author: ALVORD, J.

text:
    VIDAL GAMEZ-REYES v. DONALD F. BIAGI, JR., ET AL.
    (AC 33459)
    Lavine, Alvord and Espinosa, Js.

      Argued March 19
    officially released June 12, 2012

      John J. Morgan, with whom, on the brief, was Albert J. Barr, for the appellant (named defendant).

      Robert F. Carter, for the appellee (plaintiff).
   Opinion

ALVORD, J.

The defendant Donald F. Biagi, Jr., appeals from the decision of the workers’ compensation review board (board) affirming the decision of the workers’ compensation commissioner (commissioner) awarding benefits to the plaintiff, Vidal Gamez-Reyes. The defendant’s main contention is that, pursuant to General Statutes § 31-275 (1) (C), the commissioner is deprived of subject matter jurisdiction over a claim unless the claimant first proves a lack of intoxication. The board expressly rejected the defendant’s subject matter jurisdiction argument. We agree with the board and hold that intoxication remains, as it has been for nearly 100 years, an affirmative defense with the burden of proof resting on the employer pursuant to General Statutes § 31-284 (a). Injuries caused by the employee’s intoxication, as proved by the employer, are not com-pensable pursuant to § 31-276 (1) (C). The defendant also appeals from the decision of the board awarding interpreter’s fees to the plaintiff. We remand this matter to the board solely for articulation on the issue of interpreter’s fees, and we affirm the decision of the board in all other respects.

The plaintiff filed a form 30C notice of claim for compensation with the commission on August 10, 2009, regarding an injury sustained while working for the defendant on July 26, 2009. On August 21, 2009, the defendant filed a form 43 notice to compensation commissioner and employee of intention to contest employee’s right to compensation benefits. On the form 43, the defendant typed “Alleged” next to the words “Employer” and “Date of Injury.” In the “Reason for Contest” portion of the form, the defendant stated: “[The plaintiff] was not an employee at the time of the accident.” Due to the defendant’s filing of a form 43, a formal hearing was held on April 19, 2010, before the commissioner of the seventh district, Michelle D. Trug-lia. The Second Injury Fund also appeared because the defendant failed to carry workers’ compensation insurance.

At the formal hearing, the plaintiff and his second cousin and coworker, Umberto Reyes, testified on behalf of the plaintiff. The plaintiff required an interpreter, Saul Sibirsky, to translate his testimony because his native language is Spanish. The defendant called one witness, John Whitney, a general contractor who sometimes worked with the defendant and who had been present at the defendant’s job site on the day of the accident. The Second Injury Fund called its own investigator and the defendant to testify. On the basis of the evidence presented at the hearing, the commissioner found the following facts in her memorandum of decision dated April 21, 2010.

The defendant employed the plaintiff in his landscaping business for the 2008 and 2009 seasons. The plaintiff typically worked Monday through Saturday from 7:30 a.m. until 4 p.m. earning $700 per week, which the defendant paid him in cash. The defendant negotiated contracts with homeowners for landscaping services. The plaintiff used tools and materials supplied by the defendant, wore a shirt bearing the name of the defendant’s landscaping company and drove the defendant’s business truck to and from each job site. The defendant dictated the plaintiffs hours and pay rate. The defendant never provided the plaintiff with a W-2 form, and the plaintiff never paid income taxes on his wages. The defendant acknowledged that he paid the plaintiff in cash, that he took no payroll taxes out of the plaintiffs pay and that he failed to carry workers’ compensation insurance.

On July 26, 2009, at approximately 3:45 p.m., the plaintiff was standing on the top rung of a fifteen foot ladder in order to prune a tall tree at the defendant’s job site. The ladder rested on uneven ground and began to tip to one side. Reyes, who had been holding the ladder in place, was unable to stabilize it, and the plaintiff fell to the ground, landing on his back. After the plaintiff fell, Reyes called the defendant, who told the men to wait for him to arrive at the job site. The defendant did not arrive at the job site for approximately two and one-half hours, at which point he told the plaintiff that he should go home, but the plaintiff demanded to go to the hospital. The defendant then took the plaintiff to Greenwich Hospital.

The plaintiff overheard the defendant informing hospital personnel that the defendant had picked up the plaintiff on the street and that the plaintiff did not work for him. The defendant then left the plaintiff at the hospital by himself. The plaintiff was forced to undergo two surgeries to his back and has been unable to return to work since the date of the injury. The plaintiff also has incurred substantial medical bills due to his injuries.

The defendant’s witness, Whitney, testified that he and the defendant drove to the job site at about 10:30 a.m. on July 25, 2009. While Whitney remained in the truck, the defendant went to speak to the plaintiff and Reyes. During this time, Whitney was approximately twenty-five to thirty-five feet away from the defendant and the plaintiff. WTiitney testified that he saw the plaintiff drinking something from a brown paper bag, but that he did not know what beverage was in the bag. He did not witness any actions by the plaintiff that would suggest that the plaintiff was intoxicated. Although the defendant corroborated Whitney’s testimony that the two men went to the job site on the morning of the accident, the defendant denied seeing a beverage in the plaintiffs hand. The defendant also testified that he did not smell any odor of alcohol on the plaintiff and that he did not see any indicia of intoxication in the behavior of the plaintiff.

On the basis of her findings, the commissioner concluded that the plaintiff was an employee of the defendant on July 25, 2009, and that the plaintiff suffered compensable injuries while in the defendant’s employ. The commissioner also determined that the defendant failed to comply with his statutory obligation to insure his workers’ compensation liability on the date of the injury. Finally, the commissioner concluded that the defendant engaged in frivolous litigation by pursuing a formal hearing in which he presented no defense to the plaintiffs claim for compensation, but caused the plaintiff to require the services of an attorney and an interpreter.

The commissioner ordered the defendant to assume financial responsibility for the plaintiffs reasonable and necessary medical bills directly related to the injury and for all indemnity benefits. Regarding her conclusion that the defendant frivolously contested the claim, the commissioner ordered the defendant to pay a $1000 civil penalty for violation of General Statutes § 31-288 (b) (1). Finally, she ordered the defendant to pay the cost of the interpreter’s services.

On May 3, 2010, the defendant filed a “motion to open, motion for extension of time to file motion to correct, preliminary motion to correct, motion for extension of time to file reasons for appeal, motion to dismiss and demand for hearing.” Primarily, the defendant argued that the plaintiffs claim should be dismissed because the commission lacked subject matter jurisdiction pursuant to § 31-275 (1) (C) to hear the claim due to the defendant’s allegation that the plaintiff was intoxicated at the time of the accident. The defendant requested a second formal hearing to determine whether the plaintiff had an elevated blood alcohol level at the time of the accident.

The commissioner ruled on the defendant’s motion on May 6,2010. In her ruling, she denied the defendant’s motion to open because the defendant failed to set forth sufficient reason to open the finding and award pursuant to General Statutes § 31-315. The commissioner also denied the defendant’s motion to dismiss. In doing so, she stated: “Intoxication is an affirmative defense to compensability and not, as the [defendant] asserts, a basis to challenge jurisdiction over the subject matter.” She further stated: “It is not within the purview of the [c]ommission to challenge the tactical decisions made by counsel in the presentation of a claim or a defense. In the present case, both [the defendant’s] counsel and counsel for the Second Injury Fund were in possession of a toxicology report. Either attorney could have introduced the report in defense to compen-sability. For whatever reason, neither introduced the report, instead relying upon the testimony of the [defendant] and a witness by the name of John Whitney. The undersigned trial commissioner did not find the testimony of intoxication persuasive.”

The defendant then filed a motion to correct on June 14,2010, alleging that the plaintiff “nearly hid damaging information in a vast amount of paper” and claiming that a “manifest error has been made” by the commissioner in failing to find that the plaintiff was intoxicated at the time of the accident. The defendant pointed to a single page of a blood chemistry report from Greenwich Hospital suggesting a potentially elevated ethanol serum level in the plaintiffs blood. The commissioner denied the defendant’s motion to correct in a ruling dated June 15, 2010, repeating her earlier conclusion that the defendant’s trial counsel and the attorney for the Second Injury Fund made tactical decisions not to focus on the blood chemistry report or to call an expert to interpret that report during the formal hearing. Following the commissioner’s ruling on the motion to correct, the defendant filed a motion for reconsideration on June 21, 2010, which motion the commissioner summarily denied on June 21, 2010.

