author: Norcott, J.

text:
    State of Connecticut v. Daryl Ober
    (8884)
    Norcott, Foti and Cretella, Js.
    Argued December 3, 1990
    decision released April 2, 1991

      KentDrager, assistant public defender, with whom, on the brief, was G. Douglas Nash, public defender, for the appellant (defendant).

      Carolyn K. Longstreth, assistant state’s attorney, with whom, on the brief, was John Redway, state’s attorney, for the appellee (state).
   Norcott, J.

The defendant appeals from the judgment of conviction, rendered after a jury trial, of possession of a narcotic substance with intent to sell by a person who is not drug-dependent in violation of General Statutes § 2 la-278 (b). He challenges (1) the sufficiency of the evidence for his conviction, (2) the admission of evidence allegedly obtained in violation of his right against unreasonable searches and seizures, (3) the reading of the information to the jury at the start of trial, (4) the admission of an alleged hearsay statement, (5) the trial court’s instructions on reasonable doubt, and (6) the trial court’s decision allowing the state’s attorney to retain a copy of the presentence investigation report.

The jury could have reasonably found the following facts. On June 18,1989, Officer William Clayton of the Middletown police department was patrolling the north end of Middletown, an area known for drug trafficking, in a marked police cruiser. At approximately 10 p.m., he received a radio message dispatching him to the area of 39 Liberty Street to check on a suspicious vehicle. Officer Kevin Singleton was also sent to Liberty Street as a back-up officer.

When Clayton turned onto Liberty Street, the only car he saw was a red Chevrolet Beretta. Two people were seated inside the car and a third was standing on the sidewalk near the passenger window, apparently leaning into the car. As Clayton pulled behind the Chevrolet, Singleton arrived and parked his cruiser in front of the car, boxing it in.

When the officers approached the car, the person who had been standing at the passenger door began to walk away rapidly. Clayton and Singleton called to him to return. When he did, Clayton recognized him as T, a fifteen year old whom Clayton had seen many times in suspicious circumstances. Singleton then interviewed T.

Clayton approached the driver, who was still in the car, and asked him for identification. He learned that the driver was Theodore Bennett of East Haddam. Clayton asked Bennett what he was doing on Liberty Street, and Bennett responded that he was going to the Cromwell Burger King. Dissatisfied with this answer, Clayton asked Bennett how to get to his stated destination, but Bennett did not know.

Clayton then went to the passenger side of the car where the defendant was seated. Because the defendant appeared reluctant to answer Clayton’s questions, Clayton asked him to get out of the car. As the defendant got out of the car, Clayton saw several $100 bills tucked loosely into the map pocket on the inside of the passenger door. He closed the door, escorted the defendant to the rear of the car and asked him for identification. When the defendant opened his wallet, Clayton saw a pistol permit. He asked the defendant if he was carrying a weapon, and the defendant answered that he was not. Clayton next asked the defendant if there were any guns in the car, and the defendant asserted that there were not.

The officers then searched the car for weapons. Singleton entered the car from the passenger side. As he bent to look under the passenger seat, he saw a plastic bag protruding from between the passenger seat and the front console. Singleton pulled the bag out and saw that it contained a white powdery substance that he believed to be narcotics. Singleton seized the bag and Clayton placed the defendant, Bennett and T under arrest.

Singleton continued to search the car and found a brown paper bag on the floor behind the passenger seat. In it he found a wooden pipe with a dirty filter, a tube partially filled with a yellowish liquid, a large plastic cup, a smaller container with a cover and a second plastic bag that held a white, powdery and rocky substance.

The defendant was then searched incident to his arrest. A $100 bill was found in his pants pocket and seized. The five $100 bills in the map pocket of the passenger door were also seized. The defendant, Bennett and T each denied ownership or knowledge of the $500.

At the Middletown police station, Officer David Christiana inventoried the contents of the defendant’s wallet. Inside the wallet he found several pieces of paper. On some slips were names with telephone numbers and on another were many of the same names with other figures. Christiana testified that these papers appeared to be records of drug transactions, listing quantities of drugs delivered and amounts of money owed. Christiana also described the practice of drug dealers of diluting cocaine with other substances and testified that several of the items found in the paper bag could have been used in that respect.

Subsequent testing revealed that neither the plastic bag taken from the front seat of the car nor the tube contained a narcotic substance. The other items found in the paper bag, however, including the white powdery and rocky substance, tested positive for cocaine.

I

The defendant first claims that his conviction was based on insufficient evidence. Specifically, he alleges that the state failed to present sufficient evidence to establish that he possessed the cocaine found behind the passenger seat of the car. We disagree.

It is axiomatic that, in reviewing a claim of insufficient evidence, this court must determine, viewing the evidence presented in the light most favorable to sustaining the verdict, whether “the trier could have reasonably concluded, upon the facts established and the inferences reasonably drawn therefrom, that the cumulative effect of the evidence established guilt beyond a reasonable doubt.” State v. Zayas, 195 Conn. 611, 620, 490 A.2d 68 (1985). Therefore, the question before us in this case is whether, from the facts presented at trial, it was reasonable and logical for the jury to determine that the defendant had constructive possession of the cocaine that was seized from behind the passenger seat of the car.

General Statutes § 21a-278 (b) requires proof that the defendant possessed a narcotic substance. To establish possession, the state must show beyond a reasonable doubt that “the defendant knew the character of the substance, knew of its presence and exercised dominion and control over it.” State v. Alfonso, 195 Conn. 624, 633, 490 A.2d 75 (1985); see also State v. Brunori, 22 Conn. App. 431, 435-36, 578 A.2d 139, cert. denied, 216 Conn. 814, 580 A.2d 61 (1990). “Where the defendant is not in exclusive possession of the premises where the narcotics are found, ‘it may not be inferred that [the defendant] knew of the presence of the narcotics and had control of them, unless there are other incriminating statements or circumstances tending to buttress such an inference.’ . . .” (Citations omitted.) State v. Alfonso, supra. Thus, “the presence of the defendant near the contraband without more is insufficient to support an inference of possession.” State v. Brunori, supra, 436.

In this case, there was sufficient other indicia of ownership to support the defendant’s conviction. The defendant was seen seated in a parked car conversing with an individual who was well known to the police in an area known for drug trafficking. Five $100 bills were loosely tucked into the map pocket of the passenger door next to the defendant, and another $100 bill was found in his pants pocket. In addition, the defendant was carrying what appeared to be drug records in his wallet. This evidence, combined with the fact that the drugs and drug paraphernalia were discovered on the floor of the car directly behind the defendant, shows a pattern of drug dealing and, as such, sufficiently supports the jury’s verdict.

There is no merit to the defendant’s claim that the papers found in his wallet cannot be used to show that he possessed the cocaine seized. In support of this claim, the defendant asserts that Christiana believed that those papers were drug records only because he assumed a fact properly left for the jury’s determination, i.e., that the defendant possessed the cocaine that was seized. At trial, however, Christiana testified that he believed that the papers were drug records not because he thought that the defendant was found in possession of the cocaine seized but because of the circumstances of the defendant’s arrest and the character of the other items that were seized. Thus, the use of the papers found in the defendant’s wallet is not, as he suggests, circular reasoning.

II

The defendant next claims that the trial court improperly admitted evidence obtained in violation of his state and federal constitutional rights against unreasonable searches and seizures. Specifically, he challenges the initial stop of the car and the search and seizure of the brown bag and its contents.

Because the defendant failed to preserve this claim at trial by filing a motion to suppress, he requests review under the bypass rule of State v. Evans, 165 Conn. 61, 70, 327 A.2d 576 (1973), as reformulated in State v. Golding, 213 Conn. 233, 567 A.2d 823 (1989). We decline to review this claim because the defendant has not satisfied the first prong of Golding, namely, that the record is adequate to review the alleged claim of error. State v. Golding, supra, 239-40.

A stop for investigative purposes is justified under Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968), when police have a reasonable and articulable suspicion that the person is engaged or about to be engaged in criminal activity. See State v. Aillon, 202 Conn. 385, 399, 521 A.2d 555 (1987). Whether there is a reasonable and articulable suspicion depends on the totality of the circumstances. Id. When police reasonably believe that the person is armed, the officers may “pat down” the person for weapons and, if it is a car stop, search the passenger compartment for weapons. Michigan v. Long, 463 U.S. 1032, 103 S. Ct. 3469, 77 L. Ed. 2d 1201 (1983); State v. D'Ambrosio, 14 Conn. App. 309, 541 A.2d 880 (1988), rev’d, 212 Conn. 50, 561 A.2d 422 (1989), cert. denied, 493 U.S. 1063, 110 S. Ct. 880, 107 L. Ed. 2d 963 (1990). In addition, if “ ‘the officer’s suspicions are further aroused, the stop may be prolonged and the scope enlarged as required by the circumstances.’ ” State v. Aillon, supra, 401.

The defendant in this case has failed to provide us with any record of the basis for the “suspicious vehicle” dispatch that led to the stop of the car in which he was a passenger. As a result, we cannot determine whether the stop and ensuing police investigation, which included the search and seizure of the brown bag and its contents, were valid under Terry v. Ohio, supra. Therefore, because the defendant cannot satisfy the first prong of Golding, we decline to review this claim.

Ill

The defendant next claims that the trial court should not have allowed the jury to be told at the start of trial that he was charged as a person who is not drug-dependent. Again, because this claim was not preserved at trial, the defendant seeks review under State v. Evans, supra, and State v. Golding, supra.

The following additional facts are necessary to our discussion of this issue. Before any evidence was presented, the court clerk read the information to the jury. The information charged the defendant with possession of cocaine with intent to sell at a time when he “was not a drug-dependent person.”

After the state closed its case, the defendant did not present any evidence. Accordingly, the trial court correctly concluded that the defendant had failed to meet his burden of introducing “some substantial evidence tending to prove his drug dependency.” State v. Luca, 19 Conn. App. 688, 671, 563 A.2d 752 (1989); see also State v. Januszewski, 182 Conn. 142, 169, 438 A.2d 679 (1980), cert. denied, 453 U.S. 922, 101 S. Ct. 3159, 69 L. Ed. 2d 1005 (1981). Because the defendant had failed to meet this burden, the state was not required to prove beyond a reasonable doubt that the defendant was not drug-dependent, and was instead entitled to rely on a presumption that the defendant was not drug-dependent. State v. Luca, supra. As the issue of drug dependence was no longer before the jury, the trial court properly allowed the state to amend the information, deleting the reference to drug dependency, and did not instruct the jury on drug dependency. State v. Vaughn, 20 Conn. App. 386, 390, 567 A.2d 392 (1989).

