source: Caselaw Access Project

author: DUPONT, J.

license: Public Domain

text:
    CENTER SHOPS OF EAST GRANBY, INC., ET AL. v. PLANNING AND ZONING COMMISSION OF THE TOWN OF EAST GRANBY ET AL.
    (AC 17875)
    Landau, Schaller and Dupont, Js.
    Argued December 8, 1998
    officially released April 20, 1999

      Donald R. Holtman, for the appellants (defendants).

      John W. Bradley, Jr., for the appellees (plaintiffs).
   Opinion

DUPONT, J.

The defendants appeal from the judgment of the trial court granting the plaintiffs’ application for a writ of mandamus, compelling the defendant planning and zoning commission (commission) to approve a site plan application for one parcel of land and to approve an application for a special permit and site plan for an adjoining parcel of land. We affirm the judgment of the trial court.

The facts that follow are contained in a written stipulation of the parties. The plaintiffs are the owners of two abutting parcels of land in the town of East Granby. The plaintiff Center Shops of East Granby, Inc. (Center Shops), owns one parcel on which it sought to construct a convenience store, and the individual plaintiffs, Harold L. Pierce, Michael B. Guarco and Philip D. Main, are coowners of an adjoining parcel on which they sought to construct a gasoline service station. Both parcels are located in a business zone subject to the zoning regulations of the town of East Granby. The plaintiffs B and D Petroleum Sales, Inc., and Decker and Company (Decker) are agents for the plaintiff property owners.

In October, 1995, the plaintiff property owners retained the services of Decker, a Massachusetts corporation, to act as their agent in connection with their applications for site plan approval and a special permit to construct a gasoline service station and site plan approval for a convenience store on their properties. On September 23, 1996, Decker filed with the commission an application for a special permit accompanied by a site plan as to the parcel owned by Pierce, Guarco and Main, designated application 96-17, and also filed an application for the approval of a site plan relating to the parcel owned by Center Shops, designated application 96-16. On October 30, 1996, Decker agreed to a sixty-five day extension for the commission to take action on the site plan application of Center Shops for the convenience store “to coincide with the time line for the special permit application” for the gasoline service station.

The commission scheduled a public hearing on the application for a special permit and approval of a site plan for the gasoline service station on November 26, 1996. At that hearing, Decker withdrew the applications of the corporate and individual plaintiffs because they needed to obtain an inland wetlands permit. The commission agreed to treat the withdrawn applications as immediately resubmitted and received without payment of additional fees. The commission treated the applications as new and they were renumbered from 96-17 and 96-16, to 96-22 and 96-21, respectively. On January 10, 1997, the town’s inland wetlands agency granted a permit to the plaintiffs with conditions.

Following a request from the commission, dated January 8, 1997, Decker agreed in writing to a one week extension in the start of the public hearing on the application for a special permit and approval of the site plan for the gasoline service station. The public hearing was then scheduled for February 4, 1997. On January 28, 1997, the commission published a notice of the public hearing to be held on application 96-22. The notice, however, was not timely published as required by General Statutes § 8-3c (b). At the hearing on February 4, 1997, the commission continued the public hearing on the special permit until February 25, 1997, to allow for republication of the notice.

On February 13 and 20, 1997, the commission published notice of the public hearing scheduled for February 25, 1997. This notice did not state the time of the hearing as required by General Statutes § 8-3c (b). At the February 25, 1997 hearing, the plaintiffs did not participate and refused to agree to any further extensions. At its regularly scheduled meeting on April 1, 1997, the commission met and denied application 96-22, the plaintiffs’ application for a special permit and approval of a site plan for a gasoline service station. It also denied application 96-21, the application for approval of a site plan for a convenience store.

On May 8, 1997, the plaintiffs brought this mandamus action against the defendants, claiming that the commission violated §§ 8-3c and 8-7d. The plaintiffs alleged that notices of the meetings on the special permit, and its accompanying site plan for a gasoline service station, were legally defective because they did not state the time of the hearing, and one notice was published only eight days before the scheduled hearing of which it purported to give notice. Center Shops also alleged that the commission failed to render a decision on the site plan for a convenience store within sixty-five days of receiving the plan. The plaintiffs claimed that the purported hearings held on February 4 and 25, 1997, were nullities and that the statutory violations resulted in automatic approval of both the application for a special permit and site plan approval for a gasoline service station and the application for site plan approval for a convenience store. The trial court agreed with the plaintiffs and granted the relief requested.

The trial court specifically stated that it found no evidence of unclean hands on the part of the plaintiffs. It incorporated the entire written stipulation of the parties in its memorandum of decision. The trial court found that the notices of January 28 and February 13 and 20, 1997, were defective and void. The court held that “because no hearing was held in regard to the special permit within sixty-five days of the receipt of the application, the application was automatically granted.” The trial court also held that “[n]o decision was made here to deny or modify the application [for site plan approval] within sixty-five days after the receipt of the site plan. Thus, approval of the site plan application is presumed. [General Statutes] § 8-3 (g).” The court’s judgment of mandamus ordered the commission to approve both the site plan for the convenience store and the special permit application for the gasoline service station.

The commission claims that the trial court improperly granted mandamus as to the special permit of the individual plaintiffs and the site plan of Center Shops. The commission claims that (1) it was not bound by statutory time constraints with regard to the site plan of Center Shops because Center Shops had tied action on the approval of its site plan to the application of the individual plaintiffs for a special permit and (2) automatic approval is not a statutory form of relief to an applicant for a special permit when a commission has published a defective notice of the required public hearing. These claims, according to the commission, do not involve any dispute that “proper notice of public hearings is a jurisdictional prerequisite to action by a planning and zoning commission, and that the failure of such notice renders void any action the commission takes.” The commission does not claim that the notices met the statutory requirements as to publication and content of notices for hearings on applications for special permits.

I

SITE PLAN OF CENTER SHOPS

The commission concedes that except for the alleged connection between the site plan of Center Shops and the special permit of the individual plaintiffs, Center Shops would be entitled to automatic approval of its site plan application. The commission agrees that the doctrine of automatic approval applies to site plan approvals because § 8-3 (g) specifically provides that “[ajpproval of a site plan shall be presumed unless a decision to deny or modify it is rendered within the period specified in section 8-7d.” The commission argues that Center Shops is not entitled to the statutory grant of automatic approval because it intentionally relinquished, by its own action, its right to the benefit of the statute.

Center Shops, by letter dated October 30, 1996, granted the commission a sixty-five day extension for action on its site plan “to coincide with the time line for the special permit application.” The letter refers to action on site plan application 96-16, which had been filed on September 23 and received on September 24, 1996. The letter predates the subsequent resubmission of the same site plan as application 96-21 at the scheduled hearing of November 26,1996, and thus could refer, as of the date of its writing, only to a time period that began on September 24, 1996.

Section 8-7d (b) provides that whenever the approval of a site plan is the only requirement to be met or remaining to be met under the zoning regulations, as it is under the East Granby zoning regulations for a retail store, a decision on the application for approval of such a site plan shall be rendered within sixty-five days after receipt of such site plan, and'“[t]he applicant may consent to one or more extensions of such period, provided the total period of any such extension or extensions shall not exceed two further sixty-five-day periods . . . .”

The original sixty-five days for a decision would have required that the commission make a decision by November 26, 1996; the extension provided an additional sixty-five days beyond November 26, 1996. The site plan application was denied on April 1, 1997, well past sixty-five days from November 26, 1996. The commission claims that the letter of October 30, 1996, agreed to an extension that allowed the commission to take no action on Center Shops’ site plan application until action on the special permit was taken.

The time line for the special permit application referred to in Center Shops’ letter could refer only to the time line as it existed as of the letter’s date, namely, October 30, 1996. We must, therefore, look to the time limits for a special permit as of that date, which are found in §§ 8-3c (b) and 8-7d. We do so to determine the amount of time Center Shops intended by its letter to grant to the commission.

Section 8-3c (b) provides in relevant part that a zoning commission “shall decide upon such application or request [for a special permit] within the period of time permitted under section 8-7d.” Section 8-7d (a) requires a hearing within sixty-five days after receipt of an application, except for those applications in which a site plan is the only requirement, and requires a decision within sixty-five days after the completion of such hearing, which must be completed within thirty days of the commencement of the hearing. It also provides that an “applicant may consent to one or more extensions of any period specified in this subsection, provided the total extension of any such period shall not be for longer than the original period as specified in this subsection . . . .” For purposes of § 8-7d (a), § 8-7d (c) provides that the day of receipt of an application is the day of the next regularly scheduled meeting immediately following the day of submission.

On the basis of the pleadings in this case, the date of receipt of the special permit application was September 24, 1996. The plaintiffs alleged in their complaint and the commission admitted that both the application for a site plan and for the special permit were received by the commission on September 24, 1996. The total period of time given to the commission to take action on a special permit, pursuant to §§ 8-7d and 8-3c (b), is 160 days from the date of the receipt of the application for a special permit. That period had expired by April 1, 1997. Any extension of time given by Center Shops would also have expired by the terms of its letter to the commission.

We conclude that the letter of October 30, 1996, did not extend the time for a decision on Center Shops’ site plan application to April 1, 1997, and that Center Shops was therefore entitled to a judgment of mandamus.

Even if the letter could be interpreted as extending the time for the decision on the application for site plan approval to April 1,1997, the date the commission acted on the special permit, there would be automatic approval of the site plan because the hearing on April 1, 1997, as to the special permit was void and a nullity because of defective notices. As such, no valid action was ever taken as to the special permit. Approval of the site plan as to the convenience store became automatic when the time for valid action on the special permit expired.

Furthermore, Center Shops did not expressly agree to an extension of time for a particular period to a particular date, thereby waiving such rights as it otherwise had pursuant to § 8-3 (g). See October Twenty-Four, Inc. v. Planning & Zoning Commission, 35 Conn. App. 599, 606-607, 646 A.2d 926 (1994). Although an applicant may waive its right to require a commission to make a decision within a statutory period of time; Frito-Lay, Inc. v. Planning & Zoning Commission, 206 Conn. 554, 563-64, 538 A.2d 1039 (1988); carte blanche waiver tied to no particular date has not been countenanced by any case of which we are aware.

