author: CALLAHAN, C. J. BERDON, J.,

text:
    MARCELLE HALL, EXECUTRIX (ESTATE OF JULIAN LEON ALTMAN), ET AL. v. SHERRY SCHOENWETTER ET AL.
    (15459)
    Callahan, C. J., and Berdon, Norcott, McDonald and Peters, Js.
    Argued October 2
    officially released December 31, 1996

      Jonathan A. Flatow, for the appellant (plaintiff).

      Christopher T. Donohue, for the appellee (named defendant).
   CALLAHAN, C. J.

The issue in this appeal is whether a finder’s fee for the recovery of property paid to the plaintiff, Marcelle Hall, the executrix of the estate of Julian Leon Altman (decedent), by an insurer, Lloyd’s of London (Lloyd’s), in exchange for the surrender by the plaintiff of a violin possessed by the decedent at the time of his death should be included in his estate or should belong to the plaintiff individually. The plaintiff appeals from a judgment of the trial court that the finder’s fee was required to be included in the decedent’s estate. We affirm the judgment of the trial court.

This is the saga of the mysterious disappearance of a 1713 Stradivarius violin known as the “Gibson” from Carnegie Hall in 1936 and its reappearance in Bethel after the decedent’s death in 1985. Although the long lost Gibson has been recovered, precisely what occurred at Carnegie Hall in 1936 remains clouded by the passage of time and a dying man’s death bed equivocation.

The decedent died a resident of Bethel on August 12, 1985, leaving a last will and testament. Thereafter, on October 15,1985, the plaintiff, the decedent’s wife, was appointed executrix of his estate. On May 15, 1986, she filed an Inventory and S-2 Succession Tax Return reflecting estate assets of $39,624.44. The Connecticut department of revenue services issued a certificate of no tax due on June 6, 1986, subject to the case being reopened if additional transfers were discovered. Subsequently, the Bethel Probate Court ordered the plaintiff to file an interim accounting based on complaints made by the defendant, Sherry Altman Schoenwetter, the decedent’s daughter and a legatee under his will. The plaintiff filed the interim accounting on February 6, 1991. The defendant objected to the plaintiffs omission from the accounting of a finder’s fee in the amount of $263,475.75 received by the plaintiff from Lloyd’s in exchange for the violin.

The Bethel Probate Court conducted hearings to determine the validity of the defendant’s objection. On the basis of the evidence presented, the court sustained the objection, and ordered the plaintiff to file a new accounting that included the finder’s fee and to post a bond in the amount of $300,000. The plaintiff appealed from the Probate Court’s judgment to the Superior Court pursuant to General Statutes § 45a-186. After a trial, the Superior Court affirmed the Probate Court’s judgment and ordered the plaintiff to include the finder’s fee plus interest in the decedent’s estate. The plaintiff appealed from the judgment of the trial court to the Appellate Court, and we transferred the appeal to this court pursuant to Practice Book § 4023 and General Statutes § 51-199 (c).

The Bethel probate judge made findings of fact, which the trial court adopted and supplemented with other findings gleaned from testimony received at trial. Sometime after 1970, the plaintiff began a relationship with the decedent in Washington, D.C. From the beginning of the relationship until his death, the decedent, a professional musician, possessed a violin that he played at recitals, concerts and, more often, at various restaurants and hotels. In 1983, the couple moved to Bethel. They eventually married in 1985, sometime after doctors had diagnosed the decedent as having stomach cancer. The plaintiff made several visits to the decedent, whose health was failing rapidly, at Charlotte-Hungerford Hospital in Torrington where he was receiving treatment. Shortly before he died, the decedent revealed to the plaintiff that the violin he had played throughout his life was actually a famous Stradivarius violin known as the Gibson. The Gibson had been stolen in 1936 from the dressing room of a world renowned violinist named Bronislaw Huberman while Huberman was performing at Carnegie Hall in New York City. Lloyd’s, the insurer of the Gibson, paid Huberman approximately $30,000 to compensate him for the loss of the violin, and thereby acquired title to the instrument. The police never solved the crime.

After the decedent’s death, the plaintiff obtained verification that the instrument was indeed the long lost Gibson. She then retained an attorney who negotiated the relinquishment of the violin to Lloyd’s, in exchange for which Lloyd’s agreed to pay the plaintiff a finder’s fee of 25 percent of the net proceeds brought by the sale of the violin. On February 12,1988, the Gibson was sold for $1,200,000. Thereafter, on February 26, 1988, Lloyd’s paid the plaintiff $263,475.75 as a finder’s fee.

In response to the defendant’s objection to the plaintiffs failure to include the finder’s fee in the decedent’s estate, the plaintiff claimed that, based on statements made to her by the decedent and newspaper clippings found in the canvass case that housed the violin, it was the decedent who had stolen the violin from Huberman in 1936. The plaintiff argued consequently that, because a thief should not benefit from his crime, neither should his estate. She contended therefore that the finder’s fee should not be included among the estate’s assets. Although in its memorandum of decision the trial court made no specific finding that the decedent actually had stolen the violin, the court quoted at length from the plaintiffs testimony, in which she asserted that the decedent was in fact the thief, and appeared to proceed on the assumption that the decedent had acquired the violin illegally. The trial court concluded, however, that because the violin, no matter how acquired, had been in the decedent’s possession at the time of his death, and because the plaintiff had acquired it in her capacity as executrix, she had a fiduciary duty to include the value of the finder’s fee in the decedent’s estate.

In her arguments to this court, the plaintiff essentially repeats those made in the trial court. The plaintiff contends that, because the decedent stole the violin, he never acquired good title to the instrument and, therefore, the finder’s fee was not an asset of the estate for which the plaintiff was required to account. The plaintiff attempts to distance this case from the hornbook proposition that “possession is itself a protected property right.” She argues that she simply did the right thing when she returned the violin to Lloyd’s, its rightful owner. We find the plaintiffs arguments unpersuasive.

Initially, we note the unsurprising paucity of case law, both in Connecticut and nationwide, pertinent to the issue before us. To reach our decision, we turn to fundamental concepts of fiduciary responsibility and property law. At all times subsequent to her appointment as executrix, the plaintiff served as a fiduciary for the decedent’s estate. See General Statutes § 45a-199 (executrix is fiduciary); see also Papa v. New Haven Federation of Teachers, 186 Conn. 725, 745 n.15, 444 A.2d 196 (1982) (fiduciary includes relationships such as executor and executrix). An executrix has a fiduciary responsibility “to maintain an undivided loyalty to the estate”; Ramsdell v. Union Trust Co., 202 Conn. 57, 65, 519 A.2d 1185 (1987); and must diligently represent “the rights of the heirs and distributees and also those of creditors.” Finnegan v. LaFontaine, 122 Conn. 561, 567, 191 A. 337 (1937). Although executors and administrators are not trustees, they “occupy a position in many respects analogous [to trustees] . . . and many of the rules determining the powers and duties of trustees apply to them.” Hall v. Meriden Trust & Safe Deposit Co., 103 Conn. 226, 233, 130 A. 157 (1925). “One of the most fundamental duties of the trustee is that he must display throughout the administration of the trust complete loyalty to the interests of the cestui que trust. He must exclude all selfish interest and also all consideration of . . . third persons.” (Internal quotation marks omitted.) Phillips v. Moeller, 148 Conn. 361, 369, 170 A.2d 897 (1961). “A trustee must always be loyal to his trust.” Conway v. Emeny, 139 Conn. 612, 621, 96 A.2d 221 (1953). Similarly, an executrix must remain loyal to the estate that she is administering and must not act out of self-interest or for the interests of parties other than the heirs, distributees, and creditors of the estate.

General Statutes § 45a-341 (a) requires executors and executrices to gather, appraise, and inventory all property of the decedent’s estate at the time of his death, except real property located outside the state. Section 45a-341 (a) (3) provides that the inventory of a decedent’s estate shall include both tangible and intangible personal property. This court has stated that “[t]he estate of a deceased person consists of property the title to or an interest in which is derived from him . . . American Surety Co. of New York v. McMullen, 129 Conn. 575, 582-83, 30 A.2d 564 (1943). “The inventory of an estate may properly contain any property which may be claimed to have belonged to the deceased when the circumstances are such as to make the matter of his title doubtful, leaving the question of title to be litigated in an ordinary action at law.” Searle v. Crampton, 118 Conn. 42, 46, 170 A. 480 (1934); see also Lynch v. Skelly, 138 Conn. 376, 378, 85 A.2d 251 (1951).

Under the common law, possession of personal property raises a rebuttable presumption of ownership. 73 C.J.S. 237, Property § 36 (b) (1983); see Savannah Bank & Trust Co. v. Great American Indemnity Co., 303 F.2d 247, 250 (1st Cir. 1962); Commonwealth v. Gildea, 17 Mass. App. 177, 181, 456 N.E.2d 1157 (1983); State v. Campos, 61 N.M. 392, 393, 301 P.2d 329 (1956); People v. Florus, 67 Misc. 2d 809, 812, 325 N.Y.S.2d 127 (1971); Matter of Estate of Burns, 585 P.2d 1126, 1130 (Okla. App. 1978). Property in the possession of a decedent at the time of his death is presumptively an asset of his estate. 33 C.J.S. 1083, Executors and Administrators § 125 (1942); see Hurley v. Noone, 347 Mass. 182, 187-88, 196 N.E.2d 905 (1964) (decedent’s possession of currency in safe deposit box established prima facie case of her ownership); Matter of Buckler, 227 App. Div. 146, 149, 237 N.Y.S. 242 (1929) (decedent’s possession of certain currency before death established prima facie case of her ownership thereof); Haywood v. Kukuchka, 55 Wyo. 41, 45, 95 P.2d 71 (1939) (decedent’s possession of car, along with other indicia of title, established prima facie case of ownership); see also Hope v. Cavallo, 163 Conn. 576, 581, 316 A.2d 407 (1972) (“[owner] is not a technical term and, thus, is not confined to a person who has the absolute right in a chattel, but also applies to a person who has possession and control thereof’); Antenucci v. Hartford Roman Catholic Diocesan Corp., 142 Conn. 349, 355, 114 A.2d 216 (1955) (party in possession of real property regarded as owner except in contest with true title holder); Chapel-High Corp. v. Cavallaro, 141 Conn. 407, 411, 106 A.2d 720 (1954) (same).

