author: Shea, J.

text:
    John F. Canning, Administrator (Estate of Shaun Canning), et al. v. Brian R. Lensink, Commissioner of Mental Retardation
    (14259)
    Peters, C. J., Shea, Glass, Covello and Borden, Js.
    Argued December 10, 1991
    decision released March 3, 1992

      Carolyn K. Querijero, assistant attorney general, with whom, on the brief, was Richard Blumenthal, attorney general, for the appellant (defendant).

      Stephen J. Errante, with whom, on the brief, was Stephen I. Traub, for the appellees (plaintiffs).
   Shea, J.

After the trial court had denied the defendant commissioner’s motion to strike this wrongful death action from the jury docket to which it had been claimed, the commissioner successfully applied for certification that “a substantial public interest is involved, and that delay may work a substantial injustice” in order to appeal from this interlocutory ruling pursuant to General Statutes § 52-265a. See Practice Book §§ 4177, 4178. In the appeal the sole issue is whether there is a right to a jury trial in an action for damages brought against the commissioner of mental retardation pursuant to General Statutes § 19a-24. We conclude that in such an action there is no such right.

The plaintiff, John Canning, brought this wrongful death action as administrator of the estate of his son, Shaun Canning, who died on March 14,1987, after having been admitted as a patient on March 6, 1987, to a residential facility known as California House operated by the department of mental retardation. The complaint alleges that Shaun’s general health was good when he entered the facility, but that, after he became ill on March 11,1987, the negligent care afforded him by the commissioner, his agents, staff and employees resulted in Shaun’s death three days later. The plaintiff claims damages on behalf of his son’s estate for the allegedly wrongful death of his son pursuant to the wrongful death statute, General Statutes § 52-555. The plaintiff claimed the case to the jury docket, and the commissioner moved to strike it from that docket.

In denying the commissioner’s motion, the trial court concluded that the issues presented were “substantially of the same nature” as those triable to a jury prior to the adoption of our state constitution in 1818. Swanson v. Boschen, 143 Conn. 159, 165, 120 A.2d 546 (1959). Relying upon article first, § 19, of the state constitution, which provides that “[t]he right of trial by jury shall remain inviolate . . .” the court decided that the plaintiff was entitled to a jury trial and, accordingly, denied the commissioner’s motion.

In his appeal the commissioner claims that there is no right of jury trial in this case because: (1) the state is the real defendant in any action brought against the commissioner pursuant to § 19a-24; (2) there is no right to a trial by jury in a suit against the state unless the legislature, in waiving the state’s immunity, has provided such a right; and (3) no such right pertaining to a § 19a-24 action can be found. We agree with each of these contentions.

I

“We have long recognized the common-law principle that the state cannot be sued without its consent.” Sentner v. Board of Trustees, 184 Conn. 339, 342, 439 A.2d 1033 (1981). “[Bjecause the state can act only through its officers and agents, a suit against a state officer concerning a matter in which the officer represents the state is, in effect, against the state.” Id. The complaint in this action alleges that the commissioner is being sued in his official capacity under the authority of § 19a-24, subsection (b) of which precludes personal liability on his part “in any civil action for damages on account of any official act or omission of any superintendent, director, employee or staff member of any . . . state mental retardation region 99

The plaintiff argues that the paragraph of his complaint alleging that his son’s death resulted from the “negligence of the defendant [cjommissioner of [mjental [rjetardation, his agents, staff and employees” may reasonably be construed to claim negligence on the part of the commissioner in his personal capacity, as well as his vicarious liability based upon the acts or omissions of the state employees involved in the operation of California House. Such a reading of the complaint, even if otherwise permissible, is precluded by subsection (a) of § 19a-24, which expressly requires that an action under the statute be brought against the commissioner in his official capacity. The complaint plainly indicates that the statute is the sole basis for the action.

II

The trial court concluded that, whether or not an action for wrongful death was a recognized cause of action in this state at common law, the underlying cause of action was based on negligence and the issues presented were “substantially of the same nature . . . as prior to 1818 would have been triable to a jury.” Swanson v. Boschen, supra, 165. This court has recognized that the constitutional right of jury trial in civil actions depends not on whether the cause of action is statutory, but upon whether it “has roots in the common law,” when no equitable remedy is involved. Skinner v. Angliker, 211 Conn. 370, 375-76, 559 A.2d 701 (1989). In Skinner, however, we held that there was no right of jury trial in an action brought against the state pursuant to General Statutes § 31-51q for violation of the first amendment rights of an employee who had been discharged after complaining that he had witnessed other members of the staff abusing patients at a state mental hospital. We concluded that “[n]o principle of common law, prior to 1818, allowed actions against the state for wrongful discharge or related claims” and that “it cannot be maintained that under the common law in 1818 a jury trial was a matter of right for persons asserting a claim against the sovereign . . . .” Id., 377, 380. The United States Supreme Court has held similarly that the seventh amendment to the federal constitution, which provides a right of jury trial “[i]n [sjuits at common law,” does not apply when the action is against the government, because, historically, any such action was barred by the common law doctrine of sovereign immunity. Lehman v. Nakshian, 453 U.S. 156, 162 n.9, 101 S. Ct. 2698, 69 L. Ed. 2d 548 (1981); Glidden Co. v. Zdanok, 370 U.S. 530, 572, 82 S. Ct. 1459, 8 L. Ed. 2d 671 (1962); Galloway v. United States, 319 U.S. 372, 388, 63 S. Ct. 1077, 87 L. Ed. 1458 (1943); McElrath v. United States, 102 U.S. 426, 440, 26 L. Ed. 189 (1880).

The trial court attempted to distinguish Skinner on the ground that that suit was based on a statute, § 31-51q, for which there was no equivalent cause of action at common law in this state, unlike the present case, which arises out of negligence. The basis for our decision in Skinner, however, is the circumstance that the two officials who were made defendants were deemed to represent the state and, therefore, to partake of its sovereign immunity. “While the plaintiff’s arguments may be valid in a suit against a private employer, it is important to remember that the instant action is one against the sovereign.” Skinner v. Angliker, supra, 380.

The plaintiff contends that the common law of this state in 1818 imposed liability on public officials for the negligent performance of their duties and cites several cases in which such claims were tried to juries prior to that date. Ackley v. Chester, 5 Day 221 (1811) (action against sheriff for negligent handling and return of execution); Carrington v. Parsons, 4 Day 45 (1809) (action against sheriff for negligence in permitting debtor to escape from jail); Stoyel v. Lawrence, 3 Day 1 (1807) (action against sheriff for false imprisonment arising from arrest of debtor pursuant to expired execution); Avery v. Bulkly, 1 Root 275 (1791) (action against militia officers for trespass, assault and battery committed by troops under their command after their failure to prevent such acts). In none of these cases, however, was the defense of sovereign immunity raised nor does it appear that any recovery would have been satisfied from the state treasury.

In contrast, as we have concluded in part I of this opinion, the plaintiffs action against the commissioner is based wholly on § 19a-24, which provides in subsection (a) that “[djamages recovered in such action shall be a proper charge against the general fund of the state . . .’’thus implicating the state’s sovereign immunity. Furthermore, it is doubtful that the complaint can reasonably be construed to allege any acts of negligence by the commissioner in his individual capacity rather than in his official capacity as the head of the department of mental retardation. The conduct alleged is that of the state employees involved in caring for patients at California House, for which the statute makes the commissioner, as the representative of the state, vicariously liable. At common law, “[generally government officers are not vicariously responsible for the acts of their subordinates any more than a foreman or factory superintendent would be, though there is an exception—now possibly losing ground-in the case of sheriffs, marshals, and constables who are liable for the acts of their deputies.” (Emphasis in original). 5 F. Harper, F. James & 0. Gray, Law of Torts (2d Ed.) § 29.8. We adhere to our conclusion in Skinner that, because the doctrine of sovereign immunity barred actions against the state prior to the adoption of the state constitution in 1818, there is no constitutional right of jury trial in civil actions based on statutes effectively waiving such immunity in particular situations. Skinner v. Angliker, supra, 382.

III

Some statutory waivers of sovereign immunity enacted by the legislature expressly preclude a right of jury trial. See, e.g., General Statutes § 4-61 (a) (actions against the state on highway and public works contracts), and § 4-160 (e) (actions against the state authorized by the claims commissioner). One statute provides such a right explicitly. General Statutes § 13a-144 (damages for injuries sustained on state highways or sidewalks). In the absence of such a specification, we have concluded that the legislature intended that the action should be tried without a jury. “When the state, by statute, waives its immunity to suit, as it has in § [19a-24], the right to a jury trial cannot be implied, but rather, must be affirmatively expressed.” Skinner v. Angliker, supra, 381. Since § 19a-24 contains no indication of a legislative intention to provide a right of jury trial, we conclude that no such right exists in an action pursuant to the statute.

