author: LANDAU, J.

text:
    IN RE DANUAEL D.

    (AC 17185)
    Landau, Schaller and Dupont, Js.

      Argued November 5, 1998X
    officially released February 16, 1999

      Audrey C. Martinsky, for the appellant (respondent mother).

      Patricia E. Naktenis, assistant attorney general, with whom, on the brief, were Richard Blumenthal, attorney general, and Susan T. Pearlman, assistant attorney general, for the appellee (petitioner).

       In accordance with the spirit and intent of General Statutes § 46b-142 (b) and Practice Book § 79-3, 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 proper interest therein and upon order of the Appellate Court,

   Opinion

LANDAU, J.

The respondent mother appeals from the judgment of the trial court terminating her parental rights to her child, Danuael D. On appeal, the respondent mother claims that the trial court improperly found that (1) she failed to achieve personal rehabilitation and (2) she denied Danuael D., by reason of an act of parental commission or omission, the care, guidance or control necessary for his physical, educational, moral or emotional well-being. We affirm the judgment of the trial court.

On February 8, 1996, the department of children and families (DCF) filed a petition to terminate the parental rights of the respondents to their five year old child, Danuael D., pursuant to General Statutes (Rev. to 1995) § 17a-112, as amended by Public Acts 1995, No. 95-238, § 3 (effective October 1,1995). The termination petition alleged three adjudicatory grounds with respect to the respondent: (1) failure to achieve rehabilitation, (2) the child was denied, by reason of acts of commission or omission by the respondent, the care, guidance or control necessary for his physical, educational, moral or emotional well-being, and (3) there was no ongoing parent-child relationship with respect to the respondent and the child. The trial on the petition concluded on December 18,1996, and on April 2, 1997, the trial court rendered judgment, finding that DCF had established by clear and convincing evidence the adjudicatory grounds of failure to achieve rehabilitation and acts resulting in the denial to her son of the care, guidance or control necessary for his physical, educational, moral or emotional well-being. Furthermore, the trial court, in the dispositional phase, found by clear and convincing evidence that it was in Danuael’s best interest that the parental rights of the respondent be terminated. This appeal followed.

In a comprehensive memorandum of decision, the trial court set forth the following facts. “Danuael was bom on October 29,1990, the third out of wedlock child bom to his then twenty-four year old mildly retarded mother. None of the children share a common paternity. By her own admission, [the respondent] had used dmgs during her first two pregnancies (marijuana with [M]; cocaine with [Z]). [Z]’s father . . . was abusive toward [M] as well as toward [the respondent], . . . [I]n late 1989, [the respondent] began living with [the respondent father, L], becoming pregnant with Danuael at the same time that [M] and [Z] were taken into DCF custody following confirmation of physical abuse of both children (multiple unexplained fractures of differing ages; bruises; bums) that was presumably inflicted by [L] and from which [the respondent] appeared incapable of providing protection. . . . Following a trial, these two children were adjudicated neglected and abused and committed to DCF. . . .

“When Danuael was [approximately] nine months old, DCF . . . filed a petition alleging Danuael to have been neglected by reason of two episodes of physical abuse by [L] (a slapped face in May of 1991; a plastic ball thrown at his face, causing a bruise, two months later). . . . [T]he respondent [and L] moved to dismiss for failure to have established a prima facie case of neglect, as of the adjudicatory date of July 26, 1991. The motion was granted. . . .

“[At some point thereafter, L] was incarcerated for ten months .... Upon his release, despite the permanent loss of her two older children because of abuse by [L], [the respondent] resumed her relationship with him. At one time during this period, [the respondent] moved to New Haven in an effort to be free of his mistreatment of her, but, soon after, returned to Bridgeport to resume cohabiting with him ....

“[The respondent] and [L] and their son, Danuael, were living with [L]’s father when the police were called on April 8, 1994, in response to a report of domestic violence. . . . [B]oth parents were found to be under the influence of one or more substances, and were required to leave the paternal grandfather’s home. . . . [The respondent] had no place to go, so the child was placed on an emergency basis with DCF, which soon after filed a neglect petition and secured an order of temporary custody. . . .

“In his first three months as a foster child, Danuael had as many placements: First he was placed with the maternal great-aunt . . . [but] [a]fter seven weeks the aunt asked for his removal because of his uncontrollable behavior: enuresis [incontinence of urine], encopresis [involuntary defecation], smearing feces, swearing, and overtly sexualized acting out. Two subsequent unrelated foster homes requested his removal in a matter of days. An inpatient assessment at the Hospital of St. Raphael in July, 1994, resulted in a diagnosis that this behavior was a response to extreme, severe psychosocial stressors: Witness to domestic violence against his mother, abuse of his siblings and the subsequent incarceration of his father. In the months following, DCF attempted to follow the hospital’s recommendation to secure a therapeutic foster home combined with outpatient services. Two therapeutic foster homes were found, but both requested his removal because of his continued disturbed behaviors. After another inpatient psychiatric hospitalization, he was finally placed at Riverview Hospital on October 20, 1995, where he has remained through the conclusion of this trial. . . . [Danuael’s] principal diagnosis is posttraumatic stress syndrome resulting from the significant trauma experienced when living with his parents, much of which could have occurred even before he became verbal.

“After [L]’s incarceration, [the respondent] became involved with at least one other abusive boyfriend [S]. In testifying on her own behalf, she denied that [S] was a ‘boyfriend,’ although at one time she had arranged for her Social Security benefits to be paid to him as representative payee. [The respondent] admitted that [S] had beaten her, but said this had only happened once, in [October] of 1995, after which she broke up with him. She did not explain the source of the visible injuries on her face noted by Danuael’s clinicians during visits of March and April of 1996.”

The clinical assessment portion of the memorandum of decision indicates that the respondent “came to visit the first month Danuael was placed at Riverview but was not permitted to see him [because] she was exhibiting extensive bruises from a recent beating at the hands of [S]. [The respondent] appeared unable to understand why she could not see him in that condition. The following month she was permitted to visit even though her face still showed scars which upset her ‘parentified’ son. In apparent ignorance or indifference to his fear of bathrooms . . . [the respondent] took Danuael, during that first visit, into the bathroom and closed the door. Following that visit, the child had nightmares, displayed anxiety, acted out of control and reenacted past trauma using a guttural voice to utter adult swearing with sexual references. Despite appearing on two other visits with visible signs of having been abused (a bum in March of 1996; a bleeding cut the following month), [the respondent] was permitted to visit every month until October of 1996 when all visits were suspended during a planned transition into another therapeutic foster home.”

“The standard for review on appeal [from a termination of parental rights] is whether the challenged findings are clearly erroneous. In re Luis C., [210 Conn. 157, 166, 554 A.2d 722 (1989)]; In re Christina V., 38 Conn. App. 214, 223, 660 A.2d 863 (1995). The determinations reached by the trial court that the evidence is clear and convincing will be disturbed only if [any challenged] finding is not supported by the evidence and [is], in light of the evidence in the whole record, clearly erroneous. Pandolphe’s Auto Parts, Inc. v. Manchester, 181 Conn. 217, 221-22, 435 A.2d 24 (1980). In re Juvenile Appeal (84-3), 1 Conn. App. 463, 478, 473 A.2d 795, cert. denied, 193 Conn. 802, 474 A.2d 1259 (1984). In re Luis C., supra, 166.

“On appeal, our function is to determine whether the trial court’s conclusion was legally correct and factually supported. In re Michael M., [29 Conn. App. 112, 121, 614 A.2d 832 (1992)]; In re Megan M., 24 Conn. App. 338, 342, 588 A.2d 239 (1991); In re Davon M., 16 Conn. App. 693, 696, 548 A.2d 1350 (1988). We do not examine the record to determine whether the trier of fact could have reached a conclusion other than the one reached; Pandolphe’s Auto Parts, Inc. v. Manchester, [supra, 181 Conn. 222]; nor do we retry the case or pass upon the credibility of the witnesses. In re Christine F., 6 Conn. App. 360, 366-67, 505 A.2d 734, cert. denied, 199 Conn. 808, 809, 508 A.2d 769, 770 (1986). Rather, on review by this court every reasonable presumption is made in favor of the trial court’s ruling. State v. Jones, 205 Conn. 638, 660, 534 A.2d 1199 (1987). In re Kezia M., 33 Conn. App. 12, [17], 632 A.2d 1122, cert. denied, 228 Conn. 915, 636 A.2d 847 (1993); In re Felicia D., 35 Conn. App. 490, 499, 646 A.2d 862, cert. denied, 231 Conn. 931, 649 A.2d 253 (1994). ... In re Eden F, 48 Conn. App. 290, 309, 710 A.2d 771, cert. granted on other grounds, 245 Conn. 917, 717 A.2d 234 (1998).

“A hearing on a petition to terminate parental rights consists of two phases, adjudication and disposition. In re Tabitha P., 39 Conn. App. 353, 360, 664 A.2d 1168 (1995). In the adjudicatory phase, the trial court determines whether one of the statutory grounds for termination of parental rights exists by clear and convincing evidence. If the trial court determines that a statutory ground for termination exists, it proceeds to the dispositional phase. In the dispositional phase, the trial court determines whether termination is in the best interests of the child.” (Internal quotation marks omitted.) In re Roshawn R., 51 Conn. App. 44, 51-52, 720 A.2d 1112 (1998).

The respondent first claims that the trial court improperly found that she had failed to achieve rehabilitation as to Danuael. We are not persuaded.

In regard to the failure to achieve rehabilitation, General Statutes (Rev. to 1995) § 17a-112 (b) (2) provides for the termination of parental rights when “the parent of a child who has been found by the superior court to have been neglected or uncared for in a prior proceeding has failed to achieve such degree of personal rehabilitation as would encourage the belief that within a reasonable time, considering the age and needs of the child, such parent could assume a responsible position in the life of the child . . . .” (Emphasis added.) See General Statutes (Rev. to 1997) § 17a-112 (c) (3) (B). “ ‘Personal rehabilitation’ as used in the statute refers to the restoration of a parent to his or her former constructive and useful role as a parent. In re Migdalia M., 6 Conn. App. 194, 203, 504 A.2d 533, cert. denied, 199 Conn. 809, 508 A.2d 770 (1986). Our Supreme Court has held that § [17a-112] (b) (2) [now § 17a-112 (c) (3) (B)] requires the trial court to analyze the respondent’s rehabilitative status as it relates to the needs of the particular child, and further, that such rehabilitation must be foreseeable within a reasonable time. In re Luis C., [supra, 210 Conn. 167]. In re Michael M., supra, 29 Conn. App. 124. A determination by the trial court under § [17a-112] (b) (2) [now § 17a-112 (c) (3) (B)] that the evidence is clear and convincing that the parent has not rehabilitated herself will be disturbed only if that finding is not supported by the evidence and [is], in light of the evidence in the whole record, clearly erroneous.” (Internal quotation marks omitted.) In re Felicia D., 35 Conn. App. 490, 500, 646 A.2d 862, cert. denied, 231 Conn. 931, 649 A.2d 253 (1994).

