author: SCHALLER, J.

text:
    DEBRA A. MARSHALL ET AL. v. GENEVIEVE MARSHALL, EXECUTRIX (ESTATE OF RAYMOND L. MARSHALL), ET AL. DEBRA A. MARSHALL v. GENEVIEVE MARSHALL, EXECUTRIX (ESTATE OF RAYMOND L. MARSHALL), ET AL.
    (AC 21945)
    (AC 21948)
    Schaller, Dranginis and Honnessy, Js.

      Submitted on briefs February 28 —
    officially released August 13, 2002

      Debra A. Marshall, pro se, the appellant (named plaintiff in both cases), filed a brief.

      Amy M. Stone and Frank N. Eppinger filed a brief for the appellee (named defendant in both cases).
   Opinion

SCHALLER, J.

The plaintiff Debra A. Marshall, the decedent’s daughter by a prior marriage, appeals from the judgments of the trial court concerning two separate appeals from decrees of the Probate Court for the district of Ledyard with respect to the will of the decedent, Raymond L. Marshall. The defendant Genevieve Marshall is the decedent’s wife, whom he named the executrix of his estate in his last will and testament. On appeal AC 21948, the plaintiff claims that the court (1) deprived her of due process of law by failing to hold an eviden-tiary hearing to determine whether her attorney had engaged in misconduct in having her first probate appeal stricken from the jury docket, (2) improperly denied her motion to restore the probate appeal to the jury docket, and (3) improperly denied the motion that she and the plaintiff Susan E. Marshall, the decedent’s niece, had filed seeking a continuance to obtain a new attorney. We affirm the judgments of the trial court.

The following facts are relevant to our resolution of the plaintiffs appeal. Upon the death of Raymond Marshall, the Probate Court admitted his will to probate and approved the defendant as executrix of his estate. The plaintiff appealed to the Superior Court from that decree and on November 1, 1996, claimed the case for a jury trial. In her appeal, the plaintiff contested the will, arguing that the defendant had unduly influenced the decedent and that this influence resulted in a will that did not accurately reflect his wishes. The plaintiff also objected to the defendant’s appointment as executrix and asserted that the defendant should not be named executrix because she had filed a criminal complaint against the decedent as a result of an incident that is not germane to the present appeal.

In addition to his will, Raymond Marshall also had executed a general power of attorney to Susan Marshall. The Probate Court, however, determined that the power of attorney was partially invalid. The Probate Court found the power of attorney valid only for the limited purpose of allowing Susan Marshall to raise funds to provide an attorney for the decedent prior to this death. Thereafter, the plaintiffs appealed to the Superior Court from that decision, which is the subject of AC 21945. The trial court consolidated the two appeals from probate on May 1, 1998, and the matter was placed on the complex litigation docket.

Subsequently, in the fall of 2000 and after the plaintiffs attorney was granted permission to withdraw from the first appeal from probate, the plaintiff learned that her attorney had withdrawn the case from the jury docket on April 14, 1998, without her permission and knowledge. After discovering that the case no longer was going to be tried to the jury, the plaintiff protested that situation to the court at a status conference on March 9, 2001, prior to trial. At the same conference, she also requested a continuance to obtain a new attorney. The court denied the request for a continuance. On the day of trial, both plaintiffs, appearing without counsel, filed a motion seeking (1) to have restored to the jury docket the plaintiffs appeal from the decision to admit the will to probate and approving the defendant as executrix, and (2) a continuance for the purpose of obtaining counsel. The court denied the motion and proceeded with the appeal.

Thereafter, in the first appeal from probate, the court upheld the order of the Probate Court admitting the will to probate and approving the defendant as executrix of the estate. In the second appeal from probate, the court upheld the order of the Probate Court that denied, in part, the accounting of Susan Marshall. The plaintiff thereafter filed separate appeals to this court, which we consolidated. Additional facts will be set forth as needed.

I

The plaintiff first claims that the court deprived her of her right to due process when it failed to hold an evidentiary hearing to determine whether her attorney had engaged in misconduct in withdrawing the first appeal from probate from the jury docket.

At the outset, we must first address a jurisdictional issue that is implicit in the plaintiffs claim. Specifically, we must determine whether the court had jurisdiction to hold such an evidentiary hearing. Because we determine that the court did not have jurisdiction to hold the evidentiary hearing, the claim must fail.

We first note the standard of review applicable to that issue and the relevant law. “The determination of whether subject matter jurisdiction exists is a question of law and, thus, our review is plenary.” Hultman v. Blumenthal, 67 Conn. App. 613, 615, 787 A.2d 666, cert. denied, 259 Conn. 929, 793 A.2d 253 (2002). Furthermore, with regard to appeals from probate, our case law states that “[a]n appeal from a probate order or decree to the Superior Court is not a civil cause of action. It has no more of the ordinary attributes of a civil action than the original proceedings in the court of probate. . . . [A]ppeals from probate are not civil actions because it has always been held that the Superior Court, while hearing appeals from probate, sits as a court of probate and not as a constitutional court of general or common-law jurisdiction. It tries the questions presented to it de novo, but in so doing it is . . . exercising a special and limited jurisdiction conferred on it by the statute authorizing appeals from probate.

“In a probate appeal, the Superior Court cannot consider events that occurred after the issuance of the order or decree appealed from. . . . The appeal brings to the Superior Court only the order appealed from. The order remains intact until modified by a judgment of the Superior Court after a hearing de novo on the issues presented for review by the reasons of appeal. . . . The Superior Court may not consider or adjudicate issues beyond the scope of those proper for determination by the order or decree attacked. . . . Inasmuch as the motion for the appeal is made in the Court of Probate and forms a part of the proceedings in that court, no amendment to it may be made in the Superior Court. The Superior Court, therefore, cannot enlarge the scope of the appeal.” (Citations omitted; internal quotation marks omitted.) Silverstein’s Appeal from Probate, 13 Conn. App. 45, 53-54, 534 A.2d 1223 (1987).

“In a probate appeal . . . the Superior Court’s jurisdiction is statutory and limited to the order appealed from. The issues presented for review are those defined in the reasons of appeal. The Superior Court cannot consider or adjudicate issues beyond the scope of those proper for determination by the order or decree attacked. This is so even with the consent of the parties to the appeal because the court has subject matter jurisdiction limited only to the order or decree appealed from.” Id., 58.

In the present case, the plaintiff requested that the court hold an evidentiary hearing to determine whether her attorney had engaged in misconduct in withdrawing her case from the jury docket without her consent or knowledge. In accordance with the jurisdictional test previously set forth, however, we conclude for two reasons that the trial court did not have jurisdiction to consider that issue, and, therefore, could not properly hold such a hearing. First, the court did not have jurisdiction to hold the hearing because the misconduct issue arose after the issuance of the decree from which the appeal was brought. Specifically, counsel withdrew the case from the jury docket in April, 1998, well after the Probate Court had issued its decree. Therefore, the question of whether her attorney had engaged in misconduct arose subsequent to the issuance of the probate order. The court in this case could not entertain that issue because, in accordance with Silverstein’s Appeal from, Probate, it could not consider events that occurred after the issuance of the order from which the appeal was brought.

Second, the court did not have jurisdiction to hold the hearing because the issue of whether counsel had engaged in misconduct went well beyond the subject of the appeal. Specifically, the plaintiff appealed from the admission of the will to probate and the approval of the defendant as executrix. As a result, those issues defined the scope of the Superior Court’s jurisdiction. The issue of whether counsel committed misconduct by withdrawing the case from the juiy docket was in no way related to the subjects of the appeal. The court, therefore, had no jurisdiction to consider this issue. As stated in Silverstein’s Appeal from, Probate, the Superior Court cannot consider or adjudicate issues beyond those related to the decree attacked in the appeal because an appeal from probate brings only the order appealed from to the Superior Court.

Because we conclude that the court did not have jurisdiction to consider whether the plaintiffs attorney had committed misconduct, she cannot prevail on her claim that the failure to hold an evidentiary hearing on this matter denied her due process of law.

II

The plaintiffs second claim is that the court improperly denied her motion to restore the first appeal from probate to the jury docket. She argues that the court should have restored the case to the jury docket because her attorney removed the case without her knowledge or permission and that it was not her intention to waive her right to a jury trial.

