author: BISHOP, J.

text:
    CADLE COMPANY v. DAVID D’ADDARIO ET AL.
    (AC 28948)
    Bishop, Gruendel and Foti, Js.
    Argued September 15
    officially released October 28, 2008

      Michael G. Albano, for the appellant (plaintiff).

      Gary S. Klein, with whom was Susan R. Briggs, for the appellees (defendants).
   Opinion

BISHOP, J.

The plaintiff, the Cadle Company, appeals from the judgment of dismissal rendered by the trial court in favor of the defendants, David D’Addario and Lawrence D’Addario, both individually and as executors of the estate of F. Francis D’Addario (decedent). The court dismissed the plaintiffs claims for lack of subject matter jurisdiction on the basis of its determination that the claims were unripe for adjudication. We affirm the judgment of the trial court.

The following procedural history is relevant to the resolution of the plaintiffs appeal. The decedent died in 1986, and the defendants were appointed executors of his estate. Subsequently, on September 23, 1994, the plaintiff purchased a promissory note from a creditor of the decedent and filed a notice of a claim in excess of $1 million against the decedent’s estate. The plaintiffs claim is still pending in the Probate Court.

In July 2006, the plaintiff filed this action in seven counts alleging breach of fiduciary duty, self-dealing, unjust enrichment, conversion, statutory theft and violation of the Connecticut Unfair Trade Practices Act; General Statutes § 42-110a et seq.; and seeking an accounting pursuant to General Statutes § 52-401. On August 21, 2006, the defendants moved to dismiss the complaint on the grounds that the plaintiff lacks standing to bring this action and that its claims are not yet ripe for review. In a memorandum of decision filed April 12, 2007, the court determined that although the plaintiff had standing, it was premature for the plaintiff to bring this action without the resolution of its underlying probate claim. The court, therefore, dismissed the plaintiffs claims for lack of subject matter jurisdiction. In a supplemental memorandum of decision issued in response to the plaintiffs motion to reargue, the court reiterated its conclusion that the plaintiffs claims were not ripe for adjudication. This appeal followed.

“[J]usticiability comprises several related doctrines, namely, standing, ripeness, mootness and the political question doctrine, that implicate a court’s subject matter jurisdiction and its competency to adjudicate a particular matter.” Office of the Governor v. Select Committee of Inquiry, 271 Conn. 540, 569, 858 A.2d 709 (2004). “Justiciability requires (1) that there be an actual controversy between or among the parties to the dispute ... (2) that the interests of the parties be adverse ... (3) that the matter in controversy be capable of being adjudicated by judicial power . . . and (4) that the determination of the controversy will result in practical relief to the complainant. . . . Finally, because an issue regarding justiciability raises a question of law, our appellate review is plenary.” (Citations omitted; internal quotation marks omitted.) Id., 568-69.

“A case that is nonjusticiable must be dismissed for lack of subject matter jurisdiction.” Mayer v. Biafore, Florek & O’Neill, 245 Conn. 88, 91, 713 A.2d 1267 (1998). “[Bjecause an issue regarding justiciability raises a question of law, our appellate review [of the defendants’ ripeness claim] is plenary.” Office of the Governor v. Select Committee of Inquiry, supra, 569.

“[T]he rationale behind the ripeness requirement is to prevent the courts, through avoidance of premature adjudication, from entangling themselves in abstract disagreements .... Accordingly, in determining whether a case is ripe, a trial corut must be satisfied that the case before [it] does not present a hypothetical injury or a claim contingent upon some event that has not and indeed may never transpire.” (Citation omitted; internal quotation marks omitted.) Chapman Lumber, Inc. v. Tager, 288 Conn. 69, 86-87, 952 A.2d 1 (2008).

In this case, the existence of the plaintiffs injury is contingent on a determination of the priorities of the creditors of the decedent’s estate, the final settlement of the estate and the absence of sufficient funds in the estate to satisfy the plaintiffs claim. In other words, any injury sustained by the plaintiff stemming from the allegations of the defendants’ misconduct are, at this point, hypothetical. This case is distinguishable from those cases in which only the amount of damages is in question, thereby affecting the plaintiffs ability to prove its case, and not the court’s jurisdiction. In those cases, in which the injury had already occurred, the only questions were whether there would be damages and their extent. See id., 85-90 (although exact amount of plaintiffs damages uncertain, because it was clear there was no way plaintiff could recover entirety of its debt as sought in complaint, plaintiff had sustained some damages); Cumberland Farms, Inc. v. Grolon, 247 Conn. 196, 211-14, 719 A.2d 465 (1998) (plaintiffs inverse condemnation action ripe despite potential of success of administrative appeal from taking of its land because it would still be entitled to some compensation for temporary taking it had suffered during pendency of that appeal); Mayer v. Biafore, Florek & O’Neill, supra, 245 Conn. 88 (judicial determination that action barred by statute of limitations not necessary to justiciability of legal malpractice claim because injury already occurred); Weiner v. Clinton, 100 Conn. App. 753, 757-63, 919 A.2d 1038 (despite pending appeal, injury of default judgment allegedly caused by legal negligence already occurred, thereby making malpractice matter ripe for adjudication), cert. denied, 282 Conn. 928, 926 A.2d 669 (2007). Here, because the estate remains open and there is no allegation that the estate is insolvent, it is impossible to ascertain whether the plaintiff has sustained any injury as a result of the defendants’ alleged misconduct. Accordingly, the court properly determined that the plaintiffs claims were premature and dismissed them for lack of subject matter jurisdiction.

The judgment is affirmed.

In this opinion the other judges concurred.

       There is also currently pending in the Superior Court an action on the probate claim pursuant to General Statutes § 45a-400.

       In its supplemental memorandum of decision, the court held that the plaintiffs claim for an accounting should be dismissed on the additional ground that it had failed to allege that it had previously requested an accounting and that its request had been refused. In its brief, the plaintiff contends that this amounted to an improper sua sponte striking of its accounting claim. At oral argument before this court, however, the plaintiff conceded that the court had already dismissed all of its claims, including the accounting claim, as unripe, and that the supplemental decision merely added language that was not necessary to the dismissal of that count. The plaintiff agreed, therefore, that it was proceeding on the basis that all of its claims were dismissed.

       We note that because the plaintiff’s claim for an accounting in the Superior Court pursuant to General Statutes § 52-401 is predicated on its claims regarding the defendants’ misconduct, it, too, is premature.


source: Caselaw Access Project

author: HARPER, J.

license: Public Domain

text:
    STATE OF CONNECTICUT v. RYSHON WELLS
    (AC 28534)
    McLachlan, Harper and McDonald, Js.

      Argued April 24
    officially released November 4, 2008

      H. Owen Chace, special public defender, for the appellant (defendant).

      Laurie N. Feldman, special deputy assistant state’s attorney, with whom, on the brief, were Jonathan C. Benedict, state’s attorney, and Charles M. Stango, assistant state’s attorney, for the appellee (state).
   Opinion

HARPER, J.

The defendant, Ryshon Wells, appeals from the judgment of conviction, rendered after a jury trial, of criminal possession of a firearm in violation of General Statutes § 53a-217, carrying a pistol without a permit in violation of General Statutes § 29-35 and interfering with an officer in violation of General Statutes § 53a-167a. The defendant claims that the court improperly failed, sua sponte, to declare a mistrial when (1) drugs that had not been introduced as evidence were found intermixed with properly introduced evidence in the jury room, (2) the jury heard testimony that the gun had been fired prior to his arrest and (3) the jury heard testimony that a gun recovered upon his arrest was stolen property. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. On March 26, 2006, the Bridgeport police were notified that a shooting had occurred in Bridgeport. Upon commencing an investigation, the police identified the defendant as a suspect. Once the defendant was located, he was notified by the police to stop and put his hands up. The defendant instead reached into his waistband, removed a gun, dropped that gun onto the sidewalk and immediately fled the scene. Soon thereafter, the police apprehended the defendant and recovered the gun.

In a substitute information filed on September 25, 2006, the state charged the defendant with criminal possession of a firearm, carrying a pistol without a permit and interfering with an officer. At the defendant’s criminal trial, Vincent LaRiccia, a Bridgeport police officer who was at the scene of the defendant’s arrest, testified regarding the number of bullets found within the recovered gun. LaRiccia testified that the gun has “a ten round capacity .... It would be a total of eleven” bullets. He testified that on the evening of the arrest, the recovered gun had “eight [bullets] in the magazine and oné in the chamber.” The defendant did not object to this testimony.

Later during the defendant’s trial, John Tenn, a Bridgeport police officer who arrived at the scene after the defendant’s arrest, testified that after the defendant had been taken into police custody, he ran the “serial number” on the gun and got “a printout that . . . told [him] that the gun was stolen.” The defendant objected to this testimony. After an off the record discussion with counsel, the court instructed the jury to “strike the testimony about the . . . gun being stolen .... You’re not to consider that as evidence in this case whatsoever.” The defendant did not object in any way to this instruction.

During its deliberation, the jury provided a note to the court that “one of us has just discovered what appears to be [marijuana] in the glove in the evidence box. Does this cause a problem?” The court then informed both parties that it would “instruct the jury— first I’m going to have it taken out of the evidence area and tell them not to consider it; it’s not evidence in the case. But I have to welcome comments . . . .” The defendant stated that he “would agree” to such an instruction. The court then specifically instructed the jury not to consider the marijuana, as “it’s not part of the information, you’re not to speculate or try to guess why it’s there. It’s just not evidence in the case, and that’s how I’m going to instruct you on that.” The court then solicited comments from counsel on the jury instruction as given, and the defendant proffered no objection. The jury later returned a guilty verdict on all charges. This appeal followed.

The defendant claims that the court denied him a fair trial and due process under the fifth, sixth and fourteenth amendments to the United States constitution because it failed to declare a mistrial, sua sponte. In support of this claim, he argues that several improprieties occurred at trial, the cumulative effect of which denied him his constitutional rights. We will address each aspect of the defendant’s claim in turn.

