim in the present case involves an evidentiary ruling, he is not entitled to appellate review under the Golding doctrine.

We next consider whether this issue is entitled to plain error review. Generally, where a claimed error of a nonconstitutional nature is not brought to the attention of the trial court, appellate review of that claim is available only if it constitutes plain error. Kolich v. Shugrue, 198 Conn. 322, 326, 502 A.2d 918 (1986). To prevail under the plain error doctrine, the defendant must demonstrate that the “claimed error is both so clear and so harmful that a failure to reverse the judgment would result in manifest injustice.” State v. Day, 233 Conn. 813, 849, 661 A.2d 539 (1995). This doctrine is not implicated and review of the claimed error is not undertaken “unless the error is so obvious that it affects the fairness and integrity of and public confidence in the judicial proceedings.” (Internal quotation marks omitted.) Id., quoting State v. Boles, 223 Conn. 535, 551, 613 A.2d 770 (1992). Furthermore, even if the error is so apparent and review is afforded, the defendant cannot prevail on the basis of an error that lacks constitutional dimension unless he demonstrates that it “likely affected the result of the trial.” State v. Day, supra, 850.

The defendant did not object to the testimony about the guilty plea on direct examination. The defendant himself elicited information about Finley’s guilty plea. What is most significant, however, is that Finley’s guilt was otherwise established by his own testimony, which also implicated the defendant. We conclude that the admission of Finley’s guilty plea did not cause manifest injustice and did not erode the integrity of the judicial proceeding, nor did it affect the outcome of the trial. Accordingly, because the defendant’s arguments under both Golding and plain error review are unavailing, we decline to review the claim.

III

The defendant next complains that the trial court improperly allowed private investigator Heely to testify as to his conclusions resulting from his investigation. The defendant did not object to the evidence, nor did he move that it be stricken. The defendant seeks plain error review. See our discussion of plain error in part II of this opinion. This claim does not meet the requirements for plain error review.

IV

The defendant’s final claim is that the evidence was insufficient to prove beyond a reasonable doubt that (1) he had the requisite intent to commit larceny in the first degree and conspiracy to commit larceny in the first degree and (2) he wrongfully took, obtained or withheld any property from the company.

“[W]e have consistently employed a two-part analysis in appellate review of the sufficiency of the evidence to sustain a criminal conviction. State v. Salz, 226 Conn. 20, 31, 627 A.2d 862 (1993). First, we construe the evidence in the light most favorable to sustaining the verdict. Second, we determine whether upon the facts so construed and the inferences reasonably drawn therefrom the jury reasonably could have concluded that the cumulative force of the evidence established guilt beyond a reasonable doubt. Id. That the evidence is circumstantial rather than direct does not diminish the probative force of that evidence. State v. Carpenter, 214 Conn. 77, 79, 570 A.2d 203 (1990), on appeal after remand, 220 Conn. 169, 595 A.2d 881 (1991), cert. denied, 502 U.S. 1034, 112 S. Ct. 877, 116 L. Ed. 2d 781 (1992).” (Internal quotation marks omitted.) State v. DePastino, 228 Conn. 552, 570, 638 A.2d 578 (1994). We must be mindful, however, that “[although the jury may draw reasonable, logical inferences from the facts proven, [it] may not resort to speculation and conjecture. State v. Saracino, 178 Conn. 416, 419, 423 A.2d 102 (1979). Each essential element of the crime must be proved beyond a reasonable doubt. In re Winship, 397 U.S. 358, 364, 90 S. Ct. 1068, 25 L. Ed. 2d 368 (1970).” (Internal quotation marks omitted.) State v. King, 216 Conn. 585, 601, 583 A.2d 896 (1990), on appeal after remand, 218 Conn. 747, 591 A.2d 813 (1991).

A person commits larceny in the first degree “when, with intent to deprive another of property or to appropriate the same to himself ... he wrongfully takes, obtains or withholds such property from an owner”; General Statutes § 53a-119; and “the value of the property or service exceeds ten thousand dollars . . . .” General Statutes § 53a-122 (a) (2). “Intent usually is proved only by circumstantial evidence . . . .” State v. Washington, 15 Conn. App. 704, 716, 546 A.2d 911 (1988); State v. Morrill, 193 Conn. 602, 609, 478 A.2d 994 (1984). “Intent may be, and usually is, inferred from conduct. . . . Intention is a mental process, and of necessity it must be proved by the statements or actions of the person whose act is being scrutinized. ... A person’s intention is to be inferred from his conduct. . . . Where there is sufficient evidence to support a reasonable inference that the defendant intended to commit the crime charged, whether such an inference should be drawn is properly a question for the jury to decide.” (Citations omitted; internal quotation marks omitted.) State v. Morrill, supra, 609.

“To establish the crime of conspiracy under § 53a-48 of the General Statutes, the state must show that there was an agreement between two or more persons to engage in conduct constituting a crime and that the agreement was followed by an overt act in furtherance of the conspiracy by any one of the conspirators. . . . The existence of a formal agreement between the parties need not be proved; it is sufficient to show that they are knowingly engaged in a mutual plan to do a forbidden act.” (Citations omitted; internal quotation marks omitted.) State v. Lynch, 21 Conn. App. 386, 392, 574 A.2d 230, cert. denied, 216 Conn. 806, 580 A.2d 63 (1990). Because of the secret nature of conspiracies, a conviction is usually based on circumstantial evidence. State v. Vessichio, 197 Conn. 644, 656, 500 A.2d 1311 (1985), cert. denied, 475 U.S. 1122, 106 S. Ct. 1642, 90 L. Ed. 2d 187 (1986). Mere presence at the scene of the crime, even when coupled with knowledge of the crime, is insufficient to establish guilt of a conspiracy. State v. Stellato, 10 Conn. App. 447, 454, 523 A.2d 1345 (1987).

