text:
    Donald F. LoPresto v. State Employees Retirement Commission
    (12483)
    Foti, Landau and Freedman, Js.
    Argued February 17
    decision released May 24, 1994

      Robert A. Whitehead, assistant attorney general, with whom, on the brief, were Richard Blumenthal, attorney general, and Charles A. Overend, assistant attorney general, for the appellant (defendant).

      Thomas B. Wilson, with whom, on the brief, was Raymond L. Baribeault, Jr., for the appellee (plaintiff).
   Freedman, J.

The defendant state employees retirement commission appeals from the judgment of the trial court reversing the commission’s declaratory ruling. On appeal, the commission claims that the trial court improperly concluded that the plaintiff, Donald F. LoPresto, was entitled to include five years of municipal service credit in the calculation of his hazardous duty retirement benefit. We agree and reverse the judgment of the trial court.

The following facts are undisputed. The plaintiff is a retired state police trooper. He retired effective March 1, 1992, under the 1991-1992 early retirement incentive program. General Statutes § 5-173 provides the guidelines for retirement benefits for state employees with hazardous duty service. The plaintiff had completed more than twenty years of hazardous duty service. Thus, his retirement benefits were calculated pursuant to General Statutes § 5-173. Prior to working as a state trooper, the plaintiff was employed as a police officer by the town of Stonington for five years. Before retiring, the plaintiff applied to purchase municipal service credit pursuant to General Statutes § 5-192b (b) for those five years of employment as a Stonington police officer. Section 5-192b makes provision for members of the state employees retirement system to obtain credit for previous membership in a municipal retirement system.

The plaintiff requested credit for his prior municipal service in the calculation of his hazardous duty retirement benefit. The commission denied the plaintiffs request. In response, the plaintiff petitioned the commission for a declaratory ruling. The commission ruled: “The Petitioner, a Tier I member of the Connecticut State Employees Retirement System, is not entitled to include five years of municipal service credit purchased in accordance with the provisions of Connecticut General Statutes, Section 5-192b (b) in the calculation of his hazardous duty retirement benefit under Connecticut General Statutes, Section 5-173.” The plaintiff appealed the commission’s declaratory ruling. The trial court ruled in favor of the plaintiff; the commission in turn appealed to this court.

The two statutes relevant to this appeal are General Statutes §§ 5-173 and 5-192b (b). The pertinent language of § 5-173 (b) provides: “On or after October 1, 1982, each such person shall receive a monthly retirement income equal to one-twelfth of (1) fifty per cent of his base salary . . . for such twenty years of service, plus (2) two per cent of his base salary for each year, taken to completed months, of Connecticut state service in excess of twenty years . . . .” (Emphasis added.) The relevant language of General Statutes § 5-192b (b) provides: “Such municipal service shall be considered to be active state service for the purposes of this chapter.” (Emphasis added.) We must determine whether a hazardous duty employee may include prior municipal service deemed “state service” under § 5-192b (b) as “Connecticut state service” in the calculation of his hazardous duty retirement benefits pursuant to General Statutes § 5-173 (b).

The trial court concluded that the phrase “Connecticut state service” in § 5-173 included “state service” as contained in § 5-192b (b). The trial court found that the word “ ‘Connecticut’ does not narrow or restrict the meaning of the term in § 5-173 so as to exclude municipal service” and, thus, “[i]t necessarily includes municipal service in accordance with § 5-192b (b).” The trial court reasoned that, because the language of § 5-192b provides that “municipal service shall be considered to be active state service for purposes of this chapter” and “this chapter” includes § 5-173, any other interpretation would “contradict the plain language of the statutes in question.” We do not agree with the reasoning of the trial court.

“The standard of judicial review of administrative agency rulings is well established. Lieberman v. State Board of Labor Relations, 216 Conn. 253, 261, 579 A.2d 505 (1990); Board of Education v. State Employees Retirement Commission, 210 Conn. 531, 540, 556 A.2d 572 (1989). Tomlinson v. Board of Education, 226 Conn. 704, 712, 629 A.2d 333 (1993). General Statutes § 4-183 (j) permits modification or reversal of an agency’s decision if substantial rights of the person appealing have been prejudiced because the administrative findings, inferences, conclusions, or decisions are: (1) [i]n violation of constitutional or statutory provisions; (2) in excess of the statutory authority of the agency; (3) made upon unlawful procedure; (4) affected by other error of law; (5) clearly erroneous in view of the reliable, probative, and substantial evidence on the whole record; or (6) arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion. . . . [T]he [reviewing] court may not retry the case or substitute its judgment for that of the agency on the weight of the evidence or questions of fact. . . . Rather, an agency’s factual and discretionary determinations are to be accorded considerable weight by the courts. . . .” (Citations omitted; internal quotation marks omitted.) Local 1183 of Council No. 4 v. State Board of Labor Relations, 33 Conn. App. 541, 546-47, 636 A.2d 1366 (1994).

“On the other hand, it is the function of the courts to expound and apply governing principles of law. N.L.R.B. v. Brown, 380 U.S. 278, 291, 85 S. Ct. 980, 13 L. Ed. 2d 839 (1965); International Brotherhood of Electrical Workers v. N.L.R.B., 487 F.2d 1143, 1170-71 (D.C. Cir. 1973), aff’d sub nom. Florida Power & Light Co. v. International Brotherhood of Electrical Workers, 417 U.S. 790, 94 S. Ct. 2737, 41 L. Ed. 2d 477 (1974); Connecticut Hospital Assn., Inc. v. Commission on Hospitals & Health Care, [200 Conn. 133, 140, 509 A.2d 1050 (1986)]; Real Estate Listing Service, Inc. v. Real Estate Commission, 179 Conn. 128, 138-39, 425 A.2d 581 (1979). State Medical Society v. Board of Examiners in Podiatry, [208 Conn. 709, 717-18, 546 A.2d 830 (1988)].” (Internal quotation marks omitted.) Lieberman v. Board of Labor Relations, supra, 216 Conn. 262-63.

The answer to the question presented in this appeal — whether a hazardous duty employee may include prior municipal service deemed “state service” under § 5-192b (b) as “Connecticut state service” in the calculation of his hazardous duty retirement benefits pursuant to § 5-173 (b) — “turns upon the interpretation of the interrelationship of the various state statutes. This is purely a question of law, and, therefore, invokes a broader standard of review than is ordinarily involved in deciding whether, in light of the evidence, the agency has acted unreasonably, arbitrarily, illegally or in abuse of its discretion. See [State Medical Society v. Board of Examiners in Podiatry, supra, 208 Conn. 718]; Robinson v. Unemployment Security Board of Review, 181 Conn. 1, 5-6, 434 A.2d 293 (1980).” Lieberman v. Board of Labor Relations, supra, 216 Conn. 263.

“Although the interpretation of statutes is ultimately a question of law; Connecticut Hospital Assn., Inc. v. Commission on Hospitals & Health Care, 200 Conn. 133, 140, 509 A.2d 1050 (1986); it is the well established practice of this court to ‘accord great deference to the construction given [a] statute by the agency charged with its enforcement.’ Corey v. Avco-Lycoming Division, 163 Conn. 309, 326, 307 A.2d 155 (1972) (Loiselle, J., concurring), cert. denied, 409 U.S. 1116, 93 S. Ct. 903, 34 L. Ed. 2d 699 (1973); accord, Fellin v. Administrator, 196 Conn. 440, 447, 493 A.2d 174 (1985); Board of Education v. Connecticut State Board of Labor Relations, 190 Conn. 235, 241, 460 A.2d 1255 (1983); Chamber of Commerce of Greater Waterbury, Inc. v. Lanese, 184 Conn. 326, 331, 439 A.2d 1043 (1981); Connecticut State Board of Labor Relations v. Board of Education, 177 Conn. 68, 74, 411 A.2d 28 (1979); Connecticut Light & Power Co. v. Public Utilities Control Authority, 176 Conn. 191, 198, 405 A.2d 638 (1978); Anderson v. Ludgin, 175 Conn. 545, 555, 400 A.2d 712 (1978).” Griffin Hospital v. Commission on Hospitals & Health Care, 200 Conn. 489, 496-97, 512 A.2d 199 (1986).

General Statutes § 5-155a (c) charges the commission with the duty to administer the Connecticut state employees retirement system. Since §§ 5-173 and 5-192b are both a part of the Connecticut state employees retirement system, we accord great deference to the commission’s interpretation of these statutes. The commission interprets the word “Connecticut” in § 5-173 to limit the state service for which one may receive credit for hazardous duty retirement benefits to actual state service and not municipal service considered to be state service by § 5-192b (b).