Once the Probate Court appointed the plaintiff executrix of the decedent’s estate, the plaintiff undertook a fiduciary duty obligating her to act in the best interests of the estate and the distributees of the decedent’s will, which included the defendant and the decedent’s sister. Section 45a-341 (a) (1) required the plaintiff to gather and inventory all of the decedent’s property so that a proper distribution of his estate might be made. The violin, having been in the possession of the decedent at the time of his death, was an asset of his estate. The plaintiff therefore should have included the finder’s fee, the realized value of the violin, in the decedent’s estate regardless of whether the decedent had an unassailable title to the instrument during his lifetime. See General Statutes § 45a-341 (a) (1) and (4). Instead of doing so, however, the plaintiff violated her fiduciary duty to act in the best interests of the estate by retaining the finder’s fee for herself. Rather than increasing the value of the decedent’s estate — which would have benefited the decedent’s distributees and creditors, in whose best interests the plaintiff was bound to act — the plaintiff disregarded her fiduciary duty and enriched herself by exchanging a possession of the estate for the finder’s fee.

The plaintiffs argument that a thief should not benefit from his crime strikes a dissonant note in light of the facts of this case. Although morally compelling in the abstract, the plaintiffs argument is logically inconsistent with her actions since, by negotiating for and accepting the finder’s fee on her own behalf, the plaintiff appropriated to herself, in breach of her fiduciary duty, whatever value the violin had to the estate. It has long been a principle of common law that “[t]he party in possession [of property] is regarded by the law as the owner, except in a contest with one who has true title.” (Internal quotation marks omitted.) Antenucci v. Hartford Roman Catholic Diocesan Corp., supra, 142 Conn. 355; Chapel-High Corp. v. Cavallaro, supra, 141 Conn. 411; see also Anderson v. Gouldberg, 51 Minn. 294, 295, 53 N.W. 636 (1892), citing Armory v. Delamirie, 1 Strange 504, 93 Eng. Rep. 664 (1722). In a suit by a possessor of property against a converter, the converter may not defend by asserting that a third person is the true title holder of the property unless the converter is in privity of title with the third person. See Russell v. Stocking, 8 Conn. 236, 241-42 (1830); Goss v. Bisset, 411 S.W.2d 50, 53 (Ky. App. 1967); Thomsen v. State, 70 Wash. 2d 92, 97-98, 422 P.2d 824 (1966); see also R. Boyer, Survey of Property (3d Ed. 1981) pp. 683-84. The plaintiff had no right or title to the violin except as executrix, and she certainly was not in privity with Lloyd’s. The plaintiff attempts to distinguish the present case from those cases holding that the first thief prevails in an action against the second thief by noting that in this case the rightful owner, Lloyd’s, eventually received the property. That the rightful owner eventually recovered the stolen property does not change the fact that the plaintiff, in her individual capacity, never had any right whatsoever to the violin. The only possible party that possessed better title than the decedent was Lloyd’s. The plaintiff, however, did not accede to the interest of Lloyd’s or acquire privity of title with Lloyd’s when she misappropriated the violin from the estate.

In sum, the plaintiff as executrix was under a fiduciary duty to act not in her own self-interest, but in the best interests of the estate. She failed to do so and she may not justify the breach of her fiduciary duty in 1988 by virtue of the fact that the decedent may have stolen the violin in 1936. No matter how the Gibson was obtained, it was a possession of the decedent’s estate, and once the plaintiff chose to negotiate with Lloyd’s for the finder’s fee her fiduciary duty required that she negotiate on behalf of the estate, not herself.

The judgment is affirmed.

In this opinion NORCOTT, MCDONALD and PETERS, Js., concurred.

BERDON, J.,

dissenting. I cannot agree that a finder’s fee paid by the owner of property for the return of that property stolen by the plaintiffs decedent is an asset of the decedent’s estate that must be inventoried and accounted for by the plaintiff in her fiduciary capacity as executrix of the decedent’s estate. It is undisputed in this case that the Stradivarius violin stolen by the decedent, Julian Altman, was returned after his death to its rightful owner, Lloyd’s of London (Lloyd’s).

The majority’s analysis relies upon three points: (1) the decedent had possession of the violin at the time of his death and the plaintiff, Marcelle Hall, came into possession of it as a result of her fiduciary capacity; (2) the possession raises a rebuttable presumption of ownership under the common law; and (3) based upon that rebuttable presumption, the plaintiff, in her fiduciary capacity, was obligated to inventory the finder’s fee she personally received for returning the violin to its true owner.

I am willing to accept the first premise because the probate judge found that the decedent had possession at the time of his death and the trial court accepted all his findings, except the finding in which the probate judge found that the decedent did not participate in the theft. The second premise — the rebuttable presumption of ownership — however, is not relevant in this case. In order to place this issue in its proper context, I review and summarize the trial court’s findings.

The plaintiffs testimony before the trial court revealed the following facts, which the trial court stated had “the ring, in most part, of irrefutable truth.” The decedent and the plaintiff lived together for many years. The decedent was incarcerated at the Litchfield County correctional facility after having been convicted of sexually abusing the plaintiffs grandchild. While he was incarcerated, the plaintiff and the decedent were married. The decedent, while serving his sentence, was hospitalized because of his failing health, having been diagnosed with stomach cancer in 1985. The plaintiff, while visiting the decedent in the hospital on several different occasions in 1985, had conversations with him regarding the violin he used for more than fifty years as a professional musician. On August 12, 1985, the decedent died while still incarcerated.

During one such visit to the hospital, the decedent asked the plaintiff to retrieve his violin from a member of the Danbury Symphony Orchestra and instructed her to open the violin’s case to locate and examine the materials between the outer shell of the violin case and the canvas cover. She acceded to his request and, in the violin case, found several documents, including several newspaper clippings from 1936. The newspaper clippings were from the New York Times, the New York Evening Post and the New York Herald Tribune, and all of the articles focused on the theft of a valuable Stradivarius violin, known as the Gibson, from Carnegie Hall in 1936. In addition, the plaintiff found with those newspaper clippings a September, 1977 edition of The Strad, a monthly journal for amateurs and professionals of stringed instruments played with a bow. One article in the journal was highlighted in pink, and focused on the 1936 theft of the same Stradivarius violin, which, ironically, the article noted, had been stolen previously in 1919 by a thief who was apprehended and the violin was returned to the owner. After perusing these materials, the plaintiff returned to the hospital to confront the decedent about the contents of the articles.

The plaintiff testified that the decedent told her at first that a friend had shown him the stolen violin and ultimately left it with the decedent in order to see if he could sell it for the Mend. The plaintiff testified that she asked the decedent what his friend who stole the violin looked like. The decedent described the physical features of his friend and then offered that his Mend was “a devil with the ladies,” a gambler and an occasional pickpocket at Grand Central Station when he was short of money. The plaintiff told the decedent that it sounded like he was describing himself, and he ultimately said that she was right and began to tell her the “secrets of [his] violin.” It took several subsequent trips to the hospital to learn the entire story.

The decedent revealed to the plaintiff in detail the cunning scheme to steal a valuable violin. The decedent and his mother had conspired to steal a violin because she always aspired to get the decedent the kind of violin she thought he needed for his career. They planned to steal a violin from a violinist who had two violins and who did not live in the United States — their reasoning, based on his mother’s idea, was that a violinist in this situation would not stay in the area for an inordinate amount of time in order to retrieve the stolen violin. The decedent told the plaintiff that he and his mother, always over tea, would review the then current newspapers and conduct background research in order to determine when an unsuspecting target fit their profile. He said that his mother moved them close to Carnegie Hall and Steinway Hall in order to accomplish this theft. In 1936, at a time when the decedent worked at the Russian Bear, they found their prey when they discovered that Bronislaw Huberman, who had two violins and resided outside of the United States, was scheduled to play at Carnegie Hall.

In order to carry out the scheme, on the day of the theft, the decedent asked his employer at the Russian Bear to excuse him from work because he needed to go home in order to take medicine for his stomach pains. He then went to Carnegie Hall, where he was known because he played in one of the youth symphonies. He gave the guard a Havana cigar and suggested that the guard leave to smoke the cigar while the decedent stood at the guard’s post. After the guard left, the decedent went upstairs to Huberman’s dressing room and, while Huberman was on stage with the orchestra playing his other violin, the decedent placed the Stradivarius under his coat. After leaving the dressing room with the violin concealed, he watched the remainder of the performance standing next to Huberman’s assistant. The decedent then left Carnegie Hall and took a taxicab home, where his mother was waiting. His mother gave him the keys to his locked bedroom and, after he placed the stolen violin on his bed, she gave him the medicine for his stomach pains. He then returned to work at the Russian Bear.

After the decedent’s death, the plaintiff negotiated, through her attorney, with Lloyd’s for the return of the violin. The plaintiff never revealed to Lloyd’s that the decedent had stolen the violin himself, but told Lloyd’s that he had purchased it from a friend who had stolen the Stradivarius. The violin was returned, and in 1988, after it was sold for $1,200,000, the plaintiff received a finder’s fee in the amount of $263,475.75.

The majority indicates that the trial court made no specific finding that the decedent stole the violin. This conclusion, however, ignores the trial court’s extensive memorandum of decision and the premise for its decision that the first thief had superior rights to the stolen property over the second thief. The trial court stated the basis of its decision in the following manner: “[T]he elemental proposition that governs this matter ... [is that] the first thief prevails in an action against subsequent pilferers. ” The memorandum referred to the decedent as the first thief and characterized the plaintiff as the second thief who stole the violin from the estate. More importantly, the majority’s conclusion ignores footnote 2 of the trial court’s memorandum of decision, wherein the court specifically rejected the Probate Court’s finding that the decedent took the secrets about the violin to his grave because, “[a]t the time of the decision in the Bethel Probate Court, there was apparently no evidence as to [the decedent’s] participation in the theft of the Gibson.” The trial court clearly indicated, reading footnote 2 as a whole, that the decedent participated in “the planning and execution of the theft of the [violin].” The trial court also concluded, after reciting the intricate testimony given by the plaintiff, that “[a]s evidenced by the deathbed recitals to [the plaintiff], [the decedent’s] whole life was a fraud. . . . On his deathbed, after a life of silence, however, [the decedent] was finally redeemed by revealing his innermost secret of the violin.”