The plaintiff does not contend that § 19a-24 or any other statute explicitly provides a right of jury trial in this action. He maintains, however, that the statute should be construed as substituting for the common law personal liability of negligent state employees in mental hospitals, which subsections (b) and (c) eliminate, the liability of the commissioner and recourse to state funds for payment of any judgment. Such an interpretation would treat § 19a-24 as, in effect, an indemnification statute, which would not alter the right of jury trial in an action against the indemnitee for his negligence. Indemnification of state officers and employees for losses resulting from claims of negligence against them is expressly provided by General Statutes § 5-141d. Furthermore, subsection (d) of § 19a-24 requires the state to “indemnify and save harmless each member of the councils or boards of trustees” that are established by statute to perform certain functions relating to the department of mental retardation. The absence of such standard indemnification language in those subsections of § 19a-24 pertaining to the commissioner indicates that different consequences were intended. Those consequences are the substitution of the state, represented by the commissioner, for the negligent employee as the defendant, and the resulting absence of a right of jury trial because of the state’s sovereign immunity.

The ruling of the trial court is reversed and the case is remanded with direction to grant the motion to strike the case from the jury docket.

In this opinion the other justices concurred.

       “[General Statutes] Sec. 19a-24. (Formerly Sec. 19-5a). claims foe damages against commissionees of health services and mental RETARDATION AND CERTAIN OFFICIALS, EMPLOYEES, COUNCIL MEMBERS AND TRUSTEES. IMMUNITY, indemnification, (a) Any claim for damages in excess of one thousand five hundred dollars on account of any official act or omission of the commissioner of health services or the commissioner of mental retardation or any member of their staffs, any member of the council on tuberculosis control, hospital care and rehabilitation, the council on mental retardation or either of the boards of trustees of the state training schools or any member of any regional advisory and planning council or any superintendent, director, employee or staff member of any chronic disease hospital or state training school or state mental retardation region shall be brought as a civil action against the commissioners in their official capacities and said commissioners shall be represented therein by the attorney general in the manner provided in chapter 35. Damages recovered in such action shall be a proper charge against the general fund of the state and shall be paid in the manner provided in section 3-117. Any such claim for damages not in excess of one thousand five hundred dollars shall be presented to the claims commissioner in accordance with chapter 53 if such claim is otherwise cognizable by the claims commissioner.
      “(b) Neither the commissioner of health services nor the commissioner of mental retardation nor any member of their staffs, shall be held personally liable in any civil action for damages on account of any official act or omission of any superintendent, director, employee or staff member of any chronic disease hospital or state training school or state mental retardation region nor on account of any official act or omission of such commissioners or member of their staffs or any member of the councils or boards of trustees created by sections 17a-270 and 17a-271.
      “(c) No employee or staff member of said commissioners or any superintendent, director, employee or staff member of any chronic disease hospital or state training school or state mental retardation region shall be held personally liable in any civil action for damages on account of any official act or omission not wanton or wilful of such superintendent, director, employee or staff member.
      “(d) The state of Connecticut shall indemnify and save harmless each member of the councils or boards of trustees established by sections 17a-270, 17a-271 and 17a-273 from all claims and demands that may accrue or be asserted by reason of any act of such councils or boards of trustees or any failure to act by such councils or boards of trustees where no malice, fraud or conflict of interest is found to exist. The provisions of this section shall be deemed to apply individually to each member of such councils or boards of trustees.
      “(e) Any person to whom the provisions of subsection (b), (c) or (d) hereof are applicable and against whom any action shall be brought on account of any act alleged to be an official act or omission as aforesaid or any other act as to which protection is afforded by the provisions of this section shall be represented therein by the attorney general in the manner provided in chapter 35.”

       The original complaint included claims by John Canning and Bridie Canning, individually, for loss of consortium relating to the death of their son. The amended complaint omitted these claims, leaving John Canning, administrator, as the only plaintiff.

       As an additional ground for granting its motion to strike the case from the jury docket, the commissioner claims that there is no right of jury trial in this suit because no statute prior to 1818 authorized an action for wrongful death and no such action was recognized at common law. See Ecker v. West Hartford, 205 Conn. 219, 226-31, 530 A.2d 1056 (1987); Ladd v. Douglas Trucking Co., 203 Conn. 187,191-92, 523 A.2d 1301 (1987). The trial court rejected this argument, however, on the ground that the determination of whether a jury trial is required depends on whether the action “is similar in nature to an action that could have been tried to a jury in 1818 when the state constitution was adopted.” Skinner v. Angliker, 211 Conn. 370, 376, 559 A.2d 701 (1989). The court concluded that a wrongful death action satisfies that test. Our disposition of the appeal makes it unnecessary to resolve this issue.

       The allegations of negligence in the complaint are as follows:

        “IS. The decedent Shaun Canning’s death was the direct and proximate result of the negligence of the defendant Commissioner of Mental Retardation, his agents, staff and employees, in that:
      “a. they departed from the accepted standards of care in like conditions for the providing of proper care for the decedent as set forth herein.
      “b. they failed to adequately provide for the proper health care of Shaun Canning, a mentally retarded person, as mandated by the Connecticut General Statutes § 19a-469 and § 17-206 (c).
      “c. no physician saw nor attended Shaun Canning throughout his respite stay at the California House from his admission to that facility until the time of [his] death.
      “d. there were no fluid watches or weight watches arranged for Shaun Canning despite the information on the admission information sheet.
      “e. there were no tests done when Shaun Canning refused to attend his daily obligation at the New Haven Center Regional Rehabilitation Building.
      “f. prescription medication was given to Shaun Canning without a physician examination or order.
      “g. there was no intervention when Shaun Canning repeatedly refused to have his temperature taken.
      “h. staffing was inadequate with regard to the third shift at California House.
      “i. the decedent was not properly monitored during the night before his death even though the decedent was known to be ill.”

       “[General Statutes] Sec. 5-141d. indemnification of state officers AND EMPLOYEES. DUTIES OF ATTORNEY GENERAL. EXCEPTIONS, (a) The state shall save harmless and indemnify any state officer or employee, as defined in section 4-141, and any member of the public defender services commission from financial loss and expense arising out of any claim, demand, suit or judgment by reason of his alleged negligence or alleged deprivation of any person’s civil rights or other act or omission resulting in damage or injury, if the officer, employee or member is found to have been acting in the discharge of his duties or within the scope of his employment and such act or omission is found not to have been wanton, reckless or malicious.
      “(b) The state, through the attorney general, shall provide for the defense of any such state officer, employee or member in any civil action or proceeding in any state or federal court arising out of any alleged act, omission or deprivation which occurred or is alleged to have occurred while the officer, employee or member was acting in the discharge of his duties or in the scope of his employment, except that the state shall not be required to provide for such a defense whenever the attorney general, based on his investigation of the facts and circumstances of the case, determines that it would be inappropriate to do so and he so notifies the officer, employee or member in writing.
      “(c) Legal fees and costs incurred as a result of the retention by any such officer, employee or member of an attorney to defend his interests in any such civil action or proceeding shall be borne by the state only in those cases where (1) the attorney general has stated in writing to the officer, employee or member, pursuant to subsection (b), that the state will not provide an attorney to defend the interests of the officer, employee or member, and (2) the officer, employee or member is thereafter found to have acted in the discharge of his duties or in the scope of his employment, and not to have acted wantonly, recklessly or maliciously. Such legal fees and costs incurred by a state officer or employee shall be paid to the officer or employee only after the final disposition of the suit, claim or demand and only in such amounts as shall be determined by the attorney general to be reasonable. In determining whether such amounts are reasonable the attorney general may consider whether it was appropriate for a group of officers, employees or members to be represented by the same counsel.
      “(d) The provisions of this section shall not be applicable to any state officer or employee to the extent he has a right to indemnification under any other section of the general statutes.”


source: Caselaw Access Project

author: Shea, J. Berdon, J., with whom Borden, J.,

license: Public Domain

text:
    Eugenia Saporoso et al. v. Aetna Life and Casualty Company et al.
    (14164)
    Shea, Callahan, Glass, Borden and Berdon, Js.

      Argued November 1, 1991
    decision released March 3, 1992

      Lawrence J. Cicchielb, with whom, on the brief, were Michael J. Melly and Angelo Cicchiello, for the appellants (plaintiffs).

      Albert Zakarian, with whom, on the brief, was Steven M. Greenspan, for the appellees (defendants).
   Shea, J.

The complaint in this action, as amended at the commencement of trial, alleged claims for the intentional infliction of emotional distress and for breach of contract arising out of the termination of the employment of the plaintiff, Eugenia Saporoso, by the defendants Aetna Life and Casualty Company (Aetna) and its supervisory employee, Laura Larese. After a trial of several weeks, the court directed the jury to return a verdict for the defendants on these remaining counts of the complaint. The plaintiff has appealed from the judgment, claiming there was sufficient evidence to warrant the submission of the case to the jury. The issues raised in the appeal are: (1) whether the failure of the plaintiff to file a motion to set aside the directed verdict precludes review of her claims on appeal; (2) whether the denial of the plaintiffs motion to amend the complaint after trial had commenced was erroneous; (3) whether the claim of intentional infliction of emotional distress was barred by her recovery of workers’ compensation benefits for the same injury; and (4) whether she suffered any damages from the termination of her employment. We affirm the judgment.