At the outset, we note that we review the court’s decision to restore a case to the jury docket under an abuse of discretion standard. Sicaras v. Hartford, 44 Conn. App. 771, 779, 692 A.2d 1290 (“whether a case should be restored to the docket is one of judicial discretion”), cert. denied, 241 Conn. 916, 696 A.2d 340 (1997). We farther note, as a prehminary matter, that the plaintiff states in her brief that her right to a jury trial was “violated” and that the court’s refusal to restore the case to the jury docket “deprived” her of that right. Despite the plaintiffs focus on her right to a jury trial, our review of the procedural history leads us to conclude that the plaintiffs right to a jury trial was not violated nor was she deprived of that statutory right. Specifically, it is undisputed that the plaintiff claimed her appeal from the probate decree to the jury docket as she was entitled to do pursuant to General Statutes § 52-215. The case then was placed on the jury docket in accordance with the plaintiffs request. Having been so placed, we conclude that the plaintiffs right was not violated and that she was in no way deprived of her right to have the case tried to a jury. Instead, she was provided the full benefit of the statute.

When viewed in that light, it is evident that the genesis of the plaintiffs problem is not rooted in the exercise of her right under § 52-215, but rather in her attorney’s decision to withdraw the case from the jury docket. The pertinent issue, therefore, is whether it was improper for the court to refuse to restore the case to the jury docket after it had been withdrawn by her attorney.

We conclude that it was not improper for the court to refuse to restore the case to the jury docket under those circumstances. We reach that conclusion because “[t]he general rule is that parties are bound by the procedural acts of their counsel. ... An attorney of record has implied authority to do everything necessary in the course of an action and his acts are binding upon the client.” (Citations omitted.) Shuster v. Buckley, 5 Conn. App. 473, 479, 500 A.2d 240 (1985). Given that rule and the fact that attorneys make many procedural decisions on a daily basis that are binding on their clients, we cannot conclude that the court abused its discretion in refusing to restore the case to the jury docket once it had been withdrawn therefrom by counsel of record.

Moreover, the court’s decision cannot be construed as an abuse of discretion given the context and procedural history of this case. Specifically, the plaintiff discovered that her case had been withdrawn from the jury docket sometime in the fall of 2000, but she did not file a motion to restore the case to the jury docket until the first day of trial, April 24, 2001. Because she was aware of that situation for roughly seven months and could have acted on it at the status conference or at any time prior to the start of the trial, the court did not abuse its discretion in denying her motion on the first day of the trial. In addition, the court’s decision was not an abuse of discretion because it had to consider the fact that the plaintiffs motion on the first day of trial, if granted, would have significantly delayed the trial and disrupted the court’s trial calendar. This case was on the complex litigation docket, and as the court informed the plaintiffs when it also ruled on the motion for a continuance on the first day of trial, the trial docket had been scheduled two years in advance. In light of those factors, we cannot conclude that the court’s decision was an abuse of discretion.

Despite the plaintiffs claimed lack of knowledge or consent, her attorney’s actions were binding on her, and it was within the court’s discretion to decline to restore the case to the jury docket.

Ill

The plaintiffs’ last claim is that the court improperly denied her motion for a continuance on the first day of trial, which she filed so that she could obtain a new attorney.

At the outset, we note our standard of review. “A trial court holds broad discretion in granting or denying a motion for a continuance. Appellate review of a trial court’s denial of a motion for a continuance is governed by an abuse of discretion standard that, although not unreviewable, affords the trial court broad discretion in matters of continuances. ... An abuse of discretion must be proven by the appellant by showing that the denial of the continuance was unreasonable or arbitrary.” (Internal quotation marks omitted.) DiStefano v. DiStefano, 67 Conn. App. 628, 631, 787 A.2d 675 (2002). “Decisions to grant or to deny continuances are very often matters involving judicial economy, docket management or courtroom proceedings and, therefore, are particularly within the province of a trial court.” In re Shaquanna M., 61 Conn. App. 592, 604, 767 A.2d 155 (2001).

In the present case, the plaintiff twice sought a continuance and was denied both times by the court. In ruling on the motion on the first day of trial, the court asked the plaintiff how long of a continuance she was requesting. The plaintiff stated that she needed at least one month. The court replied that it was “booked for two years straight after this month, unless something [is] settled.” In denying the motion, the court stated further that “[t]here has been more than ample time for the retention of a lawyer in this case. And I simply will not permit last minute attempts to get a lawyer to grind the effective management of the cases on this docket to a shuddering halt. So we will proceed.” When the plaintiff stated that she would appeal from that decision, the court stated: “This case was scheduled for a trial before a year ago or more, when you did not have a lawyer, and you were urged to get a lawyer. I told you—I told you over a month ago, six or seven weeks ago, that you couldn’t have a continuance. If you were going to get a lawyer, you had better do it quick. And our court officer had a call only just before Easter from one lawyer and last week from another. So, obviously, you dragged your feet until the last minute, and I’m not going to reward that behavior with a continuance when you have had so much more notice than people usually get about when their case is going to be tried.”

The court did not abuse its discretion in denying the motion for a continuance. As we have stated, matters of judicial economy, docket management and control of courtroom proceedings are particularly within the province of a trial court. In the present case, we conclude that the court properly exercised its discretion with regard to all three considerations. It is clear that a continuance for one month would have disrupted the trial court’s complex litigation docket. Moreover, as the court correctly noted, the plaintiff had been without a lawyer for roughly one year. She had ample time to find representation. The plaintiff also was made aware of the pressing need to find counsel roughly seven weeks prior to trial when the court denied the motion for a continuance at the status conference. Under those circumstances, the plaintiff has faded to establish that the court’s denial of the continuance was unreasonable or arbitrary. The court acted properly within its discretion.

The judgments are affirmed.

In this opinion the other judges concurred.

       Susan E. Marshall also is a plaintiff in the appeal from probate that is the subject of AC 21945. Because only Debra A. Marshall has appealed from the judgments of the trial court, we refer in this opinion to her as the plaintiff.

       We refer in this opinion to the named defendant executrix as the defendant.

       It appears from the transcript that despite her general protestations, the plaintiff, at the time of the status conference, did not file any specific motion with regard to the case having been stricken from the jury docket.

       General Statutes § 52-215 provides in relevantpart: “In the Superior Court a docket shall be kept of all cases. In such docket immediately following the names of the parties and their attorneys in all jury cases shall be entered the word ‘jury’. The following-named classes of cases shall be entered in the docket as jury cases upon the written request of either party made to the clerk within thirty days after the return day: Appeals from probate involving the validity of a will or paper purporting to be such . . .

       As noted in footnote 3, the plaintiff protested the situation to the court at the March 9, 2001 status conference, but did not file a motion for restoration at that time.

       In her brief, the plaintiff also states that “owing to the unusual nature of these cases as trials without partners, it may well be that plaintiffs’ claims should be reviewed under the plain error doctrine.” Because we conclude that there was no abuse of discretion, we need not address that assertion.

       The plaintiff in her brief does not indicate whether she takes issue with the court’s denial of her request for a continuance at the status conference or the denial at trial. We will address the court’s decision that was made on the first day of trial, as that was its final ruling on the issue.


source: Caselaw Access Project

author: DRANGINIS, J.

license: Public Domain

text:
    RICCARDO I. AMBROGIO v. BEAVER ROAD ASSOCIATES ET AL.
    (AC 21448)
    Foti, Dranginis and Flynn, Js.
    Argued February 13 —
    officially released August 20, 2002

      Richard S. Order, with whom, on the brief, was Donald C. Mahoney, for the appellant (plaintiff).

      Thomas P. Chapman, with whom, on the brief, were John L. Hayes and Robyn L. Sondak, for the appellee (defendant Paul DiMascio Construction Company, Inc.).
   Opinion

DRANGINIS, J.

The plaintiff, Riccardo I. Ambrogio, appeals from the summary judgment rendered by the trial court in his favor but awarding him no damages after the court granted the motion in limine filed by the defendant Paul DiMascio Construction Company, Inc., which precluded the plaintiff from arguing for lost profits and thereby effectively negated his proof of damages in this breach of contract action. Specifically, the plaintiff contends that the court improperly resolved factual issues that were not before it when it decided the motion in limine, thus removing those issues from the jury’s consideration. We agree and reverse in part the judgment of the trial court.

The following facts and procedural history are not in dispute. The plaintiff, an oral surgeon, leased office space at 20-30 Beaver Road in Wethersfield. The lease, which was for a period of ten years with two options to renew for additional terms of five years, stated that the premises were “to be used for a dental/oral and maxillofacial surgery practice in accordance with the normal work program of Riccardo I. Ambrogio and/or associates and for no other purposes.”

Shortly after signing the lease, the plaintiff entered into an agreement with the defendant, a general contractor, for the construction of his office. As part of the contract, the defendant agreed to “secure and provide ... all the materials necessary and perform or cause to be performed all the work necessary for the completion of improvements to the Premises ... in accordance with the General Specifications” and that “[a]ll work shall be done in a good and workmanlike manner, using experienced labor and first-quality materials as per the specifications.”