On June 30,2010, the defendant appealed the commissioner’s decision to the board. In his reasons for appeal, the defendant listed the commissioner’s: (1) refusal to review and consider the medical evidence submitted en masse; (2) mischaracterization of the evidence; (3) refusal to consider the blood chemistry report and statements made by the plaintiff to his doctor; (4) refusal to address the plaintiffs alleged intoxication, which implicated the commission’s subject matter jurisdiction; (5) improper ordering of the defendant to pay sanctions; and (6) improper awarding of interpreter’s fees to the plaintiff.

On May 3,2011, the board issued its decision dismissing the defendant’s appeal, stating: “[W]e conclude [that] the [defendant] seeks solely to relitigate this matter after receiving an unfavorable result at the trial level.” On the sole issue of the imposition of sanctions, the board remanded the matter to the commissioner to specifically enumerate the facts on the record constituting “ ‘fault or neglect’ ” by the defendant pursuant to § 31-288 (b) (1). In affirming the decision of the commissioner, the board pointedly rejected the defendant’s argument that intoxication is a subject matter jurisdictional bar to compensability under § 31-275 (1) (C). The board stated: “We reject this argument for two reasons. First, we find not a scintilla of legal precedent supportive of the [defendant’s] legal theories. Second, on a factual basis, the sole objective piece of evidence [he seeks] to admit simply does not prove the [plaintiff] was intoxicated.” This appeal followed.

I

The defendant argues that the commissioner lacked subject matter jurisdiction to hear the plaintiffs claim pursuant to § 31-275 (1) (C) because of alleged objective medical evidence that the plaintiff was intoxicated when he arrived at the hospital after the accident. The defendant argues that injuries sustained while the plaintiff was intoxicated are not compensable injuries under the Workers’ Compensation Act (act), General Statutes § 31-275 et seq., and that, therefore, the burden was on the plaintiff to establish a lack of intoxication prior to the commissioner having jurisdiction over the claim. The defendant attempts to distinguish a claim of intoxication pursuant to § 31-275 (1) (C) from the well established affirmative defense of intoxication pursuant to § 31-284. We disagree with the defendant.

A

As a threshold matter, we address the defendant’s subject matter jurisdiction argument. “In speaking of a court in general, we have said . . . [j]urisdiction of the subject-matter is the power [of the court] to hear and determine cases of the general class to which the proceedings in question belong. ... A court has subject matter jurisdiction if it has the authority to adjudicate a particular type of legal controversy. Such jurisdiction relates to the court’s competency to exercise power, and not to the regularity of the court’s exercise of that power. . . . This concept, however, is not limited to courts. Administrative agencies are tribunals of limited jurisdiction and their jurisdiction is dependent entirely upon the validity of the statutes vesting them with power and they cannot confer jurisdiction upon themselves.” (Citations omitted; internal quotation marks omitted.) Castro v. Viera, 207 Conn. 420, 427-28, 541 A.2d 1216 (1988).

“The primary statutory provision establishing the subject matter jurisdiction of the commissioner is General Statutes ... § 31-278. [That statute] provides in relevant part that each commissioner shall have all powers necessary to enable him to perform the duties imposed upon him by the provisions of [the act]. . . . [Each commissioner] shall have jurisdiction of all claims and questions arising . . . under [the act] . . . .” (Internal quotation marks omitted.) Del Toro v. Stamford, 270 Conn. 532, 540-41, 853 A.2d 95 (2004).

The jurisdiction of the commissioner “is confined by the [a]ct and limited by its provisions. Unless the [a]ct gives the [c]ommissioner the right to take jurisdiction over a claim, it cannot be conferred upon [the commissioner] by the parties either by agreement, waiver or conduct.” (Internal quotation marks omitted.) Castro v. Viera, supra, 207 Conn. 426. A party in a workers’ compensation dispute may raise subject matter jurisdictional claims at any time during the original proceedings or on direct appeals from those proceedings. Jones v. Redding, 296 Conn. 352, 371, 995 A.2d 51 (2010). “[B]ecause [a] determination regarding . . . subject matter jurisdiction is a question of law, our review is plenary.” (Internal quotation marks omitted.) Estate of Doe v. Dept. of Correction, 268 Conn. 753, 757, 848 A.2d 378 (2004).

It is well established that the claimant has the burden of proving that he is an employee of the employer from whom he seeks compensation. Castro v. Viera, supra, 207 Conn. 434; Bourgeois v. Cacciapuoti, 138 Conn. 317, 321, 84 A.2d 122 (1951); Morganelli v. Derby, 105 Conn. 545, 551, 135 A. 911 (1927); DeAlmeida v. M.C.M. Stamping Corp., 29 Conn. App. 441, 447, 615 A.2d 1066 (1992). Moreover, the claimant must properly initiate a claim in the first instance under General Statutes § 31-294c. Del Toro v. Stamford, supra, 270 Conn. 544; Estate of Doe v. Dept. of Correction, supra, 268 Conn. 757. These are jurisdictional facts which the claimant has the burden of proving. Del Toro v. Stamford, supra, 544. On the contrary, “[i]t is well settled that, in the context of a workers’ compensation proceeding, issues of causation, such as whether an injury arose out of and in the course of employment, have not been held to be jurisdictional facts.” Id.; see also DeAlmeida v. M.C.M. Stamping Corp., supra, 449.

Throughout the history of the act, which was adopted in 1913; Perille v. Raybestos-Manhattan-Europe, Inc., 196 Conn. 529, 538-40, 494 A.2d 555 (1985); no reported case has ever held that the issue of whether a worker is intoxicated is a jurisdictional fact. An allegation of intoxication always has been held to raise an affirmative defense on which the employer bears the burden of proof. See, e.g., Liptak v. State, 176 Conn. 320, 322, 407 A.2d 980 (1978). Additionally, our Supreme Court has held that “[t]he employer asserting such a defense must show not only the misconduct itself but also that the injury was caused by the misconduct.” Id. Intoxication, thus, always has been considered to be a matter of fact bearing on the issue of causation. Id., 323.

In making his novel argument that intoxication is a jurisdictional fact to be proved by the claimant pursuant to § 31-276 (1) (C), the defendant relies on our Supreme Court’s decision in Del Toro v. Stamford, supra, 270 Conn. 632. We do not agree that Del Toro supplies the underpinning for a determination that intoxication is a jurisdictional fact.

The plaintiff in Del Toro was a police officer who had suffered post-traumatic stress disorder (PTSD) after being involved in an on-duty shooting resulting in the death of a civilian. Id., 536. After filing his workers’ compensation claim based on psychological stress related to his PTSD, the defendant city and its workers’ compensation provider failed to contest the plaintiffs claim within the statutory time frame, establishing a conclusive presumption of liability. The defendants then proceeded to contest the plaintiffs claim after the statutory deadline, arguing that the compensability of a type of injury pursuant to § 31-275 (16) (B) (ii) implicates the commissioner’s subject matter jurisdiction. Id., 537. “Put another way, the defendants contend that, if the commissioner does not have the authority to award benefits for the particular type of injury claimed by the plaintiff . . . he is therefore without jurisdiction to entertain the plaintiffs claim.” (Citation omitted.) Id., 539. The plaintiff argued that the issue of whether a particular injury is compensable under the act is not jurisdictional in nature. Id.

The workers’ compensation statute had previously allowed for compensation based on “mental or emotional impairments” such as the plaintiffs PTSD-based injury. The legislature, however, amended the statute in 1993 specifically to exclude such “mental or emotional impairment” injuries. After examining the statute as amended, our Supreme Court agreed with the defendants that the compensability of a type of injury implicates the “threshold question of whether an entire category of claims falls under the scope of the act.” Del Toro v. Stamford, supra, 270 Conn. 544-45. In making this determination, the court noted that the commissioner is only authorized to award compensation for personal injuries which the court determined could not include the mental or emotional impairment claimed by the plaintiff. Id., 545-47. Our Supreme Court stated: “[I]f a claimed injury is not a personal injury under the act — that is, it did not arise from an occupational disease, accidental injury or repetitive trauma — then the commissioner does not have jurisdiction over the claim.” (Internal quotation marks omitted.) Id., 546. The court then determined that the plaintiffs PTSD was not a personal injury. Id., 546-47.