During its deliberations, the jury sent out a note to the trial court asking: “At the opening of the trial the court stated that Mr. Ober was being tried as a ‘nonuser’ of dependency producing drugs (or words to that effect). (1) May we hear that portion again? (2) Does that statement indicate that Mr. Ober is not a cocaine user?”

In response to their first request, the trial court instructed the jurors to disregard the information that had been read to them at the beginning of the trial and to focus instead on the amended information. The court reminded the jury that the amended information was not to be used as evidence of the defendant’s guilt. The trial court then told the jurors that, in light of its response to their first inquiry, their second question was moot. Finally, the court reminded the jurors that their duty was to find the facts from the evidence presented.

The defendant claims that the reading of the information at the start of trial confused the jury, and that this confusion was not cured by the trial court’s supplemental instructions. The defendant has failed to demonstrate, however, that this claim is “of constitutional magnitude alleging the violation of a fundamental right.” State v. Golding, supra, 239. He challenges only the reading of the information at the start of the trial, a procedure routinely adopted and designed to aid jurors in their assimilation of the evidence presented to them. In addition, the trial court, in response to the jurors’ inquiry, properly drew their attention to the amended information, making an answer to their second request unnecessary. Therefore, we decline to review this claim.

IV

The defendant next challenges the trial court’s admission into evidence of Bennett’s statement to police that he was going to the Cromwell Burger King. The defendant also claims that the state’s attorney committed prosecutorial misconduct when he argued to the jury that Bennett’s statement showed the defendant’s consciousness of guilt.

At trial, Clayton testified over the defendant’s objection that Bennett, in response to the officer’s question, told Clayton that he was going to the Cromwell Burger King. Clayton also testified that Bennett’s answer “didn’t sit very well” with him and caused him to continue his investigation. In conjunction with overruling the defendant’s objection that the testimony was hearsay, the trial court later instructed the jury that Bennett’s statement was to be used not for its truth but only to show its effect on Clayton, the hearer, and to explain his subsequent actions.

It is axiomatic that an out-of-court statement that is not offered to prove the truth of the matter asserted therein is not hearsay. State v. Alvarez, 216 Conn. 301, 310, 579 A.2d 515 (1990); State v. Hull, 210 Conn. 481, 498-99, 556 A.2d 154 (1989). A statement that is offered not for its truth but to show its effect on the hearer, therefore, is not hearsay. State v. Alvarez, supra; State v. Hull, supra, 499-500; State v. Silveira, 198 Conn. 454, 473, 503 A.2d 599 (1986). Because Bennett’s statement was admitted into evidence for this limited purpose, the testimony was not hearsay.

The defendant seeks review of his unpreserved claim of prosecutorial misconduct under the bypass rule of Evans and Golding. This court will review such claims only when the claimed misconduct is blatantly egregious and shows a pattern of conduct repeated throughout the trial. State v. Somerville, 214 Conn. 378, 393, 572 A.2d 944 (1990); State v. Rogers, 207 Conn. 646, 654, 542 A.2d 1136 (1988); State v. Williams, 204 Conn. 523, 539, 529 A.2d 653 (1987).

In this case, the defendant challenges the state’s attribution of Bennett’s statement to the defendant to show his consciousness of guilt. The prosecuting attorney’s comment, made during closing argument, was fleeting at best and is neither blatantly egregious nor part of a pattern of misconduct. Accordingly, we decline to review this claim.

V

The defendant next challenges the trial court’s instructions on reasonable doubt. Specifically, he claims that the court improperly instructed the jury that “if all of the evidence has been impartially and thoroughly reviewed by you and it produces in your mind a settled and abided belief that you would be willing to act upon in matters of the highest importance relative to your own affairs, then in that event you would be free from a reasonable doubt and should declare the defendant to be guilty.”

Once again, the defendant seeks review of this unpreserved claim under State v. Evans, supra, and State v. Golding, supra. We find that the defendant has not satisfied the third prong of Golding, namely, that the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial. State v. Golding, supra, 240.

In reviewing a constitutionally based challenge to the court’s instructions to the jury, we must examine the charge as a whole to determine whether it is reasonably possible that the jury was misled by the challenged instruction. State v. Snook, 210 Conn. 244, 275-76, 555 A.2d 390, cert. denied, 492 U.S. 924, 109 S. Ct. 3258, 106 L. Ed. 2d 603 (1989); State v. Bailey, 209 Conn. 322, 338, 551 A.2d 1206 (1988). The defendant in this case objects only to one sentence in the trial court’s instructions on reasonable doubt. “Even if the phrase were incorrect, one single misstatement in the context of an otherwise appropriate charge can be overlooked.” State v. Kelly, 23 Conn. App. 160, 166, 580 A.2d 520 (1990).

When taken as a whole, the trial court’s instructions on reasonable doubt gave the jurors a clear understanding of the state’s burden of proof. Thus, it is not reasonably possible that the jury was misled by the court’s charge.

VI

The defendant’s final claim is that the trial court improperly allowed the state’s attorney to retain a copy of the presentence investigation report (PSI) in violation of Practice Book §§ 916 and 917. Although the defendant failed to preserve this claim at trial, we review his claim under the plain error doctrine. Practice Book § 4185.

Our decision in this case is controlled by this court’s recent ruling in State v. Cofield, 22 Conn. App. 10, 576 A.2d 156, cert. granted, 215 Conn. 813, 576 A.2d 542 (1990). At the sentencing hearing in Cofield, the state argued that it should be allowed to keep a copy of the defendant’s PSI because the majority of people sentenced in Connecticut return to the court on other charges and because of the possibility of the defendant’s future parole violations or sentence reviews. This court rejected the state’s argument and held that “in order to invoke the exception to nonaccess found in § 916, a requesting party must make a showing of need particular to the case before it.” Id., 24.

In the present case, the state made no showing at all, particular to the case or not, of its need to keep a copy of the defendant’s PSI. In fact, the trial court itself initiated the request to retain the PSI. The state argues on appeal, however, that such a showing was not required because the trial court was authorized to allow the retention of defendant’s PSI by Practice Book § 917 (7), which mandates that such reports be available at all times to “[a]ny court of proper jurisdiction where it is relevant to any proceeding before such court” and upon court order to “counsel for the parties for the purpose of such proceeding . . . .” Contrary to the state’s argument, however, nothing in § 917 authorizes the court to allow the state to keep a copy of the defendant’s PSI on the court’s own motion. Therefore, because the request to retain a copy of the defendant’s PSI was initiated in this case not by the state but by the court, we find that the trial court improperly excused the state from making a showing of need as required by State v. Cofield, supra.

The judgment is reversed in part and the case is remanded with direction to order the prosecuting attorney to return all copies of the defendant’s PSI. The judgment is affirmed in all other respects.

In this opinion the other judges concurred.

       At the close of the state’s case, the defendant filed a motion for judgment of acquittal based on the insufficiency of the evidence. Although there is no ruling of record on the motion, the trial court’s acceptance of the verdict and sentencing of the defendant may be seen as an implicit denial of the motion.

       More specifically, the court addressed the jury’s questions as follows:
      “I’m going to answer that in the following fashion, ladies and gentlemen; I’m going to instruct you at this time to disregard the information that was read to you at the commencement of the trial. The information which you have with you, together with the exhibits, is the instrument—is the information that you will consider in your deliberations on this case.
      “As I pointed out to you in my instructions, the information, however, is not evidence. The information merely is the formal method of presenting a person for trial on a criminal case.

        “In view of that response by the court, the court feels that, at this point, your second question, ‘Does that statement indicate that Mr. Ober is not a cocaine user?’ is a moot point. On this question, the court can only reiterate that you as the ladies and gentlemen of the jury are to find the facts from all the evidence that’s been presented to you, both physical and testimonial evidence, and make your final determination as to where the truth lies. All right?”

       Specifically, the defendant challenges the state’s description of the defendant as “this unemployed person who is going to Burger King, purportedly, at ten o’clock at night in Cromwell, and just diverts off onto Liberty Street in Middletown, coming from the other side of the river.”

       The court charged the jury on reasonable doubt in the following manner: “The state, in other words, can sustain the burden resting upon it only if the evidence before you establishes the existence of every element constituting the crime charged beyond a reasonable doubt. A reasonable doubt means a doubt founded upon reason and common sense. As the words imply, it is a doubt held by a reasonable person after all of the evidence in the case is carefully analyzed, compared, and weighed. A reasonable doubt may arise not only from the evidence produced, but also from a lack of evidence. Since the burden is upon the state to prove the defendant guilty beyond a reasonable doubt of every essential element of the crime charged, a defendant has the right to rely upon the failure of the prosecution to establish such proof. Reasonable doubt is the kind of doubt upon which reasonable persons like yourselves, in the more serious and important affairs in your own life, would hesitate to act. On the other hand, if all of the evidence has been impartially and thoroughly reviewed by you and it produces in your mind a settled and abided belief that you would be willing to act upon, in matters of the highest importance relative to your own affairs, then in that event you would be free from a reasonable doubt and should declare the defendant to be guilty.
      “If, however, on all of the evidence, you have a reasonable doubt as to the guilt of the defendant, you must find him not guilty. However, absolute certainty in the affairs of life is almost never attainable, and the law does not require absolute certainty on the part of the jury before you return a verdict of guilty.
      “The state does not have to prove guilt beyond all doubt or to a mathematical or to an absolute moral certainty. What the law requires, however, is that, after hearing all of the evidence, if there is something in that evidence, or lack of evidence, which leaves in the minds of the jury, as reasonable men and women, a reasonable doubt about the guilt of the accused, then the accused must be given the benefit of that doubt and acquitted. If there is no reasonable doubt, then the defendant must be found guilty. Proof beyond a reasonable doubt is proof which precludes every reasonable hypothesis except guilt. It’s consistent with guilt and it’s inconsistent with any other reasonable conclusion. If you can, in reason, reconcile all the facts proved, with any reasonable theory consistent with the innocence of the accused, then you cannot find him guilty.”