The defendant thereafter contracted with Z-Florz, Inc., to install the flooring in the plaintiffs two surgical rooms. The floors, Forbo Forshaga AB smaragd sheet vinyl flooring with Forbo’s heat welding system, were to be installed in accordance with the manufacturer’s instructions to ensure coverage under the manufacturer’s five year warranty. Z-Florz, Inc., installed the surgical flooring, and the plaintiff opened his practice on November 16, 1992.

Several months after opening his practice, the plaintiff noticed “moisture seepage, slippery conditions, offensive odors and bubbling in the flooring in the surgical areas of the office.” As a result, unsafe and unhealthy conditions caused the plaintiff to close one of the surgical rooms.

The plaintiff subsequently discovered that improper ventilation of the concrete slab under the flooring had caused the seepage problem. Attempts by the plaintiff to rectify the condition of the surgical room floors were to no avail and the plaintiff brought this action. He claimed that the defendant had breached its contractual duty by failing to properly supervise the installation of the flooring in his office.

After filing this action, the plaintiff notified the defendant that he intended to call two expert witnesses to testily during the trial, Michael C. Matzkin, a dentist, and Conrad A. Kappel, a certified public accountant. Matzkin and Kappel were to testify as to the projected growth of the plaintiffs practice and the profits that were lost as a result of the defective installation of the flooring in the surgical rooms. Prior to the date the trial was to begin, the defendant filed a motion in limine seeking to preclude the plaintiff from introducing any evidence “which [purports] to show that the plaintiff lost patients, lost patient referrals or lost business growth opportunities as elements of his damages.” It was the defendant’s contention that “[l]ost business and loss of business opportunities are not included in the measure of damages for the breach of a construction contract.”

Following a hearing, the court granted the defendant’s motion, precluding the plaintiffs witnesses from testifying. The plaintiff filed a motion to reargue, claiming that the court had decided an issue that was not before it, namely, whether lost profits were an appropriate remedy in this specific case. The court denied the motion. The plaintiff then filed a motion for summary judgment as to liability only, which the court granted. This appeal followed.

“A trial court may entertain a motion in limine made by either party regarding the admission or exclusion of anticipated evidence. . . . The judicial authority may grant the relief sought in the motion or such other relief as it may deem appropriate, may deny the motion with or without prejudice to its later renewal, or may reserve decision thereon until a later time in the proceeding. Practice Book § 42-15. This court has said that [t]he motion in limine . . . has generally been used in Connecticut courts to invoke a trial judge’s inherent discretionary powers to control proceedings, exclude evidence, and prevent occurrences that might unnecessarily prejudice the right of any party to a fair trial. . . .

“Generally, [t]rial courts have wide discretion with regard to evidentiary issues and their rulings will be reversed only if there has been an abuse of discretion or a manifest injustice appears to have occurred. . . . Every reasonable presumption will be made in favor of upholding the trial court’s ruling, and it will be overturned only for a manifest abuse of discretion.” (Citations omitted; internal quotation marks omitted.) State v. Holmes, 64 Conn. App. 80, 85, 778 A.2d 253, cert. denied, 258 Conn. 911, 782 A.2d 1249 (2001).

As we previously stated, the defendant’s motion in hmine was premised on the basis that lost profits “are not included in the measure of damages for the breach of a construction contract.” In its objection to the defendant’s motion, the plaintiff focused on the question that the defendant had presented to the court, arguing that lost profits were an appropriate remedy in breach of construction contract cases. In its reply to the plaintiffs objection, the defendant, for the first time, claimed that “if [the trial court was] to accept the plaintiffs argument that Hadley v. Baxendale, [9 Ex. 341, 354, 156 Eng. Rep. 145 (1854)] applies, [the court] must then consider what damages were reasonably foreseen by the parties when they executed their contract.”

During the hearing on the defendant’s motion, the plaintiff, without contradiction from the court or from the defendant’s counsel, stated that the issue of whether lost profits reasonably were contemplated by both parties at the time they entered into the contract was not before the court, but was a question of fact to be determined by a jury. Further, it was the defendant’s position during the hearing that “lost profits in this case or in any construction defect case are not an appropriate measure of damages.” The court, however, in its memorandum of decision, stated that the issue before it was “whether lost profits in the form of loss of patients, loss of patient referrals and loss of business growth were reasonably foreseeable as a measure of damages by [the plaintiff] and [the defendant] at the time they entered into their contract.”

In granting the defendant’s motion, the court held: “Applying the rule in [Hadley v. Baxendale, supra, 9 Ex. 354] to the present case, the court concludes that [the defendant] could not reasonably have contemplated lost profits as a measure of damages in the event it were to breach the building agreement. Also, lost patients, lost patient referrals and loss of business growth are not losses of the type usually resulting from a general contractor’s breach of contract for failure to properly inspect, direct and supervise a subcontractor’s installation of flooring. The contract does not state that [the defendant] was aware of special circumstances at the time of contracting, and, therefore, [the defendant] cannot reasonably be supposed to have foreseen liability for lost profits in the event of breach. The widely accepted case of Hadley v. Baxendale [supra, 9 Ex. 354] supports this court’s preclusion of evidence on the ground that [the plaintiffs] alleged loss of patients, loss of patient referrals and loss of business growth was not reasonably foreseeable by [the defendant] at the time of contracting.”

The court correctly held that lost profits are a remedy available to a plaintiff in a breach of construction contract case. “The general rule in breach of contract cases is that the award of damages is designed to place the injured party, so far as can be done by money, in the same position as that which he would have been in had the contract been performed. ... It has traditionally been held that a party may recover general contract damages for any loss that may fairly and reasonably be considered [as] arising naturally, i.e., according to the usual course of things, from such breach of contract itself. . . . This court has consistently applied the general damage formula of Hadley v. Baxendale, [supra, 9 Ex. 354] to the recovery of lost profits for breach of contract, and it is our rule that [u]nless they are too speculative and remote, prospective profits are allowable as an element of damage whenever their loss arises directly from and as a natural consequence of the breach.” (Internal quotation marks omitted.) Torosyan v. Boehringer Ingelheim Pharmaceuticals, Inc., 234 Conn. 1, 32, 662 A.2d 89 (1995). “The usual recovery for breach of a contract is the contract price or the lost profits therefrom.” (Emphasis added.) Gazo v. Stamford, 255 Conn. 245, 265, 765 A.2d 505 (2001).

The court, however, improperly applied the principles of Hadley v. Baxendale, supra, 9 Ex. 341, to determine that lost profits were not a reasonably foreseeable remedy in this particular case. Whether lost profits were available in this case was not before the court. The motion in limine sought to have expert witnesses excluded on the theory that lost profits “are not included in the measure of damages for the breach of a construction contract.” During oral argument before this court, the defendant agreed that the issue before the trial court was “whether lost damages were appropriate in this kind of case.” (Emphasis added.) The trial court was not asked to decide the question of whether it was reasonably foreseeable that the defendant, in this case, contemplated lost profits as a measure of damages in the event the contract was breached.

It appears that the court, in applying the principles of Hadley v. Baxendale, supra, 9 Ex. 354, interpreted the language of the contract to preclude the awarding of lost profits. In its memorandum of decision, the court stated that “ ‘[i]t is axiomatic that a party is entitled to rely upon its written contract as the final integration of its rights and duties. . . . Where there is definite contract language, the determination of what the parties intended by their contractual commitments is a question of law.’ ” We have noted that “[w]here . . . there is clear and definitive contract language, the scope and meaning of that language is not a question of fact but a question of law.” (Internal quotation marks omitted.) Wren v. MacPherson Interiors, Inc., 69 Conn. App. 349, 354, 794 A.2d 1043 (2002). That, however, is not the case here.

Even if the issue of whether damages were foreseeable in this particular case had been properly before the trial court at that stage of the proceedings, the finding that damages could not be awarded would have been improper in light of the fact that the court had only three pages of the seven page contract before it. More importantly, the court did not have a copy of the “outline specifications” that were incorporated into the contract. The contract specifically stated that “[t]he work is to be completed in such a manner as to comply fully with the General Specifications and any changes made thereto.” The outline specifications provided the special instructions with which the flooring installation in the surgical rooms needed to comply, namely, that it had to be installed in accordance with the manufacturer’s instructions to ensure coverage under the five year warranty. The manufacturer’s instructions stated that “[i]t was most important that sub-surfaces be thoroughly DRY and free of moisture prior to installation of Smaragd. Maximum content of moisture 2.5%.” The specifications put the defendant on notice of the special conditions required to install the flooring and that this flooring was atypical. Without having a complete copy of the contract, along with the incoiporated specifications, the court was not in a position accurately to construe the terms of the contract. The court decided that the specialized circumstances of the flooring were not in the contemplation of both parties at the time the contract was entered into without having the specific provisions of the contract that related to the flooring’s installation.