The present case does not fit within the framework of Del Toro. The defendant argues that, due to legislative changes to the act in 1993, which changes were discussed and applied by our Supreme Court in Del Toro, the legislature intended that intoxication should be considered a jurisdictional fact, the proof of which would deprive the commissioner of subject matter jurisdiction over a claim. The defendant argues that the legislative changes in 1993 were designed to limit the number of awards and that, by including § 31-275 (1) (C), the legislature intended for intoxication to act as a jurisdictional bar. He argues that because the same statutory scheme is at issue here as was at issue in Del Toro, we are constrained by that decision to conclude that intoxication, like type of injury, implicates subject matter jurisdiction. We disagree that the amendments require us to conclude that intoxication is a jurisdictional fact.

The defendant ignores the fact that unlike General Statutes (Rev. to 1993) § 31-275 (16), the legislature did not dramatically amend General Statutes (Rev. to 1993) § 31-276 (1) (C) in 1993. Rather than adding extensive language barring an entire class of injuries to create § 31-276 (16) (B) (ii), the legislature simply removed the word “habitual” from § 31-275 (1) (C). There is no basis for a determination by this court that the deletion of one word was intended to change what has been an affirmative defense for nearly 100 years into a subject matter jurisdictional bar to compensability or that the legislature intended to create a subject matter jurisdictional bar to claims separate and distinct from the affirmative defense outlined in § 31-284 (a).

“We are bound to interpret legislative intent by referring to what the legislative text contains, not what it might have contained. . . . We will not read into clearly expressed legislation provisions which do not find expression in its words.” (Citations omitted; internal quotation marks omitted.) DeAlmeida v. M.C.M. Stamping Corp., supra, 29 Conn. App. 448. “[W]e are [also] guided by the principle that the legislature is always presumed to have created a harmonious and consistent body of law .... [T]his tenet of statutory construction . . . requires us to read statutes together when they relate to the same subject matter .... Accordingly, [i]n determining the meaning of a statute ... we look not only at the provision at issue, but also to the broader statutory scheme to ensure the coherency of our construction.” (Internal quotation marks omitted.) In re Jan Carlos D., 297 Conn. 16, 21-22, 997 A.2d 471 (2010).

The defendant concedes that § 31-284 (a) provides that intoxication of the employee is an affirmative defense of the employer. Nothing in the 1993 amendments leads this court to believe that the legislature intended that the two statutes regarding intoxication in workers’ compensation claims would provide for both a subject matter jurisdictional bar, placing the burden on the claimant to establish lack of intoxication, and an affirmative defense, requiring the employer to prove intoxication. Indeed, such a result would be absurd and unworkable. See Bysiewicz v. DiNardo, 298 Conn. 748, 765, 6 A.3d 726 (2010).

Moreover, in Del Toro, our Supreme Court was careful to note that issues of causation, even if cast as issues of compensability of a claim, are not jurisdictional in nature. It stated: “It is important to note that the issue in the present case does not concern the compensability of an individual claim, in terms of a particular employer’s liability to its employee on the merits of a specific claim. A broad casting of the term ‘compensability’ encompasses issues of causation, which clearly do not implicate the subject matter jurisdiction of the commissioner. . . . Rather, in the present case, we are concerned with the compensability of a type of injury and whether the act authorizes the commissioner to award benefits for that type of injury in the first instance.” (Citation omitted; emphasis in original.) Del Toro v. Stamford, supra, 270 Conn. 542 n.8. For the foregoing reasons, the well settled burden of proof to establish intoxication remains on the employer and must be proved as an affirmative defense.

B

The burden was therefore on the defendant in this case to establish the affirmative defense of the intoxication of the plaintiff. Additionally, it was the defendant’s further burden to prove that the plaintiffs intoxication caused him to fall off of the ladder and to suffer his injuries. The defendant is correct that, had he met his burden of proof, pursuant to § 31-284 (a), that the plaintiff was intoxicated and that the injuries were caused by intoxication, then the injuries would not be compen-sable pursuant to § 31-275 (1) (C). The commissioner, however, found to the contrary. She stated: “The undersigned trial commissioner did not find the testimony of intoxication persuasive.” The commissioner noted that, while the blood chemistry report was in the record, it was not presented by the defendant nor was it interpreted by an expert at the hearing as proof of intoxication.

Both the commissioner and the board concluded that the defendant was attempting to relitigate on the basis of evidence available at the time of the formal hearing. We agree. First, it was the defendant’s burden to show that the blood chemistry report reflected an intoxicated status, but the defendant failed to meet that burden. Second, even if the defendant somehow showed that the blood chemistry report conclusively proved the plaintiffs intoxication, the defendant still had the burden to prove that the plaintiffs accident was caused by his intoxication. The commissioner concluded that neither of these prongs was met by the defendant when she determined that the plaintiffs injuries were com-pensable.

Our Supreme Court has stated: “[T]he power and duty of determining the facts rests on the commissioner, the trier of facts. . . . The conclusions drawn by [her] from the facts found must stand unless they result from an incorrect application of the law to the subordinate facts or from an inference illegally or unreasonably drawn from them.” (Citation omitted; internal quotation marks omitted.) Fair v. People’s Savings Bank, 207 Conn. 535, 539, 542 A.2d 1118 (1988). We already have concluded that the commissioner’s decision did not result from an incorrect application of the law to the subordinate facts and we now conclude that they did not result from an inference illegally or unreasonably drawn from them. Therefore, the commissioner’s conclusions must stand.

II

The defendant also claims that the board improperly affirmed the commissioner’s award of interpreter’s fees to the plaintiff because costs and fees are not proper unless specifically enumerated in General Statutes § 31-298. The board never addressed the defendant’s argument regarding interpreter’s fees in its decision. “Ordinarily, the proper judgment in such a situation is to remand the case in order that the [board] may decide the issue.” Alderman v. Hanover Ins. Group, 155 Conn. 585, 590, 236 A.2d 462 (1967). We therefore remand this issue to the board for articulation.

The case is remanded to the workers’ compensation review board for articulation on the issue of interpreter’s fees; the decision is affirmed in all other respects. We retain jurisdiction over this appeal.

In this opinion the other judges concurred.

       The defendant Second Injury Fund did not appeal the decision of the board and we therefore refer to Biagi as the defendant throughout this opinion.

       General Statutes § 31-275 (1) (C) provides: “In the case of an accidental injury, a disability or a death due to the use of alcohol or narcotic drugs shall not be construed to be a compensable injury . . . .”

       General Statutes § 31-284 (a) provides: “An employer who complies with the requirements of subsection (b) of this section shall not be liable for any action for damages on account of personal injury sustained by an employee arising out of and in the course of his employment or on account of death resulting from personal injury so sustained, but an employer shall secure compensation for his employees as provided under this chapter, except that compensation shall not be paid when the personal injury has been caused by the wilful and serious misconduct of the injured employee or by his intoxication. All rights and claims between an employer who complies with the requirements of subsection (b) of this section and employees, or any representatives or dependents of such 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, provided nothing in this section shall prohibit any employee from securing, by agreement with his employer, additional compensation from his employer for the injury or from enforcing any agreement for additional compensation.”

       The defendant also argues that the commissioner improperly sanctioned him for unreasonably contesting the plaintiffs claim. The plaintiff counters that the defendant abandoned this claim. We agree with the plaintiff. Although the defendant appealed the issue of sanctions to the board initially, the board remanded that issue to the commissioner “to specifically enumerate the facts on the record which constitute ‘fault or neglect’ by the [defendant] pursuant to [General Statutes] § 31-288 (b) (1).” In a memorandum of decision dated May 20, 2011, the commissioner detailed the facts on record which constituted delay in payment of compensation to the plaintiff due to the “ ‘fault or neglect’ ” of the defendant pursuant to § 31-288 (b) (1). We take judicial notice of a letter sent by the defendant to the board on November 17, 2011, withdrawing the appeal of the commissioner’s award of sanctions on remand. We, therefore, consider the issue abandoned and we decline to address it.
      We also decline to address the defendant’s argument that the interpreter who translated for the plaintiff before the commissioner was not qualified. The defendant failed to raise this argument before the commissioner.

       “A form 30C is the document prescribed by the workers’ compensation commission to be used when filing a notice of claim pursuant to the Workers’ Compensation Act, General Statutes § 31-275 et seq.” Mehan v. Stamford, 127 Conn. App. 619, 622 n.4, 15 A.3d 1122, cert. denied, 301 Conn. 911, 19 A.3d 180 (2011).

       “A form 43 is a disclaimer that notifies a claimant who seeks workers’ compensation benefits that the employer intends to contest liability to pay compensation. If an employer fails timely to file a form 43, a claimant may file a motion to preclude the employer from contesting the compensability of his claim.” Mehan v. Stamford, 127 Conn. App. 619, 623 n.6, 16 A.3d 1122, cert. denied, 301 Conn. 911, 19 A.3d 180 (2011).