“To determine the collectively expressed legislative intent, we look first to the language of the statute itself. If that language is plain and unambiguous, we go no further. University of Connecticut v. Freedom of Information Commission, 217 Conn. 322, 328, 585 A.2d 690 (1991). If, however, the statute is ambiguous, e.g., either opaque or susceptible to alternative conflicting interpretations, we will seek guidance from ‘extrinsic aids,’ e.g., the legislative history. Shelby Mutual Ins. Co. v. Della Ghelfa, 200 Conn. 630, 637-38, 513 A.2d 52 (1986); State v. Ellis, 197 Conn. 436, 445, 497 A.2d 974 (1985). If the legislative history and purpose are also ambiguous, we may resort to ‘intrinsic aids,’ the technical rules of statutory construction. Farms Country Club, Inc. v. Carini, 172 Conn. 439, 443, 374 A.2d 1094 (1977); see also Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 412 n.29, 91 S. Ct. 814, 28 L. Ed. 2d 136 (1971); 2A J. Sutherland, Statutory Construction (4th Ed. Sands) § 48.01. In applying these principles, we follow the ‘golden rule of statutory interpretation’; 2A J. Sutherland, supra, § 45.12, p. 54; that the legislature is presumed to have intended a reasonable, just and constitutional result. See Board of Education v. State Board of Labor Relations, 217 Conn. 110, 126, 584 A.2d 1172 (1991); Gentry v. Norwalk, 196 Conn. 596, 606, 494 A.2d 1206 (1985); Bridgeport v. Stratford, 142 Conn. 634, 644, 116 A.2d 508 (1955); Camp v. Rogers, 44 Conn. 291, 298 (1877); see also 2A J. Sutherland, supra, §§ 45.11, 45.12.” Sanzone v. Board of Police Commissioners, 219 Conn. 179, 187, 592 A.2d 912 (1991).

It is not clear from the plain language of either § 5-173 or § 5-192b whether “Connecticut state service” as used in § 5-173 includes “state service” as used in § 5-192b (b). In addition, our search of the legislative history of § 5-173 does not shed any light on the legislature’s purpose for including the word “Connecticut” preceding “state service.” We, therefore, turn to well established maxims of statutory construction.

“ ‘In construing a statute, this court seeks to ascertain the intent of the legislature as it is expressed through the words actually used.’ State v. Grant, 176 Conn. 17, 20, 404 A.2d 873 (1978).” State v. Anderson, 227 Conn. 518, 527-28, 631 A.2d 1149 (1993). The trial court’s conclusion that “Connecticut state service” is the same as “state service” renders the word “Connecticut” meaningless. “[N]o part of a legislative enactment is to be treated as insignificant or unnecessary, and there is a presumption of purpose behind every sentence, clause or phrase . . . and no word in a statute is to be treated as superfluous. Peek v. Jacquemin, 196 Conn. 53, 66, 491 A.2d 1043 (1985).” (Citations omitted; internal quotation marks omitted.) Id. We conclude, therefore, that the word “Connecticut” must set some limitation or restraint on the words “state service.”

Further support for this conclusion is found by reviewing the statutory sections that constitute the Connecticut state employees retirement system. General Statutes § 5-154 et seq. The phrase “state service” is found throughout these sections. We conclude, therefore, that when the legislature attached the word “Connecticut” to the phrase “state service” in § 5-173 it intended something different from the phrase “state service” without “Connecticut” attached to it as found throughout the statutory scheme.

The legislative history of § 5-192b reveals the legislature’s purpose in enacting subsections (b) and (c). Before 1984, the statute consisted of only subsection (a). In 1984, the legislature amended the statute to add subsections (b) and (c). The purpose of the amendment was to resolve the inequities created by subsection (a), which did not permit certain members of the state employees retirement system (SERS), who were previously members of a municipal employees retirement system (MERS), to obtain retirement credit for that service. 27 H.R. Proc., Pt. 19, 1984 Sess., pp. 6904-6906; 27 S. Proc., Pt. 6, 1984 Sess., p. 2228. Subsection (a) allows a state employee, who is a member of SERS, who had prior service in a municipality that had joined MERS and who did not withdraw his or her retirement contributions, to obtain credit for those contributions for the purpose of retirement benefits. This, however, left members of SERS who previously had been employed by municipalities that had not joined MERS and those who had withdrawn their retirement contributions unable to obtain credit for their prior municipal service. The amendment adding subsections (b) and (c) remedied this inequity. Subsection (b) provides that members of SERS who previously had been municipal employees whose municipality had joined MERS and who withdrew their retirement contributions from the municipal retirement fund when they left municipal service may obtain credit for those contributions by making certain payments into the SERS fund. Subsection (c) provides that members of SERS who had previously been municipal employees and had prior service in a municipality that had not joined MERS may also obtain credit for that prior municipal service by certain payments of transfers.

The trial court’s interpretation of § 5-192b, for the purposes of hazardous duty retirement benefits, recreates the same type of inequity that the 1984 amendment was designed to remedy. The language converting municipal service to state service is found only in subsection (b). Thus, only hazardous duty employees who previously had worked for a municipality that had joined MERS and who had withdrawn their retirement contributions when they left municipal service would be entitled to credit for their previous municipal service. Hazardous duty employees who fall under subsection (a) or (c) would not be entitled to a credit for their prior municipal service because those subsections do not contain the language converting municipal service to state service. This result directly contradicts the legislature’s intent in amending § 5-192b. We cannot presume that the legislature intended to create such a bizarre result. See DeMilo v. West Haven, 189 Conn. 671, 679, 458 A.2d 362 (1983), and cases cited therein.

Taking together our deference to the commission’s interpretation of the statutes, the opinion of the trial court rendering the word “Connecticut” meaningless, and the fact that the trial court’s interpretation is not only contrary to the legislature’s intent but also creates a bizarre result, we conclude that the word “Connecticut” in § 5-173 places a limitation on the phrase “state service.” We hold, therefore, that “Connecticut state service” as used in § 5-173 is limited to actual service for the state of Connecticut and does not include prior municipal service considered state service pursuant to § 5-192b (b).

The judgment is reversed and the case is remanded with direction to render judgment denying the plaintiff’s appeal.

In this opinion the other judges concurred.

       General Statutes § 5-173 provides in pertinent part: “(a) A state policeman in the active service of the division of state police within the department of public safety . . . who has reached his forty-seventh birthday and completed at least twenty years of hazardous duty service for the state . . . shall be retired on his own application or on the application of the commissioner of public safety or the commissioner of correction, as the case may be.
      “(b) On or after October 1, 1982, each such person shall receive a monthly retirement income equal to one-twelfth of (1) fifty per cent of his base salary, as defined in subsection (b) of section 5-162, for such twenty years of service, plus (2) two per cent of his base salary for each year, taken to completed months, of Connecticut state service in excess of twenty years ....

       General Statutes § 5-192b provides: “(a) Any person who became a member of the state employees retirement system and who previously was a member of the Connecticut municipal employees’ retirement system shall receive credit for the purpose of retirement under the provisions of this chapter for the period of his service with such municipality, provided there shall be transferred to the state employees retirement fund from the Connecticut municipal employees’ retirement fund, on application of a state employee who is a member of tier I, the entire amount paid into the Connecticut municipal employees’ retirement fund by the employee as a result of the service of such employee, plus interest at the rate being paid by the Connecticut municipal employees’ retirement fund from which such amount is transferred from the date of each payment into such fund to the date such employee became a member of the state employees retirement system, such amount to be computed by the state retirement commission. No transfer of municipal employee contributions and interest shall be required whenever a member of the tier II plan applies for such retirement credit.
      “(b) On or before the first of the month following three months after June 28,1985, any member of the tier I plan in the state employees retirement system who was previously a member of the Connecticut municipal employees’ retirement system and who, pursuant to the terms of section 7-440, withdrew all his contributions in the municipal employees’ retirement fund upon leaving municipal employment shall be credited, for retirement purposes under this chapter, with such period of prior municipal service upon payment into the state employees retirement fund of an amount equal to the total of all contributions refunded to him from the municipal employees’ retirement fund plus five per cent interest on such contributions from the effective date of his withdrawal from the municipal fund to the date of his application for credit under this subsection. Such municipal service shall be considered to be active state service for the purposes of this chapter.
      “(c) Any member of the state employees retirement system who has prior service in a municipality, or a department of a municipality, which has not accepted the provisions of part II of chapter 113 shall receive credit for the purpose of retirement under the provisions of this chapter for the period of such service, or any portion thereof, if he complies with the requirements of either subdivision (1) or subdivision (2) of this subsection. (1) Such member may purchase credit for such service upon payment to the state employees retirement fund of either two or five per cent, as appropriate, of his municipal salary for the period of such service, plus an amount determined by the retirement commission as necessary to fund the increased benefits payable by reason of such purchase with interest at the rate of six and one-half per cent, compounded annually, on such payment. (2) Such member may obtain credit for such service upon transfer of the entire amount paid into a municipal retirement fund by the member and the municipality during the period of such service including any earned interest, and payment of an amount determined by the retirement commission as necessary to fund the increased benefits payable by reason of such credit, to the state employees retirement fund. Where required by a municipal ordinance or charter provision, the comptroller may enter into a reciprocal agreement with a municipality in order to effect a transfer of funds under this subdivision. No credit shall be granted under this subsection for any period of service for which a retirement benefit is being paid by any governmental unit or where such grant would result in multiple service credit for the same period of service.”

       See, e.g., General Statutes §§ 5-154, 5-162, 5-162f, 5-162g, 5-162h, 5-163, 5-163a, 5-164a, and 5-166.

       Public Acts 1984, No. 84-447. Subsection (b) was further amended by Public Acts 1985, No. 85-510 to change the dates of eligibility.


source: Caselaw Access Project

author: Lavery, J.

license: Public Domain

text:
    Francis Reichert v. James J. Sheridan, Jr.
    (12150)
    Foti, Lavery and Landau, Js.
    Argued March 22
    decision released May 31, 1994

      Paul W. Smith, for the appellant (plaintiff).

      Joseph Dieso, for the appellee (defendant).
   Lavery, J.