       Practice Book § 916 provides: “The presentence investigation report and copies thereof made available under Sec. 915 shall be returned to the probation officer or delivered to the clerk immediately following the imposition of the sentence. No person shall, without the permission of the court, make or cause to be made any copy of any presentence investigation report except as authorized by Secs. 915 and 917.”
      Practice Book § 917 provides: “The presentence investigation report shall not be a public record and shall not be accessible to the public. It shall be available initially to the parties designated in Sec. 915 for use in the sentencing hearing and in any subsequent proceedings wherein the same conviction may be involved, and it shall be available at all times to the following:
      “(1) The department of adult probation;
      “(2) The correctional or mental health institution to which the defendant is committed or may be committed;
      “(3) The board of parole;
      “(4) The board of pardons;
      “(5) The sentence review division of the superior court;
      “(6) The judicial review council;
      “(7) Any court of proper jurisdiction where it is relevant to any proceeding before such court. Such court may also order that the report be made available to counsel for the parties for the purpose of such proceeding;
      “(8) Counsel for the defendant and the prosecuting authority during negotiations relating to other offenses pending against the defendant or subsequently charged against him; and
      “(9) Counsel for the defendant in a sentence review hearing or habeas corpus proceeding upon counsel’s request to the department of adult probation; and
      “(10) Any other person or agency specified by statute.”

       The colloquy between the trial court and the prosecuting attorney was as follows:
      “The Court: Does the state request to keep a copy of the presentence investigation?
      “Mr. Redway: I do, Your Honor. . . .
      “Mr. Redway: . . . And yes, Your Honor, I would like the permission of the court, to retain a copy of the presentence investigation report.
      “The Court: Okay, I’ll deal with the latter item first. The court grants you permission to keep a copy of the presentence investigation.”


source: Caselaw Access Project

author: Daly, J.

license: Public Domain

text:
    Leon Chiaia v. Pepperidge Farm, Inc. Ronald Lee v. Pepperidge Farm, Inc.
    (9085)
    (9271)
    Daly, Norcott and Heiman, Js.
    Argued January 14
    decision released April 2, 1991

      Tracy A. Saxe, for the appellants (plaintiffs).

      Christopher M. Hodgson, with whom, on the brief, were George N. Nichols and Robert B. Mitchell, for the appellee (defendant).

      Bonnie Stewart, Nancy A. Daly and Stephen S. Ostrach filed a brief for the Connecticut Business and Industry Association as amicus curiae.

      Thomas W. Ude, Jr., and William F. Gallagher tiled a brief for the Connecticut Trial Lawyers Association as amicus curiae.
   Daly, J.

The issue presented in this appeal is whether the defendant’s absence control policy, as applied to the plaintiffs who had sustained injuries compensable under the Workers’ Compensation Act, is a per se violation of General Statutes § 31-290a (a) when that statute forbids any discrimination or retaliatory discharge for filing a claim or exercising any rights under the act.

Both plaintiffs were employed by the defendant and each sustained work related injuries, filed workers’ compensation claims and were terminated pursuant to company policy solely because they did not return to work within twelve months of their injuries. The same issue has been presented by both plaintiffs and their appeals have been consolidated.

The workers’ compensation commissioner found that the defendant’s absence control policy made no distinction between absences caused by work related injuries or illnesses and those absences that were not work related. The commissioner further found that the defendant’s absence control policy was neutrally applied to any of the defendant’s approximately 500 employees who were absent from work for more than one year. Finally, the commissioner concluded that the plaintiffs had failed to sustain their burden of proving that they had been discharged because of discrimination or any retaliatory motive. The commissioner concluded that the sole reason for the plaintiffs’ discharge was their absence from employment for more than twelve months in contravention of the defendant’s absence control policy. Therefore, the commissioner held that their claims under General Statutes § 31-290a must fail. This appeal followed.

The workers’ compensation commissioner has the power and the duty to determine the facts, and we will not review facts reasonably found by the commissioner. The commissioner’s conclusions that are drawn from those facts must stand unless they result from an incorrect application of the law to the subordinate facts or from an inference illegally or unreasonably drawn from them. Besade v. Interstate Security Services, 212 Conn. 441, 448, 562 A.2d 1086 (1989); Aurora v. Miami Plumbing & Heating, Inc., 6 Conn. App. 45, 47, 502 A.2d 952 (1986). On the basis of the plaintiff Lee’s stipulated facts, the commissioner’s findings, and the record before us, we conclude that there is no basis to disturb the commissioner’s conclusion that the plaintiffs were discharged solely by the neutral application of the defendant’s absence control policy. The plaintiffs do not contest this fact but argue that the policy is discriminatory per se when applied to workers’ compensation claimants in contravention of General Statutes § 31-290a (a). We disagree and affirm the commissioner’s order.

General Statutes § 31-290a provides in relevant part: “(a) No employer who is subject to the provisions of this chapter shall discharge, or cause to be discharged, or in any manner discriminate against any employee because the employee has filed a claim for workers’ compensation benefits or otherwise exercised his rights afforded to him pursuant to the provisions of this chapter.” (Emphasis added.) The plaintiffs assert that they were discharged by the defendant while “exercising] the rights afforded to [them] pursuant to the provisions of this [workers’ compensation] chapter,” contrary to General Statutes § 31-290a (a). The plaintiffs argue that workers’ compensation claimants may not be discharged if they are absent for a period longer than that allowed by their employer’s absence control policy because (1) the Workers’ Compensation Act should be construed to provide such protection, (2) General Statutes § 31-313 provides an alternative time period for an absent workers’ compensation claimant, conceivably longer than the defendant’s twelve month absence control policy, and (3) the public policy underlying the Workers’ Compensation Act disfavors the discharge of claimants who are absent while recovering from work related injuries. All of these arguments are built on the premise that the employer’s discharge need not be for an improper motive. The plaintiffs assert that an employer could discharge a workers’ compensation claimant for a proper motive, such as a neutrally applied absence control policy, and still violate General Statutes § 31-290a. This argument is without merit.

General Statutes § 31-290a was designed to protect plaintiffs who file for workers’ compensation benefits and “is in essence a statutorily created tort deriv[ed] from the action for wrongful discharge set forth in Sheets [v. Teddy’s Frosted Foods, Inc., 179 Conn. 471, 427 A.2d 385 (1980)].” Ford v. Blue Cross & Blue Shield of Connecticut, Inc., 216 Conn. 40, 52, 578 A.2d 1054 (1990); cf. Baldracchi v. Pratt & Whitney Aircraft Division, 814 F.2d 102, 103 (2d Cir. 1987), cert. denied, 486 U.S. 1054, 108 S. Ct. 2819, 100 L. Ed. 2d 920 (1988). In order to establish a prima facie case under General Statutes § 31-290a, the plaintiffs bear the initial burden of demonstrating discrimination by a preponderance of the evidence. Ford v. Blue Cross & Blue Shield of Connecticut, Inc., supra, 53. The plaintiffs must present some evidence from which a trier of fact could infer that the employer discharged or discriminated against the employees because they had exercised their rights under the Workers’ Compensation Act. Id., 53-54. Without some proof of an improper motive, the plaintiffs’ case must fail. See id. Therefore, the plaintiffs’ argument that General Statutes § 31-290a supports a cause of action absent some evidence of the defendant’s improper motive is without legal basis.

General Statutes § 31-290a, like its counterpart in other workers’ compensation schemes, does not require an employer to retain an employee unable to perform his or her work simply because that inability resulted from a work related injury or illness. See, e.g., Hines v. United Parcel Service, Inc., 736 F. Sup. 675, 678 (D.S.C. 1990); Fergerstrom v. Datapoint Corporation, 680 F. Sup. 1456 (D. Hawaii 1988); Smith v. Electrical System Division of Bristol Corporation, 557 N.E.2d 711 (Ind. App. 1990); Rowland v. Val Agri, Inc., 13 Kan. App. 2d 149, 766 P.2d 819 (1988); Mitchell v. St. Louis County, 575 S.W.2d 813 (Mo. App. 1978); Galante v. Sandoz, Inc., 192 N.J. Super. 403, 410, 470 A.2d 45 (1983), aff’d, 196 N.J. Super. 568, 483 A.2d 829 (1984); Duncan v. New York State Developmental Center, 63 N.Y.2d 128, 470 N.E.2d 820 (1984). Businesses would suffer significant losses if they were prevented from filling employment vacancies after the lapse of a reasonable period of time. See Duncan v. New York State Developmental Center, supra, 135.

The great majority of jurisdictions have recognized, either by statute or judicial decision, the tort of retaliatory discharge for the filing of a workers’ compensation claim. See annot., 32 A.L.R. 4th 1221. New courts, however, have expanded the definition of discriminatory discharge to include a discharge occasioned by the neutral application of an absence control policy to an employee who was injured and collected workers’ compensation benefits. See Galante v. Sandoz, Inc., supra; see, e.g., Smith v. Electrical System Division of Bristol Corporation, supra; Rowland v. Val Agri, Inc., supra; Clifford v. Cactus Drilling Corporation, 419 Mich. 356, 353 N.W.2d 469 (1984); Davis v. Richmond Special Road District, 649 S.W.2d 252 (Mo. App. 1983); Mitchell v. St. Louis County, supra; Duncan v. New York State Developmental Center, supra; Johnson v. Saint Francis Hospital, Inc., 759 S.W.2d 925, 928 (Tenn. App. 1988); but see Lindsay v. Great Northern Paper Co., 532 A.2d 151 (Me. 1987) (the Maine Supreme Court is the only court to have held that a neutrally applied absence control policy may be found to discriminate against a plaintiff discharged due to employment absences caused by work related injuries); but cf. Judson Steel Corporation v. Workers’ Compensation Appeals Board, 22 Cal. 3d 658, 586 P.2d 564, 150 Cal. Rptr. 250 (1978). The employer’s termination of a plaintiff’s seniority rights in Judson Steel was within the scope of discrimination prohibited by California’s workers’ compensation statute, similar to General Statutes § 31-290a. The court cautioned, however, that its “holding in no way mandates that an employer retain all employees who sustain injuries on the job.” Judson Steel Corporation v. Workers’ Compensation Appeals Board, supra, 667; Caldwell v. Columbus Development Center, 47 Ohio App. 3d 100, 547 N.E.2d 417 (1989) (a workers’ compensation claimant discharged because she failed to file a request for leave from her employer was a pretext for a retaliatory discharge for filing her claim); see generally annot., 32 A.L.R.4th 1221.

