Crotty v. Borough of Naugatuck, 9649

• Citation: 25 Conn.App. 599,595 A.2d 928
• Decision Date: 27 August 1991
• Docket Number: No. 9649,9649
• Court: Connecticut Court of Appeals
• Parties: John CROTTY v. BOROUGH OF NAUGATUCK et al.

Page 928

595 A.2d 928

25 Conn.App. 599

John CROTTY v. BOROUGH OF NAUGATUCK et al.

No. 9649.

Appellate Court of Connecticut.

Argued April 26, 1991.

Decided Aug. 27, 1991.

Mary Beattie Schairer, with whom, on the brief, were Hugh Keefe, Donn A. Swift and John M. Walsh, for appellant (plaintiff).

Thomas J. Rechen, with whom, on the brief, was Anthony J. Natale, for appellees (defendants).

Before EDWARD Y. O'CONNEL, FOTI and LANDAU, JJ.

FOTI, Judge.

The plaintiff appeals from the judgment of the trial court, rendered after a trial to the court, in favor of the defendant. ¹ The plaintiff sought reimbursement pursuant to General Statutes § 53-39a ² from the borough of Naugatuck, where he was employed as a police officer, for legal fees incurred in his defense of perjury charges. The plaintiff claims that the trial court improperly found that he was not acting in the course of his official duties while testifying before the grand jury.

The plaintiff, a sergeant in the Naugatuck police department, was subpoenaed to testify before a grand jury investigating possible official corruption. He testified on June 13 and July 1, 1985, regarding a police union sponsored fund-raiser in 1982 and an alleged kickback to the mayor. On the second day the plaintiff was questioned in detail about a check that he had signed that was made payable to cash and recorded in the check register as a campaign donation to the mayor. ³ In December, 1985, the plaintiff was charged with two counts of perjury. The first count pertained to the testimony the plaintiff gave on June 13, and the second count resulted from the July 1, 1985 testimony. The plaintiff retained counsel and on March 17, 1987, a jury convicted him on the first count, but acquitted him on the second count.

After the trial, the plaintiff wrote to the clerk for the borough of Naugatuck seeking $21,187.60 as reimbursement for his attorney's fees. The borough refused to pay, and the plaintiff brought this action. The trial court found that the plaintiff's appearance before the grand jury was not made in the course of his official duties and, therefore, rendered judgment for the defendant.

The plaintiff challenges on two grounds the trial court's finding that the plaintiff's testimony was not given in the course of his official duties. The plaintiff claims that the trial court improperly classified this issue as a question of fact, and that the trial court in its finding improperly considered the plaintiff's union activity rather than merely his testimony. We affirm the judgment of the trial court.

The plaintiff first argues that the issue of whether his appearance before the grand jury was made in the course of his official duties was a question of statutory interpretation, and that the trial court's treatment of this issue as a question of fact requires reversal of the judgment. We will not review this claim because the plaintiff did not raise this issue before the trial court.

The plaintiff addressed this central issue as a question of fact at trial. Both his pretrial memorandum and trial brief urged the trial court to find as a factual matter that he was acting within the course of his duties. ⁴ Having lost this issue at trial, the plaintiff seeks on appeal to reverse the trial court claiming that this issue is properly a question of statutory interpretation. This court will not review issues of law that are raised for the first time on appeal. Practice Book § 4185; Texaco, Inc. v. Golart, 206 Conn. 454, 460, 538 A.2d 1017 (1988). To allow the plaintiff to proceed on his factual theory at trial and then press his statutory interpretation on appeal would amount to an ambuscade of the trial court. See State v. King, 216 Conn. 585, 590, 583 A.2d 896 (1990); State v. DeGennaro, 147 Conn. 296, 304, 160 A.2d 480, cert. denied, 364 U.S. 873, 81 S.Ct. 116, 5 L.Ed.2d 95 (1960).

The second issue raised by the plaintiff is whether it was proper for the trial court to consider the plaintiff's union activity in its determination that his grand jury testimony was given outside his official duties. The plaintiff first argues that the trial court should not have considered the 1982 union activity at all in analyzing whether the grand jury testimony regarding this activity was properly within the course of the plaintiff's duties. We disagree. The sole reason for the plaintiff's testimony before the grand jury was his previous union activity. It would be impossible for the trial court to decide whether the testimony was given in the course of the plaintiff's official duties without considering this important circumstance.

The plaintiff further argues that even if the trial court properly considered the union activity, it should have found that this activity was incidental to his employment. The plaintiff specifically challenges the trial court's finding that "the union's administration of its own affairs and funds" was not within the course of the plaintiff's official duties. ⁵ We affirm the judgment of the trial court. ⁶

In interpreting the phrase "in the course of his duty" as used in § 53-39a, our Supreme Court has relied on the definition of this phrase in the Workers' Compensation Act, General Statutes § 31-275(12). Link v. Shelton, 186 Conn. 623, 627, 443 A.2d 902 (1982). This interpretation gives us a three part test for deciding whether this statutory requirement has been met. Conduct will be found to have occurred in the course of duties if it took place (1) within the period of employment, (2) at a place where the employee could reasonably be, and (3) while the employee is reasonably fulfilling the duties of employment or doing something incidental to it. Rawling v. New Haven, 206 Conn. 100, 106-107, 537 A.2d 439 (1988); Ryerson v. A.E. Bounty Co., 107 Conn. 370, 372, 140 A. 728 (1928). The plaintiff was clearly acting within the period of his employment and at a place where he could reasonably be, both while giving the grand jury testimony and while engaging in the union activity that was the subject of that testimony. The sole remaining issue, therefore, is whether the third prong of this test has been met.

To succeed on his claim, the plaintiff must show that his grand jury testimony regarding the union fundraiser and the subsequent disbursements either fulfilled his duties as a police officer or were incidental to his employment. Because the record shows that the defendant neither directed these activities, nor had any interest in them, they could not have been performed in fulfillment of the plaintiff's duties as an officer. See McNamara v. Hamden, 176 Conn. 547, 550, 398 A.2d 1161 (1979). The plaintiff is left with the burden of showing that these activities were incidental to his employment as a police officer. The trial court resolved this factual question against the plaintiff. See Fair v. People's Savings Bank, 207 Conn. 535, 541, 542 A.2d 1118 (1988). "This court will not retry the facts found by the trial court when they are amply supported by the evidence and are not clearly erroneous." Oakleaf Marina, Inc. v. Ertel, 23 Conn.App. 91, 94, 579 A.2d 568, cert. denied 216 Conn. 827, 582 A.2d 206 (1990); Halepas v. Malerba, 3 Conn.App. 403, 404, 488 A.2d 847 (1985).

The record supports the trial court's finding. There...