We must resolve whether there was sufficient evidence for the jury reasonably to conclude that the defendant intended wrongfully to deprive the company of its property and that the defendant took part in a mutual plan with Finley to do so.

During the state’s direct examination of Finley, he described the scheme and the equal division of the money. Finley testified that he and the defendant planned to take the beer, unaccounted for from the warehouse, and sell it. Moreover, the jury may have reasonably inferred from the evidence of the procedural safeguards that the driver could not steal inventory undetected without the day manager’s assistance. After reviewing the cumulative evidence, we conclude that there was sufficient evidence for the jury reasonably to conclude that the defendant and Finley intended and conspired to steal beer from the company and carried out this plan for several months, depriving the company of substantial inventory. Accordingly, the jury may have reasonably concluded that the defendant committed larceny in the first degree in violation of § 53a-122 and committed conspiracy in violation of §§ 53a-48 and 53a-122.

The judgment is affirmed.

In this opinion the other judges concurred.

        State v. Golding, supra, 213 Conn. 239-40, held that a party can prevail on a claim not adequately presented at trial only if all of the following conditions are met: “(1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt.”

       Practice Book § 4061 (formerly § 4185) provides in relevant part: “The court shall not be bound to consider a claim unless it was distinctly raised at the trial or arose subsequent to the trial. The court may in the interests of justice notice plain error not brought to the attention of the trial court. . .

       Despite not specifically objecting to this question, the defendant claims the benefit of an earlier objection to a line of questions. Even if this earlier objection could be considered to have preserved the issue, it would not benefit the defendant because his prior objection was on the ground of hearsay, not on the ground of a nonexpert’s being allowed to give opinion evidence. Appellate review is available only on the grounds upon which an objection is made. State v. Newsome, 238 Conn. 588, 596, 682 A.2d 972 (1996).


author: SPEAR, J.

text:
    LYDIA MCNEIL ET AL. v. EVELYN RICCIO ET AL.
    (AC 15310)
    Dupont, C. J., and Schaller and Spear, Js.

      Argued February 18
    officially released June 17, 1997

      Earl I. Williams, for the appellants-appellees (plaintiffs).

      D. Kirt Westfall, with whom, on the brief, was Rhoda E Rudnick, for the appellees-appellants (defendants).
   Opinion

SPEAR, J.

In this real estate dispute, the plaintiffs, would-be buyers, appeal from the judgment of the trial court claiming that the trial court improperly (1) refused to enforce the plaintiffs’ rights in either of two 1975 real estate sales contracts by finding that such rights were time barred and (2) failed to find that a 1982 document, either alone or in conjunction with certain claimed acts of part performance, constituted a contract between the plaintiffs and the defendants for the sale of the subject property. The defendants filed a cross appeal, claiming that the trial court improperly (1) allowed the plaintiffs to amend their complaint by adding, inter alia, an unjust enrichment count based on claimed improvements to the property after the defendants had moved for summary judgment on the complaint and (2) awarded the plaintiffs damages on the unjust enrichment count. We affirm the judgment of the trial court.

The relevant findings and conclusions of law made by the trial court are as follows. The parties entered into a written contract on July 15, 1975, pursuant to which the defendants were to sell certain real property to the plaintiffs. This contract was superseded by a second contract dated December 31, 1975. Any action on the second contract was barred by the six year statute of limitations provided in General Statutes § 52-576. The parties had discussions in 1982 concerning revisions to the second contract. Although a draft agreement was produced, it was not signed by any of the parties. The claimed acts of partial performance by the plaintiffs were repairs and improvements unrelated to performance under the contract and were thus insufficient to overcome the defendants’ statute of frauds defense. The plaintiffs’ claim for specific performance based on either of the 1975 contracts was at least twelve years late and, therefore, barred by General Statutes § 47-33a (c). Finally, the trial court found that certain maintenance and improvements paid for by the plaintiffs benefited the defendants and constituted unjust enrichment. The court rendered judgment for the plaintiffs in the amount of $20,674.35 on that claim. This appeal and cross appeal followed.

The plaintiffs assert that they should prevail on their appeal because (1) the 1982 draft agreement was effective even though it was not signed, (2) their part performance pursuant to the unsigned 1982 document was sufficient to prevent the operation of the statute of frauds, and (3) the statutes of limitation on the 1975 contract were tolled, or the defendants are equitably estopped from asserting such a defense.

I

A

In their brief, the plaintiffs claim that the 1982 document was a valid contract despite the absence of the parties’ signatures. The cases cited by the plaintiffs, Schwarzschild v. Martin, 191 Conn. 316, 464 A.2d 774 (1983), and Sawmill Brook Racing Assn., Inc. v. Boston Realty Advisors, Inc., 39 Conn. App. 444, 664 A.2d 819 (1995), are inapposite cases discussing the writing requirement of General Statutes § 52-408 for a contract authorizing arbitration. Neither case is concerned with contracts for the sale of real property. The statute of frauds section that is applicable to the transfer of real property applies here.

B

The plaintiffs next contend that the unsigned 1982 draft agreement is valid and enforceable. Despite the parties’ failure to sign the draft agreement, the plaintiffs assert that it is enforceable because the parties assented to it and performed in accordance with its terms. We are not persuaded.

