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12489152

STATE of Connecticut v. Darnell WALKER

State v. Walker

2016-12-13

No. 37003

328

328

155 A.3d 328

155

West's Atlantic Reporter, Third Series

Connecticut Appellate Court

Connecticut

2021-08-27T20:57:14.012355+00:00

Fastcase

STATE of Connecticut v. Darnell WALKER

STATE of Connecticut v. Darnell WALKER No. 37003 Appellate Court of Connecticut. Argued November 14, 2016 Officially released December 13, 2016

27

182

Per Curiam. The judgment is affirmed.

12489144

STATE of Connecticut v. Christopher BURGOS

State v. Burgos

2017-02-07

AC 38394

246

285

155 A.3d 246

155

West's Atlantic Reporter, Third Series

Connecticut Appellate Court

Connecticut

2021-08-27T20:57:14.012355+00:00

Fastcase

STATE of Connecticut v. Christopher BURGOS

STATE of Connecticut v. Christopher BURGOS AC 38394 Appellate Court of Connecticut. Argued September 22, 2016 Officially released February 7, 2017 Richard Emanuel, for the appellant (defendant). James M. Ralls, assistant state's attorney, with whom, on the brief, were Gail P. Hardy, state's attorney, and Thomas Garcia, former senior assistant state's attorney, for the appellee (state). DiPentima, C. J., and Beach and Alvord, Js. The listing of judges reflects their seniority status on this court as of the date of oral argument.

20302

125920

ALVORD, J. The defendant, Christopher Burgos, appeals from the judgments of conviction, rendered after a jury trial, of one count of sexual assault in the first degree in violation of General Statutes § 53a-70(a)(2), one count of risk of injury to a child in violation of General Statutes § 53-21(a)(2), one count of aggravated sexual assault of a minor in violation of General Statutes § 53a-70c(a)(1), and, in a separate information, one count of attempt to escape from custody in violation of General Statutes § 53a-49(a)(2) and 53a-171(a)(1). On appeal, the defendant claims that the trial court erred (1) by not sua sponte ordering pretrial and posttrial competency hearings and canvassing him on his purported right to testify at those hearings; (2) in joining the sexual assault information and the escape information for trial; (3) in denying his motion to suppress evidence seized from his apartment; and (4) in denying his motion to vacate his convictions for sexual assault in the first degree and risk of injury to a child on double jeopardy grounds. We affirm the judgment in part, and we reverse the judgment in part. On the basis of the evidence presented at trial, the jury reasonably could have found the following facts. On August 31, 2011, the eleven year old victim and her sisters were sitting outside their home when the defendant approached them. The victim did not know the defendant, but she recalled seeing him the day before. The defendant invited the victim and one of her sisters to go to the store with him to get candy. The victim agreed to go to the store with the defendant while her sister remained behind. Once the victim and the defendant were inside the store, however, the defendant said that he did not have any money on him to purchase anything. The defendant offered to call the victim's sister to ask if the victim could go with him to his apartment nearby to get some money. The defendant purportedly called the victim's sister and received permission for the victim to come with him, but when the victim asked to speak to her sister, the defendant said that her sister had already hung up the phone. The defendant and the victim then walked to the defendant's apartment, which was a few blocks away from where the victim lived. Once at the defendant's apartment complex, the victim told the defendant that she wanted to wait outside on the sidewalk for him while he retrieved his money. The defendant told the victim to go upstairs. When she refused, he pushed her upstairs and into his apartment on the second floor. The victim tried to scream for help, but the defendant covered her mouth. Once inside the defendant's apartment, the victim hit and kicked the defendant in an attempt to get away, but she could not fight him off. The defendant pushed her into his bedroom and onto his bed. Once their pants were off, the defendant retrieved a small package from his dresser drawer. The victim again attempted to run away from the defendant, but he pushed her onto his bed, put a clear cream on her vagina, and vaginally penetrated her. After sexually assaulting the victim, the defendant walked her home and told her that if she told anyone what happened, he would come after her. Despite the defendant's threat, the victim told her mother what happened to her once she was inside her home. The victim's mother called the police, and the victim directed the police to the defendant's apartment. The victim was taken then to an emergency room, where a sexual assault evidence collection kit was used. That same day, the defendant was arrested at his apartment. When officers initially encountered the defendant outside of his apartment, they detained him for investigatory purposes. While he was detained, the defendant consented to a search of his apartment. During their search of the defendant's apartment, officers found a small packet of personal lubricant with the corner torn off in the trash in the defendant's bathroom and a corner piece of foil that had been torn from the packet of lubricant in the defendant's bedroom. At the police department, the defendant consented to a buccal swab so that officers could obtain a sample of his DNA. A comparison of the victim's vaginal swab and the defendant's buccal swab confirmed the presence of the defendant's spermatozoa in the victim's vaginal cavity. For the reasons addressed later in this opinion, the defendant was not released on bond following his arrest. On September 26, 2012, during a pretrial hearing, the defendant attempted to escape custody by running for the back door of the courtroom. Judicial marshals immediately apprehended the defendant. The state subsequently charged the defendant in a separate information with attempt to escape custody in violation of § 53a-49(a)(2) and 53a-171(a)(1). On October 9, 2013, a consolidated trial commenced on a three count long form information relating to the defendant's sexual assault of the victim and a one count long form information relating to the defendant's attempt to escape custody. On October 11, 2013, the jury returned a guilty verdict on all counts. On June 18, 2014, the court imposed a total effective sentence of fifty years imprisonment followed by five years special parole for the two informations. This appeal followed. Additional facts will be set forth as necessary. I The defendant raises four claims with respect to his competency to stand trial and the process by which he was found competent to stand trial. The following additional facts are relevant to these claims. On September 1, 2011, the defendant was arraigned and appointed counsel from the public defender's office. During arraignment, defense counsel noted that the defendant was a "client" of a mental health facility and that "[h]e appears to have been steady with his treatment there." The court, Newson, J. , stated that "mental health attention should be noted on the [mittimus]." During the defendant's first six court appearances, between September 1, 2011 and December 12, 2011, his courtroom behavior was unremarkable. On January 17, 2012, the defendant was unable to be transported to court because "while in the custody of [the Department of Correction] he covered himself in feces and refused to be transported." Defense counsel moved for a competency examination pursuant to General Statutes § 54-56d, and the court granted the motion and issued an order for a competency examination. On March 28, 2012, the Department of Mental Health and Addiction Services, Office of Forensic Evaluations, submitted a competency report, in which the clinical team unanimously concluded that, while the defendant was presently not competent to stand trial, there was a substantial probability that he could be restored to competency within the statutory time frame. On March 29, 2012, the court held a competency hearing, at which the court agreed with the clinical team's assessment, ordered that the defendant receive treatment in an inpatient setting, and continued the case until May 31, 2012. On May 25, 2012, Dr. Mark S. Cotterell, a forensic psychiatrist, submitted a second competency report to the court, in which he concluded that the defendant had not yet been restored to competency but was still capable of restoration within the statutory time frame. Cotterell's report acknowledged that the defendant had a history of mental health treatment and engaging in behaviors indicative of mental illness. However, Cotterell also observed that "there appears to be a volitional component to [the defendant's] presentation. It appears that he knows more than he is willing to admit." On May 31, 2012, the court held a competency reconsideration hearing at which it concluded that the defendant was not competent but was restorable to competency and ordered the defendant to continue to receive treatment in an inpatient setting. See General Statutes § 54-56d(k). On August 16, 2012, Cotterell submitted a third competency report to the court in which he concluded that the defendant was competent to stand trial. In that report, Cotterell noted that the defendant had consistently refused to participate in formal evaluations. However, Cotterell detailed aspects of the defendant's behavior that indicated that "he has the capacity to understand his legal situation and the capacity to assist his attorney if he were to choose to do so." The report observed that "there is definitely a volitional component" to defendant's refusal to engage in a formal evaluation and that "[i]t is clear that he knows more than he is willing to admit." The report also stated that "[the defendant] is not currently taking psychiatric medication, and he has not demonstrated any symptoms of a serious mental illness that would require such treatment." On August 31, 2012, the court held a competency reconsideration hearing to reassess the defendant's competency to stand trial. At the hearing, Cotterell's report was marked as an exhibit, and defense counsel and the state stipulated that the defendant was competent to stand trial. The court then found that the defendant was competent to stand trial based on Cotterell's report. On September 26, 2012, the defendant attempted to escape from the custody of the judicial marshals after being brought into the courtroom. When court reconvened after a recess, the defendant was not present. The court indicated that he was "not behaving in any appropriate manner in the lockup," was "spitting at the cell door" and was "giving the correction officers a difficult time ." Defense counsel, who had represented the defendant over the last year, agreed that the defendant "appear[ed] to be in a somewhat agitated state." The court stated that the defendant's next court appearance would be conducted by video conference "to minimize the further potential of any harm to any correction[al] and/or judicial marshal staff." Despite this arrangement, the defendant's behavior prior to the next two court hearings prevented him from participating in those hearings, even via video conference. Trial commenced on October 9, 2013. When court reconvened after the first morning recess, the court announced that there had been "a major problem with the defendant" because "[h]e decided to flush his jumpsuit down the toilet" and urinated on the floor. The court directed defense counsel to find substitute clothing for him and stated that "if [the defendant] continues to act up, he will have handcuffs put on eventually." The court observed that "[the defendant] has been behaved in the courtroom and I'm not concerned about his behavior in the courtroom." The court further noted that problems arose only when he leaves the courtroom. While the court was discussing the defendant's conduct with defense counsel, the defendant interjected that he was acting out when outside the courtroom "because [the judicial marshals] put handcuffs on me in a-in a secured cell where they ain't supposed to do that." The court admonished the defendant that the judicial marshals were the ones in control, not him, and gave defense counsel an opportunity to speak with the defendant. The jury was then brought back into the court and evidence continued without the defendant being present in the courtroom. Later that morning, after another recess, the court observed that "[the defendant] is back in the courtroom. . [He] has been very well behaved in court. And that's what I see and that's what I care about, primarily. So, there has been no problem in the courtroom itself." On October 10, 2013, the second day of trial and the final day of evidence, the defendant testified with respect to the escape charge. After defense counsel declined to conduct a redirect examination of the defendant, the defendant interjected: "You're an idiot." The court excused the jury and engaged in the following colloquy with the defendant after he was returned to the defense table: "The Court: . [Y]our last comment was totally gratuitous. "The Defendant: I'm sorry, ma'am. I'm on frustration, I kind of lost a little control. I apologize. It's kind of hard, you know, to sit there and like, you know. "The Court: Your apology is accepted. You don't have to go any further. However, do be advised that calling anyone [names], your attorneys, the state's attorney, anyone in the building, that is unacceptable, and if you weren't facing so much, you would be facing a contempt charge. But you did apologize, and it's just not worth even considering the contempt because you are facing so many other serious charges. All right, sir? "The Defendant: Yes. "The Court: But thank you for the apology. "The Defendant: All right." The jury then was brought back into the courtroom, and the defendant did not make any other comments or cause any additional disruptions. On October 11, 2013, the third and final day of trial, the jury heard closing arguments from counsel and was charged by the court. The defendant did not make any comments or cause any disruptions in court that day. Additional facts will be set forth as necessary. First, the defendant seeks Golding review of his claim that the court violated his purported right to testify at a competency hearing by not canvassing him, sua sponte, on whether he understood that by stipulating to his competency he was waiving his right to testify at a competency hearing. Second, the defendant claims that the court committed plain error by permitting defense counsel to waive the second reconsideration hearing because § 54-56d(k) permits only the accused to waive a reconsideration hearing. Third, the defendant claims that the court violated his due process rights and committed plain error by accepting his stipulation to his competency and by not ordering, sua sponte, an evidentiary hearing to evaluate his competency. Finally, the defendant claims that the court violated his due process rights and committed plain error by failing to order, sua sponte, a nunc pro tunc, or retrospective, competency hearing to evaluate his competency at trial in light of his erratic posttrial conduct, which we discuss in detail later in this opinion. We reject the defendant's claims. We begin by setting forth the standards of review that will guide our analysis of the defendant's claims. "Under Golding , a defendant can prevail on a claim of constitutional error not preserved at trial only if the following conditions are met: (1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation . exists and . deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt. In the absence of any one of these conditions, the defendant's claim will fail." (Internal quotation marks omitted.) State v. Dixon , 318 Conn. 495, 511, 122 A.3d 542 (2015). "The first two steps in the Golding analysis address the reviewability of the claim, while the last two steps involve the merits of the claim." (Internal quotation marks omitted.) State v. Britton , 283 Conn. 598, 615, 929 A.2d 312 (2007). "The appellate tribunal is free, therefore, to respond to the defendant's claim by focusing on whichever condition is most relevant in the particular circumstances." (Internal quotation marks omitted.) State v. Dixon , supra, at 511, 122 A.3d 542. Although Golding is a doctrine that parties invoke to obtain review of unpreserved constitutional claims, the plain error doctrine "is an extraordinary remedy used by appellate courts to rectify errors committed at trial that, although unpreserved, are of such monumental proportion that they threaten to erode our system of justice and work a serious and manifest injustice on the aggrieved party." State v. Myers , 290 Conn. 278, 289, 963 A.2d 11 (2009). "Plain error is a doctrine that should be invoked sparingly." (Internal quotation marks omitted.) Id."[An appellant] cannot prevail under [the plain error doctrine] . unless he demonstrates that the claimed error is both so clear and so harmful that a failure to reverse the judgment would result in manifest injustice." (Emphasis in original; internal quotation marks omitted.) Id., at 288, 963 A.2d 11. A The defendant first seeks Golding review of his claim that "the trial court should have informed [him] of his right to testify [at a competency hearing], and should have canvassed him on that point, prior to accepting defense counsel's [competency] stipulation." (Emphasis in original.) The defendant's argument is predicated on the assumption that he has a constitutional right to testify at a pretrial competency hearing, that this is a "personal right" that can be waived only by the defendant, and that only the accused personally can waive a competency hearing as a result. Although we conclude that the defendant's claim is reviewable pursuant to the first and second prongs of Golding , the defendant is not entitled to reversal under the third prong of Golding because he has not established that a constitutional violation exists and deprived him of a fair trial. Assuming, without deciding, that there is a constitutional right to testify at a pretrial competency hearing, the outcome of this case is controlled by State v. Paradise , 213 Conn. 388, 567 A.2d 1221 (1990), overruled in part on other grounds by State v. Skakel , 276 Conn. 633, 693, 888 A.2d 985, cert. denied, 549 U.S. 1030, 127 S.Ct. 578, 166 L.Ed.2d 428 (2006). In Paradise , our Supreme Court held that the substantive right to testify under federal constitutional law does not contain a corollary procedural requirement that a trial court canvass a defendant concerning his waiver of his right to testify unless the defendant affirmatively states that he wishes to testify or that he did not know he could testify. Id., at 404-405, 567 A.2d 1221 ; see also Ghant v. Commissioner of Correction , 255 Conn. 1, 12 and n.10, 761 A.2d 740 (2000) ("the trial court's failure to establish that the petitioner's waiver of his right to testify [by pleading guilty] was knowing, intelligent and voluntary does not constitute a nonfrivolous ground for appeal" in light of Paradise ); State v. Joyner , 225 Conn. 450, 482-83, 625 A.2d 791 (1993) (declining to reconsider Paradise ); State v. Jordan , 151 Conn.App. 1, 36 and n.11, 92 A.3d 1032 (trial court may, but is not required to, canvass defendant personally as part of its independent inquiry into his competency to stand trial), cert. denied, 314 Conn. 909, 100 A.3d 402 (2014). In the present case, it is undisputed that at the second reconsideration hearing the defendant never affirmatively stated that he wished to testify at the competency hearing or that he did not know that he could testify. Therefore, the court had no duty to canvass the defendant on his purported right to testify at a competency hearing. The defendant nevertheless urges us to distinguish this case from Paradise because we are addressing the purported right to testify at a competency hearing rather than the well established right to testify at trial, which was the subject of Paradise . The defendant reasons that inferring a waiver of the purported right to testify at a competency hearing is "illogical, because the defendant (at that point in time) may be 'unable to understand the proceedings against him or her or to assist in his or her own defense.' " Additionally, the defendant argues that a defendant's testimony at a competency hearing can be particularly important because "[t]he defendant's demeanor and behavior in the courtroom can often be as probative on the issue of his competence as the testimony of expert witnesses." (Internal quotation marks omitted.) Although we agree that this case is factually distinguishable from Paradise , we conclude that Paradise is nevertheless apposite and controlling in this circumstance. Therefore, we decline to address this claim other than to note that "as an intermediate appellate body, we are not at liberty to discard, modify, reconsider, reevaluate or overrule the precedent of our Supreme Court." (Internal quotation marks omitted.) State v. Elias V. , 168 Conn.App. 321, 334 n.12, 147 A.3d 1102, cert. denied, 323 Conn. 938, 151 A.3d 386 (2016). B The defendant also claims that the court erred by permitting defense counsel to stipulate to his competency, and thereby waive the second reconsideration hearing, because § 54-56d(k) permits only the accused to waive a reconsideration hearing. Because the defendant failed to preserve this statutory claim at trial, he seeks reversal pursuant to the plain error doctrine. The application of the plain error doctrine is "appropriate in matters of statutory construction because the interpretation of [a] statute and the resolution of [the] issue does not require further fact-finding ." (Internal quotation marks omitted.) State v. Myers , supra, 290 Conn. at 288 n.8, 963 A.2d 11. Nevertheless, not every statutory error merits reversal under the plain error doctrine. Id., at 290 and n.10, 963 A.2d 11. "A trial court's failure to comply with a rule of criminal procedure, without more, is insufficient to require reversal for plain error." Id., at 290, 963 A.2d 11 ; see also id., at 295, 963 A.2d 11 (no plain error where "[t]here simply was no constitutional right on which the trial court could have trampled"). That is, even if a defendant establishes that the trial court failed to comply with a rule of criminal procedure, to prevail he must still establish that the claimed error was "both so clear and so harmful that a failure to reverse the judgment would result in manifest injustice." (Emphasis in original; internal quotation marks omitted.) Id., at 288, 963 A.2d 11. Our Supreme Court has held that a violation of a rule of practice designed to protect constitutional rights is not grounds for reversal when the defendant was not actually deprived of his or her constitutional rights. See, e.g., State v. Sanchez , 308 Conn. 64, 83-85, 87, 60 A.3d 271 (2013) (reversal under the plain error doctrine not warranted where it was "exceedingly unlikely" that trial court's failure to give sua sponte an eyewitness identification instruction pursuant to State v. Ledbetter , 275 Conn. 534, 575, 881 A.2d 290 [2005], cert. denied, 547 U.S. 1082, 126 S.Ct. 1798, 164 L.Ed.2d 537 [2006], harmed the defendant); State v. Myers , supra, at 289-90, 295, 963 A.2d 11 (reversal under plain error doctrine not warranted based on trial court's failure to obtain a plea or conduct a trial, in accordance with Practice Book § 42-2, prior to sentencing defendant as a repeat offender because "the defendant . failed to raise any doubt with respect to the validity of his prior conviction" [emphasis in original] ). In the present case, we conclude that, regardless of the meaning of § 54-56d(k), the defendant has not established that he was deprived of his constitutional rights, or otherwise harmed, by the court's failure to ask him personally whether he wanted to stipulate to his competency, and thereby waive the reconsideration hearing. Section 54-56d codifies the constitutional standard for legal competency and establishes the procedure for determining whether a defendant is competent to stand trial. State v. Dort , 315 Conn. 151, 170, 106 A.3d 277 (2014). This statutory scheme includes procedures for initial competency evaluations as well as procedures for determining whether a defendant who has been found incompetent to stand trial has been restored to competency. In particular, subsection (e) of § 54-56d, which governs the initial competency hearing, states in relevant part: "A defendant and the defendant's counsel may waive the court hearing only if the examiners, in the written report, determine without qualification that the defendant is competent...." (Emphasis added.) By contrast, subsection (k), which governs competency reconsideration hearings, states in relevant part: "The [reconsideration] hearing may be waived by the defendant only if the report indicates that the defendant is competent...." (Emphasis added.) The defendant argues that because "the word 'defendant' as used in subsection (e) refers to the accused person rather than his 'counsel,' the use of the word 'defendant' in subsection (k) obviously has the same meaning." Nevertheless, assuming arguendo that the distinction noted by the defendant is meaningful and that the court then failed to comply strictly with § 54-56d(k), the record in this case does not establish that the court's failure deprived the defendant of his constitutional rights or otherwise harmed him. The purpose of § 54-56d is to ensure that the defendant is not tried, convicted, or sentenced while legally incompetent, and the defendant has not established that he was tried and convicted while legally incompetent. For all of the reasons discussed in part I C of this opinion, we conclude that the defendant has failed to establish that the court violated his constitutional rights by finding him competent to stand trial at the second reconsideration hearing. Similarly, for all the reasons discussed in part I D of this opinion, we conclude that the defendant has failed to establish that there was a reasonable doubt during trial that he was competent. Therefore, because the defendant has failed to establish that this purported procedural error was "so harmful that a failure to reverse the judgment would result in manifest injustice," he has failed to meet the exacting standard for reversal under the plain error doctrine. (Internal quotation marks omitted.) State v. Myers , supra, 290 Conn. at 289, 963 A.2d 11. C The defendant next seeks Golding and plain error review of his claim that the court erroneously found him competent to stand trial at the second reconsideration hearing based on the third competency report. Specifically, the defendant argues that the court should have conducted an evidentiary hearing to explore "the troubling question of how the defendant's mental health diagnosis and treatment could change so drastically between the first competency hearing and the final reconsideration hearing." The state responds that the court was not required to conduct an evidentiary hearing because the third competency report, which was uncontested, provided ample evidence that the defendant was competent to stand trial. We conclude that although the defendant's claim is reviewable under the first and second prongs of Golding , the defendant is not entitled to reversal under the third prong of Golding or the plain error doctrine because he failed to establish that the court's finding of competency at the second reconsideration hearing violated his constitutional rights or constitutes a manifest injustice requiring reversal. "The standard we use to determine whether a defendant is competent under state law to stand trial . is whether [the defendant] has sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding-and whether he has a rational as well as factual understanding of the proceedings against him." (Citations omitted; internal quotation marks omitted.) State v. Dort , supra, 315 Conn. at 170, 106 A.3d 277 ; accord General Statutes § 54-56d(a) ("a defendant is not competent if the defendant is unable to understand the proceedings against him or her or to assist in his or her own defense"); Drope v. Missouri , 420 U.S. 162, 171, 95 S.Ct. 896, 43 L.Ed.2d 103 (1975) (a defendant is not competent if his "mental condition is such that he lacks the capacity to understand the nature and object of the proceedings against him, to consult with counsel, and to assist in preparing his defense"). Our courts have a "constitutional obligation, under the due process clause, to undertake an independent judicial inquiry . into a defendant's competency to stand trial . whenever [there exists] specific factual allegations that, if true, would constitute substantial evidence of mental impairment.... Substantial evidence is a term of art. Evidence encompasses all information properly before the court, whether it is in the form of testimony or exhibits formally admitted or it is in the form of medical reports or other kinds of reports that have been filed with the court. Evidence is substantial if it raises a reasonable doubt about the defendant's competency.... The trial court should carefully weigh the need for [an evidentiary] hearing in each case, but this is not to say that it should be available on demand. The decision to grant a hearing requires the exercise of sound judicial discretion." (Citations omitted; internal quotation marks omitted.) State v. Dort , supra, at 170-71, 106 A.3d 277. The thrust of the defendant's argument is that because the court knew that he had been diagnosed previously with psychiatric conditions and prescribed psychiatric medications, it was required to hold an evidentiary hearing to explore "the dramatic change in the defendant's diagnosis and the total cessation of medication." As a threshold matter, it is important to emphasize that mental illness is not the legal equivalent of incompetency. State v. DeAngelis , 200 Conn. 224, 230, 511 A.2d 310 (1986) ("Competence to stand trial, however, is not defined in terms of mental illness. An accused may be suffering from a mental illness and nonetheless be able to understand the charges against him and to assist in his own defense ."); see also Drope v. Missouri , supra, 420 U.S. at 180, 95 S.Ct. 896 ("[t]here are, of course, no fixed or immutable signs which invariably indicate the need for further inquiry to determine fitness to proceed"). "The touchstone of competency, rather, is the ability of the defendant to understand the proceedings against him and to assist in his own defense." Taylor v. Commissioner of Correction , 284 Conn. 433, 452, 936 A.2d 611 (2007). In the present case, the court found that the defendant was competent to stand trial based on the third competency report, in which Cotterell described in detail the aspects of the defendant's behavior that indicated that he had a capacity to understand the nature of the proceedings against him and to assist in his own defense. For example, in the conclusions and recommendations section of the report, Cotterell described how the defendant, inter alia, "is able to pay attention to his environment . and the rules of his status.... He is able to communicate when he wants, and he can use appropriate vocabulary and grammar. He can listen to what others tell him and understand routine instructions and guidance.... His long and short-term memory functions are intact. If he wants something, he can make a plan to get it and then carry out that plan. He can show initiative if he is sufficiently motivated. He is able to work with others when he perceives that he will receive a benefit from that interaction.... He can and does pay attention to what is going on around him.... He can bring information or requests to the attention of others.... He knows what he wants and he can identify things that would help him to improve his situation. Sometimes, he makes choices that are maladaptive, immature, and impulsive. However, he is always aware of his options, even if he chooses unwisely." Cotterell also explained that some of the negative aspects of the defendant's presentation were due to the defendant malingering to avoid the consequences of his legal situation. This was not an unexpected diagnosis either; the prior competency reports also intimated that the defendant might be malingering. For example, the first and second competency reports noted that while incarcerated the defendant had a habit of threatening suicide or engaging in self-injurious or bizarre behavior in an attempt to change his placement to a more desirable housing block. The first competency report, while concluding that the defendant's behavior during interviews was indicative of psychiatric issues, also acknowledged that "there was a volitional element to his refusal to participate in the interview process." Similarly, the second competency report observed that there was a "volitional component to [the defendant's] presentation" and that "[i]t appears that [the defendant] knows more than he is willing to admit." According to the second competency report, the defendant's behavior "suggested that he was trying to find a way to avoid facing the implications of his charges." Cotterell's conclusion in the third competency report that the defendant was both competent to stand trial and malingering, therefore, was not as dramatic and inexplicable as suggested by the defendant. Finally, at the second reconsideration hearing, defense counsel, who originally moved to have the defendant's competency evaluated, did not contest the findings of the third competency report or express any concerns about his client's competency to stand trial. See State v. Ouellette , 271 Conn. 740, 754, 859 A.2d 907 (2004) ("[a]lthough it is true that the defendant required treatment to restore him to competency, at no time after the evaluation team rendered its conclusion that the defendant was competent did defense counsel, the state or the trial court express any concern whatsoever about the defendant's competence"); United States v. Kirsh , 54 F.3d 1062, 1071 (2d Cir. 1995) ("A failure by trial counsel to indicate that the defendant had any difficulty in assisting in preparation or in comprehending the nature of the proceedings 'provides substantial evidence of the defendant's competence.' "). In sum, based on the totality of the information before the court at the second reconsideration hearing, we conclude that there was an adequate factual basis for the court to determine that the defendant was competent to stand trial. Additionally, we conclude that the court was not required to conduct an evidentiary hearing at the second reconsideration hearing because there was not substantial evidence that the defendant still lacked legal capacity. Therefore, the defendant has failed to meet the third prong of Golding as well as the stringent standard for relief pursuant to the plain error doctrine. D Finally, the defendant seeks Golding and plain error review of his claim that the court violated his due process rights by failing to order, sua sponte, a nunc pro tunc competency hearing to evaluate his competency at trial in light of his posttrial conduct between December, 2013 and April, 2014. We conclude that the defendant is not entitled to reversal under Golding or the plain error doctrine because he has not established that the court's failure to order, sua sponte, a nunc pro tunc competency hearing violated his constitutional rights or constitutes a manifest injustice requiring reversal. The following additional facts are relevant to this claim. On December 12, 2013, the defendant was scheduled for sentencing. When court opened that day, the court observed the defendant's absence. A judicial marshal then explained that while the defendant was being transported to the courthouse, "he defecated on himself in the back of the transport van" and was, therefore, transported back to the correctional facility. The court and counsel decided to proceed with the hearing on the defendant's posttrial motions and to reschedule the defendant's sentencing. After the court heard argument on, and denied, the defendant's motion for a new trial and motion to vacate, defense counsel moved to have the defendant evaluated pursuant to General Statutes § 17a-566. Defense counsel explained that he and cocounsel had visited the defendant the prior week, at which time the defendant "exhibited certain behaviors, which concerned us ." Specifically, defense counsel stated that the defendant had "made certain statements," that he "had a different presentation than he did during the trial," and that his "psychiatric condition appears to be more prevalent than it did at times during the trial ." The court granted defense counsel's motion and ordered that the defendant be evaluated. On January 13, 2014, the clinical team informed the court that they had attempted to evaluate the defendant on two occasions but he had refused to meet with them. The defendant was present at the next court hearing on January 31, 2014. When the court explained to the defendant that a competency evaluation had been ordered, the defendant initially seemed confused about what the court was saying, but ultimately he agreed to participate in a competency evaluation. On February 28, 2014, the court held a hearing concerning a motion to quash a subpoena for the defendant's mental health records, which was filed on behalf of the Department of Mental Health and Addiction Services. The court denied the motion because the defendant had waived his confidentiality in the records at the prior hearing. See footnote 14 of this opinion. The court stated that while the defendant "does have some form of a mental disability," it was "not sure that it's a competency disability." The court entered another order for a competency evaluation of the defendant. While discussing the appropriate continuance date with counsel, the defendant interjected and the following exchange occurred: "The Defendant: I'll plead guilty of all charges. How's that? "The Court: You've already had a trial, sir. You've already been found guilty of all charges. "The Defendant: Well, I plead guilty all over again. "The Court: I don't think you- "The Defendant: Have this conversation? "The Court: -can plead guilty after you've been found guilty. "The Defendant: Oh, yes I could if you're going the speed of light, you can. "The Court: Well, you've already been found guilty by a jury and all we have to do now is sentence you, sir. And if you want to agree to the sentence, that's one thing. But I don't think- "The Defendant: Yes, I agree to the sentence. "The Court: I don't think you're going to agree to the sentence the state wants. "The Defendant: Why it doesn't make sense because you're on that side and I'm on this side. "The Court: That's the way it works here. All right. So, we're going to have the 22nd of April, correct? "[The State's Attorney]: The 22nd of April, that's fine. "The Court: Yes. "[The State's Attorney]: That's fine with the state. "The Court: Thank you. "The Defendant: I want to save my nuts before anything. "The Court: It's too late to plead. The jury's already found you guilty, sir. We are adjourned. Thank you." On April 23, 2014, Cotterell submitted a competency report, in which he concluded that the defendant "does not at this time have a serious mental disease or defect that necessitates further placement at [a treatment facility]," and recommended that the defendant "be sentenced in accordance with his conviction." The defendant did not challenge Cotterell's report and was sentenced on April 28, 2014. During the sentencing hearing, the defendant engaged in argumentative behavior. As the court imposed the defendant's sentence, the defendant's interruptions and insults escalated. Eventually, the court ordered him to be removed from the courtroom, found him in contempt of court, and sentenced him for his contempt. It is well established that "[e]ven when a defendant is competent at the commencement of his trial, a trial court must always be alert to circumstances suggesting a change that would render the accused unable to meet the standards of competence to stand trial." (Internal quotation marks omitted.) State v. Johnson , 253 Conn. 1, 21, 751 A.2d 298 (2000). "[W]hen a reasonable doubt concerning the defendant's competency is raised, the trial court must order a competency examination." (Internal quotation marks omitted.) Id. In certain circumstances, a court may even be required to hold a nunc pro tunc competency hearing to ensure that the defendant was competent during an earlier proceeding. Nevertheless, in general, nunc pro tunc competency determinations are disfavored because there is often a risk that the post hoc reconstruction of the defendant's mental state will be unduly speculative and inherently unreliable. See Drope v. Missouri , supra, 420 U.S. at 183, 95 S.Ct. 896 (noting inherent difficulties of nunc pro tunc competency determinations under even the most favorable circumstances); Pate v. Robinson, 383 U.S. 375, 387, 86 S.Ct. 836, 15 L.Ed.2d 815 (1966) (same); Dusky v. United States, 362 U.S. 402, 403, 80 S.Ct. 788, 4 L.Ed.2d 824 (1960) (same); Gold v. Warden, 222 Conn. 312, 317-18 and n.9, 610 A.2d 1153 (1992) (same); State v. Snook, 210 Conn. 244, 253, 555 A.2d 390 (same), cert. denied, 492 U.S. 924, 109 S.Ct. 3258, 106 L.Ed.2d 603 (1989). "The touchstone of competency . is the ability of the defendant to understand the proceedings against him and to assist in his own defense." Taylor v. Commissioner of Correction , supra, 284 Conn. at 452, 936 A.2d 611. Therefore, a failure by defense counsel to indicate that the defendant had any difficulty in comprehending the nature of the proceedings or in assisting in his own defense provides substantial evidence of the defendant's competence. United States v. Kirsh , supra, 54 F.3d at 1071 ; see State v. Dort , supra, 315 Conn. at 172, 106 A.3d 277 ; State v. Ouellette , supra, 271 Conn. at 754, 859 A.2d 907. Similarly, "[a] trial court's opinion . of the competency of a defendant is highly significant" because "[t]he trial judge is in a particularly advantageous position to observe a defendant's conduct during a trial and has a unique opportunity to assess a defendant's competency." (Internal quotation marks omitted.) State v. Ducharme , 134 Conn.App. 595, 602, 39 A.3d 1183, cert. denied, 305 Conn. 905, 44 A.3d 181 (2012) ; see also State v. Ouellette , supra, at 754, 859 A.2d 907. Finally, it is significant when the defendant appears to be competent throughout the course of trial. United States v. Vamos , 797 F.2d 1146, 1150 (2d Cir. 1986) ("failure to conduct a full competency hearing is not a ground for reversal when the defendant appears competent during trial"); see State v. Caracoglia , 95 Conn.App. 95, 108-109, 895 A.2d 810 (holding that defendant was competent to waive right to assistance of counsel because his conduct at trial indicated that he was, in fact, competent to stand trial), cert. denied, 278 Conn. 922, 901 A.2d 1222 (2006). As a threshold matter, we conclude that the defendant's claim that his due process rights were violated by the court's failure to order sua sponte a nunc pro tunc competency hearing is reviewable under Golding because there is an adequate record for review and this claim is of a constitutional magnitude. After careful review of the record, however, we conclude that the defendant's posttrial conduct did not create a reasonable doubt, in hindsight, as to his competency at trial. Thus, the court was not obligated to order sua sponte a nunc pro tunc competency hearing to reevaluate the defendant's competency at trial. Therefore, because the defendant has not established that the court's failure to order, sua sponte, a nunc pro tunc competency hearing violated his due process rights or constitutes a manifest injustice requiring reversal, he is not entitled to reversal under Golding or the plain error doctrine. Our conclusion is first based on the fact that defense counsel, who represented the defendant for approximately two years and previously had sought competency evaluations for the defendant, never raised concerns about his client's competency to stand trial after he was found to be competent at the second reconsideration hearing. Defense counsel did raise concerns about the defendant's competency to be sentenced when the defendant's presentation became more argumentative posttrial. Notably, when defense counsel moved for a competency hearing posttrial, he supported that motion by highlighting the difference between the defendant's presentation posttrial and his presentation at trial . Specifically, after the defendant's conduct prevented him from being transported to the courthouse on December 12, 2013, defense counsel observed that the defendant had "had a different presentation than he did during the trial" and the defendant's "psychiatric condition appears to be more prevalent than it did at times during the trial ." It is also significant that during the trial the court did not voice any concerns about the defendant's competency to stand trial. Quite to the contrary, the court expressly stated that it was "not concerned about his behavior in the courtroom" and observed that "[the defendant] has been very well behaved in court." Finally, it is significant that during the trial, the defendant appeared to be competent. We acknowledge that the defendant engaged in disruptive behavior on two occasions during trial, but neither the defendant's behavior nor his responses to the court's admonitions indicated a lack of competency. On the first day of trial, the defendant flushed his jumpsuit down the toilet and urinated on the floor. When asked by the court about this behavior, he was able to articulate why he acted that way-i.e. because the courtroom marshals "put handcuffs on me in a-in a secured cell where they ain't supposed to do that." On the second day of trial, the defendant was again disruptive when he called defense counsel "an idiot" for not conducting a redirect examination of him. When the court admonished the defendant for his comment, however, he responded appropriately by recognizing that "[he] kind of lost a little control" and by apologizing for his remark. Although the defendant's conduct at trial might be reflective of the impulsivity described by Cotterell, it does not indicate a lack of competency. In sum, there was significant evidence at trial that the defendant was competent. The defendant's posttrial conduct did not call into question any of this contemporaneous evidence of competency. As defense counsel observed, the defendant's presentation during and after trial was different. Therefore, because the defendant has not established that the court's failure to order sua sponte a nunc pro tunc competency hearing violated his due process rights or constitutes a manifest injustice requiring reversal, we conclude that he is not entitled to reversal under Golding or the plain error doctrine. II We next address the defendant's claims concerning the consolidation of the sexual assault information and the escape information for trial. First, the defendant claims that the court abused its discretion by granting the state's motion for consolidation because the evidence relating to each information was not fully cross admissible and a Boscarino factor was present. Second, the defendant claims that the court unduly burdened his constitutional right to remain silent in the sexual assault case by joining that case, in which he did not testify, with the escape case, in which he did testify. We reject the defendant's claims. The following additional facts are relevant to these claims. On September 19, 2013, five days before the start of jury selection, the defendant filed an anticipatory objection to joinder of informations for trial and the state filed a revised motion for consolidation. In the revised motion to consolidate, the state argued that the evidence in the two cases was cross admissible and that no Boscarino factors were present. In his anticipatory objection to the state's motion, the defendant argued that the motion to consolidate was untimely and that joinder would substantially prejudice his right to a fair trial, including his decision as to whether to testify. On September 23, 2013, the court held a hearing at which it addressed the state's motion to consolidate. On September 24, 2013, the court granted the state's motion. A The defendant claims that the court abused its discretion by joining the sexual assault information and escape information for trial because the evidence was not cross admissible and a Boscarino factor was present in his trial. We disagree. We begin our analysis with a review of the law governing pretrial motions for joinder pursuant to Practice Book § 41-19. "[I]n deciding whether to [join informations] for trial, the trial court enjoys broad discretion, which, in the absence of manifest abuse, an appellate court may not disturb.... [W]hen charges are set forth in separate informations, presumably because they are not of the same character, and the state has moved in the trial court to join the multiple informations for trial, the state bears the burden of proving that the defendant will not be substantially prejudiced by joinder pursuant to Practice Book § 41-19.... On appeal, however, the burden shifts to the defendant to show that joinder was improper by proving substantial prejudice that could not be cured by the trial court's instructions to the jury ." (Citations omitted; footnote omitted; internal quotation marks omitted.) State v. Crenshaw , 313 Conn. 69, 83, 95 A.3d 1113 (2014). Substantial prejudice "means something more than that a joint trial will be less than advantageous to the defendant," and it requires the defendant to "[show] that any prejudice from joinder may be beyond the curative power of the court's instructions." (Internal quotation marks omitted.) State v. Chance , 236 Conn. 31, 51, 671 A.2d 323 (1996). When resolving whether a defendant was substantially prejudiced, we consider whether the evidence was cross admissible and whether any of the Boscarino factors were present. State v. Crenshaw , supra, 313 Conn. at 83, 95 A.3d 1113. When "the evidence would have been cross admissible in different trials . we need not determine whether any of the Boscarino factors was present." Id., at 83, 95 A.3d 1113. "[When] evidence of one incident can be admitted at the trial of the other [incident], separate trials would provide the defendant [with] no significant benefit. . [U]nder such circumstances, the defendant would not ordinarily be substantially prejudiced by joinder of the offenses for a single trial." (Internal quotation marks omitted.) Id., at 83-84, 95 A.3d 1113 ; see, e.g., State v. Atkinson , 235 Conn. 748, 765, 670 A.2d 276 (1996) (defendant was not substantially prejudiced by joinder of murder charge and escape charge where evidence concerning the escape charge would be admissible in a separate murder trial as evidence of consciousness of guilt). "When evidence is not cross admissible, several factors identified in State v. Boscarino , 204 Conn. 714, 721-24, 529 A.2d 1260 (1987), are used to determine whether the defendant has suffered substantial prejudice. These factors include: (1) whether the charges involve discrete, easily distinguishable factual scenarios; (2) whether the crimes were of a violent nature or concerned brutal or shocking conduct on the defendant's part; and (3) the duration and complexity of the trial.... If any or all of these factors are present, a reviewing court must decide whether the trial court's jury instructions cured any prejudice that might have occurred." (Internal quotation marks omitted.) State v. Crenshaw , supra, at 83-84 n.8, 95 A.3d 1113. With the foregoing legal principles in mind, we first address whether the evidence of the sexual assault and the escape was cross admissible. Evidence is cross admissible for the purposes of joinder when evidence from one information would be admissible in a separate trial on the other information, and vice versa. In the present case, evidence of the defendant's attempt to escape custody would have been admissible as evidence of consciousness of guilt in a separate trial on the sexual assault information. See State v. Figueroa , 257 Conn. 192, 196, 777 A.2d 587 (2001) ("[f]light when unexplained, tends to prove a consciousness of guilt" [internal quotation marks omitted] ); State v. Atkinson , supra, 235 Conn. at 765, 670 A.2d 276 ("[e]vidence concerning the escape charge could properly have been admitted in a separate trial for the murder charge because escape indicates consciousness of guilt"). Likewise, evidence that the defendant was in custody and charged with a felony would have been admissible in a separate trial on the escape information because those are elements of the offense. See General Statutes § 53a-171 ("[a] A person is guilty of escape from custody if such person [1] escapes from custody . [b] If a person has been arrested for, charged with or convicted of a felony, escape from such custody is a class C felony ."). However, the details surrounding the sexual offense charges-i.e. the fact that the defendant lured an eleven year old into his apartment so that he could sexually assault her by vaginal penetration-might not have been admissible in a separate trial on the escape information. See Conn. Code Evid. § 4-3. It is unclear from our Supreme Court's precedent whether evidence must be fully cross admissible to permit joinder. Compare State v. Crenshaw, supra, 313 Conn. at 84, 95 A.3d 1113 ("[w]e consistently have found joinder to be proper if we have concluded that the evidence of other crimes . would have been cross admissible at separate trials " [emphasis added; internal quotation marks omitted] ) with State v. Atkinson , supra, at 765, 670 A.2d 276 ("Where evidence of one incident can be admitted at the trial of the other [inci dent ], separate trials would provide the defendant no significant benefit. It is clear that, under such circumstances, the defendant would not ordinarily be substantially prejudiced by joinder of the offenses for a single trial." [Emphasis altered; internal quotation marks omitted.] ). Assuming arguendo that the evidence in the two cases must be fully cross admissible and was not in this case, we next address whether any of the Boscarino factors were present at the consolidated trial. See State v. Crenshaw , supra, 313 Conn. at 83 n.8, 95 A.3d 1113. The defendant argues that the second Boscarino factor was present at his consolidated trial and he suffered substantially prejudice in the sexual assault case as a result. In particular, he argues that "[o]nce the cases were joined, the jury was more likely to conclude (based on evidence of the attempt to escape) that the defendant was prone to physical violence and thus more likely to have used physical force in committing an 'aggravated' sexual assault of a minor." (Footnote added.) The defendant's analysis misapplies the second Boscarino factor. The second Boscarino factor focuses on whether the brutal or shocking nature of the defendant's conduct in one case might compromise the jury's ability to consider fairly the charges against him in the other case . State v. Boscarino , supra, 204 Conn. at 723, 529 A.2d 1260. In the present case, it is undisputed that the defendant's attempt to escape was not of a brutal or shocking nature capable of compromising the jury's ability to consider fairly the charges against him in the sexual assault case. Moreover, the defendant's analysis also overlooks the fact that at the time the state filed its motion for consolidation, neither the parties nor the court knew that the victim would testify that the defendant used some physical force to sexually assault her. When reviewing a trial court's pretrial decision to join cases we focus on the trial court's understanding of what evidence could be presented at trial, not what evidence was actually presented at trial. The record reveals that at the time the state filed its motion to consolidate, the primary basis for the sexual offense charges was the age difference between the defendant and the victim and the fact that the defendant used deception to lure the victim to his apartment. The state did not intend to, nor did it need to, present evidence of physical force to prove "aggravated" sexual assault of a minor. Thus, it was reasonable for the court to conclude that any risk that the jury would improperly consider evidence that the defendant used some physical force in his attempt to escape in its deliberations on the aggravated sexual assault of a minor charge could be cured with a proper limiting instruction. See State v. Chance , supra, 236 Conn. at 38, 671 A.2d 323. "[W]hether a joint trial will be substantially prejudicial to the defendant's rights means something more than that it will be less advantageous to [him]." (Internal quotation marks omitted.) State v. Perez , 147 Conn.App. 53, 98 n.42, 80 A.3d 103 (2013), aff'd, 322 Conn. 118, 139 A.3d 654 (2016) ; accord State v. Chance , supra, 236 Conn. at 51-52, 671 A.2d 323. Because the defendant has failed to establish that he was substantially prejudiced by a consolidated trial, we conclude that the court did not abuse its discretion by granting the state's motion to consolidate. B The defendant's final claim concerning the consolidation of the informations for trial is that the court violated his right to remain silent, as guaranteed by the fifth and fourteenth amendments to the federal constitution, by denying his motion for a new trial after he testified as to the escape charge but remained silent as to the sexual assault charges. Specifically, the defendant argues that "the improper joinder effectively undermined [his] valued right to remain silent-more precisely, his right to insure that no adverse inferences were drawn from the exercise of that constitutional privilege." We disagree. The following additional facts are relevant to this claim. On September 19, 2013, the defendant filed an anticipatory objection to the state's motion to consolidate, in which he argued, inter alia, that joinder would substantially prejudice his right to a fair trial, including his decision to testify. On September 23, 2013, the court held a hearing concerning the state's motion to consolidate. At that hearing, the defendant never addressed how joinder would affect his decision to testify as to the sexual assault charges or the escape charges. Trial commenced on October 9, 2013. In its preliminary instructions to the jury, the court explained that the trial would involve "two separate informations" that had been "consolidated for purposes of the trial only." The court further emphasized that the two informations must be considered separately. That day, the state presented evidence pertaining only to the sexual assault charges. At the start of the second day of trial, the court reminded the jurors that "there are two separate sets of factors that are being considered, two separate informations" and that they were "still receiving information concerning the first set, the allegations of what happened" at the location where the victim was sexually assaulted. After presenting the testimony of two more witnesses, the state rested in the sexual assault case. The court then reminded the jurors that "the defendant in this case is charged in two separate informations" and that "the state just concluded the evidence on the first information ." The court further reiterated that "[t]he fact that the cases were consolidated for trial does not mean anything other than they were consolidated for trial. It's the same defendant in both. And . the defendant is entitled to and has to be given separate consideration for each." The jury was then excused for a recess. When court resumed, the court asked the defendant outside the presence of the jury whether he would be testifying "for the first case." The defendant responded that he would not, and the court canvassed the defendant on his election not to testify. The jury then reentered the courtroom, and the defense rested as to the sexual assault case. When the parties were ready to proceed with the escape case, the court reminded the jurors that "this is a separate count" and that the evidence being presented related to only the second information. After the state called two judicial marshals as witnesses and had an evidentiary stipulation read to the jury, it rested. The defendant then indicated that he wished to testify concerning the escape case, and the court canvassed the defendant concerning that decision. The defendant did not renew his objection to the consolidation of the cases for trial based on his decision to testify as to the escape charge but not the sexual assault charges. After the defendant testified concerning the escape charge, the defense rested. On October 11, 2013, the court charged the jury. Throughout the charge, the court emphasized that the trial consisted of two separate informations that had been "consolidated for the convenience of trial," and that "the defendant is entitled to and must be given . a separate and independent determination of whether he is guilty or not guilty as to each of the counts." Concerning the defendant's decision to testify concerning the escape charge but not the sexual assault charges, the court gave the following instruction: "There are two separate sets of allegations, the [sexual assault] charges and the [escape] charges. The defendant has not testified in the [sexual assault] case. An accused person has the option to testify or not to testify at the trial. He is under no obligation to testify and he has a constitutional right not to testify. You must draw no unfavorable inferences from the defendant's choice not to testify, that is with reference to the [sexual assault] charges." After his conviction, the defendant filed a motion for a new trial based, in part, on the consolidation of the two cases. On December 12, 2013, the court held a hearing on the defendant's motion for a new trial. At that hearing, the defendant argued that the consolidation of the cases "impacted [his] testimony in a negative way" because "there is at least a possibility that one or more of the jurors held it against [him] for not testifying on that second trial." "It long has been recognized that joinder of unrelated criminal charges can cause [substantial] prejudice when it 'embarrasses or confounds an accused in making his defense.' " State v. Perez , 322 Conn. 118, 134, 139 A.3d 654 (2016). However, "[substantial] prejudice will not invariably result from a decision to testify selectively. Consequently, [a]n accused's election to testify on some but not all of the charges on trial does not automatically require a severance.... Rather, the matter remains within the trial court's discretion ." (Citation omitted; internal quotation marks omitted.) Id., at 135, 139 A.3d 654. "[N]o need for a severance exists until the defendant makes a convincing showing that he has both important testimony to give concerning one count and [a] strong need to refrain from testifying on the other. In making such a showing, it is essential that the defendant present enough information-regarding the nature of the testimony he wishes to give on one count and his reasons for not wishing to testify on the other-to satisfy the court that the claim of prejudice is genuine and to enable it intelligently to weigh the considerations of economy and expedition in judicial administration against the defendant's interest in having a free choice with respect to testifying." (Internal quotation marks omitted.) Id., at 135-36, 139 A.3d 654. On appeal, the defendant bears the burden of proving that joinder substantially prejudiced his right to remain silent. See State v. Crenshaw , supra, 313 Conn. at 83, 95 A.3d 1113. "[T]his means something more than that a joint trial [was] less than advantageous to the defendant," and it requires the defendant to "[show] that any prejudice from joinder may be beyond the curative power of the court's instructions." (Internal quotation marks omitted.) State v. Chance , supra, 236 Conn. at 51, 671 A.2d 323 ; accord State v. Perez , supra, at 134-35, 139 A.3d 654. In the present case, the defendant has failed to show that the consolidation of the two cases for trial substantially prejudiced his right to remain silent. The jurors were certainly aware that the trial consisted of two separate and distinct cases that were joined only for judicial economy. They were also undoubtedly aware that they must consider those cases in a separate and distinct manner. Indeed, the court expressly instructed the jurors that they could not commingle the evidence from the two cases or draw an unfavorable inference from the defendant's decision not to testify as to the sexual assault charges. It is well established that "[t]he jury is presumed, in the absence of an indication to the contrary, to have followed the instructions of the trial court." (Internal quotation marks omitted). State v. Chance , supra, 236 Conn. at 51, 671 A.2d 323. Therefore, we conclude that the defendant has failed to establish that he was substantially prejudiced by the consolidation of the sexual assault information and escape information for trial. III The defendant next seeks Golding review of his claim that the court violated his rights under the fourth amendment to the United States constitution by denying his motion to suppress evidence obtained during a search of his apartment. We conclude that the defendant's claim is unreviewable under the first prong of Golding because the record is inadequate for review. The following additional facts are relevant to this claim. On August 31, 2011, officers searched the defendant's apartment with his written consent. At the time the defendant gave his consent for the search, he was being detained for investigative purposes. He was not given Miranda warnings prior to giving consent. During the search of the defendant's apartment, officers found a small packet of lubricant in the trash in the defendant's bathroom and a corner piece of foil that had been torn from the packet of lubricant in the defendant's bedroom. On September 19, 2013, the defendant filed a motion to suppress "any and all statements alleged to have been made by the defendant to or in the presence of any law enforcement authorities and to further suppress all evidence, tangible and intangible, obtained directly or indirectly derived from said statements." On October 7, 2013, the court conducted an evidentiary hearing regarding the defendant's motion to suppress. At the hearing, the defendant argued, inter alia, that the officers violated his right against self-incrimination under the fifth amendment to the United States constitution by asking him to sign the consent to search form while in custody. The defendant reasoned that the officers' request for consent constituted an "interrogation" for the purposes of Miranda because "the police should [have known] that asking [the defendant] to sign [the consent to search] form [was] reasonably likely to elicit an incriminating response." Although the defendant cited the fourth amendment in his motion to suppress, he did not make any substantive arguments that suppression was required under the fourth amendment in that motion or at the evidentiary hearing. On October 8, 2013, the court orally denied the defendant's motion to suppress. On October 9, 2013, the first day of trial, the court memorialized its ruling briefly on the record during a recess. In relevant part, the court stated: "There was a motion to suppress that was filed by defense counsel and I'd given an oral ruling yesterday that the motion to suppress was denied. There was consent for the apartment search." The remainder of the court's brief oral ruling addressed its denial of the motion to suppress with respect to the buccal swab taken from the defendant with his consent. The court concluded its oral ruling by stating: "I will put this all in writing." The court, however, did not issue a written memorandum of decision. After the defendant's convictions, the defendant renewed his original suppression claim in his motion for a new trial, which the court denied. On appeal, the defendant now claims that the court violated his rights under the fourth amendment by denying his motion to suppress. Specifically, the defendant claims that the fourth amendment requires law enforcement to provide Miranda warnings before obtaining consent to search from an individual that is in custody. Alternatively, the defendant claims that he did not knowingly and voluntarily consent to the search of his apartment. Because the defendant failed to preserve his fourth amendment claim, he seeks Golding review. "The first Golding requirement is that the record be adequate to review the alleged claim of [constitutional] error . The defendant bears the responsibility for providing a record that is adequate for review of his claim of constitutional error. If the facts revealed by the record are insufficient, unclear or ambiguous as to whether a constitutional violation has occurred, we will not attempt to supplement or reconstruct the record, or to make factual determinations, in order to decide the defendant's claim." (Citation omitted; internal quotation marks omitted.) State v. Hampton , 293 Conn. 435, 443-44, 988 A.2d 167 (2009). Although the court orally denied the defendant's motion to suppress, it did not issue a written memorandum of decision or sign the transcript of its oral decision, pursuant to Practice Book § 64-1(a). "While we do not condone the court's failure to comply with [Practice Book § 64-1(a) ], and would decline in most instances to search the transcript to ascertain the factual basis in support of the trial court's ruling, we would not [ordinarily] exalt form over substance if the deficiency were of a technical nature." (Internal quotation marks omitted.) State v. Beliveau , 52 Conn.App. 475, 480, 727 A.2d 737, cert. denied, 249 Conn. 920, 733 A.2d 235 (1999). In the present case, however, the inadequacy of the record is not of a technical nature. The record is devoid of any specific factual findings by the court concerning its ruling on the defendant's motion to suppress. Although the court stated that "[t]here was consent for the apartment search," the defendant did not contest the validity of his consent in his motion to suppress or at the suppression hearing. "[I]t is well established that as an appellate tribunal, we do not find facts." State v. Daly , 111 Conn.App. 397, 400, 960 A.2d 1040 (2008), cert. denied, 292 Conn. 909, 973 A.2d 108 (2009). It is not this court's role to make a determination, sua sponte, of whether the defendant's consent to search was knowing and voluntary and when, if ever, the defendant received Miranda warnings. It is only for this court to decide "whether [the legal conclusions of the trial court] are legally and logically correct and whether they find support in the facts set out in the memorandum of decision [or the signed transcript of the oral ruling] ." State v. Jenkins , 298 Conn. 209, 222, 3 A.3d 806 (2010). Therefore, because any decision made by us concerning the validity of the defendant's consent to search would be entirely speculative without the necessary factual and legal conclusions furnished by the trial court, it is unreviewable under the first prong of Golding . State v. Duteau , 68 Conn.App. 248, 254, 791 A.2d 591 (record inadequate for review of fourth amendment suppression claim where trial court did not issue memorandum of decision, sign the transcript, or make specific factual findings concerning issues on appeal), cert. denied, 260 Conn. 939, 835 A.2d 58 (2002) ; State v. Rios , 30 Conn.App. 712, 715-16, 622 A.2d 618 (1993) (same); see State v. Beliveau , supra, 52 Conn.App. at 481-82, 727 A.2d 737 (fifth amendment claim); see also State v. Young , 76 Conn.App. 392, 409, 819 A.2d 884 (record inadequate to review of motion to suppress in-court identification where trial court did not issue a memorandum of decision, sign the transcript, or "make any findings whatsoever regarding the suggestiveness of the arraignment proceedings"), cert. denied, 264 Conn. 912, 826 A.2d 1157 (2003). IV The defendant's final claim on appeal is that the trial court improperly denied his motion to vacate on the ground that his convictions and cumulative sentences for the three sexual offenses violated his right against double jeopardy, as guaranteed by the fifth and fourteenth amendments to the United States constitution. Specifically, the defendant argues that because sexual assault in the first degree and risk of injury to a child are the "same offense" as aggravated sexual assault of a minor, his convictions for sexual assault in the first degree and risk of injury should have been vacated prior to sentencing. The state responds that, although sexual assault in the first degree and risk of injury are factually and legally the same offense as aggravated sexual assault of a minor in the present case, they are not the "same offense" for the purposes of double jeopardy because the legislature intended to authorize cumulative punishments for individuals convicted of aggravated sexual assault of a minor and the charged predicate offense(s). We agree with the defendant that his cumulative convictions and sentences for aggravated sexual assault of a minor, sexual assault in the first degree, and risk of injury to a child violates double jeopardy. A We begin our analysis by addressing the defendant's claim that sexual assault in the first degree and risk of injury to a child are the "same offense" as aggravated sexual assault of a minor for double jeopardy purposes. The double jeopardy clause "prohibits not only multiple trials for the same offense, but also multiple punishments for the same offense in a single trial.... Double jeopardy analysis in the context of a single trial is a two-step process. First, the charges must arise out of the same act or transaction. Second, it must be determined whether the charged crimes are the same offense. Multiple punishments are forbidden only if both conditions are met.... Traditionally we have applied the Blockburger test to determine whether two statutes criminalize the same offense, thus placing a defendant prosecuted under both statutes in double jeopardy: [W]here the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not." (Footnote added; internal quotation marks omitted.) State v. Gonzalez , 302 Conn. 287, 315-16, 25 A.3d 648 (2011). "In conducting this inquiry, we look only to relevant statutes, the information, and the bill of particulars, not to the evidence presented at trial." (Internal quotation marks omitted.) State v. Palmer , 206 Conn. 40, 52, 536 A.2d 936 (1988). In the present case, it is undisputed that the sexual offenses arose out of the same transaction, i.e. the sexual assault of the victim on August 31, 2011. It is also undisputed that sexual assault in the first degree and risk of injury to a child are legally the "same offense" as aggravated sexual assault of a minor under the Blockburger test when, as here, they are charged as predicate offenses for aggravated sexual assault of a minor. See State v. Greco , 216 Conn. 282, 292, 579 A.2d 84 (1990) (holding that first degree robbery and first degree burglary are the "same offense" as felony murder under the Blockburger test when the felony murder count alleges "robbery and burglary" as predicate offenses). Our inquiry continues, however, as "the Blockburger test creates only a rebuttable presumption of legislative intent, [and] the test is not controlling when a contrary intent is manifest." (Internal quotation marks omitted.) State v. Bernacki, 307 Conn. 1, 23, 52 A.3d 605 (2012), cert. denied, - U.S. -, 133 S.Ct. 1804, 185 L.Ed.2d 811 (2013). The "[d]ouble jeopardy protection against cumulative punishments is only designed to ensure that the sentencing discretion of the courts is confined to the limits established by the legislature. . Where . a legislature specifically authorizes cumulative punishment under two statutes, regardless of whether those two statutes proscribe the same conduct under Blockburger, a court's task of statutory construction is at an end and the prosecutor may seek and the trial court or jury may impose cumulative punishment under such statutes in a single trial.... The Blockburger test is a rule of statutory construction, and because it serves as a means of discerning [legislative] purpose the rule should not be controlling where, for example, there is a clear indication of contrary legislative intent.... The language, structure and legislative history of a statute can provide evidence of this intent." (Citations omitted; internal quotation marks omitted.) State v. Greco , supra, 216 Conn. at 293, 579 A.2d 84 ; accord Missouri v. Hunter , 459 U.S. 359, 368, 103 S.Ct. 673, 74 L.Ed.2d 535 (1983) (stating that the Blockburger test "is not a constitutional rule requiring courts to negate clearly expressed legislative intent"). In the present case, the burden is on the state to rebut the presumption created under the Blockburger test that aggravated sexual assault of a minor is the same offense as sexual assault in the first degree and risk of injury to a child for the purposes of double jeopardy. State v. Alvaro F. , 291 Conn. 1, 13 n.14, 966 A.2d 712, cert. denied, 558 U.S. 882, 130 S.Ct. 200, 175 L.Ed.2d 140 (2009). In particular, the burden is on the state to present evidence of clear legislative intent to specifically authorize cumulative punishments for a conviction under § 53a-70c and the underlying predicate offense(s). If this court concludes that it is ambiguous whether the legislature intended to authorize cumulative punishments, the state cannot prevail. See State v. Wright , 319 Conn. 684, 692 n.3, 127 A.3d 147 (2015). When divining legislative intent in the double jeopardy context, our Supreme Court has considered several factors, including: (1) whether the statutes were "designed to protect separate and distinct interests of society"; (internal quotation marks omitted) State v. Bernacki , supra, 307 Conn. at 29, 52 A.3d 605 ; see also State v. Greco , supra, 216 Conn. at 295-96, 579 A.2d 84 ; (2) whether the statute in question references other statutory offenses; State v. Greco , supra, at 294-95, 579 A.2d 84 ; (3) whether the statute in question "set[s] forth a separate penalty rather than using a multiplier of the penalty for another offense"; id., at 294, 579 A.2d 84 ; (4) the presence of language expressly prohibiting cumulative punishments; id., at 295, 579 A.2d 84 ; (5) the placement of each offense within the General Statutes; State v. Braswell , 42 Conn.App. 264, 271, 679 A.2d 407 (1996), appeal dismissed, 243 Conn. 248, 701 A.2d 1057 (1997) ; and (6) the legislative history of the challenged statute; State v. Greco , supra, at 296-97, 579 A.2d 84. In the present case, the statutes at issue are designed to protect the same interests of society; each of the charged statutory provisions strives to protect children from inappropriate sexual contact. Section 53a-70c in particular furthers this purpose by enabling the state to seek enhanced, mandatory penalties for sexual offenders of children when the victim is under the age of thirteen and an enumerated aggravating factor is present. Cf. State v. Greco , supra, 216 Conn. at 296-98, 579 A.2d 84 (holding that robbery and burglary are not the "same offense" as felony murder even when they are charged as predicate offenses because each offense has a distinct statutory purpose: "An obvious purpose of the felony murder statute, or any murder statute, is to protect human life.... In contrast, [t]he basic rationale [of the robbery statutes] is protection against the terror of the forcible taking . while the primary rationale of the crime of burglary is protection against invasion of premises likely to terrorize occupants." [Citations omitted; internal quotation marks omitted.] ). The state responds that "while these statutes may be 'closely linked,' the overlap is 'not determinative' because the harms targeted [by these statutes] . 'do not necessarily coexist' in every case." The state analogizes this case to State v. Wright , supra, 319 Conn. at 684, 127 A.3d 147. In Wright , our Supreme Court addressed whether the double jeopardy clause prohibited a defendant from being convicted and sentenced for two counts of aggravated sexual assault of a minor, which arose from the same transaction but charged different subsections of § 53a-70c. Id., at 685-86, 127 A.3d 147. It was undisputed in Wright that the two counts were factually and legally distinct offenses, and, therefore, that the burden was on the defendant to rebut the Blockburger presumption. Id., at 690-92, 127 A.3d 147. In concluding that the defendant failed to rebut the Blockburger presumption, the Supreme Court observed that the two subsections at issue targeted distinct harms: subsection (1) addresses the abduction and restraint of child victims, whereas subsection (6) addresses the targeting of children by strangers that are sexual predators. Id., at 695, 127 A.3d 147. Consequently, "the harms targeted in the two subdivisions . do not necessarily coexist in every aggravated sexual assault of a minor." Id. In the present case, the state argues that the three statutes at issue also target separate and distinct societal harms: § 53-21(a)(2) targets "contact with intimate parts in a sexual and indecent manner likely to impair health or morals"; § 53a-70(a)(2) targets "sexual intercourse when the actor [is] at least two years older" than a victim that is under thirteen; and § 53a-70c(a)(1) targets situations where a "victim under thirteen [is] kidnapped or restrained." Because the evils of each offense " 'do not necessarily coexist' " in every aggravated sexual assault of a minor prosecution, the state argues that they cannot be viewed as the same offense for double jeopardy purposes. The state's argument, however, ignores the fact that § 53-21(a)(2) and 53a-70(a)(2) are essential elements of § 53a-70c when they are charged as predicate offenses. Therefore, the harms targeted by § 53-21(a)(2) and 53a-70(a)(2) necessarily coexist in every § 53a-70c prosecution in which they are alleged as predicate offenses, which distinguishes this case from Wright . Turning to the next factor, it is unclear from the language of the relevant statutes whether the legislature intended to specifically authorize cumulative punishments. As we previously stated, § 53a-70c requires the state to prove that a predicate offense has been committed, and, to that end, it expressly identifies § 53-21 (a) (2) and § 53a-70 as qualifying predicate offenses, which suggests that they are greater and lesser offenses. Cf. Garrett v. United States , 471 U.S. 773, 779-81, 105 S.Ct. 2407, 85 L.Ed.2d 764 (1985) (finding evidence of intent to authorize cumulative punishments in the fact that the statute in question contained no reference to other statutory offenses). However, General Statutes § 53a-35a(3) sets forth a separate and distinct penalty from other felony offenses for a conviction under § 53a-70c. Our inquiry into the legislature's intent, however, is somewhat confounded by the absence of language expressly prohibiting cumulative punishments for conduct that violates § 53a-70c because the legislature has employed such language in at least nineteen other criminal statutes, including the criminal statutes for aggravated sexual assault in the first degree and sexual assault in the third degree with a firearm. "Since the legislature has shown that it knows how to bar multiple punishments expressly when it does not intend such punishment, the absence of similar language [in a criminal statute] provides evidence that the legislature intended cumulative punishment." State v. Greco , supra, 216 Conn. at 295, 579 A.2d 84. We turn therefore to the legislative history of § 53a-70c, which reveals that its enactment was the product of a compromise between legislators that wanted to limit judicial discretion when sentencing sexual offenders of children and legislators that wanted to safeguard prosecutorial discretion and the plea bargaining process. That compromise resulted in what legislators referred to as the "new crime" of aggravated sexual assault of a minor, which enabled, but did not require, prosecutors to pursue enhanced, mandatory sentences for sexual offenders of children when, in their judgment, the facts and circumstances of the particular case warranted a significant mandatory minimum sentence. Overall, although the legislative history of § 53a-70c reveals a clear legislative intent to specifically authorize enhanced, mandatory penalties, it does not reveal a clear legislative in tent to specifically authorize cumulative punishments for § 53a-70c and its predicate offenses. Section 53a-70c is part of a series of statutes commonly referred to as Jessica's Law. The impetus for Jessica's Law was the tragic murder of nine year old Jessica Lunsford, who was abducted from her Florida home by a registered sex offender and sexually assaulted before being buried alive. M. Bell, " Grassroots Death Sentences?: The Social Movement for Capital Child Rape Laws," 98 J. Crim. L. & Criminology 1, 16-17 (Fall 2007) ; T. Aguayo, "Sex Offender Guilty of Rape and Murder of Florida Girl," The New York Times (March 8, 2007), available at http://www.nytimes.com.ezproxy.cityu.edu.hk/2007/03/08/us/08verdict.html (last visited January 23, 2017). One of the many initiatives of Jessica's Law is to create higher mandatory penalties for first and second time sexual offenders of children to ensure that they are unable to reach future victims. M. Bell, supra, 17. Jessica's Law was first proposed in Connecticut in 2006. The original bill proposed amending the sentencing provisions of certain sexual offenses to create high mandatory minimum sentences when the victim was under the age of thirteen. The bill did not alter the legal structure of the underlying sexual offenses. Some legislators were concerned, however, that the proposed bill would hamper the plea bargaining process and prosecutors' ability to pursue a lesser offense, and lesser penalties, if the facts and circumstances of the case did not warrant a high mandatory minimum sentence. In particular, they noted the wide array of sexual offenses encompassed by the bill and the fact that the bill (without qualification) required a high mandatory minimum sentence when the victim was under thirteen years old. Although the proponents of the original bill maintained that prosecutors would retain their discretion in charging, the bill was held over to the next legislative session. In 2007, a revised bill was introduced. To address the concerns raised about the original bill, the revised bill consolidated the enhanced penalties for the sexual assault of a child under the age of thirteen into the "new crime" of aggravated sexual assault of a minor. Despite the new nomenclature, the legislature continued to treat this provision as a sentencing enhancement during legislative hearings. In particular, proponents of the bill touted this new crime as a "tool" that could be utilized by prosecutors to secure a high mandatory minimum sentence when the facts and circumstances of the case warranted it. The revised bill was ultimately passed and codified, in relevant part, at § 53a-70c. It is clear from the legislative history of § 53a-70c that the legislature wanted to authorize high mandatory minimum sentences for sexual offenders of children. Initially, the legislature sought to obtain this result by amending only the sentencing provisions of each relevant statute. When concerns were raised about the effect of the original bill on prosecutorial discretion and the plea bargaining process, the legislature created the "new crime" of aggravated sexual assault of a minor. This new crime was designed to give prosecutors the discretion to charge either the greater offense with its high mandatory sentencing provision or the lesser offenses with those standard sentencing provisions, depending on the facts and circumstances of the case. It is not clear from this legislative history, however, that the legislature intended to specifically authorize cumulative convictions and sentences for aggravated sexual assault of a minor and the charged predicate offense(s). Therefore, on the basis of our examination of the language, structure, and legislative history of § 53a-70c, we conclude that the state has failed to rebut the presumption created by the Blockburger test that § 53a-70c is the same offense as its charged predicate offenses for the purposes of double jeopardy. Accordingly, the defendant's cumulative convictions and sentences for the three sexual offenses violates his right against double jeopardy. B Having determined that the defendant's cumulative convictions and sentences for aggravated sexual assault of a minor, sexual assault in the first degree, and risk of injury to a child violate double jeopardy, we must determine the appropriate remedy. The defendant argues that the court must vacate his convictions and sentences for both lesser offenses, i.e., sexual assault in the first degree and risk of injury to a child. The state responds that we should vacate the defendant's conviction and sentence for only one of the lesser offenses because the state charged only one count of aggravated sexual assault when it could have charged two counts (i.e., it could have charged one count for each predicate offense). Therefore, the state reasons that "vacating both lesser charges would grant the defendant a windfall he is not entitled to," namely, fifteen fewer years imprisonment. We are not persuaded that the remedy advocated by the state is available to us. The following facts are relevant to our resolution of this issue. On June 18, 2014, the court imposed a total effective sentence of fifty years imprisonment, thirty years of which were a mandatory minimum, followed by five years of special parole. For the sexual assault information, the court imposed a sentence of forty years imprisonment, thirty years of which were a mandatory minimum, followed by five years of special parole. Specifically, on count one, sexual assault in the first degree, the court sentenced the defendant to twenty years imprisonment, five years of which were a mandatory minimum, followed by five years of special parole, to be served concurrently with count three. On count two, risk of injury to a child, the court sentenced the defendant to fifteen years imprisonment, five of which were a mandatory minimum, to be served consecutively to counts one and three. On count three, aggravated sexual assault of a minor, the court sentenced the defendant to twenty-five years imprisonment, twenty-five of which were a mandatory minimum, to be served concurrently with count one. For the escape information, the court imposed a sentence of ten years imprisonment, to be served consecutively to count two of the sexual assault information. Our Supreme Court's holding in State v. Polanco , 308 Conn. 242, 61 A.3d 1084 (2013), controls in this circumstance. In Polanco , the Supreme Court, exercising its supervisory authority, held that when a defendant is convicted of greater and lesser offenses, the court must vacate the lesser offense(s). Id., at 255, 61 A.3d 1084 ; see also State v. Miranda , 317 Conn. 741, 751, 120 A.3d 490 (2015) (holding that vacatur was the appropriate remedy for the double jeopardy violation caused by cumulative convictions and sentences for capital murder and felony murder). In the present case, it is undisputed that it was impossible for the defendant to commit the greater offense (aggravated sexual assault of a minor), in the manner charged in the long form information, without committing the lesser offenses (sexual assault in the first degree and risk of injury to a child). Therefore, pursuant to Polanco , the convictions and sentences for the lesser offenses must be vacated. Accordingly, we remand the case to the trial court to vacate the defendant's convictions and sentences for risk of injury to a child and sexual assault of a minor. We direct the trial court to resentence the defendant for his remaining convictions of aggravated sexual assault of a minor and attempt to escape custody. See State v. Wade , 297 Conn. 262, 271-72, 998 A.2d 1114 (2010). The judgment is reversed only as to the defendant's convictions of sexual assault in the first degree and risk of injury to a child, and the case is remanded to the trial court with direction to vacate the convictions of those offenses and to resentence the defendant on the remaining charges. The judgment is affirmed in all other respects. In this opinion the other judges concurred. In accordance with our policy of protecting the privacy interests of the victims of sexual abuse, we decline to identify the victim, others individuals or locations through which the victim's identity may be ascertained. See General Statutes § 54-86e. The victim was eleven years old at the time while the defendant was nineteen years old. At trial, the victim described the defendant as being "a lot bigger than me" at the time of the defendant's attack on her. Judge Joan K. Alexander presided over all pretrial proceedings after arraignment. See General Statutes § 54-56d(i)(1) ("[t]he period of placement under the order or combination of orders shall not exceed the period of the maximum sentence which the defendant could receive on conviction of the charges against the defendant or eighteen months, whichever is less"). Judge Julia DiCocco Dewey presided over all trial and posttrial proceedings. State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989) ; see In re Yasiel R., 317 Conn. 773, 781, 120 A.3d 1188 (2015) (modifying third prong). "Nunc pro tunc means 'now for then' and is used, inter alia, to refer to competency determinations made after the time at which the underlying proceeding took place, in the present case, the defendant's criminal trial." State v. Connor, 321 Conn. 350, 365 n.6, 138 A.3d 265 (2016). The defendant alternatively asks this court to exercise its supervisory authority over the administration of justice to require trial courts to canvass defendants concerning their purported right to testify at a competency hearing. "It is well settled that [a]ppellate courts possess an inherent supervisory authority over the administration of justice." (Internal quotation marks omitted.) State v. Elson, 311 Conn. 726, 764, 91 A.3d 862 (2014). However, "[t]he exercise of our supervisory powers is an extraordinary remedy to be invoked only when circumstances are such that the issue at hand, while not rising to the level of a constitutional violation, is nonetheless of utmost seriousness, not only for the integrity of a particular trial but also for the perceived fairness of the judicial system as a whole." (Internal quotation marks omitted.) Id., at 765, 91 A.3d 862. We are not convinced that it is necessary to the due administration of justice for us to invoke our supervisory authority in the present case. Our supervisory authority is meant to be utilized sparingly and only in extraordinary circumstances, which simply are not present here. Cotterell did not explicitly diagnose the defendant with malingering in the third competency report, but this diagnosis is reflected throughout that report. For example, Cotterell concluded his report by observing: "[The defendant] knows about his circumstances, and can engage with staff members on an informal basis. He has been consistent, when asked to engage in a formal examination of his competency, in repeatedly stating that he knows nothing. This is a reflection of his immaturity and impulsivity, and there is definitely a volitional component to this presentation. It is clear that he knows more than he is willing to admit. He is not currently taking psychiatric medication, and he has not demonstrated any symptoms of a serious mental illness that would require such treatment. Although [the defendant] frequently refuses to participate in evaluations, his refusal is not deemed to be secondary to a psychotic process or mood disorder, but rather a reflection of his long-standing pattern of oppositional conduct." (Emphasis added.) Additionally, in his posttrial competency report on the defendant, Cotterell referred to the principal diagnosis of malingering being given at the time he determined that the defendant was competent to stand trial. When discussing the defendant's behavior during his hospitalization, Cotterell observed: "[The defendant] demonstrated clinical stability. He no longer voiced delusional materials, reported no perceptual problems, and his behavior was described a[s] coherent and organized. [The defendant] began to show some concern as his return date to the court approached. He made vague claims that he was suicidal, but promptly retracted his statement when faced with the prospect of safety measures that would be applied in such cases. His behavior suggested that he was trying to find a way to avoid facing the implications of his charges. He sometimes refused his medications at night and claimed, 'They kept me awake,' in an unconvincing manner. He asked whether he would stay longer on the unit if he were not taking his medications. The treating psychiatrist explained that we would petition the court to appoint a conservator with the authority to give us permission to medicate him if such a situation presented itself. This seemed to persuade [the defendant] not to pursue his quest for a quick way out of facing his legal obligations." When discussing his efforts to engage the defendant in a conversation about the different elements of the legal system, Cotterell stated that "[the defendant] did not appear to be motivated to participate in the evaluation and did not appear to be putting forth his best effort." The defendant also asks this court to invoke its supervisory authority. We are not convinced that this claim presents extraordinary circumstances warranting an exercise of our supervisory authority. See footnote 8 of this opinion. General Statutes § 17a-566 states in relevant part: "(a) . any court prior to sentencing a person convicted . of a sex offense involving . disparity of age between an adult and a minor . may if it appears to the court that such person has psychiatric disabilities and is dangerous to himself or others, upon its own motion or upon request of any of the persons enumerated in subsection (b) of this section and a subsequent finding that such request is justified, order the commissioner to conduct an examination of the convicted defendant by qualified personnel of the division.... "(b) The request for such examination may be made by the state's attorney or assistant state's attorney who prosecuted the defendant for an offense specified in this section, or by the defendant or his attorney in his behalf...." The record indicates that, because of the defendant's behavior during their meetings, defense counsel had informed the court and the state that he intended to move for a competency evaluation prior to the hearing and prior to the defendant's misconduct while being transported. The court engaged in the following colloquy with the defendant: "The Court: Now, they've attempted to do the competency evaluation but they've had some difficulty because you don't wish to participate in it. That is your option- "[The Defendant]: Participate in mental health? "The Court: The competency evaluation. "[The Defendant]: Yes. "The Court: I would like for you to participate. I can't force you to, but it would make the- "[The Defendant]: Nah. Nah. "The Court: -the decision easier. "[The Defendant]: I would like not to participate in mental health because I'm not a mental health client. "The Court: Well, this isn't to see if whether you're a mental health client. This is to see whether- "[The Defendant]: I'm competent to stand trial. "The Court: No. You're competent to be sentenced. There's a difference. So I would not sentence you unless you're competent to be sentenced. What I am going to do is order the evaluator to have access to your medical and mental health records- "[The Defendant]: I think I'm in the wrong court. "The Court: No, you're in the right court. "[The Defendant]: No, I'm in the wrong court. This is not even the right court. . "[The Defendant]: All right. I'll cooperate. "The Court: Good. And they're also going to have access to your records. The fact that you're cooperating doesn't necessarily mean you're going to go to a mental health facility, but we want to know what is best for you and best for the state in terms of the sentencing. I appreciate your cooperation. Thank you very much." On June 18, 2014, the court held a video conference to make a technical change to the defendant's sentence. When the defendant apologized for his expletory remarks to the court during sentencing, the court vacated the defendant's sentence for contempt. After the court stated that it was imposing a total effective sentence of fifty years imprisonment for the substantive offenses, however, the defendant began arguing that he was innocent and wrongly convicted. State v. Boscarino, 204 Conn. 714, 529 A.2d 1260 (1987). The defendant also claims that the court abused its discretion by granting the state's motion for consolidation because the motion was untimely. We disagree. Practice Book § 41-5 states in relevant part: "Unless otherwise provided by these rules or statute, all pretrial motions or requests shall be made not later than ten days after the first pretrial conference in the court where the case will be tried, or, with permission of the judicial authority, at such later time as the judicial authority may fix." (Emphasis added.) See also Practice Book § 41-3(4) (authorizing pretrial motions for joinder). In the present case, by accepting the state's motion to consolidate over the defendant's objection, the court permitted the state to file the motion to consolidate later than ten days after the first pretrial conference. The defendant nevertheless contends that the court abused its discretion by permitting the state to file a late motion to consolidate because it hindered his ability "to meaningfully and intelligently consider and assess the defense options and strategies at a consolidated trial." (Emphasis in original.) However, the defendant never expressed any concerns at the hearing or at trial about the effect consolidation would or did have on his ability to prepare for trial. Because this claim was not distinctly raised before the trial court, we cannot review it on appeal. See Mitchell v. Commissioner of Correction, 156 Conn.App. 402, 408-409, 114 A.3d 168, cert. denied, 317 Conn. 904, 114 A.3d 1220 (2015). The state filed its initial motion to consolidate in the morning of September 19, 2013 and the revised motion to consolidate in the afternoon. The state also filed two long form informations, one for the sexual assault case and one for the attempt to escape case. The long form sexual assault information added the charge of aggravated sexual assault of a minor. Specifically, the state argued that the defendant's attempt to escape would have been admissible as evidence of consciousness of guilt in a separate trial on the sexual assault information. It also argued that evidence that the defendant was charged with felony sexual assault offenses would have been admissible in a separate trial on the escape information to prove that the defendant was in custody and charged with a felony at the time he attempted to escape. The state raises two arguments on appeal concerning the cross admissibility of the sexual assault evidence in a separate escape trial. First, the state argues that "the [sexual] assault charges were relevant to show a heightened motivation to escape . because the defendant faced 'extremely serious' charges (class A and B felonies) carrying mandatory minimum sentences based on the victim's age ." Second, the state argues that "the record shows that when the factual basis of the assault became known to other inmates, they harassed the defendant, providing further incentive to escape." We first note that it is unclear whether the court was aware that the defendant was being harassed by other inmates at the time it granted the state's motion because this fact was only mentioned in Cotterell's posttrial competency report. Additionally, because these arguments were never presented to the trial court, and, therefore, cannot serve as a basis for the trial court's decision to grant the motion to consolidate, we decline to address them now on appeal. See Practice Book § 60-5. It is undisputed that the first and third Boscarino factors were not present at the consolidated trial. The two sets of charges involve discrete and easily distinguishable factual scenarios. Additionally, the consolidation of the cases for trial did not increase the duration or complexity of the trial because the escape charge required the presentation of only the brief testimony of two judicial marshals and the defendant. During the defendant's attempt to escape, it took approximately four judicial marshals to subdue and restrain him. We reiterate that evidence concerning the escape charge could have properly been admitted in a separate trial for the sexual assault charge because escape indicates consciousness of guilt. "[When] evidence of one incident can be admitted at the trial of the other [incident], separate trials would provide the defendant . [with] no significant benefit. [U]nder such circumstances, the defendant would not ordinarily be substantially prejudiced by joinder of the offenses for a single trial." (Internal quotation marks omitted.) State v. Crenshaw, supra, 313 Conn. at 83-84, 95 A.3d 1113. Only at trial did the victim testify, inter alia, that the defendant pushed her up the stairs, that she screamed for help when he did that, that the defendant pushed her into his bedroom, and that she tried to fight him off by hitting and kicking him. The defendant impeached this testimony during his cross-examination of the officer that interviewed the victim after her sexual assault. This officer testified that the victim never told him that the defendant pushed her up the stairs, that she screamed for help, that she was pushed into the defendant's apartment, or that she tried to fight off the defendant by hitting and kicking him. See State v. Crenshaw, supra, 313 Conn. at 89, 95 A.3d 1113 ("it is well established that the trial court, in making the discretionary, pretrial decision to join multiple cases, rules on whether the evidence could be admissible, not whether the evidence actually is admitted" [emphasis in original] ); State v. Davis, 286 Conn. 17, 47, 942 A.2d 373 (2008) (Katz, J., concurring) ("The trial court's rulings on such motions usually are predicated on the face of the charging document and whatever information is provided to the court regarding evidence to be adduced at trial. Therefore, the reviewing court necessarily must base its determination as to whether the trial court abused its discretion by looking to the state of the record at the time the trial court acted, not to the fully developed record after trial."), overruled on other grounds in State v. Payne, 303 Conn. 538, 549, 34 A.3d 370 (2012) ; State v. Perez, 147 Conn.App. 53, 128-129, 80 A.3d 103 (2013) (Lavine, J., concurring) (the trial court's pretrial decision to join or to sever the cases must be reviewed based only on the information before the trial court at the time it decides the motion), aff'd, 322 Conn. 118, 139 A.3d 654 (2016). To prove aggravated sexual assault of a minor, as charged, the state had to prove that the defendant "illegally restrained" the victim. See General Statutes § 53a-70c(a)(1). " '[R]estrain' means to restrict a person's movements intentionally and unlawfully in such a manner as to interfere substantially with his liberty by moving him from one place to another, or by confining him either in the place where the restriction commences or in a place to which he has been moved, without consent. As used herein 'without consent' means, but is not limited to, (A) deception and (B) any means whatever, including acquiescence of the victim, if he is a child less than sixteen years old . and the parent . has not acquiesced in the movement or confinement." General Statutes § 53a-91(1). The defendant cites article first, § 8, of the Connecticut constitution as an alternative source of his right to remain silent. To the extent the defendant seeks to raise a distinct claim under the Connecticut constitution, we decline to address it because he failed to provide an independent analysis of this state constitutional claim. See State v. Skok, 318 Conn. 699, 701 n.3, 122 A.3d 608 (2015). The defendant also invokes his rights under article first, § 7, of the Connecticut constitution. Because the defendant failed to provide an independent analysis of this claim under the Connecticut constitution, we decline to address it. See State v. Skok, 318 Conn. 699, 701 n.3, 122 A.3d 608 (2015). Miranda v. Arizona, 384 U.S. 436, 478-79, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). See State v. Smith, 321 Conn. 278, 288, 138 A.3d 223 (2016) ("[t]he definition of interrogation [for purposes of Miranda ] can extend only to words or actions on the part of police officers that they should have known were reasonably likely to elicit an incriminating response" [emphasis in original; internal quotation marks omitted] ). The defendant cites article first, § 8 and 9, of the Connecticut constitution as an alternative source of his right against double jeopardy. To the extent the defendant seeks to raise a distinct claim under the Connecticut constitution, we decline to address it because he failed to provide an independent analysis of this claim under the Connecticut constitution. See State v. Skok, 318 Conn. 699, 701 n.3, 122 A.3d 608 (2015). Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932). Count three of the long form information states in relevant part: "The undersigned Senior State's Attorney further accuses the defendant, CHRISTOPHER BURGOS, of the crime of AGGRAVATED SEXUAL ASSAULT OF A MINOR . and alleges that . the defendant committed a violation of Connecticut General Statutes § 53a-70a(a)(2) and 53-21(a)(2) and the victim of such offense . was under thirteen years of age and the defendant illegally restrained said person." Notably, the long form information charges aggravated sexual assault in the first degree, in violation of § 53a-70a(a)(2), as a predicate offense rather than sexual assault in the first degree in violation of § 53a-70(a)(2). This is evidently a typographical error. At trial, the parties and the court operated under the assumption that sexual assault in the first degree was one of the predicate offenses for count three. When the court read the information at the start of trial and charged the jury, it stated that sexual assault in the first degree was one of the predicate offenses for count three. Neither party objected to this reading of the information or the content of the jury charge. Additionally, in their briefs on appeal, both parties have referred to sexual assault in the first degree as being one of the predicate offenses in count three. Therefore, we will continue to refer to sexual assault in the first degree as the appropriate predicate offense. We recognize that when interpreting the meaning of a statute we ordinarily begin our analysis with General Statutes § 1-2z. However, in the present matter, we are not engaging in a linguistic analysis of § 53a-70c in an attempt to discern the meaning and effect of specific words or phrases contained in § 53a-70c. Instead, we are engaging in a constitutional analysis of § 53a-70c in an attempt to discern whether the legislature clearly intended to specifically authorize cumulative punishments for convictions under § 53a-70c and the charged predicate offense(s). General Statutes § 53a-70c(a) provides: "A person is guilty of aggravated sexual assault of a minor when such person commits a violation of subdivision (2) of subsection (a) of section 53-21 or section 53a-70, 53a-70a, 53a-71, 53a-86, 53a-87 or 53a-196a and the victim of such offense is under thirteen years of age, and (1) such person kidnapped or illegally restrained the victim, (2) such person stalked the victim, (3) such person used violence to commit such offense against the victim, (4) such person caused serious physical injury to or disfigurement of the victim, (5) there was more than one victim of such offense under thirteen years of age, (6) such person was not known to the victim, or (7) such person has previously been convicted of a violent sexual assault." As discussed later in this opinion, the primary purpose of the legislation that created § 53a-70c was to create new, enhanced mandatory minimum sentences for individuals that sexually assault children. See General Statutes § 53a-55a(a), 53a-56a(a), 53a-59a(b), 53a-59b(b), 53a-60a(a), 53a-60b(b), 53a-60c(b), 53a-61a(b), 53a-61aa(a), 53a-64aa(b), 53a-64bb(b), 53a-64cc(b), 53a-70a(a), 53a-72b(a), 53a-92a(a), 53a-94a(a), 53a-102a(a), 53a-103a(a), and 53a-216(a). General Statutes § 53a-70a(a) states in relevant part: "No person shall be convicted of sexual assault in the first degree and aggravated sexual assault in the first degree upon the same transaction but such person may be charged and prosecuted for both such offenses upon the same information." General Statutes § 53a-72b(a) states in relevant part: "No person shall be convicted of sexual assault in the third degree and sexual assault in the third degree with a firearm upon the same transaction but such person may be charged and prosecuted for both such offenses upon the same information." General Statutes § 53-21(a)(2) (risk of injury to a child), 53a-70 (sexual assault in the first degree), 53a-70a (aggravated sexual assault in the first degree), 53a-71 (sexual assault in the second degree), 53a-72a (sexual assault in the third degree), 53a-86 (promoting prostitution in the first degree), 53a-87 (promoting prostitution in the second degree), 53a-90a (enticing a minor), 53a-196 (obscenity as to minors), 53a-196a (employing a minor in an obscene performance), and 53a-196b (promoting a minor in an obscene performance). The original bill as passed by the Senate proposed amending the sentencing provisions of several sexual offenses to impose a mandatory minimum sentence of twenty-five years imprisonment if the victim is under thirteen years old. For example, § 53-21(a)(2) would have been amended to contain the following clause: "if . the victim of the offense is under thirteen years of age, [the defendant] shall be guilty of a class A felony and, for a first offense, be sentenced to a term of imprisonment of twenty-five years which may not be suspended or reduced by the court and, for a subsequent offense, be sentenced to a term of life imprisonment." Senate Amendment Schedule A, LCO #4256, to Senate Bill No. 360, 2006 Sess. 49 S. Proc., Pt. 9, 2006 Sess., p. 2835, remarks of Senator John A. Kissel (stating that this law would "leave the underlying constructs of the crime of sexual assault intact. It doesn't change what needs to occur to have the crime occur, but what it does is it enhances the penalties. . What it does is it changes significantly the mandatory minimum sentence that can be imposed by the court."); id., p. 2842, remarks of Senator John A. Kissel ("[N]one of the underlying parameters of what constitutes the [predicate] crime has changed. All we're doing is we're reaching in and we're addressing what the punishment should be." [Emphasis added.] ); id., p. 2849, remarks of Senator John A. Kissel ("Again, we have not offered to change the underlying statutory construct in our state by way of this amendment. We are enhancing the penalties." [Emphasis added.] ); id., p. 2861, remarks of Senator John McKinney ("We are not changing the elements of any crime. This amendment does not change existing law as to the elements of the crime. All it says is that it's going to have a harsher penalty."); 49 S. Proc., Pt. 11, 2006 Sess., p. 3292, remarks of Senator Catherine W. Cook ("This is a bill about sentencing. It's not a bill about whether someone might or might not have committed the crime. This is about after the court, after the jury has decided this person did such terrible things to a child."); id., pp. 3295-96, remarks of Senator Martin M. Looney ("This [modification to the bill] now clarified that the enhanced minimum mandatory [sentence] of twenty-five years will apply if the victim is under the age of thirteen . So it establishes . that we do reserve our most serious penalties for the most serious offenses. . This does target the crime of sexual assault in the first degree, and aggravated sexual assault in the first degree, as suitable for this enhanced penalty." [Emphasis added.] ). 49 S. Proc., Pt. 9, 2006 Sess., pp. 2851-52, remarks of Senator Andrew J. McDonald ("[The proposed amendment] basically incorporates the entire spectrum of options that a prosecutor would have available to him or her. And under this proposal that prosecutor would not have any discretion, but, in fact, would be compelled to bring that child or adult, as the case may be, regardless of the circumstances, and limit the discretion of the court [in sentencing]. And that is an issue that I think every member should have in mind when they vote on this."); id., p. 2854, remarks of Senator Edward Meyer (referring to Senator McDonald's concerns about a twelve year old being charged with a mandatory minimum sentence for touching inner thigh of another twelve year old, Senator Meyer asked "what would be the plea bargain available to the prosecutor and the defense lawyer to avoid an injustice, an excessive injustice"); see also Conn. Joint Standing Committee Hearings, Judiciary, Pt. 19, 2007 Sess., p. 6147, remarks of Senator John McKinney ("I think the Chief State's Attorney is here again today, but he expressed concern, as I know did Chairman [Representative Michael P.] Lawlor and others, that prosecuting, if it's twenty-five years or nothing, people will not reach plea agreements, and you'll have to take a lot of cases to trial, and some people may get off"). See footnotes 40 and 41 of this opinion. See 49 S. Proc., Pt. 9, 2006 Sess., p. 2853, remarks of Senator John A. Kissel ("What this does is it targets certain specific areas. But if a state's attorney wanted to reduce the charge to something else, there's plenty of other ways to go."); id., p. 2859, remarks of Senator John McKinney ("[H]ow is it that on the one hand mandatory minimums don't work because prosecutors can charge down, they don't have to charge the higher crime with the mandatory minimum. In fact, I would ask if you could read this bill to find anywhere where it requires a prosecutor to bring charges under circumstances [where the offense conduct involves two young adolescents]." [Emphasis added.] ). The predicate offenses of the revised bill were General Statutes § 53-21(a)(2), 53a-70, 53a-70a, 53a-71, 53a-86, 53a-87, or 53a-196a. Cf. footnote 40 of this opinion. Although General Statutes § 53a-90a (enticing a minor) was no longer included as a predicate offense, the revised bill did create enhanced penalties for enticement of a minor when the victim is under the age of thirteen. See Public Acts 2007, No. 07-143, § 5. However, the revised bill no longer created enhanced penalties for violations of General Statutes § 53a-72a (sexual assault in the third degree), 53a-196 (obscenity as to minors), or 53a-196b (promoting a minor in an obscene performance). For example, during a Judiciary Committee Hearing, Senator John McKinney highlighted the fact that while "this new crime gives the prosecutors the tool to put the most heinous of predators behind bars for a very long time . it gives the prosecutors the lesser offenses in those cases that warrant it. In that respect, it addresses the concerns raised by the Chief State's Attorney regarding the all or nothing approach included in prior drafts of this bill." Conn. Joint Standing Committee Hearings, Judiciary, Pt. 19, 2007 Sess., pp. 6138-39, testimony of Senator John McKinney. Similarly, Senator John A. Kissel analogized the bill to an arrow in the prosecutor's quiver, stating that "in the case where they have ample evidence, and they really want to throw the book at someone, the twenty-five year mandatory minimum is there." Conn. Joint Standing Committee Hearings, Judiciary, Pt. 20, 2007 Sess., p. 6486, remarks of Senator John A. Kissel; see also Conn. Joint Standing Committee Hearings, Judiciary, Pt. 21, 2007 Sess., p. 6599, written testimony of Senator Louis C. DeLuca ("This bill will put predators where they belong-behind bars where they can do no harm to our children. It will take those who prey on children and keep them off our streets for twenty-five years the first time they abuse a child. If they do it again, they will spend the next fifty years in jail."); id., p. 6603, written testimony of Senator Dan Debicella ("Connecticut needs a law on the books that imposes punishment that fits the crime [of child molestation]. . Twenty-five years, or more, in prison is not too much to demand of sexual predators."). The state's reliance on State v. Wright, supra, 319 Conn. 684, 127 A.3d 147, to support its contention that the legislature clearly intended to authorize multiple punishments is misplaced. Wright is again distinguishable from this case for two distinct reasons. First, in Wright, our Supreme Court was never asked to consider whether the legislature intended to authorize multiple punishments for violations of § 53a-70c and the charged predicate offense. Quite to the contrary, in Wright, the Supreme Court observed that "the trial court vacated the defendant's convictions of [the lesser offenses of] risk of injury to a child and unlawful restraint pursuant to [its] decision in State v. Polanco, 308 Conn. 242, 245, 61 A.3d 1084 (2013)...." State v. Wright, supra, at 687 n.2, 127 A.3d 147. Second, it bears repeating that because the two statutory subsections in Wright were factually and legally distinct the burden was on the defendant to rebut the Blockburger presumption. Id., at 691-92, 127 A.3d 147. In this case, the Blockburger presumption is against the state, and the state bears the burden of demonstrating that the legislature clearly intended to specifically authorize cumulative punishments. See footnote 35 of this opinion. The state maintains that only one lesser offense should be vacated lest the defendant be granted a "windfall" of fifteen fewer years of imprisonment. That is, if the lesser offenses are vacated, the defendant's effective sentence for his convictions under the sexual assault information will be twenty-five years imprisonment, rather than forty years imprisonment. The state's argument is premised on the fact that it could have charged two counts of aggravated sexual assault of a minor-one count alleging sexual assault in the first degree as a predicate offense and one count alleging risk of injury to a child as a predicate offense. The fundamental flaw in the state's argument, however, is that it did not charge the defendant with two counts of aggravated sexual assault of a minor. It charged the defendant with one count of the greater offense and two counts of lesser offenses. Resentencing for the defendant's convictions for aggravated sexual assault of a minor and attempt to escape custody is appropriate in the present case because our decision alters the defendant's total effective sentence. State v. Wade, 297 Conn. 262, 271-72, 998 A.2d 1114 (2010). At sentencing, the court imposed a total effective sentence of fifty years imprisonment, followed by five years of special parole. To achieve the total effective term of imprisonment, the court imposed three consecutive sentences. Specifically, the court ordered that the defendant's sentence for risk of injury to a child (fifteen years imprisonment) be served consecutively to his sentence for aggravated sexual assault of a minor (twenty-five years imprisonment, followed by five years special parole). The court also ordered that the defendant's sentence for attempt to escape (ten years) be served consecutively to his sentence for risk of injury to a child. Therefore, vacatur of the defendant's risk of injury to a child conviction will alter the defendant's total effective sentence by reducing it from fifty years imprisonment to twenty-five years imprisonment. Additionally, the court imposed a term of special parole under the defendant's sexual assault in the first degree conviction. Therefore, vacatur of the defendant's sexual assault in the first degree conviction will eliminate the period of special parole imposed by the original sentencing court.