Before we do so, we note the applicable standard of review. “The decision as to whether to grant a motion for a mistrial, or to grant a mistrial on the court’s own motion, is one that requires the trial court to exercise its judicial discretion. . . . [T]he law has invested [c]ourts of justice with the authority to discharge a jury from giving any verdict, whenever, in their opinion . . . there is a manifest necessity for the act, or the ends of public justice would otherwise be defeated. They are to exercise a sound discretion .... [A] mistrial should be granted only if something occurs in the course of the trial that makes it apparent to the court that a party cannot have a fair trial and the whole proceedings are vitiated.” (Citations omitted; internal quotation marks omitted.) State v. Phidd, 42 Conn. App. 17, 38-39, 681 A.2d 310, cert. denied, 238 Conn. 907, 679 A.2d 2 (1996), cert. denied, 520 U.S. 1108, 117 S. Ct. 1115, 137 L. Ed. 2d 315 (1997).

I

The defendant’s primary claim is that the presence of marijuana in the jury room along with properly introduced evidence violated his constitutional right to a fair trial. The defendant acknowledges that this claim was not preserved at trial and requests that we review it pursuant to State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989), or, in the alternative, under the plain error doctrine. See Practice Book § 60-5. Because we conclude that the defendant waived this claim at trial, we do not review the claim under Golding or the plain error doctrine.

“[WJaiver is the intentional relinquishment or abandonment of a known right.” (Internal quotation marks omitted.) State v. Wilson, 52 Conn. App. 802, 810, 729 A.2d 778 (1999). “[A] valid waiver calls into question the existence of a constitutional violation depriving the defendant of a fair trial for the purpose of Golding review [and it] also thwarts plain error review of a claim.” State v. Corona, 69 Conn. App. 267, 274, 794 A.2d 565, cert. denied, 260 Conn. 935, 802 A.2d 88 (2002).

Our careful review of the record leads us to conclude that the defendant waived any claim that this occurrence deprived him of a fair trial when he expressly agreed with the court’s proposed jury instruction and failed to proffer any type of objection after that instruction was given to the jury. See, e.g., State v. Respass, 256 Conn. 164, 192-93, 770 A.2d 471 (waiver occurred when court “explicitly gave both parties opportunities to conduct further inquiry, and both parties declined. . . . [I]f the defendant perceived the trial court’s inquiry as inadequate, then he would have complained during the inquiry process instead of waiting until after the jury had reached a verdict.” [Citation omitted.]), cert. denied, 534 U.S. 1002, 122 S. Ct. 478, 151 L. Ed. 2d 392 (2001).

In terms of Golding, we note that although the defendant asserts that this claim deprived him of a fair trial, we cannot so conclude. One of the required conditions under Golding is that “ the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial .... The appellate tribunal is free . . . to respond to the defendant’s claim by focusing on whichever condition is most relevant in the particular circumstances.” (Emphasis added.) State v. Golding, supra, 213 Conn. 240. As the reviewing court, “we will review [the claim] and arrive at a conclusion as to whether the alleged constitutional violation clearly exists and whether it clearly deprived the defendant of a fair trial.” Id., 241. We conclude that because the defendant has waived the claim, there is no clear, existing constitutional violation, and, thus, the claim fails to satisfy the third prong of Golding. Additionally, on the basis of the defendant’s waiver, we are not persuaded that plain error exists with regard to this claim.

II

The defendant next claims that LaRiccia’s testimony that the gun had been fired prior to the defendant’s arrest violated his constitutional right to a fair hearing. The defendant concedes that this claim is unpreserved and seeks review under Golding and the plain error doctrine. We decline to review this claim under Golding and conclude that the defendant cannot succeed under the plain error doctrine.

We begin by noting that although the defendant asserts that this claim is of constitutional magnitude, we cannot so conclude. One of the required conditions under Golding is that “the claim is of constitutional magnitude alleging the violation of a fundamental right .... The appelláte tribunal is free ... to respond to the defendant’s claim by focusing on whichever condition is most relevant in the particular circumstances.” (Emphasis added.) Id., 239-40. The defendant bears “the responsibility of demonstrating that his claim is indeed a violation of a fundamental constitutional right.” Id., 240. “The defendant can not raise a constitutional claim by attaching a constitutional label to a purely evidentiary claim or by asserting merely that a strained connection exists between the evidentiary claim and a fundamental constitutional right.” State v. Stepney, 94 Conn. App. 72, 79, 891 A.2d 67, cert. denied, 278 Conn. 911, 899 A.2d 40 (2006). “Generally, the admissibility of evidence is a matter of state law and unless there is a resultant denial of fundamental fairness or the denial of a specific constitutional right, no constitutional issue is involved.” (Internal quotation marks omitted.) State v. Vilalastra, 207 Conn. 35, 46, 540 A.2d 42 (1988).

It is well settled that claims involving disputed testimonial statements are evidentiary in nature. See, e.g., State v. Hansen, 39 Conn. App. 384, 388-91, 666 A.2d 421 (court declined to afford Golding or plain error review to testimony regarding defendant’s past contacts with police), cert. denied, 235 Conn. 928, 667 A.2d 554 (1995). Accordingly, we conclude that the defendant’s argument fails under the second prong of Golding.

The defendant also argues that plain error exists. A “defendant cannot prevail under [the plain error doctrine] . . . unless he demonstrates that the claimed error is both so clear and so harmful that a failure to reverse the judgment would result in manifest injustice.” (Internal quotation marks omitted.) State v. Cobb, 251 Conn. 285, 389, 743 A.2d 1 (1999), cert. denied, 531 U.S. 841, 121 S. Ct. 106, 148 L. Ed. 2d 64 (2000); see also Practice Book § 60-5. “[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.” (Emphasis added.) State v. Hinckley, 198 Conn. 77, 87-88, 502 A.2d 388 (1985). “A plain error review does not necessarily require the conclusion that a defendant will prevail in the claim that plain error exists.” (Emphasis in original.) State v. Hedman, 62 Conn. App. 403, 408, 772 A.2d 603 (2001), rev’d on other grounds, 261 Conn. 390, 802 A.2d 842 (2002).

The defendant has not demonstrated how the existence of an error is so obvious that it affects the fairness and integrity of and public confidence in the judicial proceedings. Here, we cannot conclude that the defendant’s claim is of such compelling error or so truly extraordinary that reversal of the court’s judgment is required.

Ill

We next turn to the defendant’s claim that Tenn’s testimony that the recovered gun was stolen violated his constitutional right to a fair hearing. The defendant requests that we review this claim pursuant to Golding or the plain error doctrine. The defendant cannot prevail under either doctrine.

The defendant’s claim is evidentiary in nature and not one of constitutional magnitude because he challenges the admissibility of testimonial evidence. As we concluded in part II, Golding review is inapplicable on this claim because a constitutional issue is not involved.

With regard to the plain error doctrine, “[it] may only be invoked in instances of forfeited-but-reversible error . . . 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. . . . 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.” (Citations omitted; internal quotation marks omitted.) State v. Wilson, supra, 52 Conn. App. 809-10.

Although the record reflects that the defendant did not intentionally waive this claim during trial, the claim fails under the plain error doctrine because he has not demonstrated the existence of a “truly extraordinary situation.” The record clearly depicts Term’s testimony that his research led him to conclude that the gun was stolen and also depicts the defendant’s objection thereto. The court then instructed the jury to “strike the testimony about the . . . gun being stolen .... You’re not to consider that as evidence in this case whatsoever.” The defendant did not object or expressly agree to the instruction. Nonetheless, under plain error review, as we noted in part II, “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.” (Emphasis added.) State v. Hinckley, supra, 198 Conn. 87-88. The defendant has not demonstrated how the existence of an error is so obvious that it affects the fairness and integrity of and public confidence in the judicial proceedings. We cannot conclude that the defendant’s claim is of such compelling error or so truly extraordinary to reverse the court’s judgment.

On the basis of the foregoing analysis, we conclude that, whether viewed individually or collectively, the occurrences claimed by the defendant did not deprive him of a fair trial or due process. Accordingly, we disagree with the defendant’s claim that the court’s failure to declare a mistrial, sua sponte, constituted an abuse of discretion.

The judgment is affirmed.

In this opinion the other judges concurred.

       The defendant was given a total effective sentence of ten years imprisonment, execution suspended after six years, and five years probation.

       LaRiccia explained that a ten round capacity weapon holds ten bullets in the magazine, or clip, and one bullet in the chamber and, thus, holds a total of eleven bullets.


author: LAVINE, J.

text:
    NETHIA JOYNER v. SIMKINS INDUSTRIES, INC.
    (AC 29093)
    Harper, Lavine and West, Js.

      Argued September 8
    officially released November 4, 2008

      Steven D. Jacobs, for the appellant (plaintiff).

      Jeffrey W. Kennedy, with whom, on the brief, was Margot Kenefick Burkle, for the appellee (defendant).
   Opinion

LAVINE, J.

In this wrongful discharge action, we must determine whether the defendant, Simkins Industries, Inc., violated a public policy underlying the Americans with Disabilities Act (ADA) when it discharged the plaintiff, Nethia Joyner, for failing to submit to a return to work medical examination. We conclude that it did not and affirm the judgment of the trial court.

The plaintiffs substituted complaint sounds in three counts: wrongful discharge, breach of implied contract and breach of the covenant of good faith and fair dealing. Following a one day trial, the court found the following facts. The defendant employed the plaintiff at its New Haven facility from 1986 until August, 2003. In 1999, the plaintiff and her husband established a plumbing business that they operated from their home. In June, 2003, afire destroyed the defendant’s Baltimore facility, and some of its production demands previously performed in that facility were transferred to the New Haven plant. The plaintiff claimed that, at that time, her workload increased over a period of approximately six weeks, causing her to be “stressed out.”

