author: BISHOP, J.

text:
    GUY POIRIER ET AL. v. ZONING BOARD OF APPEALS OF THE TOWN OF WILTON
    (AC 22063)
    Mihalakos, Flynn and Bishop, Js.

      Argued October 30, 2002
    officially released February 25, 2003

      Matthew C. Mason, for the appellants (plaintiffs).

      Maureen Danehy Cox, with whom, on the brief, was Jennifer E. Sills, for the appellee (defendant).
   Opinion

BISHOP, J.

The plaintiff homeowners appeal from the judgment of the trial court rendered in favor of the defendant zoning board of appeals of the town of Wilton (board) dismissing their appeal from the board’s decision upholding the denial of a permit for construction on the plaintiffs’ property. The main issue on appeal is how General Statutes § 8-26a (b) applies to the plaintiffs’ lot and their application for a zoning permit to construct a garage and breezeway on that lot. We reverse the judgment of the trial court.

I

FACTS AND PROCEDURAL HISTORY

The plaintiffs, Guy Poirier and Colette Poirier, own a home in the town of Wilton. Their home was built in 1954 as part of a thirty-eight lot subdivision and approved by the town planning commission. The approved plan subsequently was filed with the town clerk, and a map was recorded in the land records on April 15, 1954.

In 1999, the plaintiffs submitted an application to the Wilton zoning enforcement officer (officer) for a zoning permit to construct a garage and breezeway on the lot. The officer denied the permit because the proposed buildings would, in combination with the existing house, exceed the maximum coverage allotments as set forth in the Wilton zoning regulations. The plaintiffs contended that, at the time the subdivision plan that included their lot was approved, no coverage regulations existed in the town and, by virtue of § 8-26a (b), their lot was exempt from subsequent changes in zoning regulations.

Central to the dispute is the applicability of § 8-26a (b) to the plaintiffs’ subdivision lot. That statute provides in relevant part: “Notwithstanding the provisions of any general or special act or local ordinance, when a change is adopted in the zoning regulations or boundaries of zoning districts of any town, city or borough, no lot or lots shown on a subdivision plan for residential property which has been approved, prior to the effective date of such change, by the planning commission of such town, city or borough, or other body exercising the powers of such commission, and filed or recorded with the town clerk, shall be required to conform to such change.” General Statutes § 8-26a (b).

The plaintiffs argue that the statute applies to their lot. In their appeal to the board from the ruling by the officer, the plaintiffs argued that, despite the fact that the new regulations no longer permit them to build as they would desire, they are entitled to build according to the zoning regulations in effect at the time of their subdivision’s approval.

At a public hearing on January 19, 2000, the officer elaborated on his reasoning for denying the permit. In doing so, he relied on an opinion from counsel, retained by the town, who had examined the legislative history of § 8-26a (b). The officer came to the conclusion that the original version of the statute was enacted in 1959 at the behest of builders to prevent local zoning agencies from changing zoning regulations before the builders’ projects were completed, thereby requiring retroactive compliance. That, the officer determined, would lead to the conclusion that the statute applied to changes in the regulations such as “changes in setback requirements or minimum lot dimension requirements that could reduce the utilization of [the] improved lot or even make it unbuildable.” The statute, he concluded, did not protect an approved lot from the applicability of subsequently enacted coverage limits, which were “a new and reasonable control that has heretofore not thwarted development of lots such as this.” Consequently, the officer decided that the statute did not apply to the coverage requirements in question. The board denied the appeal from the officer’s ruling, concluding that his interpretation of the statute was reasonable.

The plaintiffs appealed from the board’s decision to the Superior Court. The focus of the court’s analysis was on a new argument presented by the defendant, namely, that should § 8-26a (b) be determined to apply to all subsequently enacted zoning regulations (coverage regulations, inclusive), it should not be applied retroactively to pre-1984 subdivision plans. The court engaged in a thorough examination of the principles of retroactive legislation and concluded that the 1984 revision of the statute was a substantive change in the law, substantive changes in the law are presumptively not applied retroactively absent any clearly expressed legislative intent to the contrary, and the statute, in this case, should not be applied retroactively. In so concluding, on April 22, 2000, the court dismissed the plaintiffs’ appeal. This appeal followed. Additional facts will be introduced as necessary.

II

ANALYSIS

On appeal to this court, the plaintiffs renew their argument that their lot falls squarely under the protection of § 8-26a (b). The defendant presents two new arguments for affirmance on alternate grounds. The first is that the 1984 revision of the statute was, in fact, a technical, nonsubstantive change in the law and that the law remains, when read in its entirety, substantially the same as the 1969 revision of the statute, which protected an approved subdivision lot from subsequent changes in zoning regulations for five years. The defendant’s second argument is that the statute does not protect a subdivision lot from subsequent changes in zoning regulations that were not implicated by the subdivision plan itself. The statute’s protection, the defendant argues, extends only to what is shown on the approved plan and lasts only for the period of time necessary for the developer to implement those plans. We address those arguments in turn.

Regarding our standard of review in this matter, we note that statutory interpretation involves a question of law and, thus, our review is plenary. Gelinas v. West Hartford, 65 Conn. App. 265, 275, 782 A.2d 679, cert. denied, 258 Conn. 926, 783 A.2d 1028 (2001).

A

The plaintiffs argue that they satisfied all the requirements of the statute. We agree. General Statutes § 8-26a (b) provides in relevant part that “when a change is adopted in the zoning regulations ... of any town . . . no lot . . . shown on a subdivision plan for residential property which has been approved, prior to the effective date of such change, by the planning commission of such town . . . and filed or recorded with the town clerk, shall be required to conform to such change.”

There is no dispute that the subdivision plan was approved properly by an authorized planning commission, and filed and recorded with the town clerk, nor is it contested that the plaintiffs’ residential lot was shown on the plan. Furthermore, the regulation pertaining to limits on coverage is to be found in the town of Wilton’s zoning regulations, which are on file in the planning and zoning department of the town of Wilton. Thus, the regulation pertaining to limits on coverage is presumptively a “zoning regulation.” The officer testified that the coverage regulations were adopted subsequent to the 1954 approval of the subdivision plan.

The concern that the court had with the application of § 8-26a (b) to the plaintiffs’ lot was simply that to apply the statute retroactively, given the substantive nature of the 1984 amendment, would be counter to established jurisprudence on statutoiy interpretation. We believe that this concern is misplaced because retroactive application is unnecessary to the statute’s effect on the plaintiffs’ lot. “A statute is not rendered retroactive merely because the facts or requisites upon which its subsequent action depends, or some of them, are drawn from a time antecedent to the enactment.” Reynolds v. United States, 292 U.S. 443, 449, 54 S. Ct. 800, 78 L. Ed. 1353 (1934). The statute, by its own language, applies to any plan “which has been approved, prior to the effective date of such change . . . (Emphasis added.) General Statutes § 8-26a (b). “Given their natural meaning, these words plainly are applicable to the situation with which the court below was called upon to deal.” Reynolds v. United States, supra, 447. In other words, the statute is prospective, despite its effect on the presently approved, filed and recorded plans, such as the plaintiffs’, which happened to have been approved, filed and recorded prior to 1984.

Our Supreme Court interpreted a similarly worded statute in Schieffelin & Co. v. Dept. of Liquor Control, 194 Conn. 165, 479 A.2d 1191 (1984), in the same manner. The question before the court was whether Public Acts 1981, No. 81-367 (P.A. 81-367), which concerned the termination of liquor distributorships, was intended to affect existing distributorships. Schieffelin & Co. v. Dept. of Liquor Control, supra, 169-71. The court held that the use of the present perfect tense in the language of P.A. 81-367 “indicates an action or condition that was begun in the past and is still going on or was just completed in the present. Thus, although the act applies prospectively to terminations of distributorships, the criteria upon which such terminations are to be considered might well arise either before or after its effective date. Cf. Hartford v. Suffield, 137 Conn. 341, 343, 77 A.2d 760 (1950).” Schieffelin & Co. v. Dept. of Liquor Control, supra, 175.