The issues presented in this appeal are, first, whether notice of an employer’s suit against a third party tortfeasor, otherwise valid under General Statutes § 31-293 (a), is nonetheless invalid because it was sent by the employer’s insurance carrier instead of by the employer and, second, whether the abatement provision of § 31-293 (a) bars an employee’s right of action. The plaintiff, Francis Reichert, was injured while employed by the town of Suffield when he was struck by the defendant’s truck. The town sued the defendant, James J. Sheridan, Jr., in November, 1991, to recover moneys paid to the plaintiff under the Workers’ Compensation Act (act).

The plaintiff received notice of the suit through a letter from an attorney representing the town’s workers’ compensation insurance carrier. The letter was captioned “Town of Suffield vs. James J. Sheridan, Jr.” It explained the relationship between the insurance company and the town and stated that suit was being brought against the defendant based on the plaintiff’s accident. The letter advised the plaintiff that he would be barred from recovery if he failed to join the suit within thirty days and encouraged the plaintiff to give the letter to an attorney. Finally, copies of the writ, summons and complaint in the town’s action against the defendant were enclosed with the letter.

Notwithstanding the letter, the plaintiff did not join the town’s action, but brought a separate action two months later. The defendant moved for summary judgment claiming that the plaintiff’s suit was barred by the abatement provision of § 31-293. The trial court agreed and rendered summary judgment. This appeal followed. We affirm the judgment of the trial court.

I

The plaintiff first claims that summary judgment was improper because a genuine issue of material fact existed regarding whether the notice requirement of § 31-293 had been satisfied. Specifically, the plaintiff asserts that the notice was invalid because it was sent by an attorney representing the town’s insurance company and not the town itself. The trial court determined that no genuine issue of material fact existed regarding the sufficiency of the notice provided to the plaintiff. We agree.

The standard governing our review of a trial court’s summary judgment ruling is clear. 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.” Practice Book § 384. Once the movant shows an absence of any disputed material fact, the opponent must show the existence of a genuine issue of material fact together with supporting evidence. Wadia Enterprises, Inc. v. Hirschfeld, 27 Conn. App. 162, 165-66, 604 A.2d 1339, aff'd, 224 Conn. 240, 618 A.2d 506 (1992). “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.” (Citations omitted; internal quotation marks omitted.) Id., 166.

Section 31-293 (a) provides that both employers and employees may proceed at law to recover losses due to third party tortfeasors. It further requires that the party who brings the action against the third party must notify the other that the action has been brought and provide the name of the court in which the action is pending so that the nonparty may join. General Statutes § 31-293 (a); Winslow v. Lewis-Shepard, Inc., 216 Conn. 533, 538, 582 A.2d 1174 (1990). If the nonparty fails to join the suit within thirty days, “his right of action against the third person shall abate.” General Statutes § 31-293 (a); Winslow v. Lewis-Shepard, Inc., supra, 538.

In this case, the town, as employer, sued the defendant to recoup the amounts paid to the plaintiff under the act. The plaintiff received notice that the town had brought an action against the defendant and where the action was maintained. The notice also warned the employee that failure to join within thirty days would result in his being barred from recovery, advised him to give the notice to an attorney and included a copy of the writ, summons and complaint. Viewed in the light most favorable to the plaintiff, this evidence demonstrates that the plaintiff received ample notice of the employer’s suit.

The plaintiff claims, however, that the notice was not statutorily sufficient because it was sent by the attorney representing the town’s workers’ compensation insurance carrier rather than the town itself. In light of the actual notice present on these facts, we decline to adopt so rigid a rule. We will not elevate form over substance by analyzing a statute on the basis of its structure rather than its purpose. State v. Chapman, 227 Conn. 616, 621, 632 A.2d 674 (1993), rev’d on other grounds, 229 Conn. 529, 643 A.2d 1213 (1994). The notice explained the relationship between the insurance company and the town and clearly established that the town had brought suit.

We recognize that insurance carriers are not equivalent to employers for the purposes of notice under § 31-293. Johndrow v. State, 24 Conn. App. 719, 721, 591 A.2d 815 (1991); McClendon v. Soos, 18 Conn. App. 614, 618, 559 A.2d 1163, cert. denied, 212 Conn. 808, 563 A.2d 1356 (1989); Misiurka v. Maple Hill Farms, Inc., 15 Conn. App. 381, 384, 544 A.2d 673, cert. denied, 209 Conn. 813, 550 A.2d 1083 (1988). Those cases, however, do not control this situation. In those cases, notice to the insurance company, which had no right of action to protect, was held to be insufficient under the statute. Johndrow v. State, supra, 721; McClendon v. Soos, supra, 618; Misiurka v. Maple Hill Farms, Inc., supra, 384. The important issue was that the nonparty that had a right of action to protect be notified of the suit. Johndrow v. State, supra, 721; McClendon v. Soos, supra, 618; Misiurka v. Maple Hill Farms, Inc., supra, 384. Because the nonparty identified in the statute had not received notice, the statute had not been satisfied. Johndrow v. State, supra, 721-22; McClendon v. Soos, supra, 618; Misiurka v. Maple Hill Farms, Inc., supra, 384. In this case, conversely, the nonparty did receive notice: the plaintiff employee was notified of the suit and given ample opportunity, even encouraged, to protect his rights. He now suffers from his own failure.

Further, it is the policy of our courts to construe the act liberally in order to further its general purpose of compensating employees for injuries suffered in the course of employment. Misiurka v. Maple Hill Farms, Inc., supra, 15 Conn. App. 384. The notice requirements of the act, however, have been strictly interpreted because such a construction furthered the general purpose of the act. See id. Strict interpretation of the act in this case would not further its general purpose: the plaintiff employee was compensated for his injuries under the act. He is barred from further recovery simply through his failure to take advantage of the procedure provided for in the act. Section 31-293 (a) “ ‘does not protect those who are less than vigilant in safeguarding their own legal rights. The imperfection is not in the statute which provides a simple means of effectuating the rights created, but in those who fail to avail themselves of its benefits for no justifiable reason.’ ” Skitromo v. Meriden Yellow Cab Co., 204 Conn. 485, 490, 528 A.2d 826 (1987), quoting Norwalk v. Van Dyke, 33 Conn. Sup. 661, 667, 366 A.2d 554, cert. denied, 172 Conn. 681, 364 A.2d 864 (1976).

II

In light of the conclusion that no genuine issue of material fact existed regarding sufficiency of the notice, we must now consider whether the defendant deserved judgment as a matter of law. The plaintiff claims that § 31-293 (a) does not bar his action even though he received notice but failed to join in the town’s action. As in every case involving interpretation of a statute, we must start with the language of the statute itself. King v. Board of Education, 203 Conn. 324, 332, 524 A.2d 1131 (1987). The intent of the legislature is to be found not in what it meant to say but in what it did say. Winslow v. Lewis-Shepard, Inc., supra, 216 Conn. 537. When the language of the statute is plain and unambiguous, we need look no further. Id., 538.

Section 31-293 (a) begins by providing that when an employee is injured by a third person in such a manner as to be governed by the Workers’ Compensation Act, the employee can still proceed at law against the third person. Norwalk v. Van Dyke, supra, 33 Conn. Sup. 665-66, citing Uva v. Alonzy, 116 Conn. 91, 97, 163 A. 612 (1933). This continued right is distinct from the employee’s common law right to sue the employer, which is abrogated under General Statutes § 31-284. Pagani v. BT II, Ltd. Partnership, 24 Conn. App. 739, 744, 592 A.2d 397, cert. dismissed, 220 Conn. 902, 593 A.2d 968 (1991). Further, the provision permitting third party suits ensures that an employee’s recovery from a third party tortfeasor will not be diminished by the amount received under the act. See Baystate Moving Systems, Inc. v. Bowman, 24 Conn. App. 531, 534, 590 A.2d 462, cert. denied, 220 Conn. 904, 593 A.2d 969 (1991) (evidence of workers’ compensation benefits inadmissible under collateral source rule). Section 31-293 also provides that an employer may proceed at law against the third party tortfeasor for reimbursement of compensation paid to the employee under the act.

When either the employee or the employer brings such a suit against the third party tortfeasor, the party plaintiff must notify the nonparty so that the nonparty will be able to join in the action. If the nonparty “fails to join as a party plaintiff, his right of action against the third person shall abate.” General Statutes § 31-293 (a). This provision has repeatedly been held to bar employers who failed to join an employee’s suit within thirty days of notice. See, e.g., Winslow v. Lewis-Shepard, Inc., supra, 216 Conn. 540-41; Skitromo v. Meriden Yellow Cab Co., supra, 204 Conn. 489; Ricard v. Stanadyne, Inc., 181 Conn. 321, 323, 435 A.2d 352 (1980); Olszewski v. State Employees’ Retirement Commission, 144 Conn. 322, 325, 130 A.2d 801 (1957). The provision contains no special rule or qualifier for employees’ rights of action. As the statute’s unambiguous language indicates, the nonparty’s right of action abates whether the nonparty is the employer or the employee. Identical language applies to both employers and employees; therefore, they must be treated identically.

The plaintiff asserts that the abatement clause conflicts with the earlier statement in § 31-293 (a) that payment under the act shall not affect an injured employee’s right to proceed at law. These provisions do not conflict. The “shall not affect” clause preserves to the employee the common law right to proceed in tort against the third party. Norwalk v. Van Dyke, supra, 33 Conn. Sup. 665-66, citing Uva v. Alonzy, supra, 116 Conn. 97. The abatement provision is neither payment nor compensation under the act. Thus, to the extent that the abatement provision limits the plaintiffs common law right, it is not contradicted by the statement that payment or compensation shall not affect the employee’s right.