Under the view of the evidence most favorable to the plaintiff; Beckenstein v. Potter & Carrier, Inc., 191 Conn. 150, 163, 464 A.2d 18 (1983); the jury might reasonably have found the following facts. The plaintiff was first employed by Aetna in 1966, and she continued her employment until 1974, when she ceased working in order to give birth to a child. In September, 1982, she once again became employed by Aetna in its employee benefits claim department. She applied in 1984 for a position in the NSF collection department, of which the defendant Larese was supervisor. The plaintiff received satisfactory performance evaluations until the end of January, 1985, when her relationship with Larese began to deteriorate. Larese became unduly critical of the plaintiffs job performance, required her to work through lunch periods and accused her of misperforming tasks assigned to others.

On February 25,1985, Larese issued a written warning to the plaintiff concerning her work. Believing she was being treated unfairly by Larese and suffering from job related stress, the plaintiff went to Aetna’s human resources department to discuss her situation. As suggested by a person in that department, she went to the infirmary concerning her complaints of nervousness, headaches, shakiness and stomach problems. A nurse in the infirmary advised her to leave work and to go home, which she did after receiving permission.

The plaintiff consulted her family physician on March 6,1985. He advised her to rest and to avoid talking because her nervous condition caused her to lose her voice. The plaintiff remained out of work on March 7, but received a call from Larese asking her to return to work. On March 11, when she returned to work, she was sent home, after an examination at the company infirmary, because of the loss of her voice, nose bleeds and a choking sensation. She was examined on March 20 by her family physician, who certified that she was unable to work during the period March 6 through April 1, 1985. After another examination on April 3, her doctor certified that she should not return to work until June 7 because of a swollen throat, headaches, insomnia, and an upset stomach. During the period the plaintiff was out of work, Larese made frequent inquiries by telephone and letter concerning her failure to return to work and her medical treatment, sometimes accusing her of malingering.

On May 23, 1985, at Larese’s insistence, the plaintiff was examined by an orthopedist selected by Aetna, despite the plaintiffs protestations that her complaints were not orthopedic in nature. This physician found no orthopedic problems, but referred the plaintiff to an ear, nose and throat specialist, who examined her on May 31 and advised her to stay out of work from that date until June 18. Nevertheless, Larese, on the basis of the orthopedist’s report, telephoned the plaintiff on June 3 and instructed her to come to work on June 5. The plaintiff explained that she was incapable of returning on that date and, because she had begun to choke, she could not complete the conversation. Larese then sent a letter to the plaintiff stating that, if she failed to return to work by June 5, her employment would be terminated. When the plaintiff failed to report for work on June 5, another letter was sent notifying her that Aetna had terminated her employment.

Thereafter, the plaintiffs condition worsened and she consulted a psychiatrist. She lost weight, experienced dizziness and could neither drive a car nor care for her family. She suffered headaches, stomach upsets, decreased energy levels and crying episodes. The psychiatrist attributed her physical problems to anxiety and depression related to her employment and her discharge. He found that she was totally disabled from her employment.

On July 9,1985, the plaintiff filed a claim for workers’ compensation benefits pursuant to General Statutes § 31-310. The workers’ compensation commissioner, after a formal hearing, found that the plaintiff had become totally disabled as a result of her employment and awarded her total disability benefits from March 6, 1985, until such time as her disability was cured or diminished.

I

After the jury, as directed by the court, had returned a verdict for the defendants, the plaintiff filed this appeal without having first moved to set aside the directed verdict. “No verdict in any civil action involving a claim for money damages may be set aside except on written motion by a party to the action . . . .’’General Statutes § 52-228b; see Practice Book § 320. In Pietrorazio v. Santopietro, 185 Conn. 510, 515, 441 A.2d 163 (1981), we held that the statute required a motion to set aside a verdict not only when the claim on appeal related to the sufficiency of the evidence to support the verdict, but also when an erroneous ruling of the trial court was a basis for the appeal. We have applied the statute and the rule to directed verdicts as well as to those rendered by a jury without the order of a court. Dunham v. Dunham, 204 Conn. 303, 310-11, 528 A.2d 1123 (1987); Atlantic Richfield Co. v. Canaan Oil Co., 202 Conn. 234, 249-50, 520 A.2d 1008 (1987); see Pagani v. BT II, Limited Partnership, 24 Conn. App. 739, 750, 592 A.2d 397, cert. dismissed, 220 Conn. 902, 593 A.2d 968 (1991).

In contending that “[t]here simply is no language in the statute requiring the motion [to set aside a verdict] as a predicate to full appellate review of rulings made by the court during the trial of the case,” the concurring opinion overlooks the breadth of the first sentence of the statute, which provides that “[n]o verdict in any civil action . . . may be set aside except on written motion . . . .” (Emphasis added.) There is no ambiguity in that language to justify a distinction between motions to set aside for insufficient evidence and those based on rulings during the course of the trial. In applying a statute this court is bound by its terms and cannot read into its plain language exceptions that the legislature has not created.

Although § 52-228b is a procedural statute that this court has constitutional authority to reject; State v. Clemente, 166 Conn. 501, 507, 353 A.2d 723 (1974); Adams v. Rubinow, 157 Conn. 150, 156, 251 A.2d 49 (1968); we implicitly consented to its terms in Pietrorazio v. Santopietro, supra, 514. The concurring opinion does not propose that we exercise our authority to invalidate the statute as a trespass upon our jurisdiction over procedural rules but would achieve a similar result by establishing an exception wholly unsupported by the statutory text.

Despite the views of some commentators, none of whom have considered the effect of the statute, that a motion to set aside based on rulings at trial is redundant and “add[s] nothing to the appeal”; 2 E. Stephenson, Connecticut Civil Procedure (2d Ed.) § 205 (d); F. James & G. Hazard, Civil Procedure (2d Ed.) § 7.17; such a motion serves at least four useful functions: (1) it allows the trial court, in the less hectic atmosphere of a posttrial proceeding, to reconsider its rulings and, if they are determined to have been erroneous as well as harmful, to grant a new trial without the necessity of an appeal; (2) it provides an opportunity for the court to explain and to justify the challenged rulings in a written memorandum far more effectively and clearly than is possible at trial; (3) after a verdict is rendered and before an appeal is taken it provides the only occasion for counsel to appear in court and to present arguments in support of their positions, which are ordinarily formulated much more clearly and persuasively than at trial; and (4) it induces counsel for the parties to reevaluate the strength of their positions in the light of a jury verdict and thus may lead to a settlement of the litigation.

The plaintiff recognizes the consequences of her failure to move to set aside the verdict and concedes that plain error is the appropriate standard of review. “The supreme court may in the interests of justice notice plain error not brought to the attention of the trial court.” Practice Book § 4185. “Such review is reserved for truly extraordinary situations where the existence of the error is so obvious that it affects the fairness and integrity of and public confidence in the judicial proceedings.” State v. Hinckley, 198 Conn. 77, 87-88, 502 A.2d 388 (1985). We conclude that none of the plaintiffs claims of error satisfies that standard of review.

II

The plaintiff claims that the trial court incorrectly relied on her November 11, 1988 amended complaint in directing a verdict for the defendants rather than her proffered July 16,1990 amended complaint, which she claims had superseded the earlier complaint by virtue of Practice Book § 176. The rule of practice provides that, after a request to amend a complaint has been filed with the proposed amendment appended, “the amendment shall be deemed to have been filed by consent of the adverse party” unless an objection “has been filed . . . within fifteen days from the date of the filing of said request . . . .” Practice Book §176 (c). The record, however, is unclear as to when the plaintiff’s request was filed, because the docket entry indicates a filing date of August 10,1990, the day the verdict was rendered. The transcript indicates that the trial court was aware of this request on July 17, 1990, before the trial began, but chose to defer action thereon until later. There is another reference to the plaintiffs motion to amend her complaint in the transcript of August 2,1990, as a subject of future discussion with the court. Although no explicit ruling on the plaintiffs request to amend has been called to our attention, during the argument of the defendants’ motion for a directed verdict the plaintiff indicated that the court had denied her motion to amend.

At trial, the plaintiff never raised the claim she advances on appeal, that the July 16,1990 amendment had superseded the November 11, 1988 complaint by virtue of § 176. If such a claim had been seasonably raised, the court might well have exercised its discretion to deny the claim in view of the likelihood that the amendment would result in a delay in the middle of the trial to provide the defendants with an opportunity to prepare a defense to the new allegations. From the record, it is evident that the plaintiff submitted her proposed amendment to the court for a ruling thereon rather than rely on the automatic amendment provision of § 176. Having done so and having acknowledged the court’s denial of the amendment, the plaintiff cannot now be permitted to raise as plain error the possible effect of § 176 with respect to a request to amend filed at the start of trial.

Ill

In directing a verdict for the defendants with respect to the plaintiff’s claim of intentional infliction of extreme emotional distress, the trial court concluded that the award of workers’ compensation to the plaintiff for total disability from March 6,1985, “until Claimant’s disability is cured or diminished” precluded any recovery on such a claim because of the principle of collateral estoppel. The court held that the award established as a matter of law that the plaintiffs emotional distress had arisen “out of and in the course of [her] employment” and that, therefore, workers’ compensation was the exclusive remedy for this work related injury. General Statutes §§ 31-284 (a), 31-293a; see Nolan v. Borkowski, 206 Conn. 495, 500-501, 538 A.2d 1031 (1988).