On August 11, 2003, the plaintiff did not report to her job and telephoned employees of the defendant to advise them that she was sick. On August 14, 2003, the plaintiff saw Dayo Adetola, a physician, who sent a note via facsimile to the defendant’s New Haven office, advising that the plaintiff was suffering from a “medical condition” and was unable to return to work until August 25, 2003. Several of the defendant’s employees telephoned the plaintiff on numerous occasions, but the plaintiff failed to respond to the calls. On August 19, 2003, the plaintiff received a letter from the defendant, asking her to submit to a medical examination that the defendant had scheduled for her on Friday, August 22, 2003, at the Hospital of Saint Raphael occupational health clinic. The plaintiff did not attend the medical examination and did not inform the defendant of her intention not to submit to the examination. On August 25, 2003, the defendant informed the plaintiff that she was insubordinate in failing to comply with a direct order and that her employment had been terminated effective August 22, 2003.

The court found that at the time of and following the termination of the plaintiffs employment, she continued to conduct her plumbing business. In October, 2003, she enrolled in an entrepreneur class for two to three months. The plaintiff claimed that she made efforts to obtain other employment but was unsuccessful.

The defendant presented evidence that it had terminated the plaintiffs employment on the basis of her noncompliance with § P 9 of the employee handbook, regarding “physical exams.” The plaintiff, in response, contended that she was not required to submit to a return to work medical examination and that at the time, she had a generalized anxiety disorder. The plaintiff argued that her discharge for failure to attend a return to work medical examination was unlawful. Although she concedes that she was an at-will employee, the plaintiff claims that her discharge violated the provisions of the ADA, which limits employer required medical examinations to those “shown to be job-related and consistent with business necessity.” 42 U.S.C. § 12112 (d) (4) (A).

The court found that the testimony of Diane Lavorgna, the defendant’s corporate manager of human resources, established the reasonableness of the defendant’s request that the plaintiff be examined medically before she returned to her job. Moreover, the defendant had a legitimate interest in determining whether the plaintiff was fit to return to work and to protect fellow employees if her condition constituted a risk to them. The vagueness of Adetola’s note and the plaintiffs failure to respond to telephone calls or to communicate with the defendant’s employees, the court concluded, justified the defendant’s request for a medical examination.

The court further found that the plaintiffs contention that the defendant’s employee handbook does not provide for return to work examinations conflicts with § P 9 of the handbook, which provides: “A physical examination, at the Company’s expense, may be required when either of the following situations exist: A. The employee claims inability to work because of a health limitation. B. Both the employee’s Supervisor and the Human Resources Manager believe the employee is unable to properly perform the work required due to a possible health limitation.” Lavorgna testified that the vagueness of the plaintiffs complaints and concerns regarding the plaintiffs ability to do her job, as well as any adverse effect on other employees, justified the defendant’s request that the plaintiff have a medical examination.

The court concluded that the plaintiff failed to establish that by terminating her employment, the defendant violated an important public policy under the ADA. The court determined that the defendant discharged the plaintiff due to her insubordination in refusing to attend a medical examination, as clearly set forth in the employee handbook. The plaintiff appealed, claiming that the court improperly concluded that she had failed to establish that the grounds for her employment discharge violated an important public policy.

This court affords “plenary review to conclusions of law reached by the trial court. . . . Under plenary review, we must decide whether the trial court’s conclusions of law are legally and logically correct and find support in the record. ” (Citation omitted; internal quotation marks omitted.) Krichko v. Krichko, 108 Conn. App. 644, 648, 948 A.2d 1092, cert. granted on other grounds, 289 Conn. 913, 957 A.2d 877 (2008).

“In Connecticut, an employer and employee have an at-will employment relationship in the absence of a contract to the contrary. Employment at will grants both parties the right to terminate the relationship for any reason, or no reason, at any time without fear of legal liability. Beginning in the late 1950s, however, the courts began to carve out certain exceptions to the at-will employment doctrine, thereby giving rise to tort claims for wrongful discharge.” (Internal quotation marks omitted.) Thibodeau v. Design Group One Architects, LLC, 260 Conn. 691, 697-98, 802 A.2d 731 (2002). “Sheets v. Teddy’s Frosted Foods, Inc., 179 Conn. 471, 427 A.2d 385 (1980), sanctioned a common-law cause of action for wrongful discharge in situations in which the reason for the discharge involved impropriety derived from some important violation of public policy. ... In doing so, [our Supreme Court] recognized a public policy limitation on the traditional employment at-will doctrine in an effort to balance the competing interests of employers and employees.” (Citations omitted; internal quotation marks omitted.) Thibodeau v. Design Group One Architects, LLC, supra, 698.

In this case, the plaintiff claims that the defendant violated the public policy underlying the ADA by requiring her to undergo a return to work medical examination and draws our attention to a decision of the United States Court of Appeals for the Second Circuit to support her position, i.e., Conroy v. Dept. of Correctional Services, 333 F.3d 88, 97 (2d Cir. 2003) (summary judgment reversed as questions of material fact exist as to business necessity defense). Although we agree that requiring that an employee undergo a return to work medical examination may constitute a violation of the ADA under certain circumstances, we conclude that there was no such violation in this case given the circumstances.

Under 42 U.S.C. § 12112 (d) (4) (A), “[a] covered entity shall not require a medical examination and shall not make inquiries of an employee as to whether such employee is an individual with a disability or as to the nature or severity of the disability, unless such examination or inquiry is shown to be job-related and consistent with business necessity.” (Emphasis added.) The Second Circuit has held that “[a]n employer cannot simply demonstrate that an inquiry is convenient or beneficial to its business. Instead, the employer must first show that the asserted ‘business necessity’ is vital to the business. For example, business necessities may include ensuring that the workplace is safe and secure or cutting down on egregious absenteeism. The employer must also show that the examination or inquiry genuinely serves the asserted business necessity and that the request is no broader or more intrusive than necessary. The employer need not show that the examination or inquiry is the only way of achieving a business necessity, but the examination or inquiry must be a reasonably effective method of achieving the employer’s goal.” Conroy v. Dept. of Correctional Services, supra, 333 F.3d 97-98. Moreover, “[ejmployers are permitted to use reasonable means to ascertain the cause of troubling behavior without exposing themselves to [claims under the act]. Cody v. CIGNA Healthcare of St. Louis, Inc., 139 F.3d 595, 599 (8th Cir. 1998).” Thomas v. Corwin, 483 F.3d 516, 528 (8th Cir. 2007).

In reaching its holding in Conroy, the Second Circuit explained that its standard is consistent with the case law that has developed in other federal courts. “[C]ourts will readily find a business necessity if an employer can demonstrate that a medical examination or inquiry is necessary to determine [1] whether the employee can perform job-related duties when the employer can identify legitimate, non-discriminatory reasons to doubt the employee’s capacity to perform his or her duties (such as frequent absences or a known disability that had previously affected the employee’s work) or [2] whether an employee’s absence or request for an absence is due to legitimate medical reasons, when the employer has reason to suspect abuse of an attendance policy. These two business necessity justifications are merely illustrative, and an employer may be able to demonstrate other business necessities. For example, [in the Conroy case, the defendant was required to] guard against the severe disruption that would result from infectious disease being spread through the staff or inmate population.” Conroy v. Dept. of Correctional Services, supra, 333 F.3d 98.

On the basis of our review of the evidence presented at trial, we conclude that there is sufficient evidence in the record to support the court’s finding that the defendant discharged the plaintiff for insubordination for failing to comply with a request to submit to a return to work medical examination as required by the employee handbook. We see nothing in Conroy, which was not decided on its merits, that causes us to doubt our conclusion. The plaintiff here testified that she felt overburdened by additional responsibility that befell her when the defendant’s New Haven facility took on some of the production previously performed by the Baltimore facility, which had been destroyed by fire. The plaintiff complained to her supervisor, David Whipple, that she was feeling stress. The plaintiff was absent from her job for several days before having her physician provide the defendant with a note, indicating that the plaintiff was suffering from a medical condition and would not be able to return to her position until August 25, 2003. The defendant’s employees made telephone calls to the plaintiffs home to ascertain the nature of her condition. The plaintiff testified that she did not always answer the telephone or respond to messages left at her home.

The defendant presented evidence that Charlotte Eubank, the defendant’s director of human resources, requested that the plaintiff undergo a return to work medical examination. The plaintiff not only failed to attend the scheduled examination but also failed to inform the defendant that she would not undergo the examination.

Lavorgna testified that the employee handbook gave the defendant the right to request a return to work medical examination because the plaintiff was vague about the nature of her medical condition and was not forthcoming with information to Eubank. According to Lavorgna, the defendant sought to determine whether the plaintiff was fit to return to work and to protect its other employees if the plaintiffs condition put them at risk. We agree with the court’s finding that the vagueness of Adetola’s note and the plaintiffs refusal to discuss the nature of her medical condition justified the defendant’s request for a return to work medical examination.

We conclude that the defendant has met its burden to demonstrate a business necessity for requiring the plaintiff to undergo a return to work medical examination as set forth in the employee handbook. Our conclusion is supported by Thomas v. Corwin, supra, 483 F.3d 527-28, in which the plaintiff refused to permit her employer to inquire about the nature of her illness that required her to take anxiety medication and antidepressants. Our decision also is consistent with Tice v. Centre Area Transportation Authority, 247 F.3d 506, 516-18 (3d Cir. 2001), in which the plaintiff declined to submit to an independent medical examination when his treating physician failed to provide medically based information as to the plaintiffs ability to operate a bus safely. The plaintiff failed to rebut the defendant’s evidence. The defendant, therefore, did not contravene an important public policy when it discharged the plaintiff.

The judgment is affirmed.

In this opinion the other judges concurred.

       See 42 U.S.C. § 12101 et seq. The congressional findings and purpose of the act are set forth, respectively, at 42 U.S.C. § 12101 (a) and (b).

       “[A] plaintiff need not prove that he or she has a disability unknown to his or her employer in order to challenge a medical inquiry or examination under 42 U.S.C. § 12112 (d) (4) [A]. In contrast to other parts of the [act], the statutory language does not refer to qualified individuals with disabilities, but instead merely to ‘employees’.” Conroy v. Dept. of Correctional Services, supra, 333 F.3d 94-95.

