author: Per Curiam.

text:
    State of Connecticut v. John Yurch
    (11282)
    Dupont, C. J., Freedman and Schaller, Js.
    Argued May 4
    decision released June 22, 1993

      Louis S. Avitabile, with whom, on the brief, was David M. Abbamonte, for the appellant (defendant).

      Stephen R. Park, assistant attorney general-special assistant state’s attorney, with whom were Lisa C. Mueller, law student intern, and, on the brief, Richard Blumenthal, attorney general, for the appellee (state).
   Per Curiam.

The issue in this case is whether the trial court’s charge violated General Statutes § 54-84 (b). Subsection (b) provides: “Unless the accused requests otherwise, the court shall instruct the jury that they may draw no unfavorable inferences from the accused’s failure to testify. . . .” The defendant did not testify at his trial and did not request the court to refrain from giving the statutory charge. Rather, the defendant twice requested that the statutory charge be given.

The trial court then charged the jury that “no unreasonable inference may be drawn from the fact that a defendant decides not to testify.” The defendant claims that the trial court’s use of the word “unreasonable” instead of “unfavorable” is plain error and therefore entitles the defendant to a new trial.

This case is governed by State v. Tatem, 194 Conn. 594, 483 A.2d 1087 (1984). Any but the most minor deviation from the language of General Statutes § 54-84 (b) is plain error. Id., 598; State v. Thurman, 10 Conn. App. 302, 309, 523 A.2d 891, cert. denied, 204 Conn. 805, 528 A.2d 1152 (1987). If the substantive meaning of the statute is changed in the charge, that change constitutes plain error. State v. Thurman, supra, 310-13. State v. Tatem, supra, 601, establishes that the use of “unreasonable” in place of “unfavorable” changes the substantive meaning of the statute and is therefore plain error.

The judgment is reversed and the case is remanded for a new trial.


source: Caselaw Access Project

author: Landau, J.

license: Public Domain

text:
    Ronald E. Theriault v. Board of Education of the Town of Bloomfield
    (11385)
    Foti, Lavery and Landau, Js.
    Argued March 29
    decision released June 7, 1993

      Leon M. Rosenblatt, for the appellant (plaintiff).

      Stephen P. Fogerty, with whom, on the brief, was Carolyn P. Stennett, for the appellee (defendant).
   Landau, J.

The plaintiff, Ronald E. Theriault, appeals from the trial court’s dismissal of his appeal from the decision of the defendant, the board of education of the town of Bloomfield (board), terminating his employment as a vice principal of Bloomfield High School. On appeal, the plaintiff claims that the trial court improperly concluded that (1) there was a written agreement between the board and the Bloomfield administrators association (BAA) governing the termination of the plaintiff and, therefore, the board’s action was not illegal, (2) the notice of the board’s special meeting complied with General Statutes § 1-21, (3) the plaintiff did not object to the board’s meeting in executive session in violation of General Statutes § l-18a, and (4) the process by which the plaintiff was selected for termination did not violate the plaintiff’s due process rights. We agree with the plaintiff’s first claim and reverse the judgment of the trial court. As the first claim is dispositive of this appeal, we do not consider the plaintiff’s remaining claims.

The following facts are pertinent to this appeal. Theriault was an employee of the board for twenty-two years prior to his termination in 1991. He spent the last sixteen of those years as a vice principal. There were two other vice principals employed by the board. They were Yaughn Ramseur, who was a vice principal for the ten years prior to this action, and Paul Ryan, who was a vice principal for the three years prior to this action. During the 1989-90 school year, the superintendent of schools, Paul Copes, proposed a budget that called for a ten year plan to buy additional books for the school library system. The board also sought to reduce the number of vice principals at the high school from three to two. The board combined these two objectives in a plan to eliminate a vice principal position and purchase the books over five years with the money saved from the elimination of the vice principal position.

Copes, charged with executing this plan, had to determine which of the three vice principal positions would be terminated. Copes initially determined that because the evaluations of the three vice principals were “all good” and that they were all equally qualified, seniority was to be the deciding factor. Pursuant to that conclusion, he notified Ryan that his position had been selected for termination. Ryan filed a grievance with the BAA and Copes later rescinded his termination of Ryan.

The BAA held two meetings, scheduled on short notice by Ramseur, the president of the BAA, to determine the procedure that would be used to select the position for termination. Theriault, although the vice president of the BAA, was not informed of either of these meetings and did not attend. Every other member of the BAA attended these two meetings.

The BAA considered two selection methods. The first was a “qualitative” method by which the vice principal with the least seniority would be terminated. The other was a “quantitative” method by which numerical scores would be computed based on a series of evaluations of the three vice principals. At the first meeting, the vote resulted in a tie. Ramseur, as president of the BAA, did not participate in the first vote. At the second meeting less than one week later, the vote also resulted in a tie. A few days after the second meeting, Ramseur and Carl Nebelsky, the treasurer of the BAA, met with David Mulholland, president of the Connecticut Federation of School Administrators. On the basis of that meeting, Ramseur decided that the quantitative method should be used and, without calling a further meeting, broke the tie in favor of the quantitative method. Ram-seur forwarded the BAA’s recommendation to Copes.

Copes, following the BAA’s recommendation, considered the evaluations of the three vice principals for the 1987-88,1988-89 and 1989-90 school years. Copes relied primarily, however, on the evaluations from the 1989-90 school year, the first year that an actual numerical evaluation system was used. On the basis of the 1989-90 evaluations, Copes decided that Theriault had the poorest evaluation and informed him that his position was being terminated. Copes forwarded this recommendation to the board, which called a special meeting. Theriault requested that the meeting be held in a public session pursuant to General Statutes § l-18a (e), but the board disregarded his request and met in executive session and voted to terminate him. Theriault appealed to the Superior Court, which dismissed his appeal.

On appeal to this court, Theriault claims that the trial court improperly concluded that there was a written agreement between the board of education and the board of administrators association governing the termination of the plaintiff and, therefore, the board’s action was not illegal. We agree.

General Statutes § 10-151 (f) “grants a teacher aggrieved by the board’s decision the right to judicial review in the Superior Court. On appeal, the court must determine whether the appropriate procedure under the statute and the state and federal constitutions was employed . . . and whether the evidence relied upon was reliable and substantial and, if believed, sufficient to establish cause under the statute. . . . Effective judicial review of administrative decisions requires that such decisions be based upon substantial evidence and proper reasons. . . . A court reviewing an administrative determination cannot engage in surmise and conjecture to determine whether the decision was lawfully reached.” (Citations omitted.) Lee v. Board of Education, 181 Conn. 69, 81-82, 434 A.2d 333 (1980).

Termination of tenured teachers is governed by General Statutes § 10-151 (d). That section provides that the contract of employment of a teacher who has attained tenure may be terminated provided that “determination of the individual contract or contracts of employment to be terminated shall be made in accordance with either (A) a provision for a layoff procedure agreed upon by the board of education and the exclusive employees’ representative organization or (B) in the absence of such agreement, a written policy of the board of education . . . .” General Statutes § 10-151 (d). “A basic tenet of statutory construction is that when a statute is clear and unambiguous, there is no room for construction.” (Internal quotation marks omitted.) Infante v. Porath, 29 Conn. App. 465, 467, 615 A.2d 1073 (1992). “We must interpret a statute according to its plain and ordinary meaning.” Tucker v. Board of Education, 4 Conn. App. 87, 92, 492 A.2d 839 (1985). General Statutes § 10-151 (d) clearly and unambiguously requires that there be either a layoff procedure as part of the collective bargaining agreement between the board of education and the teachers’ representatives or, in the absence of such agreement, a written policy of the board of education regarding layoffs.

The defendant claims that article Y, § 5.2, of the collective bargaining agreement, entitled “Reduction in Force,” provides the procedure by which a position is eliminated. Our review of that section clearly demonstrates otherwise. Part (a) of that section simply explains that a reduction in force occurs when the board eliminates an administrative position. Parts (b) and (c) are concerned with only the lateral or lower movement of a teacher after the termination has already taken place. This provision does not detail procedures to be followed when a teacher is removed in the first instance and, therefore, does not satisfy the requirements of the statute.

Our review of the record also indicates that there is no written policy of the board regarding the termination of teachers. The very necessity of the BAA meetings, the meetings between Copes and the BAA, and the meeting between Ramseur, Nebelsky and Mulhol-land to determine how to eliminate the position as well as implementation of the quantitative method by Copes and the BAA demonstrates that no policy existed. Indeed, Copes himself stated that although he would use this method to eliminate the plaintiffs position, he would not be bound by this method in the future. Therefore, the trial court’s conclusion that the board did not act illegally in terminating the plaintiff is improper and must be reversed.