The plaintiffs’ argument that General Statutes § 31-313 provides an alternative time period for an absent workers’ compensation claimant that may be of longer duration than an employer’s twelve month absence control policy is unavailing. General Statutes § 31-313 does limit an employer’s discretion to terminate the employment of a workers’ compensation claimant. This statute imposes a limited duty on the employer to provide suitable work for an injured employee if it is available. If suitable work is not available or the employee is unable to work due to infirmity, there is no hindrance to an employer, apart from whatever contract of employment or company policy exists, to discharge a workers’ compensation claimant because of the neutral operation of an absence control policy.

In order to meet the initial burden of proof in a claim arising under General Statutes § 31-290a, the plaintiffs would have had to present some evidence of the defendant’s discriminatory intent. Because the plaintiffs were discharged solely as a result of the neutral application of the defendant’s reasonable absence control policy, we agree with the commissioner that there was not any contravention of General Statutes § 31-290a.

The order of the commissioner dismissing the plaintiffs’ complaints is affirmed.

In this opinion the other judges concurred.

       The defendant’s absence control policy in effect since October 1,1983, in relevant part states: “The length of the medical leave of absence may not exceed one year from the date of commencement of absence due to illness. . . . When an employee is absent due to illness, that employee’s job will be held open for (12) twelve months. After (12) twelve months that employee’s job will be posted for bidding.”

       General Statutes § 31-275 et seq.

       General Statutes § 31-290a provides in pertinent part: “(a) No employer who is subject to the provisions of this chapter shall discharge, or cause to be discharged, or in any manner discriminate against any employee because the employee has filed a claim for workers’ compensation benefits or otherwise exercised the rights afforded to him pursuant to the provisions of this chapter.”

       The commissioner’s memorandum of decision and order were issued prior to the release of Ford v. Blue Cross & Blue Shield of Connecticut, Inc., 216 Conn. 40, 578 A.2d 1054 (1990).

       General Statutes § 31-290a (b) provides two alternative procedures an employee may utilize to bring a complaint of wrongful dischage or discrimination. The employee may either bring an action in the Superior Court or file a complaint with the workers’ compensation commission with the right to a direct appeal to this court. The plaintiffs both chose the second option and their appeals are before this court directly from the commissioner.

       General Statutes § 31-313 provides in pertinent part: “(a) (1) Where an employee has suffered a compensable injury which disables him from performing his customary or most recent work, his employer at the time of such injury shall transfer him to full-time work suitable to his physical condition where such work is available, during the time that the employee is subjected to medical treatment or rehabilitation or both and until such treatment is discontinued on the advice of the physician conducting the same or of the therapist in charge of the rehabilitation program or until the employee has reached the maximum level of rehabilitation for such worker in the judgment of the commissioner under all of the circumstances, whichever period is the longest. (2) The commissioner shall conduct a hearing upon the request of an employee who claims his employer has not transferred him to such available suitable work. Whenever the commissioner finds that the employee is so disabled, and that the employer has failed to transfer the employee to such available suitable work, he shall order the employer to transfer the employee to such work.” (Emphasis added.)

       The commissioner here found that the defendant did not have light duty work, even though it was provided for the plaintiff Chiaia for a brief time until he reinjured himself and was unable to continue working. The plaintiff Lee was not able to resume any work when discharged.


author: Cretella, J.

text:
    Richard DiBonaventura, Sr., et al. v. Zoning Board of Appeals of the Town of Thompson
    (9131)
    Daly, Landau and Cretella, Js.
    Argued December 6, 1990
    decision released April 2, 1991

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

      John Boland, for the appellee (defendant).
   Cretella, J.

The plaintiffs, Richard DiBonaventura, Sr., and his son, Richard DiBonaventura, Jr., appeal from the judgment of the trial court dismissing their appeal from a decision of the defendant zoning board of appeals of the town of Thompson. The plaintiffs claim that the trial court improperly found that neither plaintiff was aggrieved and therefore neither had standing to prosecute the appeal. We reverse the trial court’s dismissal of the appeal.

General Statutes § 14-54 requires that “[a]ny person who desires to obtain a license for dealing in or repairing motor vehicles shall first obtain and present to the commissioner [of motor vehicles] a certificate of approval of the location for which such license is desired from . . . the [zoning] board of appeals.”

An application for a certificate of approval of location of a used car dealer and general repairer pursuant to General Statutes §§ 14-54 and 14-55 was filed with the defendant. On the form used, the applicant’s name is listed as Richard DiBonaventura, Jr., and the property owners’ names are listed as Richard F. and Patricia A. DiBonaventura. Richard F. and Patricia A. DiBonaventura signed the form indicating their consent to the proposed use of their property; Richard DiBonaventura, Jr., signed the form as the applicant.

The administrative record reveals that the board held a public hearing on the application, as required by General Statutes § 14-55, on November 14, 1988, continued to December 12, 1988. At the November 14, 1988 hearing, both plaintiffs appeared and were introduced by their counsel to the board as follows: “Those are the applicants, and as I’ll mention later, Richard, Jr., is the proposed principal operator of the used car facility.” Statements made at the hearing revealed that for more than thirty years prior to the DiBonaventura’s purchase of the property, that property had been the site of a combined motor vehicle junkyard, used car dealer facility and repair business. Further statements indicated that the DiBonaventuras intended to continue that use with the father providing the land for the used car dealership and car repair business and the son operating and managing the business.

On December 12, 1988, after a consideration on the merits, the board voted to deny the application on the ground that the basic character of the neighborhood had changed since the original license to operate the business had been issued. The plaintiffs appealed that decision to the trial court pursuant to General Statutes § 14-57.

Paragraph four of plaintiffs’ appeal, which the board admitted in its answer, states that “[o]n or about November 1, 1988, plaintiffs, Richard DiBonaventura, Sr., and Richard DiBonaventura, Jr., submitted to the Thompson Zoning Board of Appeals an application pursuant to §§ 14-54 and 14-55 of the General Statutes for approval of a used car dealer and general repairer facility.” To paragraph nine of the appeal, which alleges that the plaintiffs are aggrieved “because they are the owners of the land for which a certificate of approval of location has been denied, and because such action denies them the right to continue the use of the existing business and severely depreciates the fair market value of their land,” the board answered with a general denial.

In its memorandum of decision, the trial court accepted the parties’ stipulation that Richard DiBonaventura, Sr., is one of the owners of the property. The court also found that the application was submitted by Richard DiBonaventura, Jr.

The court concluded that while both plaintiffs had alleged aggrievement, neither plaintiff had proved that he was aggrieved. Relying on its finding that Richard DiBonaventura, Sr., was not an applicant for the certificate of approval, the court found that notwithstanding any specific, personal and legal interest he might have in the subject matter of the decision as one of the owners of the subject property, Richard, Sr., had failed to establish that his interest had been injuriously affected by the decision. Although finding Richard DiBonaventura, Jr., the sole applicant for the certificate of approval, the trial court found that he had failed to prove a legally enforceable interest in the subject matter of the decision.

“ ‘Pleading and proof of aggrievement [are] prerequisite^] to a trial court’s jurisdiction over the subject matter of an appeal.’ ” Lewin v. United States Surgical Corporation, 21 Conn. App. 629, 631, 575 A.2d 262, 264 (1990). The question of aggrievement is essentially one of standing. Beckish v. Manafort, 175 Conn. 415, 419, 399 A.2d 1274 (1978). Without pleading and proving aggrievement, the plaintiffs lack standing to challenge the board’s decision. See id.

“ ‘Standing is not a technical rule intended to keep aggrieved parties out of court; nor is it a test of substantive rights. Rather it is a practical concept designed to ensure that courts and parties are not vexed by suits brought to vindicate nonjusticiable interests and that judicial decisions which may affect the rights of others are forged in hot controversy, with each view fairly and vigorously represented.’ ” Board of Pardons v. Freedom of Information Commission, 210 Conn. 646, 648-49, 556 A.2d 1020 (1989).

“The fundamental test for determining aggrievement encompasses a well-settled twofold determination: first, ‘the party claiming aggrievement must successfully demonstrate a specific, personal and legal interest in the subject matter of the decision, as distinguished from a general interest, such as is the concern of all members of the community as a whole. Second, the party claiming aggrievement must successfully establish that this specific personal and legal interest has been specially and injuriously affected by the decision.’ ” Mystic Marinelife Aquarium, Inc. v. Gill, 175 Conn. 483, 493, 400 A.2d 726 (1978), quoting Nader v. Altermatt, 166 Conn. 43, 51, 347 A.2d 89 (1974). “ ‘ “The scope of review of a trial court’s factual decision on appeal is limited to a determination of whether it is clearly erroneous in view of the evidence and pleadings.” ’ Feigenbaumv. Waterbury, 20 Conn. App. 148, 151, 565 A.2d 5 (1989), quoting Belle Camperland, Inc. v. Commission, 5 Conn. App. 678, 679, 501 A.2d 1226 (1985).” Downey v. Retirement Board, 22 Conn. App. 172, 177, 576 A.2d 582, cert. denied, 216 Conn. 812, 580 A.2d 65 (1990). “ ‘Conclusions are not erroneous unless they violate law, logic or reason or are inconsistent with the subordinate facts.’ ” Mystic Marinelife Aquarium, Inc. v. Gill, supra, 496.

The plaintiffs rely on Bossert Corporation v. Norwalk, 157 Conn. 279, 253 A.2d 39 (1968), for their claim that the trial court incorrectly found that Richard DiBonaventura, Sr., as the owner of the subject property, was not aggrieved by the board’s decision merely because he had not signed the application. The trial court attempted to distinguish Bossert by noting that the plaintiff in Bossert was both the owner of the property involved and the applicant for approval of a proposed residential development in the city of Norwalk.