The plaintiff urges us to interpret the “shall not affect” clause as limiting the effect of the abatement provision. Under the plaintiff’s interpretation, the employee’s right of action abates only to the extent of compensation paid under the act. See Sherburne v. C. S. Mersick & Co., 35 Conn. Sup. 60, 395 A.2d 351 (1977). The plaintiff’s suggestion suffers from the same problem he purports to remedy. If the employee’s right of action were abated to the extent of compensation received under the act, his right of action would be affected by compensation: the employee would have lost the right to collect for his medical expenses simply because he had been compensated for those under the act. Thus, under the plaintiff’s interpretation, the employee’s right of action would be affected by payment or compensation under the act. His solution solves nothing.

Further, the plaintiff’s interpretation supposes that the injured employee has a right to recover his medical expenses from the third party tortfeasor in addition to his recovery under the act. One of the purposes of § 31-293 is to prevent, not permit, such a double recovery. Durniak v. August Winter & Sons, Inc., 222 Conn. 775, 779-80, 610 A.2d 1277 (1992). Thus, under the plaintiffs interpretation, the only right of action abated by § 31-293 would be the employee’s right to a double recovery. Employees have no such right. Id.

The plaintiff argues that the employee’s right of action and the employer’s right of action deserve dissimilar treatment due to their dissimilar origins. Under this theory, an employer’s right of action should abate under § 31-293 (a) because that right of action was created by statute. Conversely, the employee’s right of action should not abate because it was created by common law.

“A person has no property, no vested interest, in any rule of the common law. That is only one of the forms of municipal law, and is no more sacred than any other. . . . [T]he law itself, as a rule of conduct, may be changed at the will, or even at the whim, of the legislature, unless prevented by constitutional limitations.” (Internal quotation marks omitted.) Gentile v. Altermatt, 169 Conn. 267, 283, 363 A.2d 1 (1975), appeal dismissed, 423 U.S. 1041, 96 S. Ct. 763, 46 L. Ed. 2d 631 (1976), quoting Munn v. Illinois, 94 U.S. 113, 134, 24 L. Ed. 77 (1877).

The common law created the employee’s right of action against third party tortfeasors; the “shall not affect” clause of § 31-293 (a) preserved that right. The abatement provision alters the right, as is the legislature’s prerogative. We decline to read into the straight forward language of § 31-293 an exception for employee’s rights of action. “We have repeatedly observed that our act represents a complex and comprehensive statutory scheme balancing the rights and claims of the employer and the employee arising out of work-related personal injuries. Because of the comprehensive nature of the act, the responsibility for carving out exceptions from any one of its provisions belongs to the legislature and not to the courts.” Durniak v. August Winter & Sons, Inc., supra, 222 Conn. 781; see Gurliacci v. Mayer, 218 Conn. 531, 579, 590 A.2d 914 (1991) (declining to create exception to notice requirements of § 31-293 [a] contrary to clear legislative intent). Just as the employer’s right of action against a third party tortfeasor abates upon the employer’s failure to join the employee’s suit, the employee’s right of action abates upon the employee’s failure to join the employer’s suit within thirty days of receiving notice.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 31-293 (a) provides in pertinent part: “When any injury for which compensation is payable under the provisions of this chapter has been sustained under circumstances creating in a third person other than the employer a legal liability to pay damages for the injury, the injured employee may claim compensation under the provisions of this chapter, but the payment or award of compensation shall not affect the claim or right of action of the injured employee against the third person, but the injured employee may proceed at law against the third person to recover damages for the injury; and any employer having paid, or having become obligated to pay, compensation under the provisions of this chapter may bring an action against the third person to recover any amount that he has paid or has become obligated to pay as compensation to the injured employee. If either the employee or the employer brings an action against the third person, he shall immediately notify the other, in writing, by personal presentation or by registered or certified mail, of the action and of the name of the court to which the writ is returnable, and the other may join as a party plaintiff in the action within thirty days after such notification, and, if the other fails to join as a party plaintiff, his right of action against the third person shall abate. . . .”

       The abatement provision of General Statutes § 31-293 (a) is that part of the statute providing that if the nonparty fails to join as a party plaintiff within thirty days of notification of suit against the third party, “his right of action against the third person shall abate.” This provision has existed almost unchanged since adopted in 1915. Public Acts 1915, c. 288, §2.

       The plaintiff also claims that General Statutes § 31-293 violates the fourteenth amendment to the United States constitution and article first, §§10 and 20, of the Connecticut constitution, and that the sufficiency of the notice should have been submitted to the ultimate trier of fact. Because these claims were not distinctly raised below, we will not address them. Practice Book § 4185; Statewide Grievance Committee v. Whitney, 227 Conn. 829, 845-46, 633 A.2d 296 (1993).

       General Statutes §§ 31-275 through 31-355a.

       We note that inclusion of this information satisfied all of the substantive requirements of the notice provision of General Statutes § 31-293 (a). Winslow v. Lewis-Shepard, Inc., supra, 216 Conn. 538 (holding that § 31-293 [a] requires notice of only [1] fact that suit has been brought, and [2] name of court to which writ is returnable).

       To the extent that this holding conflicts with Sherburne v. C. S. Mersick & Co., 35 Conn. Sup. 60, 395 A.2d 351 (1977), Sherburne is overruled.

       General Statutes § 31-293 (a) has four overlapping goals. First, the statute protects injured employees by allowing a suit against third party tortfeasors to recover damages uncompensated by a workers’ compensation award. Durniak v. August Winter & Sons, Inc., 222 Conn. 775, 779, 610 A.2d 1277 (1992). Second, the statute protects employers by allowing them to obtain reimbursement for compensation paid to employees under the act. Id. Third, the statute prevents double recovery by employees. Id., 779-80. Fourth, it reenforces the public policy that, between employers and employees, the act provides the exclusive remedy for personal injury to an employee. Id., 780. Thus, we note that the court in Sherburne v. C. S. Mersick & Co., supra, 35 Conn. Sup. 64, recognized only one of the four purposes behind § 31-293 (a).


author: O’Connell, J.

text:
    Castle Apartments, Inc. v. Deanna L. Pichette
    (12443)
    O’Connell, Landau and Schallek, Js.
    Argued March 1
    decision released May 31, 1994

      Deanna L. Pichette, pro se, the appellant (defendant).

      Roger G. Nielson, for the appellee (plaintiff).
   O’Connell, J.

This is the defendant tenant’s appeal from the granting of a final stay of execution in a summary process action grounded on nonpayment of rent. On August 19, 1992, the trial court, Berger, J., rendered judgment in accordance with the parties’ stipulation providing that judgment of possession enter in favor of the plaintiff landlord with a stay of execution through September 30,1993. The stipulated judgment also required the defendant to make monthly use and occupancy payments.

Thereafter, the plaintiff filed an affidavit regarding noncompliance with the stipulation, averring that the defendant failed to make the required use and occupancy payments. On March 22, 1993, an execution issued against the defendant. The defendant filed a motion seeking an injunction prohibiting the plaintiff from using the execution to evict her. On April 5,1993, the trial court, Holzberg, J., enjoined enforcement of the execution and granted a final stay of execution through July 31, 1993. The defendant has appealed from Judge Holzberg’s decision. We affirm the judgment of the trial court.

The defendant did not appeal from the August 19, 1992 judgment of possession in favor of the plaintiff and is now time barred from raising any claim that should have been raised in an appeal from that judgment, including the right to possession. Additionally, because the defendant failed to move to open or set aside that judgment, she has waived any claim stemming from it. On appeal, the defendant is limited to her argument that on April 5, 1993, the trial court improperly imposed a “final” stay of execution and that she is entitled to have the execution stayed for an additional period of time.

A problem arises, however, because the defendant vacated the premises during the pendency of this appeal. We have consistently held that an appeal from a summary process judgment becomes moot where, at the time of appeal, the defendant is no longer in possession of the premises. New Haven v. Konstandinidis, 29 Conn. App. 139, 612 A.2d 822, cert. denied, 224 Conn. 920, 618 A.2d 527 (1992); Evergreen Manor Associates v. Farrell, 9 Conn. App. 77, 515 A.2d 1081 (1986); Yankee Sailing Co. v. Yankee Harbor Marina, Inc., 5 Conn. App. 153, 497 A.2d 93 (1985).

The Yankee Sailing Co. line of cases, however, must be read in light of our Supreme Court’s recent decision in Housing Authority v. LaMothe, 225 Conn. 757, 765, 627 A.2d 367 (1993). In LaMothe, the Stamford housing authority brought a summary process action against a family in low income subsidized housing. The parties entered into a stipulated judgment giving possession to the landlord but staying the execution for a period of time. The tenants filed a motion to open that judgment claiming that they did not knowingly enter into the agreement on which the stipulated judgment was based. The trial court denied the motion and, while an appeal from the denial was pending, the tenants abandoned the premises. The landlord argued that the appeal was moot because the tenants were out of possession. The Supreme Court concluded that the appeal was not moot because adverse collateral consequences might flow from the judgment of possession since the tenants might have difficulty obtaining subsidized housing in the future. Id., 765-66. Consequently, the Supreme Court remanded the case to the trial court for an evidentiary hearing on the motion to open the judgment.