The essence of the respondent’s argument that the trial court’s findings are clearly erroneous is based on a challenge to the testimony of various witnesses. The respondent challenges the credibility of Mary Corcoran, a DCF social worker, Sawyer, and Carol Swenson, a psychologist. In addition, the respondent questions the fact that the trial court chose to believe one segment of the testimony of another witness and not another part. Essentially, the respondent does not claim that there is insufficient evidence in the record for the trial court’s findings, but claims, instead, that she would prefer that this court rely solely on specified portions of evidence and her interpretation of that evidence. It is axiomatic that the trial court, as trier of fact, is in the best position to judge the credibility of witnesses. We, therefore, find that the respondent’s claim is without merit.

In August, 1994, the respondent agreed to comply with the court’s expectations in order to improve her chances of regaining permanent custody of Danuael. These expectations included weekly visitation with Danuael, participating in parenting, drug and alcohol and other counseling, securing and maintaining adequate housing and income, refraining from substance abuse and cooperating with the department of mental retardation (DMR). The respondent claims that she met the expectations and that, therefore, the record does not support the trial court’s finding that she did not achieve rehabilitation.

The trial court found that in the two years between the time that Danuael was removed from his home and the adjudicatory date of the petition, the respondent made minimal gains in her ability to care for herself and none in her ability to meet the specialized needs of Danuael. The trial court noted that “[a]ll of the claimed improvements in her situation—^elimination of relationships with abusive men, sustained sobriety, improved cooperation with assistance offered by DMR, the securing of her own apartment rather than living off the largesse of others—post-date the adjudicatory date of this petition . . . .’’The record discloses that the father of the respondent’s second child was abusive to her and the children. In her next relationship, although the respondent was aware that Danuael’s father had abused the two older children, she resumed her relationship with him. In 1995, despite her prior relationships with abusive men, the respondent became involved with another abusive male, S, to the extent that she arranged for him to receive her social security benefits as her representative payee. Although the respondent testified that she separated from S after the assault in October, 1995, and that she had not become involved with any other men, Sawyer observed bruises on the respondent in March and April, 1996, during visits with Danuael.

Testimony at trial disclosed that the respondent did not complete a substance abuse assessment prior to the adjudicatoiy date. While the respondent did attend a five day alcohol treatment program early in 1994, Swenson, in a report dated July, 1994, recommended that the respondent have further treatment. Furthermore, in a report dated June, 1996, Swenson noted that the respondent admitted to a history of alcohol abuse, had a propensity toward repeated alcohol abuse and had only brief periods of abstinence.

Testimony at trial also disclosed that although the respondent’s attendance improved with DMR, she was not able to incorporate what she was taught in the various services that she received so as to be able to manage her daily affairs. Specifically, at the time of trial, the respondent still needed a conservator to help her with her budget and assistance with transportation. In addition, testimony revealed that, as of the adjudicatory date, the respondent had secured an efficiency apartment, consisting solely of a bathroom and a kitchen.

We are aware that, in assessing rehabilitation, the critical issue is not whether the parent has improved her ability to manage her own life, but rather whether she has gained the ability to care for the particular needs of the child at issue. See In re Christina V., supra, 38 Conn. App. 220-21. In assessing the respondent’s efforts at rehabilitation the question presented to the trial court was whether the respondent would be able effectively to parent Danuael, a child of particular demanding needs, not just the general needs any child has, and, further, whether such rehabilitation would be foreseeable “within a reasonable time.” (Internal quotation marks omitted.) In re Luis C., supra, 210 Conn 167. Furthermore, “[c]ourts are entitled to give great weight to professionals in parental termination cases.” In re Christina V., supra, 221.

In the present case, in the seven years between the time that the respondent lost custody of her two older children and the time of trial, the respondent appears to have made little progress in addressing her problems. The trial court found that the respondent failed to achieve a certain degree of personal rehabilitation that could support the belief that she could assume a responsible position in Danuael’s life within a reasonable time, considering the age and needs of this particular child. Testimony presented at trial clearly establishes the inability of the respondent to care for the child. Specifically, Sawyer, who qualified as an expert witness, testified that Danuael was the only child with posttraumatic stress disorder this severe that she has had as a patient. Sawyer also testified that the cause of Danuael’s psychological illness was that he experienced and observed physical abuse and was possibly subjected to sexual abuse. Testimony further revealed that Danuael, in reaction to visits by his mother, yelled, had temper tantrums, was out of control and exhibited avoidant behavior by frequent trips to the bathroom or the kitchen. Testimony from Sawyer revealed that because in October, 1995, the respondent appeared for a visit with visible injuries, suggesting she had been beaten, Sawyer prohibited the visit because it would have been traumatic for Danuael to see her. In apparent disregard to the trauma that the sight of his injured mother might cause Danuael, the respondent again visited Danuael with visible bruises in March and April, 1996. Sawyer also testified that after the visits, Danuael occasionally required “locked [seclusion], [had] nightmares, [and exhibited] behavioral discontrol.” In her 1996 evaluation report, Swenson concluded that the respondent “demonstrated extremely poor parenting skills and poor ability to engage in a loving and supportive way with Danuael.” Moreover, the respondent confirmed the fact that she does not understand Danuael’s psychological illness.

The record, therefore, demonstrates that the respondent has made minimal progress in developing her own independent living skills or in her ability to care for a child with specialized needs. We recognize that some of the facts relied on by the trial court in granting the termination petition cannot be attributed to the respondent’s lack of moral responsibility or commitment. “Under § 17-43a [now § 17a-112], however, the trial court’s obligation is not to make an unguided investigation of the respondent’s fault in determining whether to grant a petition to terminate parental rights, any more than its disposition is intended to reflect some kind of moral judgment respecting a parent whose rights are terminated. Nor may this court invalidate the statutory criteria of § 17-43a [now § 17a-112] merely because that criteria may in some instances implement the legislature’s judgment that parental rights should be terminated despite the fact that a particular parent, with the best intentions, personally may be incapable of overcoming deficiencies in parenting skills. This court has [insisted] upon strict compliance with the statutory criteria [of § 17-43a, now § 17a-112] before termination of parental rights and subsequent adoption proceedings can occur . ... In re Juvenile Appeal (84-BC), 194 Conn. 252, 257 n.9, 479 A.2d 1204 (1984). Insistence upon strict compliance with the statutory criteria . . . enhances the child’s best interests by promoting autonomous families and by reducing the dangers of arbitrary and biased decisions amounting to state intrusion disguised under the rubric of the child’s best interests. In re Juvenile Appeal (Anonymous), [177 Conn. 648, 672, 420 A.2d 875 (1979)].” (Internal quotation marks omitted.) In re Luis C., supra, 210 Conn. 168-69.

In the present case, the trial court considered General Statutes (Rev. to 1995) § 17a-112 (b) and (d), as amended by Public Acts 1995, No. 95-238. To terminate parental rights for failure to achieve rehabilitation, both prongs of the test incorporated in § 17a-112 (b) must be met: one, that the parent has failed to achieve rehabilitation and two, that there is no reason to believe that the parent could assume a responsible position in the life of the child within a reasonable time, considering the age and needs of the child. We have reviewed the record together with the transcript, exhibits and briefs in this case, and we are unable to conclude that the trial court improperly analyzed the respondent’s rehabilitative needs with respect to the needs of Danuael and that its findings as set out in its memorandum of decision are clearly erroneous. Therefore, we will not disturb the trial court’s findings.

The judgment is affirmed.

In this opinion the other judges concurred.

       In addition, the respondent also claimed that the trial court improperly found that the termination of the respondent’s parental rights was in the best interest of the child. The respondent, however, cites no law in support and provides no analysis of that claim. We therefore decline to review that claim as it is deemed to be abandoned. See New London Federal Savings Bank v. Tucciarone, 48 Conn. App. 89, 101, 709 A.2d 14 (1998).

       The parental rights of the respondent father were also terminated with respect to Danuael D. The father, however, has not appealed from the trial court’s judgment. We refer in this opinion to the respondent mother as the respondent.

       At the time the termination petition was filed, the statute in effect was General Statutes (Rev. to 1995) § 17a-112, as amended by Public Acts 1995, No. 95-238, § 3 (effective October 1, 1995), which provides in relevant part: “(a) In respect to any child committed to the commissioner of children and families in accordance with section 46b-129, either the commissioner, or the attorney who represented such child in the prior commitment proceeding, or an attorney appointedby the superior court on i! s own motion, or an attorney retained by such child after attaining the age of fourteen may petition the court for the termination of parental rights with reference to such child ....
      “(b) The superior court upon hearing and notice, as provided in sections 45a-716 and 45a-717, may granl such petition if it finds that the Department of Children and Families has made reasonable efforts to reunify the child with the parent and, upon clear and convincing evidence, that the termination is in the best interest of the child and that . . . with respect to any noneonsenting parent, over an extended period of time, which . . . shall not be less than one year: (1) The child has been abandoned by the parent in the sense that the parent has failed to maintain a reasonable degree of interest, concern or responsibility as to the welfare of the child; or (2) the parent of a child who has been found by the superior court to have been neglected or uncared for in a prior proceeding has failed to achieve such degree of personal rehabilitation as would encourage the belief that within a reasonable time, considering the age and needs of the child, such parent could assume a responsible position in the life of the child; or (3) the child has been denied, by reason of an act or acts of parental commission or omission, the care, guidance or control necessary for his physical, educational, moral or emotional well-being. Nonaccidental or inadequately explained serious physical injury to a child shall constitute prima facie evidence of acts of parental commission or omission sufficient for the termination of parental rights; or (4) there is no ongoing parent-child relationship, which means the relationship that ordinarily develops as a result of a parent having met on a day to day basis the physical, emotional, moral and educational needs of the child and to allow further time for the establishment or reestablishment of such parent-child relationship would be detrimental to the best interest of the child. . . .”
      Any references in this opinion to the statutory revision to 1995 indicate that those sections were not affected by Public Acts 1995, No. 95-238.

