text:
    EMIL SORBAN v. STERLING ENGINEERING CORPORATION
    (AC 23146)
    Lavery, C. J., and Foti and McLachlan, Js.

      Argued June 9
    officially released September 16, 2003

      Eric H. Rothauser, with whom were Thomas Cunnane, legal intern, and, on the brief, John L. Bonee III, for the appellant (plaintiff).

      Anne Kelly Zovas, with whom, on the brief, was Courtney C. Stabnick, for the appellee (defendant).
   Opinion

LAVERY, C. J.

The plaintiff employee, Emil Sorban, appeals from the summary judgment rendered by the trial court in favor of the defendant employer, Sterling Engineering Corporation. The plaintiff claims that the court improperly concluded that (1) the substantial certainty exception to the exclusivity provisions of the Workers’ Compensation Act (act), General Statutes § 31-275 et seq., is equivalent to inevitability and (2) there was no genuine issue of material fact as to whether the defendant’s alleged intentional actions created a situation in which the plaintiffs injuries were substantially certain to occur. We agree with the plaintiff that the court improperly concluded that the substantial certainty standard is equivalent to inevitability, but determine nevertheless that there was no genuine issue of material fact and that the defendant was entitied to judgment as a matter of law. Accordingly, we affirm the judgment of the trial court.

The following facts, gathered from deposition testimony, affidavits and the procedural history, are necessary for our resolution of the plaintiffs appeal. On March 12,1997, the plaintiff was employed by the defendant as a machine operator. He had worked for the defendant for nine years. The plaintiff was assigned to work on a vertical turret lathe, which required the operator to place a large circular piece of material on a rotating table. The operator would position the cutting tool (tool head) that was attached to an arm over the rotating table, and then cut the material.

The plaintiff noticed that the lathe was malfunctioning; specifically, the cutting tool was not stopping in the proper position. Instead, the tool head drifted toward the material located on the rotating table. The plaintiff alerted his supervisor to the problem and, after inspecting the machine, the supervisor told the plaintiff to “be careful.” The plaintiff turned on the rotating table and then attempted to position the arm. After turning the switch that would allow him to position the arm and tool head, the plaintiff heard a click and was unable to complete the task. He attempted unsuccessfully to position the tool head a second time. During his third attempt, the tool head crashed into the material located on the rotating table. As a result, a piece of material was thrown from the machine, broke though a safety shield guard and struck the plaintiffs arm, causing a severe laceration and other injuries.

The plaintiffs complaint, dated March 23, 1999, alleged, inter alia, that the defendant knew that its employees operated the lathe without proper shield guards, that there were insufficient butt blocks to secure the material to the rotating table, and that the tool head traveled too far and would strike materials on the rotating table. The plaintiff alleges that those conditions caused the materials to be thrown at the operator. Thus, the plaintiff contends that the defendant “intentionally required, caused, allowed, and permitted its employees ... to do work in which it was substantially certain that employees including [the plaintiff] would get struck by thrown rotating parts and be severely injured.”

The defendant, pursuant to Practice Book § 17-44 et seq., filed a motion for summary judgment on the basis of its special defense that the plaintiffs cause of action was barred by the exclusive remedy provision of the act, General Statutes § 31-284 (a). The court granted the defendant’s motion, and this appeal followed. Additional facts will be set forth as necessary.

I

The plaintiff first claims that the court improperly concluded that the substantial certainty standard is equivalent to inevitability. Specifically, he argues that inevitability is defined as actual or virtual certainty, rather than substantial certainty. Furthermore, he urges us to adopt an objective test, that is, whether a reasonable person would understand that the conduct of the employer was substantially certain to result in injury or death to the employee. We agree with the plaintiff.

At the outset, we set forth our well established standard of review. “[T]he scope of our review of the granting of a motion for summary judgment is plenary. . . . In seeking summary judgment, it is the movant who has the burden of showing the nonexistence of any issue of fact. . . . Although the party seeking summary judgment has the burden of showing the nonexistence of any material fact ... a party opposing summary judgment must substantiate its adverse claim by showing that there is a genuine issue of material fact together with the evidence disclosing the existence of such an issue. ... In ruling on a motion for summary judgment, it is customary for the court to review documentary proof submitted by the parties to demonstrate the existence or nonexistence of issues of material fact. Practice Book § 17-45.

“Practice Book § 17-49 provides in relevant part: [judgment . . . shall be rendered forthwith if 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. In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party. . . . The party seeking summary judgment has the burden of showing the absence of any genuine issue [of] material facts which, under applicable principles of substantive law, entitle him to a judgment as a matter of law . . . and the party opposing such a motion must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact. . . . The test is whether a party would be entitled to a directed verdict on the same facts.” (Citations omitted; internal quotation marks omitted.) Drew v. William W. Backus Hospital, 77 Conn. App. 645, 650-51, 825 A.2d 810 (2003).

“On appeal, we must determine whether the legal conclusions reached by the trial court are legally and logically correct and whether they find support in the facts set out in the memorandum of decision of the trial court.” (Internal quotation marks omitted.) Taricani v. Nationwide Mutual Ins. Co., 77 Conn. App. 139, 144, 822 A.2d 341 (2003).

A brief review of the purpose of the act will facilitate our resolution of the plaintiffs appeal. “Connecticut first adopted a statutory scheme of workers’ compensation in 1913. The purpose of the [act] ... is to provide compensation for injuries arising out of and in the course of employment, regardless of fault. . . . Under the statute, the employee surrenders his right to bring a common law action against the employer, thereby limiting the employer’s liability to the statutory amount. ... In return, the employee is compensated for his or her losses without having to prove liability. ... In a word, these statutes compromise an employee’s right to a common law tort action for work related injuries in return for relatively quick and certain compensation. . . . The intention of the framers of the act was to establish a speedy, effective and inexpensive method for determining claims for compensation.” (Citations omitted; emphasis in original; internal quotation marks omitted.) Doe v. Yale University, 252 Conn. 641, 672, 748 A.2d 834 (2000).

In Morocco v. Rex Lumber Co., 72 Conn. App. 516, 805 A.2d 168 (2002), we discussed the exclusivity provision of the act as well as the exception to that general rule. “Workers’ compensation systems ordinarily are limited to recovery in tort actions for injuries arising in the workplace during the course of employment and compensate employees for such injuries. See Jett v. Dunlap, 179 Conn. 215, 222, 425 A.2d 1263 (1979). In most cases, the Connecticut act is a bar to independent actions filed by an employee against an employer for an injury that occurs at the workplace. See General Statutes § 31-284.

“There is an exception, however, to the exclusivity provision of the workers’ compensation statute. That one exception exists when the intentional tort of an employer injures an employee or when the employer has engaged in wilful or serious misconduct. Suarez v. Dickmont Plastics Corp., [229 Conn. 99, 106, 639 A.2d 507 (1994) (Suarez I)]. The exception gives an employee a cause of action in addition to the remedies provided by the act. . . . [T]he employer must have engaged in intentional misconduct, as that has been defined through our case law . . . directed against its employee. . . . Anything short of genuine intentional injury sustained by the employee and caused by the employer is compensable under the [a]ct. . . . The exception does not include accidental injuries caused by gross, wanton, wilful, deliberate, intentional, reckless, culpable, or malicious negligence, breach of statute, or other misconduct of the employer short of genuine intentional injury. . . .

“The actual intent standard or test could produce inequities under some hypothetical situations, and it is, therefore, the substantial certainty standard that most often is used.” (Citations omitted; emphasis in original; internal quotation marks omitted.) Morocco v. Rex Lumber Co., supra, 72 Conn. App. 520-22.

Our Supreme Court has stated that an employee can prevail only “by proving either that the employer actually intended to injure the plaintiff (actual intent standard) or that the employer intentionally created a dangerous condition that made the plaintiffs injuries substantially certain to occur (substantial certainty standard).” Suarez v. Dickmont Plastics Corp., 242 Conn. 255, 257-58, 698 A.2d 838 (1997) (Suarez II).

“The substantial certainty test provides for the intent to injure exception to be strictly construed and still allows for a plaintiff to maintain a cause of action against an employer where the evidence is sufficient to support an inference that the employer deliberately instructed an employee to injure himself.” (Internal quotation marks omitted.) Morocco v. Rex Lumber Co., supra, 72 Conn. App. 522.