Nevertheless, whether the decedent himself stole the violin or it was stolen by a third party and he obtained possession with knowledge, one thing is absolutely certain — he had no interest in the violin and it was not an asset of the estate to be included in the inventory. There is no rebuttable presumption of ownership from possession of stolen property belonging to a known owner —the presumption simply does not arise. The same legal treatise the majority cites to support its reasoning also makes clear the limitation of this principle: “The presumption of ownership from possession is true only where the character of the possession is wholly unex plained .... Presumptions concerning title are never allowable against ascertained and established facts. Thus, a presumption of ownership from possession is not allowable against ascertained and established facts to the contrary.” (Emphasis added.) 73 C.J.S. 237, Property § 36 (b) (1983); see also Smith v. Armstrong, 118 Mont. 290, 294, 166 P.2d 793 (1946) (referring to presumption of ownership from possession and stating that “[s]uch presumptions are not allowable against ascertained and established facts”); Hopkins v. Heywood, 86 Vt. 486, 490, 86 A. 305 (1913) (referring to presumption of ownership from possession and stating that “presumptions [cannot] be indulged in concerning the title, for presumptions are never allowed against ascertained and established facts”). Indeed, the parties do not dispute, and the trial court found, that Lloyd’s was the rightful owner of the violin. Therefore, the majority’s foundational premise that there is a presumption of ownership from possession is inapposite to the present situation because of the undisputed facts that the violin was stolen and belonged to Lloyd’s.

Under the circumstances of this case, without the aid of the presumption, neither the violin nor any finder’s fee that flowed from its return should have been listed in the inventory of the estate because the decedent — the thief — had no interest in the violin at the time of his death. It is well settled that the fiduciary, on behalf of the estate, steps into the shoes of the decedent as of the date of his death, with respect to title to the estate property. See Lynch v. Skelly, 138 Conn. 376, 379, 85 A.2d 251 (1951) (“[i]t is basic in our probate law that the legal title to the personal property of a decedent . . . vests in his administrator or executor”).

“It is the duty of the fiduciary to inventory all of the ‘assets’ of the deceased.” G. Wilhelm, Settlement of Estates in Connecticut (2d Ed. 1996) c. 4, § 4:24, p. 4-6. The estate has no greater interest in the personal property of the decedent than the decedent had, because “the law places the executor or administrator in direct succession to the deceased and vests in the fiduciary title to the deceased’s personal estate.” (Emphasis added.) Id., c. 7, § 7:3, p. 1. “If goods, money, or securities belonging to another person lie amongst the goods of the deceased, capable of identification, and they come altogether to the hands of the personal representative, such other person’s things are not to be reckoned among assets of the estate.” J. Schouler, Law of Executors and Administrators (3d Ed. 1901) § 205, p. 290; see Cooper v. White, 19 Ga. 554, 556 (1856); see also Hartwig v. Flynn, 79 Kan. 595, 600, 100 P. 642 (1909) (“It is not perceived how the [fiduciary] could, consistently with the claims of adverse ownership, make an unqualified return that [this personal property] belonged to the estate. An inventory must be verified as just and true . . . and [a fiduciary] who believes that property belongs [to someone else] should not be compelled to swear that it is the property of the estate.” [Citation omitted.]); G. Newhall, Settlement of Estates and Fiduciary Law in Massachusetts (3d Ed. 1937) § 69, p. 160 (“the goods of any third person which were in the decedent’s possession at the time of his death are not assets, but continue to be the goods of such third person, if they can be traced” specifically); Chase v. Chase, 271 Mass. 485, 492, 171 N.E. 651 (1930) (real property of married woman not subject to be included in estate of decedent husband); Patterson v. Pendexter, 259 Mass. 490, 494, 156 N.E. 687 (1927) (bonds belonging to father of decedent). In fact, as noted by the majority, the plaintiff, after the death of the decedent, obtained verification that the instrument was indeed the “long lost Gibson.”

I find it extremely difficult to accept that the decedent’s estate has any interest in property stolen by the decedent or derived from property stolen by the decedent. The only conclusion that can be drawn from the majority today is that the decedent thief had an inchoate interest in the property he had stolen, to the extent of a reward paid by its true owner for its return. That cannot be the law — indeed, such a proposition would clearly be against public policy. Simply put, a thief can have no interest in the property that he or she has stolen and his or her estate cannot derive any gain from that property. Therefore, upon the decedent’s death, there was no interest to which the estate could succeed.

Any reward for the return of the property is a matter between the owner and the person who returned it. Any misrepresentations made by the plaintiff to Lloyd’s with respect to how the decedent may have obtained possession of the property, which induced Lloyd’s to pay the plaintiff a reward for its return, is not an issue in this case.

I respectfully dissent.

       See footnote 8.

       In his will, the decedent bequeathed certain shares of stock to the plaintiff, divided jewelry between the plaintiff and Sherry Altman Schoenwetter, his daughter, and divided the remainder of the estate equally among the plaintiff, Schoenwetter, and Sylvia Altman, his sister.

       Although the Connecticut department of revenue services, inheritance tax division, is a defendant in this action, it submitted no brief in this appeal. References to the defendant in this opinion are to the named defendant Sherry Altman Schoenwetter.

       The estate of Sylvia Altman, the decedent’s sister, is also a defendant in this action.

       General Statutes § 45a-186 provides: “Appeals from probate. Any person aggrieved by any order, denial or decree of a court of probate in any matter, unless otherwise specially provided by law, may appeal therefrom to the superior court for the judicial district in which such court of probate is held, except that any appeal under subsection (b) of section 12-359 or subsection (b) of section 12-367 shall be filed in the judicial district of Hartford-New Britain. Except in the case of an appeal by the state, such person shall give security for costs in the amount of one hundred fifty dollars, which may be paid to the clerk, or a recognizance with surety annexed to the appeal and taken before the clerk or a commissioner of the superior court or a bond substantially in accordance with the bond provided for appeals to the supreme court. Appeals from any decision rendered in any case after a record is made under sections 51-72 and 51-73 shall be on the record and shall not be a trial de novo.”

       “When entertaining an appeal from an order or decree of a Probate Court, the Superior Court taires the place of and sits as the court of probate.” Kerin v. Stangle, 209 Conn. 260, 264, 550 A.2d 1069 (1988); Satti v. Rago, 186 Conn. 360, 365, 441 A.2d 615 (1982). In probate appeals, a Superior Court “may admit any evidence that was received by the Probate Court or could have been received by it . . . [but] may not receive evidence that the Probate Court could not have received because it came into existence subsequent to the Probate Court hearing.” (Citations omitted.) Bishop v. Bordonaro, 20 Conn. App. 58, 64, 563 A.2d 1049 (1989).

       The plaintiff appeals in her individual capacity and in her capacity as executrix of the decedent’s estate.

       In her testimony to the trial court, the plaintiff recounted her death bed conversations with the decedent regarding the violin and asserted her belief that the decedent was the thief who stole the violin from Huberman in 1936. During one such conversation, the decedent instructed the plaintiff to look inside the violin case, between the outer shell and the protective canvas cover. Inside the case, the plaintiff found numerous documents, including articles from the New York Times, the New York Evening Post, and the New York Herald Tribune, circa 1936, recounting the theft of the Gibson. In addition, the canvass case contained a September, 1977 edition of The Strad, a journal for players of stringed instruments, in which a portion of an article detailing the theft of the Gibson was highlighted.
      After reviewing these materials, the plaintiff returned to the hospital and asked the decedent whether the violin was actually the Gibson, to which the decedent responded affirmatively. The plaintiff testified that when she asked how he obtained the violin, the decedent recited different versions. According to the first version, the decedent bought the violin for $100 from a friend who actually had stolen the violin. According to another version, the decedent actually stole the violin himself. The plaintiff also testified that subsequent conversations with the decedent revealed that the decedent and his mother had acted in concert to orchestrate an elaborate plot to steal a valuable violin from a foreign violinist. The decedent’s death bed revelations culminated, according to tire plaintiffs testimony, with his avowal that he was the actual thief.

       The Probate Court made no findings with respect to how the decedent came into possession of the violin.

       R. Boyer, Survey of Property (3d Ed. 1981) pp. 683-84.

       General Statutes § 45a-341 provides in relevant part: “Inventory to be filed. Property included in inventory. Appraisal. Time limits. Sale of personal property. Hearing. Return of sale, (a) (1) An inventory of all the property of every deceased person and insolvent debtor, except real property situated outside the state, duly appraised, shall be made and sworn to by the fiduciary.
      “(2) When any personal property of a deceased person or insolvent debtor is outside of this state the court may receive an inventory of such property, accompanied by such evidence of its value as it deems sufficient and sworn to by the fiduciary.
      “(3) The inventory and appraisal of the estate of any deceased nonresident shall include only such interest as the decedent had at the time of his death in the real property and tangible personal property situated in this state and intangible personal property, provided intangible personal property shall not be included if the proceeding in this state with regard to such estate is ancillary to a proceeding in another jurisdiction.
      “(4) The fiduciary shall appraise or cause to be appraised such inventoried property at its fair market value.
      “(b) (1) The fiduciary shall file the inventory in the court of probate having jurisdiction of the estate of the deceased person or insolvent debtor within two months after the acceptance of the bond or other qualification of the fiduciary. . . .”