Having concluded as such, we must now determine the proper remand and remedy. In Catino v. Board of Education, 174 Conn. 414, 389 A.2d 754 (1978), our Supreme Court held that a proper remedy afforded a tenured teacher improperly dismissed by a board of education is reinstatement and back pay. Here, however, as in Catino v. Board of Education, supra, there is no evidence in the record regarding the amount of pay to which the plaintiff is entitled. Therefore, an evidentiary hearing is required to determine this issue.

The judgment of the trial court is reversed and the case is remanded to the trial court with direction to sustain the plaintiff’s appeal and to hold an evidentiary hearing to determine the amount of back pay to which the plaintiff is entitled.

In this opinion the other judges concurred.

       General Statutes § l-18a provides in pertinent part: “(e) ‘Executive sessions’ means a meeting of a public agency at which the public is excluded for one or more of the following purposes: (1) Discussion concerning the appointment, employment, performance, evaluation, health or dismissal of a public officer or employee, provided that such individual may require that discussion be held at an open meeting . . . .”

       While the plaintiff holds an administrative'position with the board, he is being terminated as both an administrator and a tenured teacher. Therefore, his termination falls under the procedural protections of General Statutes § 10-151.

       Both parties have conceded throughout these proceedings that there is no provision in the collective bargaining agreement regarding the termination of a tenured teacher. In a letter from Ramseur to Copes, Ramseur stated that “[i]t is the position of the Bloomfield Administrators’ Association that our contract is silent relative to a Reduction in Force process and how a decision is to be made as to who is to be ‘Riffed.’ ” Copes also conceded that there was no termination procedure between the board and the BAA in the collective bargaining agreement.


author: O’Connell, J.

text:
    John J. McCook v. Ursula M. Coutu
    (11273)
    O’Connell, Foti and Heiman, Js.

      Argued March 23
    decision released June 22, 1993

      Raymond L. Baribeault, Jr., with whom, on the brief, was Andrew J. Brand, for the appellant (defendant).

      G. Russell Stewart III, for the appellee (plaintiff).
   O’Connell, J.

The defendant appeals from the judgment of the trial court setting aside and nullifying two deeds she claimed granted her an interest in the plaintiff’s residence. The defendant claims that the trial court improperly concluded that (1) the legal effect of the first deed was subsequently nullified, (2) there was no delivery of the second deed, (3) her recording of copies of the deeds did not constitute a valid recording of the deeds, (4) the deeds were of no legal effect, and (5) she did not satisfy her burden of proof on her counterclaim. We affirm the judgment of the trial court.

The following facts are relevant to this appeal. The plaintiff and the defendant became romantically involved in 1978. In 1979, the defendant and her daughter moved in with the plaintiff at his residence at 117 Four Mile River Road in Old Lyme. Over the next several years, the parties periodically discussed marriage but did not marry.

During the course of the relationship, the defendant expressed her concern for financial security for herself and her daughter. Attempting to demonstrate his good faith, on April 19, 1984, the plaintiff instructed his attorney to prepare a quitclaim deed that would result in each party’s owning a one-half interest with right of survivorship in his Four Mile River Road property. Instead of drafting the deed in accordance with the plaintiff’s intent, however, the plaintiff’s attorney mistakenly drafted the deed so that it conveyed the entire fee to the defendant. The defendant was not present when the deed was executed but later learned of its existence and that it purportedly granted her an interest in the property less than the entire fee.

The parties’ testimony regarding delivery of the deed was entirely at odds. The plaintiff claimed that he was anticipating marriage to the defendant and that he intended to give her the deed after the marriage took place. He explained that because of this, he hid the deed when he arrived home from the attorney’s office and never gave it to the defendant. The defendant contended that when the plaintiff arrived home he gave her the deed, told her not to record it and reassured her that she no longer would have to worry about having a home if something happened to him. The trial court did not make any factual findings on this issue.

Approximately two months later, the parties learned that the deed had been erroneously drafted. The plaintiff testified that he discovered the error himself, contacted his attorney and destroyed the deed. The defendant, on the other hand, maintained that she received a phone call from the plaintiff’s attorney notifying her of the mistake and requesting that the deed be returned to him. She then told the plaintiff about the attorney’s request and the plaintiff subsequently returned the deed to the attorney. The trial court reasoned that “no matter whose recitation of facts the court believes, the unconditional return of the document to the drafting attorney or the destruction of the document by the plaintiff, the legal effect of the document was nullified. By each one’s conduct the court infers that each assented to the fact the deed was of no effect.”

Thereafter, on July 20,1984, the plaintiff, again without the defendant’s knowledge, had a second deed drawn and executed. This one was properly drafted to result in each party’s owning the intended undivided one-half interest with right of survivorship. As was the case with the first deed, the parties’ versions of the events following the drafting of the second deed were sharply contradictory. The plaintiff testified that he brought the deed home, hid it in a locked drawer to which only he had access and did not give the deed to the defendant. The defendant asserted that the plaintiff gave her the deed upon his arrival home with instructions not to record it. The trial court apparently believed the plaintiff and found that he did not deliver the deed to the defendant.

In 1985, the parties’ relationship deteriorated and the defendant and her daughter moved out. At that time, the deed was in the plaintiff’s possession and neither it nor the first deed had been recorded. The defendant maintained that the plaintiff was in possession of the deed because she had given it to him in exchange for his promise to pay her $50,000 for her share of the property. The plaintiff declared that he always had the deed and that no such agreement existed. The trial court, in its memorandum of decision, stated that “[t]his court cannot find that there ever was such an agreement, a meeting of the minds.”

Subsequently, on June 20,1985, the defendant went to the plaintiff’s attorney’s office and, without the plaintiff’s consent, authorization or knowledge, obtained a copy of the second deed and recorded it at the town clerk’s office. Two weeks later, in a similar manner, she obtained and recorded a copy of the first deed. Each deed was a photocopy made after execution by the plaintiff.

The plaintiff commenced this action seeking an order declaring him to be the rightful owner of the property. The defendant counterclaimed alleging that she was the rightful owner. She further claimed the existence of a confidential relationship and that the plaintiff held a one-half interest in the property in constructive trust for her. The trial court rendered judgment for the plaintiff on both the claim and the counterclaim. The defendant appealed.

The defendant first argues that the trial court improperly concluded that the legal effect of the first deed was nullified by the unconditional return of the deed by the plaintiff to his attorney. The defendant relies on Botsford v. Morehouse, 4 Conn. 550 (1823), for the proposition that once a deed has been delivered, neither the subsequent return of the deed to the grantor nor its destruction can undo the delivery. Whatever the merits of Botsford may be, it is clear that it is applicable only if there has first been a valid delivery and, here, the trial court made no findings on this issue. The court simply concluded that notwithstanding the issue of delivery, the legal effect of the deed was nullified. Consequently, we do not know from the memorandum of decision if there was a valid delivery.

The appellant has the burden of providing an adequate record for review. Walton v. New Hartford, 223 Conn. 155, 165, 612 A.2d 1153 (1992); see’Practice Book § 4061. In the present case, the defendant did not seek an articulation on this issue. Delivery is necessarily a question of fact; Lomartira v. Lomartira, 159 Conn. 558, 562, 271 A.2d 91 (1970); and we cannot find facts. Robertson v. Nationwide Mutual Ins. Co., 20 Conn. App. 635, 637, 569 A.2d 565 (1990). This is particularly true where, as here, the factual findings are inextricably linked to the credibility of the witnesses. Accordingly, we do not review this claim.

The defendant next claims that the trial court improperly found that the plaintiff had proved by clear and convincing evidence that there was no delivery of the second deed. Delivery of a deed coupled with intent by the grantor to pass title is necessary for a valid conveyance. Lomartira v. Lomartira, supra, 561. “The delivery of a deed includes not only an act by which the grantor parts with the possession of it, but also a concurring intent on the part of the grantor that it shall vest the title in the grantee.” Costello v. Costello, 136 Conn. 611, 615-16, 73 A.2d 333 (1950). Both elements involve questions of fact for the trier of fact. Id., 616; see also Lomartira v. Lomartira, supra, 562 (“delivery always depends upon the intent of the grantor as manifested by his words and acts, and it is necessarily a question of fact”).

