text:
    Alfred P. Cassella, Jr. v. Civil Service Commission of the City of New Britain
    (3189)
    Hull, Spallone and Daly, Js.
    Argued April 9—decision
    released June 25, 1985

      Edward J. Daly, Jr., for the appellant (plaintiff).

      Joseph E. Shelly, Jr., for the appellee (defendant).
   Hull, J.

The plaintiff appeals from the judgment of the trial court sustaining the decision of the civil service commission which upheld the decision of the board of fire commissioners to reduce the plaintiffs rank in the fire department from lieutenant to private. We find no error.

The underlying facts are not in dispute. The plaintiff, Alfred P. Cassella, Jr., began work with the New Britain fire department in 1970. On November 18, 1975, he took promotional examination P-557 after which he was promoted to fire lieutenant on April 25, 1976. By letter dated January 26,1981, the board notified Cassella, Jr., to attend a hearing to respond to charges that written examination P-557 had been fixed for his benefit by Alfred Pettinelli, then personnel director of the city, and that Cassella, Jr., had thereby violated the city charter and civil service rules. At the hearing before the board on March 23,1981, documentary evidence, tending very strongly to prove that such a rigged examination had taken place, was admitted over the plaintiffs objection. This evidence may be summarized as follows: (1) guilty plea and a transcript from proceedings in which Alfred P. Cassella, Sr., the plaintiff’s father, had pleaded guilty to one count of perjury in violation of General Statutes § 53a-156, which arose from Cassella, Sr.’s denying, before a one-man grand jury investigating New Britain civil service matters, that he gave $1000 in cash to Fire Chief Raymond Galati to pay to Pettinelli for fixing his son’s promotion to lieutenant; (2) an affidavit of John Refiner, a chemist and expert witness, stating that at least three and possibly as many as thirteen answers on the answer sheet submitted by Cassella, Jr., for examination P-557 were filled in while the grading master was in place over the answer sheet; (3) Pettinelli’s affidavit stating that examination P-557 was fixed for Cassella, Jr., as a personal favor for Raymond Galati and stating that Pettinelli gave Galati blank answer sheets with Cassella, Jr.’s application number written on them and that he later filled in the blank answer sheets and substituted them for the answer sheets filled out at the time of the examination; (4) a transcript of testimony of Pettinelli in State v. Sahadi, Superior Court, judicial district of Hartford-New Britain at Hartford, Docket No. 44810 (October 13, 1982), wherein he admitted fixing examination P-557 to secure Cassella, Jr.’s promotion to fire lieutenant.

None of the declarants appeared before the board. Pettinelli and Refiner had been barred by a Superior Court “gag order” from testifying. The record is uncertain as to whether Cassella, Sr., was present. His attorney at the hearing, likewise his attorney before this court, stated to this court that Cassella, Sr., had informed him that if called he would plead the fifth amendment. There was no direct evidence of Cassella, Jr.’s involvement in this scheme. He testified unequivocally that he had no knowledge of it. The board found that the examination had been fixed by Pettinelli and that Cassella, Jr., was not a party to it. The board voted to reduce his rank from lieutenant to private, effective March 24,1981, and to allow him to take a new examination for a lieutenant’s post at any time.

Cassella, Jr., appealed his demotion to the civil service commission which sustained the board’s decision on January 5,1982. He then appealed to the Superior Court which held that he was not denied due process, that the evidence supported his demotion under applicable charter and civil service provisions, and that the notice sent to him concerning the hearing before the board was adequate.

On appeal, Cassella, Jr., claims that the court erred (1) in concluding that the plaintiff was afforded due process at the hearing before the board, and (2) in not concluding that the defendant’s finding that the plaintiff violated the city charter and personnel rules is contrary to the evidence and in excess of its authority.

‘ ‘ [Administrative tribunals are not strictly bound by the rules of evidence and . . . they may consider evidence which would normally be incompetent in a judicial proceeding, so long as the evidence is reliable and probative.” Lawrence v. Kozlowski, 171 Conn. 705, 710, 372 A.2d 110 (1976), cert. denied, 431 U.S. 969, 97 S. Ct. 2930, 53 L. Ed. 2d 1066 (1977); Balch Pontiac-Buick, Inc. v. Commissioner of Motor Vehicles, 165 Conn. 559, 570, 345 A.2d 520 (1973). “There is, moreover, no specific prohibition against hearsay evidence in the Uniform Administrative Procedure Act (UAPA), which provides that ‘[a]ny oral or documentary evidence may be received, but [that] the agency shall, as a matter of policy, provide for the exclusion of irrelevant, immaterial or unduly repetitious evidence.’ General Statutes § 4-178 (1).” Tomlin v. Personnel Appeal Board, 177 Conn. 344, 348, 416 A.2d 1205 (1979). The test of the action of a board of commissioners in a quasi-judicial hearing “is whether the plaintiff had a reasonable opportunity to hear and to be heard upon the charges preferred against him and whether the proceedings were conducted in a fair and impartial manner. Adam v. Connecticut Medical Examining Board, [137 Conn. 535, 540, 79 A.2d 350 (1951)].” Conley v. Board of Education, 143 Conn. 488, 493-94, 123 A.2d 747 (1956).

“While proceedings before zoning and planning boards and commissions are informal and are conducted without regard to the strict rules of evidence; McCrann v. Town Plan & Zoning Commission, 161 Conn. 65, 77, 282 A.2d 900 [1971]; Parsons v. Board of Zoning Appeals, 140 Conn. 290, 292, 99 A.2d 149 [1953]; nevertheless, they cannot be so conducted as to violate the fundamental rules of natural justice. Miklus v. Zoning Board of Appeals, 154 Conn. 399, 406, 225 A.2d 637 [1967]. Due process of law requires that the parties involved have an opportunity to know the facts on which the commission is asked to act, to cross-examine witnesses and to offer rebuttal evidence.” Pizzola v. Planning & Zoning Commission, 167 Conn. 202, 207, 355 A.2d 21 (1979); see also Balkus v. Terry Steam Turbine Co., 167 Conn. 170, 177, 355 A.2d 277 (1974).

Nevertheless, the leading case of Richardson v. Perales, 402 U.S. 389, 91 S. Ct. 1420, 28 L. Ed. 2d 842 (1971), sanctioned written reports from four physicians not present at a social security disability hearing, as sufficiently trustworthy substantive evidence to afford due process to the claimant. The court held that such a written report, despite its hearsay character and absence of cross-examination, may constitute substantial evidence supportive of a hearing examiner’s finding adverse to the claimant, when the claimant has not exercised his right to subpoena the reporting physician. Id., 402; see also Altholtz v. Dental Commission, 4 Conn. App. 307, 312, 493 A.2d 917 (1985). Although the clear trend of federal cases since Richardson v. Perales, supra, is toward the admission of hearsay evidence as substantial evidence if sufficiently trustworthy, the cases are far from uniform in their handling of this issue. See 3 Davis, Administrative Law (2d Ed) § 16.8.

In Carlson v. Kozlowski, 172 Conn. 263, 374 A.2d 207 (1977), the court stated that written evidence which was the only evidence probative of the plaintiffs culpability was not substantial evidence under the UAPA to support the commissioner’s finding “absent a showing, which has not been made here, that the appellant knew it would be used and failed to ask the commissioner to subpoena the declarants.” Id., 267. The Carlson court identified certain factors in Richardson v. Perales, supra, “which assured the underlying reliability and probative value of the hearsay evidence.” Carlson v. Kozlowski, supra. “Among the factors which were considered as establishing trustworthiness were: the doctors had no bias or interest in the case; the reports ‘were based on personal consultation and personal examination and rested on accepted medical procedures’ . . . there was no inconsistency on the face of the reports; and written medical reports by treating physicians have long been recognized by the courts as having inherent reliability and probative worth.” Id., 267-68.

The trial court aptly cited four pertinent Richardson factors by which it weighed the due process question involved here: (1) the availability of the witness declarant; (2) the lack of bias or interest on the part of the witness declarant; (3) the quality and probative value of the out of court statements; and (4) the nature and atmosphere of the proceeding.

The court painstakingly reviewed the hearsay evidence in light of the Richardson factors.

I

We must first consider the question of availability of the declarants. We have earlier noted that both Richardson and Carlson rest partially on the fact that the plaintiff did not use subpoena procedures available to him to secure the attendance of the nonappearing declarants. Such a reliance on this factor, however, falls far short of a holding that, where the declarants are unavailable, due process cannot be met if hearsay statements are admitted. It is noteworthy that Professor Davis, in his treatise, does not deal with this issue head-on. In discussing Blackwell College of Business v. Attorney General, 454 F.2d 928 (D.C. Cir. 1971), a case involving the admission of affidavits by former students of the college, Professor Davis refers to the following language in that opinion: “ ‘[I]f [the college] denies the truth of the evidence, [it] shall have opportunity, if it so desires, to confront and cross-examine the person or persons who supplied the evidence, unless the particular hearsay evidence is appropriate for consideration under some accepted exception to the hearsay rule.’ ” (Emphasis added.) Davis, Administrative Law § 16.8, p. 252. Of this language, Professor Davis asked: “Was the court’s guide a little too strict? If some of the students were unavailable, should their affidavits be excluded from consideration along with the other evidence?” Davis, Administrative Law, supra.