       General Statutes (Rev. to 1995) § 17a-112 (b) (2), now § 17a-112 (c) (3) (B) . See footnote 3.

       General Statutes (Rev. to 1995) § 17a-112 (b) (3), now § 17a-112 (c) (3) (C) . See footnote 3.

       General Statutes (Rev. to 1995) § 17a-112 (b) (4), now § 17a-112 (c) (3) (D) . See footnote 3.

       Shortly thereafter, in May of 1994, L was arrested for the stabbing death of an unrelated ten year old girl. L was subsequently convicted and sentenced to a term of sixty years without parole.

       Cathleen Sawyer, Danuael’s primary clinician and staff member at Riverview Hospital, testii'ied that “parentified” means “that the child ... is more worried about taking care of the parent, than expecting the parent to come in and take care of him."

       During the termination proceedings, the respondent was asked if she understood Danuael’s problems: oppositional disorder, posttraumatic stress disorder and highly sexualized behavior. The respondent replied, “Oh, I don’t know about that yet . . . but I’ll find out”; “Not yet”; and “No, I don’t know what it means. I don’t want to say it. ... I don’t understand it yet. Not yet.” The respondent, in response to a question regarding what she was planning to do to find out about the illnesses, stated, “I don’t have a plan yet, but I’m thinking of a plan to find out what it is, because it’s more important.” The respondent, however, could not specifically state what the plan entailed other than that it was her intention to read about the illnesses at a library.

       General Statutes (Rev. to 1995) § 17a-112 (d), as amended by Public Acts 1995, No. 95-238, § 3 (effective October 1, 1995), provides: “Except in the case where termination is based on consent, in determining whether to terminate parental rights under this section, the court shall consider and shall malee written findings regarding: (1) The timeliness, nature and extent of services offered or provided to the parent and the child by an agency to facilitate the reunion of the child with the parent; (2) whether the department of children and families has made reasonable efforts to reunite the family pursuant to the federal Adoption Assistance and Child Welfare Act of 1980, as amended; (3) the terms of any applicable court order entered into and agreed upon by any individual or agency and the parent, and the extent to which all parties have fulfilled their obligations under such order; (4) the feelings and emotional ties of the child with respect to his parents, any guardian of his person and any person who has exercised physical care, custody or control of the child for at least one year and with whom the child has developed significant emotional ties; (5) the age of the child; (6) the efforts the parent has made to adjust his circumstances, conduct, or conditions to make it in the best interest of the child to return him to his home in the foreseeable future, including, but not limited to, (A) the extent to which the parent has maintained contact with the child as part of an effort to reunite the child with the parent, provided the court, may give weight to incidental visitations, communications or contributions and (B) the maintenance of regular contact or communication with the guardian or custodian of the child; and (7) the extent to which a parent has been prevented from maintaining a meaningful relationship with the child by the unreasonable act or conduct of the other parent of the child, or the unreasonable act of any other person or by the economic circumstances of the parent.”

       As was conceded at argument, we note that given the resolution of this claim we need not address the respondent’s remaining claim.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    THURMAN GOODMAN v. COMMISSIONER OF CORRECTION
    (AC 17135)
    Foti, Hennessy and Dupont, Js.
    Argued October 27
    officially released November 24, 1998
   Per Curiam.

The judgment is affirmed.


text:
    STATE OF CONNECTICUT v. RICKIE WILSON
    (AC 17326)
    Lavery, Hennessy and Sullivan, Js.
    Argued November 2
    officially released November 24, 1998
   Per Curiam.

The judgment is affirmed.


text:
    JOSEPH COVILLION v. PLANTE BROTHERS, INC., ET AL.
    (AC 17947)
    Schaller, Spear and Sullivan, Js.
    Submitted on briefs October 29
    officially released November 24, 1998
   Per Curiam.

The decision of the workers’ compensation review board is affirmed.


text:
    STANLEY MLYNEK v. DANUTA MLYNEK
    (AC 18310)
    Schaller, Spear and Sullivan, Js.
    Submitted on briefs October 29—officially
    officially released November 24, 1998
   Per Curiam.

The judgment is affirmed.


text:
    SCOTT MONTERVILLE v. COMMISSIONER OF MOTOR VEHICLES
    (AC 17465)
    Lavery, Landau and Hennessy, Js.
    Submitted on briefs October 29
    officially released November 24, 1998
   Per Curiam.

The judgment is affirmed.


text:
    LUIS RIVERA v. COMMISSIONER OF CORRECTION
    (AC 17303)
    O’Connell, C. J., and Lavery and Landau, Js.
    Argued November 4
    officially released November 24, 1998
   Per Curiam.

The judgment is affirmed.


text:
    RICHARD M. FRANCHI v. AMERICAN LAWYER MEDIA, L.P., ET AL.
    (AC 17563)
    Foti, Schaller and Healey, Js.
    Argued November 4
    officially released November 24, 1998
   Per Curiam.

The judgment is affirmed.


text:
    BOBBY PETERSON v. COMMISSIONER OF CORRECTION
    (AC 16970)
    O’Connell, C. J., and Hennessy and Stoughton, Js.
    Argued November 6
    officially released November 24, 1998
   Per Curiam.

The judgment is affirmed.


text:
    CECELIO S. DELEON v. COMMISSIONER OF CORRECTION
    (AC 18474)
    Lavery, Hennessy and Kulawiz, Js.
    Argued December 15, 1998
    officially released January 12, 1999
   Per Curiam.

The judgment is affirmed.


text:
    UPDIKE, KELLY AND SPELLACY, P.C. v. STEVEN E. SHORE
    (AC 17525)
    Lavery, Kulawiz and Dupont, Js.
    Argued December 4, 1998
    officially released January 12, 1999
   Per Curiam.

The judgment is affirmed.


text:
    DANBURY MALL ASSOCIATES LIMITED PARTNERSHIP v. MARIO RINALDI ET AL.
    (AC 17840)
    Lavery, Schaller and Hennessy, Js.
    Submitted on briefs December 16, 1998—
    officially released January 12, 1999
   Per Curiam.

The judgment is affirmed.


text:
    OFI CONTRACT INTERIORS v. MORANDE BROS., INC.
    (AC 17764)
    O’Connell, C. J., and Spear and Kulawiz, Js.
    Argued January 11
    officially released February 2, 1999
   Per Curiam.

The judgment is affirmed.


text:
    WILLIAM MEANY v. JOSE SALINAS, COMMISSIONER OF MOTOR VEHICLES
    (AC 18744)
    O’Connell, C. J., and Lavery and Hennessy, Js.
    Argued January 14
    officially released February 2, 1999
   Per Curiam.

The judgment is affirmed.


text:
    LAWRENCE R. SMITH v. COMMISSIONER OF CORRECTION
    (AC 17592)
    O’Connell, C. X, and Lavery and Hennessy, Js.
    Argued January 14
    officially released February 2, 1999
   Per Curiam.

The judgment is affirmed.


text:
    CARL J. LIANO v. CITY OF BRIDGEPORT
    (AC 18034)
    Spear, Sullivan and Daly, Js.
    Argued January 19
    officially released February 2, 1999
   Per Curiam.

The decision of the workers’ compensation review board is affirmed.


author: SULLIVAN, J.

text:
    FERNAND HARVEY v. BOEHRINGER INGELHEIM CORPORATION ET AL.
    (AC 17566)
    Landau, Hennessy and Sullivan, Js.

      Argued September 28, 1998
    officially released February 23, 1999

      Kevin F. Morin, with whom, on the brief, was Patrick T. Treacy, for the appellants (named defendant et al.).

      Gerald T. Giaimo, with whom, on the brief, was Miles N. Esty, for the appellee (intervening plaintiff).
   Opinion

SULLIVAN, J.

The defendants Boehringer Ingelheim Corporation (Boehringer) and W.E. O’Neil Construction Company (O’Neil) appeal from the judgment granting the motion for summary judgment filed by the intervening plaintiff, Peter Gisondi & Company (Gisondi). On appeal, Boehringer and O’Neil claim that the trial court improperly found that no genuine issue of material fact existed as to their three count counterclaim against Gisondi and that Gisondi was entitled to judgment as a matter of law. We reverse the judgment of the trial court.

The following facts are relevant to the disposition of this appeal. On August, 4, 1992, Gisondi and O’Neil, which had entered into a construction contract with Boehringer, entered into a written contract pursuant to which Gisondi agreed to paint and perform related work at the Boehringer Ingelheim Pharmaceutical, Inc., facility at 900 Ridgebury Road in Ridgefield. The plaintiff, Fernand Harvey, was hired by Gisondi to work there as apainter. On December 31,1993, the plaintiff slipped and fell in the parking lot of the facility.

Thereafter, the plaintiff brought suit against Boeh-ringer, as the owner of the property at the time of the accident, and against O’Neil and Turner Construction Company pursuant to their construction contracts with Boehringer, for alleged personal injuries arising from the slip and fall. On February 22, 1996, Gisondi, as the plaintiffs employer, filed an intervening complaint seeking recovery of the workers’ compensation benefits that it had paid to the plaintiff. Subsequently, on April 11, 1996, Boehringer and O’Neil filed an answer and a three count counterclaim against Gisondi. In the first count of the counterclaim, they seek contractual indemnification from Gisondi. The second and third counts of the counterclaim allege breach of contract claims for failure to provide additional insurance coverage and a safe workplace.

On May 7, 1997, Gisondi filed a motion for summary judgment as to Boehringer’s and O’Neil’s counterclaim, which was granted on July 23, 1997. This appeal followed.

Before turning to the merits of this appeal, we note that our standard of review on appeal following a trial court’s granting of summary judgment is well established. “The judgment sought 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 § 17-49. A “material fact” is a fact that will make a difference in the result of the case. See Hammer v. Lumberman’s Mutual Casualty Co., 214 Conn. 573, 578, 573 A.2d 699 (1990). The facts at issue are those alleged in the pleadings. See Plouffe v. New York, N.H. & H.R. Co., 160 Conn. 482, 489, 280 A.2d 359 (1971).