       The dissent states that “[t]here is no rebuttable presumption of ownership from possession of stolen property belonging to a known owner,” citing for authority 73 C.J.S. 237, Property § 36 (b) (1983) and two cases. The dissent then quotes from 73 C.J.S. 237, Property § 36 (b) (1983) for the proposition that the presumption of ownership does not arise when there are ascertained and established facts to the contrary. The dissent, however, omits several sentences from the quote, which reads in its entirety: “The presumption of ownership from possession is true only where the character of the possession is wholly unexplained, and is liable to be overcome by any evidence showing the character of the possession. Thus, if the custody and possession of property are shown to be equally consistent with an outstanding ownership in a third person, no presumption of ownership arises solely from possession. However, the presumption of ownership arising from possession may not be rebutted by evidence that the property was in a third person, when offered as a defense by one who claims no title and is a wrongdoer. Presumptions concerning title are never allowable against ascertained and established facts. Thus, a presumption of ownership from possession is not allowable against ascertained and established facts to the contrary.” (Emphasis added.) Id.
      The above quoted language is another way of stating that a subsequent thief may not defend an action brought by a prior possessor by asserting that the prior possessor never had title to the property in question. See Russell v. Stocking, 8 Conn. 236, 241-42 (1830); Goss v. Bisset, 411 S.W.2d 50, 53 (Ky. App. 1967); Thomsen v. State, 70 Wash. 2d 92, 97-98, 422 P.2d 824 (1966). Although the dissent correctly suggests that the presumption of ownership arising from possession is easily rebutted, the dissent incorrectly assumes that the plaintiff — who never claimed to possess title to the violin in her individual capacity, or to be in privity with Lloyd’s, the true owner — had the ability to rebut the presumption. See Russell v. Stocking, supra, 241-42; Goss v. Bisset, supra, 53; Thomsen v. State, supra, 97-98; see also footnote 14 (describing rationale for rule).

       In support of her argument that the violin was not an asset of the decedent’s estate, the plaintiff asserts that the decedent could not have secured a finder’s lee from Lloyd’s during his lifetime and, therefore, that the estate is not entitled to the finder’s fee that she negotiated. The plaintiff, however, stands in a different position than would the decedent had he been alive. She is a fiduciary and as such owes an exclusive duty to the estate to inventory, preserve, and account for any tangible or intangible property possessed by the estate. Since the violin, even if its title was doubtful, was a possession of the estate, she was duty bound, if she was to negotiate to obtain value for it, to negotiate on behalf of the estate, not herself.

       The rationale for the proposition that a converter of property may not defend an action by a prior possessor of the property by asserting that a third person is the true title holder is “the protection of property and the discouragement of breaches of the peace.” R. Boyer, supra, p. 684. “It is a generally recognized rule that possession is itself a protected property right. Hence a possessor, whether he be a bailee or even a converter who had stolen the goods himself, may recover for their damage, conversion or theft while in his possession. As between a possessor and a wrongdoei-, possession is a sufficient title, and only one with a superior title may contest the possessor’s right. . . . [The subsequent converter’s] conduct is wrongful and should be discouraged, not encouraged. [The subsequent converter] should not be allowed to raise the issue of lack of title in the possessor as this would dilute the law’s protection whenever goods were not in the immediate possession of their owner. [The subsequent converter] can only raise the issue of title when he has a superior one to that of the possessor." (Emphasis added.) Id., pp. 683-84. We emphasize that this case does not present a controversy involving the true title owner of the violin, Lloyd’s, but rather requires us to determine the rights to the finder’s fee for the violin as between a subsequent converter and the legatees of the will of a prior possessor.

       The finder’s fee in this case was in essence a reward paid by the owner for the return of its stolen property.

         After payment of the insurance proceeds to Bronislaw Huberman, the person from whom the Stradivarius was stolen, Lloyd’s succeeded to his interest in the violin.

       Although I accept this finding, the trial court’s memorandum of decision sets forth numerous facts that indicate that the plaintiff came into possession of the violin before the death of the decedent when he directed her to retrieve the violin from the Danbury Symphony Orchestra. The recitation of facts in this dissent demonstrates this point.

       The declarations that the decedent made to the plaintiff were admissible under an exception to the hearsay rule. General Statutes § 52-172 provides in pertinent part: “Declarations and memoranda of deceased persons. In actions by or against the representatives of deceased persons . . . the entries, memoranda and declarations of the deceased, relevant to the matter in issue, may be received as evidence. . . .”

       The trial court indicated that the Russian Bear was a restaurant where the decedent, as a young man, regularly played as a violinist in a gypsy orchestra. The Russian Bear was located in the back of the Carnegie Hall building in Manhattan.

       The finder’s fee was 25 percent of the sale price that Lloyd’s received less certain expenses.

       The trial court stated, in the text, of its memorandum of decision, that “[b]ased upon the evidence, this court adopts [the] factual findings [of the Probate Court] and will supplement them at appropriate intervals to reflect the fascinating testimony at trial.”
      Then, in footnote 2 of its memorandum of decision, the trial court stated: “The. court, however, does not adopt, one particular set of findings on the second page of the Probate Court’s memorandum of decision. At the time of the decision in the Bethel Probate Court there was apparently no evidence as to [the decedent’s] participation in the theft of the Gibson. Thus, the Probate Court found that [the decedent] took the secret with him to the grave. During the trial of this matter, however, [the plaintiff] testified to

        fthe decedent’s] recitation, from his deathbed, in exact detail, of the planning and execution of the theft of the [Stradivarius].” (Emphasis added.)

       The trial court found that the true owner of the Stradivarius was Lloyd’s. The trial corut, sitting as the Probate Court on appeal; see Kerin v. Stangle, 209 Conn. 260, 264, 550 A.2d 1069 (1988); indicated, at the very beginning of its memorandum of decision, that “[t]his matter is before the corut on an appeal from the Bethel Probate Court . . . arising out of the Probate Court’s rejection of an interim accounting, prepared by [the plaintiff], which failed to include a $263,475.75 ‘finder’s fee’ received by [the plaintiff] for returning the Gibson Stradivarius violin to its rightful owner, [Lloyd’s].” (Emphasis added.) Pursuant to General Statutes § 45a-98 (a) (3), the trial court, sitting as the Probate Court on appeal, had clear authority to determine title to property.
      General Statutes § 45a-98 provides in pertinent part: “General powers, (a) Courts of probate in their respective districts shall have the power to . . . (3) . . . determine title or rights of possession and use in and to any real, tangible or intangible property that constitutes, or may constitute . . . any decedent’s estate . . . otherwise subject to the jurisdiction of the probate court, including the rights and obligations of any beneficiary of the . . . estate . . . .”

       The majority, in footnote 12 of its opinion, responds to this dissent by citing to authority for the proposition that “the presumption of ownership arising from possession may not be rebutted by evidence that the property was in a third person, when offered as a defense by one who claims no title and is a wrongdoer.” 73 C.J.S. 237, Property § 36 (b) (1983). On the basis of that proposition, the majority indicates that the plaintiff was not entitled to rebut the presumption of ownership. This reasoning, however, misses my point. The majority ignores that part of the rule that there is no presumption “allowable against ascertained and established facts to the contrary.” Id. It was a known fact before the trial court, and upon which all the parlies agreed, that the violin rightfully belonged to Lloyd’s, and was, in fact, returned to Lloyd’s. Because the starting point of the trial court’s decision in this case was that the violin was returned to its rightful owner, the presumption never became operative in the first instance. Simply put, there was no presumption to rebut.

       The majority states that the fiduciary of the estate of a decedent has a fiduciary duty to the estate and must be loyal to his or her trust. I agree, but I do not see what this has to do with property that was in the possession of the decedent, that was stolen by the decedent. The majority fails to explain this. There simply is no duty owed with respect to property stolen by the decedent and owned by a third party.

       Furthermore, even if we assume that there was a dispute about the ownership of the violin, or that somehow the presumption of ownership was relevant, I find it difficult, on the basis of the majority’s analysis, to come to the conclusion that the finder’s fee should have been included in the inventory. It would seem to follow logically, under those circumstances, that rather than the finder’s fee, the value of the violin should have been included in the inventory. The majority, without any explanation, substitutes the finder’s fee for that of the violin.

       General Statutes § 52-564 provides: ‘'Treble damages for theft. Any person who steals any property of another, or knowingly receives and conceals stolon property, shall pay the owner treble his damages.”
      General Statutes § 53a-119 provides in pertinent part: “A person commits larceny when, with intent to deprive another of property or to appropriate the same to himself or a third person, he wrongfully takes, obtains or withholds such property from an owner. . . .”

       The trial court found that the plaintiff misrepresented how the decedent came into possession of the violin. The trial court stated: “In connection with the Gibson being toned over to Lloyd’s, [the plaintiff] never revealed her knowledge that [the decedent] had, himself, stolen the [Stradivarius], Rather, she stuck by the story that [the decedent’s] ‘buddy’ had stolen the [violin] from Huberman at Carnegie Hall and sold it to [the decedent] in the Russian Bear for $100. In 1987, [the plaintiff] gave an interview to People magazine and did not indicate that [the decedent] had stolen the Gibson. The reason for not revealing what she came to know as the truth was that [the decedent’s] sister, Sylvia, was quite ill and ‘poverty-stricken.’ ‘Her beautiful Steinway piano was going through the floorboards of her house. I had a great deal of compassion for her. She had a terrible life with her mother and her brother. And now she had to realize that her brother was going to jail for sexually abusing my granddaughter. That was almost too ' much for her to bear, and I could not put on her shoulders the fact that her mother, who she loved, as most of us do of our mothers, was a crook.’ ”


source: Caselaw Access Project

author: PETERS, J.

license: Public Domain

text:
    SHAILESH GUPTA v. NEW BRITAIN GENERAL HOSPITAL
    (15487)
    Borden, Katz, Palmer, McDonald and Peters, Js.

      Argued October 30
    officially released December 31, 1996

      William A. Wechsler, for the appellant (plaintiff).

      Theodore J. Tucci, with whom was Alicia B. Davenport, for the appellee (defendant).
   PETERS, J.

The principal issue in this case is the proper characterization of a residency agreement pursuant to which a surgical resident was dismissed during the final year of his residency training program. The plaintiff physician, Shailesh Gupta, alleging that he had entered into an employment contract with the defendant, New Britain General Hospital (hospital), brought an action challenging the propriety of his dismissal from the hospital’s residency training program. The trial court granted a motion for summary judgment filed by the hospital. The plaintiff appealed from the judgment of the trial court to the Appellate Court. We transferred the appeal to this court pursuant to Practice Book § 4023 and General Statutes § 51-199 (c) and now affirm the judgment of the trial court.