       General Statutes § 31-288 (b) (1) provides: “Whenever through the fault or neglect of an employer or insurer, the adjustment or payment of compensation due under this chapter is unduly delayed, such employer or insurer may be assessed by the commissioner hearing the claim a civil penalty of not more than one thousand dollars for each such case of delay, to be paid to the claimant.”

       General Statutes § 31-315 provides: “Any award of, or voluntary agreement concerning, compensation made under the provisions of this chapter or any transfer of liability for a claim to the Second Injury Fund under the provisions of section 31-349 shall be subject to modification in accordance with the procedure for original determinations, upon the request of either party or, in the case of a transfer under section 31-349, upon request of the custodian of the Second Injury Fund, whenever it appears to the compensation commissioner, after notice and hearing thereon, that the incapacity of an injured employee has increased, decreased or ceased, or that the measure of dependence on account of which the compensation is paid has changed, or that changed conditions of fact have arisen which necessitate a change of such agreement, award or transfer in order properly to carry out the spirit of this chapter. The commissioner shall also have the same power to open and modify an award as any court of the state has to open and modify a judgment of such court. The compensation commissioner shall retain jurisdiction over claims for compensation, awards and voluntary agreements, for any proper action thereon, during the whole compensation period applicable to the injury in question.”

       In the record, the report alternately is referred to as a blood chemistry report and a toxicology report. The record shows, however, that the report was part of a routine blood chemistry testing performed by Greenwich Hospital upon the plaintifFs arrival in the emergency department. It is titled “General Chemistry” and the report lists blood chemistry results for items such as calcium, sodium, glucose, carbon dioxide and potassium in addition to ethanol, serum. We therefore refer to the report as a blood chemistry report and not as a toxicology report.

       On remand, the commissioner issued a memorandum of decision, dated May 20,2011, enumerating the facts on the record supporting the defendant’s delay in payment of compensation to the plaintiff due to his “fault or neglect” and justifying the $1000 sanction against the defendant. The commissioner found that: “(1) The [defendant] never denied the existence of an employer/ employee relationship prior to or during the formal proceedings, but nonetheless, continued to deny the [plaintiffs] claim, forcing him to pursue a formal hearing. (2) The [plaintiff] is not fluent in English and was compelled to hire a foreign language interpreter to put on his case. The [defendant] offered no viable defense to the [plaintiffs] claim, nor did he take the stand to controvert the [plaintiffs] testimony. (3) Despite the absence of a defense to the [plaintiffs] case, the [defendant] continued to maintain a denial of the claim and continued to refuse to pay out on the claim, thereby necessitating the involvement of the Second Injury Fund and the delays associated therewith. (4) While the [defendant] was able to avoid taking the stand in his own defense, he was subsequently called to the stand by the Second Injury Fund, in defense of its § 31-355 obligations. The [defendant] testified consistent with the [plaintiffs] testimony and offered no evidence to refute the claim.” The commissioner concluded that “[t]he [defendant’s] conduct in this matter can only be interpreted as an intentional effort to delay the [defendant’s] obligation to pay and, therefore, the [plaintiffs] right to receive, compensation under the [Workers’ Compensation Act].” The [defendant] did not file a motion to correct the commissioner’s findings on remand and, as previously noted, he withdrew his appeal of the remand decision.

       “A jurisdictional fact is a fact that will permit a court to find jurisdiction. . . . Specifically, with regard to subject matter jurisdiction, jurisdictional facts are [fjacts showing that the matter involved in a suit constitutes a subject-matter consigned by law to the jurisdiction of that court . . . .” (Citation omitted; internal quotation marks omitted.) Del Toro v. Stamford, supra, 270 Conn. 543 n.9. An employer may always contest the existence of jurisdictional facts. Id., 543.

       General Statutes (Rev. to 2003) § 31-275 (16) (B) provides in relevant part: “ ‘Personal injury’ or ‘injury’ shall not be construed to include . . . (ii) A mental or emotional impairment, unless such impairment arises from a physical injury or occupational disease . . .

       The defendant is correct that our Supreme Court was concerned with the intent of the legislature to “reduce costs and promote efficiency in workers’ compensation proceedings” when it interpreted § 31-275 (16) (B) (ii) in Del Toro. Del Toro v. Stamford, supra, 270 Conn. 547. The court stated: “Specifically, § 31-275 (16) (B) (ii) was amended in 1993 to reflect a more restrictive definition of the term personal injury. This amendment was part of a comprehensive scheme to reform the act. ... We have noted previously that the principal thrust of these reforms was to cut costs in order to address the spiraling expenses required to maintain the system. . . . Moreover, we note that, [although the [act] should be broadly construed to accomplish its humanitarian purpose ... its remedial puipose cannot transcend its statutorily defined jurisdictional boundaries.” (Citations omitted; internal quotation marks omitted.) Id.

       General Statutes (Rev. to 1993) § 31-275 (16) provides: “ ‘Personal injury’ or ‘injury’ includes, in addition to accidental injury which may be definitely located as to the time when and the place where the accident occurred, an injury to an employee which is causally connected with his employment and is the direct result of repetitive trauma or repetitive acts incident to such employment, and occupational disease.”
      In 1995, the 1993 legislative changes were implemented. As amended by No. 93-228, §§ 1, 35, of the 1993 Public Acts, General Statutes (Rev. to 1995) § 31-275 (16) provides:
      “(A) ‘Personal injury’ or ‘injury’ includes, in addition to accidental injury which may be definitely located as to the time when and the place where the accident occurred, an injury to an employee which is causally connected with his employment and is the direct result of repetitive trauma or repetitive acts incident to such employment, and occupational disease.
      “(B) ‘Personal injury’ or ‘injury’ shall not be construed to include:
      “(i) An injury to an employee which results from his voluntary participation in any activity the major purpose of which is social or recreational, including, but not limited to, athletic events, parties and picnics, whether or not the employer pays some or all of the cost of such activity;

        “(ü) A mental or emotional impairment, unless such impairment arises from a physical injury or occupational disease; or
      “(iii) A mental or emotional impairment which results from a personnel action, including, but not limited to, a transfer, promotion, demotion or termination.”

       As we previously have noted, the issue of intoxication implicates factual matters bearing on causation that are not jurisdictional facts. Whereas, in Del Toro, the plaintiffs proof that he suffered the type of injury claimed could not have resulted in compensation, the present case is entirely different. Here, the plaintiff proved that he suffered a personal injury and he was therefore entitled to compensation. Even if, arguendo, the plaintiff was intoxicated, he still could be entitled to compensation if his intoxication was not the cause of his accident.

       General Statutes § 31-298 provides: “Both parties may appear at any hearing, either in person or by attorney or other accredited representative, and no formal pleadings shall be required, beyond any informal notices that the commission approves. In all cases and hearings under the provisions of this chapter, the commissioner shall proceed, so far as possible, in accordance with the rules of equity. He shall not be bound by the ordinary common law or statutory rules of evidence or procedure, but shall make inquiry, through oral testimony, deposition testimony or written and printed records, in a manner that is best calculated to ascertain the substantial rights of the parties and carry out the provisions and intent of this chapter. No fees shall be charged to either party by the commissioner in connection with any hearing or other procedure, but the commissioner shall furnish at cost (1) certified copies of any testimony, award or other matter which may be of record in his office, and (2) duplicates of audio cassette recordings of any formal hearings. Witnesses subpoenaed by the commissioner shall be allowed the fees and traveling expenses that are allowed in civil actions, to be paid by the parly in whose interest the witnesses are subpoenaed. When liability or extent of disability is contested by formal hearing before the commissioner, the claimant shall be entitled, if he prevails on final judgment, to payment for oral testimony or deposition testimony rendered on his behalf by a competent physician, surgeon or other medical provider, including the stenographic and videotape recording costs thereof, in connection with the claim, the commissioner to determine the reasonableness of such charges.”


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    LAMBERTO LUCARELLI v. COMMISSION ON HUMAN RIGHTS AND OPPORTUNITIES ET AL.
    (AC 33801)
    Lavine, Espinosa and West, Js.
    Argued March 14
    officially released June 12, 2012

      Lamberto Lucarelli, pro se, the appellant (plaintiff).

      Kimberly Jacobsen, for the appellee (named defendant).

      Melinda A. Powell, with whom was Rachel L. Ginsburg, for the appellee (defendant town of Old Saybrook).