12510698

J'Veil OUTING v. COMMISSIONER OF CORRECTION

J'Veil Outing v. Comm'r of Corr.

2019-06-11

AC 41224

1053

1073

211 A.3d 1053

211

West's Atlantic Reporter, Third Series

Connecticut Appellate Court

Connecticut

2021-08-27T20:58:01.966564+00:00

Fastcase

J'Veil OUTING v. COMMISSIONER OF CORRECTION

J'Veil OUTING v. COMMISSIONER OF CORRECTION AC 41224 Appellate Court of Connecticut. Argued March 14, 2019 Officially released June 11, 2019 David R. Kritzman, assigned counsel, with whom, on the brief, was Joshua C. Shulman, assigned counsel, for the appellant (petitioner). James A. Killen, senior assistant state's attorney, with whom, on the brief, were, Patrick J. Griffin, state's attorney, and Adrienne Russo, deputy assistant state's attorney, for the appellee (respondent). Lavine, Moll and Bishop, Js.

9080

57571

BISHOP, J. The petitioner, J'Veil Outing, appeals from the judgment of the habeas court denying his petition for a writ of habeas corpus. On appeal, the petitioner claims that the habeas court erred in concluding that his trial counsel had not provided ineffective assistance in failing (1) to properly investigate and present an alibi defense, (2) to properly investigate and rebut the testimony of the eyewitnesses to the murder at issue, and (3) to adequately preserve an issue regarding expert testimony on eyewitness identification. The petitioner also claims that the court erred in concluding that his appellate counsel was not ineffective for failing to raise the issue, on direct appeal, of the trial court's refusal to permit surrebuttal evidence. Finally, the petitioner claims that the court incorrectly determined that he had not met his burden of proof regarding his claim of actual innocence. We affirm the judgment of the habeas court. The record reveals that, after a jury trial, the petitioner was convicted on March 20, 2006, of murder in violation of General Statutes § 53a-54a. Thereafter, the petitioner was sentenced to fifty years of imprisonment. The petitioner's conviction was affirmed on direct appeal. State v. Outing , 298 Conn. 34, 86, 3 A.3d 1 (2010), cert. denied, 562 U.S. 1225, 131 S. Ct. 1479, 179 L. Ed. 2d 316 (2011). In that appeal, our Supreme Court recited the following underlying facts that the jury reasonably could have found: "At approximately 6:50 p.m. on June 23, 2005, Nadine Crimley was walking in a northerly direction on Canal Street in New Haven, pushing her infant son in a stroller. To her left, she saw her brother, Ray Caple, standing on the porch of her residence at 150 Canal Street. As Crimley walked up the street, she saw the [petitioner], whom she previously had seen in the neighborhood, pass her on his bicycle. Another unidentified man rode a bicycle in front of the [petitioner]. Crimley then turned her attention back to her son. When she heard a series of popping noises, she looked up and saw the [petitioner], who was about ten feet away from her, firing a gun at the victim, Kevin Wright. The victim fell to the ground, and the [petitioner] ran from the scene. "Caple, who had gone to high school with the [petitioner] and had known him for three and one-half years, also watched the [petitioner] as he rode his bicycle up Canal Street. As Caple watched, the [petitioner] moved his right hand toward his waist. Caple believed that the [petitioner] was reaching for a gun and was going to shoot him, but decided against doing so because Caple was holding his two year old daughter. Caple's mother and the victim were inside the residence at 150 Canal Street. Just after the [petitioner] passed the residence on his bicycle, the victim exited through the back door of the residence, retrieved his bicycle from the backyard and walked with it in an easterly direction on Gregory Street toward its intersection with Canal Street. As Caple stood on the porch, he heard a gunshot and the sound of a bicycle falling to the ground. When he looked around the corner of the porch, he observed Crimley and her son standing very close to the [petitioner], and he also saw the [petitioner], who had dismounted from his bicycle, fire three more shots at the victim. The [petitioner] then ran away, leaving his bicycle in the street. Caple ran to the victim, who was unresponsive. The victim died from a single gunshot wound to the chest. "Shortly, after 10 p.m. on the day of the shooting, Crimley gave a statement to the New Haven police in which she indicated that she had been able to get a good look at the shooter and would be able to identify him. On June 27, 2005, four days after the shooting, Stephen Coppola, a New Haven police detective, interviewed Crimley and presented her with an array of eight photographs, including one of the [petitioner]. Crimley identified the [petitioner] as the shooter and signed and dated the photographic array. Coppola tape-recorded his interview of Crimley. On the same day, Coppola also tape-recorded a statement from Caple and presented him with a second photographic array. Caple also identified the [petitioner] as the shooter and signed and dated the photographic array. "Prior to trial, both Caple and Crimley recanted their statements to the police and their identifications of the [petitioner], claiming that they had been pressured by the police into giving the statements and making the identifications. Thereafter, the [petitioner] filed motions to suppress the identification evidence, claiming that the evidence was unreliable and the product of an unnecessarily suggestive police identification procedure. At a hearing on the [petitioner's] motions, both Crimley and Caple testified that they did not know who had killed the victim, that they had been pressured by the police to give false statements about the events surrounding the shooting, and that the police had pressured them to falsely identify the [petitioner] as the shooter. Crimley and Caple acknowledged that they were extremely frightened about being called as witnesses for the state and identifying the [petitioner] as the shooter. Coppola and Alfonso Vasquez, a New Haven police detective who had been present during Coppola's interviews of Crimley and Caple, testified that each of the witnesses had identified the [petitioner] as the shooter by selecting the [petitioner's] photograph from the photographic array spontaneously and without hesitation. The two detectives unequivocally denied that they had pressured or influenced either Crimley or Caple in any way. "At the conclusion of the detectives' testimony, the state maintained that the tape-recorded statements that Crimley and Caple had given to the police met the requirements for admissibility set forth in State v. Whelan , 200 Conn. 743, 753, 513 A.2d 86, cert. denied, 479 U.S. 994, 107 S. Ct. 597, 93 L. Ed. 2d 598 (1986). The trial court found that the testimony of Crimley and Caple that they had been pressured to give false statements and to falsely identify the [petitioner] as the shooter was not credible. The court further concluded that the statements that they had given to the police met the Whelan admissibility requirements for purposes of the suppression hearing. "Thereafter, at a continuation of the suppression hearing, the [petitioner] made an offer of proof regarding the testimony of his expert witness, Jennifer Dysart, concerning the reliability of eyewitness identifications. The state objected to the testimony, and the court sustained in part and overruled in part the state's objection to Dysart's proffered testimony. Dysart thereafter offered her opinion that the identification procedures used generally were not reliable. The trial court thereafter denied the [petitioner's] motions to suppress the photographic identifications that had been made of the [petitioner] by Crimley and Caple. "At trial, Crimley and Caple testified that the police had pressured them to give false statements and to falsely identify the [petitioner] as the shooter. They further testified that the [petitioner] definitely was not the shooter and that they did not know who had shot the victim. Upon the state's motion pursuant to Whelan , the trial court admitted redacted tape recordings of the statements Crimley and Caple had given to the police as prior inconsistent statements. The trial court also admitted as exhibits copies of the photographic arrays that Crimley and Caple had signed and dated. The [petitioner] did not call Dysart as a witness at trial. "Thereafter, the jury found the [petitioner] guilty of murder, and the trial court rendered judgment in accordance with the verdict, sentencing the [petitioner] to a term of imprisonment of fifty years." (Footnotes omitted.) Id., at 38-41, 3 A.3d 1. After our Supreme Court affirmed his conviction, the petitioner filed a petition for a writ of habeas corpus dated October 5, 2010. The matter was tried on the petitioner's fifth amended petition, dated February 26, 2015, in which he set forth claims of ineffective assistance of trial and appellate counsel, a due process claim regarding the presentation of evidence at trial, and a claim of actual innocence. The hearing on this matter before the habeas court, Oliver, J. , began on March 21, 2016, and continued intermittently for eight days, concluding on November 22, 2016. Following the receipt of posttrial briefs, the court issued its memorandum of decision on November 20, 2017, denying the petition. In denying the petition, the habeas court concluded that the petitioner had not met his burden of establishing either deficient performance or prejudice with respect to several of his ineffective assistance of trial counsel claims, including the claims that his trial counsel failed to properly investigate and to present an alibi defense, to investigate and to rebut the testimony of the state's eyewitnesses, and to preserve the record concerning the trial testimony of an expert witness on witness identifications. The court further concluded that the petitioner failed to sustain his burden of establishing deficient performance or prejudice with respect to his ineffective assistance of appellate counsel claim, and that the petitioner failed to establish his actual innocence. The court deemed the remainder of the petitioner's ineffective assistance of trial and appellate counsel claims to be abandoned on the basis of the petitioner's failure to address them in his posttrial brief. The court granted the petitioner's petition for certification to appeal, and this appeal followed. Additional facts and procedural history will be set forth as necessary. I The petitioner raises three claims that his trial counsel rendered ineffective assistance. Before addressing each claim, we set forth the relevant legal principles and our well settled standard of review governing ineffective assistance of counsel claims. "In a habeas appeal, this court cannot disturb the underlying facts found by the habeas court unless they are clearly erroneous, but our review of whether the facts as found by the habeas court constituted a violation of the petitioner's constitutional right to effective assistance of counsel is plenary." (Internal quotation marks omitted.) Mukhtaar v. Commissioner of Correction , 158 Conn. App. 431, 437, 119 A.3d 607 (2015) ; see also Buie v. Commissioner of Correction , 187 Conn. App. 414, 417, 202 A.3d 453, cert. denied, 331 Conn. 905, 202 A.3d 373 (2019). "In Strickland v. Washington , [466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984) ], the United States Supreme Court established that for a petitioner to prevail on a claim of ineffective assistance of counsel, he must show that counsel's assistance was so defective as to require reversal of [the] conviction.... That requires the petitioner to show (1) that counsel's performance was deficient and (2) that the deficient performance prejudiced the defense.... Unless a [petitioner] makes both showings, it cannot be said that the conviction . resulted from a breakdown in the adversary process that renders the result unreliable.... "To prove that his counsel's performance was deficient, the petitioner must demonstrate that trial counsel's representation fell below an objective standard of reasonableness.... Competent representation is not to be equated with perfection . The constitution guarantees only a fair trial and a competent attorney; it does not ensure that every conceivable constitutional claim will be recognized and raised.... A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time. Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the [petitioner ] must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy . [C]ounsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment." (Emphasis added; internal quotation marks omitted.) Moye v. Commissioner of Correction , 168 Conn. App. 207, 217-18, 145 A.3d 362 (2016), cert. denied, 324 Conn. 905, 153 A.3d 653 (2017). "With respect to the prejudice component of the Strickland test, the petitioner must demonstrate that counsel's errors were so serious as to deprive the [petitioner] of a fair trial, a trial whose result is reliable.... It is not enough for the [petitioner] to show that the errors had some conceivable effect on the outcome of the proceedings.... Rather, [t]he [petitioner] must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.... A reasonable probability is a probability sufficient to undermine confidence in the outcome." (Citation omitted; internal quotation marks omitted.) Mukhtaar v. Commissioner of Correction , supra, 158 Conn. App. at 438, 119 A.3d 607 ; Holloway v. Commissioner of Correction , 145 Conn. App. 353, 365, 77 A.3d 777 (2013). Finally, "there is no reason for a court deciding an ineffective assistance claim to approach the inquiry in the same order or even to address both components of the inquiry if the defendant makes an insufficient showing on one. In particular, a court need not determine whether counsel's performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies. The object of an ineffectiveness claim is not to grade counsel's performance. If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice . that course should be followed." Strickland v. Washington , supra, 466 U.S. at 697, 104 S.Ct. 2052. Guided by these principles, we turn to the specific claims made by the petitioner. A We first turn to the petitioner's claim that his trial counsel failed to properly investigate and to present an alibi defense. The following additional information is relevant to our discussion of this claim. The record reflects that on June 23, 2005, the New Haven police received a telephone call regarding a shooting at 6:55 p.m. on Canal Street in New Haven, a separate call regarding a street fight in the neighborhood of the petitioner's residence at 7:10 p.m., and another call relating to the fight at 7:23 p.m. The record reflects, as well, that the police received a call at 7:57 p.m. regarding a scooter chase. At the time, the petitioner lived at 24 Harding Place in New Haven. During the habeas hearing, the petitioner presented the testimony of then Attorney Auden C. Grogins, who had represented the petitioner in the underlying criminal trial. Grogins testified that, although she had investigated the potential alibi defense and that either she or an investigator retained by her had reached out to some of the alibi witnesses identified by the petitioner, she had ultimately concluded that an alibi defense was not strong and that presenting such a defense could, in fact, be harmful to the petitioner at trial. Grogins' reasoning in that regard was multifaceted. She stated that she had considered the quality of the alibi witnesses and the fact that all of them were either family members or close friends with the petitioner's family. She also had considered that, although all of the alibi witnesses saw the petitioner on the street near his home during the day of the murder, none of them could pinpoint the petitioner's whereabouts at the time of the shooting. She further indicated that sightings of the petitioner shortly after the murder at locations less than one mile from the murder scene would have not only been unhelpful to the petitioner, but would, in fact, have placed him in the vicinity of the crime. Grogins testified, as well, that her determination not to present an alibi defense was informed by her knowledge that the petitioner initially had stated to the police when he was arrested that he did not recall where he was at the time of the murder, but had then provided a list of alibi witnesses the next morning, facts she believed would have undercut any alibi testimony. Finally, in regard to an alibi defense, she indicated that presenting such a defense could have detracted from a third-party culpability defense, which she had believed was stronger. Grogins further testified that she had ultimately concluded, on the basis of her experience as a trial attorney, that the presentation of an incomplete alibi defense, bolstered only by friends and relatives of the accused, often undermines the defendant's defense in a murder trial. Evidence also was presented at the habeas hearing that the petitioner had given Grogins a list of potential alibi witnesses and that he had asked her to present an alibi defense. In particular, the petitioner presented several witnesses at the habeas hearing who claimed to have seen the petitioner in his neighborhood close to the time the shooting occurred. Nakia Black-Geter, a close friend of the petitioner's sister, testified that the petitioner was present when she had arrived at his home between 5 p.m. and 6 p.m. She testified, as well, that the petitioner had been present during the fight, although she could not say whether he was there for the entire time. Finally, she could not recall whether the petitioner was riding a bicycle when she had seen him in the vicinity of the fight. Additionally, Antjuan Martin, the petitioner's cousin, agreed with defense counsel that he had started "hanging out" with the petitioner at 11 a.m. on the day in question and that he had seen the petitioner riding around on a mountain bicycle during the fight. He indicated, as well, that the petitioner had been out of his sight for approximately ten minutes while the petitioner rode his bicycle to Moe's Market before the fight started. Martin had no recollection of the clothes that the petitioner had been wearing or the color of the bicycle that he had been riding. Dijon Wiggins, who lived across the street from the petitioner's home, also testified that he had observed the petitioner at the fight and later during the scooter chase. Wiggins recalled that the petitioner had been riding on a mountain bicycle, but he did not recall whether the petitioner had been on the bike before the fight began. Furthermore, Natasha Outing, the petitioner's sister, testified that she arrived home from work between 5 p.m. and 5:30 p.m. She indicated that the petitioner had been present for the fight and had been riding a ten speed bicycle up and down the street, although she conceded that she had not seen the petitioner the entire time. She recalled that the petitioner had been wearing a blue dickey shirt, jeans, and a baseball cap. She indicated, as well, that kids in the neighborhood had been in the habit of sharing bicycles. Finally, Eric Williams, a cousin of both the petitioner and the victim, indicated that he had a close relationship with the petitioner and testified that the petitioner had been present at the beginning of the fight. Williams also testified that the petitioner was in Moe's Market when Williams' mother had called to tell him about the shooting. Williams recalled that the petitioner had been wearing a dickey shirt, but no hat, during the fight, that the petitioner had been riding either a mountain bicycle or a "baja" bicycle, and that he had not seen the petitioner on the bicycle during the fight. He also indicated that he had not been with the petitioner prior to the time he witnessed the petitioner watching the fight. The petitioner also presented evidence from Donald Light, a private investigator retained by Grogins, and Mike Udvardi, a private investigator retained by habeas counsel. Light testified that he had attempted, with varying success, to contact the alibi witnesses whose names had been given to him by Grogins. He testified, as well, that he had operated without substantial direction from Grogins and had free rein to follow leads as they developed. Udvardi testified that the fight and scooter chase had occurred "at or about presumably the time of the shooting ." Specifically, he testified that, after his own investigation, he had been able to determine that calls were made to the New Haven Police Department at 7:10 p.m. and 7:23 p.m. regarding the fight, and that the dispatch time for the scooter chase was approximately 8 p.m. Udvardi indicated, as well, that his review of Grogins' trial file revealed no police reports or other records indicating an effort on Grogins' part to ascertain the timing of these events. In assessing the petitioner's alibi witness claim, the habeas court concluded that the petitioner failed to meet his burden of proof both as to ineffectiveness and prejudice. The court concluded that Grogins' decision not to present an alibi defense was a matter of trial strategy and that her strategy was both well considered and reasonable. The court concluded, as well, that even if Grogins' trial strategy had been deficient, the petitioner failed to demonstrate that he was prejudiced by Grogins' decision not to present an alibi defense because the testimony of alibi witnesses would not, in fact, have exculpated the petitioner. The court reasoned that the timing of the murder and the locations where the petitioner was sighted within the time frame reflected in the record would have allowed the petitioner to commit the murder and return to his neighborhood in time to have been observed by the alibi witnesses that he presented. On the basis of our careful review of the record, we find ample support for the habeas court's conclusion that the petitioner failed to prove that Grogins provided ineffective assistance in failing to pursue and to present an alibi defense. Our Supreme Court has acknowledged "that counsel need not track down each and every lead or personally investigate every evidentiary possibility before choosing a defense and developing it.... [T]he failure of defense counsel to call a potential defense witness does not constitute ineffective assistance unless there is some showing that the testimony would have been helpful in establishing the asserted defense.... [Particularly] [w]hen the failure to call a witness implicates an alibi defense, an alibi witness' testimony has been found unhelpful and defense counsel's actions have been found reasonable when the proffered witnesses would fail to account sufficiently for a defendant's location during the time or period in question ." (Citations omitted; emphasis added; internal quotation marks omitted.) Johnson v. Commissioner of Correction , 330 Conn. 520, 548-49, 198 A.3d 52 (2019). In Johnson , our Supreme Court discussed whether trial counsel's failure to present an alibi witness in that case constituted ineffective assistance. Although the underlying facts are, of course, not identical, the reasoning of the court in Johnson on this issue is instructive. The court indicated that "counsel testified to a variety of strategic reasons for [her] decision not to present an alibi defense," and that it was "required to indulge [in the] strong presumption that counsel made all significant decisions in the exercise of reasonable professional judgment." (Internal quotation marks omitted.) Id., at 550, 198 A.3d 52. The court noted the significance of trial counsel's reasoning for not presenting the alibi defense, particularly, the fact that "the alibi witnesses were family, the alibi placed the petitioner in close proximity to the crime scene, and the alibi witnesses testified that the petitioner was home but not within their line of sight." Id., at 552, 198 A.3d 52. The court concluded that "counsel made a reasonable strategic decision because the proffered witnesses would [have] fail[ed] to account sufficiently for [the petitioner's] location during the time or period in question ." (Internal quotation marks omitted.) Id., at 554, 198 A.3d 52. The court concluded, as well, that "[e]ven if there [was] some showing that the [alibi] testimony would have been helpful in establishing the asserted [alibi] defense . defense counsel made a strategic decision that presenting an alibi defense had the potential to be more harmful than helpful to the petitioner's case." (Citation omitted; internal quotation marks omitted.) Id. In the matter at hand, Grogins repeatedly testified at the habeas hearing that she believed that the third-party culpability defense was her strongest strategy at the petitioner's criminal trial and that she was concerned that presenting an alibi defense could do more harm than good. In addition, some of the purported alibi witnesses indicated that they had seen the petitioner in the vicinity of the fight, which was first reported to the police approximately fifteen minutes after the first report of the murder to the police, while some witnesses stated that they had observed the petitioner near the scene of a scooter chase, which took place shortly before 8 p.m. in the vicinity of the petitioner's house. Many of the witnesses conceded, as well, that they could not account for the petitioner's whereabouts throughout the entire time period during which these events occurred. Although the witnesses each placed the petitioner in the vicinity of his home, approximately one mile from the scene of the murder at various times during the early evening, their testimonies were inconsistent and varied as to the time they saw the petitioner and their descriptions of the petitioner's clothing and bicycle. Accordingly, we agree with the habeas court and conclude that Grogins' decision not to present an alibi defense was not constitutionally deficient. B The petitioner next claims that Grogins was ineffective for failing to properly investigate and to rebut the testimony of the eyewitnesses to the murder. This claim has two interwoven parts. First, the petitioner claims that Grogins unreasonably failed to investigate the reliability of statements given by Crimley and Caple. Second, the petitioner asserts that Grogins unreasonably failed to preserve the record regarding potential expert testimony on the subject of eyewitness identification. The following additional information is pertinent to our discussion. As previously noted, on June 23, 2005, Crimley gave a statement to the police indicating that she had witnessed the shooter pass her on a bicycle and fire a gun at the victim; four days later, she identified the petitioner as the shooter after being presented with a photographic array. State v. Outing , supra, 298 Conn. at 38-39, 3 A.3d 1. Caple, who was a former high school classmate of the petitioner and had known him for a few years, also identified the petitioner as the shooter from a photographic array after indicating that he had witnessed the shooter ride his bicycle on Canal Street and shoot the victim. Id. Prior to the start of the petitioner's criminal trial, both Crimley and Caple recanted their statements to the police and their identifications of the petitioner, alleging that they had been coerced into making the statements. Id., at 39, 3 A.3d 1. Thereafter, at the hearing on the petitioner's motion to suppress the identifications, Crimley and Caple testified that they did not know who the shooter was and that the police had coerced them into making the statements. Id., at 39-40, 3 A.3d 1. At the petitioner's criminal trial, Crimley and Caple testified, more adamantly than they had at the suppression hearing, that they were coerced into identifying the petitioner as the shooter. During the habeas trial, Grogins indicated that when she was confronted with the initial statements from Crimley and Caple, she initially had intended to elicit Dysart's expert testimony concerning the fallibility of eyewitness identification. Grogins changed course, however, when she learned that Crimley and Caple had disavowed their statements and had, instead, alleged that their statements had been coerced by the police. From Grogins' perspective, the new assertions made by Crimley and Caple had changed her approach because she was no longer confronting an issue of mistaken identity but, rather, a claim of police coercion. Grogins also testified that presenting Dysart's testimony on mistaken identify would have been inconsistent with her trial strategy of undermining the identifications by demonstrating that police coercion had occurred. Accordingly, she decided not to present the testimony of Dysart at trial. Grogins testified, as well, that she had directed her investigator, Light, to interview Crimley and Caple in an effort to develop their claim of police coercion, but Light had been unsuccessful in reaching them. Later in her testimony, Grogins indicated that she did not recall whether she had instructed Light to make ongoing efforts to meet with Crimley and Caple after their suppression hearing testimony and prior to trial, but stated that she would not have any reason to dispute evidence indicating that such efforts had been made. Light also testified regarding his efforts to contact Crimley and Caple. He indicated that he had tried to contact Crimley and Caple, but those attempts had been unsuccessful. He indicated, as well, that Grogins had never provided him with specific instructions to meet with Crimley or Caple prior to the criminal trial. In assessing Grogins' decision not to present Dysart's testimony and not to vigorously pursue Caple and Crimley before trial, the habeas court noted that, during the cross-examinations of Crimley and Caple at the criminal trial, Grogins concentrated on the issue of coercion and not whether their initial statements were borne of mistaken identifications of the petitioner. The court determined that Grogins had sufficiently articulated the tactical reasoning behind her method of investigation and examination of Crimley and Caple. The court also determined that Grogins had made the tactical decision not to produce an eyewitness identification expert at trial and that her decision not to pursue a theory of mistaken identity was reasonable under the circumstances. The petitioner asserts that, even after Crimley and Caple had recanted their identifications of the petitioner at the suppression hearing, Grogins should have made efforts to contact them in the time period leading up to the criminal trial and, had she done so, she could have developed additional evidence regarding the reliability of their statements. The issue before us in this appeal, however, is not whether all reasonable lawyers would have made the same tactical decision as Grogins, but whether her decision to forgo additional investigation and rebuttal of the eyewitnesses' statements, which included forgoing expert testimony on the issue of misidentification, fell within the broad parameters of her decisional discretion. "Paramount to the effective assistance of counsel is the obligation by the attorney to investigate all surrounding circumstances of the case and to explore all avenues that may potentially lead to facts relevant to the defense of the case.... We are mindful that, under certain circumstances, the failure to use any expert can result in a determination that a criminal defendant was denied the effective assistance of counsel.... Nevertheless, the question of whether to call an expert witness always is a strategic decision.... [S]trategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable; [but] strategic choices made after less than complete investigation are reasonable precisely to the extent that reasonable professional judgments support the limitations on investigation." (Citations omitted; emphasis omitted; internal quotation marks omitted.) Arroyo v. Commissioner of Correction , 172 Conn. App. 442, 467, 160 A.3d 425, cert. denied, 326 Conn. 921, 169 A.3d 235 (2017). In the case at hand, we do not fault the habeas court's conclusion because we believe it accords appropriate deference to Grogins' tactical decision making in regard to forgoing additional investigation into Crimley's and Caple's statements and omitting Dysart's expert testimony on misidentification at trial. The record reflects that part of Grogins' third-party culpability theory at trial was to establish that the statements made by Crimley and Caple were the product of police coercion. Grogins' cross-examination of Crimley and Caple at the criminal trial advanced that theory by eliciting testimony that they were coerced. Although we acknowledge that additional investigation into Crimley's and Caple's statements may have shed more light on their credibility as witnesses, evidence in the record does not support a conclusion that Grogins' failure to do so was unreasonable. See Moye v. Commissioner of Correction , supra, 168 Conn. App. at 218, 145 A.3d 362 ("To prove that his counsel's performance was deficient, the petitioner must demonstrate that trial counsel's representation fell below an objective standard of reasonableness.... Competent representation is not to be equated with perfection." [Internal quotation marks omitted.] ). In sum, we agree that Grogins' approach to the handling of these eyewitnesses fell within the wide range of reasonably effective assistance. In addition, the record is clear that Grogins' decision not to call Dysart as an expert at trial was based on her concern that doing so would have potentially detracted from the petitioner's coercion defense. Thus, we also agree that Grogins' decision to forgo Dysart's expert testimony was a reasonable tactical choice under the circumstances and, accordingly, conclude that Grogins' performance was not deficient in this regard. C The petitioner next claims that Grogins was ineffective for failing to preserve for appellate review the trial court's exclusion of certain aspects of Dysart's expert testimony on eyewitness identification. Specifically, the petitioner claims that Grogins was ineffective for failing to obtain a ruling at trial as to the admissibility of five eyewitness identification factors about which the trial court had precluded Dysart from testifying at the hearing on the petitioner's motion to suppress. The following additional information, as set forth by our Supreme Court in the petitioner's direct appeal, is relevant to our resolution of this claim. Prior to the start of the criminal trial, "[b]y way of a proffer, Dysart testified that . there is an undue risk of misidentification resulting from the identification procedure if, as occurred in the [underlying criminal] case: (1) the photographs are shown to the witness simultaneously rather than sequentially; (2) after advising the eyewitness that the perpetrator may or may not be in the photographic array, the police provide the witness with a form that does not contain a line on which the witness may indicate that the array does not include the perpetrator; and (3) the police do not use a double-blind identification procedure, that is, one in which the person administering the procedure does not know the identity of the suspect. Dysart also explained that she intended to testify that (1) the perpetrator's use of a disguise can impair the ability of a witness to make an accurate identification (disguise effect); (2) under the principle of unconscious transference, a witness is more likely to identify a person as the perpetrator if that person looks familiar to the witness; (3) a witness tends to focus on the perpetrator's weapon instead of on the perpetrator, thereby reducing the likelihood of an accurate identification (weapons focus effect); (4) there is little or no correlation between the reliability of an identification and the witness' confidence in the identification; (5) a witness who is under stress while observing the commission of the crime is less likely to make an accurate identification of the perpetrator; and (6) witness collaboration can adversely affect the reliability of an identification. The state objected to Dysart's proffered testimony, claiming, inter alia, that it was inadmissible in light of this court's determination in State v. Kemp , 199 Conn. 473, 476-77, 507 A.2d 1387 (1986), and State v. McClendon , 248 Conn. 572, 586-87, 730 A.2d 1107 (1999), [both overruled in part by State v. Guilbert , 306 Conn. 218, 253, 49 A.3d 705 (2012) ], that such testimony generally is within the common knowledge and experience of the average person and, therefore, it would not aid the fact finder in evaluating the identification evidence." (Footnote omitted; internal quotation marks omitted.) State v. Outing , supra, 298 Conn. at 42-43, 3 A.3d 1. "In reliance on Kemp and McClendon , the trial court precluded Dysart from testifying that the reliability of the identification can be adversely affected by witness stress, witness collaboration, the perpetrator's use of a disguise and the perpetrator's use of a weapon, and that the witness' confidence in the accuracy of the identification bears little or no relation to the accuracy of the identification. In support of its ruling, the court explained that such testimony was unnecessary because it was within the realm of . common sense and . experience." (Footnote added; internal quotation marks omitted.) Id., at 43 n.7, 3 A.3d 1. The court, however, "concluded that, out of an abundance of caution, Dysart could testify [at the suppression hearing] on the issues of the simultaneous presentation of photographs, police instructions to the witness, double-blind administration of the identification procedure and the theory of unconscious transference. The trial court emphasized that it was limiting its ruling to the testimony at the hearing on the motion to suppress . and left the issue open should the [petitioner] seek to introduce Dysart's testimony at trial." (Internal quotation marks omitted.) Id., at 43-44, 3 A.3d 1. After Dysart's testimony, the court denied the petitioner's motion to suppress. See id., at 45-46, 3 A.3d 1. In addition, "at trial, the [petitioner] made a motion requesting that Dysart be permitted to provide testimony concerning the four factors pertaining to the reliability of eyewitness [identification] procedures about which the trial court had allowed Dysart to testify at the suppression hearing. The trial court granted the [petitioner's] motion. With respect to the other five factors about which the trial court precluded Dysart's testimony at the suppression hearing, however, the [petitioner] never renewed his request that Dysart be permitted to testify at trial with respect to those factors. In fact, the [petitioner] did not call Dysart as a trial witness at all." Id., at 63, 3 A.3d 1. The petitioner appealed, claiming, inter alia, that the trial court had improperly precluded him from introducing Dysart's testimony regarding the additional five factors. See id., at 62-63, 3 A.3d 1. Our Supreme Court held that this issue was not preserved for appellate review. Id., at 63, 3 A.3d 1. For the same reason as stated in part I B of this opinion, we do not fault Grogins for failing to preserve, for appellate review, a claim concerning the trial court's order disallowing the proffer of Dysart's testimony concerning the additional five factors that reduce the reliability of eyewitness identification. Because Grogins already had reasonably determined not to present Dysart's testimony at the petitioner's criminal trial, she would have had no strategic reason to preserve the court's exclusion of evidence on a matter that she reasonably believed had been rendered moot by her tactical choice not to pursue a theory of mistaken identification. "[T]here is no requirement that counsel call an expert when [s]he has developed a different trial strategy." (Internal quotation marks omitted.) Davis v. Commissioner of Correction , 186 Conn. App. 366, 379, 199 A.3d 562 (2018), cert. denied, 330 Conn. 962, 199 A.3d 560 (2019). Moreover, at the time of the underlying criminal trial, our decisional law did not permit expert testimony on the subjects for which Grogins initially sought to present expert testimony. Although State v. Kemp , supra, 199 Conn. at 473, 507 A.2d 1387, was overruled in part by State v. Guilbert , supra, 306 Conn. at 253, 49 A.3d 705, recent decisions of this court that have addressed claims of ineffective assistance of trial counsel arising from counsel's decisions on the issue of expert testimony on eyewitness identification in between our Supreme Court's opinions in Kemp and Guilbert have held that counsel's decision not to present the testimony of an eyewitness identification expert did not constitute deficient performance. See, e.g., Davis v. Commissioner of Correction , supra, 186 Conn. App. at 378, 199 A.3d 562 ("[a]lthough Kemp was overruled . we consider [counsel's] performance in light of the standards in effect at the time of the petitioner's criminal trial . and conclude that the habeas court did not err in concluding that [counsel's] performance was not deficient"); Bennett v. Commissioner of Correction , 182 Conn. App. 541, 562, 190 A.3d 877 ("because the law in effect at the time of the criminal trial discouraged the use of expert testimony on the issue of eyewitness identification, [counsel] did not perform deficiently by not presenting expert testimony"), cert. denied, 330 Conn. 910, 193 A.3d 50 (2018). To impose on counsel the duty to foretell what tack our Supreme Court would take on this subject represents the height of post hoc reasoning, which is not the task of a court on habeas review. See Ledbetter v. Commissioner of Correction , 275 Conn. 451, 462, 880 A.2d 160 (2005) (Counsel is not "required to change then-existing law to provide effective representation.... Counsel instead performs effectively when he elects to maneuver within the existing law ." [Citation omitted; internal quotation marks omitted.] ), cert. denied, 546 U.S. 1187, 126 S. Ct. 1368, 164 L. Ed. 2d 77 (2006). Accordingly, we agree with the habeas court and conclude that Grogins did not perform deficiently by not preserving for appellate review a claim related to the trial court's exclusion of Dysart's expert testimony regarding the additional five factors concerning eyewitness identifications. II The petitioner next claims that his appellate counsel was ineffective for failing to claim, in his direct appeal, that the trial court incorrectly denied the petitioner's request to present surrebuttal evidence at trial. We note briefly our standard of review of a claim of ineffectiveness of appellate counsel. "A criminal defendant's right to the effective assistance of counsel extends through the first appeal of right and is guaranteed by the sixth and fourteenth amendments to the United States constitution and by article first, § 8, of the Connecticut constitution.... To succeed on a claim of ineffective assistance of counsel, a habeas petitioner must satisfy the two-pronged test articulated in [ Strickland v. Washington , supra, 466 U.S. at 687, 104 S.Ct. 2052 ] . Our Supreme Court has, however, distinguished the standards of review for claims of ineffective assistance of trial counsel and of appellate counsel.... For claims of ineffective assistance of appellate counsel, we must assess whether there is a reasonable probability that, but for appellate counsel's failure to raise the issue on appeal, the petitioner would have prevailed [on] appeal, i.e., [obtaining] reversal of his conviction or granting of a new trial." (Citation omitted; internal quotation marks omitted.) Smith v. Commissioner of Correction , 148 Conn. App. 517, 530, 85 A.3d 1199, cert. denied, 312 Conn. 901, 91 A.3d 908 (2014). Additionally, "[j]ust as with a claim of ineffective assistance of trial counsel, success on a claim of ineffective assistance of appellate counsel requires the petitioner to establish that appellate counsel's representation fell below an objective standard of reasonableness considering all of the circumstances.... [Although] an appellate advocate must provide effective assistance, [she ] is not under an obligation to raise every conceivable issue . A brief that raises every colorable issue runs the risk of burying good arguments . in a verbal mound made up of strong and weak contentions.... Indeed, [e]xperienced advocates since time beyond memory have emphasized the importance of winnowing out weaker arguments on appeal and focusing on one central issue if possible, or at most on a few key issues.... Moreover, [a] habeas court will not, with the benefit of hindsight, second-guess the tactical decisions of appellate counsel." (Emphasis added; internal quotation marks omitted.) Id., at 531, 85 A.3d 1199. The following additional information is relevant to this claim. As previously noted, Grogins pursued a claim of third-party culpability at the petitioner's criminal trial. In furtherance of this claim, Shaniah Outlaw testified on behalf of the petitioner that she had overheard Darrell Mayes confess to the shooting. Once the petitioner's defense rested, the state called Vasquez as a rebuttal witness. Vasquez testified that when he had interviewed Outlaw, she denied ever telling anyone that she had overheard Mayes confess. In light of this testimony, Grogins sought to introduce surrebuttal testimony from Allison Carter, Outlaw's mother. By way of a proffer, Grogins indicated that Carter would testify that she was present when her daughter told Vasquez of the purported confession by Mayes. See State v. Outing , supra, 298 Conn. at 71, 3 A.3d 1. The court denied the request to present Carter's surrebuttal testimony, and, on appeal, the petitioner's appellate counsel, Attorney James B. Streeto, did not claim that the trial court had abused its discretion in denying the petitioner's request for Carter's surrebuttal evidence. See id. Streeto testified at the habeas trial that, given page limitations for briefing, he did not have the space to include an argument on this issue and that he had determined not to present such an argument because, in his view, it was one of the petitioner's weaker arguments. Streeto also testified that the level of deference afforded a trial court's decision not to allow surrebuttal evidence had impacted his assessment of whether to raise it as an issue on appeal. He believed, as well, that the inclusion of this relatively weak argument could have detracted from his presentation on the arguments he briefed. The habeas court concluded, and we agree, that Streeto made a reasonable strategic decision not to raise the surrebuttal issue on appeal, and that his decision fell within the wide range of reasonable professional assistance. Our case law is clear that a court will not second-guess an appellate counsel's tactical decision to limit the claims briefed to those claims that he or she reasonably viewed as most critical to the appeal. See, e.g., Smith v. Commissioner of Correction , supra, 148 Conn. App. at 532, 85 A.3d 1199 (petitioner failed to prove appellate counsel's performance fell below objective standard of reasonableness where counsel had "reviewed the pleadings and transcripts, identified the possible issues and then strategically determined which issues had the best chance of winning" [internal quotation marks omitted] ); Saucier v. Commissioner of Correction , 139 Conn. App. 644, 652, 57 A.3d 399 (2012) (appellate counsel's performance not deficient where counsel had "made his tactical decision to focus on the strongest of the petitioner's claims on appeal . after considering the relevant case law and whether the claim was properly preserved, and after consulting with other experienced counsel"), cert. denied, 308 Conn. 907, 61 A.3d 530 (2013). Accordingly, we conclude that the court properly determined that the petitioner failed to prove that Streeto's performance was deficient. III Finally, the petitioner claims that the habeas court incorrectly determined that he did not prove his claim of actual innocence. "[T]he proper standard for evaluating a freestanding claim of actual innocence, like that of the petitioner, is twofold. First, the petitioner must establish by clear and convincing evidence that, taking into account all of the evidence-both the evidence adduced at the original criminal trial and the evidence adduced at the habeas corpus trial-he is actually innocent of the crime of which he stands convicted. Second, the petitioner must also establish that, after considering all of that evidence and the inferences drawn therefrom as the habeas court did, no reasonable fact finder would find the petitioner guilty of the crime." Miller v. Commissioner of Correction , 242 Conn. 745, 747, 700 A.2d 1108 (1997). "Actual innocence is not demonstrated merely by showing that there was insufficient evidence to prove guilt beyond a reasonable doubt.... Rather, actual innocence is demonstrated by affirmative proof that the petitioner did not commit the crime.... Affirmative proof of actual innocence is that which might tend to establish that the petitioner could not have committed the crime even though it is unknown who committed the crime, that a third party committed the crime or that no crime actually occurred." (Internal quotation marks omitted.) Carmon v. Commissioner of Correction , 178 Conn. App. 356, 371, 175 A.3d 60 (2017), cert. denied, 328 Conn. 913, 180 A.3d 961 (2018). This court has stated that "[a] claim of actual innocence must be based on newly discovered evidence.... This evidentiary burden is satisfied if a petitioner can demonstrate, by a preponderance of the evidence, that the proffered evidence could not have been discovered prior to the petitioner's criminal trial by the exercise of due diligence." (Internal quotation marks omitted.) Ampero v. Commissioner of Correction , 171 Conn. App. 670, 687, 157 A.3d 1192, cert. denied, 327 Conn. 953, 171 A.3d 453 (2017). In support of his claim of actual innocence, the petitioner relies on third-party culpability evidence presented at the habeas trial, which he claims points either to Antwan Baldwin or Mayes as the shooter. In particular, the petitioner relies on the fact that Baldwin's fingerprints were found on a bicycle left at the murder scene, which Baldwin acknowledged he owned but claimed had been stolen from him. The petitioner relies, as well, on the negative inferences that he contends may be drawn from Mayes' invocation at the habeas trial of his fifth amendment privilege against self-incrimination. Additionally, the petitioner relies on testimony from his alibi witnesses that they saw him at the fight and on testimony from Crimley that the petitioner was not the shooter. Given the well established parameters of decisional law on the topic of actual innocence, this claim warrants little discussion. The habeas court's conclusion is apt: "Even assuming arguendo that the evidence in support of an actual innocence claim was not required to be newly discovered, the court finds that the mosaic of evidence presented by the petitioner does not constitute affirmative proof of actual innocence, as it does not tend to establish that the petitioner could not have committed the crime as it relates to the other evidence in the case." (Internal quotation marks omitted.) The court's apt rejection of this claim needs no embellishment. The judgment is affirmed. In this opinion the other judges concurred. The habeas court took judicial notice of the decision in State v. Outing , supra, 298 Conn. at 34, 3 A.3d 1, during the habeas trial. In particular, the petitioner raised twenty-nine ineffective assistance of counsel claims in regard to his trial counsel, including that counsel was ineffective for failing to properly investigate and present an alibi defense, failing to properly investigate and rebut the state's eyewitnesses, and failing to preserve the record concerning the trial testimony of an expert witness on witness identifications. The petitioner also claimed that his due process rights were violated by the trial court's denial of his request to present surrebuttal evidence; his appellate counsel provided ineffective assistance by failing to raise a claim on appeal challenging the trial court's denial of his request to present surrebuttal evidence; he was actually innocent; and the cumulative impact of both his trial and appellate counsels' errors deprived him of his right to the effective assistance of counsel and due process. The parties filed several motions for extensions of time to file their posttrial briefs. On July 21, 2017, after receiving the parties' posttrial briefs, the habeas court reserved the decision on its ruling. The only ineffective assistance of trial counsel claims that the petitioner raises in his brief on appeal are that his trial counsel failed (1) to properly investigate and to present an alibi defense, (2) to investigate and to rebut the testimony of the state's eyewitnesses, and (3) to preserve the record concerning the trial testimony of his expert witness on witness identifications. Thus, the petitioner's other ineffective assistance of trial counsel claims raised in his amended petition are deemed abandoned. See Merle S. v. Commissioner of Correction , 167 Conn. App. 585, 588 n.4, 143 A.3d 1183 (2016) (claims of ineffective assistance of trial counsel not pursued on appeal are deemed abandoned). Attorney Grogins has since become a judge of the Superior Court. With no disrespect intended to Judge Grogins, we follow our normal practice in this opinion of referring to witnesses by their last names after initially identifying them by their full names. The record reflects that Moe's Market is located at the intersection of Dixwell Avenue and Harding Place, about a three minute bicycle ride south of the petitioner's residence and, therefore, between his residence and Canal Street, the scene of the shooting. "Dickey" shirt may refer to the "Dickies" brand of apparel. In the habeas trial transcripts, the term is spelled as "dickey" or "Dickey." For consistency, we maintain the spelling as "dickey." Our Supreme Court reached the same conclusion in the petitioner's direct appeal, albeit in the context of the petitioner's claim that the trial court had improperly barred him from presenting portions of Dysart's testimony at his criminal trial. See State v. Outing , supra, 298 Conn. at 64, 3 A.3d 1 ("[m]oreover, it is reasonable to conclude that the [petitioner's] decision not to call Dysart as a trial witness was a tactical one predicated on the concern that to do so might detract from the [petitioner's] claim that Crimley and Caple had not made a good faith but mistaken identification of the [petitioner] as the shooter but, rather, had been coerced by the police into identifying the [petitioner]"). In State v. Kemp , supra, 199 Conn. at 477, 507 A.2d 1387, and State v. McClendon , supra, 248 Conn. at 586, 730 A.2d 1107, our Supreme Court affirmed the trial court's exclusion of expert testimony on eyewitness identification after observing that such testimony had previously "been excluded on the grounds that the reliability of eyewitness identification is within the knowledge of the jurors and expert testimony generally would not assist them in determining the question." After the petitioner's criminal trial and direct appeal, our Supreme Court decided State v. Guilbert , supra, 306 Conn. at 218, 49 A.3d 705, in which it expressly overruled Kemp and State v. McClendon , supra, 248 Conn. at 572, 730 A.2d 1107, and held that "the reliability of eyewitness identifications frequently is not a matter within the knowledge of an average juror"; State v. Guilbert , supra, at 251, 49 A.3d 705 ; and "expert testimony is an effective way to educate jurors about the risks of misidentification." Id., at 252, 49 A.3d 705. "Surrebuttal evidence is that which is offered to meet evidence raised in rebuttal. [O]nly evidence to explain away new facts brought forward by the proponent in rebuttal . is properly admissible [in surrebuttal].... [Our Supreme Court previously has] stated that there is no constitutional right to present surrebuttal evidence.... The presentation of surrebuttal evidence is a matter resting squarely within the discretion of the trial court.... The defendant must demonstrate some compelling circumstance and the proffered evidence must be of such importance that its omission puts in doubt the achievement of a just result." (Internal quotation marks omitted.) State v. Goriss , 108 Conn. App. 264, 272, 947 A.2d 1041, cert. denied, 289 Conn. 904, 957 A.2d 873 (2008).