Professor Davis comments further, on the precise question involved in this case as follows: “A question which federal law still does not clearly answer is this: If the authors of the written reports had been unavailable, would the reports be substantial evidence? The three dissenters [in Richardson v. Perales] clearly would say no—they seemed to pass upon that question and they did say no. Although two more Justices might join them, the majority opinion in the Perales case seems amply to support the decision even apart from the lack of request for subpenas [sic]. The decision on the modified facts might still be six to three.

“What should it be? Views obviously differ, but here is one opinion .... No rule should exist that evidence inadmissible in a jury case may not be substantial. Substantiality of evidence should be determined by appraising it in its full context. . . . Lack of opportunity for cross-examination should be given much weight but should not be conclusive. The agency as the finder of facts may sometimes regard cross-examination or lack of it as decisive on the question whether or not a finding should be based on a written report, but that determination has to be made in each case, not by blanket rule. The test on judicial review is whether the finding is reasonable in the light of the whole record, and that is a matter for judgment in each case, not for a rule based on what evidence is admissible in a jury case.” (Emphasis added.) Davis, supra, § 16.7. Numerous factors present in this case tip the scales in favor of a holding that the plaintiff was not denied due process at the hearing: (1) The fact that the plaintiff did not subpoena Cassella, Sr., whose plea of guilty was such cogently trustworthy evidence of the fixing scheme. As a result, it cannot now be known what position he would have taken if this had occurred, and what ruling the commission would have made as to the validity of any fifth amendment claim he might have made. Thus, it cannot be said that Cassella, Sr., was unavailable. (2) The extent of the defendant’s effort to make Pettinelli and Reffner available. The record indicates that the city of New Britain sought to have Pettinelli and Reffner released from the “gag order” imposed by the grand jury, but the Superior Court, on January 28, 1981, specifically ruled that they “ARE NOT released from the order of secrecy for the purpose of allowing their testimony at administrative disciplinary proceedings in the City of New Britain.” (3) The need for the admissiblity of the hearsay evidence became of the unavailability of the declarants. We would be blind to reality if we did not recognize the difficulty of proving a case arising out of a widespread municipal corruption case. Pettinelli was the key actor in this sorry drama. His testimony was not only highly probative but was essential in this disciplinary proceeding. Refiner’s scientific testimony nailed down the maestro’s testimony and compelling testimony of the plaintiff’s father completed the evidentiary web.

II

Concerning the interest or bias of the declarants, the court admitted doubt about the questionable nature of Pettinelli’s motives. But the court found a “reassuring dose of credibility” in the corroborating statements of Cassella, Sr., and Refiner. It also considered Refiner’s statement to be significant because it was that of an unbiased professional with no interest in the outcome of the proceedings. The plaintiff argues that as the alleged mastermind of fixing in New Britain, Pettinelli had an interest in the evidence he gave in his affidavit in order to seek leniency in his own sentence. We conclude that the court properly gave weight to this consideration in concluding that the three statements were highly probative.

III

The linchpin of the due process evaluation we undertake is the trustworthiness of the hearsay evidence. “[T]he reliability of hearsay ranges from the least to the most reliable. The reliability of non-hearsay also ranges from the least to the most reliable. Therefore the guide should be a judgment about the reliability of particular evidence in a particular record in particular circumstances, not the technical hearsay rule with all its complex exceptions.” Davis, “Hearsay in Administrative Hearings,” 132 Geo. Wash. L. Rev. 689 (1964). Cases on the inadmissibility of hearsay evidence in court, although not directly in point, are highly relevant. The supreme court recently summed up the rule concerning admissibility of evidence not admissible under some recognized exception to the hearsay rule as follows:

“ ‘[Hjearsay may be admitted if there is a sufficient probability that the statement is reliable and trustworthy, if the evidence contained in the statement is necessary to resolution of the case, and if the trial court concludes that admitting the statement is in the interests of justice. 5 Wigmore, Evidence (Chadbourn Rev. 1974) § 1422, pp. 253-54. Some types of admissible hearsay occur frequently enough that certain defined exceptions to the general rule of inadmissibility have come to be recognized.’ State v. Stepney, 191 Conn. 233, 249-50, 464 A.2d 758 (1983), cert. denied, 465 U.S. 1084, 104 S. Ct. 1455, 79 L. Ed. 2d 772, reh. denied, 466 U.S. 954, 104 S. Ct. 2163, 80 L. Ed. 2d 547 (1984). The unique factual situation presented in this case does not fall neatly into one of the traditional exceptions to the hearsay rule. Therefore, our analysis must focus on (1) whether there was a reasonable necessity for the admission of the statement, and (2) whether the statement was supported by the equivalent guarantees of reliability and trustworthiness essential to other evidence admitted under the traditional hearsay exceptions. See State v. Acquin, 187 Conn. 647, 680, 448 A.2d 163 (1982), cert. denied, 463 U.S. 1229, 103 S. Ct. 3570, 77 L. Ed. 2d 1411 (1983); State v. Reardon, 172 Conn. 593, 598, 376 A.2d 65 (1977); Tait & LaPlante, Handbook of Connecticut Evidence § 11.25 (1984 Sup.); see also Fed. R. Evid., rules 803 (24), 804 (b) (5).” State v. Sharpe, 195 Conn. 651, 664-65, 491 A.2d 345 (1985); cf. State v. DeFreitas, 179 Conn. 431, 426 A.2d 799 (1980) (admissibility, as exception to hearsay rule, of statements against penal interest exculpatory to the defendant); State v. Gold, 180 Conn. 619, 431 A.2d 519, cert. denied, 449 U.S. 920, 101 S. Ct. 320, 66 L. Ed. 2d 148 (1980) (rule allowing statements against interest in the nature of third party confessions expanded to allow for admission of other statements against interest), in which the declarants were unavailable to be called as witnesses.

Concerning the inherent quality and probative value of the hearsay statements, the court noted that they were made by three persons: Pettinelli, Reffner, and Cassella, Sr.; that Pettinelli’s affidavit is “most definite” and recounts, in detail, both the identity of the go-between and the method used to alter the examination results; that these details are substantially corroborated by statements of the plaintiff’s father and Reffner; and that these factors in combination give a high degree of probative value to the statement.

We can only add, concerning the quality and probative value of this statement, that the second and third Richardson factors cited in Carlson relate to this subject and were fully satisfied in this case. The affidavits were obviously based on the personal activities, knowledge, and observations of all three declarants. Concerning inconsistency on the face of the reports, the only one apparent is that Pettinelli’s affidavit says that the examination was fixed as a favor to Raymond Galati while the statement of facts by the state’s attorney, not denied by Cassella, Sr., when he pleaded guilty to perjury, claimed that Cassella, Sr., paid $1000 to Pettinelli through Galati for the examination fixing. This inconsistency does little to shake the probative value of the statements, all of which dovetail together like an evidential jigsaw puzzle supportive of the existence of the fixing scheme.

IV

Concerning the atmosphere at the hearing, the plaintiff claims strongly that it was adversary and hostile. An examination of the transcript of the hearing does not support this claim. The court points out that the plaintiff was exonerated of any fraud or wrongdoing. The board ordered his demotion from a promotion based on an invalid examination. The court found that the board adopted “a more adjudicative, as opposed to an adversarial role.” We can only add to this conclusion the fact that the board, in an apparently conciliatory gesture, notified the plaintiff that he could take the promotion examination again at any time. We cannot say, on this record, that the court did not fairly evaluate this prong of the Richardson criteria.

The plaintiff relies on two cases to vitiate the effect of Richardson v. Perales, supra. The first is Greene v. McElroy, 360 U.S. 474, 79 S. Ct. 1400,3 L. Ed. 2d 1377 (1959), which involved the revocation of the petitioner’s security clearance as a result of which he lost his job in aeronautical engineering involving defense-related work. The evidence against him at the hearing concerned association with communists. No witnesses were presented against him. The government relied on confidential reports never made available to him. Of necessity, the Supreme Court held that the denial of Greene’s right of confrontation and concommitant right of cross-examination failed to comport with traditional ideas of fair procedure so that the administrative hearings failed to meet due process standards. That this case involving confidential sources is light years away from the plaintiff’s situation requires no further discussion.