Although the defendant in the present appeal is also a tenant in low income subsidized housing, this appeal can be distinguished from LaMothe, which concerned the opening of a judgment of possession. Unlike LaMothe, the tenant here is barred from challenging the judgment of possession because she failed to file a motion to open or set aside that judgment in the trial court. Regardless of the result of this appeal, the summary process judgment will remain in effect. Thus, the collateral consequences that were of concern to the LaMothe court are not relevant here. The defendant here is out of possession and has foregone her right to appellate review concerning the issue of possession; any of her claims that stem from the trial court’s April 5,-1993 judgment are moot.

Simply stated, the question of extending the time within which the plaintiff is barred from evicting the defendant from premises that she does not occupy is a classic example of mootness. Because this court does not entertain moot questions, disconnected from the granting of actual relief or from the determination of which no practical relief can follow; New Haven v. Konstandinidis, supra, 29 Conn. App. 141-42; the appeal must be dismissed.

The appeal is dismissed as moot.

In this opinion the other judges concurred.

       The defendant also claims that she is entitled to reimbursement of $300 she paid covering the plaintiff’s attorney’s fees, sheriff’s fees and court costs. It is not clear that this claim was raised in the trial court because such an order is not reflected in the judgment file. Furthermore, no transcript of the trial court proceedings has been furnished to this court. Accordingly, we will not consider this claim.


author: Per Curiam.

text:
    In re Marius M.

    (12707)
    Dupont, C. J., Heiman and Spear, Js.
    Argued April 27
    decision released May 31, 1994

      Catherine E. Teitell, assistant public defender, for the appellant (defendant).

      Leah Hawley, assistant state’s attorney, with whom, on the brief, were Donald Browne, state’s attorney, and Joseph Corradino, assistant state’s attorney, for the appellee (state).

       In accordance with the spirit and intent of General Statutes §§ 54-76Z and 46b-142 (b), and Practice Book § 4166B.2, the names of the parties involved in this appeal are not disclosed. The records and papers of this case shall be open for inspection only to persons having a prior interest therein and upon order of the Appellate Court.

   Per Curiam.

The defendant appeals from the judgment of the trial court revoking his probation and committing him to the custody of the commissioner of correction to serve a previously suspended one year sentence that he had received after being adjudged a youthful offender. At the conclusion of the evidence in the probation revocation hearing, the trial court stated: “I am reasonably satisfied to the standard of the probation violation that the defendant has been shown to be in violation of the conditions of his probation.” The trial court applied a reasonable satisfaction standard of proof for finding a violation of probation pursuant to this court’s holding in State v. Davis, 29 Conn. App. 801, 813, 618 A.2d 557 (1993). Our Supreme Court recently reversed Davis, holding that the proper standard of proof for establishing a violation of probation is a fair preponderance of the evidence. State v. Davis, 229 Conn. 285, 295, 641 A.2d 370 (1994). Davis was remanded to this court with direction to reverse the judgment of the trial court and to remand the case for a new probation revocation hearing. Id., 303. We now treat the present case in a similar manner and remand it for a new probation revocation hearing.

An issue that is likely to arise during the new hearing is the admissibility of a certain drug evaluation report prepared by an agency known as “Youth Evaluation Services” and furnished to the probation department. The trial court admitted the report over the defendant’s objection that the state had not qualified it as a business record under the business records exception to the hearsay rule, General Statutes § 52-180 (a). Reliance on that statute is not necessary to admit the report as evidence in a probation revocation hearing because a court may consider any relevant, reliable and probative hearsay in such a hearing. State v. White, 169 Conn. 223, 239-40, 363 A.2d 143, cert. denied, 423 U.S. 1025, 96 S. Ct. 469, 46 L. Ed. 2d 399 (1975); State v. Scott, 31 Conn. App. 660, 666 n.3, 626 A.2d 817 (1993); State v. Davis, supra, 29 Conn. App. 811; State v. Baxter, 19 Conn. App. 304, 320, 563 A.2d 721 (1989).

The judgment is reversed and the case is remanded for a new probation revocation hearing.

       General Statutes § 52-180 (a) provides in pertinent part: “Any writing or record . . . made as a memorandum or record of any act, transaction, occurrence or event, shall be admissible as evidence of the act, transaction, occurrence or event, if the trial judge finds that it was made in the regular course of any business, and that it was the regular course of the business to make the writing or record at the time of the act, transaction, occurrence, or event or within a reasonable time thereafter.”


text:
    State of Connecticut v. Richard Burnhannan
    (12177)
    La very, Landau and Freedman, Js.
    Argued April 5
    decision released May 31, 1994

      Dennis C. Murphy, for the appellant (defendant).

      Jacqueline J. Footman, assistant state’s attorney, with whom, on the brief, were Eugene Callahan, state’s attorney, and Philip D’Eramo, assistant state’s attorney, for the appellee (state).
   Lavery, J.

The defendant appeals from the judgment of the trial court revoking his probation and sentencing him to serve the suspended portion of his original sentence. The defendant claims that the trial court improperly (1) failed to admit three letters from a psychiatrist treating the defendant, (2) showed bias against the defendant, (3) misconstrued a statement made by a witness, and (4) denied the defendant’s motion for a new hearing. We affirm the judgment of the trial court.

After pleading guilty to sexual assault in the fourth degree and risk of injury to a child, the defendant was sentenced to an effective prison term of seven years, execution suspended, and five years probation. His probation commenced June 17,1988. While on probation, the defendant was required to keep his probation officer informed of the location of his residence and his employment. He was also required to complete successfully a sexual abuse treatment program specified by the probation department.

The defendant failed to inform his probation officer of the location of his residence. He also failed to complete the sexual abuse treatment program. Although the defendant’s probation officer allowed him to begin another sexual abuse treatment program, he likewise failed to complete that program. The defendant was charged with violating his probation under General Statutes § 53a-32. After a hearing, the trial court found that the defendant had violated the conditions of his probation, and sentenced him to serve his original term of seven years in prison. This appeal followed.

“[Ujnder § 53a-32, a probation revocation hearing has two distinct components. . . . The trial court must first conduct an adversarial evidentiary hearing to determine whether the defendant has in fact violated a condition of probation. ‘At such hearing the defendant shall be informed of the manner in which he is alleged to have violated the conditions of his probation or conditional discharge, shall be advised by the court that he has the right to retain counsel and, if indigent, shall be entitled to the services of the public defender, and shall have the right to cross-examine witnesses and to present evidence in his own behalf.’ General Statutes § 53a-32 (a). If the trial court determines that the evidence has established a violation of a condition of probation, then it proceeds to the second component of probation revocation, the determination of whether the defendant’s probationary status should be revoked. On the basis of its consideration of ‘the whole record,’ the trial court ‘may continue or revoke the sentence of probation or conditional discharge or modify or enlarge the conditions, and, if such sentence is revoked, require the defendant to serve the sentence imposed or impose any lesser sentence.’ General Statutes § 53a-32 (b). In making this second determination, the trial court is vested with broad discretion. State v. Smith, 207 Conn. 152, 167, 540 A.2d 679 (1988) (‘[a] defendant who seeks to reverse the exercise of judicial discretion, assumes a heavy burden’).” (Citation omitted.) State v. Davis, 229 Conn. 285, 289-90, 641 A.2d 370 (1994).

The defendant first argues that the trial court abused its discretion by failing to admit into evidence three letters from a psychiatrist who was treating him. Soon after being discharged from the second sexual abuse program, the defendant began private counseling sessions with Joseph Waxberg, a psychiatrist. During the adversarial evidentiary hearing to determine whether the defendant had violated his probation, the defendant offered three letters. The letters were purportedly written by Waxberg, and ostensibly offered to counter the state’s recommendation that the defendant be incarcerated. The trial court sustained the state’s hearsay objections and excluded the letters because the court was not satisfied that the documents were either probative or reliable. The defendant asserts that the trial court abused its discretion in so ruling.

The defendant concedes that his treatment program with Waxberg did not satisfy the condition of his probation. Thus, the letters regarding his treatment were not relevant to the issue of whether the defendant had violated his probation. We conclude, therefore, that the trial court properly excluded the letters during the first portion of the hearing.

The letters would have been relevant, however, during the second portion of the probation revocation hearing. During that portion, the trial court determines whether the defendant’s probation should be revoked. State v. Davis, supra, 229 Conn. 289-90. That determination is based on the whole record. Id. The letters from Waxberg would properly have been part of the whole record if the defendant had offered them into evidence during the second portion of the hearing. The letters would have been relevant to the determination of whether the defendant’s probation should have been revoked. The defendant, however, did not attempt to offer the letters into evidence during the portion of the hearing in which they would have been relevant. Thus, there is no ruling from which to appeal. Therefore, the defendant’s first claim must fail.

The defendant next claims that the trial court was biased against the defendant. “The defendant’s claim of judicial bias was not preserved. No motion was made to disqualify the court, and there are no facts, and no indication from the record, from which we can conclude that the trial court was not impartial. See Dubaldo v. Dubaldo, 14 Conn. App. 645, 542 A.2d 750 (1988).” State v. Baxter, 19 Conn. App. 304, 321, 563 A.2d 721 (1989). Absent plain error, a claim of judicial bias cannot be reviewed on appeal unless preserved below. Cameron v. Cameron, 187 Conn. 163, 168, 444 A.2d 915 (1982). Plain error exists only in “truly extraordinary situations where the existence of the error is so obvious that it affects the fairness and integrity of and public confidence in the judicial proceedings.” Spicer v. Spicer, 33 Conn. App. 152, 162, 634 A.2d 902 (1993), cert. denied, 228 Conn. 920, 636 A.2d 850 (1994). When we apply this standard, it is clear that the trial court did not commit plain error. Therefore, the defendant’s second claim must also fail.