      Michael A. Martone, assistant attorney general, with whom were TerrenceM. O’Neill, assistant attorney general, and, on the brief, George Jepsen, attorney general, for the appellee (defendant division of criminal justice).
   Opinion

PER CURIAM.

The plaintiff, Lamberto Lucarelli, appeals from the trial court’s judgment dismissing the plaintiffs appeal from the decisions of the defendant commission on human rights and opportunities (commission), which dismissed two separate discrimination complaints filed by the plaintiff against the defendants, the town of Old Saybrook (town) and the division of criminal justice (state). On appeal, the plaintiff claims that the commission improperly dismissed his complaints against (1) the town because he did not file his complaint in a timely manner under General Statutes § 46a-82 (f) and (2) the state because he failed to state a claim upon which relief may be granted. We affirm the judgment of the trial court.

The following undisputed facts are relevant to our consideration of the plaintiffs claims. The plaintiff, who is of Italian ancestry, visited the town transfer station where he observed a toilet seat extender. At that time, he “either expressed curiosity about or interest in taking ownership” of the toilet seat exfender. Upon a subsequent visit to the transfer station, the plaintiff reported seeing the item on the recycling table with the phrase “Save for Lamberto. All your’s Bert.” Although the plaintiff stated that he was no longer interested in the item, it was several more months before the toilet seat extender was removed from the view of members of the public who frequented the transfer station. The toilet seat extender was last seen by the plaintiff at the transfer station on March 6, 2008. The plaintiff perceived the presence of the toilet seat extender to be a slur on his Italian ancestry and accused the town of maintaining an atmosphere of hostility toward those of Italian ancestry. The plaintiff reported this matter to the town police, but no arrests were made and the state’s attorney declined to investigate the matter.

The following procedural background is also relevant. On December 9, 2008, the plaintiff filed two separate complaints with the commission alleging discrimination by the town and the state. Pursuant to General Statutes § 46a-83 (b), the commission conducted a review of the file under its merit assessment review program, a preliminary screening process. On May 4, 2009, the commission dismissed the plaintiffs complaint against the town. The plaintiff requested reconsideration of the dismissal, which the commission rejected on the basis that the plaintiffs complaint was untimely. Pursuant to its merit assessment review, the commission dismissed the plaintiffs complaint against the state on April 23,2009. The plaintiff requested reconsideration, which the commission denied on the basis that the complaint failed to state a claim upon which relief could be granted. The trial court affirmed the commission’s dismissal of the plaintiffs complaints. This appeal followed.

We turn next to our standard of review of the plaintiffs claims. “Judicial review of an administrative agency decision requires a court to determine whether there is substantial evidence in the administrative record to support the agency’s findings of basic fact and whether the conclusions drawn from those facts are reasonable. . . . [A]s to questions of law, [t]he court’s ultimate duty is only to decide whether, in light of the evidence, the [agency] has acted unreasonably, arbitrarily, illegally, or in abuse of its discretion. . . . Conclusions of law reached by the administrative agency must stand if the court determines that they resulted from a correct application of the law to the facts found and could reasonably and logically follow from such facts.” (Citation omitted; internal quotation marks omitted.) Blinkoff v. Commission on Human Rights & Opportunities, 129 Conn. App. 714, 720-21, 20 A.3d 1272, cert. denied, 302 Conn. 922, 28 A.3d 341 (2011).

I

The plaintiff first claims that the commission improperly dismissed his complaint against the town as untimely. We are not persuaded.

Pursuant to § 46a-82 (f), complaints filed with the commission must be “filed within one hundred and eighty days after the alleged act of discrimination . . . .’’In Williams v. Commission on Human Rights & Opportunities, 257 Conn. 258, 777 A.2d 645 (2001), our Supreme Court held that the time requirement under § 46a-82 (f) is mandatory. “[A mandatory] time requirement . . . must be complied with, absent such factors as consent, waiver or equitable tolling.” Id., 284.

The last instance of discrimination alleged by the plaintiff in his complaint with the commission occurred on March 6, 2008, which is the date, according to the plaintiff, that he last observed the toilet seat extender at the transfer station. The plaintiff did not file his complaint with the commission until December 9, 2008, a total of 278 days after the last alleged act of discrimination, therefore making his filing untimely. We conclude that there was substantial evidence in the record for the commission to find that the plaintiffs filing was untimely. The trial corut, therefore, properly dismissed the plaintiffs appeal with respect to the town.

n

The plaintiff next claims that the commission erred in dismissing the plaintiffs complaint against the state for failure to state a claim upon which relief may be granted. The commission determined that the plaintiffs complaint did not allege any discrimination on the part of the office of the state’s attorney in declining to prosecute any individuals relating to the continued presence of the toilet seat extender at the town transfer station. The trial court upheld the commission’s decision, concluding that, even if a crime had been committed, prosecutors have “a wide range of discretion” in how to proceed in a criminal prosecution. We agree. “Prosecutors . . . have a wide latitude and broad discretion in determining when, who, why and whether to prosecute for violations of the criminal law. . . . This broad discretion, which necessarily includes deciding which citizens should be prosecuted and for what charges they are to be held accountable . . . rests largely on the recognition that the decision to prosecute is particularly ill-suited to judicial review.” (Citations omitted; internal quotation marks omitted.) State v. Kinchen, 243 Conn. 690, 699, 707 A.2d 1255 (1998).

On the basis of our review of the record, there is nothing that suggests that a failure to prosecute on the part of the state’s attorney was based on discrimination. Also, we agree with the trial court that it is not clear that any crime has occurred for the state to prosecute. Therefore, we conclude that there was substantial evidence in the record for the commission to determine that the plaintiffs claim against the state failed to state a claim upon which relief may be granted.

The judgment is affirmed.

       On October 29, 2008, the plaintiff alleged to the commission that he had been the victim of discrimination, but his submission did not satisfy the requirements to constitute a complaint under the statutory or regulatory requirements. The commission assisted the plaintiff in satisfying the complaint requirements.

       The plaintiff argues that his filing was timely because the “discriminatory act” occurred when he received notice from the town that it would not further investigate his allegations, on October 2, 2008. The town’s failure to further investigate the plaintiffs allegations, absent other allegations, does not constitute a discriminatory act. See West Hartford v. Commission on Human Rights & Opportunities, 176 Conn. 291, 297, 407 A.2d 964 (1978) (“it is the charges contained in the complaints . . . [that] frame the issues to be decided” [internal quotation marks omitted]).

       The plaintiff approached the commission to file a complaint of discrimination on October 29, 2008, but because his complaint was deficient, his complaint was not perfected until December 9, 2008. Even if we considered October 29, 2008, to be the date of the plaintiffs filing, that was 237 days after the last act of alleged discrimination, and, therefore, his filing still was untimely.

         We also conclude that there is no argument to apply the doctrines of consent, waiver or equitable tolling here. See Williams v. Commission on Human Rights & Opportunities, 67 Conn. App. 316, 327, 786 A.2d 1283 (2001).


text:
    MARSHA B. TAYLOR ET AL. v. STEPHEN J. BARBERINO ET AL.
    (AC 32847)
    Gruendel, Espinosa and Peters, Js.

      Argued April 10
    officially released June 19, 2012

      StephanieL. Sgambati, for the appellants (plaintiffs).

      Kerry R. Callahan, with whom, on the brief, was David R. Makarewicz, for the appellee (defendant Seward and Monde).
   Opinion

PER CURIAM.

The plaintiffs, Marsha B. Taylor, formerly known as Marsha B. Petruzelli, and the accounting firm of Draskinis & Reims, P.C., trustee of the Marsha B. Petruzelli Accumulation Trust and the Marsha B. Petruzelli Spray Trust (trusts), appeal from the summary judgment rendered by the trial court in favor of the defendant Seward and Monde. Although the plaintiffs advance multiple claims, they may be distilled to whether the court improperly concluded that no genuine issue of material fact existed as to whether the defendant was negligent in failing to accurately maintain records and to properly account for the financial activities of the trusts. We affirm the judgment of the trial court.

The record, viewed in the light most favorable to the plaintiffs; see Martinelli v. Fusi, 290 Conn. 347, 350, 963 A.2d 640 (2009); reveals the following facts. On August 24, 1973, Stephen J. Barberino, Sr., established the trusts, of which his daughter, Taylor, is the principal beneficiary. The defendant is an accounting firm located in North Haven that was engaged by the trusts in the 1970s to provide accounting services, which relationship continued for decades.