The plaintiff argues that the case of Goldberg v. Kelly, 397 U.S. 254, 262-63, 90 S. Ct. 1011, 25 L. Ed. 2d 287 (1970), supports his position. In Goldberg, the Supreme Court held that a welfare recipient must have an opportunity for an evidentiary hearing before he could be terminated from welfare. In so holding, the court held that “due process requires an opportunity to confront and cross-examine adverse witnesses.” Id., 269. We do not consider Goldberg controlling in this case. It had to do with termination of AFDC benefits without prior notice. The plaintiff here was reduced in rank but was not terminated from the position he lawfully held. He had adequate notice. “These decisions underscore the truism that ‘ “[d]ue process,” unlike some legal rules, is not a technical conception with a fixed content unrelated to time, place and circumstances.’ Cafeteria Workers v. McElroy, 367 U.S. 886, 895, 81 S. Ct. 1743, 6 L. Ed. 2d 1230 (1961). ‘[D]ue process is flexible and calls for such procedural protections as the particular situation demands.’ Morrissey v. Brewer, 408 U.S. 471, 481, 92 S. Ct. 2593, 33 L. Ed. 2d 484 (1972). Accordingly, resolution of the issue whether the administrative procedures provided here are constitutionally sufficient requires analysis of the governmental and private interests that are affected. Arnett v. Kennedy, [416 U.S. 134, 167-168, 94 S. Ct. 1633, 40 L. Ed. 2d 15 (1974)] (Powell, J., concurring in part); Goldberg v. Kelly, supra, at 263-266; Cafeteria Workers v. McElroy, supra, at 895. More precisely, our prior decisions indicate that identification of the specific dictates of due process generally requires consideration of three distinct factors: First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government’s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail. See, e.g., Goldberg v. Kelly, supra, at 263-271.” Mathews v. Eldridge, 424 U.S. 319, 334-35, 96 S. Ct. 893, 47 L. Ed. 2d 18 (1976).

Although Mathews v. Eldridge, supra, involved the need for a hearing before an initial determination of termination of social security disability benefits, the standards it enunciates are controlling in any due process case. We consider the three Mathews criteria as follows: (1) The private interest which will be affected by the official action is substantial and entitled to due process protection. This is not disputed in this case. (2) The risk of erroneous deprivation of such interest through the procedures used and the probable value, if any, of additional or substitute procedural safeguards. In view of the ineluctable nature of the documentary evidence, we find the risk of erroneous deprivation of Cassella, Jr.’s interest to be minimal. Since the defendant could not get the gag order on Pettinelli and Refiner lifted, we can find no additional or substitute procedural safeguards that should have been employed. (3) The government’s interest, including the function involved. The interest of the city of New Britain in ridding its fire department of an officer whose promotion had been bought is self-evident.

In the final analysis, due process must be evaluated in context. We take judicial notice of the far-reaching fixing scandals that convulsed New Britain through several years of grand jury investigation and criminal charges arising from it. We recognize the disgrace and broken lives that followed. A highly charged atmosphere prevailed. The need to restore integrity in the civil service was paramount. The city was not able to present Pettinelli and Reffner in person. Under all of the circumstances, the board and all concerned with the action taken against the plaintiff conducted themselves in an evenhanded and reasonable manner. The plaintiff was afforded a fair and impartial hearing and was not deprived of due process of law by the written hearsay evidence admitted by the board.

The plaintiffs second issue is that the board’s finding that Cassella, Jr., violated the city charter and personnel rules, is contrary to the evidence and in excess of its authority. He points out that he was charged before the board with violation of Section 411 of the charter which sets forth practices prohibited in connection with civil service examinations and with violations of Rule XIII of the rules of the civil service commission. These sections concern employee misconduct. He was accused of his own violations but the board found that he was not involved in the fixing of the examination.

The court concluded that the notice was sufficiently detailed so that Cassella, Jr., was fully apprised, well in advance, of precisely what the board would consider so that he was enabled to prepare his defense. We agree. “The plaintiff was adequately apprised of the issue to be determined or reviewed and [he] had an opportunity to present [his] position . . . .” Finkenstein v. Administrator, 192 Conn. 104, 112, 470 A.2d 1196 (1984); see also Hart Twin Volvo Corporation v. Commissioner of Motor Vehicles, 165 Conn. 42, 45, 327 A.2d 588 (1973).

Finally, the plaintiff claims that the charter and rules permit adverse personnel action only in case of misconduct of an employee. The court found that Cassella, Jr. had been demoted for just cause despite the fact that he personally had been found innocent of wrongdoing. We agree with the court’s analysis.

Section VII of the Commission rules makes a competitive examination a prerequisite to promotion within the department. The great significance of such a provision is made clear in Ziomek v. Bartimole, 156 Conn. 604, 610, 244 A.2d 380 (1968): “The object of providing for civil service examinations is to secure more efficient employees, promote better government, eliminate as far as practicable the element of partisanship and personal favoritism, protect the employees and the public from the spoils system and secure the appointment to public positions of those whose merit and fitness have been determined by proper examination.” Strict compliance with the law concerning examination requirements is necessary. Resnick v. Civil Service Commission, 156 Conn. 28, 32, 238 A.2d 391 (1968). The board’s action was based on the provisions of Section 392 of the Merit Act provisions of the city charter which provides: “No person holding, by final appointment, an office or position classified and graded under the provisions of this act shall be removed, discharged or reduced in rank or pay, except for just cause . . . .” The dishonest examination procedures were clearly just cause to reduce Cassella, Jr., in rank.

The situation would be different if the board sought to dismiss or suspend Cassella, Jr. Such action would require a finding of misconduct by the employee. Rule XIII of the commission provides that the board may “discharge or suspend without pay” an employee who commits any one of certain specified acts. Since no such discharge or suspension was invoked here, this rule of the commission did not come into play.

The charter and rules, when read together to achieve their intended result, make it crystal clear that the initial promotion cried out for reduction in rank to the position Cassella, Jr., originally honestly achieved. To rule otherwise would strike a blow at the integrity of governmental service under merit system provisions. Neither the law nor common sense requires such a conclusion.

There is no error.

In this opinion the other judges concurred.

       So styled to distinguish him from his father, Alfred P. Cassella, Sr. The trial court’s judgment named the plaintiff as Alfred Cassella.

       As the court noted, the defendant civil service commission made no findings of fact and, in effect, simply affirmed the board’s findings and procedures. Thus, although we will refer to the commission’s findings, any such reference must relate back to the findings of the board.

        Richardson v. Perales, 402 U.S. 389, 407, 91 S. Ct. 1420, 28 L. Ed. 2d 842 (1971), distinguished Goldberg v. Kelly, 397 U.S. 254, 90 S. Ct. 1011, 25 L. Ed. 2d 287 (1970), on similar grounds. It also distinguished that case on the ground that credibility and veracity were at issue as they must be in many termination proceedings. This was not the case in Richardson v. Perales, supra. The distinction is not entirely valid in the present case. Credibility was a minor factor in Reffner’s testimony and was minimal in Cassella, Sr.’s testimony, but it certainly was a major factor in Pettinelli’s testimony.

       Section 411 of the New Britain Charter provides: “No person shall deceive or obstruct any applicant in respect to his or her right of test under the provisions of this chapter or falsely make, grade, or estimate or report upon the test or standing of any person tested hereunder, or aid in so doing, or furnish to any person, except in answer to inquiries of the commission, any special information for the purpose of either improving or injuring the rating of any such applicant for appointment, employment, or promotion. No applicant shall deceive the board for the purpose of improving his chances or prospect for appointment or promotion. No person shall solicit, orally or by letter, and no applicant or employee shall receive or solicit or be in any manner concerned in the receiving or soliciting of, any money or valuable thing from any official or any employee holding a position in the classified service for any political party or purpose. No person shall use or promise to use his influence or official authority to secure any appointment or promotion or prospect of appointment or promotion to any position classified under this chapter. No official or employee shall, by means of threats or coercion, induce or attempt to induce any person holding a position in the classified service to resign his position or to take a leave of absence from duty or to waive any of his rights under this chapter. A resignation executed previous to appointment shall be of no effect.”

       Rule XIII of the Rules of the Civil Service Commission provides, in pertinent part:
      “1. An appointing authority shall discharge or suspend without pay pending investigation, any employee in the classified service for any of the following causes:
      (1) Prohibited political activity as defined in Section 16 of the Merit Act.
      (2) Disloyalty to the United States or membership in any organization declared to be subversive by the United States Department of Justice.
      (3) Conviction of a crime involving moral turpitude.
      (4) Conduct towards superiors, subordinates, co-workers, prisoners, inmates or the public unbecoming an officer or employee of the City of New Britain.
      (5) Two successive efficiency ratings below 60 on a scale of 100 provided the appointing authority has notified the employee in writing immediately following his first rating of less than 60.
      (6) Intoxication or unseemly conduct on duty or elsewhere so as to reflect discredit upon the city.