The defendant next asserts that the trial court improperly interpreted a piece of the evidence before it. The probation officer testified that a treating psychiatrist had recommended that the defendant continue to receive sexual abuse treatment but not be given any “slack.” During final arguments, the trial court specifically referred to the psychiatrist’s advice to give the defendant “no slack.” The defendant asserts that the trial court misconstrued the evidence by emphasizing the “no slack” recommendation but not accepting the continued treatment recommendation. He claims that the “no slack” recommendation applied solely to continued treatment.

“It was within the trial court’s discretion to determine the credibility of the witnesses and the weight to be given their testimony . . . .” State v. Baxter, supra, 19 Conn. App. 320-21. The defendant merely offers an interpretation of the evidence that differs from that of the trial court. Therefore, the defendant’s third claim must also fail.

Finally, the defendant claims that the court abused its discretion in not granting his motion for a new hearing. “The motion was not timely filed. Practice Book § 903 provides that ‘[ujnless otherwise permitted by the judicial authority in the interests of justice, a motion for a new trial shall be made within five days after a verdict or finding of guilty or within any further time the judicial authority allows during the five-day period.’ (Emphasis added.) The defendant’s motion was not filed within the time specified. Even if the motion had been filed timely or if the court had decided that in the interests of justice such a motion should have been heard, the granting of a motion for a new trial is wholly discretionary. State v. Asherman, 193 Conn. 695, 735, 478 A.2d 227 (1984), cert. denied, 470 U.S. 1050, 105 S. Ct. 1749, 84 L. Ed. 2d 814 (1985). The court’s ruling on a motion for a new trial should stand unless it is shown that the court abused its discretion. Kubeck v. Foremost Foods Co., 190 Conn. 667, 669-70, 461 A.2d 1380 (1983). Here, the defendant has failed to demonstrate such abuse.” State v. Colon, 8 Conn. App. 111, 113-14, 510 A.2d 1023, cert. denied, 201 Conn. 812, 517 A.2d 1023 (1986). Therefore, the defendant’s fourth claim must also fail.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 53a-32 provides in pertinent part: “(a) At any time during the period of probation . . . the court . . . may issue a warrant for the arrest of a defendant for violation of any of the conditions of probation .... Thereupon . . . the court shall cause the defendant to be brought before it without unnecessary delay for a hearing on the violation charges. At such hearing the defendant shall be informed of the manner in which he is alleged to have violated the conditions of his probation . . . shall be advised by the court that he has the right to retain counsel and, if indigent, shall be entitled to the services of the public defender, and shall have the right to cross-examine witnesses and to present evidence in his own behalf.
      “(b) If such violation is established, the court may continue to revoke the sentence of probation ... or modify or enlarge the conditions, and, if such sentence is revoked, require the defendant to serve the sentence imposed or impose any lesser sentence. No such revocation shall be ordered, except upon consideration of the whole record and unless such violation is established by reliable and probative evidence.”


author: Landau, J.

text:
    Expressway Associates II v. Friendly Ice Cream Corporation of Connecticut
    (11891)
    O’Connell, Foti and Landau, Js.
    Argued October 26, 1993
    decision released May 31, 1994

      John Alan Sakon, general partner, pro se, for the appellant (plaintiff).

      William H. Champlin III, with whom, on the brief, was Kristine D. Ragaglia, for the appellee (defendant).
   Landau, J.

In a second visit to this court, Expressway Associates II (Expressway) appeals from the trial court’s decision denying its motion for contempt sought against Friendly Ice Cream Corporation of Connecticut (Friendly) for violation of a court order pursuant to an injunction. The gist of Expressway’s claims on appeal is that the trial court improperly found that Expressway had failed to satisfy the burden of proof necessary to support a finding of contempt.

Before we address the plaintiff’s claims, we must first confront the threshold issue of whether a general partner of a partnership who is not an attorney may appear and participate, pro se, in an appeal on behalf of the general partnership.

A summary and explanation of the procedural posture of the case is useful. On June 7,1988, a complaint verified and signed by John A. Sakon, as a general partner, was filed in the Superior Court, Hartford County, praying for a temporary and permanent injunction and damages. Expressway, appearing through an attorney, alleged in its complaint, inter alia, that it “is a general partnership formed and doing business under the laws of the State of Connecticut.” After the pleadings were closed and following a trial, judgment was rendered for the defendant, and the plaintiff appealed to this court. The judgment was reversed and the case was remanded to the trial court with direction to render judgment for the plaintiff granting the injunctive relief sought and for further proceedings to determine the amount of damages to be awarded consistent with the appellate opinion. Expressway Associates II v. Friendly Ice Cream Corp. of Connecticut, 22 Conn. App. 124, 131, 576 A.2d 575 (1990). Friendly filed a petition for certification to the Supreme Court, which was granted limited to the issue of damages. Expressway Associates II v. Friendly Ice Cream Corp. of Connecticut, 216 Conn. 811, 580 A.2d 56 (1990). On January 2,1991, the trial court, Maloney, J., rendered a partial judgment in accordance with the order of this court and granted the injunctive relief sought by Expressway. The Supreme Court reversed the judgment of this court on the certified issue of damages and ordered a nominal award of $1 to Expressway. Expressway Associates II v. Friendly Ice Cream Corp. of Connecticut, 218 Conn. 474, 590 A.2d 431 (1991). On November 29, 1991, the plaintiff filed a motion for contempt and, after a hearing, the trial court, Hammer, J., denied the motion. This appeal followed. At argument, heedful of the issue of pro se representation of the partnership, we ordered supplemental briefs addressed to this issue.

At the outset, it is important to take note of certain facts concerning representation. The plaintiff named in the action and on appeal is “Expressway Associates II.” Upon the filing of the writ, summons and complaint on June 7, 1988, Expressway was represented by Attorney Gary Greene. See Practice Book § 64. On November 29, 1991, Attorney Danny M. Smolnik filed an appearance for the plaintiff “in lieu of appearance of attorney or firm Pullman, Comley, Bradley & Reeves.” On or about March 2, 1992, John Alan Sakon filed an “appearance” on behalf of the plaintiff (indicated in the file as “Expressway Assoc. II”) “in addition to the appearance already on file.” Smolnik’s motion to withdraw his appearance was granted by the trial court on November 2, 1992, following the filing of a pro se appearance by Sakon, for “the plaintiff . . . in lieu of appearance of attorney . . . Smolnik” on August 27, 1992. This appeal was filed on November 16, 1992, and Sakon signed for the plaintiff, “pro se.”

Sakon claims that (1) he is the real party in interest in that he “owns and controls all the interest in the . . . action” and may proceed pro se pursuant to General Statutes § 51-88 (d) (2), (2) the court and parties have waived their rights to object, and (3) it would be inequitable to rule that it is inappropriate for him to be heard in that there is no threat to the public interest.

Any person who is not an attorney is prohibited from practicing law, except that any person may practice law, or plead in any court of this state “in his own cause.” General Statutes § 51-88 (d) (2). The authorization to appear pro se is limited to representing one’s own cause, and does not permit individuals to appear pro se in a representative capacity. “ ‘In Connecticut, a corporation may not appear pro se. . . . A corporation may not appear by an officer of the corporation who is not an attorney.’ ” (Citations omitted.) Triton Associates v. Six New Corp., 14 Conn. App. 172, 175-76, 540 A.2d 95, cert. denied, 208 Conn. 806, 545 A.2d 1104 (1988). This is so, despite the fact that the officer may be the principal shareholder of that corporation. Id. “It must be remembered . . . that a‘corporation’ is but a fictional ‘person,’ created by statute and endowed only with those attributes given by statute. See General Statutes c. 599; Hale v. Henkel, [201 U.S. 43, 74-75, 26 S. Ct. 370, 50 L. Ed. 2d 652 (1906)]. A corporation ‘speaks’ only by virtue of personification.” Lieberman v. Reliable Refuse Co., 212 Conn. 661, 674, 563 A.2d 1013 (1989). The Supreme Court of the United States and federal courts of appeal have declared that fictional entities may not appear in civil actions pro se. See Rowland v. California Men’s Colony, U.S. , 113 S. Ct. 716, 721, 121 L. Ed. 2d 656 (1993). “It has been the law for the better part of two centuries . . . that a corporation may appear in the federal courts only through licensed counsel. Osborn v. Bank of the United States, 9 Wheat. 738, 829, 6 L. Ed. 204 (1824); see Turner v. American Bar Assn., 407 F. Sup. 451, 476 (N.D. Tex. 1975) (citing the ‘long line of cases’ from 1824 to [1993] holding that a corporation may only be represented by licensed counsel), affirmance order sub nom. Taylor v. Montgomery, 539 F.2d 715 (7th Cir. 1976), and aff’d sub nom. Pilla v. American Bar Assn., 542 F.2d 56 (8th Cir. 1976). . . . Thus, save in a few aberrant cases, the lower [federal] courts have uniformly held that 28 U.S.C. § 1654, providing that ‘parties may plead and conduct their own cases personally or by counsel,’ does not allow corporations, partnerships, or associations to appear in federal court otherwise than through a licensed attorney. See, e.g., Eagle Associates v. Bank of Montreal, 926 F.2d 1305 (2d Cir. 1991) (partnership); Taylor v. Knapp, 871 F.2d 803, 806 (9th Cir.) (nonprofit corporation formed by prison inmates), cert. denied, 493 U.S. 868, 110 S. Ct. 192, 107 L. Ed. 2d 146 (1989); Jones v. Niagara Frontier Transportation Authority, 722 F.2d 20, 22 (2d Cir. 1983) (corporation); Richdel, Inc. v. Sunspool Corp., 699 F.2d 1366 (Fed. Cir. 1983) (per curiam) (corporation); Southwest Express Co. v. ICC, 670 F.2d 53, 55 (5th Cir. 1982) (per curiam) (corporation); In re Victor Publishers, Inc., 545 F.2d 285, 286 (1st Cir. 1976) (per curiam) (corporation); Strong Delivery Ministry Assn. v. Board of Appeals of Cook County, 543 F.2d 32, 34 (7th Cir. 1976) (per curiam) (corporation); United States v. 9.19 Acres of Land, 416 F.2d 1244, 1245 (6th Cir. 1969) (per curiam) (corporation); Simbraw, Inc. v. United States, 367 F.2d 373, 374 (3d Cir. 1966) (per curiam) (corporation).” Rowland v. California Men’s Colony, supra, 113 S. Ct. 721. Thus, the rationale for the rule in corporate cases applies equally to all artificial entities. Id. Our federal courts have earlier articulated their reasons behind this requirement: “[T]he conduct of litigation by a nonlawyer creates unusual burdens not only for the party he represents but as well for his adversaries and the court. The lay litigant frequently brings pleadings that are awkwardly drafted, motions that are inarticulately presented, proceedings that are needlessly multiplicative. In addition to lacking the professional skills of a lawyer, the lay litigant lacks many of the attorney’s ethical responsibilities, e.g., to avoid litigating unfounded or vexatious claims.” Jones v. Niagara Frontier Transportation Authority, supra, 722 F.2d 22.