The party asserting nondelivery must prove it by clear and convincing evidence. Lomartira v. Lomartira, supra; Bell v. Bloom, 146 Conn. 307, 309, 150 A.2d 300 (1959). In the present case, the trial court expressly concluded that the plaintiff satisfied this burden. In arriving at that conclusion, the trial court heard diametrically opposing testimony from the parties concerning the possession and intent elements of delivery and ultimately believed the plaintiff. Indeed, the trial court, in its memorandum of decision, noted that “[t]here is conflicting evidence from the defendant especially as to what happened to deed number two. Her courtroom testimony is not consistent with prior deposition testimony which comes to the court as an exhibit.” The trier of fact is the final judge of the credibility of witnesses. R. Zemper & Associates v. Scoz-zafava, 28 Conn. App. 557, 561, 611 A.2d 449 (1992). This court cannot find facts but can only review the findings to determine whether they legally, logically and reasonably could have been found by the trier. Id. In the present case, our review of the record satisfies us that the court properly found that there was no delivery of the second deed.

In light of our disposition of the first two claims, we do not reach the defendant’s third claim. Moreover, the defendant’s fourth claim is subsumed under the first two claims and requires no additional discussion.

The defendant finally claims that the trial court improperly concluded that she had failed to sustain her burden of proof on her counterclaim, which alleged the existence of a confidential relationship and constructive trust. The memorandum of decision states only that the defendant failed to prove the allegations of the counterclaim. No factual findings accompany this determination and the defendant did not seek articulation of its factual basis. Because the appellant has the burden of providing an adequate record for review; Walton v. New Hartford, supra; and she has not done so here, we do not review this claim. Rather, “we presume that the trial court, in rendering its judgment in favor of the [plaintiff], undertook the proper analysis of the law and the facts.” S & S Tobacco & Candy Co. v. Greater New York Mutual Ins. Co., 224 Conn. 313, 321-22, 617 A.2d 1388 (1992).

The judgment is affirmed.

In this opinion the other judges concurred.

       Recording of the copies is irrelevant because the issues in this case concern the rights of only the immediate parties to the deeds. Recording affects only the rights of persons other than the grantor and grantee and their heirs. General Statutes § 47-10; Gruss v. Miskinis, 130 Conn. 367, 371, 34 A.2d 600 (1943); French v. Gray, 2 Conn. 92, 98 (1816).

       The defendant did seek articulation of other specific issues. The trial court denied the motion and she sought review in this court. We granted her motion for review and directed the trial court to respond to the defendant’s questions.


text:
    Vito A. Rossi, Coadministrator (Estate of Gaetano T. Rossi) et al. v. William H. Stanback et al.
    (11297)
    Lavery, Landau and Schaller, Js.
    Argued February 17
    decision released June 22, 1993

      Kenneth John Laska, for the appellants (plaintiffs).

      Andrew J. O’Keefe, with whom were Denise Rodosevich and, on the brief, Michael J. Walsh, for the appellees (defendants).
   Landau, J.

The plaintiffs appeal from a judgment rendered on a jury verdict in favor of the defendants in a cause of action based on negligence. On appeal, the plaintiffs claim that the trial court improperly (1) refused to submit separate plaintiffs’ verdict forms for each count of the complaint, and (2) charged the jury regarding foreseeability, imputed negligence and duty of care. We agree with the plaintiffs’ first claim and reverse the judgment of the trial court. Therefore, we do not address the plaintiffs’ remaining claims.

The jury could reasonably have found the following facts. On July 20,1987, the defendant William H. Stan-back was employed as a truck driver for the defendant Savin Brothers, Inc., a construction firm under contract with the state of Connecticut to widen Interstate 91 in Hartford. The decedent was employed as an inspector by C. E. McGuire. As part of the construction process, Savin transported loads of fill to the construction site. Rossi’s duties were to inspect the loads of fill dumped on the site and to calculate the cubic yardage of fill deposited. John Santos was employed by Savin as a “dump man.” As a dump man, Santos directed the truck drivers on the jobsite, among them Stanback, as they were backing up to dump the loads of fill. The direction was necessary because the truck drivers could not see directly behind their trucks as they were backing up. After the drivers had backed into the position as directed by the dump man, they would raise the truck bodies, drop the fill, and pull forward with the truck bodies raised to allow all the fill to fall from the trucks. The truck drivers would then stop, lower the truck bodies, and latch the tailgates. These maneuvers were directed by hand signals from the dump man to the truck drivers. A blast of a truck horn was a danger signal used by the drivers. Whenever a horn sounded, all truckers were to stop immediately.

On the day of the accident, Stanback drove onto the dumpsite, made a U-turn, stopped and waited for a signal from Santos. While Stanback got into position, Santos was directing another driver, Willie McDuffie, through his dumping routine. While Stanback was waiting and McDuffie was pulling forward to finish his dump, Rossi walked toward Santos. When Santos finished with McDuffie and turned toward Stanback, he saw that Stanback had begun to back up and was heading directly at Rossi. Santos immediately yelled to both Rossi and Stanback, but neither heard him because of the noise on the site. Santos then ran to McDuffie’s truck and told him to sound his horn, which McDuffie did twice. Stanback did not heed the first warning. Rossi, however, heard the first blast and turned toward Stanback’s truck. As he turned, Stanback’s truck knocked him over and dragged him under the driver’s side rear wheels. Stanback continued to back up. Stan-back heard the second blast and stopped backing up. Santos ran to Stanback’s truck and told him what had happened. Rossi, meanwhile, was caught between the first two sets of tires. Santos told Stanback to pull forward over Rossi so as to render medical attention. Stan-back, however, backed up and over Rossi again. Shortly thereafter, Rossi died.

At trial, the plaintiffs, in arguments and a request to charge, requested the trial court to submit a plaintiffs’ verdict form on each count of the complaint. The trial court refused and issued only'one plaintiffs’ verdict form for the entire complaint. The trial court submitted three defendants’ verdict forms to the jury.

The plaintiffs’ first claim is that the trial court improperly refused to issue separate plaintiffs’ verdict forms for each count of the complaint. We agree.

When a complaint contains more than one cause of action, a party has a right to separate verdicts on each cause of action. Booker v. Stern, 19 Conn. App. 322, 328-29, 563 A.2d 305 (1989). “It is the practice, if the rights of the parties so demand, to direct the jury to find upon each separate issue, when separate and independent claims are to be determined by distinct issues; and when separate and distinct matters of substantially different character and nature are litigated and to be determined by separate issues, it is the right of the parties to have the verdict follow and answer the issues; especially so when other rights and obligations may depend upon the verdict.” Johnson v. Higgins, 53 Conn. 236, 240, 1 A. 616 (1885). “ ‘When there are several counts for distinct and independent causes of action ... it would doubtless be the duty of the [trial] court to comply with such a request.’ ” Id., 241.

In the case before us, the complaint was in two counts. The first count of the complaint sounded in negligence against the defendants Stanback and Savin Brothers. The second count also sounded in negligence against the defendant Savin Brothers. The defendants asserted more than one defense to both counts, including the denial of negligence and causation, and the special defense of contributory negligence. The court submitted three defendants’ verdict forms to the jury: the first finding for the defendants on count one; the second finding for the defendant Savin Brothers on count two; and the third finding for the defendants on both counts.

The plaintiffs’ verdict form submitted to the jury gave the jury the opportunity to find for the plaintiffs only against both defendants. It did not provide the jury with the opportunity to find against the defendant Savin Brothers. Although the court did not agree with the form of the verdict forms the plaintiffs sought to have submitted to the jury, the court was under a duty to submit forms, as the plaintiffs requested, that allowed the jury to determine each count of the complaint separately. The verdict in this case did not follow and answer the issues and individual counts of the complaint. “The rule above stated has always obtained in this state, and . . . it is more important . . . that this rule should be complied with in all cases where the rights of the parties demand it.” Id. The rights of the plaintiffs demanded that separate plaintiffs’ verdict forms as to each count of the complaint be submitted to the jury. Because the first claim is dispositive, we do not address the remaining claims.

The judgment is reversed and the case is remanded for a new trial.

In this opinion the other judges concurred.

       The plaintiffs are Vito A. Rossi and Carolyn A. Rossi, coadministrators of the estate of the decedent, Gaetano Rossi, also known as Thomas Rossi.

       The several plaintiffs’ verdict forms that were not allowed by the trial court divided the cause of action into the separate counts as stated in the complaint and the separate defendants named in the complaint.


author: Freedman, J.

text:
    William Colby v. Alexander Burnham
    (11433)
    O’Connell, Freedman and Schaller, Js.