        (7) Wilful neglect or misuse of any city property, equipment, materials or supplies.
      (8) Fraud or cullusion [sic] in connection with any examination or appointment in the classified service.
      (9) Deliberate violation of any law or rule pertaining to or affecting employment in the city service.
      (10) Commission of a criminal or immoral act.”

       The notice of January 26, 1981 advised Cassella that a hearing would be held to consider the following allegations:
      "The written examination, P-557, given on November 18,1975, for the position of Lieutenant in the Fire Department was fixed for you. Alfred ‘S’ Pettinelli, then Personnel Director for the City, provided a blank answer sheet to Raymond Galati, then a member of the Fire Department, upon which you placed your examination application number. This answer sheet was returned by Galati to Pettinelli, who substituted it for the answer sheet completed by you at the time of the examination. You received the grade of 75 on the written examination and were appointed a Fire Lieutenant on April 25, 1976.”


source: Caselaw Access Project

author: Spallone, J.

license: Public Domain

text:
    Guaranty Bank and Trust Co. v. Victor J. Dowling
    (2536)
    Hull, Boeden and Spallone, Js.
    Argued March 14
    decision released July 2, 1985

      Louis B. Blumenfeld, with whom, on the brief, was Ellen M. Burns, for the appellant-appellee (defendant).

      Samuel B. Feldman, with whom were Linda B. Meyers and, on the brief, Scott M. Schwartz, for the appellee-appellant (plaintiff).
   Spallone, J.

The plaintiff brought this action to collect from the defendant the amount due under a promissory note which the defendant endorsed. The facts, insofar as they are undisputed, are as follows.

On February 4,1974, Route 156 Service Corporation (the maker) executed a promissory note to the order of the plaintiff in the amount of $5000. The defendant signed the back of the note as endorser. The principal of the note was to be repaid over a twelve month period, ending on February 15, 1975. The defendant was the attorney for, and had been an officer of, the maker. The maker defaulted on the note in November, 1974, at which point $1795.16 remained outstanding. In November, 1975, the plaintiff debited that amount from an account of a partnership in which the defendant had an interest, and returned the note to the maker bearing the legend “paid in full.” Upon realizing that the debit was improper, the plaintiff restored the funds to that account. The note, which was never returned to the plaintiff, remained unpaid. The defendant knew that the note was never paid, because he received the bank statements of the partnership and initiated the restoration of the funds to the partnership account.

On February 9,1976, the plaintiff brought this action against the defendant, as endorser, for payment of the outstanding principal as well as interest and attorney’s fees. After a trial to the court, judgment was rendered for the plaintiff in the amount claimed due under the note. The court, however, denied the plaintiff’s request for interest and attorney’s fees. From that judgment, the defendant appeals and the plaintiff cross appeals. The cross appeal is restricted to the issue of whether the trial court erred in refusing to award the plaintiff interest and attorney’s fees.

I

The Appeal

On appeal, the defendant has raised six claims of error. Three of the claims are disposed of by our resolution of the question of whether the cancellation of the note was unintentional. The remaining issues are whether the trial court erred in allowing the plaintiff to recover because it did not prove possession or ownership of a lost instrument; in allowing the plaintiff to recover when, by surrendering the note, it impaired the defendant’s right of recourse; and in finding that the defendant was bound by the terms of the note, rather than being exonerated from liability by a course of dealing which established the need for notice to him of default, despite the terms of the note.

We first consider whether the trial court erred in its conclusion that the cancellation of the note was unintentional. General Statutes § 42a-3-605 (1) provides that the holder of an instrument may discharge a party by “intentionally cancelling” the instrument. Under § 42a-3-601, a discharge of the principal debtor also discharges the endorser. The defendant maintains that the cancellation in this case was intentional and that the plaintiffs discharge of the maker also discharged him.

The cancellation of a negotiable instrument generally has no effect when it is made by mistake. See, e.g., First Galesburg National Bank & Trust Co. v. Martin, 58 Ill. App. 3d 113, 373 N.E.2d 1075 (1978); Richardson v. First National Bank of Louisville, 660 S.W.2d 678, 679 (Ky. App. 1983); Gibraltar Savings Assn. v. Watson, 624 S.W.2d 650, 652 (Tex. App. 1981); Reid v. Cramer, 24 Wash. App. 742, 746, 603 P.2d 851 (1979). “Mistake” is not readily susceptible of general definition. To the extent that a comprehensive definition of the term can be fashioned, it has been said that it “signifies an erroneous mental conception which influences a person to act or to omit to act . . . .”54 Am. Jur. 2d, Mistake, Accident, or Surprise § 1. Whether the plaintiff, in marking the note “paid in full” and returning it to the maker, did so on the basis of such an erroneous conception is a question of mental staté or intent. See Carter County Bank v. Craft Industries, Inc., 639 S.W.2d 661, 662 (Tenn. App. 1982); Reid v. Cramer, supra. Intent is a question of fact, and the trial court’s conclusion in that regard, if not clearly erroneous, will not be disturbed. Practice Book § 3060D; Munn v. Scalera, 181 Conn. 527, 531, 436 A.2d 18 (1980).

The trial court had before it evidence that the plaintiff surrendered the instrument believing that the debit against the partnership account had satisfied the debt. The defendant himself testified that the debit was erroneous and that “[a]fter the mistake was pointed out to [the plaintiff, it] restored the funds to the partnership account . . . . ” (Emphasis added.) The court could have reasonably inferred that the plaintiff would not have surrendered the note if it did not, in good faith, believe it had, in fact, been paid. We thus find that the trial court’s factual conclusion that the discharge was mistaken was not clearly erroneous. Practice Book § 3060D.

Having concluded that the note was cancelled by mistake, the trial court properly determined, under § 42a-3-605 (1), that the debt was unintentionally discharged. First Galesburg National Bank & Trust Co. v. Martin, supra; Carter County Bank v. Craft Industries, Inc., supra, 663. While the mistaken discharge may well have been attributable to the plaintiff’s negligence, that fact does not permit the defendant to gain a benefit to which he is not entitled, particularly without any showing that he changed his position in reliance on the plaintiffs act. Cameron State Bank v. Sloan, 559 S.W.2d 564, 568 (Mo. Ct. App. 1977); see Union & New Haven Trust Co. v. Thompson, 134 Conn. 607, 610, 59 A.2d 727 (1948). We accordingly conclude that the unintentional cancellation of the note did not discharge the defendant of his obligation as endorser.

The defendant further argues that the plaintiff is not entitled to recover on the note because it did not prove possession or ownership of a lost instrument. This argument is based on General Statutes § 42a-3-301 which provides that: “The holder of an instrument whether or not he is the owner may transfer or negotiate it and, except as otherwise provided in section 42a-3-603 on payment or satisfaction, discharge it or enforce payment in his own name.” The defendant contends that since the plaintiff was not in possession of the note, it was not a holder as that term is defined in § 42a-l-201 (20), and consequently that it could not recover as a holder under § 42a-3-301.

It is undisputed that the erroneously cancelled note was never returned by the maker to the plaintiff. The Uniform Commercial Code, however, addresses situations such as this, where the instrument sought to be enforced is unavailable, by creating an exception to the general rule that one must hold an instrument in order to enforce its payment. Section 42a-3-804 provides in part that “[t]he owner of an instrument which is lost, whether by destruction, theft or otherwise, may maintain an action in his own name and recover from any party liable thereon upon due proof of his ownership, the facts which prevent his production of the instrument and its terms. . . .’’Loss under that statute may be sufficiently established by showing that the instrument was improperly returned to the maker by the mistake of an employee. 6 Anderson, Uniform Commercial Code (3d Ed.) § 3-804:6. As we have already noted, the plaintiff: in this case established that the instrument was mistakenly surrendered to the maker and was never returned. This sufficiently establishes that the note was lost for purposes of § 42a-3-804.

In order to sue under that statute, however, the terms of the lost instrument must also be proven. The plaintiff offered into evidence a photocopy of the note. The defendant maintains that the photocopy did not provide a sufficient basis from which to conclude that it represented the terms of the note. We disagree. Although the defendant objected to the introduction of the photocopy, he offered no evidence that it was not an accurate copy nor, in fact, did he dispute its terms. While the instrument itself would clearly have been the best evidence, we accept the plaintiffs explanation of the original’s loss. Laurel Bank & Trust Co. v. Sahadi, 32 Conn. Sup. 172, 177, 345 A.2d 253 (1975). We find that the evidence of the terms of the surrendered note was clear, cogent and convincing; Lutz v. Gatlin, 22 Wash. App. 424, 428, 590 P.2d 359 (1979); and that the plaintiff was entitled to pursue this action.