12510696

STATE of Connecticut v. Anthony CRESPO

State v. Crespo

2019-06-18

AC 41111

1027

1039

211 A.3d 1027

211

West's Atlantic Reporter, Third Series

Connecticut Appellate Court

Connecticut

2021-08-27T20:58:01.966564+00:00

Fastcase

DiPentima, C.J., and Elgo and Bright, Js.

STATE of Connecticut v. Anthony CRESPO

STATE of Connecticut v. Anthony CRESPO AC 41111 Appellate Court of Connecticut. Argued January 28, 2019 Officially released June 18, 2019 Michael S. Hillis, New Haven, for the appellant (defendant). Bruce R. Lockwood, senior assistant state's attorney, with whom, on the brief, were Peter A. McShane, former state's attorney, and Russell Zentner, senior assistant state's attorney, for the appellee (state). DiPentima, C.J., and Elgo and Bright, Js.

5605

35028

ELGO, J. The defendant, Anthony Crespo, appeals from the judgment of the trial court finding him in violation of probation pursuant to General Statutes § 53a-32. On appeal, the defendant claims that (1) the court improperly overruled an objection predicated on the right to confront adverse witnesses without making the requisite finding of good cause, (2) the court improperly denied his motion to dismiss due to the imposition of allegedly inconsistent conditions of probation, (3) the court improperly failed to conduct an evidentiary hearing pursuant to Franks v. Delaware , 438 U.S. 154, 98 S. Ct. 2674, 57 L. Ed. 2d 667 (1978), (4) the court abused its discretion in denying his motion for judicial disqualification and (5) the evidence was insufficient to sustain the court's finding that the defendant violated a condition of his probation. We affirm the judgment of the trial court. On April 23, 2007, the defendant pleaded guilty to assault in the second degree in violation of General Statutes § 53a-60 (a) (2), risk of injury to a child involving sexual contact in violation of General Statutes § 53-21 (a) (2), and sexual assault in the fourth degree in violation of General Statutes § 53a-73a (a) (1) (A). At sentencing, the court remarked: "This is some of the worst treatment of a minor child that I have ever seen in my years on the bench. In my opinion, Mr. Crespo, you are a sexual deviant, and you are a violent and physical human being, except that you are a violent and physical human being toward those who cannot defend themselves." The court then sentenced the defendant to a total effective term of sixteen years incarceration, execution suspended after nine and one-half years, followed by fifteen years of probation. The special conditions of probation imposed by the court required, inter alia, that the defendant have "no unsupervised contact with minors under the age of sixteen and that any supervisor be approved by both his treatment provider and his supervising [probation] officer" (supervisor condition). On December 8, 2014, in preparation for his release from incarceration, the defendant signed several standardized forms prepared by the office of adult probation, including one titled "Sex Offender Conditions of Probation." Among the conditions specified therein and marked applicable to the defendant was the following requirement: "You will not be in the presence of minors, nor have contact in any form, direct or indirect . with children under the age of sixteen without Probation Officer approval. Any contact must be reported immediately to a Probation Officer" (approval condition). On March 17, 2015, the defendant's probationary period commenced upon his release from the custody of the Commissioner of Correction. In accordance with the supervisor condition imposed by the court at sentencing, the defendant's wife, Rosa, subsequently was approved as the defendant's supervisor by his probation officer, the treatment provider, and the victim's advocate. Approximately nine months into the defendant's probationary period, his probation officer, Michael Sullivan, received a report that a fourteen year old female was living at the apartment that the defendant shared with Rosa. Following an investigation, Sullivan obtained an arrest warrant for the defendant's violation of the terms of his probation. In that application, Sullivan alleged that the defendant had violated both the supervisor condition and the approval condition of his probation. The defendant then was arrested and charged with breaching the terms of his probation in violation of § 53a-32. A probation revocation hearing commenced on November 8, 2017, at which the court heard testimony from Sullivan and Vanessa Valentin, a probation officer who was involved in the investigation of the defendant's alleged violation of the terms of his probation. When the state rested in the adjudicatory stage of that proceeding, the defendant moved to dismiss the charge on the ground that the approval condition of his probation was inconsistent with the supervisor condition ordered by the trial court. After hearing argument from the parties, the court denied that motion. Defense counsel then asked the trial court to disqualify itself on the ground of bias. In response, the court stated: "Because of the seriousness of the matter before the court, because of the fact that your client is facing incarceration and because of the fact that you've raised the issue now, at this late stage of the proceeding, I am going to ask that another judge hear your motion to disqualify ." Following a recess, Judge Leo V. Diana presided over a hearing on the defendant's motion for judicial disqualification, at the conclusion of which the court denied the motion. The adjudicatory phase of the probation revocation hearing resumed on November 17, 2017. The defendant presented the testimony of one witness, the fourteen year old female who allegedly resided at the defendant's apartment for a period of time in December, 2016. When her testimony concluded, the defendant rested, and the court heard argument from the parties. The prosecutor argued that the evidence demonstrated that the defendant had violated the approval condition of his probation. The court agreed and found, by a fair preponderance of the evidence, that the defendant had violated the terms of his probation. During the dispositional phase of the proceeding, the court revoked the defendant's probation and sentenced him to a term of six and one-half years of incarceration, execution suspended after five years, followed by ten years of probation. This appeal followed. I The defendant first contends that the court improperly overruled his objection to certain testimony on confrontation grounds without making a specific finding of good cause. The state counters that this claim is unpreserved. We agree with the state. The following additional facts are relevant to the defendant's claim. During his testimony at the probation revocation hearing, Sullivan stated that he had received an anonymous report regarding the defendant's alleged violation of the terms of his probation. When Sullivan then proceeded to describe a meeting with that anonymous person, defense counsel objected on hearsay grounds. The court summarily overruled that objection. Sullivan then was asked about the substance of his conversation with that anonymous person, to which defense counsel again objected, stating: "Your Honor, I move to strike all of that inquiry for two reasons. One, it isn't just that there were relaxed rules of evidence for these procedures, but the confrontation clause is my client's constitutional right. I have no way of doing any of this with this officer because he's not the person that witnessed or saw any of this. So, it's not just an evidentiary violation, it's a violation of my client's constitutional rights to confront. And therefore, again, also, it contained total hearsay, which is hearsay within hearsay within this. And I believe that they should produce the witness so that witness can be properly cross-examined. Failing to do that, this testimony, should be stricken." In response, the court stated, "Overruled." The prosecutor then resumed his questioning of Sullivan, and defense counsel thereafter made no further mention of the confrontation issue. As a preliminary matter, we note that the defendant has provided this court with no authority indicating that the right to confrontation contained in the sixth amendment to the United States constitution applies to probation revocation proceedings. See, e.g., State v. Esquilin , 179 Conn. App. 461, 472 n.10, 179 A.3d 238 (2018), and cases cited therein (noting that "an overwhelming majority of federal circuit and state appellate courts that have addressed this issue have concluded that [the confrontation standard articulated in Crawford v. Washington , 541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004) ] does not apply to a revocation of probation hearing"). Although defense counsel referenced the "confrontation clause" in his objection before the trial court, his claim on appeal is predicated on the due process rights contained in the fourteenth amendment to the United States constitution, which mandate "certain minimum procedural safeguards before that conditional liberty interest [of probation] may be revoked"; State v. Polanco , 165 Conn. App. 563, 570, 140 A.3d 230, cert. denied, 322 Conn. 906, 139 A.3d 708 (2016) ; including the right to question adverse witnesses. Id., at 571, 140 A.3d 230. The exercise of the right to confront adverse witnesses in a probation revocation proceeding is not absolute, but rather entails a balancing inquiry conducted by the court, in which the court "must balance the defendant's interest in cross-examination against the state's good cause for denying the right to cross-examine.... In considering whether the court had good cause for not allowing confrontation or that the interest of justice [did] not require the witness to appear . the court should balance, on the one hand, the defendant's interest in confronting the declarant, against, on the other hand, the government's reasons for not producing the witness and the reliability of the proffered hearsay." (Citation omitted; internal quotation marks omitted.) Id. To properly preserve for appellate review a confrontation claim in this context, our precedent instructs that a defendant must distinctly raise the balancing issue with the court at the probation revocation proceeding. If the defendant fails to do so, the claim is deemed unpreserved. See State v. Tucker , 179 Conn. App. 270, 278-79 n.4, 178 A.3d 1103 ("a defendant's due process claim is unpreserved where the defendant never argued to the trial court that it was required to balance his interest in cross-examining the victim against the state's good cause for not calling the victim as a witness"), cert. denied, 328 Conn. 917, 180 A.3d 963 (2018) ; State v. Esquilin , supra, 179 Conn. App. at 474, 179 A.3d 238 (same); State v. Polanco , supra, 165 Conn. App. at 571, 140 A.3d 230 (same). The record plainly reflects that the defendant failed to distinctly raise that claim in the present case. For that reason, resort to the familiar rubric of Golding review is unavailing, as the record in such circumstances is inadequate to review the alleged due process violation. See State v. Esquilin , supra, 179 Conn. App. at 477-78, 179 A.3d 238. Accordingly, we decline to review the merits of the defendant's unpreserved claim. II The defendant next claims that the court improperly denied his motion to dismiss on the ground that the approval condition included on the sex offender conditions of probation form that he signed in preparation for his release from incarceration was inconsistent with the supervisor condition imposed by the court at his sentencing. We disagree. The proper interpretation of conditions of probation presents a question of law. State v. Faraday , 268 Conn. 174, 191, 842 A.2d 567 (2004). Our review, therefore, is plenary. Our analysis begins with General Statutes § 53a-30 (b), which "expressly allows the office of adult probation to impose reasonable conditions on probation." State v. Thorp , 57 Conn. App. 112, 116, 747 A.2d 537, cert. denied, 253 Conn. 913, 754 A.2d 162 (2000). Such "[p]ostjudgment conditions imposed by adult probation are not a modification or enlargement of some condition already imposed by the court, but are part of an administrative function that [ § 53a-30 (b) ] expressly authorizes as long as it is not inconsistent with any previously court-imposed condition." State v. Johnson , 75 Conn. App. 643, 652, 817 A.2d 708 (2003). More specifically, § 53a-30 (b) provides: "When a defendant has been sentenced to a period of probation, the Court Support Services Division may require that the defendant comply with any or all conditions which the court could have imposed under subsection (a) of this section which are not inconsistent with any condition actually imposed by the court." Section 53a-30 (b) thus contains two requirements. First, the condition of probation contemplated by the Office of Adult Probation must be one that the trial court could have imposed under § 53a-30 (a). Second, the condition must not be inconsistent with any condition of probation previously imposed by the court. The state submits, and the defendant concedes, that the approval condition was one which the sentencing court could have imposed. Pursuant to § 53a-30 (a), the sentencing court was authorized to impose any condition "reasonably related to the defendant's rehabilitation." Given the context of the defendant's guilty plea; see footnote 1 of this opinion; we agree that the court could have imposed the approval condition at the time of sentencing. With respect to the second requirement of § 53a-30 (b), the defendant claims that the approval condition is inconsistent with the supervisor condition that the court imposed at sentencing. This court previously has equated the term "inconsistent," as it is used in § 53a-30 (b), with incompatibility. State v. Johnson , supra, 75 Conn. App. at 653, 817 A.2d 708. This court has further explained that, to run afoul of the mandate of § 53a-30 (b), the condition imposed by the Office of Adult Probation must be "in direct contradiction to [a] condition imposed by the sentencing court ." State v. Armstrong , 86 Conn. App. 657, 664, 862 A.2d 348 (2004), cert. denied, 273 Conn. 909, 870 A.2d 1081 (2005). We disagree with the defendant that the approval condition imposed by the Office of Adult Probation prior to his release from incarceration is incompatible with, and in direct contradiction to, the supervisor condition ordered by the court at sentencing. Rather, those two conditions complement each other. Whereas the supervisor condition ensured that a supervisor was present for any contact between the defendant and a minor under the age of sixteen, the approval condition ensured that such contact was approved by his probation officer in the first instance. We perceive nothing inherently inconsistent or contradictory about those two conditions of probation. The core functions of probation officers are "to guide the [probationer] into constructive development" and to prevent "behavior that is deemed dangerous to the restoration of the individual into normal society." Morrissey v. Brewer , 408 U.S. 471, 478, 92 S. Ct. 2593, 33 L. Ed. 2d 484 (1972). Under Connecticut law, probation officers are obligated to "keep informed of [the probationer's] conduct and condition and use all suitable methods to aid and encourage him and to bring about improvement in his conduct and condition." General Statutes § 54-108 (a). Because the defendant's incarceration in the present case stemmed from the sexual and physical assault of a six year old child, it was entirely appropriate for the Office of Adult Probation, in effectuating that statutory obligation, to impose the approval condition as a prerequisite to any supervised contact between the defendant and minors under the age of sixteen. We therefore reject the defendant's claim that the approval and supervisor conditions of his probation are incompatible or inconsistent. III The defendant claims the court improperly failed to hold an evidentiary hearing pursuant to Franks v. Delaware , supra, 438 U.S. at 154, 98 S.Ct. 2674, on the veracity of certain allegations contained in the arrest warrant affidavit prepared by Sullivan. In Franks , the United States Supreme Court held that "where the defendant makes a substantial preliminary showing that a false statement knowingly and intentionally, or with reckless disregard for the truth, was included by the affiant in the warrant affidavit, and if the allegedly false statement is necessary to the finding of probable cause, the [f]ourth [a]mendment requires that a hearing be held at the defendant's request." Id., at 155-56, 98 S. Ct. 2674. As our Supreme Court has explained, before a defendant is entitled to a Franks hearing, the defendant must "(1) make a substantial preliminary showing that a false statement knowingly and intentionally, or with reckless disregard for the truth, was included by the affiant in the warrant affidavit; and (2) show that the allegedly false statement is necessary to a finding of probable cause." (Internal quotation marks omitted.) State v. Ferguson , 260 Conn. 339, 363, 796 A.2d 1118 (2002). In State v. Bangulescu , 80 Conn. App. 26, 832 A.2d 1187, cert. denied, 267 Conn. 907, 840 A.2d 1171 (2003), this court held that a defendant must distinctly raise a request for a Franks hearing before the trial court in order to preserve the claim for appellate review. As it stated: "[W]hen confronted with [the objectionable] testimony at trial, the defendant did not seek a Franks hearing; therefore, the court was not given the opportunity to determine whether [the witness'] inaccurate statement was made knowingly and intentionally, or with reckless disregard for the truth . or whether it was necessary to the finding of probable cause . As a consequence, the defendant's first claim must fail, as it does not meet the threshold requirement of Golding that the record be adequate for appellate review." (Citations omitted; footnote omitted; internal quotation marks omitted.) Id., at 33-34, 832 A.2d 1187. That conclusion comports with the purpose of the preservation requirement, as "the essence of preservation is fair notice to the trial court ." State v. Miranda , 327 Conn. 451, 465, 174 A.3d 770 (2018). The logic of Bangulescu compels the same result in the present case, as it is undisputed that the defendant never requested a Franks hearing at any time during the probation revocation proceeding. The record further reveals that he did not distinctly raise with the trial court the claim he now pursues on appeal. As such, the claim is unpreserved. Although unpreserved claims of constitutional dimension nonetheless may qualify for appellate review under Golding , such recourse is not available in the present case. Because the claim never was presented to the trial court, the record lacks the requisite findings as to (1) whether any allegedly false statements were knowingly and intentionally made with reckless disregard for the truth, and (2) whether those statements were necessary to the finding of probable cause. The defendant therefore cannot surmount Golding 's first prong, as the record is inadequate to review his unpreserved claim. IV The defendant also claims that the court abused its discretion in denying his motion for judicial disqualification on the ground of bias. We do not agree. The following additional facts are relevant to this claim. After the state rested its case-in-chief during the adjudicatory stage of the hearing, defense counsel made an oral motion to dismiss. Counsel then informed the court that he had "a written memorandum in support of my motion to dismiss." In response, the prosecutor stated that he had not seen the defendant's motion. The court then recessed the proceeding to provide the prosecutor with an opportunity to review the motion. When the hearing resumed, the court noted that the written motion that the defendant submitted was dated October 19, 2017. At that time, the prosecutor indicated that he was "still not prepared . to respond adequately. The motion is dated October 19th, and here we are, November 8th, and I just was handed it right after the state rested its case." The prosecutor thus requested an additional ten to fifteen minutes to review the defendant's motion. Defense counsel asked to be heard and stated that he could not have filed that motion until he had heard the state's evidence. The following colloquy then occurred: "[Defense Counsel]: I've been a trier of federal and state trials my whole adult . life. And good prudence is dictated to me that I wait to see all the evidence before I would file a motion that would argue the evidence. And the evidence before this court was that [the sentencing judge] issued a ruling that [the defendant] could have contact with minors as long as there was . supervision, the supervision was vetted, therefore there's no violation of [the court's] order. What's been confused here- "The Court: Well, let's not argue the motion, counsel- "[Defense Counsel]: Oh, I know.... [I]f [the prosecutor] wants more time to argue this, I don't have any problem with it, at all, or the judge to review it. There's no urgency in this. But I really could only file it. I want to make sure because Your Honor doesn't know me, as a practitioner, but I can tell you that seasoned defense counsel would wait until the evidence came out before they would file anything arguing the evidence. "The Court: Well, I, too, have been a seasoned judge for some time. "[Defense Counsel]: Right. "The Court: And I know how to handle this procedure. I have been sitting in the criminal bench for some period of time. I take a little offense to the lecture from counsel as to whether or not this should have been filed now or otherwise. "[Defense Counsel]: I certainly apologize to the court . it had nothing to do with the court. "The Court: I think it's fair, then-I accept your apology. "[Defense Counsel]: Yeah, I do. That was not the intention, the intention was to explain my own behavior, not imply anything against the court. "The Court: All right, well I think it's fair for everybody to be able to have an opportunity to review this memorandum that's been filed just minutes ago, and it's now eight pages in length with an affidavit also that's attached from a person who has not testified in this court." With the agreement of both parties, the court then took a midday recess to allow the prosecutor additional time to review the defendant's motion to dismiss. When that recess concluded, the court heard argument on the merits of the motion from both the prosecutor and defense counsel. The court then denied the motion to dismiss and asked defense counsel if he wanted to put on any evidence. In response, defense counsel stated: "Your Honor, at this time I'm going to ask that the court disqualify itself, and I move for your recusal. A reasonable defendant sitting in this chair . would find that this court's ruling on the evidence in the beginning of the case, as well as the discord that Your Honor and I had prior to the break, would find that you would be partial and biased towards him; he felt that way. And I move that you disqualify yourself and recuse yourself from this hearing." After acknowledging the gravity of that request, the court indicated that it would ask another judge to rule on the defendant's motion for judicial disqualification. Following a recess, Judge Diana presided over a hearing on the defendant's motion, at which the court heard argument from the parties and playback of the foregoing colloquy between defense counsel and the court. In ruling on the motion, the court stated in relevant part: "It's a fundamental principle that to demonstrate bias sufficient to support a claim of judicial disqualification, the due administration of justice requires that such a demonstration be based on more than opinion or conclusion. Vague and unverified assertions of opinion, speculation and conjecture cannot support a motion to recuse. The reasonable standard . is an objective one. The question is not only whether the particular judge is, in fact, impartial, but whether a reasonable person would question a judge's impartiality, based on the basis of all the circumstances. The law presumes that a duly elected or appointed judge, consistent with their oath of office, will perform their duties impartially and that they're able to put aside personal impressions regarding a party, the burden rests upon the party urging disqualification to show that it is warranted.... Based upon the evidence . my review of the [relevant] Practice Book section[s], the Code of Judicial Conduct, the exchange between counsel and [the trial court], the apology [by defense counsel] and the acceptance [of that apology by the court, the facts of this case do] not rise to [the level of] a disqualification. The motion, therefore . is denied." As our Supreme Court has observed, "[r]ule 2.11 (a) (1) of the Code of Judicial Conduct provides in relevant part that [a] judge shall disqualify himself . in any proceeding in which the judge's impartiality might reasonably be questioned including, but not limited to, the following circumstances . [t]he judge has a personal bias or prejudice concerning a party or a party's lawyer, or personal knowledge of facts that are in dispute in the proceeding. In applying this rule, [t]he reasonableness standard is an objective one. Thus, the question is not only whether the particular judge is, in fact, impartial but whether a reasonable person would question the judge's impartiality on the basis of all the circumstances.... Moreover, it is well established that [e]ven in the absence of actual bias, a judge must disqualify himself in any proceeding in which his impartiality might reasonably be questioned, because the appearance and the existence of impartiality are both essential elements of a fair exercise of judicial authority.... Nevertheless, because the law presumes that duly elected or appointed judges, consistent with their oaths of office, will perform their duties impartially . the burden rests with the party urging disqualification to show that it is warranted." (Internal quotation marks omitted.) State v. Milner , 325 Conn. 1, 12, 155 A.3d 730 (2017). Appellate review of the trial court's denial of a defendant's motion for judicial disqualification "is subject to the abuse of discretion standard.... That standard requires us to indulge every reasonable presumption in favor of the correctness of the court's determination." (Internal quotation marks omitted.) State v. Petaway , 107 Conn. App. 730, 736, 946 A.2d 906, cert. denied, 289 Conn. 926, 958 A.2d 162 (2008). In the present case, the defendant claims that a reasonable person would question the trial court's impartiality on the basis of certain adverse rulings that it made during the hearing and the aforementioned colloquy regarding the filing of the defendant's motion to dismiss. With respect to the former, it suffices to note that "adverse rulings by the judge do not amount to evidence of bias sufficient to support a claim of judicial disqualification." State v. Bunker , 89 Conn. App. 605, 613, 874 A.2d 301 (2005), appeal dismissed, 280 Conn. 512, 909 A.2d 521 (2006). We further observe that the defendant's complaint that the court "offered no explanation for denying [his] right to confront the witness against him" is unfounded, as the defendant failed to bring that concern distinctly to the court's attention; see part I of this opinion; and he never requested an explanation or articulation from the court on that ruling, as expressly provided for in our rules of practice. See Practice Book § 64-1 and 66-5. We also agree with Judge Diana that the colloquy regarding the filing of the motion to dismiss does not evince any partiality or bias on the part of the court. In that exchange, defense counsel clarified that his concern regarding the filing of the motion to dismiss "had nothing to do with the court" and offered an apology, which the court promptly accepted, stating, "I think it's fair then-I accept your apology." The court proceeded to grant a recess to afford the prosecutor additional time to review the defendant's motion and later heard argument from the parties before ruling on the merits of the motion. In sum, nothing in the transcript of the November 8, 2017 hearing reflects bias on the part of the court. On our thorough review of the record before us, we cannot conclude that Judge Diana abused his discretion in concluding that a reasonable person would not question the court's impartiality on the basis of the circumstances present in this case. Accordingly, the defendant's claim fails. V As a final matter, the defendant contends that the evidence adduced at the probation revocation hearing was insufficient to sustain the court's finding that he violated the terms of his probation. We disagree. Under Connecticut law, a challenge to the court's determination during the adjudicatory phase of a violation of probation proceeding that a probationer has violated a condition of probation is governed by the clearly erroneous standard of review. As our Supreme Court has explained, in that adjudicatory phase the "trial court initially makes a factual determination of whether a condition of probation has been violated. In making its factual determination, the trial court is entitled to draw reasonable and logical inferences from the evidence.... Our review is limited to whether such a finding was clearly erroneous.... A finding of fact is clearly erroneous when there is no evidence in the record to support it . or when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.... In making this determination, every reasonable presumption must be given in favor of the trial court's ruling." (Internal quotation marks omitted.) State v. Hill , 256 Conn. 412, 425-26, 773 A.2d 931 (2001). In the present case, the record indicates that, prior to his release from incarceration, the defendant reviewed and signed the terms and conditions of his probation, including the approval condition, and thereby manifested his understanding of the necessity to abide by those conditions. At trial, Sullivan testified that the approval condition obligated the defendant to obtain his approval prior to having any contact with a minor child. Sullivan explained that he received a report that a fourteen year old female had been residing in the defendant's apartment for approximately one week in December, 2016. When Sullivan confronted the defendant about that accusation, the defendant initially denied having any contact with her, but later broke down and started crying. Sullivan testified that he asked the defendant why he was crying, and that the defendant then admitted that the fourteen year old female "was staying at his residence and that he was having contact [with her]." Sullivan and Valentin also testified that the investigation also included a visit to the defendant's apartment, where they encountered a sixteen year old who informed them that the fourteen year old female currently "was staying at [the defendant's] residence" and had done so at several intervals throughout the year, including holidays and recesses from school. Sullivan testified that the defendant had not obtained his approval for any such contact. The court, as trier of fact, was free to credit that testimony. State v. Dunbar , 188 Conn. App. 635, 642, 205 A.3d 747, cert. denied, 331 Conn. 926, 207 A.3d 27 (2019). On the basis of that evidence, the court reasonably could find that the defendant violated his probation by not complying with the approval condition of his probation. The court's determination, therefore, is not clearly erroneous. The judgment is affirmed. In this opinion the other judges concurred. Evidence presented at the probation revocation hearing indicated that the defendant's plea followed allegations of sexual and physical assault of a six year old child, "including digital penetration, fondling and physical abuse, which included beating her with a wire clothes hanger, and . punching her in the face, leaving bruising." Rosa did not testify at the probation revocation proceeding. Although the record indicates that Rosa was the defendant's wife at all relevant times, her surname is not specified therein. We therefore refer to her in this opinion by her first name. Although she acknowledged that Rosa was her aunt, the fourteen year old female testified that she had never met the defendant. She further testified that she had never visited the residence the defendant shared with Rosa. At the conclusion of the adjudicatory stage of the hearing, the court found that the fourteen year old female's testimony "was completely not credible" and that it contradicted the defendant's admission to the contrary. On appeal, the defendant raises no claim with respect to the dispositional phase of the probation revocation proceeding. In Morrissey v. Brewer , 408 U.S. 471, 489, 92 S. Ct. 2593, 33 L. Ed. 2d 484 (1972), a case involving a violation of parole hearing, the United States Supreme Court held that "minimum requirements of due process" mandate, inter alia, that a defendant be afforded "the right to confront and cross-examine adverse witnesses (unless the hearing officer specifically finds good cause for not allowing confrontation) ." The United States Supreme Court subsequently held that the due process requirements recognized in Morrissey extend to probation revocation proceedings. Gagnon v. Scarpelli , 411 U.S. 778, 782, 93 S. Ct. 1756, 36 L. Ed. 2d 656 (1973). Under Golding , "a defendant can prevail on a claim of constitutional error not preserved at trial only if all of the following conditions are met: (1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation . exists and . deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt. In the absence of any one of these conditions, the defendant's claim will fail." (Emphasis in original; footnote omitted.) State v. Golding , 213 Conn. 233, 239-40, 567 A.2d 823 (1989), as modified by In re Yasiel R ., 317 Conn. 773, 781, 120 A.3d 1188 (2015). In light of our conclusion that the record is inadequate for review, we need not consider the state's alternate contention that probation revocation hearings, being akin to a civil proceeding; see State v. Taveras , 183 Conn. App. 354, 364, 193 A.3d 561 (2018) ; fall outside the scope of Franks . By contrast, review of the court's determination during the dispositional phase of a probation revocation proceeding as to whether revocation is warranted is governed by the abuse of discretion standard. See State v. Preston , 286 Conn. 367, 377, 944 A.2d 276 (2008).

12510693

Austin HAUGHWOUT v. Laura TORDENTI et al.

Haughwout v. Tordenti

2019-07-30

SC 20076

1

19

211 A.3d 1

211

West's Atlantic Reporter, Third Series

Connecticut Supreme Court

Connecticut

2021-08-27T20:58:01.966564+00:00

Fastcase

Robinson, C.J., and Palmer, McDonald, Mullins, Kahn, Ecker and Vertefeuille, Js.

Austin HAUGHWOUT v. Laura TORDENTI et al.

Austin HAUGHWOUT v. Laura TORDENTI et al. SC 20076 Supreme Court of Connecticut. Argued October 17, 2018 Officially released July 30, 2019 Mario Cerame, Hartford, for the appellant (plaintiff). Ralph E. Urban, assistant attorney general, with whom, on the brief, was George Jepsen, former attorney general, for the appellees (defendants). Rebecca E. Adams filed a brief for the Connecticut Association of Boards of Education as amicus curiae. Robinson, C.J., and Palmer, McDonald, Mullins, Kahn, Ecker and Vertefeuille, Js.

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ROBINSON, C.J. In this appeal, we consider the limits of free speech on a public university campus in light of recent history that has led federal and state courts to describe threats of gun violence and mass shootings as the twenty-first century equivalent to the shout of fire in a crowded theater once envisioned by Justice Oliver Wendell Holmes, Jr. See, e.g., Ponce v. Socorro Independent School District , 508 F.3d 765, 772 (5th Cir. 2007) ; Milo v. New York , 59 F. Supp. 3d 513, 517 (E.D.N.Y. 2014) ; In re A.S. , 243 Wis. 2d 173, 194, 626 N.W.2d 712 (2001). The plaintiff, Austin Haughwout, brought the present action seeking to challenge his expulsion from Central Connecticut State University (university). The plaintiff now appeals from the judgment of the trial court in favor of the defendants, Laura Tordenti, Ramón Hernández, Christopher Dukes, and Densil Samuda, the university officials involved in that decision. On appeal, the plaintiff claims that the trial court incorrectly determined that the various statements and gestures with respect to gun violence and mass shootings that led to his expulsion from the university were true threats that are not protected by the first amendment to the United States constitution, rather than hyperbolic and humorous statements on a matter of public concern. Although a public university campus is a unique forum for the free exchange of controversial, unpopular, and even offensive ideas, we nevertheless conclude that the plaintiff's statements and gestures were true threats. Accordingly, we affirm the judgment of the trial court. The record reveals the following facts, as found by the trial court, and procedural history. "On September 17, 2015, a student at [the university] (complainant) went to the headquarters of the campus police to report a 'suspicious incident' at the student center. [The complainant] provided a written statement in which he said that [the plaintiff] 'made verbal cues discussing the physical harm of another [university] student,' identified the other student as 'first on his hit list,' showed digital [photographs] of a bullet on his cell phone, and 'remarked that he had loose bullets at home and in his truck.' The complainant said he did not know [the plaintiff], but the statements were made in his presence. The complainant further reported that [the plaintiff] had never shown any weapons on his person, and that he has 'a habit of making hand gestures in the shape of handguns as a common gesture.' "On September 21, 2015, the campus police interviewed another [university] student who had known [the plaintiff] since the spring semester [of] 2015 and hung around with him in a group that met at the student center. That student recounted statements by [the plaintiff] that 'someone should shoot up this school' or 'I should just shoot up this school.' [The plaintiff] was 'always' talking about guns and ammunition and 'greets everyone by pointing at them with his hand in the shape of a gun.' This student reported that [the plaintiff] had said to him that he was [the plaintiff's] 'number one target,' 'number one on my list.' [The plaintiff] 'brags constantly about his guns and ammunition, shows off pictures and boasts about wanting to bring a gun to school.' This student described these statements by [the plaintiff] as made 'jokingly' and that the group in which they hung around dismissed what he said as a joke. "On the same day, the campus police reinterviewed the complainant, who repeated his allegations of September 17. Although [the complainant], too, described [the plaintiff's] statements as having been made 'jokingly,' he was 'alarmed' by them, had started avoiding [the plaintiff], left the student center when [the plaintiff] arrive[d] and was 'afraid for everyone's safety.' "On September 22, the campus police interviewed a third student who related that he had heard [the plaintiff] during the preceding week state 'something like "might as well shoot up the place." ' While this student described [the plaintiff's] statement as having been made 'nonchalantly,' he was 'concerned about the context of [the plaintiff's] exclamation' because [the plaintiff] had been 'upset about something' when he made it. "The campus police interviewed [the plaintiff] on September 22, 2015, as well. While he acknowledged talking about guns a lot, he denied ever saying anything about shooting up the school, stating that 'he knows better than to mention anything like that.' He attributed the complaints against him to his position on gun rights. "After interviewing [the plaintiff], the campus police called two of the persons they had previously interviewed and inquired why they had not contacted police upon hearing [the plaintiff's] alleged remarks about 'shooting up the school.' One said he had been told by others who heard the remark to 'take it as a joke and ignore [the plaintiff]'; the other stated that [he] 'didn't take it seriously but . was kind of concerned.' "[Samuda], a detective with the campus police, participated in this investigation. At its conclusion, on September 22, he applied for an arrest warrant charging [the plaintiff] with the crime of threatening in the second degree, in violation of General Statutes § 53a-62. The state's attorney declined the application, informing . Samuda that probable cause for that crime was lacking. [Samuda] reported the results of his investigation to [Dukes, the university's director of student conduct, and] provided him with copies of the police reports. On October 1, 2015, [the plaintiff] was placed on an interim suspension by Hernández, [the university's associate dean for student affairs, because of] 'alleged behavior within our community.' " (Footnotes added and omitted.) Following an investigation by Dukes, the university commenced disciplinary proceedings against the plaintiff on the ground that his actions had violated four separate provisions of the university's student code of conduct prohibiting the following: physical assault, intimidation, or threatening behavior; harassment; disorderly conduct; and offensive or disorderly conduct. A hearing was held before a panel consisting of two administrators and a professor, at which the plaintiff largely denied making the statements and gestures attributed to him. See footnote 18 of this opinion. The hearing panel found, however, that the plaintiff was responsible on all charges, and decided to expel him from the university's campus. The hearing panel's decision to expel the plaintiff from the university was subsequently upheld after an internal appeal. The plaintiff subsequently brought this action seeking a declaratory judgment, injunctive relief, and damages. The plaintiff also sought a writ of mandamus reinstating him as a student at the university, expungement of misconduct allegations from his record, and a refund of tuition and fees that had been withheld by the defendants. The plaintiff claimed that his expulsion constituted a breach of contract, contravened an implied covenant of duty of good faith and fair dealing, and violated his state and federal constitutional rights to due process of law and to freedom of speech. After a hearing, the trial court issued a memorandum of decision in which it rejected the plaintiff's contractual and due process claims, and further concluded that the defendants did not violate the plaintiff's free speech rights under the federal and state constitutions. The trial court concluded that the plaintiff's "statements and gestures while in the student center at [the university] fit the definition of 'true threats,' " and "were certainly not statements that sought 'to communicate a belief or idea.' " Because the plaintiff had "denied almost all of these statements," and, therefore, "the record contains no direct evidence from him as to his intentions in making them"; see footnote 17 of this opinion; the trial court relied on their content and "his repeated utterances of them in a public place like the student center," and found that the plaintiff "meant to 'communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals' . namely, the students at [the university]. Whether he actually intended to carry through on the threat is unknown and immaterial." (Citation omitted.) Given the "spate" of mass shootings at schools and universities around the country, the trial court determined that "a reasonable person . would have seen that such repeated statements would be interpreted by the students to whom and in whose presence he made them as 'serious expressions of intent to harm or assault.' . And, although some of the students treated [the plaintiff's] statements as a joke, at least some of them who heard these threats were 'alarmed' and 'concerned' about them and in some cases changed their behavior; e.g., coming less often to the student center because of [the plaintiff's] statements." (Citation omitted; footnote omitted.) Accordingly, the trial court rendered judgment for the defendants. This appeal followed. On appeal, the plaintiff, emphasizing that the first amendment "doesn't protect just the good jokes," claims that the statements, gestures, and images that he made were not true threats and, therefore, were a constitutionally protected exercise of his right to free speech. Relying heavily on the principles elucidated in our decision in State v. Krijger , 313 Conn. 434, 97 A.3d 946 (2014), as well as the United States Supreme Court's decision in Watts v. United States , 394 U.S. 705, 89 S. Ct. 1399, 22 L. Ed. 2d 664 (1969), the plaintiff contends that his statements were not true threats but, instead, were protected "jokes" or " 'political hyperbole' " akin to the satiric works of Lenny Bruce, which constituted "dark humor" with long roots in Western literature. The plaintiff emphasizes that, although it was "possible to construe [his] statements as a threat," the "more plausible interpretation is benign," given the context in which "[e]veryone who heard the statements understood them to be made jokingly," and "[n]o contemporaneous listener understood [them] to be a serious expression of an intent to cause harm." Relying on his explanations before the hearing panel to provide additional context, the plaintiff emphasizes that "none [of the listeners] reacted in a manner consistent with a serious expression of an intent to shoot members of the school community" and puts his "[j]oking that someone should shoot up the school" in the same constitutionally protected "nasty bucket as a dead baby joke." The plaintiff further argues that his statements lacked the particularity necessary to be a true threat, and that his statements-whether examined as a whole or in a "more granular way"-were ambiguous and, therefore, not true threats. In response, the defendants argue that the plaintiff's statements and gestures were true threats under State v. Krijger , supra, 313 Conn. at 434, 97 A.3d 946, because "a reasonable hearer or receiver of the expressive conduct would believe [that he] was expressing a serious intent to commit an act of unlawful violence." Relying on, inter alia, Doe v. Pulaski County Special School District , 306 F.3d 616 (8th Cir. 2002), and State v. DeLoreto , 265 Conn. 145, 827 A.2d 671 (2003), the defendants contend that the plaintiff's comments and gestures are reasonably understood as a true threat, given his access to weapons and the fact that the students who witnessed them evinced their fear insofar as some stopped going to the student center, others went to the police, and, "while several of them verbally agreed to provide testimony or information at [the plaintiff's] campus disciplinary proceeding, only one showed up, and he became notably agitated and fearful, and refused to appear before the disciplinary panel when he learned [the plaintiff] would be present, leaving abruptly." The defendants argue that, although the plaintiff's threats were directed at particular individuals, including one student whom he had described as his " 'number one target,' " the nature of the threats struck more broadly because they implicated the randomness that is the "fear inducing phenomenon" of mass shootings. The defendants also contend that the record does not support the plaintiff's contention that his statements and gestures were humor, political satire, or political expression with respect to gun control, largely because he "did not make any such claims before the [university's] hearing panel, instead claiming that there was something about his personality that caused people to lie about him and his activities, and that the evidence against him was the result of a personal vendetta by a particular student to have him expelled." Ultimately, the defendants claim that the plaintiff's "words and gestures, as received by reasonable hearers or recipients, did not relate to any important public policy issue, and [the plaintiff's] manner of expression, reasonably heard as true threats, was clearly out of bounds on a college campus ." We agree with the defendants and conclude that the trial court properly found that the plaintiff's statements and gestures were true threats not protected by the first amendment. "The [f]irst [a]mendment, applicable to the [s]tates through the [f]ourteenth [a]mendment, provides that Congress shall make no law . abridging the freedom of speech. The hallmark of the protection of free speech is to allow free trade in ideas-even ideas that the overwhelming majority of people might find distasteful or discomforting.... Thus, the [f]irst [a]mendment ordinarily denies a [s]tate the power to prohibit dissemination of social, economic and political doctrine [that] a vast majority of its citizens believes to be false and fraught with evil consequence.... "The protections afforded by the [f]irst [a]mendment, however, are not absolute, and we have long recognized that the government may regulate certain categories of expression consistent with the [c]onstitution.... The [f]irst [a]mendment permits restrictions [on] the content of speech in a few limited areas, which are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality." (Internal quotation marks omitted.) State v. Krijger , supra, 313 Conn. at 448-49, 97 A.3d 946 ; see also United States v. Alvarez , 567 U.S. 709, 716, 132 S. Ct. 2537, 183 L. Ed. 2d 574 (2012) (observing that "content-based restrictions on speech have been permitted, as a general matter, only when confined to the few historic and traditional categories [of expression] long familiar to the bar," including "advocacy intended, and likely, to incite imminent lawless action," obscenity, defamation, "speech integral to criminal conduct," "so-called fighting words," child pornography, fraud, true threats, and "speech presenting some grave and imminent threat the government has the power to prevent . although a restriction under the last category is most difficult to sustain" [citation omitted; internal quotation marks omitted] ). The first amendment permits states to restrict true threats, which "encompass those statements [through which] the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals.... The speaker need not actually intend to carry out the threat. Rather, a prohibition on true threats protect[s] individuals from the fear of violence and from the disruption that fear engenders, in addition to protecting people from the possibility that the threatened violence will occur.... "Thus, we must distinguish between true threats, which, because of their lack of communicative value, are not protected by the first amendment, and those statements that seek to communicate a belief or idea, such as political hyperbole or a mere joke, which are protected.... In the context of a threat of physical violence, [w]hether a particular statement may properly be considered to be a [true] threat is governed by an objective standard-whether a reasonable person would foresee that the statement would be interpreted by those to whom the maker communicates the statement as a serious expression of intent to harm or assault.... [A]lleged threats should be considered in light of their entire factual context, including the surrounding events and reaction of the listeners." (Citations omitted; internal quotation marks omitted.) State v. Krijger , supra, 313 Conn. at 449-50, 97 A.3d 946 ; see also Virginia v. Black , 538 U.S. 343, 359-60, 123 S. Ct. 1536, 155 L. Ed. 2d 535 (2003) ; Watts v. United States , supra, 394 U.S. at 707-708, 89 S.Ct. 1399. "[T]o ensure that only serious expressions of an intention to commit an act of unlawful violence are punished, as the first amendment requires, the state [actor] must do more than demonstrate that a statement could be interpreted as a threat. When . a statement is susceptible of varying interpretations, at least one of which is nonthreatening, the proper standard to apply is whether an objective listener would readily interpret the statement as a real or true threat; nothing less is sufficient to safeguard the constitutional guarantee of freedom of expression. To meet this standard [the state actor is] required to present evidence demonstrating that a reasonable listener, familiar with the entire factual context of the defendant's statements, would be highly likely to interpret them as communicating a genuine threat of violence rather than protected expression, however offensive or repugnant." (Emphasis in original.) State v. Krijger , supra, 313 Conn. at 460, 97 A.3d 946 ; see also State v. Taupier , 330 Conn. 149, 173, 193 A.3d 1 (2018) (true threat inquiry is objectively judged from perspective of reasonable listener, and first amendment does not require speaker to have specific intent to terrorize), cert. denied, - U.S. -, 139 S. Ct. 1188, 203 L. Ed. 2d 202 (2019). Because the true threats doctrine has equal applicability in civil and criminal cases, case law from both contexts informs our inquiry. See New York ex rel. Spitzer v. Operation Rescue National , 273 F.3d 184, 196-97 (2d Cir. 2001). In determining whether the trial court properly found that the defendant's statements and gestures were true threats, we recognize that, although we ordinarily review findings of fact for clear error, "[i]n certain first amendment contexts . appellate courts are bound to apply a de novo standard of review.... [In such cases], the inquiry into the protected status of . speech is one of law, not fact.... As such, an appellate court is compelled to examine for [itself] the . statements [at] issue and the circumstances under which they [were] made to [determine] whether . they . are of a character [that] the principles of the [f]irst [a]mendment . protect.... [I]n cases raising [f]irst [a]mendment issues [the United States Supreme Court has] repeatedly held that an appellate court has an obligation to make an independent examination of the whole record in order to make sure that the judgment does not constitute a forbidden intrusion [in] the field of free expression.... This rule of independent review was forged in recognition that a [reviewing] [c]ourt's duty is not limited to the elaboration of constitutional principles . [Rather, an appellate court] must also in proper cases review the evidence to make certain that those principles have been constitutionally applied.... Therefore, even though, ordinarily . [f]indings of fact . shall not be set aside unless clearly erroneous, [appellate courts] are obliged to [perform] a fresh examination of crucial facts under the rule of independent review." (Citation omitted; internal quotation marks omitted.) State v. Krijger , supra, 313 Conn. at 446-47, 97 A.3d 946 ; see also New York Times Co. v. Sullivan , 376 U.S. 254, 284-86, 84 S. Ct. 710, 11 L. Ed. 2d 686 (1964). We emphasize, however, that "the heightened scrutiny that this court applies in first amendment cases does not authorize us to make credibility determinations regarding disputed issues of fact. Although we review de novo the trier of fact's ultimate determination that the statements at issue constituted a true threat, we accept all subsidiary credibility determinations and findings that are not clearly erroneous." State v. Krijger , supra, at 447, 97 A.3d 946 ; see id., at 447-48, 97 A.3d 946 (noting that independent review is applied to version of remarks at issue that fact finder credited). To frame our independent analysis, we note that the trial court concluded that the student witnesses' statements supported findings that the plaintiff (1) "made frequent shooting hand gestures as a form of greeting to students in the student center," (2) "with his hand in a shooting gesture, [he] aimed at students and made firing noises as they were walking through the student center," (3) "wondered aloud how many rounds he would need to shoot people at the school and referred to the fact that he had bullets at home and in his truck," (4) "showed off pictures of the guns he owned and boasted about bringing a gun to school," (5) "referred specifically and on more than one occasion to his 'shooting up the school,' " (6) "during a test of the school's alarm system stated that 'someone should really shoot up the school for real so it's not a drill,' " (7) "named as his 'number one target' a particular student in the student center," and (8) "made specific reference to a shooting at an Oregon community college where several students had been killed and wounded, stating that the Oregon shooting had 'beat us.' " Having reviewed the record, we agree with the trial court's conclusion that the totality of the plaintiff's comments and gestures would reasonably be understood to be a true threat of gun violence at the university. Although most of the plaintiff's comments were individually not an "explicit threat," that phrasing does not render them protected speech, because "rigid adherence to the literal meaning of a communication without regard to its reasonable connotations derived from its ambience would render [statutes proscribing true threats] powerless against the ingenuity of threateners who can instill in the victim's mind as clear an apprehension of impending injury by an implied menace as by a literal threat.... Thus, a determination of what a defendant actually said is just the beginning of a threats analysis. Even when words are threatening on their face, careful attention must be paid to the context in which those statements are made to determine if the words may be objectively perceived as threatening." (Citation omitted; internal quotation marks omitted.) State v. Krijger , supra, 313 Conn. at 452-53, 97 A.3d 946. Put differently, even veiled statements may be true threats. See United States v. Dillard , 795 F.3d 1191, 1200-1201 (10th Cir. 2015) (District Court incorrectly concluded that defendant's statement in letter to abortion clinic physician that "an unidentified 'someone' might place explosives under [physician's] car" was not true threat because ambiguous statement without "direct statement of personal intent" may be true threat given other factors, including local history of violence); United States v. Bly , 510 F.3d 453, 456-59 (4th Cir. 2007) (letter sent by former doctoral student was true threat to university board members and academic officers when it made demands and [1] stated that " 'bullets are far cheaper and much more decisive' " than legal action as " '[a] person with my meager means and abilities can stand at a distance of two football fields and end elements of long standing dispute with the twitch of my index finger,' " [2] stated that " 'it would be a shame to brutalize [thesis advisors] in order to guarantee that I receive a hearing of my story and a form of justice,' " and [3] enclosed "copies of firearms practice targets with bullet holes near their centers," despite disclaimer stating that " '[t]hese comments are not to be interpreted as illegal brandishing of a firearm, blackmail, or extortion' "); see also United States v. Voneida , 337 Fed. Appx. 246, 248-49 (3d Cir. 2009) (upholding jury finding that college student transmitted threatening communication in violation of 18 U.S.C. § 875 [c] when he posted, inter alia, following statements on his personal social media page two days after Virginia Tech mass shooting: [1] " 'Someday . I'll make the Virginia Tech incident look like a trip to an amusement park' "; [2] "expressed '[shock]' that after the Virginia Tech [shooting] his classmates 'were actually surprised that there are people out there who would shoot them if given the opportunity' "; [3] " 'lost my respect [for] the sanctity of human life' "; and [4] included tributes to Virginia Tech shooter as martyr, with wish that shooter's " 'undaunted and unquenched' wrath would 'sweep across the land,' " particularly given fearful reactions by multiple students at his university and elsewhere who viewed post and contacted police). Given his express statements that he had access to firearms and ammunition, the plaintiff's statements and gestures-especially when viewed in the context that they provide for each other-are within the realm of those that have been deemed true threats, especially in the contemporary context of school shootings. We find particularly illustrative the decision of the United States Court of Appeals for the Eighth Circuit in D.J.M. v. Hannibal Public School District No. 60 , 647 F.3d 754, 756-57 (8th Cir. 2011), which considered whether statements sent by a public school student to another student via instant message were true threats, rendering his suspension not a first amendment violation. In D.J.M. , the court concluded that the following statements, when viewed in their entirety, were reasonably viewed as "serious expressions of intent to harm," rather than "in jest out of teenage frustration": [1] that the student admitted "he was depressed at being rejected by a romantic interest; [2] his 'access to weapons' which made his threats 'believable'; [3] [the instant message recipient's] report that [the student] said he intended to take a gun to school to shoot everyone he hates and then himself; [4] his expressed 'desire to kill at least five classmates'; [5] his telling [the instant message recipient he] 'wanted [their town] to be known for something'; and [6] [the instant message recipient's] growing concern that caused her to contact a trusted adult about his threats." Id., at 762-63. The court rejected the student's reliance on Watts v. United States , supra, 394 U.S. at 705, 89 S.Ct. 1399, and held that a reasonable recipient would find these statements threatening-despite the fact that the immediate recipient responded humorously with "lol" -because the student had described individual targets of his threat, indicated his access to a .357 Magnum that he could borrow from a friend, and the recipient was concerned enough to tell a trusted adult, who informed school officials, later resulting in the student's suspension and inpatient psychiatric evaluation. D.J.M. v. Hannibal Public School District No. 60 , supra, at 758, 762-64. The Eighth Circuit concluded that, in "light of the [school district's] obligation to ensure the safety of its students and reasonable concerns created by shooting deaths at other schools such as [those in] Columbine and the Red Lake [Indian] Reservation . the [school district] did not violate the [f]irst [a]mendment by notifying the police about [the student's] threatening instant messages and subsequently suspending him after he was placed in juvenile detention." Id., at 764. Put most succinctly, the court emphasized that the first amendment "did not require the [school district] to wait and see whether [the student's] talk about taking a gun to school and shooting certain students would be carried out." Id. Numerous other cases support the reasonableness of concern over threats of gun violence in the educational setting because "knowledge by the target of a threat that the defendant had the means to carry out the threat can support the inference that the target would reasonably interpret the threat to be serious." (Emphasis omitted.) State v. Taupier , supra, 330 Conn. at 183, 193 A.3d 1 ; see Lovell v. Poway Unified School District , 90 F.3d 367, 372-73 (9th Cir. 1996) (concluding that "any person could reasonably consider the statement '[i]f you don't give me this schedule change, I'm going to shoot you,' made by an angry teenager [to school guidance counselor], to be a serious expression of intent to harm or assault," especially "when considered against the backdrop of increasing violence among school children today"); People v. Diomedes , 382 Ill.Dec. 712, 13 N.E.3d 125, 134-39 (Ill. App. 2014) (e-mail sent by student to anti-bullying activist, although " 'an expression of teenage despair,' " was true threat because they did not have confidential therapeutic relationship, student expressed wish for certain "specific individuals to die and suffer," student had history of making at least one prior threat, and there was no indication that statement was made in hyperbole or jest), appeal denied, 396 Ill.Dec. 180, 39 N.E.3d 1006 (Ill. 2015) ; State v. Trey M. , 186 Wash. 2d 884, 888-90, 906-907, 383 P.3d 474 (2016) (concluding that juvenile's statements to his therapist, later repeated to police officer, that he planned to take his grandfather's nine millimeter gun from a cabinet and bring it to school to shoot boys who had bullied and teased him, and if he could not get gun to use bombs, was true threat given specificity of access to weapons, fear expressed by boys who were on juvenile's "hit list," juvenile's confession to making bombs, and communication of time and location of planned shooting), cert. denied, - U.S. -, 138 S. Ct. 313, 199 L. Ed. 2d 207 (2017) ; In re A.S. , supra, 243 Wis. 2d at 182-83, 194, 626 N.W.2d 712 (juvenile's statements, made in "very matter of fact manner" while playing video games at local youth center, that he would bring guns and "do something similar" to Columbine school shooting, while sparing some classmates and killing and raping certain specified teachers and police officers, were true threats when listeners were frightened, and there was no indication in context or statements that they were "hyperbole, jest, or political dissent"); see also Feminist Majority Foundation v. Hurley , 911 F.3d 674, 691-92 (4th Cir. 2018) (rejecting university's defense in Title IX case that first amendment "circumscribed" its ability to respond to "online harassment and threats suffered" by member of campus women's organization, because threatening online messages were true threats, including those threatening to " 'euthanize,' " kill, and sexually assault organization's members "where the backdrop of the threatening messages is a campus environment purportedly conducive to sexual assault, and those messages target persons by name and location"); Walker v. Suarez , United States District Court, Docket No. 15-CV-01960 (RBJ), 2016 WL 309454 (D. Colo. January 26, 2016) (threat to shoot down helicopter was true threat when it was made against specific individual on multiple occasions and by person with "access to guns" who had purchased rifle scope on same day), appeal dismissed, United States Court of Appeals, Docket No. 16-1055 (10th Cir. May 02, 2016). The plaintiff also contends that the requisite particularity is lacking, because "[n]o one indicated a particularized fear. All concern and worry [were] generalized." We disagree. First, this argument is inconsistent with the trial court's finding that the plaintiff had in fact identified one specific student as " 'number one' " on the plaintiff's " 'hit list,' " and the statement had been communicated to that student directly. Although that student believed that the statement was made " 'jokingly,' " he nevertheless was " 'alarmed' " by it and was sufficiently concerned for everyone's safety to contact the university police. Second, this argument reads too narrowly the boilerplate proposition that a true threat is "a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals." (Emphasis added; internal quotation marks omitted.) State v. Krijger , supra, 313 Conn. at 449, 97 A.3d 946. The fear of indiscriminate and random death and injury that results from mass shootings, like Sandy Hook, Virginia Tech, and Columbine, transcends any one specific individual and is shared by any one of the many people who must frequent a public place-such as a university student union-that has been the subject of a threat. See State v. Pelella , 327 Conn. 1, 11, 16-17, 170 A.3d 647 (2017) ("[A] threat need not be imminent to constitute a constitutionally punishable true threat" because "a prohibition on true threats protect[s] individuals from the fear of violence and from the disruption that fear engenders, in addition to protecting people from the possibility that the threatened violence will occur.... Indeed, [t]hreatening speech . works directly the harms of apprehension and disruption, whether the apparent resolve proves bluster or not and whether the injury is threatened to be immediate or delayed." [Citation omitted; internal quotation marks omitted.] ). Indeed, the relative frequency of these mass shootings informs the reasonableness of viewing the plaintiff's remarks, which were apparently unmoored to political or other discourse, as true threats. See, e.g., D.J.M. v. Hannibal Public School District No. 60 , supra, 647 F.3d at 764 (noting school district's "obligation to ensure the safety of its students and reasonable concerns created by shooting deaths at other schools such as [those in] Columbine and the Red Lake [Indian] Reservation"); Doe v. Pulaski County Special School District , supra, 306 F.3d at 625-26 and n.4 (letter authored by student expressing his "wish to sodomize, rape, and kill" his ex-girlfriend was true threat justifying suspension "in the wake of Columbine and Jonesboro," rendering it "untenable" that school officials learning about the letter "would not have taken some action based on its violent and disturbing content"). It is no wonder that, especially in an educational setting, threatening statements about mass shootings are the equivalent of, "in the words of [Justice] Holmes, [a cry of] 'fire' in a crowded theater." In re A.S. , supra, 243 Wis. 2d at 194, 626 N.W.2d 712 ; see, e.g., Ponce v. Socorro Independent School District , supra, 508 F.3d at 772 ; Milo v. New York , supra, 59 F. Supp. 3d at 517 ; see also State v. Parnoff , 329 Conn. 386, 426, 186 A.3d 640 (2018) (Kahn, J. , concurring) (recognizing that, in current times, "the threat of gun violence is tasteless, shameful, and all too real"). The plaintiff argues, however, that "[n]o contemporaneous listener understood the statements to be a serious expression of an intent to cause harm," and that "[e]veryone who heard the statements understood them to be made jokingly." We disagree with the plaintiff's reading of the record. Although the narrative in the police reports that were evidence before the hearing panel indicates that some students elected to treat the plaintiff's remarks as made in jest, that narrative also indicates that some of those same students nevertheless were sufficiently perturbed to contact the university police, with one complaining witness apparently so fearful for his safety that he refused to appear as a witness at the university's disciplinary hearing. Given the objective nature of the inquiry, the listener's reaction of concern or fear need not be dramatic or immediate, and the apparently mixed emotions of the listeners are not dispositive. See D.J.M. v. Hannibal Public School District No. 60 , supra, 647 F.3d at 758, 762-63 (teenage recipient of instant message with threats responded "lol," but was also concerned enough to tell trusted adult); Lovell v. Poway Unified School District , supra, 90 F.3d at 372-73 (The court noted that a school guidance counselor had "stated repeatedly that she felt threatened" when confronted, and that "[t]he fact that she chose not to seek help instantly is not dispositive. She did report the conduct to [an assistant principal] within a few hours, before she went home that day. Exhibiting fortitude and stoicism in the interim does not vitiate the threatening nature of [the student's] conduct, or [the guidance counselor's] belief that [the student had] threatened her."); see also State v. Taupier , supra, 330 Conn. at 158-59, 191-92 (reader of e-mail containing threat to judge mentioned her concern to several people, but waited several days and gathered additional information before disclosing it to attorney for further action). To this end, we also disagree with the plaintiff's argument that his statements and gestures were ambiguous and more properly interpreted as benign jokes or political hyperbole that are protected by the first amendment, including the numerous innocent explanations that he proffers for them on a more granular basis, such as the existence of a gun emoji to justify his use of images of firearms and ammunition. These arguments reflect the plaintiff's attempts to seek shelter under the United States Supreme Court's landmark decision in Watts v. United States , supra, 394 U.S. at 706, 89 S.Ct. 1399, the leading true threats decision in which a Vietnam War protestor, after being drafted, stated at a public rally in Washington, D.C., three years after the assassination of President John F. Kennedy, that, " '[i]f they ever make me carry a rifle the first man I want to get in my sights is L.B.J.' " In concluding that this statement was political hyperbole protected by the first amendment, rather than a true threat, the Supreme Court noted the conditional nature of the statement, and that it was made at a public rally on a matter of great public concern to an audience response of laughter. Id., at 707-708, 89 S.Ct. 1399. The Supreme Court emphasized that even "vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials" should not be prohibited given the "background of a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide open ." (Internal quotation marks omitted.) Id., at 708, 89 S.Ct. 1399 ; see also State v. Krijger , supra, 313 Conn. at 450, 97 A.3d 946. Accordingly, we agree with the plaintiff-in theory-that not all references to school violence necessarily will constitute true threats unprotected by the first amendment. The plaintiff's attempt to cast the present case as one of political hyperbole and humor akin to Watts is particularly unpersuasive in light of his strategy before the trial court and university hearing tribunal. Specifically, the plaintiff expressly elected to forgo a formal bench trial by allowing the trial court to rely on the facts found during the university's disciplinary proceedings and an earlier motion hearing that had focused on certain due process issues not relevant to the present appeal. The evidence contained in that record provides virtually no factual support for his claim that his statements were political hyperbole or poorly stated satire. Compounding this is the fact that the record reveals that the plaintiff's elected strategy before the university's hearing panel consisted of (1) denying outright that he made the statements at issue, and (2) framing the university proceedings against him as a political and personal persecution, rather than defending the specific statements as artistic or political hyperbole. Put differently, the plaintiff's prior disavowal of the statements is inconsistent with his claim that they were spoken to make a political point. Accordingly, the record, although adequate for review of the plaintiff's constitutional claims, simply does not contain factual support for his argument that his statements and gestures would reasonably be understood as political hyperbole or humor, rather than a true threat. We acknowledge that "[f]reedom of speech needs breathing space to survive.... And vigilant protection of [f]irst [a]mendment rights is nowhere more vital than at public universities, which are peculiarly the marketplace of ideas.... For those reasons... policies that formally or informally suppress protected expression at public universities raise serious [f]irst [a]mendment concerns.... And while we are mindful of universities' obligations to address serious discrimination and harassment against their students, we also are attentive to the dangers of stretching policies beyond their purpose to stifle debate, enforce dogma, or punish dissent." (Citations omitted; internal quotation marks omitted.) Abbott v. Pastides , 900 F.3d 160, 179-80 (4th Cir. 2018), cert. denied, - U.S. -, 139 S. Ct. 1292, 203 L. Ed. 2d 428 (2019) ; see also Healy v. James , 408 U.S. 169, 180, 92 S. Ct. 2338, 33 L. Ed. 2d 266 (1972) ; NAACP v. Button , 371 U.S. 415, 433, 83 S. Ct. 328, 9 L. Ed. 2d 405 (1963). Nevertheless, in the absence of any facts mooring the plaintiff's statements to political or artistic hyperbole, and given his stated access to weapons and ammunition, a reasonable person hearing the plaintiff's statements and viewing his gestures at a school in the same state as Sandy Hook would be more than justified in understanding his statements as a physical threat to the "great bazaars of ideas" themselves. (Internal quotation marks omitted.) Doe v. Rector & Visitors of George Mason University , 149 F. Supp. 3d 602, 627 (E.D. Va. 2016). Accordingly, we conclude that the trial court correctly determined that the plaintiff's statements were true threats that were not protected by the first amendment. The judgment is affirmed. In this opinion the other justices concurred. Schenck v. United States , 249 U.S. 47, 52, 39 S. Ct. 247, 63 L. Ed. 470 (1919). The plaintiff appealed from the judgment of the trial court to the Appellate Court, and we transferred the appeal to this court pursuant to General Statutes § 51-199 (c) and Practice Book § 65-1. At the time of the events underlying the present appeal, Tordenti was vice president for student affairs, Hernández was the associate dean for student affairs, Dukes was the director of student conduct, and Samuda was a detective employed by the university police department. The trial court did not receive evidence or hear arguments during a formal bench trial in the present case. Instead, with the agreement of the parties, the trial court found facts on the basis of the record of the university's disciplinary proceedings and certain testimony from the plaintiff and Dukes at a pretrial hearing held before the court on August 8, 2016. See footnote 17 of this opinion and accompanying text. The trial court stated that it "consider[ed] the prosecutor's declination of little moment. The requirements for establishing probable cause for the elements of threatening in the second degree, in violation of § 53a-62, bear no necessary relationship to the requirements for taking disciplinary action for a violation of the [university's student code of conduct]." In addition to his expulsion from the university, the plaintiff was also "permanently banned from returning to," or attending events on, the premises of the other three four year university campuses in the Connecticut State College and University system. Specifically, the plaintiff appealed from the hearing panel's decision to Tordenti, the university's vice president for student affairs, who, in turn, assigned Hernández to hear the appeal. After a hearing, Hernández issued a decision rejecting the plaintiff's claims that the hearing did not comply with the university's student code of conduct and that "the sanction of [e]xpulsion . was not appropriate ." See footnotes 4 and 17 of this opinion. We note that, on appeal, the plaintiff does not challenge the trial court's determinations that the university's "disciplinary procedures did not violate [his] due process rights under either the federal or state constitution and [that the university] adhered to the disciplinary procedures prescribed by the [university's student code of conduct]," and, therefore, no breach of contract or the duty of good faith and fair dealing occurred in that respect. A detailed listing of the statements and gestures that the trial court determined were a true threat is set forth in the text accompanying footnote 14 of this opinion. On November 16, 2018, after the oral argument in the present appeal, we invited numerous organizations and institutions, namely, the American Civil Liberties Union of Connecticut, the Connecticut Conference of Independent Colleges, the University of Connecticut, several sections of the Connecticut Bar Association, Yale University, and the Connecticut Association of Boards of Education, to file briefs as amici curiae. Only the Connecticut Association of Boards of Education accepted our invitation, and we are grateful for its participation. We note that the plaintiff, although attempting to reserve and "not [waive]" the right to do so, has specifically declined to brief a claim, in accordance with State v. Geisler , 222 Conn. 672, 610 A.2d 1225 (1992), that his speech is entitled to greater protection under article first, § 4, 5 and 14, of the Connecticut constitution. This absence was based on the "good faith" belief of his counsel that, because "the established federal standard is clearly dispositive on this factual record . this case does not provide occasion to define any daylight between the state and federal constitutions on the issue of true threats." Consistent with his attempted reservation, but inconsistent with his no "daylight" assertion, the plaintiff's reply brief raises a claim that, under the state constitution, the speaker must have the specific intent to speak threateningly for a statement to be a true threat, which he casts as a response to an issue that the defendants "pressed" in their brief. As is reflected in our April 4, 2018 order granting the defendants' motion to strike the corresponding pages of the plaintiff's reply brief, we decline to countenance this approach, which violates the well settled principle that claims may not be raised for the first time in a reply brief. See, e.g., Isabella D. v. Dept. of Children & Families , 320 Conn. 215, 236 n.19, 128 A.3d 916, cert. denied, - U.S. -, 137 S. Ct. 181, 196 L. Ed. 2d 124 (2016) ; see also Bennett v. New Milford Hospital, Inc. , 300 Conn. 1, 32-33, 12 A.3d 865 (2011) (declining to consider claim that statute violates separation of powers provision under state constitution because it was unpreserved and raised for first time under State v. Golding , 213 Conn. 233, 239-40, 567 A.2d 823 [1989], in reply brief). Beyond this procedural bar to review of the plaintiff's state constitutional claim, we recently rejected its merits in State v. Taupier , 330 Conn. 149, 193 A.3d 1 (2018), cert. denied, - U.S. -, 139 S. Ct. 1188, 203 L. Ed. 2d 202 (2019), in which we concluded that neither the federal nor the state constitution require the speaker to have the specific intent to threaten in order for a statement to be deemed an unprotected true threat. See id., at 173-74, 193 A.3d 1 (joining those federal courts that have concluded that true threat under first amendment does not require proof of specific intent); id., at 174-76, 193 A.3d 1 (concluding after Geisler analysis that true threat under state constitution does not require proof of specific intent). It is undisputed that, given its status as a public institution of higher education, the university's enforcement of its student code of conduct via the commencement of disciplinary proceedings against the plaintiff constituted state action for purposes of the first amendment. See, e.g., IOTA XI Chapter of Sigma Chi Fraternity v. George Mason University , 993 F.2d 386, 393 (4th Cir. 1993) ; see also Furumoto v. Lyman , 362 F. Supp. 1267, 1276-80 (N.D. Cal. 1973) (citing cases and rejecting argument that state benefits and regulation of Stanford University rendered it arm of state for purposes of action under 42 U.S.C. § 1983 claiming that disciplinary action violated students' first amendment rights). We note that the multiple statements and gestures made at different times in this case differ from those in our previous true threat cases, which considered the import of statements or gestures made in the course of a single incident. See, e.g., State v. Taupier , supra, 330 Conn. at 156-57, 193 A.3d 1 (single e-mail to judge containing multiple threatening statements); State v. Pelella , 327 Conn. 1, 4, 170 A.3d 647 (2017) (single threat made during domestic dispute between brothers); State v. Krijger , supra, 313 Conn. at 439-41, 97 A.3d 946 (single in-person reference to injuries previously suffered by listener's son made during angry altercation); State v. Cook , 287 Conn. 237, 240-41, 947 A.2d 307 (threat with table leg), cert. denied, 555 U.S. 970, 129 S. Ct. 464, 172 L. Ed. 2d 328 (2008) ; State v. DeLoreto , supra, 265 Conn. at 156-58, 827 A.2d 671 (statements to police officers on separate occasions formed independent bases for multiple charges). In contrast to these cases, the present case largely turns on the sum of the parts of the plaintiff's statements and gestures made over a relatively extended period of time. We note that the abbreviation " 'lol' means the speaker is 'laughing out loud.' " D.J.M. v. Hannibal Public School District No. 60 , supra, 647 F.3d at 758. Consistent with Watts , our research reveals that not every reference to the topics of violence or shootings in the school setting-even the troubling and offensive ones-will rise to the level of a true threat. Some references are, for example, overtly political speech. See Ross v. Jackson , 897 F.3d 916, 918, 922 n.7 (8th Cir. 2018) (gun control advocate did not commit true threat by asking, " '[w ]hich one do I need to shoot up a kindergarten ' " on Facebook meme with numerous pictures of firearms and their proffered uses because comment "directly paralleled the language of the meme" and "was in the form of a rhetorical question, which identified no school where a shooting would happen" [emphasis added] ). Other school violence references, while disturbing, are made in creative or artistic contexts that lack other indicia of a true threat. See, e.g., In re George T. , 33 Cal. 4th 620, 624, 635-38, 93 P.3d 1007, 16 Cal. Rptr. 3d 61 (2004) (poem authored by high school student in honors English class "labeled 'Dark Poetry,' which recites in part, 'I am Dark, Destructive, & Dangerous. I slap on my face of happiness but inside I am evil!! For I can be the next kid to bring guns to kill students at school. So parents watch your children cuz I'm BACK!!' " was not criminal threat because context provided no indicia of threat, such as animosity between author and fellow student to whom he gave poem, or other "threatening gestures or mannerisms"); In re Douglas D. , 243 Wis. 2d 204, 213-14, 234-35, 626 N.W.2d 725 (2001) (noting that thirteen year old boy's story depicting teacher's death was not true threat when it was phrased in third person, contained "hyperbole and attempts at jest," and was written in "the context of a creative writing class," and opining that case would be different if boy had "penned the same story in a math class, for example, where such a tale likely would be grossly outside the scope of his assigned work"). Beyond artistic and political statements utilizing the imagery of mass shootings and violence, some references are just sophomoric attempts at humor-which, as the plaintiff points out, are protected as "[d]istasteful and even highly offensive communication does not necessarily fall from [f]irst [a]mendment protection as a true threat simply because of its objectionable nature." J.S. v. Bethlehem Area School District , 569 Pa. 638, 659, 807 A.2d 847 (2002) ; see also Burge v. Colton School District 53 , 100 F. Supp. 3d 1057, 1060, 1069 (D. Or. 2015) (eighth grade student's comment on Facebook page, that " 'haha [teacher] needs to be shot,' " was not true threat because settings were not visible to school faculty or staff, and were understood by "audience as critique of [teacher's] skills and not the serious expression of intent to harm her," and because there was no evidence of access to weapons or history of violence); Murakowski v. University of Delaware , 575 F. Supp. 2d 571, 590-92 (D. Del. 2008) (college student's "racist, sexist, homophobic, insensitive, degrading [online writings that] contain graphic descriptions of violent behavior," such as raping and murdering women "like '[O.J.] Simpson' and kill[ing] through his black gloves," were not true threats because, although they were "sophomoric, immature, crude and highly offensive in an alleged misguided attempt at humor or parody," they were not directed to "specific individuals, a particular group or even to women on . campus," and were visible on a public website for more than one year); State v. Metzinger , 456 S.W.3d 84, 96-97 (Mo. App. 2015) (tweets about sending pressure cookers to Boston and references to Boston Marathon bombing were "tasteless and offensive" but not true threats when context, including hashtags about 2013 World Series and St. Louis Cardinals, "reveal that they were made in the context of [a] sports rivalry, an area often subject to impassioned language and hyperbole"); C.G.M., II v. Juvenile Officer , 258 S.W.3d 879, 880-83 (Mo. App. 2008) (twelve year old juvenile's statement to friend that " 'he may get dynamite from his dad for his birthday' " and asking if he " 'wanted to help him blow up the school' " was not true threat when friend did not fear that threat would be carried out or that juvenile would get dynamite for his birthday, principal did not learn of statement until five months later, and had no concerns about safety); J.S. v. Bethlehem Area School District , supra, at 657-59, 807 A.2d 847 (applying Watts and concluding that middle school student's posting on his " 'Teacher Sux' " web page, which asked "why [the teacher] should die, show[ing] a picture of [the teacher's] head severed from her body and solicit[ed] funds for a hitman," was not true threat but, instead, was "sophomoric [and] degrading" humor when considered in "full context," including comedic and profane references, comparison of teacher to Adolf Hitler, lack of forwarding address for solicitation of "$20 to help pay for the hitman," humorous reaction of viewers, absence of direct communication to teacher, inaction by school officials for "extended time period," and lack of any reason to believe that student had ability to carry out threats). At the on-the-record status conference, which the trial court had convened for scheduling purposes in order to expedite a decision in this matter before the spring semester, the parties confirmed that, in light of the plaintiff's withdrawal of his monetary claims against the state, there was no additional evidence for the court to hear subsequent to the hearing on the plaintiff's motion for a preliminary injunction. Counsel for both parties confirmed that summary judgment was not appropriate given factual issues relevant to the due process claim, but also agreed that there were no outstanding factual issues with respect to the first amendment claim, which the plaintiff's attorney argued "remains clear ." The parties then agreed with the trial court's determination that "the record is closed, as far as evidence is concerned," and that they "believe that they have adequately briefed the legal issues and essentially [are] waiting for a decision ." Specifically, the plaintiff repeatedly denied making the statements at issue in this case, arguing that the accusations against him were "entirely false." The plaintiff repeatedly stated his willingness to wear a body camera on campus, consistent with the "multiple cameras" that he keeps in one of his vehicles, as a result of vendettas and false statements that had been made against him by officers with multiple police departments, which he believed were the politically motivated result of the "flying gun that I had created at my house over the summer." With respect to the specific allegations, Dukes stated that, during his investigation, the plaintiff had acknowledged having shown digital pictures of bullets to persons on campus and having discussed keeping ammunition inside of a vehicle, but denied making hand gestures in the form of a gun, having a "hit list," or referring to "anyone being his number one target." The plaintiff also stated during the investigation that one of the complaining students made up the allegations in an attempt to have him expelled from school. The plaintiff declined to question Dukes during the hearing. During his own statement to the hearing panel, the plaintiff acknowledged having taken a picture of a bullet in one of his vehicles and explained that it was the result of having to search that vehicle for knives and ammunition to ensure compliance with university rules. The plaintiff denied making the shooting gestures with his hand, except for a "few occasions" on which one other student made them "in reply to me or has initiated [similar gestures] with me because I'm always talking about guns ." The plaintiff stated that his remarks about the Oregon shooting were not that "they won or anything like that" but "essentially" that "the Oregon shooting's going to be the one discussed in the media because it was a larger shooting than Newtown." The plaintiff then denied saying that he "should shoot up the school" during testing of the school alarm system, stating that "I had not said anything to that effect. What I had said is imagine if there was an actual emergency where they needed to do it or have used it for real at this time because, you know, it's already being used. So if you had to use it for some reason, not suggesting that there would be any reason, but if you had to use it for some reason, how would you go about communicating the emergency." The plaintiff then stated that he showed off the picture of the bullet because he's "very political" and wanted to make the point that gun control legislation had the absurd result of requiring his expulsion for having ammunition in the vehicle, even if he had nothing with which to fire it. Finally, the plaintiff argued that he viewed one complainant's allegations as politically motivated given what the plaintiff had thought was friendly "political banter" in the student center about topics such as gun control or health care. We acknowledge the plaintiff's argument that, "[r]eviewing the record as a whole, other statements [therein] indicate the statements were a joke." He cites his "quippish slip [during his opening statement to the hearing panel] comparing the president of the association of schools to a kind of monarch," as a "faux slipup [that] evinces the nuanced intellectual basis for his humor, the libertarian ben[t] that is the motive for the humor, and his dry delivery." This is consistent with the plaintiff's other argument that his statements were akin to Lenny Bruce's satiric observations, insofar as guns were one of his hobbies, he was "politically minded" and always up for a debate on political topics, including the right to bear arms, and had "found the bullets discussed in his vehicle while cleaning it out to comply with school rules" and "showed a picture of a bullet as part of a thoughtful meditation on the substance of gun rights ." The plaintiff further argues that this sense of humor was "consistent with statements [that his father] made to police," noting that the plaintiff was "knowledgeable about many things and guns in particular" but had to be counseled " 'about saying the appropriate things during conversation.' " Although this evidence might well bear on the plaintiff's subjective intent in making the statements at issue, the trial court aptly noted that such evidence is immaterial, insofar as whether the statements constituted a true threat is an objective inquiry not requiring evidence of intent to threaten. See State v. Taupier , supra, 330 Conn. at 173, 193 A.3d 1. We emphasize that our true threat analysis in the present case is limited to this record as reflected by the lower burden of proof in civil cases, and, consistent with the decision of the state's attorney not to prosecute in this case; see footnote 5 of this opinion; we take no position on whether the facts of the present case would have provided a sufficient basis for criminal liability under several potentially applicable statutes; see, e.g., State v. Taupier , supra, 330 Conn. at 154, 193 A.3d 1 ; particularly given the much higher burden of proof in criminal cases. See In re George T. , 33 Cal. 4th 620, 639, 93 P.3d 1007, 16 Cal. Rptr. 3d 61 (2004) ("[A] [m]inor's reference to school shootings and his dissemination of his poem in close proximity to the Santee school shooting no doubt reasonably heightened the school's concern that [the] minor might emulate the actions of previous school shooters. Certainly, school personnel were amply justified in taking action following [a fellow student's] e-mail and telephone conversation with her English teacher, but that is not the issue before us. We decide . only that [the] minor's poem did not constitute a criminal threat."). Some prominent commentators are concerned that "[c]urrent college students are often ambivalent, or even hostile, to the idea of free speech on campus," and have expressed "surprise" about "how much the students wanted campuses to stop offensive speech and trusted campus officials to have the power to do so. A 2015 survey by the Pew Research Institute [indicated] that four in ten college students believe that the government should be able to prevent people from publicly making statements that are offensive to minority groups. The most recent studies demonstrate that students continue to wrestle with how best to value free speech and inclusivity, with more than half of students valuing diversity and inclusivity above free speech, more than half supporting bans on hate speech, and almost a third supporting restrictions on offensive speech." (Footnote omitted.) E. Chemerinsky, "The Challenge of Free Speech on Campus," 61 Howard L.J. 585, 588 (2018) ; see also, e.g., M. Papandrea, "The Free Speech Rights of University Students," 101 Minn. L. Rev. 1801, 1803 (2017) (Rejecting application of government speech doctrine with respect to student speech because, "[a]though it should be clear that students, particularly college and university students, do not speak for the university, institutions of higher education are increasingly caving to various constituencies inside and outside of the university who believe that they do. Rather than appreciating the traditional role of the university as the quintessential marketplace of ideas, students, alumni, and the public frequently appear to believe that whenever a school tolerates offensive speech, the university is endorsing those viewpoints."). Given this significant debate with respect to the vitality of freedom of speech on twenty-first century college campuses, it is understandable that the plaintiff attempts to frame his statements and gestures as those of a provocateur arguing in support of the right to bear arms, with his expulsion the result of offending the sensibilities of the university's snowflakes. See Doe v. Rector & Visitors of George Mason University , 149 F. Supp. 3d 602, 627 (E.D. Va. 2016) ("In short, controversial and sometimes offensive ideas and viewpoints are central to the educational mission of universities. It follows that university students cannot thrive without a certain thickness of skin that allows them to engage with expressions that might cause distress or discomfort . The coddling of the nation's young adults by proscribing any expression on a university campus that is likely to be distressing or discomforting does not protect the work . of the school; such rules frustrate the mission of the university." [Emphasis in original; internal quotation marks omitted.] ). The record of the present case is, however, squarely devoid of any evidence supporting that interpretation of the facts and, instead, supports the finding that the plaintiff's conduct was, in fact, reasonably interpreted as a true threat. See also footnotes 17 and 18 of this opinion and accompanying text. We note that the material and substantial disruption of school activities standard articulated in Tinker v. Des Moines Independent Community School District , 393 U.S. 503, 513, 89 S. Ct. 733, 21 L. Ed. 2d 731 (1969), has been used, in connection with the physical safety analysis of the more recent "BONG HiTS 4 JESUS" case; Morse v. Frederick , 551 U.S. 393, 397, 407-408, 127 S. Ct. 2618, 168 L. Ed. 2d 290 (2007) ; to permit administrative response to threats in both public universities and high schools without running afoul of the first amendment, even without consideration of whether those threatening statements rise to the level of true threats. See, e.g., Ponce v. Socorro Independent School District , supra, 508 F.3d at 772 ("[W]hen a student threatens violence against a student body, his words are as much beyond the constitutional pale as yelling 'fire' in crowded theater . and such specific threatening speech to a school or its population is unprotected by the [f]irst [a]mendment. School administrators must be permitted to react quickly and decisively to address a threat of physical violence against their students, without worrying that they will have to face years of litigation second-guessing their judgment as to whether the threat posed a real risk of substantial disturbance." [Citation omitted.] ); Wisniewski v. Board of Education , 494 F.3d 34, 38 (2d Cir. 2007) ("Although some courts have assessed a student's statements concerning the killing of a school official or a fellow student against the 'true threat' standard of Watts . we think that school officials have significantly broader authority to sanction student speech than the Watts standard allows. With respect to school officials' authority to discipline a student's expression reasonably understood as urging violent conduct, we think the appropriate [f]irst [a]mendment standard is the one set forth by the Supreme Court in Tinker ." [Citations omitted.] ), cert. denied, 552 U.S. 1296, 128 S. Ct. 1741, 170 L. Ed. 2d 540 (2008) ; Doe v. Rector & Visitors of George Mason University , 132 F. Supp. 3d 712, 729-30 (E.D. Va. 2015) (after concluding that speaker's threat to shoot himself was not true threat because it did not threaten harm to his ex-girlfriend or "to anyone else besides" himself, court permitted additional discovery and deferred consideration of claim pending development of record regarding whether text message at issue originated on or off campus, and whether university interests as expressed in code of conduct justified expelling student); J.S. v. Bethlehem Area School District , 569 Pa. 638, 673-75, 807 A.2d 847 (2002) (concluding that offensive student website, although not true threat, caused "actual and substantial disruption of the work of the school," thus permitting school to impose disciplinary action pursuant to Tinker ). The defendants' brief and oral argument before this court initially suggested that they asked us to apply the Tinker standard in a college setting, which presents a significant question of constitutional law given some potentially unclear language and quotations of Tinker in, among other cases, Healy v. James , supra, 408 U.S. at 189, 92 S.Ct. 2338. See Tatro v. University of Minnesota , 816 N.W.2d 509, 519 n.5 (Minn. 2012) (declining to consider issue but noting that "controversy exists over whether the free speech standards that developed in K-12 school cases apply in the university setting"); K. Sarabyn, "The Twenty-Sixth Amendment: Resolving the Federal Circuit Split over College Students' First Amendment Rights," 14 Tex. J. C.L. & C.R. 27, 32 (2008) (discussing circuit split and arguing that twenty-sixth amendment to United States constitution instituted "age-based bright line" for full citizenship for eighteen year olds that "creates, for the purposes of free speech, a corresponding bright line between primary and secondary schools on the one hand, and universities on the other"); compare McCauley v. University of the Virgin Islands , 618 F.3d 232, 247 (3d Cir. 2010) ("Public universities have significantly less leeway in regulating student speech than public elementary or high schools. Admittedly, it is difficult to explain how this principle should be applied in practice and it is unlikely that any broad categorical rules will emerge from its application. At a minimum, the teachings of Tinker . and other decisions involving speech in public elementary and high schools, cannot be taken as gospel in cases involving public universities."), with Yeasin v. Durham , 719 Fed. Appx. 844, 852 (10th Cir. 2018) (observing that language from Healy "suggests that the Supreme Court believes that [Tinker 's material and substantial disruption] test applies in the university setting"), and Ward v. Polite , 667 F.3d 727, 733-34 (6th Cir. 2012) (suggesting that such standards can account in practice for differing levels of maturity between college and public school students). Having concluded that the trial court correctly determined that the plaintiff's statements and gestures were a true threat, we leave this issue to another day, particularly given the defendants' subsequent clarification at oral argument that they cited Healy in their brief only for the proposition that the college setting is a unique part of the factual "constellation" that informs whether the plaintiff's statements may be objectively understood to be a true threat.