The plaintiff claims that the court’s ruling constituted plain error because the finding of the workers’ compensation commissioner does not consider whether the defendants intended to inflict emotional distress upon her in terminating her employment. The allegations of the second count of the November 8, 1988 complaint, however, upon which the court was entitled to rely in deciding the motion for a directed verdict, alleged that all of the specific wrongful acts of the defendants that provided the factual basis for the infliction of emotional distress claim had occurred during the months of January, 1985, through March, 1985. This count of the complaint plainly relates only to the period of the plaintiff’s employment because she was not discharged until June 5, 1985. The proposed amendment to the complaint, which we have held in part II of this opinion was properly denied, would have expanded the allegations of the second count to include wrongful acts occurring after March, 1985, that related to the termination of the plaintiff’s employment. Without the proposed amendment, the complaint alleged the infliction of emotional distress by acts of the defendants clearly related to the plaintiff’s employment, which occurred only during the period of her employment.

The plaintiff concedes that the emotional distress she suffered from the defendants’ acts during the period of her employment was the subject of the workers’ compensation award she has received. This award was necessarily predicated on the conclusion of the commissioner that her injury had arisen out of and in the course of her employment. General Statutes § 31-284 (a). The trial court, therefore, properly held that the principle of collateral estoppel precluded a redetermination of that issue by the jury. “When an issue of fact or law is actually litigated and determined by a valid and final judgment, the determination is conclusive in a subsequent action between the same parties, whether on the same or a different claim.” 1 Restatement (Second), Judgments § 27; see Scott v. Scott, 190 Conn. 784, 787, 462 A.2d 1054 (1983). The award followed a formal hearing at which liability of the employer was contested and the commissioner expressly found “no evidence to contradict Claimant’s alleged disability and its relation to her work.” Since the only claim of infliction of emotional distress in the complaint related solely to the plaintiff’s employment and she had received a workers’ compensation award for that injury, the preclusive effect of collateral estoppel clearly barred relitigation of the issue of whether her injury was causally related to her employment. Her claim as pleaded in the second count, therefore, could not be maintained in the face of the provision of § 31-284 (a) prohibiting “any action for damages on account of personal injury sustained by an employee arising out of and in the course of his employment.”

The plaintiff also urges us to follow the decisions of courts in some other jurisdictions that have allowed workers whose injuries have resulted from intentional wrongful conduct of their employers to pursue a common law action in addition to the remedy of workers’ compensation. This court has held that “[a]n intentional tort committed upon one employee by another, which causes personal injury arising out of and in the course of his employment, is covered by the compensatory provisions of the [Workers’] Compensation Act.” Jett v. Dunlap, 179 Conn. 215, 218, 425 A.2d 1263 (1979). “In Connecticut the exclusive remedy for an employee injured in the course of employment is provided by the Workers’ Compensation Act . . . .” Nolan v. Borkowski, supra, 500. In reviewing an appeal for plain error, we are not inclined to reconsider our precedent. “It was clearly not plain error for the court to adhere to established precedent.” Atlantic Richfield Co. v. Canaan Oil Co., supra, 252.

IV

In directing a verdict on the plaintiffs claim of breach of contract by virtue of the termination of her employment on June 5,1985, while she was on sick leave, the trial court concluded that, even if the termination had constituted a breach, the plaintiff had proved no recoverable damages. The court calculated that, if the plaintiff had remained on sick leave for the maximum period of twenty-six months, as provided under her employer’s sick leave plan, and had received all other benefits available to an employee terminated for disability, she would have been entitled to the sum of $23,107.73. Her workers’ compensation payments since her discharge, however, totalled $63,132.75 in addition to the medical expenses paid by her employer. It is undisputed that the sick leave plan provides that workers’ compensation payments are to be deducted from the amount of sick pay to which an employee would be entitled. Accordingly, the court concluded that judgment for Aetna on the contract claim was required as a matter of law.

The plaintiff maintains that the trial court’s conclusion was plain error for two related reasons: (1) if she had been able to return to work within the period of allowable sick leave, her earnings together with other benefits that would have accrued during her remaining years of employment would have exceeded by far her workers’ compensation benefits; and (2) the proximate cause of the plaintiff’s continuing disability was the wrongful termination of her employment while she was on sick leave, and damages for such disability as measured by her probable future earnings less her workers’ compensation benefits were recoverable for this breach of contract.

We do not disagree with the plaintiffs claim that there was sufficient evidence for the jury to have found that the disability that prevented her from returning to work was caused by her termination while on sick leave and that, if she had resumed her employment, her earnings and other benefits would have been greater than her workers’ compensation payments. We agree with the trial court, nevertheless, that any damages resulting from the plaintiff’s disability, even if proximately caused by her termination, are not within the scope of damages recoverable for breach of contract. “Damages are not recoverable for loss that the party in breach did not have reason to foresee as a probable result of the breach when the contract was made.” 3 Restatement (Second), Contracts § 351 (1); see West Haven Sound Development Corporation v. West Haven, 201 Conn. 305, 319-20, 514 A.2d 734 (1986). There is no reasonable basis in the evidence for a jury to have found that in 1982, when the plaintiff resumed her employment with Aetna, it was reasonably foreseeable that, if the plaintiff’s employment should be terminated, with or without cause, she would suffer a continuing disability from a psychiatric disorder related to her employment or the circumstances of her discharge. We conclude that there was no plain error in the trial court’s direction of a verdict on the plaintiff’s breach of contract claim.

The judgment is affirmed.

In this opinion, Callahan and Glass, Js., concurred.

Berdon, J., with whom Borden, J.,

joins, concurring. I concur with the majority only because the plaintiff agrees that as a result of her failure to file a motion to set aside the verdict, this court is “limited to a plain error standard of review.” Nevertheless, I write separately because of my concern over the procedural straitjacket the majority adopts that deprives a litigant of a meaningful appellate review.

We have recognized that “[ujnder our practice it has long been thought essential to move to set aside a verdict in order to obtain appellate review of a claim that the evidence was insufficient to support the verdict. ... A compelling reason for this view is the great weight accorded on appeal to the action of the trial court upon the motion.” (Citations omitted.)Pietrorazio v. Santopietro, 185 Conn. 510, 513-14, 441 A.2d 163 (1981). I agree with this rule because it affords the trial court the opportunity to address an error that occurred at trial that it had not addressed previously. Therefore, if a verdict is not supported by the evidence or if it should be set aside for some other reason on which the trial court has not ruled (such as either being excessive or inadequate), the trial court should be given the opportunity to review it in the first instance. Furthermore, on appeal, we should have the benefit of the trial judge’s opinion in those instances.

The legislature recognized this need when it enacted General Statutes § 52-228b in 1965. Although § 52-228b broadly states that the verdict may not be set aside without such a motion, it must be read in the context of the existing common law; Dart & Bogue Co. v. Slosberg, 202 Conn. 566, 573, 522 A.2d 763 (1987); and common sense. Shelby Mutual Ins. Co. v. Della Ghelfa, 200 Conn. 630, 636-37, 513 A.2d 52 (1986); Kron v. Thelen, 178 Conn. 189, 192, 423 A.2d 857 (1979). The legislature’s intent to require the motion only for limited purposes is made clear in the statutory language that requires that the parties have the opportunity to accept additurs and remittiturs, matters solely for the trial court, before the court may set aside a monetary verdict on the basis of inadequacy or excessiveness.

In 1981, this court in Pietrorazio v. Santopietro, supra, unnecessarily extended the requirement that the appellant must file a motion to set aside the verdict with the trial court in order to obtain full appellate review. The court required such a motion for all trial court rulings assigned as error in a jury case. Although the court based this conclusion on a reading of § 52-228b, the clear language of the statute does not require such a construction. There simply is no language in the statute requiring the motion as a predicate to full appellate review of rulings made by the court during the trial of the case.

The requirement for appellate review on which this court in Pietrorazio layered is redundant. Such a requirement “would add nothing to the appeal.” 2 E. Stephenson, Connecticut Civil Procedure (2d Ed.) § 205 (d); F. James & G. Hazard, Civil Procedure (2d Ed.) § 7.17. Moreover, a party’s failure to file a motion to set aside a verdict is unlike the failure to object on the offering of evidence or to take an exception to a charge because those errors, when brought to the attention of the trial court, can be corrected. Here, the trial court had already ruled on the claims and the jury had been discharged; it is too late after the verdict to correct the error and save the trial.

Such unnecessary rules have a way of taking on a life of their own. For example, just last year, the court in Dunham v. Dunham, 217 Conn. 24, 29, 584 A.2d 445 (1991), applied this rule to a nonjury case and, as a result, would only consider the plaintiffs claims of error under the restrictive review of “plain error.” Commentators have written the following about Dunham: “This decision is totally wrong. Section 320 [of the Practice Book] is in a chapter pertaining to jury trials and Dun-ham is not a jury case. The whole purpose of requiring a § 320 motion as a pre-requisite to full appellate review is to give the reviewing court the benefit of the trial judge’s views after someone else (i.e., the jury) has decided the case. That rationale is obviously inapplicable here. Dunham has vast potential for mischief. Does it mean that every time a judge decides a non-jury case, the losing party has to file a motion under either § 320 ... in order to obtain full appellate review? That would be unthinkable.” 1 W. Moller & W. Horton, Connecticut Practice Book Annotated (1992) § 320.