By going beyond the issue raised in the motion in limine, the court entered into the province of the fact finder. The court decided a question of fact when it held that the defendant “could not reasonably have contemplated lost profits as a measure of damages in the event he were to breach the building agreement.” “The determination as to whether future profits were within the contemplation of the parties when contracting necessarily turns on the specific facts established at trial.” Mid-America Tablewares, Inc. v. Mogi Trading Co., 100 F.3d 1353, 1362 (7th Cir. 1996). Without having the complete contract, the court could not determine that the parties did not contemplate lost profits as a measure of damages in this case. Accordingly, the trial court improperly concluded that lost profits were not allowable.

The judgment is reversed in part and the case is remanded for a hearing in damages.

In this opinion the other judges concurred.

       The other defendants, Beaver Road Associates, Rosario S. Mangiafico, Robert H. Tabshey, John Palazzo and Z-Florz, Inc., are not involved in this appeal. We therefore refer to Paul DiMascio Construction Company, Inc., as the defendant.

       Subsequent, testing revealed that the moisture content was between 15 percent and 20 percent.

       The plaintiff claims that the tests required to determine whether the concrete slab was suitable for the specialized flooring were not performed before Z-Florz, Inc., installed the floors.


author: FOTI, J.

text:
    STATE OF CONNECTICUT v. ALLAN NICHOLSON
    (AC 22834)
    Foti, Dranginis and Healey, Js.
    Argued May 28 —
    officially released August 20, 2002

      Daniel J. Krisch, special public defender, with whom were Michael S. Taylor and, on the brief, Trenton C. Haas, legal intern, for the appellant (defendant).

      John A. East III, assistant state’s attorney, with whom, on the brief, were John A. Connelly, state’s attorney, and Eva B. Lenczewski, assistant state’s attorney, for the appellee (state).
   Opinion

FOTI, J.

The defendant, Allan Nicholson, appeals from the judgment of conviction, rendered after a jury trial, of robbery in the first degree in violation of General Statutes § 53a-134 (a) (3) and of being a persistent serious felony offender in violation of General Statutes (Rev. to 1999) § 53a-40 (b). On appeal, the defendant claims that (1) the evidence was insufficient to sustain his conviction, beyond a reasonable doubt, of robbery in the first degree, (2) the trial court abused its discretion when it permitted the state to amend the second part of the information charging him as a persistent serious felony offender and (3) he was deprived of his constitutional right to a speedy trial. On the basis of our resolution of the defendant’s first claim, we reverse the judgment of the trial court in part, but affirm the judgment in all other respects.

The jury reasonably could have found the following relevant facts. Prior to the events underlying this appeal, the defendant was convicted of a felony, namely, robbery in the first degree. Upon his release from prison, the defendant supplemented his income from lawful employment by selling illegal drugs. On February 17, 1999, at about 4:30 p.m., the defendant, after drinking a quantity of vodka, entered a Kentucky Fried Chicken restaurant located in Waterbury. Upon entering, the defendant walked directly across the restaurant. He passed through a doorway that separated the kitchen area from the rest of the restaurant and entered the kitchen work area behind the cash registers. In doing so, he passed by Margaret Powell, the cashier working at the counter, and several customers.

The defendant approached Barry Southworth, an assistant manager, who was working behind the counter. With his left hand, the defendant grabbed Southworth’s left arm and positioned himself so that his face was close to Southworth’s. The defendant stated, “[0]pen the drawer, give me the money or I’m going to hurt you real bad.” The defendant kept his right hand in the pocket of his sweatshirt, causing his pocket to protrude outward. By doing so, the defendant gave Southworth the impression that he may have possessed a knife, gun or other weapon in his pocket.

Southworth opened the cash register and removed some of the money contained therein totaling less than one hundred dollars. The defendant grabbed the money with his left hand and stuck it into his sweatshirt pocket. The defendant then calmly exited the restaurant. In addition to Southworth and Powell, Angela Williams, another assistant restaurant manager, who had been working in a rear office, witnessed all or part of the incident by means of video cameras that relayed images to a monitor in her office. None of these witnesses ever observed a weapon in the defendant’s possession.

After the defendant left the restaurant, Powell called the Waterbury police department to report the incident. Upon leaving the restaurant, the defendant went to the department of children and families (department) building, which is located about 100 yards from the restaurant. Williams and an acquaintance, who had been in the restaurant at that time, followed the defendant. Williams called to the defendant and told him, “Give me back my money.” The defendant did not respond to Williams; he continued to run away from the restaurant. Williams observed the defendant enter the department building and converse with a woman therein. Shortly thereafter, Williams flagged down police officers who responded to the crime scene. On the basis of Williams’ identification, officers apprehended the defendant as he exited the department building. Upon taking the defendant into custody, officers discovered that he had a razor knife or box cutter in his right sweatshirt pocket. The woman with whom the defendant had been conversing possessed a crumpled wad of cash in the amount of eighty-nine dollars.

At trial, the defendant testified that, about four days prior to the incident, he sold Southworth illegal drugs and that Southworth had not paid him for the drugs. He admitted that he asked Southworth for his money and that after Southworth had removed cash from the register, he “snatched” it from his hand. The defendant also testified that, after he had left the restaurant, he gave the money to his girlfriend, who was in the department building, and that he was unaware that Williams had been observing him. Additional facts will be set forth as necessary in the context of the defendant’s claims.

I

The defendant first claims that the evidence presented was insufficient to support his conviction of robbery in the first degree under § 53a-134 (a) (3) because the state failed to prove beyond a reasonable doubt that he used or threatened the use of a dangerous instrument, to wit a box cutter razor, as required by the statute. We agree.

“When reviewing a claim of insufficiency of evidence, our task is twofold: We first review the evidence presented at trial, construing it in the light most favorable to sustaining the facts expressly found by the trial court or impliedly found by the jury. We then decide whether, upon the facts thus established and the inferences reasonably drawn therefrom, the trial court or the jury could reasonably have concluded that the cumulative effect of the evidence established the defendant’s guilt beyond a reasonable doubt.” (Internal quotation marks omitted.) State v. Lavigne, 57 Conn. App. 463, 468, 749 A.2d 83 (2000).

“It is well settled that in reviewing a defendant’s challenge to a verdict based on insufficient evidence, we defer to the jury. . . . We do not sit as a [seventh] juror who may cast a vote against the verdict based upon our feeling that some doubt of guilt is shown by the cold printed record. We have not had the jury’s opportunity to observe the conduct, demeanor, and attitude of the witnesses and to gauge their credibility. . . . The scope of our factual inquiry on appeal is limited. This court cannot substitute its own judgment for that of the jury if there is sufficient evidence to support the jury’s verdict. . . . [T]he relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational tier of fact could have found the essential elements of the crime beyond a reasonable doubt.” (Citations omitted; emphasis in original; internal quotation marks omitted.) State v. Young, 56 Conn. App. 831, 835-36, 746 A.2d 795, cert. denied, 253 Conn. 904, 753 A.2d 939 (2000).

“While the jury must find every element proven beyond a reasonable doubt in order to find the defendant guilty of the charged offense, each of the basic and inferred facts underlying those conclusions need not be proved beyond a reasonable doubt. ... If it is reasonable and logical for the jury to conclude that a basic fact or an inferred fact is true, the jury is permitted to consider the fact proven and may consider it in combination with other proven facts in determining whether the cumulative effect of all the evidence proves the defendant guilty of all the elements of the crime charged beyond a reasonable doubt.” (Internal quotation marks omitted.) State v. Bell, 68 Conn. App. 660, 665, 792 A.2d 891, cert. denied, 260 Conn. 921, 797 A.2d 518 (2002).

It is clear that the evidence was sufficient to prove beyond a reasonable doubt that the defendant committed a larceny at the time, date and place alleged, and that he threatened the use of immediate physical force on Southworth. The evidence, however, was not sufficient to demonstrate that the defendant threatened to inflict such immediate physical force by means of a dangerous instrument, that is, a box cutter razor, as alleged in the information pursuant to § 53a-134 (a) (3).

Section 53a-134 (a) (3) applies when a defendant “uses or threatens the use of a dangerous instrument . . . .” That section is unlike § 53a-134 (a) (4), which applies when a defendant “displays or threatens the use of what he represents by his words or conduct to be a pistol, revolver, rifle, shotgun, machine gun or other firearm . . . .” The issue in this case is not whether the seized box cutter razor is a dangerous instrument, but whether the evidence showed that the defendant used or threatened to use it. It is not relevant to our inquiry whether the defendant was actually armed during the crime, as it is possible to be armed, or in possession of a dangerous instrument such as the box cutter razor, without either using or threatening to use of that instrument. See State v. Dolphin, 203 Conn. 506, 518, 525 A.2d 509 (1987).