Because this appeal arises from the granting of summary judgment in favor of the hospital, our review proceeds from a view of the facts in the light most favorable to the plaintiff. See, e.g.,Stradav. Connecticut Newspapers, Inc., 193 Conn. 313, 317, 477 A.2d 1005 (1984). In July, 1985, the hospital appointed the plaintiff to serve as a resident physician in the second year of its five year general surgical residency program. Accordingly, the plaintiff and the hospital entered into a Resident Physician Agreement (residency agreement), which described the objectives of the residency program and specified the mutual obligations of the plaintiff and the hospital. The residency agreement remained in effect for a term of one year only, subject to possible renewal in one year increments upon favorable evaluation of the plaintiff by faculty members in the hospital’s department of surgery.

Shortly after the renewal of the plaintiffs residency agreement for a second year, supervising faculty at the hospital and elsewhere began to express concerns whether the plaintiff would be able to complete his residency citing deficiencies in his clinical skills and in his ability to interact with staff members. These doubts led to the hospital’s decision to place the plaintiff on probation at the time of the renewal of his residency agreement for a third year beginning in July, 1987.

In February, 1988, during the plaintiffs third year at the hospital and while he was still on probation, the hospital’s resident evaluation committee (residency committee) preliminarily determined that there had been insufficient improvement in the plaintiffs clinical performance to justify renewal of his residency agreement for a fourth year. The plaintiff was so warned. The committee decided, however, to defer actual termination of the plaintiffs residency for another ninety days, beginning in March, 1988.

Despite continued doubts as to the plaintiffs performance during this ninety day period, the residency committee nonetheless decided, in July, 1988, by one vote, to renew the plaintiffs residency agreement for a fourth and final year. The committee imposed four specific conditions on the plaintiffs renewal as a resident: (1) the plaintiff had to spend the entire year at the hospital, rather than rotating out to other facilities; (2) the plaintiff could supervise a junior resident in the operating room only if an attending surgeon was also present; (3) the plaintiff was required to obtain professional counseling; and (4) the general surgical section would evaluate the plaintiffs performance on a quarterly, rather than an annual, basis.

At the plaintiffs first quarterly evaluation in September, 1988, the general surgical section unanimously determined that the plaintiff did “not show any potential for being a safe and independent surgeon” and so decided to dismiss Mm. This determination was based on a number of factors, including the plaintiffs inability to make decisions in the operating room, Ms unwillingness to accept responsibility for errors, and gaps in the plaintiffs “knowledge base.” The plaintiff was informed of Ms immediate dismissal from the residency program.

The plaintiff, with the assistance of counsel, exercised all the procedural rights of review afforded to Mm under the hospital’s bylaws. His dismissal was affirmed, first by an ad hoc: committee of the medical staff and, thereafter, by the hospital’s appellate review committee.

After various unsuccessful efforts to challenge his dismissal as a violation of his civil rights and as a result of discriminatory practices, the plaintiff filed the present action seeking damages because of alleged breaches of the residency agreement by the hospital. The plaintiffs complaint alleged that his dismissal violated the residency agreement because the hospital had: (1) failed to honor the obligations inherent in the residency agreement as a contract of employment; (2) failed to provide proper training facilities as required by the residency agreement; (3) acted arbitrarily, capriciously or in bad faith; and (4) violated an implied covenant of good faith and fair dealing.

The hospital moved for summary judgment, which the trial court granted. The court concluded that because “the consistent purpose of the [residency] agreement [was] to provide an educational opportunity,” the plaintiff and the hospital had entered into an educational, rather than employment, relationship. The court, therefore, characterized the decision to dismiss the plaintiff as an academic decision that lay “solely within the province of the medical community.” With respect to the plaintiffs claim that the hospital’s residency program was unreasonable or inadequate, the trial court held that, “without a factual basis,” the plaintiff had failed to state a cause of action for breach of contract on this ground. In the absence of evidence that the hospital had acted “arbitrarily, capriciously or in bad faith,” the trial court held that the plaintiffs dismissal was not a breach of the residency agreement. The trial court did not address explicitly the plaintiffs claim that, in dismissing him, the hospital had violated a covenant of good faith or fair dealing.

On appeal, the plaintiff renews the claims that he made at trial, adding only that the trial court overlooked genuine issues of material fact in granting summary judgment. “The standards governing our review of a trial court’s decision to grant a motion for summary judgment are well established. Practice Book § 384 provides that summary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” (Internal quotation marks omitted.) Doty v. Mucci, 238 Conn. 800, 805, 679 A.2d 945 (1996). Applying these standards, we reject the plaintiffs claims and affirm the judgment of the trial court.

I

In the plaintiffs principal challenge to the trial court’s decision upholding his dismissal, he takes issue with the court’s characterization of the nature of the residency agreement. He contends that the court improperly determined that, as a matter of law, the residency agreement gave rise to an educational, rather than employment, relationship and, therefore, mischaracterized his dismissal as an academic decision, to which courts should normally defer, rather than a termination of employment, which would have limited the scope of the hospital’s discretion. We agree with the trial court’s characterization of the residency agreement.

A proper assessment of the nature of the plaintiffs employment status must take into account the language of the residency agreement as well as any circumstances that might illuminate our interpretation of this language. On the present record, despite the plaintiffs argument to the contrary, this assessment is purely a question of law.

The plaintiff contends that the parties, by emphasizing different portions of the residency agreement that favor their respective interpretations of that agreement, implicitly demonstrated that material facts were in dispute. These “facts,” he contends, were not properly considered by the trial court in its decision to grant summary judgment. We disagree.

It is well settled that, for purposes of summary judgment, the moving party “has the burden of showing the absence of any genuine issue [of] material facts which, under applicable principles of substantive law, entitle him to a judgment as a matter of law . . . and the party opposing such a motion must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact.” (Citations omitted; emphasis added; internal quotation marks omitted.) Doty v. Mucci, supra, 238 Conn. 805-806. Merely alluding to disputed material facts, however, without providing substantiation, does not sufficiently establish those facts to preclude summary judgment. See, e.g., Strada v. Connecticut Newspapers, Inc., supra, 193 Conn. 317.

The plaintiff has failed to identify any disputed issues of material fact relevant to the characterization of his relationship with the hospital or his subsequent dismissal from the residency program. Moreover, he has offered no evidence that the parties’ relationship should be interpreted by reference to conditions, statements, or any other circumstances not contemplated by the language of the residency agreement. Cf. Banerjee v. Roberts, 641 F. Sup. 1093, 1105-1106 (D. Conn. 1986) (question of fact arises with respect to resident’s relationship with hospital where extrinsic statements made regarding terms of residency); Torosyan v. Boehringer Ingelheim Pharmaceuticals, Inc., 234 Conn. 1, 13-14, 662 A.2d 89 (1995) (implied employment contract infer-able from words spoken between parties). The plaintiffs own affidavit, which was the only evidence proffered in opposition to the hospital’s motion for summary judgment, merely lists some of the “non-educational, service oriented tasks” that the plaintiff performed during his residency. Because the plaintiffs performance of these tasks is undisputed, this evidence does not give rise to a question of fact regarding the proper characterization of his relationship with the hospital with respect to his dismissal for his professional failings. The plaintiffs conclusory statements, in the affidavit and elsewhere, that he and the hospital had entered into an “employment contract” do not constitute evidence sufficient to establish the existence of disputed material facts. See Wadia Enterprises, Inc. v. Hirschfeld, 224 Conn. 240, 250, 618 A.2d 506 (1992).

In the absence of any question of fact, the proper characterization of the residency agreement, as a matter of law, implicates a number of factors, including the language of the agreement, the purpose of the parties in entering into the agreement, and the institutional setting of the agreement. With respect to the dismissal of a resident based on his failure to attain the necessary level of clinical competence, we agree with the trial court that an analysis of these factors, in their entirety, compels the conclusion that the hospital’s decision to dismiss the plaintiff was an educational and not an employment decision.

The language of the residency agreement bears many indicia of a contract for educational services. In its first sentence, the agreement provides that “[t]he general objectives of the Program are to provide to the Physician a proper educational experience in the professional field encompassed by the Program while simultaneously providing to the Hospital’s patients a high quality of health care.” (Emphasis added.) The agreement further provides that “[t]he Program covered by this Agreement is a part of an overall program of education provided at the Hospital.” (Emphasis added.) To facilitate this learning experience, the hospital promises to “maintain its staffing and facilities so as . . .to provide a proper educational setting for the Program.” (Emphasis added.)

Other parts of the residency agreement contain provisions, however, that are indicative of an employer-employee relationship. Thus, the agreement provides that the plaintiff “will be paid a weekly salary at a rate of $22,800.00 per year” and that “[t]he Hospital will provide to the Physician . . . insurance coverage and other benefits . . . .” The agreement assures the plaintiff that he will receive “such holidays, vacation time and leaves of absence as may be set forth in the Hospital’s general schedule of employee benefits.” The agreement promises that the plaintiff, during his term at the hospital, “will be a member of the Hospital’s Medical Staff, having all of the rights and responsibilities attendant upon such membership . . . .”

The trial court concluded that, despite the employment aspects of the residency agreement, its “consistent purpose” was “to provide an educational opportunity.” Implicitly drawing on cases in which courts have had to decide whether residents are “students” or “employees” for the purpose of collective bargaining, the trial court found that the primary purpose of this contract was educational because, in the court’s view, “without the educational component of the [agreement], the plaintiff would/could not have participated” in the residency program. Having thus discerned the agreement’s primary purpose, the court concluded that the hospital’s decision to dismiss the plaintiff was a proper exercise of its academic responsibility for residency training.

Although we agree with the trial court’s ultimate conclusion, we are not persuaded that a singular search for the primary purpose or purposes of the parties is determinative of the rights of the parties in this case. On its face, the residency agreement created a hybrid relationship containing both employment and educational features. See Regents of the University of Michigan v. Michigan Employment Relations Commission, 389 Mich. 96, 112, 204 N.W.2d 218 (1973) (“residents . . . are both students and employees”); House Officers Assn. v. University of Nebraska Medical Center, 198 Neb. 697, 701-702, 255 N.W.2d 258 (1977) (same); Seare v. University of Utah School of Medicine, 882 P.2d 673, 677 (Utah App. 1994), cert. denied, 892 P.2d 13 (Utah 1995) (noting existence of “two types of relationships” in a residency program: employment and education). Because of the hybrid nature of the residency agreement, we conclude that the agreement is more properly interpreted, under any particular set of circumstances, by a functional analysis of its terms in relationship to the nature of the alleged breach, rather than by an overarching search for the purpose or purposes of the parties. See Ross v. University of Minnesota, 439 N.W.2d 28, 32 (Minn. App. 1989) (“[wjhether the resident is considered an employee or a student depends on the context in which the question [and a cause of action] arises”).