The statute of frauds requires contracts for the conveyance of realty to be in writing. Hieble v. Hieble, 164 Conn. 56, 59, 316 A.2d 777 (1972). “We have repeatedly recognized that a contract is enforceable, despite the statute, when, subsequent to the making of the contract, there has been conduct that amounts to part performance.” Heyman v. CBS, Inc., 178 Conn. 215, 222, 423 A.2d 887 (1979). The plaintiffs do not claim that the 1982 draft agreement was signed, but rather that this case falls into the partial performance exception to the statute of frauds.

“[T]he acts of part performance generally must be such as are done by the party seeking to enforce the contract, in pursuance of the contract, and with the design of carrying the same into execution, and must also be done with the assent, express or implied, or knowledge of the other party, and be such acts as alter the relations of the parties. . . . The acts must also be of such a character that they can be naturally and reasonably accounted for in no other way than by the existence of some contract in relation to the subject matter in dispute . . . .” (Citations omitted; internal quotation marks omitted.) Ubysz v. DiPietro, 185 Conn. 47, 54, 440 A.2d 830 (1981).

At trial, the plaintiffs introduced evidence of continued monthly rental payments and voluntary repairs made on the premises. Occupancy payments and normal upkeep, however, were not part of the consideration that the parties bargained for and indicate only a landlord-tenant relationship. Such conduct does not further the contract and provide a basis for finding that “ ‘the party seeking enforcement, in reasonable reliance on the contract and on the continuing assent of the party against whom enforcement is sought, has so changed his position that injustice can be avoided only by specific enforcement.’ ... 1 Restatement (Second), Contracts (1981) § 129; Montanaro Bros. Builders, Inc. v. Snow, [190 Conn. 481, 487, 460 A.2d 1297 (1983)].” Dunham v. Dunham, 204 Conn. 303, 315, 528 A.2d 1123 (1987). Accordingly, we conclude that the plaintiffs failed to satisfy the requirements for the partial performance exception to the statute of frauds.

II

The plaintiffs claim that the trial court improperly found that their specific performance and breach of contract claims are time barred. We are unpersuaded.

Generally, a claim for specific performance of a contract for the sale of realty must be brought within one year of the specified date of closing or no more than eighteen months from the date of the contract’s execution. General Statutes § 47-33a (a). Although the plaintiffs do not indicate which of the claimed contracts should survive the statute of limitations, the only valid contract is the second of the two contracts executed. The trial court’s legal conclusion that the second contract superseded the first is not challenged. Pursuant to § 47-33a (b), the interest in real estate may be extended only by “reexecution of the written agreement or by execution of a new written agreement . . . .” There were no extensions in this case, and the trial court properly concluded that the claim was time barred.

To save the 1975 contract from the statute of limitations, the plaintiffs invoke the equitable principle of estoppel. “There are two essential elements to an estoppel—the party must do or say something that is intended or calculated to induce another to believe in the existence of certain facts and to act upon that belief; and the other party, influenced thereby, must actually change his position or do some act to his injury which he otherwise would not have done. . . . Estoppel rests on the misleading conduct of one party to the prejudice of the other.” (Citations omitted; internal quotation marks omitted.) Spear-Newman, Inc. v. Modern Floors Corp., 149 Conn. 88, 91, 175 A.2d 565 (1961); see also Morris v. Costa, 174 Conn. 592, 599, 392 A.2d 468 (1978).

The short answer to this claim is that the trial court did not find that the defendants’ actions constituted misrepresentation. “The trial court’s findings are binding upon this court unless they are clearly erroneous in light of the evidence and the pleadings in the record as a whole. . . . We cannot retry the facts or pass on the credibility of the witnesses. ... A finding of fact is clearly erroneous when there is no evidence in the record to support it ... or when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.” (Internal quotation marks omitted.) Tyler’s Cove Assn., Inc. v. Middlebury, 44 Conn. App. 517, 527-28, 690 A.2d 412 (1997). After a careful review of the record, we conclude that the trial court’s factual findings are not clearly erroneous.

The plaintiffs also claim that under the circumstances of this case, the statute of limitations, § 52-576, was tolled. We disagree. Any claim upon a written contract must be brought within six years after the right of action accrues. “In an action for breach of contract, the cause of action is complete upon the occurrence of the breach, that is, when the injury has been inflicted.” Gaylord Hospital v. Massaro, 5 Conn. App. 465, 467, 499 A.2d 1162 (1985). This action was commenced in 1989, more than six years after the December 31, 1975 closing date passed.

The defendants contend that the statute of limitations was tolled because of the defendants’ continuing course of misrepresentations and promises to convey the property. In light of the specific refusal by the trial court to find that the defendants’ conduct was malicious or that misrepresentations were made, we will not deprive the defendants of the “finality, repose and avoidance of stale claims and stale evidence” for which the statute of limitations was designed. Connecticut Bank & Trust Co. v. Winters, 225 Conn. 146, 157 n.20, 622 A.2d 536 (1993).

Ill

On their cross appeal, the defendants claim that the trial court improperly allowed the plaintiffs to amend their complaint after the defendants moved for summary judgment. The defendants contend that the allowance of the amendment created undue prejudice. We disagree.

“Our courts have pursued a liberal policy in allowing amendments.” Johnson v. Toscano, 144 Conn. 582, 587, 136 A.2d 341 (1957). “A trial court has wide discretion in granting or denying amendments to the pleadings and only rarely will this court overturn the decision of the trial court. Citizens National Bank v. Hubney, 182 Conn. 310, 312-13, 438 A.2d 430 (1980). Hanson Development Co. v. East Great Plains Shopping Center, Inc., 195 Conn. 60, 67, 485 A.2d 1296 (1985). To reverse a ruling of the trial court allowing an amendment to the pleadings requires that the defendant make a clear showing of abuse of discretion. Saphir v. Neustadt, 177 Conn. 191, 206, 413 A.2d 843 (1979).” (Internal quotation marks omitted.) Neiditz v. Housing Authority, 231 Conn. 598, 601, 651 A.2d 1295 (1995).