      Argued March 26
    decision released June 29, 1993

      Thomas M. Cassone, with whom, on the brief, were Robert S. Bello, Lawrence M. Lapine and Christopher R. Bello, for the appellant (defendant).

      Jonathan A. Flatow, for the appellee (plaintiff).
   Freedman, J.

This is a contract action involving the termination of a coauthorship agreement to produce Lost Victory, a book on the involvement of the United States in the war in Vietnam. The trial court rendered judgment pursuant to a referee’s corrected report finding that the defendant failed to perform his obligations under the agreement between the parties in a timely manner and awarding the plaintiff $23,000 in damages. On appeal, the defendant claims that the attorney trial referee improperly (1) found that the defendant had breached the agreement by failing to perform within an implied reasonable time when a controlling express time for performance had yet to expire, (2) found that an implied reasonable time for performance had already expired when the plaintiff declared the coauthorship agreement to be terminated, (3) found that the defendant had breached the agreement by failing to perform within an implied reasonable time when the plaintiff had tried and briefed the case under a different legal theory, (4) awarded damages to the plaintiff, and (5) calculated the amount of the plaintiffs damages. We affirm the judgment of the trial court.

This case was tried to an attorney trial referee. The attorney trial referee issued a report, which was subsequently corrected after a motion was filed by the defendant pursuant to Practice Book § 438. After motions by the defendant excepting to the findings of fact in the referee’s corrected report and objecting to the acceptance of the referee’s corrected report, the trial court rendered judgment in accordance with the corrected report.

The record reveals the following. In 1983, the plaintiff, a former Central Intelligence Agency (CIA) officer and later the director of the CIA, undertook to write a book about the Vietnam war. The plaintiff wanted to give a sixteen year chronology regarding his experiences in Vietnam between 1959 and 1975. The plaintiff was unable to interest the agent and publisher of his earlier work, Honorable Men, in this new project. The plaintiff then entered into a coauthorship agreement with Anthony Cave Brown, and MacMillan Publishing Company in mid-1983 to produce the book. In early 1986, however, MacMillan terminated the agreement due to problems with the manuscript.

The plaintiff continued to work on the manuscript. Later in 1986, the plaintiff found another coauthor, James McCargar. Although the plaintiff did not have a literary agent or publisher, he agreed with McCar-gar that they would share equally any proceeds upon the publication of the book. The plaintiff eventually discharged McCargar in 1987 because he was dissatisfied with the speed of McCargar’s work. The plaintiff agreed with McCargar’s agent that the work produced by McCargar was worth $10,000, payable $5000 at the termination of their working relationship and $5000 from any proceeds from the book.

In the summer of 1987, the plaintiff contacted the defendant and discussed working with him on the book. At that time, the plaintiff supplied the defendant with an initial draft of the proposed book. The plaintiff also informed the defendant that, pursuant to an agreement between the plaintiff and the CIA, any literary work produced by the plaintiff that dealt with intelligence matters had to be submitted to the CIA for its review and clearance. A substantial portion of the book contemplated by the parties was to deal with such matters.

In the fall of 1987, with the assistance of Robert Eringer, a literary agent, the parties entered into a “memorandum of intent, ” setting forth the understanding and obligations of the parties regarding their work together on the book. The defendant then began working on transforming the plaintiffs manuscript into a book suitable for publication.

In December, 1987, the parties entered into a written agreement with Contemporary Books, Inc. (publisher), for the publication of the book. The agreement provided for a $100,000 advance to be paid one third on signing, one third on acceptance of the manuscript and one third on publication. The agreement further provided that the parties’ manuscript would be delivered to the publisher by March 30,1988. Although this deadline was unrealistically early, the book could have been published on the fall 1988 “list.” This necessitated the completion of a good quality manuscript by early or midspring, 1988.

On January 14,1988, the parties entered into a written agreement whereby the defendant would receive the entire first payment on the advance. It is standard in the publishing industry for the first installment of the publisher’s advance, where one author in a coauthor relationship is a professional writer, to go to the professional writer. In addition, the defendant was in need of the money. The following month, the defendant received his share of the first advance payment, which totaled $30,000 after Eringer was paid his 10 percent agent fee.

The January 14 agreement also provided that “[i]n the event that any of these funds must be repaid to Contemporary Books, Inc., under the contract, the repayments will be proportional to the amount of the funds received between Burnham and Colby.” This provision, however, never became effective because at no time did the publisher require a refund of the $30,000 advance payment.

At the end of January, 1988, the defendant sent to the plaintiff approximately sixty pages of a second draft manuscript. The sixty pages of material were in a form suitable for submission to the publisher but covered only one-sixteenth of the proposed subject matter of the book. Thereafter, the defendant stopped producing manuscript in any serious quantity.

The parties failed to meet the March 30,1988 deadline to provide the publisher with a manuscript. The publisher made no claim for damages as a result of this breach. Thereafter, the publisher and the parties extended the deadline set forth in their agreement to April 30,1988. The parties failed to meet this deadline as well. By letter dated May 20, 1988, the publisher unilaterally extended the parties’ deadline for producing an acceptable manuscript to August 30, 1988. At that time, the publisher also altered the terms of its agreement with the parties to provide that the book would be scheduled for publication on the spring 1989 list, rather than the fall 1988 list as originally agreed. Publication of this book on the fall 1988 list was important for marketing reasons.

On June 7,1988, the entire manuscript prepared by the defendant consisted of ninety-three pages and covered the subject matter only to May, 1961. Moreover, this manuscript was not suitable for submission to the publisher. The plaintiff declared the defendant in breach of contract on June 7, 1988.

Thereafter, the plaintiff rehired McCargar as coauthor. The plaintiff agreed to share any book proceeds equally with McCargar. A manuscript was delivered to the publisher in the fall of 1988 but was not accepted by it until April, 1989. The book Lost Victory was published in November, 1989, but has not generated enough revenue to offset the advance payment and to generate additional royalties.

Additional facts are set forth where they are relevant.

I

Liability

The defendant first claims that the trial court improperly rendered judgment on the referee’s corrected report because the referee improperly found that the defendant had breached the coauthorship agreement by failing to perform within an implied reasonable time when a controlling express time for performance had yet to expire. The defendant contends that the parties’ contract with the publisher established August 30, 1988, as the deadline for performance of the coauthor-ship. The defendant claims that the referee improperly failed to read the parties’ agreement with the publisher together with the two other written agreements signed by the parties alone in determining the parties’ intent with respect to the time for performance. We disagree.

“To give meaning to contracts, courts interpret the intent of the parties by construing the whole contract and all relevant provisions together. . . . In construing contract terms, the court seeks to effectuate the intent of the parties. ... To ascertain the parties’ intent, the courts consider not only the language used in the contract but also the circumstances surrounding the making of the contract, the motives of the parties and the purposes which they sought to accomplish.” (Citations omitted; internal quotation marks omitted.) Harvey v. Daddona, 29 Conn. App. 369, 375, 615 A.2d 177 (1992). The intent of the parties is normally a question of fact for the trier; Connecticut National Bank v. N. E. Owen II, Inc., 22 Conn. App. 468, 474, 578 A.2d 655 (1990); which we will not disturb unless it is “clearly erroneous.” Id.

“In considering the expressed intent of a contract evidenced ... by multiple writings, all of the writings should be considered and an endeavor made to ascertain the expressed intent of the contract as a whole.” Schubert v. Ivey, 158 Conn. 583, 587, 264 A.2d 562 (1969). Because the referee was urged by both parties to consider all of the various documents signed by them, it properly did so. Nonetheless, the referee found that neither the memorandum of intent taken alone; see footnote 2, supra; nor the various documents construed together established a time for performance by the defendant of his contractual obligation to produce a second and a third draft of the manuscript. The referee specifically declined to find that the defendant’s deadline for performance coincided with the August 30 deadline established by the publisher for performance by the plaintiff and the defendant. Instead, the referee concluded that the defendant’s time to perform his obligations to the plaintiff “was at a time sufficiently in advance of August 30,1988 [so] that a second and third draft manuscript could have been reviewed by the plaintiff, modified and put into final form, submitted to the CIA for approval, and then presented to the publisher by August 30,1988.” (Emphasis added.) Thus, the referee properly recognized that the publisher’s deadline marked the end of the prepublication process. That deadline was to occur after the defendant had performed his contractual obligations. Consequently, the defendant’s performance was necessarily due at some point in advance of the publisher’s deadline, and the referee properly concluded that the agreement between the parties as expressed in the several documents contained no express provision regarding the defendant’s time of performance.