       “In general, we look to the federal courts for guidance in resolving issues of federal law. . . . [T]he decisions of the federal circuit in which a state court is located are entitled to great weight in the interpretation of a federal statute.” (Citation omitted; internal quotation marks omitted.) Krondes v. O’Boy, 69 Conn. App. 802, 808, 796 A.2d 625 (2002).

       See “Harris v. [Harris & Hart, Inc., 206 F.3d 838, 844 (9th Cir. 2000)] (finding no [violation of the act] when employ[er] refused to rehire plaintiff without a medical release when employ [er] knew that plaintiff had a disability that had previously forced him to resign); Porter v. United States Alumoweld Co., 125 F.3d 243, 246 (4th Cir. 1997) (finding consistency with business necessity when employer required a medical exam from employee, whose job required lifting, when employee sought to return from aleave of absence following back surgery for a work-related injury); Reichmann v. Cutler-Hammer, Inc., 183 F. [Sup.] 2d 1292, 1299 (D. Kan. 2001) (finding that evidence supported jury’s finding that after plaintiff had suffered stroke and now requested transfer to a more strenuous position within the company, requiring extensive questionnaire from employee’s doctor served business necessity); Rodriguez v. Loctite Puerto Rico, Inc., 967 F. [Sup.] 653, 661 (D.P.R. 1997) (finding no [violation of the act] when employer required an independent examination after plaintiff requested a two months leave of absence).” Conroy v. Dept. of Correctional Services, supra, 333 F.3d 98.
      See also Thomas v. Corwin, supra, 483 F.3d 527 (employer had reason to doubt employee’s capacity to return to position where employee previously communicated concerns regarding her employment situation and safety, went to emergency room for anxiety attack that was diagnosed as related to work-related stress and anxiety and took three week leave of absence); Tice v. Centre Area Transportation Authority, 247 F.3d 506, 517 (3d Cir. 2001) (employer’s request for medical examination reasonable where certification from employee’s physician relied on employee’s assessment of his own ability to operate bus safely).

       Lavorgna testified, in part, on cross-examination by the defendant’s counsel as follows:
      “Q. Okay. What was it about [the plaintiffs] verification that she provided to you from her doctor that caused you to seek further inquiry into her medical situation?
      “A. The certificate was very vague.
      “Q. Did you recall what the certificate stated?
      “A. I believe it said she would be out due to a medical condition.
      “Q. Under what authority and for what purpose did you ask her to submit to another medical exam?
      “A. Well, we wanted to make sure if and when she did come back, she would be able to do her job.
      “Q. Did you have any further concerns?
      “A. We were also concerned with the people in the office, as well, if it would affect the people in the office, her time out and that sort of thing.
      “Q. Had you tried to obtain that sort of information from [the plaintiff] without making the formal request for a medical examination?
      “A. I did not.
      “Q. And did the [defendant]?
      “A. Charlotte Eubank did.
      “Q. What efforts were made on behalf of the company to obtain this information?
      “A. Charlotte Eubank made numerous calls to [the plaintiff] to obtain information, and most of the calls were . . . unanswered.”


author: ROBINSON, J.

text:
    JOSEPH EREMITA v. SALVATORE MORELLO
    (AC 29341)
    Flynn, C. J., and DiPentima and Robinson, Js.
    Submitted on briefs September 12
    officially released November 4, 2008

      C. Scott Schwefel filed a brief for the appellant (plaintiff).

      Margaret Fogerty Rattigan filed a brief for the appellee (defendant).
   Opinion

ROBINSON, J.

The plaintiff, Joseph Eremita, appeals following the denial of his motion to open the judgment dismissing his breach of contract claim against the defendant, Salvatore Morello. On appeal, the plaintiff claims that the trial court improperly denied his motion to open the judgment on the basis of mistake or accident. We affirm the judgment of the trial court.

The following facts and procedural history are relevant to our resolution of the plaintiff’s appeal. On May 20, 2004, the plaintiff filed a complaint alleging breach of contract by the defendant. The dispute pertained to an unpaid sum on a promissory note executed by the defendant on July 30, 1998. The court rendered a judgment of dismissal against the plaintiff for failure to make a prima facie case on September 11, 2007, after the plaintiff, who was the only witness scheduled to testify on his behalf, failed to appear at the trial. The plaintiff later filed a motion to open the judgment of dismissal on October 1, 2007, which was denied by the court on November 6, 2007. From that judgment, the plaintiff appeals.

The plaintiff claims that the court abused its discretion in refusing to open the judgment of dismissal because his absence at trial was the result of inadvertence. We decline to reach the merits of the plaintiffs claim due to an inadequate record.

The plaintiff represented in his motion to open the judgment that a trial management conference was held on September 7, 2007, four days before the court trial was scheduled to begin. At that time, the plaintiffs counsel informed the court that he had been unable to contact the plaintiff “despite diligent efforts . . . .” When counsel still was unable to contact the plaintiff on September 10, 2007, he sent a motion for a continuance by facsimile, which was date stamped the next day, September 11, the day of the trial. On that day, the court, Graham, J., denied the motion, and counsel appeared before the court, Tanzer, J., for trial. The plaintiffs counsel informed the court that he still had not been able to contact the plaintiff. As the plaintiff was expected to be the sole testimonial witness to prove his cause of action, there were no witnesses to testify on his behalf in the plaintiffs absence, and the plaintiff s attorney presented no evidence before resting his case. The defendant’s attorney immediately moved for dismissal, pursuant to Practice Book § 15-8, for failure of the plaintiff to make out a prima facie case, and the court rendered a judgment of dismissal. The plaintiff filed a motion to open the judgment under General Statutes § 52-212a and Practice Book § 17-4, which motion was denied by the court.

“Our review of a court’s denial of a motion to open ... is well settled. We do not undertake a plenary review of the merits of a decision of the trial court . . . to deny a motion to open a judgment. ... In an appeal from a denial of a motion to open a judgment, our review is limited to the issue of whether the trial court has acted unreasonably and in clear abuse of its discretion. ... In determining whether the trial court abused its discretion, this court must make every reasonable presumption in favor of its action.” (Internal quotation marks omitted.) In re Ilyssa G., 105 Conn. App. 41, 45, 936 A.2d 674 (2007), cert. denied, 285 Conn. 918, 943 A.2d 475 (2008).

In determining whether a judgment should be opened, this court has stated clearly that “the [negligence of a party or his counsel is insufficient for purposes of § 52-212 to set aside a default judgment.” (Internal quotation marks omitted.) Rino Gnesi Co. v. Sbriglio, 83 Conn. App. 707, 712, 850 A.2d 1118 (2004); see also Woodruff v. Riley, 78 Conn. App. 466, 469-70, 827 A.2d 743, cert. denied, 266 Conn. 922, 835 A.2d 474 (2003). In particular, where a party negligently failed to attend trial, this court, as well as our Supreme Court, has held repeatedly that this was not sufficient grounds for opening the judgment. See Munch v. Willametz, 156 Conn. 6, 11, 238 A.2d 424 (1968); In re Ilyssa G., supra, 105 Conn. App. 49 (“[r]egardless of whether it was intentional or the result of negligence, the respondent’s failure to keep the court, the department [of children and famihes] and his attorney informed of his whereabouts does not qualify for purposes of opening a default judgment as a mistake, accident or other reasonable cause that prevented the respondent from presenting a defense”); Moore v. Brancard, 89 Conn. App. 129, 133, 872 A.2d 909 (2005) (“the court reasonably could have concluded that the plaintiffs failure to appear was due to mere inattention”). Indeed, “[w]hile it is true that a judgment may be opened on the grounds of lack of notice or accidental failure to appear ... it does not follow that such circumstances mandate the opening of a judgment.” (Citations omitted.) Steve Viglione Sheet Metal Co. v. Sakonchick, 190 Conn. 707, 711, 462 A.2d 1037 (1983).

The record in this matter is inadequate for this court to review the plaintiffs claim. It does not contain a memorandum of decision regarding the motion to open the judgment of dismissal. The court’s reason for denying the motion to open is not a part of the record. The record merely contains a copy of the plaintiffs motion, on which the court indicated that the motion was denied. Additionally, there was no hearing on the motion. Furthermore, the plaintiff did not file a motion for articulation to ascertain the basis for the court’s decision. “Appellants bear the burden of affording this court an adequate record for review.” American Honda Finance Corp. v. Johnson, 80 Conn. App. 164, 168, 834 A.2d 59 (2003). In view of the inadequate record, we cannot ascertain why the court denied the motion to open the judgment, and, therefore, we decline to review this claim. See State v. Ritz Realty Corp., 63 Conn. App. 544, 549, 776 A.2d 1195 (2001).

The judgment is affirmed.

In this opinion the other judges concurred.

       The plaintiffs attorney sent a motion for a continuance by facsimile on September 10, 2007, one day before the trial was to begin, which the court denied. The stated reason for the request for a continuance was that the plaintiff was not available.

       The plaintiff states in his motion to open the judgment that on the date of trial, he was out of state and was inaccessible by telephone or facsimile. The September 11, 2007 trial date had been scheduled on November 30, 2006, nearly ten months prior.

       Practice Book § 15-8 provides in part: “If . . . the plaintiff has produced evidence and rested his or her cause, the defendant may move for judgment of dismissal, and the judicial authority may grant such motion, if in its opinion the plaintiff has failed to make out a prima facie case. . . .”

       The plaintiff in fact attempts to use the lack of a written memorandum of decision as the basis of his argument, noting in his brief that because the court did not draft a memorandum of decision it is unknown whether the court analyzed the question of whether the plaintiff had been prevented by mistake, accident or other reasonable cause from prosecuting the action. This argument ignores the fact that “[a]n appellant may seek to remedy any ambiguities or deficiencies in a trial court’s decision by filing a motion for articulation as provided in Practice Book § 66-5.” American Honda Finance Corp. v. Johnson, 80 Conn. App. 164, 168, 834 A.2d 59 (2003).


author: FLYNN, C. J.

text:
    CUE ASSOCIATES, LLC v. CAST IRON ASSOCIATES, LLC
    (AC 28961)
    Flynn, C. J., and Lavine and Pellegrino, Js.

