author: LANDAU, J.

text:
    CITY OF NEW HAVEN v. LOCAL 884, COUNCIL 4, AFSCME, AFL-CIO
    (AC 18889)
    Landau, Spear and Mihalakos, Js.

      Argued January 10
    officially released July 18, 2000

      J. William Gagne, Jr., with whom, on the brief, was Jason W. Cohen, for the appellant (defendant).

      Audrey C. Kramer, assistant corporation counsel, for the appellee (plaintiff).
   Opinion

LANDAU, J.

The defendant, Local 884, Council 4, AFSCME, AFL-CIO (union), appeals from the judgment rendered by the trial court granting an application to vacate an arbitral award filed by the plaintiff, the city of New Haven (city). On appeal, the union has raised numerous issues with respect to the court’s granting of the application to vacate on the basis of public policy. The union also claims that there was insufficient evidence to grant the application. We affirm the judgment of the trial court.

This case has a protracted and complicated history in our trial and appellate courts, which is found in the courts’ several opinions. “On April 18, 1986, the [city] terminated the grievant, Benedetto Minichino, from his position as a sanitarian. The matter was brought to the [state board of mediation and arbitration (board)], and the [city] appealed to the trial court from an award in favor of the grievant. The matter was returned to the board, where each party sought and received at least one continuance. It was then assigned for what was to be a final hearing on August 14, 1991.

“Clifton E. Graves, Jr., the attorney handling the matter for the [city], became ill the night before the scheduled hearing. Graves called the board offices the next morning and spoke first to the attorney for the [union]. She advised him that the granting of a continuance was the board’s decision. The board chairperson then told Graves that the hearing would be held in his absence and that he could send someone else.

“A proposed agreement was read to Graves after he spoke with counsel for the [union], and Graves agreed to a resolution.” New Haven v. Local 884, Council 4, AFSCME, AFL-CIO, 38 Conn. App. 709, 710-11, 662 A.2d 818 (1995), rev’d, 237 Conn. 378, 677 A.2d 1350 (1996). Subsequently, the city filed an application to vacate the arbitration award in the Superior Court, which the trial court denied. “The court concluded that although a continuance should have been granted, when Graves proceeded to negotiations, ‘he waived any defect in the proceedings up to that point.’ ” Id., 711.

On appeal to this court, we held that once it determined that misconduct had occurred, “the trial court was required to vacate the award pursuant to [General Statutes] § 52-418 (a) (3). The court failed to vacate the award, finding instead that ‘although the continuance should have been granted, once Graves went on to negotiate, he waived any defect in the proceedings up to that point.’ This issue need not have been reached by the court. Once a finding of misconduct was made, the court was required to vacate the award.” Id., 714.

The union appealed to our Supreme Court, which held that “a party may waive such [§ 52-418 (a) (3)] misconduct, and that in this case the trial court properly found that the [city] had waived the misconduct on the part of the board.” New Haven v. Local 884, Council 4, AFSCME, AFL-CIO, 237 Conn. 378, 380, 677 A.2d 1350 (1996). The case was remanded to this court.

On remand to this court, we addressed the city’s remaining claim that “the trial court improperly refused to vacate the arbitration award on the ground that [Graves] lacked authority to bind it to the proposed resolution.” New Haven v. Local 884, Council 4, AFSCME, AFL-CIO, 44 Conn. App. 764, 767, 694 A.2d 417, cert. denied, 241 Conn. 915, 696 A.2d 984 (1997). After discussing the law of agency with respect to municipalities, we concluded that “the trial court improperly determined that the [city] waived any claim that its agent lacked authority to bind it to the arbitration award. There was no indication from the record that the [city] empowered Graves with the express authority to waive any of the its claims regarding the extent of his authority.” Id., 769. There also was “no evidence that the [city], through its own actions, ever caused or allowed the [union], or the trial court for that matter, to believe that Graves possessed the authority to waive its claim, or knowingly permitted him to waive its claim. Therefore, Graves did not possess the apparent authority to waive the [city’s] claim.” Id., 770. “[T]he [city] took no steps to accept the results of the proposed resolution. On the contrary, the [city’s] affirmative acts in pursuing litigation regarding the application to vacate the award and in refusing to comply with its terms demonstrate that it rejected the proposed settlement.” Id. We remanded the case for a new trial.

On remand, the parties agreed that the matter should be addressed in a two step process. First, as a matter of law, after briefing and argument, the court was to determine whether there was a legal basis to vacate the award; if so, the court would then hold an evidentiary hearing to determine whether there was a factual basis to vacate the award. In other words, the court had to determine first whether there was a legal basis to support the city’s assertion that Graves lacked authority to resolve the grievant’s claim, and, if so, the court was to hear evidence that Graves, in fact, did not have authority to resolve the claim.

Following a hearing on the legal question, however, the court issued a memorandum of decision vacating the award, concluding that the city’s charter provided a public policy basis to vacate the award, and that the procedural history of the case demonstrated that Graves did not have authority to resolve the grievant’s claim. The union appealed, claiming that the court improperly (1) permitted the city to raise a public policy violation on remand when the claim had not been alleged in the supplemental application to vacate, (2) granted the city’s application to vacate because (a) the award violated public policy pursuant to the city charter and (b) the court improperly relied on Norwalk v. Board of Labor Relations, 206 Conn. 449, 538 A.2d 694 (1988), (3) concluded that the charter provision requiring the board of finance of the city to consider all claims against the city and to approve such claims it deems valid applied to the present case and that it was not followed and (4) abused its discretion by deciding the case without holding an evidentiary hearing.

I

The union’s first claim is that the court improperly permitted the city on remand to raise a public policy violation as a basis on which to vacate the board’s award because the city had not alleged a public policy violation in its supplemental application to vacate. We do not agree.

The following procedural history is necessary for our resolution of this claim. The city’s supplemental application to vacate the arbitral award alleges that the award was coerced and unlawful, and that, pursuant to General Statutes § 52-418 (a) (3) and (4), “the arbitrator so imperfectly executed his powers in coercing [Graves] to enter into a settlement that any agreement or fruits of said agreement should be null and void.”

The union’s claim concerns the question of “whether it was within the court’s jurisdiction to base its decision on an issue not expressly raised in the pleadings”; Hartford v. Board of Mediation & Arbitration, 211 Conn. 7, 13, 557 A.2d 1236 (1989); and thus we must address the question of whether we may review the claim. Ordinarily, a judgment is restricted to the issues reasonably within the scope of the pleadings. Doublewal Corp. v. Toffolon, 195 Conn. 384, 390-91, 488 A.2d 444 (1985). The present case is factually on point with Hartford v. Board of Mediation & Arbitration, supra, 13-14, in which our Supreme Court held: “Although the city did not expressly claim in its application that the award should be vacated on the ground that it violated public policy, the city did allege that the award should be vacated because ‘[t]he arbitrators have exceeded their powers’ in violation of General Statutes § 52-418 (a) (4). We conclude that such an allegation is sufficient to include within it a claim relating to the invalidity of the arbitration award on public policy grounds. It was therefore within the trial court’s jurisdiction to render judgment in favor of the city on that basis. Accordingly, the present appeal is properly before us.” Id. We con-elude for the same reasons that the claim is properly before us, and that the court had jurisdiction to consider the city’s public policy argument and to render judgment for the city on that basis.

II

The union claims next that the court improperly (1) granted the city’s application to vacate because the award violated public policy pursuant to the city charter and (2) relied on Norwalk v. Board of Labor Relations, supra, 206 Conn. 449. The union is mistaken.

Because the city’s challenge to the arbitral award raises a legitimate and colorable claim of violation of public policy, we undertake de novo review of the award. Schoonmaker v. Cummings & Lockwood of Connecticut, P.C., 252 Conn. 416, 429, 747 A.2d 1017 (2000).

A

The courts of this state have recognized that a violation of public policy is a basis to vacate an arbitral award. Our Supreme Court recently restated the familiar principles reflecting its traditional deference to arbi-tral awards. See State v. AFSCME, Council 4, Local 387, AFL-CIO, 252 Conn. 467, 473, 747 A.2d 480 (2000). “We have consistently stated that arbitration is the favored means of settling differences and arbitration awards are generally upheld unless an award clearly falls within the proscriptions of § 52-418 of the General Statutes. Board of Education v. AFSCME, 195 Conn. 266, 270, 487 A.2d 553 (1985); Board of Education v. Bridgeport Education Assn., 173 Conn. 287, 290, 377 A.2d 323 (1977); International Unions. Fafnir Bearing Co., 151 Conn. 650, 653, 201 A.2d 656 (1964); Board of Education v. Local 818, 5 Conn. App. 636, 639, 502 A.2d 426 (1985). A challenge of the arbitrator’s authority is limited to a comparison of the awar d to the submission. Bic Pen Corporation v. Local No. 134, 183 Conn. 579, 584, 440 A.2d 774 (1981); see also American Universal Ins. Co. v. DelGreco, 205 Conn. 178, 186, 530 A.2d 171 (1987); Board of Education v. AFSCME, supra, 271; Caldor, Inc. v. Thornton, 191 Conn. 336, 340, 464 A.2d 785 (1983), aff'd, 472 U.S. 703, 105 S. Ct. 2914, 86 L. Ed. 2d 557 (1985); Bruno v. Department of Consumer Protection, 190 Conn. 14, 18, 458 A.2d 685 (1983); Bridgeport v. Bridgeport Police Local 1159, 183 Conn. 102, 106, 438 A.2d 1171 (1981); Board of Education v. Local 818, supra, [639]. Watertown Police Union Local 541 v. Watertown, 210 Conn. 333, 338, 555 A.2d 406 (1989).