Sakon directs our attention to the Ninth Circuit decision in United States v. Reeves, 431 F.2d 1187 (9th Cir. 1970), a reported decision of our Superior Court, Margaret Maunder Associates, Inc. v. A-Copy, Inc., 40 Conn. Sup. 361, 499 A.2d 1172 (1985), and an unreported memorandum of decision of our Superior Court, United Illuminating Co. v. Res-Comm Investment Associates, Superior Court, judicial district of New Haven, Docket No. 281801 (August 22, 1991) (ruling on motion to strike appearance of pro se litigant).

The Reeves court held that because the Alaska partnership statute provides that each partner has a specific right in partnership property, “[i]t follows that . . . [the appellant-partner], as a member of that partnership, was pleading his own case.” United States v. Reeves, supra, 431 F.2d 1188. On that basis, the court permitted the partnership to be represented by a lay partner. In United Illuminating, the trial court first noted that “there is nothing in the file ... to indicate that ‘Res-Comm Investment Associates’ is a partnership” and that [Res-Comm Investment Associates] “could very well be an individual proprietorship.” United Illuminating Co. v. Res-Com — Investment Associ ates, supra. It then stated, “Nevertheless, even if it was a partnership, of which [the pro se litigant] is a member, surely he could file a pro se appearance to represent his own interests in that partnership”; id.; and denied the motion to strike the pro se appearance citing Reeves and Eagle Associates v. Bank of Montreal, 926 F.2d 1305 (2d Cir. 1991) (Van Graafesland, J., concurring).

We agree with the Eagle court majority, which stated: “We are not persuaded by the reasoning and conclusions advanced in Reeves and its holding appears to conflict with other pronouncements in that circuit. E.g., Church of the New Testament v. United States, 783 F.2d 771, 773-74 (9th Cir. 1986) (unincorporated associations cannot be represented by laypersons); McShane [v. United States, 366 F.2d 286, 288 (9th Cir. 1966)] (laypersons may not represent other litigants); Russell v. United States, 308 F.2d 78, 79 (9th Cir. 1962) (per curiam) (same).” Eagle Associates v. Bank of Montreal, 926 F.2d 1309. Judge Timbers, opining for the Second Circuit majority in that case, wrote: “Furthermore, we agree with Judge (now Justice) Souter’s critical characterization of the Reeves decision in State of New Hampshire v. Settle, 129 N.H. 171, 523 A. 2d 124 (1987). The court in that case addressed the issue of whether an unincorporated association could be represented by a non-attorney officer. In concluding that a lay person could not represent the association, Judge Souter rejected the reasoning of the Reeves court: ‘The Ninth Circuit construed the provision of 28 U.S.C. § 1654, allowing personal appearance by a party, to permit a lay partner to appear on behalf of a partnership. Although the court reasoned that in representing the partnership he was representing his own interest, this begs the relevant question, which is whether the partner was representing any one else at the same time. Because he was necessarily representing the other partners as well, the Reeves court was mistaken in its implicit conclusion that the one partner’s appearance effected nothing more than personal representation. Reeves was analytical sport, without persuasive claim to be followed.’ [State v. Settle, supra, 129 N.H. 178].” Eagle Associates v. Bank of Montreal, supra, 1309.

Here, Sakon has filed a pro se appearance to represent Expressway, the appellant. He argues that we should recognize that he is the “real party in interest” in Expressway, and that he could convert the partnership to a sole proprietorship. Unfortunately this court does not adjudicate factual issues and we are bound in this case by the pleadings and factual findings of the trial court. Adriani v. Commission on Human Rights & Opportunities, 228 Conn. 545, 549, 636 A.2d 1360 (1994). When Sakon attempts to represent the partnership, he is representing more than just himself. We have no idea whether his interests may be incongruous with that of any partners. The record fails to demonstrate anything other than the fact that Expressway is a partnership, and the situation is magnified in that Expressway alleges in its complaint that it is a partnership.

We therefore hold that an individual who is not an attorney and who is a general partner of a partnership may not appear and participate, pro se, in an appeal on behalf of a general partnership. Because the appeal was filed by Sakon, pro se, on behalf of the partnership, the appeal must be dismissed.

The appeal is dismissed.

In this opinion the other judges concurred.

        Expressway Associates II v. Friendly Ice Cream Corp. of Connecticut, 22 Conn. App. 124, 576 A.2d 575 (1990), rev’d in part, 218 Conn. 474, 590 A.2d 431 (1991).

       Although there was an appeal to the Supreme Court that was limited to the issue of damages, the trial court retained jurisdiction to carry out the directive of the Appellate Court.

       John Alan Sakon, who signed the verification of the original complaint as a general partner, alleges in briefs and appendices he filed and at argument that he filed a pro se appearance “in addition to appearance already on file” in the case on June 7,1988. This does not appear in the court file.
      In addition, although a motion to withdraw was filed on October 21,1991, by Attorney James T. Shearin of the firm Pullman, Comley, Bradley & Reeves and was granted by the trial court, Aronson, J., on December 17, 1991, nowhere in the court file is an appearance by Shearin to be found.
      To add to the confusion, the record does not contain Attorney Gary Greene’s disappearance.

       Although the court file does indicate that this appearance was filed, the date is illegible.

       A similar pro se appearance was also filed on October 27, 1992.

       Sakon, in his brief, supports this claim citing General Statutes § 51-88 (d) (3). Although he cites this section in at least two instances, we believe this to be a typographical error in that the section cited permits a person to act as an agent or representative for a party in an international arbitration as defined in subsection (3) of General Statutes § 50a-101. Because this is certainly not the case, we assume that he intended to cite General Statutes § 51-88 (d) (2) and proceed on that basis. General Statutes § 51-88 (d) provides in pertinent part: “The provisions of this section shall not be construed as prohibiting ... (2) any person from practicing law or pleading at the bar of any court of this state in his own cause; or (3) any person from acting as an agent or representative for a party in an international arbitration as denied in subsection (3) of section 50a-101.”

       Before Triton Associates was decided, the Superior Court in Margaret Maunder Associates, Inc. v. A-Copy, Inc., 40 Conn. Sup. 361, 499 A.2d 1172 (1985), permitted a plaintiff corporation, which had properly appeared pro se in the small claims part of the civil division through its president and sole shareholder who was not an attorney, to continue its action pro se on the regular docket after removal by the defendant. Practice Book § 552, however, permits corporations to be represented by officers in small claims actions, and the court reasoned that because it was only by the defendant’s action that the case appeared on the regular docket, the corporation should not be affected. In Triton, we stated: “While we need not indicate whether we approve or disapprove of the reasoning or conclusion reached in the Margaret Maunder Associates case, its facts and the court’s reasoning make it inapplicable to our analysis of the facts presented in this case.” Triton Associates v. Six New Corp., supra, 14 Conn. App. 176. We find that the facts in Maunder are both procedurally and factually distinguishable from this case.