The defendant next claims that the surrender of the note so impaired his right of recourse against the maker as to amount to a discharge of his liability. The defendant maintains that since the plaintiff no longer possesses the note, the plaintiff cannot transfer it to him upon payment of the amount due, and that he therefore cannot become a holder. He asserts that without having the status of holder, in any subsequent action which he might bring on the note, his chance of recovery would be so severely diminished as to completely discharge his liability.

This argument fails to acknowledge the avenue of recourse which was available to the defendant under General Statutes § 42a-3-803. That statute provides that “[wjhere a defendant is sued for breach of an obligation for which a third party is answerable ... he may give the third person written notice of the litigation .... If the notice states that the person notified may come in and defend and that if the person notified does not do so he will in any action against him by the person giving the notice be bound by any determination of fact common to the two litigations, then unless after seasonable receipt of the notice the person notified does come in and defend he is so bound.” The defendant never followed the procedure set forth in § 42a-3-803. We consequently see no merit in his assertion that the plaintiff impaired his right of recourse when he could have availed himself of the protection afforded by statute, but did not.

The defendant’s final claim of error is that a course of dealing between the parties established a procedure with regard to notice of default which prevailed over the express terms of the instrument and with which the plaintiff failed to comply. The note, in this case, provided that: “Each endorser hereby waives presentment for payment, notice of dishonor, protest and notice of protest and consents to renewal, extension or acceleration of time of payment of this note or any part thereof, all without notice.” The defendant argues that a course of dealing over a period of years between the parties had led to the “understanding” that the defendant would be notified immediately should any payment be late. He contends that the plaintiff breached that agreement by not notifying him of the maker’s nonpayment until approximately ten months after the original default, and that as a consequence of that breach, he was discharged of liability.

This claim rests upon the assumption that the trial court found that a course of dealing between the parties existed. Although the defendant testified that previous conduct between him and the plaintiff established a course of dealing requiring immediate notice to him of any default in payment, the trial court made no finding in that regard. It stated only that “[s]ueh conduct, even if true, did not govern the particular transaction which is the subject of this lawsuit . . . .” (Emphasis in original.)

We cannot resort to matters extraneous to the formal record or to facts which have neither been found by the trial court nor admitted in pleadings. Grunschlag v. Ethel Walker School, Inc., 189 Conn. 316, 320, 455 A.2d 1332 (1983); Holmes v. Holmes, 2 Conn. App. 380, 383, 478 A.2d 1046 (1984). References to testimony, even when that testimony is uncontradicted, do not constitute facts. Holmes v. Holmes, supra. In the absence of a specific finding as to whether any course of dealing had been established with regard to notice, we cannot determine whether the trial court erred in finding that such a course of dealing, if it existed, did not govern the transaction in issue. “[I]f an appellant requires amplification or clarification of the factual basis of a decision to present his claims of error he should seek a further articulation from the trial court.” Newington v. General Sanitation Service Co., 196 Conn. 81, 84, 491 A.2d 363 (1985).

On the basis of what the trial court did find, that is that the defendant was bound by the terms of the note he endorsed, we find no error. In this case, the plain meaning of the express terms of the note was the final word on the rights of the parties. Sturman v. Socha, 191 Conn. 1, 12, 463 A.2d 527 (1983); Dinardo v. Gelormino, 2 Conn. App. 275, 277, 477 A.2d 694 (1984).

II

The Cross Appeal

In its cross appeal, the plaintiff claims that the trial court erred in not awarding it either interest or attorney’s fees. We find error.

A promissory note is a contract and is enforceable as such. Appliances, Inc. v. Yost, 186 Conn. 673, 677, 443 A.2d 486 (1982). The note in this case expressly provided for the payment of interest upon default. In failing to award interest, the court in effect remade the contract. Interest is allowed on the ground of an express or implied agreement to pay it or as damages for the breach of some contract or the violation of some duty. Ruscito v. F-Dyne Electronics Co., 177 Conn. 149, 163, 411 A.2d 1371 (1979). Whether interest is a proper element of damages is primarily an equitable determination and is a matter which lies within the discretion of the trial court. State v. Stengel, 192 Conn. 484, 487, 472 A.2d 350 (1984); Perl v. Case, 3 Conn. App. Ill, 116, 485 A.2d 1331 (1985). Where, on the other hand, the parties have expressly contracted for the payment of interest, the court does not have this latitude. Where the payment of interest is contractually agreed upon, interest is recoverable. Canfield v. Eleventh School District, 19 Conn. 529, 531 (1849); Kozienieski v. Whitcomb, 29 Conn. Sup. 110, 116, 273 A.2d 895 (1970).

Similarly, where the terms of the note provide, as they do here, for the payment of attorney’s fees incurred, they are also recoverable. Mayer v. Silver, 1 Conn. App. 162, 164, 468 A.2d 1256 (1984). The language of the contract is determinative. Burr v. Lichtenheim, 190 Conn. 351, 363-64, 460 A.2d 1290 (1983). “The provision for a reasonable attorney’s fee was an integral part of the note and, like any other clause determining the amount due, could not be disregarded. . . . [T]he court had no choice but to allow a reasonable attorney’s fee as part of the debt.” Pocelli Bros. Transportation, Inc. v. Pacelli, 189 Conn. 401, 415, 456 A.2d 325 (1983).

The plaintiff’s failure to introduce any evidence at trial of the value of a reasonable attorney’s fee, moreover, does not justify the court’s refusal to make that award. “[Cjourts may rely on their general knowledge of what has occurred at the proceedings before them to supply evidence in support of an award of attorney’s fees.” Bizzoco v. Chinitz, 193 Conn. 304, 310, 476 A.2d 572 (1984). Here, as in Bizzoco v. Chinitz, supra, the “court was in a position to evaluate the complexity of the issues presented and the skill with which counsel had dealt with these issues.” Id., 311.

There is no error on the appeal.

There is error on the cross appeal and the case is remanded for further proceedings to determine the amount of interest due under the note and a proper allowance for attorney’s fees and necessary disbursements in collecting the note.

In this opinion the other judges concurred.

       General Statutes § 42a-3-605 provides as follows: “(1) The holder of an instrument may even without consideration discharge any party (a) in any manner apparent on the face of the instrument or the endorsement, as by intentionally cancelling the instrument or the party’s signature by destruction or mutilation, or by striking out the party’s signature; or (b) by renouncing his rights by a writing signed and delivered or by surrender of the instrument to the party to be discharged.”

       General Statutes § 42a-3-601 provides as follows: “(1) The extent of the discharge of any party from liability on an instrument is governed by the sections on (a) payment or satisfaction as provided in section 42a-3-603; or (b) tender of payment as provided in section 42a-3-604; or (c) cancellation or renunciation as provided in section 42a-3-605; or (d) impairment of right of recourse or of collateral as provided in section 42a-3-606; or (e) reacquisition of the instrument by a prior party as provided in section 42a-3-208; or (f) fraudulent and material alteration as provided in section 42a-3-407; or (g) certification of a check as provided in section 42a-3-411; or (h) acceptance varying a draft as provided in section 42a-3-412; or (i) unexcused delay in presentment or notice of dishonor or protest as provided in section 42a-3-502.
      “(2) Any party is also discharged from his liability on an instrument to another party by any other act or agreement with such party which would discharge his simple contract for the payment of money.
      “(3) The liability of all parties is discharged when any party who has himself no right of action or recourse on the instrument (a) reacquires the instrument in his own right; or (b) is discharged under any provision of this article, except as otherwise provided by section 42a-3-606 with respect to discharge for impairment of recourse or of collateral.”

       General Statutes § 42a-1-201 (20) defines “holder” as “a person who is in possession of a document of title or an instrument or a certificated investment security drawn, issued or endorsed to him or to his order or to bearer or in blank.”

       This claim is based on General Statutes § 42a-3-606, which provides that: “(1) The holder discharges any party to the instrument to the extent that without such party’s consent the holder (a) without express reservation of rights releases or agrees not to sue any person against whom the party has to the knowledge of the holder a right of recourse or agrees to suspend the right to enforce against such person the instrument or collateral or otherwise discharges such person, except that failure or delay in affecting any required presentment, protest or notice of dishonor with respect to any such person does not discharge any party as to whom presentment, protest or notice of dishonor is effective or unnecessary; or (b) unjustifiably impairs any collateral for the instrument given by or on behalf of the party or any person against whom he has a right of recourse.
      “(2) By express reservation of rights against a party with a right of recourse the holder preserves (a) all his rights against such party as of the time when the instrument was originally due; and (b) the right of the party to pay the instrument as of that time; and (c) all rights of such party to recourse against others.”