“Because we favor arbitration as a means of settling private disputes, we undertake judicial review of arbitration awards in a manner designed to minimize interference with an efficient and economical system of alternative dispute resolution. . . . Stratford v. International Assn, of Firefighters, AFL-CIO, Local 998, 248 Conn. 108, 115, 728 A.2d 1063 (1999).

“In spite of the general rule that challenges to an arbitrator’s authority are limited to a comparison of the award to the submission, an additional challenge exists under § 52-418 (a) (4) when the award rendered is claimed to be in contravention of public policy. New Haven v. AFSCME, Council 15, Local 530, 208 Conn. 411, 416-17, 544 A.2d 186 (1988); Stratford v. Local 134, IFPTE, 201 Conn. 577, 590-91, 519 A.2d 1 (1986); Board of Trustees v. Federation of Technical College Teachers, 179 Conn. 184, 195, 425 A.2d 1247 (1979); Stamford v. Stamford Police Assn., 14 Conn. App. 257, 259, 540 A.2d 400 (1988); State v. Connecticut Council 4, CEU, AFSCME, 7 Conn. App. 286, 290, 508 A.2d 806 (1986) .... This challenge is premised on the fact that the parties cannot expect an arbitration award approving conduct which is illegal or contrary to public policy to receive judicial endorsement any more than parties can expect a court to enforce such a contract between them. . . . When a challenge to the arbitrator’s authority is made on public policy grounds, however, the court is not concerned with the correctness of the arbitrator’s decision but with the lawfulness of enforcing the award. . . . Accordingly, the public policy exception to arbitral authority should be narrowly construed and [a] court’s refusal to enforce an arbitrator’s interpretation of [collective bargaining agreements] is limited to situations where the contract as interpreted would violate some explicit public policy that is well defined and dominant, and is to be ascertained by reference to the laws and legal precedents and not from general considerations of supposed public interests. . . . The party challenging the award bears the burden of proving that illegality or conflict with public policy is clearly demonstrated. . . . Therefore, given the narrow scope of the public policy limitation on arbitral authority, the plaintiff can prevail in the present case only if it demonstrates that the board’s award clearly violates an established public policy mandate.” (Internal quotation marks omitted.) State v. AFSCME, Council 4, Local 387, AFL-CIO, supra, 252 Conn. 473-75.

The union’s position is that the city’s charter does not set forth an explicit, dominant and well defined public policy; see Watertown Police Union Local 541 v. Watertown, supra, 210 Conn. 339-40; the violation of which would require that the arbitral award be vacated. Our Supreme Court has held that an arbitral award that seeks to compel a city to comply with the terms of an agreement that clearly violates the city’s charter is against public policy, and that such an award is illegal and unenforceable. Waterbury Teachers Assn. v. Furlong, 162 Conn. 390, 424-25, 294 A.2d 546 (1972).

We therefore conclude, in the case before us, that the city’s charter is a legally sufficient source of a public policy on which the arbitral award could be vacated.

B

The union also argues that the court improperly relied on Norwalk v. Board of Labor Relations, supra, 206 Conn. 449. Specifically, the union claims that Norwalk is distinguishable because it concerned an administrative appeal of a state, board of labor relations decision, not an application to vacate. The union also points out that Norwalk concerned a party’s alleged failure to comply with a grievance settlement in violation of General Statutes § 7-470, whereas in the present case the city had to prove that the award was defective under General Statutes § 52-418 or that it violated a specific public policy. In Norwalk, our Supreme Court held that an unauthorized settlement agreement violated the public policy of the city charter. Norwalk v. Board of Labor Relations, supra, 453. The union makes much of the fact that Norwalk involved a different statute, but the distinction is one without a difference. The primary issue in both cases is whether a city charter can provide an explicit, dominant and well defined public policy sufficient to void an arbitration award. That question was decided in the affirmative almost thirty years ago in Waterbury Teachers Assn. v. Furlong, supra, 162 Conn. 424-25.

“ ‘Where the municipal charter prescribes a particular procedure by which a specific act is to be done or a power is to be performed, that procedure must be followed for the act to be lawful.’ Caldrello v. Planning Board, 193 Conn. 387, 391, 476 A.2d 1063 (1984). ‘[A]ll who contract with a municipal corporation are charged with notice of the extent of . . . the powers of municipal officers and agents with whom they contract, and hence it follows that if the . . . agent had in fact no power to bind the municipality, there is no liability on the express contract. . . .’ 10 E. McQuillin, [Municipal Corporations (3d Ed. Rev.)] § 29.02, pp. 199-200. ‘The city attorney cannot go beyond the powers conferred upon him. . . . Generally he has no authority to compromise claims, so that such an unauthorized compromise is not binding on the municipality.’ 3 E. McQuillin, supra, § 12.52a, p. 210. . . . ‘ “[E]very person who deals with [a municipal corporation] is bound to know the extent of its authority and the Kmitations of its powers. . . .” ’ John J. Brennan Construction Corporation, Inc. v. Shelton, 187 Conn. 695, 704, 448 A.2d 180 (1982).” Norwalk v. Board of Labor Relations, supra, 206 Conn. 452-53.

Ill

The union’s third claim is that the court improperly concluded that the charter provision that required the board of finance to consider all claims against the city and to approve such claims it deems valid applied to the present case and that it was not followed. We disagree.

The following additional facts are necessary for our review of this claim. During the hearing on whether there was a legal basis to vacate the award, the court asked the city’s counsel for the relevant provision of the charter that it relied on to support its claim that Graves lacked authority to bind the city. The city’s counsel confirmed that the city was relying on a specific charter provision to support its position, and read the following charter provision into the record. “ ‘Meetings; duty to pass on claims and accounts against the city. It shall be the duty of said board [of finance] to hold a regular weekly meeting on some day to be fixed by said board, and the mayor may call a special meeting at any time, on reasonable personal notice to the members thereof . ... It shall be the duty of said board to carefully examine and consider all claims and accounts against the city submitted for its approval and to approve by the signatures of a majority of its members such claims or accounts as it finds to be justly due. . . .’ Section 56 of the New Haven charter. . . . That provision was found under 8491.” (Emphasis added.) The city’s counsel provided the court with a copy of the charter.

In its memorandum of decision, the court determined that the grievance filed by the union constituted a claim against the city under the charter provision and concluded: “Thus, the purposes of the charter were thwarted—the city was deprived of the opportunity to approve a claim after determining its validity. The city’s taxpayers were deprived of the protection contained in their charter. Further, the court finds nothing in the charter which would give counsel the authority to bind the city without its approval. Since the procedure required by the charter was not followed, the award violated the public policy enunciated in the charter.”

First, we note that the union has provided no legal analysis of its claim that the court improperly concluded that the charter provided a sufficient public policy basis to warrant vacating the award. The union also has not provided any law to dispute the court’s conclusion that the union’s grievance is a claim pursuant to the charter. We do not review claims absent law and analysis. Middletown Commercial Associates Ltd. Partnership v. Middletown, 42 Conn. App. 426, 439 n.12, 680 A.2d 1350, cert. denied, 239 Conn. 939, 684 A.2d 711 (1996).

The union also seems to claim that there was no evidence before the court of a specific applicable charter provision that established a public policy definite enough to justify vacating the award. The union further claims that there was no evidence before the court by which it could determine that Graves did not have authority to bind the city to the board’s resolution. On the basis of our review of the record, we conclude that neither of these claims has merit.

With respect to the claim that there was no evidence of an applicable charter provision before the court, the record clearly demonstrates that the city’s counsel read the relevant charter provision into the record and then provided the court with a copy of the city charter. Although the union objected to the city’s giving the court a copy of the charter at the hearing; see footnote 3; the court did not rule on the objection during the hearing but gave the union an opportunity to respond. If the union’s claim is that the court should not have permitted the city’s counsel to read the provision into the record, we disagree.

“Our standard of review regarding challenges to a trial court’s evidentiary rulings is that these rulings will be overturned on appeal only where there was an abuse of discretion and a showing by the defendant of substantial prejudice or injustice. ... In reviewing claims that the trial court abused its discretion, great weight is given to the trial court’s decision and every reasonable presumption is given in favor of its correctness. . . . We will reverse the trial court’s ruling only if it could not reasonably conclude as it did. . . . State v. Rogers, 38 Conn. App. 777, 796, 664 A.2d 291, cert. denied, 235 Conn. 918, 665 A.2d 610 (1995), cert. denied, 516 U.S. 1084, 116 S. Ct. 799, 133 L. Ed. 2d 747 (1996).” (Internal quotation marks omitted.) State v. Hoffler, 55 Conn. App. 210, 215, 738 A.2d 1145, cert. denied, 251 Conn. 923, 742 A.2d 360 (1999).