The party seeking summary judgment “has the burden of showing the absence of any genuine issue as to all material facts, which, under applicable principles of substantive law, entitle him to a judgment as a matter of law. ”D.H.R. Construction Co. v. Donnelly, 180 Conn. 430, 434, 429 A.2d 908 (1980). Pursuant to Practice Book §§ 17-45 and 17-46, the party adverse to such a motion must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact. “In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party. . . . The test is whether a party would be entitled to a directed verdict on the same facts.” (Citations omitted; internal quotation marks omitted.) Connell v. Colwell, 214 Conn. 242, 246-47, 571 A.2d 116 (1990).

“While the court must view the inferences to be drawn from the facts in the light most favorable to the party opposing the motion ... a party may not rely on mere speculation or conjecture as to the true nature of the facts to overcome a motion for summary judgment. ... On appeal, however, the burden is on the opposing party to demonstrate that the trial court’s decision to grant the movant’s summary judgment motion was clearly erroneous.” (Citations omitted; internal quotation marks omitted.) Norse Systems, Inc. v. Tingley Systems, Inc., 49 Conn. App. 582, 591, 715 A.2d 807 (1998).

“Equally well settled is that the trial court does not sit as the trier of fact when ruling on a motion for summary judgment. . . . [T]he trial court’s function is not to decide issues of material fact, but rather to determine whether any such issues exist.” (Citations omitted; internal quotation marks omitted.) Fleet Bank, N.A. v. Galluzzo, 33 Conn. App. 662, 666, 637 A.2d 803, cert. denied, 229 Conn. 910, 642 A.2d 1206 (1994).

I

In support of their claim that summary judgment was improper, Boehringer and O’Neil argue that there are genuine issues of material fact as to whether the plaintiffs injuries were caused by, resulted from, arose out of or occurred in connection with his work for Gisondi. We agree with Boehringer and O’Neil and conclude that the summary judgment rendered by the trial court should be reversed.

In the first count of their counterclaim, Boehringer and O’Neil seek indemnification from Gisondi pursuant to article XX of the contract. The contract between Gisondi and O’Neil provided for indemnification of O’Neil and others for harm suffered in connection with the execution of work at the facility.

In count one of their counterclaim, Boehringer and O’Neil allege that “[a]t the time of his fall, the plaintiff Harvey, was an employee of the intervening plaintiff, Gisondi, and Mr. Harvey was present on the [Boeh-ringer] premises on the day of his fall for the sole purpose of pursuing his employment responsibility to Gisondi. . . . Gisondi was, at all times relevant to this counterclaim, in control of both Mr. Harvey and the work area where Mr. Harvey allegedly fell, to the exclusion of the defendants.”

In granting Gisondi’s motion for summary judgment as to the first count of the counterclaim, the trial court found that there was no allegation in the first party complaint that the injuries were occasioned by, or resulted from, Gisondi’s work. We conclude that the trial court’s reliance on the allegations in the original complaint was misplaced. Instead, the allegations of Boehringer’s and O’Neil’s counterclaim are at issue here.

Moreover, in its motion for summary judgment, Gisondi did not establish through the pleadings, affidavits or any other proof that the plaintiffs injuries were not caused by, resulted from, arose out of or occurred in connection with his work for Gisondi and therefore that Gisondi was not obligated under the contract to indemnify Boehringer and O’Neil. The issue remains whether the plaintiffs accident was sufficiently connected to Gisondi’s work so that the contractual indemnification provisions would apply. This is a genuine issue of material fact; therefore, we conclude that summary judgment was improperly granted as to count one of the counterclaim.

In granting the motion for summary judgment, the trial court also found that no material fact existed as to Boehringer’s and O’Neil’s claim for contractual indemnification, as they are barred from recovering because of their own negligence. The trial court articulated that “Harvey can only recover based on the allegations of his complaint. The complaint alleges negligence on the part of O’Neil and Boehringer by allowing snow to accumulate on the parking lot. As stated in Rodriguez v. Gilbertie, 33 Conn. Sup. 582, 584-85, 363 A.2d 759 (1976), ‘[the contractual] provision is of no avail in insulating the defendants from the consequences of their own negligence, however, since a party cannot by contract relieve himself of such liability.’ Therefore, a party cannot be indemnified for his own negligence.”

The trial court relied solely on the allegations of the plaintiffs original complaint in discerning the validity of Boehringer’s and O’Neil’s counterclaim. The trial court determined that the failure of the plaintiff to make allegations in his original complaint pertaining to Gisondi’s negligence barred Boehringer and O’Neil from seeking contractual indemnification, as the only allegations were based on their own negligence. The trial court’s reliance on the original complaint, however, is misplaced.

In their counterclaim, Boehringer and O’Neil allege that Gisondi was negligent, as the subcontractor in control, to the exclusion of Boehringer and O’Neil, of the work area where the plaintiff fell. It is the alleged negligence of Gisondi for which Boehringer and O’Neil seek to be indemnified and not their own alleged negligence.

Moreover, the plaintiff, as an employee of Gisondi, was entitled to receive and did receive benefits pursuant to the Workers’ Compensation Act. General Statutes § 31-275 et seq. Consequently, he has no cause of action against his employer, Gisondi. General Statutes (Rev. to 1993) § 31-284 (a). Thus, the plaintiff was barred from bringing a negligence claim against Gisondi in his original complaint.

We conclude that count one of Boehringer’s and O’Neil’s counterclaim does not seek contractual indemnification for Boehringer’s and O’Neil’s own alleged negligence, but rather, the indemnification sought by Boehringer and O’Neil in their counterclaim is for the alleged negligence of Gisondi.

We also address Gisondi’s argument in support of the trial court’s granting of the motion for summary judgment, as to the first count of Boehringer and O’Neil’s counterclaim, that their failure to file an affidavit in support of their objection to summary judgment was a fatal flaw. Boehringer’s and 0‘Neil assert that the motion for summary judgment was not sufficiently supported by affidavits and, thus, the burden of proof did not shift to them, the nonmoving parties. We agree and conclude that Boehringer’s and O’Neil’s failure to file supporting affidavits was not a fatal flaw to their objection to the motion for summary judgment.

“When a motion for summary judgment is supported by affidavits and other documents, an adverse party, by affidavit or as otherwise provided by [Practice Book § 17-45], must set forth specific facts showing that there is a genuine issue for trial, and if he does not so respond, the court is entitled to rely upon the facts stated in the affidavit of the movant. Kakadelis v. DeFabritis, 191 Conn. 276, 280-81, 464 A.2d 57 (1983).” (Emphasis added; internal quotation marks omitted.) Desnoyers v. Wells, 4 Conn. App. 666, 667-68, 496 A.2d 237 (1985). In the present case, Gisondi filed only the affidavit of its executive vice president, Tony Gisondi, and attached, as an exhibit, the contract between Gisondi and O’Neil. The affidavit submitted by Gisondi merely verified that the contract was the one entered into by Gisondi and O’Neil. Additionally, the affidavit provided that the contract was drafted and prepared by O’Neil, and not Gisondi.

Thus, Gisondi’s affidavit did not dispense with any genuine issues of material fact raised in Boehringer’s and O’Neil’s counterclaim or raised by the attached contract. As such, Boehringer and O’Neil were not required to set forth the existence of any genuine issue of material fact with supporting affidavits.

Additionally, even if we assume arguendo that Gisondi sufficiently supported its motion for summary judgment with Tony Gisondi’s affidavit, Boehringer’s and O’Neil’s failure to file an affidavit in support of their objection to the motion for summary judgment does not automatically mean that the motion will be granted. Rather, the trial court is entitled to rely on those facts set forth in Gisondi’s affidavit. See id. Here, those facts that can be relied on do not dispose of any genuine issue of material fact raised by Boehringer’s and O’Neil’s counterclaim or those raised by the contract. Thus, Boehringer’s and O’Neil’s failure to file an affidavit in support of their objection to summary judgment was not a fatal flaw.

II

Boehringer and O’Neil alleged in the second count of their counterclaim that Gisondi breached the contract in failing to provide additional insurance coverage. The contract expressly provided for Gisondi, as the subcontractor, to purchase a commercial general liability insurance policy to cover the indemnification agreement set forth in the contract and to provide coverage for O’Neil and O’Neil Industries, Inc., as additional insureds.

In their counterclaim, Boehringer and O’Neil allege that “Gisondi failed to provide the insurance coverage required under Article XXI of the contract in breach of such agreement.” On appeal, Boehringer and O’Neil argue that summary judgment was improperly granted as to count two of their counterclaim because a genuine issue of material fact exists as to this breach of contract claim. We agree.

The trial court articulated with regard to its granting of Gisondi’s motion for summary judgment as to this count of Boehringer’s and O’Neil’s counterclaim that, “since the plaintiffs allegations of negligence against Boehringer and O’Neil do not allege any operations performed or incidents relating to Gisondi or arising out of [its] work, this provision is inapplicable.”

Again, we find that the trial court’s reliance on the allegations in the plaintiffs original complaint is misplaced. Instead, the genuine issue of material fact raised by this breach of contract claim is whether insurance was provided by Gisondi as required by the contract. This issue is not resolved by Gisondi in its motion for summary judgment. Further, the trial court does not address this issue. Thus, we find that a genuine issue of material fact as to Boehringer’s and O’Neil’s second count of their counterclaim remains.

III

Boehringer’s and O’Neil’s third count of their counterclaim asserts a breach of contract claim against Gisondi for failure to provide a safe workplace. The contract provides that Gisondi will be responsible for providing a safe workplace for all employees.

In count three of their counterclaim, Boehringer and O’Neil allege that, pursuant to article XV of the contract, “Gisondi failed to take all reasonable precautions to protect its employee from injury during the performance of its work on the project by failing to provide a safe and secure path for entry and exit to [Boehringer’s] building during the performance of Gisondi’s work.” On appeal, Boehringer and O’Neil argue that a genuine issue of material fact exists as to whether Gisondi breached the contract. We agree.

As to the third count of Boehringer’s and O’Neil’s counterclaim, the trial court stated that “[t]here is no allegation that this injury was occasioned by Gisondi’s work.” Again, we find the trial court’s focus on the allegations of the plaintiff’s original complaint misplaced.