While we do not decide whether the trial court has correctly distinguished Bossert by noting that the plaintiff in Bossert was both the owner of the subject property and the applicant before the defendant commission, assuming that it was correct, we conclude that the trial court incorrectly found that Richard DiBonaventura, Sr., was not an applicant.

The procedure for obtaining a license for dealing in or repairing motor vehicles, as spelled out in General Statutes § 14-56, is a two step process. Any person who seeks a license must first secure a certificate of approval of the proposed location from the appropriate authority and then submit the certificate to the motor vehicle commissioner. Since only the person seeking a license must submit the certificate of approval to the commissioner, it is logical that that individual sign as the sole applicant when seeking site approval by the appropriate authority. It, therefore, does not necessarily follow that a person who does not sign the application for a certificate of approval could not have a specific, personal and legal interest that would be injuriously affected by a denial of such application.

As was previously mentioned, the administrative record reveals that the plaintiffs together intended to continue the prior use of the site and were introduced to the board as the applicants. Although Richard DiBonaventura, Sr., was not listed as an applicant on the form, he had, as a property owner wanting to continue a long-standing prior use of that property, the requisite specific, personal and legal interest in the proposed facility to be aggrieved by the board’s denial. Moreover, the board admitted in its pleading that the plaintiffs were the applicants. We, therefore, disagree with the trial court’s finding that Richard DiBonaventura, Sr., failed to prove aggrievement.

In concluding that Richard DiBonaventura, Jr., failed to prove aggrievement, the trial court relied on Goldfeld v. Planning & Zoning Commission, 3 Conn. App. 172, 486 A.2d 646 (1985), in which this court failed to find a plaintiff applicant aggrieved by the denial of a zone change. In Goldfeld, the plaintiff had no interest by way of purchase contract, option or otherwise in the subject parcel, and we noted that the mere denial of an application does not establish aggrievement.

The trial court found there was no evidence that Richard DiBonaventura, Jr., had any legally enforceable interest in the subject property, and that he testified that he would be the owner-manager of the operation if approved. Once again, the trial court focuses on the subject property involved in the board’s decision without consideration of Richard DiBonaventura, Jr.’s, ultimate goal of securing a state license to operate the proposed business. Denial of the certificate of approval by the board deprived him of his ability to seek that license, and the trial court’s judgment foreclosed a judicial review of that denial. Additionally, the trial court disregarded the fact that Richard DiBonaventura, Jr., is the property owner’s son and had his father’s consent to use the property. Had father and son entered into a formal leasing agreement, the trial court would have found the son aggrieved for the purposes of an appeal pursuant to General Statutes § 14-57. While in a strict sense Richard DiBonaventura, Sr., may not have a legally enforceable interest in the subject property, his interest is readily distinguished from a general interest, such as is the concern of all members of the community as a whole. We conclude, given the special circumstances presented by this case—the property owner’s written consent to his son’s use of that property, the appearance of father and son before the board as applicants and the board’s admission in its pleading that the plaintiffs were the applicants—that the trial court’s decision that neither plaintiff is aggrieved is an overly technical application of the test for aggrievement.

The judgment of the trial court is reversed and the case is remanded with direction to conduct a hearing on the merits of the plaintiffs’ appeal.

In this opinion the other judges concurred.

       It is assumed that the form used by the plaintiffs was provided by the defendant board or meets the board’s requirements for such application.

       “[General Statutes] Sec. 14-55. hearing. In any town, city or borough the local authorities referred to in section 14-54 shall, upon receipt of an application for a certificate of approval referred to in said section, assign the same for hearing within sixty-five days of the receipt of such application. Notice of the time and place of such hearing shall be published in a newspaper having a general circulation in such town, city or borough at least twice, at intervals of not less than two days, the first not more than fifteen, nor less than ten days, and the last not less than two days before the date of such hearing and sent by certified mail to the applicant not less than fifteen days before the date of such hearing. All decisions on such certificate of approval shall be rendered within sixty-five days of such hearing. The applicant may consent to one or more extensions of any period specified in this section, provided the total extension of any such period shall not be for longer than the original period as specified in this section. The reasons for granting or denying such application shall be stated by the board or official. Notice of the decision shall be published in a newspaper having a general circulation in such town, city or borough and sent by certified mail to the applicant within fifteen days after such decision has been rendered. Such applicant shall pay a fee of ten dollars, together with the costs of publication and expenses of such hearing, to the treasurer of such town, city or borough. No such certificate shall be issued until the application has been approved and such location has been found suitable for the business intended, with due consideration to its location in reference to schools, churches, theaters, traffic conditions, width of highway and effect on public travel. In any case in which such approval has been previously granted for any location, the local authority may, in its discretion, waive the requirement of a hearing on a subsequent application. In addition, the local authority may, in its discretion, waive the requirement of a hearing on an application wherein the previously approved location of a place of business is to be enlarged to include adjoining or adjacent property.”

       General Statutes § 14-57 provides in relevant part: “appeal. Any person aggrieved by the performance of any act provided for in this subdivision (D) by such local authority or by the commissioner may take an appeal therefrom to the superior court for the judicial district within which such town or city is situated, or in accordance with the provisions of section 4-183


author: O’Connell, J.

text:
    Benjamin I. Tedesco v. City of Stamford et al.
    (7322)
    O’Connell, Noecott and Cketella, Js.
    Argued September 18, 1990
    decision released April 2, 1991

      James V. Minor, assistant corporation counsel, with whom, on the brief, was Mary E. Sommer, corporation counsel, for the appellant (defendant).

      Christopher R. Bello, with whom were Robert S. Bello and, on the brief, Lawrence M. Lapine and Thomas M. Cassone, for the appellee (plaintiff).
   O’Connell, J.

The defendant city of Stamford appeals, after a trial to the court, from a judgment awarding damages and attorney’s fees to the plaintiff under 42 U.S.C. § 1983. This case comes to us on remand from the Connecticut Supreme Court.

This matter was initially before this court in June of 1989, when we directed judgment for the city on the ground that the plaintiff’s amended complaint failed to set out a cause of action under 42 U.S.C. § 1983. The Supreme Court reversed, holding that a § 1983 cause of action existed, and remanded the matter to us for further proceedings.

The plaintiff in this case is a Stamford sanitation worker whose employment was terminated after he suffered a job related injury. The plaintiff claims his constitutional right to due process of law was violated by the city’s termination procedures. The facts and procedural history of this case are detailed in both prior opinions, and will not be repeated here.

Following the Supreme Court’s remand, the parties filed supplemental briefs and reargued the case before this court. At reargument, the city claimed that a subsequent trial court judgment confirming an arbitration award between the city and the plaintiff’s union rendered the present case moot. We take judicial notice of the file in the arbitration case; see State v. Lenihan, 151 Conn. 552, 554, 200 A.2d 476 (1964); but disagree with the city’s mootness argument.

An employee’s rights under 42 U.S.C. § 1983 cannot be precluded by a decision in an arbitration proceeding. Alexander v. Gardner-Denver Co., 415 U.S. 36, 94 S. Ct. 1101, 39 L. Ed. 2d 147 (1974). An arbitrator is limited to determining an employee’s rights under a collective bargaining agreement, whereas the resolution of more difficult constitutional issues remains in the province of the courts. Id., 50. “[I]t is the informality of the arbitral procedure that enables it to function as an efficient, inexpensive, and expeditious means for dispute resolution. The same characteristic, however, makes arbitration a less appropriate forum for final resolution of [constitutional] issues . . . . ” Id., 58. Although arbitration is peculiarly well suited to redressing grievances arising under a collective bargaining agreement, it does not furnish an alternative or substitute procedure for safeguarding § 1983 federal rights. McDonald v. West Branch, 466 U.S. 284, 292, 104 S. Ct. 1799, 80 L. Ed. 2d 302 (1984). Accordingly, we conclude that neither the arbitration proceedings nor the judgment confirming the arbitration award precludes this appeal.

At the time of trial, the trial court properly applied existing federal law to support its determination that the plaintiff was denied a constitutionally mandated pretermination hearing. Subsequent federal law, however, requires that this court reverse the trial court’s decision.

The trial court relied on a 1985 United States Supreme Court decision that unquestionably establishes a right to a pretermination hearing. See Cleveland Board of Education v. Loudermill, 470 U.S. 532, 105 S. Ct. 1487, 84 L. Ed. 2d 494 (1985). The plaintiff’s termination, however, occurred more than four years before the Loudermill decision. The retroactive effect of Loudermill on terminations occurring before the date of that decision is reviewed in detail in Zinker v. Doty, 907 F.2d 357 (2d Cir. 1990). In Zinker, the Court of Appeals for the Second Circuit determined that Loudermill did not declare existing law, but rather established new law, and therefore pretermination hearings were not constitutionally mandated prior to the date of that opinion. Id., 363. Thus, the Louder-mill decision cannot be applied retroactively to give the plaintiff a right that he did not have at the time of his termination. Accordingly, the plaintiff had no right under federal law to a pretermination hearing when he was discharged in November of 1981.

The disposition of this federal pretermination claim does not end our analysis because the plaintiff also claims that he was entitled to a pretermination hearing under Stamford’s city charter. The trial court’s memorandum of decision failed to distinguish between pretermination rights secured by Loudermill, and pretermination rights secured by the city charter. The apparent reason for blending these issues stems from the fact that the Stamford city charter does not expressly provide for any pretermination hearing. The charter only requires that the discharged employee be given written notice specifically setting forth the reasons for the discharge. Accordingly, we do not find that the plaintiff was entitled to a pretermination hearing under the city charter.

The next issue concerns the validity of the trial court’s determination that the plaintiff was deprived of a meaningful posttermination hearing. Although the record reveals that the hearing afforded the plaintiff was constitutionally deficient, this violation by itself does not support the trial court’s award. It is well established that a plaintiff must prove more than a mere violation of a constitutional right in order to collect compensatory damages pursuant to 42 U.S.C. § 1983. Carey v. Piphus, 435 U.S. 247, 264, 98 S. Ct. 1042, 55 L. Ed. 2d 252 (1978). He must demonstrate that the constitutional deprivation caused him some actual injury. Wheatley v. Beetar, 637 F.2d 863, 867 (2d Cir. 1980). Stated simply, an allegation of a 42 U.S.C. § 1983 violation is a tort action in which damages must be proved.