The court could not decide in a vacuum whether a public policy existed to vacate the award. The charter was relevant to the issue of the existence of a public policy. “Evidence is relevant if it tends to establish a fact in issue or corroborates other direct evidence. . . . Rulings on such matters will be disturbed on appeal only upon a showing of a clear abuse of discretion.” (Internal quotation marks omitted.) Grayson v. Wofsey, Rosen, Kweskin & Kuriansky, 231 Conn. 168, 185, 646 A.2d 195 (1994). The court did not abuse its discretion.

With respect to the union’s claim that there was no evidence that Graves did not have authority to bind the city to the board’s resolution, the pleadings alone demonstrate that the provisions of the charter were not followed. As this court said in New Haven v. Local 884, Council 4, AFSCME, AFL-CIO, supra, 44 Conn. App. 770, “the [city] took no steps to accept the results of the proposed resolution. On the contrary, the [city’s] affirmative acts in pursuing litigation regarding the application to vacate the award and in refusing to comply with its terms demonstrate that it rejected the proposed settlement.”

IV

The union’s final claim is that the court abused its discretion by deciding the case without holding an evi-dentiary hearing to determine whether Graves lacked authority to bind the city to the settlement. We disagree because, as a matter of law, Graves lacked authority to bind the city.

“In determining whether there has been an abuse of discretion, every reasonable presumption should be given in favor of the correctness of the court’s ruling. . . . Reversal is required only where an abuse of discretion is manifest or where injustice appears to have been done. . . . Glass v. Peter Mitchell Construction Leasing & Development Corp., [50 Conn. App. 539, 543, 718 A.2d 79, cert. granted, 247 Conn. 938, 723 A.2d 317 (1998) (appeal withdrawn July 6, 1999)]. Discretion means a legal discretion, to be exercised in conformity with the spirit of the law and in a manner to subserve and not to impede or defeat the ends of substantial justice. ... It goes without saying that the term abuse of discretion does not imply a bad motive or wrong purpose but merely means that the ruling appears to have been made on untenable grounds. . . . Turk v. Silberstein, 48 Conn. App. 223, 225-26, 709 A.2d 578 (1998).” (Internal quotation marks omitted.) Rivera v. St. Francis Hospital & Medical Center, 55 Conn. App. 460, 463-64, 738 A.2d 1151 (1999).

As we discussed in part III of this opinion, the city’s charter provides that the board of finance must approve all claims against the city. All persons who contract with a municipal corporation are charged with notice of the extent of the powers of the municipal officers and agents with whom they contract, and the limitations of those powers. See Norwalk v. Board of Labor Relations, supra, 206 Conn. 452-53. The court properly determined, as a matter of law, that Graves lacked authority to bind the city and, therefore, an evidentiary hearing was not necessary.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 52-418 (a) provides in relevant part: “Upon the application of any party to an arbitration, the superior court for the judicial district in which one of the parties resides or . . . any judge thereof, shall make an order vacating the award if it finds any of the following defects ... (3) if the arbitrators have been guilty of misconduct in refusing to postpone the hearing upon sufficient cause shown or in refusing to hear evidence pertinent and material to the controversy or of any other action by which the rights of parties have been prejudiced; or (4) if the arbitrators have exceeded their powers or so imperfectly executed them that a mutual, final and definite award upon the subject matter submitted was not made.”

       The union’s position that the public policy argument was raised for the first time on remand is somewhat misleading. Although the words “public policy” may not have been used during the first trial, the city did allege Graves’ lack of authority and addressed the issue during the first trial. The court’s 1994 memorandum of decision states in part: “The claim, raised for the first time at the hearing, that [Graves] lacked the authority to bind the plaintiff city and so advised the panel members, appears to the court to be an afterthought.”

       Counsel for the union objected to the introduction of the charter at the hearing because it was not mentioned in the city’s brief.

       We do not know whether the union responded, but that issue is of no matter.


source: Caselaw Access Project

author: MIHALAKOS, J.

license: Public Domain

text:
    RONALD K. GOODRIDGE ET AL. v. ZONING BOARD OF APPEALS OF THE BOROUGH OF NEWTOWN ET AL.
    (AC 18982)
    Schaller, Spear and Mihalakos, Js.

      Argued February 15
    officially released July 18, 2000

      Michael A. Zizka, for the appellants (plaintiffs).

      Donald A. Mitchell, for the appellee (named defendant).

      Robert H. Hall, for the appellees (defendant Richard P. Gottmeier et al.).

      Christopher J. Smith filed a brief for the Planning and Zoning Section of the Connecticut Bar Association as amicus curiae.
   Opinion

MIHALAKOS, J.

The plaintiffs, Ronald K. Goodridge and Albert R. Taubert, appeal from the judgment of the trial court dismissing their appeal from the decision of the named defendant, the zoning board of appeals of the borough of Newtown (board), which nullified a zoning permit that the zoning enforcement officer had issued to plaintiff Ronald K. Goodridge. On appeal, the plaintiffs claim that the court improperly determined that (1) the revision of the boundary line between two parcels known as lots one and two was a “subdivision” under General Statutes § 8-18 and (2) Taubert, who held a mortgage on Goodridge’s parcel, was not an aggrieved party and therefore had no standing. We reverse the judgment of the trial court.

The following facts and procedural history are relevant to this appeal. This case involves the status and history of two adjoining lots in Newtown, parcel one and parcel two. The parcels have been in separate existence as early as November 21, 1950, when they were recorded in the Newtown land records. After a series of conveyances, which are not relevant to this appeal, both parcels were acquired as separate parcels by Karl Koehler and Vincenza Koehler in 1968. On July 16,1969, the Koehlers sold parcel one to Julia B. Wasserman. The warranty deed, conveying parcel one, reflected a slight adjustment of the boundary line between parcels one and two. The revision affected a twenty-five foot segment, less than 3 percent of the 850 foot long boundary line between parcel one and two, by angling it slightly northward near the street line of Walnut Tree Hill Road in Newtown. As a result of the boundary line revision, a triangular area of land measuring 0.005 acres, which previously had been contained within parcel two, was incorporated into parcel one.

In 1972, the Koehlers sold parcel two to Aveve Cohen by warranty deed. The warranty deed describes parcel two in three different ways: First, by a metes and bounds delineation; second, by reference to the deed, expressly deducting the premises previously conveyed to Wasser-man; and third, by reference to parcel two as shown on the original map, expressly excepting the 0.005 acre triangular tract of land into parcel one as a result of the lot line revision.

In 1987, Taubert acquired parcel two. Taubert then divided parcel two into two lots, parcel A and parcel B, and submitted a proposed map to the zoning enforcement office. The map was approved on August 30,1995. Taubert claimed that the proposed division of property was a “first cut” and, therefore, no subdivision approval was required. The map was approved by the zoning enforcement officer and filed with the town clerk. Taub-ert subsequently conveyed parcel A to an individual who is not a party to this appeal.

In 1996, Taubert conveyed parcel B to Goodridge. Shortly after he acquired parcel B, Goodridge applied for a permit to construct a driveway for a new home he intended to build on this site. On May 22, 1997, the zoning enforcement officer issued a permit to construct the driveway. At this time, the defendants Richard P. Gottmeier and Holly Gottmeier, whose property abuts parcel B, appealed to the board from the zoning enforcement officer’s issuance of a permit to construct a driveway. The board sustained the appeal on the ground that the 1969 boundary line revision was a “first cut” of the land and that Taubert’s division, therefore, was a “second cut” of the property, which required subdivision approval from the planning and zoning commission pursuant to § 8-18. The plaintiffs then appealed to the trial court from the board’s decision. The court first found that Goodridge was aggrieved by the board’s decision. Although the court determined that it had jurisdiction over the appeal based on Goodridge’s aggrievement, it noted that Taubert could not establish aggrievement merely as the holder of a mortgage on the subject property. The court, however, dismissed the plaintiffs’ appeal. This appeal followed. On April 8, 1999, this court granted permission to the planning and zoning section of the Connecticut Bar Association to file an amicus curiae brief. Additional facts will be discussed where relevant to this appeal.

I

The plaintiffs first claim that the court improperly determined that the revision of the boundary line between lots one and two in 1969 was a “subdivision” under § 8-18. We agree.

“The question before us is a matter of statutory interpretation and, as such, constitutes a question of law subject to de novo review. ... In seeking to discern [statutory] intent, we look to the words of the statute itself, to the legislative history and circumstances surrounding its enactment, to the legislative policy it was designed to implement, and to its relationship to existing legislation and common law principles governing the same general subject matter. ... It is well settled that [w]here the meaning of a statute ... is plain and unambiguous, the enactment speaks for itself and there is no occasion to construe it. Its unequivocal meaning is not subject to modification by way of construction.” (Citations omitted; internal quotation marks omitted.) Fishbein v. Kozlowski, 252 Conn. 38, 46, 743 A.2d 1110 (1999).

Section 8-18 defines the term “subdivision” as “the division of a tract or parcel of land into three or more parts or lots made subsequent to the adoption of subdivision regulations by the commission, for the puipose, whether immediate or future, of sale or building development expressly excluding development for municipal, conseivation or agricultural purposes, and includes resubdivision . . . .”