In University Realty, Inc. v. Planning Commission, 3 Conn. App. 556, 564, 490 A.2d 96 (1985), the defendant argued that the plaintiffs request to the defendant commission to table its site plan application constituted consent to an extension of time under § 8-7d (b). That court stated that the consent provision of § 8-7d (b) was “ ‘for the protection of the [applicant]’ ” and that the provision must be construed in the applicant’s favor. Id., 565. After reviewing the cases, the stipulation of the parties and the trial court’s memorandum of decision, we conclude that the judgment of mandamus in favor of Center Shops should be affirmed.

II

SPECIAL PERMIT OF INDIVIDUAL PLAINTIFFS

The next issue this court must decide is whether the individual plaintiffs are entitled to automatic approval of their special permit application as a result of the commission’s failure to comply with the statutory notice and hearing requirements of §§ 8-3c (b) and 8-7d (a).

Section 8-3c (b) provides in relevant part that a zoning commission shall hold a public hearing on an application for a special permit and that “[n]otice of the time and place of such hearing shall be published in a newspaper having a substantial circulation in such municipality at least twice, at intervals of not less than two days, the first not more than fifteen days, nor less than ten days, and the last not less than two days before the date of such hearing. . . . Such commission shall decide upon such application or request within the period of time permitted under section 8-7d. . . .” Section 8-7d (a) provides in relevant part that “in all matters wherein a formal petition, application, request or appeal must be submitted to a zoning commission, planning and zoning commission or zoning board of appeals under this chapter and a hearing is required on such petition, application, request or appeal, such hearing shall commence within sixty-five days after receipt of such petition, application, request or appeal and shall be completed within thirty days after such hearing commences. All decisions on such matters shall be rendered within sixty-five days after completion of such hearing. . . .” (Emphasis added.)

“Zoning commissions are required to provide adequate published notice of a public hearing to be held on an application or request for a special permit or special exception. . . . [T]his court has held that the purpose behind the notice requirement of § 8-3 is fairly and sufficiently to apprise those who may be affected by the proposed action of the nature and character of the proposed action so as to enable them to prepare intelligently for the hearing.” (Citation omitted; internal quotation marks omitted.) Nazarko v. Zoning Commission, 50 Conn. App. 517, 519, 717 A.2d 853, cert. denied, 247 Conn. 941, 723 A.2d 318 (1998).

“Whether failure to give notice affects subject matter jurisdiction depends on who is to be notified. . . . When the notice required ... is constructive notice to the general public by means of legal advertisement, failure to issue such notice properly is a defect implicating subject matter jurisdiction.” (Citations omitted.) Koskoff v. Planning & Zoning Commission, 27 Conn. App. 443, 446, 607 A.2d 1146, cert. granted, 222 Conn. 912, 608 A.2d 695 (1992) (appeal withdrawn November 10, 1992). The failure to give statutory notice to the general public is a subject matter jurisdictional defect and it cannot be waived nor can jurisdiction be conferred by consent of the applicant. Lauer v. Zoning Commission, 220 Conn. 455, 461-62, 600 A.2d 310 (1991). “Strict compliance with statutory mandates regarding notice to the public is necessary”; Koskoff v. Planning & Zoning Commission, supra, 447; and “[f]ailure to give proper notice constitutes a jurisdictional defect.” Slagle v. Zoning Board of Appeals, 144 Conn. 690, 693, 137 A.2d 542 (1957); see also Wright v. Zoning Board of Appeals, 174 Conn. 488, 491, 391 A.2d 146 (1978). “A defect in the content of the notice cannot be cured by proof that some members of the public received actual notice, or appeared at the hearing.” (Internal quotation marks omitted.) Nazarko v. Zoning Commission, supra, 50 Conn. App. 519-20.

“Without proper public notice, zoning authority actions are null and void.” Cocivi v. Plan & Zoning Commission, 20 Conn. App. 705, 707, 570 A.2d 226, cert. denied, 214 Conn. 808, 573 A.2d 319 (1990). “[0]ur Supreme Court has recognized that when action by a municipal entity is subsequently found to be invalid, it is as if that entity never met or voted. In Brooklyn Trust Co. v. Hebron, 51 Conn. 22 (1883), our Supreme Court held that no town meeting occurred nor was any vote taken because notice issued prior to the meeting failed to comply with the mandate of the applicable statute. Id., 29. The court held that because notice was insufficient, ‘[t]here was therefore no lawful meeting . . . and of course no vote. . . . [Tjhere is absolutely nothing to consider.’ Id. In other words, the meeting was void ab initio—‘[f]rom the beginning’ or ‘from the first act.’ Black’s Law Dictionary (5th Ed.).” Koskoff v. Planning & Zoning Commission, supra, 27 Conn. App. 449.

The commission does not dispute that proper notice is a jurisdictional prerequisite to a hearing on a special permit but claims, instead, that automatic approval of the permit does not flow from a defective notice of the required public hearing.

Here, it is undisputed that the notice issued by the commission as to the public hearing scheduled for February 4, 1997, was invalid in that it failed to state the time of the hearing and it was not timely published. Although the commission met on February 4, 1997, and continued the hearing until February 25, 1997, in order to republish the notice, that action of the commission was void. Pursuant to § 8-7d (a), the commission was required to hold a public hearing on the special permit application by February 6, 1997, but failed to do so. Because the failure to give proper notice constituted a jurisdictional defect, the actions of the commission in the meeting on February 25, 1997, and in subsequently denying the application on April 1, 1997, were void.

The plaintiffs claim that because the commission’s actions were void and because the commission failed to comply with the statutory time limits of § 8-7d (a), they are entitled to automatic approval of their special permit application. The commission claims that the automatic approval doctrine does not apply to special permit applications because there is no statutory provision for the doctrine.

Section 8-3 (g) provides in relevant part that “[t]he zoning regulations may require that a site plan be filed with the commission or other municipal agency or official to aid in determining the conformity of a proposed building, use or structure with specific provisions of such regulations. . . . Approval of a site plan shall be presumed unless a decision to deny or modify it is rendered within the period specified in section 8-7d. ...” Likewise, General Statutes § 8-26, governing the approval of subdivision plans, provides in relevant part that the failure of the commission to act within the time limits in the statute “shall be considered as an approval.” Section 8-3c (b), which governs special permits, merely states that “[s]uch commission shall decide upon such application or request within the period of time permitted under section 8-7d. . . .”

The appellate courts of this state have held that the failure of a planning and zoning commission timely to deny, modify or approve either a site plan or subdivision approval application results in automatic approval of said application. See Viking Construction Co. v. Planning Commission, 181 Conn. 243, 246, 435 A.2d 29 (1980); October Twenty-Four, Inc. v. Planning & Zoning Commission, supra, 35 Conn. App. 606; Koskoff v. Planning & Zoning Commission, supra, 27 Conn. App. 450.

The commission relies on the case of Leo Fedus & Sons Construction Co. v. Zoning Board of Appeals, 225 Conn. 432, 623 A.2d 1007 (1993), for its conclusion that the doctrine of automatic approval does not apply to applications for special permits made to planning and zoning commissions. In that case, the plaintiffs sought a writ of mandamus to compel the defendant, zoning board of appeals to grant their application for site plan approval for a proposed asphalt plant, claiming that the defendant’s failure to conduct a public hearing within the time specified by statute, § 8-7d (a), resulted in the automatic approval of the application. The trial court rendered judgment granting the writ and this court affirmed that judgment. The Supreme Court granted certification from this court. The relevant certified question was as follows: “Does the ‘automatic approval’ doctrine, applicable to a zoning commission that fails to issue timely decisions on site plan or subdivision applications under General Statutes §§ 8-3 (g) and 8-26, also apply to a zoning board of appeals that fails to hold a hearing on an appeal under General Statutes § 8-7d (a)?” (Internal quotation marks omitted.) Id., 434 n.2. The court concluded that it did not.

Our Supreme Court concluded that unlike §§ 8-3 (g) and 8-26, § 8-7d (a) contains no provision expressly mandating automatic approval of a special permit application that is the subject of an appeal to a zoning board of appeals. “Because §§ 8-3 (g) and 8-26 expressly provide for the automatic approval of applications when a zoning commission or planning commission do not act within prescribed time periods, it can be inferred that had the legislature intended that the failure of a zoning board of appeals to hold a hearing within sixty-five days results in automatic approval, the legislature would have so provided.” Id., 442. The court, in explicating the rationale for its holding, noted that “[z]oning boards of appeals do not perform the same functions as zoning commissions. Zoning boards of appeals do not adjudicate initial land use applications, but review those already acted upon by a municipality’s zoning commission or enforcement officer. . . . The board’s appellate function is not advanced by the substitution of an automatic approval for a decision of an appeal on its merits.” Id., 445.

The plaintiffs argue that Leo Fedus & Sons Construction Co. should be limited to actions involving a zoning board of appeals as opposed to a planning and zoning commission. We agree for two reasons. The first reason is that the issue of the Leo Fedus & Sons Construction Co. case as certified was specifically limited to whether the automatic approval doctrine applies to applications to a zoning board of appeals that require a public hearing, and only that question was answered. The second reason is that we conclude that SSM Associates Ltd. Partnership v. Plan & Zoning Commission, 211 Conn. 331, 337, 559 A.2d 196 (1989), controls the present case.

The only question certified and decided in SSM Associates Ltd. Partnership was whether the Appellate Court acted improperly “in concluding that automatic approval of a site plan by lapse of sixty-five days after its submission pursuant to General Statutes § 8-7d (b) also resulted in automatic approval of the special permit zoning application, which had included the site plan as a supporting document pursuant to the zoning regulations?” (Internal quotation marks omitted.) Id., 335. In SSM Associates Ltd. Partnership, the defendants claimed, as the commission claims in this case, that the time constraints for site plan approval do not apply to approvals for special permits. SSM Associates Ltd. Partnership held that where the plaintiffs’ application for site plan approval was inseparable from the application for a special permit, the defendant commission’s failure to act within sixty-five days triggered automatic approval of both in accordance with §§ 8-3 (g) and 8-7d (b). The court explained that “[b]y stipulation before trial, the defendants agreed that, in this case, the application for a special permit ‘includes submission of a site plan which is inseparable from the requirement that the plaintiffs secure a special permit.’ As a result of this stipulation, the defendants have no factual basis for mounting a theoretical distinction between a special permit and a site plan.” Id., 336.