The plaintiff’s employment in the present case was terminated because he was physically unable to perform the duties of his job. Both the record in this case, and the record in the arbitration proceedings, of which we took judicial notice, are replete with medical reports stating that the plaintiff could not return to work, and would never be able to return to his job in the future. “[Wjhere a deprivation [of employment] is justified but procedures are deficient, whatever distress a person feels may be attributable to the justified deprivation rather than to deficiencies in procedure. . . . [T]he injury caused by a justified deprivation, including distress, is not properly compensable under § 1983.” Carey v. Piphus, supra, 263. This is clearly a case where the deprivation of the plaintiff’s job was justified although the termination procedure utilized by the defendant was arguably deficient.

The plaintiff’s employment would have been terminated regardless of whether the city afforded him a constitutionally proper hearing. He is not entitled to compensation for “the abstract value of a constitutional right” in a § 1983 action. Memphis Community School District v. Stachura, 477 U.S. 299, 308, 106 S. Ct. 2537, 91 L. Ed. 2d 249 (1986). The Supreme Court held, in Stachura, that “[d]amages based on the abstract ‘value’ or ‘importance’ of constitutional rights are not a permissible element of compensatory damages in such cases.” Id., 310.

Although the federal circuits do not agree on this issue, the Second Circuit is among those interpreting Carey as requiring a plaintiff to prove causation between the constitutional deprivation and any purported injury. The Second Circuit held that it was reversible error not to instruct a jury to award only nominal damages if the jury finds a complainant would have been discharged even if he had received procedural due process. Stein v. Board of New York Bureau of Public Transportation, 792 F.2d 13, 18-19 (2d Cir.), cert. denied, 479 U.S. 984, 107 S. Ct. 572, 93 L. Ed. 2d 576 (1986). “[Bjack pay is not recoverable when the employer can show that the discharge would still have occurred absent procedural [due process] defects.” Wheeler v. Mental Health & Mental Retardation Authority, 752 F.2d 1063, 1071 (5th Cir.), cert. denied, 474 U.S. 824, 106 S. Ct. 78, 88 L. Ed. 2d 64 (1985). If a plaintiff’s discharge is justified, he is precluded from recovering for procedural deprivation, lost pay or lost retirement fund contributions as elements in his claim for damages. Burt v. Abel, 585 F.2d 613, 616 (4th Cir. 1978).

Upholding the trial court’s award in the present action would constitute a windfall, rather than compensation, for the plaintiff. See Carey v. Piphus, supra, 260. The plaintiff in the present case is not entitled to recover anything greater than nominal damages for the justified deprivation of an interest protected by the constitution. Id., 266. We therefore conclude that the plaintiff is entitled to one dollar for the failure of the city to afford him a constitutionally adequate posttermination hearing.

In light of this court’s reversal of the plaintiff’s compensation award, we now must consider whether the trial court’s award of approximately $47,000 in attorney’s fees was proper. An award of nominal damages does not bar the plaintiff from recovering attorney’s fees in a § 1983 action. McCann v. Coughlin, 698 F.2d 112, 128 (2d Cir. 1983). The issue before this court, however, is whether the plaintiff’s counsel must submit contemporaneous time records or if reconstructed time sheets are sufficient to recover attorney’s fees. Because the courts of Connecticut have not passed on this issue we turn to the federal courts for guidance. Although the federal circuits disagree, Connecticut is located in the Second Circuit, which requires contemporaneous time records. “Hereafter, any attorney . . . who applies for court-ordered compensation in this Circuit for work done . . . must document the application with contemporaneous time records.” New York Assn. for Retarded Children, Inc. v. Carey, 711 F.2d 1136, 1148 (2d Cir. 1983). “Contemporaneous time records are important for a number of reasons. The court must have a basis for checking on the requested fee and determining whether the hours claimed were productively spent. Also, in cases where an adjustment in the fee petition is warranted to reflect claims upon which a plaintiff did not prevail, the court must have some means of discerning how many hours were spent on each of the claims. Without access to daily time sheets or other documentation, this task becomes largely speculative.” McCann v. Coughlin, supra, 131.

The decisions of the federal circuit in which a state court is located are entitled to great weight in the interpretation of a federal statute. This is particularly true in 42 U.S.C. § 1983 cases, where the federal statute confers concurrent jurisdiction on the federal and state courts. It would be a bizzare result if this court sanctioned reconstructed time sheets in § 1983 actions when in another courthouse, a few blocks away, the federal court, being bound by the Second Circuit rule, required contemporaneous records. We do not believe that when Congress enacted the concurrent jurisdiction provision of § 1983 that it intended to create such a disparate treatment of plaintiffs depending on their choice of a federal or state forum. We hold that the plaintiffs failure to produce contemporaneous time records precludes the trial court’s award of attorney’s fees, and therefore that award is vacated. Lewis v. Coughlin, 801 F.2d 570 (2d Cir. 1986).

The judgment of the trial court, including the award of attorney’s fees, is reversed, and the case is remanded with direction to render judgment awarding the plaintiff one dollar.

In this opinion the other judges concurred.

       The defendant Teamsters Union Local 145 was not held liable in the trial court’s decision of August 29, 1988, and is therefore not a party to this appeal.

       The named plaintiff died on January 30, 1988, and his executrix was substituted as a party plaintiff. See Tedesco v. Stamford, 215 Conn. 450, 454 n.5, 576 A.2d 1273 (1990).

       See Tedesco v. Stamford, 20 Conn. App. 51, 563 A.2d 1046 (1989).

       See Tedesco v. Stamford, 215 Conn. 450, 576 A.2d 1273 (1990).

       Following oral argument to this court, both counsel sent letters to this court concerning the merits of the appeal. We strongly disapprove of these wholly unauthorized attempts to influence our decision, and adamantly refuse to consider the contents of the letters.

       On March 14,1984, the plaintiff signed a final settlement with the workers’ compensation commission acknowledging that he suffered a permanent partial disability of 47.5 percent of the use of his master arm. He received workers’ compensation benefits, exclusive of medical bills, totaling $65,721.32. The plaintiff also received $16,000 in salary.

         The judgment confirming the arbitration award is Stamford v. Local 145, Teamsters, Superior Court for the judicial district of Stamford-Norwalk, Docket No. 87-0091745S (January 3, 1990).

       Section 740.1 of the Stamford city charter provides: “Wherever used in this Chapter, the word ‘employee’ shall mean all employees and officers of the City of Stamford, except elected officials and those persons appointed by the Mayor to serve at his pleasure. Any municipal employee may be suspended, demoted in rank or grade or discharged by the appropriate superior upon written notice specifically setting forth reasons. Notice in writing of such action shall be reported to the Personnel Director immediately. If such municipal employee intends to appeal the action, he shall notify, in writing, the Personnel Director and the Personnel Appeals Board of his intention within five working days of the date of such suspension or demotion. Within a reasonable time, which shall not exceed thirty (30) days of receipt of notification, the Board shall hold a hearing at which the employee may be represented by counsel. Said hearings shall be open or closed at the option of the employee.”

       The plaintiffs argument that he might become physically able to return to a different job (as a truck driver) is irrelevant.

       Awards of attorney’s fees are provided for in § 1983 actions pursuant to 42 U.S.C. § 1988. This section states in relevant part, “[i]n any action or proceeding to enforce a provision of [section 1983 of this title,] the court, in its discretion, may allow the prevailing party ... a reasonable attorney’s fee as part of the costs.”

       In the present case the plaintiffs attorney did not produce contemporaneous time records, but rather introduced reconstructed time sheets into evidence.


text:
    Bernard Sippin v. Harold Ellam et al.
    (8767)
    Daly, Norcott and Cretella, Js.

      Submitted on briefs December 10, 1990
    decision released April 2, 1991

      Joel Z. Green filed a brief for the appellant (plaintiff).

      Richard J. Butural filed a brief for the appellees (defendant Peter J. Longo et al.).
   Norcott, J.

The plaintiff appeals from a judgment of the trial court rendered in part in favor of the defendants in a landlord-tenant dispute. The plaintiff argues that the trial court improperly rendered judgment for the defendants because (1) no evidentiary basis existed for the court’s finding that the lease was “illegal,” and (2) the court’s denial of the plaintiff’s claims was clearly erroneous as a matter of law. We affirm the judgment of the trial court.

The trial court made the following findings of fact. On or about November 17, 1986, the defendants entered into a written agreement to lease the plaintiffs property located on Main Street in Monroe. The lease stipulated that the premises be used exclusively for the defendants’ real estate business. Pursuant to the lease, the defendants took possession of the property and conducted their real estate business. In August of 1987, the defendants had a disagreement that resulted in Peter Longo’s operating the business himself after the named defendant, Harold Ellam, terminated his relationship with the business and vacated the premises.

In October, 1987, the local zoning enforcement agency ordered Longo to remove a commercial real estate sign and to cease and desist the operation of his business because the premises were located in a residential zone. Longo then told the plaintiff about this order.

The trial court further found that a restrictive covenant in the plaintiff’s deed prohibited any commercial use of the premises and that the plaintiff knew of this restrictive covenant prior to the execution of the lease. The plaintiff never informed the defendants of the restriction. Although he tried to assure Longo that the cease and desist order would not be enforced, a subsequent zoning notice caused Longo to wind up his business and to vacate the premises. No rent was paid for the month of December, 1987, and the premises were completely vacated in January, 1988.

The plaintiff subsequently sued the defendants to recover the December rent or, in the alternative, the fair rental value of the premises for the month of December. In addition, the plaintiff sought recovery for his cost of repairing the damage to the premises caused by the defendants. The court found for the defendants on the issues of rent and use and occupancy, but found for the plaintiff on his claim of waste and awarded nominal damages of one dollar.

I

The plaintiff first argues that there was insufficient evidence for the trial court to find that the lease was illegal. We disagree.