In this case, the plaintiff was dismissed as a result of the hospital’s decision that he was not then, and would not likely become, a safe and independent surgeon. Such a decision has little to do with the normal attributes of an employee relationship. It implicates, instead, the academic core of the residency agreement. See Ross v. University of Minnesota, supra, 439 N.W.2d 33.

A residency training program provides medical school graduates with the clinical training necessary for board certification in specialty or subspecialty areas. See footnote 2. A residency is, in many respects, part of an educational continuum begun in medical school. See S. Reuter, “Professional Liability in Postgraduate Medical Education,” 15 J. Legal Med. 485 (“[residents are physicians in transition”). The ultimate objective of the residency program is to educate the physician in the healing arts. Rather than relying on book study alone, a residency program achieves this result by involving the physician in day-to-day patient care and specialized clinical activities. Id., 487.

Residency program supervisors, like medical school professors, are responsible for evaluating a resident’s progress and offering suggestions for improvement. See, e.g., D. Langsley, “Evaluation During Residency,” in How to Evaluate Residents (J. Lloyd & D. Langsley, eds. 1986) pp. 11, 12. A residency committee’s decision to dismiss a resident physician for poor performance in the clinic mirrors a professor’s decision to fail a medical school student for poor performance in the classroom. See Ross v. University of Minnesota, supra, 439 N.W.2d 33 (“[t]he decision to terminate a resident from a hospital-based residency program is the same as any other decision to fail a graduate student for inability to meet academic requirements”). As Justice Powell observed in Board of Curators v. Horowitz, 435 U.S. 78, 95, 98 S. Ct. 948, 55 L. Ed. 2d 124 (1977) (Powell, J., concurring), “[c]valuation of . . . performance in the [clinical] area is no less an ‘academic’ judgment because it involves observation of . . . skills and techniques in actual conditions of practice, rather than assigning a grade to . . . written answers on an essay question.” We conclude, accordingly, that the hospital’s decision to dismiss the plaintiff for poor clinical performance constituted an academic, rather than an employment, decision.

The plaintiff advances two reasons in support of his argument that his dismissal was nonetheless employment related. According to the plaintiff, the hospital is his employer, as a matter of law, because it controls his work and because it is not itself apart of a university, school or college. We disagree.

The plaintiffs first argument relies on “right to control” cases as evidence of his status as the hospital’s employee. See Silverberg v. Great Southwest Fire Ins. Co., 214 Conn. 632, 639, 573 A.2d 724 (1990). We have used the “right to control” test to distinguish between an independent contractor and an employee. See, e.g., Hunte v. Blumenthal, 238 Conn. 146, 154, 680 A.2d 1231 (1996); Silverberg v. Great Southwest Fire Ins. Co., supra, 639. That test has no relevance, however, to the criteria for differentiation between a student and an employee. Indeed, it is a premise of the “right to control” test that what is at issue is the control of “the means and methods of work”; Silverberg v. Great Southwest Fire Ins. Co., supra, 639; thus assuming the very point that is presently at issue.

The plaintiffs second claim is that the term “hospital” cannot be defined to include “educational facility” and that the educational aspects of the residency program do “not change the hospital into a school, college, or university.” Assuming the validity of this distinction, he argues that he could not have been a “student” at the hospital. We decline to accept the proposition that hospitals can never be educational facilities. In conducting the residency program in this case, the hospital assumed educational responsibilities related to, but distinct from, its function as an institution for healing the sick. The plaintiff concedes as much in his pleadings. The fact that the hospital may be independent of a university system or may otherwise provide health services to the general public does not alter this conclusion. See, e.g., Training Physicians: The Case of Internal Medicine (C. Kohrman et al. eds., 1994) p. 284 (conducting study of residency programs in hospitals not affiliated with a medical school).

For all the reasons stated above, we hold that, in the circumstances of this case, the plaintiffs dismissal implicated the educational component of the residency agreement and was, therefore, an academic decision. In light of this conclusion, we must consider the merits of the plaintiffs other challenges to the validity of his dismissal.

II

Even if his dismissal was properly grounded in academic reasons, the plaintiff maintains that, for three other reasons, the hospital’s decision did not comport with its contractual obligations to him. In his view, the hospital: (1) failed to provide him with appropriate training; (2) discharged him arbitrarily, capriciously, or in bad faith; and (3) violated its obligation of good faith and fair dealing. Like the trial court, we are persuaded by none of these contentions.

A

The plaintiff claims that the hospital, in breach of the residency agreement, failed to provide him a residency program that “would reasonably and adequately train him” and that was “in accordance with the standards established for teaching hospitals.” The trial court recognized that this claim, as a matter of law, was consistent with the court’s determination that the residency agreement manifested an educational undertaking, but concluded that, as a matter of fact, the plaintiff had not submitted evidence of disputed material facts sufficient to rebut the hospital’s motion for summary judgment. We agree.

The plaintiffs claim that the hospital failed to provide him adequate training must be put into context. “Where the essence of the complaint is that [an educational institution] breached its agreement by failing to provide an effective education, the court is . . . asked to evaluate the course of instruction [and] called upon to review the soundness of the method of teaching that has been adopted by [that] educational institution.” (Internal quotation marks omitted.) Ross v. Creighton University, 957 F.2d 410, 416 (7th Cir. 1992). This is a project that the judiciary is ill equipped to undertake. See id.; Donohue v. Copiague Union Free School District, 47 N.Y.2d 440, 445, 391 N.E.2d 1352, 418 N.Y.S.2d 375 (1979); Cavaliere v. Duff’s Business Institute, 413 Pa. Super. 357, 370, 605 A.2d 397 (1992).

In reality, a claim such as that advanced by the plaintiff “raise[s] questions concerning the reasonableness of conduct by educational institutions in providing particular educational services to students — questions that must be answered by reference to principles of duty, standards of care, and reasonable conduct associated with the law of torts.” Cencor, Inc. v. Tolman, 868 P.2d 396, 399 (Colo. 1994) (en banc). Because these tort principles are difficult, if not impossible, to apply in the academic environment, courts have almost universally held that claims of “educational malpractice” are not cognizable. Among other problems for adjudication, these claims involve the judiciary in the awkward tasks of defining what constitutes a reasonable educational program and of deciding whether that standard has been breached. See, e.g., Peter W. v. San Francisco Unified School District, 60 Cal. App. 3d 814, 825, 131 Cal. Rptr. 854 (1976) (finding no “conceivable ‘workability of a rule of care’ against which [teachers’] alleged conduct may be measured”). In entertaining such claims, moreover, courts are required “not merely to make judgments as to the validity of broad educational policies . . . but, more importantly, to sit in review of the day-to-day implementation of these policies.” Donohue v. Copiague Union Free School District, supra, 47 N.Y.2d 445.

The jurisprudential considerations that shed doubt on the viability of the tort of educational malpractice also inform our analysis of a contract claim based on inadequate educational services. See Ross v. Creighton University, 740 F. Sup. 1319, 1331 (N.D. Ill. 1990), rev’d in part on other grounds, 957 F.2d 410 (7th Cir. 1992) (“the policies forbidding the tort of educational malpractice likewise forbid a breach of contract claim based upon allegedly inferior instruction”); Paladino v. Adelphi University, 89 App. Div. 2d 85, 89, 454 N.Y.S.2d 868 (1982) (“the soundness of [the] policy of noninterference is equally applicable when the action is . . . formulated in contract”). It is as a result of these considerations that contract claims challenging the overall quality of educational programs “have generally been rejected.” Cencor, Inc. v. Tolman, supra, 868 P.2d 398; see also Ross v. Creighton University, supra, 957 F.2d 416; Hunter v. Board of Education, 292 Md. 481, 489-90 n.5, 439 A.2d 582 (1982); Torres v. Little Flower Children’s Services, 64 N.Y.2d 119, 128, 474 N.E.2d 223, 485 N.Y.S.2d 15 (1984), cert. denied, 474 U.S. 864, 106 S. Ct. 181, 88 L. Ed. 2d 150 (1985); Paladino v. Adelphi University, supra, 89-90.

Judicial noninterference is especially appropriate in cases like the present one, in which the focus of a breach of contract claim is an allegedly inadequate residency program. See Swidryk v. St. Michael’s Medical Center, 201 N.J. Super. 601, 606-607, 493 A.2d 641 (1985) (recognizing resident’s claim for educational malpractice would infringe on administrative and legislative authority). Specialized bodies, such as the accreditation council for graduate medical education (accreditation council), currently have the responsibility of overseeing and regulating residency programs, including the one offered by this hospital. In this state, successful completion of a program accredited by the accreditation council is a prerequisite to obtaining a license to practice medicine and surgery. Public Acts 1995, No. 95-271; General Statutes § 20-13. In light of the highly specialized nature of patient care, these external regulators are better suited than are courts to evaluate the effectiveness of a residency program.

There are, however, at least two situations wherein courts will entertain a cause of action for institutional breach of a contract for educational services. The first would be exemplified by a showing that the educational program failed in some fundamental respect, as by not offering any of the courses necessary to obtain certification in a particular field. See Wickstrom v. North Idaho College, 111 Idaho 450, 452, 725 P.2d 155 (1986); Ross v. Creighton University, supra, 957 F.2d 417. The second would arise if the educational institution failed to fulfil a specific contractual promise distinct from any overall obligation to offer a reasonable program. See, e.g., Cencor, Inc. v. Tolman, supra, 868 P.2d 399; Paladino v. Adelphi University, supra, 89 App. Div. 2d 92.