The present case involves two site plans. The first, discussed in part I of this opinion, was filed by Center Shops for a convenience store. The second site plan accompanied the individual plaintiffs’ application for a special permit, and it is this second site plan with which we are concerned in this part of the opinion. The parties stipulated to the fact that the special permit application contained other documents and that Center Shops filed one site plan and the individual plaintiffs another site plan. Both site plans are attached to the trial couit’s memorandum of decision and are cited in the stipulation of facts. The plaintiffs alleged in their complaint and the commission admitted that “pursuant to Section V of the Zoning Regulations of the Town of East Granby, gasoline service stations are permitted in the business zone subject to the granting of a special permit and approval of a site plan by the commission.”

Although the parties did not stipulate to the inseparability of the site plan and the special permit, it is obvious on these facts, as in SSM Associates Ltd. Partnership, that the special permit and the site plan, which was required to be filed with it by the commission itself, were inseparable and, as such, were automatically approved in accordance with §§ 8-3 (g) and 8-7d (b).

The present case is two steps removed from Leo Fedus & Sons Construction Co.. It does not involve a zoning board of appeals, and it concerns a special permit filed with a site plan accompanying it, whereas Leo Fedus & Sons Construction Co. concerned a site plan only.

As an intermediate appellate court, it is not our function to extend the holding of Leo Fedus & Sons Construction Co. in view of the holding in SSM Associates Ltd. Partnership. We are bound by what our Supreme Court has decided and it is not within our realm to conclude that our Supreme Court meant to overrule SSM Associates Ltd. Partnership in Leo Fedus & Sons Construction Co., but did not.

We hold that the trial court correctly ordered a judgment of mandamus for the individual plaintiffs and for Center Shops.

The judgment is affirmed.

In this opinion the other judges concurred.

       The defendants in this case are the planning and zoning commission of the town of East Granby, the town of East Granby and Frederick O’Brien, the chairperson of the planning and zoning commission.

       Pursuant to the East Granby zoning regulations, gasoline service stations are permitted in a business zone, subject to the granting of a special permit and approval of a site plan by the commission, and retail stores are permitted in a business zone, subject only to the approval of a site plan by the commission.

       There are two site plans involved in this case. One site plan accompanied the special permit application of the individual plaintiffs for a gasoline service station and the other is that of Center Shops for a convenience store. Action on the site plan approval for the convenience store did not require a public hearing, whereas action on the special permit and approval of the site plan for a gasoline service station did require a public hearing.

       According to the commission, it could have accepted the applications at its next regularly scheduled meeting on December 3, 1996, but, instead, it accommodated the plaintiffs by accepting the applications as filed on November 26, 1997.

       Because the applications were received on November 26,1996, the sixty-five day period set forth in General Statutes § 8-7d, together with the seven day extension agreed to by the plaintiffs as to the public hearing on the special permit application, expired on February 6, 1997.

      The notice also did not state the time of the hearing as required by General Statutes § 8-3c (b), but tins defect was not included in the stipulation of the parties.

       General Statutes § 8-3c (b) provides in relevant part: “Notice of the time and place of such hearing [for a special permit] shall be published ... at least twice, at intervals of not less than two days, the first not more than fifteen days, nor less than ten days, and the last not less than two days before the date of such hearing. . . .”

       General Statutes § 8-3c provides in relevantpart: “(b) The zoning commission or combined planning and zoning commission of any municipality shall hold a public hearing on an application or request for a special permit or special exception, as provided in section 8-2 ... . The commission shall not render a decision on the application until the inland wetlands agency has submitted a report, with its final decision to such commission. . . . Notice of the time and place of such hearing shall be published in a newspaper having a substantial circulation in such municipality at least, twice .... Such commission shall decide upon such application or request within the period of time permitted under section 8-7d. Whenever a commission grants or denies a special permit or special exception, it shall state upon its records the reason for its decision. . . .”

       General Statutes § 8-7d provides in relevant part: “(a) Except as provided in subsection (b) of this section, in all matters wherein a formal petition, application, request or appeal must be submitted to a zoning commission, planning and zoning commission or zoning board of appeals under this chapter and a hearing is required on such petition, application, request or appeal, such hearing shall commence within sixty-five days after receipt of such petition, application, request or appeal and shall be completed within thirty days after such hearing commences. All decisions on such matters shall be rendered within sixty-five days after completion of such hearing. The petitioner or applicant may consent to one or more extensions of any period specified in this subsection, provided the total extension of any such period shall not be for longer than the original period as specified in this subsection, or may withdraw such petition, application, request or appeal.
      “(b) Whenever the approval of a site plan is the only requirement to be met or remaining to be met under the zoning regulations for any building, use or structure, a decision on an application for approval of such site plan shall be rendered within sixty-five days after receipt of such site plan. The applicant may consent to one or more extensions of such period, provided the total period of any such extension or extensions shall not exceed two further sixty-five-day periods, or may withdraw such plan. . . .”

       The defendants cannot argue that action on the site plan of Center Shops could be totally open-ended as to extensions because § 8-7d (b) provides that the total period of extensions for a site plan application cannot exceed two sixty-five day periods beyond the initial sixty-five days for a decision.

       See part II of this opinion.

       The defendants correctly note that Leo Fedus & Sons Construction Co. restricted the case of Vartuli v. Sotire, 192 Conn. 353, 363-64, 472 A.2d 336 (1984), to its facts, namely, a site plan application to a zoning board. Leo Fedus & Sons Construction Co. v. Zoning Board of Appeals, supra, 225 Conn. 446 n.7. We are concerned in our discussion in part II, however, with a special permit application accompanied by a site plan. The defendants claim that Carr v. Woolwich, 7 Conn. App. 684, 510 A.2d 1358, cert. denied, 201 Conn. 804, 513 A.2d 698 (1986), is overruled. We disagree. The Leo Fedus & Sons Construction Co. court stated that Carr is overruled to the “extent that [it is] inconsistent with [the Leo Fedus & Sons Construction Co.] opinion only . . . .” (Emphasis added.) Leo Fedus & Sons Construction Co v. Zoning Board of Appeals, supra, 446 n.7. We read the Leo Fedus & Sons Construction Co. footnote as meaning that Carr cannot be applied to special permits pending before zoning boards of appeal but leaves open the question of the present case.


author: O’CONNELL, C. J.

text:
    SAFE HOME SECURITY, INC. v. JOCELYN LEWIS
    (AC 18965)
    O’Connell, C. X, and Lavery and Landau, Xs.

      Submitted on briefs January 28
    officially released April 20, 1999

      Joseph T. Coppola filed a brief for the plaintiff in error.
   Opinion

O’CONNELL, C. J.

The plaintiff filed a writ of error with the Supreme Court, pursuant to Practice Book § 72-1 et seq., which was transferred to this court pursuant to Practice Book § 65-1. In its writ, the plaintiff claims that the trial court, small claims session, improperly rendered a decision on a counterclaim that was not properly brought before the court. We reverse the judgment of the trial court.

The following facts are relevant to this decision. On September 15, 1997, the plaintiff commenced a small claims action against the defendant for the collection of a debt allegedly owed by the defendant. On November 17, 1997, the defendant filed her answer to the plaintiffs allegation and included the following response: “The plaintiff owes the defendant damages for over-charges and for money pre-paid but she later canceled the monitoring contract.” The defendant did not file a counterclaim. The matter was heard before a magistrate on December 11, 1997, and judgment was rendered in favor of the defendant. The trial court also awarded the defendant $2000 in damages on what it considered as the counterclaim, the statement in the defendant’s answer that the plaintiff owes her money. The trial court subsequently issued a bank execution against the plaintiff for the amount of the damages.

Because small claims actions are not appealable, we first must address whether we have jurisdiction over the writ of error. In Veterans Memorial Medical Center v. Townsend, 49 Conn. App. 198, 712 A.2d 993 (1998), this court ruled that a writ of error was the proper method of review of a small claims judgment. In that case, the small claims court dismissed the plaintiffs action without a hearing. Noting that the plaintiff had no hearing of any type and no notice that the trial court was considering the dismissal of its case, we relied on Practice Book § 60-1 to hold that the writ of error was proper under the limited circumstances of that case. Id., 199-201.

In the present case, the plaintiff had no notice that the trial court was considering a counterclaim because the defendant failed to file the requisite counterclaim form. To avoid injustice, we again rely on Practice Book § 60-1 to hold that a writ of error is the proper avenue of review under the facts of this case.

We next consider the merits of the plaintiffs claim that the trial court improperly ruled in favor of the defendant and awarded her $2000 in damages. The plaintiff essentially argues that the counterclaim was not properly brought before the court. We agree with the plaintiff.

Practice Book § 24-19 provides that “[t]he defendant . . . may, in the manner provided by Section 24-9 claim any setoff or counterclaim within the jurisdiction of the small claims court. . . . Upon the making of such claim by the defendant, the clerk shall give notice to the plaintiff by first class mail, of the setoff or counterclaim and shall notify the parties of the new answer date. . . .” Here, because the defendant did not adequately state a counterclaim, the clerk was not alerted that such a claim had been filed and, as a result, the plaintiff was not sent notice of the claim as required by Practice Book § 24-19. A counterclaim, therefore, was not properly brought before the court, and the trial court could not render judgment and issue a bank execution on an illusory claim.

The writ of error is granted, the judgment is reversed and the case is remanded for further proceedings consistent with this opinion.

In this opinion the other judges concurred.

       Under the contract, the defendant agreed to pay the plaintiff to provide her home security monitoring goods and services.