This court has acknowledged that a prospective application, with past approvals inclusive, is, in fact, the effect of § 8-26a (b). In Johnson v. Board of Zoning Appeals, 35 Conn. App. 820, 646 A.2d 953 (1994), we sought to determine whether the effect of the town selectmen’s approval of a subdivision plan — in 1918— was equivalent to an approval from a town planning commission for the purposes of the statute’s applicability. Id., 821-24. We held that it was not equivalent. Id., 826. “If, however, [the selectmen] exercised the powers of a planning commission when [they] adopted the map depicting [the lot], then [the lot] is shielded from [the subsequent change in lot size] requirement.” Id., 824.

Similarly, in Gay v. Zoning Board of Appeals, 59 Conn. App. 380, 757 A.2d 61 (2000), we concluded that a subdivision lot properly approved in 1950 was not required to conform to subsequent changes in zoning regulations, per § 8-26a (b), that building on the nonconforming lot would be permitted and that a variance would not be required. Id., 386-88. In Iannucci v. Zoning Board of Appeals, 25 Conn. App. 85, 592 A.2d 970 (1991), we also stated that had no merger occurred between two lots, a properly filed and approved subdivision plan from 1938 would be subject to the protection of § 8-26a (b). Id., 91.

In Ross v. Conservation Commission, Superior Court, judicial district of Fairfield, Docket No. 301484 (November 12, 1993) (10 Conn. L. Rptr. 313) (Fuller, J.), the court confronted the question directly. In Ross, the owners of a pair of building lots that were part of a 1962 subdivision plan that was approved, filed and recorded in the town of Westport, claimed that their lots were exempt from subdivision and zoning regulations enacted subsequent to approval. The court agreed. “[The lots] come squarely within the protection provided to approved subdivision lots by 8-26a (a) and (b) of the General Statutes. . . . [T]he phrasing of these statutes is clear and unambiguous, and the plaintiffs’ lots comply with the exemption requirements contained in them. The courts do not construe statutes whose meaning is plain and unambiguous ... or by construction add exceptions merely because it appears that good reasons exist for doing so.” (Citation omitted.) Id., 314.

The “good reasons” for not applying the statute as written are patent: the statute, as written and as we interpret it, provides a “sweeping statutory restriction” on a town’s ability to regulate land use once it has approved a plan. T. Tondro, Connecticut Land Use Regulation (2d Ed. 1992) p. 219. “[The statute] forever prohibits the application of new subdivision or zoning regulations to all subdivisions once they are approved . . . .” (Emphasis added.) Id. By enacting the statute, “[t]he legislature has clearly made a policy decision that once the division of the land and proposed lot layout has been reviewed by the municipality through its planning commission the subdivision does not have to be reviewed again, and that the subdivision lots are not affected by subsequently enacted zoning regulations.” Ross v. Conservation Commission, supra, 10 Conn. L. Rptr. 315.

In the present case, we agree with the plaintiffs that the 1954 subdivision plan that includes their lot and that was approved, filed and recorded in the town of Wilton places their lot within the intended scope of § 8-26a (b) and its attendant exemptions.

B

The defendant makes the argument that, when read in its entirety and with the guidance of the statute’s legislative history, § 8-26a (b) has a much more limited scope than the plaintiffs, and our courts, would suggest. In particular, the defendant relies on what it claims is the effect that General Statutes § 8-26c has on § 8-26a (b) and cites the entire history of § 8-26a (b). The defendant additionally argues that § 8-26a (b) does not protect a subdivision lot from subsequent changes in zoning regulations that were not implicated by the subdivision plan itself. The statute’s protection, the defendant argues, extends only to what is shown on the approved plan and exists only for the period of time necessary for the developer to complete those plans.

Normally, when the language of a statute is clear, we need not look beyond the words to discern legislative intent. “We must . . . examine the language of the amended statute. In analyzing the statutory language, we employ the standard rules of statutory construction. To determine the collectively expressed legislative intent, we look first to the language of the statute itself. If that language is plain and unambiguous, we go no further. ... If, however, the statute is ambiguous, e.g., either opaque or susceptible to alternative conflicting interpretations, we will seek guidance from ‘extrinsic aids,’ e.g., the legislative history.” (Internal quotation marks omitted.) Anderson v. Schieffer, 35 Conn. App. 31, 40-41, 645 A.2d 549 (1994).

The defendant argues, essentially, that § 8-26a (b), when read in the light provided by its legislative history and in conjunction with accompanying zoning statutes, is susceptible to an alternative, conflicting interpretation. We conclude that the relationship between §§ 8-26a (b) and 8-26c (a) sufficiently opens the door to another plausible interpretation of § 8-26a (b) to persuade us that guidance from the statute’s legislative history would be availing.

General Statutes § 8-26c (a), enacted in 1967, provides in relevant part: “Any person, firm or corporation making any subdivision of land . . . shall complete all work in connection with such subdivision within five years after the approval of the plan for such subdivision; the commission’s endorsement of approval on the plan shall state the date on which such five-year period expires.”

The defendant argues that when the legislature amended § 8-26a (b) by deleting reference to the five year grace period, that was not an attempt to extend the grace period indefinitely, but an attempt to eliminate superfluous language. The defendant argues that § 8-26c (a) retains the five year limitation and that reference to a five year limit is unnecessary in § 8-26a (b).

Underlying that argument is the idea that if, within five years, “all work in connection with such subdivision”; General Statutes § 8-26c (a); is not completed, then the approval automatically expires and, as an unapproved subdivision plan, whether properly filed and recorded or not, the plan no longer receives the protection of § 8-26a (b). To understand the relationship between the two statutes it is necessary, then, to define the term “work” as used in § 8-26c (a). If it is defined as all potential construction now and in the future, then it plausibly could be understood to limit the potential impact of § 8-26a (b).

The definition is not so expansive. The definition is supplied in § 8-26c (c): “ ‘Work’ for purposes of this section means all physical improvements required by the approved plan, other than the staking out of lots, and includes but is not limited to the construction of roads, storm drainage facilities and water and sewer lines, the setting aside of open space and recreation areas, installation of telephone and electric services, planting of trees or other landscaping, and installation of retaining walls or other structures.” General Statutes § 8-26c (c).

Clearly, the work referred to is the basic infrastructure of the subdivision site and stops short of requiring completed construction on the individual lots (or even the staking out of the individual lots). We surmise from this that the failure to complete all private construction does not give rise to the expiration of the subdivision plan’s approval.

Our courts are in accord with that understanding of the interplay of the two statutes. “The purpose of § 8-26c is to guarantee that the subdivision improvements, relating to public safety and access, are completed to prevent the municipality and the lot purchasers from incurring the cost of completing subdivision roads and other improvements, and to give lot purchasers safe access to their lots. . . . The statute defines ‘work’ .... The listed items [in the definition] are all public improvements, such as roads, drainage facilities and public utilities relating to the public areas in the subdivision and it does not include private improvements such as residences. Subdivision approval merely says that the lot is suitable for development. It does not require construction of a residence on an approved lot. . . . See [T. Tondro, supra], p. 220. Approved subdivision lots lose the exemption in § 8-26a only if the public improvements are not completed . . . .” (Citation omitted; emphasis in original.) Ross v. Conservation Commission, supra, 10 Conn. L. Rptr. 315.

Here, there is no contention that the work, as statutorily defined, was not completed in the prescribed time. Finding no time limit for the exemption from later changes in zoning regulations that would affect private improvements on a properly approved subdivision lot in the language of § 8-26a (b), we turn to the statute’s extensive legislative history.

After an examination of the forty-four year history of § 8-26a and its amendments, we find the history, at best, inconclusive to the defendant’s contention that the statute’s intended purpose was not to protect the plaintiffs lot from future changes in subdivision and zoning regulations. Additionally, we find no indication that the legislature intended distinctions to be drawn between certain zoning regulations, for example, that protection might extend to changes in setback requirements, but not to changes in coverage requirements.

In the course of the bill’s adoption in 1959, debate occurred and objections were noted. Ultimately, the bill passed, objections notwithstanding. The prevailing sentiment was, as stated by Representative Burton J. Jacobson of Monroe, that “[t]he builder or developer is entitled to know the rules under which he will operate. . . . Builders and developers buy land and make investments in plans relying upon the course that they will incur under a certain set of regulations. Once they have filed their plan their investment should be protected . . . ” 8 H.R. Proc., Pt. 3, 1959 Sess., pp. 987-88.