Dunham was preceded by the court’s extension of the rule to directed verdicts. Atlantic Richfield Co. v. Canaan Oil Co., 202 Conn. 234, 249-50, 520 A.2d 1008 (1987). In other words, an appellant, in order to obtain a meaningful review of his or her claim of error, must first file and argue before the trial court a motion to set aside the verdict that it directed. This requirement becomes even more difficult to understand when we have repeatedly held that directed verdicts are not favored. Boehm v. Kish, 201 Conn. 385, 394, 517 A.2d 624 (1986). We must assume that trial courts do not take the motions for a directed verdict lightly and will grant them only after careful consideration.

The unreasonableness of requiring the appellant to have filed a motion to set aside a directed verdict, in order to obtain full appellate review of that action by the trial court, is clearly demonstrated in this case. Not only was it impossible to correct the error through the motion because the jury had been discharged, but, in this case, the trial court gave careful consideration to the issues in its decision on directing the verdict. Before directing the verdict, the trial court recessed the trial, both sides presented extensive briefs on the same issues presented in this appeal and there was extensive oral argument. It makes little sense to require a motion to set aside the verdict and require the same argument all over again. This is tantamount to requiring the litigant to say—“Judge, did you really mean it?” And even if the trial court reconsidered its decision, it would have been of no use because the jury had been discharged.

Since the plaintiff herself conceded in this case that plain error is the appropriate standard of review, and since that was therefore the posture in which the case was presented to us, I concur in the result.

       The effective complaint when the trial began on July 17,1990, was the amended complaint dated November 8, 1988.

       For convenience, we refer only to the plaintiff Eugenia Saporoso throughout this opinion. Her husband, Carmine Saporoso, is also a plaintiff, claiming a loss of consortium in five counts that are derivative of the five counts setting forth his wife’s claims of injury.

       The plaintiff withdrew two statutory counts before trial. Those counts claimed violations of General Statutes § 31-290a (discrimination against employee for asserting right to workers’ compensation) and § 42-110b (unfair trade practices).

       General Statutes § 52-228b provides: “No verdict in any civil action involving a claim for money damages may be set aside except on written motion by a party to the action, stating the reasons relied upon in its support, filed and heard after notice to the adverse party according to the rules of the court. No such verdict may be set aside solely on the ground that the damages are excessive unless the prevailing party has been given an opportunity to have the amount of the judgment decreased by so much thereof as the court deems excessive. No such verdict may be set aside solely on the ground that the damages are inadequate until the parties have first been given an opportunity to accept an addition to the verdict of such amount as the court deems reasonable.”

       Practice Book § 320 provides: “Motions in arrest of judgment, whether for extrinsic causes or causes apparent on the record, motions to set aside a verdict and motions for new trials, unless brought by petition served on the adverse party or parties, must be filed with the clerk within five days after the day the verdict is accepted or judgment rendered, exclusive of such days as the clerk’s office is not open; provided that for good cause the court may extend this time. The clerk shall notify the trial judge of such filing. Such motions shall state the specific grounds upon which counsel relies."

       The proposed amendment would have added numerous additional paragraphs to each count of the November 11,1988 complaint, expanding the first count from thirteen to thirty-eight paragraphs with corresponding increases in the other counts, which incorporated the new paragraphs by reference. The plaintiff contends that these additional allegations were necessary to include the effect of the termination of her employment as an additional basis for her claim of extreme emotional distress.

       Practice Book § 176 provides: “Except as provided in Sec. 182, a party may amend his pleadings or other parts of the record or proceedings at any time subsequent to that stated in the preceding section in the following manner:
      “(a) By order of court; or
      “(b) By written consent of the adverse party; or
      “(c) By filing a request for leave to file such amendment, with the amendment appended, after service upon each party as provided by Sec. 120, and with proof of service endorsed thereon. If no objection thereto has been filed by any party within fifteen days from the date of the filing of said request, the amendment shall be deemed to have been filed by consent of the adverse party. If an opposing party shall have objection to any part of such request or the amendment appended thereto, such objection in writing specifying the particular paragraph or paragraphs to which there is objection and the reasons therefor, shall, after service upon each party as provided by Sec. 120 and with proof of service endorsed thereon, be filed with the clerk within the time specified above and placed upon the next short calendar list.
      “The court may restrain such amendments so far as may be necessary to compel the parties to join issue in a reasonable time for trial. If the amendment occasions delay in the trial or inconvenience to the other party, the court may award costs in its discretion in his favor. For the purposes of this rule, a substituted pleading shall be considered an amendment. (See Gen. Stat., § 52-130 and annotations.)”

       General Statutes § 31-284 (a) provides: “An employer shall not be liable to any action for damages on account of personal injury sustained by an employee arising out of and in the course of his employment or on account of death resulting from personal injury so sustained, but an employer shall secure compensation for his employees as follows, except that compensation shall not be paid when the personal injury has been caused by the wilful and serious misconduct of the injure'd employee or by his intoxication. All rights and claims between employer and employees, or any representatives or dependents of such employees, arising out of personal injury or death sustained in the course of employment as aforesaid are abolished other than rights and claims given by this chapter, provided nothing herein shall prohibit any employee from securing, by agreement with his employer, additional benefits from his employer for such injury or from enforcing such agreement for additional benefits.”

       The workers’ compensation commissioner found that Aetna had “unreasonably contested liability” and had “unduly delayed payments of compensation.” (Emphasis added.)

       General Statutes § 31-284 (a) protects only the employer against civil actions for damages when workers’ compensation is an available remedy. Similar protection is afforded to a fellow employee, such as the defendant Larese, when workers’ compensation is available, by General Statutes § 31-293a, which provides in part: “If an employee or, in case of his death, his dependent has a right to benefits or compensation under this chapter on account of injury or death from injury caused by the negligence or wrong of a fellow employee, such right shall be the exclusive remedy of such injured employee or dependent and no action may be brought against such fellow employee unless such wrong was wilful or malicious or the action is based on the fellow employee’s negligence in the operation of a motor vehicle as defined in section 14-1.” This defendant, however, would not have had the benefit of the doctrine of collateral estoppel, on which the court relied in directing the verdict, because she was not a party to the workers’ compensation proceeding. The plaintiff, however, has asserted on appeal no claim against the defendant Larese seeking to impose liability on her apart from Aetna.

       See footnote 4 of the majority opinion for the text of General Statutes § 52-228b. The majority also seems to rely on Practice Book § 320, but § 320 merely provides for the time in which the motion must be filed. See footnote 5 of the majority opinion for the text of § 320.

       The legislative history indicates that the sole purpose of the statute was to allow the trial court to order an additur and, if not accepted, to set the verdict aside. 11 S. Proc., Pt. 2, 1965 Sess., p. 589.

       See footnote 1, supra.


author: Borden, J.

text:
    Henry C. Castellon, Jr., et al. v. Board of Zoning Appeals of the Town of Branford et al.
    (14276)
    Peters, C. J., Shea, Glass, Covello and Borden, Js.

      Argued December 10, 1991
    decision released March 3, 1992

      Norbert W. Church, Jr., for the appellants (defendants).

      Michael R. Caporale, Jr., for the appellees (plaintiffs).
   Borden, J.

The dispositive issue of this appeal concerns the scope of our decision in Conto v. Zoning Commission, 186 Conn. 106, 439 A.2d 441 (1982). In Conto, we held that an aggrieved property owner in the town of Washington could not appeal a zoning commission’s administrative decision directly to the Superior Court, but was required instead to exhaust the applicable administrative remedies by appealing first to the Washington zoning board of appeals. Id., 114. This appeal raises the question of whether, on the one hand, that decision turned on the particular regulations of the town of Washington or, on the other hand, such an exhaustion requirement is implicit in our statutes governing such appeals and is therefore of general applicability.

The defendants, the zoning board of appeals (board) and the planning and zoning commission (commission) of the town of Branford, appeal from the judgment of the trial court sustaining the zoning appeal of the plaintiffs. The board had denied an appeal taken to it by the plaintiffs from a decision of the commission. From that decision of the board, the plaintiffs appealed to the trial court, which held that the board did have jurisdiction to hear the plaintiffs’ appeal.

The Appellate Court granted certification to appeal, and we transferred the appeal to this court pursuant to Practice Book § 4023. We reverse.

The facts are undisputed. In February, 1989, the plaintiffs applied to the commission for a special use and for site plan approval in order to construct a three story building on the plaintiffs’ real estate located in a “Center Business BC District” in Branford. The first floor of the building was to contain offices, and the second and third floors were to be residential apartments. The basement was to contain a laundry room and storage space for the tenants, and part of the basement was to be unfinished. The commission approved the application subject to three conditions, two of which were that (1) the unfinished part of the basement “shall have a ceiling height no greater than 6ft.” and the storage and laundry areas “shall not be converted to any other use,” and (2) final engineering details shall be adjusted “as requested by Town Engineer.” After the commission had denied the plaintiffs’ request to delete these two conditions, the plaintiffs appealed to the board, which, on October 10, 1989, denied the plaintiffs’ appeal on the ground that it had no jurisdiction over an appeal from a decision of the commission.