“In reviewing a claim of insufficiency of evidence, ‘we review the factual findings below to ensure that they could have been legally, logically and reasonably found, thereby establishing that the trial court could reasonably conclude as it did.’ Ernst Steel Corporation v. Reliance Ins. Co., 13 Conn. App. 253, 258, 536 A.2d 969 (1988).” In re Noel M., 23 Conn. App. 410, 418, 580 A.2d 996 (1990). It is not our function to retry the case or to gauge the credibility of witnesses. In re Jason S., 9 Conn. App. 98, 109, 516 A.2d 1352 (1986). Our job is merely to examine “[i]f there is sufficient evidence in the record in support of the decision of the trial court. . . .” Cashman v. Calvo, 196 Conn. 509, 514, 493 A.2d 891 (1985).

There is absolutely no question here that the lease was being illegally maintained because of both the operative zoning laws and the restrictive covenant contained in the warranty deed. Both Longo and the plaintiff testified that the property was located in a residential zone. In addition, although the deed itself was not introduced into evidence, the plaintiff himself testified on direct examination as to the existence of the restrictive covenant. Weighing this testimony with that of the other witnesses, the trial court found that the lease in question was illegal. On review, we are not persuaded by the argument that the trial court lacked sufficient evidence to conclude that the operation of the lease by the defendants involved a purpose that violated both the zoning laws of the town of Monroe and the restrictive covenant, and was therefore illegal.

II

The plaintiff next challenges the trial court’s failure to allow him to recover rent or fair rental value under the lease. He argues that recovery for fair rental value is allowable under the theory of quantum meruit. That theory was rejected by the trial court. On appeal, the dispositive question regarding this claim is whether recovery for rent or fair rental value for use and occupancy is allowable under an illegal lease.

“The principle that the courts will not enforce the terms of a lease of premises to be used for an illegal purpose has most frequently been applied in actions by the lessor to recover rent, and a recovery in such actions is denied.” 49 Am. Jur. 2d § 44, Landlord and Tenant. While the defense of illegality does not rescind the illegal agreement, it prevents a party from using the courts to enforce such an agreement. Diamond Housing Corporation v. Robinson, 257 A.2d 492, 495 (D.C. 1969). The trial court thus correctly concluded that the lease, which it found to be illegal because of the violative use of the premises, could not be enforced and that, therefore, there could be no recovery for rent under that lease.

The plaintiff also argues that he is entitled to recover the fair rental value for use and occupancy for the month of December under the theory of quantum meruit. We first note that the plaintiff has cited no authority whatsoever to support this theory of recovery which he claimed at trial and asserts anew on appeal. His claim rests on the argument that the trial court misapplied certain case law to the facts found in the case. The trial court concluded that quantum meruit provided no relief in this case, relying on the well established rule cited by our Supreme Court in McKnight v. Gizze, 119 Conn. 251, 256, 175 A. 676 (1934), that “ ‘[wjhen the illegality, either in whole or in part, is in the thing which the party seeking to recover was to do, then there can be no recovery upon a quantum meruit.’ ” The trial court concluded that “[t]he thing to be done here and which was prohibited by the covenant, was the suffering of the premises in question to be used for commercial purposes.” The suffering of the premises by the plaintiff for an unlawful use was a part of the illegality; another part was the actual use of the premises for the prohibited commercial purposes. In any event, the trial court’s conclusion that there can be no recovery under quantum meruit when the illegality is the essence of the lease is not a misapplication of the law but is consistent with the aforementioned principle regarding the unenforceability of illegal agreements. Accordingly, the plaintiff cannot prevail on this claim.

The plaintiff finally suggests in his brief that, because General Statutes § 47a-3c provides for recovery of payments for use and occupancy, he is entitled to the same under the facts of this case. Section 47a-3c provides: “In the absence of agreement, the tenant shall pay the fair rental value for the use and occupancy of the dwelling unit.” Although the plaintiff cites no authority in support of his argument, we must nevertheless determine whether the statute permits a landlord’s recovery for fair rental value for the use and occupancy of premises that have been occupied under an illegal lease. We find that such recovery is not warranted.

Fair rental value in the form of use and occupancy is generally recoverable by the landlord when the tenant in possession of the premises is a tenant at sufferance. Welk v. Bidwell, 136 Conn. 603, 609, 73 A.2d 295 (1950). “ ‘A tenancy at sufferance arises when a person who came into possession of land rightfully continues in possession wrongfully after his right thereto has terminated.’ Welk v. Bidwell, [supra,] 608-609.” Rivera v. Santiago, 4 Conn. App. 608, 609-10, 495 A.2d 1122 (1985). “After a notice to quit has been served ... a tenant at sufferance no longer has a duty to pay rent. He still, however, is obliged to pay a fair rental value in the form of use and occupancy for the dwelling unit. Lonergan v. Connecticut Food Store, Inc., 168 Conn. 122, 131, 357 A.2d 910 (1975).” Rivera v. Santiago, supra, 610; see also O’Brien Properties, Inc. v. Rodriguez, 215 Conn. 367, 372, 576 A.2d 469 (1990).

None of these principles provides the plaintiff here with a basis for recovery of the reasonable value for use and occupancy because the defendants were never tenants at sufferance. The prerequisite of tenancy at sufferance that the tenant “rightfully” come into possession of the premises was never fulfilled here. The record reveals that the defendants entered the lease ignorant of the restrictive covenant prohibiting a commercial use and the zoning restrictions requiring a permit for the same, while the plaintiff certainly knew of the former if not the latter. A lease agreement entered into in violation of the law creates no rights in the wrongdoer. Brown v. Southall Realty Co., 237 A.2d 834 (D.C. 1968). The lease was unenforceable and illegal ab initio, and the defendants cannot be said to have rightfully come into possession of a wrongful lease. Because the defendants were not tenants at sufferance, the plaintiff cannot recover the fair rental value for use and occupancy.

This case does not present a situation contemplated by § 47a-3c, where recovery for use and occupancy is premised on an absence of a lease agreement or the termination of a valid lease agreement by a notice to quit. See Bushnell Plaza Development Corporation v. Fazzano, 38 Conn. Sup. 683, 460 A.2d 1311 (1983). Here, there is at issue an illegal lease from which, in essence, the plaintiff would have the courts allow him to recover moneys as a result of that illegal tenancy. This we will not do.

The judgment is affirmed.

In this opinion the other judges concurred.

       The lease provided in pertinent part that the premises were to be occupied “only for offices for conducting any and all operations as they relate to a real estate operation.”

       Although Ellam left the premises before the cease and desist order was issued, he was properly named as a defendant because his signature remained on the lease.

       The plaintiff testified that “[t]here was a restricted covenant in a real estate transaction the way that house, that property was bought from Luckters in 1940 that they indicated that they did not, in the covenant, nobody in that house could do business.”
      Again on cross-examination, the plaintiff answered in the following manner:
      “Q. Mr. Sippin, you testified that there was a restrictive covenant that prohibited any business use on the property dating back I guess you said about 1940, is that correct?
      “A. Correct.
      “Q. And you were aware of that at the time you entered into the lease with Mr. Longo and Mr. Ellam, were you not?
      “A. Correct.”

       The trial court specifically found that “[tjhere is no question but that the lease was illegal pursuant to the restrictive covenant against any commercial use. It is therefore clear that such an undertaking is illegal and voids the agreement. [The plaintiff is therefore not entitled to recover rent under the lease.”

       The defendant has not challenged the trial court’s award on the plaintiff’s claim for damages allegedly caused by the defendants. Therefore, we will not address the court’s ruling on that issue.


text:
    Renate Werner v. Zoning Board of Appeals of the Town of Easton et al.
    (9029)
    O’Connell, Lavery and Cretella, Js.
    Argued October 29, 1990
    decision released April 9, 1991

      Ronald D. Williams, with whom, on the brief, was Renee L. Bevacqua, for the appellant (named defendant).

      Andrew D. Cretella

       for the appellee (plaintiff).

       There is no relation between the author and counsel for the appellee.

   Cretella, J.

The defendant board appeals from the judgment of the trial court reversing the board’s denial of what is considered an application by the plaintiff for a variance. On appeal, the defendant questions whether the trial court improperly (1) determined that a zoning variance that was granted in 1986 remained valid, thus requiring no additional variance, (2) determined that no condition had been attached to the earlier variance, and (3) refused to admit the board’s offered exhibits consisting of court records relating to certain injunctive orders that had been issued against the plaintiff.

We agree with the trial court’s findings that the 1986 variance remained valid and that an additional variance was not required. We also agree with the trial court’s finding that the plaintiff’s subsequent application to the defendant board in 1989 was, in fact, an appeal from a cease and desist order, and that any question of hardship was not pertinent to the 1989 hearing.

A brief summary of the long and rather complicated history of this matter is relevant. In 1986, the plaintiff applied for a variance of the fifty foot front yard setback required by § 5.411 of the Easton zoning regulations. The plaintiff’s application was granted on the basis of a finding of hardship, thus permitting her to construct a caretaker’s residence with a front yard setback of no less than thirty-one feet six inches from Stepney Road, where the regulations normally required a fifty foot setback. This caretaker’s residence was to be built by means of an addition to, or an alteration of, an existing structure. The plaintiff obtained a building permit in February, 1988, and commenced construction of the addition.

Thereafter, because of disputes and discrepancies in the data and information that the plaintiff had provided to the building department, the plaintiff was ordered to stop work and served with a cease and desist order. When the plaintiff was unable to resolve these matters, she continued with the construction and was then served with a temporary restraining order. Eventually, after a full court hearing, a temporary injunction was issued. The plaintiff then applied to the defendant board for relief.

Following a public hearing on April 3,1989, the plaintiff was advised in writing that her “request for a variance” was denied because the board felt that no real hardship had been shown and that any alleged hardship had been self-imposed. The plaintiff appealed the board’s decision to the Superior Court.

The trial court, without considering the merits of the board’s 1989 denial, concluded that the plaintiff required no additional variance because the 1986 variance was still valid. Because no additional variance was required, the court also concluded that the question of hardship played no part in the board’s decision. We agree.

In her complaint to the trial court, the plaintiff alleged that her application to the board in 1989 was an appeal from the cease and desist order and that the board had improperly construed it as an application for a variance. The court agreed, as do we.