       General Statutes § 51-197a (a) provides in relevant part: “Appeals from final judgments or actions of the Superior Court shall be taken to the Appellate Court in accordance with section 51-197c, except for small claims, which are not appealable . . . (Emphasis added.)
      General Statutes § 52-263 provides in relevant part: “Upon the trial of all matters of fact in any cause or action in the Superior Court ... if either party is aggrieved by the decision of the court or judge upon any question or questions of law arising in the trial ... he may appeal to the court having jurisdiction from the final judgment of the court or of such judge . . . except in small claims cases, which shall not be appealable . . . . ” (Emphasis added.)

       Practice Book § 60-1 provides: “The design of these rules being to facilitate business and advance justice, they will be interpreted liberally in any case where it shall be manifest that a strict adherence to them will work surprise or iqjustice.”

       See footnote 3.

       Practice Book § 24-9 provides in relevant part: “The plaintiff, or representative, shall state the nature and amount of the claim on the writ in concise, untechnical form . . . .”


text:
    CAPITOL CITY PERSONNEL SERVICES, INC. v. HARRIET FRANKLIN ET AL.
    (AC 16998)

      Foti, Landau and Dupont, Js.
    Argued January 21
    officially released April 20, 1999

      Wesley S. Spears, for the appellants (defendants).

      Louis W. Flynn, Jr., for the appellee (plaintiff).
   Opinion

DUPONT, J.

The plaintiff, a Connecticut corporation, obtained a judgment against the defendants for tortious interference with a business relationship, breach of fiduciary duties and violations of the Connecticut Unfair Trade Practices Act (CUTPA), General Statutes § 42-110a et seq., from which the defendants appeal. We affirm the judgment of the trial court.

The plaintiffs business consists of the placement of health care personnel with health care facilities and with individual clients. The individual defendant, Harriet Franklin, was employed by the plaintiff as a coordinator of health care services. The corporate defendant, Superlative Home Care, Inc., is a Connecticut corporation formed and controlled by Franklin. The individual defendant, in a counterclaim, alleged claims for defamation, violations of CUTPA and vexatious litigation.

The case was tried to the court, which found the facts that follow. Franklin, while employed by the plaintiff, arranged for the care of ill and elderly clients by health care personnel. As staffing director, she assigned aides to clients as needed. While in the plaintiffs employ, Franklin secretly formed the defendant corporation, Superlative Home Care, Inc. Franklin worked in the business office of the plaintiff, received weekly compensation and had contact with the payors of home care personnel. She was the only employee who sent out service agreements and placed nurse’s aides with clients of the plaintiff.

In her capacity as staffing director for the plaintiff, Franklin had supplied nurse’s aides for Marion Lewis, an elderly client of the plaintiff. Franklin successfully solicited the trust department of the Hartford National Bank and Trust Company, which administered Lewis’ affairs, to retain her new corporation to supply nurse’s aides to Lewis. Franklin also successfully solicited two nurse’s aides who had been employed by the plaintiff to assist in the care of Lewis as employees of the defendant corporation. She recruited other nurse’s aides from the plaintiff as well.

Franklin’s actions caused the plaintiff to lose the lucrative business of caring for Lewis, which provided gross income of approximately $234,000. The trial court found $55,000 to be a reasonable estimate of the plaintiffs loss. The trial court established the same amount of damages for all three causes of action alleged by the plaintiff in its complaint and rendered judgment for all three in the total amount of $55,000, together with reasonable attorney’s fees and costs as to the plaintiffs CUTPA cause of action. In a supplemental judgment, the trial court awarded attorney’s fees of $21,293 and set costs of $972.82. The trial court rendered judgment for the plaintiff on the individual defendant’s counterclaim because “there was no credible evidence introduced to substantiate any of the three counts in the counterclaim.”

The individual defendant does not attack the judgment for the plaintiff on her counterclaim, nor do either of the defendants claim that the trial court improperly found them to be hable on the three counts of the plaintiffs complaint. The only issues raised by the defendants on appeal are whether (1) the amount of the trial court’s award of damages was supported by the evidence and (2) the attorney’s fees for the plaintiff were properly found.

The defendants claim that the plaintiff did not prove its damages with reasonable certainty and that the plaintiff did not prove its damages for the CUTPA violations. We disagree.

The principal owner of the plaintiff corporation, Joanne Smith, testified about the billings of the Lewis account and the promptness with which those billings were paid. The defendants’ billing records showed gross billings of $237,240 during the period the defendants had supplied nurse’s aides to Lewis. A net profit of $55,952, as calculated by Smith, was based on deducting a sales tax of 6 percent, amounting to $13,428, and applying a 25 percent rate to the balance. The trial court found that the amount of damages awarded was a “fair and reasonable estimate of compensatory damages under the circumstances based upon actual experience . . . .” The transcript indicates that the Lewis billings equaled about $3000 per week and that the common practice in the industry was to mark up accounts 55 to 60 percent and that the industry standard net profit was 25 percent. Thus, the damages awarded by the trial court were based on the evidence. The defendants claim, however, that damages could not be established by industry standards but only by the actual profit lost by the plaintiff.

The testimony of the plaintiffs principal shareholder was that the 25 percent calculation was accurate as to 1991, 1992 and 1993 “in the business here in Hartford,” and that on private duty aides, “we did a little bit better than that.” Thus, there was evidence of both the industry standard net profit and this particular plaintiffs net profit. We conclude that the plaintiff established the compensatory damages of $55,000 with reasonable certainty. Griffin v. Nationwide Moving & Storage Co., 187 Conn. 405, 423, 446 A.2d 799 (1982). The trial court’s determination of damages was a question of fact that should not be disturbed unless it is unsupported by the evidence. Beckman v. Jalich Homes, Inc., 190 Conn. 299, 309-10, 460 A.2d 488 (1983); see also Westport Taxi Service, Inc. v. Westport Transit District, 235 Conn. 1, 28, 664 A.2d 719 (1995).

The defendants also claim that the plaintiff did not prove damages for its CUTPA claims. This claim is based on the same argument that the defendants make in arguing that damages for the other counts were not supported by the evidence. The same previously cited testimony rebuts this claim as well.

The judgment is affirmed.

In this opinion the other judges concurred.

       The defendants’ second claim does not concern the reasonableness of the attorney’s fees, but, rather, that no evidentiary hearing as to the fees was held. That claim may be disposed of summarily because it has no basis given the facts of this case. The trial court gave the defendants’ counsel two weeks from the time the plaintiffs attorney furnished time sheets and a fee schedule to the court and to the defendants to comment on them and stated that the court would “hold a hearing if necessary.” The defendants did not oppose the amounts, comment on the time sheets or seek the hearing the trial court had indicated it would hold.


author: PER CURIAM.

text:
    ANTONIO CHARLESTON v. GARY H. CAHN
    (AC 17781)
    O’Connell, C. J., and Foti and Landau, Js.
    Argued January 11
    officially released April 20, 1999

      Kevin J. Curseaden, with whom, on the brief, was Brendan T. Canty, for the appellant (plaintiff).

      Michael R. Brandt, with whom, on the brief, was Ronald D. Williams, Jr., for the appellee (defendant).
   Opinion

PER CURIAM.

The plaintiff appeals from the judgment of the trial court granting the defendant’s motion for summary judgment. The plaintiff claims that (1) the trial court improperly relied on Sullivan v. State, 189 Conn. 550, 457 A.2d 304 (1983), and (2) the combined effect of General Statutes §§ 4-165, 4-160, 31-293a and 31-284 (a) deprives the plaintiff of his constitutional right to seek redress for his injury. We affirm the judgment of the trial court.

This case involves a negligence claim brought by the plaintiff, a state employee, against the defendant, another state employee, for injuries sustained when, during the course of their employment, a street sweeper operated by the defendant struck the plaintiff. The trial court granted the defendant’s motion for summary judgment concluding that the failure of the plaintiff to exhaust his administrative remedies by not filing a claim with the claims commissioner bars review of his constitutional claim.

Sullivan v. State, supra, 189 Conn. 558-59, provides: “It is well established that when an employee’s injury is covered by the Workers’ Compensation Act [General Statutes § 31-275 et seq.], statutory compensation is the sole remedy and that recovery in common-law tort against the employer is prohibited. . . . We cannot conclude, however, that recourse to the commissioner under other provisions of the claims act would have resulted in an inadequate remedy. If timely filed, the commissioner would have been empowered to consider the plaintiffs claim that, in addition to workers’ compensation benefits, she was entitled to compensation by the state on the ground that the immunity granted state employees under § 4-165 deprived her of damages which otherwise might have been recoverable through a negligence action under the motor vehicle exception of § 31-293a. If the commissioner had determined that such a claim was one which ‘in equity and justice the state should pay,’ he could have either granted an award not exceeding $5000 or recommended approval of a greater amount to the general assembly. General Statutes §§ 4-158, 4-159. If her claim had been rejected by the commissioner or the general assembly, the plaintiff would then have been free to bring her constitutional claim to the Superior Court. . . .

“Since we are not aware of any legal barrier to the presentation of the plaintiffs claim to the commissioner or to his favorable action upon it, we cannot assume that recourse to that procedure would necessarily have been futile or inadequate.” (Citations omitted.)

We conclude that the trial court properly relied on Sullivan v. State, supra, 189 Conn. 550, and, accordingly, we decline to review the plaintiffs constitutional claim for failure to exhaust administrative remedies.

The judgment is affirmed.

       The plaintiff received workers’ compensation benefits from his employer for his injuries.


author: SCHALLER, J.

text:
    STATE OF CONNECTICUT v. DEVON TAYLOR
    (AC 17995)
    Foti, Schaller and Sullivan, Js.
    Argued January 12
    officially released April 20, 1999

      Glenn W. Falk, special public defender, for the appellant (defendant).

      Timothy J. Sugrue, executive assistant state’s attorney, with whom, on the brief, were James Thomas, state’s attorney, and Rosita Creamer, senior assistant state’s attorney, for the appellee (state).
   Opinion

SCHALLER, J.