Although, as the legislative history shows, builders and developers were the impetus for and prime beneficiaries of the legislation, that fact in no way excludes landowners such as the plaintiffs from benefiting from the legislation as well. To apply the statute to builders and to developers and not to homeowners would require a drawing of distinctions between classes of developers (i.e., amateur versus professional), and create a fundamentally different situation for those who buy a “fully” developed lot and those who buy an unimproved, or partially developed, lot, with the intention of developing it further. That we choose not to do.

III

CONCLUSION

“Zoning regulations . . . cannot be construed to include or exclude by implication what is not clearly within their express terms.” (Internal quotation marks omitted.) Northeast Parking, Inc. v. Planning & Zoning Commission, 47 Conn. App. 284, 293, 703 A.2d. 797 (1997), cert. denied, 243 Conn. 969, 707 A.2d 1269 (1998). “[I]t is not the province of a court to supply what the legislature chose to omit. The legislature is supreme in the area of legislation, and courts must apply statutory enactments according to their plain terms.” (Internal quotation marks omitted.) Bona v. Freedom of Information Commission, 44 Conn. App. 622, 636 n.14, 691 A.2d 1 (1997). Here, the plain terms of § 8-26a (b) gave the plaintiffs a vested right, and that right entitled them to a zoning permit.

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

In this opinion the other judges concurred.

      A zoning permit is a prerequisite for a building permit for any new construction in the town of Wilton. “The ZEO shall issue a Zoning Permit upon determination that the proposed development is in accord with [the Wilton zoning regulations].” Wilton Zoning Regs., § 29-12.D.3.

       The statute was enacted as Public Acts 1959, No. 59, titled “An Act Concerning the Effect of Zoning Changes on Approved Subdivision Plans For Residential Property,” and was accompanied by Public Acts 1959, No. 58, titled “An Act Concerning the Effect of Subdivision Regulation Changes on Approved Subdivision Plans For Residential Property,” which now is codified as General Statutes § 8-26a (a).
      The two subsections have been revised several times in the intervening years. Originally, in 1959, the protection from changes in subdivision and zoning regulations offered by the statute was for three years. In 1965, the language of § 8-26a (b) was changed to include in the protection scheme the “lots shown on a subdivision plan” and buildings “to be erected.” In 1969, the length of protection was extended to five years. In 1984, the time limit for the protection was eliminated from the language of the statute altogether.

       See footnote 2. Through Public Acts 1984, No. 84-147, § 2, General Statutes § 8-26a was amended to eliminate the time limit for which a properly approved lot would be exempt from subsequent zoning regulations. It is the most recent revision to that statute.

       See footnote 2.

       The coverage requirements are found in the same section of the zoning regulations as the setback requirements. Wilton Zoning Regs., § 29-5.D. The defendant does not contest that the plaintiffs’ lot is exempt from setback regulations.

       Specifically, the language involved in relevant part was: “When a holder of a wholesale permit has had the distributorship of any alcohol . . . product ... for six months or more, such distributorship may be terminated . . . .” (Emphasis added; internal quotation marks omitted.) Schieffelin & Co. v. Dept. of Liquor Control, supra, 194 Conn. 169 n.2. At the risk of being pedantic, we note that “has had” is the present perfect tense of the word “have.” Here, the verb form “has been approved” in General Statutes § 8-26a (b) is the present perfect passive tense of the word “approve.” W. Sabin, Gregg Reference Manual (7th Ed. 1992) § 10, pp. 221-23.

       In Gay, the trial court held that “General Statutes § 8-26a (b) . . . applies to the plaintiffs’ case . . . Gay v. Zoning Board of Appeals, supra, 59 Conn. App. 383-84. We affirmed the court’s judgment, but noted that “[t]he defendant does not attack the validity of the application of § 8-26a (b) to the plaintiffs’ lot . . . .” Id., 383 n.5.

       Further undermining defendant’s argument, General Statutes § 8-26c was adopted in 1967, and the amendments to General Statutes § 8-26a (a) and (b) that deleted the reference to a five year limit on the protection against subsequent changes happened seventeen years later in 1984. At no time during the legislative history of the two statutes and their amendments between 1967 and 1984, was there any discussion that the five year limit on the one was in any way related to the five year limit on the other.

       At least one legislator appeared cognizant of the potential for confusion on that issue. Representative Nicholas B. Eddy of New Hartford remarked: “Mr. Speaker, the law now is . . . that ... it is possible ... to change some of the regulations that relate to the use of the land as distinguished from lot size. Now, the basic objection to this bill . . . is . . . that by inference the planning commission will be given power after three years to change something it cannot now change. ... I say to you further, sir, that it’s our system that the courts will decide these questions and I’m not satisfied that the courts have considered in detail just which regulations can be changed at this point based upon the facts of a particular case . . . and I predict that if this bill is passed, when it is construed by the courts, there are going to be many here who will be surprised at the meaning of what they have passed and for that reason I think it would be best if the bill is sent back to committee.” 8 H.R. Proc., Pt. 3,1959 Sess., pp. 1005-1006.
      In a similar vein, Representative Benjamin M. Schlossbach of Westbrook was moved to comment: “I would like to suggest, Mr. Speaker, that in view of the fact that unquestionably there is some confusion, that the purpose of a good bill is to avoid litigation and not to promote it, and evidently unquestionably this will have to be decided by a court and not by us. I would like to suggest . . . [the committee] reconsider this matter.” Id., pp. 1003-1004.

       The objections included the fact that the legislation seemed to provide greater protection for owners of lots contained in a subdivision plan than for the owners of isolated lots. Moreover, the future planning of the town might require reaction to unforeseen events, and the legislation would hobble a town’s ability to cope with such events. The additional protections for subdividers, opponents argued, could cause a rash to subdivide to protect a landowner’s future interests. Other legislators protested the disproportionate benefits developers would receive at the expense of a town’s power to plan its orderly development.
      Representative Robert S. Orcutt of Guilford stated: “This is the first attempt in this session by a special interest group to erode some of the planning controls that every town needs in order to plan for its future. To my knowledge, only the builders’ groups supported this bill at the hearing. The Connecticut Federation of Planning and Zoning Agencies . . . went on record as being opposed to this bill.” 8 H.R. Proc., Pt. 3,1959 Sess., pp. 983-84.

       The initial goal of the 1959 legislation was, as the legislative history shows, to prevent zoning boards from approving a subdivision plan and then, after development had proceeded, changing the zoning or subdivision regulations. That situation, decried by the building industry, led to occasions where developers incurred (sometimes substantial) expenses and were left in a relatively vulnerable position with respect to the changing regulations until their subdivisions were completed.


source: Caselaw Access Project

license: Public Domain

text:
    STATE OF CONNECTICUT v. JOHN J. CABRAL
    (AC 21594)
    Lavery, C. J., and Dranginis and Bishop, Js.

      Argued October 15, 2002
    officially released March 4, 2003

      Jeremiah Donovan, special public defender, for the appellant (defendant).

      Michele C. Lukban, assistant state’s attorney, with whom, on the brief, were Kevin T. Kane, state’s attorney, Stephen M. Carney, assistant state’s attorney, and David C. Nelson, certified legal intern, for the appellee (state).
   Opinion

BISHOP, J.

The defendant, John J. Cabral, appeals from the judgment of conviction, rendered after a jury trial, of conspiracy to possess one kilogram or more of marijuana with intent to sell in violation of General Statutes §§ 53a-48 and 21a-278 (b), and attempt to possess one kilogram or more of marijuana with intent to sell in violation of General Statutes §§ 53a-49 (a) (1) and 21a-278 (b). On appeal, the defendant claims that the trial court improperly (1) denied his motion to suppress his postarrest statement to the police, (2) violated his state and federal constitutional rights by permitting the state to impeach him with evidence of his postarrest silence and request for an attorney, (3) admitted into evidence, as an exception to the hearsay rule, statements made by an individual who was acting as an agent of the police and (4) allowed the state to question the defendant in regard to false statements in his application for a public defender. We reverse the judgment of the trial court and remand the case for a new trial.

The jury reasonably could have found the following facts. In 1995, the defendant met David Levarge, who lived next door to the defendant’s mother-in-law. The two became friends and routinely socialized. In or about 1997, the defendant introduced Levarge to his friend, Robert Anderson, and the three men became friends.