12497673

WELLS FARGO BANK, N.A. v. Eric VOLLENWEIDER et al.

Wells Fargo Bank, N.A. v. Vollenweider

2018-07-17

AC 39642

549

549

187 A.3d 549

187

West's Atlantic Reporter, Third Series

Connecticut Appellate Court

Connecticut

2021-08-27T20:57:32.687249+00:00

Fastcase

WELLS FARGO BANK, N.A. v. Eric VOLLENWEIDER et al.

WELLS FARGO BANK, N.A. v. Eric VOLLENWEIDER et al. AC 39642 Appellate Court of Connecticut. Argued May 31, 2018 Officially released July 17, 2018

43

249

Per Curiam. The judgment is affirmed and the case is remanded for the purpose of setting new law days.

12497672

Vance JOHNSON v. COMMISSIONER OF CORRECTION

Johnson v. Comm'r of Corr.

2018-05-01

AC 39946

543

548

187 A.3d 543

187

West's Atlantic Reporter, Third Series

Connecticut Appellate Court

Connecticut

2021-08-27T20:57:32.687249+00:00

Fastcase

DiPentima, C.J., and Bright and Flynn, Js.

Vance JOHNSON v. COMMISSIONER OF CORRECTION

Vance JOHNSON v. COMMISSIONER OF CORRECTION AC 39946 Appellate Court of Connecticut. Argued March 5, 2018 Officially released May 1, 2018 Kinga A. Kostaniak, assigned counsel, for the appellant (petitioner). Nancy L. Chupak, senior assistant state's attorney, with whom, on the brief, was Gail P. Hardy, state's attorney, for the appellee (respondent). DiPentima, C.J., and Bright and Flynn, Js.

2632

16469

BRIGHT, J. The petitioner, Vance Johnson, appeals following the denial of his petition for certification to appeal from the judgment of the habeas court dismissing his seventh petition for a writ of habeas corpus. In his habeas petition, the petitioner alleged that his conviction is illegal because he did not understand, due to his compromised mental state, what was occurring when he pleaded guilty to one charge and then proceeded to trial on a second charge. The habeas court sua sponte dismissed the petition because it raised the same ground as two prior petitions that had been denied, and it failed to state new facts or to proffer new evidence not reasonably available at the time of the prior petitions. On appeal, the petitioner claims that the habeas court abused its discretion in denying the petition for certification to appeal because he has a meritorious claim that his prior habeas counsel was ineffective. The respondent, the Commissioner of Correction, argues that the issue raised on appeal is not reviewable because the petitioner did not raise it in his habeas petition or in his petition for certification. We agree and, therefore, dismiss the appeal. The following facts and procedural history are relevant to our review. "On August 29, 1994, the petitioner was charged with murder in violation of General Statutes (Rev. to 1993) § 53a-54a and with criminal possession of a firearm in violation of General Statutes (Rev. to 1993) § 53a-217. On December 9, 1996, the petitioner pleaded guilty to the charge of criminal possession of a firearm and received a sentence of five years incarceration in the custody of the respondent. At a subsequent jury trial, in which he was represented by [Attorney] Fred DeCaprio (trial counsel), the petitioner was convicted of murder and sentenced to sixty years incarceration, to run concurrently with the sentence on the firearm charge for a total effective sentence of sixty years of imprisonment. The petitioner's murder conviction was affirmed on direct appeal in State v. Johnson , 53 Conn. App. 476, 733 A.2d 852, cert. denied, 249 Conn. 929, 733 A.2d 849 (1999)." Johnson v. Commissioner of Correction , 168 Conn. App. 294, 296, 145 A.3d 416, cert. denied, 323 Conn. 937, 151 A.3d 385 (2016). Although the current appeal concerns the petitioner's seventh habeas corpus petition, the history regarding the fifth and sixth petitions is relevant to provide the necessary context to this appeal. "On March 21, 2011, the petitioner, represented by Laljeebhai R. Patel (fourth habeas counsel), filed a fifth habeas petition, alleging that his second habeas counsel provided ineffective assistance by failing to allege in the second habeas action that his first habeas counsel rendered ineffective assistance for failing to allege that trial counsel was ineffective 'at the petitioner's plea on the weapons charge and at the murder trial for failing to investigate . the [petitioner's] incompetence at plea and trial' and 'failing to present the claim of the petitioner's incompetence at plea and at trial.' Following the testimony of trial counsel, first habeas counsel and second habeas counsel, the fifth habeas court denied the petition for a writ of habeas corpus, finding the petitioner's claim that his trial counsel had provided ineffective assistance meritless as 'there had never been "a question in anyone's mind" as to the petitioner's competency at the time of his trial.' Johnson v. Commissioner of Correction , 144 Conn. App. 365, 368, 73 A.3d 776, cert. denied, 310 Conn. 918, 76 A.3d 633 (2013). The fifth habeas court further determined that ' "there is no possibility . that [the petitioner] was incompetent. There isn't even a hint of it." ' Id. "The petitioner filed a petition for certification to appeal from that decision, which the fifth habeas court granted. Id., at 369, 73 A.3d 776. On appeal, this court noted that the claims in the fifth petition 'were based upon . trial counsel's alleged failure to request a competency examination pursuant to General Statutes § 54-56d and the failure of [the petitioner's] two prior habeas attorneys to allege ineffectiveness by their predecessors in prior trial and habeas corpus proceedings.' . Id., at 367-68, 73 A.3d 776. We affirmed the fifth habeas court's conclusion that the petitioner failed to prove that his trial counsel rendered ineffective assistance. Id., at 371, 73 A.3d 776. We further affirmed the judgment in regard to the claims against the first and second habeas counsel because, as a result of the determination that '[trial counsel] did not render ineffective assistance in failing to request a competency evaluation,' the petitioner could not as a matter of law prove prejudice resulting from the first and second habeas counsel's alleged failure to raise a claim against trial counsel on that ground. Id., at 369, 73 A.3d 776 n.2. Our Supreme Court denied the petitioner's petition for certification to appeal from this court's judgment. Johnson v. Commissioner of Correction , 310 Conn. 918, 76 A.3d 633 (2013). "On July 22, 2013, the self-represented petitioner filed a sixth habeas petition . On November 14, 2014, the petitioner filed [another] amended petition (sixth petition), claiming ineffective assistance of the first, second, third, and fourth habeas counsel for failing to allege in their respective prior habeas petitions that trial counsel was ineffective for failing to file a motion for competency evaluation pursuant to § 54-56d at or before the time of the petitioner's plea on the firearm charge, at or before sentencing on the firearms charge, at or before the jury trial for murder, at or before sentencing on the murder conviction, and after sentencing for murder for discovery of evidence that trial counsel failed to investigate by way of petition for a new trial." (Footnote omitted.) Johnson v. Commissioner of Correction , supra, 168 Conn. App. at 299-301, 145 A.3d 416. The habeas court dismissed the sixth petition in its entirety on the ground of res judicata. This court affirmed the decision of the habeas corpus holding that the claims as to first and second habeas counsel were precluded by res judicata, the claims as to third habeas counsel were barred by collateral estoppel, and the claim as to fourth habeas counsel failed to state a claim upon which relief could be granted. Id., at 308, 312-13, 145 A.3d 416. On October 20, 2016, the petitioner filed his seventh habeas corpus petition, which is the subject of this appeal. In his petition, the petitioner claimed that he did not understand the criminal trial proceedings in court, was confused due to his mental state, and felt that the circumstances of his mental condition at the time of his criminal proceedings should have been taken into consideration, but were disregarded by the trial court. The petitioner requested that he be released or that his sentence be modified. On November 15, 2016, before counsel had been appointed to represent the petitioner, the court, Oliver, J. , sua sponte, rendered a judgment dismissing the petition pursuant to Practice Book § 23-29 (3) because it presents "the same ground, challenging his competency at the time of the underlying trial, as two prior petitions previously denied (his fourth and fifth of six prior petitions) and fails to state new facts or to proffer new evidence not reasonably available at the time of the prior petition." The petitioner filed a petition for certification to appeal on November 29, 2016, which the habeas court denied on December 6, 2016. The petition for certification identified three grounds for appeal: (1) whether the habeas court erred in dismissing the petition when the petition raised the new ground that the petitioner was incompetent to stand trial; (2) whether the habeas court erred in dismissing the petition without taking into consideration the standard set forth in Haines v. Kerner , 404 U.S. 519, 92 S.Ct. 594, 30 L.Ed. 2d 652 (1972), for interpreting pro se complaints; and (3) whether the court erred in not allowing the petitioner to present new facts in support of his claim that he was incompetent at the time of his criminal trial. In his application for waiver of fees and costs, which the petitioner incorporated by reference into his petition for certification, the petitioner identified his proposed grounds for appeal as follows: "The petitioner never raised the issue that the trial court disregarded his psychological condition. All prior petitions [have] been raised on ineffective assistance of counsel." (Emphasis in original.) The petitioner also noted that he attached a report of a doctor in support of his claim. Additional facts will be set forth as necessary. We begin with the standard of review. "Faced with a habeas court's denial of a petition for certification to appeal, a petitioner can obtain appellate review of the dismissal of his petition for habeas corpus only by satisfying the two-pronged test enunciated by our Supreme Court in Simms v. Warden , 229 Conn. 178, 640 A.2d 601 (1994), and adopted in Simms v. Warden , 230 Conn. 608, 612, 646 A.2d 126 (1994). First, [the petitioner] must demonstrate that the denial of his petition for certification constituted an abuse of discretion. . Second, if the petitioner can show an abuse of discretion, he must then prove that the decision of the habeas court should be reversed on the merits. . To prove that the denial of his petition for certification to appeal constituted an abuse of discretion, the petitioner must demonstrate that the [resolution of the underlying claim involves issues that] are debatable among jurists of reason; that a court could resolve the issues [in a different manner]; or that the questions are adequate to deserve encouragement to proceed further. . "In determining whether the habeas court abused its discretion in denying the petitioner's request for certification, we necessarily must consider the merits of the petitioner's underlying claims to determine whether the habeas court reasonably determined that the petitioner's appeal was frivolous. In other words, we review the petitioner's substantive claims for the purpose of ascertaining whether those claims satisfy one or more of the three criteria . adopted by [our Supreme Court] for determining the propriety of the habeas court's denial of the petition for certification." (Citations omitted; internal quotation marks omitted.) Sanders v. Commissioner of Correction , 169 Conn. App. 813, 821-22, 153 A.3d 8 (2016), cert. denied, 325 Conn. 904, 156 A.3d 536 (2017). We review, however, only the merits of the claims specifically set forth in the petition for certification. "This court has declined to review issues in a petitioner's habeas appeal in situations where the habeas court denied certification to appeal and the issues on appeal had not been raised in the petition for certification. See, e.g., Blake v. Commissioner of Correction , 150 Conn. App. 692, 696-97, 91 A.3d 535, cert. denied, 312 Conn. 923, 94 A.3d 1202 (2014). A habeas petitioner cannot establish that the habeas court abused its discretion in denying certification on issues that were not raised in the petition for certification to appeal. "In Stenner v. Commissioner of Correction , 144 Conn. App. 371, 373, 71 A.3d 693, cert. denied, 310 Conn. 918, 76 A.3d 633 (2013), this court declined to review the petitioner's claim that the habeas court abused its discretion in denying his petition for certification to appeal. The petitioner in Stenner argued on appeal that the habeas court abused its discretion in denying his petition for certification because his trial counsel rendered ineffective assistance. Id., at 374, 71 A.3d 693. The petitioner's application for waiver of fees, costs and expenses and appointment of counsel on appeal, however, cited ' "[c]onfrontation [clause] violated pursuant to 6th amendment' " as his ground for appeal. Id. The court in Stenner concluded that the petitioner could not demonstrate that the habeas court had abused its discretion in denying the certification petition on the basis of issues that were not actually raised in the petition for certification to appeal. Id., at 374-75, 71 A.3d 693. "The petitioner in Campbell v. Commissioner of Correction , 132 Conn. App. 263, 31 A.3d 1182 (2011), similarly failed to raise the claims that he alleged on appeal in his petition for certification, and so the court declined to afford them appellate review and dismissed his appeal. In that case, '[t]he petitioner's petition for certification to appeal cited "[s]entencing procedures" as the basis for which he sought review. The petition did not include [the] claims [raised on appeal] relating to the court's dismissal of habeas counsel's motion to withdraw, or any claims regarding ineffective assistance of counsel or conflict of interest.' Id., at 267, 31 A.3d 1182. This court determined that '[u]nder such circumstances, the petition for certification to appeal could not have apprised the habeas court that the petitioner was seeking certification to appeal based on such issues. . A review of such claims would amount to an ambuscade of the [habeas] judge.' . Id." (Citation omitted.) Kowalyshyn v. Commissioner of Correction , 155 Conn. App. 384, 390, 109 A.3d 963, cert. denied, 316 Conn. 909, 111 A.3d 883 (2015). In the present case, the issues identified by the petitioner in his petition for certification all relate to his claim that he was not competent to stand trial. He claimed that the court erred in dismissing his petition because the issue of his competency was never addressed in his prior petitions and because he has new facts to present regarding his claim. The petitioner further distinguished his claim in this petition from his prior petitions by arguing that his prior petitions all related to ineffective assistance of counsel, not to the trial court's disregard of his psychological condition. On appeal, the petitioner does not address the issues set forth in the petition for certification. Instead, he argues that the trial court abused its discretion when it denied his petition for certification because he has a viable claim that he was denied the effective assistance of counsel in connection with his sixth habeas petition. In fact, the petitioner's statement of issues in his appellate brief identifies the only substantive issue as: "Did the habeas court improperly conclude that the petitioner received effective assistance of habeas counsels and trial counsel." The problem for the petitioner is that the habeas court never reached such a conclusion, and the petitioner did not make such a claim in his petition for certification to appeal. There is no basis for us to conclude, therefore, that the habeas court abused its discretion in denying his petition for certification to appeal on an issue it never considered. The appeal is dismissed. In this opinion the other judges concurred. We note that Judge Oliver apparently misspoke when he referenced the fourth habeas petition, as the petitioner had sought, in that petition, to have his rights to sentence review restored. As set forth previously in this opinion, issues relating to the petitioner's competency were raised in the fifth and sixth petitions. In Haines , the United States Supreme Court addressed the question of whether the pro se inmate's civil complaint alleged sufficient facts to survive a motion to dismiss. In reversing the United States Court of Appeals for the Seventh Circuit's affirmance of the District Court's judgment dismissing the complaint, the Supreme Court held that, "[w]e cannot say with assurance that under the allegations of the pro se complaint, which we hold to less stringent standards than formal pleadings drafted by lawyers, it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." (Emphasis omitted; internal quotation marks omitted.) Haines v. Kerner , supra, 404 U.S. at 520-21, 92 S.Ct. 594.

12497669

Anders B. JEPSEN et al. v. Beth M. CAMASSAR et al.

Jepsen v. Camassar

2018-05-01

AC 39272

486

513

187 A.3d 486

187

West's Atlantic Reporter, Third Series

Connecticut Appellate Court

Connecticut

2021-08-27T20:57:32.687249+00:00

Fastcase

Anders B. JEPSEN et al. v. Beth M. CAMASSAR et al.

Anders B. JEPSEN et al. v. Beth M. CAMASSAR et al. AC 39272 Appellate Court of Connecticut. Argued January 5, 2018 Officially released May 1, 2018 Beth A. Steele, Norwich, for the appellants (named plaintiff et al.). Mark S. Zamarka, New London, with whom, on the brief, was Edward B. O'Connell, for the appellees (named defendant et al.). Christine S. Synodi, for the appellees (defendant Savas S. Synodi et al.). Lavine, Sheldon and Elgo, Js.

15046

91813

ELGO, J. The plaintiffs Anders B. Jepsen and Beth Jepsen appeal from the declaratory judgment rendered by the trial court in this dispute regarding the modification of a beach deed. In this opinion, we address the plaintiffs' claims that the court improperly (1) concluded that the modification in question was properly enacted, (2) concluded that they had not met their burden in establishing slander of title, and (3) declined to render an award of attorney's fees in their favor. We agree with the plaintiffs' first claim and, accordingly, affirm in part and reverse in part the judgment of the trial court. The relevant facts are gleaned from the court's memorandum of decision and the undisputed evidence in the record before us. The parties are numerous individuals and entities that, at relevant times, owned real property in a subdivision in New London created in 1954 by the Quinnipeag Corporation (subdivision). The subdivision plan filed on the New London land records depicts the location of various residential parcels, as well as a 250 foot strip of beachfront property commonly known as Billard Beach (beach). That area is designated as "beach rights" on the subdivision plan. Each owner of real property in the subdivision is the holder of two deeds relevant to this dispute: a warranty deed that conveyed ownership rights in fee simple to his or her individual parcel of subdivision property (warranty deed) and a quitclaim deed that conveyed an "undivided one-forty-eighth (1/48th) interest" in the beach (beach deed). This litigation concerns a purported modification of the beach deed. Section 2 of the beach deed sets forth certain "restrictions on the use" of the beach, known also as restrictive covenants. "A restrictive covenant is a servitude, commonly referred to as a negative easement . A servitude is a legal device that creates a right or an obligation that runs with the land or an interest in land." (Citation omitted; internal quotation marks omitted.) Grovenburg v. Rustle Meadow Associates, LLC , 174 Conn. App. 18, 25 n.7, 165 A.3d 193 (2017). As the Restatement (Third) of Property, Servitudes notes, "[t]he distinctive character of a servitude is its binding effect for and against successors in interest in the property to which the servitude pertains ." 1 Restatement (Third), Property, Servitudes c.7, introductory note, p. 334 (2000); see also Wykeham Rise, LLC v. Federer , 305 Conn. 448, 468, 52 A.3d 702 (2012) (concluding that "the burdens of the covenants at issue . [could] run with the land" because "the covenants were formally created as part of a transfer of land; they explicitly provide that they are 'binding upon the [g]rantee, its successors and assigns, shall inure to the benefit of the [g]rantor, its successors and assigns, and shall run with the land'; and they appear on their face to relate to the land and not to impose any conceivable burden on the initial grantee independent of its ownership of the land"); Bauby v. Krasow , 107 Conn. 109, 112, 139 A. 508 (1927) ("[i]f [a restrictive covenant] runs with the land, it binds the owner"); Olmstead v. Brush , 27 Conn. 530, 536 (1858) ("if the grantee accepts the deed he assents to the [restrictive covenant] in it"). It is undisputed that all owners of property in the subdivision are bound by the restrictive covenants contained in the beach deed. Section 4 of the beach deed expressly provides a mechanism for the modification of the restrictive covenants contained in § 2 of the beach deed. It states: "That the restrictions on the use of the [beach] contained in [§] 2 hereof may be modified by a majority vote in writing of the owners of the premises conveyed. Each owner, (or in the case of joint ownership or ownership in cotenancy, such joint owners or owners in cotenancy together) shall be entitled upon any such vote to such number of votes as the numerator of their fractional interest in the premises conveyed, and upon any such vote, the majority shall be determined according to the sum of the votes so counted." For more than one-half century, owners of property in the subdivision enjoyed the use of the beach without incident. That changed after Craig Barrila moved into the subdivision in 2008. As the court found, "[i]n 2008, [Barrila] purchased 755 Pequot Avenue, one of the forty-eight residential lots in [the subdivision], and although, as he testified, he did not personally use the beach, he allowed his girlfriend and her three children to swim, hold campfires and party at the beach.... Barrila testified that initially no one objected to this conduct. However, he stated that in July, 2011 . he received a telephone call from a representative of the [Billard Beach Association (association) ] stating that these individuals could not use the beach without his being present.... Prior to the telephone call to Barrila, testimony and evidence received at trial does not indicate any significant concern being expressed about the use of or conduct on the beach by members of the [subdivision]. "In reaction to the use of the beach allowed by Barrila and what was perceived to be a lack of clarity in the deeds and [the association's] bylaws regarding allowable use of the beach, a group of residents including Garon Camassar, an attorney and husband of defendant Beth M. Camassar, in the summer of 2011, began to circulate a petition for a 'Modification of Covenants and Restrictions re Billard Beach, New London, Connecticut.' This modification (2011 modification)-which all parties now agree is of no force or effect-purported to supersede all covenants and restrictions contained in the [beach deed]." (Footnotes added.) The 2011 modification purported to revise the beach deed in three significant respects. First, it sought to modify the restrictive covenants governing the use of the beach contained in § 2 of the beach deed. Second, it revised the modification provision contained in § 4 of the beach deed to require the approval of 75 percent of owners instead of a simple majority. Third, the 2011 modification added a new section regarding the enforcement of the beach deed, which provided for an award of compensatory damages, punitive damages, costs and attorney's fees. After learning of the 2011 modification proposal, Barrila sent an e-mail to approximately fifty e-mail addresses, the subject of which was "Proposed Changes to Billard Beach Land Deed." In that September 24, 2011 e-mail, Barrila indicated that he had been provided a copy of the 2011 modification earlier that day. He then stated that "there is an effort underway to collect a majority of signatures to support a modification to our current [beach] deed.... I have reviewed the proposed document today and have some substantial concerns.... I want to reiterate that these are not the beach rules (which are guidelines). These are legally binding and enforceable changes to our current [beach] deed which will impact your future ability to convey your asset.... I'm willing to support whatever the majority of my neighbors believe to be fair regarding the rules. However, I want to ensure that appropriate process is followed to effect any proposed changes...." The very next day, Ronald E. Beausoleil replied to Barrila by e-mail and offered to meet privately with him and Garon Camassar. Beausoleil at that time was a member of the executive committee of the association and had collected signatures on the 2011 modification with Garon Camassar. Barrila responded to that e-mail hours later, stating that "[w]ith all due respect the time for private meetings has passed. I'm advocating [for] a public meeting with all interested/impacted parties involved." Later that night, Barrila's attorney contacted Garon Camassar, who had drafted the 2011 modification and had solicited signatures thereon. In an e-mail sent on the evening of September 25, 2011, Attorney Michael W. Sheehan reiterated Barrilla's concerns and asked "that nothing be implemented or recorded on the land records until all owners have been notified and been given the opportunity to meet and be heard." Despite that request, no meeting or vote of the owners transpired. Instead, the 2011 modification was filed on the New London land records the next morning. On September 27, 2011, defendant Hope H. Firestone, a signatory to the 2011 modification acting in her capacity as president of the association, sent a letter to owners of property within the subdivision on association letterhead. That letter began by stating, "Good News!! As of Monday morning September 26, 2011, the restrictive provisions of the original beach deed have been modified." Firestone then provided an overview of the principal changes contained in the 2011 modification. In its memorandum of decision, the court found that "contrary to the requirements of the beach deed, no formal 'vote' was ever noticed or taken on the [2011] modification; rather, the circulators assumed that once they had obtained the signatures of a majority of lot owners, the deed was recordable.... [A] 'vote' requires more formality than just obtaining signatures. Black's Law Dictionary 10th Ed. (2009), defines a vote as '[t]he expression of one's preferences or opinion in a meeting or election by ballot, show of hands, or other type of communication.' Accordingly, the [2011] modification appears to have been a legal nullity." No party has challenged the propriety of that determination in this appeal. After the 2011 modification was filed on the New London land records, Anders B. Jepsen and Barrila commenced this declaratory action. Their original complaint sought to have the 2011 modification declared null and void. They alleged, inter alia, that the 2011 modification "was enacted without the knowledge or consent of the plaintiffs"; that it "was enacted without a full and fair opportunity to have a meaningful discussion between the owners [in the subdivision] and to voice opinion as to the merits of the [m]odification"; and that "the contents and meaning of the [m]odification was misrepresented to one or more of the signers . and to others who were not given an opportunity to review the [m]odification prior to its enactment." As the court found in its memorandum of decision, "[i]n response to the suit, the parties engaged in prolonged discussions, including mediation, seeking to resolve the issues raised in the legal action, while still trying to respond to the concerns of the [a]ssociation members regarding uncontrolled use of the beach.... In the course of these negotiations, the proponents of the modification, working with the Executive Committee of the Association, developed and proposed the 'Amended and Restated Covenants and Restrictions Regarding Billard Beach, New London, Connecticut' " (2014 modification). The 2014 modification contained an extensive revision of the restrictive covenants governing the use of the beach. It removed the 75 percent super majority requirement imposed in the 2011 modification proposal, stating in relevant part that the restrictive covenants in the beach deed "may be modified by a written vote of a majority of the [r]esidential [l]ot [o]wners ." The 2014 modification also eliminated the enforcement provisions set forth in § 7 of the 2011 modification. See footnote 8 of this opinion. On October 3, 2014, defendant Anne Marie Lizarralde, who at that time served as the secretary of the association, sent an e-mail to forty-one of the forty-eight owners within the subdivision notifying them that the association's annual meeting would be held on October 10, 2014. In that correspondence, Lizarralde stated: "Billard Beach Members-The annual [association] meeting has been scheduled for Friday, October 10th at 7 p.m. in the New London Senior Center (120 Broad Street). Please find attached four documents to read carefully. If you are unable to open any of them, please let us know and we'd be happy to put a hard copy in the mail to you. If you are unable to attend, please fill out the proxy and get it back to us as soon as possible so that you are represented. You can either e-mail back the proxy to [Lizarralde] or drop it off at any of the board members' homes...." (Emphasis in original.) Appended to that e-mail were four documents. The first was a copy of the 2014 modification. The second document was titled "BILLARD BEACH ASSOCIATION BALLOT OR PROXY" and purportedly permitted owners within the subdivision to vote by proxy on the 2014 modification. The third document, titled "BILLARD BEACH ASSOCIATION NOTICE OF ANNUAL MEETING," was an agenda that set forth five items for business, including the "vote upon" the 2014 modification. The fourth and final document was a letter addressed to "Billard Beach property owner" from the "Billard Beach Association Board," which provided an overview of the revisions contained in the 2014 modification. That letter indicated that "[t]his version of the [c]ovenants was conceived and drawn as a final document, not subject to revision ." Two days later, on October 5, 2014, Beth Jepsen replied to Lizarralde and all parties copied on Lizarralde's October 3, 2014 e-mail. In that communication, Jepsen stated in relevant part that the plaintiffs "object to both your improper Annual Meeting notice and to the [2014 modification] contained within it." After noting that "[i]t would take far too long to cover each issue with [respect to] both the 'notice' provided or the new [2014 modification] in a single e-mail," Jepsen stated that "there are too many issues and much of the legal language may be overly complicated for a . late night association meeting with other topics on the agenda." She thus requested "open discussion with the owners . over a reasonable amount of time with proper notice . in a much more respectful manner going forward." The executive committee of the association held a meeting on the eve of the annual meeting on October 9, 2014. The minutes of that meeting, which were admitted into evidence, indicate that the committee had a "discussion about the annual meeting that will take place tomorrow," at which a vote would be held on the 2014 modification. With respect to that vote, the minutes state that "[o]nly property owners should be allowed to speak" and "[t]he plan will be to leave the vote open after the meeting for several weeks so that it will give those who are unable to attend the time to vote." The association's annual meeting was called to order at 7:04 p.m. on October 10, 2014. The record indicates that the owners of fewer than half of the forty-eight properties in the subdivision attended that meeting. It is undisputed that, prior to the commencement of that meeting, several of the "ballot or proxy" forms contained in Lizarralde's October 3, 2014 notice were submitted to the association either electronically or in person that night. The first item of association business discussed during the meeting, which had been designated as item "b" on the association's agenda; see footnote 17 of this opinion; was the 2014 modification. As the court noted in its decision, defendant Robert McLaughlin, Jr., who was the president of the association at that time, began the discussion by stating that the executive committee had agreed to hold open the time for collection of the proxy votes until November 1, 2014. The court found, and the testimony at trial reflects, that "[t]he meeting became quite contentious." In particular, the court found that, when Beth Jepsen was speaking, some attendees interrupted her and attempted to cut her off. The official minutes of the association meeting, which were admitted into evidence at trial, likewise state that "[s]everal people made rude comments that, in part, caused [the plaintiffs] to leave." Those minutes state that McLaughlin then "attempted to regroup" and "again mentioned that the vote [on the 2014 modification] would remain open until November 1st." At that time, defendant Eric Parnes made a motion "to move on with the rest of the annual meeting agenda," which was approved. Other association business then was conducted. Lizarralde and McLaughlin both testified at trial that, at the conclusion of the October 10, 2014 meeting, a majority of owners of the forty-eight properties in the subdivision had not cast votes in favor of the 2014 modification, as required by § 4 of the beach deed. The record likewise indicates, and the parties do not dispute, that owners of a majority of the forty-eight properties had not voted in favor of the 2014 modification by the November 1, 2014 deadline announced at the association's October 10, 2014 annual meeting. As the court found, "[t]wenty-two votes in favor of the [2014] modification-not a majority of all lot owners-were officially received by November 1 ." The record nonetheless indicates that Lizarralde, on November 6, 2014, sent an e-mail to owners of fewer than thirty properties in the subdivision that stated in relevant part: "Many thanks to everyone who voted yes to amend the [beach deed]. We received a majority of yes votes and so . we now need to have each of you sign the official document that will be notarized...." In her testimony at trial, Lizarralde admitted that, at the time that she sent that e-mail, owners of a majority of the forty-eight properties had not submitted written votes in favor of the 2014 modification. Prior to trial, the plaintiffs served a request for production on the defendants, in which they sought, inter alia, "[c]opies of all proxies submitted in conjunction with the 2014 Deed Modification." The defendants complied with that request, and produced copies of twenty-six proxy votes, which were admitted into evidence at trial. A total of twenty-four proxies contain votes in favor of the 2014 modification, less than a majority of the forty-eight properties in the subdivision. On December 23, 2014, the 2014 modification was filed on the New London land records. That instrument contained the signatures of owners of twenty-nine properties within the subdivision, including several who did not attend the October 10, 2014 annual meeting and did not at any time submit a proxy vote. The plaintiffs thereafter amended their complaint to challenge the validity of that enactment. Specifically, they sought a declaratory judgment that the 2014 modification "be declared null and void" for multiple reasons, including that it "was enacted without providing proper notice to the owners of the land lots . without conducting a properly noticed meeting of the owners, without allowing for ample prior discussion or comment by the owners . and without conducting a written vote of the owners...." A trial was held over the course of four days in December, 2015. The plaintiffs called nineteen witnesses and submitted sixty documents that were admitted into evidence. The defendants submitted three exhibits, which were duplicative of documents already in evidence, but otherwise presented no documentary or testimonial evidence. At the conclusion of trial, the parties, at the behest of the court, submitted posttrial briefs that outlined their respective positions on the issues presented at trial. In their brief, the plaintiffs argued, among other things, that "the 2014 modification [is] invalid because it was not properly noticed, did not receive the requisite number of votes and was not executed pursuant to proper procedure." (Footnote added.) In response, the defendants argued in their posttrial brief that "[t]he Beach Deed does not require notice, a meeting, or discussion or comment of any kind in order to modify its terms." The defendants further claimed that the act of signing the 2014 modification qualified as the written vote of the owners. In its memorandum of decision, the court ruled in favor of the defendants on the slander of title counts of the operative complaint, finding that the plaintiffs had not demonstrated the existence of either a false statement, malice on the part of the defendants, or pecuniary loss to the plaintiffs. With respect to the plaintiffs' challenge to the 2011 modification, the court noted that the defendants at trial had conceded that it was "of no force or effect ." The court then explained that "contrary to the requirements of the beach deed, no formal 'vote' was ever noticed or taken on the [2011] modification; rather, the circulators assumed that once they had obtained the signatures of a majority of lot owners, the deed was recordable." The court flatly rejected that proposition, stating that "a 'vote' requires more formality than just obtaining signatures." The court thus rendered judgment in favor of the plaintiffs on the first count of their complaint, declaring that "[t]he 2011 modification by agreement of the parties is deemed null and void." With respect to the 2014 modification, the court disagreed with the plaintiffs' claim that the beach deed could not be "altered without unanimous approval of all owners of the subdivided lots." The court also rejected the plaintiffs' claims that both the notice of the vote on the 2014 modification and the vote itself were improper. The court noted that, unlike the enactment of the 2011 modification, "a formal 'vote' was noticed and conducted prior to recording" the 2014 modification. The court emphasized, consistent with the stipulation of the parties; see footnote 3 of this opinion; that the association was a voluntary association that had no authority over owners within the subdivision, and further found that "the portion of the [October 10, 2014 association] meeting dedicated to the beach use was not considered by any party to be an official meeting of the association." Nevertheless, with respect to the "general standards of due process" that it deemed applicable to the modification process, the court stated that the association was "not held to the same 'due process' standards as a governmental authority" and concluded that no impropriety transpired with respect thereto. Although a majority of owners had not voted in favor of the 2014 modification by the November 1, 2014 deadline, the court found that "seven more votes in favor, either in the form of proxies or signed documents, were received and accepted in the weeks thereafter, representing twenty-nine of the forty-eight properties-a majority." The court also found that the plaintiffs waived their right to object to any deficiency in the notice provided by Lizarralde's October 3, 2014 e-mail notice "as a result of their awareness [of] and participation" in the meeting. Accordingly, the court rendered judgment in favor of the defendants on the fourth count of the operative complaint, stating that "[t]he 2014 modification is declared valid and in full force and effect." I The principal contention advanced by the plaintiffs is that the 2014 modification was improperly enacted. Specifically, they claim that the court improperly determined that (A) modification of the beach deed did not require the unanimous approval of all owners within the subdivision and (B) the 2014 modification was enacted in accordance with the strictures set forth in the beach deed. We address each claim in turn. A We first consider the claim that modification of the beach deed requires the unanimous approval of all lot owners within the subdivision. In support of that proposition, the plaintiffs rely on this court's decision in Mannweiler v. LaFlamme , 46 Conn. App. 525, 700 A.2d 57, cert. denied, 243 Conn. 934, 702 A.2d 641 (1997). In Mannweiler , this court held that "when, as here, the owner of a tract of land sells lots with restrictive covenants . and does not retain the right to rescind or amend them and does not provide a method for terminating or amending them , [the owner] has no right to do so without the consent of all the then property (lot) owners." (Emphasis added.) Id., at 542, 700 A.2d 57. Accordingly, when no provision for the modification of a restrictive covenant is contained in the operative instrument filed on the land records, Mannweiler instructs that such modification may only be accomplished through the unanimous approval of all property owners. That precept comports with the position adopted by the Restatement (Third) of Property, Servitudes, which recognizes that "[a] servitude may be modified . by agreement of the parties [or] pursuant to its terms ." 2 Restatement (Third), supra, § 7.1, p. 337. As a general matter, the Restatement notes that "[w]here all of the parties interested in a servitude agree, they are free to modify" the servitude. (Emphasis added.) Id., comment (b), p. 339. The Restatement further indicates that "[t]he terms of a servitude may include a provision that permits modification . without the consent of all the parties.... [A] modification . pursuant to such a provision is generally effective." Id., comment (c), p. 340. Absent such an express provision, "[a] modification agreed to by some but not all of the parties is not effective ." Id. ; accord 9 Powell on Real Property (M. Wolf ed., 2000) § 60.08, pp. 112-13 (noting that "absent express provisions to the contrary, amendments may only be effected by all of the owners of property burdened by the covenants" and observing that "[c]ovenants can also be modified . where the covenants permit modification . by a specified percentage of lot owners"). It is undisputed that the beach deed in the present case contains a modification provision, which requires the written approval of the owners of a majority of the forty-eight properties in the subdivision to modify "the restrictions on the use of the [beach]" set forth in § 2. Because a method for amending the restrictive covenants contained in § 2 is expressly provided for in the beach deed, those covenants properly could be modified by the owners of a majority of the properties in the subdivision. For that reason, the trial court correctly concluded that modification of those restrictive covenants does not require the unanimous approval of owners of all forty-eight properties. At the same time, it is undisputed that § 7 through 12 of the 2014 modification amended various provisions of the beach deed other than the "restrictions on use of" the beach contained in § 2 thereof, including the manner by which the beach deed itself may be modified. Yet the beach deed contains no provision for the modification of anything other than the restrictive covenants regarding "the use of" the beach. Because no such provision exists in the beach deed, the modification of anything other than the restrictive covenants contained in § 2 of the beach deed required the unanimous approval of all property owners in the subdivision. Mannweiler v. LaFlamme , supra, 46 Conn. App. at 542, 700 A.2d 57. The modifications contained in § 7 through 12 of the 2014 modification, therefore, are invalid. The court improperly concluded otherwise in its memorandum of decision. B The plaintiffs also challenge the process by which the 2014 modification was enacted. More specifically, they maintain that the court improperly concluded that adequate notice was provided to the owners of subdivision properties, that a formal vote was properly conducted in accordance with § 4 of the beach deed, and that signatures on the 2014 modification by owners that otherwise did not attend the October 10, 2014 meeting or submit a written vote or proxy nevertheless constituted proper votes, as required by the beach deed. Those claims require us to construe § 4 of the beach deed, which governs the modification of the restrictive covenants at issue. "The principles governing our construction of conveyance instruments are well established. In construing a deed, a court must consider the language and terms of the instrument as a whole.... Our basic rule of construction is that recognition will be given to the expressed intention of the parties to a deed or other conveyance, and that it shall, if possible, be so construed as to effectuate the intent of the parties. . In arriving at the intent expressed . in the language used, however, it is always admissible to consider the situation of the parties and the circumstances connected with the transaction, and every part of the writing should be considered with the help of that evidence.... The construction of a deed in order to ascertain the intent expressed in the deed presents a question of law and requires consideration of all its relevant provisions in the light of the surrounding circumstances." (Internal quotation marks omitted.) Il Giardino, LLC v. Belle Haven Land Co ., 254 Conn. 502, 510-11, 757 A.2d 1103 (2000). In articulating those principles of construction, our Supreme Court has expressly "adopted the position" set forth in the Restatement (Third), Property, Servitudes § 4.1. Zhang v. Omnipoint Communications Enterprises, Inc ., 272 Conn. 627, 636, 866 A.2d 588 (2005). The commentary to § 4.1 specifically addresses the interpretation of expressly created servitudes, such as those contained in the beach deed. With respect to such expressly created servitudes, the Restatement notes that "[t]he fact that servitudes are intended to bind successors to interests in the land, as well as the contracting parties, and are generally intended to last for an indefinite period of time, lends increased importance to the writing because it is often the primary source of information available to a prospective purchaser of the land. The language [in a deed] should be interpreted to accord with the meaning an ordinary purchaser would ascribe to it in the context of the parcels of land involved. Searching for a particular meaning adopted by the creating parties is generally inappropriate because the creating parties intended to bind and benefit successors for whom the written record will provide the primary evidence of the servitude's meaning." 1 Restatement (Third), supra, § 4.1, comment (d), pp. 499-500; accord Dent v. Lovejoy , 85 Conn. App. 455, 463-64, 857 A.2d 952 (2004) (adhering to that standard of construction), cert. denied, 272 Conn. 912, 866 A.2d 1283 (2005). We begin, therefore, with the language of the deed. Section 4 of the beach deed provides: "That the restrictions on the use of the [beach] contained in [§] 2 hereof may be modified by a majority vote in writing of the owners of the premises conveyed. Each owner, (or in the case of joint ownership or ownership in co-tenancy, such joint owners or owners in co-tenancy together) shall be entitled upon any such vote to such number of votes as the numerator of their fractional interest in the premises conveyed, and upon any such vote, the majority shall be determined according to the sum of the votes so counted." The first sentence of that section sets forth three requirements for the modification of the restrictions on the use of the beach: (1) there must be "a majority vote"; (2) that vote must be expressed "in writing"; and (3) that vote must be among "the owners" of the properties in the subdivision. The second sentence in § 4 of the beach deed clarifies the nature of "any such vote" conducted pursuant thereto. That sentence memorializes the fact that, when a vote on a proposed modification transpires, the property owners in the subdivision are "entitled upon any such vote" to cast votes in proportion to their fractional interest in the beach. That sentence then concludes by instructing that "upon any such vote, the majority shall be determined according to the sum of the votes so counted." In its memorandum of decision, the trial court concluded that the vote contemplated by § 4 of the beach deed "requires more formality than just obtaining signatures." We agree. The plain language of § 4 not only requires a "majority vote in writing," but twice qualifies that imperative with modifiers that are implicated "upon any such vote." The plain language of § 4 also mandates that the issue of whether a "majority" has been secured in favor of any proposed modification is to be determined in accordance with "the votes so counted." (Emphasis added.) In this regard, we are mindful that every word and phrase of a deed is presumed to have meaning, and must be construed in a manner that does not render it superfluous. Bird Peak Road Assn., Inc . v. Bird Peak Corp ., 62 Conn. App. 551, 557, 771 A.2d 260, cert. denied, 256 Conn. 917, 773 A.2d 943 (2001). The use of the plural "votes" in the concluding sentence of § 4 to determine whether a "majority" has been secured is strong evidence of an intent to establish a two-step modification process. Under the first step of that modification process, which involves a vote "in writing of the owners of the premises conveyed," all owners of a fractional interest in the beach possess the right to participate in any such vote. Pursuant to the plain language of the concluding sentence clause of § 4, "upon any such vote," the "votes" of those owners then are "counted," from which it "shall be determined" whether owners of a "majority" of the properties in the subdivision favor the proposed modification. That construction is one which we believe an ordinary purchaser of property in the subdivision would ascribe to it in the context of the parcels of land involved. See Dent v. Lovejoy , supra, 85 Conn. App. at 463, 857 A.2d 952. In this respect, we note the particular situation of the parties and the circumstances surrounding the enactment of the beach deed. The record reflects that the beach was an integral part of the subdivision when it was created in 1954. Each property is allocated an "undivided one-forty-eighth (1/48th) interest" in the beach, as memorialized in the beach deed. The subdivision plan filed on the New London land records describes the beach area as one subject to "beach rights." Moreover, the restrictive covenants contained in the beach deed are uniform covenants enacted by a grantor that divided its property into building lots under a general development scheme. Under Connecticut law, purchasers of those lots are presumed to have "paid a premium for the property in reliance upon the uniform development plan being carried out." Mannweiler v. LaFlamme , supra, 46 Conn. App. at 536, 700 A.2d 57 ; see also Leabo v. Leninski , 182 Conn. 611, 615, 438 A.2d 1153 (1981) (noting that beach easements "enhance the value of the property and that such enhancement was implied by the subdivision's character as a waterfront development"). As the Restatement recognizes, "the consideration paid for the servitude" is a proper consideration in the construction of expressly created servitudes. 1 Restatement (Third), supra, § 4.1, comment (d), p. 499. The servitudes at issue in this case secured the right of property owners to "use and have access to" the beach. To paraphrase our Supreme Court, those servitudes constitute a "property right which the parties to the original conveyance voluntarily created, which was and is of substantial benefit to the [property owners], and for which [they] paid." Harris v. Pease , 135 Conn. 535, 541, 66 A.2d 590 (1949). Both the magnitude of that right and the context in which it arose inform our construction of § 4 of the beach deed, and further explain why that modification provision memorializes the right of all owners of a fractional interest in the beach to cast a vote on any proposed modification. In that vein, we emphasize that the present dispute does not involve a trivial dispute between neighbors. This case concerns the modification, and possible restriction, of an owner's right to use the beach. The law presumes that owners purchased their properties in this beachfront subdivision in reliance on the use rights memorialized in § 2 of the beach deed. Mannweiler v. LaFlamme , supra, 46 Conn. App. at 536, 700 A.2d 57. Although that deed includes a mechanism for the modification of those use rights, we are convinced that purchasers in the subdivision would read those provisions, which mandate both a "vote in writing of the owners of the premises conveyed" and a determination of "the majority" view on any proposed modification based on "the sum of the votes so counted," as requiring a formal vote, at which each owner of a fractional interest in the beach has the opportunity to cast a vote. As the trial court rightly concluded in its construction of the beach deed, the mere act of collecting signatures on a written document does not suffice. The particular language employed in § 4 of the beach deed distinguishes this case from others in which the deed specifically provided that modification may be accomplished by the mere filing of a written instrument on the land records. See, e.g., Cappello v. Ciresi , 44 Conn. Supp. 451, 455, 691 A.2d 42 (1996) ("[p]aragraph eleven of the [deed] provides that the restrictive covenants may be terminated . at the end of certain periods by an agreement executed by at least 51 percent of the then owners of the parcels of land, provided the agreement is recorded in the land records"), aff'd, 44 Conn. App. 587, 689 A.2d 1169 (1997) ; Armbrust v. Golden , 594 So.2d 64, 65 (Ala. 1992) (modification provision stated in relevant part that "[t]hese restrictions shall continue in full force . unless the then owners of a majority of the lots affected hereby sign a written agreement terminating these restrictions, and put such written termination on record in the Office of the Judge of Probate of the County where the property is situated"); Miller v. Sandvick , 921 S.W.2d 517, 519-20 (Tex. App. 1996, writ. denied) (modification provision stated in relevant part that restrictive covenants "may be amended at any time by an instrument signed by two-thirds . of the then owners . and such instrument is recorded in the office of the County Clerk"). Unlike those cases, the deed here contains no provision for modification by the filing of a written instrument on the land records. Rather, § 4 plainly contemplates a vote of subdivision property owners, with the "votes so counted" determinative of whether a majority has been obtained. Although the proponents of the 2014 modification, now defendants in this action, maintain that the simple act of signing the 2014 modification qualifies as "the written vote" of the owners, the trial court rejected that claim, as do we. As the court aptly noted, the modification procedure outlined in § 4 of the beach deed "requires more formality than just obtaining signatures." The defendants' construction is contrary to both the plain language of § 4 of the beach deed and the meaning that an ordinary purchaser would ascribe to it, given the purchaser's significant property interest in the use of the beach. See Harris v. Pease , supra, 135 Conn. at 541, 66 A.2d 590. In its memorandum of decision, the court found that the 2011 modification was invalid because "no formal 'vote' was ever noticed or taken," which conclusion is consistent with our construction of § 4 of the beach deed. The court distinguished that 2011 enactment from the 2014 modification, stating in relevant part that "[u]nlike the process of approving and recording the [2011 modification], a formal 'vote' was noticed and conducted prior to recording of the [2014] modification." Accordingly, the court declared the 2014 modification "valid and in full force and effect." That determination is problematic in two respects. 1 First, the court found, and the parties do not dispute, that notice of the vote on the 2014 modification was not provided to all property owners. See footnote 15 of this opinion. As we previously have discussed, § 4 of the beach deed affords owners of a fractional interest in the beach the right to cast a vote on any proposed modification to the restrictions on its use. As the defendants concede in their appellate brief, "each owner is entitled to one vote ." It is axiomatic that the right to vote is meaningless without notice that a vote is being held. See, e.g., Walgren v. Board of Selectmen , 373 F.Supp. 624, 635 (D. Mass. 1974) ("in view of the importance of the right to vote" it was "inconceivable" that notice would not be required), aff'd, 519 F.2d 1364 (1st Cir. 1975) ; Graham v. State Officers Electoral Board , 269 Ill. App. 3d 609, 612, 646 N.E.2d 1357, 207 Ill.Dec. 270 (1995) ("[n]otice is the most basic prerequisite to ensure the right to vote"). For that reason, we disagree with the defendants that notice of the vote on a proposed modification of the beach deed is not required pursuant to § 4. Indeed, § 4.1 (2) of the Restatement (Third) of Property, Servitudes, provides in relevant part that "a servitude should be interpreted to avoid violating public policy. Among reasonable interpretations, that which is more consonant with public policy should be preferred." 1 Restatement (Third), supra, § 4.1 (2), p. 497. Connecticut's "strong public policy favoring the protection of private property rights"; Ace Equipment Sales, Inc . v. Buccino , 273 Conn. 217, 232 n.11, 869 A.2d 626 (2005) ; coupled with the fact that the beach deed expressly provides for a vote of the property owners on any proposed modification to the restrictive covenants governing their use of that private property, convinces us that the proper construction of § 4 of the beach deed requires notice to property owners of any vote thereon, as the trial court concluded. At trial, the defendants maintained that the plaintiffs waived any objection to the adequacy of the notice through their attendance at and participation in the October 10, 2014 association meeting, relying primarily on Schwartz v. Hamden , 168 Conn. 8, 357 A.2d 488 (1975). In its memorandum of decision, the court agreed with the defendants, citing Schwartz . That precedent, however, is readily distinguishable from the present case. Schwartz involved a public hearing of a planning and zoning commission, at which certain plaintiffs appeared through counsel. Id., at 14, 357 A.2d 488. Our Supreme Court emphasized that although notice by mail had not been provided to those plaintiffs, they "waived their right to object to that omission when they appeared without objection at the hearing." Id., at 15, 357 A.2d 488. That context is plainly distinguishable from this case, which does not involve a public hearing on proposed zoning action but, rather, a vote on proposed modifications to the plaintiffs' deed to the beach and corresponding use rights. Those rights are memorialized in restrictive covenants, in which the plaintiffs here possess a property interest. Harris v. Pease , supra, 135 Conn. at 541, 66 A.2d 590. Interested members of the public may attend a zoning hearing, and participate in the public comment portion thereof, but they are not entitled to cast votes on the proposed zoning action. By contrast, the beach deed's modification provision expressly vests in owners of a fractional interest in the beach the right to vote on proposed modifications to the restrictions on its use. Schwartz also is inapposite on a factual level, as the plaintiffs here did not appear at the October 10, 2014 meeting without objection. As Beth Jepsen stated in her October 5, 2014 response to Lizarralde's notice of the vote on the 2014 modification, the plaintiffs "object to both your improper Annual Meeting notice and to the [2014 modification] contained within it." Beth Jepsen reiterated those objections during her comments at the October 10, 2014 meeting. Schwartz , therefore, is both contextually and factually inapplicable to the present case. Far from intentionally relinquishing their objections to the October 10, 2014 proceeding, the record demonstrates that the plaintiffs endeavored to preserve those objections both prior to and during that proceeding. The court, therefore, improperly concluded that the plaintiffs waived their objection to the adequacy of Lizarralde's October 3, 2014 notice. In light of the undisputed fact that notice of the vote on the 2014 modification was not provided to all property owners in the subdivision, we agree with the plaintiffs that the enactment of the 2014 modification did not comport with § 4 of the beach deed. 2 We already have determined that the court properly concluded that the mere act of securing signatures on a modification instrument does not constitute the "vote in writing" contemplated by § 4 of the beach deed. In its decision, the court also determined that, unlike the 2011 modification, the 2014 modification was the product of a formal vote. Section 4 of the beach deed requires a "vote in writing of the owners" on any proposed modification to the restrictive covenants governing the use of the beach. Section 4 further mandates that the determination of whether a majority has been secured "shall be determined according to the sum of the votes so counted." The question, then, is whether the record contains evidence to substantiate the court's finding that owners of a majority of the properties cast votes in writing that were in favor of the 2014 modification. In its memorandum of decision, the court found that a formal vote on the 2014 modification was scheduled for, and conducted at, the association's October 10, 2014 annual meeting. As the court found, Lizarralde provided notice of that vote to owners of forty-one properties. That notice, which was admitted into evidence at trial, included (1) a copy of the 2014 modification; (2) the October 10, 2014 meeting agenda, on which "[t]o vote upon the [2014 modification]" was the second item of business; and (3) a form titled "BILLARD BEACH ASSOCIATION BALLOT OR PROXY" on which owners could cast their written vote on the 2014 modification. See footnotes 16 and 17 of this opinion. The testimonial and documentary evidence in the record, including the minutes of the October 10, 2014 meeting and Lizarralde's November 6, 2014 e-mail, substantiates the court's finding that a formal vote on the 2014 modification transpired. The record indicates that several owners submitted written proxy votes at the October 10, 2014 meeting, while others submitted theirs in the ensuing weeks. It is undisputed that a total of twenty-six proxy votes were submitted by owners of properties in the subdivision, twenty-four of which were in favor of the 2014 modification-less than a majority of the forty-eight properties in the subdivision. The record contains no other written votes on the 2014 modification. When a vote is held on a proposed modification of the restrictive covenants governing the use of the beach, § 4 of the beach deed plainly provides that the issue of whether a "majority" has been secured in favor of any such proposal "shall be determined according to the sum of the votes so counted." The court found, and the record indicates, that a formal vote on the 2014 modification was held at the October 10, 2014 annual meeting, and that written votes were received at that time and in the weeks thereafter. Most significantly, the record before us indicates that only twenty-four written votes ultimately were submitted in support of the 2014 modification. The court, therefore, improperly determined that the formal vote on the 2014 modification was approved by owners of a majority of properties in the subdivision. Accordingly, its declaration that the 2014 modification is "valid and in full force and effect" cannot stand. II The plaintiffs also claim that the court improperly concluded that the plaintiffs had not met their burden in establishing slander of title. We disagree. "A cause of action for slander of title consists of the uttering or publication of a false statement derogatory to the plaintiff's title, with malice, causing special damages as a result of diminished value of the plaintiff's property in the eyes of third parties. The publication must be false, and the plaintiff must have an estate or interest in the property slandered. Pecuniary damages must be shown in order to prevail on such a claim." (Internal quotation marks omitted.) Elm Street Builders, Inc . v. Enterprise Park Condominium Assn., Inc ., 63 Conn. App. 657, 669-70, 778 A.2d 237 (2001). For three reasons, we agree with the court's determination that the plaintiffs did not satisfy their burden to establish slander of title. First, they have not demonstrated that the defendants, in filing the modifications on the land records, published a false statement. There is no suggestion that the substance of those written instruments was anything other than an accurate statement of their content-namely, that the signatories thereto wished to amend the beach deed in various respects. As the defendants concede in their appellate brief, those modifications may have been improper under the terms of the beach deed, as we have concluded in part I of this opinion, but they do not contain any demonstrably false statements about the plaintiffs' title. Second, the court's finding that the defendants did not act with the requisite malice is supported by the evidence in the record before us. The court found that the modifications were enacted in response to a concern "about having the beach open to numerous unknown individuals and thus exposing the owners to possible tort claims in the event of accidents and injuries" and that "all disputed actions [by the defendants] were taken in good faith . with the intention of clarifying appropriate uses of the beach and protecting [owners] from potential liabilities ." Testimony at trial by various signatories to the 2011 and 2014 modifications substantiates those findings. In addition, the court heard testimony indicating that the 2011 and 2014 modifications were enacted without any malice toward the plaintiffs. At trial, McLaughlin testified that those modifications were crafted to "protect ourselves" and emphasized that "[i]t was no malice toward anyone, it was just that we were concerned" about liability for activities on the beach. Like others, Firestone in her testimony confirmed that the events that led to the enactment of those modifications had "absolutely nothing to do" with the plaintiffs. "[I]t is well established that the evaluation of a witness' testimony and credibility are wholly within the province of the trier of fact.... Credibility must be assessed . not by reading the cold printed record, but by observing firsthand the witness' conduct, demeanor and attitude.... An appellate court must defer to the trier of fact's assessment of credibility because [i]t is the [fact finder] . [who has] an opportunity to observe the demeanor of the witnesses and the parties; thus [the fact finder] is best able to judge the credibility of the witnesses and to draw necessary inferences therefrom." (Internal quotation marks omitted.) CHFA-Small Properties, Inc . v. Elazazy , 157 Conn. App. 1, 21, 116 A.3d 814 (2015). The court, as trier of fact, was free to credit that testimony, which supports its conclusion that the plaintiffs had not established malice on the part of the defendants. Third, the record is bereft of evidence that the plaintiffs suffered pecuniary loss as a result of the filing of the 2011 and 2014 modifications on the land records. At trial, Beth Jepsen testified that she believed that the filing of those modifications created a cloud on their title that made their property less marketable. It nevertheless remains that "a clouded title, alone, does not constitute damages per se. Rather, a plaintiff must present evidence of how the clouded title resulted in some pecuniary loss." Gilbert v. Beaver Dam Assn. of Stratford, Inc ., 85 Conn. App. 663, 673, 858 A.2d 860 (2004), cert. denied, 272 Conn. 912, 866 A.2d 1283 (2005). Like the plaintiffs in Gilbert , the plaintiffs here "did not present evidence of monetary loss caused by the clouded title." Id., at 674, 858 A.2d 860 ; contra Fountain Pointe, LLC v. Calpitano , 144 Conn. App. 624, 657, 76 A.3d 636 (evidence presented that cloud on title "caused the plaintiff to lose out on the proceeds of a $1.8 million sale of its property"), cert. denied, 310 Conn. 928, 78 A.3d 147 (2013). In her trial testimony, Beth Jepsen acknowledged that the plaintiffs had not attempted to sell or rent their property and did not have a comparative market analysis performed. Asked directly if she knew "how much [her] property was devalued," Beth Jespen replied, "No, I don't." She also conceded that the plaintiffs' use of the beach was not impaired following the recording of the 2011 and 2014 modifications on the land records. Speculation and conjecture do not suffice for proof of pecuniary loss. See American Diamond Exchange, Inc . v. Alpert , 302 Conn. 494, 513, 28 A.3d 976 (2011) ("the plaintiff bears the burden of producing evidence of sufficient quality to permit the fact finder to award damages without resort to conjecture or speculation"); Smith v. Whittlesey , 79 Conn. 189, 193, 63 A. 1085 (1906) (fact finder must be presented with evidence of pecuniary loss and is "not permitted to resort to mere conjecture"). We concur with the trial court that the record here lacks evidence of actual, rather than hypothesized, pecuniary loss. In light of the foregoing, the court properly rendered judgment in favor of the defendants on the slander of title claims. III As a final matter, we briefly address the plaintiffs' contention that the court abused its discretion in declining to render an award of attorney's fees in their favor due to the allegedly frivolous filing of a special defense by certain defendants. We do not agree. Prior to trial, certain defendants raised, as a special defense, allegations that the plaintiffs possessed knowledge of the drafting of the 2011 and 2014 modifications but refused to participate. At trial, no evidence was presented to substantiate those allegations. In its memorandum of decision, the court noted that "[c]laims for attorney's fees and costs, if any, have been reserved by agreement of the parties for posttrial motions." The plaintiffs thereafter filed a motion for attorney's fees and costs pursuant to General Statutes § 52-245 and Practice Book § 13-25, predicated on the defendants' special defense that the plaintiffs possessed knowledge of the modifications to the beach deed but refused to participate. In that motion, the plaintiffs averred that they had expended attorney's fees in response thereto, and emphasized that no evidence to support those allegations was presented at trial. The plaintiffs thus argued that it was "appropriate for [the] court to award reasonable attorney's fees and double costs ." The court declined that request, concluding that such an award was not warranted. "Whether to award attorney's fees is a quintessential example of a matter entrusted to the sound discretion of the trial court." Grovenburg v. Rustle Meadow Associates, LLC , supra, 174 Conn. App. at 96, 165 A.3d 193. "An abuse of discretion in [granting or denying attorney's fees] will be found only if [an appellate court] determines that the trial court could not reasonably have concluded as it did." (Internal quotation marks omitted.) Hornung v. Hornung , 323 Conn. 144, 170, 146 A.3d 912 (2016). On our thorough review of the record, we cannot say that the court abused its discretion in denying the plaintiffs' request for attorney's fees and costs in the present case. The judgment is reversed only as to the fourth count of the plaintiffs' complaint and the case is remanded with direction to render judgment declaring the 2014 modification invalid. The judgment is affirmed in all other respects. In this opinion the other judges concurred. The plaintiffs also have raised claims concerning a reverter clause in the beach deed, their request to quiet title to the property in question, the applicability of the Common Interest Ownership Act, General Statutes § 47-200 et seq., and various constitutional rights under the state and federal constitutions that allegedly have been violated by the modification of the beach deed. In light of our resolution of the principal issue in this appeal, we do not address those contentions. The operative complaint, the plaintiffs' third amended complaint, named as defendants Beth M. Camassar, Reuben Levin, Lenore Levin, Edwin J. Roland, Mary B. Roland, Richard L. Thibeault, Theresa Tuthill, David Eder, Estella C. Kuptzin, Ronald J. Wofford, Jeffrey R. Seidel, Bethany R. F. Seidel, Eunice Greenberg, Trustee, Emily S. King, Daniel S. Firestone, Hope H. Firestone, Leonard T. Epstein, Sandra R. Epstein, Eric Parnes, Marilyn Parnes, Anthony C. Polcaro, Joanne L. Polcaro, John A. Spinnato, Janine, Stavri, Sophocles Stavri, Robert McLaughlin, Jr., Roberta I. McLaughlin, Stanley Banks, Elaine Banks, Shirley Gottesdiener, Trustee, Jerry C. Olson, Vivian C. Stanley, David M. Goebel, Earline B. Goebel, Ronald E. Beausoleil, Pamela Beausoleil, Marian E. Dippel, Marilyn Simonson, Barry Weiner, Cynthia C. Weiner, Debra B. Gruss, Savas S. Synodi, Christine Synodi, Barbara Sinclair, Richard Sinclair, Michael P. Shapiro, Elaine P. Shapiro, Miriam Levine, John Oliva, Nancy Krant, Mary Margaret Kral, Trustee, Kenneth C. Wimberly, Dawn Hickey Thibeault, James J. Correnti, Willa M. Correnti, Arnold D. Seifer, Judith A. Pickering, Hugh F. Lusk, Anne Marie Mitchell, Paul Burgess, Deborah Burgess, Michael J. Raimondi, Anne Marie Lizarralde, Manuel Lizarralde, George Synodi, and Maria S. Synodi. In that complaint, the plaintiffs alleged that those defendants "either had, on August 25, 2011, or now have an ownership interest in property located in [the subdivision]" or "either had, on December 23, 2014, or now have an ownership interest in property located in [the subdivision]." The complaint also named, as interested persons to the declaratory action pursuant to Practice Book § 17-56, Jean P. Tuneski, J. Robert Tuneski, Frank J. Pezzello, Mary D. Passero, Michael E. Passero, Rabbi Carl Astor, Congregation Beth El of New London, Inc., William Keating, Mary J. Keating, Michael Levine, Craig Barrila, Frank Fazio, Antionette Foster, Leila Shakkour, Willa M. Correnti, James J. Correnti, and Paul J. Botchis. With respect to those interested persons, the plaintiffs alleged that they "either had, on August 25, 2011, or now have an ownership interest in [property] located in [the subdivision], but did not participate in the [m]odification hereinafter complained of" or "either had, on December 23, 2014, or now have an ownership interest in [property] located in [the subdivision], but did not participate in the [m]odification hereinafter complained of ." On the first day of trial, the parties filed a stipulation of facts with the court, in which they stipulated, inter alia, that the language contained in the warranty and beach deeds that were marked as plaintiffs' exhibits 1 and 2 was "identical to the language contained in the [warranty] and beach deeds in the chains of title of all of the owners in the [subdivision]." Section 2 of the beach deed provides in relevant part: "[T]he Grantee, his heirs and assigns, shall use and have access to the premises conveyed in common with those to whom interests in said land have or may hereafter be granted solely for the purpose of sitting, taking family meals, and/or bathing upon the beach included within the northerly and southerly sides of said lot when projected in the same courses indefinitely toward the southeast. It being understood and agreed that said use of the premises by the grantee shall be limited to the grantee, his heirs and assigns, and those who dwell with and form a part of the family of the grantee upon the [beach] premises . conveyed by this grantor to this grantee by deed of even date herewith, and lodged for record herewith in the New London Land Records, and shall be exercised by the grantee and his family only during such times as they shall dwell on the premises last referred to. In the event the grantee shall lease the premises last referred to, the tenant thereof and those who dwell with and form a part of the family of said tenant may exercise the use to the same extent as the grantee and in lieu of the grantee's right to so use during the term of the lease. The word family as used herein shall have the same meaning as the term is defined in the [warranty deed] ." The warranty deed, in turn, defines "family" as "any collective body of persons who regularly reside together and form a single household, but shall not be deemed to include lodgers or boarders." We note in this regard that the beach deed states that "the Grantor . has remised, released, and forever QUITCLAIMED, and does by these presents, for itself and its successors and assigns justly and absolutely remise, release and forever QUITCLAIM until the said Grantee, his heirs and assigns, an undivided one-forty-eighth (1/48th) interest in" the beach. Prior to reciting the restrictive covenants governing the use of the beach, the beach deed states that "[t]he Grantee, by the acceptance of this deed covenants with Grantor, its successors and assigns, for the benefit of said Grantor, its successors and assigns and for all those who interest in said land may hereafter be granted ." The December 16, 2015 stipulation of facts filed by the parties states that "[t]he Billard Beach Association is a voluntary organization and has no authority over its members or other [subdivision] owners." In its memorandum of decision, the court emphasized that "the court and all parties are bound by the stipulation for purposes of this litigation." It is undisputed that, at all relevant times, Garon Camassar was not an owner of property in the subdivision. Section 7 of the 2011 modification stated: "Any [o]wner of a [r]esidential [l]ot may enforce any of the provisions of this agreement by way of injunctive relief in the Superior Court, New London Judicial District, and with respect thereto, shall be entitled to compensatory damages as well as punitive damages, as the Court may deem appropriate. In addition to the foregoing the prevailing party shall be entitled to reasonable attorney's fees and costs incurred as a result of such action." An unsigned copy of the bylaws of the association, as amended on July 23, 1990, was admitted into evidence at trial. Pursuant to those bylaws, the affairs of the association are governed by its executive committee, which "shall consist of nine members of the Association in good standing...." The record indicates that the executive committee alternatively is referred to as the "board" by members of the association. At trial, counsel for both the plaintiffs and the defendants clarified for the record that the terms "board" and "executive committee" were used synonymously. At trial, counsel for the defendants conceded that the 2011 modification was, as the plaintiffs' counsel put it, "void from the get-go." A withdrawal later was filed on behalf of Barrila by Attorney Mark E. Block on August 19, 2013. On March 3, 2014, Beth Jepsen was cited in as an additional party plaintiff. Defendant Robert McLaughlin, Jr., who was the president of the association at the time that the 2014 modification was drafted, offered undisputed testimony that he crafted the language of that document with Garon Camassar and Attorney Edward O'Connell. The 2014 modification revised the restrictive covenants contained in § 2 of the beach deed as follows: "(2) The [o]wners, their heirs and assigns, shall use and have access to and the right to use the [beach] in common with those to whom interests in said [beach] have or may hereafter be granted solely for the purpose of sitting, taking family meals, bathing and/or related activities upon the beach included within the northerly and southerly sides of said [beach] when projected in the same courses indefinitely toward the southeast. It being understood and agreed that said use of the [beach] by the [o]wners shall be limited to the [o]wners, their heirs and assigns, and those who dwell with and form a part of the family of the [o]wners, and to their parents, children and grandchildren, whether or not such parents, children or grandchildren dwell upon a [r]esidential [l]ot. The word 'family' as used herein shall be construed to mean any collective body of persons who regularly reside together and form a single household, but shall not be deemed to include lodgers or boarders. "(3) (a) Those persons who dwell in the residence who are [o]wners of the [r]esidential [l]ots appurtenant hereto (but not their parents, children or grandchildren) may invite [d]ay [g]uests to the [beach], not exceeding ten (10) in number. Provided, however, that an [o]wner of the [r]esidential [l]ot referred to herein be in attendance when such [o]wner's [d]ay [g]uests are present. A [d]ay [g]uest is an [o]wner's visitor who does not stay overnight at the [o]wner's residence. "(b) Those persons who dwell in the residence who are [o]wners of the [r]esidential [l]ots appurtenant hereto (but not their parents, children or grandchildren) may invite [h]ouse [g]uests to the [beach], not exceeding five (5) in number. An [o]wner need not be in attendance when a [h]ouse [g]uest is present at the [beach]. A [h]ouse [g]uest is an [o]wner's visitor who is an overnight guest at the [o]wner's residence. "(4) In the event the [o]wners shall lease a [r]esidential [l]ot, the tenant thereof and those who dwell with and form a part of the family of said tenant may exercise the use of the [beach] to the same extent as the grantees and in lieu of the grantees' right to so use during the term of the lease. "(5) Use of the [beach] by all persons, whether [o]wner, family member, tenant or guest, is further subject to the following: "a. Guests, as defined in [§] 3, may not exceed six (6) in number on Saturdays, Sundays and [l]egal [h]olidays between May 25th and September 10th of each year. "b. All campfires must be completely extinguished upon completion of use and all coals must be removed from the [beach] at the end of such use. No guest shall be permitted to maintain a campfire without the presence of an [o]wner. "c. Any garbage or debris generated from use or presence on the beach shall be removed from the [beach] at the time that the [o]wner, family member, tenant or guest departs the [beach]. "d. No beach parties shall be conducted earlier than 5 P.M. or later than 10 P.M. of any day. "e. No dogs, cats or other pets are permitted on the [beach] between May 25th and September 10th of each year. "f. No excessive noise shall be generated on the [beach] at any time. (6) If a [r]esidential [l]ot [o]wner anticipates that the number of guests will exceed the limits set forth in [§§] 3 and 5 hereof, the [o]wner shall notify an officer of the [association] of the proposed gathering. Such officer shall advise the [o]wner if any other gatherings are scheduled for the same date and time. If a conflict with a previously scheduled gathering exists, the [o]wner shall adjust his or her scheduled gathering as required. Any such gatherings shall not be held on weekends before 5:00 P.M." Section 7 of the 2014 modification provides: "The restrictions on the use of the premises contained in [§§] 2 through 5 hereof may be modified by a written vote of a majority of the Residential Lot Owners, in form suitable for recording in the New London Land Records. Each owner (or in the case of joint ownership or ownership in cotenancy, such joint owners or owners in cotenancy together) shall be entitled upon such vote to such number of votes as the numerator of their fractional interest in the property conveyed." At trial, Beth Jepsen provided uncontroverted testimony that Lizarralde's notice of the association's October 10, 2014 annual meeting, at which the 2014 modification was to be voted upon, was provided to owners of forty-one properties in the subdivision. In its memorandum of decision, the court likewise found that Lizarralde's October 3, 2014 notice was furnished to owners of forty-one of the forty-eight properties. That document stated: "The undersigned, an owner of property in the Billard subdivision herewith moves or votes as follows: "a. With respect to the Annual Meeting of the [association], I herewith give my proxy to vote at the Annual Meeting to be held on October 10, 2014, to [blank]. "b. With respect to the Amended and Restated Covenants and Restrictions [contained in the 2014 modification], I herewith vote as follows: "a. That the [2014 modification] be adopted. "b. That the [2014 modification] be rejected. "Dated at New London, Connecticut this [blank] day of [blank], 2014. "Property Owner [blank]." That notice stated: "Notice is hereby given that the Annual Meeting of the [association] shall be held on October 10, 2014, at the New London Senior Center, 120 Broad Street, New London, Connecticut, to transact the following business: "a. Election of Officers and Directors; "b. To vote upon the [2014 modification]; "c. To establish the dues structure for the upcoming year; "d. Discussion of old business and new business; "e. To transact any and all other business which may lawfully come before said meeting. "f. Adjournment. "Dated at New London, Connecticut this 2nd day of October 2014. "Billard Beach Association Board." A sign-in sheet titled "BILLARD BEACH LOT OWNERS 2014 (48) 2014 Annual Meeting October 10th" was admitted into evidence at trial. That document indicates that owners of twenty properties attended the October 10, 2014 annual meeting. One recipient of that communication, defendant Miriam Levine, replied to Lizarralde by e-mail that she "never voted yes to anything," which affirmation is confirmed by the proxy signed by Levine on October 9, 2014, in which Levine voted against the 2014 modification. Both Levine's e-mail to Lizarralde and Levine's October 9, 2010 proxy vote were admitted into evidence at trial. Two owners who cast proxy votes in favor of the 2014 modification, Mary Margaret Kral and Cynthia C. Weiner, ultimately did not sign the 2014 modification. Those signatures were made on various dates in November and December of 2014. It is undisputed that notice of the signing of the 2014 modification was not furnished to all property owners in the subdivision. We reiterate that both a copy of the 2014 modification filed on the New London land records and the defendants' September 22, 2015 notice of compliance with the plaintiffs' request for production, which included "[c]opies of all proxies submitted in conjunction with the [2014 modification]," were admitted into evidence at trial as plaintiffs' exhibits 7 and 24. Those exhibits indicate, and the parties do not dispute, that owners of seven properties that did not submit a written vote or proxy nevertheless signed the 2014 modification. They are: (1) Reuben Levin, Trustee, and Lenore Levin, Trustee; (2) Stanley Banks and Elaine Banks; (3) Kenneth C. Wimberly; (4) Eunice Greenberg, Trustee; (5) Estella C. Kuptzin; (6) Frank J. Pezzello and Debra B. Gruss; and (7) Hugh F. Lusk, for whom Janine Fay signed as "His Attorney-in-Fact." Following the close of the plaintiffs' case-in-chief on December 22, 2015, the defendants moved for a judgment of dismissal on the two slander counts, which the court denied. The defendants then rested without presenting any evidence. With respect to the notice issue, the plaintiffs stated that they "believe that fifteen days notice would be adequate advance notice, if it was given to all forty-eight owners, and if the notice included an explanation or warning as to how it differed from the original beach deed or how it would change owners' rights. However, those criteria were not met." The plaintiffs raised similar claims in the pretrial memorandum of law that they filed with the court on December 14, 2015. In its memorandum of decision, the court cited to plaintiffs' exhibit 24 and the "testimony of Beth Jepsen December 19, 2015" to substantiate that finding. Exhibit 24 is the response to the plaintiffs' request for production that was filed by the defendants and admitted into evidence. It contains copies of all ballot/proxies that were "submitted in conjunction with the 2014 deed modification." Only twenty-four votes in favor of the 2014 modification are contained therein. We further note that Beth Jepsen did not offer any testimony on December 19, 2015, but rather testified on December 22, 2015. Nowhere in her testimony does Jepsen acknowledge that any additional "votes in favor" were cast by property owners. Rather, Jepsen testified only that owners of twenty-eight or twenty-nine properties ultimately signed the 2014 modification. As she testified on cross examination: "[The Defendants' Attorney]: How many people signed the 2014 document? "[Jepsen]: I don't know individual people but I know it was about twenty-eight or twenty-nine properties. "[The Defendants' Attorney]: So that's a majority? "[Jepsen]: That's a majority of signatures. It's not a majority vote." Following the commencement of this appeal, the plaintiffs asked the court to articulate as to various factual and legal issues. Relevant to this appeal are two such requests. First, the plaintiffs asked the court to articulate whether "the proxy/ballots collected constituted a majority written vote, which was later memorialized by signature on the 2014 Modification, and if so, what was the proper process that the court found to be undertaken in that vote." Second, the plaintiffs asked the court to articulate "the basis for court's finding that 'seven more votes in favor . were received and accepted in the weeks thereafter' and further articulate how many proxies/ballots were accepted in that time period as opposed to how many 'signed documents' were accepted." The court heard argument on that motion on October 28, 2016, and thereafter issued a two-page articulation of its decision that did not address either of those two requests. The plaintiffs filed a motion for review of that articulation with this court, in which it argued that the trial court had "failed to articulate the factual and legal basis of its determinations that appropriate 'due process,' 'notice' and a 'vote' had occurred." This court granted that motion but denied the relief requested. Section 4 is one of five enumerated covenants in the beach deed. It states: "That the restrictions on the use of the [beach] contained in [§] 2 hereof may be modified by a majority vote in writing of the owners of the premises conveyed. Each owner, (or in the case of joint ownership or ownership in co-tenancy, such joint owners or owners in co-tenancy together) shall be entitled upon any such vote to such number of votes as the numerator of their fractional interest in the premises conveyed, and upon any such vote, the majority shall be determined according to the sum of the votes so counted." In its memorandum of decision, the court stated that "the plain language of the [1959] beach deed . specifically allows the owners of a majority of the house lots to modify the restrictions on the beach uses set forth in [§] 2." Section 7 of the 2014 modification states in relevant part that "[t]he restrictions on the use of the premises contained in [§§] 2 through 5 hereof may be modified by a written vote of a majority of the Residential Lot Owners, in form suitable for recording in the New London Land Records...." Section 7 of the 2014 modification also eliminated the requirement of § 4 of the beach deed that "upon any such vote, the majority shall be determined according to the sum of the votes so counted." See footnotes 14 and 28 of this opinion. In addition, § 8 through 12 of the 2014 modification all contain modifications to other provisions of the beach deed that do not pertain to the restrictions on the use of the beach set forth in § 2 of the beach deed. We note that the plaintiffs alternatively argue that the 2014 modification failed to comply with the requirement of "a written vote of at least 75 percent of the Residential Lot Owners" in the subdivision, as provided in the 2011 modification filed on the New London land records. At oral argument, the plaintiffs acknowledged that, if this court concludes that the 2014 modification was improperly enacted without "a majority vote in writing" of the owners of the forty-eight properties in the subdivision, as required by § 4 of the beach deed, there is no need to address that alternative contention. As our Supreme Court recently observed, "[a]lthough in most contexts the issue of intent is a factual question on which our scope of review is limited . the determination of the intent behind language in a deed, considered in the light of all the surrounding circumstances, presents a question of law on which our scope of review is plenary." (Internal quotation marks omitted.) Deane v. Kahn , 317 Conn. 157, 166, 116 A.3d 259 (2015). Section 4.1 of the Restatement states: "(1) A servitude should be interpreted to give effect to the intention of the parties ascertained from the language used in the instrument, or the circumstances surrounding creation of the servitude, and to carry out the purpose for which it was created. "(2) Unless the purpose for which the servitude is created violates public policy, and unless contrary to the intent of the parties, a servitude should be interpreted to avoid violating public policy. Among reasonable interpretations, that which is more consonant with public policy should be preferred." 1 Restatement (Third), supra, § 4.1, pp. 496-97. Despite a canvass of state and federal decisional law across this nation, we have discovered no authority involving a deed or contract with the "majority vote in writing" or the "votes so counted" language at issue in the present case. "The word 'such' has been construed as a related adjective referring back to and identifying something previously spoken of and that it naturally, by grammatical usage, refers to the last precedent." (Internal quotation marks omitted.) Nichols v. Warren , 209 Conn. 191, 197, 550 A.2d 309 (1988). In the operative complaint, the plaintiffs alleged that "[o]ne or more provisions of the 2014 Modification is contrary to the property interests of the Plaintiffs and all owners of interests in [the subdivision]" and that "[t]he 2014 Modification deprived individual owners of the land lots of significant property . rights." Accord Chapman v. Sheridan-Wyoming Coal Co ., 338 U.S. 621, 626-27, 70 S.Ct. 392, 94 L.Ed. 393 (1950) (concluding that restrictive covenant was a "property right" similar to an easement); Harris v. Pease , supra, 135 Conn. at 539-40, 66 A.2d 590 ("[t]he right of [the property owner] and his successors in title to have the [restrictive covenant] continued in force is a property interest which they have in [the property subject to that covenant]"); Grovenburg v. Rustle Meadow Associates, LLC , supra, 174 Conn. App. at 45, 165 A.3d 193 ("the right of one property owner to the protection of a restrictive covenant is a property right just as inviolable as is the right of others to the free use of their property when unrestricted" [internal quotation marks omitted] ); Downes-Patterson Corp . v. First National Supermarkets, Inc ., 64 Conn. App. 417, 428, 780 A.2d 967 ("the defendant possessed a property right that it had bargained for when it purchased its land"), cert. granted, 258 Conn. 917, 782 A.2d 1242 (2001) (appeal dismissed June 25, 2002); 135 Wells Ave., LLC v. Housing Appeals Committee , 478 Mass. 346, 357 n.10 and 358, 84 N.E.3d 1257 (2017) (noting that "deed restrictions are a property interest, a restrictive covenant on land" and describing restrictive covenants as "real property rights"); Malcolm v. Shamie , 95 Mich.App. 132, 290 N.W.2d 101, 102 (1980) ("restrictive covenants are valuable property rights subject to judicial protection"); Cunningham v. Gross , 102 N.M. 723, 725, 699 P.2d 1075 (1985) (restrictive covenants "constitute valuable property rights of all lot owners" in subdivision); Crane Neck Assn., Inc. v. NYC/Long Island County Services Group , 92 App. Div. 2d 119, 122, 460 N.Y.S.2d 69 (1983) ("restrictive covenants constitute private property rights which must be observed by the State"), aff'd, 61 N.Y.2d 154, 460 N.E.2d 1336, 472 N.Y.S.2d 901 (1984) ; Restatement (Third), supra, § 7.8, reporter's note, p. 383 ("in this Restatement, all servitude benefits are treated as property rights"). Section 4.10 of the Restatement addresses use rights conferred by servitude and notes that the holder of an instrument memorializing such rights "is entitled to use the servient estate in a manner that is reasonably necessary for the convenient enjoyment of the servitude...." 1 Restatement (Third), supra, § 4.10, p. 592. In "balancing the interests" of various holders, the Restatement recognizes that "neighborhood preservation concerns should be" a relevant consideration. Id., comment (h), p. 602. The requirement of a formal vote at which all property owners are afforded an opportunity to vote on any proposed modification to their beach use rights, rather than an effort to simply secure a majority of signatures on a document, strikes us as far more conducive to neighborhood preservation. As our Supreme Court has observed, "[a]ctions may be held to speak louder than words ." Malone v. Santora , 135 Conn. 286, 292, 64 A.2d 51 (1949). The construction advanced by the defendants is belied by the fact that the proponents of the 2014 modification deemed it necessary to both conduct a formal vote at the October 10, 2014 association meeting, and to materially alter the modification provisions of the beach deed. In part I A of this opinion, we concluded that those revisions to the modification provisions of the beach deed are invalid, as they were not enacted by unanimous consent of the owners of the forty-eight properties in the subdivision. Significantly, the 2014 modification amended the modification provisions of § 4 of the beach deed in several crucial respects. First, § 7 of the 2014 modification replaced "modified by a majority vote in writing of the owners" with "modified by a written vote of a majority of the Residential Lot Owners, in form suitable for recording in the New London Land Records." See footnote 14 of this opinion. Second, the 2014 modification eliminated altogether the requirement of § 4 that "upon any such vote, the majority shall be determined according to the sum of the votes so counted." In contrast to § 4 of the beach deed, all that is required to modify the restrictions on the use of the beach under the 2014 modification is the filing on the land records of an instrument signed by the owners of a majority of the properties in the subdivision. In addition, § 12 of the 2014 modification inserted new language regarding the manner in which such an instrument to modify the beach deed may be executed. That new section states that "[t]his Amendment and Restatement may be signed by the respective Owners in counterparts, each of which shall be deemed to be an original, but all of which together shall constitute one and the same instrument." "In counterparts," known also as "execution in counterparts," is a term of art that refers to the practice of compiling various documents and/or signatures to a contract and treating the combination thereof as a single agreement. See, e.g., Aubin v. Miller , Superior Court, judicial district of Fairfield, Docket No. CV 98-0355768-S, 2000 WL 487266 (Conn. Super. April 10, 2000), aff'd, 64 Conn. App. 781, 781 A.2d 396 (2001) ; Central Basin Municipal Water District v. Fossette , 235 Cal. App. 2d 689, 751, 45 Cal.Rptr. 651 (1965) ; Industrial Heat Treating Co. v. Industrial Heat Treating Co ., 104 Ohio App. 3d 499, 505, 662 N.E.2d 837, review denied, 74 Ohio St. 3d 1477, 657 N.E.2d 784 (1995). In the present case, the proponents of the 2014 modification utilized the very practice memorialized in § 12 of the 2014 modification in enacting the 2014 modification, as the signatures on that instrument appear on various documents bearing divers dates between November 9, 2014 and December 17, 2014. It nonetheless remains that § 4 of the beach deed contains no provision for that practice. We reiterate that § 4 of the beach deed pertains solely to the modification of the restrictions on the use of the beach contained in § 2 of the beach deed. In finding that Lizarralde's October 3, 2014 notice of the vote on the 2014 modification was provided to owners of only forty-one of the forty-eight properties in the subdivision, the court in its memorandum of decision stated that "[i]t appears that the [proponents of the 2014 modification] lacked the e-mail and home addresses for a few of the property owners ." The court then cited to Lizarralde's trial testimony on December 18, 2015, in support of that finding. A review of the transcripts reveals that no such statement is contained in Lizarralde's testimony or the testimony of any witness regarding the enactment of the 2014 modification. That finding thus is clearly erroneous. See McBurney v. Paquin , 302 Conn. 359, 368, 28 A.3d 272 (2011). Moreover, "a simple review of the town assessor's online records" would have disclosed the addresses of all property owners. Sinoway Family Partnership v. Zoning Board of Appeals , 50 Conn. Supp. 513, 522-23, 947 A.2d 20 (2007). Cf. Grovenburg v. Rustle Meadow Associates, LLC , supra, 174 Conn. App. at 82-83, 165 A.3d 193 ("[t]he concept of notice concerns notions of fundamental fairness, affording parties the opportunity to be apprised when their interests are implicated in a given matter" [internal quotation marks omitted] ); 9 Powell on Real Property, supra, § 60.08, p. 115 (noting that, with respect to modification of restrictive covenants, "[i]n all cases, due process must be observed as to general amendment and voting procedures"). The plaintiffs also were not accompanied by legal counsel at the October 10, 2014 association meeting. We cannot speculate as to what impact the failure to provide notice to all property owners had on the formal vote on the 2014 modification, or whether such notice would have impacted the decisionmaking of other owners in the subdivision. See New Hartford v. Connecticut Resources Recovery Authority , 291 Conn. 502, 510, 970 A.2d 578 (2009) (speculation and conjecture have no place in appellate review). Those minutes state in relevant part that McLaughlin, who at that time was president of the association, began the meeting by stating that "we [are] here to discuss the adoption of the [2014 modification]." The minutes further state that "[t]he vote for this [2014 modification] would remain open until November 1 ." In her November 6, 2014 e-mail to certain owners, Lizarralde stated in relevant part: "Many thanks to everyone who voted yes to amend the [beach deed]. We received a majority of yes votes and so . we now need to have each of you sign the official document that will be notarized...." At trial, Lizarralde testified that a majority of written votes in favor of the 2014 modification had not been received at that time. In their appellate brief, the defendants claim that the proxies completed by owners of twenty-six properties do not constitute votes because "there were issues other than the [2014] modification on the October meeting agenda that required votes, and that the proxies applied to those issues." That contention is untenable, as the sole matter specified on the "BILLARD BEACH ASSOCIATION BALLOT OR PROXY" was the "vote" to either adopt or reject the 2014 modification. See footnote 16 of this opinion. We repeat that, prior to trial, the plaintiffs served a request for production on the defendants, in which they sought, inter alia, "[c]opies of all proxies submitted in conjunction with the 2014 Deed Modification." The defendants complied with that request, and produced copies of twenty-six proxy votes, which were admitted into evidence at trial. We acknowledge that the plaintiffs' complaint also sought to have the court quiet title to the beach. In its memorandum of decision, the trial court did not address that request. See NPC Offices, LLC v. Kowaleski , 320 Conn. 519, 534, 131 A.3d 1144 (2016). In light of the trial court's declaration that the 2011 modification is null and void, and our conclusion that the 2014 modification likewise is invalid, further consideration of the plaintiffs' quiet title request is unnecessary. As a result of our decision today, title to the beach remains as it was prior to the enactment of the 2011 and 2014 modifications. For example, McLaughlin testified that the modifications were enacted to protect owners in the subdivision for liability and insurance purposes. Beausoleil testified that, despite his efforts, the association was unable to obtain insurance on the beach. Firestone similarly testified that the proponents of the modifications were "afraid of insurance situations.... We were worried as homeowners" about activity on the beach. At trial, Beth Jepsen was asked whether, "[o]utside of the modification, has anyone in [the subdivision], an owner, a member of the board, a member of the association in any way interfered with your use of the beach?" She answered, "No. They didn't enforce their document." Beth Jepsen further testified that, since those modifications were enacted, no one had asked a guest of theirs to leave the beach. As two examples of the special defenses at issue, we note that the April 30, 2012 answer and special defenses filed by defendants Christine Synodi and Savas Synodi alleges in relevant part: "Upon information and belief, the [p]laintiffs had notice of the [m]odification . and refused any opportunity to review the same; therefore, [p]laintiffs must therefore be equitably estopped from claiming [that] 'The [m]odification was enacted without the knowledge and consent of the [p]laintiffs .' " The September 22, 2015 answer and special defenses filed by four dozen defendants similarly alleges that the plaintiffs "had notice of the proposed modifications to the covenants and restrictions, but declined to participate in meaningful discussions regarding same. If they had any right to notice and an opportunity to be heard regarding said modifications, they have waived any such right that may exist." General Statutes § 52-245 provides: "In any case in which an affidavit has been filed by the defendant, or a statement that he has a bona fide defense has been made to the court by his attorney, and the plaintiff recovers judgment, if the court is of the opinion that such affidavit was filed or statement made without just cause or for the purpose of delay, it may allow to the plaintiff, at its discretion, double costs, together with a reasonable counsel fee to be taxed by the court." Practice Book § 13-25 provides: "If a party fails to admit the genuineness of any document or the truth of any matter as requested herein, and if the party requesting the admissions thereafter proves the genuineness of the document or the truth of the matter, such party may apply to the court for an order requiring the other party to pay the reasonable expenses incurred in making that proof, including reasonable attorney's fees. The judicial authority shall make the order unless it finds that such failure to admit was reasonable."