       Notwithstanding the express waiver provision in the instrument, we note that it is not unreasonable to assume that the defendant, by virtue of his involvement in the maker’s corporate affairs, knew that the note could not be paid from corporate funds. Although this argument was not raised by the plaintiff, there is authority for the proposition that notice of dishonor may be deemed unnecessary when the party to be charged has knowledge of facts making it probable that the primary party will not pay. See White & Summers, Uniform Commercial Code § 13-10, pp. 511-12.


author: Borden, J.

text:
    Charles DeMartin v. Yale-New Haven Hospital et al.
    (2918)
    Dupont, C.P.J., Hull and Borden, Js.
    Argued April 2—decision
    released July 2, 1985

      David M. Reilly, with whom, on the brief, was Anthony J. Lasala, for the appellant (plaintiff).

      Edward M. Sheehy, for the appellees (defendants).
   Borden, J.

This is a medical malpractice action brought by the plaintiff against a physician, Richard Babayan, and against Yale-New Haven Hospital (Yale-New Haven) as his employer. The plaintiff appeals from the judgment rendered upon a jury verdict for the defendants. We find error.

Babayan, who was employed by Yale-New Haven as an assistant surgical resident on the house staff, treated the plaintiff in the emergency room of Yale-New Haven for a lacerated forearm suffered when he fell through a screen door with a glass window. The treatment included, in general terms, irrigating, probing, suturing and resuturing the wound. After leaving the emergency room, the plaintiff saw another physician, who referred him to Marvin Arons, a plastic surgeon, who recommended surgery. During that subsequent surgery, at another hospital, Arons discovered that the plaintiffs radial nerve was severed, requiring a nerve graft from his leg.

I

The plaintiffs first, and most serious, claim arises out of a preliminary, sua sponte ruling of the trial court at the commencement of the trial. That ruling improperly and harmfully limited the plaintiffs proof even before he had offered it, and prevented him from proving some of the allegations of his complaint. An understanding of this issue requires some discussion of the plaintiff’s allegations of negligence, and of the unusual procedure by which the court dealt with them.

Among the allegations were the following: The plaintiff suffered severance of the radial nerve either when he lacerated his arm or while Babayan was probing the wounded area of the nerve. Babayan was negligent in resuturing the laceration without discovering the severed condition of the nerve, in failing to make a reasonable examination or in failing to discover and repair the severed nerve in a reasonable and a timely manner. Babayan failed to conform to the standard of care to be followed in the treatment of wounds of this nature. He failed to recognize prior to suturing that the nerve was severed and failed to make a reasonable examination following normal standards of care and treatment in such cases, so as not to miss the diagnosis of a lacerated radial nerve. The lacerated nerve should have been apparent on a professional examination and, in the exercise of reasonable care, should have been diagnosed prior to the suturing. The failure to diagnose the lacerated nerve was caused by Babayan’s failure to exercise reasonable care and to conform to the standard of care required by his professional undertaking.

The defendants did not file any requests to revise these allegations. When the case was reached for trial, the court held a conference with the attorneys, at which it requested from them, on an informal basis, copies of their proposed requests to charge in the case. The plaintiff supplied the court with a number of such proposed requests. The defendants did not.

Upon review of these proposed requests the court, sua sponte, made several oral “rulings” from the bench. Among these were that, on the basis of the plaintiff’s proposed requests, he would not be permitted to prove that Babayan was negligent in failing to obtain a consultation with another physician or to prove that Babayan negligently severed the plaintiff’s nerve, because such proof would be beyond the allegations of the complaint. When the plaintiff protested that pleadings must be construed favorably to the pleader, and that if the defendants thought that the complaint was too imprecise they could have requested its revision, the court responded: “I think products cases and malpractice cases are quite different and should be approached and treated differently by the bar. And I feel that because there are cases that are essentially technical in nature that there has to be evolved from the management of the case as it moves along, a certain flavor and a certain climate. And I don’t think it is fair at this time to expand the claims to the extent that I reacted to your Request To Charge.”

This procedure employed by the trial court resulted in prejudice to the plaintiff’s case. The conference attended by counsel was not a pretrial session within the contemplation of Practice Book § 265. Such a pretrial proceeding, if properly noticed, can result in “[simplification of the issues” and “[ajmendments to pleadings”; Practice Book § 265 (b) and (c); in which case the judge conducting the pretrial shall, in the attorneys’ presence, make and sign a complete and specific pretrial memorandum. Practice Book § 267.

The plaintiff had, prior to trial, simply complied with the request of the court to supply it with his proposed requests to charge long in advance of the point at which he was obligated to file them under Practice Book § 317. Indeed, while such an informal procedure can often be helpful to the court and can be time saving as well, a party should not be bound in advance thereby to the extent that the court bound the plaintiff here, because a party’s ultimate requests to charge will inevitably be shaped by the nature of the evidence produced during the trial. The court in effect transformed this informal procedure into a ruling on a nonexistent request to revise and a ruling on evidence which had not yet been offered and as to which no objection had yet been made.

In doing so, the court read the plaintiff’s complaint more narrowly than was warranted. The modern trend is to read pleadings broadly and realistically, rather than narrowly and technically. Fuessenich v. DiNardo, 195 Conn. 144, 150-51, 487 A.2d 514 (1985); Schenck v. Pelkey, 176 Conn. 245, 255, 405 A.2d 665 (1978); Buckley v. Lovallo, 2 Conn. App. 579, 587, 481 A.2d 1286 (1984). We are unaware of any doctrine which alters our rules of pleading in product liability and malpractice cases.

The plaintiff had alleged that his nerve was severed either when he lacerated his arm or while Babayan was probing his wound. His further allegations included several general claims of malpractice: failure to make a reasonable examination; failure to repair in a reasonable manner; failure to conform to the required standard of care in the treatment of wounds of this nature; and failure to diagnose the larcerated nerve prior to suturing in violation of the standard of care. Read fairly, broadly and realistically, these allegations were clearly sufficient to support proof of a failure to obtain a consultation and of a negligent severance of the nerve. See Mezzi v. Taylor, 99 Conn. 1, 9, 120 A. 871 (1923); Jordan v. Apter, 93 Conn. 302, 304, 105 A. 620 (1919).

The trial court then implemented its earlier ruling by sustaining an objection to evidence offered by the plaintiff. Arons was testifying for the plaintiff. He was asked whether, given the amount of medical training of Babayan, who had graduated from medical school five months before treating the plaintiff, “consultation should have been sought by the doctor in the emergency room for the purposes of finding out whether or not there is injury to the superficial nerve?” The court sustained the defendant’s objection on the ground that the information sought to be elicited was beyond the allegations of the complaint. The plaintiff excepted. This ruling was erroneous because, as we have noted, proof of Babayan’s failure to obtain a consultation was within the plaintiff’s allegations.

II

The court also erred in refusing to permit the plaintiff to call Arons as a rebuttal witness. George Terranova, a physician who was the chairman of the department of emergency medicine at Danbury Hospital, had testified for the defendants, on the basis of a lengthy hypothetical question, that Babayan’s conduct was within the standard of care. After the defendants rested, the plaintiff proposed to call Arons in rebuttal, making it quite clear that his testimony would be aimed at rebutting that of Terranova.

The court refused to permit the plaintiff to call Arons: “No. I’m not going to let Doctor Arons testify again, gentlemen. This is the oldest medical malpractice case in this judicial district. This involves an incident which occurred in nineteen seventy-five. That is eight years ago. Doctor Arons has been on the stand twice. He was on the stand one day; he was called back to finish up on another day, and I just feel that in view of the long period of time that is involved here and all things considered, I will not permit you to call him back.”

Although a plaintiff’s rebuttal testimony is ordinarily limited, within the discretion of the court, to such purposes as refuting the defendant’s evidence and impeaching or rehabilitating witnesses; State v. Peary, 176 Conn. 170, 174-75, 405 A.2d 626 (1978), cert. denied, 441 U.S. 966, 99 S. Ct. 2417, 60 L. Ed. 2d 1072 (1979); Reboni v. Case Bros., Inc., 137 Conn. 501, 508, 78 A.2d 887 (1951); DiMaio v. Panico, 115 Conn. 295, 298, 161 A. 238 (1932); Tait & LaPlante, Handbook of Conn. Evidence § 3.2; Holden & Daly, Connecticut Evidence § 11; we are unaware of any authority which permits the court to bar in advance the plaintiff from even bringing the rebuttal witness to the stand in order to offer the evidence. See Gervais v. Foehrenbach, 149 Conn. 461, 463, 181 A.2d 253 (1962). The proper procedure is to rule on the admissibility of the rebuttal testimony offered, not on the inadmissibility of the rebuttal witness because of the age of the case.