In this case, the land transferred from lot two to lot one was never divided from a whole parcel of land; rather it remained, at all times, as part of a larger parcel of land. Furthermore, the land never was sold separately or intended to be used for development, it simply was added to the adjacent parcel. Accordingly, in McCrann v. Town Plan & Zoning Commission, 161 Conn. 65, 70, 282 A.2d 900 (1971), our Supreme Court held that where a site for elderly housing was created by combining two lots to make one parcel, but there was no division of the tract into three or more parts or lots, there was no “subdivision.”

Including the revision as a “subdivision” pursuant to § 8-18 would not be prudent for public policy reasons. A minor lot line adjustment between two existing lots, whereby no new lot is created, does not constitute a “subdivision” as defined by § 8-18 and, thus, does not require municipal approval. To subscribe to the trial court’s rationale, whereby every first line adjustment would be a “subdivision” and municipal approval would be required for a subsequent division, would result in a significant adverse impact on land use and real estate law in Connecticut. To accept every minor adjustment of property, even those that are inadvertent, as a “subdivision” under § 8-18 would lead to a substantial increase in applications to municipal planning commissions and in land use appeals.

After analyzing the relevant terms of the statute and taking into the account the public policy reasons underlying the statute, we conclude that the court improperly held that the revision of the boundary line between lot one and two in 1969 constituted a “subdivision” under § 8-18. Therefore, because the land transferred from lot two to lot one was not divided from the larger parcel that made up both lots, Taubert’s subsequent division in 1987 of lot two into parcels A and B did not require subdivision approval from the planning and zoning commission.

II

The plaintiffs’ final claim is that the court improperly determined that Taubert was not an aggrieved party and, therefore, had no standing. We agree.

“First, the party claiming aggrievement must successfully demonstrate a specific, personal and legal interest in the subject matter of the decision, as distinguished from a general interest, such as is the concern of all members of the community as a whole. Second, the party claiming aggrievement must successfully establish that this specific personal and legal interest has been specially and injuriously affected by the decision.” (Internal quotation marks omitted.) Walls v. Planning & Zoning Commission, 176 Conn. 475, 477-78, 408 A.2d 252 (1979).

The defendant’s reliance on R & R Pool & Home, Inc. v. Zoning Board of Appeals, 43 Conn. App. 563, 684 A.2d 1207 (1996), is misplaced. In R & R Pool & Home, Inc. v. Zoning Board of Appeals, supra, 573, we held that a $1500 purchase money mortgage, which a partnership retained on the property, was not a sufficient interest to support aggrievement. Although the partnership established that it had more than a general interest in the property, it did not establish that its interest had been specially and injuriously affected by the denial of the application. Id. Specifically, we held that the mere $1500 purchase money mortgage of the partnership was not likely to be in jeopardy. Id. The property sold for $315,000 and, even if R & R Pool & Home, Inc., defaulted on payment; of the $1500 mortgage debt, the partnership could obtain a foreclosure judgment and readily recover its $1500 interest. Id.

In this case, however, the record established that Taubert’s interest was personal and would be specially and injuriously affected if Goodridge’s application was denied. Taubert’s interest, thus, is distinguishable from that of the partnership in R & R Pool & Home, Inc. Taubert held a substantial mortgage of $60,000 on a lot, the value of which was severely diminished when the court found that there was a failure to comply with subdivision regulations. The board’s decision, which was upheld by the court, was that the lot sold to Goo-dridge was not lawfully created and, therefore, a zoning permit could not be granted for any use. The decision of the board, eliminating the usefulness of the lot, substantially decreased the value of the lot. Taubert’s personal interest was, therefore, specially and injuriously affected, and the court improperly held that Taubert was not an aggrieved party.

The judgment is reversed and the case is remanded with direction to sustain the plaintiffs’ appeal.

In this opinion the other judges concurred.

       The other defendants in this action are Richard P. Gottmeier and Holly Gottmeier, who own real property abutting that of plaintiff Ronald K. Goodridge.

       The plaintiffs also claim that the appeal by the Gottmeiers was untimely. We need not address this issue because the court’s improper determination that the revision of the boundary line between parcels A and B was a “subdivision” under General Statutes § 8-18 is dispositive of this appeal.

       The court noted that the board’s decision that the construction permit had been improperly issued restricted Goodridge in the use of his property, and that his personal and legal interest, therefore, had been injuriously affected.

       The court ruled that (1) the Gottmeiers’ appeal to the board was timely under General Statutes § 8-7 because it was filed within thirty days of the issuance of the construction permit, and (2) the board properly concluded that the 1969 boundary line adjustment was a “first cut” of the land, and that the subsequent division of parcel two by Taubert and conveyance of parcel B to Goodridge constituted a “second cut” of the parcel. The court concluded that it was improper for the zoning enforcement officer to issue a construction permit in the absence of approval of the subdivision by the planning and zoning commission.


author: FOTI, J.

text:
    C. JOHN SATTI, JR. v. ROBERT H. KOZEK, ADMINISTRATOR (ESTATE OF CHARLES SATTI) C. ROBERT SATTI, SR. v. ROBERT H. KOZEK, ADMINISTRATOR (ESTATE OF CHARLES SATTI)
    (AC 18733)
    Foti, Hennessy and Pellegrino, Js.
    Argued April 4
    officially released July 18, 2000

      Peter W. Rotella, for the appellant (plaintiff in the first case).

      C. Robert Satti, Sr., pro se, the appellant (plaintiff in the second case).

      C. George Kanabis, with whom, on the brief, was Renee Marie Houle, for the appellee (defendant).
   Opinion

FOTI, J.

The plaintiffs appeal from the judgment of the trial court denying their petition to remove the defendant, Robert H. Kozek, as administrator of the estate of Charles Satti, and modifying, in part, the defendant’s final account of legal fees, accounting fees and administrative fees. The plaintiffs claim that the trial court improperly (1) failed to require the defendant, as a fiduciary, to sustain his burden of proof by clear and convincing evidence, (2) rendered judgment for the defendant, (3) failed to reduce sufficiently the amounts of certain fees charged in the defendant’s final accounting, (4) refused to order an allocation of and accounting for funds and interest generated by the transfer of specifically devised property, (5) declined to order repayment of money wrongfully paid from the estate fund and (6) refused to remove the defendant as fiduciary. We affirm the judgment of the trial court.

The following facts are relevant to this appeal. This action involves the disposition of the estate of Charles Satti, who died testate in 1936. Satti was survived by his widow, Maria, and seven children, Andrew, Louis, C. John, Emma, Theresa, Margaret and Mary Curtin. The original inventory of the estate included a grocery business, a savings account and certain properties located in New London and Waterford. Satti’s will granted a life estate in all of his property to his widow, who died in 1953. The properties located at Bank and Belden Streets in New London were specifically devised to the three sons, while the residue of the estate was devised to all seven children equally.

Charles Satti’s eldest son, Andrew, was appointed executor of the estate in 1936, and served as executor until his death in 1977. In 1982, Satti’s granddaughter asked the defendant to serve as administrator of the estate. The defendant agreed and was appointed administrator of the estate in September of 1982.

By 1986, the defendant had disposed of all of the properties except the property located at Montauk Avenue in New London. Largely due to the actions of the heirs of the estate, the defendant was unable to sell the Montauk Avenue property. The issue of ownership of the Montauk Avenue property was eventually resolved through a settlement agreement among the heirs. By December, 1995, the defendant was ordered by the Probate Court to file a final account, covering the time period of 1982 through 1995. The Probate Court approved, in part, the defendant’s final accounting. The plaintiffs brought separate appeals to the Superior Court from the decision of the Probate Court, challenging the defendant’s final accounting. The cases were tried together to the Superior Court, which held a trial de novo because no record was made before the Probate Court. The plaintiffs now appeal from the judgment of the Superior Court.

I

The plaintiffs first claim that the trial court improperly failed to require the defendant to sustain his burden of proof by clear and convincing evidence. We disagree with the plaintiffs.

The issue of whether the court held the parties to the proper standard of proof is a question of law. When “issues in [an] appeal concern questions of law, this court reviews such claims de novo.” Norse Systems, Inc. v. Tingley Systems, Inc., 49 Conn. App. 582, 592, 715 A.2d 807 (1998).

In certain instances where it is alleged that a fiduciary has breached his duty, the burden of proof shifts such that the fiduciary has the burden of proving fair dealing by clear and convincing evidence. Murphy v. Wakelee, 247 Conn. 396, 400, 721 A.2d 1181 (1998). Such burden shifting occurs in cases involving claims of fraud, self-dealing or conflict of interest. Id. In their appeal to the Superior Court, the plaintiffs claimed that the defendant’s interests conflicted with those of the estate, and thus, according to Murphy, the defendant was required to prove fair dealing by clear and convincing evidence.

The plaintiffs claim that the court failed to require the defendant to prove fair dealing by clear and convincing evidence. We disagree with the plaintiffs because we find nothing in the record to suggest that the court held the defendant to a lesser standard. In its decision, the court clearly noted that the defendant was a fiduciary to the estate. In finding that the defendant dealt fairly with the heirs of the estate, the court noted that “the fiduciary’s performance was, by any applicable standard of proof, well within the range of acceptability.” Clearly, the court acknowledged that the defendant’s fiduciary performance was evaluated according to a higher standard of proof, and our review of the record convinces us that the court properly held the defendant to the appropriate standard.