“In determining whether there has been an abuse of discretion, much depends on the circumstances of each case. . . . Cummings v. General Motors Corporation, 146 Conn. 443, 449, 151 A.2d 884 [1959]; Antonofsky v. Goldberg, 144 Conn. 594, 597, 136 A.2d 338 [1957].” DuBose v. Carabetta, 161 Conn. 254, 263, 287 A.2d 357 (1971). “In the final analysis, the court will allow an amendment unless it will cause an unreasonable delay, mislead the opposing party, take unfair advantage of the opposing party or confuse the issues, or if there has been negligence or laches attaching to the offering party. Crowell v. Middletown Savings Bank, 122 Conn. 362, 189 A. 172 (1937).” Moore v. Sergi, 38 Conn. App. 829, 836, 664 A.2d 795 (1995).

Contrary to the defendants’ assertions, an amended complaint in response to a motion for summary judgment does not constitute prejudice per se. Where a legitimate cause of action is available, but not raised in the original complaint, and allowing such claim in the proceedings will not unduly prejudice the opposing party, then allowing the amendment is not an abuse of the court’s discretion. Indeed, trial courts “may be well-advised to exercise leniency when amendments are proffered in response to a motion for summary judgment, rather than on the eve of trial . . . .” (Citation omitted.) Conference Center Ltd. v. TRC, 189 Conn. 212, 216-17, 455 A.2d 857 (1983). We conclude that it was not an abuse of discretion for the trial court to allow the amended complaint offered by the plaintiffs.

IV

The defendants also assert that the trial court’s award of damages for unjust enrichment is contrary to fact and law. We are unpersuaded.

“A right of recovery [for unjust enrichment] is essentially equitable, its basis being that in a given situation it is contrary to equity and good conscience for the defendant to retain a benefit which has come to him at the expense of the plaintiff.” Schleicher v. Schleicher, 120 Conn. 528, 534, 182 A.2d 162 (1935). “ ‘Plaintiffs seeking recovery for unjust enrichment must prove (1) that the defendants were benefited, (2) that the defendants unjustly did not pay the plaintiffs for the benefits, and (3) that the failure of payment was to the plaintiffs’ detriment.’ . . .” (Citation omitted.) Hartford Whalers Hockey Club v. Uniroyal Goodrich Tire Co., 231 Conn. 276, 283, 649 A.2d 518 (1994).

In its memorandum of decision, the trial court found that the three requirements were met. “[T]he determinations of whether a particular failure to pay was unjust and whether the defendant was benefited are essentially factual findings for the trial court that are subject only to a limited scope of review on appeal. Stabenau v. Cairelli, 22 Conn. App. 578, 581, 577 A.2d 1130 (1990). Those findings must stand, therefore, unless they are clearly erroneous or involve an abuse of discretion. Id. This limited scope of review is consistent with the general proposition that equitable determinations that depend on the balancing of many factors are committed to the sound discretion of the trial court. Reynolds v. Ramos, 188 Conn. 316, 321, 449 A.2d 182 (1982) . . . .” (Citation omitted.) Hartford Whalers Hockey Club v. Uniroyal Goodrich Tire Co., supra, 231 Conn. 283.

The trial court awarded the plaintiffs sums of money for various years without stating its reasons for the award and the defendants did not request an articulation. On this state of the record, we cannot review the defendants’ claims that the sums were awarded for items of normal upkeep, maintenance and household items that could not constitute unjust enrichment.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 47-33a provides: “Action on agreement to sell real estate, (a) No interest in real property existing under an executory agreement for the sale of real property or for the sale of an interest in real property or under an option to purchase real property shall survive longer than one year after the date provided in the agreement for the performance of it or, if the date is not so provided, longer than eighteen months after the date on which the agreement was executed, unless the interest is extended as provided herein or unless action is commenced within the period to enforce the agreement and notice of lis pendens is filed as directed by section 52-325.
      “(b) The interest may be extended only by reexecution of the written agreement or by execution of a new written agreement, provided the agreement, whether reexecuted or newly executed, shall be recorded as directed by sections 47-10 and 47-17. The period provided by this section shall not otherwise be extended, whether because of death, disability or absence from the state or for any other reason. Upon the expiration of an interest the title to property affected by the interest shall not thereafter be considered unmarketable because of the expired interest.
      “(c) Nothing in this section shall be construed to limit or deny any legal or equitable rights a party may have under the agreement except the right to have the agreement specifically enforced.”

       General Statutes § 52-550 (a) provides in relevant part: “(a) No civil action may be maintained in the following cases unless the agreement, or a memorandum of the agreement, is made in writing and signed by the party, or the agent of the party, to be charged ... (4) upon any agreement for the sale of real property or any interest in or concerning real property . . . .”

       See footnote 1.

       General Statutes § 52-576 provides in relevant part: “(a) No action for an account, or on any simple or implied contract, or on any contract in writing, shall be brought but within six years after the right of action accrues, except as provided in subsection (b) of this section.
      “(b) Any person legally incapable of bringing any such action at the accruing of the right of action may sue at any time within three years after becoming legally capable of bringing the action. . . .”

       The defendants also argue that the trial court abused its discretion by failing to weigh the underlying intent of the plaintiffs in amending the complaint. The defendants assert that the plaintiffs amended the complaint, adding claims for which there was no bases in fact and law, for the sole purpose of avoiding judgment. We reject this claim because the amended complaint contained the only cause of action on which the plaintiffs were successful.