These two errors are dispositive of the appeal. We have reviewed the other claims of the plaintiff. It is not clear that the rulings at which they are aimed will recur on a new trial. Therefore, it is not necessary to discuss them.

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

In this opinion the other judges concurred.

       The plaintiff supplied his proposed requests only to the court, and not to opposing counsel, which was the procedure contemplated by the court.


text:
    Flaherty Giavara Associates, Inc. v. Architectural Registration Board of the State of Connecticut et al.
    (3287)
    Dupont, C.P.J., Borden and Spallone, Js.
    Argued April 12
    decision released July 2, 1985

      James A. Wade, with whom was Sylvia Kemp-Orino, for the appellant (plaintiff).

      Robert T. Statchen, assistant attorney general, with whom, on the brief, were Joseph I. Lieberman, attorney general, and Richard J. Lynch, assistant attorney general, for the appellees (defendants).
   Borden, J.

The plaintiff corporation appeals from the judgment of the trial court dismissing its administrative appeal from a declaratory ruling of the defendant architectural registration board. That ruling declined to recommend to the other defendant, the department of consumer protection, that the plaintiff be issued a certificate of registration for the joint practice of engineering and architecture. We find no error.

The plaintiffs predecessor corporation was formed in 1977 as a professional corporation engaged in the practice of engineering. In 1981, the plaintiff was formed as a new corporation for the purported multiple purposes of providing architectural, engineering, planning, surveying and environmental science services to the public. The plaintiffs chief executive officer, and the holders of all its voting stock, are engineers. Architects are employed by the plaintiff but none of them owns stock, voting or nonvoting, in it.

Having received approval from the board of registration for professional engineers and land surveyors to engage in the joint practice of engineering and architecture, the plaintiff sought this declaratory ruling from the architectural board that it was entitled to engage in such joint practice pursuant to General Statutes (Rev. to 1981) § 20-306b as it then existed. The board and the trial court rejected the plaintiffs interpretation of the statute, and ruled that the plaintiff is not entitled to a joint certificate. This appeal followed.

General Statutes (Rev. to 1981) § 20-306b (a) provides in pertinent part: “One or more architects, each of whom is registered under the provisions of chapter 390, and one or more professional engineers, each of whom is registered under the provisions of this chapter, may form a corporation for the joint practice of architecture and professional engineering services, provided (1) its chief executive officer and the holder or holders of the voting stock of such corporation shall be registered as architects or professional engineers under the provisions of said chapter 390 and this chapter, (2) the personnel in responsible charge of the practice of architecture for such corporation shall be registered under said chapter 390 and the personnel in responsible charge of the practice of engineering for such corporation shall be registered under this chapter, and (3) such corporation has been issued a joint certificate of authorization by the architectural registration board and the members of the board of registration for professional engineers and land surveyors designated to administer the provisions of this chapter with respect to professional engineers.” The statute sets up four requirements: (1) one or more architects and one or more engineers form a corporation for the joint practice of architecture and engineering; (2) the chief executive officer and the holders of the voting stock are registered as architects or engineers; (3) those in charge of the architects are registered as such, and those in charge of the engineers are registered as such; and (4) the corporation has received a joint certificate of authorization from both the architectural registration board and the board of registration for professional engineers and land surveyors.

The trial court interpreted the first requirement to mean that both architects and engineers must form the corporation for the joint professional practice, in the sense that both must share the control of the corporation by owning voting stock in the corporation. Although we read the opening clause of General Statutes (Rev. to 1981) § 20-306b (a), from which the first requirement stems, more narrowly than did the trial court, we reach the same conclusion, nonetheless, and thus sustain the judgment on a different ground from that used by the trial court. Progressive Casualty Ins. Co. v. DiGangi, 4 Conn. App. 137, 138, 492 A.2d 548 (1985).

We agree with the plaintiff that the first proviso of General Statutes § 20-306b (a) requires no more than that the chief executive officer and the holder of all the voting stock be either architects or engineers. Thus, the plaintiff satisfied that proviso, since its chief executive officer is an engineer and all its voting stock is owned by engineers. We also agree with the plaintiff that the opening clause of the statute does not require that each professional own voting stock in the corporation. The legislature delineated in the first proviso of the statute where the voting stock must be located.

Our disagreement with the plaintiff focuses, however, on the language of the opening clause of the statute:

“One or more [registered] architects . . . and one or more [registered] professional engineers . . . may form a corporation for the joint practice of architecture and professional engineering services . . . . ” The plaintiff argues in effect that, by virtue of having architects on its payroll as employees and offering both architectural and engineering services to the public, it has met the requirements of this part of the statute. We disagree.

General Statutes § 20-306b (a) must be read in the light of its purpose, with common sense, and to reconcile all its parts. Shelby Mutual Ins. Co. v. Della Ghelfa, 3 Conn. App. 432, 437-38, 489 A.2d 398, cert. granted, 196 Conn. 805, 494 A.2d 903 (1985). It is apparent that the purpose of the statute is to permit the two separate professions to join together in order to provide the services of both to the public under one corporate roof. Thus, the statute requires that at least one architect and at least one engineer “form a corporation.” We do not believe, however, that the legislature meant that this requirement could be met by the formation of a corporation in which an engineer owned the stock and intended to employ at least one architect. Indeed, since ordinarily the architect could not become an employee of the corporation until after its incorporation, he could not, under any sensible interpretation, be considered an architect who “form[ed] a corporation.”

Drawing on the purpose of the statute, on common sense, and on the need to reconcile all its parts, we believe that the phrase, “[o]ne or more architects . . . and one or more engineers . . . may form a corporation,” means that each such professional must own stock, voting or nonvoting, in the corporation. Thus, each such professional would be joining with the other in a common enterprise in which each has a financial stake. In this sense, each would be joining in the formation of the corporation. This sensible interpretation also reconciles that opening clause of the statute with the legislature’s focus, in the first proviso, on the ownership of “voting stock.” Although, under that proviso, the voting stock can all be owned by the members of one profession, under the opening clause of the statute some stock, voting or nonvoting, must be owned by both.

No architect owns stock, voting or nonvoting, in the plaintiff. Therefore, it did not meet the requirements of the statute.

There is no error.

In this opinion the other judges concurred.

       General Statutes § 20-306b was subsequently amended in 1983 by Public Acts 1983, No. 83-574; see General Statutes (Rev. to 1985) § 20-306b; which amendment obviated the issue raised by this case. We refer herein to General Statutes (Rev. to 1981) § 20-306b as the applicable statute. The plaintiff’s claim, of course, must be adjudicated under the statute as it then existed. See Cantor v. State Board of Electrical Examiners, 3 Conn. App. 707, 492 A.2d 194 (1985). For a different approach in zoning cases, see McCallum v. Inland Wetlands Commission, 196 Conn. 218, 223, 492 A.2d 508 (1985); East Lyme v. Waddington, 4 Conn. App. 252, 259, 493 A.2d 903 (1985).


author: Kelly, J.

text:
    Marlene Serby v. Charles Serby
    (2753)
    Dupont, C.P.J., Spallone and Kelly, Js.
    Argued March 29
    decision released July 2, 1985

      Susan J. Poll, for the appellant (defendant).

      William F. Askinazi, with whom was Stewart Edelstein, for the appellee (plaintiff).
   Kelly, J.

This is an appeal from an order to modify a decree of unallocated alimony and support awarded to the plaintiff wife.

The record reveals the following facts which are not disputed by the parties. At the time of the dissolution of the marriage on February 3, 1981, the parties entered into a separation agreement which was incorporated by reference into the dissolution decree by the trial court, S. Freedman, J. Pursuant to the separation agreement, the defendant husband was ordered to pay the plaintiff unallocated alimony and support of $24,000 per year. At that time, both of the two children of the parties resided in the marital home and were minors. The agreement provided that the alimony and support payment would be reduced by $3500 per year as each child attained his or her majority. On November 12,1983, the older child would attain majority, and the payment would be decreased to $20,500 per year. The agreement provided that the maximum amount of alimony to be paid to the wife at any time once child support ceased would be $17,000 per year.

The agreement contemplated that the plaintiff would seek employment and could earn up to $15,000 per year without substantially changing the circumstances for purposes of the defendant’s obligation to pay alimony and support. The plaintiff had periods of employment before entering into the agreement but was not employed at the time she sought modification of this agreement in October, 1983.

The parties’ financial affidavits, presented to the trial court when the plaintiff sought modification, revealed that at the time of the dissolution the defendant was earning $55,000 annually and, within two and one-half years, his income rose to $75,300 per year. In that two and one-half year period, the defendant’s gross income increased by more than $20,000, and his monthly living expenses increased $377.11 per month. His assets similarly improved, and he had no liabilities as of August, 1983.