The defendant, Devon Taylor, appeals from the judgment of conviction, rendered after a jury trial, of murder in violation of General Statutes § 53a-54a and criminal possession of a firearm in violation of General Statutes § 53a-217. The defendant’s sole claim on appeal is that the trial court improperly denied his motion to sever the charges. We affirm the judgment of the trial court.

The defendant was charged with murder and criminal possession of a firearm, an essential element of which is a prior felony conviction. Prior to trial, the defendant moved to sever the murder charge from the weapons charge on the ground that the evidence of his prior felony conviction for the purpose of proving the weapons charge would have a prejudicial impact on the jury in its consideration of the murder charge. The trial court denied the motion, ruling that it could contain any undue prejudice with an appropriate limiting instruction. The defendant subsequently stipulated that he had been previously convicted of larceny in the second degree, a class C felony. On the last day of the state’s evidence, the trial court informed the jury of the stipulation and, at the same time, gave the jury a limiting instruction. The trial court repeated the identical limiting instruction in its charge to the jury. The defendant did not testify at trial.

The jury reasonably could have found that the defendant shot the victim, Jay Murray, with a revolver in the course of a drug transaction in Hartford involving the defendant as seller and the victim as buyer. The victim and Ronald Wightwood, the victim’s companion, were attempting to purchase drugs. They met the defendant and indicated to him that they wanted cocaine. The defendant and the victim discussed the purchase and the defendant entered the victim’s pickup truck and drove it to the vicinity of a car wash on Albany Avenue. The defendant exited the truck and retrieved a plastic bag containing a white powdery substance, which he gave to the victim. After the victim sampled and rejected the substance, the defendant drove the truck and its occupants to Milford Street. The defendant left the truck but returned several minutes later and shot the victim with a revolver through the driver’s side window of the truck. All of those events occurred in the presence of Wightwood. The police found $150 in the truck and also found the defendant’s fingerprints on the exterior and interior of the truck. At trial, Wightwood identified the defendant as the shooter.

The defendant argues that he was substantially prejudiced with respect to defending against the charge of murder by the evidence of his prior felony conviction in view of the brevity of the trial, the disputed nature of the identification testimony, the fact that the conviction would not otherwise have been admissible because he did not testify, and the prosecutor’s use of the defendant’s prior conviction in her closing argument. The state argues that a denial of severance is discretionary and that our decision in State v. Davis, 51 Conn. App. 171, 180-84, 721 A.2d 146 (1998), is dispositive.

We conclude that Davis is dispositive of the issue in this case. Davis involved a similar situation. In Davis, the defendant made a similar request to sever a criminal possession charge under § 53a-217. The defendant claimed, as in the present case, that the proof of a prior felony conviction would have a prejudicial impact on the jury in its consideration of the other counts. The defendant further claimed that the prejudicial impact was increased because the trial court failed to issue any cautionary instruction and the defendant did not testily. The defendant in Davis, as in the present case, stipulated that he had been previously convicted of a felony.

We held in Davis that the defendant did not establish that he was substantially prejudiced by the trial court’s denial of his motion to sever despite the failure of the trial court to give any cautionary instruction to the jury and the fact that the defendant did not testify. In doing so, we stated: “The question of severance lies within the discretion of the trial court. We will not disturb the trial court’s conclusion on the issue absent a clear abuse of discretion. The discretion to sever a trial should be exercised only if a joint trial will substantially prejudice the defendant. Substantial prejudice is more than disadvantage and the formidable task of demonstrating an abuse of discretion and that a joint trial resulted in substantial prejudice falls to the defendant. . . . Simply put, the test to be applied is whether substantial injustice will result if the charges are tried together.” (Citations omitted; internal quotation marks omitted.) Id., 180-81.

We further stated the applicable law as follows: “The trial court correctly applied State v. Banta, [15 Conn. App. 161, 167, 544 A.2d 1226, cert. denied, 209 Conn. 815, 550 A.2d 1086 (1988)], in its decision not to sever or bifurcate the count at issue. In Banta, the defendants were charged with violating General Statutes § 53a-217 and each requested that the trial court sever that count for a separate trial. The trial court denied the motions. The Banta defendants likewise claimed that they were substantially prejudiced because proof of a prior felony conviction was an essential element of General Statutes § 53a-217. In determining whether one of the Banta defendants was so prejudiced, this court set forth five factors to evaluate: (1) the manner in which the evidence entered the case and the extent of the jury’s knowledge of the facts underlying the prior felony conviction, (2) the adequacy of any cautionary instructions given by the court, (3) the use of the prior felony evidence by the prosecution in argument to the jury, (4) the likelihood that the prior felony conviction evidence will inflame the passions of the jurors in light of the nature of the offenses charged and (5) the strength of the evidence against the defendant. See State v. Banta, supra, 170-71.” State v. Davis, supra, 51 Conn. App. 181-82.

As in Davis, we analyze the defendant’s claim in light of the five factors in Banta. Applying the five Banta factors to the present case, we reach the same conclusion that we reached in Davis.

The first factor requires consideration of the manner in which the evidence of the defendant’s prior felony conviction was entered and the amount of detail the jury was given with respect to that conviction. Here, the jury was made aware of the defendant’s prior felony conviction by way of a stipulation through which the jury learned only that the defendant had been convicted of larceny in the second degree, a class C felony. The jury was not given any details about the conviction or the sentence that the defendant received. This factor does not weigh in the defendant’s favor.

The second factor deals with the adequacy of the cautionary instruction given by the trial court. In the present case, the trial court gave a limiting instruction at the time the stipulation was presented to the jury and repeated the limiting instruction in its charge to the jury. This factor does not weigh in the defendant’s favor.

The third factor involves the use of the defendant’s prior felony conviction in the prosecution’s argument to the jury. Here, the prosecutor made a single reference to the conviction during the state’s rebuttal argument. The only reference to the conviction was in a review of the stipulation as it related to the elements of the criminal possession charge. Although the defendant argues that the prosecutor obliquely referred to the larceny conviction in discussing a possible robbery motive, the prosecutor did not specifically mention the conviction in that respect. We believe that it is unlikely that a single reference to the defendant’s prior felony conviction would substantially prejudice the defendant.

The fourth factor concerns the likelihood that evidence of the prior conviction will inflame the passions of the jurors in light of the nature of the offenses charged. The defendant makes no claim as to this factor. We therefore do not review it.

The final factor is the strength of the evidence against the defendant. Here, the defendant claims that the evidence was disputed, there was variance in the descriptions of the shooter and the trial was brief, thereby magnifying the importance of the conviction. As in Banta and Davis, the evidence against the defendant in this case “was neither sparse nor unconvincing.” State v. Banta, supra, 15 Conn. App. 172. The state presented testimony from Wightwood, who had accompanied the victim during the entire episode. Wightwood accurately described the defendant and identified him as the shooter. The state also introduced evidence that the defendant’s fingerprints were found on both the exterior and interior of the victim’s truck. In light of this substantial evidence against the defendant, we conclude that it is unlikely that evidence of the defendant’s prior felony conviction prejudiced the jury so as to affect the outcome of the case. This factor does not support the defendant’s claim.

Applying all the factors to the circumstances of this case, we conclude, as we did in Davis, that the trial court did not abuse its discretion in denying the defendant’s motion to sever the weapons count.

The judgment is affirmed.

In this opinion the other judges concurred.

       Practice Book § 41-18 provides in relevant part: “If it appears that a defendant is prejudiced by a joinder of offenses, the judicial authority may . order separate trials of the counts . . .

       General Statutes § 53a-217 (a) provides in relevant part: “A person is guilty of criminal possession of a firearm . . . when ... he possesses a firearm . . . and has been convicted of ... a class A felony ... a class B felony ... a class C felony ... or a class D felony . . . .”

       When the stipulation was admitted in evidence, the trial court instructed the jury that “such evidence is being admitted at this time solely to prove one element of the crime of criminal possession of a firearm under § 53a-217 of our General Statutes. You may not consider this evidence as establishing a predisposition on the part of Mr. Taylor to commit a crime or to demonstrate criminal propensity.”

         The limiting instruction was followed by a further statement: “You may not consider such evidence for any other reason except as to prove one element of the crime of criminal possession of a firearm, the crime charged in count two.”

       See footnotes 3 and 4.


author: FOTI, J.

text:
    HELEN GLADU v. JOAO SOUSA
    (AC 18205)
    Foti, Schaller and Hennessy, Js.

      Argued February 18
    officially released April 20, 1999

      William J. Melley III, with whom, on the brief, was Flora Pizzoferralo, for the appellant (defendant).

      Paul J. Yamin, for the appellee (plaintiff).
   Opinion

FOTI, J.

The defendant appeals from the trial court’s judgment granting the plaintiffs motion for additur and ordering a new trial on the issue of damages. We affirm the judgment of the trial court.

The plaintiff filed suit alleging negligence on the part of the defendant arising from a traffic accident that occurred in Waterbury. The defendant admitted in his answer that he was negligent in failing to keep a proper lookout for other traffic. The jury rendered a plaintiffs verdict for economic damages only, awarding her $13,650, approximately the amount of her unpaid medical bills. The plaintiff moved for an additur of the award on the grounds that the verdict shocks the conscience and is so inconsistent with the severity of the injuries that the verdict awarding only special damages is manifestly inadequate. The trial court granted the plaintiffs motion, entering an additur of $30,000 in noneconomic damages for a total award of $43,650. The defendant did not accept the trial court’s additur and this appeal followed. The defendant claims that the trial court improperly granted the plaintiffs motion. We disagree.

The jury reasonably could have found the following facts. On November 28,1993, the plaintiff was a passenger in a two car traffic accident in Waterbury. The plaintiff suffered injuries and was transported by ambulance to St. Mary’s Hospital. The plaintiff has lived in continual pain since the date of the accident. Between the date of the accident and the date of trial, she underwent extensive medical testing, treatment and physical therapy. As a result of the accident, the plaintiffs lifestyle has changed significantly, as she is no longer able to undertake the activities that she had been able to perform prior to the accident.