In a trilogy of recent cases, this court established the scope of the substantial certainty exception to the exclusivity provision of the act. To escape the exclusivity provision of the act, the plaintiff must allege facts to establish either the actual intent standard or the substantial certainty standard. “Under either theory of employer liability, however, the characteristic element [of wilful misconduct] is the design to injure either actually entertained or to be implied from the conduct and circumstances. . . . [See also Suarez II, supra, 242 Conn. 257-58.] Not only the action producing the injury but the resulting injury also must be intentional. . . .

“What is being tested is not the degree of gravity of the employer’s conduct, but, rather, the narrow issue of intentional versus accidental conduct.” (Citations omitted; internal quotation marks omitted.) Morocco v. Rex Lumber Co., supra, 72 Conn. App. 523; see also Ramos v. Branford, 63 Conn. App. 671, 679, 778 A.2d 972 (2001); Melanson v. West Hartford, 61 Conn. App. 683, 767 A.2d 764, cert. denied, 256 Conn. 904, 772 A.2d 595 (2001).

With the foregoing principles in mind, we turn to the present case. The court stated that “[substantial certainty is equivalent to inevitability and is certitude beyond even high probability.” The plaintiffs argument focuses solely on the use of the term “inevitability.” The plaintiff urges that this standard for substantial certainty should be rejected and requests that this court perform the “daunting” task of defining substantial certainty.

We note that neither this court nor our Supreme Court has definitively discussed what is meant by the substantial certainty test. We have stated that “the substantial certainty standard is a subset of the intentional tort exception.” Ramos v. Branford, supra, 63 Conn. App. 679; A. Sevarino, Connecticut Workers’ Compensation After Reforms (3d Ed. 2002) § 4.32.3, p. 528. To meet that standard, the employee must show that the employer’s act in producing the injury was deliberate or intentional and that the resulting injury was substantially certain, from the employer’s perspective, to occur. Ramos v. Branford, supra, 680. “Since the legal justification for the common-law action is the nonaccidental character of the injury from the defendant employer’s standpoint, the common-law liability of the employer cannot ... be stretched to include accidental injuries caused by the gross, wanton, wilful, deliberate, intentional, reckless, culpable, or malicious negligence, breach of statute, or other misconduct of the employer short of a conscious and deliberate intent directed to the purpose of inflicting an injury. 6 A. Larson & L. Larson, Workmen’s Compensation (1997) § 68.13, pp. 13-12 through 13-13. What is being tested is not the degree of gravity of the employer’s conduct, but, rather, the narrow issue of intentional versus accidental conduct.” (Emphasis added; internal quotation marks omitted.) Ramos v. Branford, supra, 680-81. Last, we note that our Supreme Court has stated that “a high risk or probability of harm is not equivalent to the substantial certainty without which an actor cannot be said to intend the harm in which his act results.” (Internal quotation marks omitted.) Mingachos v. CBS, Inc., 196 Conn. 91, 101, 491 A.2d 368 (1985).

“Inevitable” is defined as “[ijncapable of being avoided . . . .” Black’s Law Dictionary (6th Ed. 1990). “Certainty” is defined as the “[a]bsence of doubt . . . definite. The quality of being specific, accurate and distinct.” Id. It would appear, therefore, that “inevitable” and “certainty” are equivalent terms. If the test were “actual certainty,” or “virtual certainty,” then the court’s use of inevitability would be proper. The test, however, is not actual certainty, but rather substantial certainty.

Courts in other jurisdictions have endorsed the use of a substantial certainty standard as a less demanding standard than actual or virtual certainty. In Turner v. PCR, Inc., 754 So. 2d 683, 687 n.4 (Fla. 2000), for example, the court stated: “We recognize that some courts have elevated the standard . . . from ‘substantial certainty’ to ‘virtual certainty.’ . . . Although we continue to find that ‘substantial certainty’ requires a showing greater than ‘gross negligence,’ we emphasize that the appropriate standard is ‘substantial certainty,’ not the heightened ‘virtual certainty’ standard.” (Citations omitted.) See, e.g., Bazley v. Tortorich, 397 So. 2d 475, 482 (La. 1981); Laidlow v. Hariton Machinery Co., 170 N.J. 602, 613-14, 790 A.2d 884 (2002); Fyffe v. Jeno’s, Inc., 59 Ohio St. 3d 115, 118, 570 N.E.2d 1108 (1991); Mandolidis v. Elkins Industries, Inc., 161 W. Va. 695, 246 S.E.2d 907 (1978), superseded by statute, Gallapoo v. Wal-Mart Stores, Inc., 197 W. Va. 172, 175, 475 S.E.2d 172 (1996); but see Fryer v. Kranz, 616 N.W.2d 102, 106 (S.D. 2000) (“ ‘[substantial certainty should be equated with virtual certainty’ ”); Birklid v. Boeing Co., 127 Wash. 2d 853, 860, 904 P.2d 278 (1995) (substantial certainty insufficient to show deliberate intention); Fenner v. Municipality of Anchorage, 53 P.3d 573, 576-77 (Alaska 2002) (stating that court has not adopted substantial certainty test).

The Supreme Court of Louisiana set forth the following definition of the substantial certainty test, which we find persuasive: “The traditional definition is simply a way of relieving the claimant of the difficulty of trying to establish subjective state of mind (desiring the consequences) if he can show substantial certainty that the consequences will follow the act. The latter takes the cases out of the realm of possibility of risk (which are negligence terms), and expresses the concept that an actor with such a certainty cannot be believed if he denies that he knew the consequences would follow. In human experience, we know that specific consequences are substantially certain to follow some acts.” (Emphasis in original; internal quotation marks omitted.) Reeves v. Structural Preservation Systems, 731 So. 2d 208, 212 (La. 1999). The North Carolina Court of Appeals defined substantial certainty as “more than a possibility or substantial probability of a serious injury but is less than actual certainty.” (Emphasis added; internal quotation marks omitted.) Wiggins v. Pelikan, Inc., 132 N.C. App. 752, 755-56, 513 S.E.2d 829 (1999); see also 1 Restatement (Second), Torts § 8A (1965).

In Wiggins, the court also established various factors to assist in the determination of whether the substantial certainty test was satisfied. Those factors are “[wjhether the risk that caused the harm existed for a long period of time without causing injury. . . . Whether the risk was created by a defective instrumentality with a high probability of causing the harm at issue. . . . Whether there was evidence the employer, prior to the accident, attempted to remedy the risk that caused the harm. . . . Whether the employer’s conduct which created the risk violated state or federal work safety regulations. . . . Whether the . . . employer created a risk by failing to adhere to an industry practice, even though there was no violation of a state or federal safety regulation [and] [w]hether the . . . employer offered training in the safe behavior appropriate in the context of the risk causing the harm.” (Citations omitted.) Wiggins v. Pelikan, Inc., supra, 132 N.C. App. 756-58. Those factors may provide guidance and serve to assist courts in the future that must address the issue. We agree that this list is not exclusive and that not every factor will be applicable in all factual situations. Furthermore, “[n]o one factor is determinative in evaluating whether [an employee] has stated a valid . . . claim; rather, all of the facts taken together must be considered.” (Internal quotation marks omitted.) Id., 756.

In summary, we conclude that to satisfy the substantial certainty test, the employee must show that a reasonable person in the position of the employer would have known that the injury or death suffered by the employee was substantially certain to follow from the employer’s actions. Substantial certainty means more than substantial probability, but does not mean actual or virtual certainty, or inevitability. Substantial certainty exists when the employer cannot be believed if it denies that it knew the consequences were certain to follow. We also stress, consistent with our prior holdings and those of our Supreme Court, that this exception to the exclusivity provision of the act is strictly construed. See, e.g., Ramos v. Branford, supra, 63 Conn. App. 679, citing Gulden v. Crown Zellerbach Corp., 890 F.2d 195, 197 (9th Cir. 1989). Finally, we note that “the characteristic element [of wilful misconduct] is the design to injure either actually entertained or to be implied from the conduct and circumstances. . . . Not only the action producing the injury but the resulting injury also must be intentional.” (Internal quotation marks omitted.) Morocco v. Rex Lumber Co., supra, 72 Conn. App. 523.

Accordingly, we conclude that the court applied the improper standard when it defined substantial certainty as the equivalent of inevitability.