12493210

John K. FINNEY v. CAMERON'S AUTO TOWING REPAIR

Finney v. Cameron's Auto Towing Repair

2018-01-23

AC 39526

789

794

179 A.3d 789

179

West's Atlantic Reporter, Third Series

Connecticut Appellate Court

Connecticut

2021-08-27T20:57:29.410267+00:00

Fastcase

John K. FINNEY v. CAMERON'S AUTO TOWING REPAIR

John K. FINNEY v. CAMERON'S AUTO TOWING REPAIR AC 39526 Appellate Court of Connecticut. Argued October 19, 2017 Officially released January 23, 2018 John K. Finney, self-represented, the appellant (plaintiff). Edward W. Case, for the appellee (defendant). Lavine, Sheldon and Elgo, Js.

2675

16004

SHELDON, J. The plaintiff, John K. Finney, commenced this action alleging that the defendant, Cameron's Auto Towing Repair, breached its contract to repair his vehicle. The defendant denied that it had agreed to repair the plaintiff's vehicle and filed a counterclaim alleging that the plaintiff had failed to pay it for the towing and storage of his vehicle, and, thus, that he had abandoned it. The plaintiff appeals from the summary judgment rendered in favor of the defendant on his complaint and the defendant's counterclaim. We conclude that the trial court properly determined that the defendant was entitled to summary judgment on the plaintiff's complaint because it established that there was no genuine issue of material fact as to its right to prevail on the plaintiff's claim. We further conclude, however, that the court erred in granting summary judgment in favor of the defendant on its counterclaim against the plaintiff because the defendant failed to state any basis upon which it was entitled to judgment on the claim therein pleaded, either in its motion for summary judgment or in its supporting memorandum of law. Accordingly, we affirm in part and reverse in part the judgment of the trial court. The following facts are undisputed. On November 12, 2015, the plaintiff was involved in a motor vehicle accident that rendered his vehicle inoperable. At the command of the Connecticut State Police, the plaintiff's vehicle was towed to the defendant's vehicle storage facility, where it remained. The plaintiff never paid the defendant for towing his vehicle or for storing the vehicle at its facility. The self-represented plaintiff commenced this action on February 1, 2016. In his complaint, he alleged that the defendant had failed to give him a timely estimate for the repair of his vehicle. The plaintiff claimed that, ten days after the defendant towed his vehicle to its facility, it gave him an oral estimate of the cost to repair his vehicle, in the approximate amount of $867, which he agreed to pay. The plaintiff further alleged that he waited another ten days for the repairs to be completed, but then was informed by the defendant that the "car was up for abandonment." On March 3, 2016, the plaintiff filed a revised complaint, in which he once again claimed, inter alia, that the defendant had failed to give him a "timely estimate" for the repair of his vehicle, and that he had delayed retrieving the vehicle from the defendant's facility because he had been led to believe that the vehicle was being repaired, when in fact, it was not. On May 2, 2016, the defendant filed an answer and special defenses to the plaintiff's complaint. In its answer, the defendant denied "any and all allegations relating to fraud" that the plaintiff had made against it and left the plaintiff to his proof as to all of his other allegations of "wrongdoing." By way of special defenses, the defendant claimed that the plaintiff's complaint failed to state a claim upon which relief could be granted and that the plaintiff had "failed to mitigate his damages by failing, refusing and neglecting to pay for the towing and storage of his vehicle and take possession of the same in a timely manner." The defendant also filed a counterclaim in which it alleged, inter alia, that: "Pursuant to [General Statutes] § 14-150 (g), the [defendant] has a lien on the [plaintiff's] vehicle for storage and towing charges, and as a result seeks a declaration of abandonment by [the] court, so that the vehicle can be sold to satisfy the towing and storage charges." The next day, on May 3, 2016, the defendant filed a motion for summary judgment and a supporting memorandum of law, on the ground that "there is no dispute as to any material fact regarding the plaintiff's claim in this action." The plaintiff did not file a written objection to the motion, or any affidavits or other documentation in opposition thereto. Although the plaintiff was present in court the first time the defendant's motion for summary judgment appeared on the short calendar, neither the defendant nor its counsel was present, and so the motion was marked off. The next time the motion appeared on the short calendar, on June 6, 2016, the plaintiff did not appear, but the hearing on the motion proceeded, with the defendant, through its counsel, presenting the only argument. By way of an order dated July 29, 2016, the court rendered summary judgment in favor of the defendant on the plaintiff's complaint and on the defendant's counterclaim. In its order, the court stated: "After the defendant came into possession of the plaintiff's vehicle, the defendant advised [the] plaintiff of the towing and storage charges. The plaintiff had not paid the storage charges or the towing charges as of the day of the hearing [on the defendant's motion for summary judgment]. The plaintiff did not have collision insurance on the day of [his motor vehicle accident] and had left his vehicle with the defendant at its storage facility. The defendant filed a counterclaim." The court thereafter ruled on the motion as follows: "For the foregoing reasons the court concludes [that] there are no genuine issues of material fact and [that] there is no showing of wrongful conduct alleged as to the defendant. Therefore, the court grants summary judgment as to the plaintiff's complaint on all charges and grants the defendant's counterclaim, [pursuant to] § 14-150 (a)." This appeal followed. "Our review of the trial court's decision to grant a motion for summary judgment is plenary." (Internal quotation marks omitted.) Brusby v. Metropolitan District , 160 Conn. App. 638, 646, 127 A.3d 257 (2015). Practice Book § 17-49 provides that "[summary] judgment . shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." "In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party.... Although the party seeking summary judgment has the burden of showing the nonexistence of any material fact . a party opposing summary judgment must substantiate its adverse claim by showing that there is a genuine issue of material fact together with the evidence disclosing the existence of such an issue . It is not enough . for the opposing party merely to assert the existence of such a disputed issue. . Mere assertions of fact, whether contained in a complaint or in a brief, are insufficient to establish the existence of a material fact and, therefore, cannot refute evidence properly presented to the court [in support of a motion for summary judgment].... "As a general rule, then, [w]hen a motion for summary judgment is filed and supported by affidavits and other documents, an adverse party, by affidavit or as otherwise provided by . [the rules of practice], must set forth specific facts showing that there is a genuine issue for trial, and if he does not so respond, summary judgment shall be entered against him. . Requiring the nonmovant to produce such evidence does not shift the burden of proof. Rather, it ensures that the nonmovant has not raised a specious issue for the sole purpose of forcing the case to trial." (Emphasis in original; internal quotation marks omitted.) Marsala v. Yale-New Haven Hospital, Inc. , 166 Conn. App. 432, 458-59, 142 A.3d 316 (2016). In other words, the failure of a nonmoving party to controvert by affidavit or otherwise any of the facts set forth in an affidavit filed by the movant in support of summary judgment entitles the court in deciding the summary judgment motion to rely upon those facts as stated. Fogarty v. Rashaw , 193 Conn. 442, 444-45, 476 A.2d 582 (1984). The plaintiff first challenges the summary judgment rendered in favor of the defendant on his complaint. It is undisputed that the plaintiff failed to pay the towing and storages fees he owed to the defendant. He claims, however, that the storage fees that accrued resulted from the defendant's delay in giving him an estimate of the cost to repair his vehicle and misrepresentation to him that it was repairing his car after it had agreed to do so. Attached to its motion for summary judgment, the defendant submitted an affidavit of its owner, Salvatore Sena, Jr., who averred, inter alia, that he had never agreed to repair the plaintiff's vehicle and that the plaintiff had been free to pick up his vehicle at any time after he paid the towing and storage fees. The plaintiff, having failed to file an objection to the defendant's motion, much less any countering affidavits or other evidence in opposition thereto, did not refute any of the averments in Sena's affidavit. Because the plaintiff failed to provide any evidentiary support for his claim that the defendant had agreed to repair his vehicle and to provide him an estimate of the cost of such repairs, the court was entitled to rely on Sena's uncontradicted averments that the defendant had never agreed with the plaintiff to make or estimate the costs of such repairs. In the absence of any genuine issue of material fact as to the formation of such an agreement between the parties, the court properly determined that the defendant was entitled to judgment on his claim of breach of contract as a matter of law. The court also granted summary judgment on the defendant's counterclaim. The defendant did not specify in its motion for summary judgment that it was seeking judgment on the counterclaim. Instead, in the memorandum of law attached to its motion, it set forth only the factual basis for its argument that there was no genuine issue of material fact as to the claim of breach of contract set forth in the plaintiff's complaint. As to its own counterclaim, by contrast, the defendant simply described the claim as follows: "The defendant has filed a counterclaim seeking a declaration of abandonment by [the] court due to the plaintiff's failure to pay for the towing and storage charges or to otherwise make arrangements to pay for the same." Thereafter, in the last paragraph of its memorandum of law, the defendant merely asked the court, in conclusory fashion, to grant summary judgment in its favor on the plaintiff's complaint and "order the plaintiff's vehicle abandoned pursuant to [§] 14-150 (a), so that the defendant can sell said vehicle to recover [its] losses for towing and storage charges the plaintiff failed to pay." The defendant did not recite the language or requirements of the statute pursuant to which it claimed it was entitled to judgment on its counterclaim; nor did it argue that it had satisfied those statutory requirements, and thus become entitled to judgment on the counterclaim as a matter of law. Section 14-150 (a), the statute pursuant to which the defendant sought summary judgment declaring that the plaintiff's vehicle was abandoned, and the statute cited by the trial court in granting the defendant's motion for summary judgment, provides as follows: "Any person who abandons any motor vehicle within the limits of any highway or upon property other than such person's own without the consent of the owner thereof for a period longer than twenty-four hours shall have committed an infraction and shall be fined not less than eighty-five dollars. The last owner of record of a motor vehicle found abandoned, as shown by the files of the Department of Motor Vehicles, shall be deemed prima facie to have been the owner of such motor vehicle at the time it was abandoned and the person who abandoned the same or caused or procured its abandonment." So written, § 14-150 (a) does not pertain to the plaintiff's vehicle, which was neither abandoned on any highway nor on the defendant's property without its consent. Hence, although the defendant may be entitled to judgment under a different subsection of § 14-150, particularly subsection (g), as it claimed in its counterclaim, its memorandum of law is devoid of any argument or analysis in support of its motion for summary judgment on the counterclaim. The defendant, thus, failed to show that it was entitled to judgment on the counterclaim as a matter of law. The judgment on the complaint is affirmed. The judgment on the counterclaim is reversed and the case is remanded for further proceedings according to law. In this opinion the other judges concurred. Attached to his revised complaint, the plaintiff submitted a document entitled, "Laws that were violated," and lists the following: abandoned motor vehicles; larceny by extortion; fraud and false statements, including fraudulent/intentional misrepresentation, intentional negligence, failure to warn, and false information and hoaxes; tortious interference; unsworn declaration under penalty of perjury; general admissibility of relevant evidence; perjury; accessory after the fact; punitive damages. Because the plaintiff merely set forth these alleged violations in list form, as an attachment to his complaint, they were not properly pleaded in his complaint. General Statutes § 14-150 (g) provides: "The owner or keeper of any garage or other place where such motor vehicle is stored shall have a lien upon the same for such owner's or keeper's towing or storage charges, or both, that result from towing or storage under this section. Unless title has already vested in the municipality pursuant to subsection (d) of this section, if the current market value of such motor vehicle as determined in good faith by such owner or keeper does not exceed one thousand five hundred dollars and such motor vehicle has been stored for a period of not less than fifteen days, such owner or keeper may, unless an application filed by the owner pursuant to subsection (e) of this section is pending and the owner of such motor vehicle has notified such owner or keeper that such application for hearing has been filed, sell the same for storage and towing charges owed thereon, provided a notice of intent to sell shall be sent to the commissioner, the owner and any lienholder of record of such motor vehicle, if known, five days before the sale of such vehicle. If the current market value of such motor vehicle as determined in good faith by such owner or keeper exceeds one thousand five hundred dollars and if such motor vehicle has been so stored for a period of forty-five days, such owner or keeper shall, unless an application filed by the owner pursuant to subsection (e) of this section is pending and the owner of such motor vehicle has notified such owner or keeper that such application for hearing has been filed, sell the same at public auction for cash, at such owner's or keeper's place of business, and apply the avails of such sale toward the payment of such owner's or keeper's charges and the payment of any debt or obligation incurred by the officer who placed the same in storage, provided if the last place of abode of the owner of such motor vehicle is known to or may be ascertained by such garage owner or keeper by the exercise of reasonable diligence, notice of the time and place of sale shall be given to such owner and any lienholder of record by mailing such notice to such owner by certified mail, return receipt requested, at such last usual place of abode, at least five days before the time of sale. At any public auction held pursuant to this subsection, such garage owner or keeper may set a minimum bid equal to the amount of such owner's or keeper's charges and obligations with respect to the tow and storage of the motor vehicle. If no such bid is made, such owner or keeper may sell or dispose of such vehicle."

12493205

Gail REINKE v. Walter SING

Reinke v. Sing

2018-03-13

SC 19687

769

778

179 A.3d 769

179

West's Atlantic Reporter, Third Series

Connecticut Supreme Court

Connecticut

2021-08-27T20:57:29.410267+00:00

Fastcase

Gail REINKE v. Walter SING

Gail REINKE v. Walter SING SC 19687 Supreme Court of Connecticut. Argued September 11, 2017 Officially released March 13, 2018 Eric M. Higgins, with whom, on the brief, was Leonard M. Braman, for the appellant (plaintiff). Reine C. Boyer, for the appellee (defendant). Livia D. Barndollar filed a brief for the Connecticut Bar Association as amicus curiae. Campbell D. Barrett, Jon T. Kukucka and Johanna S. Katz filed a brief for the Connecticut Chapter of the American Academy of Matrimonial Lawyers as amicus curiae. Palmer, Eveleigh, McDonald, Robinson, D'Auria and Espinosa, Js. The listing of justices reflects their seniority status on this court as of the date of oral argument.

5394

33527

PALMER, J. Under General Statutes § 46b-86(a), unless a dissolution decree provides otherwise, the trial court may at any time modify any final order for the periodic payment of alimony upon a showing of a substantial change in the circumstances of either party, but may not modify any assignment of the estate or a portion thereof of one party to the other party. In this certified appeal, the plaintiff, Gail Reinke, appeals from the judgment of the Appellate Court, which reversed the trial court's decision to modify the property distribution orders in a prior judgment dissolving her marriage to the defendant, Walter Sing. The plaintiff claims that the Appellate Court incorrectly concluded that, under § 46b-86 (a), in the absence of a finding of fraud, the trial court lacked subject matter jurisdiction to modify the prior judgment. We agree and, accordingly, reverse the judgment of the Appellate Court. The opinion of the Appellate Court sets forth the following relevant facts and procedural history. "The parties were married in 1989 and had two children. The plaintiff [holds] a bachelor's degree and previously had been employed in a number of well paying jobs. During the marriage, she became a homemaker; she also worked part-time 'from time to time.' The defendant [holds] a degree in mathematics, and he worked throughout the marriage, most recently as a self-employed consultant. "The marriage was dissolved by the trial court, Hon. Dennis F. Harrigan , judge trial referee, on October 2, 2007. The parties entered into a 'Stipulation for Judgment,' which was incorporated into the judgment of dissolution. On May 3, 2010, the plaintiff filed a motion to open the judgment of dissolution on the basis of fraud, claiming that the defendant failed to disclose some of his assets on the financial affidavit relied [on] at the time of the dissolution. On September 28, 2010, the trial court, Shay, J. , opened the judgment 'by oral agreement of both parties, without a finding of fraud,' in order to reassess the financial orders. "Following a trial, the court issued its decision on August 23, 2013. The court found that the defendant's income actually had been twice the amount that the defendant disclosed at the time of the original dissolution, and the lesser amount had been relied on in formulating the terms of the initial stipulation and judgment. The court also found that the defendant had underreported the values of his investment accounts, retirement accounts, life insurance, and anticipated tax refund; he also underreported the value of the plaintiff's share of a condominium in New Jersey. The court, therefore, ordered the amount and term of the alimony altered, the amounts the defendant owed to the plaintiff with respect to various marital assets and retirement accounts altered, and awarded the plaintiff attorney's fees. On September 27, 2013, the court issued a correction to its memorandum of decision; the correction fixed a calculation error, but the court declined to amend its prior award of attorney's fees." (Footnote omitted.) Reinke v. Sing , 162 Conn. App. 674, 675-76, 133 A.3d 501 (2016). The plaintiff appealed to the Appellate Court, which, sua sponte, "ordered the trial court to articulate whether, in granting the motion to open 'without a finding of fraud,' it found there was no fraud or was simply not making a finding regarding fraud. The trial court issued an articulation . stating that, at the time the judgment was opened, it made no finding one way or the other, but that, after hearing the evidence, it found that the plaintiff had failed to prove fraud by clear and convincing evidence. Both parties submitted supplemental briefs in response to the trial court's articulation; the plaintiff argued, in essence, that failing to find fraud was clearly erroneous, and the defendant disagreed." Id., at 677, 133 A.3d 501. In light of the trial court's articulation, the Appellate Court then "requested the parties to submit supplemental briefs on the question of whether the trial court had subject matter jurisdiction to open the judgment in the absence of a finding of fraud." Id. In answering that question, the Appellate Court "directed the parties' attention to Sousa v. Sousa , 157 Conn. App. 587, 116 A.3d 865 [ (2015), rev'd, 322 Conn. 757, 143 A.3d 578 (2016) ]," in which the court noted that § 46b-86(a) "deprives the Superior Court of continuing jurisdiction over that portion of a dissolution judgment providing for the assignment of property of one party to the other party ." (Internal quotation marks omitted.) Id., at 595-96, 116 A.3d 865. The Appellate Court reversed the trial court's decision, explaining that, during the pendency of the appeal, the court decided Forgione v. Forgione , 162 Conn. App. 1, 6-8, 129 A.3d 766 (2015), cert. denied, 320 Conn. 920, 132 A.3d 1094 (2016), a case directly on point that held that, "in the absence of a finding or concession of fraud, the trial court lack[s] subject matter jurisdiction to open a dissolution judgment, at least as to the division of the parties' marital assets, despite an agreement by the parties to permit the trial court to do so." Reinke v. Sing , supra, 162 Conn. App. at 677, 133 A.3d 501. In light of its determination that the trial court lacked subject matter jurisdiction to open the judgment and to enter the modification order without a finding of fraud, the Appellate Court declined to reach the merits of the plaintiff's claims on appeal. See id., at 677-78, 133 A.3d 501. We granted the plaintiff's petition for certification to appeal, limited to the issue of whether "the Appellate Court correctly determine[d] that, in the absence of a finding of fraud, the trial court lacked subject matter jurisdiction to open the parties' judgment of dissolution of their marriage." Reinke v. Sing , 321 Conn. 911, 912, 136 A.3d 644 (2016). We now reverse the Appellate Court's judgment. A determination regarding a trial court's subject matter jurisdiction is a question of law over which we exercise plenary review. See, e.g., Connecticut Coalition Against Millstone v. Rocque , 267 Conn. 116, 127-28, 836 A.2d 414 (2003). "Subject matter jurisdiction involves the authority of the court to adjudicate the type of controversy presented by the action before it.... [A] court lacks discretion to consider the merits of a case over which it is without jurisdiction . The subject matter jurisdiction requirement may not be waived by any party, and also may be raised by a party, or by the court sua sponte, at any stage of the proceedings, including on appeal." (Internal quotation marks omitted.) Sousa v. Sousa , 322 Conn. 757, 770, 143 A.3d 578 (2016). In determining whether a court has subject matter jurisdiction, however, we indulge every presumption in favor of jurisdiction. E.g., Connecticut Light & Power Co. v. Costle , 179 Conn. 415, 421 n.3, 426 A.2d 1324 (1980). In concluding that the trial court lacked subject matter jurisdiction to open the dissolution judgment, the Appellate Court relied on Forgione ; see Reinke v. Sing , supra, 162 Conn. App. at 677, 133 A.3d 501 ; which, in turn, relied on Sousa v. Sousa , supra, 157 Conn. App. 587, 116 A.3d 865 ; see Forgione v. Forgione , supra, 162 Conn. App. at 6-8, 129 A.3d 766 ; in which the Appellate Court determined that § 46b-86(a) deprived the trial court of subject matter jurisdiction to modify, by stipulation of the parties, a property distribution order contained in a prior judgment of dissolution. See Sousa v. Sousa , supra, 157 Conn. App. at 595-96, 116 A.3d 865. For the reasons set forth hereinafter, we conclude that Sousa v. Sousa , 157 Conn. App. 587, 116 A.3d 865, was wrongly decided. We further conclude that General Statutes § 52-212a authorized the trial court in the present case to open the dissolution judgment in accordance with the parties' agreement. Accordingly, we reverse the Appellate Court's judgment and remand the case to that court for consideration of the merits of the plaintiff's claims. To fully understand the Appellate Court's error in the present case, it is necessary to examine that court's decision in Sousa . In Sousa , the parties were divorced in 2001, and, pursuant to the parties' separation agreement, the husband's pension was divided equally between the parties. Sousa v. Sousa , supra, 157 Conn. App. at 590, 116 A.3d 865. The husband was required to pay periodic alimony of $130 per week, "subject to termination at the end of five years, or earlier upon the [wife's] cohabitation or the death of either party." (Internal quotation marks omitted.) Id., at 591, 116 A.3d 865. "Approximately two years after the divorce, the [wife] began cohabitating with [her boyfriend] . Upon becoming aware of the situation, the [husband] informed the [wife] that she was in violation of their divorce agreement and that he would be seeking to terminate the alimony. After some discussion . [t]he [wife] proposed to waive her right to her share of the [husband's] pension in exchange for a continuation of the alimony for three years despite her admitted cohabitation. The [husband] agreed to the proposal and continued to pay the alimony.... "After the conclusion of the five year alimony period established by the terms of the separation agreement, the [husband] filed a motion to modify [the] judgment in accordance with [the parties' agreement that] . the full pension [would be] returned to him. By agreement, his counsel prepared the motion and the accompanying stipulation, which was signed by both parties and submitted to the court for approval.... "During the hearing [on the motion, the court] canvassed the [wife], asking if she had reviewed the terms and conditions of the stipulation with a family relations officer, to which she replied in the affirmative. The terms of the stipulation were then read into the record. The [court] then asked [the wife] why she was entering into this agreement, which waived her right to receive any portion of the [husband's] pension.... [She] . replied that it was her idea, pursuant to an agreement entered into three years earlier that provided that the [husband] would not cease alimony payments and she would relinquish her portion of his pension." (Internal quotation marks omitted.) Id., at 591-92, 116 A.3d 865. "Four years after the entry of the [modification] order . the [wife] filed a . motion to vacate the . order . claiming that the court . lacked jurisdiction to enter such an order." (Internal quotation marks omitted.) Id., at 592, 116 A.3d 865. The court denied the motion and rejected the wife's "argument that . it lacked subject matter jurisdiction to modify the order in the judgment of dissolution dividing the plaintiff's pension benefits equally between the parties. The court quoted . § 52-212a, which provides in relevant part that 'a civil judgment or decree rendered in the Superior Court may not be opened or set aside unless a motion to open or set aside is filed within four months following the date on which it was rendered or passed.' Section 52-212a further provides in relevant part that '[t]he parties may waive the provisions of this section or otherwise submit to the jurisdiction of the court .' Guided by that language, the court determined that, although the order modifying the judgment of dissolution was entered well over four months after the court rendered the judgment of dissolution, the parties had acquiesced to the court's jurisdiction by submitting a stipulation requesting a modification.... As a result, the court denied the . motion to vacate." (Footnote omitted.) Id., at 593-94, 116 A.3d 865. The wife appealed to the Appellate Court, which, notwithstanding the language in § 52-212a authorizing the court to open a judgment after four months if the parties voluntarily submit to the court's jurisdiction, concluded that § 46b-86(a) expressly "deprives the Superior Court of continuing jurisdiction over that portion of a dissolution judgment providing for the assignment of property of one party to the other party under [General Statutes] § 46b-81.... A court, therefore, does not have the authority to modify the division of property once the dissolution becomes final." (Internal quotation marks omitted.) Id., at 595-96, 116 A.3d 865. According to the Appellate Court, the trial court improperly relied on § 52-212a because that provision "does not confer jurisdiction on a court"; id., at 597, 116 A.3d 865 ; but merely "permits parties to waive the statutory deadline imposed on the filing of motions to open and to submit to jurisdiction otherwise conferred on a court by statute." Id. The Appellate Court further explained that, because "the [trial] court did not have subject matter jurisdiction to enter the modified order requested by the parties through their stipulation"; id. ; it "had no subject matter jurisdiction for the parties to submit to before considering the substantive provisions of § 52-212a." Id., at 597-98, 116 A.3d 865. In reaching its determination in Sousa , the Appellate Court also rejected the husband's contention that, under Urban Redevelopment Commission v. Katsetos , 86 Conn. App. 236, 860 A.2d 1233 (2004), cert. denied, 272 Conn. 919, 866 A.2d 1289 (2005), the doctrine of finality of judgments precluded the wife's claim that the trial court lacked subject matter jurisdiction to modify the parties' dissolution judgment. See Sousa v. Sousa , supra, 157 Conn. App. at 599-601, 116 A.3d 865. The Appellate Court reasoned that the facts and procedural history of Sousa fell within an exception to the finality of judgments doctrine for cases in which the trial court's lack of subject matter jurisdiction was "entirely obvious" to the parties when the court entered the modification order. Id., at 600, 116 A.3d 865. Specifically, the court explained that, when the court entered the modification order, it was entirely obvious to the parties that § 46b-86(a) "unequivocally" deprived the court of subject matter jurisdiction to modify the dissolution judgment. Id. The court therefore concluded that it was not necessary for it to "apply the factors set forth in Urban Redevelopment Commission to determine whether the doctrine of finality of judgments preclude[d] the [wife's] subject matter jurisdiction claim." Id., at 600-601, 116 A.3d 865. On appeal to this court following our granting of certification, the husband in Sousa claimed that the Appellate Court incorrectly determined that the doctrine of finality of judgments did not preclude his wife's collateral attack on the trial court's modification of the underlying dissolution judgment. Sousa v. Sousa , supra, 322 Conn. at 767, 143 A.3d 578. We agreed with that claim; see id., at 770, 143 A.3d 578 ; noting that, to be "entirely obvious" for purposes of avoiding the preclusive effects of the finality of judgments doctrine, "a jurisdictional deficiency must amount to a fundamental mistake that is so plainly beyond the court's jurisdiction that its entertaining the action was a manifest abuse of authority" and, further, that "[o]ur cases demonstrate that it is extraordinarily rare for a tribunal's jurisdiction to be so plainly lacking that it is entirely obvious." (Internal quotation marks omitted.) Id., at 773, 143 A.3d 578. We also stated that "Connecticut's case law is in conflict regarding whether the modification of a property distribution postdissolution implicates the court's subject matter jurisdiction or merely its statutory authority.... Those cases standing for the proposition that the statutory restriction on postjudgment modification of property distribution is jurisdictional, on which the Appellate Court relied in [Sousa ], do not address the distinction made by [this court] in Amodio v. Amodio , [247 Conn. 724, 728, 724 A.2d 1084 (1999) ], that the court's authority to act pursuant to a statute is different from its subject matter jurisdiction.... The mere existence of this conflict, along with the Superior Court's general jurisdiction over family matters under [General Statutes] § 46b-1, demonstrates that, even if we assume, without deciding, that the restriction of postjudgment modification of property distributions in § 46b-86(a) is in fact jurisdictional in nature, it is far from entirely obvious that [the trial court] was without subject matter jurisdiction . when [it] modified the pension distribution." (Citations omitted; footnotes omitted; internal quotation marks omitted.) Sousa v. Sousa , supra, 322 Conn. at 777-80, 143 A.3d 578. We noted, finally, that the issue of whether § 46b-86(a) erects a subject matter jurisdictional bar to postjudgment modification of property distribution orders would soon be resolved in light of our then recent granting of the plaintiff's petition for certification in the present case. See id., at 780 n.16, 139 A.3d 778, citing Reinke v. Sing , supra, 321 Conn. at 912, 136 A.3d 644. As we indicated in Sousa , this court's decision in Amodio v. Amodio , supra, 247 Conn. 724, 724 A.2d 1084, is highly relevant to our resolution of this appeal. In Amodio , the issue to be decided was whether the Appellate Court properly determined that, under § 46b-86(a), the trial court lacked subject matter jurisdiction to modify a support order when "the parties' dissolution decree unambiguously foreclosed modification of the support order unless the [husband] earned more than $900 per week, and the [husband's] financial affidavit indicated that his income had remained at that level." Id., at 727, 724 A.2d 1084. The Appellate Court in Amodio explained that, although a trial court has jurisdiction to entertain a modification of a support order "[u]nless and to the extent that the decree precludes modification"; (internal quotation marks omitted) Amodio v. Amodio , 45 Conn. App. 737, 740, 697 A.2d 373 (1997) (quoting § 46b-86 [a] ), rev'd, 247 Conn. 724, 724 A.2d 1084 (1999) ; the parties' decree in Amodio expressly precluded modification under the circumstances presented. See id., at 742, 697 A.2d 373. On appeal to this court, we disagreed with the Appellate Court, stating in relevant part: "[This case] requires us to review the distinction between a trial court's jurisdiction and its authority to act under a particular statute. Subject matter jurisdiction involves the authority of a court to adjudicate the type of controversy presented by the action before it. 1 Restatement (Second), Judgments § 11 [1982]. A court does not truly lack subject matter jurisdiction if it has competence to entertain the action before it.... Once it is determined that a tribunal has authority or competence to decide the class of cases to which the action belongs, the issue of subject matter jurisdiction is resolved in favor of entertaining the action." (Citation omitted; internal quotation marks omitted.) Amodio v. Amodio , supra, 247 Conn. at 727-28, 724 A.2d 1084. Applying the foregoing principles in Amodio , we concluded that the trial court clearly had subject matter jurisdiction to decide the merits of the modification issue in that case because, under § 46b-1 (4), the Superior Court is vested with "plenary and general subject matter jurisdiction over legal disputes in 'family relations matters,' including alimony and support"; id., at 729, 724 A.2d 1084 ; and because, under § 46b-86 (a), the court is vested "with continuing jurisdiction to modify support orders." Id."Together, [we concluded], these two statutes provided the trial court with subject matter jurisdiction over the modification claim in [that] case." Id., at 729-30, 724 A.2d 1084. Having resolved the jurisdictional issue in Amodio , we next explained that the question of "whether a trial court properly applies § 46b-86 (a), that is, properly exercises its statutory authority to act"; (emphasis omitted) id., at 730, 724 A.2d 1084 ; is "[s]eparate and distinct from the question of whether a court has jurisdictional power to hear and determine a support matter ." Id."In concluding that the trial court had no jurisdiction to modify because the order contained a preclusion provision, the Appellate Court confused the issues of subject matter jurisdiction and the proper exercise of the trial court's authority to act pursuant to § 46b-86(a). The common thread to all of the . cases addressing the trial court's power to modify support orders pursuant to § 46b-86(a) is that in every case the relevant courts actively were adjudicating claims for modification by determining whether § 46b-86(a) precluded modification in that instance.... As we have stated, the trial court unquestionably has the power to hear and determine any modification issue. With subject matter jurisdiction established, the trial court's task is to apply the statute to the facts of a particular case; indeed, interpreting statutes and applying the law to the facts before it [fall within] the traditional province of the trial court.... Upon review of the trial court's actions, therefore, the Appellate Court's role is to review the trial court's exercise of its authority to act.... In [ Amodio ], such review means to determine whether the trial court, in granting the motion to modify, properly exercised its authority in accordance with § 46b-86(a)." (Citations omitted; emphasis omitted.) Id., at 731-32, 724 A.2d 1084. In light of the reasoning in Amodio , it is apparent that the trial court in the present case had the authority to entertain and determine the plaintiff's claim seeking a modification of the dissolution judgment. That authority derived not only from the court's plenary and general subject matter jurisdiction over dissolution actions; see General Statutes § 46b-1 ; but also from its authority under § 46b-81(a)"[to] assign to either spouse all or any part of the [marital] estate ." It is also evident that, in opening the dissolution judgment, the trial court properly exercised its authority under § 52-212a. Under that provision, the trial court is authorized to open a judgment more than four months after it was rendered when any one of the following four exceptions is satisfied: the parties waived the four month limitation; the parties otherwise submitted to the court's jurisdiction; the court's authority to open the judgment is otherwise authorized by law; or the court has continuing jurisdiction over the judgment. See General Statutes § 52-212a. In addition to these statutory exceptions, the trial court also may open a judgment if the judgment is shown to have been the product of fraud, mutual mistake, or absence of consent. E.g., Kenworthy v. Kenworthy , 180 Conn. 129, 131, 429 A.2d 837 (1980). To be clear, if the parties in the present case had not voluntarily submitted to the court's jurisdiction, § 46b-86(a) would have precluded the trial court from modifying the dissolution judgment because no other exception to the four month rule limiting that court's power to open a judgment appears to be applicable. We have long held, however, that, even though an order dividing marital property "is a final judgment [that] the court cannot modify even [if] there [is] a change of circumstance"; (internal quotation marks omitted) Turgeon v. Turgeon , 190 Conn. 269, 282, 460 A.2d 1260 (1983) ; "[l]ike any other . judgment, once [rendered], it may be subject to attack on appeal , it may be opened in a limited set of circumstances or it may be vacated by motion or petition for a new trial ." (Emphasis added.) Id. ; see also Bauer v. Bauer , 308 Conn. 124, 129-30, 60 A.3d 950 (2013) ("[t]he court's judgment in an action for [the] dissolution of a marriage is final and binding [on] the parties . unless and to the extent that statutes, the common law or rules of [practice] permit the setting aside or modification of that judgment" [internal quotation marks omitted] ). The notion that § 46b-86(a) deprives the trial court of subject matter jurisdiction to modify a property distribution order appears to derive from this court's statement in Bunche v. Bunche , 180 Conn. 285, 429 A.2d 874 (1980), that, "[b]y its terms, [ § 46b-86(a) ] deprives the Superior Court of continuing jurisdiction over that portion of a dissolution judgment providing for the assignment of property of one party to the other party ." (Emphasis added.) Id., at 289, 429 A.2d 874. When read in context, however, it seems clear that the quoted language was not intended to mean that the provisions of § 46b-86(a) are subject matter jurisdictional. In Bunche , the issue presented was whether the trial court correctly determined that it lacked authority to modify a property distribution order. See id., at 287, 429 A.2d 874. Although we ultimately agreed with the trial court that it lacked such authority, we did so not because the court lacked subject matter jurisdiction to modify the dissolution judgment but because none of the exceptions to the four month limitation on the court's authority to open judgments set forth in § 52-212a was applicable. See id., at 287-88, 429 A.2d 874. Specifically, we stated that "[t]he court's judgment in an action for [the] dissolution of a marriage is final and binding [on] the parties, [when] no appeal is taken therefrom, unless and to the extent that statutes, the common law or rules of court permit the setting aside or modification of that judgment. Under [what is now Practice Book § 17-4 ], a civil judgment may be opened or set aside, unless otherwise provided by law, [when] a motion seeking to do so is filed within four months from the date of its rendition. Under [that rule of practice], the parties may waive the time requirements or otherwise submit themselves to the jurisdiction of the court. [In the absence of] waiver, consent or other submission to jurisdiction, however, a court is without jurisdiction to modify or correct a judgment, in other than clerical respects, after the expiration of . the term provided in [ Practice Book § 17-4 ]." (Citation omitted; footnote added and omitted.) Id. Applying these well established principles, we concluded in Bunche that the trial court properly had denied the wife's motion to modify the dissolution judgment because "[t]he . motion . was not filed within the applicable periods, and the parties did not submit themselves to the jurisdiction of the court by waiver, consent or otherwise." Id., at 288, 429 A.2d 874. By contrast, in the present case, it is undisputed that the parties submitted to the jurisdiction of the court by agreement. In light of that agreement, the trial court acted within its authority under § 52-212a in opening the dissolution judgment. The judgment of the Appellate Court is reversed and the case is remanded to that court for consideration of the merits of the plaintiff's claims. In this opinion the other justices concurred. General Statutes § 46b-86(a) provides in relevant part: "Unless and to the extent that the decree precludes modification, any final order for the periodic payment of permanent alimony or support, an order for alimony or support pendente lite or an order requiring either party to maintain life insurance for the other party or a minor child of the parties may, at any time thereafter, be continued, set aside, altered or modified by the court upon a showing of a substantial change in the circumstances of either party or upon a showing that the final order for child support substantially deviates from the child support guidelines established pursuant to section 46b-215a, unless there was a specific finding on the record that the application of the guidelines would be inequitable or inappropriate.... This section shall not apply to assignments under section 46b-81 or to any assignment of the estate or a portion thereof of one party to the other party under prior law...." Although § 46b-86(a) has been the subject of recent amendments; see Public Acts 2013, No. 13-213, § 4; Public Acts 2010, No. 10-36, § 6; those amendments have no bearing on the merits of this appeal. In the interest of simplicity, we hereinafter refer to the current revision of § 46b-86(a). After this appeal was filed, we granted the applications of the Connecticut Bar Association and the Connecticut Chapter of the American Academy of Matrimonial Lawyers to file amicus curiae briefs in support of the plaintiff's claims. By its express terms; see footnote 1 of this opinion; § 46b-86(a) allows modification of periodic alimony payments but not property distribution orders because the former serves a very different purpose than the latter. See, e.g., Blake v. Blake , 211 Conn. 485, 497, 560 A.2d 396 (1989) ("[t]he difference between an assignment of a specific portion of an estate and alimony is in their purposes" [internal quotation marks omitted] ). As we previously have explained, "[t]he purpose of a property division pursuant to a dissolution proceeding is to unscramble existing marital property in order to give each spouse his or her equitable share at the time of dissolution.... By comparison, the purpose of both periodic and lump sum alimony is to provide continuing support.... Hence, once the marital property is divided, the court has fulfilled its responsibility, and, therefore, continuing jurisdiction over divided marital property does not further the goal of the statutes." (Citations omitted.) Smith v. Smith , 249 Conn. 265, 275, 752 A.2d 1023 (1999). On appeal, the defendant does not dispute that the trial court had subject matter jurisdiction to open the judgment of dissolution. His only claim before this court is that the Appellate Court's judgment should be affirmed because the trial court was required but failed to hold an evidentiary hearing to determine if the plaintiff had made a preliminary showing of fraud, as required by Oneglia v. Oneglia , 14 Conn. App. 267, 540 A.2d 713 (1988). We decline to address this issue, however, because, as the defendant conceded at oral argument before this court, it was not raised below. See, e.g., Practice Book § 60-5 ("[t]he court shall not be bound to consider a claim unless it was distinctly raised at the trial or arose subsequent to the trial"). General Statutes § 52-212a provides in relevant part: "Unless otherwise provided by law and except in such cases in which the court has continuing jurisdiction, a civil judgment or decree rendered in the Superior Court may not be opened or set aside unless a motion to open or set aside is filed within four months following the date on which it was rendered or passed.... The parties may waive the provisions of this section or otherwise submit to the jurisdiction of the court, provided the filing of an amended petition for termination of parental rights does not constitute a waiver of the provisions of this section or a submission to the jurisdiction of the court to reopen a judgment terminating parental rights." The Appellate Court concluded that the provisions of § 46b-86(a) are subject matter jurisdictional even though, as that court itself has recently observed, "there are conflicting decisions of [the Appellate Court] regarding whether the modification of a property distribution postdissolution implicates the court's subject matter jurisdiction or merely its statutory authority. Compare McLoughlin v. McLoughlin , 157 Conn. App. 568, 575-76 n.5, 118 A.3d 64 (2015) ('we note that the distribution of personal property postdissolution does not implicate the court's subject matter jurisdiction but, rather, its statutory authority'), and Roos v. Roos , 84 Conn. App. 415, 421-22, 853 A.2d 642 (noting that distribution of personal property postdissolution is question of statutory authority, not subject matter jurisdiction), cert. denied, 271 Conn. 936, 861 A.2d 510 (2004), with Forgione v. Forgione , [supra, 162 Conn. App. at 6-7, 129 A.3d 766 ] (stating that court lacked subject matter jurisdiction to modify property distribution postdissolution), and Sousa v. Sousa , [supra, 157 Conn. App. at 596, 116 A.3d 865 ] ('by subsequently [postdissolution] modifying the order dividing the plaintiff's pension benefits equally between the parties, the court acted outside of its jurisdictional authority') ." (Citation omitted.) Lawrence v. Cords , 165 Conn. App. 473, 483 n.8, 139 A.3d 778, cert. denied, 322 Conn. 907, 140 A.3d 221 (2016). Practice Book § 17-4 provides in relevant part: "(a) Unless otherwise provided by law and except in such cases in which the court has continuing jurisdiction, any civil judgment or decree rendered in the superior court may not be opened or set aside unless a motion to open or set aside is filed within four months succeeding the date on which notice was sent. The parties may waive the provisions of this subsection or otherwise submit to the jurisdiction of the court."