       Practice Book § 4007 provides: “It is the responsibility of the appellant to provide an adequate record for review. The appellant shall determine whether the entire trial court record is complete, correct and otherwise perfected for presentation on appeal. For purposes of this rule, the term ‘record’ is not limited to its meaning pursuant to Sec. 4013 (a) (2), but includes all trial court decisions, documents and exhibits necessary and appropriate for appellate review of any claimed impropriety.”


text:
    JEREMY J. JOYELL v. COMMISSIONER OF EDUCATION ET AL.
    (AC 16036)
    O’Connell, Hennessy and Mihalakos, Js.

      Argued February 27
    officially released June 17, 1997

      Barbara J. Collins, with whom were Jams C. Jerman and, on the brief, Lisa Sosa, for the appellant (plaintiff).

      Linsley J. Barboto, assistant attorney general, with whom, on the brief, were Richard Blumenthal, attorney general, and Bernard F. McGovern, Jr., assistant attorney general, for the appellee (defendant).
   Opinion

O’CONNELL, J.

The genesis of this appeal is the revocation by the defendant state board of education (board) of the plaintiffs secondary school teaching certificate. The plaintiff appealed to the trial court from the board’s decision pursuant to General Statutes § 4-183 of the Uniform Administrative Procedure Act (UAPA). Following a hearing, on the record, the trial court dismissed the plaintiffs appeal, whereupon the plaintiff appealed to this court pursuant to General Statutes § 4-184.

The plaintiff claims that (1) the trial court improperly dismissed his administrative appeal despite the fact that the board’s action deprived him of a property interest without due process of law and (2) the revocation of his teaching certificate was arbitrary, capricious and an abuse of the board’s discretion. We affirm the judgment of the trial court.

The record discloses the following facts. The plaintiff held a Connecticut standard teaching certificate endorsed for teaching English at the secondary level. Pursuant to this certificate, the Bristol board of education employed the plaintiff to teach at Eastern High School in Bristol from January, 1965, until January, 1988, when he applied for retirement. Immediately prior to his retirement, the plaintiff had been the subject of a female student’s complaint alleging inappropriate conduct of a sexual nature.

In January, 1990, the Bristol superintendent of schools learned that the plaintiff was seeking a teaching position in another school system. At that time, the superintendent wrote to the defendant state commissioner of education (commissioner), requesting revocation of the plaintiffs teaching certificate pursuant to § 10-145d-612 (b) of the Regulations of Connecticut State Agencies. The superintendent’s letter described the 1987 sexual misconduct complaint and also reported that he had received other complaints accusing the plaintiff of improper sexual conduct during his teaching career in Bristol.

Following an investigation, the commissioner determined that there was probable cause to institute proceedings to revoke the plaintiffs teaching certificate. The commissioner issued an administrative complaint that was served on the plaintiff. Regs., Conn. State Agencies § 10-145d-612 (f). In his complaint, the commissioner alleged that the plaintiff engaged in sexual relations with three female students, attempted to do so with a fourth female student, and made inappropriate sexually suggestive comments to four other female students. The first incident was alleged to have occurred during the 1967-68 school year. The school years during which each of the subsequent incidents allegedly occurred were specified with the last incident occurring during the 1987-88 school year. The complaint does not name any of the students but simply refers to them as “Female Student A” etc.

The plaintiff requested a hearing, prior to which the commissioner disclosed to the plaintiff the names of the students who made the accusations and who would be testifying at the hearing. The commissioner appointed a hearing officer who conducted a twenty-nine day hearing over a ten month period. Thirty-eight ■witnesses testified, including the plaintiff, the eight women who had accused him of misconduct, expert witnesses called by the plaintiff and the commissioner, and other teachers and administrators at Bristol Eastern High School. In March, 1995, the parties submitted post-hearing briefs to the hearing officer.

On May 9, 1995, the hearing officer rendered a proposed decision in which she stated her understanding that the required standard of proof before her was clear and convincing evidence. Applying that standard of proof, her decision included the following eight specific factual findings: “(1) that the plaintiff engaged in sexual activity with ‘Female Student A,’ a nineteen year old Bristol Eastern High School [student] on two occasions during the 1967-68 school year; (2) that the plaintiff engaged in sexual activity with ‘Female Student B,’ a seventeen year old Bristol Eastern High School student on seven occasions during the 1971-72 and 1972-73 school years; (3) that the plaintiff engaged in sexual activity with an unidentified woman in his classroom in November 1977; (4) that the plaintiff acted in a sexually inappropriate manner with a seventeen year old Bristol Eastern High School student (L) during the 1970-71 school year, making her feel uncomfortable; (5) that the plaintiff made inappropriate sexually suggestive comments to a seventeen year old Bristol Eastern High School student (S) during the 1981-82 school year, making her feel uncomfortable; (6) that the plaintiff made inappropriate sexually suggestive comments to a sixteen year old Bristol Eastern High School student (F) during the 1980-81 and 1981-82 school years, making her feel uncomfortable; (7) that the plaintiff made inappropriate sexually suggestive comments to a seventeen year old Bristol Eastern High School student (LA), acted in a sexually suggestive manner with her, and attempted to meet her outside of the school after school hours in December 1987; (8) that the plaintiff made inappropriate sexually suggestive comments to a seventeen year old Bristol Eastern High School student (PP) during the 1987-88 school year.”

The hearing officer summarized her factual findings as follows. “The substantial, probative and reliable evidence entered into the record establishes, by clear and convincing evidence, that [the plaintiff] maintained sexual relationships with teenage girls who were students at Bristol Eastern. [The plaintiff] cultivated these relationships while he was their teacher. The cultivation of these sexual relationships directly affects the trust that is central to a healthy teacher-student relationship.”