       “Two federal cases cited by respondent are the only two, of which we are aware, to hold that artificial entities may be represented by persons who are not licensed attorneys: United States v. Reeves, 431 F.2d 1187 (9th Cir. 1970) (per curiam) (partner can appear on behalf of a partnership), and In re Holliday’s Tax Services, Inc., 417 F. Supp. 182 (E.D.N.Y. 1976) (sole shareholder can appear for a closely-held corporation), affirmance order sub nom. Holliday’s Tax Service, Inc. v. Hauptman, 614 F.2d 1287 (2d Cir. 1979). These cases neither follow federal precedent, nor have themselves been followed. See, e.g., Eagle Associates v. Bank of Montreal, 926 F.2d 1305, 1309-1310 (2d Cir. 1991) (criticizing and refusing to follow Reeves); Jones v. Niagara Frontier Transportation Authority, 722 F.2d 20, 22 n.3 (2d Cir. 1983) (distinguishing and narrowing Holliday’s Tax Services).” Rowland v. California Men’s Colony, supra, 113 S. Ct. 721 n.5.

       See footnote 6; Margaret Maunder Associates, Inc. v. A-Copy, Inc., supra, 40 Conn. Sup. 361.

       The requirement that all interested parties of a general partnership be represented either in their own individual capacities, i.e., pro se or by counsel, is a substantive requirement. Noncompliance with such a rule is a “jurisdictional defect that may be raised on the court’s own motion.” See Lo Sacco v. Young, 210 Conn. 503, 508, 555 A.2d 786 (1989). Having all the parties in interest before the court invokes subject matter jurisdiction, we cannot adjudicate the interests of parties who are not present. Mr. Sakon does not have standing to represent the general partnership. “ ‘Standing is the legal right to set judicial machinery in motion. One cannot rightfully invoke the jurisdiction of the court unless he [or she] has, in an individual or representative capacity, some real interest in the cause of action, or a legal or equitable right, title or interest in the subject matter of the controversy. (Citations omitted.) Sadloski v. Manchester, 228 Conn. 79, 84, 634 A.2d 888 (1993).


author: Cretella, J.

text:
    Francis A. Miniter et al. v. Zoning Board of Appeals of the Town of Berlin et al.
    (12642)
    Landau, Spear and Cretella, Js.
    Argued March 28
    decision released May 31, 1994

      Kenneth R. Slater, Jr., with whom, on the brief, was E. Timothy Sullivan, Jr., for the appellants (defendants).

      Barbara E. Gardner, for the appellees (plaintiffs).
   Cretella, J.

This saga of the couple who sought permission to construct a “mother-in-law” suite in their one-family house commenced in April, 1987, when the plaintiffs applied for a building permit to construct a single-family house with the “mother-in-law” suite on the second floor. The building inspector approved the building plans, except for the upstairs suite for which permission was denied. The plaintiffs appealed that denial to the Berlin zoning board of appeals and alternatively sought a variance that would have allowed the second floor suite. The defendant board duly published the advertisement for the hearing but referred only to the variance and omitted any reference to the appeal from the building inspector’s partial denial of their application.

At the hearing, the board did not discuss the appeal, considering only the variance, which was denied. On appeal from that decision, the Superior Court upheld the board’s denial of the variance and ruled that by requesting the variance, the plaintiffs had waived their right to appeal from the building inspector’s denial. This court in Miniter v. Zoning Board of Appeals, 20 Conn. App. 302, 566 A.2d 997 (1989), relying on General Statutes § 8-6a, ruled that the appeal and the request for a variance were not mutually exclusive. The case was ultimately remanded to the board for consideration of the appeal from the building inspector’s denial of the permit application.

The board then readvertised the matter using the identical form of public advertisement that it had originally utilized in 1987, i.e., giving notice of the plaintiffs’ request for a variance only, and making no mention of the appeal from the building inspector’s denial. The public hearing was held on April 24,1990, where the board first considered the denial by the building inspector and then the request for a variance. On May 22,1990, the board upheld the building inspector’s partial denial of the plaintiffs’ permit application and then denied the request for a variance.

On the plaintiff’s appeal to the Superior Court, the trial court for the first time raised the issue of the advertisement of the public hearing, noting that the notice was silent on the subject of the appeal of the denial by the building inspector. After inviting briefs from the parties on that issue, the court sustained the plaintiffs’ appeal without considering the merits of the building inspector’s denial or the denial of the variance. It found that the board had failed to give proper notice of the appeal prior to the hearing and proper posthearing notice pursuant to General Statutes § 8-7. The board filed the present appeal that the Superior Court should have again remanded the matter to the claiming board for reconsideration of the plaintiffs’ application rather than sustaining the appeal without a remand.

“Compliance with prescribed notice requirements is a prerequisite to a valid action by a zoning board of appeals and failure to give proper notice constitutes a jurisdictional defect.” Wright v. Zoning Board of Appeals, 174 Conn. 488, 491, 391 A.2d 146 (1978). The notice requirement ensures that all affected parties will be advised of their opportunity to be heard and informed of the relief sought by the applicant. Koepke v. Zoning Board of Appeals, 223 Conn. 171, 175, 610 A.2d 1301 (1992), on remand, 30 Conn. App. 395, 620 A.2d 811, cert. granted, 226 Conn. 913, 628 A.2d 985 (1993).

Here, neither party disputes the Superior Court’s finding that the publication notice was insufficient under § 8-7. Although as a practical matter it may seem that the absence of any reference to the building inspector’s decision in the public notice of the hearing would have no effect on the general public’s awareness of the subject under consideration, there is a distinct legal difference between a variance and an appeal. The issue before the board on the building inspector’s denial would involve the question of whether the building inspector had properly applied the zoning regulations. See General Statutes § 8-6 (1). The issue on the variance would be whether the applicants had established a hardship to support the request for the variance. General Statutes § 8-6 (3). The fundamental difference between these two issues leads us to agree with the trial court’s determination that the public notice was legally deficient.

We do not agree, however, with the trial court’s action in sustaining the plaintiffs’ appeal without a remand. For reasons hereafter set forth, we conclude that the trial court should have remanded the matter to the board with direction to publish a correct notice referring to both the appeal from the denial by the building inspector and the request for a variance. The board then should, as it had previously done, consider and act first on the building inspector’s denial and then on the request for a variance. General Statutes § 8-6a.

In Koepke v. Zoning Board of Appeals, supra, 223 Conn. 171, which is cited extensively by both parties in their briefs, the trial court determined that the public notice was insufficient and the appeal by the aggrieved neighbor was late. This court agreed that the public notice was insufficient, sustained the trial court decision, and went no further. Koepke v. Zoning Board of Appeals, 25 Conn. App. 611, 595 A.2d 935 (1991), rev’d, 223 Conn. 171, 610 A.2d 1301 (1992). Although the Supreme Court agreed that the public notice was insufficient, it ordered this court to determine whether in fact the appeal was late. Koepke v. Zoning Board of Appeals, supra, 223 Conn. 178. The Supreme Court further directed that if this court concluded that the appeal was timely, the matter should be remanded to the board, through the Superior Court, for a correct notice and a new hearing. Id. The underlying theory behind this course of action was that, if the appeal was timely taken, the appellant should not be deprived of a review on the merits because of a defective public notice that had been unilaterally created and published by the board. Id., 178-79.

In the present case, because of its belief “that matters on remand should not be handled in such a cavalier manner,” the trial court did not remand the matter to the board, but in effect sought to punish the board. We are aware of no legal precedent that would permit the trial court to take this course of action. The failure of the defendant board to issue proper public notice created a jurisdictional defect that nullified the actions of the board. Id., 176-77. Thus, the case should be remanded to the board for the issuance of proper notice and consideration on the merits. Id., 178. As a policy matter, the disposition of zoning appeals on the merits strengthens the rationality of land use planning procedures. Id., 179-80.

The board’s mishandling of the notice may well have been inadvertent. We note that the form of the advertisement utilized by the board for the second hearing was identical, except for dates, etc., as that utilized for the first meeting. The notice for the first meeting was never challenged by the plaintiffs, by the trial court on the first appeal or by this court. To deprive the board of its right to decide these matters on the merits because of an insufficient notice that it never knew to be an issue would run counter to the policy expressed in Koepke v. Zoning Board of Appeals, supra, 223 Conn. 179-80.

The judgment is reversed and the case is remanded to the trial court with direction to render judgment remanding the case to the zoning board of appeals of the town of Berlin for a properly noticed hearing and determination on the merits.

In this opinion the other judges concurred.

       General Statutes § 8-7 provides in pertinent part that the zoning board of appeals shall hear appeals from the decisions of the official charged with enforcing the zoning regulations “and give due notice thereof to the parties. Notice of the time and place of such hearing shall be published in a newspaper having a substantial circulation in such municipality at least twice at intervals of not less than two days, the first not more than fifteen days, nor less than ten days, and the last not less than two days before such hearing. In addition to such notice, such board may, by regulation, provide for notice by mail to persons who are owners of land which is adjacent to the land which is the subject of the hearing.”

       General Statutes § 8-6a provides in pertinent part: “Whenever an application to a zoning board of appeals for the grant of a variance is joined with an appeal from any order, requirement or decision made by the official charged with the enforcement of this chapter . . . the board shall first decide the issues presented by such appeal.”

       General Statutes § 8-7 provides in pertinent part: “Whenever a zoning board of appeals grants or denies any special exception or variance . . . or sustains or reverses wholly or partly any order, requirement pr decision appealed from, it shall state upon its records the reason for its decision and the zoning bylaw, ordinance or regulation which is varied in its application or to which an exception is granted . . . . Notice of the decision of the board shall be published in a newspaper having a substantial circulation in the municipality and addressed by certified mail to any person who appeals to the board . . . within fifteen days after such decision has been rendered . . . .” The board’s failure to publish properly its decision was not disputed by the defendant on appeal.