12497515

Kurtis TURNER v. COMMISSIONER OF CORRECTION

Turner v. Comm'r of Corr.

2018-05-08

AC 39131

1163

1174

187 A.3d 1163

187

West's Atlantic Reporter, Third Series

Connecticut Appellate Court

Connecticut

2021-08-27T20:57:32.687249+00:00

Fastcase

Kurtis TURNER v. COMMISSIONER OF CORRECTION

Kurtis TURNER v. COMMISSIONER OF CORRECTION AC 39131 Appellate Court of Connecticut. Argued December 7, 2017 Officially released May 8, 2018 Vishal K. Garg, Wethersfield, assigned counsel, for the appellant (petitioner). Stephen M. Carney, senior assistant state's attorney, with whom, on the brief, was Michael L. Regan, New London, state's attorney, for the appellee (respondent). Sheldon, Keller and Eveleigh, Js.

4999

30966

EVELEIGH, J. The petitioner, Kurtis Turner, appeals following the denial of his petition for certification to appeal from the judgment of the habeas court denying his petition for a writ of habeas corpus. On appeal, the petitioner claims that the habeas court (1) abused its discretion in denying his petition for certification to appeal, and (2) improperly concluded that there were no violations of Brady v. Maryland , 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed. 2d 215 (1963), at his underlying criminal trial. For the reasons set forth herein, we agree with the petitioner and conclude that the habeas court abused its discretion in denying the petition for certification to appeal and in denying the petition for a writ of habeas corpus. Accordingly, we reverse the judgment of the habeas court and remand the matter for a new trial. The following facts and procedural history are relevant to our resolution of this appeal. After a jury trial, the petitioner was convicted of murder in violation of General Statutes § 53a-54a(a) and sentenced to sixty years incarceration. Our prior decision on the petitioner's direct appeal in State v. Turner , 133 Conn. App. 812, 37 A.3d 183, cert. denied, 304 Conn. 929, 42 A.3d 390 (2012), set forth the following facts: "In June, 2007, the [petitioner] was living in an apartment in New London with Curtis McGill. McGill had, on several occasions, sold the drug PCP to Lakisha Alexander, the sister of Vernall Marshall, the victim. At some point during or near in time to April, 2007, Alexander stole some PCP from McGill's apartment. McGill later discovered that she had done so and told her that she owed him a favor. "On June 19, 2007, Alexander, the victim, and two of the victim's friends encountered McGill, who was alone, on Bank Street in New London. The victim approached McGill, and the two of them conversed apart from the others. During the conversation, the victim told McGill that he would not let McGill disrespect his sister. After talking with McGill for two to five minutes, the victim walked back to Alexander and the others. McGill appeared to be upset, remarking several times that he felt threatened. "Subsequent to this encounter with the victim, McGill made a telephone call, and, three to five minutes later, a car came down Bank Street and parked next to McGill. Three individuals got out of the car, one of whom was the [petitioner], who was holding a gun. The [petitioner] waved the gun in the air and pointed it at the victim, proclaiming, 'I'll do anybody out here,' 'You want to die?' and, 'somebody is going to die.' After approximately one minute, McGill told the [petitioner] to stop, and the [petitioner] lowered the gun and returned to the car with the other two individuals. The three of them left in the car, and McGill walked away from the victim, Alexander and the others. On the way back to the apartment, the [petitioner] repeatedly remarked that '[w]ithin forty-eight hours somebody is going to die.' "On the night of June 20, 2007, the victim was in New London having drinks with friends. He had gone into New London with his friend, Shannon Johnson, and later that evening he met up with Alexander. In the early morning hours of June 21, 2007, the victim again met up with Johnson on the sidewalk just outside the front entrance to Ernie's Café on Bank Street. At this time, the [state claims, the petitioner] approached the victim and shot him in the head. Emergency personnel took the victim by ambulance to a nearby hospital, where, after approximately twelve minutes of medical care, he was pronounced dead. "On January 8, 2008, the state filed an information charging the [petitioner] with murder in violation of § 53a-54a(a). On May 28, 2008, attorney Raul [Davila-Carlos] was appointed as a special public defender to represent the [petitioner], which he did for approximately one year without complaint. Beginning on the first day of jury selection on May 28, 2009, the [petitioner] made several requests that the court remove [Davila-Carlos] as his counsel and either appoint new counsel or allow him to represent himself. The court denied the [petitioner's] requests to have new counsel appointed, noting that the requests were made on the eve of trial. The trial then proceeded with [Davila-Carlos] representing the [petitioner] . "On July 16, 2009, at the conclusion of the state's case-in-chief, the [petitioner] made an oral motion for a judgment of acquittal, asserting that the evidence was insufficient to establish guilt beyond a reasonable doubt, which the court denied. The jury returned a verdict of guilty, and the [petitioner] was sentenced to sixty years incarceration." Id., at 814-16, 37 A.3d 183. This court affirmed the petitioner's conviction on direct appeal. See id., at 814, 37 A.3d 183. On March 1, 2013, the petitioner, in a self-represented capacity, filed a petition for writ of habeas corpus. On May 8, 2015, the petitioner, represented by appointed counsel, filed the amended petition operative in this appeal. In the amended petition, the petitioner alleged that (1) his constitutional right to the effective assistance of trial counsel was violated, (2) his right to due process was violated by the prosecuting authority's knowing presentation of false testimony, and (3) his right to due process was violated by the prosecuting authority's failure to disclose material exculpatory evidence. The habeas trial was held over three days from September 28, 2015 to September 30, 2015. The petitioner presented the testimony of, inter alia, Raul Davila-Carlos, the petitioner's trial counsel, and John P. Gravelec-Pannone, the prosecuting attorney in the petitioner's case. Following the trial, the habeas court, Sferrazza, J. , denied the petition in a written decision in which it concluded that the petitioner had not met his burden to prove ineffective assistance of counsel or a violation of his due process rights. Thereafter, the habeas court denied the petition for certification to appeal, and this appeal followed. Additional facts and procedural history will be set forth as necessary. I The petitioner claims that the habeas court abused its discretion in denying his petition for certification to appeal from the denial of his petition for a writ of habeas corpus with respect to his claim of due process violations. We agree. "Faced with a habeas court's denial of a petition for certification to appeal, a petitioner can obtain appellate review of the dismissal of his petition for habeas corpus only by satisfying the two-pronged test enunciated by our Supreme Court in Simms v. Warden , 229 Conn. 178, 640 A.2d 601 (1994), and adopted in Simms v. Warden , 230 Conn. 608, 612, 646 A.2d 126 (1994). First, [the petitioner] must demonstrate that the denial of his petition for certification constituted an abuse of discretion . Second, if the petitioner can show an abuse of discretion, he must then prove that the decision of the habeas court should be reversed on the merits . To prove that the denial of his petition for certification to appeal constituted an abuse of discretion, the petitioner must demonstrate that the [resolution of the underlying claim involves issues that] are debatable among jurists of reason; that a court could resolve the issues [in a different manner]; or that the questions are adequate to deserve encouragement to proceed further . "In determining whether the habeas court abused its discretion in denying the petitioner's request for certification, we necessarily must consider the merits of the petitioner's underlying claims to determine whether the habeas court reasonably determined that the petitioner's appeal was frivolous. In other words, we review the petitioner's substantive claims for the purpose of ascertaining whether those claims satisfy one or more of the three criteria . adopted by [our Supreme Court] for determining the propriety of the habeas court's denial of the petition for certification." (Citations omitted; internal quotation marks omitted.) Sanders v. Commissioner of Correction , 169 Conn. App. 813, 821-22, 153 A.3d 8 (2016), cert. denied, 325 Conn. 904, 156 A.3d 536 (2017). As discussed in part II of this opinion, because the resolution of the petitioner's underlying claim involves issues that are debatable among jurists of reason and could have been resolved by a court in a different manner, we conclude that the habeas court abused its discretion in denying certification to appeal from the denial of the petition for a writ of habeas corpus. II The petitioner claims that his due process rights were violated by the prosecuting attorney's knowing presentation of false or misleading testimony and failure to disclose material impeachment evidence as required by Brady v. Maryland , supra, 373 U.S. at 83, 83 S.Ct. 1194. Specifically, the petitioner argues that (1) Gravelec-Pannone failed to correct the false testimony of Alice Philips, a cooperating witness for the prosecution, that she had not received consideration in exchange for her testimony; and (2) the prosecution failed to disclose the material exculpatory evidence that the state had provided consideration in exchange for the testimony of Philips, who was a friend of the victim and testified on behalf of the state about the dispute among the petitioner, McGill and the victim. The following additional facts are relevant to this issue. In her initial statement to the police, Philips told them that McGill was the individual who said that somebody was going to be dead within forty-eight hours. Prior to testifying at the petitioner's trial, Gravelec-Pannone told Philips that if he believed she testified truthfully, he would notify the prosecutor handling her own pending charges of her cooperation. The State's Attorney's Office also purchased plane fare for Philips, who traveled from Michigan to Connecticut to testify at the petitioner's trial. At the petitioner's trial, Philips admitted that she was flown in by the state to answer to her outstanding warrants and had just been arraigned on those charges. Her defense counsel was present throughout her testimony. Notably, Philips changed her story when she testified at trial that the petitioner, rather than McGill, uttered the statement that somebody was going to die within forty-eight hours. Furthermore, when asked if she was hoping for any consideration, aside from the plane fare, in exchange for her testimony, Philips answered, "no." Gravelec-Pannone did not correct that statement. After testifying at the petitioner's trial, Philips was transported to the geographical area number ten courthouse in New London to plead guilty on her outstanding charges. Peter A. McShane, a prosecutor in that courthouse at the time Philips was put to plea, informed the court, McMahon, J. , that she had cooperated and testified on behalf of the state at the petitioner's trial. Thereafter, Philips received a one year sentence, fully suspended, with a one year conditional discharge where the sole condition was not to return to Connecticut. At the petitioner's habeas trial, McShane testified that Philips' case "just showed up on the docket," and that he did not remember who advised him of the fact that Philips had testified in a case in the part A court. Additionally, McShane testified that it did not appear that he or anyone else working in his office at the geographical area number ten courthouse ever made a sentencing recommendation to Judge McMahon; it appeared that the judge sua sponte came up with a court-indicated sentence for Philips. Gravelec-Pannone testified that after Philips was done testifying in the petitioner's case, he instructed his inspector to let the prosecutor in Philips' case know that she had testified to his satisfaction. Gravelec-Pannone acknowledged that notifying the prosecutor in Philips' case that she had testified helpfully was a form of consideration in exchange for her testimony, "but no specific consideration that you're going to get this deal up front if you do that." He indicated, however, that he did not correct Philips' statement that she was not expecting consideration because he did not want to impeach his own witness. He indicated that his office would not have told the prosecutors in the geographical area number ten courthouse what to do with Philips' cases, but would make them aware that she was going to be a witness in their case and would keep them posted as to what happened in the part A court. He also testified that Philips' father was a marshal in the New London part A court, and that he had "used his efforts" to persuade Philips to come back from Michigan to "testify and face the music" regarding her pending charges in Connecticut. After Philips' outstanding cases were resolved, Gravelec-Pannone "communicated [to Davila-Carlos] [the] fact that [Philips'] cases were resolved, and she would be heading back to Michigan shortly thereafter, but [Davila-Carlos] was aware that [Philips] was still in New London and capable of being served with a subpoena if [Davila-Carlos] needed to do that." The State's Attorney's Office paid for an airline ticket for Philips to return to Michigan the day after she pleaded guilty. Davila-Carlos testified that he did not have a recollection of the state informing him of the agreement with Philips, but that he could have argued the issue of Philips' credibility to the jury if he had known of a prior agreement. He also testified that he had not wanted to discredit Philips' testimony too much because he believed her recollection of the dispute between the petitioner and the victim aided in his self-defense argument. On the basis of this testimony, the habeas court concluded that the petitioner had failed to establish a Brady violation because "no exculpatory evidence was withheld from the petitioner, nor did [Philips] testify falsely at his criminal trial." We next set forth our standard of review and the applicable legal principles governing Brady claims. As set forth by the United States Supreme Court in Brady v. Maryland , supra, 373 U.S. at 87, 83 S.Ct. 1194, "[t]o establish a Brady violation, the [petitioner] must show that (1) the government suppressed evidence, (2) the suppressed evidence was favorable to the [petitioner], and (3) it was material [either to guilt or to punishment]." (Internal quotation marks omitted.) Morant v. Commissioner of Correction , 117 Conn. App. 279, 295, 979 A.2d 507, cert. denied, 294 Conn. 906, 982 A.2d 1080 (2009). "Whether the petitioner was deprived of his due process rights due to a Brady violation is a question of law, to which we grant plenary review." (Internal quotation marks omitted.) Peeler v. Commissioner of Correction , 170 Conn. App. 654, 689, 155 A.3d 772, cert. denied, 325 Conn. 901, 157 A.3d 1146 (2017). "[T]he suppression by the prosecution of evidence favorable to an accused upon request violates due process [when] the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the [prosecutor] . The United States Supreme Court also has recognized that [t]he jury's estimate of the truthfulness and reliability of a . witness may well be determinative of guilt or innocence, and it is upon such subtle factors as the possible interest of the witness in testifying falsely that a defendant's life or liberty may depend. Napue v. Illinois , 360 U.S. 264, 269, 79 S.Ct. 1173, 3 L.Ed. 2d 1217 (1959). Accordingly, the Brady rule applies not just to exculpatory evidence, but also to impeachment evidence . which, broadly defined, is evidence having the potential to alter the jury's assessment of the credibility of a significant prosecution witness . Because a plea agreement is likely to bear on the motivation of a witness who has agreed to testify for the state, such agreements are potential impeachment evidence that the state must disclose . "[A] prosecutor's failure to disclose favorable evidence will constitute a violation of Brady only if the evidence is found to be material . In a classic Brady case . the evidence will be deemed material only if there would be a reasonable probability of a different result if the evidence had been disclosed." (Internal quotation marks omitted.) State v. Jordan , 314 Conn. 354, 370, 102 A.3d 1 (2014). A We first address the petitioner's claim that the prosecutor's failure to correct Philips' false testimony that she did not expect any consideration for her testimony deprived him of his due process right to a fair trial under Brady . In response, the respondent, the Commissioner of Correction, argues that even if the witness did testify falsely and the prosecutor failed to correct that testimony, there was no reasonable likelihood that the misleading testimony could have affected the judgment of the jury. We agree with the petitioner. We set forth the legal principles applicable to this issue. The state has a duty to correct the record if it knows that a witness has testified falsely. See Diaz v. Commissioner of Correction , 174 Conn. App. 776, 796, 166 A.3d 815 ("[D]ue process is . offended if the state, although not soliciting false evidence, allows it to go uncorrected when it appears . If a government witness falsely denies having struck a bargain with the state, or substantially mischaracterizes the nature of the inducement, the state is obliged to correct the misconception." [Internal quotation marks omitted.] ), cert. denied, 327 Conn. 957, 172 A.3d 204 (2017) ; see also Gomez v. Commissioner of Correction , 178 Conn. App. 519, 539, 176 A.3d 559 (2017) ("[r]egardless of the lack of intent to lie on the part of the witness, Giglio [v. United States , 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed. 2d 104 (1972) ] and Napue [v. Illinois , supra, 360 U.S. at 264, 79 S.Ct. 1173 ] require that the prosecutor apprise the court when he knows that his witness is giving testimony that is substantially misleading" [internal quotation marks omitted] ), cert. granted on other grounds, 328 Conn. 916, 180 A.3d 962 (2018). "When . a prosecutor obtains a conviction with evidence that he or she knows or should know to be false, the materiality standard [of Brady ] is significantly more favorable to the defendant. [A] conviction obtained by the knowing use of perjured testimony is fundamentally unfair, and must be set aside if there is any reasonable likelihood that the false testimony could have affected the judgment of the jury . This standard . applies whether the state solicited the false testimony or allowed it to go uncorrected . and is not substantively different from the test that permits the state to avoid having a conviction set aside, notwithstanding a violation of constitutional magnitude, upon a showing that the violation was harmless beyond a reasonable doubt . This strict standard of materiality is appropriate in such cases not just because they involve prosecutorial misconduct, but more importantly because they involve a corruption of the truth-seeking function of the trial process . In light of this corrupting effect, and because the state's use of false testimony is fundamentally unfair, prejudice sufficient to satisfy the materiality standard is readily shown . such that reversal is virtually automatic . unless the state's case is so overwhelming that there is no reasonable likelihood that the false testimony could have affected the judgment of the jury . "In accordance with these principles, our determination of whether [the witness'] false testimony was material under Brady and its progeny requires a careful review of that testimony and its probable effect on the jury, weighed against the strength of the state's case and the extent to which [the petitioner was] otherwise able to impeach [the witness]." (Emphasis in original; internal quotation marks omitted.) State v. Jordan , supra, 314 Conn. at 370-71, 102 A.3d 1. Applying the foregoing principles to the petitioner's claim, we conclude that the prosecutor's failure to correct the false testimony of Philips that she was not hoping for any consideration in exchange for her testimony violated the petitioner's due process right to a fair trial. Weighing the probable effect of Philips' testimony against the petitioner's ability to impeach her and the weaknesses of the state's case, we conclude that there is a reasonable likelihood that the false testimony could have affected the judgment of the jury. The state's theory of the case, namely, that the petitioner shot the victim as part of the dispute between McGill, the petitioner and the victim, was largely dependent on Philips' testimony. Philips testified that on the day before the shooting, she witnessed the petitioner pull a gun out of his hoodie with his right hand, wave the gun around, and point it at the victim. She testified that the petitioner said, "you want to die, you want to die," followed by, "before [forty-eight] hours they was gonna die." The petitioner put the gun back into his hoodie when McGill told him to stop. The petitioner and Philips then left the scene in the car of a friend, Shauntay. On the ride back to Shauntay's house, the petitioner again stated, "within [forty-eight] hours somebody is going to die." Alexander was the only other witness who testified about the dispute between the petitioner and the victim on the night before the shooting, but her testimony was far less detailed than Philips' description of the event. Alexander testified that the petitioner had a gun and "kind of waved it in the air," and stated, "I'll do anybody out here." Alexander, however, had substantial credibility issues; she was the sister of the victim, had a significant PCP addiction during 2007, and admitted that she was the individual who stole PCP from McGill in the months before the shooting. Although Alexander claimed not to know the substance of the argument between the victim, the petitioner and McGill, Philips testified that the three were clearly arguing about Alexander owing McGill money for the PCP she stole. Additionally, Philips testified that Alexander appeared to be high on PCP at the time of the dispute. The state also offered a surveillance video into evidence to support its theory that the petitioner had killed the victim. On the night of June 20, 2007, Ernie's Café had surveillance cameras pointed in the direction of the entrance to the bar. At approximately 12:19 a.m. on June 21, 2007, the video recording showed the petitioner get up from a table where he was sitting with friends and walk toward the entrance to the bar. The petitioner was dressed in a dark shirt, light colored jeans, and a black baseball cap. The petitioner reached into the waistband of his jeans with his right hand as he walked to the front door. As the petitioner reached the entrance, the video recording showed the victim fall to the ground just outside the front door. The petitioner then ran out the front door and to his right toward Golden Street. The state acknowledged, however, that the video does not clearly show the petitioner as the shooter of the victim. The state was also unable to offer any physical evidence that identified the petitioner as the shooter of the victim, such as fingerprints, DNA, or bullet fragments. Because the state relied heavily on Philips' testimony in its closing argument, labelling her a "very important" witness in the case who "straddle[d] or reflect[ed] both sides in this matter," her credibility was important to the jury's verdict. The petitioner's trial counsel was unable to cross-examine or impeach Philips regarding her false testimony about the consideration she anticipated receiving for her favorable testimony because he was not informed that Philips received any consideration for such testimony until after she was done testifying at the petitioner's trial. Against this background, we conclude that the prosecutor's failure to correct Philips' false testimony was material for the purposes of Brady . Philips was a crucial witness for the state. Her testimony provided evidence of motive, intent, and means on the part of the petitioner. Further, her testimony negated any possible effect that the self-defense argument by the petitioner's trial counsel may have had on the jury because it painted the petitioner as an aggressor. Therefore, any evidence that would affect her credibility would be vital to the defense. The petitioner is entitled to a new trial because the strength of the state's case was not so overwhelming that there is no reasonable likelihood that the witness' false testimony affected the judgment of the jury. Cf. State v. Jordan , supra, 314 Conn. at 372, 102 A.3d 1. B The petitioner also claims that he suffered a violation of his due process rights under Brady because the prosecution did not disclose Philips' informal agreement with the state to receive consideration in exchange for her testimony at the petitioner's trial. In response, the respondent argues that no material evidence was withheld from the petitioner because Philips' pending charges were disclosed. Because we determine that the habeas court applied an incorrect legal standard to this issue, the petitioner is entitled to a new trial. The habeas court's conclusion that "no exculpatory evidence was withheld from the petitioner" was premised on its factual finding that there was no evidence of a plea agreement between the state and Philips. Our case law is clear, however, that the petitioner need not establish the existence of a formal plea agreement in order to prove a Brady violation. "[E]vidence that merely suggests an informal understanding between the state and a state's witness may constitute impeachment evidence for the purposes of Brady . Such evidence is by no means limited to the existence of plea agreements." (Citation omitted; emphasis in original.) Diaz v. Commissioner of Correction , supra, 174 Conn. App. at 798, 166 A.3d 815. "An agreement by a prosecutor with a cooperating witness to bring the witness' cooperation to the attention of the judge who later sentences the witness on his own pending criminal charges is a deal that must be disclosed to the defendant against whom [she] testifies, even if the deal does not involve a specific recommendation by the prosecutor for the imposition of a particular sentence." Hines v. Commissioner of Correction , 164 Conn. App. 712, 725, 138 A.3d 430 (2016) ; see also Walker v. Commissioner of Correction , 103 Conn. App. 485, 493, 930 A.2d 65 ("[a]ny such understanding or agreement between any state's witness and the state police or the state's attorney clearly falls within the ambit of the Brady principles"), cert. denied, 284 Conn. 940, 937 A.2d 698 (2007). It is generally undisputed that there was an informal agreement between Philips and the prosecutor for her cooperation at the petitioner's trial, and that she received consideration for her favorable testimony. Gravelec-Pannone acknowledged that notifying the prosecutor in Philips' case that she had cooperated at the petitioner's trial was a form of consideration. The court, therefore, applied the incorrect legal standard when it determined that the petitioner had not proven a Brady violation because there was no evidence of a formal plea agreement between Philips and the state. "[W]hether the court applied the correct legal standard is a question of law subject to plenary review . When an incorrect legal standard is applied, the appropriate remedy is to reverse the judgment of the trial court and to remand the matter for further proceedings." (Internal quotation marks omitted.) Carraway v. Commissioner of Correction , 144 Conn. App. 461, 471, 72 A.3d 426 (2013), appeal dismissed, 317 Conn. 594, 119 A.3d 1153 (2015). Accordingly, the petitioner is entitled to a new trial on this basis. In sum, we conclude that the petitioner has established that he suffered a Brady violation at his criminal trial when the prosecutor failed to correct Philips' false testimony that she did not expect to receive any consideration, aside from plane fare, in exchange for her testimony. Additionally, we conclude that the habeas court applied an incorrect legal standard in determining whether the petitioner suffered a Brady violation in that Philips' informal agreement with the state was not disclosed to the defense. On those bases, we further conclude that the habeas court abused its discretion in denying the petition for certification to appeal from the denial of the petition for a writ of habeas corpus. The judgment is reversed and the case is remanded with direction to render judgment granting the petition for a writ of habeas corpus, to vacate the petitioner's conviction under § 53a-54a(a) and to order a new trial on that offense. In this opinion the other judges concurred. Additionally, the petitioner claims that the habeas court improperly concluded that he failed to establish the ineffectiveness of his trial counsel. In light of our decision to grant the petitioner relief from his challenged conviction on the basis of his Brady claim, we do not reach the merits of this alternate substantive claim. See footnote 1 of this opinion. In the amended petition, the petitioner also alleged the ineffective assistance of his appellate counsel. The petitioner, however, withdrew that count on September 28, 2015. We emphasize that all attorneys have a duty of candor to the court. Rule 3.3(a) of the Rules of Professional Conduct provides in relevant part: "A lawyer shall not knowingly . (3) [o]ffer evidence that the lawyer knows to be false. If a lawyer, the lawyer's client, or a witness called by the lawyer, has offered material evidence and the lawyer comes to know of its falsity, the lawyer shall take reasonable remedial measures, including, if necessary, disclosure to the tribunal." Prosecutors also have special responsibilities to the court, proscribed by rule 3.8 of the Rules of Professional Conduct, which provides in relevant part: "The prosecutor in a criminal case shall . (4) [m]ake timely disclosure to the defense of all evidence or information known to the prosecutor that tends to negate the guilt of the accused or mitigates the offense ." During closing arguments, Gravelec-Pannone argued: "The state wishes we could give you a clearer or more enhanced video than we've shown you . [T]he quality of this is not television or the movies. We can't give you a clear, pristine picture of the events."

12503386

David DUBINSKY v. Kevin M. BLACK

Dubinsky v. Black

2018-09-25

AC 40203

870

882

196 A.3d 870

196

West's Atlantic Reporter, Third Series

Connecticut Appellate Court

Connecticut

2021-08-27T20:57:41.731814+00:00

Fastcase

David DUBINSKY v. Kevin M. BLACK

David DUBINSKY v. Kevin M. BLACK AC 40203 Appellate Court of Connecticut. Argued May 21, 2018 Officially released September 25, 2018 John R. Williams, New Haven, for the appellant (plaintiff). Bridgitte E. Mott, Stamford, with whom, on the brief, was Thomas P. O'Dea, Jr., for the appellee (defendant). Elgo, Bright and Mihalakos, Js.

5278

32768

ELGO, J. The plaintiff, David Dubinsky, appeals from the summary judgment rendered in favor of the defendant, Kevin M. Black, in this legal malpractice action predicated on the defendant's alleged failure to advise the plaintiff that his acceptance of a plea offer in a criminal proceeding would preclude him from subsequently pursuing an action for malicious prosecution. In rendering summary judgment, the court concluded, as a matter of law, that the plaintiff could not prevail on such an action, as probable cause existed to charge him with the crime of risk of injury to a child in violation of General Statutes § 53-21. The plaintiff now challenges the propriety of that determination. We affirm the judgment of the trial court. Mindful of the procedural posture of the case, we set forth the following facts as gleaned from the pleadings, affidavits and other proof submitted, viewed in a light most favorable to the plaintiff. See Martinelli v. Fusi , 290 Conn. 347, 350, 963 A.2d 640 (2009). On the morning of Saturday, June 23, 2012, officers from the Fairfield Police Department (department) responded to a 911 call from the plaintiff's then wife, Miriam Dubinsky, regarding an incident at their home in which the plaintiff shoved her onto a bed and repeatedly struck their minor son, Jake, with a belt in the presence of the plaintiff's minor stepdaughter, Abigail. The plaintiff, at that time, was arrested and charged with one count of risk of injury to a child in violation of § 53-21, one count of assault in the third degree in violation of General Statutes § 53a-61, and three counts of disorderly conduct in violation of General Statutes § 53a-182. Later that day, department officials filed a request for a probable cause determination with the Superior Court. Accompanying that request were copies of the police incident report, an arrest affidavit signed by Officer John Tyler, a family violence offense report, and a written statement by Miriam regarding the incident. After reviewing those materials that evening, the court, Bellis, J ., concluded that probable cause existed and signed the request. The plaintiff was arraigned on Monday, June 25, 2012. Following his arraignment, the plaintiff retained the services of the defendant, an attorney licensed to practice law in this state, who represented the plaintiff in connection with the aforementioned criminal charges. Plea negotiations with the state followed. The state ultimately made an offer, pursuant to which the plaintiff would enter a conditional plea of guilty to the charges of breach of peace and disorderly conduct. The plea offer further provided that, if the plaintiff complied with the terms of a protective order issued by the court and completed a family violence education program, all charges would be vacated and dismissed. The defendant encouraged the plaintiff to accept that conditional guilty plea offer and, on August 30, 2012, the plaintiff so pleaded before the court. The plaintiff thereafter complied with the terms of the plea agreement and all charges against him were dismissed. On August 14, 2014, the plaintiff commenced the present legal malpractice action, claiming that the defendant failed to advise him that acceptance of the plea offer would preclude him from instituting a malicious prosecution action against the arresting officers. In his answer, the defendant denied the substance of that allegation. The defendant also raised the special defenses of accord and satisfaction, waiver, laches, and comparative negligence, all of which the plaintiff denied. The defendant filed a motion for summary judgment on January 3, 2017, in which he argued that the plaintiff could not establish the causation element of his legal malpractice action. More specifically, the defendant claimed that no genuine issue of material fact existed as to whether the arresting officers possessed probable cause to institute the underlying criminal action. The defendant's motion was accompanied by seventeen exhibits, including copies of the police incident report and Miriam's signed statement to the police made on the date of the incident, transcripts from the underlying criminal proceedings, and deposition transcripts of various individuals. In opposing that motion for summary judgment, the plaintiff submitted only one exhibit-a copy of the January 28, 2013 decision, issued following an evidentiary hearing, of the administrative hearings unit of the Department of Children and Families on the issue of the plaintiff's physical neglect of Jake. The court rendered summary judgment in favor of the defendant on February 21, 2017. In its memorandum of decision, the court stated in relevant part that the plaintiff "would not have prevailed in any action alleging . malicious prosecution . because he could not prove want of probable cause . Therefore, [the plaintiff] would not have been able to prove that [the defendant's] failure to advise him of the consequences of the plea agreement caused him harm when he lost his right to recover in a civil litigation for . malicious prosecution." (Citations omitted.) From that judgment, the plaintiff now appeals. I As a preliminary matter, we note the well established standard that governs our review of the trial court's decision to grant summary judgment. " Practice Book § 17-49 provides that summary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party.... [T]he moving party . has the burden of showing the absence of any genuine issue as to all the material facts.... When documents submitted in support of a motion for summary judgment fail to establish that there is no genuine issue of material fact, the nonmoving party has no obligation to submit documents establishing the existence of such an issue.... Once the moving party has met its burden, however, the [nonmoving] party must present evidence that demonstrates the existence of some disputed factual issue.... Our review of the trial court's decision to grant the defendant's motion for summary judgment is plenary." (Citations omitted; internal quotation marks omitted.) Lucenti v. Laviero , 327 Conn. 764, 772-73, 176 A.3d 1 (2018). The present action is one sounding in legal malpractice. As our Supreme Court has explained, "[i]n legal malpractice actions, the plaintiff typically proves that the defendant attorney's professional negligence caused injury to the plaintiff by presenting evidence of what would have happened in the underlying action had the defendant not been negligent. This traditional method of presenting the merits of the underlying action is often called the 'case-within-a-case.' " Margolin v. Kleban & Samor, P.C ., 275 Conn. 765, 775 n.9, 882 A.2d 653 (2005). To prevail, "the plaintiff must prove that, in the absence of the alleged breach of duty by [his] attorney, the plaintiff would have prevailed [in] the underlying cause of action and would have been entitled to judgment." (Internal quotation marks omitted.) Bozelko v. Papastavros , 323 Conn. 275, 284, 147 A.3d 1023 (2016) ; see also Grimm v. Fox , 303 Conn. 322, 352, 33 A.3d 205 (2012) (Palmer, J ., concurring) ("[T]o prevail on his claim against the defendants, the plaintiff [must] prove not only that the defendants were negligent in their handling of his [action], but also that [the action] would have been successful if the defendants had represented him competently. In the absence of such proof, the plaintiff could not establish that his alleged damages . were the result of the defendants' negligence ."). Accordingly, the plaintiff in the present case bore the burden of establishing not only negligence on the part of the defendant in apprising him of the consequences of his guilty plea in the underlying criminal proceeding, but also that he would have prevailed in his malicious prosecution claim against the arresting officers. We therefore focus our attention on that cause of action. "Malicious prosecution is a tort arising out of a criminal complaint that is intended to protect an individual's interest in freedom from unjustifiable and unreasonable litigation ." (Internal quotation marks omitted.) Lefebvre v. Zarka , 106 Conn. App. 30, 35, 940 A.2d 911 (2008). An essential element of that action is proof that the defendant acted without probable cause; see Falls Church Group, Ltd. v. Tyler, Cooper & Alcorn, LLP , 281 Conn. 84, 94, 912 A.2d 1019 (2007) ; as "[t]he existence of probable cause is an absolute protection against an action for malicious prosecution ." Brodrib v. Doberstein , 107 Conn. 294, 296, 140 A. 483 (1928). Our Supreme Court has defined probable cause in this context as "the knowledge of facts sufficient to justify a reasonable [person] in the belief that he has reasonable grounds for prosecuting an action.... Mere conjecture or suspicion is insufficient.... Moreover, belief alone, no matter how sincere it may be, is not enough, since it must be based on circumstances which make it reasonable.... Although want of probable cause is negative in character, the burden is [on] the plaintiff to prove affirmatively, by circumstances or otherwise, that the defendant had no reasonable ground for instituting the criminal proceeding." (Citation omitted; internal quotation marks omitted.) Brooks v. Sweeney , 299 Conn. 196, 211, 9 A.3d 347 (2010). We agree with the trial court that, even when construing the pleadings, affidavits, and other proof submitted in a light most favorable to him, the plaintiff cannot meet that burden at trial. As the Supreme Court has observed, "[i]t is clear that [t]he general purpose of § 53-21 is to protect the physical and psychological well-being of children from the potentially harmful conduct of [others] ." (Emphasis added; internal quotation marks omitted.) State v. Nathan J ., 294 Conn. 243, 251, 982 A.2d 1067 (2009). That statute "comprise[s] . two distinct prongs, the situation prong and act prong ." (Internal quotation marks omitted.) State v. Owens , 100 Conn. App. 619, 635, 918 A.2d 1041, cert. denied, 282 Conn. 927, 926 A.2d 668 (2007). Section 53-21 (a)"prohibits two different types of behavior: (1) deliberate indifference to, acquiescence in, or the creation of situations inimical to the [child's] moral or physical welfare . and (2) acts directly perpetrated on the person of the [child] and injurious to his [or her] moral or physical well-being." (Emphasis in original; citations omitted; internal quotation marks omitted.) State v. Robert H ., 273 Conn. 56, 65, 866 A.2d 1255 (2005). "Cases construing § 53-21 have emphasized this clear separation between the two parts of the statute ." (Internal quotation marks omitted.) Id. Under the situation prong, the state is not required to prove that the child in question sustained an actual injury. See State v. Gewily , 280 Conn. 660, 669, 911 A.2d 293 (2006) ("actual injury is not an element of the 'situation' prong of § 53-21 [a] [1]"), and cases cited therein. With particular respect to the potential for harm to the mental health of a child, "the fact finder is not required to make a determination as to the precise nature or severity of the injury . rather, the fact finder need only decide whether the accused placed the child in a situation that was likely to be psychologically injurious to that child." (Citation omitted; internal quotation marks omitted.) Id. The pleadings, affidavits and other proof submitted in the present case confirm that no genuine issue of material fact exists as to whether the arresting officers possessed probable cause to believe that the plaintiff's conduct on June 23, 2012, placed both Jake and Abigail in such a situation. The police incident report, which was submitted as an exhibit to the defendant's motion for summary judgment, indicates that when the arresting officers arrived at the scene, they were "met at the door by Miriam and [Abigail] and both were crying, shaking, and visibly upset." In his deposition testimony, which also was submitted as an exhibit to the motion for summary judgment, Officer Tyler stated that Miriam and Abigail had "a hard time talking" and appeared "as if [they] witnessed a horrible accident ." Both Miriam and Abigail had witnessed the plaintiff spanking his son Jake, who was seven years old at the time, with a folded belt. Abigail described the spanking to officers as "very disturbing," stating that the plaintiff had "wound up his arm and hit him hard, several times." Miriam likewise informed the officers that, after placing the boy over his knee, the plaintiff hit him "hard several times. I thought he was way out of line and I tried to stop it but he pushed me hard [three] or [four] times in the chest, until I fell on the bed." The officers, at that time, observed redness on the upper chest area of Miriam's body. In the written statement that she provided to the police on the day of the incident, which was submitted as an exhibit to the summary judgment motion, Miriam indicated that Jake was "screaming" as the plaintiff repeatedly struck him with the belt. She further stated: "I will not have my children subject to or witness to violence. [The plaintiff] scared me and [Abigail]. There has been [an] increase in underlying anxiety and anger with [the plaintiff] and this was the worst he has ever exhibited." Abigail similarly reported to the officers that the plaintiff "raises his voice all the time and we are on edge all the time. He has never hit me but I fear he would." In making their probable cause determination, the arresting officers properly could rely on the statements made by Miriam and Abigail. See State v. Colon , 272 Conn. 106, 152 n.15, 864 A.2d 666 (2004) ("the police had probable cause to arrest the defendant as a result of the statement of the victim's sister" who witnessed the crime), cert. denied, 546 U.S. 848, 126 S.Ct. 102, 163 L.Ed.2d 116 (2005) ; see also Iocovello v. City of New York , 701 Fed. Appx. 71, 72 (2d Cir. 2017) ("[a] police officer may rely on the statements of a putative victim or witness to determine if probable cause exists for an arrest, unless the officer is presented with a reason to doubt the witness' veracity"). As Tyler noted during his deposition, the plaintiff is "a big guy"; the plaintiff acknowledged in his deposition testimony, which also was before the court, that he was 6'3? tall and weighed approximately 235 pounds. The police incident report also indicates that when the officers spoke with the plaintiff, he acknowledged striking Jake with the belt and pushing Miriam onto the bed. The plaintiff at that time cautioned: "Look, you or any other [department] officer [are] not going to tell me how to discipline my son. There is nothing wrong with using a belt. Put this on [the] record, OK-I will use the belt again and I will spank my son again." The police incident report also notes that Tyler spoke with Jake and asked him if he was okay. In response, the boy began to cry and then stated, "[m]y butt really hurts. It hurts sitting here." "Probable cause is the knowledge of facts sufficient to justify a reasonable person in the belief that there are reasonable grounds for prosecuting an action." Falls Church Group, Ltd. v. Tyler, Cooper & Alcorn, LLP , supra, 281 Conn. at 94, 912 A.2d 1019. "[T]he probable cause determination is, simply, an analysis of probabilities.... The determination is not a technical one, but is informed by the factual and practical considerations of everyday life on which reasonable and prudent [persons], not legal technicians, act." (Internal quotation marks omitted.) State v. Brown , 279 Conn. 493, 523, 903 A.2d 169 (2006). For that reason, probable cause "is a flexible common sense standard that does not require the police officer's belief to be correct or more likely true than false.... [W]hile probable cause requires more than mere suspicion . the line between mere suspicion and probable cause necessarily must be drawn by an act of judgment formed in light of the particular situation and with account taken of all the circumstances . The existence of probable cause does not turn on whether the defendant could have been convicted on the same available evidence." (Citations omitted; emphasis added; internal quotation marks omitted.) Washington v. Blackmore , 119 Conn. App. 218, 221-22, 986 A.2d 356, cert. denied, 296 Conn. 903, 991 A.2d 1104 (2010). In the context of the motion for summary judgment filed by the defendant in the present case, the critical question is whether the plaintiff can demonstrate that the officers had no objectively reasonable basis to believe that an offense has been committed. The documentation submitted in connection with that motion convinces us that no genuine issue of material fact exists as to whether the arresting officers possessed an objectively reasonable basis to believe that the plaintiff's conduct on June 23, 2012, placed both Jake and Abigail in a situation that was likely to be psychologically injurious to them. Abigail watched as the plaintiff wound up his arm and then struck Jake with the belt several times, which reduced her to tears and left her shaking and visibly upset when officers arrived at the residence soon thereafter. Abigail, at that time, described the incident as "very disturbing" and informed officers that she was fearful that the plaintiff would hit her in the future. Seven year old Jake not only bore the brunt of the plaintiff's blows with the belt, but also watched the plaintiff shove his mother to the bed when she attempted to intervene on his behalf. When the officers spoke with Jake and asked if he was okay, the boy began to cry and then confessed that his "butt really hurts," so much so that it pained him to be seated. In her written statement, Miriam informed the officers that Jake was screaming as the plaintiff struck him and that the plaintiff's behavior had frightened Abigail. Miriam also indicated in that statement that she "will not have my children subject to or witness to violence." Furthermore, the officers in the present case were summoned to the residence by a 911 call that included a report of domestic violence, and the plaintiff thereafter responded to the officer's questions in a defiant manner, insisting that they could not "tell [him] how to discipline [his] son" and imploring them to "[p]ut this on the record . I will use the belt again and I will spank my son again." Viewing the record before us in a light most favorable to the plaintiff, we conclude that the plaintiff has not demonstrated the existence of a genuine issue of material fact as to whether, on the totality of the circumstances and the facts known to them at the time, the arresting officers lacked an objectively reasonable basis to believe that he had violated the situational prong of § 53-21 (a). The plaintiff, therefore, cannot establish the probable cause element of an action for malicious prosecution. II The plaintiff nonetheless argues that the arresting officers lacked probable cause in light of the protection afforded parents under General Statutes § 53a-18 (1). That statute provides in relevant part that "[t]he use of physical force upon another person which would otherwise constitute an offense is justifiable and not criminal under any of the following circumstances . (1) A parent, guardian or other person entrusted with the care and supervision of a minor . may use reasonable physical force upon such minor . when and to the extent that he reasonably believes such to be necessary to maintain discipline or to promote the welfare of such minor or incompetent person...." It is well established that § 53a-18 (1) functions as a defense under our law. Commonly known as "the parental justification defense"; State v. Nathan J ., supra, 294 Conn. at 253, 982 A.2d 1067 ; § 53a-18 (1) operates as a "shield" in certain circumstances in recognition of "the parental right to punish children for their own welfare." State v. Leavitt , 8 Conn. App. 517, 522, 513 A.2d 744, cert. denied, 201 Conn. 810, 516 A.2d 886 (1986). The statute "enumerates circumstances in which physical force, which would otherwise constitute an offense, is justifiable and thus not criminal." State v. Nathan J ., supra, at 253, 982 A.2d 1067. As our Supreme Court has explained: "The parental justification defense . provides that [physical] force is not criminal, as long as it is reasonable, when directed by a parent, or someone standing in loco parentis, against a child for disciplinary purposes. If the force is unreasonable . however, the parental justification [defense] does not apply and the force may constitute risk of injury." Id., at 260, 982 A.2d 1067. Significantly, the ultimate determination of whether the particular conduct of a parent is reasonable, and thus entitled to the protection of § 53a-18 (1), "is a factual determination to be made by the trier of fact." State v. Brocuglio , 56 Conn. App. 514, 518, 744 A.2d 448, cert. denied, 252 Conn. 950, 748 A.2d 874 (2000) ; State v. Leavitt , supra, 8 Conn. App. at 522, 513 A.2d 744. Because "the defense only applies to 'reasonable physical force' to the extent 'reasonably . necessary to maintain discipline or to promote the welfare' of the child"; State v. Nathan J ., supra, 294 Conn. at 255, 982 A.2d 1067 (emphasis in original); the factual question of reasonableness cannot be determined by the arresting officers or the prosecutor in a given case, but rather remains exclusively the domain of the trier of fact. Id., at 259, 982 A.2d 1067. Indeed, the arresting officers in the present case performed a preliminary, and fundamentally distinct, function-namely, the determination of whether the facts then known were sufficient to justify a reasonable person to believe that reasonable grounds for prosecuting an action existed. See Falls Church Group, Ltd. v. Tyler, Cooper & Alcorn, LLP , supra, 281 Conn. at 94, 912 A.2d 1019. For that reason, our Supreme Court has recognized that "[t]he existence of probable cause does not turn on whether the defendant could have been convicted on the same available evidence"; State v. Trine , 236 Conn. 216, 237, 673 A.2d 1098 (1996) ; particularly because "proof of probable cause requires less than proof by a preponderance of the evidence." State v. Munoz , 233 Conn. 106, 135, 659 A.2d 683 (1995). As the United States Court of Appeals for the Second Circuit has noted, "[i]t would be unreasonable and impractical to require that every innocent explanation for activity that suggests criminal behavior be proved wrong, or even contradicted, before an arrest warrant could be issued with impunity.... It is up to the factfinder to determine whether a defendant's story holds water, not the arresting officer.... Once officers possess facts sufficient to establish probable cause, they are neither required nor allowed to sit as prosecutor, judge or jury. Their function is to apprehend those suspected of wrongdoing, and not to finally determine guilt through a weighing of the evidence." (Citations omitted.) Krause v. Bennett , 887 F.2d 362, 372 (2d Cir. 1989). Had the plaintiff elected to proceed to trial in the underlying criminal proceeding, the finder of fact ultimately may have found his conduct on June 23, 2012, to be reasonable, and thus subject to the protection of the parental justification defense contained in § 53-18 (1). That defense has little bearing, however, on the preliminary determination of probable cause made by the arresting officers who responded to the 911 call in the present case. III Also misplaced is the plaintiff's reliance on this court's decision in Lovan C. v. Dept. of Children & Families , 86 Conn. App. 290, 860 A.2d 1283 (2004). Unlike the present case, which involves a probable cause determination made soon after the incident in question, Lovan C. involved a decision of the administrative hearings unit of the Department of Children and Families substantiating an allegation of physical abuse by a parent who had engaged in corporal punishment of her child. Id., at 292-93, 860 A.2d 1283. In concluding that "substantiation must be reversed for lack of substantial evidence that the plaintiff's discipline was unreasonable"; id., at 301, 860 A.2d 1283 ; this court emphasized that the hearing officer improperly "failed to hold a hearing regarding the reasonableness of the plaintiff's discipline of the child before substantiating the allegation of physical abuse." Id., at 297, 860 A.2d 1283. In such proceedings, the hearing officer of the administrative hearings unit of the Department of Children and Families is the finder of fact that makes that reasonableness determination as part of its final decision following a hearing. See id., at 299-300, 860 A.2d 1283 ; State v. Nathan J ., supra, 294 Conn. at 259, 982 A.2d 1067. We reiterate that, in the present case, the arresting officers were not the finders of fact tasked with making a final determination as to the reasonableness of the plaintiff's conduct after an evidentiary proceeding. Lovan C ., therefore, is inapposite to the present case. IV As a final matter, we note that the plaintiff also argues that summary judgment was inappropriate because the arresting officers allegedly "fabricated the claim [in the police incident report] that he had left red welts on his son's backside ." That contention is unavailing. In its memorandum of decision, the trial court acknowledged that, although the record contained documentation substantiating the existence of such marks, the plaintiff disputed their existence. The court nevertheless found that the "differences in the various accounts [as to whether the marks existed] are not material" to the question of whether the arresting officers possessed probable cause to charge the plaintiff with risk of injury to a child. We concur. Actual physical injury is not a prerequisite to a conviction under the situation prong of § 53-21. State v. Gewily , supra, 280 Conn. at 669, 911 A.2d 293. In reviewing the defendant's motion for summary judgment, we view the pleadings, affidavits and other proof submitted in a light most favorable to the plaintiff, and, therefore, have not considered the presence of red welts or bruising on Jake's buttocks in our analysis of whether the arresting officers possessed probable cause. Even discounting such evidence, we nonetheless are convinced that no genuine issue of material fact exists as to whether the arresting officers possessed an objectively reasonable basis to believe that the plaintiff, through his conduct on June 23, 2012, placed both Jake and Abigail in a situation that was likely to be injurious to their mental health and well-being in violation of § 53-21 (a) (1). Because the existence of probable cause is an absolute protection against an action for malicious prosecution; Bhatia v. Debek , 287 Conn. 397, 411, 948 A.2d 1009 (2008) ; the plaintiff cannot demonstrate, as he must, that he would have been entitled to judgment in a malicious prosecution action against the arresting officers but for the defendant's professional negligence. See Bozelko v. Papastavros , supra, 323 Conn. at 284, 147 A.3d 1023. The plaintiff therefore cannot prevail on his legal malpractice claim against the defendant. The judgment is affirmed. In this opinion the other judges concurred. We note that the plaintiff's former spouse is identified as Miriam Edelson in certain documents in the record before us. For convenience, we refer to her as Miriam in this opinion. The police incident report indicates that Jake was seven years old and Abigail was fifteen years old on June 23, 2012. At oral argument before this court, the plaintiff's counsel confirmed that this appeal pertains only to the risk of injury charge. Although his complaint also alleged an impairment of his ability to pursue an action for false arrest, the plaintiff has pursued no such claim in this case. For example, in his memorandum of law in opposition to the defendant's motion for summary judgment, the plaintiff acknowledged that Judge Bellis had made a finding that probable cause existed at the time of his arrest. The plaintiff nonetheless stated: "While that finding might be relevant if the plaintiff were suing for false arrest, it is meaningless in an action for malicious prosecution ." The plaintiff likewise has advanced no claim on appeal regarding an action for false arrest, and instead has focused entirely on the impairment of his ability to pursue a malicious prosecution action. In his appellate brief, the plaintiff notes that he "had informed [the defendant] of his desire to sue . for malicious prosecution" and thereafter discusses certain legal principles related thereto. He has not provided any citation to, or discussion of, legal authority regarding actions for false arrest. See Connecticut Light & Power Co. v. Gilmore , 289 Conn. 88, 124, 956 A.2d 1145 (2008). Accordingly, we confine our review to the plaintiff's claims regarding the impairment of his ability to initiate a malicious prosecution action. We further note that the plaintiff, in his complaint, averred that he had "explained to the defendant from the outset that . he wished not only to be vindicated of the said allegations [in the underlying criminal proceeding] but to sue the person who had accused him, and the arresting officers ." (Emphasis added.) In his appellate brief, the plaintiff reiterated that he had informed the defendant "of his desire to sue the arresting officers and [Miriam] for malicious prosecution." At oral argument before this court, the plaintiff's counsel abandoned any such claim with respect to Miriam, conceding that it was not a "viable lawsuit" and stating that the plaintiff was not pursuing a claim against Miriam. The present appeal, therefore, concerns the viability of a malicious prosecution action against the arresting officers. Although it reversed an earlier substantiation of physical neglect, that administrative decision also noted that the June 23, 2012 incident "was no doubt an ugly scene, and one which likely will have a lasting impact on the family." It also noted that, when the police arrived at the residence that day, the plaintiff "became flippant and belligerent with the responding officers. His behavior appeared erratic at that time." The plaintiff's belligerent behavior toward law enforcement responding to a 911 call also is documented in the police incident report, which provides necessary context for the probable cause determination made by the arresting officers. During his deposition testimony, Officer Tyler indicated that the risk of injury charge was premised on the "dangerous situation" created by the plaintiff's conduct. The police incident report states in relevant part that Miriam "called 911 to report that her husband . is beating [their] seven year old son . with a belt." The police incident report states in relevant part that Miriam and Sergeant Edward Weihe "inspected Jake's buttocks and they were cherry red, with welts...." In his deposition, the plaintiff testified: "I don't believe there [were] any marks [on Jake's body]. I don't see how there could have been.... [T]here wasn't any marks . the police lied, lied, and . there were no marks on Jake, on Jake's butt." In his appellate brief, the plaintiff alleges that the arresting officers "lied about the alleged 'red welts' " in the police incident report. In her deposition testimony, which was submitted in support of the defendant's motion for summary judgment, Miriam stated that she inspected Jake's buttocks soon after the incident and observed red marks on his buttocks. Miriam further testified that she observed "black and blue marks" on her son's body a day or two after the incident transpired. In response, she took him to department headquarters, where an officer took photographs of his body. Three photographs depicting bruising on Jake's buttocks were submitted to the court in support of the defendant's motion for summary judgment, and are contained in the record before us.

12503384

Lale VAROGLU v. Joseph SCIARRINO

Varoglu v. Sciarrino

2018-09-25

AC 39345

856

862

196 A.3d 856

196

West's Atlantic Reporter, Third Series

Connecticut Appellate Court

Connecticut

2021-08-27T20:57:41.731814+00:00

Fastcase

Lale VAROGLU v. Joseph SCIARRINO

Lale VAROGLU v. Joseph SCIARRINO AC 39345 Appellate Court of Connecticut. Argued April 16, 2018 Officially released September 25, 2018 Kevin F. Collins, Stamford, for the appellant (plaintiff). Norman A. Pattis, Bethany, with whom, on the brief, was Joseph Sciarrino, for the appellee (defendant). Lavine, Keller and Bishop, Js.

2499

15598

PER CURIAM. The plaintiff, Lale Varoglu, appeals from the judgment of the trial court dissolving her marriage to the defendant, Joseph Sciarrino. The plaintiff claims that the court erred in finding certain facts and in fashioning its orders pertaining to the distribution of the equity in the marital home by failing to apply the 'preservation'' criteria in General Statutes § 46b-81(c). We affirm the judgment of the trial court. The plaintiff brought this proceeding to dissolve her marriage to the defendant. Following a trial, the court found the following relevant facts as set forth in its May 17, 2016 memorandum of decision. The court stated: 'The plaintiff . and the defendant . were married in Westport . on August 5, 2012. This is a second marriage for the [defendant]. No children have been born to the [plaintiff] since the date of this marriage . The parties have lived separate and apart since April 5, 2014, when the [defendant] left the marital home . in Westport, which the [plaintiff] continues to occupy. The [defendant] currently occupies a two bedroom apartment in Stamford.... 'The principal bone of contention is the equitable distribution of the marital home at 2 Ledgemoor Lane in Westport, which was purchased by the parties [on] March 1, 2010, prior to their marriage for $1,950,000.... The [defendant] contributed the sum of $1,535,670 toward the purchase price, which sum represented his share of the net proceeds from the sale [of] some Nantucket property, which was part of a previous divorce settlement. The [plaintiff] contributed approximately $418,000. Title to the property was taken in the name of 2 Ledgemoor Lane, LLC, in which the [defendant] held a 65 percent interest and the [plaintiff] held a 35 percent interest, which was intended to be a rough approximation of their respective monetary contributions to the purchase. In point of fact, the actual ratio was approximately 78 percent to 22 percent. The fact that title is held in the name of a limited liability corporation is a complicating factor. The [defendant] testified that the purpose of taking title in the name of the LLC was to insulate him from any claims arising out of his dental practice. On questioning by the [plaintiff's] counsel, he also admitted that another purpose was to insulate him from outstanding claims by the [Internal Revenue Service, the Department of Revenue Services], and First County Bank. The parties worked out an arrangement to maintain the property, whereby the [defendant] would contribute $4000 per month and the [plaintiff] would contribute $2000. This arrangement continued until April, 2014, when the [defendant] left the marital home.... 'On June 3, 2010, with the agreement of the [defendant], the [plaintiff], borrowed $350,000.... at which time . the bank insisted for security that she have an 'overwhelming percentage interest' in the LLC, before it would advance the funds. Ownership of the LLC was then changed to 75 percent in favor of the [plaintiff] and 25 percent in favor of the [defendant], which is the situation as of trial.... This change was clearly done for convenience, in order to obtain the loan, and the amended ratio bore no relation to the actual monetary contributions of the respective parties. The underlying operative agreement was not amended except as to ownership.... The [defendant] testified that the parties had an agreement that $100,000 of the loan proceeds would be used to fund the post-high school education of his children from his first marriage, with the balance used for home improvements. Instead . the [plaintiff] gave the [defendant] $12,000 in cash, to replace that sum he claimed was stolen by a household employee, but more important[ly], she purchased a condominium [in] Crested Butte, Colorado, which she has valued at $162,000 the price that she originally paid for it. Title was taken in the name of LV Solutions, LLC, of which she is the sole member.... 'As to the cause of the breakdown of the marriage, the [defendant] told the [plaintiff] that he had begun an extramarital affair . approximately seven months after their marriage . He told the court that 'things were not working out for him.' In fact, at one point, he suggested to [the plaintiff] that the girlfriend could move into the marital residence with them . [H]e testified that the [plaintiff] had 'aggressively interjected herself in his finances,' and that had 'made him nervous.' The [defendant's] claim simply does not hold water. For one thing, the [defendant's] finances were in shambles long before the marriage, and for another, even while they were living together before marriage, they had substantial financial dealings together. The [defendant] fails to see the irony in his position, where, in essence, the [plaintiff] literally rode to his rescue with her earnings from employment and her excellent credit. But for her, the car he drives and some of the equipment in his dental practice would not have happened . Moreover, the fact that his investment in the marital home has been largely shielded from the taxing authorities due to her cooperation is not fully appreciated by him.'' As a result, the court found that 'the marriage of the parties has broken down irretrievably, and . the [defendant] is primarily at fault for said breakdown.'' The court ordered that '[t]he entity know as LV Solutions, LLC, of which the [plaintiff] is the sole member, and which, in turn, is the owner of real estate [in] Crested Butte, Colorado, shall remain the property of the [plaintiff], subject to any existing liens or other indebtedness, free and clear of any claims by the [defendant].... The [plaintiff] shall have exclusive possession of the real estate located at 2 Ledgemoor Lane, Westport, Connecticut, subject to any existing indebtedness, and she shall be responsible for the payment of all mortgages, liens, taxes, and insurance, and shall indemnify and hold the [defendant] harmless from any further liability thereunder. As to said real estate, the parties shall list [the home] for sale no later than July 1, 2016, with a mutually acceptable broker . Unless the parties shall otherwise agree, they shall accept any bona fide offer without unusual conditions, which is within 5 percent of the listing price. Upon sale of the property, from the proceeds shall be paid the customary and ordinary costs associated with a sale of real estate, including broker and attorney fees, conveyance taxes, and any mortgages and liens. After the payment of these sums, the net proceeds shall be divided 60 percent to the [defendant] and 40 percent to the [plaintiff]. In addition, in order to effectuate the foregoing, the parties are hereby ordered to cooperate in the preparation and filing of any necessary documentation, including any amendments to or termination of the operating agreement . or amended operating agreement . or other related paperwork, for 2 Ledgemoor Lane, LLC.'' (Citations omitted; emphasis omitted.) I The plaintiff claims that the court made clearly erroneous factual findings. Specifically, the plaintiff argues that the court erred when it found that she purchased her condominium in Crested Butte using funds from the loan secured by the marital home. The following evidence was presented to the court. The defendant testified that the plaintiff purchased the Crested Butte property using money 'from the original loan of the [$350,000], which she borrowed for 2 Ledgemoor Lane.'' 'A dissolution action is essentially equitable in nature.... The trial court's equity powers are essential to the task of fashioning relief out of the infinite variety of factual situations presented in family cases.... Decision making in family cases requires flexible, individualized adjudication of the particular facts of each case. This court will not substitute its own opinion for the factual findings of the trial court.... The trial court has a distinct advantage over a reviewing court in determinations of fact in domestic relations matters because all of the surrounding circumstances, including the appearance and attitude of the parties, are so important.... The trial court has the unique opportunity to view the evidence presented in a totality of the circumstances, i.e., including its observations of the demeanor and conduct of the witnesses and parties, which is not fully reflected in the cold printed record which is available to the reviewing court.'' (Internal quotation marks omitted.) Solomon v. Solomon , 67 Conn. App. 91, 91-92, 787 A.2d 4 (2001). 'The trial court's findings [of fact] are binding upon this court unless they are clearly erroneous in light of the evidence.'' (Internal quotation marks omitted.) Marinos v. Building Rehabilitations , LLC , 67 Conn. App. 86, 89, 787 A.2d 46 (2001). 'A factual finding is clearly erroneous when it is not supported by any evidence in the record or when there is evidence to support it, but the reviewing court is left with the definite and firm conviction that a mistake has been made.... Simply put, we give great deference to the findings of the trial court because of its function to weigh and interpret the evidence before it and to pass upon the credibility of witnesses.'' (Internal quotation marks omitted.) DiVito v. DiVito , 77 Conn. App. 124, 137, 822 A.2d 294, cert. denied, 264 Conn. 921, 828 A.2d 617 (2003). We do not agree with the plaintiff's assertions that the court made improper findings pertaining to the plaintiff using proceeds from a loan secured by the marital home to purchase property in Crested Butte. This finding was supported by the evidence because the defendant testified that the plaintiff did so and, upon review of the record, we are not left with a firm conviction that a mistake has been made. Furthermore, despite the plaintiff's use of a portion of the loan proceeds in a manner that the defendant claims he did not intend, the court awarded her the Colorado property free and clear of any claims by the defendant. II The plaintiff's second claim is that the court erred in fashioning its orders pertaining to the distribution of the equity in the marital home by failing to apply the 'preservation'' criteria in § 46b-81(c). The plaintiff asserts that the court should have awarded her more than 40 percent of the net proceeds from the court-ordered sale of the home. In support of her position, the plaintiff argues that the court, when making property distributions, failed to adequately take into account her role in preserving the marital property and that, instead, the court improperly relied on the parties' premarital contributions to the acquisition of the marital home. 'A fundamental principle in dissolution actions is that a trial court may exercise broad discretion in awarding alimony and dividing property as long as it considers all relevant statutory criteria.'' (Internal quotation marks omitted.) Boyne v. Boyne , 112 Conn. App. 279, 282, 962 A.2d 818 (2009). 'Our standard of review in domestic relations cases is very narrow, and we will afford great deference to a trial court's rulings.'' Sheikh v. Sheikh , 33 Conn. App. 927, 927, 636 A.2d 866 (1994). 'An appellate court will not disturb a trial court's orders in domestic relations cases unless the court has abused its discretion or it is found that it could not reasonably conclude as it did, based on the facts presented.... In determining whether a trial court has abused its broad discretion in domestic relations matters, we allow every reasonable presumption in favor of the correctness of its action.... This standard of review reflects the sound policy that the trial court has the opportunity to view the parties first hand and is therefore in the best position to assess all of the circumstances surrounding a dissolution action, in which such personal factors such as the demeanor and the attitude of the parties are so significant.... 'Importantly, [a] fundamental principle in dissolution actions is that a trial court may exercise broad discretion in . dividing property as long as it considers all relevant . criteria [in § 46b-81(c) ].... While the trial court must consider the delineated statutory criteria [when allocating property], no single criterion is preferred over others, and the court is accorded wide latitude in varying the weight placed upon each item under the peculiar circumstances of each case . In dividing up property, the court must take many factors into account.... A trial court, however, need not give each factor equal weight . or recite the statutory criteria that it considered in making its decision or make express findings as to each statutory factor.'' (Emphasis added; footnote added; internal quotation marks omitted.) Kent v. DiPaola , 178 Conn. App. 424, 431-32, 175 A.3d 601 (2017). Our review of the record leads us to conclude that the court properly considered the appropriate statutory factors and that the award made by the court concerning the distribution of the equity in the marital home was both supported by the evidence and within the parameters of the court's discretion. As previously stated, the court found that the plaintiff's majority ownership in 2 Ledgemoor Lane, LLC, prevented the defendant's creditors from levying on the marital home and stated that the plaintiff's 'contribution to the preservation of . the real estate, was substantial.'' There is no indication that the court failed to take into account her contribution to the preservation of the marital home when making its distribution of the equity in the marital home. Moreover, we note that, despite the plaintiff's protests, the court's property distribution can be considered favorable to her. Despite the plaintiff's having contributed 22 percent toward the purchase of the marital home and only being responsible for one third of the expenses to maintain the property when the parties lived together in the home, the court awarded the plaintiff 40 percent of the net proceeds from the sale of the home. For these reasons, we will not disturb the court's orders. The judgment is affirmed. The plaintiff also lists a claim pertaining to the defendant being bound by representations he made to a Bankruptcy Court. As the plaintiff fails to adequately brief this claim, we decline to review it. See Keating v. Ferrandino , 125 Conn. App. 601, 604, 10 A.3d 59 (2010). The court also awarded periodic alimony to the plaintiff of $3000 per month for a period of one year. General Statutes § 46b-81(c) provides: 'In fixing the nature and value of the property, if any, to be assigned, the court, after considering all the evidence presented by each party, shall consider the length of the marriage, the causes for the annulment, dissolution of the marriage or legal separation, the age, health, station, occupation, amount and sources of income, earning capacity, vocational skills, education, employability, estate, liabilities and needs of each of the parties and the opportunity of each for future acquisition of capital assets and income. The court shall also consider the contribution of each of the parties in the acquisition, preservation or appreciation in value of their respective estates.''

12511351

STATE of Connecticut v. Patricia DANIELS

State v. Daniels

2019-07-02

AC 40321

517

536

213 A.3d 517

213

West's Atlantic Reporter, Third Series

Connecticut Appellate Court

Connecticut

2021-08-27T20:58:09.224733+00:00

Fastcase

STATE of Connecticut v. Patricia DANIELS

STATE of Connecticut v. Patricia DANIELS AC 40321 Appellate Court of Connecticut. Argued March 4, 2019 Officially released July 2, 2019 Laila M. G. Haswell, senior assistant public defender, for the appellant (defendant). Denise B. Smoker, senior assistant state's attorney, with whom, on the brief, were John C. Smriga, state's attorney, and Marc R. Durso, senior assistant state's attorney, for the appellee (state). Lavine, Bright and Bear, Js.