We inteipret subdivision (3) of § 53a-134 (a) to require either the actual use of a dangerous instrument, or its threatened use, demonstrated by either an actual display or words combined with an overt display of the threatened instrument. A conviction pursuant to § 53a-134 (a) (3) cannot stand if the evidence merely shows that the defendant was armed with a dangerous instrument, or that he gave the impression by his words or conduct that he was armed with a dangerous instrument. Viewed in the light most favorable to sustaining the verdict, the evidence adduced at trial demonstrated that the defendant kept his right hand in his pocket and said words to the effect of “give me the money or I’ll hurt you real bad.” The impression that the defendant gave that he had something in his right front pocket was insufficient to prove the commission of the crime as charged. Likewise, the defendant’s words, either considered alone or with the impression he created by his conduct, did not satisfy the statutory requirement that the defendant used or threatened to use the box cutter razor.

Although we reverse the conviction of robbery in the first degree because the evidence was insufficient on the element of the “use or threatened the use of a dangerous instrument,” we conclude that the jury necessarily would have found the defendant guilty of the lesser charge of robbery in the third degree in violation of General Statutes § 53a-136, had it considered such charge. See State v. Aleksiewicz, 20 Conn. App. 643, 650-51, 569 A.2d 567 (1990). Accordingly, we will set aside the judgment and remand the case to the trial court with direction to render a judgment of conviction of robbery in the third degree and to resentence the defendant accordingly.

II

The defendant next claims that the court abused its discretion in allowing the state to amend the second part of the information without first affording him a hearing in probable cause. We disagree.

The following procedural history underlies this claim. The state originally charged the defendant, in the first part of a long form information, with the crime of robbery in the first degree and, in second part of the information, with having committed two prior felonies, namely, robbery in the first degree, on two separate occasions. After the jury convicted the defendant on the underlying robbery charge, the defendant made an oral motion to dismiss the second part of the information. The gist of the defendant’s argument at the subsequent hearing on that motion was that because a conviction on the underlying robbery charge and a conviction under the second part of the information exposed him to a possible term of life imprisonment, he was both constitutionally and statutorily entitled to a hearing in probable cause. He further pointed out that the court had failed to afford him such a hearing. The court agreed that the defendant should have been afforded a hearing in probable cause, but denied the motion because the defendant was seeking to dismiss the second part of the information in its entirety. The court suggested that the state amend the second part of the information to reflect a single predicate conviction, thereby exposing the defendant to a maximum forty years imprisonment rather than a term of life imprisonment.

Thereafter, the state amended the second part of the information to charge the defendant with a single predicate conviction.* The defendant filed a motion to dismiss this amended second part of the information. On August 9, 2000, the court denied the defendant’s motion. On August 30, 2000, the state again amended the second part of the information, charging the defendant as a persistent serious felony offender with a single predicate felony conviction for robbery in the first degree on September 15,1985. Later on August 30,2000, a jury returned a guilty verdict as to the second part of the information.

“Although prosecutors enjoy broad discretion in deciding what offenses to charge, that discretion is not unlimited.” State v. Salgado, 257 Conn. 394, 406, 778 A.2d 24 (2001). Practice Book § 36-18 limits the state’s ability to amend substantively an information after the commencement of trial.* *** “Practice Book § 624 [now § 36-18] is primarily a notice provision. Its purpose is to ensure that the defendant has adequate notice of the charges against which he must defend.” (Internal quotation marks omitted.) State v. Rodriguez, 69 Conn. App. 779, 793, 796 A.2d 611, cert. denied, 260 Conn. 938, 802 A.2d 91 (2002).

In the present case, the defendant does not claim that the state lacked the authority to amend the information, but that the court abused its discretion in allowing the state to amend the second part of the information. He argues that the original second part of the information was invalid as a matter of law because the court did not conduct a hearing in probable cause, and he posits that the amended information charged him with an additional offense. We do not agree. We note at the outset that persistent offender status alleged in the second part of the information did not create a separate substantive offense. The information alleged the applicability of a sentence enhancement provision. See State v. Sanko, 62 Conn. App. 34, 42-44, 771 A.2d 149, cert. denied, 256 Conn. 905, 772 A.2d 599 (2001). Accordingly, the state did not charge the defendant with an additional or different offense by means of its amended second part of the information.

“It is within the trial court’s discretion to allow an amendment to the information. On appeal, review of the trial court’s decision to permit an amendment to the information is one of abuse of discretion.” State v. Prat, 66 Conn. App. 91, 99, 784 A.2d 367 (2001). “Every reasonable presumption should be made in favor of the correctness of the court’s ruling in determining whether there has been an abuse of discretion.” (Internal quotation marks omitted.) State v. Valentine, 255 Conn. 61, 69, 762 A.2d 1278 (2000). “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.” (Internal quotation marks omitted.) Durso v. Aquilino, 64 Conn. App. 469, 472, 780 A.2d 937 (2001).

We note that the defendant does not claim, nor can he, that he lacked notice of the state’s intent to seek an enhanced penalty. Instead, he argues that the court should have dismissed the second part of the information and not have permitted the state to amend it. He argues that by permitting the state to amend the second part of the information to charge one predicate conviction rather than two, the court gave the state “a second bite at the apple.” The defendant claims that because the original second part of the information was “invalid as a matter of law,” for the reasons set forth in his motion to dismiss, allowing the amendment “permitted the state to subject him to an enhanced penalty for a charge that, in effect, constituted an additional offense.”

We conclude, as did the trial court, that the defendant’s challenge to the amended information fails because the state’s failure to afford him a hearing in probable cause did not cause him harm. Once the state amended the information, the defendant no longer faced the possibility of a life sentence. It is well settled that a hearing in probable cause is a prerequisite to the prosecution for any crime punishable by death or life imprisonment. See Conn. Const., art. I, § 8; General Statutes § 54-46.

Furthermore, the defendant had ample notice of the more serious information and was later advised on the less serious second part of the information. We do not agree that the defendant was prejudiced by the court’s action and conclude that the action complained of did not constitute an abuse of discretion.

Ill

The defendant finally claims that he was deprived of his constitutional right to a speedy trial because sixteen months intervened between his arraignment and the commencement of trial. We disagree.

The record discloses the following additional facts. On February 18, 1999, the defendant was arraigned on the underlying robbery charge. On June 15, 2000, during jury selection, the defendant submitted a written pro se motion to dismiss, alleging a violation of his right to a speedy trial. Although counsel represented him, the defendant complained that counsel had been inactive during the sixteen month interval and negligent in not filing a motion for a speedy trial. At no time did the defendant seek to remove his counsel.

The court denied the defendant’s motion to dismiss. The court noted, in an articulation, that “[t]he defendant conceded that no motion for speedy trial had ever been filed in the instant case nor in either of the two other cases which were then pending against him.” The court concluded that the defendant had failed to comply with Practice Book § 43-41 and further concluded that the delay complained of did not prejudice him.

“The determination of whether a defendant has been denied his right to a speedy trial is a finding of fact, which will be reversed on appeal only if it is clearly erroneous. . . . The trial court’s conclusions must stand unless they are legally and logically inconsistent with the facts. . . . Although the right to a speedy trial is fundamental, it is necessarily relative, since a requirement of unreasonable speed would have an adverse impact both on the accused and on society.” (Citation omitted; internal quotation marks omitted.) State v. Lacks, 58 Conn. App. 412, 417, 755 A.2d 254, cert. denied, 254 Conn. 919, 759 A.2d 1026 (2000).

Insofar as the defendant claims that the court improperly denied his motion to dismiss on speedy trial grounds, we conclude that the court properly found that the defendant lacked the right to move to dismiss the charges against him under Practice Book § 43-41. Section 43-41 provides in relevant part: “If the defendant is not brought to trial within the applicable time limit set forth in Sections 43-39 and 43-40, and, absent good cause shown, a trial is not commenced within thirty days of the filing of a motion for speedy trial by the defendant at any time after such time limit has passed, the information shall be dismissed with prejudice, on motion of the defendant filed after the expiration of such thirty day period. . . .” It is plainly evident from this language that, before a defendant may move for dismissal on speedy trial grounds, he or she must first file a motion for a speedy trial. In addition, Practice Book § 43-41 provides in relevant part: “Failure of the defendant to file a motion to dismiss prior to the commencement of trial shall constitute a waiver of the right to dismissal under these rules.”