II

The plaintiffs next claim that the court improperly rendered judgment for the defendant. We disagree.

In their appeal to the Superior Court, the plaintiffs challenged (1) the court’s decision denying their request to remove the defendant as administrator and (2) the defendant’s final accounting of the administration expenses. The Superior Court denied the petition to remove the defendant and approved the defendant’s final accounting, subject to some modifications.

The plaintiffs assert that, because the court ordered some modifications of the final accounting, they were the “prevailing” parties and therefore it was improper for the court to have rendered judgment for the defendant. In support of this claim, the plaintiffs cite McQueeney v. Norcross, 75 Conn. 381, 53 A. 780 (1903), which addressed the issue of which party was the prevailing party for the purposes of having appellate costs taxed. According to the McQueeney court, the reviewing court’s finding of any error in the judgment of the trial court is sufficient to make the appellant the prevailing party. See id., 382 n.l.

The plaintiffs’ reliance on McQueeney is misplaced. While the present case involves an appeal from a decision of the Probate Court, the trial court did not act as an appellate court reviewing the decision of the Probate Court. Rather, the trial court sat as a Probate Court de novo and its judgment was rendered without regard to the decision made by the Probate Court. See Prince v. Sheffield, 158 Conn. 286, 294, 259 A.2d 621 (1969); see also General Statutes § 45a-186; Andrews v. Gorby, 237 Conn. 12, 16, 675 A.2d 449 (1996) (where no record made before Probate Court, absence of record requires trial de novo). Thus, the trial court did not find, and was not asked to review, any error that may have been committed by the Probate Court. The court’s judgment for the defendant was an entirely independent determination.

While the plaintiffs may have prevailed in having a portion of the final account modified, the court approved much of the account and refused the plaintiffs’ petition to remove the defendant as administrator. Because it appears that the defendant did prevail as to the bulk of the plaintiffs’ claims, it was not improper for the court, sitting as a Probate Court de novo, to render judgment for the defendant.

Ill

The plaintiffs next claim that the court failed to reduce sufficiently the attorney’s, accounting and administrator’s fees charged to the estate. We disagree.

“Our analysis begins with the appropriate standard of review. We have long held that a finding of fact is reversed only when it is clearly erroneous. ... A factual finding is clearly erroneous when it is not supported by any evidence in the record or when there is evidence to support it, but the reviewing court is left with the definite and firm conviction that a mistake has been made. . . . Simply put, we give great deference to the findings of the trial court because of its function to weigh and interpret the evidence before it and to pass upon the credibility of witnesses.” (Citations omitted; internal quotation marks omitted.) Hartford Electric Supply Co. v. Allen-Bradley Co., 250 Conn. 334, 345-46, 736 A.2d 824 (1999).

Here, the record contains ample evidence to support the finding of the court. The court heard ten days of testimony, including that of an expert witness, and reviewed voluminous documents, including the administrator’s billing records. Clearly, the trial court was in the best position to evaluate this evidence, and “[w]e will not substitute our evaluation of the evidence for that of the trial court . . . .” (Internal quotation marks omitted.) Carol Management Corp. v. Board of Tax Review, 228 Conn. 23, 38, 633 A.2d 1368 (1993).

IV

The plaintiffs claim next that the court failed to order a proper allocation of and accounting for funds and interest realized from the transfers of specifically devised property. We disagree.

This issue relates to the properties located at Bank and Belden Streets, which were specifically devised to Charles Satti’s sons, subject to his widow’s life estate. When the properties were sold, the defendant improperly commingled the proceeds from those sales with the general funds of the estate. While the defendant eventually recognized this error and disbursed the sale proceeds to the respective sons, the defendant did not credit the sons with interest earned on the money while it was in the estate’s general account.

In evaluating the plaintiffs’ claim, the court noted that the proceeds from the sales of the Bank and Belden Streets properties included gains from the sale of another Belden Street property that had been acquired after Satti’s will was executed. The sons, therefore, had received funds from property that had not been specifically devised to them.

After considering the relative values of the after-acquired Belden Street property proceeds and the unpaid interest that had accumulated in the estate’s general account, the court found that the two amounts were roughly equal. Finding that the after-acquired property proceeds had already enriched the sons in an amount equal to the interest that was owed them, the court determined that the figures offset one another. Accordingly, the court declined to order the payment of the interest to the sons. Again, the court was in the best position to evaluate this evidence, and our own review of the record leads us to conclude that the result was reached reasonably.

V

The plaintiffs claim next that the court improperly failed to order repayment of amounts wrongfully paid from estate funds. This claim deals with the defendant’s use of estate funds to pay taxes, interest, penalties and lien fees in the amount of $3344, which were generated by the defendant’s own negligence. The defendant does not dispute that he improperly used estate assets to pay these fees. He claims, however, that the estate was properly credited the $3344 it was owed. As we noted previously, we will overturn a trial court’s factual finding only when it is clearly erroneous. The court, in deciding the appropriate amount of legal, administrative and accounting fees, noted that some of the defendant’s charges stemmed from work made necessary through the errors of the defendant or his agents. The court considered those errors and reduced the compensation in the defendant’s accounting by an appropriate amount. We find nothing in the record to suggest that the court failed to account for the $3344 that was improperly used by the defendant to pay estate fees created by his own error.

VI

The plaintiffs final claim is that the court improperly refused to remove the defendant as fiduciary. We find the plaintiffs’ claim to be unavailing.

“Whether grounds exist for an executor’s removal is a question addressed to the sound discretion of the Probate Court. . . . Our task, then, is to determine whether the trial court abused its discretion in refusing to remove the defendant as executor of the . . . estate.” (Citations omitted.) Ramsdell v. Union Trust Co., 202 Conn. 57, 65, 519 A.2d 1185 (1987). “Removal of an executor is an extraordinary remedy designed to protect against harm caused by the continuing depletion or mismanagement of an estate. ... In the absence of continuing harm to the interests of the estate and its beneficiaries, removal is not justified merely as a punishment for a fiduciary’s past misconduct.” (Citations omitted.) Id., 66-67.

In its decision not to remove the defendant as administrator, the court found that, while the work done by the defendant was not correct in every respect, his performance as administrator was well within the range of acceptability. The court further noted that “it would serve no purpose but economic waste to remove the fiduciary at this time” and that removal “is not in the best interest of the heirs of the estate . . . .’’Given the age and complexity of this estate, there is sufficient evidence in the record to support the court’s conclusion that it would be economically wasteful to appoint a new administrator at this time. Furthermore, there is no evidence in the record to suggest that the defendant presents a continuing harm to the interests of the estate.

The judgment is affirmed.

In this opinion the other judges concurred.

       The plaintiffs are C. John Satti, Jr., and C. Robert Satti, Sr., descendants of the testator.


author: SHEA, J.

text:
    FRANCISCO J. MORALES v. CAROL M. KAGEL
    (AC 19029)
    Spear, Hennessy and Shea, Js.

      Argued January 14
    officially released July 18, 2000

      John F. Morris, with whom, on the brief, were Ray-nald B. Cantin and A. Alan Sheffy, for the appellant (plaintiff).

      Susan L. Miller, with whom, on the brief, was Robyn L. Sondak, for the appellee (defendant).
   Opinion

SHEA, J.

The plaintiff, Francisco J. Morales, appeals from the judgment of the trial court rendered after the granting of the motion for summary judgment filed by the defendant, Carol M. Kagel, a psychologist. On appeal, the plaintiff claims that the court improperly granted the motion because the defendant did not have “reasonable cause to suspect or believe” a claim of alleged child abuse, and did not report it to the department of children and families (department) in good faith, pursuant to General Statutes (Rev. to 1995) § 17a-101. We affirm the judgment of the trial court.

The following facts and procedural history are relevant to our resolution of this appeal. On December 12, 1995, the plaintiffs then wife, Sarah Louise Morales, contacted the defendant by telephone because she was concerned about certain inappropriate sexual behavior exhibited by her four and one-half year old son, who, when she questioned him, told her that the plaintiff had done those things to him. During the conversation, the defendant informed Louise Morales that due to the nature of the allegations and the possibility of child abuse, the defendant would have to report the matter to the department. Prior to reporting the matter to the department, however, the defendant contacted the child abuse hotline to inquire whether, on the basis of the information Louise Morales provided, the defendant had a duty as a psychologist, pursuant to § 17a-101, to report the information. The hotline supervisor advised the defendant that she was obligated to report the information. Accordingly, the defendant provided an oral, and later a written, report to the department regarding the accusations by Louise Morales that the plaintiff had committed sexual abuse.