The original trustees of the trusts were Florence M. Barberino and Joseph Abbate. In 1985, Mary Ann Hall replaced Abbate as a trustee; she became sole trustee in 2005. In early 2007, Hall was replaced as trustee by Draskinis & Reims, P.C. Shortly thereafter, the plaintiffs commenced the present action. The first count of their complaint alleged that Hall engaged in conduct detrimental to the trusts’ pecuniary interest and had refused to turn over historical trust information. In count two, the plaintiffs alleged that Stephen J. Barberino, Jr. (Bar-berino), usurped control of the trusts in the early 1980s and falsely held himself out as trustee thereof, thereby engaging in conduct that was detrimental to the pecuniary interest of the trusts. In the third and final count of the complaint, the plaintiffs argued that the defendant “[f]ail[ed] to accurately maintain records of the operation of the trusts” and “[f]ailed to properly account for the financial activities of the trusts.”

On March 22, 2010, the defendant filed a motion for summary judgment, alleging that there was no genuine issue of material fact and that it was entitled to judgment as a matter of law. Specifically, the defendant averred that the evidence before the court established that it was “not engaged by [the trusts] to maintain trust records or manage or account for [their] financial activities. Rather, [the defendant] prepared trust tax returns based on historical information furnished by the clients. [The defendant] simply cannot be held liable for not doing a job for which it was never engaged.” In support of the motion, the defendant submitted (1) the affidavits of Donald Kobs and Gayle Carbone, certified public accountants who worked for the defendant, and (2) portions of Barberino’s deposition testimony.

In objecting to the motion, the plaintiffs submitted the sixty-three paragraph affidavit of Edward Draskinis, an accountant with Draskinis & Reims, P.C., and two affidavits of the plaintiffs’ attorney, Stephanie L. Sgam-bati. As the court noted, the plaintiffs also submitted “forty-one exhibits worth of material, totaling 188 pages, yet there is no clear point as to the relevance of these materials, to establish [the] liability of the defendants. Many are unlabeled pages from deposition testimony, while others are financial or court documents that establish only who were the trustees and beneficiaries.” The court heard argument on the matter on June 22, 2010. In its October 15, 2010 memorandum of decision, the court concluded that the plaintiffs, “despite the presence of an affidavit filed by a plaintiff and a multitude of other documentary material, have not shown that there is any genuine issue of material fact present . . . .” The court thus rendered summary judgment in favor of the defendant, and this appeal followed.

“Summary judgment is appropriate when 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. ... A material fact is a fact that will make a difference in the result of the case. . . . [T]he burden of showing the nonexistence of any material fact is on the party seeking summary judgment .... It is not enough for the moving party merely to assert the absence of any disputed factual issue; the moving party is required to bring forward . . . evidentiary facts, or substantial evidence outside the pleadings to show the absence of any material dispute. . . . Once met, the burden shifts to the party opposing such a motion [to] provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact.” (Citations omitted; internal quotation marks omitted.) James v. Valley-Shore Y.M.C.A., Inc., 125 Conn. App. 174, 177-78, 6 A.3d 1199 (2010), cert. denied, 300 Conn. 916, 13 A.3d 1103 (2011). “[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. . . . Mere assertions of fact . . . are insufficient to establish the existence of [an issue of] material fact and, therefore, cannot refute evidence properly presented to the court [in support of a motion for summary judgment]. . . . Our review of the trial court’s decision to grant the defendant’s motion for summary judgment is plenary.” (Citation omitted; internal quotation marks omitted.) Cadlerock Joint Venture II, L.P. v. Milazzo, 287 Conn. 379, 390, 949 A.2d 450 (2008).

In moving for summary judgment, the defendant maintained that it neither maintained the records nor accounted for the financial activities of the trusts. To substantiate that contention, the defendant submitted the affidavits of Kobs and Carbone, who both provided accounting services to the trusts while employed with the defendant. In his affidavit, Kobs averred in relevant part that the defendant “was engaged beginning in the 1970s by the trusts to prepare annual tax returns. . . . [It] was not engaged to maintain trust records or manage or account for the trusts’ day-to-day financial activities. . . . [The defendant] has never maintained, nor was it engaged to maintain, trust records or to manage or account for the trusts’ financial activities. . . . Throughout the many years that I practiced as an accountant at [the defendant] and during those years that I was involved in providing accounting and tax return preparation services for the trusts, [the defendant] was provided, annually, with historical financial information that [the defendant’s] accountants used to prepare the trusts’ tax returns. [The defendant] was not engaged to perform, nor did its accountants perform bookkeeping services or the day-to-day maintenance of the trusts’ books and records.” In her affidavit, Carbone similarly stated that “[the defendant] was not engaged to maintain trust records, keep the trusts’ books on a day-to-day basis, or manage or account for the trusts’ financial activities. . . . [The defendant] has never maintained, or been engaged to maintain, trust records or to manage or account for the trusts’ day-to-day financial activities.”

The defendant also offered portions of Barberino’s deposition testimony in support of its motion for summary judgment. That evidence indicated that the records of the trusts were maintained by Shari Krawiec, an employee at the Stephen Pontiac Cadillac automobile dealership owned by Barberino. Barberino testified in his deposition that those records originally were stored in an office at that dealership and later were stored in an office at a condominium complex owned by the trusts. Asked whether the defendant would have documents related to the trusts, Barberino answered “[o]nly what they would review at the end of the year . . . .” Barberino further testified that Krawiec provided the defendant with documents and other accounting information to facilitate preparation of the trusts’ tax returns.

In light of that evidence, it was incumbent upon the plaintiffs to provide an evidentiary foundation to substantiate their allegation that the defendant was responsible for regularly maintaining records and accounting for the financial activities of the trusts. That they failed to do. We have reviewed the evidence submitted by the plaintiffs in opposition to the motion for summary judgment and conclude that it does not contain concrete evidence demonstrating the existence of such an issue of material fact. See Gianetti v. Health Net of Connecticut, Inc., 116 Conn. App. 459, 469, 976 A.2d 23 (2009).

As this court has observed, “[o]nly evidence that would be admissible at trial may be used to support or oppose a motion for summary judgment.” United Services Automobile Assn. v. Marburg, 46 Conn. App. 99, 110, 698 A.2d 914 (1997). The affidavits of Draskinis and Sgambati, in particular, plainly do not contain statements based on personal knowledge, as required under Practice Book § 17-46. Indeed, with respect to Draskinis, the court found, and we agree, that “much of what is sworn to . . . does [not] constitute facts that would be admissible at trial. Rather, much of the document consists of [statements] about matters which he has only learned of through reviews of deposition testimony, and offering statements that sound more like legal arguments than statements of fact.”

In addition, Sgambati does not purport to have personal knowledge as to the substance of the numerous invoices appended to her September 10, 2010 “second affidavit in support of [the] supplemental objection to the motion for summary judgment.” On a more basic level, the aforementioned invoices do not demonstrate that the defendant regularly maintained the records or accounted for the financial activities of the trusts during the decades in which it provided accounting services to the trusts, as the plaintiffs alleged in their complaint.

On our review of the pleadings, affidavits and other proof properly submitted, we conclude that there is no genuine issue of fact as to whether the defendant was responsible for maintaining records and accounting for the financial activities of the trusts. Accordingly, the trial court properly rendered summary judgment in favor of the defendant.

The judgment is affirmed.

       Also named as defendants in the plaintiffs’ July 18, 2007 first amended complaint were Stephen J. Barberino, Jr., and Mary Ann Hall. Because they are not parties to this appeal, we refer to Seward and Monde as the defendant in this opinion.

       The record does not contain a written agreement between the parties.

       Barberino is the brother of Taylor.

       Although the summary judgment rendered by the court pertained only to count three of the plaintiffs’ complaint, it is well established that “[a] judgment disposing of only a part of a complaint, counterclaim, or cross complaint is a final judgment if that judgment disposes of all causes of action in that complaint, counterclaim, or cross complaint brought by or against a particular party or parties.” Practice Book § 61-3; see also Berger v. Fitzgerald, 55 Conn. App. 138, 140 n.2, 739 A.2d 287, cert. denied, 251 Conn. 922, 742 A.2d 358 (1999). Because the other counts of the complaint do not implicate the defendant, the plaintiffs’ appeal is properly before this court.