This court has also stated: “Because a motion to dismiss is waived unless filed before the commencement of trial and a motion for a speedy trial must precede a motion for dismissal, logically a motion for a speedy trial must also be filed before the commencement of trial in order to be afforded a remedy under the rules. . . . For the purpose of the speedy trial rules, commencement of trial means the commencement of the voir dire examination injury cases and the swearing-in of the first witness in nonjury cases.” (Citation omitted; internal quotation marks omitted.) State v. Lacks, supra, 58 Conn. App. 415-16. By not filing a motion for a speedy trial, the defendant waived his statutory speedy trial claim.

To the extent that the defendant also claims that his constitutional right to a speedy trial was violated, we do not agree. “The Supreme Court of the United States and [the Connecticut Supreme Court] have identified four factors which form the matrix of the defendant’s constitutional right to speedy adjudication: [l]ength of delay, the reason for the delay, the defendant’s assertion of his right, and prejudice to the defendant. ... A balancing test is to be applied on a case by case basis. None of the factors standing alone demands a set disposition; rather it is the total mix which determines whether the defendant’s right was violated.” (Citations omitted; internal quotation marks omitted.) Id., 417.

The defendant argues that the sixteen month delay prior to the commencement of trial in this case warrants an inquiry into the other factors set forth previously. We observe that “[t]he length of the delay is to some extent a triggering mechanism. Until there is some delay which is presumptively prejudicial, there is no necessity for inquiry into the other factors that go into the balance.” (Internal quotation marks omitted.) State v. Martin, 56 Conn. App. 98, 103, 741 A.2d 337 (1999), cert. denied, 252 Conn. 926, 746 A.2d 790 (2000). Further, despite the fact that “[o]ur courts have not held that any particular length of delay is presumptively prejudicial, but have stated that an extensive delay warrants an inquiry into the other factors”; id.; this court has held that a delay of more than two years is sufficient to consider the other three factors. See also State v. Almgren, 12 Conn. App. 364, 369, 530 A.2d 1089 (1987).

In the present case, the delay of sixteen months did not automatically demonstrate a denial of the defendant’s right to a speedy trial. The defendant did not present evidence that the delay resulted from purposeful action by the state; rather, the record reflects that other charges were pending against the defendant during that time. Further, the court found that the defendant did not assert his right to a speedy trial until the trial itself. The court also found that, despite his claim that the delay would prejudice his ability to call witnesses on his behalf, the defendant was not prejudiced by the delay. The court found in this regard that the defendant had not even provided to his own counsel the names of potential witnesses until a week prior to trial and concluded that any prejudice in this regard resulted from his own lack of diligence. The court likewise rejected the defendant’s claim that the delay may have diminished the memory of his witnesses.

We conclude that the court’s findings are supported by the record and that the defendant was not denied his constitutional right to a speedy trial.

The judgment of conviction of robbery in the first degree is reversed and the case is remanded with direction render judgment of conviction of robbery in the third degree and to resentence the defendant accordingly. The court is farther directed to sentence the defendant as a persistent serious felony offender under § 53a-40 (b). The judgment is affirmed in all other respects.

In this opinion the other judges concurred.

       General Statutes § 53a-134 (a) provides in relevant part: “A person is guilty of robbery in the first degree when, in the course of the commission of the crime of robbery as defined in section 53a-133 or of immediate flight therefrom, he . . . (3) uses or threatens the use of a dangerous instrument . . .

       General Statutes (Rev. to 1999) § 53a-40 (b) provides in relevant part: “A persistent serious felony offender is a person who (1) stands convicted of a felony, and (2) has been, prior to the commission of the present felony, convicted of and imprisoned under an imposed term of more than one year or of death, in this state or in any other state or in a federal correctional institution, for a crime. ...”

       The substitute long form information, filed by the state on June 15,2000, charged the defendant with a violation of § 53a-134 (a) (3) and alleged that the defendant, “in the course of committing a larceny and in the immediate flight therefrom, used and threatened the immediate use of physical force upon Barry Southworth by means of a dangerous instrument, to wit; a box cutter razor for the purpose of compelling Barry Southworth to deliver up a sum of U.S. currency.”

       The defendant concedes that the state presented sufficient evidence to convict him of 1he lesser included offense of robbery in the third degree in violation of General Statutes § 53a-136. The court instructed the jury that it could consider robbery in the third degree as a lesser included offense.

       The record shows that the defendant was advised of this amended information by a court clerk on August 9, 2000, in a courtroom holding area.

       The state’s amended second part of the information, filed August 30, 2000, charged the defendant with being a persistent serious felony offender. In the information, the state failed to cite the correct statute, § 53a-40 (b), but cited § 53a-40 (a) (2) (c), applicable to persistent dangerous felony offenders. At oral argument on the defendant’s motion to dismiss the second part of the information, the state clearly manifested its intent to charge the defendant as a persistent serious felony offender. Despite the fact that the state might have originally intended to charge the defendant as a persistent dangerous felony offender earlier in the case, the defendant did not object to being charged as apersistent serious felony offender. Although the court’s judgment file reflects that the defendant was convicted as a persistent serious felony offender, that court likewise inadvertently cited § 53a-40 (a) (2) (c) in its judgment. Because the parties both concede in their briefs that the defendant was charged and convicted as a persistent serious felony offender, we view the inaccurate statutory citations to be of no consequence.

        Furthermore, in light of our resolution of the defendant’s first claim, the defendant remains eligible to be convicted as a persistent serious felony offender. On remand, we instruct the trial court to so convict the defendant under § 53a-40 (b) and to sentence him accordingly.

       Practice Book § 36-18 provides: “After commencement of the trial for good cause shown, the judicial authority may permit the prosecuting authority to amend the information at any time before a verdict or finding if no additional or different offense is charged and no substantive rights of the defendant would be prejudiced. An amendment may charge an additional or different offense with the express consent of the defendant.”

       The state argues that the appeal is moot because we can no longer grant practical relief, i.e., order the court to hold a hearing in probable cause. It argues, therefore, that we lack subject matter jurisdiction over the claim. We disagree with the state’s argument and need not address it further.

       A probable cause hearing is a jurisdictional prerequisite affecting not subject matter but jurisdiction over the person of the defendant. State v. John, 210 Conn. 652, 665 n.8, 557 A.2d 93, cert. denied, 493 U.S. 824, 110 S. Ct. 84, 107 L. Ed. 2d 50 (1989).


author: BISHOP, J.

text:
    MICHAEL DAUBERT v. BOROUGH OF NAUGATUCK ET AL.
    (AC 21701)
    Lavery, C. J., and Bishop and Peters, Js.

      Argued May 2 —
    officially released August 20, 2002

      D. Kirt Westfall, for the appellant (plaintiff).

      Richard T. Stabnick, for the appellees (defendants).
   Opinion

BISHOP, J.

The plaintiff, Michael Daubert, appeals from the decision of the workers’ compensation review board (board) affirming the commissioner’s decision to dismiss his claim for benefits due to injuries suffered in an accident while on patrol as a police officer. The plaintiff claims that the board improperly affirmed the commissioner’s decision because the commissioner’s findings established that the claim was compensable. We agree because the only reasonable inference that can be drawn from the commissioner’s factual findings is that the plaintiffs injuries arose out of and in the course of his employment. We therefore reverse the decision of the board.

On January 26, 1997, at approximately 1:46 a.m., the plaintiff, while on duty as a police officer for the defendant borough of Naugatuck, was involved in a motor vehicle accident when his cruiser struck a tree. On February 13, 1997, the plaintiff filed a notice of claim for compensation due to injuries suffered during the accident. In his claim, the plaintiff alleged that the injuries occurred as the result of a “one car accident while on patrol.” The plaintiff described his injuries as a “loss of sight in left eye, loss of feeling in right hand and foot, bruised spine and memory problems.”

The commissioner held fourteen formal hearings on the matter during a two year period during which extensive evidence was presented by both parties. The plaintiff alleged that he was searching for a reported reckless driver when he failed to negotiate a curve in the road and his vehicle struck the tree. The plaintiff further alleged that he lost consciousness following impact. The borough and its defendant workers’ compensation carrier did not contest the fact that the accident had occurred while the plaintiff was on duty, but argued that the accident could not have occurred in the manner alleged.

In his finding and award dated February 4, 2000, the commissioner characterized the issue to be decided as “[wjhether the [plaintiffs] accident occurred as alleged . . . thereby resulting in a compensable claim pursuant to chapter 568 of the Connecticut General Statutes?” The commissioner then recited the testimony of ten different witnesses, including the plaintiff, in eighty-two “findings of fact.”