In early October, 1998, Anderson approached the defendant to purchase some marijuana, but the defendant said he had none. Anderson then told the defendant that he knew someone named “Pete” from California from whom he could buy marijuana. Subsequently, Anderson ordered three pounds of marijuana from Pete for which he and the defendant agreed to pay $3000. They also decided to have the marijuana delivered to Levarge’s house because the defendant did not want the police to trace the marijuana to his house.

Sometime in mid-October, 1998, Anderson learned from the defendant and Levarge that the marijuana had not yet arrived. Anderson contacted Pete, who informed him that the marijuana had been shipped to and received at the address provided. Pete asked for telephone numbers for the defendant and Levarge.

On October 28, 1998, Levarge, who did not testily at trial, went to the state police barracks in Montville and spoke to Trooper Robert Bardelli. From there, the two men proceeded to Levarge’s home. When they arrived, the telephone rang. The answering machine picked up, and a voice said that Levarge “had better show up with the package he was supposed to have.”

Shortly thereafter, Levarge climbed into a crawl space in his home and retrieved three pounds of marijuana, which he handed to Bardelli. Bardelli notified his supervisor and assembled a team of officers to come to Levarge’s home where they formulated a course of action. Bardelli requested that Levarge make a telephone call to Anderson. In that conversation, which was monitored and recorded by the state police, Levarge told Anderson that he now had the marijuana. He also explained that he had not been home to receive the shipment because he had taken his son to a physician and that he had told that to the defendant. He told Anderson that he would leave the package in the backseat of his son’s car and that Anderson should have the defendant pick it up.

On that same day, at approximately 7:30 p.m., the police fabricated a package and placed it in Levarge’s son’s vehicle, which was parked at Levarge’s residence. At approximately 8:45 p.m., the defendant appeared and retrieved the package from the vehicle. As the defendant began to depart, the police left their surveillance locations, announced their presence, converged on the defendant and arrested him. Bardelli testified that he read the defendant his rights pursuant to Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966), at the time of his arrest.

The police then drove the defendant to a gasoline station approximately five minutes from Levarge’s house. While in the police cruiser at the gasoline station, the defendant told the police that Anderson had sent him to pick up the package. When the police asked him to put his statement in writing, he declined and stated that he wanted to consult with an attorney. Subsequently, the defendant was processed at the police station where records revealed that he was read his rights pursuant to Miranda at 11:13 p.m. There is no written record, however, of the defendant’s having been given Miranda warnings at the time of his arrest. Additional facts will be discussed as they pertain to the specific claims of the defendant.

I

The defendant asserts several claims regarding his rights pursuant to Miranda, only some of which he raised at trial. Specifically, he claims that the court should have granted his motion to suppress because (1) he was not read his rights pursuant to Miranda before he gave an inculpatory statement to the police, (2) the reading of his rights pursuant to Miranda at the time of his arrest was fatally incomplete, (3) even if he was read his rights pursuant to Miranda, his subsequent inculpatory statement was not knowingly and intelligently made and (4) the court improperly determined that his motion to suppress was untimely.

At the outset, we set forth our standard of review for the plaintiffs remaining claims. “Our standard of review of a trial court’s findings and conclusions in connection with a motion to suppress is well defined. A finding of fact will not be disturbed unless it is clearly erroneous in view of the evidence and pleadings in the whole record .... [W]here the legal conclusions of the court are challenged, we must determine whether they are legally and logically correct and whether they find support in the facts set out in the memorandum of decision . . . .” (Internal quotation marks omitted.) State v. Clark, 255 Conn. 268, 279, 764 A.2d 1251 (2001).

A

We first address the plaintiffs claim that he had not been given his Miranda warnings when he told the police that he had been picking up the package for Anderson.

It is settled law that a criminal defendant “must be warned prior to any questioning that he has the right to remain silent, that anything he says can be used against him in a court of law, that he has the right to the presence of an attorney, and that if he cannot afford an attorney one will be appointed for him prior to any questioning if he so desires. Opportunity to exercise these rights must be afforded to him throughout the interrogation.”Miranda v. Arizona, supra, 384 U.S. 479.

Our review of the record does not support the defendant’s claim that he was not read his rights under Miranda at the time of his arrest. At the suppression hearing, Bardelli was the only witness. He testified, without rebuttal, that he gave Miranda warnings to the defendant at the time of his arrest after he had placed him in the police cruiser. The court was entitled to credit that testimony in determining that, in fact, the defendant was advised of his rights pursuant to Miranda at the time of his arrest before any questioning took place. See State v. Guckian, 27 Conn. App. 225, 239, 605 A.2d 874 (1992) (“[i]t is the function of the court as trier of fact to assess the credibility of witnesses”), aff'd, 226 Conn. 191, 627 A.2d 407 (1993).

B

The defendant argues as well that when the police questioned him, he requested the opportunity to speak first with an attorney, but, nevertheless, the police insisted on questioning him.

The short answer to that claim is that the sequence of events implied in the defendant’s motion to suppress does not comport with the court’s factual findings. In sum, the court found that the defendant had been read his rights pursuant to Miranda upon his arrest and that shortly thereafter, he told the police that he had been sent by Anderson to retrieve the marijuana. It was only after the defendant had made that inculpatory statement, when the police asked him if he was willing to put his statement in writing, that he indicated a desire to speak with an attorney and to cease talking with the police. Accordingly, the suggestion in the defendant’s motion to suppress that he made the inculpatory statement after he specifically asked for an attorney and expressed his desire to stop answering questions is factually flawed. As we have often stated, we will not disturb the factual findings of a trial court unless they are clearly erroneous. Franc v. Bethel Holding Co., 73 Conn. App. 114, 130, 807 A.2d 519, cert. granted on other grounds, 262 Conn. 923, 812 A.2d 864 (2002). The record amply supports the court’s factual findings regarding the sequence of events leading to and subsequent to the defendant’s inculpatory statement. We conclude, on the basis of the totality of the surrounding circumstances, that the court properly ruled that the defendant’s inculpatory statement to the police was voluntary.

II

The defendant’s second claim is that pursuant to Doyle v. Ohio, 426 U.S. 610, 96 S. Ct. 2240, 49 L. Ed. 2d 91 (1976), the court violated his state and federal constitutional rights by improperly permitting the state to impeach him with evidence of his postarrest silence and request for an attorney. We agree. The defendant failed to raise that issue at trial and now seeks to prevail on his unpreserved claim under State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989). We review the defendant’s claim because the record is adequate for review and the claim is of constitutional magnitude. See State v. Clark, 69 Conn. App. 41, 46, 794 A.2d 541 (2002).

In support of his claim of & Doyle violation, the defendant cites the direct testimony of three police officers, his cross-examination by the state and the prosecutor’s closing argument to the jury.

On direct examination, the state asked Bardelli:

“[Prosecutor]: And [the defendant] said he was picking [the marijuana] up for another individual?

“[The Witness]: Yes. . . .

“[Prosecutor]: All right. Now, did he say anything else?

“[The Witness]: Well, we — at that point, we asked him if he wanted to give us a written statement in reference to [his statement that Anderson had sent him to pick up marijuana] and, at that point, he said he wanted a lawyer. He didn’t want to say anything else. He wasn’t writing any written statements.”

The following day, the state questioned Officer Jeffrey Hotsky on direct examination as follows:

“[Prosecutor]: And was the defendant . . . asked to put a statement into writing?

“[The Witness]: I believe he was.

“[Prosecutor]: Okay. And did he say that, yes, he would put a statement into writing?

“[The Witness]: I don’t specifically recall that, but I do recall, at some stage, he didn’t — he decided he didn’t want to talk to us anymore.”

On the same day, the state questioned Officer James Morin as follows:

“[Prosecutor]: Okay. After the defendant . . . said that he was picking up a package and that the package was marijuana, and he was bringing it to a third person, Mr. Anderson, did you ask him if he would put that in to writing?

“[The Witness]: Yes.

“[Prosecutor]: And is it at that time that he asked for an attorney?

“[The Witness]: Yes. At that time, he didn’t — he felt that was enough, and he didn’t want to go any further. He wanted an attorney.”

On cross-examination, the state asked the defendant:

“[Prosecutor]: Okay. And right after or right before that — well, before that, the police officer said to you, ‘Would you like to make a statement and put it into writing?’ Do you agree with that?

“[Defendant]: Yes. Yes.

“[Prosecutor]: Okay. And you decided not to do that?

“[Defendant]: Yes.