       Practice Book § 17-46 provides in relevant part that “[s]upporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein. ...”


text:
    DEUTSCHE BANK NATIONAL TRUST COMPANY, TRUSTEE v. THOMAS J. SHIVERS, JR., ET AL.
    (AC 32331)
    Alvord, Espinosa and West, Js.
    Argued April 12
    officially released June 19, 2012

      J. Hanson Guest, for the appellant (named defendant).

      Jeffrey M. Knickerbocker, for the appellee (plaintiff).
   Opinion

ALVORD, J.

The plaintiff, Deutsche Bank National Trust Company, as trustee for First Franklin Mortgage Loan Trust 2006-FF9, mortgage pass-through certificates, series 2006-FF9, commenced this residential mortgage foreclosure action in December, 2007, against the defendant Thomas J. Shivers, Jr. The defendant appeals from the judgment of strict foreclosure rendered by the trial court on June 15, 2010. On appeal, the defendant claims that the court improperly granted the plaintiffs motion for summary judgment as to liability. We affirm the judgment of the trial court.

The relevant factual and procedural background is as follows. On March 9, 2006, the defendant executed a promissory note in the principal amount of $228,000 to “NationPoint a division of Nat. City Bank of IN.” As security for the note, the defendant conveyed by way of mortgage deed his interest in residential real property located in the town of Vernon to Mortgage Electronic Registration Systems, Inc., as nominee for NationPoint a division of Nat. City Bank of IN. Subsequently, the defendant failed to make payments as required by the note, and the balance due was accelerated. The defendant’s mortgage thereafter was assigned to the plaintiff, and the assignment was recorded in the town of Vemon land records. The plaintiff commenced the present foreclosure action, alleging that it was the holder of the note and mortgage.

The defendant filed a motion to dismiss the action on February 3, 2009, claiming that the plaintiff lacked standing to maintain the action because the assignment of the mortgage was not recorded until after the action had been commenced and that the plaintiff “may not” be the holder of the note. The court, Vacchelli, J., denied the defendant’s motion to dismiss. In its ruling, the court stated that the holder of the note could bring the mortgage foreclosure action and that the plaintiff had presented the original note at the hearing. On June 22, 2009, the defendant filed a second motion to dismiss the action, claiming that the plaintiff lacked standing because it failed to allege “well-pleaded facts” to establish that it is the holder of the note. The court, Sferrazza, J., denied the second motion to dismiss on July 20,2009.

The trial court file reflects that the defendant made numerous discovery requests during the pendency of the matter and that the court was requested to address multiple objections and motions to compel with respect to the production of requested documents. The file further reflects that, although the defendant filed a disclosure of defense on April 9,2009, he never filed an answer or special defenses to the foreclosure complaint. On February 9, 2010, more than two years after the commencement of the action, the plaintiff filed a motion for summary judgment as to liability only against the defendant, together with an affidavit and a memorandum of law. The defendant filed an objection to the motion for summary judgment on April 15, 2010. He included a memorandum of law, but did not file a count-eraffidavit or any supporting documentation. The court held a hearing on April 19, 2010.

On April 28, 2010, the court issued its memorandum of decision. It addressed the defendant’s arguments challenging the endorsements on the note and the validity of the affidavit submitted by the plaintiff with respect to the defendant’s loan account, payment history and the issuance of default notices. The court concluded that the defendant failed to introduce any documentary evidence that refuted the plaintiffs evidence and that he failed to proffer any evidentiary support for any possible defense to the foreclosure action. Accordingly, the court granted the motion for summary judgment as to liability only against the defendant. The defendant appealed from that ruling on June 11, 2010, after the court denied his motion to reargue. The plaintiff filed a motion to dismiss that appeal on June 16,2010, claiming that it had not been taken from a final judgment.

On June 16, 2010, the court, Sferrazza, J., rendered a judgment of strict foreclosure in favor of the plaintiff. The defendant subsequently filed an amended appeal to include the court’s denial of his motion to nonsuit the plaintiff for its alleged failure to comply with a prior discovery order and to include the judgment of strict foreclosure. On September 20, 2010, this court granted the plaintiffs motion to dismiss the defendant’s appeal but expressly stated that the defendant’s amended appeal remained pending.

The sole issue before us, because it is the only issue briefed by the defendant in his appellate brief, is whether the trial court improperly granted the plaintiffs motion for summary judgment as to liability. The gravamen of the defendant’s argument is that the plaintiff failed to demonstrate that no material issues of fact existed. In addition to his renewed arguments pertaining to the validity of the endorsements, trust agreement and the affidavit, the defendant maintains that the plaintiff had a “heightened burden” in the summary judgment proceeding because the defendant had not yet filed his answer and special defenses.

“The law governing summary judgment and the accompanying standard of review are well settled. Practice Book § [17-49] requires that 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. A material fact is a fact that will make a difference in the result of the case. . . . The facts at issue are those alleged in the pleadings. . . .
“In seeking summary judgment, it is the movant who has the burden of showing the nonexistence of any issue of fact. The courts are in entire agreement that the moving party for summary judgment has the burden of showing the absence of any genuine issue as to all the material facts, which, under applicable principles of substantive law, entitle him to a judgment as a matter of law. The courts hold the movant to a strict standard. To satisfy his burden the movant must make a showing that it is quite clear what the truth is, and that excludes any real doubt as to the existence of any genuine issue of material fact. ... As the burden of proof is on the movant, the evidence must be viewed in the light most favorable to the opponent.” (Citations omitted; internal quotation marks omitted.) Rockwell v. Quintner, 96 Conn. App. 221, 227-28, 899 A.2d 738, cert. denied, 280 Conn. 917, 908 A.2d 538 (2006).
“The party opposing a motion for summary judgment must present evidence that demonstrates the existence of some disputed factual issue .... The movant has the burden of showing the nonexistence of such issues but the evidence thus presented, if otherwise sufficient, is not rebutted by the bald statement that an issue of fact does exist. ... To oppose a motion for summary judgment successfully, the nonmovant must recite specific facts . . . which contradict those stated in the movant’s affidavits and documents. . . . The opposing party to a motion for 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. . . . The existence of the genuine issue of material fact must be demonstrated by counteraffidavits and concrete evidence.” (Citation omitted; emphasis added; internal quotation marks omitted.) Pion v. Southern New England Telephone Co., 44 Conn. App. 657, 663, 691 A.2d 1107 (1997). Our review of the trial court’s decision to grant a motion for summary judgment is plenary. Mazurek v. Great American Ins. Co., 284 Conn. 16, 27, 930 A.2d 682 (2007).

In the present case, the plaintiff submitted an affidavit and documentation demonstrating that it was the holder of the note and mortgage and that the defendant had defaulted under the terms of the note. The plaintiff had the original note at the hearing on its motion for summary judgment. The defendant filed no counteraffi-davit or documentary evidence to contradict the plaintiff’s evidence or to support any potential defense to the action. The fact that he had not yet filed his answer and special defenses does not, under the circumstances of this case, strengthen the defendant’s argument. Practice Book § 17-44 expressly provides that a motion for summary judgment may be filed “at any time . . . .” Further, by the time the motion for summary judgment was scheduled for argument before the trial court, more than two years had passed from the commencement of the action. The defendant already had the benefit of documentation provided through discovery. At oral argument before this court, the defendant admitted that he could have filed his answer and special defenses and that he could have filed a counteraffidavit to defeat the plaintiffs motion for summary judgment, but he maintained that he had no obligation to do so because he believed the plaintiff had not met its burden of demonstrating that no genuine issue of material fact existed.

We have carefully reviewed the record and briefs in this case and agree with the trial court that no evidence was submitted by the defendant to establish the existence of a genuine issue of material fact. The issues raised by the defendant were resolved properly in the thoughtful and concise decision of the court. See Deutsche Bank National Trust Co. v. Shivers, 52 Conn. Sup. 358, 48 A.3d 143 (2010). Because that decision also fully addresses the arguments raised in the present appeal, we adopt the court’s well reasoned decision as a statement of the facts and the applicable law on those issues. It would serve no useful purpose for us to repeat that discussion here. See Tzovolos v. Wiseman, 300 Conn. 247, 253-54, 12 A.3d 563 (2011).

The judgment is affirmed and the case is remanded for the purpose of setting new law days.

In this opinion the other judges concurred.

       The plaintiff also named Mortgage Electronic Registration Systems, Inc., as a defendant in the complaint by virtue of a mortgage interest that it held in the subject property. Mortgage Electronic Registration Systems, Inc., is not a party in this appeal, however, and we refer to Shivers as the defendant in this opinion.