After summarizing the witness testimony in the eighty-two numbered paragraphs, the commissioner set forth nine findings and conclusions based on his review of the relevant evidence and testimony. The first finding and conclusion was that the commission had jurisdiction to decide the matter. The second was that “the [plaintiff], while on duty as [a police officer] of the borough of Naugatuck, was involved in a motor vehicle accident wherein his police cruiser struck a tree.” In his remaining seven findings and conclusions, the commissioner made determinations as to the credibility of various witnesses whose testimony had been summarized in the eighty-two “findings of fact.” The following is a summary of the relevant portions of that testimony.

The plaintiff testified that prior to the accident, he was working as the road supervisor on the third shift of the day, from 10:30 p.m. on January 25, 1997, to 6:30 a.m. on January 26, 1997. At approximately 11 p.m. on January 25,1997, he went out on the road in his cruiser. While patrolling in his cruiser, he heard a radio call dispatching Officer Don Ward to investigate the report of an erratic driver, possibly intoxicated, driving east on Route 68. The plaintiff heard Officer Gregory Dean report to dispatch over the radio that because he was close to the area, he also would respond. The plaintiff had been told the previous night to supervise calls to which Dean responded because Dean was a rookie. The plaintiff therefore reported to dispatch that he would respond as well.

The plaintiff testified that in the course of responding to the call, he slowed his cruiser several times to “spotlight” two car dealerships in the vicinity. The plaintiff explained that the dealerships had reported problems of stolen cars and auto parts, and that he thought the driver in question might have stolen a vehicle from one of the dealerships. The plaintiff eventually turned onto Wooster Street, a hilly and bumpy road, where he continued to spotlight intersecting streets and driveways while traveling at approximately 35 to 50 miles per hour. After spotlighting Whitney Place, he looked up and saw a tree, but could not avoid hitting it. According to the police report, the plaintiff stated that prior to hitting the tree he had attempted to take evasive action, but had failed to negotiate a curve in the road.

A videotape was entered into evidence, showing the path that the plaintiff had traveled immediately before the accident and containing his narrative description of the route taken. The description was not completely consistent with the plaintiffs prior testimony, in part because he did not indicate on the videotape that he had spotlighted Whitney Place.

Robert Allen and Dean, two of the officers on duty when the accident occurred, both testified that the skid marks on the pavement at the accident scene lined up with the cruiser’s rear tires. That was confirmed by field notes in the police report.

John McLay, an officer with the Waterbury police department who was retained by the defendants as an accident reconstruction expert, reviewed photographs of the accident scene and also testified that the skid marks on the pavement ran straight to the cruiser’s rear tires. He further testified that he estimated the speed of the cruiser prior to braking as approximately 33 miles per hour, that the vehicle had been traveling in the lane to the left of the center line and that the vehicle had gone straight into the tree from the road. McLay testified that if the plaintiff had been traveling at 45 to 50 miles per hour on the right side of the road, as he reported to the investigating officer, the vehicle would not have stopped in the position that it did and with the damage that it sustained. He also testified that if the plaintiff had stopped to spotlight Whitney Place, he would not have had sufficient time to reach a speed resulting in skid marks of 36 feet, as measured at the scene.

Eugene Baron, the plaintiffs accident reconstruction expert, testified that the skid marks indicated that the vehicle did not go directly into the tree, but had shifted position on impact. That testimony was in conflict with the field notes in the police report. He also testified that the skid marks showed that the plaintiffs vehicle would have been entirely in the right lane prior to braking and that the plaintiff had been traveling 35 to 40 miles per hour when he first applied the brakes.

Ronald Artman, a paramedic who administered first aid to the plaintiff following the accident, testified that the plaintiff did not show any outward signs of injury, but did not appear conscious when initially observed and did not respond to verbal commands. He also testified that when he conducted tests to establish if the plaintiff was unconscious, the plaintiffs responses were characteristic of a conscious person. Artman was upset by that discrepancy, and testified that he reported his concerns to another officer and the hospital staff.

Jan Mashman, the plaintiffs physician, testified that the plaintiffs responses to Artman’s tests were indicative of an “altered level of consciousness,” but that there was no medical literature to support such a theory. He further testified that the plaintiff had suffered a mild brain injury.

James Donaldson, a physician who examined the plaintiff at the defendants’ request several months after the accident, testified that following his investigation of the various medical reports, the transcript of Artman’s testimony, transcript excerpts from the plaintiffs testimony and the police reports, he believed that it would have been impossible for the plaintiff to have suffered a period of unconsciousness. He therefore testified that in his opinion, based on reasonable medical probability, the plaintiff had not been rendered unconscious as a result of the accident.

With that testimony in mind, we now turn to the commissioner’s remaining conclusions and findings. The commissioner determined that the plaintiffs explanation that his vehicle was traveling at a speed of 45 to 50 miles per hour and that he was spotlighting streets prior to the accident, and his testimony that he was rendered unconscious following impact, were not persuasive. The commissioner also determined that the testimony of Allen and Dean as to the skid marks at the accident scene was credible because it was consistent with the field notes in the police report. The commissioner further determined that McLay’s testimony was more credible than the testimony of Baron, that Artman’s observations were persuasive and that Donaldson’s assessment of the plaintiffs responses at the accident scene was more credible than Mashman’s. The commissioner ultimately concluded that “the [plaintiff] has failed to sustain his burden of proof that the accident occurred as he alleges” and dismissed the claim. The plaintiff appealed to the board.

The board issued a memorandum of decision dated February 22,2001. In affirming the commissioner’s decision, the board stated that “where a claimant contends that an accident occurred in a specific manner, and the trial commissioner finds the claimant’s explanation to lack credibility, we cannot say that the trial commissioner must find the accident to be compensable merely because it occurred while the claimant was on duty. Certainly in the instant case it is unclear whether the claimant met the third requirement of ‘in the course of the employment provision; specifically, we do not know whether the accident occurred while he was reasonably fulfilling the duties of the employment or doing something incidental to it.” (Emphasis in original.) The board stated that the plaintiff, although driving his employer’s vehicle, “could have been engaged in various activities which would cause a trial commissioner to conclude that he was not reasonably fulfilling the duties of the employment or doing something incidental to it. The trial commissioner was not required to reach this issue, however, because he did not find the [plaintiffs] testimony to be credible regarding how the accident occurred.” In sum, from the board’s perspective, the plaintiff had not sustained his burden of proving a com-pensable injury, and it was not incumbent on the defendants to disprove the compensability of the accident.

The standard of review applicable to workers’ compensation appeals is well established. “The commissioner is the sole trier of fact and [t]he conclusions drawn by [the commissioner] from the facts found must stand unless they result from an incorrect application of the law to the subordinate facts or from an inference illegally or unreasonably drawn from them. . . . The review [board’s] hearing of an appeal from the commissioner is not a de novo hearing of the facts. . . . [I]t is [obligated] to hear the appeal on the record and not retry the facts. . . . On appeal, the board must determine whether there is any evidence in the record to support the commissioner’s findings and award. . . . Our scope of review of the actions of the [board] is [similarly] . . . limited. . . . [However,] [t]he decision of the [board] must be correct in law, and it must not include facts found without evidence or fail to include material facts which are admitted or undisputed.” (Internal quotation marks omitted.) Mahoney v. Bill Mann Tree Service, Inc., 67 Conn. App. 134, 136, 787 A.2d 61 (2001).

“The general rule to be applied in workers’ compensation cases is that to be compensable an injury must (1) arise out of the employment and (2) occur in the course of employment. . . . Arising out of employment refers to the origin and cause of the accident. ... To occur in the course of the employment, the injury must take place (1) within the period of employment, (2) at a place where the employee may reasonably be, and (3) while the employee is reasonably fulfilling the duties of the employment or doing something incidental to it. These three parts correspond to the time, place and circumstance of the accident.” (Citations omitted; internal quotation marks omitted.) Masko v. Board of Education, 48 Conn. App. 515, 517-18, 710 A.2d 825 (1998); see also General Statutes § 31-275. “[T]he injured employee bears the burden of proof . . . .” (Internal quotation marks omitted.) Dengler v. Special Attention Health Services, Inc., 62 Conn. App. 440, 447, 774 A.2d 992 (2001).

We also are guided by the “principles underlying Connecticut practice in [workers’] compensation cases: that the legislation is remedial in nature . . . and that it should be broadly construed to accomplish its humanitarian purpose. . . . The humanitarian and remedial purposes of the act counsel against an overly narrow construction that unduly limits eligibility for workers’ compensation.” (Citations omitted; internal quotation marks omitted.) Gartrell v. Dept. of Correction, 259 Conn. 29, 41-42, 787 A.2d 541 (2002).