“[Prosecutor]: Okay. And you didn’t think it would be a good idea, then, to have it in writing, what had happened to you that night?”

During closing argument, the state told the jury in relevant part:

“[W]hat the three police officers who were present all agree is that, both, in the car and then again at the gas station, what [the defendant] did was — said, ‘Yeah, I was picking up marijuana. I was picking up the marijuana to bring it to Anderson.’ He confessed. When he was asked to give a written statement he said, ‘No. I don’t want to do that. I prefer to talk with a lawyer first.’ ”

Under Doyle, “evidence of a defendant’s postarrest and post-Miranda silence is constitutionally impermissible under the due process clause of the fourteenth amendment. ... A Doyle violation also encompasses a prosecutor’s comment upon a defendant’s statement requesting an attorney. . . . With respect to post-Miranda warning . . . silence does not mean only muteness; it includes the statement of a desire to remain silent, as well as of a desire to remain silent until an attorney has been consulted. . . .

“Doyle violations are, however, subject to harmless error analysis. . . . The harmless error doctrine is rooted in the fundamental purpose of the criminal justice system, namely, to convict the guilty and acquit the innocent. . . . Therefore, whether an error is harmful depends on its impact on the trier of fact and the result of the case. . . .

“[BJefore a federal constitutional error can be held harmless, the court must be able to declare a belief that it was harmless beyond a reasonable doubt. . . . The state bears the burden of demonstrating that the constitutional error was harmless beyond a reasonable doubt. . . . That determination must be made in light of the entire record. . . .

“A Doyle violation may, in a particular case, be so insignificant that it is clear beyond a reasonable doubt that the jury would have returned a guilty verdict without the impermissible question or comment upon a defendant’s silence following a Miranda warning. Under such circumstances, the state’s use of a defendant’s postarrest silence does not constitute reversible error.” (Citations omitted; internal quotation marks omitted.) State v. Daugaard, 231 Conn. 195, 210-12, 647 A.2d 342 (1994), cert. denied, 513 U.S. 1099, 115 S. Ct. 770, 130 L. Ed. 2d 666 (1995).

In the present case, the state argues that the references at trial to the defendant’s postarrest silence were similar to those made in Daugaard and State v. Canty, 223 Conn. 703, 613 A.2d 1287 (1992). More precisely, the state argues that the references were made as part of a narrative and were not made in the context of juxtaposing his postarrest silence to his guilt. Hence, the state claims that the statements were harmless beyond a reasonable doubt.

The state’s reliance on Daugaard and Canty is misplaced. Unlike the situations in either Daugaard or Canty, in this case, there was not merely a single reference to the fact of the defendant’s silence and it did not occur solely in the police officer’s recitations. In addition to the state’s questioning of the three law enforcement officers, Bardelli, Hotsky and Morin, who were present at the time of the alleged confession, about the defendant’s silence, the state confronted the defendant himself about his invocation of his right to remain silent and to be represented by an attorney. Additionally, the state reemphasized the defendant’s silence in its closing argument. Last, during cross-examination, the state suggested a connection between the defendant’s silence and his guilt by telling him that “you didn’t think it would be a good idea, then, to have it in writing, what happened to you that night?”

Given a record replete with references to the defendant’s post-Miranda silence and request for counsel, we cannot conclude that the jury would have returned a guilty verdict without the impermissible questions or comment on the defendant’s silence and request for counsel. Therefore, we cannot conclude that the state met its burden of proving that the error was harmless beyond a reasonable doubt. Consequently, the defendant is entitled to a new trial on both counts of the information.

Ill

The defendant’s third claim is that the court improperly admitted hearsay statements that Levarge made while acting as an agent of the police in a telephone conversation with Anderson. Specifically, on the basis of the holding of State v. Grullon, 212 Conn. 195, 562 A.2d 481 (1989), the defendant claims that it was legally impossible for him to be convicted of conspiracy to possess one kilogram of marijuana because a significant portion of the evidence used by the state in furtherance of that charge consisted of statements by Levarge, who, by definition, could not have been a coconspirator. We agree that the evidence should not have been admitted.

It is well settled that “a co-conspirator’s [hearsay] statement, made while the conspiracy is ongoing and in furtherance of the conspiracy, is an exception to the hearsay rule and as such, does not violate the confrontation clause.” (Internal quotation marks omitted.) State v. Couture, 218 Conn. 309, 322, 589 A.2d 343 (1991); see also State v. Jones, 60 Conn. App. 866, 878, 761 A.2d 789 (2000), cert. denied, 255 Conn. 942, 769 A.2d 59 (2001); Conn. Code Evid. § 8-3 (1) (D). Moreover, a “conspiracy requires a showing that two or more coconspirators intended to engage in or cause conduct that constitutes a crime.” State v. Grullon, supra, 212 Conn. 199. Our Supreme Court has held that a police informant, who by definition lacks any criminal intent to participate in the conspiracy, is not a coconspirator. Id., 203. Thus, statements from apolice informant cannot be admitted as an exception to the hearsay rule.

In the present case, the charge of conspiracy was premised on the defendant’s criminal participation with Anderson. In support of the charge, the state introduced a tape recording of a telephone conversation between Anderson and Levarge. The difficulty lies in the fact that by the time of the conversation, Levarge had become a police agent and that his statements in the conversation were admitted, as were those by Anderson. See id.

Although statements made by Anderson in the conversation could be viewed as inculpating the defendant in a conspiracy, the conversation impermissibly included statements made by Levarge, which were damaging to the defendant. Consequently, those portions of the tape-recorded conversation that included Levarge’s statements should have been excluded as hearsay and should not have been admitted as a statement of a coconspirator.

That conclusion does not, however, end our analysis. “When an improper evidentiaiy ruling is not constitutional in nature, the defendant bears the burden of demonstrating that the error was harmful.” State v. Marshall, 246 Conn. 799, 812, 717 A.2d 1224 (1998). “One factor to be considered in determining whether an improper ruling on evidence is a harmless error is whether the testimony was cumulative . . . .’’(Internal quotation marks omitted.) State v. Vega, 48 Conn. App. 178, 192, 709 A.2d 28 (1998).

We conclude that the defendant has met that burden. During the tape-recorded conversation between Levarge and Anderson, Levarge provided the police with information implicating the defendant in the conspiracy. Specifically, he told Anderson that he was not home to retrieve the marijuana because, as he had told the defendant, he had taken his son to a physician. He further provided the background for the conspiracy, including threats by Pete for Levarge’s failure to deliver the marijuana in a timely manner. In its closing argument, the state emphasized the importance of the tape in establishing that the defendant was well aware of the conspiracy and that his defense that he believed he was picking up chips and salsa rather than marijuana was not believable. Hence, the improperly admitted evidence was so harmful that it either affected the result of the trial or undermined confidence in the fairness of the verdict.

IV

We address the defendant’s last claim because the issue is likely to arise in the new trial. Specifically, the defendant claims that it was error for the state to question him in regard to false statements made in his application for a public defender. We disagree.

The following facts are relevant to the defendant’s claim. At trial, the defendant testified. On cross-examination, the state asked the defendant whether he had failed to report “under the table income” when he applied for a public defender. The court overruled defense counsel’s objection that such information was privileged.

Our standard of review of a court’s evidentiary rulings is one of abuse of discretion. See State v. Sanchez, 69 Conn. App. 576, 583, 795 A.2d 597 (2002). We will disturb the court’s evidentiary rulings only on a showing that the ruling resulted in “substantial prejudice or injustice to the defendant.” (Internal quotation marks omitted.) Id., quoting State v. Jackson, 257 Conn. 198, 213, 777 A.2d 591 (2001).

In this case, the court permitted the state to cross-examine the defendant as to his false statements in his application for a public defender. More precisely, it appears from the record that the defendant failed to report “under the table” income to the office of the public defender, an omission arguably directed to his credibility as a witness as well as to his motivation to trade in an unlawful substance.

The defendant argues that the state’s inquiry into his false statements in his application for a public defender creates a tension between the constitutional rights against self-incrimination and to counsel. In support of his position, the defendant has cited no decisional or statutory law, nor are we aware of any, that supports his contention that the constitutional right to counsel permits a defendant to make false representations in his application for a public defender while precluding the state from inquiring into them on the basis of the attorney-client privilege.