      Argued September 17
    officially released November 4, 2008

      Richard P. Weinstein, with whom was Nathan A. Schatz, for the appellant (plaintiff).

      Michael D. O’Connell, with whom, on the brief, was Erin Arcesi Mutty, for the appellee (defendant).
   Opinion

FLYNN, C. J.

The plaintiff, Cue Associates, LLC, appeals from the judgment of the trial court in favor of the defendant, Cast Iron Associates, LLC. On appeal, the plaintiff claims that the court improperly applied the statute of limitations found in General Statutes § 52-577 to bar the plaintiffs trespass claim, when the defendant did not plead this statute of limitations as a special defense. We agree with the plaintiff and, therefore, reverse in part the judgment of the trial court.

The following facts, which are taken from the court’s memorandum of decision and from the record, are undisputed. The plaintiff owns property known as 247-253 Asylum Street in Hartford. The defendant is the owner of an adjacent property known as 235-241 Asylum Street. The buildings on the parties’ properties share a common, or party, wall. In December, 1981, Anthony B. Cacase, Roy Christiansen and Nicholas V. Perfito entered into an easement agreement with the defendant’s predecessor in ownership, Asylum Associates, L.P. (Asylum). Cacase, Christiansen and Perfito subsequently formed the plaintiff limited liability company. The agreement granted Asylum and its successors the right to make certain repairs to the footings supporting the party wall, as well as the right to enter the plaintiffs property to make such repairs. The agreement also provided that if Asylum had to disturb the plaintiffs portion of the wall or the footings located within the easement area in any way, it would be obligated to restore them to their condition prior to the disturbance. Asylum further agreed to extend its chimney to an appropriate height above any new roof line of its building.

In the early 1980s, Asylum performed extensive renovative construction on its building. In the course of this construction, Asylum extended the party wall upward in order to add an additional floor and added a number of quoins, or rectangular bricks, to the facade of the building. As a result of the construction, Asylum’s building encroached on the plaintiffs property line by approximately twenty-two inches. At no time did Asylum extend the chimney on its roof as it had agreed.

In 2005, the plaintiff became interested in a city restoration project. Under the project, the plaintiff’s building would be restored to its original late nineteenth century appearance. The city’s project required an accurate property survey, and it was as a result of this survey that the plaintiff became aware of the encroachment of the defendant’s property across the plaintiffs property line. On November 10, 2005, the plaintiff filed suit against the defendant. In addition to claims that the defendant breached its contractual obligations under the easement agreement, the plaintiffs complaint stated a claim for trespass. The plaintiff sought equitable relief as well as monetary damages.

On July 12, 2006, the defendant filed a second amended answer and special defenses. The defendant denied the substantive allegations of the complaint and asserted special defenses of laches, waiver, estoppel, adverse possession and the statute of limitations. As to the last of these, the defendant pleaded as follows: “The claims of the [pjlaintiff are barred, in whole or in part, by the statute of limitations as set forth in Connecticut General Statutes § 52-576.” Section 52-576 is a statute of limitations governing actions sounding in contract.

A trial before the court followed. By memorandum of decision, the court ruled in favor of the defendant on each count of the complaint. The court’s decision stated in part: “The plaintiff alleges that the activities of the defendant constitute a trespass to the plaintiffs property and that the trespass is a continuing one. As to the claim of trespass, the defendant pleads the statute of limitations. The statute of limitations for torts in Connecticut [is found in] General Statutes § 52-577, which provides [that] an action founded on a tort shall be brought within three years from the date of the act complained.” Applying this statute of limitations, which had not been pleaded by the defendant, the court held that the plaintiffs trespass claim was time barred. This appeal followed.

I

The plaintiff claims that the court improperly applied the statute of limitations found in § 52-577 to its claim for trespass because the defendant did not plead this statute specifically as a special defense. The defendant argues in opposition that its failure to cite a specific statute was mitigated by the fact that the plaintiff had notice of the nature of the defendant’s defense. We agree with the plaintiff.

The following standard of review and principles of law guide our resolution of the plaintiffs appeal. The interpretation of the requirements of the rules of practice presents a question of law, over which our review is plenary. Gilbert v. Beaver Dam Assn. of Stratford, Inc., 85 Conn. App. 663, 671, 858 A.2d 860 (2004), cert. denied, 272 Conn. 912, 866 A.2d 1283 (2005).

Practice Book § 10-3 (a) provides that “[w]hen any claim made in a complaint, cross complaint, special defense, or other pleading is grounded on a statute, the statute shall be specifically identified by its number.” Because the rule embodied in this section is directory rather than mandatory; see, e.g., Steele v. Stonington, 225 Conn. 217, 221 n.7, 622 A.2d 551 (1993); Fleet National Bank v. Lahm, 86 Conn. App. 403, 405 n.3, 861 A.2d 545 (2004), cert. denied, 273 Conn. 904, 868 A.2d 744 (2005); this court has emphasized that notice to the other party is the critical consideration in determining the sufficiency of a party’s pleading. Michalski v. Hinz, 100 Conn. App. 389, 394, 918 A.2d 964 (2007). “As long as the defendant is sufficiently apprised of the nature of the action . . . the failure to comply with the directive of Practice Book § 10-3 (a) will not bar recovery.” (Citation omitted; internal quotation marks omitted.) Spears v. Garcia, 66 Conn. App. 669, 676, 785 A.2d 1181 (2001), aff'd, 263 Conn. 22, 818 A.2d 37 (2003).

An additional consideration informs the analysis when the pleading in question is a special defense raising a statute of limitations. In instances in which a limitations period is contained within the statute that establishes the underlying remedy, such a limitations period is jurisdictional and cannot be waived. Travelers Indemnity Co. v. Rubin, 209 Conn. 437, 446, 551 A.2d 1220 (1988). However, when the right of action exists independently of the statute in which the limitations period is found, the statutory bar is considered personal and procedural and is deemed waived if not specially pleaded. Orticelli v. Powers, 197 Conn. 9, 15, 495 A.2d 1023 (1985). Our Supreme Court has determined that the limitations period found in § 52-577 is procedural rather than jurisdictional and, thus, may be waived by the party entitled to the defense. Id., 16.

In Avon Meadow Condominium Assn., Inc. v. Bank of Boston Connecticut, 50 Conn. App. 688, 691, 719 A.2d 66, cert. denied, 247 Conn. 946, 723 A.2d 320 (1998), the plaintiffs brought a three count complaint alleging breach of contract, misrepresentation and a violation of the Connecticut Unfair Trade Practices Act, General Statutes § 42-110a et seq. The defendant pleaded special defenses, including the statute of limitations. Avon Meadow Condominium Assn., Inc. v. Bank of Boston Connecticut, supra, 691. The trial court granted the defendant’s motion for summary judgment, holding that the limitations period for actions sounding in tort found in § 52-577 barred the plaintiffs’ misrepresentation claim. Id., 692.

On appeal, the plaintiffs in Avon Meadow Condominium Assn., Inc., argued that the defendant’s failure to plead specifically as a special defense the statute of limitations found in § 52-577 precluded the trial court from applying that section to bar their misrepresentation claim. Id., 696. The defendant contended that, although it explicitly referenced only § 52-581, the wording of the special defense nevertheless was sufficient to raise the defense to the misrepresentation claim. Id., 697. This court reversed the judgment of the trial court, concluding that “because the defendant cited § 52-581, which pertains to contracts exclusively, it did not plead § 52-577. Moreover, there [was] no reference made to § 52-577, which applies to actions sounding in tort.” Id., 697-98. Because the defendant had not pleaded the statute of limitations section specifically, we concluded that it had waived its right to have that defense considered by the trial court. Id., 698.

We recently addressed the issue of whether a trial court properly rejected a party’s statute of limitations defense on the basis of the party’s failure to plead the statute providing for that defense specifically. In Ramondetta v. Amenta, 97 Conn. App. 151, 161, 903 A.2d 232 (2006), the plaintiffs attempted to raise the special defense of the statute of limitations to the defendant’s unjust enrichment counterclaim, which was based on an underlying oral contract. The plaintiffs pleaded that the defendant’s “claims are barred by the applicable [s]tatute of [1] imitations.” (Internal quotation marks omitted.) Id. The plaintiffs’ only subsequent reference to the special defense came in their posttrial memorandum of law, which stated: “Clearly, the statute of limitations for an oral agreement is three (3) years, with a limitation for a written agreement being six (6) years.” (Internal quotation marks omitted.) Id., 163.

We held that the trial court properly considered the plaintiffs’ statute of limitations defense waived. “At no point from the filing of the defendant’s counterclaim to the rendering of judgment by the court did the plaintiffs identify the applicable statute on which they relied. That infirmity is fatal to the plaintiffs’ claim. The underlying purpose of affirmative pleading is to apprise the court and the opposing party of the issue to be tried. . . . Consistent with that purpose, a party raising a statute of limitations defense must identify the statute that allegedly is applicable. In pleading such a defense, the bare assertion that ‘the applicable statute of limitations’ bars a particular action is inadequate to apprise the court or the opposing party sufficiently of the nature of the defense.” (Citation omitted.) Id., 163-64. We find the rationale of such a holding persuasive because if a particular statute of limitations is not pleaded, the plaintiff is not on notice to plead and prove matters in avoidance of the particular statute of limitations not pleaded. See Practice Book § 10-57. Where a particular statute of limitations like § 52-577 is not jurisdictional and has not been pleaded, a plaintiff is entitled to conclude that it was waived.

The defendant here argues that the court’s judgment on the plaintiffs trespass claim was proper despite the defendant’s failure to cite a specific statute of limitations because the plaintiff had sufficient notice of the nature of the asserted defenses. The defendant contends that “from the beginning of this case, it has been clear that the crux of the [defendant's defense was the consequence of the passage of time and delay as it relates to both the contract and tort claims.” Further, it maintains, the evidence and arguments presented by both parties made no distinction between the statute of limitations for the contract and tort claims.