Boehringer’s and O’Neil’s claim that Gisondi breached the contract is not resolved by looking to the allegations of the plaintiffs complaint. The terms of the contract and facts concerning Gisondi’s performance of that contract are at issue here, and, thus, we find that a genuine issue of material fact remained concerning Boehringer’s and O’Neil’s claim that Gisondi breached the contractual provision requiring him to provide a safe workplace.

Accordingly, because factual issues exist as to all three counts of Boehringer’s and O’Neil’s counterclaim, we find that the trial court improperly granted Gisondi’s motion for summary judgment. We therefore reverse the trial court’s granting of Gisondi’s motion for summary judgment because the trial court improperly found that no genuine issues of material fact existed as to each count of Boehringer’s and O’Neil’s counterclaim.

The judgment is reversed and the case is remanded with direction to deny the intervening plaintiffs motion for summary judgment and for further proceedings according to law.

In this opinion the other judges concurred.

       Fernand Harvey is not a party to this appeal.

       Turner Construction Company is not a party to this appeal.

       Article XX of the contract provides in relevant part: “To the fullest extent permitted by law, the Subcontractor assumes the entire responsibility and liability for any and all liability and damage or injury of any kind or nature whatever (including death resulting therefrom) to all persons, whether employees of the Subcontractor or otherwise, and to all property caused by, resulting from, arising out of, or occurring in connection with the Subcontractor’s (or sub-subcontractor’s) execution of the Work. If any claims for such damage or injury (including death resulting therefrom) shall be made or asserted, the Subcontractor agrees to indemnify and save harmless the Contractor, W.E. O’Neil Construction Company of Connecticut, O’Neil Industries, Inc., the Owner and Others required in the contract documents, their officers, agents, servants and employees (hereinafter referred to in this Article collectively as “Indemnitees”) from and against any and all loss, cost, expense, liability, damage or injury including legal fees and disbursements that the Indemnitees may directly or indirectly sustain, suffer or incur as a result thereof. . . .”

      1 General Statutes (Rev. to 1993) § 31-284 (a) provides: “An employer shall not be liable to any action for damages on account of personal injury sustained by an employee arising out of and in the course of his employment or on account of death resulting from personal injury so sustained, but an employer shall secure compensation for Ms employees as provided under this chapter, except that compensation shall not be paid when the personal injury has been caused by the wilful and serious misconduct of the injured employee or by his intoxication. All rights and claims between employer and employees, or any representatives or dependents of such employees, arising out of personal injury or death sustained in the course of employment are abolished other than rights and claims given by tMs chapter, provided notMng in tMs section shall proMbit any employee from securing, by agreement with Ms employer, additional compensation from Ms employer for the injury or from enforcing any agreement for additional compensation.”

       Article XXI, paragraph G, of the contract provides: “Article XXI shall be interpreted to require a subcontractor to obtain insurance to cover the indemnity provisions within Article XX, and to create a separate and independent duty to procure or purchase insurance for insureds as is set forth above. In this regard, nothing in this agreement shall be deemed or interpreted to abrogate or dimmish the subcontractor’s duty to procure or purchase insurance for the insureds.”

         Article XV of the contract provides in relevant part: “Safety: The subcontractor, at his own expense, at all times shall take all reasonable precautions to protect persons or property at or adjacent to the site from damage, loss or injury resulting from subcontractor, his employees or agents’ performance of the work or obligations under its agreement.”


author: SPEAR, J.

text:
    CHIEF OF POLICE, HARTFORD POLICE DEPARTMENT v. FREEDOM OF INFORMATION COMMISSION ET AL.
    (AC 17516)
    Spear, Hennessy and Daly, Js.
    Argued October 28, 1998
    officially released February 23, 1999

      Ivan A. Ramos, assistant corporation counsel, with whom, on the brief, was Kevin G. Dubay, corporation counsel, for the appellant (plaintiff).

      Victor R. Perpetua, appellate attorney, with whom, on the brief, was Mitchell W. Pearlman, general counsel, for the appellee (named defendant).

      Mary-Michelle U. Hirschoff filed a brief for the Connecticut Conference of Municipalities as amicus curiae.
   Opinion

SPEAR, J.

The plaintiff chief of police of the Hartford police department appeals from the judgment of the trial court dismissing his appeal from the decision of the freedom of information commission (commission). The plaintiff sought a review of the commission’s decision ordering the plaintiff to disclose documents relating to an internal affairs investigation. We affirm the decision of the trial court.

The following facts are undisputed. On February 9, 1995, attorney Terence P. Sexton made a request under the Freedom of Information Act (act); General Statutes (Rev. to 1997) § 1-7 et seq.; that required the plaintiff to disclose “all documents, reports and memoranda concerning any Internal Affairs or Patrol Operations Division investigations relating to Officer Raymondo Diaz.” That request was denied. On February 24, 1995, Sexton filed an action in the United States District Court on behalf of Carmen Delia Soto against the city of Hartford and Diaz for alleged violations of her civil rights. During the course of the federal action, Sexton sought the same information as requested from the plaintiff through discovery proceedings in the federal court action.

Following a hearing on the merits, the commission issued its final decision on May 17,1996, ordering disclosure of all of the documents in question. In particular, the commission ordered that the plaintiff “strictly comply with the public records requirements set forth in [General Statutes] §§ 1-15 and 1-19 (a).” Pursuant to General Statutes §§ l-21i (d) and 4-183, the plaintiff appealed to the Superior Court from the commission’s decision. While the appeal was pending, the underlying federal action was settled and withdrawn. The trial court, nevertheless, addressed the issues raised by the parties and, concluding that § l-19b (b) (1) did not bar access to public records under the facts in the present case, dismissed the appeal. From that dismissal, the plaintiff has appealed to this court.

I

As a preliminary matter, we must address the question of whether the issue before us is moot. The underlying action in federal court has been settled and withdrawn, and, in addition, the plaintiff has produced all documents originally requested.

Mootness implicates the jurisdiction of this court to hear an appeal. Domestic Violence Services of Greater New Haven, Inc. v. Freedom of Information Commission, 240 Conn. 1, 6, 688 A.2d 314 (1997). Our Supreme Court has stated, however, that when an order of the commission is prospective in nature and involves a continuing obligation to comply, an appeal is not moot, even though the underlying action may have been settled or -withdrawn. Id., 8-9. The present case involves just such a prospective order, which stated that the plaintiff “shall strictly comply with the public records requirements set forth in §§ 1-15 and 1-19 (a).” Because the plaintiff is subject to a prospective order of the commission, we conclude that the case before us is not moot.

II

Turning to the merits of the appeal, the plaintiff claims that § l-19b (b) (1) provides an exemption from disclosure under the act if the same records have also been sought through the use of the discovery process in civil litigation. We disagree.

Our analysis is guided by our Supreme Court’s consistent interpretation of the act to favor disclosure and to construe exceptions to disclosure narrowly. See, e.g., Waterbury Teachers Assn. v. Freedom of Information Commission, 240 Conn. 835, 840, 694 A.2d 1241 (1997); Gifford v. Freedom of Information Commission, 227 Conn. 641, 651, 631 A.2d 252 (1993); Superintendent of Police v. Freedom of Information Commission, 222 Conn. 621, 626, 609 A.2d 998 (1992).

General Statutes § l-19b (b) provides in relevant part that “[n]othing in sections 1-15, l-18a, 1-19 to l-19b . . . shall be deemed in any manner to (1) . . . limit the rights of litigants, including parties to administrative proceedings, under the laws of discovery of this state . . . .” The plaintiff claims that allowing the defendant or others in a similar situation to obtain documents not otherwise discoverable in a civil action would effectively limit his rights as a litigant to the protections found in the laws of discovery of this state. In essence, the plaintiff argues that the laws of discovery should limit the rights of litigants under the act. We decline to adopt this reasoning.

The right of a litigant to discovery is primarily the right to obtain information. Practice Book § 13-2 provides in relevant part: “In any civil action . . . where the judicial authority finds it reasonably probable that evidence outside the record will be required, a party may obtain in accordance with the provisions of this chapter discovery of information or disclosure, production and inspection of papers, books or documents material to the subject matter involved in the pending action, which are not privileged, whether the discovery or disclosure relates to the claim or defense of the party seeking discovery or to the claim or defense of any other party, and which are within the knowledge, possession or power of the party or person to whom the discovery is addressed. . . .” The discovery rules are designed to facilitate trial proceedings and to “make a trial less a game of blindman’s buff and more a fair contest with the basic issues and facts disclosed to the fullest practicable extent.” United States v. Procter & Gamble, 356 U.S. 677, 682, 78 S. Ct. 983, 2 L. Ed. 2d 1077 (1958); Perry v. Hospital of St. Raphael, 17 Conn. App. 121, 123, 550 A.2d 645 (1988); Perez v. Mount Sinai Hospital, 7 Conn. App. 514, 519, 509 A.2d 552 (1986). A successful objection to a discovery request does not create an independent right in the objecting party to withhold information. It is merely a limit on the requesting party’s right to obtain the information in that court proceeding.

Our Supreme Court previously analyzed an earlier version of § l-19b (b) (1) that precluded any disclosure pursuant to the act that would affect the discovery rights of litigants. In Gifford v. Freedom of Information Commission, supra, 227 Conn. 663-65, our Supreme Court held that an arrest report did not have to be disclosed to the public, pursuant to the act, while criminal prosecution relating to that arrest report was pending. It found that disclosure of the arrest report would expand the rights of the defendant under the laws of discovery and thereby “would affect the rights of litigants under the laws of discovery . ...” (Emphasis added.) Id., 663-64.

The term “affect” was changed to “limit” in § l-19b (b) (1) in 1994 by the enactment of No. 94-26 of the 1994 Public Acts. The revised statute precludes disclosure pursuant to the act that would “limit the rights of litigants . . . under the laws of discovery of this state.” General Statutes § l-19b (b) (1). The prior term, affect, is derived from the Latin word affectus meaning “acted upon or subjected to.” Random House Unabridged Dictionary (2d Ed. 1993). It means “to act on; produce an effect or change in.” Id. As our Supreme Court explained in Gifford, a disclosure pursuant to the act then in effect could expand discovery rights and could reasonably be interpreted as affecting the rights of litigants under the laws of discovery of the state. The term limit, however, is not susceptible to the same interpretation. Limit is derived from the middle English word lymyt, which has its roots in the Latin word limes, meaning boundary. Id. It means “to restrict” or “to confine.” Id. Where more information is available to a litigant by way of a request pursuant to the act than by discovery, that litigant’s discovery rights have been expanded rather than limited.