The defendant next argues that, even if the contract did not contain an express provision regarding his time for performance, the referee improperly determined that the defendant’s time for performance under the contract had already expired when the plaintiff terminated his coauthor relationship with the defendant on June 7, 1988. We disagree.

“ ‘Where no time for the performance of a contract is contained within its terms, the law presumes that it is to be performed within a reasonable time. Texas Co. v. Crown Petroleum Corporation, 137 Conn. 217, 277, 75 A.2d 499 [1950]; Santoro v. Mack, 108 Conn. 683, 689, 145 A. 273 [1929].’ Benassi v. Harris, 147 Conn. 451, 458, 162 A.2d 521 (1960); see also Central New Haven Development Corporation v. LaCrepe, Inc., 177 Conn. 212, 216, 413 A.2d 840 (1979). ‘What is a reasonable length of time is ordinarily a question of fact for the trier. International Tool & Gauge Co. v. Borg, 145 Conn. 644, 648, 145 A.2d 750 [1958]; Loomis v. Norman Printers Supply Co., 81 Conn. 343, 347, 71 A. 358 [1908].’ Parkway Trailer Sales, Inc. v. Woold-ridge Bros., Inc., 148 Conn. 21, 26, 166 A.2d 710 (I960).” Martin v. Martin’s News Service, Inc., 9 Conn. App. 304, 308-309, 518 A.2d 951 (1986), cert. denied, 202 Conn. 807, 520 A.2d 1287 (1987).

Here, the referee concluded that while “[i]t is impossible to state with exactitude when the reasonable time within which [the] defendant had to perform his duties under the contract between him and the plaintiff had expired . . . [however] as of June 7, 1988, such reasonable time had expired.” This finding is supported by the evidence adduced at trial, which showed that publication of the book on the fall 1988 list was important for marketing and that, in order to accomplish this goal, the parties had to submit a good quality manuscript to the publisher, after compliance with CIA prepublication clearance procedures, by midspring, 1988, at the latest.

The defendant points to two facts that, he contends, undermine the referee’s finding that his reasonable time for performance had expired by June 7, 1988: (1) the plaintiff spent more time working on the book with other individuals than he did with the defendant, and (2) the trial court could not find that the defendant would have ultimately failed to provide a suitable manuscript in order to permit the parties to meet the publisher’s August 30, 1988 deadline, although it did find such an outcome extremely unlikely. Both of these factual considerations, while relevant to the question of when the defendant should reasonably have been expected to have performed his contractual obligations, are not dispositive of the determination of the defendant’s reasonable time for performance under the contract between the plaintiff and the defendant because they were not the only facts that the referee was entitled to consider in reaching his conclusion. Accordingly, the defendant’s argument to the contrary notwithstanding, we conclude that the referee’s finding that the defendant’s reasonable time for performance had expired by June 7,1988, was not clearly erroneous.

The defendant’s final challenge to the referee’s determination of liability is his claim that the plaintiff sought to establish his liability under a theory of anticipatory breach while the referee found the defendant liable under a theory of breach of an implied reasonable time for performance. The defendant argues that this variance requires our reversal of the judgment. We find the defendant’s claim to be without merit.

In his brief, the defendant’s entire argument on this point consists of three sentences. The sole authority for his claim is this court’s decision in Francis v. Hol-lauer, 1 Conn. App. 693, 475 A.2d 326 (1984).

In Francis v. Hollauer, supra, the plaintiffs sought to enjoin the defendants from maintaining a fence in the middle of the parties’ jointly used driveway and sought to quiet title to the portion of the driveway where the defendants had constructed a fence. The complaint alleged that the plaintiffs were entitled to the relief claimed based on their “actual, visible, exclusive, open and notorious adverse possession of the property for more than fifteen (15) years.” The trial court rendered judgment for the plaintiffs, concluding that the plaintiffs had proved a claim of right to a prescriptive easement over the fenced off portion of the driveway. Noting that “[i]t is fundamental in our law that the right of a plaintiff to recover is limited to the allegations in his complaint” and that a “variance [between the pleadings and the proof] is material if the defendant was prejudiced in maintaining his defense, surprised by the plaintiff’s proof or misled by the allegations in the complaint”; id., 695; this court reversed the judgment after concluding that the variance between the pleadings and proof was material. Specifically, this court concluded that “[t]he defendants were misled by the allegations in the complaint and prejudiced in the preparation and maintenance of their defense.” Id., 697.

The present case differs markedly from the Francis case in several respects. First, we are not presented with any variance between the pleadings and the proof here. The amended complaint alleges a breach of contract, and the plaintiff recovered for a breach of contract. Significantly, the amended complaint does not allege or suggest that the defendant’s breach was anticipatory, that is, that it occurred at some point before performance was due. Rather, the amended complaint claims that the defendant breached the contract between the parties when he “failed to deliver a second or third draft of the book to the Publisher on or before March 30,1988.” Consequently, the issue of the defendant’s time for performance under the agreement between the parties was the very issue in dispute that the referee was called on to, and did, decide. Second, because there is no requirement that a plaintiff plead the legal effect of the facts alleged in the complaint; see Practice Book §§ 108 and 109; it is permissible for a plaintiff to seek recovery under the facts alleged based on incompatible legal theories. Burns v. Koellmer, 11 Conn. App. 375, 386, 527 A.2d 1210 (1987). If two such theories of recovery are asserted in the same action, it is for the trier of fact to determine whether the plaintiff has proved both, neither, or only one of them. Id. Third, the defendant has failed to show how he was prejudiced in maintaining his defense, surprised by the plaintiff’s proof or misled by the allegations in the amended complaint. While there may be significant differences between a case based on an anticipatory breach, which identifies a time of performance that has yet to expire, and one based on the breach of an implied reasonable time for performance, which identifies a time of performance that has already expired, the defendant has not indicated to us how these differences affected the preparation or presentation of his defense. See footnote 5, supra. Under such circumstances, the alleged variance challenged by the defendant in this case does not warrant the reversal of the judgment.

II

Damages

In his first challenge to the award of damages, the defendant argues that the court should not have awarded damages at all because the January 14,1988 agreement between the parties provides that “[i]n the event that any of [the $30,000 advance] must be repaid to [the publisher], under the contract, the repayments will be proportional to the amount of the funds received between Burnham and Colby.” The defendant contends that this provision controls the determination of damages in this case because the publisher never required any repayment of the advance moneys. The defendant argues, in his brief, that this provision permitted the plaintiff to recover money damages from the defendant “only if required by the publisher, something that did not happen.” (Emphasis in original.) The defendant’s argument to the contrary notwithstanding, the referee found that the provision “is limited only to the manner of repayment of any funds demanded by the Publisher” and did not preclude the plaintiff from availing himself of the usual contract damages remedy where “[t]he plaintiff has suffered monetary damages [due to the defendant’s breach of his obligation to produce publishable material] despite the fact that [the] Publisher did not demand repayment of the advance paid over to Burnham.” We conclude that these findings were not clearly erroneous.

The defendant’s final challenge is to the calculation of the amount of damages. The defendant claims that because the plaintiff expected to be paid $45,000 by the publisher for the book but had agreed to pay McCar-gar $10,000 for his work on the book before the plaintiff began working with the defendant, meaning that the plaintiff expected to net $35,000 on the book, the proper measure of damages was the difference between $35,000 and the $17,000 that the plaintiff ultimately received, or $18,000. We conclude, however, that the court properly awarded damages in the amount of $23,000.

The defendant correctly notes that “[cjontract damages are ordinarily based on the injured party’s expectation interest and are intended to give him the benefit of the bargain by awarding a sum of money that will, to the extent possible, put him in as good a position as he would have been in had the contract been performed.” 22 Am. Jur. 2d 68, Damages § 45 (1988); see also Bachman v. Fortuna, 145 Conn. 191, 194, 141 A.2d 477 (1958). Such damages, moreover, are to be determined as of the time of the occurrence of the breach. O’Hara v. State, 218 Conn. 628, 642, 590 A.2d 948 (1991); West Haven Sound Development Corporation v. West Haven, 207 Conn. 308, 317, 541 A.2d 858 (1988).