The plaintiffs thereafter appealed to the Superior Court, naming both the commission and the board as defendants. The court, viewing the issue before it as whether the board had jurisdiction to review a decision of the commission, determined that under Conto v. Zoning Commission, supra, “[t]he correct manner to appeal the Commission’s decision [lay] in an appeal to the Board in the first instance and only if then unsuccessful before the Board, to the Superior Court.” Accordingly, the court sustained the plaintiffs’ appeal. This appeal followed.

The defendants claim that Conto does not control this case, that the Branford zoning regulations are different from those of the town of Washington that we construed in Conto, and that our statutes governing zoning matters do not mandate that all administrative decisions of zoning or planning and zoning commissions must first be appealed to the local zoning board of appeals before they are appealed to the Superior Court. The plaintiffs, to the contrary, argue that Conto does control this case, and that General Statutes § 8-6 requires that any administrative decision by a planning and zoning commission must first be appealed to the local zoning board of appeals before it is appealed to the court. We agree with the defendants that there is no such requirement.

In Conto, we concluded that the town zoning regulations vested in the zoning commission itself the power of enforcement of the local residential zoning regulations. Id., 110-11. Although the regulations in that case provided that the commission “may appoint a Zoning Enforcement Officer to determine violation of these Regulations, to order corrections or termination of such violations and to perform other functions as delegated by the Commission”; id., 110-11 n.4; there is nothing in the opinion indicating that such an officer had been appointed. We held that General Statutes § 8-3 (e) expressly permitted zoning commissions to provide for the manner of enforcement of zoning regulations, and that “[although the statutes permit delegation of authority to a zoning enforcement officer; see, e.g., General Statutes §§ 8-3 (f), 8-lla, 8-12; 3 Rathkopf, Law of Zoning and Planning (4th Ed. 1981) § 45.01; they do not expressly or by implication require such a delegation.” Conto v. Zoning Commission, supra, 112.

We further concluded in Conto that the “town zoning regulations could legally provide that appeals from enforcement decisions of a town zoning commission must, in the first instance, be taken to the town’s zoning board of appeals.” Id., 113. The Washington zoning regulations “empowerjed] its zoning board of appeals ‘[t]o hear and decide appeals where it is alleged that there is an error in any order or decision made by the Zoning Commission or its Enforcement Officer.’ Washington Zoning Regulations § 18.1.1.” Id. We rejected the argument that this provision violated General Statutes § 8-6 because “the words ‘the official’ in § 8-6 preclude review by a zoning board of appeals of the action of a commission.” Id. Instead, we held that when read in conjunction with General Statutes § 8-8, which refers to “any officer, department, board or bureau of any municipality, charged with the enforcement of any order, requirement or decision of said board,”* **** and in conjunction with General Statutes § 8-12, which provides for enforcement of zoning regulations “by the officer or official board or authority designated therein,” § 8-6 permitted “zoning boards of appeals to review the actions of any local officer, board or commission that has been designated by local regulations to be the official charged with the enforcement of local zoning regulations.” Id., 113-14.

Finally, in Conto we concluded that neither General Statutes § 8-9 nor General Statutes § 8-10, nor the two sections taken together, permit an aggrieved party direct access to the court when the local regulations provide for an intermediate appellate step between the commission and the court. Id., 115-18. We held that “[s]ince the zoning commission’s decision to issue a use permit was an enforcement action falling under § 8-6, Washington is free to authorize an appeal of that decision to its zoning board of appeals by means of [zoning regulation] § 18.1.1.” Id., 117.

Conto, therefore, turned on two critical factors: (1) our reading of the local regulations as vesting the enforcement power in the commission itself, rather than in a zoning enforcement officer, and thus the implicit designation by those regulations of the commission as the enforcement “official” within the meaning of § 8-6; and (2) § 18.1.1 of the Washington regulations, which specifically provided for resort to the zoning board of appeals to rectify “an error in any order or decision made by the Zoning Commission or its Enforcement Officer.” Neither of these factors is present in this case.

Unlike the Washington regulations, § 3 of the Bran-ford zoning regulations, entitled “Administration and Enforcement,” requires that there be a zoning enforcement officer and is replete with references to that officer as the official charged with the responsibility of enforcing the applicable regulations. Section 3.1 provides in relevant part that “[t]here shall be a Zoning Enforcement Officer who may also be the Building Inspector of the Town of Branford if so appointed. The Zoning Enforcement Officer shall have the responsibility and authority to enforce the provisions of these Regulations in accordance with any administrative rules and procedures established by the Commission.” Section 3.6 gives the zoning enforcement officer the authority to “approve Applications for a Certificate of Zoning Compliance and [to] issue [a] Certificate of Zoning Compliance when he determines that all requirements of these Regulations have been met,” and to “require the applicant to furnish measurements of any construction features subject to the requirements of these Regulations . . . .” Section 3.7 authorizes the officer “to inspect or cause to be inspected any land, building or other structure to determine compliance with these Regulations.” Finally, § 3.8 authorizes the officer “to issue a Stop Work Order if in his judgment the use of land, buildings and other structures . . . [is] not being carried out in compliance with these Regulations,” and “to order in writing the remedying of any condition found to be in violation of these Regulations.”

Furthermore, § 4 of the Branford regulations, entitled “Zoning Board of Appeals,” provides in its entirety as follows: “4.1 The Zoning Board of Appeals shall have all of the powers and duties prescribed by these Regulations and the General Statutes of the State of Connecticut and may adopt rules and procedures necessary to exercise its authority.” (Emphasis in original.) Thus, unlike the Washington regulation construed in Conto, this provision does not interpose an intermediate appellate step between decisions of the commission and the court.

We conclude, therefore, that since, under the zoning regulations in this case, the zoning enforcement officer, and not the commission, was “the official charged with the enforcement of this chapter [124] or any bylaw, ordinance or regulation adopted under the provisions of this chapter,” within the meaning of General Statutes § 8-6, the board was correct in declining to review the commission’s decision in this case. We conclude further that, since the regulations in this case do not provide for review of the commission’s decision by the board, there was no further administrative remedy available from the board for the plaintiffs to exhaust before resorting to an appeal pursuant to General Statutes § 8-9. Accordingly, the trial court improperly determined that the board should have heard the plaintiffs’ appeal from the decision of the commission.

Our conclusion is buttressed by the fact that we have routinely sanctioned similar direct appeals to the court from decisions of zoning and planning and zoning commissions without requiring prior resort to the local zoning boards of appeals. See, e.g., TLC Development, Inc. v. Planning & Zoning Commission, 215 Conn. 527, 577 A.2d 288 (1990) (appeal from denial of site plan approval by Branford commission); Schwartz v. Planning & Zoning Commission, 208 Conn. 146, 543 A.2d 1339 (1988) (appeal from denial of site plan approval by Hamden commission); Goldberg v. Zoning Commission, 173 Conn. 23, 376 A.2d 385 (1977) (appeal from denial of site plan approval by Simsbury commission); Marandino v. Planning & Zoning Commission, 21 Conn. App. 421, 573 A.2d 768 (1990) (appeal from denial of site plan approval by Greenwich commission); Allied Plywood, Inc. v. Planning & Zoning Commission, 2 Conn. App. 506, 480 A.2d 584, cert. denied, 194 Conn. 808, 483 A.2d 612 (1984) (appeal from denial of site plan approval by South Windsor commission). These decisions implicitly recognize that the exhaustion requirement we perceived in Conto was a function solely of the particular regulations at issue there and is not, as the plaintiffs’ argument suggests, required generally by General Statutes §§ 8-6, 8-8, 8-9 or 8-10.*

This discussion leaves the question of the form of the remand in this case. There is a procedural lacuna in these proceedings, because the plaintiffs, in misguided reliance on Conto, appealed to the trial court from the action of the board, rather than directly to the court from the decision of the commission, which would have been the proper procedural route. Conceivably, therefore, on the remand the case could be subject to a motion to dismiss by the defendants because the plaintiffs had not filed an appeal to the court from the decision of the commission. The defendants do not suggest such a draconian result, however, and they should not be heard to complain that the case arrived at the proper place by virtue of two steps rather than one. Furthermore, the commission was made a party defendant, along with the board, in the plaintiffs’ appeal to the trial court. Under these circumstances, we deem it appropriate that, pursuant to General Statutes § 8-8 (p), on the remand the trial court should retain the case and consider it as an appeal from the decision of the commission.

The judgment is reversed, and the case is remanded for further proceedings in accordance with this opinion.

In this opinion the other justices concurred.

       The plaintiffs are the named plaintiff, Henry C. Castellón, Jr., and Ann Castellón, Phillip Castellón, Christine Castellón, Anthony Castellón and Mary Castellón.

       Although the court properly viewed the issue before it as involving the jurisdiction of the board, in dictum it opined that the two conditions imposed by the commission on the plaintiffs’ special use and site plan approval were not supported by the zoning regulations. Although the plaintiffs have addressed the merits of that dictum in the appeal, we decline to consider that issue and leave it to the full consideration of the trial court upon remand.

       General Statutes § 8-3 (e) provides: “The zoning commission shall provide for the manner in which the zoning regulations shall be enforced.”

       General Statutes § 8-6 provides in pertinent part: “The zoning board of appeals shall have the following powers and duties: (1) To hear and decide appeals where it is alleged that there is an error in any order, requirement or decision made by the official charged with the enforcement of this chapter or any bylaw, ordinance or regulation adopted under the provisions of this chapter . . . .” (Emphasis added.)