We begin our analysis by noting that “a commissioner’s recital of evidence or arguments is no substitute for findings of fact. Grabowski v. Miskell, 97 Conn. 76, 78, 115 A. 691 (1921) (discussing our Supreme Court’s repeated injunction against reciting evidence in lieu of fact-finding) . . . .” (Citations omitted; internal quotation marks omitted.) DiBello v. Barnes Page Wire Products, Inc., 67 Conn. App. 361, 377, 786 A.2d 1234 (2001) (Flynn, J., dissenting), cert. granted on other grounds, 260 Conn. 915, 796 A.2d 560 (2002) (appeal withdrawn June 26, 2002). Accordingly, to the extent that the commissioner’s nine findings and conclusions do not incorporate the testimony cited in the eighty-two “findings of fact,” that testimony does not constitute an evidentiary basis for the commissioner’s ultimate conclusion that the plaintiffs claim should be dismissed.

After examining the nine findings and conclusions in the context of the relevant witness testimony, we conclude that the commissioner’s determination that the plaintiff failed to sustain his burden that the accident occurred as he had alleged is not a reasonable inference to be drawn from the findings of fact. In his notice of claim, the plaintiff alleged that his injuries were the result of a “one car accident while on patrol.” In the commissioner’s second finding, he stated that “the [plaintiff], while on duty as [a police officer] of the borough of Naugatuck, was involved in a motor vehicle accident wherein his police cruiser struck a tree.” Because the commissioner’s finding logically suggested that the accident arose out of and occurred in the course of the plaintiffs employment, and because his remaining findings were unrelated to whether the accident arose out of and in the course of the plaintiffs employment, the commissioner’s conclusion to the contrary had no reasonable basis in the facts.

All of the commissioner’s other findings involved witness testimony that clearly was irrelevant to the issue in question. The testimony of Artman and Donaldson related to the plaintiffs mental condition following the accident. The testimony of Allen, Dean and McLay related to various characteristics of the plaintiffs vehicle, including its estimated speed as it approached the curve in the road, the length and direction of the skid marks, and its position after impact. Although McLay’s testimony that the plaintiff had not been spotlighting Whitney Place in the moments before the crash bore some relevance to the statutory criteria, that detail alone was insufficient to support the much broader inference made by the commissioner that the accident had not occurred in the course of the plaintiff’s employment.

By contrast, the second finding of fact clearly supported an inference that the plaintiff’s injuries had occurred in the course of his employment. See Masko v. Board of Education, supra, 48 Conn. App. 517-18. The finding specifically stated that the plaintiff was on duty, thus satisfying the first prong of the test that the injury take place during the period of his employment. See id. Also implied in the finding was that the plaintiff was in the borough of Naugatuck, thus satisfying the second prong of the test that the injury take place at a location where he might reasonably be. See id. The finding further indicated that the plaintiff was in his police cruiser, which satisfied the third prong of the test that the injury take place while he was reasonably fulfilling the duties of his employment. See id.

The second finding also supported an inference that the plaintiffs injuries arose out of his employment because the finding specifically indicated that the accident occurred while the plaintiff was driving his cruiser and while he was on duty. See id. Indeed, the defendants conceded in their brief that “it can be assumed that the incident arose out of’ the plaintiffs employment. Accordingly, the commissioner’s determination that the plaintiff had not met his burden of proving that the accident occurred as he had alleged was not a reasonable inference to be drawn from the subordinate facts.

Furthermore, in contrast to other cases, none of the commissioner’s remaining findings suggested that the plaintiff had not been engaged in employment related activities when the accident occurred. For example, in Kish v. Nursing & Home Care, Inc., 248 Conn. 379, 381, 727 A.2d 1253 (1999), the claimant was injured while mailing a personal letter as she made a delivery that her employer specifically had instructed her not to make. In Kolomiels v. Syncor International Corp., 252 Conn. 261, 263, 746 A.2d 743 (2000), the claimant was injured while returning to his home to retrieve his wallet and driver’s license after making a work-related delivery. In both of those cases, the question before the commissioner was whether the claimants’ activities constituted substantial deviations from their employment duties. Id., 266; Kish v. Nursing & Home Care, Inc., supra, 382. Here, however, there were no factual findings to suggest that the plaintiff was engaged in activities unrelated to his duties.

In its memorandum of decision, the board observed that “we cannot say that the trial commissioner must find the accident to be compensable merely because it occurred while the claimant was on duty.” (Emphasis in original.) The board went on to state that it was not clear whether the plaintiff had met the third prong of the test for determining if the accident had occurred in the course of his employment. We disagree.

As stated previously, the commissioner’s second finding of fact did not indicate merely that the plaintiff was on duty; it also indicated that he was in Naugatuck and driving his police cruiser at the time of the accident. That finding, considered in its entirety, provided the basis for a reasonable inference that the plaintiff was fulfilling a duty of his employment when his vehicle struck the tree, namely, patrolling the streets of Nauga-tuck. That finding,could not have provided the basis for the commissioner’s conclusion to the contrary.

The board also stated, in support of the commissioner’s decision, that the commissioner had made numerous findings of fact regarding the plaintiffs motive to crash intentionally into the tree. Although the board observed that it need not reach the issue of intentional misconduct because the commissioner’s decision was supported by other findings, it nonetheless did so. After acknowledging that the defendants had failed to plead wilful misconduct as an affirmative defense during the hearing, it noted that such a defense was implied by the testimony of the defendants’ witnesses. The board then concluded that the commissioner reasonably had inferred from the evidence and the findings that the accident had been caused by the plaintiffs intentional misconduct. We disagree with the propriety of the board’s argument and its relevance to the case.

We first point out that the defendants conceded that they never raised the affirmative defense of wilful misconduct. In fact, the defendants stated in their brief to this court that they did not need to rely on such a defense to prevail in the underlying action. Second, contrary to the board’s assertion that an implied defense of wilful misconduct properly was considered by the commissioner, General Statutes § 31-294c (b) provides in relevant part that “[w]henever liability to pay compensation is contested by the employer, he shall file with the commissioner ... a notice . . . stating that the right to compensation is contested . . . and the specific grounds on which the right to compensation is contested. . . .” Thus, in the absence of formal notice, the defendants could not have relied on the affirmative defense of wilful misconduct even if it had wanted to do so. See Russell v. Mystic Seaport Museum, Inc., 252 Conn. 596, 619-23, 748 A.2d 278 (2000) (employer waived right to contest where notice lacked specificity). Third, although the board referred to many of the eighty-two “findings of fact” as support for its conclusion that the commissioner could have found for the defendants on the ground of wilful misconduct, many of those so-called “findings of fact,” which consisted of witness testimony, had not been incoiporated by the commissioner into his subsequent findings and conclusions, and thus could not have served as a basis for his decision. Last and most significantly, the commissioner expressly found that the plaintiff had been involved in a “motor vehicle accident.” (Emphasis added.) Black’s Law Dictionary defines “accident” as “[a]n unintended and unforeseen injurious occurrence; something that does not occur in the usual course of events or that could not be reasonably anticipated.” Black’s Law Dictionary (7th Ed. 1999). The finding of an accident thus excludes wilful misconduct as a cause of the crash. Accordingly, to the extent that the board may have regarded the affirmative defense of wilful misconduct as a secondary ground for affirming the commissioner’s decision, such reliance was improper.

Because the only reasonable inference that can be drawn from the commissioner’s second finding of fact is that the plaintiffs accident arose out of and occurred in the course of his employment, and because there were no other findings to the contrary, the commissioner’s decision cannot stand.

The decision of the workers’ compensation review board is reversed and the case is remanded to the board with direction to reverse the decision of the workers’ compensation commissioner and for further proceedings consistent with this opinion.

In this opinion the other judges concurred.

       The Hartford Insurance Group also is a defendant.

       The hearings were held from June 5, 1997, until June 15, 1999.

       Only three of the eighty-two “findings of fact” did not involve testimony. Two were references to information contained in the police report, and one referred to the fact that administrative notice had been taken of a workers’ compensation file pertaining to a previous claim of iryury by the plaintiff.

       Although the commissioner captioned the eighty-two paragraphs “findings of fact,” they constituted a mere recitation of the evidence. The actual findings of fact consisted of separately lettered paragraphs. The commissioner prefaced each of the actual findings and conclusions with the words: “I am satisfied, conclude and find that. . . .” After each of the nine findings and conclusions, the commissioner added: “It is so found.”

       The commissioner incorporated that summarized testimony in the remaining findings and conclusions.

       “Spotlighting” refers to turning on the spotlights that are located on either end of the cruiser’s roof mounted light bar to illuminate the surrounding area.

       The police report indicated that the plaintiff claimed he was driving 45 to 50 miles per hour prior to the accident.

       The videotape was supplied by the plaintiffs accident reconstruction expert, Eugene Baron.

       This was the speed indicated in the police report, not the plaintiffs testimony. See footnote 7.