On the basis of her factual findings, the hearing officer reached the conclusions of law that the plaintiff was “unfit” to perform the duties of a teacher and that his conduct constituted “other due and sufficient cause” for revoking his license as provided by General Statutes § 10-145b (m) (3) and (5).

In accordance with § 10-145d-612 (i) of the Regulations of Connecticut State Agencies, each member of the board signed a statement that he or she had read the proposed decision. The plaintiff appeared at a meeting of the board with counsel who presented oral argument opposing adoption of the hearing officer’s proposed decision. The board members voted five to four to adopt the proposed decision and, pursuant thereto, revoked the plaintiffs teaching certificate.

I

A

In his first claim, the plaintiff argues that the revocation of his teaching certificate violated his constitutional rights by depriving him of a property interest without due process of law. School teachers in this state have a property interest in their teaching certificates; Connecticut Education Assn., Inc. v. Tirozzi, 210 Conn. 286, 295, 554 A.2d 1065 (1989); which may be revoked only in accordance with procedures that constitute due process of law. See Pet v. Dept. of Health Services, 207 Conn. 346, 354, 542 A.2d 672 (1988). “Administrative due process requires . . . that a party be given notice of the case against him and an opportunity to be heard by a fair and impartial body.” Altholtz v. Dental Commission, 4 Conn. App. 307, 313, 493 A.2d 917 (1985). “The ‘root requirement’ of the due process clause is that the state actor afford individuals notice and an opportunity for a hearing before depriving them of their property interests.” Connecticut Education Assn., Inc. v. Tirozzi, supra, 298, citing Cleveland Board of Education v. Loudermill, 470 U.S. 532, 542, 105 S. Ct. 1487, 84 L. Ed. 2d 494 (1985).

The board is the state agency empowered by statute to revoke a teaching certificate if it finds that the holder of the certificate “is professionally unfit to perform the duties for which the certification was granted”; General Statutes § 10-145b (m) (3); or if there is “other due and sufficient cause.” General Statutes § 10-145b (m) (5). The board has implemented this statute with regulations. Section 10-145d-612 (g) and (h) of the Regulations of Connecticut State Agencies gives the teacher the right to a hearing, the right to be present at the hearing, the right to cross-examine witnesses, the right to present oral argument and the right to file briefs.

The record discloses that the board scrupulously adhered to the requirements of the statute and regulations including notice and a full hearing. Accordingly, the trial court properly concluded that the procedure used in this case protected the plaintiffs constitutional due process rights.

B

The plaintiff also complains that the commissioner and the board deprived him of his due process rights by failing to pursue a complete and thorough investigation. The plaintiff presents detailed arguments as to how he feels the investigator should have conducted his duties. The plaintiff, however, furnishes no citation to statute, regulation or case law, nor is this court aware of any, that prescribes the methodology that the investigator is required to employ. The plaintiffs citation to cases relating to the statutory powers and duties of investigators of the commission on human rights and opportunities (CHRO) are inapposite. There is no analogous statute in the present case.

The trial court concluded that “the commissioner’s investigation was only a distant prelude to the decision of the agency, which is the actual subject of this appeal. Subsequent to the investigation but prior to the administrative hearing, the commissioner disclosed to the plaintiff the names of his accusers. After that, there was a full evidentiary hearing at which the plaintiffs accusers testified and were subjected to rigorous cross-examination. Therefore, even if the commissioner’s investigation was conducted in such a way as to permit or encourage false accusations, as the plaintiff suggests, the plaintiff was given full and effective opportunity to confront the witnesses against him and combat their accusations before the board rendered its final decision. Most importantly, the proposed decision and the board’s final decision are clearly based entirely on the evidence adduced at the administrative hearing, not on what may have transpired during the preliminary investigation.”

The trial court finally concluded “that the manner in which the commissioner investigated the case prior to the hearing does not provide a basis for reversing the ultimate decision of the board.” We agree with the trial court.

C

The plaintiff next claims that the board violated his due process rights by bringing stale claims in violation of the statute of limitations and in violation of the doctrine of laches. Despite the absence of any legislated statute of limitations applicable to certificate revocation proceedings, the plaintiff argues that the board or its hearing officer should have created one for the plaintiff’s protection.

The plaintiff’s argument would have us ignore the legal principle that statutes of limitations do not generally apply to the state. “[A] universal rule in the construction of statutes limiting rights [is] that they are not to be construed to embrace the government or sovereignty unless by express terms or necessary implication such appears to have been the clear intention of the legislature, and the rights of the government are not to be impaired by a statute unless its terms are clear and explicit, and admit of no other construction.” (Emphasis added; internal quotation marks omitted.) State v. Goldfarb, 160 Conn. 320, 323, 278 A.2d 818 (1971), quoting State v. Shelton, 47 Conn. 400, 404 (1879). Furthermore, “ ‘a subdivision of the state, acting within its delegated governmental capacity, is not impliedly bound by the ordinary statute of limitations.’ ” Dept. of Transportation v. Canevari, 37 Conn. Sup. 899, 900, 442 A.2d 1358 (1992). Thus, the board as an agency of the state is not subject to a statute of limitations unless it is expressly declared by the legislature. The legislature has not chosen to include such a limitation here. General Statutes § 10-145b (m). Where, as here, the language of a statute is clear and unambiguous, courts may not by construction supply omissions in a statute merely because the court feels that it has good reasons for doing so and that the statute would thereby be improved. Simko v. Zoning Board of Appeals, 205 Conn. 413, 418, 533 A.2d 879 (1987). Additionally, the doctrine of laches may not be invoked against a governmental agency. Aronson v. Foohey, 42 Conn. Sup. 348, 355, 620 A.2d 843 (1992).