In this case, the plaintiff has neither alleged nor presented factual evidence of a fundamental failure on the part of the hospital’s residency program. Rather, his claims fall into two categories: (1) general allegations of inadequacy; and (2) more specific allegations that the hospital failed to attain “the standards established for teaching hospitals.” With regard to the first category, the plaintiff has done no more “than simply allege that the education was not good enough.” Ross v. Creighton University, supra, 957 F.2d 416-17. This, in turn, is insufficient to state a cause of action. See id.; Cencor v. Tolman, supra, 868 P.2d 398. With regard to the second category, the hospital’s alleged failure to live up to the promise contained in the residency agreement that the hospital “is, and will continue to be, properly accredited by all necessary accrediting authorities,” the plaintiff failed to adduce, in the trial court, any evidence either that the hospital had lost its accreditation or that its accreditation was in serious jeopardy.

We conclude, accordingly, that the trial court properly determined that the plaintiffs second claim was “without a factual basis” and, therefore, properly granted summary judgment in favor of the hospital on this claim. See Doty v. Mucci, supra, 238 Conn. 805-806.

B

The plaintiff further contends that his dismissal was improper, even as an academic decision, because the decision to terminate his residency resulted from arbitrary, capricious, and bad faith conduct by the hospital. The trial court rejected this claim, finding that the plaintiff had failed to allege or to offer evidence in its support. We agree.

As with the plaintiffs claim of deficiencies in his hospital training, we approach with caution, and with deference to academic decisionmaking, the plaintiffs challenge to the motivation of the hospital in terminating his residency. “Like the decision of an individual professor as to the proper grade for a student in his course, the determination whether to dismiss a student for academic reasons requires an expert evaluation of cumulative information and is not readily adapted to the procedural tools of judicial or administrative decisionmaking.” Board of Curators v. Horowitz, supra, 435 U.S. 90; see also Regents of the University of Michigan v. Ewing, 474 U.S. 214, 225-26, 106 S. Ct. 507, 88 L. Ed. 2d 523 (1985); Doherty v. Southern College of Optometry, 862 F.2d 570, 576 (6th Cir. 1988), cert. denied, 493 U.S. 810, 110 S. Ct. 53, 107 L. Ed. 2d 22 (1989); Lekutis v. University of Osteopathic Medicine & Health Services, 524 N.W.2d 410, 413 (Iowa 1994); Abbariao v. Hamline University School of Law, 258 N.W.2d 108, 112 (Minn. 1977); Olsson v. Board of Higher Education, 49 N.Y.2d 408, 416, 402 N.E.2d 1150, 426 N.Y.S.2d 248 (1980); cf. Mahavongsanan v. Hall, 529 F.2d 448, 450 (5th Cir. 1976) (for dismissal grounded in disciplinary, rather than academic, reasons, courts appropriately may engage in more thorough due process analysis).

Judicial circumspection is particularly warranted in the context of academic decisions concerning medical competency. Put simply, “courts are not supposed to be learned in medicine and are not qualified to pass opinion as to the attainments of a student in medicine.” Connelly v. University of Vermont & State Agricultural College, 244 F. Sup. 156, 160-61 (D. Vt. 1965); see also Jansen v. Emory University, 440 F. Sup. 1060, 1063 (N.D. Ga. 1977), aff'd, 579 F.2d 45 (5th Cir. 1978) (per curiam); Burke v. Emory University, 177 Ga. App. 30, 32, 338 S.E.2d 500 (1985); cf. Owens v. New Britain General Hospital, 229 Conn. 592, 606, 643 A.2d 233 (1994) (judicial deference accorded hospital administration’s decision to revoke staff privileges).

Educational discretion is, nonetheless, not limitless. The plaintiff properly observes that, in exercising its professional judgment, an educational institution does not have license to act arbitrarily, capriciously, or in bad faith. Such a substantial departure from academic norms may implicate substantive due process; see Regents of the University of Michigan v. Ewing, supra, 474 U.S. 224; or may constitute the breach of an educational contract by a private institution. See Doherty v. Southern College of Optometry, supra, 862 F.2d 577 (implicit in contract is promise not to act capriciously or arbitrarily); Paulsen v. Golden Gate University, 25 Cal. 3d 803, 808-809, 602 P.2d 778, 159 Cal. Rptr. 858 (1979) (en banc) (applying arbitrary and capricious standard to private school).

In the present case, therefore, the issue is not the jurisprudential basis for the plaintiff’s claim but its factual underpinning. The plaintiff bears a heavy burden in proving that his dismissal resulted from arbitrary, capricious, or bad faith conduct on the part of the hospital. To prevail, he must show that the hospital’s decision had no “discemable rational basis.” See Holert v. University of Chicago, 751 F. Sup. 1294, 1301 (N.D. Ill. 1990). To rebut the hospital’s motion for summary judgment, the plaintiff was required, therefore, to provide an evidentiary foundation to demonstrate the existence of material facts in this regard. See Doty v. Mucci, supra, 238 Conn. 805-806.

The plaintiff contends that the affidavit he submitted in opposition to the hospital’s motion for summary judgment was sufficient to meet his evidentiary burden. We disagree. Read liberally, the plaintiffs affidavit shows only that the plaintiffs performance was not so deficient as to warrant his dismissal until the final year of his residency and that, in some respects, the plaintiff had performed satisfactorily up to that point. The plaintiff, in effect, asks us to conclude that a reasonable fact finder could have inferred from these observations that: (1) he was a qualified resident; and that, therefore, (2) the hospital’s decision to dismiss him was based on caprice or motivated by bias. We decline to construct such inferential bridges or to substitute the plaintiffs appraisal of his performance for that of the hospital. See Haynes v. Hinsdale Hospital, 872 F. Sup. 542, 545 (N.D. Ill. 1995) (plaintiffs difference in judgment with regard to her performance does not constitute genuine issue of material fact).

We conclude that the plaintiff failed to adduce material facts to survive a motion for summary judgment on his claim of arbitrariness, capriciousness, or bad faith on the part of the hospital. The trial court’s decision to this effect must, therefore, be upheld.

C

The plaintiffs final claim is that the hospital, even in the exercise of its academic judgment, dismissed him improperly because his dismissal violated the hospital’s implied covenant of good faith and fair dealing. The trial court, without explicitly addressing this claim, determined that the hospital had been sensitive to the plaintiffs shortcomings and had “set up elaborate procedural mechanisms to insure fairness” in the dismissal process. Accordingly, the trial court found that the hospital had not acted in bad faith. The plaintiff now contends that the “litany of bad faith actions” cited in his affidavit compels a reversal of the trial court’s decision. We disagree.

The two principles that govern the plaintiffs claim are undisputed. “Every contract carries an implied covenant of good faith and fair dealing requiring that neither party do anything that will injure the right of the other to receive the benefits of the agreement.” Habetz v. Condon, 224 Conn. 231, 238, 618 A.2d 501 (1992). “Bad faith means more than mere negligence; it involves a dishonest purpose.” Id., 237.

In this case, the plaintiff has failed to articulate how an implied covenant of good faith and fair dealing provides greater protections than that afforded him under the arbitrary, capricious, and bad faith standard described in part IIB of this opinion. Even if a different argument theoretically could be mounted, we would, nonetheless, have to conclude that the plaintiff has failed to offer any independent evidentiary foundation to substantiate this claim. See Doty v. Mucci, supra, 238 Conn. 805-806.

The affidavit submitted by the plaintiff to rebut the hospital’s motion for summary judgment fails to identify any material facts in dispute and fails to provide an evidentiary foundation in support of his claim of breach of an implied covenant of good faith and fair dealing. The plaintiff suggests that, by occasionally offering the plaintiff positive feedback and by delaying his dismissal until he had already been promoted to his fourth year, the hospital acted pursuant to some sinister motive. We discern no such malevolence. It is more plausible, by far, that the hospital’s actions demonstrate its patience and willingness to allow the plaintiff to overcome his performance deficiencies. We conclude, accordingly, that the trial court properly granted summary judgment in favor of the hospital on this claim.

The judgment is affirmed.

In this opinion the other justices concurred.

       Because the plaintiff had completed a prior year of residency work at another hospital, in Cleveland, Ohio, he joined the hospital’s program as a second year resident.

       Generally, medical school graduates participate in a hospital based residency program in order to train in certain specialty or subspecialty areas. See Dorland’s Illustrated Medical Dictionary (27th Ed. 1988) p. 1448. Successful completion of a residency program is a prerequisite for board certification in particular specialties. See, e.g., S. Reuter, “Professional Liability in Postgraduate Medical Education,” 15 J. Legal Med. 485, 486 (1994). Under Connecticut law, it is necessary to complete no less than two years of accredited residency program work in order to obtain a license to practice medicine or surgery. See Public Acts 1995, No. 95-271, § 1; General Statutes § 20-13.