The plaintiff has had muscle spasms in her shoulder and neck. As a result of the spasms, the plaintiff has received injections to relieve the pain. The injections relieved the pain for up to one month, but not permanently. Furthermore, the plaintiff has suffered from loss of sleep due to the pain.

The plaintiff admitted into evidence the report of Brian Peck, her treating physician, stating that the plaintiff suffered from a total permanent partial disability of 7 percent to the neck, 5 percent to the shoulders and 2 percent to the dorsal spine, equaling a total disability of 14 percent.

The defendant’s medical expert, Robert Hendrickson, a physician, concurred with the fact that the plaintiff suffered from a permanent disability but disagreed as to its percentage. Hendrickson believed that the disability was only 5 percent. He further stated that the plaintiff was overmedicated and dependent on the narcotic Per-cocet. Through cross-examination of the plaintiff, the defendant attempted to show that her injuries were not as severe as she claimed. At no time did the defendant present evidence suggesting that the plaintiff had not been injured or that she did not suffer from a permanent partial disability. The only contested issues were the severity of the plaintiffs injuries and the degree of her partial permanent disability. ■

“On appeal, we review the action of the trial court in setting aside the verdict, recognizing that the decision of the trial court is entitled to great weight because it, like the jury, has seen and heard the witnesses. We will not disturb the exercise of that discretion in the absence of clear abuse.” Parasco v. Aetna Casualty & Surety Co., 48 Conn. App. 671, 675, 712 A.2d 433 (1998). “Moreover, the trial judge can gauge the tenor of the trial, as we, on the written record, cannot, and can detect those factors, if any, that could improperly have influenced the jury.” (Internal quotation marks omitted.) Childs v. Bainer, 235 Conn. 107, 113, 663 A.2d 398 (1995).

“[I]t is the court’s duty to set aside the verdict when it finds that it does manifest injustice, and is . . . palpably against the evidence. . . . Malmberg v. Lopez, [208 Conn. 675, 679-80, 546 A.2d 264 (1988)]. The only practical test to apply to a verdict is whether the award of damages falls somewhere within the necessarily uncertain limits of fair and reasonable compensation in the particular' case, or whether the verdict so shocks in the sense of justice as to compel the conclusion that the jury [was] influenced by partiality, mistake or corruption. . . . Wood v. Bridgeport, 216 Conn. 604, 611, 583 A.2d 124 (1990).” (Internal quotation marks omitted.) Childs v. Bainer, supra, 235 Conn. 113-14.

Nevertheless we are engaged in balancing the rights of both parties. “Litigants have a constitutional right to have factual issues determined by the jury. This right embraces the determination of damages when there is room for a reasonable difference of opinion among fair-minded persons as to the amount that should be awarded. . . . This right is one obviously immovable limitation on the legal discretion of the court to set aside a verdict, since the constitutional right of trial by jury includes the right to have issues of fact as to which there is room for a reasonable difference of opinion among fair-minded men passed upon by the jury and not by the court.” (Internal quotation marks omitted.) Id., 112. Yet, a trial court has not violated a party’s constitutional right to have the jury determine questions of fact if it does not abuse its discretion in setting aside the verdict. See Robinson v. Backes, 91 Conn. 457, 460, 99 A. 1057 (1917).

The jury in the present case was given plaintiffs and defendant’s verdict forms. The plaintiffs form had blanks for the jury to fill in the amount of economic damages, noneconomic damages and the total damages awarded. The jury awarded the plaintiff $13,650 in economic damages and zero noneconomic damages. The amount is virtually the same as the $13,626 in economic damages claimed by the plaintiff.

The trial court compared this case to Jeffries v. Johnson, 27 Conn. App. 471, 476, 607 A.2d 443 (1992), where we stated that “[t]he award of economic damages . . . make[s] it abundantly clear that the jury found the plaintiffs injuries were in fact caused by the negligence of the defendant, and that the plaintiff was entitled to more than nominal damages.” We agree with the trial court’s decision that the jury’s finding of economic damages almost equal to the amount of economic damages claimed shows that the jury found the defendant liable for the plaintiffs injuries.

Furthermore, the trial court’s memorandum of decision distinguished the present case from Brennan v. Manlapaz, 19 Conn. App. 71, 560 A.2d 988 (1989), and Creem v. Cicero, 12 Conn. App. 607, 533 A.2d 234 (1987), where the juries rendered general verdicts, thereby making it impossible for the trial court to determine “what monies were awarded as special damages and what monies were awarded as compensation for pain and suffering.” Id., 612. We are not faced with a situation involving a general verdict. Rather, the verdict form clearly states that the jury is awarding substantial economic damages with no award for pain and suffering.

The general rule in Connecticut is that where a plaintiff is entitled to damages for her injuries, “an award limited to nominal or special damages is ‘manifestly inadequate’ and should be set aside.” Childs v. Bainer, supra, 235 Conn. 117, quoting Johnson v. Franklin, 112 Conn. 228, 232, 152 A. 64 (1930). Although the Supreme Court in Childs distinguished Johnson, and did not hold that the verdict was inadequate, the Supreme Court did not reverse its earlier holding in Johnson. The jury in this case found that the plaintiff established that she was injured as a result of the defendant’s admitted negligence. Both the plaintiffs exhibits and Hendrick-son’s testimony established that she suffered from a partial permanent disability. As the trial court properly stated: “The only dispute was as to the extent of her disability . . . .” We conclude that the trial court did not abuse its discretion and properly granted the plaintiffs motion for additur and, after refusal by the defendant, ordered a new trial on the issue of damages because the verdict was manifestly inadequate to compensate her for her injuries.

The judgment is affirmed.

In this opinion the other judges concurred.


author: SULLIVAN, J.

text:
    STATE OF CONNECTICUT v. ELEAZER WILSON
    (AC 18401)
    Foti, Hennessy and Sullivan, Js.
    Argued January 12
    officially released April 20, 1999

      William A. Snider, for the appellant (defendant).

      Leon F. Dalbec, Jr., assistant state’s attorney, with whom, on the brief, were James E. Thomas, state’s attorney, and Vicki Melchiorre, senior assistant state’s attorney, for the appellee (state).
   Opinion

SULLIVAN, J.

The defendant, Eleazer Wilson, appeals from a judgment of conviction, rendered after a jury trial, of kidnapping in the first degree in violation of General Statutes § 53a-92 (a) (2) (A), assault in the third degree in violation of General Statutes § 53a-61 (a) (l), threatening in violation of General Statutes § 53a-62 (a) (l) and sexual assault in a spousal relationship in violation of General Statutes § 53a-70b (b). On appeal, the defendant claims that the trial court improperly (1) denied his motion for a directed verdict because the evidence presented at trial was insufficient to sustain the conviction under § 53a-70b (b) and (2) withheld evidence from the jury. We disagree and affirm the judgment of the trial court.

The jury reasonably could have found the following facts. The defendant and the victim were married in Jamaica in 1989. Shortly after their marriage, the defendant and the victim moved to Springfield, Massachusetts, where the defendant’s mother lived. In 1990, the defendant and the victim separated, and the victim moved to Hartford. The defendant and the victim had no further contact with each other until 1994, when the defendant moved to Hartford. He occasionally saw the victim but never cohabited or had a sexual relationship with her. When the defendant learned in March of 1995 that the victim and a male friend had moved to Manchester, he notified his parole officer in Massachusetts of an outstanding warrant for the victim in Massachusetts and her present whereabouts. Thereafter, the victim was arrested and transported to Massachusetts.

The victim was released from jail in Massachusetts three weeks later when the defendant posted her bond. The defendant then drove the victim to his apartment in Hartford, although she had asked to be driven to a girlfriend’s apartment in that city. The defendant ordered her out of the car. When the victim refused, the defendant kicked, punched, grabbed and pulled her, screaming, out of the car, where she fell to the pavement. The defendant then grabbed her by the back of her neck and continued to punch her as he led her up the back stairs to his apartment. When they entered the defendant’s apartment, he pushed a couch in front of the door to prevent the victim from leaving. The defendant detained the victim for approximately twenty hours during which time he grabbed, punched and threatened her. The defendant ripped off the victim’s pants and sexually assaulted her. After the assault, the victim continued to scream and cry throughout the night. One of the defendant’s neighbors testified that he heard a woman scream several times during the night. Sometime after midnight, the defendant threatened to stab the victim with what appeared to be a kitchen knife if she continued to scream. He let the victim leave the following afternoon, giving her the keys to his car and $50 to buy food and cigarettes.

The victim drove directly to Mount Sinai Hospital in Hartford. Samuel Ibrahim, a hospital physician who treated her, testified that she had multiple abrasions and bruises on her face and neck, including a cut over her right eyebrow, bruising around her right eye and a laceration to her right earlobe. The victim contacted the police from the hospital and told them what had occurred. Police officers, who noticed scratches and braises on the victim’s face, arrested the defendant at his apartment.

The defendant claimed that the victim had consented to sexual intercourse. The jury convicted the defendant, and this appeal followed.

I

The defendant first claims that the evidence is insufficient to support a verdict that the defendant is guilty of assault in a spousal relationship in violation of § 53a-70b (b). We disagree.

“The standard of review employed in a sufficiency of the evidence claim is well settled. [W]e apply a two-part test. First, we construe the evidence in the light most favorable to sustaining the verdict. Second, we determine whether upon the facts so construed and the inferences reasonably drawn therefrom the [trier of fact] reasonably could have concluded that the cumulative force of the evidence established guilt beyond a reasonable doubt. . . . State v. Torres, 242 Conn. 485, 489, 698 A.2d 898 (1997). On appeal, we do not ask whether there is a reasonable view of the evidence that would support a reasonable hypothesis of innocence. We ask, instead, whether there is a reasonable view of the evidence that supports the [trier of fact’s] verdict of guilty. Id., 490.” (Internal quotation marks omitted.) State v. Kondracki, 51 Conn. App. 338, 342, 721 A.2d 567 (1998).