       The defendant’s statement of issues on appeal sets forth five additional claims, none of which were briefed or argued during oral argument before this court. We deem those five claims to be abandoned and decline to review them. See Martel v. Metropolitan District Commission, 275 Conn. 38, 49 n.7, 881 A.2d 194 (2005).

       Although the defendant claims that the plaintiff failed to comply with his discovery requests, he acknowledged at oral argument before this court that the trial court had determined that there had been “substantial compliance” with such requests.

       The trial court’s conclusions are further supported by the recent decision in RMS Residential Properties, LLC v. Miller, 303 Conn. 224, 32 A.3d 307 (2011), which was issued after the trial court’s memorandum of decision in the present case. In Miller, our Supreme Court held: “[A] holder of a note is presumed to be the owner of the debt, and unless the presumption is rebutted, may foreclose the mortgage under [General Statutes] § 49-17. . . . The production of the note establishes his case prima facie against the makers and he may rest there. ... It [is] for the defendant to set up and prove the facts which limit or change the plaintiffs rights.” (Internal quotation marks omitted.) Id., 231-32. Further, the court held that in a summary judgment proceeding, “given the evidence introduced that [the assignee of the mortgage note] was the holder of the note, the court properly found that there was no genuine issue of material fact . . . .” Id., 234.


text:
    ALFRED P. MAYO v. ADMINISTRATOR, UNEMPLOYMENT COMPENSATION ACT, ET AL.
    (AC 33454)
    Bear, Espinosa and Bishop, Js.
    Argued March 12
    officially released June 19, 2012

      Alfred P. Mayo, pro se, the appellant (plaintiff).

      Richard T. Sponzo, assistant attorney general, with whom, on the brief, were George Jepsen, attorney general, and Philip M. Schulz, assistant attorney general, for the appellee (defendant).
   Opinion

PER CURIAM.

The self-represented plaintiff, Alfred P. Mayo, appeals from the judgment of the Superior Court dismissing his appeal from a decision of the employment security board of review (board). On appeal, the plaintiff asserts procedural claims regarding the fairness of the hearing before the appeals referee. He also claims, on the merits, that the appeals referee’s decision denying him unemployment compensation benefits was incorrect as was the subsequent decision of the board affirming the decision of the appeals referee, and that the court incorrectly dismissed his appeal. We affirm the judgment of the Superior Court.

The following undisputed factual and procedural history is pertinent to our resolution of the issues on appeal. The plaintiff was a full-time hourly worker for the defendant Bauer, Inc., (Bauer) from September 26, 2005, until January 15, 2008, when his employer discharged him for insubordination. Thereafter, the plaintiff successfully filed a claim for unemployment compensation benefits with the defendant administrator of the Unemployment Compensation Act. Bauer then contested the plaintiffs entitlement to those benefits. As a result, an appeals referee conducted a de novo fact based hearing. Based on his determination of the relevant facts, the appeals referee reversed the administrator’s ruling and determined, instead, that pursuant to General Statutes § 31-236 (a) (2) (B), the plaintiff was ineligible for unemployment compensation benefits because he had been discharged from employment for wilful misconduct. The plaintiff then appealed to the board, which affirmed the referee’s decision on the basis of its review of the record. In arriving at its determination, the board adopted several of the referee’s factual findings while also substituting its own findings for other findings made by the referee. Thereafter, the plaintiff moved to open the decision of the board, contending that in arriving at its decision to affirm the appeals referee, the board failed to consider adequately certain evidence favorable to his claim. Upon the board’s denial of his motion to open, the plaintiff appealed to the Superior Court which, in turn, dismissed his appeal. This appeal followed.

With respect to judicial review on appeal, “[t]o the extent that an administrative appeal, pursuant to General Statutes § 31-249b, concerns findings of fact, a court is limited to a review of the record certified and filed by the board of review. The court must not retry the facts nor hear evidence. ... If, however, the issue is one of law, the court has the broader responsibility of determining whether the administrative action resulted from an incorrect application of the law to the facts found or could not reasonably or logically have followed from such facts. Although the court may not substitute its own conclusions for those of the administrative board, it retains the ultimate obligation to determine whether the administrative action was unreasonable, arbitrary, illegal, or an abuse of discretion.” (Citations omitted.) United Parcel Service, Inc. v. Administrator, Unemployment Compensation Act, 209 Conn. 381, 385-86, 551 A.2d 724 (1988).

Furthermore, “[a] plaintiffs failure to file a timely motion [to correct] the board’s findings in accordance with [Practice Book] § 22-4 prevents further review of those facts found by the board. ... In the absence of a motion to correct the findings of the board, the court is not entitled to retry the facts or hear evidence. It considers no evidence other than that certified to it by the board, and then for the limited purpose of determining whether . . . there was any evidence to support in law the conclusions reached. [The court] cannot review the conclusions of the board when these depend upon the weight of the evidence and the credibility of witnesses. . . . Practice Book § 22-9 (a).” (Citations omitted; internal quotation marks omitted.) Tosado v. Administrator, Unemployment Compensation Act, 130 Conn. App. 266, 275, 22 A.3d 675 (2011); see Belica v. Administrator, Unemployment Compensation Act, 126 Conn. App. 779, 787, 12 A.3d 1067 (2011) (plaintiffs failure to file motion to correct board’s findings fatal to his contrary factual claims on appeal).

In the present case, it is undisputed that the plaintiff did not file a motion to correct the board’s findings, and, thus, on review, we must accept, as proven, the facts as found by the board. On the basis of the board’s factual determinations regarding the circumstances of the plaintiffs discharge from employment as applied to the law concerning eligibility for receipt of unemployment compensation, we find no error in its conclusion that the plaintiff was discharged for wilful misconduct and, thus, was ineligible for unemployment compensation. On that basis, the court was left with no choice but to dismiss the plaintiffs administrative appeal.

The judgment is affirmed.

       Specifically, the plaintiff claims that the appeals referee had an ex parte conversation with a representative of the defendant Bauer, Inc., the plaintiffs employer, and that, during the hearing before the appeals referee he was not permitted to present his case fully and he was not given an adequate opportunity to cross-examine Bauer’s representative regarding the circumstances of his discharge from employment.

       The record reflects that the plaintiff asked the board to reopen the evidence on the basis that he was denied a fair opportunity to present evidence and to cross-examine witnesses at the hearing before the appeals referee. Pursuant to General Statutes § 31-249, the board may, but is not required to, open the record to take further evidence. In this instance, the board refused to open the record on the basis of its determination that the record of the appeals division hearing demonstrated that the plaintiff was given a full and fair opportunity to present his case before the appeals referee. The board determined, as well, that contrary to the plaintiffs claim, the appeals referee had not engaged in an improper ex parte telephonic conversation with Bauer’s representative regarding the merits of the plaintiffs claim but, instead, simply had arranged to have a Bauer representative available by telephone for purposes of the hearing. Those factual findings will be left undisturbed on appeal since the plaintiff did not file a motion to correct the findings of the board.

       Practice Book § 22-4, concerning unemployment compensation appeals provides in relevant part: “If the appellant desires to have the finding of the board corrected, he or she must, within two weeks after the record has been filed in the superior court, unless the time is extended for cause by the board, file with the board a motion for the correction of the finding and with it such portions of the evidence as he or she deems relevant and material to the corrections asked for
      Practice Book § 22-9 (a), also regarding unemployment compensation appeals, provides in relevant part: “Such appeals are heard by the court upon the certified copy of the record filed by the board. The court does not retry the facts or hear evidence. It considers no evidence other than that certified to it by the board, and then for the limited purpose of determining whether the finding should be corrected, or whether there was any evidence to support in law the conclusions reached. It cannot review the conclusions of the board when these depend upon the weight of the evidence and the credibility of witnesses. . . .”

       Citing to his status as a self-represented party, the plaintiff asks this court, on review, not to be bound by the facts found by the board even though he did not move to correct the board’s findings as required by rule. Although we are solicitous of self-represented parties, we do not abrogate the rules of procedure for self-represented parties as those rules operate not only to create judicial regularity and foreseeability for litigants, but they embody notions of fairness, which it would be unjust to forsake in the name of deference to the self-represented. In a similar vein, this court has previously stated: “Although our courts are consistently . . . solicitous of the rights of pro se litigants, the rules of practice cannot be ignored to the detriment of other parties.” Qhtemal quotation marks omitted.) Oakland Heights Mobile Park, Inc. v. Simon, 36 Conn. App. 432, 436, 651 A.2d 281 (1994).