       The agreement provided in relevant part:
      “RESIDENT PHYSICIAN AGREEMENT
      (Residents, Interns and Fellows)
      THIS AGREEMENT has been entered into on July 1, 1985 between NEW BRITAIN GENERAL HOSPITAL, a Connecticut corporation having its principal office at 100 Grand Street, New Britain, Connecticut (the ‘Hospital’), and Shailesh Gupta, M.D., residing at 1890 Surrey Place, Gates Mills, OH 44040 (the ‘Physician’).
      The Physician has been duly appointed to serve as a(n) PGY-II in the Hospital’s General Surgical Residency program (the ‘Program’) during the period from July 1, 1985 through June 30, 1986. The Program will be conducted under the general supervision of the Chief of Surgery (the ‘Program Director’). This Agreement will set forth the respective rights and duties of the parties as participants in the Program.
      IN CONSIDERATION OF their mutual promises and undertakings, the parties to this Agreement hereby agree as follows:
      (1) The Program.
      The general objectives of the Program are to provide to the Physician a proper educational experience in the professional field encompassed by the Program while simultaneously providing to the Hospital's patients a high quality of health care. The Hospital represents that the Program is, and will continue to be, properly accredited by all necessary accrediting authorities. The Hospital will maintain its staffing and facilities so as to maintain such accreditation and to provide a proper educational setting for the Program. The Physician’s duty time in the Program will be scheduled by the Program Director with due regard for the needs of Hospital patients and the educational interests of the Physician.
      The Program covered by this Agreement is a part of an overall program of education provided at the Hospital. If the Program is not the concluding part of such an overall program and if the Physician successfully fulfills his or her obligations under this Agreement during the Program period and is recommended for advancement by the Program Director, the Hospital will renew this Agreement for the subsequent part, of the overall program upon terms to be agreed upon at the time of renewal. If the Program is the concluding part of such an overall program and if the Physician successfully fulfills his or her obligations under this Agreement during the Program period, the Hospital will certify in proper fashion that the Physician has successfully completed the overall Program. . . .
      (2) Obligations of the Physician.
      The Physician agrees to fulfill all educational requirements of the Program and further to provide safe, effective and compassionate health care to Hospital patients during the Program period. Furthermore, the Physician shall comply with all laws, bylaws, rules, regulations and policies to which 1he Hospital is subject or which the Hospital shall from time to time adopt and shall exhibit professional conduct at all times while on duty or engaged in any activity under the auspices of the Hospital. The Physician shall comply with all proper directives and instructions of the Program Director.
      During the term of this Agreement, the Physician will be a member of the Hospital’s Medical Staff, having all of the rights and responsibilities attendant upon such membership as set forth in the Hospital and Medical Staff Bylaws or as modified by this Agreement. Subject to prior approval by the Program Director, the Physician may engage in any outside activity which does not interfere with his or her obligations under this Agreement.
      (3) Compensation and Benefits.
      During the Program period, the Physician will be paid a weekly salary at a rate of $22,800.00 per year. Salary increments will be provided at the time of renewal of this Agreement or otherwise in accordance with general Hospital policy from time to time in effect. The Hospital will provide to the Physician such insurance coverage and other benefits as are set forth in the Hospital’s general schedule of employee benefits from time to time in effect. The Physician acknowledges that professional liability insurance coverage provided by the Hospital will not extend to any of the Physician’s activities outside of the Program.
      Except as otherwise expressly stated in this Section 3, the Physician will be entitled to such holidays, vacation time and leaves of absence as may be set forth in the Hospital’s general schedule of employee benefits. The scheduling of any holidays, vacation time or leaves of absence for the Physician shall be subject to the prior approval of the Program Director having due regard for patient coverage, rounds, on-call requirements and educational requirements of the Program. The Hospital shall reimburse the Physician for qualifying educational expenses in the aggregate amount of $0.00 incurred during the Program period. . . .
      IN WITNESS [WHEREOF], the Hospital and the Physician have duly executed this House Staff Physician Agreement as of the day and year first set forth above. . . .
      NEW BRITAIN GENERAL HOSPITAL
      s/ Gerald D. Strauch, M.D.
      PHYSICIAN
      s/ Shailesh Gupta, M.D. (L.S.)
      7/2/85”

       The plaintiff had “rotated out” to other hospitals, including the Shriners Burns Institute in Boston and the University of Connecticut Health Center.

       In his affidavit, the plaintiff states that he was the only resident promoted to the final year of the program.

       In this litigation, the plaintiff has not challenged the adequacy of these procedures.

       The plaintiffs action for injunctive relief, filed first in state court, was removed by the hospital to federal court because the plaintiff had sought relief, in part, under 42 U.S.C. § 1983. The federal court dismissed the § 1983 claim and remanded the case to state court. After a hearing, the Superior Court, O’Neill, J., denied the plaintiffs request, and the Appellate Court dismissed his appeal for lack of a final judgment. That action was subsequently dismissed for failure to prosecute. The plaintiffs attempt to revive it under the accidental failure of suit statute; General Statutes § 52-592; was dismissed as untimely.

       The Equal Employment Opportunity Commission dismissed, for lack of evidence, his claim that the hospital had discriminated against him. A federal court action was similarly dismissed.

       The trial court first determined that the plaintiffs contract claims were properly before the court despite the plaintiffs earlier pursuit of other judicial remedies related to Iris discharge. The hospital does not challenge this determination.

       In the statutory context of labor laws governing collective bargaining, some courts, focusing on the subjective intention of residents, have held that residents are not employees because they choose to serve at a hospital for educational reasons and not for monetary remuneration. See Cedars-Sinai Medical Center, 223 N.L.R.B. 251, 253, 91 L.R.R.M. 1398 (1976); see also Philadelphia Assn. of Interns & Residents v. Albert Einstein Medical Center, 470 Pa. 562, 568-69, 369 A.2d 711 (1976). Other courts, looking more to the objective characteristics of the residency relationship in its entirety, have considered such residents to be employees. See, e.g., Regents of the University of California v. Public Employment Relations Board, 41 Cal. 3d 601, 618-20, 715 P.2d 590, 224 Cal. Rptr. 631 (1986); see also Regents of the University of Michigan v. Michigan Employment Relations Commission, 389 Mich. 96, 110-12, 204 N.W.2d 218 (1973).
      These precedents are of limited relevance for two reasons. First, the mission of the courts in these cases was one of statutory construction and, accordingly, centered on ascertaining the intent of their respective legislatures. See, e.g., House Officers Assn. v. University of Nebraska Medical Center, 198 Neb. 697, 703-704, 255 N.W.2d 258 (1977) (state legislature intended residents to be included as employees). Second, because the statutes at issue required a definitive categorization of the status of residents, both the subjective and the objective tests were designed to yield a categorical answer to the question of whether residents serve as employees or as students. See Regents of the University of Michigan v. Michigan Employment Relations Commission, supra, 389 Mich. 112 (observing that employee and student categories are not "mutually exclusive” but nonetheless affirming residents’ status as employees). Proper characterization of the residency agreement in this case does not require us to adopt a monochrome vision of the resident as either student or employee under any or all circumstances.

       Arthur Corbin commented perceptively on the utility of a judicial search for the principal purpose of a contract when he wrote: “How is a court to discover what was the principal purpose of the parties or whether they had any? It is certain, in practically all business transactions, that they had different purposes, at least in part. Their principal purpose, or their separate and diverse purposes, can not be determined by a process that is wholly independent of the words of the agreement.” 3 A. Corbin, Contracts (1960) § 545, p. 160.

       The plaintiff does not allege that the hospital, for example, lowered his salary, eliminated his vacation times, or retracted his insurance benefits.

       The plaintiff defines a hospital as “[a]n institution for the treatment and cure of sick, wounded, infirm or aged persons . . . .” See Black’s Law Dictionary (6th Ed. 1990).

       In paragraphs twenty and twenty-one of his amended complaint, the plaintiff alleges that the hospital failed to offer him a “training program that would reasonably and adequately train him” and failed to comply with the “standards established for teaching hospitals.” (Emphasis added.) See part IIA of this opinion.

       In educational malpractice cases, a plaintiff sues his or her academic institution for tortiously failing to provide adequate educational services; see, e.g., Peter W. v. San Francisco Unified School District, 60 Cal. App. 3d 814, 131 Cal. Rptr. 854 (1976); or for tortiously failing to diagnose educational impediments. See, e.g., Hoffman v. Board of Education, 49 N.Y.2d 121, 400 N.E.2d 317, 424 N.Y.S.2d 376 (1979); see generally, D. Morgan, “Liability for Medical Education,” 8 J. Legal Med. 305, 307-15 (1987).

       On appeal, the plaintiff contends that the accreditation council’s allegedly poor evaluation of the hospital’s residency program demonstrates that material facts were in dispute with regard to the hospital’s maintenance of accreditation standards. The plaintiff never offered this evidence at trial, either in response to the hospital’s motion for summary judgment or in conjunction with his motion for reconsideration of the trial court’s decision granting summary judgment. Whatever its worth, this factual material, “raise[d] for the first time on appeal cannot he adequately explored at this stage of the proceeding.” Beechwood Gardens Tenants’ Assn. v. Dept. of Housing, 214 Conn. 505, 516, 572 A.2d 989 (1990).

       Medical malpractice cases, on which the plaintiff relies in arguing for greater judicial scrutiny, are distinguishable because, in those cases, the trier of fact judges a physician’s performance against a standard of care based on a reasonably prudent health care provider. See General Statutes § 52-184c (a) (statutory standard of care for medical malpractice cases). Such an objective standard is irrelevant with respect to the dismissal of a resident who, in the subjective evaluation of his supervisors, is found to be incapable of completing his course of study.

       As the trial court noted, the plaintiff failed to allege that the hospital had acted arbitrarily, capriciously, or in bad faith. Normally, this failure would be sufficient to uphold the trial court’s determination. See Robert S. Weiss & Associates, Inc. v. Wiederlight, 208 Conn. 525, 537, 546 A.2d 216 (1988). The plaintiff asserts, however, that paragraph twenty-four of his complaint, in which he alleges a breach of a covenant of good faith and fair dealing, constitutes sufficient pleading of his claim of arbitrariness, capriciousness, or bad faith. We will assume, for purposes of this discussion, that this lone paragraph is sufficient to plead his claim. See O’Connor v. Dory Corp., 174 Conn. 65, 68-69, 381 A.2d 559 (1977) (construing allegations in light most favorable to pleader).

       In his brief, the plaintiff makes reference to the following “underlying facts,” gleaned from his affidavit, which, he claims, show the alleged arbitrary, capricious, and bad faith nature of the hospital’s decision to dismiss him: (1) the plaintiff was promoted through to the final year of the residency program and began his final year as chief resident; (2) tire plaintiff was one of two residents selected to continue in the third year program; (3) from July, 1988, through the date of his dismissal in September, 1988, the plaintiff performed over 100 surgical procedures, at no time endangering the life or safety of any patient; (4) from July, 1988, through the date of his dismissal, the plaintiff did not receive any negative written or oral evaluations of his performance; and (5) in September, 1988, the hospital’s general surgical section met and, without notice to the plaintiff, voted to dismiss him from the residency program.

       To the extent that the plaintiff is alleging that the hospital made its decision to dismiss him hastily and without proper procedural protections, this argument founders under the overwhelming weight of count availing evidence. The hospital warned the plaintiff that his performance was deficient, placed him on probation to begin his fourth year, afforded him a hearing to challenge his dismissal, and then provided him with an internal appeals process. We cannot but, conclude that “[t]he record unmistakably demonstrates [that the hospital’s] decision was made conscientiously and with careful deliberation . . . Regents of the University of Michigan v. Ewing, supra, 474 U.S. 225.

       The plaintiff never requested an articulation from the trial court. See Practice Book § 4051.