II

Our next task, therefore, is to determine whether summary judgment is warranted in this case on the basis of the appropriate definition of the substantial certainty standard. It is axiomatic that “[w]e may affirm a proper result of the trial court for a different reason.” Biro v. Hirsch, 62 Conn. App. 11, 16 n.7, 771 A.2d 129, cert. denied, 256 Conn. 908, 772 A.2d 601 (2001); see also State v. Salmond, 69 Conn. App. 81, 91, 797 A.2d 1113, cert. denied, 260 Conn. 929, 798 A.2d 973 (2002). We determine that under the facts and circumstances of this case, the plaintiff failed to establish facts that demonstrate that the defendant intentionally created a dangerous condition that made the injuries he sustained substantially certain to occur.

The plaintiff argues that evidence existed to support his claim that there was a genuine issue of material fact that his injury was substantially certain to occur as a result of the deliberate actions of the defendant. First, the plaintiffs expert, Irving U. Ojalvo, a professional engineer, noted the report from an investigator from the federal Occupational Safety and Health Administration (OSHA) that a similar incident occurred on September 20, 1995, in which the tool head traveled too far, struck the material, causing it to be knocked off the rotating table, and struck the operator. The investigator concluded that if the defendant had adopted a policy after the 1995 incident regarding the operation of the lathe, it was never communicated to the employees. The plaintiff alleged that he was never trained to operate the lathe with the rotating table turned off. The plaintiff also claims that the defendant knew that the lathe was defective and that the tool head tended to drift. Finally, the plaintiff contends that the defendant misrepresented a material fact to the investigator by stating that the lathe did not have brakes when in fact it did.

The crux of the plaintiffs case is that the safety features of the lathe were not operational, the defendant failed to train the plaintiff properly and to inform him of the policy regarding the rotating table, and that the defendant failed to provide adequate butt blocks and guard shields. As a result of those intentional acts, the plaintiff claims, his injuries were substantially certain to occur.

In Morocco, we stated that “[t]his court and the Supreme Court . . . have stated that OSHA violations are not enough to take the resulting injury out of the exclusivity provision of the act.” Morocco v. Rex Lumber Co., supra, 72 Conn. App. 525. We also have set forth the rule that “[a] wrongful failure to act to prevent injury is not the equivalent of an intention to cause injury.” (Internal quotation marks omitted.) Ramos v. Branford, supra, 63 Conn. App. 685; Melanson v. West Hartford, supra, 61 Conn. App. 689 n.6.

In the record before us, there is no evidence that the defendant’s actions were committed with the purpose of causing injury. See Ramos v. Branford, supra, 63 Conn. App. 684. Although the defendant’s failure (1) to repair the lathe, (2) to provide adequate butt blocks and shield guards, and (3) to alert employees to a policy regarding the use of the rotating table may constitute negligence, gross negligence or even recklessness, those allegations fail to meet the high threshold of substantial certainty, even under the definition set forth in part I. The combination of factors demonstrated a failure to act; however, such a failure is not the equivalent of an intention to cause injury. We conclude, therefore, that the court properly rendered summary judgment in favor of the defendant.

The judgment is affirmed.

In this opinion the other judges concurred.

       We need not, therefore, reach the issue of whether the plaintiff presented evidence that an alter ego of the defendant authorized or directed his work.

       General Statutes § 31-284 (a) provides in relevant part that “[a]ll rights and claims between an employer . . . and employees . . . arising out of personal injury or death sustained in the course of employment are abolished other than rights and claims given by this chapter . . . .”

       The appellate courts in this state often have mentioned the substantial certainty test in the context of workers’ compensation cases. See, e.g., Suarez II, supra, 242 Conn. 279-80; Suarez I, supra, 229 Conn. 109; Morocco v. Rex Lumber Co., supra, 72 Conn. App. 523; Ramos v. Branford, supra, 63 Conn. App. 679. Most recently, our Supreme Court, in a per curiam opinion, adopted a trial court’s decision that defined the substantially certain test as inevitable. See Stebbins v. Doncasters, Inc., 47 Conn. Sup. 638, 644, 820 A.2d 1137 (2002), aff'd, 263 Conn. 231, 819 A.2d 287 (2003). Nevertheless, a precise definition or detailed discussion of the substantial certainty test is absent from those cases.

       Section 8A of the Restatement provides in relevant part: “The word ‘intent’ is used ... to denote that the actor desires to cause consequences of his act, or that he believes that the consequences are substantially certain to result from it.” 1 Restatement (Second), supra, §8A. Comment (b) to that section provides in relevant part: “If the actor knows that the consequences are certain, or substantially certain, to result from his act, and still goes ahead, he is treated by the law as if he had in fact desired to produce the result. . . .” Id., § 8A, comment (b).


source: Caselaw Access Project

author: DRANGINIS, J.

license: Public Domain

text:
    SOUTHERN NEW ENGLAND TELEPHONE COMPANY v. LAURIE J. PAGANO ET AL.
    (AC 23115)
    Foti, Dranginis and Bishop, Js.

      Argued June 3
    officially released September 16, 2003

      Louis A. Spadaccini, for the appellants (defendants).

      Jeffrey M. Donofrio, with whom was A. Rachel Rothman, for the appellee (plaintiff).
   Opinion

DRANGINIS, J.

In this action for nonpayment of advertising fees, the defendants, Laurie J. Pagano and Richard E. Godek, both doing business as Middlesex Counseling Services, appeal from the judgment of the trial court, rendered after a jury trial, in favor of the plaintiff, Southern New England Telephone Company, on both the plaintiffs claim and on the defendants’ counterclaims. On appeal, the defendants claim that the court improperly (1) admitted evidence that had a prejudicial effect that far outweighed its probative value and (2) directed a verdict against them on two counts of their counterclaims. We affirm the judgment of the trial court.

The relevant facts and procedural history are as follows. The plaintiff filed a two count complaint against the defendants on February 3, 1998. In count one, the plaintiff set forth a claim for breach of contract. Specifically, the plaintiff alleged that the defendants had ordered telephone directory advertising for their counseling business from the plaintiff, that the plaintiff had published the defendants’ advertisements and that the defendants had failed to pay the plaintiff for that advertising. In the alternative, in count two, the plaintiff set forth a claim for unjust enrichment in which it alleged that the defendants had benefited from the plaintiffs advertising services, but had failed to pay for those services.

In their answers, the defendants denied the allegations of the plaintiffs complaint. The defendants also set forth claims for setoff in which they offered to set off any debt that the plaintiff owed to them against the debt, if any, that they owed to the plaintiff. Each defendant also set forth an identical five count counterclaim. Those counterclaims were as follows. In count one, they set forth a claim for breach of contract. In counts two and three, they set forth claims for intentional fraud and misrepresentation, and negligent misrepresentation, respectively. In count four, they set forth a claim for a violation of the Connecticut Unfair Trade Practices Act, General Statutes § 42-110a et seq. Finally, in count five they set forth a claim for a breach of the duty of good faith and fair dealing. The plaintiff filed an answer denying the allegations set forth in the defendants’ counterclaims and their claim for setoff.

A jury trial commenced on January 9, 2002. Pagano testified during the defendants’ case-in-chief. During direct examination, she testified that although the plaintiff had claimed that she and her husband, Godek, owed the plaintiff $25,800.52 for advertising services, they had not ordered those services. She further testified that the plaintiff refused to allow her and Godek to place future business advertisements in its yellow page directory until they paid the balance that the plaintiff claimed was due. Finally, she testified that their inability to advertise their business in the plaintiffs yellow page directory negatively affected their business income for the years 1997 to 2001, inclusive. Specifically, she testified that they suffered $445,700 in lost business income for that period of time.

During cross-examination, counsel for the plaintiff questioned Pagano regarding her testimony that the defendants’ business lost $445,700 in income. Again, Pagano testified that the plaintiffs refusal to allow them to advertise caused their business losses. Pagano further testified that because they could not advertise their business in the plaintiffs directory, they placed advertisements in newspapers that circulated in the same geographic area in which their business was located in an effort to continue to attract new business. She testified that one such newspaper was the Hartford Courant. The plaintiffs counsel then asked Pagano if the defendants’ counseling business may have been affected by any adverse publicity in that newspaper. When Pagano stated that she did not know to what the plaintiffs counsel was referring, he showed her a number of newspaper articles that had been printed in the Hartford Courant. Pagano testified that she previously had seen one of the articles. Counsel for the plaintiff then offered into evidence one article that Pagano had seen. That article, which was published on November 29, 2001, reported, inter alia, that Godek had been given a suspended sentence after he was arrested as a result of a foulmouthed outburst at a McDonald’s restaurant in Plainville. The article stated that the incident at McDonaid’s occurred the previous year. The article further reported that in the fall of 1999, Godek had worked as a school psychologist in Southington, where his duties included counseling students on anger management, but that he had resigned from that position after his employer confronted him with his arrest record.