In permitting the examination, the court did not abuse its discretion. Although its ruling may have been harmful to the defendant in the eyes of the fact finders, it was neither improper nor unjust. We accordingly find no abuse of discretion.

The judgment is reversed and the case is remanded for a new trial.

In this opinion the other judges concurred.

       We will not review the defendant’s second claim because it is raised for the first time on appeal. “Our appellate procedures do not permit an appellant to pursue one course of action at the trial and then ... to insist on appeal that the course which he rejected at the trial be reopened to him . . . .” (Internal quotation marks omitted.) State v. Vasquez, 68 Conn. App. 194, 221, 792 A.2d 856 (2002). “[A]ppellate claims must be the product of trial counsel’s efforts, not those of appellate counsel sifting through the record alter the fact, trawling for issues undreamt of at trial.” State v. Safford, 22 Conn. App. 531, 537, 578 A.2d 152, cert. denied, 216 Conn. 823, 581 A.2d 1057 (1990).

       We dispose of that claim by noting that the court decided the motion on the merits. The court’s observation in its articulation that the motion had been untimely was, at most, gratuitous, and was in no way detrimental to the defendant.

       It is important to address the claim first, as “[i]t is essential to know the timing of [the defendant’s statement to the police] because the use at trial of silence prior to the receipt of Miranda warnings does not violate due process.” (Emphasis in original.) See State v. Berube, 256 Conn. 742, 751, 775 A.2d 966 (2001). We must first establish that Miranda warnings were given before we can address the defendant’s claimed violation of Doyle v. Ohio, 426 U.S. 610, 96 S. Ct. 2240, 49 L. Ed. 2d 91 (1976), in part II.

       In Golding, our Supreme Court held that “a defendant can prevail on a claim of constitutional error not preserved at trial only if all of the following conditions are met: (1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt.” (Emphasis in original.) State v. Golding, supra, 213 Conn. 239-40.

       We also determined in part IA that Bardelli gave Miranda warnings to the defendant upon his arrest


author: SCHALLER, J.

text:
    JOAN CARNEMOLLA v. MARK WALSH ET AL.
    (AC 22512)
    Foti, Schaller and West, Js.

      Argued September 23, 2002
    officially released March 4, 2003

      William R. Moller, for the appellant (plaintiff).

      Mary Jane Ryan, with whom, on the brief, was Joseph B. Summa, for the appellees (defendants).
   Opinion

SCHALLER, J.

The plaintiff, Joan Camemolla, appeals from the summary judgment rendered by the trial court in favor of the defendants, Mark Walsh, Robert Walsh and Walsh’s Market, LLC. On appeal, the plaintiff claims that the court improperly granted the defendants’ motion for summary judgment as to all three counts of the plaintiffs complaint. Specifically, the plaintiff argues that the rendering of summary judgment was improper because (1) she was wrongfully discharged from her employment in violation of an important public policy, (2) the termination of her employment constituted extreme and outrageous conduct, and (3) the defendants’ request for restitution was the equivalent of embezzlement and extortion.

The following facts and procedural history are relevant to our resolution of the plaintiffs appeal. In 1997, Robert Walsh hired the plaintiff as a part-time accounts receivable clerk for Walsh’s Market, LLC. During her employment, the plaintiff was not eligible for medical insurance coverage at the employer’s expense. Instead, the plaintiff was permitted to participate in the employer sponsored group plan as long as she paid the full premium rate herself.

During the spring of 1996, Rick Champagne, the operating accountant for Walsh’s Market, LLC, informed the plaintiff that her monthly health insurance premiums would be increasing. Considering those premiums too costly, the plaintiff informed Champagne that she could no longer afford the increased rate and would seek employment elsewhere. Valuing the plaintiffs skills and experiences, and hoping to retain her as an employee, Champagne offered to pay the plaintiff for additional hours, which the plaintiff would not actually work, to defray the increased insurance premium rates. The plaintiff agreed. The plaintiff claimed that Robert Walsh was aware of that arrangement and that it constituted a contract between Robert Walsh and herself. Relying on Champagne’s representations, the plaintiff believed that she had not misappropriated funds from Walsh’s Market, LLC. That alleged agreement was never reduced to a writing.

In August, 1999, Robert Walsh gave his ownership interest in the company to his son, Mark Walsh. Mark Walsh soon discovered discrepancies in the plaintiffs time card. After consulting with an attorney, Robert Walsh and Mark Walsh confronted the plaintiff with respect to the discrepancies, and demanded that she sign a resignation and release. Later, on September 1, 1999, Robert Walsh and Mark Walsh demanded, under threat of criminal action, that the plaintiff repay them $7000 as restitution. The plaintiff refused to repay the requested funds.

The plaintiff commenced this civil action by complaint dated September 7, 1999, and subsequently filed a revised complaint dated December 6, 1999. In the revised three count complaint, the plaintiff alleged wrongful discharge, intentional infliction of emotional distress and a civil cause of action for attempt to commit extortion pursuant to General Statutes § 53a-119 (5) (D).

Following the plaintiffs filing of the revised complaint, she was arrested and charged with the crimes of larceny in the first degree and conspiracy to commit larceny in violation of General Statutes §§ 53a-122 (a) (2) and 53a-48. In State v. Carnemolla, Superior Court, judicial district of Waterbury, Docket No. CR 288318 (February 28, 2001), by a unanimous verdict of the jury, the plaintiff was found guilty of the crimes charged.

Shortly thereafter, in the civil action, the defendants filed a motion for a postponement of the trial and a motion for leave to file a motion for summary judgment on the basis of the plaintiffs criminal conviction. The court granted the defendants’ motion for a postponement and granted the motion for summary judgment as to all three counts of the plaintiff’s revised complaint. This appeal followed. Additional facts will be set forth as necessary.

The plaintiff claims that the court improperly granted the defendants’ motion for summary judgment as to her three count complaint. We disagree.

“Our standard of review of a trial court’s granting of summary judgment is well established. Pursuant to Practice Book § 17-49, summary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Such questions of law are subject to plenary appellate review.” (Emphasis added; internal quotation marks omitted.) Mytych v. May Dept. Stores Co., 260 Conn. 152, 158-59, 793 A.2d 1068 (2002). Although facts may be in dispute, the disputed facts must be material. That is, the facts must satisfy the elements of claims for wrongful discharge, intentional infliction of emotional distress and attempt to commit extortion. We do not make a factual determination, but instead conclude, as a matter of law, that due to the preclusive effect of collateral estoppel given to the facts at the criminal trial concerning her status as an at-will employee, the facts here were not in dispute. The court, therefore, properly granted the defendants’ motion for summary judgment.

We will review the rendering of summary judgment as to each count of the plaintiffs complaint in turn.

I

WRONGFUL DISCHARGE

The plaintiff argues that the court improperly granted the defendants’ motion for summary judgment as to count one of her complaint, which alleged wrongful discharge, because (1) she had a contract of employment and, as such, her employment could be terminated only for cause, and (2) in the alternative, if this court concludes that she did not have a contract of employment, but instead was an at-will employee, then the termination of her employment violated an important public policy. We are not persuaded by the plaintiffs argument and agree with the court’s judgment.

A claim for wrongful discharge requires the plaintiff to establish that the employer’s conduct surrounding the termination of the plaintiffs employment violated an important public policy. See Sheets v. Teddy’s Frosted Foods, Inc., 179 Conn. 471, 474-80, 427 A.2d 385 (1980). In the absence of an employment contract, an employer and employee will be deemed to have an at-will employment relationship. See Thibodeau v. Design Group One Architects, LLC, 64 Conn. App. 573, 577, 781 A.2d 363 (2001), rev’d on other grounds, 260 Conn. 691, 802 A.2d 731 (2002).

In support of their motion for summary judgment, the defendants argued that because the jury in the criminal proceeding had found that the plaintiff was an at-will employee, she was precluded from relitigating that issue. The plaintiff argues that because she appealed from the criminal conviction, she is not precluded from relitigating those issues. As an initial matter, we must determine whether it was proper for the court to grant the defendants’ motion for summary judgment during the pendency of the plaintiffs criminal appeal when the defendants predicated their claim of collateral estoppel on the merits of the underlying criminal judgment.