The trial court thoroughly analyzed the justification for a reliance on evidence spanning the plaintiffs entire teaching career in order to determine if the plaintiff was presently unfit to hold a teaching certificate. “In the present case, the board’s task under General Statutes § 10-145b (m) (3) was to determine whether the plaintiff ‘is professionally unfit to perform the duties [of a secondary school teacher].’ In the context of the applicable statute, therefore, evidence of past misconduct would be relevant and material if it revealed a predilection for such behavior as would lead a reasonable person to conclude that the actor is presently unfit for licensure. As the comments of some of the board members at its meeting make clear, the board considered the evidence of past misconduct in this case as showing a continuing ‘pattern’ of unacceptable behavior. As one member put it, ‘The notion the state would be powerless because of passage of time to protect a student in the future is a notion that is simply unacceptable and I would have to reject [it].’ ” (Emphasis in original.)

On the basis of the lack of any applicable statute of limitations, and the other considerations previously set forth, we conclude that it was not unreasonable for the hearing officer to admit and for the board to consider evidence and testimony of past misconduct of the plaintiff, notwithstanding that such misconduct occurred beyond the time limited by statutes of limitation that would pertain in other kinds of legal actions. This conclusion is strengthened by the fact that counsel for the plaintiff had full opportunity to cross-examine each adverse witness regarding the witness’ memory of events occurring in the past and did so vigorously. The plaintiff thus presented the issue of credibility and failed memory at the fact-finding stage of the proceeding, forcing the hearing officer to deal with it as a central issue in the case. Neither the trial court nor this court can intrude into the fact-finding function of the administrative agency.

D

The plaintiff next complains that the board violated his due process lights because the case against him was not proven by clear and convincing evidence. The plaintiff cites no reported Connecticut decisions to support his contention that a license revocation hearing, although conducted under the UAPA, requires a higher standard of proof than other UAPA hearings. It is not necessary, however, that we consider whether, as a case of first impression, this type of hearing requires the heightened standard. Regardless of whether the higher standard was required, the hearing officer explicitly stated that she found “all facts ... in this matter . . . by clear and convincing evidence.” Thus, it is evident that the plaintiff had the benefit of the higher standard even though he possibly might not have been entitled to it.

E

In his final due process claim, the plaintiff argues that the board violated General Statutes § 4-179 (a) pertaining to the UAPA procedure when all members of an agency have not heard the matter or read the record. Section 10-145d-612 (i) of the Regulations of Connecticut State Agencies establishes further procedural safeguards pertaining to this type of situation.

The plaintiffs specific complaint is that the board members did not certify that they had read the plaintiffs exceptions and briefs. Such certification is not required by either the statute or the regulation. This claim has no merit.

II

The plaintiff also claims that the revocation of his teaching certificate was arbitrary, capricious and an abuse of discretion. In reviewing the final decision of an administrative agency, the trial court must determine whether there is substantial evidence in the administrative record to support the agency’s findings of fact and whether the conclusions drawn from those facts were reasonable. Dolgner v. Alander, 237 Conn. 272, 280, 676 A.2d 865 (1996). “Judicial review of [an administrative agency’s] action is governed by the Uniform Administrative Procedure Act . . . and the scope of that review is very restricted. . . . Neither this court nor the trial court may retry the case or substitute its own judgment for that of the [administrative agency]. . . . The court’s ultimate duty is only to decide whether, in light of the evidence, the [agency] has acted unreasonably, arbitrarily, illegally, or in abuse of [its] discretion.” (Citations omitted; internal quotation marks omitted.) Board of Education v. Freedom of Information Commission, 208 Conn. 442, 452, 545 A.2d 1064 (1988). Even “[judicial review of conclusions of law reached administratively is . . . limited. The court’s ultimate duty is only to decide whether, in light of the evidence, the [agency] has acted unreasonably, arbitrarily, illegally, or in abuse of its discretion.” (Internal quotation marks omitted.) Connecticut Light & Power Co. v. Dept. of Public Utility Control, 219 Conn. 51, 57-58, 591 A.2d 1231 (1991). Judicial review is intended to assure that the action is fundamentally fair. Feinson v. Conservation Commission, 180 Conn. 421, 429, 435 A.2d 980 (1980).

“A reviewing court must defer to the agency’s assessment of the credibility of the witnesses and to the agency’s right to believe or disbelieve the evidence presented . . . .” (Internal quotation marks omitted.) Pet v. Dept. of Health Services, 228 Conn. 651, 668, 638 A.2d 6 (1994). “The court shall not substitute its judgment for that of the agency as to the weight of the evidence on questions of fact. The court shall affirm the decision of the agency unless the court finds that substantial rights of the person appealing have been prejudiced because the administrative findings, inferences, conclusions, or decisions are: (1) In violation of constitutional or statutory provisions; (2) in excess of the statutory authority of the agency; (3) made upon unlawful procedure; (4) affected by other error of law; (5) clearly erroneous in view of the reliable, probative, and substantial evidence on the whole record; or (6) arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion. . . .” General Statutes § 4-183 (j). In the present case, the trial court did not find any of the six exceptions and, therefore, was bound by the statute to affirm the board’s decision.

If the administrative record provides substantial evidence on which the hearing officer could reasonably have based his findings, the decision must be upheld. Dolgner v. Alander, supra, 237 Conn. 281. The trial court may not disturb the administrative process if the record contains substantial evidence that supports the hearing officer’s findings and as long as the board followed the requirements of the statute. The trial court in the present case concluded that “[i]n this case the testimony of the witnesses constitute the required evidence, and . . . the board scrupulously followed the [statutory] procedures.”