Counsel for the defendants objected to the article’s being admitted into evidence on the ground that its probative value was outweighed by its prejudicial effect. Counsel for the plaintiff argued that the article was admissible because it was highly probative of Pagano’s credibility regarding her testimony that the defendants’ business losses, which served as the bases for several of the defendants’ counterclaims, were due to the plaintiffs refusal to allow the defendants to place any future advertisements until they paid the balance that the plaintiff claimed was due.

The court allowed the article to be admitted. At that time, however, the court instructed the jury: “This particular exhibit can only be used for the purpose of impeaching the credibility of the witness in the statements made concerning the loss of income to the business enterprise. That’s the only thing this can be used for.” Furthermore, before the article was published to the jury, the court redacted a portion of the article. The redacted article, however, still contained the information regarding Godek’s arrest record, his resignation from his position with the school in Southington and the incident at the McDonald’s restaurant.

At the conclusion of the defendants’ case-in-chief, the plaintiff requested a directed verdict on all five counts of each defendant’s counterclaim. After hearing extensive argument, the court reserved judgment on the plaintiffs motion. Two days later, after the close of all of the evidence, the court granted in part the plaintiffs motion for a directed verdict on the defendants’ counterclaims. Specifically, the court directed a verdict as to count one, which alleged breach of contract, and count five, which alleged breach of the covenant of good faith and fair dealing. After counsel presented closing argument and the court presented its charge, the case was submitted to the jury.

On January 18, 2002, the jury returned a verdict in favor of the plaintiff and against both of the defendants on the plaintiffs breach of contract claim. The jury also returned a verdict in favor of the plaintiff and against the defendants on all of the defendants’ remaining counterclaims and their claim for setoff. This appeal followed. Additional facts will be set forth as necessary.

I

The defendants first claim that the court improperly admitted the Hartford Courant article because the article’s prejudicial effect far outweighed its probative value. We disagree.

At the outset, we note our well established standard of review regarding the evidentiary rulings of the court. “[T]he trial court has broad discretion in ruling on the admissibility ... of evidence. . . . [Its] ruling on evidentiary matters will be overturned only upon a showing of a clear abuse of the court’s discretion.” (Internal quotation marks omitted.) State v. William B., 76 Conn. App. 730, 739, 822 A.2d 265, cert. denied, 264 Conn. 918, 828 A.2d 618 (2003).

“Although relevant, evidence may be excluded by the trial court if the court determines that the prejudicial effect of the evidence outweighs its probative value. . . . [T]he trial court’s discretionary determination that the probative value of evidence is . . . outweighed by its prejudicial effect will not be disturbed on appeal unless a clear abuse of discretion is shown. . . . [B]ecause of the difficulties inherent in this balancing process . . . every reasonable presumption should be given in favor of the trial court’s ruling. ... Of course, [a]ll adverse evidence is damaging to one’s case, but it is inadmissible only if it creates undue prejudice so that it threatens an injustice were it to be admitted. . . . [Accordingly] [t]he test for determining whether evidence is unduly prejudicial is not whether it is damaging to the [party against whom the evidence is offered] but whether it will improperly arouse the emotions of the jur[ors].” (Citations omitted; emphasis in original; internal quotation marks omitted.) State v. Sandoval, 263 Conn. 524, 544, 821 A.2d 247 (2003).

We recognize that evidence of Godek’s prior arrest carried some risk of prejudice. We conclude, however, that the court properly determined that the probative value of the evidence outweighed any prejudicial effect it may have had on the defendants’ case. The newspaper article was highly probative of the fact that some of the losses for portions of the period of the defendants’ alleged losses may have been caused by the publicity surrounding Godek’s conduct during that period rather than by the plaintiffs refusal to allow the defendants to advertise their business in its directory, as Pagano testified. Any prejudice suffered by the defendants was not “unfair prejudice” in that it did not tend “to have some adverse effect upon [the defendants] beyond tending to prove the fact or issue that justified its admission into evidence”; (internal quotation marks omitted) State v. Graham, 200 Conn. 9, 12, 509 A.2d 493 (1986); namely, that the defendants’ alleged losses were caused by other factors.

Furthermore, any possible prejudice to the defendants was minimized by the fact that the court redacted portions of the article before publishing it to the jury and the fact that the court instructed the juiy that the article could be used only for the limited purpose of impeaching Pagano’s testimony regarding the defendants’ alleged loss of business income. Accordingly, we cannot conclude that the court abused its discretion in determining that the Hartford Courant article should be admitted because its probative value outweighed its prejudicial effect.

II

The defendants next claim that the court improperly directed a verdict as to two counts of each of their counterclaims after it previously had reserved decision on that issue. Specifically, the defendants seem to claim that pursuant to Practice Book § 16-37, if the court does not immediately either grant or deny a motion for a directed verdict, but instead reserves decision on that motion, the court is deemed to have submitted the action to the jury and, in effect, to have deferred a decision on the matter until after the jury has returned with a verdict. That claim is wholly without merit.

Practice Book § 16-37 provides in relevant part: “Whenever a motion for a directed verdict made at any time after the close of the plaintiffs case in chief is denied or for any reason is not granted, the judicial authority is deemed to have submitted the action to the jury subject to a later determination of the legal questions raised by the motion. . . .” (Emphasis added.)

Under the defendants’ reading of Practice Book § 16-37, a court may not delay its decision on a motion for a directed verdict for any length of time, but instead must either immediately deny or immediately grant the motion. If it fails to do so, the court is deemed to have reserved decision on the motion until after the jury reaches a verdict, and the court, therefore, is deemed to have submitted the action to the jury. We decline to read into Practice Book § 16-37 a prohibition that it does not contain, namely, that the court is prohibited from reserving decision on a motion for a directed verdict until the close of all the evidence. See Miller’s Pond Co., LLC v. Rocque, 71 Conn. App. 395, 408, 802 A.2d 184 (2002) (we cannot read into statute provision that does not exist), aff'd, 263 Conn. 692, 822 A.2d 238 (2003); Monaco v. Turbomotive, Inc., 68 Conn. App. 61, 67, 789 A.2d 1099 (2002) (same).

As we read Practice Book § 16-37, the court is deemed to have submitted the action to the jury only when a party’s motion for a directed verdict is either expressly denied or impliedly denied, that is, when the court declines to rule on the motion for a directed verdict before the parties have presented their closing arguments and the case is then actually submitted to the jury. See Haag v. Beard Sand & Gravel Co., Inc., 151 Conn. 125, 127, 193 A.2d 711 (1963). In the present case, the court granted the plaintiffs motion for a directed verdict as to counts one and five of the defendants’ counterclaims at the close of evidence, before the start of closing argument and before the case was actually submitted to the jury. Therefore, the plaintiffs motion was not “denied,” and it was not “for any reason . . . not granted,” as provided by Practice Book § 16-37. The motion was, in fact, granted as to counts one and five of the defendants’ counterclaims. Accordingly, the court could not be deemed to have submitted those counts to the action of the jury.

The judgment is affirmed.

In this opinion the other judges concurred.

       The defendants also filed six special defenses, none of which are relevant to this appeal.

       The plaintiff also filed three special defenses in response to each defendant’s counterclaim. None of those defenses is relevant to this appeal.

       The articles were not the actual newspaper articles, but were computer printouts from the Hartford Courant’s web site.

       Counsel for the defendants also objected to the admission of the article on the grounds of relevance and hearsay. The defendants’ claim on appeal, however, is limited to whether the court abused its discretion in admitting the article on the ground that its probative value outweighed its prejudicial effect.

       We also note that in its charge to the jury at the conclusion of the case, the court instructed the jury that its verdict must not be reached on the basis of prejudice in favor of or against any party.