In support of its argument, the defendant cites Caruso v. Bridgeport, 285 Conn. 618, 941 A.2d 266 (2008). There, the plaintiff brought a claim alleging that the registrar of voters had violated certain election statutes during the Democratic primary for the office of mayor of Bridgeport. Id., 620-21. The plaintiffs complaint cited General Statutes § 9-328, which governs challenges in general elections for municipal officers. Id., 627. The plaintiff later amended his complaint and correctly cited General Statutes § 9-329a, which provided the proper statutory basis for the action. Id.

The defendants moved to dismiss the complaint, claiming that the plaintiffs initial incorrect statutory citation deprived the trial court of subject matter jurisdiction. Id., 626. On cross appeal from the court’s denial of their motion, the defendants cited the affirmative pleading requirements of Practice Book § 10-3. Id., 627-28. In rejecting the defendant’s claim, our Supreme Court noted that “[a]s long as the defendant is sufficiently apprised of the nature of the action . . . the failure to comply with the directive of Practice Book § 10-3 (a) will not bar recovery.” (Internal quotation marks omitted.) Id., 628. The court determined that the fact that the defendants had pointed out the incorrect statutory citation in their motion to dismiss demonstrated that they were aware of the true basis of the plaintiffs action. Id., 628-29. The court concluded, therefore, that the plaintiffs failure to cite the correct statutory authority for his action was not a proper basis for dismissing the action. Id., 629.

We believe that the defendant’s reliance on Caruso is misplaced, as that case is distinguishable from the present appeal on two bases. First, the plaintiffs failure to cite the correct statute in Caruso did not implicate a waivable defense, as does the defendant’s failure to cite the correct statute of limitations here. Second, in Caruso, the defendants clearly had notice of the statutory basis for the plaintiffs action. In this case, the plaintiff made claims sounding in both breach of contract and tort. The record here does not support the defendant’s claim that from the beginning of the case, the plaintiff was aware that the defendant was asserting the defense of the statute of limitations as to the trespass claim, which sounded in tort.

Our thorough review of the record leads us to conclude that the present appeal is governed by our holdings in Avon Meadow Condominium Assn., Inc., and Ramondetta. As did the defendants in Avon Meadow Condominium Assn., Inc., and the plaintiffs in Ramondetta, the defendant here failed to plead specifically the applicable statute of limitations with regard to the plaintiffs trespass claim, instead pleading only the statute of limitations concerning contracts. The limitations period for tort actions found in § 52-577 is procedural rather than jurisdictional, thus making it subject to waiver. See Orticelli v. Powers, supra, 197 Conn. 16. The defendant’s failure to plead with specificity meant that it waived its defense of the statute of limitations as to the plaintiffs trespass claim. The court’s judgment on the second count of the complaint in favor of the defendants, therefore, was improper.

We conclude that because the defendant failed to plead specifically the special defense of statute of limitations to the plaintiffs claim for trespass, the trial court improperly applied the special defense to the second count of the plaintiffs complaint. We therefore reverse the judgment of the court as to this count.

II

The plaintiff argues that this court should remand the case to the trial court solely for a hearing in damages on the trespass count. It contends that the trial court found that the defendant’s occupation of the plaintiffs property was permanent in nature but failed to reach the issue of damages because it decided that the trespass claim was barred by § 52-577. We disagree.

In its memorandum of decision, the court noted that the plaintiffs second count raised the issue of whether the acts alleged constituted a continuing or permanent trespass. After citing case law defining the two types of trespass, the court stated: “The court notes that here the cause of action occurred in 1981 and that the activities complained of were known to the plaintiff on or about 1981. The court finds that [the] trespass alleged here, is a permanent one, in that the activities of the defendant had been fully accomplished on or about 1981 and there was no further conduct by the defendant as to the trespass; therefore, the statute of limitations began to run on or about 1981. Accordingly the plaintiff’s claim of trespass is barred by the statute of limitations.”

It is unclear from this language in the memorandum of decision referring to the “trespass alleged” whether the court was referring merely to the complaint allegations or, alternatively, was explicitly finding that the defendant’s actions constituted a trespass. We therefore deny the plaintiffs prayer to remand the case solely for a hearing in damages.

The judgment is reversed in part and the case is remanded for further proceedings on the plaintiffs trespass claim.

In this opinion the other judges concurred.

       The defendant’s statute of limitations special defense in Avon Meadow Condominium, Assn., Inc., stated as follows: “1. Paragraph 1 of the First Special Defense (pertaining to an alleged oral contract) is hereby made Paragraph 1 of this Fourth Special Defense as if more fully stated herein.
      “2. Pursuant to Conn. Gen. Si at. § 52-581, ‘No action founded upon any express contract or agreement which is not reduced to writing, or of which some note or memorandum is not made in writing and signed by the party to be charged therewith or his agent, shall be brought but within three years after the right of action accrues.’
      “3. Principals of the Plaintiff Avon Meadow Condominium Association have alleged that [the defendant] breached its obligation under the Alleged Oral Contract on or about June of 1990.
      “4. The above captioned action was not brought within three years after any alleged right of action under the Alleged Oral Contract accrued.
      “5. Plaintiffs’ claims are, therefore, barred by the applicable statute of limitations.” (Internal quotation marks omitted.) Id., 696 n.9.

       We note that in its posttrial brief, the plaintiff stated that the defendant had pleaded only the statute of limitations pertaining to contract actions and, citing Avon Meadow Condominium Assn., Inc., argued that such a pleading could not bar the plaintiffs trespass claim.

       Furthermore, a continuing trespass arguably might have taken the trespass out of the statutory bar of § 52-577, but there was no notice in the pleadings that a defense to that claim had been made on the basis of § 52-577, and the plaintiff was entitled, in the absence of the pleading of a special defense, to assume that the defendant had waived any such defense and, therefore, not offer evidence in avoidance of a special defense which had not been raised.


author: McLACHLAN, J.

text:
    DATA-FLOW TECHNOLOGIES, LLC v. HARTE NISSAN, INC.
    (AC 29260)
    Bishop, McLachlan and Borden, Js.

      Argued September 9
    officially released November 4, 2008

      Alexander J. Maresca, with whom, on the brief, was James M. Miele, for the appellant (defendant).
   Opinion

McLACHLAN, J.

The plaintiff, Data-Flow Technologies, LLC, initiated this action to recover payments for its maintenance of computer equipment owned by the defendant, Harte Nissan, Inc. The defendant appeals from the judgment of the trial court in favor of the plaintiff. The defendant claims that (1) the court improperly accepted conclusions of fact in the attorney fact finder’s report and (2) the fact finder improperly admitted and considered certain evidence. We affirm the judgment of the trial court.

The plaintiff serviced the defendant’s computer equipment from October, 2000, through December, 2003. After a dispute arose between the parties as to the amount owed the plaintiff for its services, the plaintiff filed a two count complaint alleging that the defendant had breached its contract by failing to pay the invoices for the period of June to December, 2003, and, in the alternative, that the defendant was unjustly enriched by the services performed by the plaintiff for the defendant during that period of time. The court referred the matter to a fact finder.

During hearings before the fact finder, the plaintiff introduced testimony regarding the value of the work that it continued to perform for the defendant between May and December, 2003. In addition, the plaintiff introduced, over objection, service repair forms, which detailed the number of hours of labor, the cost of replacement parts and the mileage for each service call. Joseph Bevivino, the plaintiffs managing and only member, referred to his “hourly rate” of $100 several times during his testimony as the basis for the bills he sent the defendant. Bevivino also testified that he kept the service repair forms to determine the actual value of his services and to keep track of what it cost to repair the defendant’s equipment so that he could evaluate whether it would be more cost efficient to repair or replace equipment under the maintenance contract. The service repair forms, inclusive of minimum charges and mileage provided for in the contract, totaled $8999.49. The plaintiff introduced testimony that it had not received payment from the defendant for its services that should have been covered by the contract maintenance fee. The plaintiff also provided paid invoices that showed labor charges of $100 per hour.

From the evidence adduced at the hearings, the following facts were found by the fact finder and subsequently accepted by the court. On October 30, 2000, the plaintiff entered into a contract with the defendant regarding the maintenance of the defendant’s computer equipment. The contract provided that the plaintiff would repair the listed equipment for a flat monthly fee and that any repairs on any equipment not listed would be billed at $100 per hour of labor, with a minimum of two hours, plus parts and mileage.

Thereafter, the defendant contracted with Reynolds & Reynolds Company to replace and maintain its equipment; the contract between the plaintiff and the defendant was terminated when nearly all of the listed equipment was replaced by Reynolds & Reynolds Company in May, 2003. The plaintiff continued to perform services for the defendant from June through December, 2003. On December 4,2003, the defendant informed the plaintiff that its services were no longer desired under the contract. The plaintiff initially sought $5728.43 as payment under its contract for services performed between June and December, 2003. The fact finder concluded that the defendant owed the plaintiff $7644.53 for services provided, calculated at an hourly rate plus replacement parts.

I

First, the defendant claims that the court improperly accepted conclusions of fact in the fact finder’s report that were not based on the evidence adduced at the hearing. Specifically, the defendant claims that the court should not have accepted the fact finder’s April 26, 2006 recommendation that judgment enter in favor of the plaintiff in the amount of $7644.53 because the plaintiff did not introduce any evidence of the benefit allegedly received by the defendant, the fact finder made no finding as to any of the elements of an unjust enrichment claim and the report contained contradictory factual findings. We disagree.

Additional facts and procedural history are relevant to the resolution of the defendant’s claims. On June 6, 2005, the parties appeared for the first hearing in this matter. The fact finder filed a report on June 8, 2005, which included the following findings: (1) the parties entered into a contract providing that the plaintiff would repair certain equipment for a flat fee; (2) any repair of an item not covered by the agreement would be billed at the rate of $100 per hour, with a minimum of two hours, plus the cost of parts and mileage; (3) the replacement of the defendant’s equipment eliminated the subject matter of the contract, terminating it as of May, 2003; (4) the plaintiff was seeking $8999.49, $5728.43 for services performed under the contract and the balance for work performed on equipment that was not listed in the contract; and (5) the defendant’s assistant comptroller, Dan Mulryan, testified that the plaintiff did not perform the work claimed, but the defendant admitted that the plaintiff performed services from June through November, 2003, and, in a letter dated April 14, 2004, the defendant’s office manager stated that the defendant used the plaintiffs services and requested a bill for the work performed. The fact finder concluded: “I would recommend judgment in favor of the plaintiff for the amount of the difference between the amount claimed and the amount attributable to the terminated contract, which is the amount of $3271.06. I do not award attorney fees, as they were provided under the contract, which was terminated in May, 2003.”