During the same two and one-half year period following the dissolution, the plaintiff’s expenses increased $245.27 per week, and her savings diminished to zero. Her sole assets are a 1978 automobile and a two-thirds interest in the marital home. On October 27, 1983, the Superior Court, Coppeto, J., ordered a modification of the unallocated alimony and support and increased those payments to $29,075 per year from the existing $24,000 annual payment.

The defendant appeals from that judgment to modify the alimony and support payment on the grounds that (1) his income increase was not a “substantial change in circumstances” and was not unforeseeable to the parties in 1981 at the time of the agreement, and (2) the trial court’s decision, relying only on the parties’ financial affidavits, was not supported by facts.

As a prerequisite to modification of alimony or support awards, the moving party must show that there has been “a substantial change in circumstances of either party which was not foreseen at the time of entry of the dissolution decree and which arose subsequent to entry of the original decree.” Cummock v. Cummock, 188 Conn. 30, 34-35, 448 A.2d 204 (1982); Benson v. Benson, 187 Conn. 380, 382, 446 A.2d 796 (1982); McGuinness v. McGuinness, 185 Conn. 7, 9, 440 A.2d 804 (1981); see General Statues § 46b-86 (a).

Whether the increase in the defendant’s income was an unforeseen change in the circumstances of the parties is a question of fact. McCann v. McCann, 191 Conn. 447, 451, 464 A.2d 825 (1983). The trial court’s finding that the defendant’s increase in income was not contemplated at the entry of the original decree is reviewed to determine whether it has any reasonable basis in the facts. McGuinness v. McGuinness, supra, 13. The moving party must show that the change in circumstances was not contemplated by the parties at the time of the rendition of the initial decree. Gould v. Gould, 1 Conn. App. 224, 225, 470 A.2d 713 (1984).

The sole evidence on this point introduced by the plaintiff was the provision in the separation agreement, which was incorporated into the dissolution judgment, expressly providing that the defendant could not seek a modification of alimony and support payments unless the plaintiff attained an employment income of $15,000. The plaintiff argues that the omission of a similar clause as to the defendant’s income, allowed the trial court to infer that the dramatic increase in the defendant’s gross income of over 20 percent in two and one-half years, or, stated another way, his $20,000 jump in income during that period, was not contemplated by the parties at the time. This is too slender an evidentiary reed on which to conclude reasonably that such an increase in the defendant’s earnings was not contemplated by the parties.

The separation agreement’s provision on alimony and support is quite detailed providing among other things that when the two children attain the age of majority or their emancipation, alimony will not exceed $17,000 per year. When each child reaches the age of majority the unallocated alimony and support will be reduced by $3500. The obligation to pay alimony is limited to a twelve year period commencing from the date the separation agreement was executed.

Prior decisional law on the subject militates against the reasonableness of the trial court’s finding. In McCann v. McCann, supra, 450, the court noted that the trial court had arrived at its conclusion that the dramatic increase in the plaintiff’s income was not contemplated by the parties by examining prior salary increases. Here, no such evidence was presented. In Hardisty v. Hardisty, 183 Conn. 253, 257-58, 439 A.2d 307 (1981), the court upheld the trial court’s determination that the increase in the defendant’s income and assets was not contemplated at the time of the decree, solely on the facts gleaned from the financial affidavits. There, the change in financial circumstances was startling, however, since the defendant’s gross income in the span of four years was two and one-half to three times what it was at the time of the decree’s rendition.

Additionally, the defendant’s affidavit in that case disclosed the ownership of two restaurants where previously he disclosed no ownership interest in any restaurants. Id., 257-58. Here, the trial court simply noted that the defendant’s earnings had increased by somewhat more than twenty percent in a span of two and one-half years.

There is error, the judgment is set aside and the case is remanded with direction to render judgment for the defendant.

In this opinion the other judges concurred.

       The defendant appealed from the memorandum of decision rather than from the judgment, but the plaintiff, by failing to move for the dismissal of the appeal, waived this technical defect. Edward Sutt Associates, Inc. v. D&S Concrete Products, Inc., 3 Conn. App. 179, 179 n.2, 485 A.2d 1358 (1985).

       This sum would have been reduced by $3500 the next month when the older child reached majority, and in 1988 when the second child reached majority, as per the original separation agreement, the annual payment would be reduced to $17,000.

       The plaintiffs motion for modification of the dissolution decree regarding unallocated alimony and support awarded cites solely the increase in the defendant’s earnings as a basis for a modification of the original award. The trial court relied solely on the proportionate increase in the defendant’s income for its conclusion as to a substantial uncontemplated change in the status of the parties. Cases are reviewed on the theory on which they were tried and decided. Fuessenich v. DiNardo, 195 Conn. 144, 151, 487 A.2d 514 (1985). In any event, at the time of the original decree, the plaintiff’s expenses were not adequately covered by the alimony award. Further, although the agreement suggests that the parties believed it probable the plaintiff would obtain employment, it provides, in determining the proportionate shares of the children’s educational expenses to be borne by the parties, for the situation where the plaintiff is not employed.


author: Covello, J.

text:
    Elizabeth Marcil v. Roger Marcil
    (3028)
    Dupont, C.P.J., Borden and Covello, Js.
    Argued April 18
    decision released July 2, 1985

      Robert M. Siuzdak, for the appellant (defendant).

      Hillard N. Einbinder, with whom, on the brief, was Arnold M. Potash, for the appellee (plaintiff).
   Covello, J.

The marriage of the plaintiff and the defendant was dissolved on May 16, 1983. The judgment provided that the defendant husband was to convey his interest in the marital home to the plaintiff wife and that upon the sale of the family home, the plaintiff was to pay the defendant the sum of $20,000.

On September 12,1983, the plaintiff sold the family home and paid over to the defendant $18,213.27. The plaintiff thereafter refused to pay the $1786.73 balance. The defendant filed a motion seeking to have the plaintiff found in contempt. After a hearing, the court denied the motion.

Evidence taken at the hearing disclosed that the plaintiff telephoned the defendant, told him that she had an offer that was substantially less than the asking price for the house, and asked the defendant if he would take less than $20,000. The defendant then agreed with the plaintiff to share the net proceeds equally. The plaintiff thereupon proceeded to sell the house at the reduced price.

The court concluded that the plaintiff’s failure to pay over the full $20,000 was based upon her belief that she had made a subsequent agreement with her former husband to share the proceeds equally, reducing his share to $18,213.27. The court therefore denied the motion for contempt.

Contempt can be civil or criminal in nature. State v. Jackson, 147 Conn. 167, 169, 158 A.2d 166 (1960). “ ‘[A] contempt is considered civil when the punishment is wholly remedial, serves only the purposes of the complainant, and is not intended as a deterrent to offenses against the public.’ McCrone v. United States, 307 U.S. 61, 64, 59 S. Ct. 685, 83 L. Ed. 1108.” McTigue v. New London Education Assn., 164 Conn. 348, 352, 321 A.2d 462 (1973).

A civil contempt can involve a wilful failure to comply with a then outstanding court order. Turgeon v. Turgeon, 190 Conn. 269, 284, 460 A.2d 1260 (1983). “A finding of contempt depends upon the facts and circumstances surrounding it.” Dukes v. Durante, 192 Conn. 207, 228, 471 A.2d 1368 (1984).

The court here concluded that the plaintiffs failure to pay over the balance due was not an intentional violation of the court’s order but rather was an act based on a mistaken perception that the parties’ later agreement had modified the court’s earlier action.

The fact that the order had not been complied with fully, however, does not dictate that a finding of contempt must enter. It is within the sound discretion of the court to deny a claim for contempt when there is an adequate factual basis to explain the failure to honor the court’s order. “[I]n an appeal from a judgment of civil contempt, ‘our review is technically limited to “questions of jurisdiction, such as whether the court had authority to impose the judgment inflicted and whether the act or acts for which the penalty was imposed could constitute a contempt.” ’ Papa v. New Haven Federation of Teachers, 186 Conn. 725, 731, 444 A.2d 196 (1982), quoting State v. Jackson, 147 Conn. 167, 170, 158 A.2d 166 (1960).” Hartford Federal Savings & Loan Assn. v. Tucker, 192 Conn. 1, 3, 469 A.2d 778 (1984).

There is no error.

In this opinion the other judges concurred.

       The pertinent part of the judgment provides: “The Defendant husband shall transfer all of his right, title and interest in the family home located at 390 Matthews Street, Prospect, Connecticut, to the Plaintiff wife subject to a first and second mortgage. Said real property is to be sold on or before November 30, 1984, or upon the remarriage of the Plaintiff wife. Upon said sale, the Plaintiff wife shall pay to the Defendant husband the sum of $20,000.00 without interest.”