We conclude that “to limit the rights of litigants . . . under the laws of discovery of this state” should be interpreted as prohibiting the use of the act to restrict the rights of parties seeking information through discovery. Similarly, an exemption from production under the act, in and of itself, does not preclude a litigant from obtaining the same documents through discovery. See Board of Education v. State Board of Labor Relations, 190 Conn. 235, 245, 460 A.2d 1255 (1983). The act and our rules of discovery provide independent methods for obtaining information, except where disclosure pursuant to the act would limit the discovery rights of litigants.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 1-15 (a) provides in relevant part: “Any person applying in writing shall receive, promptly upon request, a plain or certified copy of any public record. . . .”
      General Statutes § 1-19 (a) provides in relevantpart: “Except as otherwise provided by any federal law or state statute, all records maintained or kept on file by any public agency, whether or not such records are required by any law or by any rule or regulation, shall be public records and every person shall have the right to inspect such records promptly during regular office or business hours or to receive a copy of such records in accordance with the provisions of section 1-15. . . .”


author: LAVERY, J.

text:
    BILLER ASSOCIATES v. RTE. 156 REALTY COMPANY
    (AC 16708)
    Lavery, Hennessy and Sullivan, Js.

      Argued November 2, 1998
    officially released February 23, 1999

      Victor J. Dowling, with whom were Paige J. Everin, and, on the brief, Victor J. Dowling, Jr., for the appellant-appellee (defendant).

      David B. Rozwaski, with whom was Jon D. Biller, for the appellee-appellant (plaintiff).
   Opinion

LAVERY, J.

The defendant, Rte. 156 Realty Company, appeals from the judgment of the trial court in favor of the plaintiff, Biller Associates, a licensed public adjusting firm. On appeal, the defendant claims that the trial court (1) failed to respond to its claim that, as a matter of law, the employment contract it signed with the plaintiff was unenforceable, (2) misinterpreted the phrase “or otherwise recovered” in § 38-72 (h)-6, now § 38a-788-6, of the Regulations of Connecticut State Agencies, and (3) improperly determined that the plaintiff was entitled to a percentage of the defendant’s settlement from a negligence action involving a third party. We agree with the defendant that the employment contract was unenforceable and, therefore, reverse the judgment of the trial court. Because we conclude that, as a matter of law, the employment contract was unenforceable, we need not address the defendant’s remaining two claims and the plaintiffs cross appeal.

The following facts are relevant to a resolution of this appeal. The plaintiff was at all relevant times a licensed public adjusting firm. The defendant was the owner of premises located at 435 Shore Road in Old Lyme. The defendant leased its building to Robert Gaines, who operated a restaurant on the premises. Paragraph five of the lease agreement required Gaines to obtain replacement fire and extended insurance coverage in an amount not less than $250,000. Using an independent insurance broker, Pequot Insurance Agency (Pequot), Gaines obtained insurance coverage for the premises in the amount of $425,000 from the Hermitage Insurance Company (Hermitage). Contrary to the terms of the lease agreement, the Hermitage insurance policy erroneously listed Gaines as the insured and owner of the property. Before this insurance policy could be reformed to reflect that the defendant was the insured and owner, the premises were destroyed by fire on July 1, 1988.

On August 22, 1988, the defendant signed an employment contract with the plaintiff, authorizing the plaintiff to adjust the loss on its behalf. This contract is the subject of the present action. The plaintiff admitted that when both parties signed this contract, it was fully aware that the defendant was not named as an insured party under the Hermitage insurance policy. The defendant claims that it signed this contract with the expectation that efforts to reform the Hermitage insurance policy would be successful, thereby naming it as the owner and insured of the premises.

Thereafter, the defendant retained legal counsel and initiated a separate lawsuit against Pequot, Hermitage and Continental Insurance Agency (Continental), the Connecticut agent for Hermitage. The defendant sought, inter alia, to reform the Hermitage insurance policy and claimed that it was not named as an insured party under this policy due to Pequot’s negligence. The defendant was unable to reform the Hermitage insurance policy, and eventually settled its lawsuit with Pequot, Hermitage and Continental.

Because the defendant refused to provide the plaintiff with a percentage of the settlement, the plaintiff initiated this action, claiming that, pursuant to the terms of the August 22, 1988 employment contract, it was entitled to 10 percent of the defendant’s recovery. In the alternative, the plaintiff claimed that it was entitled to recover under the doctrine of unjust enrichment.

On October 22, 1996, the trial court rendered judgment for the plaintiff in the amount of $17,500 plus costs, which constituted 10 percent of the defendant’s net recovery. In its memorandum of decision, the trial court stated that “[t]he defendant did not recover under the [Hermitage] fire insurance policy because attempts at reforming that policy to add it as an insured were not successful.” In response to the defendant’s claim that the employment contract was unenforceable, the trial court concluded that “[t]his claim appears to have been abandoned [by the defendant] in the posttrial brief.” The trial court awarded the plaintiff 10 percent of the defendant’s net recovery because the employment contract provided that the plaintiff was entitled to 10 percent of “the amount of the loss when adjusted with the Insurance Companies or otherwise recovered.” The trial court concluded “that the term ‘otherwise recovered’ in this employment contract leaves no room for ambiguity and its plain meaning includes all sums ‘received’ from an insurance company in recompense for a loss.” Additionally, the trial court held that even if the plaintiff could not recover pursuant to the contract, it was entitled to $17,500 in quantum meruit.

On November 5, 1996, the defendant filed a motion to reargue, and the trial court denied the defendant’s motion on November 26, 1996. This appeal followed. Additional facts will be set forth where necessary to a resolution of this appeal.

I

The defendant claims that the trial court failed to respond to its claim that, pursuant to General Statutes (Rev. to 1987) § 38-69 (now § 38a-702) and regulations enacted by the insurance commissioner in effect at the time the contract was executed, the employment contract was unenforceable because, as a condition precedent to its enforceability, the defendant must be named as an insured party under the Hermitage insurance policy sought to be adjusted by the plaintiff. We agree with the defendant and, therefore, reverse the judgment of the trial court.

A

As a threshold matter, we must determine whether the defendant properly raised and preserved this claim for review. The plaintiff argues that this claim “was not raised by the defendant-appellant in its trial brief and has not been raised on this appeal and has therefore been abandoned.” In its memorandum of decision, the trial court stated that “[t]his claim appears to have been abandoned in the posttrial brief.” We disagree.

Practice Book § 5-2, formerly § 285A, provides that “ [a]ny party intending to raise any question of law which may be the subject of an appeal must either state the question distinctly to the judicial authority in a written trial brief under Section 5-1 or state the question distinctly to the judicial authority on the record before such party’s closing argument and within sufficient time to give the opposing counsel an opportunity to discuss the question. If the party fails to do this, the judicial authority will be under no obligation to decide the question.” See Cottiero v. Ifkovic, 35 Conn. App. 682, 688, 647 A.2d 9, cert. denied, 231 Conn. 938, 651 A.2d 262 (1994).

On October 2, 1996, the defendant raised this claim on the record before the trial court. On October 2, 1996, the trial court authorized both parties to submit posttrial briefs. In its posttrial brief, dated October 21, 1996, the defendant claimed: “Because Rte. 156 Realty Company was not a named insured under the fire insurance policy of Hermitage Insurance Company’s Policy #100131 at the time of the signing of the employment contract on August 22, 1988, and because Rte. 156 Realty Company failed, after exhausting every effort to reform said Policy #100131 to include it as a named insured, it could not be a party to an employment contract with a public adjuster as the same is defined in the State’s statutes and regulations thereunder.” Although this claim was perhaps less than clear when raised on the record, we conclude that the defendant satisfied Practice Book § 5-2 by distinctly raising this claim in its posttrial brief. See City Savings Bank of Bridgeport v. Dessoff 3 Conn. App. 644, 647, 491 A.2d 424, cert. denied, 196 Conn. 811, 495 A.2d 279 (1985).

Practice Book § 64-1 (a), formerly § 4059, provides in relevant part that the trial court’s decision “shall encompass its conclusion as to each claim of law raised by the parties and the factual basis therefor. . . .’’In its memorandum of decision, the trial court did not address the defendant’s claim because it improperly concluded that “[t]his claim appears to have been abandoned in the posttriai brief.” In its motion for articulation, the defendant requested that “[t]he trial court specifically and directly address [its] consistent and persistent claim, as matter of law, that under § 38-69 of the Connecticut General Statutes . . . the threshold question that must be addressed is whether the defendant was a named insured under any policy of insurance covering the loss or damage by fire or other hazard policy, and failing to find that the defendant was so insured, any contract by a public adjuster is outside the scope of authority granted under the General Statutes.” In response, the trial court stated that “[t]he defendant has made this same argument before and the court has already addressed it in its memorandum of decision.” On April 11, 1997, the defendant filed a motion for review of its motion for articulation. On May 14,1997, we granted the defendant’s motion, but denied the relief requested.

Our decision in this case, which reverses our ruling on the defendant’s motion for review, would ordinarily mandate that we remand this case for the trial court to decide the defendant’s claim. We decline to do so for two reasons. First, the defendant’s claim presents a question of law. See City Savings Bank of Bridgeport v. Dessoff supra, 3 Conn. App. 648. Second, “ ‘[u]nder circumstances where the record presents the entire proceedings before the trial court, the question is essentially one of law, and we are in no different position than we would be in had the trial court answered it, we have considered, on its merits, the question thus left undecided.’ ” Id.

B

Having determined that this claim was properly raised by the defendant and is reviewable on appeal, we next reach the merits of the defendant’s claim. We note that the defendant’s claim presents an issue of first impression. Specifically, the defendant claims that, pursuant to General Statutes (Rev. to 1987) § 38-69 and regulations enacted by the insurance commissioner, the employment contract was unenforceable because, as a condition precedent to its enforceability, the defendant must be named as an insured party under the Hermitage insurance policy sought to be adjusted by the plaintiff.

We conclude that the scope of the plaintiffs employment as a licensed public adjuster was limited to “the adjusting of loss or damage by fire or other hazard under any policies of insurance in behalf of the insured under such policies . . . .” General Statutes (Rev. to 1987) § 38-69. Our conclusion is based on the text of General Statutes (Rev. to 1987) § 38-69 and §§ 38-72 (h)-6 and 38-72 (h)-7, now §§ 38a-788-6 and 38a-788-7, of the Regulations of Connecticut State Agencies.