Thereafter, on November 14, 1997, the plaintiff commenced this action by serving the defendant with a five count complaint. In March, 1998, the defendant filed a motion for summary judgment with a supporting memorandum of law, claiming, pursuant to § 17a-101, that she did not owe a duty to the suspected child abuser and was immune from civil liability for reporting the allegations of abuse to the department. In July, 1998, the plaintiff filed an objection to the motion for summary judgment and attached an affidavit from his treating psychiatrist, Kenneth M. Selig. The relevant portion of Selig’s affidavit states that “it is [his] professional opinion as a [psychiatrist] that [the defendant] was not required to report her telephone conversation with [Louise Morales] to the [department] in that a reasonable basis did not exist based upon the single phone conversation between Louise Morales and [the defendant] for suspecting sexual abuse.”

Later, the defendant filed a reply to the affidavit and, thereafter, the plaintiff filed a response to the defendant’s reply. On October 27, 1998, the court filed its memorandum of decision granting the defendant’s motion for summary judgment. This appeal followed. Additional facts will be provided as necessary.

We first address the appropriate standard of review. “Our standard of review of a trial court’s decision to grant a motion for summary judgment is well established. . . . Practice Book § [17-49] requires that judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. A material fact is a fact that will make a difference in the result of the case. . . . The facts at issue are those alleged in the pleadings. . . . The party seeking summary judgment has the burden of showing the absence of any genuine issue as to all material facts, which, under applicable principles of substantive law, entitle him to a judgment as a matter of law. . . . The party opposing such a motion must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact. ... In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party. . . . The test is whether a party would be entitled to a directed verdict on the same facts. ... A motion for summary judgment is properly granted if it raises at least one legally sufficient defense that would bar the plaintiffs claim and involves no triable issue of fact.” (Citations omitted; internal quotation marks omitted.) Lunn v. Cummings & Lockwood, 56 Conn. App. 363, 369-70, 743 A.2d 653 (2000).

The plaintiff argues that the court improperly granted the defendant’s motion for summary judgment because the defendant did not have reasonable cause to suspect or to believe that a child was abused, and reported the claim to the department in bad faith. We disagree.

The plaintiff claims that Selig’s affidavit stating that in his professional opinion the defendant “was not required to report her telephone conversation with Ms. Louise Morales to the [department]” because “a reasonable basis did not exist based upon the single phone conversation between Louise Morales and [the defendant] for suspecting sexual abuse,” created a genuine issue of material fact that precluded the court from granting the defendant’s motion for summary judgment.

Although an affidavit by an expert may be considered in opposition to a motion for summary judgment, con-clusoiy affidavits, even from expert witnesses, do not provide a basis on which to deny such motions. 27A Fed. Proc., L. Ed. § 62:717 (1996). In the present case, Selig merely stated that the defendant did not have a reasonable basis for reporting the telephone conversation to the department, yet he did not set forth specific facts to support his claim. His statement, therefore, was conclusory and did not provide a basis on which to deny the defendant’s motion for summary judgment.

Furthermore, the affidavit does not state facts to support the plaintiffs claim that the defendant was acting in bad faith when she reported Louise Morales’ claim of child abuse to the department after being advised by the hotline supervisor that she was obligated to do so. The affidavit raises no issue of fact that would defeat the defendant’s qualification for the immunity privilege of a psychologist acting in good faith pursuant to § 17a-101 (h).

The plaintiff further claims that the defendant failed to make sufficient inquiry during the telephone call from the plaintiffs wife to afford the defendant a reasonable basis to suspect abuse. As appropriately stated by the court in its memorandum of decision, however, “Nothing in the General Statutes requires a mandated reporter to undertake such further investigation . . . .” General Statutes (Rev. to 1995) § 17a-101 (e) provides that the investigation will be made by the agency receiving the report, not by the reporting psychologist or mental health professional. General Statutes (Rev. to 1995) § 17a-101 (h) provides that “any person, institution or agency which, in good faith, makes the report required by this statute shall be immune from any liability

Furthermore, “The public policy of this state is: To protect children whose health and welfare may be adversely affected through injury and neglect; to strengthen the family and to make the home safe for children by enhancing the parental capacity for good child care; to provide a temporary or permanent nurturing and safe environment for children when necessary; and for these purposes to require the reporting of suspected child abuse, investigation of such reports by a social agency, and provision of services, where needed, to such child and family.” General Statutes (Rev. to 1995) § 17a-101 (a).

In Zamstein v. Marvasti, 240 Conn. 549, 559-61, 692 A.2d 781 (1997), our Supreme Court concluded that “imposing a duty on mental health professionals, who have been engaged to evaluate whether there has been sexual abuse, a duty of care running to the benefit of the alleged sexual abuser would be contrary to the public policy of this state. The legislature has expressed the strong public policy of encouraging medical professionals and other persons to report actual and suspected child abuse to the appropriate authorities and agencies. General Statutes (Rev. to 1995) § 17a-101 requires medical professionals and other persons to notify the state commissioner of children and families, or local or state police, whenever they have ‘reasonable cause to suspect or believe’ that a child under the age of eighteen has been abused. Subsection (b) of § 17a-101 provides that such persons shall be fined up to $500 if they fail to make such a report. Subsection (h) of § 17a-101 provides that persons who make such reports in good faith ‘shall be immune from any liability, civil or criminal,’ that may result from making the report.

“We conclude that imposing a duty on mental health professionals . . . would carry with it the impermissible risk of discouraging such professionals in the future from performing sexual abuse evaluations of children altogether, out of a fear of liability to the very persons whose conduct they may implicate. Such a result would necessarily run contrary to the state’s policy of encouraging the reporting and investigation of suspected child abuse, as expressed in General Statutes (Rev. to 1995) § 17a-101, because effective evaluation and diagnosis of children is a necessary component of discovering the abuse in the first instance. In addition, imposing such a duty creates too high a risk that, in close cases, mental health professionals would conclude that no sexual abuse had occurred because they feared potential liability to the suspected abusers, rather than because of their professional judgment that, in all likelihood, no abuse had occurred.”

As did the court in Zamstein, we conclude that the defendant in this case did not owe a duty to the plaintiff to investigate the accusations against him prior to making a good faith report.

The judgment is affirmed.

In this opinion the other judges concurred.

       The underlying action was brought in five counts by the plaintiff alleging recklessness, a violation of the Connecticut Unfair Trade Practices Act, General Statutes § 42-110a et seq., intentional infliction of emotional distress, defamation and negligent infliction of emotional distress relating to a report by the defendant to the department of children and families.

       General Statutes (Rev. to 1995) § 17a-101 provides in relevant part: “(b) Any . . . psychologist . . . [or] mental health professional . . . who has reasonable cause to suspect or believe that any child under the age of eighteen has had physical injury or injuries inflicted upon him by a person responsible for such child’s or youth’s health, welfare or care . . . shall report or cause a report to be made in accordance with the provisions of subsection (c) of this section ....
      “(c) An oral report shall be made immediately by telephone or otherwise, to the state commissioner of children and families or his representative, or the local police department or the state police to be followed within seventy-two hours by a written report to the commissioner of children and families or his representative .... The commissioner of children and families or his designee shall notify the local police department or state police within twenty-four hours of receiving an oral report alleging serious physical abuse or sexual abuse of a child. . . . Such report shall contain the names and addresses of the child and his parents or other person responsible for his care, if known, the age of the child, the nature and extent of his injuries, together with any evidence of previous injury or maltreatment to the child or his siblings . . . and any other information which the reporter believes might be helpful in establishing the cause of the injury or injuries and protecting the child.
      * * *
      “(h) Any person . . . [who] in good faith, makes the report required by this section shall be immune from any liability, civil or criminal, which might otherwise be incurred or imposed . . . .”

       In the telephone conversation, Sarah Louise Morales identified herself as Louise Morales. In this opinion, we also will refer to her as Louise Morales.


text:
    STATE OF CONNECTICUT v. THOMAS HUGHES
    (AC 19119)
    Landau, Sehaller and Spear, Js.
    Argued April 28
    officially released July 18, 2000

      Robert J. Sullivan, special public defender, for the appellant (defendant).

      Richard F. Jacobson, special assistant state’s attorney, with whom, on the brief, was Stephen J. Sedensky III, assistant state’s attorney, for the appellee (state).
   Opinion

LANDAU, J.

In a second visit to this court, the defendant, Thomas Hughes, appeals from the judgment of conviction, rendered after a jury trial, of one count of sexual assault in the first degree in violation of General Statutes § 53a-70 (a) (l). On appeal, the defendant claims that the trial court improperly failed to enter into evidence testimony concerning' certain of the defendant’s prior statements, which were consistent with his claims at trial, to rebut the testimony of a state’s witness regarding the defendant’s statements to her. We affirm the judgment of the trial court.

We set forth the underlying facts of the case, which the jury reasonably could have found, in State v. Hughes, 45 Conn. App. 289, 696 A.2d 347 (1997). “The victim, a twenty year old man with pervasive developmental disorder, took guitar lessons from the defendant. In November, 1991, during a guitar lesson, the defendant threatened the victim with a kitchen knife and forced him to perform fellatio on the defendant. The defendant and the victim maintained a sexual relationship for the next year. In November, 1992, the victim told his mother about his sexual relationship with the defendant, explaining that it began with the November, 1991 knife incident. The victim’s mother became angry, ended the guitar lessons and contacted the police.” Id., 291. In the defendant’s first appeal from the judgment of conviction of sexual assault in the first degree, we concluded that the court improperly admitted certain evidence that prejudiced the defendant, reversed the judgment of conviction and remanded the case for a new trial. Id., 296.

