Geren v. Board of Educ. of Town of Brookfield

• Decision Date: 26 January 1995
• Docket Number: No. 11858,11858
• Court: Connecticut Court of Appeals
• Parties: , 96 Ed. Law Rep. 151 Russell GEREN v. BOARD OF EDUCATION OF the TOWN OF BROOKFIELD et al.

Page 616

650 A.2d 616

36 Conn.App. 282, 96 Ed. Law Rep. 151

Russell GEREN v. BOARD OF EDUCATION OF the TOWN OF BROOKFIELD et al.

No. 11858.

Appellate Court of Connecticut.

Argued Sept. 19, 1994.

Decided Dec. 6, 1994.

Certification Denied Jan. 26, 1995.

William M. Laviano, Ridgefield, for appellant (plaintiff).

Robert J. Murphy, with whom, on the brief, was Catherine M. Thompson, Hartford, for appellees (defendants).

Before LANDAU, SCHALLER and FREDERICK A. FREEDMAN, JJ.

LANDAU, Judge.

The plaintiff, Russell Geren, appeals from the judgment of the trial court rendered on a jury verdict in favor of the defendants, the Brookfield board of education and Michael Perrone. Geren claims that the trial court improperly (1) commented on the evidence in its charge to the jury, (2) failed to create an appropriate record of the trial proceedings, (3) failed to charge the jury regarding his liberty interest claim, (4) denied counsel access to the courtroom during part of the trial proceedings, (5) found that he was not entitled to a hearing pursuant to General Statutes § 10-151 ¹ to determine the issue of the voluntariness of his resignation, and (6) refused to admit testimony concerning employee rules and written board policies. We affirm the judgment.

The jury reasonably could have found the following facts. Geren was a tenured high school teacher employed by the Brookfield board of education. During the fall of 1987, he handed a series of flirtatious notes and a birthday card to a sixteen year old female student. Upon receiving the last note, the student showed Geren's correspondence to her parents, who contacted the school principal. After the principal ordered Geren to have no contact with the student pending completion of the investigation, Geren approached her and inquired why she had reported him. The defendant Michael Perrone, the superintendent of the school, was apprised of the situation and ordered Geren suspended with pay pending resolution of the matter.

Shortly thereafter, Perrone met with Geren to discuss the student's allegations. Geren contended that he could not recall writing the notes because at the time of the correspondence he had been under extreme stress as a result of the stock market crash of October, 1987. Perrone discussed the seriousness of the matter, suggested that Geren resign, and indicated that he would seek Geren's termination in the absence of a resignation.

On December 16, 1987, the board of education voted to consider the termination of Geren's contract of employment pursuant to General Statutes § 10-151, the Teacher Tenure Act. Subsequently, Geren agreed to resign in exchange for his being placed on leave with pay for one year and receiving $3500 in "job location" assistance. On December 21, 1987, the board accepted Geren's resignation, effective December 31, 1988.

In August, 1988, Geren wrote to the board of education, revoking his resignation on the ground that it had been induced by pressure from the defendants while he was afflicted with depression and stress. Perrone refused to accept the revocation. Thereafter, Geren filed a writ of summons and revised complaint alleging that the defendants' failure to hold a hearing to determine the voluntariness of his resignation deprived him of a "property and liberty interest" without procedural due process and breached his employment contract. After a verdict and judgment for the defendants on both counts, this appeal followed.

I

Geren first claims that the trial court improperly commented on the evidence in its charge to the jury regarding the issue of whether he was capable of making an intelligent, knowing, and voluntary resignation. The effect of the comments, Geren asserts, was that the trial court usurped the fact-finding function of the jury.

At trial, Geren introduced and the court admitted a medical report addressed to his psychiatric condition. In it, Arthur Africano, a psychiatrist, diagnosed Geren as having an "adjustment disorder" and an "obsessive-compulsive personality." Africano, who did not testify, drew no conclusions in the report as to whether these conditions had a bearing on Geren's ability to resign voluntarily. He expressed no causal connection between the diagnosis and Geren's act of resignation.

Geren now objects to the following portions of the trial court's charge: (1) "The case is silent with respect to any professional testimony about the impact of these manifestations upon his ability to make a knowing, voluntary and intelligent decision with regard to his resignation"; (2) "The manifestations, Geren's categorizations and Africano's diagnosis fall far short medically of establishing any inability to reach a knowing, voluntary and intelligent choice or decision or judgment on the alternatives available to him"; and (3) "You certainly can consider his mental status. He described it to you, but you must also remember there's no professional evidence that says he could not make a free choice...."