“The question of whether a particular statute or regulation applies to a given state of facts is a question of statutory interpretation .... Statutory interpretation presents a question of law for the court.” (Citation omitted; internal quotation marks omitted.) Rivera v. Fox, 20 Conn. App. 619, 621, 569 A.2d 1137, cert. denied, 215 Conn. 808, 576 A.2d 538 (1990). Questions of law are subject to de novo review. Davis v. Norwich, 232 Conn. 311, 317, 654 A.2d 1221 (1995). “In matters of statutory interpretation, we are guided by well established principles, paramount among which is the principle that [o]ur fundamental objective is to ascertain and give effect to the apparent intent of the legislature. ... In seeking to discern that intent, we look to the words of the statute itself, to the legislative history and circumstances surrounding its enactment, to the legislative policy it was designed to implement, and to its relationship to existing legislation and common law principles governing the same general subject matter.” (Internal quotation marks omitted.) Connecticut Assn. of Not-for-Profit Providers for the Aging v. Dept. of Social Services, 244 Conn. 378, 391, 709 A.2d 1116 (1998).

The plaintiff concedes that at all relevant times it was a licensed public adjuster. As such, the plaintiff was subject to those statutes and regulations that govern the conduct of licensed public adjusters. General Statutes (Rev. to 1987) § 38-69 provides in relevant part: “ ‘public adjuster’ means any person, partnership, association or corporation who or which practices as a business the adjusting of loss or damage by fire or other hazard under any policies of insurance in behalf of the insured, under such policies, or who advertises or solicits business as such adjuster, or holds himself out to the public as engaging in such adjusting as a business. ...” (Emphasis added.) Section 38-69 limits the scope of a licensed public adjuster’s employment to “the adjusting of loss or damage by fire or other hazard under any policies of insurance in behalf of the insured under such policies . . . .”

The limited scope of a licensed public adjuster’s employment is further reinforced by several regulations enacted by the insurance commissioner. General Statutes (Rev. to 1987) § 38-72 (h), now § 38a-769 (e), provides: “The [insurance] commissioner may adopt such regulations ... as he deems necessary, with respect to . . . the manner in which public adjusters shall conduct their business . . . and the form of the employment contract between a public adjuster and a client. The use of such contract shall be mandatory. . . .” “Although any regulation which exceeds the authority granted to the insurance commissioner is void . . . within their scope the regulations have the force of statutes.” (Citations omitted.) Roy v. Centennial Ins. Co., 171 Conn. 463, 473, 370 A.2d 1011 (1976).

Pursuant to the authority conferred on him by General Statutes (Rev. to 1987) § 38-72 (h), the insurance commissioner adopted §§ 38-72 (h)-6 and 38-72 (h)-7 of the Regulations of Connecticut State Agencies. Section 38-72 (h)-6 of the regulations provides that “[n]o public adjuster shall enter into an employment contract except in conformity with this regulation. ...” Section 38-72 (h)-6 outlines what information must be contained in a licensed public adjuster’s employment contract and provides a model contract. This model contract, which was followed by the plaintiff, mandates that “[t]his form must be signed by the licensed Public Adjuster and by Insured.'1'’ (Emphasis added). Id. Moreover, the model contract further reinforces the limited scope of a licensed public adjuster’s employment by providing signature spaces for only the insured, the public adjuster and the state licensee. Id. Furthermore, § 38-72 (h)-7 (b) of the regulations provides that “[a]ll employment contracts used by public adjusters to be valid shall be signed by an insured and property owner of the property involved, or their duly authorized agent or representative.” (Emphasis added.)

On the basis of the foregoing statute and regulations, we conclude that the scope of the plaintiffs employment as a licensed public adjuster was limited to “the adjusting of loss or damage by fire or other hazard under any policies of insurance in behalf of the insured under such policies . . . .” General Statutes (Rev. to 1987) § 38-69. Accordingly, an employment contract involving a licensed public adjuster requires the participation of two parties: a public adjuster licensed by the state of Connecticut and an insured under a policy or policies insuring against loss or damage by fire or other hazard.

Additionally, we conclude, on the basis of the regulations enacted by the insurance commissioner, that satisfaction of that requirement constitutes a condition precedent to the enforceability of a licensed public adjuster’s employment contract. Section 38-72 (h)-6 of the regulations unequivocally states that “[n]o public adjuster shall enter into an employment contract except in conformity with this regulation. . . .” (Emphasis added.) In this context, the use of the word “shall” connotes that the performance of the requirement is mandatoiy rather than permissive because the regulation relates to a matter of substance, as opposed to a matter of convenience. See Katz v. Commissioner of Revenue Services, 234 Conn. 614, 617, 662 A.2d 762 (1995); see also Todd v. Glines, 217 Conn. 1, 8, 583 A.2d 1287 (1991) (“use of the word ‘shall’ generally evidences an intent that the statute be interpreted as mandatory”). Section 38-72 (h)-7 (b) of the regulations provides that “[a]ll employment contracts used by public adjusters to be valid shall be signed by an insured and property owner of the property involved, or their duly authorized agent or representative.” (Emphasis added.) Furthermore, we decline to enforce a licensed public adjuster’s employment contract where, as here, enforcement would undermine a material requirement of the insurance regulations that govern such contracts.

On cross-examination, the plaintiff admitted that when both parties signed the employment contract, it was fully aware that the defendant was not named as an insured party under the Hermitage insurance policy. In its memorandum of decision, the trial court found that “[t]he defendant did not recover under the [Hermitage] fire insurance policy because attempts at reforming that policy to add it as an insured were not successful.” Accordingly, the condition precedent to the enforceability of this employment contract never occurred because the defendant was unsuccessful in its efforts to reform the Hermitage insurance policy. As a result, the employment contract is unenforceable and the plaintiff is not entitled to recover pursuant to this contract.

C

Our analysis does not end here. The trial court, assuming arguendo that the plaintiff could not recover pursuant to the employment contract, concluded that it was entitled to recover in quantum meruit based on the value of the services it rendered on behalf of the defendant. We disagree.

“An implied contract can only exist where there is no express one. . . . [Q]uantum meruit [is a form] of the equitable remedy of restitution by which a plaintiff may recover the benefit conferred on a defendant in situations where no express contract has been entered into by the parties.” (Citation omitted; internal quotation marks omitted.) Rosick v. Equipment Maintenance & Service, Inc., 33 Conn. App. 25, 37, 632 A.2d 1134 (1993). “A determination of a quantum meruit claim requires a factual examination of the circumstances and of the conduct of the parties . . . that is not a task for an appellate court [but rather for the trier of fact].” (Internal quotation marks omitted.) Id., 40 “This court may reject a factual finding if it is clearly erroneous, in that as a matter of law it is unsupported by the record, incorrect, or otherwise mistaken.” (Internal quotation marks omitted.) Lupien v. Lupien, 192 Conn. 443, 445, 472 A.2d 18 (1984); see Web Press Services Corp. v. New London Motors, Inc., 205 Conn. 479, 483, 533 A.2d 1211 (1987). We conclude that, as a matter of law, the plaintiff was not entitled to recover in quantum meruit under the present circumstances for two independent but equally compelling reasons.

1

First, we decline to allow recovery in quantum meruit because it would undermine an important statutory and regulatory requirement. In dealing with this issue, we look for guidance to precedent from our Supreme Court involving a claim for quasi-contractual recovery under a defective home improvement contract. In Barrett Builders v. Miller, 215 Conn. 316, 320-29, 576 A.2d 455 (1990), our Supreme Court declined to allow quasi-contractual recovery for work performed under a home improvement contract that did not comply with General Statutes § 20-429, and which the contractor admitted was unenforceable under the statute. The Supreme Court observed: “Connecticut law has long recognized that restitution is not available for performance rendered pursuant to a contract that is unenforceable on public policy grounds. ... [A] person who does not comply with the statutory requirements will not be given the assistance of the courts in enforcing contracts within the provisions of the regulatory statute because such enforcement is against public policy . . . and that, [t]o permit a, recovery on a quantum meruit would defeat and nullify the statute.” (Citations omitted; emphasis added; internal quotation marks omitted.) Id., 323-25.

In the present case, as we have already demonstrated, the employment contract did not comply with a material requirement of General Statutes (Rev. to 1987) § 38-69 and §§ 38-72 (h)-6 and 38-72 (h)-7 of the Regulations of Connecticut State Agencies, and, therefore, the contract was unenforceable. Although the statutes and regulations that govern licensed public adjusters do not explicitly bar recovery in quantum meruit, we decline to permit such recovery in the present case because it would defeat and nullify a material requirement of the foregoing statute and regulations, and is contrary to public policy. Accordingly, we conclude that, as a matter of law, the plaintiff was not entitled to recover in quantum meruit for the value of the services it performed on behalf of the defendant.

2

Second, we decline to authorize recovery in quantum meruit in this case because only an attorney admitted to the bar of this state can recover fees for services rendered in the settlement of the defendant’s negligence action against Pequot. Additional facts are necessary for a discussion of this alternative basis for denying recovery in quantum meruit.

The defendant retained the law firm of Cooney, Scully and Dowling and filed a separate lawsuit against Pequot, Hermitage and Continental. Gaines also retained the same law firm and initiated a lawsuit against Pequot, Hermitage and Continental. The trial court consolidated these lawsuits and the parties eventually reached a settlement of $245,000. In its appellate brief, the plaintiff concedes that Hermitage contributed $5000 to this settlement and the carrier of Pequot’s errors and omissions insurance policy contributed $240,000.

In the present case, the trial court concluded that the “defendant did not recover under the [Hermitage] fire insurance policy because attempts at reforming that policy to add it as an insured were not successful.” In its response to the defendant’s motion for articulation, the trial court stated that the defendant’s “recovery was not made from the fire loss carrier, [Hermitage].” If the defendant did not recover any funds from Hermitage, then the funds the defendant obtained from the settlement came from the earlier of Pequot’s errors and omissions policy, the only other party that contributed to the settlement. In its lawsuit against Pequot, the defendant claimed that it was not named as an insured under the Hermitage insurance policy as a result of Pequot’s negligence. It follows from those facts that the defendant recovered funds only from the carrier of Pequot’s errors and omissions insurance policy, and that these funds were paid in settlement of the defendant’s negligence action against Pequot.