The board argued before the trial court that the 1986 variance was conditioned on the area and dimensions contained in the plans for the proposed addition that were viewed by the board in 1986. The trial court had before it, however, none of the records or data relating to the 1986 variance. It was only after the court properly accepted a copy of the 1986 variance as a plaintiffs exhibit that it was able to determine the nature of that variance. Although the exhibit itself makes reference to the plaintiffs 1986 application only by number, the parties all stipulated that the plaintiff requested this variance in order to construct an addition thirty-one feet, six inches from Stepney Road, rather than at the required fifty foot setback. The parties also agree that the plaintiffs construction does not infringe on the allowed thirty-one foot, six inch setback.

The exhibit offered by the plaintiff made no reference to the variance’s being conditioned on any specific dimensions or area of the addition. It merely stated that the addition would be to the side and rear of the existing structure and required that the addition be utilized only as a caretaker’s residence in accordance with the existing zoning regulations.

The defendant sought to establish that there were conditions attached to the 1986 variance. It offered exhibits relating to the temporary restraining order and the temporary injunction that had been issued by the Superior Court. It was that injunction that caused the plaintiff to appear before the board again in 1989. The court declined to accept these exhibits, stating that they were not relevant.

Our examination of the proffered exhibits, which were duly marked for identification, simply establishes that the plaintiff was allegedy proceeding with the construction of the addition in some manner that was contrary to the building permit that had been issued by the Easton building department. Even if that was true, it was not a proper matter to be considered by the Superior Court or by this court in the course of an appeal from a denial by the defendant board. These exhibits were properly excluded by the trial court.

It is well established that with the exception of certain statutorily defined instances in which the taking of evidence by the trial court is mandated, the court has broad discretion in determining whether to accept additional evidence when hearing an administrative appeal. Ierardi v. Commission on Human Rights & Opportunities, 15 Conn. App. 569, 584-85, 546 A.2d 870, cert. denied, 209 Conn. 813, 550 A.2d 1082 (1988); see Stiles v. Town Council, 159 Conn. 212, 268 A.2d 395 (1970); Troiano v. Zoning Commission, 155 Conn. 265, 231 A.2d 536 (1967). In light of the plaintiff’s argument to the trial court that no further variance was required and that the plaintiff’s 1989 application was merely an appeal from the cease and desist order, the court was well within its authority to review the 1986 variance to determine whether the board had acted fairly and with proper motive and valid reasons. Schwartz v. Planning & Zoning Commission, 208 Conn. 146, 152, 543 A.2d 1339 (1988). It was also necessary for the court to determine whether the actions of the board were reasonably supported by the record and were a relevant basis upon which to deny the application. Daughters of St. Paul, Inc. v. Zoning Board of Appeals, 17 Conn. App. 53, 68, 549 A.2d 1076 (1988); Green v. Zoning Board of Appeals, 4 Conn. App. 500, 502, 495 A.2d 290 (1985).

We agree with the trial court that proof of a hardship was not required during the 1989 hearing because no further variance was required. While it is true that the board may impose reasonable conditions to the granting of a variance, those conditions must be in accordance with the zoning regulations and it may not impose conditions that are contrary to those regulations. Wright v. Zoning Board of Appeals, 174 Conn. 488, 492, 391 A.2d 146 (1978); Farina v. Zoning Board of Appeals, 157 Conn. 420, 422, 254 A.2d 492 (1969). It is equally well established that, whether or not it was stated, the plaintiff must abide by all existing regulations as to side yard, rear yard, height, area etc. unless there has been a variance granted as to any of those regulations. Here, the only regulation that had been varied was the fifty foot set back regulation. The variance further stated that the addition was to be used as a caretaker’s residence.

The trial court correctly ordered the building inspector to treat the plaintiff’s application for a building permit as one that complied with the setback regulation and to issue a building permit if one would be issued for a building that had a fifty foot setback.

The judgment is affirmed.

In this opinion the other judges concurred.

       The defendants in this action are the Easton zoning board of appeals and the Easton town clerk.


author: Heiman, J.

text:
    Gilbert Kelman et al. v. Zaida McDonald, Trustee
    (7888)
    Dupont, C. J., O’Connell and Heiman, Js.
    Argued January 7
    decision released April 9, 1991

      Alan G. Schwartz, with whom were Joseph Leibowicz and Albert L. Harlow, for the appellant (defendant).

      Wesley W. Horton, with whom was Robert M. Shields, Jr., for the appellees (plaintiffs).
   Heiman, J.

The defendant appeals from the judgment rendered by the trial court quieting and settling the title to certain real property in the plaintiffs. The property in question is located in the Stony Creek section of Branford. Although the defendant alleges four separate issues in this appeal, the questions raised actually constitute but a single issue, that is whether the trial court’s conclusion is supported by the evidence. We conclude that it is, and, consequently, we affirm the trial court’s judgment.

The facts found by the trial court are as follows. The disputed property is a small triangular piece of land, constituting a portion of a dock or wharf, located on the east side of the plaintiffs’ parcel. The land owned by the plaintiffs and that owned by the defendant are contiguous. The plaintiffs’ parcel, known as 16 Halls Point Road, lies west of the defendant’s parcel, known as 10 Halls Point Road. The plaintiffs acquired title to their property by administrator’s deed in 1973. The defendant’s property has been in the McDonald family since 1914. Neither the deed by which the plaintiffs obtained title to their land, nor the deed by which the defendant’s predecessors in title obtained title to their property, contains an accurate recital of the east-west boundary line between the two parcels. To quiet title to the disputed piece of land, the court resorted to an examination of the circumstances surrounding the respective conveyances. The trial court reviewed maps, surveys, assessor’s records and other pieces of objective evidence. The court also conducted a view of the premises. Among other things, the evidence showed that from 1973, when the plaintiffs acquired title to their property, through 1987 the triangular parcel of land in question was assessed to the plaintiffs, and that the plaintiffs had paid the real estate taxes associated with the parcel during each of these years. From these facts, exhibits, and view, the trial court concluded that the plaintiffs had established their title to the disputed land by a fair preponderance of the evidence. The court further concluded that the defendant had not sustained the burden of establishing her claim of adverse possession of the land by clear and positive proof as required by law; see Clark v. Drska, 1 Conn. App. 481, 484, 473 A.2d 325 (1984); and rendered judgment for the plaintiffs.

The four issues raised by the defendant in her appeal all have a common theme, that is, that each issue attacks the factual conclusions the trial court drew from the evidence before it.

The trial court heard a number of witnesses over a nine day trial, examined approximately seventy-three exhibits offered into evidence by the parties, and received voluminous posttrial briefs. In an exhaustive and well reasoned memorandum of decision, the trial court concluded that “the more credible testimony sustains the plaintiffs’ burden of proof,” and that the defendant had failed to sustain her burden of proof on her claim of adverse possession.

Where the claim is that the evidence produced did not satisfy the burden of proof factually, the duty of an appellate court is well established. “ ‘An appeal based on the sufficiency of evidence to support a factual finding carries a legal and practical restriction to review. The function of an appellate court is to review, and not to retry, the proceedings of the trial court. . . .’ ” Gach v. Franolich, 10 Conn. App. 677, 680, 525 A.2d 525 (1987). Further, we are authorized to reverse or modify the decision of the trial court only if we determine that the factual findings “are clearly erroneous in view of the evidence and pleadings in the whole record, or that its decision is otherwise erroneous in law.” Practice Book § 4061. It is, however, not our function to retry the case or to pass upon the credibility of witnesses. Johnson v. Flammia, 169 Conn. 491, 497, 363 A.2d 1048 (1975).

“In a case tried before a court, the trial judge is the sole arbiter of the credibility of the witnesses and the weight to be given specific testimony.” Kimberly-Clark Corporation v. Dubno, 204 Conn. 137, 153, 527 A.2d 629 (1987). In reviewing the trial judge’s factual findings, we give the evidence the most favorable reasonable construction in support of the judgment. Gorra Realty, Inc. v. Jetmore, 200 Conn. 151, 160, 510 A.2d 440 (1986). “ ‘ “A factual finding may be rejected by this court only if it is clearly erroneous.” ’ ” Kimberly-Clark Corporation v. Dubno, supra, 154.

The defendant also attacks the court’s treatment of the testimony of certain expert witnesses. The testimony of expert witnesses is subject to the rule that their credibility and the weight to be accorded to their testimony “ ‘ “are within the province of the trier of facts, who is privileged to adopt whatever testimony he reasonably believes to be credible.” ’ ” (Citations omitted.) Transportation Plaza Associates v. Powers, 203 Conn. 364, 378, 525 A.2d 68 (1987); Ratner v. Willametz, 9 Conn. App. 565, 583, 520 A.2d 621 (1987).

“ ‘We do not examine the record to determine whether the trier of fact could have reached a conclusion other than the one reached. Rather, we focus on the conclusion of the trial court, as well as the method by which it arrived at that conclusion to determine whether it is legally correct and factually supported.’ ” Lukas v. New Haven, 184 Conn. 205, 208, 439 A.2d 949 (1981).

As noted above, the trial court’s memorandum of decision reflects the fact that the court viewed the premises before rendering its decision. “ ‘ “We have consistently held that the visual observations made by the trier on a visit to the property are as much evidence as the evidence presented for his consideration by the witnesses under oath. . . .” ’ ” Kelly v. Ivler, 187 Conn. 31, 50, 450 A.2d 817 (1982). Evidence obtained by visual inspection is not subject to appellate review. Lupinacci v. Planning & Zoning Commission, 153 Conn. 694, 700, 220 A.2d 274 (1966).

It is often stated that a finding is clearly erroneous “ ‘when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.’ ” Doyle v. Kulesza, 197 Conn. 101, 105, 495 A.2d 1074 (1985). We conclude that such is not the case here.

The court’s legal and factual conclusions are not clearly erroneous because they are supported by the facts set forth in its memorandum of decision, and the subordinate facts are amply supported by the evidence. Pandolphe’s Auto Parts, Inc. v. Manchester, 181 Conn. 217, 221-22, 435 A.2d 24 (1980).

The judgment is affirmed.

In this opinion the other judges concurred.