During the second trial, Stacey Hughes, a witness for the state, testified that the defendant had told her that he had been having sexual relations with a twenty year' old mentally handicapped student. She also testified that the defendant had subsequently informed her that the police had the knife that he had jokingly waved in his efforts to engage in sex with the victim. The defendant, who did not testify, offered in his case-in-chief the testimony of Robin LaChance, who was asked whether the defendant had talked to her. The state objected to that question, and the jury was sent from the courtroom and the court heard arguments. Defense counsel agreed with the state that the witness was called to testify about a conversation that she had with the defendant, but claimed that the inquiry was proper and maintained that it was offered “to put the opposition’s position in proper context.” The state asserted that the defendant could not present his side of the case through a third-party witness, that the proffered testimony was self-serving, that it was hearsay and that there was no testimony in the case about any conversation that needed to be placed in the proper context.

The court agreed that the defendant’s desire to introduce the testimony of LaChance was self-serving and an attempt to place his version of the circumstances before the jury without testifying. The defendant acquiesced to the position taken by the state and the court without objection, and the witness was excused. The court’s refusal to let LaChance testify is the substance of the defendant’s appeal.

“The trial court’s ruling on the admissibility of evidence is entitled to great deference. . . . [T]he trial court has broad discretion in ruling on the admissibility ... of evidence. . . . The trial court’s ruling on evidentiary matters will be overturned only upon a showing of a clear abuse of the court’s discretion. . . . We will make every reasonable presumption in favor of upholding the trial court’s ruling, and only upset it for a manifest abuse of discretion. . . . Moreover, evidentiary rulings will be overturned on appeal only where there was an abuse of discretion and a showing by the defendant of substantial prejudice or injustice. . . . State v. Hines, 243 Conn. 796, 801, 709 A.2d 522 (1998).” (Internal quotation marks omitted.) State v. Martinez, 51 Conn. App. 59, 74-75, 719 A.2d 1213, cert. denied, 247 Conn. 952, 723 A.2d 324 (1998).

The defendant sought to have LaChance testily to rebut Stacey Hughes’ testimony concerning his having used a knife during one of his sexual encounters with the victim. The defendant claims that LaChance’s testimony was admissible because it would have rebutted Stacey Hughes’ testimony as to the statements that she claimed the defendant had made to her about the knife. In other words, he sought to present a different version of the events by pitting LaChance’s testimony against Stacey Hughes’ testimony.

The defendant cites no law that supports his claim, although he points to Thomas v. Ganezer, 137 Conn. 415, 78 A.2d 539 (1951). Thomas, however, does not help the defendant for two reasons. That case states the law with respect to the use of prior consistent statements to rehabilitate a witness whose testimony has been discredited on cross-examination by the witness’ inconsistent statement. Id., 417-21. Here, by contrast, the defendant did not offer LaChance’s testimony to show that an inconsistent or consistent statement had been made by Stacey Hughes. He sought to use LaChance’s testimony to discredit statements Stacey Hughes attributed to the defendant, who was not a witness at trial. Thomas also held that when a prior consistent statement is received under the principle applied therein, “it is admitted to affect credibility only, not to establish the truth of the statement. It is to develop the fact that what was said in the contradictory statement had been recently fabricated. Its effect is restricted solely to this issue.” Id., 421. Here again, the defendant’s argument fails because he wanted to use LaChance’s testimony to establish the truth about his having used a knife.

Even, for the sake of argument, if the court improperly refused to admit LaChance’s testimony, the absence of her testimony was not prejudicial to the defendant. The victim provided the crucial testimony against the defendant; Stacey Hughes’ testimony merely corroborated that of the victim.

Finally, the defendant invites us to create a new exception to the hearsay rule. The new exception, in a criminal trial, would permit the defendant to relate his version of the event to a third person who could testify about his version to contradict an admission by the defendant, which was placed in evidence via the testimony of a state’s witness. The judges of the Superior Court recently adopted a code of evidence, which was the culmination of many years of work in codifying the law of evidence in Connecticut. Article VIII of the Connecticut code of evidence is currently the final word on exceptions to the hearsay rale and does not contain the exception claimed by the defendant. We therefore decline the defendant’s invitation to create another exception to the hearsay rale.

The judgment is affirmed.

In this opinion the other judges concurred.

       See State v. Hughes, 45 Conn. App. 289, 696 A.2d 347 (1997).

       General Statutes § 53a-70 (a) provides in relevant part: “A person is guilty of sexual assault in the first degree when such person (1) compels another person to engage in sexual intercourse by the use of force against such other person or a third person, or by the threat of use of force against such other person or against a third person which reasonably causes such person to fear physical injury to such person or a third person. . . .”

       Stacey Hughes is not related to the defendant.

         Defense counsel made the following representation at trial: “In particular, [the state] brought in Stacey Hughes to testify that [the defendant] had told her all about the visits to the police department and that a knife was used. We are bringing this witness in for the narrow purpose of rebutting that statement. . . . [W]ell, Miss LaChance will say that he had a conversation with her virtually—I won’t say identical to the one that Miss Hughes had, but they had a conversation about the fact that the police had contacted him and they had a specific discussion about the knife, and this is after the police spoke with him and before he was arrested. It was clearly at the same time, and it’s offered to put the state’s position in context and they’re the ones that brought it up. They produced Stacey Hughes. She’s the one that was brought in here to say these things about [the defendant]. So, it’s clear to me that it’s proper rebuttal testimony and that the court should admit it.” (Emphasis added.)

       Initially, the state claims that the record is inadequate for our review because the defendant made no offer of proof, thereby informing the state or the court of the substance of LaChance’s testimony concerning conversations she had with the defendant. The defendant also failed to explain his claim that he needed “to put the opposition’s position in proper context.” Although one may question the artfulness of the offer of proof, the court was satisfied as to the offer, stating, “I’m going to sustain the objection of the state based on the offer of proof that [has] been given to me.” Thus, we grant review. See footnote 4.


author: HENNESSY, J.

text:
    PETER STANDISH ET AL. v. SOTAVENTO CORPORATION ET AL.
    (AC 18677)
    Foti, Hennessy and Daly, Js.
    Argued February 23
    officially released July 18, 2000

      Bernard Green, with whom, on the brief, was Mami Smith Katz, for the appellants (plaintiffs).

      Edward V. O’Hanlan, with whom, on the brief, was JohnP. McKinney, for the appellee (named defendant).
   Opinion

HENNESSY, J.

The plaintiffs appeal from the judgment of the trial court rendered following the granting of a motion for summary judgment filed by the named defendant, Sotavento Corporation (Sotavento), a licensed Connecticut brokerage. On appeal, the plaintiffs claim that the court improperly concluded that there were no genuine issues of material fact in dispute. We affirm the judgment of the trial court.

The following facts were before the court. The plaintiffs, limited partners of the defendant Momingside Partners Limited Partnership (Momingside), commenced this derivative action in two counts against Sotavento, Momingside and the defendant Charles Lemieux, the general partner of Momingside, seeking to invalidate a promissory note and mortgage executed in favor of Sotavento on certain property owned by Momingside. The note and mortgage were executed on October 26, 1995. The complaint alleged that Lemieux, while purportedly acting as the general partner of Mom-ingside and on behalf of all of its partners, signed a revolving credit agreement with Sotavento and executed a note in favor of Sotavento in the amount of $150,000. The note was secured by a mortgage on property owned by Momingside. According to the complaint, Lemieux acted without authority in making the note and mortgage. The complaint also alleged that the note and mortgage were executed for uses and purposes that were not in the interests of Morningside or in furtherance of its business and that they were executed by Lemieux for his own benefit. The complaint further alleged that Sotavento was or should have been aware of Lemieux’s intent.

Sotavento filed a motion for summary judgment against the plaintiffs, claiming that there were no genuine issues of material fact as to whether Lemieux was authorized to execute the note and to enter into the credit agreement on behalf of Momingside, and that it was entitled to judgment as a matter of law. The trial court granted Sotavento’s motion for summary judgment, and this appeal followed.

“Our standard of review of a trial court’s decision to grant a motion for summary judgment is well established. Practice Book § 384 [now § 17-49] provides that summary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. . . . Miller v. United Technologies Corp., 233 Conn. 732, 744-45, 660 A.2d 810 (1995). In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party. . . . Tarzia v. Great Atlantic & Pacific Tea Co., 52 Conn. App. 136, 145, 727 A.2d 219 (1999).

“On appeal, [w]e must decide whether the trial court erred in determining that there was no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. . . . Avon Meadow Condominium Assn., Inc. v. Bank of Boston Connecticut, 50 Conn. App. 688, 693, 719 A.2d 66, cert. denied, 247 Conn. 946, 723 A.2d 320 (1998).” (Internal quotation marks omitted.) Kramer v. Petisi, 53 Conn. App. 62, 66-67, 728 A.2d 1097, cert. denied, 249 Conn. 919, 733 A.2d 229 (1999).

The plaintiffs claim that disputed issues of material fact exist as to whether Lemieux’s acts in executing the mortgage loan documents were within the scope of his authority as general partner and whether Sotavento knew or should have known as such. We disagree.