The plaintiff objected to the acceptance of the findings of facts, as permitted by Practice Book § 23-57, arguing that (1) the conclusions of fact were not properly reached on the basis of the subordinate facts found, (2) the fact finder improperly ruled on evidence and (3) the fact finder improperly applied the relevant law to the facts. The court considered the plaintiffs objections and, pursuant to Practice Book § 23-58 (a) (5), remanded the matter to the fact finder for a rehearing and a revised report resolving the factual issues. The court stated that it was “unable to determine whether the fact finder’s conclusions were clearly erroneous because the report does not contain sufficient information to explain fully the fact finder’s resolution of certain factual issues. More specifically, the court cannot determine how the fact finder resolved the disputed issue as to when the defendant terminated the contract, nor is it stated whether he found that, contrary to the evidence presented by the plaintiff, that the plaintiff did not perform work on scheduled equipment during the period from June to December 4, 2003.”

The fact finder conducted another hearing on April 24, 2006, and filed a report on April 26, 2006, which included the following additional findings: (1) the Reynolds & Reynolds Company contract, which terminated the parties’ contract, replaced all of the scheduled equipment except some printers; (2) the defendant admitted that work was performed by the plaintiff on the defendant’s computer equipment during the period of June, through December 4, 2003, as shown on the paid invoices and payment records in exhibits three and B; (3) exhibit four is a letter from the defendant to the plaintiffs counsel, dated April 14, 2004, in which the defendant admitted that it used the plaintiffs services on an as needed basis without a revised contract and expressed a desire to be billed for services provided; (4) also in exhibit four are the plaintiffs summary of its actual charges for services provided and service repair forms documenting these charges; and (5) after eliminating the plaintiffs minimum two hour charges and mileage charges, as there was no agreement in effect to pay them, the debt due to the plaintiff from the defendant was $7644.53. The fact finder recommended that “[j Judgment enter in favor of the plaintiff in the amount of $7644.53 without the award of attorney fees, as the contract which provided for attorney fees was terminated by the replacement of the equipment in May, 2003.”

The defendant filed a timely objection to the acceptance of the fact finder’s amended report. The defendant, as permitted by Practice Book § 23-57, objected on the grounds that (1) the fact finder failed to address the issues for which the matter was remanded, (2) the conclusions of fact stated in the fact finder’s report were not properly reached on the basis of the subordinate facts found and (3) the fact finder improperly ruled on its evidentiary objections. The court “considered the matters on the papers” and held that “JtJhe fact finder’s supplemental report does adequately address the issues which the court asked him to consider, and the court finds that there is a factual basis for his findings and conclusions.” The court overruled the defendant’s objection and rendered judgment in accordance with the fact finder’s report, as amended April 26, 2006.

We must consider the defendant’s claims according to the applicable standard of review. “Attorney fact finders are empowered to hear and decide issues of fact on contract actions pending in the Superior Court .... On appeal, [ojur function ... is not to examine the record to see if the trier of fact could have reached a contrary conclusion. . . . Rather, it is the function of this court to determine whether the decision of the trial court is clearly erroneous. . . . This involves a two part function: where the legal conclusions of the court are challenged, we must determine whether they are legally and logically correct and whether they find support in the facts set out in the memorandum of decision; where the factual basis of the court’s decision is challenged we must determine whether the facts set out in the memorandum of decision are supported by the evidence or whether, in light of the evidence and the pleadings in the whole record, those facts are clearly erroneous.” (Internal quotation marks omitted.) Mastroianni v. Fairfield County Paving, LLC, 106 Conn. App. 330, 335, 942 A.2d 418 (2008).

It has long been established under Connecticut law that “ [plaintiffs seeking recovery for unjust enrichment must prove (1) that the defendants were benefited, (2) that the defendants unjustly did not pay the plaintiffs for the benefits, and (3) that the failure of payment was to the plaintiffs’ detriment. . . . Furthermore, the determinations of whether a particular failure to pay was unjust and whether the defendant was benefited are essentially factual findings for the trial court that are subject only to a limited scope of review on appeal. . . . Those findings must stand, therefore, unless they are clearly erroneous or involve an abuse of discretion. . . . This limited scope of review is consistent with the general proposition that equitable determinations that depend on the balancing of many factors are committed to the sound discretion of the trial court.” (Citations omitted; internal quotation marks omitted.) Hartford Whalers Hockey Club v. Uniroyal Goodrich Tire Co., 231 Conn. 276, 283, 649 A.2d 518 (1994).

The fact finder’s “determination of whether unjust enrichment is available as a means of recovery requires a factual examination, and the trial court’s determination of the exact amount of recovery under the doctrine, namely, the value of benefit derived from the plaintiffs actions, is a question of fact.” David M. Somers & Associates, P.C. v. Busch, 283 Conn. 396, 409, 927 A.2d 832 (2007). “The damages should equal the gain received by the defendant. . . . The contract price is evidence of the benefit to the defendant . . . but is not conclusive. ... In an unjust enrichment case, damages are ordinarily not the loss to the plaintiff, but the benefit to the defendant, for which the fact finder may rely on the plaintiffs contract price when the benefit is too difficult to determine.” (Citations omitted.) United Coastal Industries, Inc. v. Clearheart Construction Co., 71 Conn. App. 506, 514-15, 802 A.2d 901 (2002).

When a matter is referred to a fact finder, Practice Book § 23-56 (a) mandates that findings of fact be set forth in writing and in accordance with Practice Book § 19-8. The fact finder’s report “shall state, in separate and consecutively numbered paragraphs, the facts found and the conclusions drawn therefrom. . . .” Practice Book § 19-8 (a). “While the reports of [attorney trial referees] in such cases are essentially of an advisory nature, it has not been the practice to disturb their findings when they are properly based upon evidence, in the absence of errors of law, and the parties have no right to demand that the court shall redetermine the fact thus found. ... A reviewing authority may not substitute its findings for those of the trier of the facts. This principle applies no matter whether the reviewing authority is the Supreme Court . . . the Appellate Court ... or the Superior Court reviewing the findings of . . . attorney trial referees. . . . This court has articulated that attorney trial referees and factfinders share the same function . . . whose determination of the facts is reviewable in accordance with well established procedures prior to the rendition of judgment by the court. . . . Although it is true that when the trial court reviews the attorney trial referee’s report the trial court may not retry the case and pass on the credibility of the witnesses, the trial court must review the referee’s entire report to determine whether the recommendations contained in it are supported by findings of fact in the report. It is also true that the trial court cannot accept an attorney trial referee’s report containing legal conclusions for which there are no subordinate facts.” (Citations omitted; internal quotation marks omitted.) Killion v. Davis, 257 Conn. 98, 102, 776 A.2d 456 (2001); see also Wilcox Trucking, Inc. v. Mansour Builders, Inc., 20 Conn. App. 420, 423-24, 567 A.2d 1250 (1989), cert. denied, 214 Conn. 804, 573 A.2d 318 (1990).

First, the defendant claims that the plaintiff did not offer any evidence of the benefit allegedly received by the defendant. The defendant acknowledges that the plaintiff submitted service repair forms, over the defendant’s objection, on which it calculated what it would be owed if the work were billed under the contract terms but argues that because the plaintiff could recover only under the theory of unjust enrichment, the plaintiff should have presented evidence of the value of the benefit received by the defendant.

The fact finder had sufficient evidence before it that supported a judgment for the plaintiff on the ground of unjust enrichment. The fact finder heard evidence that the plaintiff completed repairs for the defendant on numerous occasions for which it was not paid, and the defendant acknowledged that it owed the plaintiff money. The fact finder also had evidence regarding the plaintiffs hourly rate, the prior agreement between the parties and the defendant’s prior payments to the plaintiff. Thus, the plaintiff provided sufficient evidence to support a judgment of $7644.53.

Although the defendant’s second argument, that the fact finder did not make sufficient findings, has some merit, it is not persuasive. We do not require that a detailed report be made every time a trial court makes factual findings in support of a legal conclusion. See Cookson v. Cookson, 201 Conn. 229, 243-44, 514 A.2d 323 (1986). In cases involving fact finders, however, the report submitted to the trial court must include sufficient facts to support a recommendation. The court cannot appropriately render judgment in accordance with facts found but not communicated. Killion v. Davis, supra, 257 Conn. 102. Although the referral of cases to fact finders is intended to create more streamlined access to justice, fact finders must take care with their responsibility of finding facts to which the courts may apply the law.

In this case, the fact finder supplied the bare minimum necessary for the court to render judgment appropriately. We can glean from the April 26, 2006 report that the fact finder found that the plaintiff provided the defendant with services as detailed by the service repair forms, that the defendant did not pay the plaintiff for its services and that the value of the services was $7644.53. As such, the court did not improperly render judgment in accordance with the fact finder’s recommendations.

The defendant’s third claim is that the court improperly accepted the fact finder’s report because it contained contradictory factual findings. Specifically, the defendant contends that the fact finder’s award of $7644.53 is mathematically impossible considering its prior findings that the defendant’s equipment was replaced and the plaintiff was not entitled to recover $5728.43 of its $8999.49 claim. We disagree.

We review the defendant’s claim to determine whether the decision of the court was clearly erroneous. “A finding of fact is clearly erroneous when there is no evidence in the record to support it ... or when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.” (Internal quotation marks omitted.) Hunting v. Chambers, 99 Conn. App. 664, 670, 916 A.2d 56, cert. denied, 283 Conn. 901, 926 A.2d 669 (2007).