“We are guided by the well established principle that ‘[t]he trier of fact may accept or reject the testimony of any witness.’ State v. Martin, 38 Conn. App. 731, 744, 663 A.2d 1078 (1995), cert. denied, 237 Conn. 921, 676 A.2d 1376, cert. denied, 519 U.S. 1044, 117 S. Ct. 617, 136 L. Ed. 2d 541 (1996). It is the trier of fact’s ‘exclusive province to weigh the conflicting evidence and determine the credibility of the witnesses.’ State v. Hooks, 30 Conn. App. 232, 239, 619 A.2d 1151, cert. denied, 225 Conn. 915, 623 A.2d 1025 (1993). We give deference to the evidence and the reasonable inferences drawn therefrom that support the trial court’s determination of guilt. State v. Dukes, 46 Conn. App. 684, 690, 700 A.2d 119 (1997).” State v. Kondracki, supra, 51 Conn. App. 342-43.

The victim testified that the defendant took her to his apartment and held her for twenty hours against her will. She further testified that he repeatedly hit and sexually assaulted her. A witness testified that he heard a woman’s screams coming from the defendant’s apartment oh the night in question. Two police officers testified as to injuries on the victim’s face. The physician who treated her at the hospital also testified as to the extent of her injuries. Finally, the victim’s torn clothes were shown to the jury. Because a reasonable view of the evidence supports the jury’s verdict, we conclude that the trial court properly denied the defendant’s motion for a directed verdict.

II

The defendant also claims that the trial court improperly withheld evidence from the jury. Specifically, the defendant argues that the jury should have been allowed to consider certain evidence in its deliberations even though all parties, including the defendant, agreed that it should not be given to the jury. We disagree.

The following additional facts are necessary to our resolution of this issue. At the trial, the victim’s jeans were introduced into evidence as a full exhibit. The victim testified that a button snapped off her jeans during the sexual assault. The defendant testified that the button had not been on the victim’s jeans when he picked her up. During a recess between final arguments and the jury charge, the court clerk found a button among the exhibits. The button appeared to be the type of button that was on the jeans. The following colloquy took place between the trial court and defense counsel:

“[Defense Counsel]: Your Honor, also may the record reflect that your clerk indicated in chambers also that that button had been there for the last couple of days each time.

“The Court: On the table?

“[Defense Counsel]: That’s correct. And, just for the record, it was—the first time I saw it was after the closing of evidence and after argument.

“The Court: The first time I ever saw it and the state ever saw it before.

“[Defense Counsel]: I understand, in speaking to [the assistant state’s attorney], they checked the transcript and there was no indication that the witness ever testified it went flying off or anything.

“[State’s Attorney]: That’s correct. I asked the reporter to check and there was no such testimony.

“The Court: All right, well, we did discuss in chambers, in that event, there has to be a defense call and assuming there is no prejudice—no prejudice to the defendant, just leaving things as they are, sending the jeans in the condition that they were shown to the jury, which is basically they both argued from but we have to preserve the button, obviously, and I would suggest if we could just make it, I thought, 1-D or I’ll make it a court exhibit.

“[State’s Attorney]: I would ask to make it a court exhibit.

“The Court: So, we could make it a court’s exhibit.

“[Defense Counsel]: We would have no objection to that, Your Honor, and, respectfully, I’ve had the opportunity to speak with Mr. Wilson about this matter. He wishes to go forward. He doesn’t feel it’s prejudicial one way or the other and he would not move for any motion for mistrial at all.

“The Court: Is that correct, Mr. Wilson?

“[The Defendant]: Yes, Your Honor.

“The Court: This was just discovered and just brought to my attention. I cannot think of how, given what you’ve stated about what’s in or what is not in the record, how it would prejudice the defendant and, on the other hand, if the button is disclosed to the jury, then, I suppose, with reference to the argument of the defense that they never found the button, that would cut against the defendant.

“[Defense Counsel]: There is no question about it.

“The Court,: All right, well, then, that’s what we’ll do.” (Emphasis added.)

The state’s attorney, defense counsel and the defendant agreed that the juiy should not be shown this button. In his final argument, defense counsel made reference to the fact that the button from the jeans was never found. The defendant did not preserve that claim of error but now argues that it is reviewable under the plain error doctrine. Plain error review is reserved for truly extraordinary situations where the existence of the error is so obvious that it affects the fairness and integrity of and public confidence in the judicial proceedings. State v. Hinckley, 198 Conn. 77, 87-88, 502 A.2d 388 (1985). The fact that the jury did not have the button before it did not affect the fairness and integrity of the verdict.

“[The] Plain Error Rule may only be invoked in instances of forfeited-but-reversible error, United States v. Olano, 507 U.S. 725, 731-33, 113 S. Ct. 1770, 1776, 123 L. Ed. 2d 508 (1993), and cannot be used for the purpose of revoking an otherwise valid waiver. This is so because if there has been a valid waiver, there is no error for us to correct. See [id., 732-33]. As we have observed before, [t]he error contemplated by Olano is deviation from a legal rule, unless the rule has been waived. . . .

“The distinction between a forfeiture of a right (to which the Plain Error Rule may be applied) and a waiver of that right (to which the Plain Error Rule cannot be applied) is that [w]hereas forfeiture is the failure to make the timely assertion of a right, waiver is the intentional relinquishment or abandonment of a known right. [Id., 733.]” (Citations omitted; emphasis added; internal quotation marks omitted.) United States v. Lakich, 23 F.3d 1203, 1207 (7th Cir. 1994).

The defendant next claims that this issue is reviewable under Evans-Golding. We do not agree because it does not meet the second condition of Golding. The defendant’s claim that he had a constitutional right to have the jury consider the button in its deliberations is not correct, with or without the waiving of the right. If such a right existed, the defendant clearly and expressly waived it.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 53a-92 provides in relevant part: “(a) A person is guilty oí kidnapping in the first degree when he abducts another person and ... (2) he restrains the person abducted with intent to (A) inflict, physical injury upon him or violate or abuse him sexually . . . .”

       General Statutes § 53a-61 provides in relevant part: “(a) A person is guilty of assault in the third degree when: (1) With intent to cause physical injury to another person, he causes such injury to such person or to a third person . . . .”

       General Statutes § 53a-62 provides in relevant part: “(a) A person is guilty of threatening when: (1) By physical threat, he intentionally places or attempts to place another person in fear of imminent serious physical injury

       General Statutes § 53a-70b provides in relevant part: “(a) For the purposes of this section:
      “(1) ‘Sexual intercourse’ means vaginal intercourse, anal intercourse, fellatio or eunnilingus between persons regardless of sex. Penetration, however slight, is sufficient to complete vaginal intercourse, anal intercourse or fellatio and does not require emission of semen. Penetration may be committed by an object manipulated by the actor into the genital or anal opening of the viclim’s body; and
      “(2) ‘Use of force’ means: (A) Use of a dangerous instrument; or (B) use of actual physical force or violence or superior physical strength against the victim.
      “(b) No spouse or cohabitar shall compel the other spouse or cohabitar to engage in sexual intercourse by the use of force against such other spouse or cohabitar, or by the threat of the use of force against such other spouse or cohabitar which reasonably causes such other spouse or cohabitar to fear physical injury. ...”

       Practice Book § 60-5 provides in relevant part: “The court may reverse or modify the decision of the trial court if it determines that the factual findings are clearly erroneous in view of the evidence and pleadings in the whole record, or that the decision is otherwise erroneous in law.
      “The court, shall not be bound to consider a claim unless it was distinctly raised at the trial or arose subsequent to the trial. The court may m the interests of justice notice plain error not brought to the attention of the trial court.
      “In jury trials, where there is a motion, argument, or offer of proof or evidence in the absence of the jury, whether during trial or before, pertaining to an issue that later arises in the presence of the jury, and counsel has fully complied with the requirements for preserving any objection or exception to the judge’s adverse ruling thereon in the absence of the jury, the matter shall be deemed to be distinctly raised at the trial for purposes of this rule without a further objection or exception provided that the grounds for such objection or exception, and the ruling thereon as previously articulated, remain the same. . . .”

       “[W]e hold that a defendant can prevail on a claim of constitutional error not preserved at trial only if all of the following conditions are met: (1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt.” (Emphasis in original.) State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989); State v. Evans, 165 Conn. 61, 70, 327 A.2d 576 (1973).


text:
    CARTHANIEL BALDWIN v. COMMISSIONER OF CORRECTION
    (AC 18430)
    Lavery, Landau and Dupont, Js.
    Argued March 3
    officially released April 20, 1999

      Adam A. Laben, special public defender, for the appellant (petitioner).

      Linda N. Howe, assistant state’s attorney, for the appellee (respondent).
   Opinion

PER CURIAM.

The petitioner, Carthaniel Baldwin, appeals from the judgment of the habeas court dismissing his petition for a writ of habeas corpus. The petitioner was convicted of two counts of sale of a narcotic substance and one count of possession of a narcotic substance with intent to sell in violation of General Statutes § 21a-277 (a). On appeal, the petitioner claims that the habeas court (1) abused its discretion by denying his petition for certification to appeal and (2) improperly rejected his claim of ineffective assistance of trial counsel. After reviewing the record and briefs and after hearing the parties at oral argument, we conclude that the petitioner failed to make a substantial showing that he was denied a state or federal constitutional right and, further, failed to sustain his burden of persuasion that the habeas court’s denial of certification to appeal was a clear abuse of discretion or that an injustice has been done. See Simms v. Warden, 230 Conn. 608, 612, 646 A.2d 126 (1994); Simms v. Warden, 229 Conn. 178, 189, 640 A.2d 601 (1994); Walker v. Commissioner of Correction, 38 Conn. App. 99, 100, 659 A.2d 195, cert. denied, 234 Conn. 920, 661 A.2d 100 (1995); see also Lozada v. Deeds, 498 U.S. 430, 431-32, 111 S. Ct. 860, 112 L. Ed. 2d 956 (1991).