General Statutes (Rev. to 1995) § 34-47 provides that the actions of a general partner in carrying on the business of the partnership bind the partnership if the general partner acts within the scope of his authority. If the general partner in fact has no authority to act for the partnership in the matter and the party with whom the general partner is dealing knows that he is acting outside the scope of his authority, then the acts of the general partner do not bind the partnership. See Connecticut National Bank v. Cooper, 232 Conn. 405, 417, 656 A.2d 215 (1995).

The purpose of Momingside as stated in the partnership agreement is “to acquire, finance, manage, and operate the Property . . . .’’In furtherance of this purpose, the general partner is given a broad range of powers. Specifically, the partnership agreement states that “[t]he general partner shall manage the business and affairs of the Partnership and shall have all power and authority necessary, useful or convenient for him to do so . . . .” In particular, the general partner has the authority to “[a]cquire, manage, sell, transfer, distribute, finance or refinance any property or assets owned by the Partnership” and to “[e]mploy personnel . . . including contractors, brokers, mortgage lenders, leasing agents, consultants, on site managers, insurance members, attorneys . . . and other agents or professionals . . . .” The plaintiffs point out that under the terms of the limited partnership agreement, Lemieux was authorized to act on behalf of Morningside only “[i]n furtherance of the purposes of the [Limited] Partnership.” In addition, his authority is limited to those activities that are “necessary, useful or convenient” to enable him to “manage the business” of the limited partnership.

The plaintiffs do not claim that Lemieux lacked the authority to enter into the agreement to borrow money to further the purposes of the partnership or to execute the documents evidencing that agreement. Rather, they argue that various actions by Lemieux under the terms of the loan were outside the scope of his authority because, instead of acting “in furtherance of the purposes of the Partnership,” he acted for his own benefit. Specifically, the plaintiffs point to loan advances to Lemieux made by Sotavento, at least one of which allegedly was in payment of legal fees incurred by Samuel Braunstein, the principal officer of Sotavento, in connection with his defense of a disciplinary complaint. According to the plaintiffs, the actions taken by Lem-ieux for purposes outside the scope of the partnership were known to Braunstein, who also acted as attorney to Lemieux and Momingside. In addition, the plaintiffs claim that Braunstein, as president of Sotavento, knew or should have known that some of the loan advances were intended for purposes other than those of the limited partnership.

The court found that the issues claimed by the plaintiffs, “while raising questions of material fact concerning the amount of money allegedly owed to Sotavento, [did] not raise any questions of material fact as to the legitimacy of the revolving credit agreement (and note) entered into by Sotavento and, via Lemieux, Mom-ingside Partners.” The court further found that the evidence offered by the plaintiffs did not raise any issues of fact about Lemieux’s authority to enter into the credit agreement. In addition, the court found that “[w]hile the power of the general partner is limited to the furtherance of the aims and goals of the limited partnership, [the plaintiffs have] not offered any evidence which would show that Sotavento knew that, at the time the agreement was entered into, Lemieux intended to use the loan proceeds for nonlimited partnership uses.” We agree with the court.

It is clear from a reading of the partnership agreement that Lemieux, as general partner of Momingside, had broad authority, including the authority to borrow money and encumber the partnership assets in so doing. There also is no evidence that Sotavento knew that Lemieux intended to use the proceeds of the loan for expenditures not authorized under the partnership agreement. The law is clear: “The manifest intent of § 34-47 (4) is to protect innocent partners, in this instance limited partners, from the undertakings of a general partner in contravention of a specific restriction on the authority of the general partner, when the restriction is known to the third party with whom the partner is dealing. The purpose of placing a restriction on a general partner’s authority in a partnership agreement and the policy embodied in § 34-47 (4) would be defeated if one who was aware of a restriction on a partner’s authority could ignore the restriction and hold the partnership to an unauthorized agreement.” Connecticut National Bank v. Cooper, supra, 232 Conn. 417. There was no evidence before the court that would allow it to conclude that Sotavento knew that Lemieux executed the loan documents without authorization or that he acted beyond the scope of his authority. The partnership agreement fully authorized Lemieux to borrow money on behalf of Morningside and sign a note and mortgage. It is clear that the partnership was in financial and legal difficulties and needed credit to deal with these problems and that Lemieux acted accordingly.

The plaintiffs rely on Case v. Connelly, Superior Court, judicial district of Litchfield, Docket No. 046353 (September 6,1990), in which the court held that certain mortgages were unenforceable because the general partner borrowed the funds for his own purposes and the funds were paid to the general partner rather than the partnership. In that case, however, the court found that the mortgage lenders had knowledge that the mortgage was prohibited by the partnership agreement and that the individual partner that had borrowed the money did so for his own personal uses. In the present case, the court did not find such similar circumstances.

Lastly, the plaintiffs contend that there is a disputed issue of material fact as to whether the loan instruments and loan advances are unenforceable because Braunstein breached his fiduciary duty to Momingside and Lemieux, thereby violating the Rules of Professional Conduct. The plaintiffs base this contention on the fact that although Braunstein was president of Sota-vento, he also acted as counsel for Lemieux and Mom-ingside in connection with the execution of the mortgage and note securing the loan from Sotavento. They claim that he therefore owed a fiduciary duty to Morningside. The plaintiffs claim that he breached that duty and violated the Rules of Professional Conduct when he, as an attorney, entered into a business transaction with a client and failed to inform the client, in writing, that the client should seek advice from independent counsel. In the present case, Braunstein had orally advised Lemieux to seek advice from another attorney and Lemieux, following that advice, had other attorneys review and ratify the agreements.

The court properly determined that the issue of whether Braunstein had violated the Rules of Professional Conduct is a matter properly addressed to the statewide grievance committee.

Even if Braunstein’s actions did constitute such a breach, that would not create an issue of material fact that would preclude the granting of a motion for summary judgment. “Violation of a Rule [of the Rules of Professional Conduct] should not give rise to a cause of action nor should it create any presumption that a legal duty has been breached. The Rules are designed to provide guidance to lawyers and to provide a structure for regulating conduct through disciplinary agencies. They are not designed to be a basis for civil liability.” (Internal quotation marks omitted.) Mozzochi v. Beck, 204 Conn. 490, 501 n.8, 529 A.2d 171 (1987), quoting Rules of Professional Conduct, Preamble (1986); see also Noble v. Marshall, 23 Conn. App. 227, 231, 579 A.2d 594 (1990) (“the Rules of Professional Conduct do not of themselves give rise to a cause of action, even as to an attorney’s client”). Accordingly, the court properly concluded that there was no merit to the plaintiffs’ claim that there is a material fact in dispute as to whether Braunstein breached the Rules of Professional Conduct.

Because the general partner had authority to enter into the revolving credit agreement and because the plaintiffs did not raise a genuine issue of material fact as to whether Sotavento had knowledge that the general partner did not have authority to do so, we conclude that the court properly found that there were no material facts in dispute with regard to the enforceability of the mortgage agreement.

The judgment is affirmed.

In this opinion the other judges concurred.

       The named plaintiff, Peter Standish, is joined in this appeal by a number of limited partners of Morningside Partners Limited Partnership.

       Only the defendant Sotavento filed a motion for summary judgment in the trial court and the plaintiffs appeal from the judgment of the court rendering summary judgment in favor of Sotavento. The remaining defendants, Charles P. Lemieux and Momingside Partners Limited Partnership, are not parties to this appeal.

       Sotavento’s principal officer is Samuel Braunstein. Braunstein is also a partner is the law firm of Braunstein & Todisco, LLC, and was counsel for Lemieux and Momingside.

       The trial court found: “Under the terms of the agreement, Sotavento would receive funds payable to Momingside. In return, Sotavento would disburse these funds to pay various debts owed by Morningside. Additionally, Sotavento extended a credit of $150,000 to Morningside to cover debts which the incoming moneys might not have covered.”

       The first count of the complaint alleged that the actions of Sotavento and Lemieux jeopardized the assets of Morningside and made property that was owned by Momingside subject to foreclosure. The plaintiffs further alleged in count one that “[i]t is unfair, inequitable and in violation of law for Sotavento to have the benefit of the note and mortgage referred to.” In the second count, the plaintiffs alleged that the actions of Lemieux and Sotavento constituted a violation of the Connecticut Unfair Trade Practices Act, General Statutes § 42-110a et seq.

       General Statutes (Rev. to 1995) § 34-47 provides in relevantpart: “Actions of partners. (1) Every partner is an agent of the partnership for the purpose of its business, and the act of every partner, including the execution in the partnership name of any instrument, for apparently carrying on in the usual way the business of the partnership of which he is a member binds the partnership, unless the partner so acting has in fact no authority to act for the partnership in the particular matter, and the person with whom he is dealing has knowledge of the fact that he has no such authority.

        “(2) An act of a partner which is not apparently for the carrying on of the business of the partnership in the usual way does not bind the partnership unless authorized by the other partners.

        * ** *
      “(4) No act of a partner in contravention of a restriction on authority shall bind the partnership to persons having knowledge of the restriction.”
      Section 34-47 was repealed by Public Acts 1995, No. 95-341, § 57, effective July 1, 1997.