       The defendants also claim on appeal that the court abused its discretion in admitting the evidence at issue hero on the ground of unfair surprise. That claim was not, however, raised before the trial court at the time that the defendants objected to the admission of the article. “Appellate review of evidentiary rulings is ordinarily limited to the specific legal [ground] raised by the objection of trial counsel.” (Internal quotation marks omitted.) State v. Sandoval, 263 Conn. 524, 556, 821 A.2d 247 (2003). Accordingly, we decline to review the defendants’ claim that the article should have been excluded on the ground of unfair surprise. To the extent that the defendants claim that the court, abused its discretion in denying their motion for sanctions on the ground that the plaintiff had failed before trial to mark the article as an exhibit in violation of the standing order of the chief administrative judge of the civil division, we conclude that the court did not abuse its discretion in denying the motion for sanctions. See Allstate Ins. Co. v. Mottolese, 261 Conn. 521, 528-29, 803 A.2d 311 (2002) (standard of review regarding court’s decision to impose sanctions is abuse of discretion standard).


author: LAVERY, C. J.

text:
    PETER BRADFORD DETELS v. NICOLETTA DETELS
    (AC 23299)
    Lavery, C. J., and Foti and McLachlan, Js.
    Submitted on briefs June 11
    officially released September 16, 2003

      Richard L. Goldblatt filed a brief for the appellant (plaintiff).
   Opinion

LAVERY, C. J.

The plaintiff, Peter Bradford Detels, appeals from the postjudgment order of the trial court granting the defendant’s motion for contempt. On appeal, the plaintiff claims that the court improperly construed the parties’ separation agreement to require that he file for bankruptcy protection to discharge the property distribution. We reverse the judgment of the trial court.

The following facts are relevant to the plaintiffs appeal. The parties, who were married in 1987, obtained a judgment of dissolution on April 9,1999. Incorporated into the judgment was a separation agreement (agreement). Article V of the agreement, entitled “Division of Personal Property,” provided in paragraph 5.3: “As a lump sum property distribution, the [plaintiff] shall pay to the [defendant] the sum of $300,000 payable at the sum of $30,000 per year for a period of ten years commencing on or before December 31, 1999, and for each successive year thereafter. This property distribution is intended to be further support for the family and shall not be dischargeable by the [plaintiff] in bankruptcy. In the event that the [plaintiff] is physically disabled and/or unemployable or his net worth is less than $200,000 the [plaintiff] may discharge this obligation.”

On December 6, 2001, the defendant filed a motion for contempt, alleging, inter alia, that the plaintiff had violated the dissolution judgment by failing to pay the annual property distribution as set forth in paragraph 5.3. At a hearing on the defendant’s motion, the defendant produced evidence establishing that during 2001, the plaintiff had failed to forward any portion of the annual property distribution. The plaintiff countered by producing evidence that his net worth had fallen below $200,000, thereby discharging him of his obligation to pay the annual property distribution.

On June 14, 2002, the court issued its written memorandum of decision granting the defendant’s motion for contempt. The court; determined that even if the plaintiffs net worth had fallen below $200,000, the plaintiff would not be relieved from the obligation to pay. The court, relying on Schiano v. Bliss Exterminating Co., 260 Conn. 21, 41-42, 792 A.2d 835 (2002), rejected the plaintiffs attempt to attribute two different meanings to the word “discharge” in paragraph 5.3. The court, rather, found that the term “discharge,” as used in paragraph 5.3, clearly related to bankruptcy proceedings and that the plaintiff was required to make annual property distribution payments unless the obligation was discharged in bankruptcy. The court found that the plaintiff wilfully had failed to comply with the terms of the separation agreement. The court, therefore, granted the defendant’s motion for contempt and ordered the plaintiff to convey $30,000 to the defendant. This appeal followed.

On appeal, the plaintiff claims that the court improperly construed the parties’ separation agreement to require that he file for bankruptcy protection to discharge his obligation to pay the property distribution. Specifically, the plaintiff claims that the language of article V, paragraph 5.3, clearly showed that the parties intended the plaintiff to be discharged from his obligation to pay in the event that his net worth dropped below $200,000. The plaintiff claims that the court, therefore, improperly construed the agreement to require that he file for bankruptcy protection to discharge the obligation. We conclude that the word “discharge” in the parties’ separation agreement is ambiguous and, accordingly, reverse the judgment of the trial court.

First we set forth our standard of review. “[A] finding of indirect civil contempt must be established by sufficient proof that is premised upon competent evidence presented to the trial court in accordance with the rules of procedure as in ordinary cases. ... A finding of contempt is a factual finding. . . . We will reverse that finding only if we conclude the trial court abused its discretion.” (Internal quotation marks omitted.) Legnos v. Legnos, 70 Conn. App. 349, 352-53, 797 A.2d 1184, cert. denied, 261 Conn. 911, 806 A.2d 48 (2002). “To constitute contempt, a party’s conduct must be wilful. . . . Noncompliance alone will not support a judgment of contempt.” (Internal quotation marks omitted.) Gina M. G. v. William C., 77 Conn. App. 582, 590, 823 A.2d 1274 (2003). Although a finding of wilfulness as a predicate to a judgment of contempt is not barred, as a matter of law, by the fact that the terms of the judgment are ambiguous, the court may consider such ambiguity in exercising its discretion regarding a finding of wilfulness. Sablosky v. Sablosky, 258 Conn. 713, 723, 784 A.2d 890 (2001). We also may consider such ambiguity in determining whether the court has abused its discretion. Id.

In the present case, the court found that “it is clear that the term discharge relates to bankruptcy proceedings. The plaintiff must make annual property distribution payments unless that obligation is discharged in bankruptcy.” We disagree with the court’s determination that the word “discharge” in the separation agreement clearly and unambiguously related to bankruptcy proceedings. We conclude, rather, that the term “discharge” in the separation agreement is ambiguous with regard to the circumstances under which the plaintiff is entitled to discharge the obligation.

“Where a judgment incorporates a separation agreement, the judgment and agreement should be construed in accordance with the laws applied to any contract.” (Internal quotation marks omitted.) Champagne v. Champagne, 43 Conn. App. 844, 848, 685 A.2d 1153 (1996). “Where the language of the contract is clear and unambiguous, the contract is to be given effect according to its terms. . . . Although ordinarily the question of contract interpretation, being a question of the parties’ intent, is a question of fact . . . [w]here there is definitive contract language, the determination of what the parties intended by their contractual commitments is a question of law.” (Internal quotation marks omitted.) ARB Construction, LLC v. Pinney Construction Corp., 75 Conn. App. 151, 154, 815 A.2d 705 (2003). The court’s determination as to whether a contract is ambiguous is a question of law; our standard of review, therefore, is de novo. See United Illuminating Co. v. Wisvest-Connecticut, LLC, 259 Conn. 665, 669-70, 791 A.2d 546 (2002); see also ARB Construction, LLC v. Pinney Construction Corp., supra, 155.

“A contract is unambiguous when its language is clear and conveys a definite and precise intent. . . . The court will not torture words to impart ambiguity where ordinary meaning leaves no room for ambiguity. . . . Moreover, the mere fact that the parties advance different interpretations of the language in question does not necessitate a conclusion that the language is ambiguous.” (Citations omitted; internal quotation marks omitted.) United Illuminating Co. v. Wisvest-Connecticut, LLC, supra, 259 Conn. 670.

“In contrast, a contract is ambiguous if the intent of the parties is not clear and certain from the language of the contract itself. [A]ny ambiguity in a contract must emanate from the language used by the parties. . . . The contract must be viewed in its entirety, with each provision read in light of the other provisions . . . and every provision must be given effect if it is possible to do so.” (Citations omitted; internal quotation marks omitted.) Id., 670-71.

The first part of paragraph 5.3 at issue in this appeal specifically stated that “[t]his property distribution is intended to be further support for the family and shall not be dischargeable by the [plaintiff] in bankruptcy. . . .” The term “dischargeable” as used in that sentence clearly relates to the law of bankruptcy and employs a special meaning. According to the language of this sentence, the defendant is not discharged from the obligation to pay, even in the event of bankruptcy, because the property distribution is intended to be further support for the family.

The very next sentence, however, states that “[i]n the event that the [plaintiff] is physically disabled and/ or unemployable or his net worth is less than $200,000 the [plaintiff] may discharge this obligation.” The use of the term “discharge” in that second sentence appears to alter the previous sentence by employing a common, ordinary meaning to the term “discharge.” It appears that by that sentence, the parties may have created a condition subsequent that would operate to discharge the plaintiff from his obligation to pay the annual property distribution in the event that his net worth fell below $200,000, regardless of whether he filed for bankruptcy protection. See J. Calamari & J. Perillo, Contracts (4th Ed. 1998) § 11.7, p. 399. (“condition subsequent is any event the existence of which, by agreement of the parties, discharges a duty of performance that has arisen”).