We have already demonstrated that the legislature and the insurance commissioner have carefully limited the scope of a licensed public adjuster’s employment, and they have not authorized licensed public adjusters to practice law on behalf of clients. See generally Regs., Conn. State Agencies § 38-72 (h)-6 (licensed public adjusters “are not allowed ... to advise [clients] on any question of law”). “[General Statutes §] 51-88 prohibits the practice of law in or outside a Connecticut courtroom by a person not admitted as an attorney under the provisions of General Statutes § 51-80.” Perlah v. S.E.I. Corp., 29 Conn. App. 43, 46, 612 A.2d 806 (1992). “[N]o one is entitled to recover compensation for services as an attorney at law unless he has been duly admitted to practice before the court .... And the same rule applies to a claim based on quantum meruit.” (Internal quotation marks omitted.) Id., 47.

Because only an attorney admitted to the bar of this state can prosecute, negotiate and settle a negligence action on behalf of another party, only an attorney can obtain payment for the performance of these services. As a matter of law, therefore, the plaintiff, a public adjusting firm, was not entitled to recover in quantum meruit a percentage of the defendant’s settlement from a negligence action.

The judgment is reversed and the case is remanded with direction to render judgment in favor of the defendant.

The cross appeal is dismissed.

In this opinion the other judges concurred.

       The parties executed the employment contract in 1988. Consequently, the statutes and regulations that were in effect at the time the contract was executed are controlling. See Hatcho Corp. v. Della Pietra, 195 Conn. 18, 21, 485 A.2d 1285 (1985); Ciarleglio v. Benedict & Co., 127 Conn. 291, 293, 16 A.2d 593 (1940).

       During the course of the defendant’s cross-examination of Myer Biller, a witness for the plaintiff, defense counsel and the trial court engaged in the following colloquy:
      “[Defense Counsel]: But under the statute your contract must be with an insured, must it not?
      “The Court: Well ... is it your position now that you did not have a contract with this man?
      “[Defense Counsel]: Yes, Your Honor. It has been our position . . . .”
      Later in the trial, defense counsel elaborated on the substance of this claim: “[Rte. 156 Realty] was not a named insured under the policy. One must go back to the enabling legislation and recognize that this is basically an insurance matter. That it is a licensed public adjuster under the aegis of the insurance department of the state of Connecticut and is controlled by the state statutes and the regulations promulgated thereunder. Recognizing that it is an insurance matter, it applies only to the insured. The threshold question is, and has to be, that the public adjuster performs a service for the insured. To do so, to ignore that limitation, both in the statute and the regulations, would be to do a great disservice to the reasoning that we are dealing with an insurance matter.
      * *
      “[Defense Counsel:] We never recovered anything as an insured [under the Hermitage insurance policy]. And the regulations require the contract to be with an insured. And that contract under the regulations is mandatory.”

       Additionally, in the defendant’s motion to reargue, dated November 5, 1996, it again claimed: “In short, the parameters of the authority granted by the State legislature to a licensed public adjuster are clearly confined to the adjusting of loss or damage by fire or other hazard under any policies of insurance in behalf of the insured under said policies. The threshold question that must be answered in this case is whether or not there exists a contract, as required by statute, between a licensed public adjuster and an insured under a fire or other hazard insurance policy or policies. The absence of such a contract, as provided by statute, precludes recovery by the plaintiff.”

       Our examination of the legislative history of General Statutes (Rev. to 1987) § 38-69 did not disclose any useful information concerning the scope of a licensed public adjuster’s employment. The definition of “public adjuster,” which appears in § 38-69, was first adopted by the General Assembly in 1927. See Public Acts 1927, c. 270, § 1.

       Although we recognize that precedent from other states and texts is of limited value in our interpretation of the aforementioned statute and insurance regulations, for comparative purposes only, we note that our interpretation of the scope of a licensed public adjuster’s employment is consistent with that of other sources. See Culbreth v. Lawrence J. Miller, Inc., 328 Pa. Super. 374, 382, 477 A.2d 491 (1984) (“business of a public adjuster is to sell to an insured the service of representing the insured in settling with the insured’s carrier the insured’s claim for loss”); 44 Am. Jur. 2d, Insurance § 1675, p. 666 (“public adjuster for the insured whose business has been recognized by a statute as a valid and legitimate occupation has the authority of representing an insured in the preparation and submission of a claim under his insurance contract, but is not authorized to prosecute or defend claims”); 46A Corpus Juris Secundum, Insurance § 1343, pp. 208-209.

       Myer Biller, a witness for the plaintiff, when asked whether, at the time both parties signed the employment contract, the plaintiff was aware that the defendant was not named as an insured party under the Hermitage insurance policy, testified: “That is correct, but the purpose of this contract was to try to reform that, create insurance for [Rte.] 156. And that is why I needed the retainer or otherwise I could not talk to the [Hermitage Insurance Company].”

       In Wright, Bros. Builders, Inc. v. Dowling, 247 Conn. 218, 231, 720 A.2d 235 (1998), although our Supreme Court held that “letter-perfect compliance” with General Statutes § 20-429 is not a condition precedent to recovery under a home improvement contract, the court reaffirmed its decision in Barrett, Builders v. Miller, supra, 215 Conn. 316. The Supreme Court determined that it properly denied quasi-contractual recovery in Barrett Build,ers because the contractor’s violation of § 20-429 constituted a material noncompliance with the statute, and the contractor admitted that the contract was unenforceable under the statute. Wright Bros. Builders, Inc. v. Dowling, supra, 229. The decision in Wright Bros. Builders, Inc., does not affect the outcome in this case because, as we have already demonstrated, the plaintiff violated a material requirement of General Statutes (Rev. to 1987) § 38-69 and the regulations of the insurance commissioner.


author: PER CURIAM.

text:
    SMITH BROOK FARMS, INC. v. JOSEPH WALL ET AL.
    (AC 17346)
    Foti, Lavery and Daly, Js.
    Argued December 1, 1998
    officially released February 23, 1999

      Scott M. Karsten, for the appellant (substitute plaintiff).

      Walter A. Twachtman, Jr., with whom was Richard M. Quinlan, for the appellee (named defendant).
   Opinion

PER CURIAM.

The substitute plaintiff appeals from the judgment of the trial court rendered in favor of the named defendant on the plaintiffs complaint and for the defendant on his counterclaim. The plaintiff claims that the trial court improperly (1) found that there was insufficient evidence to support the plaintiffs claim for a prescriptive easement over the defendant’s property, (2) made certain evidentiary rulings and (3) awarded damages on one count of the defendant’s counterclaim alleging trespass. We affirm the judgment of the trial court.

The plaintiffs revised amended complaint was brought in three counts. The first count sought a declaratory judgment declaring an easement over the defendant’s property by adverse possession or by prescription. The second count sought damages for the alleged obstruction of that easement. The third count sought to quiet title to the property in question. The defendant’s counterclaim alleged trespass and slander of title, and also sought to quiet title to the property in question.

Our examination of the record and briefs persuades us that the judgment of the trial court should be affirmed. In a thoughtful and comprehensive memorandum of decision, the trial court analyzed the law in a manner consistent with our statutes and case precedents. Smith Brook Farms, Inc. v. Wall, 45 Conn. Sup. 515, 725 A.2d 1003 (1997). Because that memorandum addresses most arguments raised in this appeal, we adopt the trial court’s well reasoned decision as a statement of the law on these issues. It would serve no useful purpose for us to repeat the discussion contained therein. See In re Karrlo K., 40 Conn. App. 73, 75, 668 A.2d 1353 (1996).

Because certain claims do not involve the trial court’s final resolution, but do challenge certain evidentiary rulings or factual findings of the trial court, we undertake our own analysis of those claims. See State v. Mobley, 33 Conn. App. 103, 105-106, 633 A.2d 726 (1993), cert. denied, 228 Conn. 917, 636 A.2d 849 (1994).

“To acquire a right-of-way by prescription, the party claiming the right must prove a use which is open, visible, continuous and uninterrupted for fifteen years and made under a claim of right. . . . Whether the requirements for such a right have been met in a particular case presents a question of fact for the trier of facts. ... In such cases, the trier’s determination of fact will be disturbed only in the clearest of circumstances, where its conclusion could not reasonably be reached.” (Citations omitted; internal quotation marks omitted.) Robert S. Weiss & Co. v. Mullins, 196 Conn. 614, 618-19, 495 A.2d 1006 (1985). “The trier’s determination of facts will be disturbed only when those findings are clearly erroneous.” DiSorbo v. Grand Associates One Ltd. Partnership, 8 Conn. App. 203, 206, 512 A.2d 940 (1986). We cannot conclude on the basis of the record before us that the trial court’s finding that the plaintiff had failed to sustain his burden of proving a prescriptive right was improper as a matter of law based on the facts supported by the evidence in the record. See Shea v. Gavitt, 89 Conn. 359, 363, 94 A. 360 (1915).

The plaintiff argues that the trial court failed to give sufficient weight to certain evidence presented and rejected certain evidence and testimony from the plaintiffs witnesses. “The sifting and weighing of evidence is peculiarly the function of the trier. [Njothing in our law is more elementary than that the trier is the final judge of the credibility of witnesses and of the weight to be accorded their testimony. . . . The trier is free to accept or reject, in whole or in part, the testimony offered by either party.” (Citations omitted; internal quotation marks omitted.) Smith v. Smith, 183 Conn. 121, 123, 438 A.2d 842 (1981). After thoroughly reviewing the entire record in this case, we cannot conclude that the trial court abused its discretion in its evidentiary rulings or in evaluating the witnesses’ credibility.

The judgment is affirmed.

       For purposes of this appeal, we refer to George M. Purtill as the sole plaintiff. A predecessor plaintiff, Smith Brook Farms, Inc., was not a party in the plaintiffs revised amended complaint dated March 29, 1994.

       For purposes of this appeal, we refer to Joseph Wall as the sole defendant. Additional defendants named in the plaintiffs complaint, but not parties to this appeal, are City Federal Savings Bank, Fleet Bank, N.A., Advest Bank and the Federal Deposit Insurance Corporation acting as receiver of the assets of Sentinel Bank.

       The plaintiff did not file a motion for articulation or for rectification.