The plaintiff has not persuaded us that there is any justification for this court to disturb the well reasoned decision of the trial court.

The judgment is affirmed.

In this opinion the other judges concurred.

       Section 10-145d-612 (b) of the Regulations of Connecticut State Agencies provides: “Request for revocation. A request for revocation of a certificate may be made by a board of education, by a superintendent of schools, or by any person with a legitimate interest, hereinafter called ‘the requesting party.’ Such request shall be in writing, signed and notarized and shall state in reasonable detail the facts upon which revocation is requested, which shall include but not be limited to relevant names of persons, dates and places. Any such request shall be filed with the Commissioner.”

       Section 10-145d-612 © of the Regulations of Connecticut State Agencies provides: “Finding of probable cause. If, after reviewing the results of the investigation, the Commissioner finds that in his judgment probable cause does exist for the institution of revocation procedures, the Commissioner shall send, by registered mail, notice of such finding to the certificate holder. Such notice, in the form of an administrative complaint, shall contain the grounds upon which revocation procedures have been instituted.
      “The Commissioner also shall notify the certificate holder, in writing, that within 15 days after receipt of the notice, the certificate holder may either:
      “(1) Surrender his certificate to the Commissioner and waive, in writing, his right to a hearing, thereby terminating his right to serve in a position requiring such certificate; or
      “(2) Request, in writing, a hearing.”

       General Statutes § 10-145b (m) provides in relevant part: “The State Board of Education may revoke any certificate issued pursuant to sections 10-144o to 10-149, inclusive, for any of the following reasons ... (3) the holder is professionally unfit to perform the duties for which certification was granted ... or (5) other due and sufficient cause. . . .” (Emphasis added.)

       Section 10-145d-612 (i) of the Regulations of Connecticut State Agencies provides: “Decision by the Board. Unless the Commissioner and the certificate holder mutually agree to an extension, within 60 days after the closing of the record of the hearing, the subcommittee of the Board or the hearing officer shall submit a proposed final decision. The Board, within 90 days after the closing of the record of the hearing, or after the filing of the proposed final decision of a subcommittee of the Board or hearing officer or the written report of the Commissioner, if no hearing is held, shall determine by a recorded roll-call vote whether the certificate of the holder shall be revoked.
      “An affirmative vote of a majority of the Board, present and voting, shall be necessary for revocation. Each member of the Board who votes shall certify either to attendance at the hearing or to having read the proposed final decision of the subcommittee or hearing officer or the report of the Commissioner. The members of the Board shall have available for review any brief filed or documentary evidence introduced at the hearing.
      “At the meeting during which the revocation matter is to be decided and prior to voting on revocation, the Board, if it has not heard the matter en banc, shall provide the Commissioner and the certificate holder with the opportunity to make an oral statement regarding the proposed final decision or the report of the Commissioner, if no hearing was held. The Board may limit the length of the statement. The Board shall not provide for the introduction of any evidence during the statements.
      “The Board shall state in a written opinion the reasons for its action and shall base its determination on evidence adduced at the hearing or, if no hearing is held, upon the written report of the Commissioner. Notice of the action of the Board, together with its written opinion supporting its action, shall be furnished, promptly, to the Commissioner, the certificate holder and the requesting party.”

       The plaintiff relies on the fourteenth amendment to the United States constitution and article first, § 8, of the Connecticut constitution.

       Section 10-145d-612 of the Regulations of Connecticut State Agencies provides in relevant part: “(g) Provision for hearing. If there is no surrender of certificate and waiver of hearing or, if no request for a hearing is made by the certificate holder within the time period contained in subsection (f) of this section, the Board, on its own motion, made not later than 90 days following the expiration of the aforesaid 15 days, may order a hearing be held or order the Commissioner to file a written report, with the Board. Such report shall be filed with the Board not more than 90 days following the Board’s order for the report.
      “If a hearing is requested by the certificate holder or if the Board orders a hearing on its own motion, such hearing shall be held not later than 60 days following such request or such order of the Board, unless the Commissioner and the certificate holder mutually agree to an extension. Not less than 14 days notice of such hearing shall be given. Said notice period may be mutually waived by the Commissioner and the certificate holder.
      “(h) Hearing procedure. At the discretion of the Board, the hearing shall be conducted before the Board, a subcommittee of the Board or an impartial hearing officer appointed by the Board. The hearing shall be open to the public.
      “The Commissioner shall represent the interests of the Department. A verbatim transcript of the hearing shall be made. Both the certificate holder and the Commissioner shall have the right to be heard in each other’s presence, to be present throughout the hearing and to cross-examine witnesses, to present oral argument and, within 31 days following the close of the hearing, to file briefs. The Commissioner and the certificate holder may mutually agree to extend the time for filing briefs. ...”

       For example, a CHRO investigator is required by statute to “attempt to eliminate the [discriminatory] practice complained of by conference, conciliation and persuasion . . . .” General Statutes § 46a-83 (f). For a criticism of this statute see the dissent of Justice Borden in Adriana v. Commission on Human Rights & Opportunities, 220 Conn. 307, 329-35, 596 A.2d 426 (1991).

       General Statutes § 4-179 (a) provides: “When, in an agency proceeding, a majority of the members of the agency who are to render the final decision have not heard the matter or read the record, the decision, if adverse to a party, shall not be rendered until a proposed final decision is served upon the parties, and an opportunity is afforded to each party adversely affected to file exceptions and present briefs and oral argument to the members of the agency who are to render the final decision.”