It is clear that, when the parties agreed with the publisher in late 1987 to produce Lost Victory and when the defendant subsequently breached the contract between the parties, the plaintiff expected to receive $45,000 for the production of the book. Under the circumstances of this case, however, the $45,000 is not a proper measure of the “position . . . [the plaintiff] would have been in had the contract been performed” because it does not take into account the effect of the plaintiff’s prior agreement with McCargar. Before the plaintiff worked with the defendant, he had a coauthor relationship with McCargar. When that relationship terminated in mid-1987, the plaintiff paid McCargar $5000 and agreed to pay him an additional $5000 if and when the book was eventually published. The plaintiffs liability for this second $5000 payment, then, was contingent on the publication of the book, and, hence, intertwined with the performance of the parties’ contract. Because the plaintiff’s expectation at the time he contracted with the defendant was that the performance of the parties’ contract would trigger his obligation to pay McCargar the remaining $5000, the court properly deducted that $5000 from the $45,000 that the plaintiff expected to receive at the time of the completion of his contract with the defendant. The difference between that figure, $40,000, and the amount of money received by the plaintiff, $17,000, led the referee to award the plaintiff $23,000 to give him the benefit of his bargain.

The defendant argues that, in its calculation of the plaintiff’s expectation interest, the referee should have also included the $5000 paid to McCargar in late 1987. In the defendant’s view, this calculation more accurately reflects the amount that the plaintiff would have received from his efforts to publish the book. While this method of “accounting” may more accurately reflect the plaintiff’s “profit” on his literary endeavor, it does not represent a proper method for the calculation of damages for the defendant’s breach of contract. There is no evidence in the record that the first payment to McCargar played any role in the agreement reached between the parties. Moreover, at the time the plaintiff and the defendant reached their agreement to produce a book together, the plaintiff had already paid the first $5000 to McCargar. That expense, not unlike many other expenses incurred by the plaintiff in creating the manuscript that he gave to the defendant at the start of their work together, was already incurred and was part of the plaintiff’s outlay whether or not the plaintiff ever entered into a contract with the defendant. For these reasons, it would have been inappropriate to take that payment into account in the calculation of damages. Accordingly, the defendant’s challenge to the amount of damages awarded by the trial court must fail.

The judgment is affirmed.

In this opinion the other judges concurred.

       The trial court also rendered judgment for the plaintiff on the defendant’s counterclaim alleging in one count that the plaintiff had breached the contract between the parties by terminating their coauthor relationship and seeking, in a second count, quantum meruit recovery for the writing services the defendant had provided to the plaintiff before the plaintiff terminated their coauthor relationship. With respect to the latter claim, the attorney trial referee found that the “[djefendant has provided no evidence for the reasonable value of the services he provided. However, it is reasonable to conclude that the value of those services is less than the $7000 which [the] defendant will retain ($30,000 advance [paid to him] by [the] Publisher less [the] judgment in favor of [the] plaintiff of $23,000).”
      The defendant does not challenge the court’s judgment with respect to his counterclaim in this appeal.

       The parties’ memorandum of intent provides in pertinent part: “It is the understanding of the undersigned that Alexander Burnham will assist in the writing and editing of a book by William Colby, the subject of which is the war in Vietnam.
      “William Colby agrees to provide Alexander Burnham with an initial manuscript and an oral account of all incidents necessary for the completion of the project. It will be the duty of Alexander Burnham to prepare a second and third draft of the manuscript in a form for submission to the publisher.
      “The parties agree that William Colby and Alexander Burnham will share equally all earnings generated by the publication.
      “Parties agree that William Colby and Alexander Burnham shall be credited as co-authors for the publication.
      “Both parties agree that the terms of the above memorandum will remain in effect and will be a basis for any subsequent agreements which may be entered into at such time as the publisher’s contract is executed.
      “Both parties agree to appoint Robert Eringer as their sole and exclusive agent for this book. In consideration for services rendered, the said agent is entitled to receive as [his] commission ten percent (10%) of gross earnings generated by this book.”

       There are two lists of book publications. One is the fall list, and the other is a spring list. For inclusion on the fall list, the submission of a good quality manuscript by early spring of the year of publication is required.

       “An anticipatory breach of contract occurs when the breaching party repudiates his duty before the time for performance has arrived.” Pullman, Comley, Bradley & Reeves v. Tuck-it-away, Bridgeport, Inc., 28 Conn. App. 460, 465, 611 A.2d 435, cert. denied, 223 Conn. 926, 614 A.2d 825 (1992); McKenna v. Woods, 21 Conn. App. 528, 532, 574 A.2d 836 (1990).
      With respect to the claim of anticipatory breach, the referee concluded that “the plaintiffs efforts to shoehorn his factual situation into the doctrine of anticipatory repudiation must fail. Where, as here, there has been no statement by the defendant of a refusal to perform, there must be, at least, an affirmative act by the defendant indicating an inability or unwillingness to perform.” The referee found no such act by the defendant.
      The plaintiff does not challenge this conclusion by way of an alternative ground on which the judgment may be affirmed. See Practice Book §4013 (a)(1) (A).

       In his brief, the defendant’s entire argument in support of this claim is as follows: “The plaintiff did not try or brief this case on a theory of breach of a reasonable time for performance of a severable agreement, but on the theory of anticipatory breach of the total contract. (Exhibits B, C, D, & V). A litigant cannot try a case on one theory and recover under another. Francis v. Hollauer, 1 Conn. App. 693, 475 A.2d 326 (1984), (Judgment granting plaintiffs a prescriptive easement reversed on basis that only adverse possession theory was alleged). It was therefore error to enter judgment on a wholly different cause of action, (breach of implied contract term) than averred by the plaintiff, (anticipatory repudiation or breach of express contract term).”

       In arriving at this conclusion, the Francis court reasoned that “the judgment was based on an entirely different cause of action from any alleged in the complaint. Any claim of prescriptive easement was not within the issue presented by the pleadings and could not properly be adjudicated in this action. A claim of prescriptive easement requires proof that the claimant’s use of the property has been open, visible, continuous and uninterrupted for fifteen years under a claim of right. ... A claim of title by adverse possession requires a claimant to prove that the owners have been ousted from possession from the property in dispute for an uninterrupted period of fifteen years under a claim of right by an open, notorious and exclusive possession. ... On the basis of the elements of the claim of adverse possession, the defendants focused their defense on the exclusion factor which distinguishes adverse possession from a prescriptive easement. During the course of the trial, evidence was introduced by the plaintiffs which tended to prove a prescriptive easement to the triangular parcel. The defendants made numerous objections on the grounds of relevancy claiming that the evidence was irrelevant to the claim of adverse possession alleged in the complaint. The plaintiffs consistently maintained that the evidence was relevant to the issue of adverse possession which was the basis of their claim to the disputed parcel.” (Citations omitted.) Francis v. Hollauer, 1 Conn. App. 693, 695-96, 475 A.2d 326 (1984).

       In fact, the plaintiffs theory of an anticipatory breach by the defendant was first offered to the attorney trial referee in the plaintiffs “proposed findings of fact, proposed findings of law and proposed judgment,” which was filed with the attorney trial referee after the conclusion of the hearing.

       The defendant suggests that the $5000 previously paid by the plaintiff to McCargar should affect the calculation of damages because that amount “paid to [the plaintiff’s] once and future co-author, James McCargar, was credited to Colby in the eventual division of the advance proceeds.” The defendant has provided us with no authority in support of this proposition.
      We conclude, however, that because the plaintiffs damages for the defendant’s breach of contract must be calculated as of the time of the occurrence of the breach; O’Hara v. State, 218 Conn. 628, 642, 590 A.2d 948 (1991); the fact that the plaintiff thereafter fortuitously negotiated an agreement with McCargar that took his previous agreement with McCargar into account is “irrelevant to the amount of damages . . . .” Id.; see also Rametta v. Stella, 214 Conn. 484, 492-93, 572 A.2d 978 (1990).


text:
    Zef Hassane v. Gerald Lawrence
    (11687)
    O’Connell, Foti and Freedman, Js.
    Argued May 6
    decision released June 29, 1993

      Stephen R. Beilis, for the appellant (plaintiff).

      Prescott W. May, with whom, on the brief, was Steven P. Kulas, for the appellee (defendant).
   O’Connell, J.

The plaintiff appeals from the judgment rendered in favor of the defendant on his counterclaim. The plaintiff claims that the judgment, which was rendered in accordance with an attorney trial referee’s report, was improper because (1) the trial court’s directive that the trial referee state the basis on which it made its award of damages constituted a rejection of the trial referee’s report, (2) the trial referee improperly concluded that the defendant had been locked out of the premises, (3) the defendant’s property had become fixtures, and (4) the trial referee incorrectly determined damages. We affirm the judgment of the trial court.