"In reviewing a challenge to jury instructions, we must examine the charge in its entirety." Felsted v. Kimberly Auto Services, Inc., 25 Conn.App. 665, 668, 596 A.2d 14, cert. denied, 220 Conn. 922, 597 A.2d 342 (1991). "While the instructions need not be exhaustive, perfect or technically accurate, they must be correct in law, adapted to the issues and sufficient for the guidance of the jury." (Internal quotation marks omitted.) Id., quoting Preston v. Keith, 217 Conn. 12, 17, 584 A.2d 439 (1991).

The matter of commenting on evidence rests within the discretion of the trial court and impropriety will be found only where that discretion has been abused. Heslin v. Malone, 116 Conn. 471, 477-78, 165 A. 594 (1933); Felsted v. Kimberly Auto Services, Inc., supra, 25 Conn.App. at 669, 596 A.2d 14. It is not only the right, but often the duty of the trial court to comment on the evidence. Felsted v. Kimberly Auto Services, Inc., supra, at 669, 596 A.2d 14. Accordingly, it is sometimes proper for the court to remark on the absence of particular evidence; see id., 670; and "[i]t is no objection to such comments that they will tend to uncover the weakness of a weak case...." (Internal quotation marks omitted.) Heslin v. Malone, supra, 116 Conn. at 477, 165 A. 594. The trial court's discretion in this matter is tempered only by the mandate that its comments be reasonable and fair and not misstate facts or evidence. Id. "The nature and extent of such comment must largely depend upon the facts involved in the particular case and the manner in which it has been tried." Id., at 478, 165 A. 594.

In this case, the trial court pointed out to the jury that Geren had presented no direct medical evidence proving that he was incapable of voluntarily resigning. Rather, Geren offered a medical report and other evidence from which that inference might be drawn. In highlighting this distinction, the trial court did not remove from the jury the question of whether Geren voluntarily resigned. A review of the record and the entire charge confirms that the trial court did not abuse its discretion in this case.

II

Geren next claims that the trial court failed to create a proper record of the proceedings. He complains that the court maintained no record of the portion of testimony that was read back to the jury in response to a particular inquiry from the jury.

"If a claim on appeal is nonconstitutional in nature, the burden of establishing that the error was harmful is on the appellant." State v. Williams, 231 Conn. 235, 250, 645 A.2d 999 (1994); State v. Truppi, 182 Conn. 449, 465, 438 A.2d 712 (1980), cert. denied, 451 U.S. 941, 101 S.Ct. 2024, 68 L.Ed.2d 329 (1981). For this reason, bare assertions of error, devoid of analysis, are insufficient to warrant appellate review. Gaudio v. Gaudio, 23 Conn.App. 287, 311, 580 A.2d 1212, cert. denied, 217 Conn. 803, 584 A.2d 471 (1990); State v. Franklin, 20 Conn.App. 96, 99, 563 A.2d 1383 (1989).

Here, Geren asserts that the court's failure to maintain the missing portion of testimony constitutes prejudicial error. He does not define, however, which portion is missing, nor what issue he would have raised were the transcript available. He also does not analyze the specific harm resulting from his inability to raise that issue. Accordingly, we decline to review this claim because it has been inadequately briefed. Practice Book § 4065; State v. Yopp, 35 Conn.App. 740, 750, 646 A.2d 298 (1994).

III

Geren next asserts that the trial court improperly failed to charge the jury on his claim that the defendants' actions deprived him of a constitutionally protected liberty interest. Geren argues that he pleaded all of the facts necessary to sustain a liberty interest claim under the fourteenth amendment to the United States constitution, and that the trial court was therefore obligated to charge the jury on such a claim. In its memorandum of decision dated October 13, 1992, ² the trial court stated that its decision not to charge was based on Geren's failure to set forth in his complaint allegations sufficient to raise a liberty interest claim.

"It is axiomatic that the parties are bound by their pleadings." Calabro v. Calabro, 33 Conn.App. 842, 847, 639 A.2d 1046 (1994). Consequently, "[c]laims of error addressed to the charge are tested by the pleadings and by the evidence relevant to the claimed error as presented in narrative form (with appropriate reference to pages of the transcript) in the parties' briefs." Tierney v. American Urban Corporation, 170 Conn. 243, 250, 365 A.2d 1153 (1976). The trial court "should submit to the jury all issues as outlined by the pleadings and reasonably supported by the evidence." Calabro v. Calabro, supra, 33 Conn.App. at 847, 639 A.2d 1046; see also Goodmaster v. Houser, 225 Conn. 637, 648, 625 A.2d 1366 (1993). Conversely, "[t]he court has a duty to submit to the jury no issue upon which the evidence would not reasonably support a finding."...