Our review of the application of collateral estoppel by the trial court is de novo. See Davenport v. Quinn, 53 Conn. App. 282, 298, 730 A.2d 1184 (1999). “Collateral estoppel, or issue preclusion, prohibits the relitigation of an issue when that issue was actually litigated and necessarily determined in a prior action. . . . For an issue to be subject to collateral estoppel, it must have been fully and fairly litigated in the first action. It also must have been actually decided and the decision must have been necessary to the judgment. . . . Furthermore, [t]o invoke collateral estoppel the issues sought to be litigated in the new proceeding must be identical to those considered in the prior proceeding. . . .

“An issue is actually litigated if it is properly raised in the pleadings or otherwise, submitted for determination, and in fact determined. ... An issue is necessarily determined if, in the absence of a determination of the issue, the judgment could not have been validly rendered. ... If an issue has been determined, but the judgment is not dependent upon the determination of the issue, the parties may relitigate the issue in a subsequent action. Findings on nonessential issues usually have the characteristics of dicta.” (Internal quotation marks omitted.) Rosenfield, v. Rogin, Nassau, Caplan, Lassman & Hirtle, LLC, 69 Conn. App. 151, 154-55, 795 A.2d 572 (2002); R & R Pool & Patio, Inc. v. Zoning Board of Appeals, 60 Conn. App. 82, 91-92, 758 A.2d 462 (2000), rev’d on other grounds, 257 Conn. 456, 778 A.2d 61 (2001).

“Historically, the doctrine of collateral estoppel, or issue preclusion, required mutuality of the parties. . . . Under the mutuality rule, [p]arties who were not actually adverse to one another in a prior proceeding could not assert collateral estoppel against one another in a subsequent action. . . .

“The mutuality requirement has, however, been widely abandoned as an ironclad rule. . . . [It] no longer operate [s] automatically to bar the use of collateral estoppel . . . but . . . circumstances may exist in which lack of mutuality would render application of collateral estoppel unfair.” (Citations omitted; internal quotation marks omitted.) Torres v. Waterbury, 249 Conn. 110, 135-36, 733 A.2d 817 (1999).

To proceed with the analysis, we must first state that mutuality, in this case, is not a bar to the court’s application of collateral estoppel. See Griffin v. Parker, 22 Conn. App. 610, 615, 623, 579 A.2d 532 (1990) (despite lack of mutuality between parties, prior conviction estopped party in later civil action from contesting facts necessarily established in criminal proceeding), rev’d on other grounds, 219 Conn. 363, 593 A.2d 124 (1991).

Our Supreme Court has stated that res judicata may apply despite the fact that the judgment on which it is based has been appealed. See Salem Park, Inc. v. Salem, 149 Conn. 141, 144, 176 A.2d 571 (1961); see also Capalbo v. Planning & Zoning Board of Appeals, 208 Conn. 480, 488, 547 A.2d 528 (Í988) (“ ‘trial court judgment has been held to be final, despite a pending appeal, insofar as the . . . applicability of the rules of res judicata’ ” [citations omitted]). “The fact that a prior judicial determination may be flawed ... is ordinarily insufficient, in and of itself, to overcome a claim that otherwise applicable principles of res judicata preclude it from being collaterally attacked. ... If the judgment [in the prior action] is erroneous, the unsuccessful party’s remedy is to have it set aside or reversed in the original proceedings. . . . CFM of Connecticut, Inc. v. Chowdhury, 239 Conn. 375, 395, 685 A.2d 1108 (1996) [overruled in part on other grounds, State v. Salmon, 250 Conn. 147, 154-55, 735 A.2d 333 (1999) (en banc)]; see also Deposit Bank v. Frankfort, 191 U.S. 499, 24 S. Ct. 154, 48 L. Ed. 276 (1903); Ellentuck v. Klein, 570 F.2d 414 (2d Cir. 1978); 1 Restatement (Second), [Judgments] § 17, comment (d), p. 150 [1982].” (Internal quotation marks omitted.) Tirozzi v. Shelby Ins. Co., 50 Conn. App. 680, 686, 719 A.2d 62, cert. denied, 247 Conn. 945, 723 A.2d 323 (1998).

“Claim preclusion (res judicata) and issue preclusion (collateral estoppel) have been described as related ideas on a continuum. [C]laim preclusion prevents a litigant from reasserting a claim that has already been decided on the merits. . . . [I]ssue preclusion, prevents a party from relitigating an issue that has been determined in a prior suit.” (Internal quotation marks omitted.) Dowling v. Finley Associates, Inc., 248 Conn. 364, 373, 727 A.2d 1245 (1999). It can be stated, therefore, that collateral estoppel is an aspect of res judicata. See R & R Pool & Patio, Inc. v. Zoning Board of Appeals, 257 Conn. 456, 466, 778 A.2d 61 (2001). Because collateral estoppel is a much narrower aspect of res judicata, and a pending appeal does not preclude the application of res judicata, we conclude that the plaintiffs pending appeal in the criminal action did not preclude the defensive application of collateral estoppel in the civil action.

On the basis of the determination in the criminal action, therefore, we conclude that the plaintiff was an at-will employee. The guilty verdict in the criminal action necessarily means that the jury found that there existed no contract between the parties to pay for hours that the plaintiff did not work. Moreover, the court, in its memorandum of decision in the civil action, stated that the plaintiff did not provide any evidence that she and the defendants had engaged in negotiations regarding the term of her employment, that she had a written contract requiring just cause for termination or that the defendants ever had told her that her employment could be terminated only for cause. The plaintiff herself stated: “I never even had to fill out an application with the Walshes. ... I was hired verbal. Everything that happened between the Walshes and I was verbal.”

Having determined that the plaintiff is collaterally estopped from relitigating the status of her employment, and having accepted the finding that she was an at-will employee, we conclude that the plaintiff was required to prove that her employment was terminated for an improper reason and that the impropriety derived from a violation of an important public policy. See Magnan v. Anaconda Industries, Inc., 193 Conn. 558, 572, 479 A.2d 781 (1984). To determine whether a public policy has been violated, courts examine whether the “discharge violated any explicit statutory or constitutional provision . . . [or] contravened any judicially conceived notion of public policy.” Morris v. Hartford Courant Co., 200 Conn. 676, 680, 513 A.2d 66 (1986). “In the absence of a public policy violation, there is no breach of the implied covenant of good faith and fair dealing.” Doherty v. Sullivan, 29 Conn. App. 736, 743, 618 A.2d 56 (1992).

The plaintiff argues that the termination of her employment violated an important public policy on two grounds. First, the plaintiff argues that the defendants’ actions constituted extortion in violation of § 53a-119 (5) (D). That is, she argues that the defendants’ request for restitution in the amount of $7000, coupled with the threat of criminal prosecution, amounted to a violation of Connecticut’s public policy against extortion. Because we conclude that § 53a-119 (5) (D) does not apply where victims of a crime seek restitution, we disagree with the plaintiff.

The defendants’ actions did not violate § 53a-119. “A person commits larceny when, with intent to deprive another of property or to appropriate the same to himself or a third person, he wrongfully takes, obtains or withholds such property from an owner. . . .’’(Emphasis added.) General Statutes § 53a-119. Pursuant to the statute, larceny includes extortion under § 53a-119 (5) (D). To satisfy the statutory elements of larceny, however, the victim must be an “owner” of the property that was taken wrongfully. The term “owner” is defined under § 53a-118 (a) (5) as “any person who has a right to possession superior to that of a taker, obtainer or withholder.” The jury in the criminal trial already had determined that the funds were misappropriated; that is, with respect to the defendants, the moneys were not “property of another,” and the defendants had a right to possession of the funds. Therefore, the defendants could not have violated § 53a-119 (5) (D) because the defendants, not the plaintiff, were the owners of the moneys and, thus, could not have wrongfully taken the moneys from her.

Next, the plaintiff argues that the “manner” in which her employment was terminated violated an important public policy. The plaintiff provides no evidence that the defendants’ action in discharging her violated any public policy. In support of her argument, the plaintiff merely states that her discharge violated public policy because she was confronted by the defendants with their attorney present and with prepared documents that purportedly were resignation and release forms, she had absolutely no way to present her side of the case, and she was not given the right to seek counsel or even permitted to speak with her family. Considering those facts in the light most favorable to the plaintiff, we conclude, as a matter of law, that the termination of her employment did not violate an important public policy. As previously stated, the plaintiff was found guilty of having committed larceny in the first degree and conspiracy to commit larceny. In light of the plaintiffs criminal conviction, we conclude that her employment was not terminated wrongfully and that summary judgment as to that count of her complaint was granted properly. See Morris v. Hartford Courant Co., supra, 200 Conn. 680 (even “false but negligently made accusation of criminal conduct as a basis for dismissal is not a ‘demonstrably improper reason for dismissal’ ”).