Because “the intent of the parties is not clear and certain from the language ofthe contract itself"; United Illuminating Co. v. Wisvest-Connecticut, LLC, supra, 259 Conn. 670-71; we conclude that the use of the term “discharge” in the last sentence of paragraph 5.3 is ambiguous. We further conclude that because of that ambiguity and because there was evidence that the plaintiffs net worth was less than $200,000, the court abused its discretion in finding the plaintiffs noncompliance to be wilful and granting the defendant’s motion for contempt.

The judgment is reversed and the case is remanded with direction to conduct an evidentiary hearing to determine the parties’ intention relative to the term “discharge” in the last sentence of paragraph 5.3, including what act or acts would entitle the plaintiff to “discharge” and what obligation is to be discharged.

In this opinion the other judges concurred.

       The defendant failed to file an appellate brief. We therefore have considered the appeal solely on the basis of the plaintiffs brief and the record.

       The last sentence of paragraph 5.3 was handwritten and initialed by the parties.

       We note that at the initial hearing on the defendant’s motion for contempt, the court expressed its belief that the provision is ambiguous, and could not be resolved without a determination as to what was intended at the time the provision was drafted. In that regard, the court engaged in the following colloquy with counsel for the plaintiff:
      “The Court: Paragraph 5.3 and the intent of the parties in paragraph 5.3 is critical. It’s inherently inconsistent. It can’t be discharged in bankruptcy, but it can be discharged, according to [the plaintiffs counsel], sua sponte by the obligor upon meeting any one of three different contingencies, or it said it may be discharged. I need to know what they meant at the lime they entered into this—
      “[The Plaintiffs Counsel]: Yes, Your Honor.
      “The Court: — because it certainly affects property rights of both of these parties.”
      The court then ordered counsel to subpoena the attorneys who prepared the agreement so that they could testify regarding “what was meant at the time of this decree because it’s ambiguous as far as the court’s concerned.” (Emphasis added.)
      Attorney Bonnie Amendola, the partner of the defendant’s former attorney, testified at the subsequent hearing on the defendant’s motion for contempt. Amendola testified that she was present on the date of the actual dissolution and that it was her handwriting on the provision at issue in the separation agreement. The evidence presented at the hearing did not otherwise relate to the specific issue of what the parties intended by that provision.

       “ [T]he language used must be accorded its common, natural, and ordinary meaning and usage where it can be sensibly applied to the subject matter of the contract. . . . Where a technical or special meaning is intended by the language of the contract, that meaning, and not the language’s ordinary usage, shall be employed.” (Citation omitted; internal quotation marks omitted.) ARB Construction, LLC v. Pinney Construction Corp., supra, 75 Conn. App. 154.

       Section 523 (a) of title 11 of the United States Code provides in relevant part: “A discharge under section 727, 1141, 1228 (a), 1228 (b), or 1328 (b) of this title does not discharge an individual debtor from any debt ... (5) to a spouse, former spouse, or child of the debtor, for alimony to, maintenance for, or support of such spouse or child, in connection with a separation agreement, divorce decree or other order of a court of record . . . .”

       “Discharge” is defined by the Merriam-Webster Dictionary as “to relieve of a charge, load, or burden,” “to release from an obligation” and “to set aside.”

       The interpretation is supported by the following colloquy between the plaintiff and his counsel on April 9,1999, regarding the property distribution as set forth in paragraph 5.3:
      “[The Plaintiffs Counsel]: Now, there’s going to be a lump sum property distribution, and you’re going to give your wife the sum of $300,000, payable at the rate of $30,000 per year for a period of ten years, commencing on or before December 31, 1999, and for each successive year thereafter. This property distribution is intended to be further support for the family and shall not be dischargeable by you in bankruptcy. Do you understand that?
      “[The Plaintiff]: Yes.
      “[The Plaintiff’s Counsel]: Now, this is a lump sum property distribution, so it is not tax deductible to you, nor is it taxable to your wife. Do you understand that?
      “[The Plaintiff]: Yes.
      “[The Plaintiffs Counsel]: Okay. Now, in the event that you are physically disabled and unemployable, or if your net worth is less than $200,000, you may discharge this obligation to your wife. Do you understand that?
      “[The Plaintiff]: Yes, I understand.
      “[The Plaintiffs Counsel]: Okay.”

       We also note that there was no evidence before the court regarding the parties’ intent as to whether, in the event that the plaintiffs net worth fell below $200,000, he would be discharged permanently from the obligation or merely for the period of time that his net worth was determined to be less than $200,000.


author: MIHALAKOS, J.

text:
    VELVET CLAUD-CHAMBERS ET AL. v. CITY OF WEST HAVEN ET AL.
    (AC 22792)
    Schaller, Mihalakos and Hennessy, Js.
    Argued June 6
    officially released September 16, 2003

      John R. Williams, for the appellants (plaintiffs).

      Paul J. Dorsi, assistant corporation counsel, with whom, on the brief, was Michael P. Farrell, corporation counsel, for the appellee (named defendant).

      Kenneth J. Mastroni, for the appellee (defendant West Haven Redevelopment Agency).
   Opinion

MIHALAKOS, J.

This is an appeal from the summary judgment rendered against the plaintiffs and in favor of the defendants in an inverse condemnation proceeding. Specifically, the plaintiffs claim that an unconstitutional taking of their private property occurred and that the trial court improperly determined that there were no genuine issues of material fact. We affirm the judgment of the trial court.

The following facts and procedural history are relevant to our resolution of the plaintiffs’ appeal. On June 23, 1998, the defendants filed with the court a statement of compensation for the taking of the plaintiffs’ properties. On August 23, 1998, a certificate of taking was filed. No appeal was ever filed by the plaintiffs. In fact, the plaintiffs admit that the defendants have filed the certificate of compensation with the Superior Court.

The plaintiffs initiated the present action by filing a complaint dated September 1, 1999. The plaintiffs alleged that starting in 1993 and continuing until June 28,1999, the defendants engaged in a course of conduct that caused a substantial destruction of the value of the real estate owned by the plaintiffs. Such conduct included, inter alia, reducing the police presence in the neighborhood, publicly labeling the area as “blighted,” urging residents to move away from the area and threatening to take over the area by eminent domain. Those actions, according to the plaintiffs, formed the basis for their claim of inverse condemnation.

The defendants each filed a motion for summary judgment. They argued that due to the completion of the eminent domain proceedings, the plaintiffs were precluded from bringing an inverse condemnation action. In support of their argument, the defendants relied on Russo v. East Hartford, 4 Conn. App. 271, 493 A.2d 914 (1985). The court granted the defendants’ motions and rendered judgment as a matter of law. This appeal followed.

At the outset, we set forth the applicable standard of review and legal principles that govern our resolution of the plaintiffs’ appeal. “Our standard of review of a court’s decision to grant a motion for summary judgment is well established. Practice Book § 17-49 provides in relevant part that summary judgment shall be rendered forthwith if 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. . . .

“On appeal, [w]e must decide whether the trial court erred in determining that there was no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. . . . Because the trial court rendered judgment for the [defendant] as a matter of law, our review is plenary and we must determine whether the legal conclusions reached by the trial court are legally and logically correct and whether they find support in the facts set out in the memorandum of decision of the trial court.” (Internal quotation marks omitted.) Ghent v. Meadowhaven Condominium, Inc., 77 Conn. App. 276, 281-82, 823 A.2d 355 (2003).

An inverse condemnation proceeding is a remedy to be used only when the governmental authority has not exercised its right to eminent domain. Bauer v. Waste Management of Connecticut, Inc., 234 Conn. 221, 249-50 n.15, 662 A.2d 1179 (1995); see also Agins v. Tiburon, 447 U.S. 255, 258 n.2, 100 S. Ct. 2138, 65 L. Ed. 2d 106 (1980); United States v. Clarke, 445 U.S. 253, 255-58, 100 S. Ct. 1127, 63 L. Ed. 2d 373 (1980); 27 Am. Jur. 2d 344-45, Eminent Domain § 826 (1996). With the foregoing background in mind, we now address the specifics of the plaintiffs’ appeal.

Simply put, the plaintiffs claim that the court improperly determined, as a matter of law, that they were precluded from bringing an action for inverse condemnation after eminent domain proceedings had been concluded. We disagree and conclude that the court properly determined that Russo v. East Hartford, supra, 4 Conn. App. 271, controls the present appeal.