9350

57987

BRIGHT, J. The defendant, Patricia Daniels, appeals from the judgment of conviction, rendered by the trial court following a jury trial, of manslaughter in the first degree in violation of General Statutes § 53a-55 (a) (3) (reckless manslaughter) and misconduct with a motor vehicle in violation of General Statutes § 53a-57 (a) (criminally negligent operation). The defendant also had been convicted of manslaughter in the first degree in violation of § 53a-55 (a) (1) (intentional manslaughter), but at sentencing the trial court vacated her conviction of that charge. On appeal, the defendant claims that (1) the jury's verdict was legally inconsistent because each of these crimes requires a mutually exclusive mental state, and (2) the court erred in failing to exclude testimonial hearsay. We agree that the verdict is legally inconsistent, and, therefore, we reverse in part the judgment of the trial court. The following facts, as reasonably could have been found by the jury, are relevant to this appeal. The victim, Evelyn Agyei, left her Bridgeport home at approximately 6 a.m. on December 4, 2014. Her eleven year old son accompanied her. Agyei and her son got into her Subaru Outback (Subaru), Agyei driving and her son in the back seat on the passenger's side. After traversing some back roads, they took Bond Street and arrived at the intersection of Bond Street and Boston Avenue. Agyei stopped at the red light and then proceeded to make a right turn onto Boston Avenue, staying in the right lane. As she was making the right turn, her son looked to the left and saw a white BMW sport utility vehicle (BMW) approximately two streets down, traveling at a high rate of speed in the left lane. After Agyei got onto Boston Avenue, the driver of the BMW pulled alongside Agyei's vehicle. Agyei's son saw the BMW logo on the hood; however, he could not see the driver or the license plate. The driver of the BMW then moved into the right lane, hitting Agyei's Subaru once on the driver's side and causing her to begin to lose control of the vehicle. The driver of the BMW then moved behind the Subaru and ran into it from behind, causing the vehicle to cross the median, proceed under a fence, and hit a tree. Tragically, Agyei died from her injuries, and her son, who also was injured, continues to have vision problems as a result of the injuries he sustained. After an investigation, which included obtaining a video of the incident from a nearby high school that had surveillance cameras in the area, the police, having concluded that the defendant was the driver of the BMW that hit the Subaru, causing Agyei's death and the injuries to Agyei's son, arrested the defendant. Ultimately, she was charged, in a long form information, with, inter alia, intentional manslaughter, reckless manslaughter, and criminally negligent operation of a motor vehicle; the jury found her guilty of these charges, among others. See footnote 1 of this opinion. The court accepted the jury's verdicts and rendered judgment accordingly. On the date of sentencing, upon the request of the state, the court vacated the defendant's conviction of intentional manslaughter, and it, thereafter, sentenced the defendant to twenty years incarceration, execution suspended after sixteen years, with five years of probation. The defendant raises two claims on appeal-(1) the jury's verdicts of guilty on the crimes of intentional and reckless manslaughter and criminally negligent operation were legally inconsistent because each of these crimes requires a mutually exclusive mental state, and (2) the court erred in failing to exclude testimonial hearsay-and requests that we reverse the judgment of the trial court and order a new trial on all charges and, alternatively, on the charges of intentional manslaughter, reckless manslaughter, and criminally negligent operation. Additional facts will be set forth as necessary. I INCONSISTENT VERDICTS The defendant first claims that the jury's verdicts on the counts of intentional manslaughter, reckless manslaughter, and criminally negligent operation were legally inconsistent because they each require a mutually exclusive mental state. She argues that it was logically impossible for the defendant to have possessed three forms of intent, simultaneously, for a single act, involving a single victim. The defendant explains that, at trial, the state's theory of the case was that her action in twice hitting Agyei's vehicle was one single act, which caused Agyei's death. She argues that the state tried the case under the theory that each of the three relevant counts of the information were charged in the alternative, one being intentional, one reckless, and one negligent. She contends that the fact that the jury found her guilty of all three charges, each requiring a different mental state, and that the state, thereafter, requested that the court vacate the intentional manslaughter conviction, demonstrates that the verdicts were legally inconsistent. After setting forth our standard of review and the general legal principles involved, we will consider the relevant mental element of each of these crimes in order to ascertain whether convictions of all three crimes would be legally inconsistent. "It is well established that factually inconsistent verdicts are permissible. [When] the verdict could have been the result of compromise or mistake, we will not probe into the logic or reasoning of the jury's deliberations or open the door to interminable speculation.... Thus, claims of legal inconsistency between a conviction and an acquittal are not reviewable [on appeal].... We employ a less limited approach, however, when we are confronted with an argument that [two or more convictions] are inconsistent as a matter of law or when the [convictions] are based on a legal impossibility.... A claim of legally inconsistent convictions, also referred to as mutually exclusive convictions, arises when a conviction of one offense requires a finding that negates an essential element of another offense of which the defendant also has been convicted.... In response to such a claim, we look carefully to determine whether the existence of the essential elements for one offense negates the existence of [one or more] essential elements for another offense of which the defendant also stands convicted. If that is the case, the [convictions] are legally inconsistent and cannot withstand challenge.... Whether two convictions are mutually exclusive presents a question of law, over which our review is plenary." (Citations omitted; emphasis in original; internal quotation marks omitted.) State v. Nash , 316 Conn. 651, 659, 114 A.3d 128 (2015). "[C]ourts reviewing a claim of legal inconsistency must closely examine the record to determine whether there is any plausible theory under which the jury reasonably could have found the defendant guilty of [more than one offense]." Id., at 663, 114 A.3d 128. Nevertheless, the state is bound by the theory it presented to the jury. See State v. Chyung , 325 Conn. 236, 255-56, 157 A.3d 628 (2017) (where state argued defendant engaged in only one act, rather than two, principles of due process prohibited state from relying on different theory on appeal). A Intentional Manslaughter and Reckless Manslaughter We first consider whether the charges of intentional manslaughter and reckless manslaughter were legally inconsistent under the facts of this case and in view of the state's theory. We conclude that they were not legally inconsistent because the mental state element for each of these crimes related to different results. The following additional facts and procedural history inform our review. As set forth previously in this opinion, the state charged the defendant with, inter alia, intentional manslaughter and reckless manslaughter. As to intentional manslaughter, the state charged in relevant part that, "on or about the 4th day of December, 2014, at approximately 6:30 a.m., at or near Boston Avenue within [Bridgeport] . PATRICIA DANIELS, with the intent to cause serious physical injury to another person, caused the death of EVELYN AGYEI, in violation of [§] 53a-55 (a) (1) ." As to reckless manslaughter, the state charged in relevant part that, "on or about the 4th day of December, 2014, at approximately 6:30 a.m., at or near Boston Avenue within [Bridgeport] . PATRICIA DANIELS, under circumstances evincing an extreme indifference to human life, recklessly engaged in conduct which created a grave risk of death to one EVELYN AGYEI, and thereby caused the death of . EVELYN AGYEI, in violation of [§] 53a-55 (a) (3) ." During closing and rebuttal argument, the state specifically argued to the jury: "[The defendant] knowingly and recklessly got behind the wheel of her BMW; she intentionally rammed that car off the road. And, by the way, if you don't believe it was intentional, she recklessly ran that vehicle off the road." It also argued: "We've proven beyond a reasonable doubt, based on the video of that white BMW ramming, the intentional ramming into Evelyn Agyei's car. That's intentional conduct. But intent is a question of fact for you to decide. The state recognizes that because, if you disagree that it was intentional, we also submit and argue in the alternative . that that conduct was, at the very least, reckless. She had a reckless disregard for Evelyn Agyei's life ." Although the state clearly contended that these crimes were charged in the alternative, neither it nor the defendant requested that the court specifically instruct the jury to consider each charge in the alternative. To be clear, the defendant has not claimed on appeal that the state's argument that the jury should consider the charges in the alternative, itself, precluded the jury from finding her guilty of both charges; rather, her argument is that because each of the charges required a mutually exclusive mental state, the jury was precluded from finding guilt on both charges because one intent negates the other. The defendant argues that the guilty verdicts on the counts of intentional manslaughter and reckless manslaughter were legally inconsistent because she could not have engaged in both intentional and reckless conduct simultaneously, involving only one act and one alleged victim. She contends that it was legally impossible for the jury to have found every element of both crimes because, under the state's theory of the case, each of the charges required a mutually exclusive finding with respect to her mental state. We disagree. Section 53a-55 (a) provides in relevant part: "A person is guilty of manslaughter in the first degree when: (1) With intent to cause serious physical injury to another person, he causes the death of such person or of a third person; or . (3) under circumstances evincing an extreme indifference to human life, he recklessly engages in conduct which creates a grave risk of death to another person, and thereby causes the death of another person." Pursuant to General Statutes § 53a-3 (11) : "A person acts 'intentionally' with respect to a result or to conduct described by a statute defining an offense when his conscious objective is to cause such result or to engage in such conduct ." Additionally, pursuant to General Statutes § 53a-3 (13) : "A person acts 'recklessly' with respect to a result or to a circumstance described by a statute defining an offense when he is aware of and consciously disregards a substantial and unjustifiable risk that such result will occur or that such circumstance exists. The risk must be of such nature and degree that disregarding it constitutes a gross deviation from the standard of conduct that a reasonable person would observe in the situation ." In support of her claim that intentional manslaughter and reckless manslaughter require mutually exclusive mental states, the defendant relies, in part, on State v. King , 216 Conn. 585, 583 A.2d 896 (1990). In Nash , our Supreme Court discussed King at length and explained: In King , the defendant had "claimed that his convictions of attempt to commit murder and reckless assault of the same victim based on the same conduct were legally inconsistent because they required mutually exclusive findings with respect to his mental state.... We agreed with this claim, explaining that King's conviction for attempt to commit murder required the jury to find that he acted with the intent to cause the death of the victim , whereas his conviction for reckless assault required the jury to find that he acted recklessly and thereby created a risk that the victim would die . We further explained that the statutory definitions of intentionally and recklessly are mutually exclusive and inconsistent.... Reckless conduct is not intentional conduct because [a person] who acts recklessly does not have a conscious objective to cause a particular result.... Thus, we observed that [t]he intent to cause death required for a conviction of attempted murder [under General Statutes § 53a-49 and 53a-54a (a) ] . necessitated a finding that the defendant acted with the conscious objective to cause death . [whereas] [t]he reckless conduct necessary to be found for a conviction of assault under [ General Statutes § 53a-59 (a) (3) ] . required a finding that the defendant acted without such a conscious objective . We concluded, therefore, that the jury verdicts [with respect to attempt to commit murder and reckless assault in the first degree] each of which requires a mutually exclusive and inconsistent state of mind as an essential element for conviction cannot stand." (Citations omitted; emphasis added; footnote omitted; internal quotation marks omitted.) State v. Nash , supra, 316 Conn. at 660-61, 114 A.3d 128. The defendant also relies on State v. Chyung , 325 Conn. 236, 157 A.3d 628 (2017). In Chyung , the jury found the defendant guilty of murder, in violation of § 53a-54a, and of reckless manslaughter in the first degree with a firearm, in violation of General Statutes § 53a-55a (a) and 53a-55 (a) (3), for the shooting death of his wife. Id., at 239, 239, 157 A.3d 628 n.1. Section 53a-54a provides in relevant part: "(a) A person is guilty of murder when, with intent to cause the death of another person, he causes the death of such person ." (Emphasis added.) Section 53a-55a (a) provides in relevant part: "A person is guilty of manslaughter in the first degree with a firearm when he commits manslaughter in the first degree as provided in section 53a-55, and in the commission of such offense he uses, or is armed with and threatens the use of or displays or represents by his words or conduct that he possesses a . firearm...." As noted previously, § 53a-55 (a) provides in relevant part: "A person is guilty of manslaughter in the first degree when . (3) under circumstances evincing an extreme indifference to human life, he recklessly engages in conduct which creates a grave risk of death to another person, and thereby causes the death of another person." (Emphasis added.) The court in Chyung found that the jury's guilty verdicts as to both charges were legally inconsistent because the defendant could not act both intentionally and recklessly with respect to the same victim, the same act, and the same result simultaneously. State v. Chyung , supra, 325 Conn. at 247-48, 157 A.3d 628. Our Supreme Court explained that to find the defendant guilty of the crime of intentional murder, the jury was required to find that the defendant had the specific intent to kill the victim , his wife, but, to find the defendant guilty of reckless manslaughter, the jury was required to find that he acted recklessly, meaning, that he acted without a conscious objective to cause the death of the victim , but consciously disregarded the risk of his actions, thereby putting the life of the victim in grave danger. Id., at 246-48, 157 A.3d 628. The court concluded that a defendant cannot act with a conscious disregard that his actions will create a grave risk of death to another, while, at the same time, specifically intending to kill that person. Id. The "defendant cannot simultaneously act intentionally and recklessly with respect to the same act and the same result ." Id., at 247-48, 157 A.3d 628. Although the defendant argues that both King and Chyung are controlling in this case, the state contends that the defendant's claim is governed by State v. Nash , supra, 316 Conn. at 659-70, 114 A.3d 128. In Nash , the jury found the defendant guilty of, among other things, both intentional and reckless assault in the first degree pursuant to General Statutes § 53a-59 (a) (1) and (a) (3), respectively, and the court rendered judgment in accordance with the jury's verdicts. Id., at 656-57, 114 A.3d 128. On appeal, the defendant claimed in part that the jury's verdicts of guilty on both intentional and reckless assault were legally inconsistent because each crime required a mutually exclusive state of mind. Id., at 657, 114 A.3d 128. Our Supreme Court disagreed, explaining that the two mental states required for intentional and reckless assault in the first degree related to different results . Id., at 666, 114 A.3d 128. More specifically, the court explained, "in order to find the defendant guilty of [both intentional and reckless assault in the first degree], the jury was required to find that the defendant intended to injure another person and that, in doing so, he recklessly created a risk of that person's death . In light of the state's theory of the case, there was nothing to preclude a finding that the defendant possessed both of these mental states with respect to the same victim at the same time by virtue of the same act or acts. In other words, the jury could have found that the defendant intended only to injure another person when he shot into [the victim's] bedroom but that, in doing so, he recklessly created a risk of that [victim's] death in light of the circumstances surrounding his firing of the gun into the dwelling. Accordingly, because the jury reasonably could have found that the defendant simultaneously possessed both mental states required to convict him of both intentional and reckless assault, he cannot prevail on his claim that the convictions were legally inconsistent." (Emphasis added; footnotes omitted.) Id., at 666-68, 114 A.3d 128. The court in Nash went on to examine and compare § 53a-59 (a) (1) and (3) : "Intentional assault in the first degree in violation of § 53a-59 (a) (1) requires proof that the defendant (i) had the intent to cause serious physical injury to a person, (ii) caused serious physical injury to such person or to a third person, and (iii) caused such injury with a deadly weapon or dangerous instrument. Reckless assault in the first degree in violation of § 53a-59 (a) (3) requires proof that the defendant (i) acted under circumstances evincing an extreme indifference to human life, (ii) recklessly engaged in conduct that created a risk of death to another person, and (iii) caused serious physical injury to another person. As we previously explained, the mental state elements in the two provisions-'intent to cause serious physical injury' and 'recklessly engag[ing] in conduct which creates a risk of death'-do not relate to the same result. Moreover, under both provisions, the resulting serious physical injury is an element of the offenses that is separate and distinct from the mens rea requirements." Id., at 668-69, 114 A.3d 128. The court then held: "Because the defendant's convictions for intentional and reckless assault in the first degree required the jury to find that the defendant acted intentionally and recklessly with respect to different results, the defendant cannot prevail on his claim that those convictions are mutually exclusive and, therefore, legally inconsistent. " Id., at 669, 114 A.3d 128. The court in Nash provided an example of where a single act, directed to a single victim, could result in a conviction of both intentional and reckless assault in the first degree: "For example, if A shoots B in the arm intending only to injure B, A nevertheless may recklessly expose B to a risk of death if A's conduct also gave rise to an unreasonable risk that the bullet would strike B in the chest and thereby kill him. In such circumstances, a jury could find both that A intended to injure B and, in doing so, recklessly created an undue risk of B's death." Id., at 666 n.15, 114 A.3d 128. We conclude that the same analysis applies in the present case. Intentional manslaughter in violation of § 53a-55 (a) (1) requires proof that the defendant (i) had the intent to cause serious physical injury to a person, and (ii) caused the death of such person or of a third person. Reckless manslaughter in violation of § 53a-55 (a) (3) requires proof that the defendant (i) acted under circumstances evincing an extreme indifference to human life, (ii) recklessly engaged in conduct that created a grave risk of death to another person, and (iii) caused the death of another person. Guided by our Supreme Court's analysis in Nash , we conclude that the mens rea elements in the two provisions, namely, the "intent to cause serious physical injury" and "recklessly engag[ing] in conduct which creates a grave risk of death"; General Statutes § 53a-55 (a) ; do not relate to the same result. In finding the defendant guilty of both intentional and reckless manslaughter, the jury in the present case reasonably could have found that the defendant specifically intended to cause serious physical injury to Agyei and that, in doing so, she consciously disregarded a substantial and unjustifiable risk that her actions created a grave risk of death to Agyei . See State v. Nash , supra, 316 Conn. at 666-67, 114 A.3d 128. Because the jury's guilty verdicts on the charges of intentional and reckless manslaughter required findings that the defendant simultaneously acted intentionally and recklessly with respect to different results , we conclude that the defendant cannot prevail on her claim that the verdicts on those charges were legally inconsistent. B Intentional Manslaughter and Criminally Negligent Operation The defendant also claims that the verdicts on the counts of intentional manslaughter and criminally negligent operation were legally inconsistent. We disagree. As stated previously in this opinion: intentional manslaughter in violation of § 53a-55 (a) (1) requires proof that the defendant (i) had the intent to cause serious physical injury to a person, and (ii) caused the death of such person or of a third person. Criminally negligent operation in violation of § 53a-57 (a) provides: "A person is guilty of misconduct with a motor vehicle when, with criminal negligence in the operation of a motor vehicle, he causes the death of another person." General Statutes § 53a-3 (14) provides that "[a] person acts with criminal negligence with respect to a result or to a circumstance described by a statute defining an offense when he fails to perceive a substantial and unjustifiable risk that such result will occur or that such circumstance exists. The risk must be of such nature and degree that the failure to perceive it constitutes a gross deviation from the standard of care that a reasonable person would observe in the situation ." (Internal quotation marks omitted.) See State v. Gonsalves , 137 Conn. App. 237, 244, 47 A.3d 923, cert. denied, 307 Conn. 912, 53 A.3d 998 (2012). "Under § 53a-57, the state was required to prove that the defendant was operating a motor vehicle, that [s]he caused the death of another person, and that [s]he failed to perceive a substantial and unjustifiable risk that the manner in which [s ]he operated [her ] vehicle would cause that death. The failure to perceive that risk must constitute a gross deviation from the standard of care that a reasonable person would observe in the situation.... Further, [t]o prove causation, the state is required to demonstrate that the defendant's conduct was a proximate cause of the victim's death-i.e., that the defendant's conduct contributed substantially and materially, in a direct manner, to the victim's injuries and that the defendant's conduct was not superseded by an efficient intervening cause that produced the injuries." (Citation omitted; emphasis added; internal quotation marks omitted.) State v. Jones , 92 Conn. App. 1, 7-8, 882 A.2d 1277 (2005). Considering the plain language of each statute, we are persuaded that, as in Nash ; see part I A of this opinion; the mental state requirements for each statute are not mutually exclusive. One can intend to cause serious physical injury to another , while, at the same time, failing to perceive a substantial and unjustifiable risk that the manner in which she operated her vehicle would cause the victim's death. The mental state elements in the two provisions-failing to perceive a substantial and unjustifiable risk that your manner of operation would cause death and an intent to cause serious physical injury -do not relate to the same result. Because the defendant's convictions of intentional manslaughter and criminally negligent operation required the jury to find that the defendant acted intentionally and criminally negligent with respect to different results (failing to perceive a substantial and unjustifiable risk of death and intending to cause serious physical injury ), the defendant cannot prevail on her claim that the mental states required for those crimes are mutually exclusive and, therefore, that the verdicts are legally inconsistent. See State v. Nash , supra, 316 Conn. at 668-69, 114 A.3d 128. C Reckless Manslaughter and Criminally Negligent Operation The defendant also claims that the jury's verdicts with respect to the crimes of reckless manslaughter and criminally negligent operation are legally inconsistent. The state argues on appeal that the jury could have viewed each strike of Agyei's vehicle as a separate act, with a separate mental state. It conceded during oral argument before this court, however, that if we view both strikes of the collision as one act, the mental elements of these two counts are mutually exclusive. We are not persuaded by the state's argument that the jury could have viewed each strike as a separate act because the state never made such an argument to the jury; rather, it consistently argued that this was one continuous act. As our Supreme Court repeatedly has stated, the state is bound by the theory it presented to the jury; on appeal, it may not rely on a theory of the case that differs from the theory that was presented to the jury. See State v. Chyung , supra, 325 Conn. at 256, 157 A.3d 628 ("[c]onstitutional [p]rinciples of due process do not allow the state, on appeal, to rely on a theory of the case that was never presented at trial" [internal quotation marks omitted] ); State v. King , 321 Conn. 135, 149, 136 A.3d 1210 (2016) (same). We agree with the defendant that the state of mind element in each of these charges is mutually exclusive and, therefore, that the verdicts of guilty as to both of these charges were legally inconsistent. For the defendant to be found guilty of reckless manslaughter, the state needed to prove that she was aware of and consciously disregarded a substantial and unjustifiable risk that her actions would create a grave risk of death to another person, namely Agyei. See General Statutes § 53a-55 (a) (3). For her to be found guilty of criminally negligent operation, the state needed to prove that she failed to perceive a substantial and unjustifiable risk that the manner in which she operated her vehicle would cause Agyei's death . See General Statutes § 53a-57 ; State v. Jones , supra, 92 Conn. App. at 7-8, 882 A.2d 1277. We conclude that the mental states required under these two provisions are mutually exclusive. "The [penal] code . distinguishes reckless from criminally negligent conduct. A person acts recklessly if he is aware of and consciously disregards a substantial and unjustifiable risk, and acts with criminal negligence . when he fails to perceive a substantial and unjustifiable risk." (Emphasis altered; internal quotation marks omitted.) State v. Bunkley , 202 Conn. 629, 639, 522 A.2d 795 (1987). In the Commission to Revise the Criminal Statutes, Penal Code Comments, Conn. Gen. Stat. Ann. § 53a-3 (West 2007), commission comments, the commission briefly explains the difference between reckless conduct and criminal negligence under our penal code. As to reckless conduct, the commission stated: "This concept, much like the concept of recklessness under the present reckless driving statute, requires conscious disregard of a substantial and unjustifiable risk. But this disregard must be a gross deviation from the standard of a reasonable man." (Emphasis added.) Commission to Revise the Criminal Statutes, Penal Code Comments, supra, § 53a-3, commission comment. As to criminal negligence, the commission comments provide: "This concept involves a failure to perceive a substantial and unjustifiable risk. And, as in the concept of recklessness, the failure to perceive must be a gross deviation from the standard of a reasonable man; thus it requires a greater degree of culpability than the civil standard of negligence." (Emphasis added.) Id. Considering the plain language of both § 53a-55 (a) (3) and 53a-57 (a), we are persuaded that the mental state element for each statute is mutually exclusive when examined under the facts and theory of the state in the present case. The defendant could not have consciously disregarded a substantial and unjustifiable risk that her actions would cause Agyei's death, while, simultaneously, failing to perceive a substantial and unjustifiable risk that her actions would cause Agyei's death. The mental state elements in the two provisions relate to the same result. Accordingly, the verdicts of guilty as to the crimes of reckless manslaughter and criminally negligent operation were legally inconsistent. II TESTIMONIAL HEARSAY The defendant next claims that the court erred in failing to exclude testimonial hearsay. She argues that the testimony of now former Bridgeport Detective Paul Ortiz, relying on statements made by someone at the BMW dealership, amounted to testimonial hearsay. Because this claim was not preserved at trial, the defendant seeks review under State v. Golding , 213 Conn. 233, 239-40, 567 A.2d 823 (1989), as modified by In re Yasiel R ., 317 Conn. 773, 120 A.3d 1188 (2015). We conclude that the record is adequate for review, but that the claim is unreviewable under Golding 's second prong because it is not of constitutional magnitude. See State v. Carpenter , 275 Conn. 785, 820-21, 882 A.2d 604 (2005) (defendant's claim not reviewable under Golding 's second prong because admission of out-of-court statements for purposes other than their truth raises no confrontation clause issues), cert. denied, 547 U.S. 1025, 126 S. Ct. 1578, 164 L. Ed. 2d 309 (2006). The following additional facts inform our analysis. As part of their investigation of the collision involving Agyei's vehicle, the police obtained a video of the incident from Harding High School, which had surveillance cameras in the area. The footage from the video showed a white sport utility vehicle (SUV) hitting a darker colored vehicle. Detective Arthur Calvao of the Bridgeport Police Department printed out several still photographs from certain relevant frames of the video, which depict a white SUV striking a dark colored vehicle from the side and then from the rear. Although the investigators were unable to identify the make and model of the white SUV from the video or the photographs, Ortiz, the lead detective on this matter, interviewed Agyei's son, who insisted that the vehicle that hit his mother's vehicle was a white BMW. One of the Bridgeport police detectives then went to a BMW dealership and showed the still photographs to personnel there, who identified the white SUV as a newer model BMW X3. The police, thereafter, obtained a list of the owners of all 2000-2014 BMW X3s and X5s registered in Connecticut from the Department of Motor Vehicles, and they began visiting the homes of the people on the list, asking to inspect their BMWs. If the vehicle had no damage, the police crossed it off their list. If the vehicle had front end damage, the police spoke further with the owner, and towed the vehicle to the police department for further inspection. One of the vehicles examined by the police belonged to the defendant. Ortiz observed that the defendant's vehicle had damage to its front end that was consistent with the collision being investigated. The defendant admitted to Ortiz that she had driven west on Boston Avenue between 6 a.m. and 6:30 a.m. on December 4, 2014. Ortiz then called for a tow truck, which took the defendant's BMW to the police department. The front bumper of the vehicle was sent to the state forensic laboratory for testing. Alison Gingell, a forensic examiner at the state laboratory, performed testing on the bumper, and she compared a paint sample from Agyei's Subaru with a paint particle she found stuck on the bumper of the defendant's BMW. After analysis, Gingell concluded that the samples were similar in color, texture, structure, chemical type, and elemental composition. The defendant argues that "Ortiz testified that a Bridgeport police detective visited a [BMW] dealership . and showed members of the staff there [photographs] of the BMW. Those individuals 'determined that it was an X3 BMW, a new model .' . This statement by an employee of [the dealership] is testimonial hearsay." (Citation omitted; emphasis added.) She also argues: "The admission of this testimony violated the defendant's right of confrontation because she never had the chance to cross-examine the person from the dealership to test the basis of this information." The state responds that the statement of the dealership employee was not hearsay because it was not offered for the truth of the matter asserted. It argues: "Because the purpose of the statement was not to show that the vehicle in the [photograph] was, in fact, a BMW X3 but, instead, [was] merely to show how the police investigation proceeded, it was not hearsay and raised no legitimate confrontation clause issue." We agree with the state. "It is fundamental that the defendant's rights to confront the witnesses against him and to present a defense are guaranteed by the sixth amendment to the United States constitution.... A defendant's right to present a defense is rooted in the compulsory process and confrontation clauses of the sixth amendment . Furthermore, the sixth amendment rights to confrontation and to compulsory process are made applicable to state prosecutions through the due process clause of the fourteenth amendment." (Internal quotation marks omitted.) State v. Holley , 327 Conn. 576, 593, 175 A.3d 514 (2018). "Under Crawford v. Washington , [541 U.S. 36, 59, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004) ], hearsay statements of an unavailable witness that are testimonial in nature may be admitted in accordance with the confrontation clause only if the defendant previously has had the opportunity to cross-examine the unavailable witness. Nontestimonial statements, however, are not subject to the confrontation clause and may be admitted under state rules of evidence. Davis v. Washington , 547 U.S. 813, 821, 126 S. Ct. 2266, 165 L. Ed. 2d 224 (2006). Thus, the threshold inquiries that determine the nature of the claim are whether the statement was hearsay, and if so, whether the statement was testimonial in nature, questions of law over which our review is plenary." State v. Smith , 289 Conn. 598, 618-19, 960 A.2d 993 (2008). "As a general matter, a testimonial statement is typically [a] solemn declaration or affirmation made for the purpose of establishing or proving some fact.... Although the United States Supreme Court did not provide a comprehensive definition of what constitutes a testimonial statement in Crawford , the court did describe three core classes of testimonial statements: [1] ex parte in-court testimony or its functional equivalent-that is, material such as affidavits, custodial examinations, prior testimony that the defendant was unable to cross-examine, or similar pretrial statements that declarants would reasonably expect to be used prosecutorially . [2] extrajudicial statements . contained in formalized testimonial materials, such as affidavits, depositions, prior testimony, or confessions [and] . [3] statements that were made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial . "Subsequently, in Davis v. Washington , supra, 547 U.S. at 822, 126 S.Ct. 2266, the United States Supreme Court elaborated on the third category and applied a primary purpose test to distinguish testimonial from nontestimonial statements given to police officials, holding: Statements are nontestimonial when made in the course of police interrogation under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency. They are testimonial when the circumstances objectively indicate that there is no such ongoing emergency, and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution.... "In State v. Slater , [285 Conn. 162, 172 n.8, 939 A.2d 1105, cert. denied, 553 U.S. 1085, 128 S. Ct. 2885, 171 L. Ed. 2d 822 (2008) ], we reconciled Crawford and Davis , noting: We view the primary purpose gloss articulated in Davis as entirely consistent with Crawford 's focus on the reasonable expectation of the declarant.... [I]n focusing on the primary purpose of the communication, Davis provides a practical way to resolve what Crawford had identified as the crucial issue in determining whether out-of-court statements are testimonial, namely, whether the circumstances would lead an objective witness reasonably to believe that the statements would later be used in a prosecution.... We further emphasized that this expectation must be reasonable under the circumstances and not some subjective or far-fetched, hypothetical expectation that takes the reasoning in Crawford and Davis to its logical extreme." (Citations omitted; internal quotation marks omitted.) State v. Smith , supra, 289 Conn. at 622-24, 960 A.2d 993. In the present case, the defendant asserts that the statement of the dealership employee or employees, as offered by Ortiz, was testimonial hearsay under the third category recognized in Crawford . See id. Before we consider whether the statement was testimonial, however, we first must determine whether it amounted to hearsay. See id., at 618-19, 960 A.2d 993 (threshold inquiry that determines nature of claim is whether statement was hearsay); see also State v. Carpenter , supra, 275 Conn. at 820-21, 882 A.2d 604 (if statement is not hearsay, defendant not entitled to review of unpreserved claim under Golding ). The Connecticut Code of Evidence defines hearsay as "a statement, other than one made by the declarant while testifying at the proceeding, offered in evidence to establish the truth of the matter asserted." Conn. Code Evid. § 8-1 (3). "An out-of-court statement is hearsay when it is offered to establish the truth of the matters contained therein.... A statement offered solely to show its effect upon the hearer, [however], is not hearsay." (Internal quotation marks omitted.) State v. Colon , 272 Conn. 106, 195, 864 A.2d 666 (2004), cert. denied, 546 U.S. 848, 126 S. Ct. 102, 163 L. Ed. 2d 116 (2005). We conclude that the statement was not hearsay because it was not offered for the truth of the matter asserted, but, rather, it was offered to show its effect on the listener. During Ortiz' testimony at the defendant's trial, the following colloquy occurred on direct examination: "[Prosecutor]: Did you know . whether . you were looking for any particular model type [of vehicle]? "[Ortiz]: Well, a little while after, we did, yes. "[Prosecutor]: And . what led you to that conclusion? "[Ortiz]: We had one of our detectives go to the BMW dealership and show the photos to personnel at the . Helmut's BMW, and they were able to-they determined it was an X3 BMW, a newer model . "[Prosecutor]: Now, in relation to that investigation, what, if anything, did your detective bureau take in terms of steps of locating this particular vehicle? "[Ortiz]: We were able to obtain a list of all the BMWs in the state of Connecticut; all the X3s, the X5s from years 2000 to 2014." (Emphasis added.) The defendant argues that the statement of the dealership employee was offered for the truth, and it served to bolster the state's claim "that the BMW in the picture was the defendant's BMW." She contends that "[t]he defense was unable to find out how certain the employee . was that the car in the still photograph was a BMW X3. The defense was not able to find out whether the BMW resembled an earlier model, though they thought it was a later model. Had the defense been able to ascertain this information, it may have helped convince the jury that the BMW in the video was not the defendant's vehicle." (Footnote added.) We conclude that the statement was not hearsay. In the present case, Ortiz was testifying as to the procedure that the police used to conduct their investigation. As part of their investigation, after producing still photographs of the collision and interviewing Agyei's son, learning from him that the vehicle that hit his mother's vehicle was a white BMW, the police took those still photographs to a BMW dealership to see if someone could ascertain the year, make, and model of the vehicle from the photos. They then used that information to obtain a list of similar vehicles from the Department of Motor Vehicles. The statement that personnel at the dealership "were able to-they determined it was an X3 BMW, a newer model "; (emphasis added); was offered to demonstrate, not that the vehicle, in fact, was a newer model X3 or that it was the defendant's vehicle. Rather, it was used to demonstrate the route that the police took in deciding to obtain a list of 2000-2014 X3 and X5 BMWs and in conducting their investigation, which included investigating fifteen model years of X3s and X5s, and not just newer model X3s. We conclude, therefore, that the defendant's evidentiary claim fails under Golding 's second prong because the admission of an out-of-court statement for purposes other than its truth raises no confrontation clause issue. See State v. Carpenter , supra, 275 Conn. at 821, 882 A.2d 604, citing Crawford v. Washington , supra, at 59-60 n.9, 124 S. Ct. 1354 (citing Tennessee v. Street , 471 U.S. 409, 414, 105 S. Ct. 2078, 85 L. Ed. 2d 425 [1985] ). III CONCLUSION We have determined, under the facts of this case as pursued by the state that (1) the jury's verdicts of guilty on the charges of intentional manslaughter and reckless manslaughter are not legally inconsistent, (2) the jury's verdicts of guilty on the charges of intentional manslaughter and criminally negligent operation are not legally inconsistent, (3) the jury's verdicts of guilty on the charges of reckless manslaughter and criminally negligent operation are legally inconsistent, and (4) the defendant's testimonial hearsay claim fails under Golding 's second prong. We next consider the remedy and whether this case must be remanded to the trial court, and, if so, the appropriate remand order. Because of the inconsistency in the verdicts, we have no way of knowing whether the jury, if it properly had considered the mental elements of each crime, would have found the defendant guilty of reckless manslaughter or criminally negligent operation. Setting aside one of the convictions, therefore, will not cure the problem. Moreover, it is not for this court, on appeal, to make a factual determination as to the defendant's mental state or states at the time the collision occurred. The inconsistent verdicts, therefore, require that we vacate the defendant's convictions on the charges of reckless manslaughter and criminally negligent operation, and order a new trial thereon. See State v. King , supra, 216 Conn. at 594-95, 583 A.2d 896. On retrial, if properly supported by the evidence and pursued by the state pursuant to the same theory, the trial court may submit both counts to the jury, but it should instruct the jury that criminally negligent operation and reckless manslaughter can be found only in the alternative. The court also should make clear to the jury that it may find the defendant guilty of either criminally negligent operation or reckless manslaughter, but it may not convict her of both. See id. The state, citing to State v. Polanco , 308 Conn. 242, 262-63, 61 A.3d 1084 (2013), argues, in a footnote in its brief, that if we conclude that the reckless manslaughter and misconduct with a motor vehicle convictions are inconsistent, we should remand with direction to reinstate the intentional manslaughter conviction. To the extent that the state is asking for the conviction of intentional manslaughter to be reinstated, and not simply that the state be permitted to retry the defendant on that charge, we decline to do so. The state moved at sentencing to vacate the conviction on that charge partly because doing so went "along with the spirit of the state's intent during the beginning of this case." See footnote 3 of this opinion. Under these circumstances, the most the state can ask for is what the defendant has requested-a retrial on all three of the charges related to Agyei's death. In the concluding paragraph of her appellate brief, the defendant requests "that she be granted a new trial on all the charges. Alternatively, she requests a new trial on the charges of intentional manslaughter [first], reckless manslaughter [first], and misconduct with a motor vehicle." Accordingly, we order a retrial on all three charges. The judgment is reversed in part, the convictions of reckless manslaughter and criminally negligent operation are vacated, and a new trial is ordered as to those counts and the count of intentional manslaughter consistent with this opinion; the judgment is affirmed in all other respects. In this opinion the other judges concurred. The defendant also was convicted of risk of injury to a child in violation of General Statutes § 53-21 (a) (1) and evasion of responsibility in the operation of a motor vehicle in violation of General Statutes § 14-224 (a). The judgment as to those convictions is not challenged. There is no indication in the record as to why the defendant engaged in the conduct that led to her arrest and conviction. At the sentencing hearing, the state argued in relevant part: "Based on the Supreme Court's recent decisions in State v. Polanco , [308 Conn. 242, 61 A.3d 1084 (2013) ], [State v.] Miranda , [317 Conn. 741, 120 A.3d 490 (2015) ], and [State v.] Wright , [320 Conn. 781, 135 A.3d 1 (2016) ], the state is asking that Your Honor enter an order to vacate the conviction on the intentional manslaughter under the legal theory of vacatur and that Your Honor sentence the defendant on the remaining counts, the reckless manslaughter . and misconduct with a motor vehicle. I think that goes along with the spirit of the state's intent during the beginning of this case. The state did have the belief when we initially filed our long form information that we [would proceed] on both a legal theory of intentional and reckless manslaughter based on the fact that the defendant's vehicle came into contact with the Agyei vehicle twice. But, in light of the convictions, we'd ask that she be sentenced solely on the reckless manslaughter and that Your Honor vacate the intentional manslaughter for sentencing purposes." The cases relied on by the state in support of its motion to vacate each involve cumulative convictions that violated double jeopardy protections. In Polanco , our Supreme Court held that vacatur was the appropriate remedy for double jeopardy violations involving cumulative convictions for both greater and lesser included offenses. State v. Polanco , supra, 308 Conn. at 245, 61 A.3d 1084. In Miranda , the court held that vacatur was the appropriate remedy for double jeopardy violations involving cumulative convictions of capital felony and felony murder, where both convictions involved the murder of a single victim. State v. Miranda , supra, 317 Conn. at 753, 120 A.3d 490. In Wright , the court held that vacatur was the appropriate remedy for the double jeopardy violation caused by the conviction of three counts of conspiracy arising from a single agreement with multiple criminal objectives. State v. Wright , supra, 320 Conn. at 830, 135 A.3d 1. Following the state's motion to vacate the intentional manslaughter conviction in the present case, the defendant objected, stating, in part, that she wanted to preserve the record for appeal; she also requested a mistrial on the ground that the state had overcharged in this case; the court denied the defendant's request, and it vacated the defendant's conviction of intentional manslaughter. Specifically, the court sentenced the defendant to twenty years incarceration, execution suspended after sixteen years, followed by five years probation on the manslaughter in the first degree count, five years incarceration on the misconduct with a motor vehicle count, ten years incarceration on the risk of injury to a child count, and ten years incarceration on the evasion of responsibility count. The court ordered all sentences to run concurrently. Because the defendant did not raise this claim in the trial court, she seeks to prevail under State v. Golding , 213 Conn. 233, 239-40, 567 A.2d 823 (1989) as modified by In re Yasiel R. , 317 Conn. 773, 120 A.3d 1188 (2015), which governs our consideration of unpreserved constitutional claims. The state concedes that the defendant is entitled to such review, but argues that a constitutional violation does not exist. The state suggests in its brief that we need not consider whether the two manslaughter verdicts are legally inconsistent because the court vacated the intentional manslaughter conviction. We disagree. Accepting the state's argument would mean that a review of potentially legally inconsistent verdicts could be thwarted by the state requesting that the trial court vacate one of the convictions. That is not consistent with our jurisprudence. See State v. Chyung , supra, 325 Conn. at 240, 157 A.3d 628 (despite trial court's vacatur of manslaughter in first degree conviction, Supreme Court also vacated inconsistent murder conviction and remanded case for new trial on both counts, holding "legally inconsistent verdicts involve jury error . because there is no way for the trial court or this court to know which charge the jury found to be supported by the evidence, neither verdict can stand"). The state made no argument to the jury concerning criminally negligent operation. The court, however, instructed the jury on that crime. General Statutes § 53a-59 (a) provides in relevant part: "A person is guilty of assault in the first degree when: (1) With intent to cause serious physical injury to another person, he causes such injury to such person or to a third person by means of a deadly weapon or dangerous instrument . or (3) under circumstances evincing an extreme indifference to human life he recklessly engages in conduct which creates a risk of death to another person, and thereby causes serious physical injury to another person ." "We emphasize that our conclusion that the defendant's convictions of intentional and reckless assault in the first degree were not mutually exclusive does not mean that a defendant lawfully may be punished for both offenses.... [T]he trial court in the present case merged the two assault convictions for purposes of sentencing and sentenced the defendant only on his intentional assault conviction. The defendant has not claimed that this approach violates his right against double jeopardy." (Citation omitted.) State v. Nash , supra, 316 Conn. at 669-70 n.19, 114 A.3d 128. We recognize that the differences between King , Chyung , and Nash are subtle. For example, in King , the jury necessarily would have to have found that the defendant acted with the specific intent to cause the death of the victim (attempted murder), and, at the same time, acted without the conscious objective to create a risk of death for the victim (reckless assault). See State v. King , supra, 216 Conn. at 585, 583 A.2d 896. It is impossible to possess both mental states simultaneously. In Chyung , the jury necessarily would have to have found that the defendant had the specific intent to kill the victim (murder), and simultaneously, that the defendant acted without the conscious objective to create a grave risk of death for the victim (reckless manslaughter). See State v. Chyung , supra, 325 Conn. at 236, 157 A.3d 628. Again, it is impossible to have both intents simultaneously. In Nash , however, the jury would have to have found that the defendant intended to cause serious physical injury to the victim (intentional assault), and, at the same time, that the defendant acted without the conscious objective of creating a grave risk of death for the victim, resulting in the victim's serious physical injury (reckless assault). See State v. Nash , supra, 316 Conn. at 666-67, 114 A.3d 128. Intentional assault requires a specific intent to cause serious physical injury ; reckless assault requires recklessly creating a grave risk of death , which results in serious physical injury. One can intend to cause serious physical injury to a victim, while, at the same time, consciously disregarding the fact that he or she is putting that victim's life in grave danger, ultimately resulting in serious physical injury to the victim. Pursuant to Golding , a defendant may prevail on a claim of constitutional error not preserved at trial only if all four of the following conditions are satisfied: "(1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation . exists and . deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt." (Footnote omitted.) State v. Golding , supra, 213 Conn. at 239-40, 567 A.2d 823 ; see also In re Yasiel R ., supra, 317 Conn. at 781, 120 A.3d 1188 (modifying third prong of Golding by eliminating word "clearly" before words "exists" and "deprived" [internal quotation marks omitted] ). We note that, although raising a claim for the first time on appeal can amount to an ambush on the state and the trial court, "our Supreme Court has reviewed a confrontation claim under the bypass rule of State v. Golding , [supra, 213 Conn. at 233, 567 A.2d 823 ], even when there was a claim of waiver. State v. Smith , 289 Conn. 598, 619, 960 A.2d 993 (2008) ; see also State v. Holley , 327 Conn. 576, 590, 175 A.3d 514 (2018)." State v. Walker , 180 Conn. App. 291, 301, 183 A.3d 1, cert. granted, 328 Conn. 934, 183 A.3d 634 (2018). The defendant's location at or near the scene of the collision also was confirmed by Special Agent James Wines, from the Federal Bureau of Investigation, who, after investigating the defendant's cell phone records, concluded that the defendant was in a cellular phone tower area that included the scene of the collision at the time of the collision on December 4, 2014. On cross-examination by defense counsel, the following colloquy occurred: "[Defense Counsel]: Now . in response to questions from the state, you talked about efforts made to locate the vehicle involved in this collision, correct? "[Ortiz]: That's correct, sir. "[Defense Counsel]: And your efforts were informed at least on December 4th, primarily by two sources of information; your . interview with the young man at the hospital-with [Agyei's son], the eleven year old? "[Ortiz]: Yes, the victim. "[Defense Counsel]: Who told you that he thought . a white BMW had collided with the car, correct? "[Ortiz]: He was certain it was a BMW, yes. "[Defense Counsel]: And you saw, also, a videotape with a white vehicle as well, correct? "[Ortiz]: That's correct, sir. "[Defense Counsel]: And you testified here today that you went to a BMW dealer to identify the vehicle, correct? "[Ortiz]: I didn't go, but one of the detectives went there and interviewed someone that works there, yes." The defendant does not explain why she "was not able to find out whether the BMW resembled an earlier model, though [the personnel at this dealership] thought it was a later model." We can ascertain no reason why she could not have showed the still photographs to an expert to ascertain an opinion on the year, make, and model of the white vehicle in the photos. The defendant's convictions of risk of injury to a child and evasion of responsibility in the operation of a motor vehicle remain intact.

12511350

Trevelle DINHAM v. COMMISSIONER OF CORRECTION

Dinham v. Comm'r of Corr.

2019-07-02

AC 41625

507

517

213 A.3d 507

213

West's Atlantic Reporter, Third Series

Connecticut Appellate Court

Connecticut

2021-08-27T20:58:09.224733+00:00

Fastcase

Trevelle DINHAM v. COMMISSIONER OF CORRECTION

Trevelle DINHAM v. COMMISSIONER OF CORRECTION AC 41625 Appellate Court of Connecticut. Argued February 5, 2019 Officially released July 2, 2019 Vishal K. Garg, West Hartford,, for the appellant (petitioner). Zenobia G. Graham-Days, assistant attorney general, with whom, on the brief, was George Jepsen, former attorney general, for the appellee (respondent). Keller, Elgo and Harper, Js.

5164

32202

HARPER, J. The petitioner, Trevelle Dinham, appeals from the judgment of the habeas court dismissing his petition for a writ of habeas corpus. On appeal, the petitioner argues that the court improperly dismissed his claims for lack of subject matter jurisdiction and for the failure to state a claim upon which habeas relief can be granted. Specifically, the petitioner argues that the court improperly dismissed his claims that (1) he relied on "governmental representations" that he would receive risk reduction credit when he pleaded guilty to manslaughter in the first degree with a firearm, (2) the respondent, the Commissioner of Correction, misconstrued and misapplied several statutes pertaining to the petitioner receiving a parole suitability hearing, earning risk reduction credit in the future, and applying risk reduction credit toward the advancement of the petitioner's parole eligibility date, and (3) the respondent's customary practices have created a vested liberty interest in receiving a parole suitability hearing, earning future risk reduction credits, and applying risk reduction credits to advance his parole eligibility date. We disagree and, accordingly, affirm the judgment of the habeas court. The following facts and procedural history are relevant to the resolution of this appeal. On April 2, 2012, the petitioner pleaded guilty to one count of manslaughter in the first degree with a firearm in violation of General Statutes § 53a-55a, which he committed on or about September 24, 1999, and for which he was sentenced to twenty-eight years of imprisonment. Thereafter, the then self-represented petitioner commenced this action by filing a petition for a writ of habeas corpus. On November 15, 2017, the petitioner, after obtaining counsel, filed an eighteen count amended habeas petition. On March 19, 2018, the court, sua sponte, dismissed the amended petition for lack of subject matter jurisdiction and for the failure to state a claim upon which habeas relief may be granted. See Practice Book § 23-29. Instead of addressing the petitioner's claims individually, the court broadly determined that it lacked subject matter jurisdiction over the habeas petition and that the petition had failed to state a claim upon which habeas relief can be granted. The court granted the petitioner's petition for certification to appeal. The petitioner timely filed the present appeal, challenging the dismissal of ten of his claims. Additional facts will be set forth as necessary. Before addressing the petitioner's individual claims, we first set forth the standards of review and relevant legal principles applicable to the petitioner's appeal. "Subject matter jurisdiction involves the authority of the court to adjudicate the type of controversy presented by the action before it . [A] court lacks discretion to consider the merits of a case over which it is without jurisdiction . The subject matter jurisdiction requirement may not be waived by any party, and also may be raised by a party, or by the court sua sponte, at any stage of the proceedings, including on appeal." (Internal quotation marks omitted.) Pentland v. Commissioner of Correction , 176 Conn. App. 779, 784-85, 169 A.3d 851, cert. denied, 327 Conn. 978, 174 A.3d 800 (2017). "[I]n order to invoke successfully the jurisdiction of the habeas court, a petitioner must allege an interest sufficient to give rise to habeas relief . We have long held that because [a] determination regarding a trial court's subject matter jurisdiction is a question of law, our review is plenary." (Citation omitted; internal quotation marks omitted.) Perez v. Commissioner of Correction , 326 Conn. 357, 368, 163 A.3d 597 (2017). "With respect to the habeas court's jurisdiction, [t]he scope of relief available through a petition for habeas corpus is limited. In order to invoke the trial court's subject matter jurisdiction in a habeas action, a petitioner must allege that he is illegally confined or has been deprived of his liberty . In other words, a petitioner must allege an interest sufficient to give rise to habeas relief . In order to . qualify as a constitutionally protected liberty [interest] . the interest must be one that is assured either by statute, judicial decree, or regulation." (Internal quotation marks omitted.) Boria v. Commissioner of Correction , 186 Conn. App. 332, 342, 199 A.3d 1127 (2018). "Likewise, [w]hether a habeas court properly dismissed a petition pursuant to Practice Book § 23-29 (2), on the ground that it fails to state a claim upon which habeas corpus relief can be granted, presents a question of law over which our review is plenary." (Internal quotation marks omitted.) Perez v. Commissioner of Correction , supra, 326 Conn. at 368, 163 A.3d 597. "In reviewing whether a petition states a claim for habeas relief, we accept its allegations as true." Coleman v. Commissioner of Correction , 137 Conn. App. 51, 55, 46 A.3d 1050 (2012). For ease of discussion, we next provide a brief summary of the relevant laws pertaining to the petitioner's ability to receive a parole suitability hearing, to earn future risk reduction credit, and to apply his earned risk reduction credit toward the advancement of his parole eligibility date. Pursuant to No. 04-234 of the 2004 Public Acts, codified at General Statutes § 54-125a (e), the Board of Pardons and Paroles (board) was required to hold a parole suitability hearing for any person eligible for parole who had completed 85 percent of his or her sentence. General Statutes (Rev. to 2013) § 54-125a (e) subsequently was amended by No. 13-247 of the 2013 Public Acts (P.A. 13-247), to make the board's parole suitability hearing discretionary, rather than mandatory. If the board declines to hold a hearing, however, § 54-125a (e) requires the board to document specific reasons for declining to hold a hearing and to provide those reasons to the person denied a hearing. As to risk reduction credits, our Supreme Court has summarized the relevant statutes as follows: "In July, 2011 . General Statutes § 18-98e became effective, pursuant to which the respondent had discretion to award risk reduction credit toward a reduction of an inmate's sentence, up to five days per month, for positive conduct. General Statutes § 18-98e (a) and (b). The respondent also was vested with discretion to revoke such credit, even credit yet to be earned, for good cause. See General Statutes § 18-98e (b). At the same time, the legislature amended the parole eligibility provision to provide: 'A person convicted of . an offense . where the underlying facts and circumstances of the offense involve the use, attempted use or threatened use of physical force against another person shall be ineligible for parole under subsection (a) of this section until such person has served not less than eighty-five per cent of the definite sentence imposed less any risk reduction credit earned under the provisions of section 18-98e .' . General Statutes (Rev. to 2011) § 54-125a (b) (2), as amended by Public Acts 2011, No. 11-51, § 25 (P.A. 11-51). The subsection of § 54-125a addressing parole hearings was similarly amended to account for earned risk reduction credit. General Statutes (Rev. to 2011) § 54-125a (e), as amended by P.A. 11-51, § 25. Accordingly, under the 2011 amendments, earned risk reduction credit was to be applied to an inmate's definite sentence to advance the inmate's end of sentence date, and the parole eligibility date calculated as a percentage of the sentence would advance in similar measure . "Under the 2011 amendments to § 54-125a and § 18-98e, any risk reduction credit earned by an inmate, and not subsequently revoked, would have both reduced his sentence and rendered him eligible for a hearing to determine whether he should be granted parole after he had served 85 percent of that reduced sentence. "Effective July 1, 2013, the legislature again amended § 54-125a. Specifically, with regard to offenses like one of those of which the petitioner was convicted, the legislature eliminated the language that permitted the parole eligibility date to be advanced by the application of any earned risk reduction credit. See [Public Acts 2013, No. 13-3, § 59 (P.A. 13-3) ]." (Emphasis in original; footnote altered.) Perez v. Commissioner of Correction , supra, 326 Conn. at 363-65, 163 A.3d 597. General Statutes (Rev. to 2015) § 18-98e (a) subsequently was amended by No. 15-216 of the 2015 Public Acts (P.A. 15-216), so that inmates convicted of certain violent crimes, including manslaughter in the first degree with a firearm, were ineligible to earn risk reduction credits in the future. Mindful of the foregoing legal principles, we now turn to the specific claims raised by the petitioner in this appeal. I The petitioner's first argument is that the court improperly dismissed his claims that, when he pleaded guilty in 2012 to manslaughter in the first degree with a firearm, he relied on "governmental representations" that he would receive risk reduction credits to advance his parole eligibility date and reduce the total length of his sentence. Specifically, the petitioner claims in his appellate brief that he pleaded guilty to manslaughter in the first degree with a firearm, which carried a twenty-eight year term of imprisonment, rather than murder, which carried a twenty-five year term of imprisonment, because either the court or the prosecutor represented that, if he pleaded guilty to the manslaughter charge, he would be eligible to earn risk reduction credits that would advance his parole eligibility date and would reduce the total length of his sentence to under twenty-five years. The petitioner, relying on Santobello v. New York , 404 U.S. 257, 92 S. Ct. 495, 30 L. Ed. 2d 427 (1971), argues that his operative petition states a cognizable liberty interest by virtue of his "right to rely on governmental representations," which confers subject matter jurisdiction on the court. Moreover, he asserts that the facts pleaded in his petition state a claim upon which habeas relief can be granted. We disagree. The petitioner failed to plead in his amended petition any factual basis upon which his claim relies. The petitioner only broadly alleged, citing to Santobello , that he has a liberty interest in "being able to rely on governmental representations in the decision how to resolve his pending case," without any factual allegations of what the representations were or who made them. "It is well settled that [t]he petition for a writ of habeas corpus is essentially a pleading and, as such, it should conform generally to a complaint in a civil action . The principle that a plaintiff may rely only upon what he has alleged is basic." (Internal quotation marks omitted.) Arriaga v. Commissioner of Correction , 120 Conn. App. 258, 262, 990 A.2d 910 (2010), appeal dismissed, 303 Conn. 698, 36 A.3d 224 (2012). "[A] habeas petitioner is limited to the allegations in his petition, which are intended to put the [respondent] on notice of the claims made, to limit the issues to be decided, and to prevent surprise." (Internal quotation marks omitted.) Moye v. Commissioner of Correction , 316 Conn. 779, 789, 114 A.3d 925 (2015). Accordingly, we conclude that the court did not err in dismissing the petitioner's claims for failure to state a claim upon which habeas relief can be granted. II The petitioner next argues that the court improperly dismissed several counts of his operative habeas petition, which allege that three public acts amending § 54-125a or 18-98e are substantive rather than procedural in nature and, therefore, should not apply retroactively to him. Specifically, the petitioner claims that the respondent has misinterpreted and misapplied (1) P.A. 13-247, which amended General Statutes (Rev. to 2013) § 54-125a (e) to make a parole suitability hearing discretionary rather than mandatory, (2) P.A. 13-3, which amended General Statutes (Rev. to 2013) § 54-125a to eliminate the use of risk reduction credits to advance the parole eligibility date of inmates convicted of certain crimes, including manslaughter in the first degree with a firearm, and (3) P.A. 15-216, which amended General Statutes (Rev. to 2015) § 18-98e to prohibit inmates who committed certain crimes, including first degree manslaughter with a firearm, from earning any further risk reduction credit. We disagree. As to the petitioner's claim regarding P.A. 13-247, even though it is unclear on what basis the court relied in concluding that it lacked subject matter jurisdiction and that the petition had failed to state a claim upon which habeas relief could be granted, our plenary review leads us to conclude that, as argued by the respondent in his principal brief, there is another basis for finding a lack of subject matter jurisdiction, namely, that the petitioner's claim is not ripe for adjudication. "The subject matter jurisdiction requirement may not be waived by any party, and also may be raised by a party, or by the court sua sponte, at any stage of the proceedings, including on appeal." (Internal quotation marks omitted.) Pentland v. Commissioner of Correction , supra, 176 Conn. App. at 785, 169 A.3d 851. "[A] trial court must be satisfied that the case before [it] does not present a hypothetical injury or a claim contingent [on] some event that has not and indeed may never transpire . [R]ipeness is a sine qua non of justiciability ." (Internal quotation marks omitted.) Perez v. Commissioner of Correction , supra, 326 Conn. at 387-88, 163 A.3d 597. In Perez , our Supreme Court stated that, even if the petitioner in that case had stated a statutory claim upon which habeas relief could be granted, his challenge to P.A. 13-247 would not be ripe for adjudication because it was impossible to determine whether the board would decline to conduct a hearing on the petitioner's parole eligibility date. Id. In the present case, the petitioner also has not yet been denied a hearing, and it is impossible to determine whether a hearing will take place in the future. Accordingly, the petitioner's claim related to P.A. 13-247 is not ripe for review. Turning to P.A. 13-3 and P.A. 15-216, in his appellate brief, the petitioner cites to Johnson v. Commissioner of Correction , 258 Conn. 804, 786 A.2d 1091 (2002), for the proposition that this court must hold that the public acts relevant to his claim are substantive in nature and, therefore, cannot be applied retroactively to him. In Johnson , our Supreme Court determined that the petitioner had made a cognizable ex post facto claim , which invoked the habeas court's subject matter jurisdiction. Id., at 818-19, 786 A.2d 1091. An ex post facto claim, however, is not dependent on the existence of a cognizable liberty interest. See Breton v. Commissioner of Correction , 330 Conn. 462, 471, 196 A.3d 789 (2018) ("[t]he presence or absence of an affirmative, enforceable right is not relevant . to the ex post facto prohibition, which forbids the imposition of punishment more severe than the punishment assigned by law when the act to be punished occurred" [internal quotation marks omitted] ); see also Baker v. Commissioner of Correction , 281 Conn. 241, 261, 914 A.2d 1034 (2007). In the present case, the petitioner has stated that his claim is not an ex post facto claim but, rather, a statutory interpretation claim. Accordingly, Johnson is materially distinguishable from the present case. Citing to Perez v. Commissioner of Correction , supra, 326 Conn. at 387-88, 163 A.3d 597, the petitioner asserts that his claim is not controlled by the question of whether he has alleged a cognizable liberty interest in receiving risk reduction credit. In essence, the petitioner asks for this court to reach the merits of his claim without him first alleging a cognizable liberty interest sufficient to establish a basis for the court's subject matter jurisdiction. Such a reading of Perez would run contrary to our jurisprudence, which has consistently held that "[i]n order to invoke the trial court's subject matter jurisdiction in a habeas action, a petitioner must allege that he is illegally confined or has been deprived of his liberty." (Internal quotation marks omitted.) Boria v. Commissioner of Correction , supra, 186 Conn. App. at 342, 199 A.3d 1127. Accordingly, the petitioner must assert a cognizable liberty interest sufficient to invoke the habeas court's subject matter jurisdiction. "Our appellate courts have concluded, consistently, that an inmate does not have a constitutionally protected liberty interest in certain benefits-such as good time credits, risk reduction credits, and early parole consideration-if the statutory scheme pursuant to which the [respondent] is authorized to award those benefits is discretionary in nature." Green v. Commissioner of Correction , 184 Conn. App. 76, 86-87, 194 A.3d 857, cert. denied, 330 Conn. 933, 195 A.3d 383 (2018) ; see Perez v. Commissioner of Correction , supra, 326 Conn. at 370-73, 163 A.3d 597 (no liberty interest in risk reduction credits or application of risk reduction credits to advance parole eligibility date); see also Rivera v. Commissioner of Correction , 186 Conn. App. 506, 514, 200 A.3d 701 (2018), cert. denied, 331 Conn. 901, 201 A.3d 402 (2019), and cases cited therein. Because the petitioner has failed to assert a cognizable liberty interest in his claims, we conclude that the court lacked subject matter jurisdiction over them. III Finally, the petitioner claims that the court improperly dismissed five counts in his petition for lack of subject matter jurisdiction and for the failure to state a claim upon which habeas relief can be granted because his claims established a cognizable liberty interest by alleging that the respondent, through his customary practices, has created a liberty interest. We are not persuaded. As previously mentioned, our Supreme Court has held that, "[i]n order to . qualify as a constitutionally protected liberty [interest] . the interest must be one that is assured either by statute, judicial decree, or regulation." (Internal quotation marks omitted.) Boria v. Commissioner of Correction , supra, 186 Conn. App. at 342, 199 A.3d 1127. There is no liberty interest in earning risk reduction credit or having it applied to further an inmate's parole eligibility date due to the discretionary nature of the respective statutory schemes. See part II of this opinion. Furthermore, there is no liberty interest in parole or the procedure by which parole is granted or denied. See Perez v. Commissioner of Correction , supra, 326 Conn. at 373, 163 A.3d 597 ("[w]here . an inmate has no vested liberty interest in parole itself, then it follows that the procedure by which the board exercises its discretion to award or deny the petitioner parole does not implicate a vested liberty interest"). Thus, it would be contrary to our case law to hold in the present case that the petitioner has a vested liberty interest in earning future risk reduction credits, in having those credits utilized to advance his parole eligibility date, and in having a mandatory parole suitability hearing, all of which are not assured either by statute, judicial decree, or regulation. The petitioner primarily relies on two federal cases to support the proposition that the respondent's customary practices created a cognizable liberty interest sufficient to confer subject matter jurisdiction over his petition. First, he cites to Vitek v. Jones , 445 U.S. 480, 487-88, 100 S. Ct. 1254, 63 L. Ed. 2d 552 (1980), in which the United States Supreme Court held that an inmate had a cognizable liberty interest in not being transferred to a mental health facility for treatment. Specifically, the court found that such a liberty interest was created from an expectation based on Nebraska statutes and the prison's practice that an inmate would not be transferred unless he suffered from a mental disease or defect that could not be treated at the prison. Id., at 489-90, 100 S. Ct. 1254. Importantly, the court also factored into its conclusion the stigma created by an involuntary confinement to a mental health institution, which it opined could negatively impact the inmate. Id., at 492, 100 S. Ct. 1254. Second, the petitioner cites to Arsberry v. Sielaff , 586 F.2d 37, 47 (7th Cir. 1978), in which the plaintiffs claimed that, on the basis of prison policy and customs, they were entitled to earn good time credit during their segregation from the general prison population. The court acknowledged that, absent a liberty interest protected by the United States constitution, it must look primarily to state law to determine if a liberty interest was created. Id., at 45-46. In addition to state statutes and prison administrative regulations, the court determined that a liberty interest may also be found in official policies or practices if a prisoner could show "some restriction upon the prison officials' discretion to remove the benefit sought." Id., at 46-48. In light of new evidence that four prison directives provided guidelines for denying good time credit in the event a prisoner was segregated from the general prison population, the court remanded the case to the trial court for an evidentiary hearing as to whether the directives created a state law entitlement. Id., at 47. A key distinction between the cases relied on by the petitioner and the present case is that, when looking to our state law, the legislature has barred the respondent from awarding further risk reduction credits to the petitioner or from applying the credits the petitioner has earned to advance his parole eligibility date. Indeed, the legislature has made it clear in its amendments to § 54-125a and 18-98e that the respondent is no longer authorized to utilize risk reduction credits to advance an inmate's parole eligibility date and that he may no longer issue risk reduction credits to inmates such as the petitioner. In other words, if we were to hold in this case that a liberty interest has been created in the earning of future risk reduction credit, the application of risk reduction credit to advance the petitioner's parole eligibility date, and in receiving a parole suitability hearing, we would usurp the power vested in the legislature, which broadly dictates to the respondent, a member of the executive branch, how to administer and apply risk reduction credit and conduct parole suitability hearings. "Because the ultimate power rests in the people and has been allocated to the separate branches of government, it is our duty to ensure that each branch, including the judiciary, does not usurp the power of its coequal branches. It is especially important that we take pains to restrain this branch , because a usurpation of legislative or executive power is, in effect, a usurpation of the people's power." (Emphasis in original.) State v. Peeler , 321 Conn. 375, 464, 140 A.3d 811 (2016) (Zarella , J. , dissenting). Therefore, we decline to interfere with the legislature's clear mandate. Accordingly, the court properly dismissed the petitioner's operative habeas petition for lack of subject matter jurisdiction and for the failure to state a claim upon which habeas corpus relief can be granted. The judgment is affirmed. In this opinion the other judges concurred. The court's memorandum of decision states that the offense occurred on or before August 29, 2009. This appears to be an error that does not affect the propriety of the court's judgment. Prior to dismissing the amended petition, the court notified the parties that they should be prepared to present arguments, at any time, addressing the court's subject matter jurisdiction. Practice Book § 23-29 provides in relevant part: "The judicial authority may, at any time, upon its own motion . dismiss the [habeas] petition, or any count thereof, if it determines that . (1) the court lacks jurisdiction . (2) the petition, or a count thereof, fails to state a claim upon which habeas corpus relief can be granted ." The court concluded in its memorandum of decision that "[b]ecause the petitioner has no right to earn and receive discretionary [risk reduction credit], and any changes, alterations and even the total elimination of [risk reduction credit] at most can only revert the petitioner to the precise measure of punishment in place at the time of the offense, the court concludes that it lacks subject matter jurisdiction over the habeas corpus petition and that the petition fails to state a claim for which habeas corpus relief can be granted." Specifically, the court certified the appeal on two grounds: "(1) Did the habeas court err in concluding that it lacked subject matter jurisdiction?; and (2) Did the habeas court err in concluding that the petition failed to state a claim upon which habeas corpus relief can be granted?" General Statutes (Rev. to 2013) § 54-125a (e), as amended by P.A. 13-247, § 376, provides in relevant part: "The Board of Pardons and Paroles may hold a hearing to determine the suitability for parole release of any person whose eligibility for parole release is subject to the provisions of subdivision (2) of subsection (b) of this section upon completion by such person of eighty-five per cent of such person's definite or aggregate sentence . If a hearing is not held, the board shall document the specific reasons for not holding a hearing and provide such reasons to such person ." (Emphasis added.) Section 18-98e was amended by No. 15-216 of the 2015 Public Acts, as subsequently addressed in this opinion. Section 18-98e was also amended in 2018. See footnote 9 of this opinion. General Statutes § 18-98e (a), as amended by P.A. 15-216, § 9, provides in relevant part: "Notwithstanding any provision of the general statutes, any person sentenced to a term of imprisonment for a crime committed on or after October 1, 1994, and committed to the custody of the Commissioner of Correction on or after said date, except a person sentenced for a violation of section . 53a-55a . may be eligible to earn risk reduction credit toward a reduction of such person's sentence, in an amount not to exceed five days per month, at the discretion of the Commissioner of Correction for conduct as provided in subsection (b) of this section occurring on or after April 1, 2006." (Emphasis added.) Additional amendments were made to § 18-98e pursuant to No. 18-155 of the 2018 Public Acts, but they are of no consequence to the matters raised in this appeal. We note that the petitioner, at points in his appellate brief, utilizes "representations" and "promise" interchangeably. We do not believe these words to be synonymous. Although either the prosecutor or the court may have in fact represented that the petitioner would be eligible to earn risk reduction credits, which would have been an accurate statement of the law at the time the petitioner pleaded guilty, such statements cannot reasonably be construed as a promise, which would imply that the prosecutor or the court had entered into a binding agreement with the petitioner. In his brief, the petitioner frames the issue as "whether [the habeas court] improperly dismissed counts twelve and sixteen of" his operative petition. In Santobello v. New York , supra, 404 U.S. at 258, 92 S.Ct. 495, the defendant had reached a plea agreement with the prosecutor in which the prosecutor would permit him to plead guilty to a lesser offense and would not make a recommendation as to the length of the sentence. At the defendant's sentencing, a different prosecutor who did not negotiate the plea agreement recommended the maximum sentence, which the court imposed, in violation of the agreement. Id., at 259-60, 92 S. Ct. 495. The United States Supreme Court held that, "the adjudicative element inherent in accepting a plea of guilty, must be attended by safeguards to [e]nsure the defendant what is reasonably due in the circumstances. Those circumstances will vary, but a constant factor is that when a plea rests in any significant degree on a promise or agreement of the prosecutor, so that it can be said to be part of the inducement or consideration, such promise must be fulfilled." Id., at 262, 92 S. Ct. 495. In the petitioner's appellate brief, he insinuates that we should look to the facts pleaded in his initial petition, which he believes sets forth the factual basis for his claim. We are mindful, however, that "[w]hen an amended pleading is filed, it operates as a waiver of the original pleading. The original pleading drops out of the case and although it remains in the file, it cannot serve as the basis for any future judgment ." (Internal quotation marks omitted.) Lund v. Milford Hospital, Inc. , 326 Conn. 846, 850, 168 A.3d 479 (2017). Thus, the petitioner's amended petition supersedes his initial petition and, accordingly, he cannot rely on the factual allegations made solely in his initial petition. See, e.g., Wesley v. DeFonce Contracting Corp. , 153 Conn. 400, 404, 216 A.2d 811 (1966) (amended complaint "entirely supersedes" original complaint). The petitioner framed the issue in his appellate brief as whether "the habeas court improperly dismissed counts two, six, and eighteen of the petitioner's amended petition for a writ of habeas corpus." Our Supreme Court first determined that the petitioner in that case had failed to state a claim upon which habeas relief could be granted. Perez v. Commissioner of Correction , supra, 326 Conn. at 387, 163 A.3d 597. The petitioner, citing Abbott Laboratories v. Gardner , 387 U.S. 136, 152-53, 87 S. Ct. 1507, 18 L. Ed. 2d 681 (1967), argues that, even if an injury has not yet been suffered, the case is ripe for review because the respondent's interpretation of P.A. 13-247 impacts his present actions while incarcerated. In Abbott Laboratories , the United States Supreme Court held that a challenge to a federal regulation before it was enforced was ripe for adjudication where a drug manufacturer either had to comply with the regulation or wait until it was a defendant in an enforcement action, where it would face serious civil and criminal penalties for failing to comply, before challenging the regulation. Id., 153. We do not find these considerations applicable in the present case. Even if we were to acquiesce to the petitioner's request to engage in a statutory analysis of the pertinent public acts to determine if they are substantive or procedural in nature and, thus, whether they should apply retroactively to the petitioner, he has not adequately briefed the issue. The petitioner simply distinguishes a substantive statute from a procedural statute and concludes that the relevant public acts are substantive statutes without providing any analysis of the language at issue in the statutes and without citing to any legislative history to evince the legislature's intent. See, e.g., Andersen Consulting, LLP v. Gavin , 255 Conn. 498, 517-18, 767 A.2d 692 (2001) (discussing test to determine whether statute applies retroactively or prospectively). "Claims are inadequately briefed when they are merely mentioned and not briefed beyond a bare assertion . Claims are also inadequately briefed when they . consist of conclusory assertions . with no mention of relevant authority and minimal or no citations from the record ." (Internal quotation marks omitted.) Estate of Rock v. University of Connecticut , 323 Conn. 26, 33, 144 A.3d 420 (2016). The petitioner claims in his appellate brief that "the habeas court improperly dismissed counts three, four, seven, nine, and seventeen of the petitioner's amended petition for a writ of habeas corpus."

12511349

Thomas G. STONE III v. EAST COAST SWAPPERS, LLC

Stone v. E. Coast Swappers, LLC

2019-07-02

AC 40855

499

507

213 A.3d 499

213

West's Atlantic Reporter, Third Series

Connecticut Appellate Court

Connecticut

2021-08-27T20:58:09.224733+00:00

Fastcase

Thomas G. STONE III v. EAST COAST SWAPPERS, LLC

Thomas G. STONE III v. EAST COAST SWAPPERS, LLC AC 40855 Appellate Court of Connecticut. Argued January 31, 2019 Officially released July 2, 2019 William J. O'Sullivan, with whom was Michelle M. Seery, Wethersfield, for the appellant (plaintiff). Juri E. Taalman, Hartford, with whom, on the brief, was Joseph R. Serrantino, Middletown, for the appellee (defendant). Alvord, Bright and Norcott, Js.