The habeas court’s dismissal of the petitioner’s petition was predicated on a factual review of the petitioner’s claim and a determination that the petitioner had failed to rebut the strong presumption that “counsel’s conduct [fell] within the wide range of reasonable professional assistance.” Safford v. Warden, 223 Conn. 180, 193, 612 A.2d 1161 (1992). The habeas court found that the objections of the petitioner’s trial counsel to certain evidence were cogent, if not successful, and that his conduct was well within the reasonable parameters for conduct of the defense. The habeas court also found that, although the petitioner’s trial counsel failed to raise a particular objection to the admission of opinion evidence, the ground would have been unavailing to the petitioner. Finally, with respect to any evidentiary prejudice to the petitioner, the habeas court found the remainder of the evidence against him to be overwhelming.

The petitioner also claimed that his trial counsel improperly failed to press for a ruling on a motion in limine concerning the petitioner’s prior acts of misconduct. When the motion was presented before the commencement of trial, the prosecutor made clear that if the petitioner testified, the prosecutor would cross-examine him on the basis of a conviction for an unnamed felony. Although the habeas court did not know whether the reason that the petitioner decided not to testify was that he did not want his prior felony conviction revealed to the jury, that court was unpersuaded that the petitioner’s decision not to testify was related to the absence of a pretrial ruling on his motion in limine.

We conclude that the habeas court had before it sufficient evidence to find as it did and that it did not abuse its discretion in denying the petition for certification to appeal.

The appeal is dismissed.

       Pursuant to General Statutes § 52-470 (b), the petitioner also sought certification to appeal the judgment of the habeas court from a justice of our Supreme Court, Berdon, J., who denied the petition.

       The facts of the petitioner’s underlying conviction are fully set out in our Supreme Court’s decision of his direct appeal. State v. Baldwin, 224 Conn. 347, 618 A.2d 513 (1993).

      The petitioner also claimed that his trial counsel’s assistance fell below the accepted standard because he failed to object to a racially charged comment that the trial court allegedly made about a member of the venire panel. Justice Berdon, in reviewing the petition for certification before our Supreme Court, obtained a copy of the voir dire proceedings and could find no record of the statement that the petitioner ascribed to the trial court.


text:
    ANNIE O’REILLY v. GENERAL DYNAMICS CORPORATION, ELECTRIC BOAT DIVISION, ET AL.
    (AC 17901)
    O’Connell, C. J., and Lavery and Sullivan, Js.

      Argued December 11, 1998
    officially released April 20, 1999

      Amy M. Stone, with whom, on the brief, was Nathan Julian Shafner, for the appellant (plaintiff).

      Michael J. McAuliffe, for the appellees (defendants).
   Opinion

O’CONNELL, C. J.

The plaintiff appeals from the decision of the workers’ compensation review board (board) reversing the commissioner’s award of compensation to the plaintiff. The plaintiff argues that the board improperly (1) determined that she had not sustained her burden of proving a causal relationship and (2) substituted its own findings of fact for those of the trial commissioner. We reverse the board’s decision.

The plaintiffs claims are interrelated and the following facts are necessary to our resolution of this appeal. The plaintiffs husband, Michael O’Reilly, was employed as a welder and inspector by the defendant Electric Boat Division of General Dynamics Corporation. During his employment, Michael O’Reilly was frequently exposed to asbestos; he was also a heavy smoker. After his retirement in 1982, Michael O’Reilly was diagnosed with lung cancer and died of related complications in 1989. The plaintiff sought workers’ compensation benefits as his dependent. After a hearing at which testimony was presented regarding a synergistic effect between smoking and asbestos exposure, the compensation commissioner awarded benefits to the plaintiff. The defendant employer and its defendant workers’ compensation insurance carriers appealed to the board, which held that the commissioner improperly concluded that the decedent’s lung cancer was due to asbestos exposure. The board determined that the evidence of a causal relationship between the illness and the exposure did not rise to the level of reasonable medical probability.

On appeal, the plaintiff argues that the board applied the wrong legal standard in ruling that she had not met her burden of proof as to this causal relationship. Specifically, she claims that the board required her to prove the exact cause of the decedent’s cancer. The plaintiff also contends that the board improperly engaged in fact-finding although the commissioner’s findings were supported by substantial evidence.

At issue is the testimony of the plaintiffs medical expert, Robert Keltner. The defendants argue that Kelt-ner was unable to state unequivocally that the asbestos exposure clearly was linked to the decedent’s lung cancer, even though he testified that the decedent’s exposure to asbestos while at work was a significant contributing factor to the development of the lung cancer. The board concluded, however, that Keltner’s testimony never reached “the level of diagnostic certainty necessary to qualify his opinion as being within a reasonable degree of medical probability.”

At the outset, we must determine the correct standard of review. “The determination of whether an injury arose out of and in the course of employment is a question of fact for the commissioner. Spatafore v. Yale University, 239 Conn. 408, 418, 684 A.2d 1155 (1996). The appropriate standard applicable to the board when reviewing a decision of a commissioner is well established. [T]he review [board’s] hearing of an appeal from the commissioner is not a de novo hearing of the facts. . . . [I]t is obligated] to hear the appeal on the record and not retry the facts. . . . [T]he power and duty of determining the facts rests on the commissioner, the trier of facts.” (Internal quotation marks omitted.) Kolomiets v. Syncor International Corp., 51 Conn. App. 523, 526, 723 A.2d 1161 (1999).

“Our role is to determine whether the review [board’s] decision results from an incorrect application of the law to the subordinate facts or from an inference illegally or unreasonably drawn from them.” (Internal quotation marks omitted.) Aurora v. Miami Plumbing & Heating, Inc., 6 Conn. App. 45, 47, 502 A.2d 952 (1986). “This standard clearly applies to conflicting expert medical testimony. It [is] the province of the commissioner to accept the evidence which impress[es] him as being credible and the more weighty.” (Internal quotation marks omitted.) Weiss v. Chesebrough-Ponds USA Co., 51 Conn. App. 106, 111, 719 A.2d 1225 (1998). The question now before us is whether the commissioner’s conclusion can be sustained by the underlying facts.

The plaintiff claims that the board relied on an incorrect legal standard in ruling that Keltner could not pinpoint the exact cause of the decedent’s lung cancer. The defendant claims that Keltner’s testimony was insufficient to support a finding of compensability. Specifically, the defendant asserts that Keltner testified that the decedent’s exposure to asbestos was a possible causative factor in the development of cancer and did not state that it was a probable cause. The defendant relies heavily on Keltner’s use of the word possible instead of probable.

In Struckman v. Burns, 205 Conn. 542, 534 A.2d 888 (1987), our Supreme Court rejected the proposition that certain formulaic words are essential when an expert states an opinion. There need not be any magical words to present evidence of the exact cause of the decedent’s cancer. Id., 555. “A word is not a crystal, transparent and unchanged, it is the skin of a living thought and may vary greatly in color and content according to the circumstances and the time in which it is used.” Towne v. Eisner, 245 U.S. 418, 425, 38 S. Ct. 158, 62 L. Ed. 372 (1918). As long as it is clear that the expert’s opinion was based on more than mere conjecture, the entire substance of the expert’s testimony should be examined. Aurora v. Miami Plumbing & Heating, Inc., supra, 6 Conn. App. 46.

Keltner testified that there is a synergistic effect between cigarette smoking and asbestos exposure that increases the likelihood of developing lung cancer. He stated that it was more likely than not, given the synergistic effect, that asbestos played a significant role in the development of Michael O’Reilly’s lung cancer. Additionally, Keltner testified that the autopsy report showed interstitial fibrosis and ferruginous bodies, which are highly indicative of the presence of asbestos fibers, a substantial factor in bringing about lung cancer. He further testified that Michael O’Reilly’s exposure to asbestos at work was a significant contributing factor to the development of his lung cancer. In sum, Keltner testified that to conclude that asbestos exposure played a role in the development of lung cancer, several things need to be present, a diagnosis of obstructive lung disease and the presence of ferruginous bodies and interstitial fibrosis. All of those conditions were present.

The standard in Connecticut is well settled; expert opinions must be based on reasonable probabilities rather than mere speculation or conjecture if they are to be admissible in establishing causation. Struckman v. Burns, supra, 205 Conn. 555. To be reasonably probable, a conclusion must be more likely than not. An expert’s testimony as to the reasonable probability of the occurrence of an event does not depend on semantics or the use of any particular term or phrase, but rather, is determined by looking at the entire substance of the testimony. Aurora v. Miami Plumbing & Heating, Inc., supra, 6 Conn. App. 46.

On the basis of our review of Keltner’s testimony, we find that the commissioner’s factual findings were supported by evidence in the record and therefore must stand. The commissioner correctly found a reasonable probability that the lung cancer was related to working conditions on the basis of the testimony of the plaintiffs expert. The absence of any magic words is not dis-positive.

The plaintiffs second claim is that the board substituted its own findings of fact for those found by the commissioner. It is well established in Connecticut that “ ‘[i]t is the trial commissioner’s function to assess the weight and credibility of medical reports and testimony. . . . The commissioner must determine as a factual matter the causal relationship between a claimant’s symptoms and a compensable injury. . . . Once the commissioner makes a factual finding, [we are] bound by that finding if there is evidence in the record to support it. . . . Similarly, the conclusions drawn by the commissioner 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.’ ” Gillis v. White Oak Corp., 49 Conn. App. 630, 637, 716 A.2d 115, cert. denied, 247 Conn. 919, 722 A.2d 806 (1998).

The defendant argues that the commissioner should have accepted the testimony of one expert over another. That factual determination, however, is properly within the province of the commissioner. Adzima v. UAC/ Norden Division, 177 Conn. 107, 118, 411 A.2d 924 (1979). It was within the commissioner’s discretion to credit all, part or none of the plaintiffs expert’s testimony. That determination cannot be overruled by the board unless it could not find any evidence to support the conclusion. See id.

Having determined that Keltner’s testimony was admissible, the board may not substitute its own findings for that of the commissioner. Furthermore, we conclude that, under any circumstances, it would be improper for the board to disregard the commissioner’s findings regarding the cause of death and substitute testimony it preferred.

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

In this opinion the other judges concurred.