In Russo, the plaintiffs claimed that various regulations affected their land from the date that those regulations were instituted until the date of the actual condemnation so as to amount to an unconstitutional taking. Id., 273. This court, in affirming the judgment rendered in favor of the defendants, stated: “Where our statutes provide an efficacious means for assuring just compensation, that procedure will be followed. . . . The statutory procedure under which the plaintiffs [previously] proceeded . . . General Statutes §§ 8-129 to 8-133 . . . provides an efficient procedure for vindicating the common law right to compensation for a taking of property by eminent domain. . . . We see no justification under the facts of this case for the institution of an independent action which seeks, in essence, only to relitigate the issues . . . .” (Citations omitted; emphasis added.) Russo v. East Hartford, supra, 4 Conn. App. 274.

In the present case, the plaintiffs received just compensation through the condemnation proceedings and chose not to challenge the value assigned to the property during those proceedings. Furthermore, they failed to challenge the valuation pursuant to General Statutes § 8-132. If the plaintiffs were unsatisfied with the compensation that they received, an appeal should have been taken during the compensation process. The plaintiffs’ inverse condemnation claim would serve only to relitigate the issues that were resolved in the eminent domain action. We agree with the statement of the defendants, made in their brief, that “the fact that the plaintiffs chose not to pursue their remedies pursuant to . . . §§ 8-129 to 8-133 is fatal to their claim.” There can be no valid inverse condemnation claim when the property in question already has been taken by eminent domain. Our holding in Russo v. East Hartford, supra, 4 Conn. App. 271, controls our resolution of the plaintiffs’ appeal.

The judgment is affirmed.

In this opinion the other judges concurred.

       The plaintiffs are the owners of various condominium units in West Haven. In addition to Velvet Claud-Chambers, the other plaintiffs in this appeal are Deborah P. Cordon, Ellis Gamble, Jr., Carol F. Gaudio, Pasquale R. Gaudio, Rose Gray, Thomas C. Guernsey, Edwin H. Matasik, Ali Mohseni, Ali A. Mohseni, Janice V. Page, Robert E. Page, Mieczyslaw Ponarski, Thomas J. Skibitcky, Thomas J. White, Deanna Williamson and Patricia A. Zapata.

       The defendants are the city of West Haven and the West Haven Redevelopment Agency. On appeal, the city adopted the brief filed by the West Haven Redevelopment Agency.

       The plaintiffs argue in their brief that summary judgment is not appropriate for “complex” cases such as the present appeal. Our Supreme Court has recently stated that “as a matter of law, no case is too complex for summary judgment.” Gould v. Mellick & Sexton, 263 Conn. 140, 147, 819 A.2d 216 (2003).

       General Statutes § 8-129 provides in relevant part that “[t]he redevelopment agency shall determine the compensation to be paid to the persons entitled thereto for such real property and shall file a statement of compensation, containing a description of the property to be taken and the names of all persons having a record interest therein and setting forth the amount of such compensation . . . .”

       General Statutes § 8-129 provides in relevant part: “Not less than twelve days nor more than ninety days after such notice and such statement of compensation have been so served . . . the redevelopment agency shall file with the clerk of the superior court a return of notice . . . and, upon receipt of such return of notice, such clerk shall, without any delay or continuance of any kind, issue a certificate of taking setting forth the fact of such taking, a description of all the property so taken and the names of the owners and of all other persons having a record interest therein. The redevelopment agency shall cause such certificate of taking to be recorded .... Upon the recording of such certificate, title to such property in fee simple shall vest in 1he municipality, and the right to just compensation shall vest in the persons entitled thereto. . . .”

       General Statutes § 8-132 (a) provides in relevant part that “[a]ny person claiming to be aggrieved by the statement of compensation filed by the redevelopment agency may, at any time within six months after the same has been filed, apply to the superior court. . . for a review of such statement of compensation . . . .”


author: DiPENTIMA, J.

text:
    WILLIAM L. ANKERMAN v. JACK C. MANCUSO
    (AC 23369)
    Lavery, C. X, and DiPentima and McLachlan, Js.
    Argued June 9
    officially released September 16, 2003

      William L. Ankerman, pro se, the appellant (plaintiff).

      James Colin Mulholland, for the appellee (defendant).
   Opinion

DiPENTIMA, J.

The plaintiff, William L. Ankerman, appeals from the judgment rendered in favor of the defendant, Jack C. Mancuso. The issue before this court is whether the plaintiffs violation of the Rules of Professional Conduct is a legally sufficient special defense that bars the enforcement of a promissoiy note and mortgage held by the plaintiff and signed by the defendant. The trial court found that it was. We disagree and reverse the judgment of the trial court.

The following facts and procedural histoiy are pertinent to the plaintiffs appeal. At all times relevant to the action, the plaintiff was an attorney licensed to practice law in Connecticut. The defendant was a client of the plaintiff from October 6, 1988, until August 12, 1991. The plaintiff brought his action to enforce a note executed by the defendant on July 24,1990, and claimed principal due of $6218.81 with accrued interest and costs totaling $18,834.98 as of the date of trial. Although the face amount of the note is $50,000, the note specifically provided that the actual amount payable was $6218.81 with interest based on attorney’s fees owed as of June 4, 1990. The note was accompanied by a mortgage arid provided that the plaintiff could seek to enforce the note if title to the mortgaged property was transferred. The mortgage is on property at 17-19 Keller Avenue in Enfield. At the time that the note and mortgage were drafted, the plaintiff sent a letter to the defendant, encouraging him to consult another attorney regarding the note and mortgage. Although the defendant returned the executed note and mortgage along with the recording fee to the plaintiff in August, 1990, the plaintiff did not record the mortgage until June 10, 1991, the same day the plaintiffs motion to withdraw as the defendant’s counsel appeared on the court’s short calendar.

While the note and mortgage were being executed, the plaintiff was representing the defendant in an appeal from a judgment concerning the Keller Avenue property. The appeal challenged the trial court’s judgment ordering the defendant to deed one-half interest in the property to Kim Dorsey. See Dorsey v. Mancuso, 23 Conn. App. 629, 583 A.2d 646 (1990), cert. denied, 217 Conn. 809, 585 A.2d 1234 (1991). Dorsey cross appealed, claiming entitlement to full title. In December, 1990, this court reversed the judgment, remanded the case to the trial court and ordered that judgment be rendered transferring full title to Dorsey. Id., 635-36. At the time of this trial, despite the rescript in that case, the defendant continued to own the Keller Avenue property. One month after the plaintiff ceased representing the defendant, the defendant wrote a letter to the plaintiff, demanding the removal of the mortgage, but the mortgage remained on the property as a second mortgage.

On February 25,1997, the plaintiff brought his action in a single count complaint. The defendant filed several special defenses and a two count counterclaim. The case proceeded to trial, and the court issued an oral decision in favor of the defendant on the complaint and in favor of the plaintiff on the counterclaim. The court found that the defendant had not paid the plaintiff the $6218.81 incurred for legal services rendered. The court then turned to the first special defense, which alleged a violation of rule 1.8 of the Rules of Professional Conduct as a bar to the enforcement of the note and mortgage, and found that the plaintiff had violated the ethical rule by taking a note secured by a mortgage on property that was the subject of the appeal he was prosecuting on the defendant’s behalf.

The court concluded that the plaintiff had violated rule 1.8 and the public policy underlying that rule. The court noted that the underlying public policy stems from the courts’ disapproval of champerty and maintenance, and “an attempt to avoid unnecessary conflicts of interest between attorneys and clients. The possibility of an adverse effect upon the exercise of free judgment by a lawyer on behalf of his client during litigation generally makes it undesirable for the lawyer to acquire a proprietary interest in the outcome of the litigation . . . .” The court further relied on Schulman v. Major Help Center, Superior Court, judicial district of Hartford-New Britain at Hartford, Docket No. 569027 (December 24, 1997) (21 Conn. L. Rptr. 1), in which the court stated that it is Connecticut’s public policy to protect the public and judicial integrity by requiring attorneys to act ethically. The court, therefore, would not enforce the note and mortgage, which it found violated public policy. This appeal followed.

I

The plaintiff first claims that the court improperly held that a violation of the Rules of Professional Conduct, which occurred six years earlier, was legally sufficient to prevent the enforcement of a promissory note and the accompanying mortgage. He asserts, rather, that a violation of an ethical rule does not, by itself, form the basis for civil liability or augment any substantive legal duty of attorneys. Therefore, we address whether a violation of the Rules of Professional Conduct is legally sufficient to preclude the enforcement of the note and mortgage on the defendant’s property. We conclude that it is not.