It is important to note that the court addressed the fact finder’s second report as “supplemental” or “amended.” The second report was completed after the fact finder conducted a new hearing and reconsidered the evidence and must, therefore, supersede the first as to any inconsistencies. The fact finder’s second report clearly establishes that although most of the equipment mentioned in the parties’ contract was replaced in May, 2003, some printers remained. Although the fact finder initially determined its award by subtracting the amount of the plaintiffs monthly fee from its total claim, after the second hearing, the fact finder calculated the amount owed the plaintiff by reviewing its service repair forms to determine the actual services provided to the defendant. Although the two reports are inconsistent, it is not impermissible, or even surprising, that different facts were found after the parties presented additional evidence and argument. There is sufficient evidence in the record to support the fact finder’s award; it is not clearly erroneous simply because it differs from the findings made after the initial hearing.

n

Finally, the defendant claims that the fact finder improperly admitted evidence. Specifically, the defendant claims that the fact finder improperly admitted and considered the plaintiffs service repair forms and Bevivino’s unsolicited testimony.

General Statutes § 52-549r and Practice Book § 23-55 provide that the rules of evidence in civil cases apply to matters submitted to fact-finding. In addition, General Statutes § 52-549p (c) empowers fact finders to “determine the admissibility of evidence and the form in which it is to be offered.” The fact finder’s rulings on evidence may be reviewed by the court on a party’s objection to the acceptance of the finding of facts. Practice Book § 23-57.

A

The defendant asserts that the service repair forms were improperly admitted to prove a claim that is a material variance from those in the plaintiffs complaint. We disagree.

The plaintiffs complaint alleged in paragraph five of the breach of contract count that “[t]here remains an outstanding balance owed to the Plaintiff in the amount of . . . $8,999.49 . . . which represents outstanding invoices for the period of June, 2003 to December, 2003.” That paragraph was incorporated by reference into the unjust enrichment count. The plaintiff also alleged in the unjust enrichment count that “ [t]he Defendant has been unjustly enriched by the services performed by the Plaintiff on the Defendant’s behalf. . . . The Fair Market Value of the services performed by [the] Plaintiff for the benefit of the Defendant is . . . $8,999.49

During the hearing before the fact finder on June 6, 2005, Bevivino testified that he provided, at the defendant’s request, a copy of his individual service repair forms that state his mileage, arrival and completion times, the work completed and the hardware replaced on each service call. Bevivino testified that he usually sent an invoice because the defendant was covered by a maintenance agreement, but he “more or less kept those records for [himself] so [he] could keep track of how much it was actually costing [him] to do business.” Bevivino also testified that he presented the defendant with his service repair forms after they were requested in a letter. The defendant objected to the admission of the forms when they were offered to the fact finder, stating that there was no allegation in the complaint that “there were services provided outside the invoices submitted that were not paid for.” The plaintiff argued that the service repair forms were detailed bills of the services the plaintiff actually provided and that they were submitted, along with a summary, to the defendant at its request. The defendant maintained that the complaint referred only to the plaintiffs monthly invoices and did not extend to “his alleged records of work he performed . . . .” The fact finder overruled the objection and accepted the records. Bevivino testified that he had provided all of the services detailed in the service repair forms.

“The purpose of the complaint is to limit the issues to be decided at the trial of a case and is calculated to prevent surprise. . . . The complaint is required only to fairly put the defendant on notice of the claims against him. . . . [T]he interpretation of pleadings is always a question of law for the court .... The modem trend, which is followed in Connecticut, is to construe pleadings broadly and realistically, rather than narrowly and technically. . . . Although essential allegations may not be supplied by conjecture or remote implication . . . the complaint must be read in its entirety in such a way as to give effect to the pleading with reference to the general theory upon which it proceeded, and do substantial justice between the parties. ... As long as the pleadings provide sufficient notice of the facts claimed and the issues to be tried and do not surprise or prejudice the opposing party, we will not conclude that the complaint is insufficient to allow recovery.” (Citations omitted; internal quotation marks omitted.) Lyons v. Nichols, 63 Conn. App. 761, 764-65, 778 A.2d 246, cert. denied, 258 Conn. 906, 782 A.2d 1244 (2001).

“A variance is a departure of the proof from the facts as alleged. ... If a variance is immaterial, it shall be wholly disregarded. ... An immaterial variance is one in which the difference between the allegations and the proof is so slight and unimportant that the adverse party is not misled as to the charge he is required to meet or prejudiced in maintaining his defense on the merits of the case. . . . Therefore, an otherwise valid judgment will not be invalidated if a variance does not change the theory of the cause of action and if the party complaining of the variance was, at all times, in aposition to know the true state of the facts.” (Citations omitted; internal quotation marks omitted.) Id., 765-66.

The defendant claims that the fact finder improperly admitted the service repair forms because they were offered to prove a claim that was a material variation from those in the plaintiffs complaint. Construing the complaint “broadly and realistically,” we conclude that it put the defendant on notice that the plaintiff was seeking payment for services performed by the plaintiff for the benefit of the defendant between June and December, 2003. Although the complaint states that the amount due “represents outstanding invoices for the period of June, 2003 to December, 2003,” there is no basis for the defendant’s position that the use of service repair forms to prove that the work was completed is a departure from the complaint’s allegation that invoices were outstanding. Furthermore, the service repair forms were produced at the defendant’s request two months prior to the hearing. We cannot say that the complaint failed to put the defendant on notice of the claims against it.

B

The defendant also claims that the fact finder improperly allowed and considered Bevivino’s unsolicited testimony. We decline to review this claim because the defendant failed to raise it in its objection to the acceptance of the finding of facts.

The defendant claims that Bevivino’s unsolicited testimony was admitted improperly by the fact finder. The defendant claims that had the fact finder allowed the defendant to object properly, it would have objected that the evidence was irrelevant in accordance with Connecticut Code of Evidence §§ 4-1 and 4-2 and, moreover, that it was unduly prejudicial, constituted delay, a waste of time and needless presentation of cumulative evidence and should have been excluded under § 4-3.

In its objection to the acceptance of the finding of facts, however, the defendant failed to object to the fact finder’s consideration of Bevivino’s statements. Thus, the defendant did not provide the court with an opportunity to review its objection. The defendant’s lack of compliance with Practice Book § 23-57 precludes our review of its objection. See Humiston v. Intervest Management Co., 17 Conn. App. 828, 829, 554 A.2d 296 (1989).

The judgment is affirmed.

In this opinion the other judges concurred.

       The plaintiff failed to file a proper appearance; we considered this appeal on the record and the defendant’s brief and oral argument only.

       General Statutes § 52-549n and Practice Book § 23-53 permit the court to refer to an attorney fact finder matters based upon express or implied promises to pay a definite sum wherein the amount in controversy is less than $50,000. The fact finder must produce, in accordance with Practice Book § 19-8, a report stating “the facts found and the conclusions drawn therefrom. . . .” See Practice Book § 23-56.
      Practice Book § 23-57 (a) provides that “[a] party may file objections to the acceptance of a finding of facts on the ground that conclusions of fact stated in it were not properly reached on the basis of the subordinate facts found, or that the fact finder erred in rulings on evidence or in other rulings, or that there are other reasons why the finding of facts should not be accepted.”

       The defendant refers to these forms in its brief as “work tickets,” the forms themselves carry the title “service repair form” and “work order,” and the fact finder’s reports refer to them alternately as “work tickets” and “service repair forms.” Attached to the forms is a summary sheet compiling the billing information from the individual service repair forms. We will refer to the forms collectively as “service repair forms.”

       The plaintiff also submitted invoices that showed discounts of $25 and $50 to its hourly rate of $100.

       The court addressed the second fact finder’s report as “supplemental” and as “amended.” The second report was completed after rehearing and reconsideration and must, therefore, supersede the first as to any discrepancies.

       The plaintiff submitted a detailed list of services provided with a total amount of $8999.49. The'fact finder subtracted mileage and minimum two hour charges because those charges were based on the terms of the contract and could not be included in the unjust enrichment recovery.

       We note that the majority of the service repair forms address the plaintiffs repair of various printers during the time in question.

       We caution fact finders to avoid the confusion that comes from drawing conclusions without expressly finding each subordinate fact. Although the fact finder in this case did not exactly follow the direction of Practice Booh § 19-8 (a), which we do not excuse, we do not find that the court’s acceptance of the report was clearly erroneous. The fact finder could not have determined that there was a debt of $7644.53 due to the plaintiff without first crediting the plaintiffs testimony and finding that the plaintiffs rate was reasonable.

       The plaintiff also submitted the letter from the defendant to the plaintiffs counsel requesting a “revised fair billing for services provided.”

       The fact finder conducted a second hearing on April 24, 2006, and following the arguments, the plaintiff stated that Bevivino would like to address the fact finder. The defendant objected and began to state the reason for its objection; however, the fact finder interrupted and overruled the objection. Bevivino addressed the fact finder, stating: “Your Honor, the reason I’m pursuing this as vehemently as I am is because I’m telling the truth. The work I performed did happen. I’m having a hard time understanding that [the defendant’s comptroller] would deny being aware of the bills that I sent to her on a monthly basis, and I also had spoken to [the defendant’s assistant comptroller] about nonpayment several times. Check’s in the mail. The other thing that just is very, very hard for me to understand is that I went out of my way for them on any given day at any request, and the fact of the matter is, is that no, [the defendant’s comptroller], and no, [the defendant’s assistant comptroller] were not privy to every phone call that was made to me from every different site. So, when someone from West Haven or somebody from a different satellite store would call me, I would go out there, and I would take care of the problem. That’s what they hired me for. In the same respect, [the defendant’s comptroller] is the comptroller of the Newburgh Nissan site, and the fact of the matter is, Your Honor, is that Newburgh Nissan continued to pay me because at that time right up until December 4, when I spoke to [the defendant’s comptroller] about not being paid, no one in her dealerships knew as well as myself didn’t know that my services and my maintenance contract was expired. Thank you for hearing me.”

       The defendant does not request any extraordinary means of review of its unpreserved evidentiary claim.

       The defendant did broadly object to the court that the fact finder "erred in rulings on evidence.” The defendant, however, specifically mentioned only the fact finder’s ruling on the service repair forms.