II

INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS

The plaintiff argues that the court improperly granted the defendants’ motion for summary judgment as to count two of her complaint, which alleged intentional infliction of emotional distress. We are not persuaded.

At the outset, we note the law relevant to an allegation of intentional infliction of emotional distress. “[F]or the plaintiff to prevail in a case for liability under . . . [intentional infliction of emotional distress], four elements must be established. It must be shown: (1) that the actor intended to inflict emotional distress or that he knew or should have known that emotional distress was the likely result of his conduct; (2) that the conduct was extreme and outrageous; (3) that the defendant’s conduct was the cause of the plaintiffs distress; and (4) that the emotional distress sustained by the plaintiff was severe. . . . Whether a defendant’s conduct is sufficient to satisfy the requirement that it be extreme and outrageous is initially a question for the court to determine. . . . Only where reasonable minds disagree does it become an issue for the jury. . . . Liability for intentional infliction of emotional distress requires conduct that exceeds all bounds usually tolerated by decent society.” (Internal quotation marks omitted.) Bombalicki v. Pastore, 71 Conn. App. 835, 839-40, 804 A.2d 856 (2002).

“Liability has been found only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community. Generally, the case is one in which the recitation of the facts to an average member of the community would arouse his resentment against the actor, and lead him to exclaim, ‘Outrageous!’ . . . Conduct on the part of the defendant that is merely insulting or displays bad manners or results in hurt feelings is insufficient to form the basis for an action based upon intentional infliction of emotional distress.” (Citation omitted; internal quotation marks omitted.) Appleton v. Board of Education, 254 Conn. 205, 210-11, 757 A.2d 1059 (2000).

Viewing the evidence in the light most favorable to the plaintiff, we conclude, as a matter of law, that the defendants’ conduct did not constitute extreme and outrageous conduct. In so doing, we first summarize the relevant facts and define the defendants’ conduct. In support of her claim, the plaintiff alleges the following facts to illustrate the alleged extreme and outrageous conduct of the defendants. The plaintiff was a devoted mother and employee, she was an honest person who had never been accused of a crime, she was confronted by the defendants, who accused her of embezzling company funds and requested that she sign documents that purportedly were resignation and release forms, a coworker resigned after observing the way in which the plaintiff was treated, and the plaintiff received medical treatment and counseling for emotional upset.

In Dollard v. Board of Education, 63 Conn. App. 550, 552-53, 777 A.2d 714 (2001), the plaintiff alleged that the defendants hypercritically scrutinized every aspect of her work and personal life, publicly admonished her and organized a plan to force her to resign. Despite those allegations, this court determined that the defendants’ actions did not constitute outrageous or extreme conduct. Id., 554; see also Appleton v. Board of Education, supra, 254 Conn. 211 (extreme or outrageous conduct not found where plaintiff subjected to condescending comments made by employer and psychiatric evaluations, escorted off employer’s premises by police and forced to resign).

Although the conduct alleged in this case may have been distressful or hurtful to the plaintiff, it was not outrageous or extreme. We therefore agree with the court that summary judgment as to the claim of intentional infliction of emotional distress was proper.

Ill

ATTEMPT TO COMMIT EXTORTION

The plaintiffs final argument is that the court improperly granted the defendants’ motion for summary judgment as to count three of her complaint, which alleged attempt to commit embezzlement and extortion. Specifically, the plaintiff argues that the defendants violated § 53a-119 (5) (D) by demanding that she pay restitution in the amount of $7000 or face the threat of criminal charges. For the reasons set forth in part I A, we agree with the decision of the court.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 53a-119 provides in relevant part: “A person commits larceny when, with intent to deprive another of property or to appropriate the same to himself or a third person, he wrongfully takes, obtains or withholds such property from an owner. . . .
      General Statutes § 53a-119 (5) provides in relevant part: “Extortion. A person obtains property by extortion when he compels or induces another person to deliver such property to himself or a third person by means of instilling in him a fear that, if the property is not so delivered, the actor or another will . . . (D) accuse some person of a crime or cause criminal charges to be instituted against him . . . .”

       General Statutes § 53a-122 (a) provides in relevant part: “A person is guilty of larceny in the first degree when he commits larceny, as defined in section 53a-119, and ... (2) the value of the property or service exceeds ten thousand dollars . . . .”

       General Statutes § 53a-48 (a) provides: “A person is guilty of conspiracy when, with intent that conduct constituting a crime be performed, he agrees with one or more persons to engage in or cause the performance of such conduct, and any one of them commits an overt act in pursuance of such conspiracy.”

       The plaintiff appealed from her criminal conviction. On April 2, 2002, this court affirmed the judgment in a per curiam opinion. See State v. Carnemolla, 68 Conn. App. 911, 796 A.2d 636 (2002).

       A cognizable daim for wrongful discharge requires the plaintiff to establish that the employer’s conduct surrounding the termination of the plaintiffs employment violated an important public policy. See Sheets v. Teddy’s Frosted Foods, Inc., 179 Conn. 471, 474-80, 427 A.2d 385 (1980).

       To establish a claim for the intentional infliction of emotional distress, the plaintiff must show “(1) that the actor intended to inflict emotional distress or that he knew or should have known that emotional distress was the likely result of his conduct; (2) that the conduct was extreme and outrageous; (3) that the defendant’s conduct was the cause of the plaintiffs distress; and (4) that the emotional distress sustained by the plaintiff was severe.” (Internal quotation marks omitted.) Parsons v. United Technologies Corp., 243 Conn. 66, 101, 700 A.2d 655 (1997).

       See footnote 1.

       Additionally, the jury in the criminal trial also found that (1) there was not a contract between the parties wherein the plaintiff would be compensated for hours not worked, (2) that there was a misappropriation of company funds and (3) that the plaintiff illegally deprived the defendants of funds.

       We note that the plaintiffs claim of an improper use of collateral estoppel is limited only to count one of the complaint concerning an allegation of wrongful discharge.

       There is no material issue of fact with respect to the plaintiffs status as an at-will employee while she was employed at Walsh’s Market, LLC. The facts alleged in support of the plaintiffs position, that she had a contract of employment, are not material because, on the basis of the plaintiffs conviction of larceny in the first degree and conspiracy to commit larceny, we conclude that she was an at-will employee.
      In count one of her revised complaint, the plaintiff claims that she was wrongfully discharged. Specifically, she alleges that her discharge was predicated on “false reasons” and “was improper because it violated the contract with the defendant, Robert Walsh, which had been fully performed by all the parties each year since 1996 by structuring the [p]laintiffs pay in order to be able to deduct therefrom the premium on her health insurance.” During the criminal trial, the jury considered the issue of the plaintiffs employment status. Dining that trial, the plaintiff acknowledged that she had never entered into any written employment contract with the defendants. The plaintiff acknowledged receiving $14,500 over a period of four years in exchange for hours that she had not worked. She did not deny entering into that payment scheme with Champagne. Neither the plaintiff nor Champagne denied that the $14,500 that the plaintiff received was as a result of that scheme. The plaintiff could have been convicted of the crimes only if the jury concluded that (1) no such contract existed, (2) her receipt and acceptance of such moneys constituted a wrongful taking of property rightfully belonging to the defendants and (3) she intended to wrongfully take the defendants’ property. See General Statutes § 53a-119. Consequently, the guilty verdict in the criminal action necessarily means that the jury found that the plaintiff was an at-will employee. Because the plaintiff is collaterally estopped from relitigating that issue, the facts alleged on appeal, even if in dispute, are not material.

       Because we conclude that the plaintiff has failed to provide evidence of a violation of an important public policy, her wrongful discharge claim fails and, therefore, her claim that the defendants breached the implied covenant of good faith and fair dealing also must fail. Consequently, we cannot reach the merits of the plaintiffs argument that material facts exist concerning the alleged violation of the implied covenant of good faith and fair dealing under Magnan v. Anaconda Industries, Inc., supra, 193 Conn. 566, stemming from the alleged meeting she had on August 24, 1999, with the defendants in which they allegedly sought repayment from her.