We first set forth the applicable standard of review. “The trial court’s legal conclusions are subject to plenary review. [W]here the legal conclusions of the court are challenged, we must determine whether they are legally and logically correct and whether they find support in the facts set out in the memorandum of decision.” (Internal quotation marks omitted.) Roach v. Ivari International Centers, Inc., 77 Conn. App. 93, 99, 822 A.2d 316 (2003).

The court clearly set forth its basis for finding the note and mortgage unenforceable. The court determined that the note and mortgage were so related as to be one transaction, and that because the mortgage constituted a violation of rule 1.8 (j) of the Rules of Professional Conduct, it would be against public policy to allow enforcement of the note. The court also recognized that the public policy is to protect the public and the judicial process by requiring ethical conduct by lawyers representing clients.

The plaintiff, however, argues that Noble v. Marshall, 23 Conn. App. 227, 231, 579 A.2d 594 (1990), controls this matter. In Noble, we stated: “[T]he Rules of Professional Conduct do not of themselves give rise to a cause of action, even to an attorney’s client.” Id. In Gagne v. Vaccaro, 255 Conn. 390, 766 A.2d 416 (2001), our Supreme Court stated: “They are not designed to be a basis for civil liability. . . . The fact that a Rule is a just basis for a lawyer’s self-assessment, or for sanctioning a lawyer under the administration of a disciplinary authority, does not imply that an antagonist in a collateral proceeding or transaction has standing to seek enforcement of the Rule. Accordingly, nothing in the Rules should be deemed to augment any substantive legal duty of lawyers or the extra-disciplinary consequences of violating such a duty.” (Internal quotation marks omitted.) Id., 403.

In Hultman v. Blumenthal, 67 Conn. App. 613, 624, 787 A.2d 666, cert. denied, 259 Conn. 929, 793 A.2d 253 (2002), the plaintiffs argued that the attorney general had a responsibility to adhere to the Rules of Professional Conduct, and that his statements to the media violated the Rules of Professional Conduct concerning trial publicity and statements made outside the courtroom. This court stated, however, that the case was “not a review of a disciplinary hearing or the defendant’s conduct as an attorney. The preamble to the Rules of Professional Conduct provides in relevant part that a ‘[violation of a Rule should not give rise to a cause of action nor should it create any presumption that a legal duty has been breached. The Rules are designed to provide guidance to lawyers and to provide a structure for regulating conduct through disciplinary agencies. They are not designed to be a basis for civil liability.’ ” Id., 619-20 n.8; see Mozzochi v. Beck, 204 Conn. 490, 500-501, 529 A.2d 171 (1987); Standish v. Sotavento Corp., 58 Conn. App. 789, 797, 755 A.2d 910, cert. denied, 254 Conn. 935, 761 A.2d 762 (2000); Leavenworth v. Mathes, 38 Conn. App. 476, 480 n.2, 661 A.2d 632 (1995).

The court, however, relied on Schulman v. Major Help Center, supra, 21 Conn. L. Rptr. 1. In Schulman, the court explained: “It is a firmly entrenched principle of contract law that the courts will not enforce the parties’ agreement where to do so would violate principles of public policy . . . [and that doctrine] derives from the basic notion that no court will lend its aid to one who founds a cause of action upon an immoral or illegal act .... In the common law of contracts, this doctrine has served as the judicial foundation for occasional exercises of judicial power to abrogate private agreements. . . . [T]he court [has] refused to allow an attorney to recover fees based upon an agreement which violated Rule 1.5 of the Rules of Professional Conduct on the grounds that such agreement violated public policy.” (Citations omitted; internal quotation marks omitted.) Id., 2-3.

The plaintiff acknowledges that the Noble court held only that the Rules of Professional Conduct cannot form the basis of a cause of action between attorney and client, and that Noble did not concern special defenses. It is clear, however, that this logic extends to special defenses. See Rules of Professional Conduct, Scope; Noble v. Marshall, supra, 23 Conn. App. 231. The public policy underlying rule 1.8 is to prevent conflicts of interest between attorney and client. According to the scope of the Rules of Professional Conduct, the rules are not designed to augment the attorney’s legal duty and are provided to guide disciplinary agencies in regulating attorneys’ actions. Furthermore, we are not bound by the Schulman court’s holding that an ethical violation constitutes a breach of public policy and prohibits the court from enforcing a contract. Because Noble still is the precedent in these matters, we follow the rationale of that opinion.

Moreover, we note that an attorney generally is not disciplined “for any but the most obvious, egregious and public misconduct.” Statewide Grievance Committee v. Botwick, 226 Conn. 299, 307, 627 A.2d 901 (1993). The court additionally found that the “[plaintiffs] motive in obtaining the note and mortgage and recording same was to obtain and secure the payment of his legal fees. While the means violated the Rules of Professional Conduct, the motive was not improper or unjustifiable or otherwise malicious . . . .” Although we do not condone violations of the ethical rules governing attorneys, after reviewing Noble and the preamble of the Rules of Professional Conduct, and in light of the factual findings of the court, we hold that the violation of rule 1.8 (j) does not bar enforcement of the note.

II

The plaintiff next claims that the court improperly found that he took an interest in the subject matter of the litigation in violation of rule 1.8 (j) of the Rules of Professional Conduct where the mortgagor did not have a legal interest in the subject premises to convey by mortgage. The plaintiff, however, failed to brief and to explain any part of that weak argument adequately. His assertions are confusing and without guidance or legal support. “[W]e are not required to review issues that have been improperly presented to this court through an inadequate brief. . . . Analysis, rather than mere abstract assertion, is required in order to avoid abandoning an issue by failure to brief the issue properly.” (Internal quotation marks omitted.) Mattson v. Mattson, 74 Conn. App. 242, 247, 811 A.2d 256 (2002). The issue is deemed abandoned, and we will not afford it review.

We conclude that under the facts, a violation of rule 1.8 (j) of the Rules of Professional Conduct cannot be the sole basis to bar the enforcement of an otherwise valid promissory note and mortgage.

The judgment is reversed only with respect to the plaintiff’s cause of action and the case is remanded with direction to address the defendant’s remaining special defenses, numbers two through five. The judgment is affirmed in all other respects.

In this opinion the other judges concurred.

       In Dorsey v. Mancuso, 23 Conn. App. 629, 583 A.2d 646 (1990), cert. denied, 217 Conn. 809, 585 A.2d 1234 (1991), the court provides an illuminating account of the history of the defendant’s interest in 17-19 Keller Avenue in Enfield.

       The defendant alleged five special defenses: (1) the taking of the note and mortgage is unenforceable due to an ethical violation; (2) the plaintiffs mortgage is a second mortgage and is not enforceable because the plaintiff is not licensed to operate as a secondary mortgage lender; (3) the note is not supported by consideration; (4) the note is voidable pursuant to truth in lending laws; and (5) the taking of the loan is unconscionable. The defendant, further, asserted a two count counterclaim: (1) the plaintiff violated the Connecticut Unfair Trade Practices Act, General Statutes § 42-110a et seq.; and (2) the mortgage is a slander on the defendant’s title.

       Rule 1.8 Q) of the Rules of Professional Conduct provides: “A lawyer shall not acquire a proprietary interest in the cause of action or subject matter of litigation the lawyer is conducting for a client, except that the lawyer may:
      “(1) Acquire a lien granted by law to secure the lawyer’s fee or expenses; and
      “(2) Contract with a client for a reasonable contingent fee in a civil case.”

       The plaintiff also asserts that an ethical breach did not occur and, even if one had occurred, the defendant’s claim relative thereto was “unenforceable,” as it was beyond the six year limitation period set forth in Practice Book § 2-32 (2) (E). We agree with the court that Practice Book § 2-32 (2) (E) applies only to complaints filed with the statewide grievance committee and not with the Superior Court. The relevant complaint in this case was filed with the Superior Court. To the extent that the plaintiffs brief does not adequately articulate, much less address, an argument to extend that rule, we decline to explore the issue further.

       As best we can decipher, the plaintiffs argument is that there was a lis pendens on the subject property at the time that the mortgage was executed, and this court’s holding in Dorsey v. Mancuso, supra, 23 Conn. App. 635-36, ordering the transfer of full title of the property to Dorsey related back to the lis pendens. Therefore, he argues, the underlying deed was null and void so that the defendant mortgagor had no interest in the property.