The plaintiff landlord brought this action to recover from the defendant tenant, who had been operating a pizza restaurant on the premises, for an arrearage in rent payments. The defendant counterclaimed for damages claiming a lockout and the resultant loss of profits and personal property.

The trial court referred the case to attorney trial referee Hanon W. Russell for proceedings pursuant to General Statutes § 52-434 et seq. and Practice Book § 428 et seq. The trial referee conducted a hearing and submitted a report to the trial court. The trial referee found in favor of the plaintiff in the amount of $548.39 for back rent, but also found that on May 17,1988, the plaintiff locked the defendant out of his restaurant. The trial referee further found that the lockout was without cause or justification and, thus, the defendant had proven his counterclaim to the extent of $19,000 for lost business, lost profits and lost machinery and equipment. Consequently, the trial referee recommended to the trial court that it render a net judgment of $18,451.61 in favor of the defendant.

The parties filed motions to correct the trial referee’s report and objections to its acceptance. Following a hearing on the motions and objections on October 10, 1990, the trial court, Mancini, J., issued a memorandum of decision reducing the award on the counterclaim to $12,000 and rendered judgment thereon.

The defendant appealed the judgment claiming that the trial court lacked authority to reduce the trial referee’s recommendation on the counterclaim from $19,000 to $12,000. On December 31,1991, this court agreed with the defendant, reversed the judgment and remanded the case to the trial court for further proceedings in accordance with Practice Book § 443. Hassane v. Lawrence, 26 Conn. App. 926, 600 A.2d 331 (1991). Upon return to the trial court, the plaintiff again filed a motion to correct the report seeking a finding that the defendant had abandoned the property and that the plaintiff was entitled to damages of $9222.50. The motion was denied.

Once again, the defendant filed a motion asking for acceptance of the report and rendition of judgment in his favor on the counterclaim in accordance with the trial referee’s original report. The trial court, Cur-ran, J., ruled that the trial referee’s report inadequately set forth the basis on which it made the awards of damages on the complaint and counterclaim. The court directed the trial referee to state the basis for the respective awards and the trial referee responded by filing an amendment to his previous report detailing the basis of the awards contained therein. Thereafter, the trial court, in accordance with the report, rendered judgment for the defendant in the amount of $19,000 on the counterclaim and for the plaintiff in the amount of $548.39 on the complaint.

The plaintiff first argues that under Practice Book § 443, the trial court lacked authority to send the matter back to the original trial referee for clarification. The plaintiff contends that the trial court was restricted by § 443 either (1) to refer the matter to the same or another referee for a new trial or (2) to revoke the reference and leave the case on the regular court docket for disposition. We do not agree.

Rejection of the report is mandated by § 443 only if the trial court finds that the referee “has materially erred in his rulings or that by reason of material corrections in his findings the basis of the report is subverted . . . .” In the present case, the trial court did not find errors in the trial referee’s rulings or that the basis of the report was subverted. Nor did it find any other reason to refuse acceptance. The trial court merely asked the trial referee to clarify his report by stating the basis of the awards. The court, in effect, declared that it could not determine whether to accept or reject the report without knowing the basis of the trial referee’s decision. We cannot conclude that the course taken by the trial court requires the drastic remedy of an entire new trial. Rather, the court took the most reasonable course available under the circumstances. See Ives v. East Haven, 48 Conn. 272, 289 (1880) (holding that the trial court had the power to recommit a report to a committee despite the absence of statutory authority to do so).

The remainder of the plaintiff’s claims involve issues of fact. There was evidence from which the trial referee could have reasonably found that the defendant left the leased premises because of a lockout and not because of abandonment. There was no evidence that would have mandated a finding as a matter of law that the equipment lost by the defendant had become the plaintiff’s property because of the doctrine of fixtures. The evidence before the trial referee sufficiently supported his award of damages. Mathematical exactitude in proof of damages is not required. Hedderman v. Robert Hall of Waterbury, Inc., 145 Conn. 410, 414, 144 A.2d 60 (1958). The trial court is bound by the trial referee’s findings of fact. Wilcox Trucking, Inc. v. Mansour Builders, Inc., 20 Conn. App. 420, 423, 567 A.2d 1250 (1989), cert. denied, 214 Conn. 804, 573 A.2d 318 (1990). Neither the trial court nor this court can retry the facts. Pandolphe’s Auto Parts, Inc. v. Manchester, 181 Conn. 217, 220, 435 A.2d 24 (1980).

The judgment is affirmed.

In this opinion the other judges concurred.

       The trial court rendered judgment for the defendant in the amount of $19,000 on the counterclaim and for the plaintiff in the amount of $548.39 on the complaint.

       Practice Book § 443 provides: “The court shall render such judgment as the law requires upon the facts in the report as it may be corrected. If the court finds that the committee has materially erred in his rulings or that by reason of material corrections in his findings the basis of the report is subverted or that there are other sufficient reasons why the report should not be accepted, the court shall reject the report and refer the matter to the same or another committee for a new trial or revoke the reference and leave the case to be disposed of in court.
      “The court may correct a report at any time before judgment upon the written stipulation of the parties or it may upon its own motion add a fact which is admitted or undisputed or strike out a fact improperly found.”

       Although Practice Book § 443 literally applies only to committees our Supreme Court has held that it also applies to attorney trial referees. Seal Audio, Inc. v. Bozak, Inc., 199 Conn. 496, 502-503, 508 A.2d 415 (1986).


author: Heiman, J.

text:
    National Elevator Industry Pension, Welfare and Educational Fund v. Peter Scrivani
    (11500)
    Lavery, Heiman and Schaller, Js.
    Argued May 6
    decision released June 29, 1993

      Stuart D. Rosen, with whom were Mary C. Duffy and, on the brief, Richard M. Levy, for the appellant (plaintiff).

      Ian R. McMillan, with whom, on the brief, were David R. Biondi and Jean Robinow, for the appellee (defendant).
   Heiman, J.

The plaintiff appeals from the judgment rendered in favor of the defendant in an action in which the plaintiff sought money damages, interest, an order requiring the defendant to submit timely monthly contribution reports and to make the contributions disclosed as due by reason of those reports, interest on all late filed contributions, an order enjoining future breaches of the collective bargaining and trust agreements and requiring the defendant to submit all financial reports and to remit contributions in a timely manner pursuant to the trust agreement, punitive damages pursuant to General Statutes § 42-110a et seq. (Connecticut Unfair Trade Practices Act) and for attorney’s fees pursuant to that act. We reverse the judgment and remand the matter for further proceedings.

The following procedural history is necessary to resolve this appeal. The pleadings were closed and the matter was claimed to the trial list on June 22, 1989. The case was subsequently referred for trial to Louis I. Gladstone sitting as an attorney trial referee, who heard the evidence in the case. The parties then submitted posthearing briefs to him. The attorney trial referee submitted to the trial court a document labeled “Memorandum of Decision, dated April 3, 1992.”

This document was in the format generally used by the trial courts for the filing of memoranda of decisions and did not set forth in separate and consecutively numbered paragraphs the facts found and the conclusions drawn therefrom as mandated by Practice Book § 434. Practice Book § 434 provides in pertinent part: “The report of a committee shall state, in separate and consecutively numbered paragraphs, the facts found and the conclusions drawn therefrom. . . . The committee may accompany his report with a memorandum of decision including such matters as he may deem helpful in the decision of the case . . . .”

Upon receipt of the “memorandum of decision,” the plaintiff wrote to the attorney trial referee calling his attention to the provisions of Practice Book §§ 428 through 433, and our Supreme Court’s decision in Seal Audio, Inc. v. Bozak, Inc., 199 Conn. 496, 508 A.2d 415 (1986). The plaintiff specifically inquired as to whether the attorney trial referee intended to file a report with the Superior Court in accordance with Practice Book § 434. The attorney trial referee responded by letter stating that he had, in his opinion, already complied with the appropriate rules of practice and did not intend to file any additional report. The plaintiff timely filed a motion to correct pursuant to Practice Book § 438. The motion to correct set forth, inter alia, that the attorney trial referee had failed to file a report and that the facts set forth in the motion to correct are fully supported by the record. The attorney trial referee denied the plaintiffs motion to correct.