       The relevant part of General Statutes (Rev. to 1979) § 8-8 provided:
      “appeal from board to court, review by supreme court. Any person or persons severally or jointly aggrieved by any decision of said board, or any person owning land which abuts or is within a radius of one hundred feet of any portion of the land involved in any decision of said board, or any officer, department, board or bureau of any municipality, charged with the enforcement of any order, requirement or decision of said board, may, within fifteen days from the date when notice of such decision was published in a newspaper pursuant to the provisions of section 8-3 or 8-7, as the case may be, take an appeal to the superior court for the judicial district in which such municipality is located, which appeal shall be made returnable to said court in the same manner as that prescribed for civil actions brought to said court.”

       The relevant part of General Statutes (Rev. to 1979) § 8-12 provided:
      “procedure when regulations are violated. If any building or structure has been erected, constructed, altered, converted or maintained, or any building, structure or land has been used, in violation of any provision of this chapter or of any bylaw, ordinance, rule or regulation made under authority conferred hereby, any official having jurisdiction, in addition to other remedies, may institute an action or proceeding to prevent such unlawful erection, construction, alteration, conversion, maintenance or use or to restrain, correct or abate such violation or to prevent the occupancy of such building, structure or land or to prevent any illegal act, conduct, business or use in or about such premises. Such regulations shall be enforced by the officer or official board or authority designated therein, who shall be authorized to cause any building, structure, place or premises to be inspected and examined and to order in writing the remedying of any condition found to exist therein or thereon in violation of any provision of the regulations made under authority of the provisions of this chapter or, when the violation involves grading of land or the removal of earth, to issue, in writing, a cease and desist order to be effective immediately.”

       General Statutes § 8-9 provides: “Appeals from zoning commissions and planning and zoning commissions may be taken to the superior court and, upon certification for review, to the appellate court in the manner provided in section § 8-8.”

       General Statutes § 8-10 provides: “The provisions of sections 8-8 and 8-9 shall apply to appeals from zoning boards of appeals, zoning commissions or other final zoning authority of any municipality whether or not such municipality has adopted the provisions of this chapter and whether or not the charter of such municipality or the special act establishing zoning in such municipality contains a provision giving a right of appeal from zoning boards of appeals or zoning commissions and any provision of any special act, inconsistent with the provisions of said sections, is repealed.”

       See footnote 7, supra.

       General Statutes § 8-8 (b) provides: “Except as provided in subsections (c) and (d) of this section and sections 7-147 and 7-147Í, any person aggrieved by any decision of a board may take an appeal to the superior court for the judicial district in which the municipality is located. The appeal shall be commenced by service of process in accordance with subsections (e) and (f) of this section within fifteen days from the date that notice of the decision was published as required by the general statutes. The appeal shall be returned to court in the same manner and within the same period of time as prescribed for civil actions brought to that court.”

       Indeed, the plaintiffs acknowledge that their interpretation of Conto v. Zoning Commission, 186 Conn. 106, 439 A.2d 441 (1982), and General Statutes § 8-6 “would involve a dramatic change in current appeal procedures” and that at least “a limited amount of confusion and inconvenience would occur.” They therefore urge that a decision in their favor should apply only prospectively. Suffice it to say that we should be most reluctant to construe any statute so as to lead to such problematic results.

       General Statutes § 8-8 (p) provides: “The right of a person to appeal a decision of a board to the superior court, and the procedure prescribed in this section, shall be liberally interpreted in any case where a strict adherence to these provisions would work surprise or injustice. The appeal shall be considered to be a civil action and, except as otherwise required by this section or the rules of the superior court, pleadings may be filed, amended or corrected, and parties may be summoned, substituted or otherwise joined, as provided by the general statutes.”
      This provision is derived from Public Acts 1989, No. 89-356, which took effect October 1,1989. General Statutes § 8-9 applies the provisions of § 8-8 to appeals from decisions of zoning and planning and zoning commissions.


author: Covello, J.

text:
    Carl M. Dunham, Jr. v. Roger S. Dunham
    (14280)
    Shea, Callahan, Covello, Borden and Berdon, Js.
    Argued November 8, 1991
    decision released March 10, 1992

      Michael E. Grossmann, with whom, on the brief, was Timothy Brignole, for the appellant (defendant).

      Norman J. Voog, with whom, on the brief, was Allen Gary Palmer, for the appellee (plaintiff).
   Covello, J.

This is an action for trespass to real property seeking damages and an injunction based upon the defendant’s alleged unlawful use of the plaintiff’s airport located in New Milford. The dispositive issue on appeal is whether the doctrine of res judicata acts as a bar to the prosecution of the counterclaim. We conclude that it does and, therefore, we affirm the judgment of the trial court that so concluded.

The plaintiff, Carl M. Dunham, Jr., and defendant, Roger S. Dunham, are brothers. This is the third suit in their ongoing litigation concerning conflicting claims to the ownership of certain real property originally belonging to their deceased father and mother. The plaintiff commenced this action alleging that the defendant had unlawfully entered the plaintiff’s airport property located in New Milford. The plaintiff sought damages for trespass and also for his loss of use of the property. The plaintiff also sought damages for the defendant’s failure to release an attachment and judgment lien on the property that he caused to be placed on the New Milford land records. In a plea to the court’s equitable jurisdiction, the plaintiff sought to enjoin the defendant’s low level acrobatic flying over the airport property, his erection of additional buildings on the premises, and an order directing the removal of certain buildings that the defendant had already built on the property. Finally, the plaintiff sought damages for libel.

The defendant filed an answer, several special defenses and a counterclaim. In the counterclaim, the defendant alleged that: (1) the plaintiff had acquired title to the airport in 1974 from their mother, Jessica Scott Dunham; (2) the plaintiff had represented to their mother that he would hold the property for the benefit of the defendant; (3) the plaintiff had paid nothing for the property; (4) the transfer to the plaintiff was the product of undue influence exercised by the plaintiff; (5) the plaintiff held title to the property as constructive trustee for the defendant’s benefit; and (6) the plaintiffs attempts to assert a claim to exclusive ownership of the premises constituted a breach of a fiduciary duty owed to the defendant. By way of relief, the defendant sought: (1) a decree declaring that the plaintiff was a constructive trustee for the benefit of the defendant; (2) a decree ordering the plaintiff to convey the property to the defendant; (3) an accounting; and (4) exemplary damages.

The plaintiff filed an answer and a series of special defenses to the counterclaim alleging that the subject matter of the defendant’s counterclaim had been previously litigated between the parties and determined by a judgment in the plaintiffs favor. The special defenses claimed, inter alia, that the prior judgment was an absolute bar to subsequent action on the same claims. In his reply, the defendant denied the allegations of the special defenses.

The plaintiff moved for summary judgment with respect to the counterclaim. The trial court granted the motion, concluding that the issues sought to be raised therein were barred by: (1) the doctrine of res judicata;* (2) laches; and (3) the three year statute of limitations contained in General Statutes § 52-577. The trial court further concluded that the defendant lacked standing to pursue the issues raised in the counterclaim. The trial court subsequently rendered judgment for the plaintiff on the defendant’s counterclaim. The defendant appealed to the Appellate Court. We thereafter transferred the matter to ourselves pursuant to Practice Book § 4023.

On appeal, the defendant asks us, inter alia, to reverse the judgment of the trial court because the doctrine of res judicata does not bar his litigating the matters raised in his counterclaim. We agree with the trial court that res judicata bars the counterclaim.

In Dunham v. Dunham, 204 Conn. 303, 305, 528 A.2d 1123 (1987) (Dunham I), we took up the first lawsuit between the same two parties, which we characterized as “concerning the validity of probate proceedings and inter vivos transfers of family property.” (Emphasis added.) In that case, the present defendant, Roger S. Dunham, was the plaintiff. His complaint in that suit was in three counts. The first count asked the court to use its equitable powers: (1) to set aside the will of Jessica Dunham; (2) to set aside the probate decree admitting the will to probate; and (3) to impose a constructive trust on all of the lands of Jessica Dunham now owned by the defendant whether received by will or otherwise.

The second count claimed a breach of contract. Paragraph 16 alleged that “[a]t all times during Jessica Dun-ham’s life, she repeatedly declared to [Roger Dunham] and others that it was her wish and understanding that the airport land would be conveyed to [Roger Dunham] upon and subsequent to her death.” Paragraph 17 claimed, inter alia, that “[Carl Dunham] continuously withheld and concealed from [Roger Dunham] that the airport land was, in fact, not included within the estate of Jessica Dunham, having been ostensibly conveyed by Jessica Dunham to [Carl Dunham] by a deed dated April 3,1974, but not recorded on the land records until October 13,1978, ten days prior to Jessica Dunham’s death.”

The third count claimed legal malpractice. Paragraph 22 alleged Carl Dunham’s wrongful conduct. It stated that “while acting as attorney for the late Jessica Dun-ham, the estate of the late Jessica Dunham, and [Roger Dunham], all at the same time, [Roger Dunham] has been grievously harmed and damaged in the following respects ... A The wrongful conduct of [Carl Dun- ham] in securing the alleged transfer of the airport land from Jessica Dunham, which was a product entirely of his own self-interest and was inconsistent with the interest of his clients, greatly diminished the value of the estate of Jessica Dunham and was intended to hinder [Roger Dunham] in pursuing his claim to the airport land . . . . ” (Emphasis added.)