The plaintiff next filed an objection to the trial court’s acceptance of the attorney trial referee’s report pursuant to Practice Book § 440. The plaintiff objected to the acceptance of the report because the attorney trial referee failed to file a report in accordance with the mandate of Practice Book § 434. The plaintiff asserted that because of the lack of factual findings in the report, the trial court could not fulfill its function to review the attorney trial referee’s factual determinations and to render judgment if appropriate. In addition, the plaintiff also filed an exception to the attorney trial referee’s report pursuant to Practice Book § 439. This objection set forth the plaintiff’s continuing complaint that the attorney trial referee had failed to file a proper report and that the facts set forth in the motion to correct were admitted or undisputed and material to the decision of the case. The trial court denied both motions and thereupon rendered judgment in accordance with the attorney trial referee’s report. This appeal followed.

I

We must initially determine whether the “memorandum of decision” filed by the attorney trial referee adequately complied with Practice Book § 434, which requires the filing of a report setting forth in “separate and consecutively numbered paragraphs, the facts found and the conclusions drawn therefrom.” We conclude that in this instance there was not sufficient compliance.

Our conclusion does not turn only on the attorney trial referee’s failure to use the format mandated by the rules. We do not exalt form over substance. Rather, our conclusion turns on the fact that a fair reading of the “memorandum of decision” does not disclose the ultimate facts found by the attorney trial referee and the conclusions drawn therefrom. Thus, the trial court was displaced from its function of “rendering] such judgment as the law requires upon the facts in the report as it may be corrected.” (Emphasis added.) Practice Book § 443. Because the “memorandum of decision” failed to set forth the ultimate facts found, the trial court acted improperly in overruling the objection to the report and in entering judgment.

The trial court is authorized “ ‘to render whatever judgment appropriately follows, as a matter of law, from the facts found by the attorney trial referee.’ ” Burt’s Spirit Shop, Inc. v. Ridgway, 215 Conn. 355, 367, 576 A.2d 1267 (1990); Dills v. Enfield, 210 Conn. 705, 713, 557 A.2d 517 (1989). In a matter heard before an attorney trial referee, the trial court’s nondelega-ble judicial duty to render judgment turns on its ability to determine the facts found by the attorney trial referee. If the court finds material errors in the attorney trial referee’s factual findings, it may, under those circumstances, order further proceedings. Practice Book § 443; Dills v. Enfield, supra. Thus, where the factual predicate is not clearly set out by proper factual findings and conclusions drawn from the facts so found, the trial court is not able to fulfill its judicial function. Dills v. Enfield, supra, 712; Rostenberg-Doern Co. v. Weiner, 17 Conn. App. 294, 300, 552 A.2d 827 (1989). The attorney trial referee sits only as a fact finder. Where the attorney trial referee’s findings of fact are not clearly set out, he has failed in his function of fact finder. The trial court should have exercised its authority under Practice Book § 443 to “reject the report and refer the matter to the same or another committee for a new trial or revoke the reference and leave the case to be disposed of in court.” By failing to exercise its authority under § 443, the trial court improperly delegated to the attorney trial referee its nondelegable judicial authority to render judgment. See Rostenberg-Doern Co. v. Weiner, supra.

We thus conclude that the trial court improperly entered judgment in accordance with the attorney trial referee’s report where the attorney trial referee had failed to comply with Practice Book § 434.

II

Having concluded that the trial court improperly rendered judgment without a sufficient factual record, we are faced with determining whether we should dispose of this appeal by reversing and remanding for a new trial or whether we may, in the exercise of our discretion, remand the case to the trial court with direction to remand the case to the attorney trial referee who heard the matter to file a report in substantial compliance with Practice Book § 434. While the defendant posits that we lack authority to adopt the latter alternative, he cites no positive authority for the proposition that we may not do so in the exercise of judicial discretion or pursuant to the provisions of Practice Book § 4183 (10).

We conclude that we have the authority to require the trial court to remand the case to the attorney trial referee for the preparation of a report that complies with the mandate of Practice Book § 434.

Our Supreme Court has held that, under the rubric of the general supervisory powers of that court, it was empowered to order an individual no longer holding judicial office to file a finding necessary to perfect the record on appeal. State v. Palmieri, 143 Conn. 569, 570-71, 124 A.2d 911 (1956). Our Supreme Court has also determined that it had the authority, again under its general supervisory powers, to minimize delay in a remand of a juvenile case for further action by the trial court by ordering that the further proceedings contemplated in the court’s opinion take place within sixty days from the date of the opinion. In re Juvenile Appeal (83-BC), 189 Conn. 66, 81, 454 A.2d 1262 (1983). Thus, the general supervisory powers of the appellate courts have been employed in the interests of justice and judicial economy.

This court has previously concluded that we have the authority to remand a case to the trial court with direction to remand it to the attorney trial referee for a further factual determination. Pilato v. Kapur, 22 Conn. App. 282, 285, 576 A.2d 1315, cert. granted, 216 Conn. 813, 580 A.2d 67 (1990).

Given the time invested by the parties and the court, and the fact that the matter was completely heard by the attorney trial referee, judicial economy and good sense dictate that the attorney trial referee supply the trial court with his factual findings in a proper format to permit the trial court to fulfill its judicial function. See Practice Book §§ 434 and 443; see also Hassane v. Lawrence, 31 Conn. App. 723, 626 A.2d 1336 (1993).

The judgment is reversed and the case is remanded to the trial court with direction to remand the case to the attorney trial referee who heard the case with direction to file with the trial court a proper report in accordance with Practice Book § 434, and for other proceedings subsequent to the filing of the report.

In this opinion the other judges concurred.

       General Statutes § 52-434 (a) (4) provides in pertinent part: “In addition to the state referees who are appointed pursuant to subdivision (1), (2) or (3) of this section, the chief justice may appoint, from qualified members of the bar of the state, who are electors and residents of this state, as many state referees as he may from time to time deem advisable or necessary. ...”

       This memorandum of decision was filed with the trial court on April 8, 1992.

       Our rules of practice as they relate to committees are equally applicable to attorney trial referees. Practice Book § 428; Seal Audio, Inc. v. Bozak, Inc., 199 Conn. 496, 502-503, 508 A.2d 415 (1986).

         Practice Book § 438 provides in pertinent part: “If either party desires to have the report or the finding corrected by striking out any of the facts found, or by adding further facts, or by stating the claims of the parties made before the committee, or by setting forth rulings upon evidence or other rulings of the committee, he shall within two weeks after the filing of the report or finding file with the court a motion to correct setting forth the changes and additions desired by him. . . .”

       Practice Book § 440 provides in pertinent part: “A party may file objections to the acceptance of a report on the ground that conclusions of facts stated in it were not properly reached on the basis of the subordinate facts found, or that the committee erred in rulings on evidence or other rulings or that there are other reasons why the report should not be accepted. . . .”

       Practice Book § 439 provides in pertinent part: “If a committee fails to correct a report or finding in compliance with a motion to correct, the moving party may . . . file exceptions seeking corrections by the court in the report or finding. . . .”

       Practice Book § 443 provides: “The court shall render such judgment as the law requires upon the facts in the report as it may be corrected. If the court finds that the committee has materially erred in his rulings or that by reason of material corrections in his findings the basis of the report is subverted or that there are other sufficient reasons why the report should not be accepted, the court shall reject the report and refer the matter to the same or another committee for a new trial or revoke the reference and leave the case to be disposed of in court.
      “The court may correct a report at any time before judgment upon the written stipulation of the parties or it may upon its own motion add a fact which is admitted or undisputed or strike out a fact improperly found.”

       Practice Book § 4183 provides in pertinent part: “The supervision and control of the proceedings on appeal shall be in the court having appellate jurisdiction from the time the appeal is filed, or earlier, if appropriate, and, except as otherwise provided in these rules, any motion the purpose of which is to complete, correct or otherwise perfect the trial court record for presentation on appeal shall be made to the court in which the appeal is pending. . . . [The court] may also, for example, on its own motion or upon motion of any party ■ • ■ (10) remand any pending matter to the trial court for the resolution of factual issues where necessary . . . .”

       In Pilato v. Kapur, 22 Conn. App. 282, 285, 576 A.2d 1315, cert. granted, 216 Conn. 813, 580 A.2d 67 (1990), we reversed a judgment as to the award of interest only and remanded the case to the trial court with direction to remand the matter to the attorney trial referee who heard the case for a determination of whether interest should be included as an element of damages. Our Supreme Court granted certification, but the case was withdrawn one month later. Our role is to apply the law as it currently exists; State v. Leonard, 31 Conn. App. 178, 200 n.18, 623 A.2d 1052 (1993); and therefore we follow Piloto v. Kapur, supra, in exercising our supervisory power to remand the case to the trial court with direction to remand the matter to the attorney trial referee to file a proper report in accordance with Practice Book § 434 and for other proceedings subsequent to the filing of the report.