Carl Dunham denied the material allegations of the complaint. Thus, within the framework of the pleadings in Dunham I, all of the circumstances attending Jessica Dunham’s 1974 transfer of the so-called airport property were placed in issue. Within the context of what was pleaded, this either included, or could have included, her state of mind at the time of the transfer, the consideration paid for the property and whether Carl Dunham exercised undue influence in connection with the transaction.

Not only did the pleadings in Dunham I present the same issues raised in the counterclaim here, our examination of the record in that case discloses that those issues were actually litigated in that case. In Dunham I, we concluded that the jury might reasonably have found, inter alia, that “[i]n 1974, Jessica Dunham conveyed to [Carl Dunham] 300 acres of the property she had inherited from the estate of her late husband. [Carl Dunham], a member of the bar of this state, acting as Jessica Dunham’s lawyer, prepared all of the documentation in connection with the transaction. That conveyance included the family residence, the inn, the airport, and the office building in which [Carl Dunham] conducted his law practice. [Emphasis added.]

“In 1978, Jessica Dunham executed, in [Carl Dun-ham’s] law office, a will that he had drafted for her. This will left her net residuary estate after taxes, approximately $30,000, to be divided equally among her three children. It also appointed [Carl Dunham] the executor of her estate, forgave and canceled all indebtedness of [Carl Dunham] to Jessica Dunham, and exercised in favor of [Carl Dunham] the power of appointment created by the will of Carl Dunham, Sr., thereby ensuring that [Carl Dunham] would inherit the remaining 600 acres of property that Jessica Dunham had received under Carl Dunham, Sr.’s will. . . .

“Jessica Dunham died of cancer on October 23,1978. On October 31,1978, [Carl Dunham] asked [Roger Dun-ham] to come to his office to discuss the administration of their mother’s estate. During that meeting, [Carl Dunham] asked [Roger Dunham] to sign several documents to facilitate the administration of the estate. [Roger Dunham], in turn, expressed interest in acquiring title to the airport, which originally had been part of Carl Dunham, Sr.’s estate. He expected to inherit that property because the operation of the airport had been his domain and, on the basis of conversations he had had with his mother, he had understood that property to be part of his inheritance from her estate. [Carl Dun-ham] replied that they would ‘have to start thinking about’ arrangements for the transfer of the airport property. The parties had several similar discussions about the airport property on subsequent occasions. At no time during those discussions, however, did [Carl Dunham] disclose that, as of 1974, he himself held title to the airport, and that under the terms of Jessica Dun-ham’s will, he had acquired absolute fee simple title to the remainder of the property in their mother’s estate.” (Emphasis added.) Dunham I, supra, 305-307.

At the close of the plaintiff’s case in Dunham I, the trial court granted Carl Dunham’s motion for a directed verdict with respect to the second (breach of contract) and third (legal malpractice) counts of the complaint. The jury thereafter responded affirmatively to Roger Dunham’s interrogatories concerning undue influence in connection with the execution of the will. The trial court then rendered judgment in favor of Roger Dun-ham with respect to the first count and entered a decree setting aside the admission of Jessica Dunham’s will to probate. On appeal, we affirmed the judgment.

Our rules of res judicata are based on the public policy that “a party should not be able to relitigate a matter which it already has had an opportunity to litigate.” In re Juvenile Appeal (83-DE), 190 Conn. 310, 318, 460 A.2d 1277 (1983). From our examination of the record in Dunham I, we conclude that the defendant’s claims of constructive trust, lack of consideration and undue influence in connection with the transfer of the airport property were either addressed or could have been addressed within the framework of the pleadings in the earlier action. “ ‘The doctrine of res judicata provides that a former judgment serves as an absolute bar to a subsequent action involving any claims relating to such cause of action which were actually made or which might have been made.’ Gagne v. Norton, 189 Conn. 29, 32, 453 A.2d 1162 (1983).” Statewide Grievance Committee v. Presnick, 216 Conn. 135, 138-39, 577 A.2d 1058 (1990).

The judgment is affirmed.

In this opinion the other justices concurred.

       See Dunham v. Dunham, 217 Conn. 24, 584 A.2d 445 (1991), and Dunham v. Dunham, 204 Conn. 303, 528 A.2d 1123 (1987).

       The multigenerational character of this seemingly endless dispute is similar to the eternal Chancery proceedings in Jamdyce v. Jamdyce. See C. Dickens, Bleak House (1853).

       The defense of res judicata must be specially pleaded. See Practice Book §164.

       General Statutes § 52-577 provides: “action founded upon a tort.
      No action founded upon a tort shall be brought but within three years from the date of the act or omission complained of.”

       Practice Book § 4002 (c) provides in part: “When more than one count is presented in a . . . counterclaim . . . a summary judgment upon only those counts which are directed against a party against whom no relief is sought in the remaining counts of the . . . counterclaim . . . shall constitute a final judgment.” The summary judgment in this instance becomes, therefore, an appealable matter notwithstanding the pendency of the original action.

       Because we conclude that res judicata bars the pursuit of the matters raised in the defendant’s counterclaim, we do not address the issues pertaining to laches and the statute of limitations.

       “For purposes of [the Dunham i] appeal, the relevant terms of the transaction [were] as follows. The ostensible consideration for the conveyance was approximately $358,000. [Carl Dunham], however, paid no money to Jessica Dunham for the property. Instead, he assumed certain mortgages totaling about $52,000 and another $50,000 in unsecured debts owed by her. In connection with that transaction, [Carl Dunham] also gave her a promissory note for $256,627.75, but [he] never paid any money on that note.”Dunham v. Dunham, 204 Conn. 303, 306 n.1, 528 A.2d 1123 (1987).

       “Jessica Dunham sent a letter, dated August 24,1978, to [Roger Dun-ham] concerning the disposition of the Dunham property. She stated in the letter that she was conveying all of the property to [Carl Dunham], who would manage it, ‘in order to have one person in charge.’ She also expressed her conviction that [Carl Dunham] would ‘be fair’ and that her three children would work out any differences of opinion that might arise as a result of this arrangement.” Dunham v. Dunham, 204 Conn. 303, 306 n.2, 528 A.2d 1123 (1987).

       There were no interrogatories submitted to the jury concerning the circumstances attending the 1974 transfer of the airport property.

       "The principles that govern res judicata are described in Restatement (Second), Judgments (1982). The basic rule is that of § 18, which states in relevant part: ‘When a valid and final personal judgment is rendered in favor of the plaintiff: (1) [t]he plaintiff cannot thereafter maintain an action on the original claim or any part thereof, although he may be able to maintain an action upon the judgment . . . .’As comment (a) to § 18 explains, ‘[wjhen the plaintiff recovers a valid and final personal judgment, his original claim is extinguished and rights upon the judgment are substituted for it. The plaintiffs original claim is said to be “merged” in the judgment.’ Our recent case law has uniformly approved and applied the principle of claim preclusion or merger. See Gagne v. Norton, 189 Conn. 29, 32, 453 A.2d 1162 (1983); Corey v. Avco-Lycoming Division, [163 Conn. 309, 317, 307 A.2d 155 (1972), cert. denied, 409 U.S. 1116, 93 S. Ct. 903, 34 L. Ed. 2d 699 (1973)].
      “Because the operative effect of the principle of claim preclusion or merger is to preclude relitigation of the ‘original claim,’ it is crucial to define the dimensions of that ‘original claim.’ The Restatement (Second), Judgments provides, in § 24, that ‘the claim [that is] extinguished includes all rights of the plaintiff to remedies against the defendant with respect to all or any part of the transaction, or series of connected transactions, out of which the action arose. What factual grouping constitutes a “transaction”, and what groupings constitute a “series”, are to be determined pragmatically, giving weight to such considerations as whether the facts are related in time, space, origin, or motivation, whether they form a convenient trial unit, and whether their treatment as a unit conforms to the parties’ expectations or business understanding or usage.’ In amplification of this definition of ‘original claim,’ § 25 of the Restatement (Second) states that ‘[t]he rule of § 24 applies to extinguish a claim by the plaintiff against the defendant even though the plaintiff is prepared in the second action (1) [t]o present evidence or grounds or theories of the case not presented in the first action, or (2) [t]o seek remedies or forms of relief not demanded in the first action.’
      “The transactional test of the Restatement provides a standard by which to measure the preclusive effect of a prior judgment, which we have held to include ‘any claims relating to the cause of action which were actually made or might have been made.’ Corey v. Avco-Lycoming Division, supra, 317; Gagne v. Norton, supra, 32. In determining the nature of a cause of action for these purposes, we have long looked to the ‘group of facts which is claimed to have brought about an unlawful injury to the plaintiff; Bridgeport Hydraulic Co. v. Pearson, 139 Conn. 186, 197, 91 A.2d 778 (1952); and have noted that ‘[e]ven though a single group of facts may give rise to rights for several different kinds of relief, it is still a single cause of action.’ Id.” Duhaime v. American Reserve Life Ins. Co., 200 Conn. 360, 364-65, 511 A.2d 333 (1986).