3863

24186

ALVORD, J. The plaintiff, Thomas G. Stone III, appeals from the judgment of the trial court, rendered after a trial to the court, finding that the defendant, East Coast Swappers, LLC, had violated the Connecticut Unfair Trade Practices Act (CUTPA), General Statutes § 42-110a et seq., and awarding the plaintiff compensatory damages, but declining to award punitive damages and attorney's fees. On appeal, the plaintiff claims that the court erred when it failed to award him attorney's fees. We affirm the judgment of the trial court. The following facts, as found by the trial court, and procedural history are relevant to our resolution of this appeal. Patrick Keithan, at the time, the plaintiff's son-in-law, purchased a 2008 Mitsubishi Lancer Evolution in February, 2010, from a dealership in Savannah, Georgia. Keithan was in the military service and stationed in Georgia. He financed the purchase of the car, in part, through a loan from Wachovia Dealer Services, Inc., in the amount of approximately $24,362.49. Shortly thereafter, the car's engine experienced performance issues, for reasons not disclosed at trial. Keithan towed the car from Georgia to Windsor Locks, Connecticut, where the defendant, a motor vehicle repair shop, was located. The defendant first replaced the car's turbocharger for $2000, which Keithan paid for by credit card. Following the replacement of the turbocharger, the engine still was found to be inoperable. Keithan returned to Georgia to fulfill his military service obligations and left the car with the defendant. Keithan ultimately decided that he wanted the defendant to install a Buschur Racing short block. Paul Scott, a co-owner of the defendant, drafted an estimate for this work, which he forwarded to Keithan. The estimate, dated August 17, 2010, referenced the purchase of the Buschur Racing short block and its installation, and estimated a cost of $9028.89. The plaintiff loaned Keithan $9000 to pay the defendant. The plaintiff's wife prepared a promissory note for the loan, which contemplated the title and car being held by the plaintiff while the note remained unpaid. The note, dated September 14, 2010, was executed by Keithan and his wife, the plaintiff's daughter. Keithan's wife then forwarded a check to the defendant in the amount of $9028.89. On October 11, 2010, the defendant shipped the car's engine to Buschur Racing, which performed the requested work on the engine and returned the modified engine to the defendant. The modified engine, however, was never installed in the car. As Scott started to prepare the modified engine for installation, his foreman came to him with an additional parts request to discuss with Keithan. These were components that the foreman had learned were damaged as he took the original engine apart to prepare it for transmittal to Buschur Racing. When this request was communicated to Keithan, he did not want to pay the extra money. The car continued to remain in the defendant's possession. Keithan never repaid the plaintiff any portion of the loan. The plaintiff first attempted to obtain title to the car to identify him as a second position lienholder by filing a title application with the Motor Vehicle Division of the Georgia Department of Revenue. In February and April, 2011, the plaintiff traveled from Maryland, where he resided, to the defendant's location in Connecticut. Scott refused to allow the plaintiff to look at the car or the modified engine. On September 1, 2011, Victoria L. Abalan, a co-owner of the defendant, sent a letter to Keithan, in which she indicated that she had been contacted by the plaintiff and had received a copy of the plaintiff's title application. The letter from Abalan to Keithan referenced the sum of $14,151.71 being owed to the defendant, which represented the costs of additional shipping, engine parts, and storage over the previous year. The plaintiff filed an action against Keithan in Maryland and obtained a judgment in the amount of $10,348. This judgment permitted him to eventually secure a lien on the car subsequent in right to that of Wells Fargo Auto Finance (Wells Fargo). See footnote 1 of this opinion. The lien was reflected in a certificate of title, dated June 29, 2012, which was issued by the Georgia Department of Revenue. On July 13, 2012, the defendant filed a "Notice of Intent to Sell" or an "Artificer's Lien" with the Connecticut Department of Motor Vehicles, which claimed a lien of $1792. In December, 2012, the Connecticut Department of Motor Vehicles issued to the defendant a form H-76, an "Affidavit of Compliance and Ownership Transfer," for use in providing valid title to a purchaser for a vehicle subject to an artificer's lien. In December, 2012, extensive communications took place between the plaintiff, the plaintiff's wife, and the defendant's owners, regarding the plaintiff obtaining the car in satisfaction of his lien. During these communications, the plaintiff informed the defendant that he had secured status as a second position lienholder on the Georgia title. The plaintiff, however, had not provided the defendant with a copy of the new Georgia title. Keithan filed for bankruptcy in Maryland and secured the discharge of the plaintiff's judgment. The security interest of Wells Fargo was identified as $10,700 at the time of the bankruptcy petition. The bankruptcy petition, which was obtained by the defendant's counsel, identified the plaintiff as an unsecured creditor. By June, 2013, both parties had retained counsel who exchanged communications regarding their clients' respective claims related to the vehicle. In September, 2013, the plaintiff commenced the underlying action against the defendant, setting forth a claim of unjust enrichment and alleging that the defendant had violated CUTPA. On November 9, 2013, Scott, on the advice of his counsel, sold the car at an auction for $19,000. Although he had provided notice to Keithan and Wells Fargo, and published notice in a local newspaper, Scott did not provide notice of the auction to the plaintiff. In December, 2016, the plaintiff filed the operative single count complaint alleging that the defendant had violated CUTPA by refusing to perform the work that had been paid for, i.e., by failing to install the modified engine in the car and by failing to provide the plaintiff, a lienholder, with statutory notice of the auction. A trial to the court took place on January 24, 25 and 26, 2017. In its memorandum of decision, the court concluded that "[the plaintiff] has proven a violation of CUTPA, has not proven the evil motive or malice necessary to award punitive damages and exercises its discretion by finding that the plaintiff is not entitled to an award of attorney's fees. Damages are awarded in the amount of $8300." In declining to award punitive damages and attorney's fees, the court reasoned: "The court finds as a matter of fact that the plaintiff has not proven that [the defendant's] actions constituted a reckless indifference to the rights of [the plaintiff], an intentional and wanton violation of his rights, malice or evil. [The defendant] had been given an application for a title listing [the plaintiff] as a second position lienholder but had never been provided with the actual title. [The defendant] did make the effort to review Keithan's bankruptcy filing, which listed [the plaintiff] as an unsecured creditor. [The defendant] did consult with counsel before selling the vehicle at auction. The court cannot find, therefore, that [the defendant's] actions warrant punitive damages. For similar reasons, the court exercises its discretion and does not award [attorney's] fees to the plaintiff." This appeal followed. On January 25, 2018, after filing the present appeal, the plaintiff filed a motion for articulation in which he requested that the trial court articulate the factual and legal basis for its decision declining to award attorney's fees. Specifically, the plaintiff requested that the court clarify its use of the phrase "for similar reasons" in its memorandum of decision. The court issued an articulation on February 15, 2018, in which it stated: "The use of the phrase 'similar reasons' was meant to signify that the court relied on the same reasons enumerated in the preceding sentences, to wit, '[the defendant] had been given an application for a title listing [the plaintiff] as a second position lienholder but had never been provided with the actual title. [The defendant] did make the effort to review Keithan's bankruptcy filing, which listed [the plaintiff] as an unsecured creditor. [The defendant] did consult with counsel before selling the vehicle at auction.' " (Emphasis in original.) We begin by setting forth the standard of review and legal principles that guide our analysis of the plaintiff's claim. General Statutes § 42-110g(d) provides in relevant part: "In any action brought by a person under this section, the court may award, to the plaintiff, in addition to the relief provided in this section, costs and reasonable [attorney's] fees based on the work reasonably performed by an attorney and not on the amount of recovery...." (Emphasis added.) "Awarding . attorney's fees under CUTPA is discretionary; General Statutes § 42-110g(a) and (d) . and the exercise of such discretion will not ordinarily be interfered with on appeal unless the abuse is manifest or injustice appears to have been done.... The salient inquiry is whether the court could have reasonably concluded as it did.... [T]he term abuse of discretion does not imply a bad motive or wrong purpose but merely means that the ruling appears to have been made on untenable grounds." (Internal quotation marks omitted.) MedValUSA Health Programs, Inc. v. MemberWorks, Inc. , 109 Conn. App. 308, 315, 951 A.2d 26 (2008). The plaintiff first argues that this court should recognize a rebuttable presumption in the context of attorney's fees for CUTPA violations, whereby the prevailing plaintiff "should ordinarily recover attorney's fees unless special circumstances would render such an award unjust." We decline to recognize such a presumption. The plaintiff, citing Gill v. Petrazzuoli Bros., Inc. , 10 Conn. App. 22, 32, 521 A.2d 212 (1987), argues that this court should recognize such a presumption because "the legislative history [of CUTPA] reflects the force of the legislature's opinion that plaintiff's fees are 'extremely necessary' to make CUTPA an effective mechanism to accomplish its policy to encourage plaintiffs to pursue private-attorney-general actions," and the United States Supreme Court has interpreted a "private-attorney-general discretionary fee-shifting provision" in the context of Title VII cases as creating a rebuttable presumption that attorney's fees should be awarded to the prevailing party. See Newman v. Piggie Park Enterprises, Inc. , 390 U.S. 400, 402, 88 S. Ct. 964, 19 L.Ed. 2d 1263 (1968). The plaintiff also notes that our Supreme Court has applied this presumption in the context of a claim under 42 U.S.C. § 1983. See New England Estates, LLC v. Branford , 294 Conn. 817, 857, 988 A.2d 229 (2010). Consequently, he argues: "The rationale supporting the presumption that the prevailing plaintiff should ordinarily be awarded an attorney's fee [in Title VII cases] applies with equal force to fee awards under CUTPA, given that CUTPA's purpose to encourage private-attorney-general actions is like that of Title VII and similar federal statutes. The rationale is particularly true to Connecticut's legislative understanding and intent that plaintiff's fees are 'extremely necessary,' as a tool for overcoming hesitancy to pursue CUTPA litigation." We are not persuaded. Title VII protects civil rights, which hold an especially valued status in our law. See Newman v. Piggie Park Enterprises, Inc. , supra, 390 U.S. at 402, 88 S.Ct. 964 (stating that plaintiff who brings civil rights action is "vindicating a policy that Congress considered of the highest priority"). The plaintiff has identified no authority that suggests that any court has ever put protection from unfair trade practices on the same plane. Furthermore, the presumption in favor of an award of prevailing party attorney's fees in Title VII cases has existed since 1968, yet our legislature did not include such a presumption when it first provided for the remedy of attorney's fees in 1973, nor has it amended the statute to incorporate the Title VII presumption over the last forty-five years. Finally, courts review a failure to award attorney's fees to a prevailing party in a Title VII case under a plenary standard. See New England Estates , LLC v. Branford , supra, 294 Conn. at 857, 988 A.2d 229. By contrast, our jurisprudence is clear that the decision to award attorney's fees to a prevailing CUTPA plaintiff is reviewed under an abuse of discretion standard. See MedValUSA Health Programs, Inc. v. MemberWorks, Inc. , supra, 109 Conn. App. at 315, 951 A.2d 26. The plaintiff also contends that recognizing such a presumption is appropriate because "Connecticut courts . have imposed judicial guidance on the exercise of discretion in determining the amount of fee awards under CUTPA ." (Emphasis in original.) Specifically, the plaintiff points to this court's decision in Steiger v. J. S. Builders, Inc. , 39 Conn. App. 32, 663 A.2d 432 (1995), which applied a twelve factor test, that had been developed by federal courts for use in Title VII cases, for calculating attorney's fees under CUTPA. The court's initial decision of whether to award attorney's fees, however, is distinct from its subsequent calculation of the award of attorney's fees. We are, therefore, not persuaded. In Staehle v. Michael's Garage, Inc. , 35 Conn. App. 455, 461, 646 A.2d 888 (1994), also a CUTPA action, this court concluded that "[ § 42-110g(d) ] contains no standard by which a court is to award attorney's fees, thus leaving it to the sole discretion of the trial court to determine if attorney's fees should be awarded and the amount of such an award." (Emphasis added.) As this court noted in Staehle , the use of the word "may" in § 42-110g(d) "indicates that the statute does not provide a mandatory award of fees to the plaintiff; rather, the court has the discretion to award attorney's fees. The language of the statute is clear and unambiguous; the awarding of attorney's fees is within the discretion of the trial court." Id., at 459, 646 A.2d 888. The rebuttable presumption that the plaintiff contends that we should recognize, whereby a plaintiff "should ordinarily recover attorney's fees unless special circumstances would render such an award unjust," is in conflict with this court's holding in Staehle and contrary to the plain language of the statute. With the operation of such a presumption, the trial court would lose its statutory discretion in determining whether to award attorney's fees. We are bound by this court's decision in Staehle and the plain language of the statute. To the extent that the plaintiff's claims raise legitimate policy concerns that warrant a different outcome, it is the role of the legislature, not this court, to address those policy considerations. See Bennett v. New Milford Hospital, Inc., 117 Conn. App. 535, 549, 979 A.2d 1066 (2009), aff'd, 300 Conn. 1, 12 A.3d 865 (2011). The plaintiff next argues that, even if this court does not recognize a presumption in the award of attorney's fees under CUTPA, the trial court's failure to assess attorney's fees in this case constituted an abuse of discretion. Specifically, the plaintiff argues that the court erred by conflating the analyses for awarding attorney's fees and punitive damages, thereby improperly requiring the plaintiff to show, in order to be entitled to attorney's fees, that the defendant acted with malice, reckless disregard, or evil intent. We disagree. In its articulation, the trial court listed the following factual findings to support its decision not to award attorney's fees: "[The defendant] had been given an application for a title listing [the plaintiff] as a second position lienholder but [the defendant] had never been provided with the actual title. [The defendant] did make the effort to review Keithan's bankruptcy filing which listed [the plaintiff] as an unsecured creditor. [The defendant] did consult with counsel before selling the vehicle at auction." Although the court relied on the same factual findings in its decision not to award punitive damages, nothing in the court's memorandum of decision or articulation suggests that the court improperly required the plaintiff to show, in order to be entitled to recover attorney's fees, that the defendant acted with malice, reckless disregard, or evil intent. We, therefore, cannot conclude that "abuse [of discretion] is manifest or [that] injustice appears to have been done." See MedValUSA Health Programs, Inc. v. MemberWorks, Inc. , supra, 109 Conn. App. at 315, 951 A.2d 26 ; Thames River Recycling, Inc. v. Gallo , 50 Conn. App. 767, 800, 720 A.2d 242 (1998). Accordingly, we conclude that the trial court did not abuse its discretion in declining to award attorney's fees to the plaintiff. The judgment is affirmed. In this opinion the other judges concurred. It is undisputed that Wells Fargo Auto Finance succeeded in interest to Wachovia Dealer Services, Inc., and that it subsequently acquired the debt. A short block is a component of an engine upon which other components are assembled. Prior to the plaintiff's request for a Buschur Racing short block, the defendant had provided an estimate for an original equipment manufacturer short block. This estimate contained a waiver of advanced estimate. At trial, the defendant argued that the original equipment manufacturer estimate, containing the waiver and Keithan's signature, constituted authorization to undertake any repair without regard for the statutory requirements. The trial court was not persuaded. See footnote 11 of this opinion. At trial, Scott testified that, although the $9028.89 estimate stated that it included installation, he intended the word "installation" on the estimate to include the removal of the car's original engine and not the subsequent installation of the modified engine. The record is unclear as to when the additional parts request was communicated to Keithan. This was unsuccessful because the title application required the signature of Keithan, which was missing. The plaintiff did, however, subsequently obtain a judgment lien on the car, securing his position as a second position lienholder. There was no evidence that the defendant actually purchased or installed the additional parts referenced in the letter. A motor vehicle repair shop may apply to obtain an artificer's lien if it claims a lien on a motor vehicle in its custody upon which it has completed authorized work that is properly recorded on an invoice and if there is no application pending to dissolve the lien within thirty days after completion of the work. See Form H-100A, Connecticut Department of Motor Vehicles, available at https://www.ct.gov/dmv/lib/dmv/20/29/h-100a.pdf (last visited June 26, 2019). In March, 2014, the defendant moved to strike both counts of the plaintiff's complaint. In September, 2014, the trial court granted the defendant's motion with respect to the plaintiff's unjust enrichment claim. Specifically, the plaintiff alleged that the defendant had violated General Statutes § 14-65f(a) when it "obtained payment from Keithan, using [the plaintiff's] funds, through the artifice of falsely promising to install a new [e]ngine in the [v]ehicle, and sought to perpetuate this ruse in its communications with [the plaintiff's] agent, by deliberately attempting to pass off a used engine as new." The plaintiff's second amended complaint is the operative complaint in this matter. The court found that the defendant violated General Statutes § 14-65f and 49-61. Section 14-65f provides in relevant part: "Prior to performing any repair work on a motor vehicle, a motor vehicle repair shop shall obtain a written authorization to perform the work . that includes an estimate in writing of the maximum cost to the customer of the parts and labor necessary for the specific job authorized.... If the repair shop is unable to estimate the cost of repair because the specific repairs to be performed are not known at the time the vehicle is delivered to the repair shop, the written authorization required by this section need not include an estimate of the maximum cost of parts and labor. In such a case, prior to commencing any repairs, the repair shop shall notify the customer of the work to be performed and the estimated maximum cost to the customer of the necessary parts and labor, obtain the customer's written or oral authorization and record such information on the invoice...." The court found that, although an oral authorization was provided by Keithan with respect to the defendant's estimate for the Buschur Racing short block, the estimate's explicit inclusion of a fixed cost for the "installation" of the modified engine was a misrepresentation on the part of the defendant. In addition, § 49-61 provides in relevant part: "Within ten days of receipt of such information relative to any lienholder, the bailee shall mail written notice to each lienholder by certified mail, return receipt requested, stating that the motor vehicle is being held by such bailee and has a lien upon it for repair and storage charges.... [I]f the last usual place of abode of the bailor is known to or may reasonably be ascertained by the bailee, notice of the time and place of sale shall be given by mailing the notice to him by certified mail, return receipt requested, at least ten days before the time of the sale, and similar notice shall be given to any officer who has placed an attachment on the property and, if the property is a motor vehicle . any lienholder ." (Emphasis added.) The court found that the defendant violated § 49-61 by failing to provide written notice of the auction to the plaintiff. The court concluded that the foregoing conduct, which destroyed the plaintiff's lien, violated CUTPA. Although, in its brief to this court, the defendant challenges the trial court's determination as to its liability under CUTPA, the defendant did not file a cross appeal. Therefore, this appeal relates solely to the issue of whether the court erred by failing to award attorney's fees to the plaintiff. In his motion, the plaintiff stated that "[t]he foregoing language suggests, though imprecisely, that the court relied upon the same facts for its decision to decline [attorney's] fees as for its conclusion that the defendant's actions did not warrant [punitive damages].... [I]t is necessary that the trial court clarify . whether its decision flowed from the same factual findings that underlie its decision regarding [punitive damages] or whether the court relied on other, similar but as yet unidentified, reasons." Moreover, we note that the legislature has not amended the language of § 42-110g(d) subsequent to this court's decision in Staehle to indicate that it intends attorney's fees to be awarded in a manner other than in accordance with the trial court's discretion. "In order to award punitive or exemplary damages [under CUTPA], evidence must reveal a reckless indifference to the rights of others or an intentional and wanton violation of those rights.... In fact, the flavor of the basic requirement to justify an award of punitive damages is described in terms of wanton and malicious injury, evil motive and violence." (Internal quotation marks omitted.) Ulbrich v. Groth , 310 Conn. 375, 446, 78 A.3d 76 (2013).

12503759

Glenn JELLIFFE v. KENNEDY CENTER, INC., et al.

Jelliffe v. Kennedy Ctr., Inc.

2018-12-25

AC 40621

490

490

197 A.3d 490

197

West's Atlantic Reporter, Third Series

Connecticut Appellate Court

Connecticut

2021-08-27T20:57:41.731571+00:00

Fastcase

Glenn JELLIFFE v. KENNEDY CENTER, INC., et al.

Glenn JELLIFFE v. KENNEDY CENTER, INC., et al. AC 40621 Appellate Court of Connecticut. Argued December 5, 2018 Officially released December 25, 2018

34

221

Per Curiam. The decision of the Compensation Review Board is affirmed.

12503758

STATE of Connecticut v. CALVIN N.

State v. Calvin N.

2018-12-25

AC 40414

490

490

197 A.3d 490

197

West's Atlantic Reporter, Third Series

Connecticut Appellate Court

Connecticut

2021-08-27T20:57:41.731571+00:00

Fastcase

STATE of Connecticut v. CALVIN N.

STATE of Connecticut v. CALVIN N. AC 40414 Appellate Court of Connecticut. Argued December 5, 2018 Officially released December 25, 2018

27

175

Per Curiam. The judgment is affirmed.

12503757

Frank CABRAL et al. v. Susan L. TREMAINE

Cabral v. Tremaine

2018-12-06

AC 41122

490

490

197 A.3d 490

197

West's Atlantic Reporter, Third Series

Connecticut Appellate Court

Connecticut

2021-08-27T20:57:41.731571+00:00

Fastcase

Frank CABRAL et al. v. Susan L. TREMAINE

Frank CABRAL et al. v. Susan L. TREMAINE AC 41122 Appellate Court of Connecticut. Submitted on briefs December 6, 2018 Officially released December 25, 2018

31

195

Per Curiam. The judgment is affirmed.

12503756

Robert TROCKI v. Stanley BORUSIEWICZ et al.

Trocki v. Borusiewicz

2018-12-25

AC 40892

489

489

197 A.3d 489

197

West's Atlantic Reporter, Third Series

Connecticut Appellate Court

Connecticut

2021-08-27T20:57:41.731571+00:00

Fastcase

Robert TROCKI v. Stanley BORUSIEWICZ et al.

Robert TROCKI v. Stanley BORUSIEWICZ et al. AC 40892 Appellate Court of Connecticut. Argued December 4, 2018 Officially released December 25, 2018

28

185

Per Curiam. The judgment is affirmed.

12503755

John M. MILLER et al. v. Thomas A. LYMAN

Miller v. Lyman

2018-12-25

AC 39700

489

489

197 A.3d 489

197

West's Atlantic Reporter, Third Series

Connecticut Appellate Court

Connecticut

2021-08-27T20:57:41.731571+00:00

Fastcase

John M. MILLER et al. v. Thomas A. LYMAN

John M. MILLER et al. v. Thomas A. LYMAN AC 39700 Appellate Court of Connecticut. Argued November 29, 2018 Officially released December 25, 2018

35

213

Per Curiam. The judgment is affirmed. Lavine, Sheldon and Elgo, Js.

12503754

Virginia FINGELLY v. TOWN OF FAIRFIELD et al.

Fingelly v. Town of Fairfield

2018-12-25

AC 40569

489

489

197 A.3d 489

197

West's Atlantic Reporter, Third Series

Connecticut Appellate Court

Connecticut

2021-08-27T20:57:41.731571+00:00

Fastcase

Virginia FINGELLY v. TOWN OF FAIRFIELD et al.

Virginia FINGELLY v. TOWN OF FAIRFIELD et al. AC 40569 Appellate Court of Connecticut. Argued December 3, 2018 Officially released December 25, 2018

29

187

Per Curiam. The judgment is affirmed.

12503753

Andrea ROBLES et al. v. WEST AVENUE DENTAL, P.C., et al.

Robles v. W. Ave. Dental, P.C.

2018-10-09

AC 39747

484

488

197 A.3d 484

197

West's Atlantic Reporter, Third Series

Connecticut Appellate Court

Connecticut

2021-08-27T20:57:41.731571+00:00

Fastcase

Andrea ROBLES et al. v. WEST AVENUE DENTAL, P.C., et al.

Andrea ROBLES et al. v. WEST AVENUE DENTAL, P.C., et al. AC 39747 Appellate Court of Connecticut. Argued May 30, 2018 Officially released October 9, 2018 Kristan Peters-Hamlin, for the appellants (named defendant et al.). Daniel D. Dauplaise, with whom, on the brief, was Victoria deToledo, Stamford, for the appellee (named plaintiff). Sheldon, Prescott and Bear, Js.

2275

14009

PER CURIAM. The defendants West Avenue Dental, P.C., and Hrishikesh Gogate appeal from the judgment of the trial court, rendered after a jury trial, awarding damages to the plaintiff Andrea Robles, their former employee, for injuries she suffered due to the defendants' negligent supervision of one of her male coworkers, who sexually harassed her at work over an extended period of time. The defendants challenge the judgment on the ground that the verdict on which it was rendered was returned after the court erroneously determined that it could not accept the jury's original plaintiff's verdict awarding Robles $0 in damages because that verdict was inherently inconsistent, and, thus, improperly required the jury to conduct further deliberations to resolve the alleged inconsistency instead of accepting the original verdict and rendering judgment on it. The defendants claim on appeal that the court erred in concluding that the jury's original verdict was inherently inconsistent, and, thus, in refusing to accept and render judgment on that verdict. They argue that an award of $0 in damages was reasonable in this case because the damages claimed by Robles were largely speculative and unproved, and any damages she did prove could have been reduced by the jury under the court's instructions on their special defense of failure to mitigate damages. Finally, the defendants, claiming that the court erred in instructing the jury that it must award Robles at least some damages if it found the defendants liable for negligent supervision, ask this court to restore the original plaintiff's verdict awarding Robles $0 in damages. Robles, in opposition to the defendants' claim, argues principally that the defendants are not entitled to prevail on that claim because they failed to assert it at trial, and, thus, they failed to preserve it for appellate review. In light of the following facts and procedural history, we agree with Robles that the defendants' present claim was not preserved at trial and, thus, that it cannot be reviewed on appeal. Robles and one of her former female coworkers filed a twenty-two count complaint against the defendants arising, inter alia, from the defendants' alleged failure to supervise one of their male coworkers who repeatedly sexually harassed them while they were in the defendants' employ. Eleven counts of the complaint were brought on behalf of Robles. After a lengthy trial, the jury found in favor of the defendants on ten of Robles' eleven counts against them. This appeal concerns only her seventh count, in which she pleaded the claim of negligent supervision on which she prevailed at trial. In that count, Robles alleged, inter alia, that the defendants failed to properly supervise one of her male coworkers whom they had a duty to supervise, and thereby allowed him to engage in sexually inappropriate conduct toward her, that the defendants were aware or should have been aware of her coworker's sexually inappropriate conduct toward her but failed take action to stop it, and, that as a result of the defendants' failure to take action to stop her coworker's sexually harassing conduct toward her, she suffered financial losses and emotional distress. The jury was instructed on that count, in relevant part, as follows: "A claim for negligent supervision . establishes direct liability for an employer who fails to exercise reasonable care in supervising . an employee. In order to prevail on a negligent supervision claim, [the] [plaintiff] must . prove that [she] suffered an injury due to the defendant[s'] failure to supervise an employee whom the defendant[s] had [a] duty to supervise.... "[W]ith respect to the [claim] of negligent supervision . proof of an actual injury is a necessary part of the claim. The [plaintiff] [is] not entitled to recover under negligence-based claims if [she does] not also prove an actual injury-something more than a technical or nominal injury...." (Internal quotation marks omitted.) The jury was provided a copy of the jury charge and a set of interrogatories, a worksheet and verdict forms to complete during its deliberations. The jury initially filled out the interrogatories regarding Robles' negligent supervision claim as follows: "Did [Robles] prove, by a preponderance of the evidence that the defendants were negligent in their supervision of [her male coworker]? Yes.... "Did the defendants prove that [Robles] . was negligent, as alleged by the defendants? Yes.... "The parties proved that the respective negligence of the parties is as follows (must add up to 100 [percent] ): Negligence of defendants: 50 [percent]; negligence of [Robles]: 50 [percent].... "Did [Robles] . prove that she was injured or damaged as a result of such negligent supervision? No." When the jury returned to the courtroom after sending out a note informing the court that it had reached a verdict, the court announced that it would first review the verdict form and interrogatories by itself "to make sure there are no problems," and then, if it found that those documents were in order, it would begin the formal procedure of taking the verdict. Neither Robles nor the defendants objected to the court's announced decision to review the verdict form and interrogatories by itself to determine if they were in order before taking the verdict, or asked the court if they could view the verdict form and interrogatories before the court made its determination and took whatever action it deemed necessary before taking the verdict. After completing its review, the court announced that it had found certain inconsistencies in the verdict form and interrogatories that it would require the jury to resolve before a verdict could be taken. To that end, without hearing from the parties, it instructed the jury as follows: "On interrogatory number seven, you indicate that you found there to be certain percentages of liability, but then you indicate that there was-you answered no to the issue of damages, but then you put on a plaintiff's verdict form zero. "The rule in Connecticut is for a negligence claim, there needs to be an actual injury in order to find for the plaintiff. "So if you are not finding any damages sustained by the plaintiff, then I think [the verdict] should be for the defendant[s] on that claim. "If you are feeling that there should be some kind of damages award[ed], that's something you can obviously reconsider, but the point is there is an inconsistency between saying you are finding for the plaintiff on a negligence claim, but finding zero damages. "It either needs to be some damages or a determination for the defendant[s] on that claim, which in turn would implicate potentially the verdict form that you used." The court also noted an inconsistency in the jury's worksheet answers, and instructed the jury to review the worksheet as well. Neither Robles nor the defendants objected to the court's finding of inconsistencies in the original verdict or excepted to its instructions as to how the jury should resolve those inconsistencies and clarify its verdict. Before the court excused the jury to return to the jury room, counsel for the defendants asked to address the court concerning the instruction it had just given, suggesting that she could do so at the bench. The court granted her request without objection by Robles' counsel, then held a sidebar discussion with counsel. Immediately after the sidebar, the court turned to the jury and further instructed it that, "the issue [on the interrogatory addressing the claim of negligent supervision was] . unless [the jury found] damages as part of the package, [it could not] find for the plaintiff. It's either [the] plaintiff has proven damages as part of the claim in which case it's [the] plaintiff's award on that count, or if the plaintiff hasn't proven damages [the verdict is] required to be for the defendant[s]." Neither party excepted to the court's post-sidebar instruction or sought further relief from the court after that instruction was given. After the court excused the jury to resume its deliberations, counsel for the defendants explained for the record the substance of the concern that she had expressed to the court at sidebar, which was that the jury should be reminded that Robles was required to prove that she had suffered actual harm in order to establish her claim of negligent supervision. Counsel did not state that she had objected to the court's determination that there were inherent inconsistencies in the jury's original verdict, or its decision to require the jury to deliberate further to resolve those inconsistencies instead of accepting that verdict and rendering judgment on it. In the jury's final verdict, which the court accepted and recorded without objection by either party, it found that Robles had proved that she was actually injured or damaged as a result of the defendants' negligent supervision of her sexually abusive male coworker. Accordingly, on the basis of its further finding that she had suffered total damages of $11,900 as a result of such negligent supervision, it awarded her damages of $5950 after reducing her total damages by 50 percent on the basis of comparative negligence. In this appeal, the defendants initially set forth three claims of error in their preliminary statement of issues: (1) that the court erred in instructing the jury that it must correct its original verdict of zero damages because it had found liability for negligent supervision and must instead award damages to Robles, despite the highly speculative nature of her claim, based on the court's misunderstanding of the law of inconsistent verdicts; (2) that the court erred by so instructing the jury without first consulting with counsel and then by refusing to allow the defendants to make a record of their objection to the instruction before dismissing the jury; and (3) the court erred by telling the jury that it must award damages if it found liability by failing to instruct the jury that it was permitted to award nominal damages. In their brief, however, the defendants presented argument and analysis as to only the first of those claims, which they rearticulated as follows: "Robles' claim of injury was entirely speculative, and unsupported by expert testimony; therefore, the jury's award of zero damages was not ambiguous, and the court erred in requiring the jury to find some damages in order to support its finding of liability." As relief for the court's alleged error, the defendants ask this court to "restore the jury's original verdict of $0 damages to Robles, and hold that Robles should be awarded nothing." So presented, the only claim of error that the defendants have not abandoned by failing to brief it is that the court misconstrued the jury's original verdict as ambiguous and, thus, erred in returning the jury for further deliberations with instructions that it could not return a plaintiff's verdict without awarding Robles damages instead of accepting and rendering judgment for Robles on that original verdict. Robles responds to the foregoing claim by arguing principally that the defendants have no right to seek appellate review of that claim because they failed to make that claim at trial. We agree with Robles that the defendants failed to preserve the only claim they have briefed on appeal and, thus, that they have no right to seek appellate review of that claim. Appellate review of claims of error regarding jury instructions and inconsistent verdicts is limited in scope to objections raised by counsel at trial. See C. Tait & E. Prescott, Tait's Handbook of Connecticut Evidence (5th Ed. 2014) § 1.30.1, pp. 95-96. In order to preserve their claims of error, the defendants must have objected when the jury instruction was given; see, e.g., State v. Gebhardt , 83 Conn. App. 772, 780, 851 A.2d 391 (2004) (appellate review of evidentiary rulings is limited to specific legal issue raised by objection of trial counsel); or filed a suitable request to charge. See Ulbrich v. Groth , 310 Conn. 375, 424, 78 A.3d 76 (2013) ("[i]t is well settled . that a party may preserve for appeal a claim that an instruction . was . defective either by: (1) submitting a written request to charge covering the matter; or (2) taking exception to the charge as given" [internal quotation marks omitted] ). In light of the defendants' complete failure to object to the court's determination that the jury's initial verdict was inconsistent or to its resulting decision to return the jury for further deliberations to clarify its verdict instead of accepting that verdict as it was returned, the defendants have no right to seek appellate review of alleged errors in such judicial rulings and actions at this time. The judgment is affirmed. Tunxis Hill Dental, P.C., was also named as a defendant but is not a party to this appeal. In this opinion we refer to West Avenue Dental, P.C., and Gogate as the defendants. The complaint was initially filed by two plaintiffs, Robles and a former female coworker. After the trial, the female coworker settled with the defendants, and this appeal pertains only to Robles. The jury found that Robles had suffered $0 in economic damages and $11,900 in noneconomic damages as a result of the defendants' negligent supervision. See, e.g., Harris v. Bradley Memorial Hospital & Health Center, Inc. , 306 Conn. 304, 319, 50 A.3d 841 (2012) ("[a]n appellant who fails to brief a claim abandons it" [emphasis omitted; internal quotation marks omitted] ), cert. denied, 569 U.S. 918, 133 S.Ct. 1809, 185 L.Ed.2d 812 (2013).

12503752

STATE of Connecticut v. Kezlyn MENDEZ

State v. Mendez

2018-10-16

AC 41116

477

484

197 A.3d 477

197

West's Atlantic Reporter, Third Series

Connecticut Appellate Court

Connecticut

2021-08-27T20:57:41.731571+00:00

Fastcase

STATE of Connecticut v. Kezlyn MENDEZ

STATE of Connecticut v. Kezlyn MENDEZ AC 41116 Appellate Court of Connecticut. Argued May 29, 2018 Officially released October 16, 2018 Kezlyn Mendez, self-represented, the appellant (defendant). James A. Killen, senior assistant state's attorney, with whom, on the brief, were Gail P. Hardy, state's attorney, and Robin D. Krawczyk, senior assistant state's attorney, for the appellee (state). Alvord, Prescott and Pellegrino, Js.

3732

22578

ALVORD, J. In this direct criminal appeal, the self-represented defendant, Kezlyn Mendez, claims that the trial court violated his right to due process by improperly granting his court-appointed appellate counsel's motion for leave to withdraw her appearance in accordance with Practice Book § 62-9 (d). We affirm the judgment of the trial court. Practice Book § 62-9 (d) (1) directs any appointed appellate counsel who concludes, in accordance with Practice Book § 43-34, that an appeal would be wholly frivolous to file under seal with the appellate clerk a motion for leave to withdraw his or her appearance along with a memorandum of law, commonly referred to as an Anders brief, in accordance with Practice Book § 43-35. "Counsel shall deliver a notice that a motion for leave to withdraw as appointed counsel has been filed, but shall not deliver a copy of the motion and supporting . memorandum of law to opposing counsel of record." Practice Book § 62-9 (d) (2). The motion, memorandum, and the transcripts of the relevant proceedings are then referred by the appellate clerk to the trial court for a decision. Practice Book § 62-9 (d) (3). If the trial court grants appointed appellate counsel's motion to withdraw, a copy of the court's decision is filed, under seal, with the appellate clerk, and counsel must notify his or her former client in writing of the trial court's decision, the current status of the appeal, and the defendant's responsibilities necessary to prosecute the appeal. Practice Book § 62-9 (d) (3). Section 62-9 (d) (3) further expressly provides that the trial court's decision "may be reviewed pursuant to [Practice Book §] 66-6." A motion for review pursuant to Practice Book § 66-6 is the proper vehicle by which to obtain review of an order concerning the withdrawal of appointed appellate counsel after an appeal has been filed. See Practice Book § 62-9 (d) (3) ("If the trial court grants the motion to withdraw, counsel shall immediately notify his or her former client, by letter, of the status of the appeal and the responsibilities necessary to prosecute the appeal.... The trial court's decision shall be sealed and may be reviewed pursuant to Section 66-6."). In the present case, the defendant's court-appointed appellate counsel sent the defendant a letter notifying him of the court's decision granting her motion to withdraw and, as required by Practice Book § 62-9 (d) (3), provided him with instructions on how to proceed with the appeal as a self-represented party. Significantly, the instructions explained: "You can try filing a [m]otion for [r]eview of the trial court's decision on the Anders motion. ( [Practice Book] § 66-6 ) Remember that you only have [ten] days to file this from the date of the notice of the order. If you do, remember to ask for an extension of time to file your brief until [twenty] or [thirty] days after the motion is decided." The defendant did not file a motion for review, but did file an appellate brief. Although the defendant could have pursued and briefed any appellate claim he deemed meritorious regarding the underlying judgment of conviction, he raised in his appellate brief only his claim that counsel should not have been permitted to withdraw. He did so, despite the clear instructions informing him that he could file, pursuant to Practice Book § 66-6, a motion for review of the trial court's decision on appellate counsel's motion for permission to withdraw her appearance. Because the defendant did not comply with Practice Book § 62-9 (d) (3) and, instead, raised the issue in his direct appeal, we decline to review his claim. In addition, because the defendant has not raised or adequately briefed any claim that directly challenges the judgment of conviction from which he took this appeal, we deem any possible claims abandoned. See Joseph v. Commissioner of Correction , 153 Conn. App. 570, 574, 102 A.3d 714 (2014), cert. denied, 315 Conn. 911, 106 A.3d 304 (2015). The judgment is affirmed. In this opinion PELLEGRINO, J., concurred. Although I agree with the majority that the judgment of conviction should be affirmed, in the interest of justice, I would follow a different path to that conclusion. The sole claim raised by the self-represented defendant in this direct criminal appeal is that the trial court violated his right to due process by improperly granting court-appointed appellate counsel's motion for leave to withdraw her appearance in accordance with Practice Book § 62-9. As indicated by the majority, a motion for review pursuant to Practice Book § 66-6 is the proper vehicle by which to obtain review of an order concerning the withdrawal of appointed appellate counsel after an appeal has been filed. Nevertheless, for the reasons that follow, before turning to the merits of the appeal, I would treat the defendant's brief as a late motion for review, and would grant review but deny relief. Then, because the defendant failed to raise any claim challenging the merits of the judgment of conviction, I would, like the majority, affirm the judgment. The criminal charges against the defendant arose out of the shooting death of a convenience store clerk. The defendant was represented throughout the underlying proceedings by Attorney R. Bruce Lorenzen, a public defender. The defendant confessed to shooting the clerk and, at trial, did not challenge that he was the shooter. Instead, the defendant argued that the firearm he used discharged accidently and that he committed the robbery under duress. A jury found the defendant guilty of felony murder in violation of General Statutes § 53a-54c and robbery in the first degree in violation of General Statutes § 53a-134 (a) (2). Following his conviction and sentencing, the defendant filed an application seeking a waiver of fees, costs and expenses for appeal and the appointment of appellate counsel. The Office of the Chief Public Defender initially was appointed to represent the defendant and filed a timely appeal to the Supreme Court on his behalf raising such issues as may appear from an examination of the record. Attorney Lisa J. Steele later filed an appearance on behalf of the defendant in lieu of the public defender's office. On September 14, 2015, pursuant to Practice Book § 62-9, Steele filed with the Office of the Appellate Clerk a motion for leave to withdraw her appearance. According to Steele, on the basis of her review of the record and discussions with both the defendant and trial counsel, she asserted that an appeal in this case would be wholly frivolous. Steele, in accordance with the procedures set forth in Practice Book § 62-9 and 43-34 thru 43-38, submitted an Anders brief detailing the factual and legal basis for her conclusion. The motion and the Anders brief were forwarded to the trial court, Prats, J. , for a decision. On February 24, 2017, the trial court issued a memorandum of decision granting the motion to withdraw. In accordance with Practice Book § 62-9 (d) (3), Steele sent the defendant a letter dated March 4, 2017, notifying him of the court's decision. Steele attached to the letter a three page, single spaced document titled "Filing a Pro Se Brief." That document contained numerous and detailed instructions on how to proceed with the appeal as a self-represented party. The following statement was included amidst other instructions describing the types of documents the defendant was permitted to file in prosecuting his appeal: "You can try filing a [m]otion for [r]eview of the trial court's decision on the Anders motion ( [Practice Book §] 66-6). Remember that you only have [ten] days to file this from the date of the notice of the order." Here, ten days expired on March 6, 2017, or two days after the letter was dated. The letter did not inform the defendant that a motion for review was his exclusive remedy or that he could not raise in his appellate brief any issue regarding the court's decision to grant the motion to withdraw. The defendant did not file a motion for review of the trial court's ruling allowing Steele to withdraw. On April 7, 2017, the defendant filed an appearance as a self-represented party in lieu of Steele. He successfully filed a motion for additional time to file his brief, which he submitted on November 3, 2017. On November 30, 2017, the Supreme Court transferred the appeal to this court pursuant to Practice Book § 65-1. Practice Book § 62-9 (d) directs that any appointed appellate counsel who concludes in accordance with Practice Book § 43-34 that an appeal would be wholly frivolous to file under seal with the appellate clerk a motion for leave to withdraw his or her appearance along with a memorandum of law in accordance with Practice Book § 43-35. Copies are not provided to the state. Practice Book § 62-9 (d) (2). The motion, brief, and any supporting transcripts are then referred by the appellate clerk to the trial court for a decision. Practice Book § 62-9 (d) (3). If the trial court grants the motion to withdraw, a copy of the court's decision is filed, under seal, with the appellate clerk, and counsel must notify his or her former client in writing of the trial court's decision, the current status of the appeal, and the defendant's responsibilities necessary to prosecute the appeal. Practice Book § 62-9 (d) (3). Section 62-9 (d) (3) further expressly provides that the trial court's decision "may be reviewed pursuant to [Practice Book §] 66-6." Practice Book § 66-6 provides in relevant part that this court "may, on written motion for review stating the grounds for the relief sought, modify or vacate . any order concerning the withdrawal of appointed appellate counsel pursuant to Section 62-9 (d)." Generally, in those instances in which our rules provide for expedited relief pursuant to a motion for review filed in accordance with Practice Book § 66-6, we have required that parties follow that procedure and declined to review such issues when raised by way of a direct appeal. See Hartford Federal Savings & Loan Assn. v. Tucker , 192 Conn. 1, 8, 469 A.2d 778 (1984) ; Clark v. Clark, 150 Conn. App. 551, 575-76, 91 A.3d 944 (2014) ; State v. Casiano , 122 Conn. App. 61, 71, 998 A.2d 792, cert. denied, 298 Conn. 931, 5 A.3d 491 (2010) ; Scagnelli v. Donovan , 88 Conn. App. 840, 843, 871 A.2d 1084 (2005) ; State v. Pieger , 42 Conn. App. 460, 467, 680 A.2d 1001 (1996), aff'd, 240 Conn. 639, 692 A.2d 1273 (1997). Because of the confidential nature of the attorney-client relationship and the required contents of an Anders brief, in which the attorney representing the defendant sets forth the legal and factual shortcomings of any potential appellate issues, the brief is not permitted to be disclosed to the state. Moreover, as provided in Practice Book § 62-9 (d) (4), the panel hearing the merits of any subsequent appeal is prohibited from reviewing such materials. Accordingly, although Practice Book § 62-9 (d) (3) does not expressly state that a motion for review is the exclusive remedy available to a defendant, that is unquestionably the clear intent of the rule. Accordingly, if a defendant wishes to challenge a ruling permitting the withdrawal of appointed counsel in accordance with Practice Book § 62-9, he or she must do so by filing a motion for review pursuant to Practice Book § 66-6, not by raising the issue as a claim in the pending appeal. I do not disagree with the majority that, in the present case, although the defendant could have pursued and briefed any appellate claim he deemed meritorious regarding the underlying judgment of conviction, and, in fact, was instructed to do so by his former appellate counsel, he chose to raise in his brief to this court only his claim that counsel should not have been permitted to withdraw. For the following reasons, I would exercise this court's authority to supervise proceedings on appeal and to suspend the requirements or provisions of our appellate rules of practice and treat the defendant's brief as a late motion for review. See Practice Book § 60-1, 60-2, and 60-3 ; see also State v. Ayala , 222 Conn. 331, 342, 610 A.2d 1162 (1992) (treating defendant's petition for certification under General Statutes § 51-197f as late petition for certification under General Statutes § 52-265a [a] ). First, I do not dispute that Steele's written notification and instructions to the defendant following the granting of the motion for leave to withdraw fully complied with the requirements of our rules and, although not expressly required, informed the defendant that he could "try" filing a motion for review of the court's decision to allow Steele to withdraw her representation. That important and time sensitive instruction, however, was not addressed in the body of the letter informing the defendant that the motion for leave to withdraw had been granted but was buried amid a series of instructions that pertained not to the issue of representation but to procedures for prosecuting the appeal as a self-represented party. Furthermore, Steele's letter to the defendant was dated on March 4, 2017, a Saturday, and the time to file a motion for review of the court's February 24, 2017 decision by her instruction expired on March 6, the following Monday. It is thus reasonable to infer that the time to file a timely motion for review had expired on or before the date that the defendant received Steele's instructions. Moreover, neither the rules of practice cited by Steele nor the instructions themselves informed the defendant that if he wished to challenge the court's ruling on the motion to withdraw, he could do so only by filing a motion for review pursuant to Practice Book § 66-6. Second, and somewhat related, although he received copies of the motion to withdraw and the court's decision, each of which referenced Practice Book § 62-9, which in turn references Practice Book § 66-6, the defendant nevertheless may not have understood that, as we clarify in this case, a motion for review was his exclusive remedy. See Scagnelli v. Donovan , supra, 88 Conn. App. at 845 n.3, 871 A.2d 1084 (sua sponte granting permission to file late motion for review "in consideration of the fact that the defendants' counsel did not have the benefit of this decision") Given the unique procedural posture of this case, and in the interest of justice, I would exercise our supervisory authority to treat the defendant's brief as a late motion for review of the trial court's ruling on the motion to withdraw. The state, in its appellate brief, anticipated the possibility that we might treat the defendant's brief in this manner, and it did not argue against that procedure, noting only that because it was not privy to the Anders brief or the court's ruling because they were sealed, it was not in a position to address the merits of the court's order granting the motion to withdraw. My review of the record shows that Attorney Steele followed all required procedures necessary to seek permission to withdraw her appearance as the defendant's appointed counsel, including providing a thorough and well-reasoned brief in compliance with Anders . Her motion to withdraw and Anders brief were sent to the trial court for disposition. The defendant was granted several extensions of time in which to respond to the motion to withdraw. Although he did not file a written response directly with the court, he conveyed his arguments to Steele, who submitted a letter to the court setting forth his belief that he had a viable double jeopardy claim. The court, following a full examination of the record, made an independent determination that there were no nonfrivolous appellate issues, and filed a thorough memorandum of decision setting forth its reasoning for granting the motion to withdraw. I have reviewed, on a plenary basis, the court's memorandum of decision and the underlying record on which the court relied. I do not find any errors in its conclusions. The only argument the defendant advances in support of his claim that the motion to withdraw was improperly granted is that he has a nonfrivolous double jeopardy claim. Any potential double jeopardy violation was fully addressed by both Steele and the trial court, each of whom concluded that the claim lacked merit. The defendant has failed to demonstrate that a nonfrivolous double jeopardy claim exists; see footnote 2 of this concurrence; or that the court otherwise improperly granted the motion to withdraw. Having treated the defendant's brief as a motion for review of the court's granting of the motion to withdraw, I would have granted review, but would have denied the relief requested. As previously indicated, the defendant has failed to raise or brief any challenge to the judgment of conviction itself. Because the defendant has advanced no claim regarding the merits of the judgment of conviction, he has effectively abandoned his direct criminal appeal. Accordingly, like the majority, I would affirm the judgment of conviction. Because that disposition does not involve the review of any claim pertaining to the merits of the appeal, my proposed disposition of this appeal would also not run afoul of Practice Book § 62-9 (d) (4). "In Anders [v. California , 386 U.S. 738, 744, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967) ], the United States Supreme Court outlined a procedure that is constitutionally required when, on direct appeal, appointed counsel concludes that an indigent defendant's case is wholly frivolous and wishes to withdraw from representation.... Under Anders , before appointed counsel may withdraw, he or she must provide the court and the defendant with a brief outlining anything in the record that may support the appeal, and the defendant must be given time to raise any additional relevant points.... Thereafter, the court, having conducted its own independent review of the entire record of the case, may allow counsel to withdraw, if it agrees with counsel's conclusion that the appeal is entirely without merit." (Citations omitted.) State v. Francis , 322 Conn. 247, 250 n.3, 140 A.3d 927 (2016). As our Supreme Court has recognized, "[t]here can be no question that equal justice requires that the right of appellate review cannot depend on the amount of money which the defendant has.... On the other hand, so long as an indigent defendant can prosecute an appeal at public expense and without any possible detriment to himself there is nothing to protect the public purse or save the appellate courts from a flood of baseless appeals by indigent defendants except a proper judicial determination as to whether a proposed appeal at public expense may have some merit or is in fact frivolous." (Citation omitted.) State v. Pascucci , 161 Conn. 382, 387, 288 A.2d 408 (1971). The jury also found the defendant not guilty of murder, but guilty of the lesser included offense of manslaughter in the first degree with a firearm in violation of General Statutes § 53a-55a. In light of the felony murder conviction, the court properly vacated and dismissed without prejudice the manslaughter conviction. See State v. Chicano , 216 Conn. 699, 703, 584 A.2d 425 (1990) (conviction of both felony murder and manslaughter in first degree based on single homicide violates double jeopardy), cert. denied, 501 U.S. 1254, 111 S.Ct. 2898, 115 L.Ed.2d 1062 (1991), overruled in part on other grounds by State v. Polanco , 308 Conn. 242, 261, 61 A.3d 1084 (2013) (holding vacatur, rather than merger, is proper remedy for cumulative homicide convictions). The defendant was sentenced to fifty-five years of incarceration on the felony murder count and received a concurrent sentence of twenty years of incarceration for the robbery. We note that in State v. Gonzalez , 302 Conn. 287, 312-13, 25 A.3d 648 (2011), our Supreme Court squarely rejected a claim that double jeopardy barred a defendant's conviction and punishment for both felony murder and the predicate felony of robbery in the first degree. The appeal was subsequently transferred to this court. See Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), and State v. Pascucci , 161 Conn. 382, 288 A.2d 408 (1971) (adopting Anders requirements). Practice Book § 62-9 (d) (4) provides in relevant part: "The appellate clerk shall maintain all filings and related decisions pursuant to this subsection under seal. The panel hearing the merits of the appeal shall not view any briefs and materials filed under seal pursuant to this subsection." Practice Book § 60-1 provides: "The design of [our rules of practice] being to facilitate business and advance justice, they will be interpreted liberally in any appellate matter where it shall be manifest that a strict adherence to them will work surprise or injustice." Practice Book § 60-2 provides in relevant part that "[t]he supervision and control of the proceedings shall be in the court having appellate jurisdiction from the time the appellate matter is filed, or earlier, if appropriate ." Practice Book § 60-3 provides: "In the interest of expediting decision, or for other good cause shown, the court in which the appellate matter is pending may suspend the requirements or provisions of any of [our rules of practice] on motion of a party or on its own motion and may order proceedings in accordance with its direction." I would encourage the Advisory Committee on Appellate Rules to consider making a recommendation that Practice Book § 62-9 (d) (3) be amended. Practice Book § 62-9 (d) (3) currently provides in relevant part: "If the trial court grants the motion to withdraw, counsel shall immediately notify his or her former client, by letter, of the status of the appeal and the responsibilities necessary to prosecute the appeal." It would seem no great additional burden on counsel to include in the required letter an instruction that if his or her former client wishes to challenge the court's decision to allow counsel to withdraw, the client must file a motion for review with the Appellate Court in accordance with Practice Book § 66-6 and that the issue is not reviewable by any other procedure.

12503750

STATE of Connecticut v. Cody MEADOWS

State v. Meadows

2018-10-09

AC 40472

464

477

197 A.3d 464

197

West's Atlantic Reporter, Third Series

Connecticut Appellate Court

Connecticut

2021-08-27T20:57:41.731571+00:00

Fastcase

STATE of Connecticut v. Cody MEADOWS

STATE of Connecticut v. Cody MEADOWS AC 40472 Appellate Court of Connecticut. Argued May 22, 2018 Officially released October 9, 2018 John L. Cordani, Jr., New Haven, assigned counsel, for the appellant (defendant). Bruce R. Lockwood, senior assistant state's attorney, with whom, on the brief, were Patrick J. Griffin, state's attorney, and Laura Deleo, senior assistant state's attorney, for the appellee (state).

6367

39020

FLYNN, J. The defendant, Cody Meadows, was convicted after a jury trial of two counts of criminal violation of a standing criminal protective order in violation of General Statutes § 53a-223a, one count of threatening in the second degree in violation of General Statutes (Rev. to 2015) § 53a-62(a)(2) and one count of threatening in the second degree in violation of § 53a-62(a)(3). On appeal, the defendant claims that (1) the two convictions for violation of the standing criminal protective order violated his protection against double jeopardy, (2) the trial court erroneously instructed the jury as to the second count of violation of a standing criminal protective order, and (3) his conviction under § 53a-62(a)(3) violated his right to freedom of speech under the first amendment to the United States constitution. We disagree and affirm the judgment of the trial court. The jury reasonably could have found the following facts. On September 1, 2015, the defendant, along with the victim, the mother of his children, appeared before the juvenile court in New Haven for a hearing relating to their children. At the time, the defendant, pursuant to the terms of a standing criminal protective order, was to have no "contact [with the victim] in any manner, including by written, electronic or telephone [communication]" and was not to "assault, threaten, abuse, harass, follow, interfere with, or stalk the [victim]." As an exception, the order provided that "contact with [the victim was] only allowed for purposes of visitation as directed by [the] family court." As the hearing began, the defendant tried to "make small talk" with the victim, who ignored him. According to the victim, the defendant tried to tell her that he loved her and asked her why she had blocked her telephone, but she continued to ignore him and to look toward the judge. At this point, the defendant told the victim, "you're going to have problems when I get home, bitch." The victim then looked at the defendant who mouthed that he was going to "f---ing kill [her]." The victim told the defendant that she could hear him and that he should stop threatening her. The defendant remarked that he was not threatening; thereafter, he stopped trying to converse with the victim. The victim considered the defendant's statements to be real threats, and she was fearful after she heard them. At the conclusion of the hearing, the defendant met, at the courthouse, with a social worker, Shannon McGinnis. During the meeting, the defendant appeared upset and told McGinnis that "if he's not with [the victim], he's going to make sure nobody else is with her." The defendant then said that, "if [the victim] chooses not to be with him, he will beat the f---ing shit out of her" and would "make her another Tracey Morton." The defendant also said that "[h]e would kill himself or die suicide by cops ." At this point, McGinnis informed the defendant that his statements were concerning and that she would have to tell others about them; the defendant then stopped making such statements. Afterward, McGinnis met with the victim and informed her that during their meeting the defendant had threatened to hurt the victim. The victim thereafter contacted the state police and, after meeting with a state police officer, signed a statement that had been prepared by the officer. At trial, the victim testified that she believed the threats against her were real and that she had feared the defendant even though he was in prison, where he would remain for seven more months. The state subsequently charged the defendant in a four count information with two counts of violation of a standing criminal protective order and two counts of threatening in the second degree. After a jury trial, the defendant was convicted on all four counts. This appeal followed. I The defendant first claims that his conviction for two counts of violation of a standing criminal protective order violated his right to be free from double jeopardy. He argues that count one of the information, which alleged a violation of the protective order by having contact with the victim, and count two of the information, which alleged a violation of the protective order by threatening and harassing the victim, arose out of the same act. Specifically, the defendant argues that his conversation with the victim inside the courtroom was a "single, continuous, [and] uninterrupted" act, and that it, therefore, cannot be dissected and penalized as two separate acts. Because the court rendered a judgment of conviction on two counts of violation of a standing criminal protective order resulting from that single conversation, the defendant claims his right against double jeopardy was violated. In support of this argument, the defendant relies on Rowe v. Superior Court , 289 Conn. 649, 667-68, 960 A.2d 256 (2008), and State v. Nixon , 92 Conn. App. 586, 590-91, 886 A.2d 475 (2005). Additionally, the defendant argues that the language of § 53a-223a(c) exemplifies the legislature's intent to make a violation of a standing criminal protective order punishable only once. We disagree. The defendant did not preserve this claim at trial, nor has he asked, on appeal, for review under State v. Golding , 213 Conn. 233, 567 A.2d 823 (1989). Nevertheless, "[a] defendant may obtain review of a double jeopardy claim, even if it is unpreserved, if he has received two punishments for two crimes, which he claims were one crime, arising from the same transaction and prosecuted at one trial . Because the claim presents an issue of law, our review is plenary.... Double jeopardy analysis in the context of a single trial is a two-step process. First, the charges must arise out of the same act or transaction.... Second, it must be determined whether the charged crimes are the same offense. Multiple punishments are forbidden only if both conditions are met." (Citations omitted; internal quotation marks omitted.) State v. Nixon , supra, 92 Conn. App. at 590-91, 886 A.2d 475. Counts one and two of the state's long form information respectively charged that the defendant (1) "violate[d] the . protective order . by having contact with the protected person, in violation of . [§] 53a-223a" and (2) that the defendant "violate[d] the . protective order . by threatening and harassing the protected person, in violation of . [§] 53a-223a." Although these counts charge the defendant under the same statute, we conclude that the offenses charged did not arise out of the same act. Our courts have long held that "distinct repetitions of a prohibited act, however closely they may follow each other . may be punished as separate crimes without offending the double jeopardy clause.... The same transaction, in other words, may constitute separate and distinct crimes where it is susceptible of separation into parts, each of which in itself constitutes a completed offense.... [T]he test is not whether the criminal intent is one and the same and inspiring the whole transaction, but whether separate acts have been committed with the requisite criminal intent and are such as are made punishable by the [statute]." (Internal quotation marks omitted.) State v. Miranda , 260 Conn. 93, 120, 794 A.2d 506, cert. denied, 537 U.S. 902, 123 S.Ct. 224, 154 L.Ed.2d 175 (2002) ; see also State v. Morales , 164 Conn. App. 143, 157, 136 A.3d 278 (same), cert. denied, 321 Conn. 916, 136 A.3d 1275 (2016) ; State v. James E. , 154 Conn. App. 795, 833, 112 A.3d 791 (2015) (same), cert. denied, 321 Conn. 911, 136 A.3d 1273 (2016). In other words, the fact that a defendant's two separate charges of violation of a standing criminal protective order arise from acts that closely follow one another is not determinative, by itself, of whether they constitute a single criminal offense. Rather, the question is whether each act charged by the state is susceptible of separation into parts which are separate, complete offenses and are thus punishable under the controlling statute. The contact described in the first count is less culpable than the conduct charged in the second. In the first count, the defendant is merely charged with prohibited contact with the victim. In the second, he is charged with threatening and harassing the victim. Each of these charges, based upon a separate act, was a separate offense that led to a separate conviction. In State v. Miranda , supra, 260 Conn. at 120, 794 A.2d 506, our Supreme Court considered whether the defendant, who had been convicted of two counts of assault in the first degree for injuries resulting to a minor child in his care, was being punished twice for the same offense. In answering that question in the negative, our Supreme Court concluded that the defendant's failure to act, which had resulted in two separate injuries to the victim, constituted two separate acts of omission rather than one continuous failure to act. Id., at 124, 794 A.2d 506. Similarly, in State v. James E. , supra, 154 Conn. App. at 831, 112 A.3d 791, the defendant shot the victim twice and was convicted of two counts of assault of an elderly person in the first degree, which he claimed violated his right against double jeopardy. This court held that each shooting was a separate and distinct act because the defendant first removed the gun from his cabinet, turned toward the victim and shot him; the defendant then, approached the victim, grabbed his shirt and shot him again. Id., at 834, 112 A.3d 791. In the present case, the defendant's conversation with the victim likewise is separable into distinct acts, each punishable as a separate offense but one of which involves a more culpable conduct than the other. It was one thing for the defendant to tell the victim he loved her; it was another to tell her, a few breaths later, that she was a bitch, whom he would kill when he got home. The defendant first engaged in conversation with the victim, unrelated to visitation with their children, which amounted to contact with a person protected under the standing criminal protective order. The defendant then proceeded to harass the victim and to threaten the victim with death, which amounted to threatening and harassing and violated additional terms of the standing criminal protective order. These two distinct acts, both undertaken by the defendant, were separately punishable under § 53a-223a. By convicting and sentencing the defendant on two separate counts, one for each distinct violation of the protective order, the court did not punish the defendant twice for a single offense. Rather, the court convicted the defendant of two completed and distinct violations of the same statute. We also consider the defendant's reliance on Rowe and Nixon and conclude that this reliance is misplaced. In Rowe v. Superior Court , supra, 289 Conn. at 675-76, 960 A.2d 256, our Supreme Court concluded that the plaintiff's refusal to answer two questions, constituted one, continuous act of contempt. In reaching that conclusion, however, the court specifically noted that the United States Supreme Court, in Yates v. United States , 355 U.S. 66, 78 S.Ct. 128, 2 L.Ed.2d 95 (1957), had "recognized three circumstances in which multiple refusals to testify may be punished only as a single act of contempt: when the witness refuses to give any testimony at the outset and adheres to that refusal (blanket refusal); when the witness refuses to give testimony 'within a generally defined area of interrogation' (area of refusal) . and when the witness refuses to answer questions relating to the same fact or subject of inquiry (subject of inquiry)." (Citation omitted.) Rowe v. Superior Court , supra, at 667, 960 A.2d 256. The court in Rowe then concluded that the plaintiff's refusal to answer questions could be viewed either as a blanket refusal or refusal to answer questions on a particular subject area, because the subject on which the plaintiff had refused to provide testimony was the only subject matter on which the state had sought to question him. Id., at 675, 960 A.2d 256. For that reason, the plaintiff's refusal to answer any questions was one continuous act of contempt. Id. In the present case, there is no mandate similar to Yates by our Supreme Court that defines conduct protected under the double jeopardy clause in the context of violating a protective order. Moreover, unlike Rowe , the defendant's conduct in the present case can be dissected into separate and distinct acts prohibited by the same statute, albeit occurring within the same conversation. It is not, therefore, a single continuous criminal offense. Similarly, we conclude that Nixon is inapposite. In Nixon , this court concluded that the defendant's rights under the double jeopardy clause were violated by his conviction of two counts of assault in the second degree, resulting from his stabbing the victim twice. State v. Nixon , supra, 92 Conn. App. at 597, 886 A.2d 475. The stabbing was against one victim and was continuous, uninterrupted and close in time. Consequently, we rejected the state's claim in Nixon that each knife stab constituted a separate assault. In reaching that conclusion, we noted specifically that the state, in both counts of assault, had charged the defendant in the exact same manner. Id., at 590, 886 A.2d 475. We noted, additionally, that the "defendant twice stabbed the same victim, at the same place and during the same time period, with the same instrument, with the same common intent to inflict physical injury during one continuous, uninterrupted assault." Id., at 591, 886 A.2d 475. We, therefore, held that the conviction of two separate counts of assault, based on one continuous assault, violated double jeopardy. Id., at 597, 886 A.2d 475. In the present case, however, the state charged the defendant with two different acts that violated two separate provisions of the standing criminal protective order. Particularly, the defendant's initial words, his attempt to engage in "small talk," and his telling the victim that "he loved her," by themselves, likely would not support a conviction on the state's second count, which alleged a violation of the standing criminal protective order by threatening and harassing the victim. After engaging in this conversation, however, the defendant then went on to threaten to kill the victim, which constituted a separate act in violation of the protective order. For these reasons, the convictions did not violate the defendant's right to be free from double jeopardy. The acts charged were separate and distinct, and it matters not that they arose from the same conversation. See State v. Miranda , supra, 260 Conn. at 119, 794 A.2d 506. II The defendant next claims that the trial court erroneously instructed the jury as to the second count of violation of a standing criminal protective order. Specifically, the defendant claims that the trial court provided the jury with the incorrect definition of "harassing conduct," for the second count of violation of a standing criminal protective order. The defendant contends that the court instead should have used the definition set forth in this court's opinion in State v. Larsen , 117 Conn. App. 202, 209 n.5, 978 A.2d 544, cert. denied, 294 Conn. 919, 984 A.2d 68 (2009), which, according to the defendant, set a higher threshold for "harassing" conduct. We disagree. The defendant did not object to the court's charge at trial and submitted no request to charge suggesting the language he now argues on appeal was mandated, nor does he now seek review pursuant to State v. Golding , supra, 213 Conn. at 233, 567 A.2d 823. We extend review, however, pursuant to State v. Elson , 311 Conn. 726, 754-55, 91 A.3d 862 (2014), because the claim that the jury was not instructed properly as to an essential element of a crime is a claim of constitutional magnitude. "It is . constitutionally axiomatic that the jury be instructed on the essential elements of a crime charged.... A claim that the trial court failed to instruct the jury adequately on an essential element of the crime charged necessarily involves the defendant's due process rights and implicates the fairness of his trial." (Internal quotation marks omitted.) State v. Felder , 95 Conn. App. 248, 258, 897 A.2d 614, cert. denied, 279 Conn. 905, 901 A.2d 1226 (2006). In the second count of its information, the state charged the defendant with violation of a standing criminal protective order by "threatening and harassing the protected person ." At trial, the court instructed the jury as to this count as follows: "In this case, the state alleges that threatening or harassing the complainant was forbidden by the order, and you have the order. As far as what's the definition of a threat, use the same definition that I'm going to give you on threatening. As far as what's harassing, harassing is to trouble, worry, or torment ; that's the legal definition. Trouble, worry, or torment. A person acts intentionally with respect to conduct when his conscious objective is to engage in such conduct. That's general intent. In summary, the state must prove beyond a reasonable doubt (1) that a court issued a standing criminal protective order against the defendant; and (2) the defendant violated a condition of that order; and in count two, we're talking about an allegation that he violated a prohibition in an order that required him not to threaten or harass the complainant." (Emphasis added.) The plaintiff contends that in using the words "trouble, worry, or torment," the trial court improperly defined the term "harassing" to the jury, which, instead, is defined by the higher standard set forth in Larsen . In that case, after a trial to the court, the defendant was convicted of two counts of criminal violation of a protective order, and one count of criminal violation of a restraining order. State v. Larsen , supra, 117 Conn. App. at 203, 978 A.2d 544. On appeal, the defendant claimed that the state failed to prove that she had the requisite intent to violate the orders. Id., at 204, 978 A.2d 544. In rejecting the defendant's claim, we noted that the dictionary definition of "harass" was "to annoy persistently . to create an unpleasant or hostile situation . by uninvited and unwelcome verbal or physical conduct." (Internal quotation marks omitted.) Id., at 209 n.5, 978 A.2d 544. In light of this dictionary definition, we concluded that the court reasonably could have found that the defendant harassed the victim. Id., at 210, 978 A.2d 544. In the present case, although the definition employed by the trial judge is different from the one this court used in Larsen , the distinction is not so great as to implicate the fairness of the defendant's trial. Specifically, the defendant's contention that "troubled" is a much lower standard than to "annoy persistently" is unavailing. The word "annoy" means to "disturb or irritate especially by repeated acts." Merriam-Webster's Collegiate Dictionary (11th Ed. 2003) p. 50. "Trouble" means to "agitate mentally or spiritually" and is synonymous with "worry," which means "to assail with rough or aggressive attack or treatment" or to "subject to persistent or nagging attention or effort" and is synonymous with "torment." (Emphasis added.) Id., at 1342, 1444. "Torment," in turn, means "to cause severe, usually, persistent or recurrent distress." (Emphasis added.) Id., at 1319. When compared fully, we are satisfied that the definition, "trouble, worry, or torment," conveys equally and sufficiently the definition this court employed in Larsen . Accordingly, we reject the defendant's argument that the use of this definition resulted in constitutional error. Moreover, in using this instruction, the trial court employed the definition of "harass" that more commonly is applied to describe that element of § 53a-223a(c). See, e.g., State v. Hersey , 78 Conn. App. 141, 161, 826 A.2d 1183 (considering different instructional challenge to charge that defined "harass" as "to trouble, worry or torment" [internal quotation marks omitted] ), cert. denied, 266 Conn. 903, 832 A.2d 65 (2003) ; State v. Charles , 78 Conn. App. 125, 130, 826 A.2d 1172 (same), cert. denied, 266 Conn. 908, 832 A.2d 73 (2003). Consequently, we are not persuaded that the court erroneously instructed the jury on this element. III The defendant finally claims that his conviction for threatening in the second degree in violation of § 53a-62(a)(3), should be reversed because it constitutes a violation of the first amendment to the United States constitution. That section provides in pertinent part that "[a] person is guilty of threatening in the second degree when . such person threatens to commit any crime of violence with . reckless disregard of the risk of causing such terror ." General Statutes (Rev. to 2015) § 53a-62(a)(3). The defendant argues that pursuant to Virginia v. Black , 538 U.S. 343, 123 S.Ct. 1536, 155 L.Ed.2d 535 (2003), the true threats doctrine now requires that he possess a subjective intent to threaten the victim. Because the intent element of § 53a-62(a)(3) may be satisfied with recklessness, the defendant claims that the statute is unconstitutional. Additionally, the defendant argues that the decision of our Supreme Court in State v. Krijger , 313 Conn. 434, 97 A.3d 946 (2014), rendered after Black , left open the constitutional question he now poses. Moreover, the defendant asserts that Elonis v. United States , - U.S. -, 135 S.Ct. 2001, 192 L.Ed.2d 1 (2015), a more recent decision of the United States Supreme Court, signals the court's approval of a subjective intent requirement to make speech punishable under the true threats doctrine. Because Elonis was decided after our Supreme Court's decision in Krijger , the defendant urges us to abandon the objective standard applied by our Supreme Court in that case and to adopt the subjective intent standard in Elonis . We are not persuaded by the defendant's arguments. Although the defendant makes this claim for the first time on appeal and does not seek review under Golding , we review his claim pursuant to State v. Elson , supra, 311 Conn. at 754-55, 91 A.3d 862. "The constitutionality of a statute presents a question of law over which our review is plenary." (Internal quotation marks omitted.) State v. Book , 155 Conn. App. 560, 564, 109 A.3d 1027, cert. denied, 318 Conn. 901, 122 A.3d 632 (2015), cert. denied, - U.S. -, 136 S.Ct. 2029, 195 L.Ed.2d 219 (2016). "True threats encompass those statements [through which] the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals.... The speaker need not actually intend to carry out the threat. Rather, a prohibition on true threats protect[s] individuals from the fear of violence and from the disruption that fear engenders, in addition to protecting people from the possibility that the threatened violence will occur.... In the context of a threat of physical violence, [w]hether a particular statement may properly be considered to be a [true] threat is governed by an objective standard-whether a reasonable person would foresee that the statement would be interpreted by those to whom the maker communicates the statement as a serious expression of intent to harm or assault.... [A]lleged threats should be considered in light of their entire factual context, including the surrounding events and reaction of the listeners.... Prosecution under a statute prohibiting threatening statements is constitutionally permissible [as] long as the threat on its face and in the circumstances in which it is made is so unequivocal, unconditional, immediate and specific as to the person threatened, as to convey a gravity of purpose and imminent prospect of execution." (Citations omitted; internal quotation marks omitted.) State v. Krijger , supra, 313 Conn. at 449-50, 97 A.3d 946. The defendant's claim turns on two cases of the United States Supreme Court, Virginia v. Black , supra, 538 U.S. 343, 123 S.Ct. 1536, and Elonis v. United States , supra, 135 S.Ct. at 2001. Because the defendant argues that our Supreme Court has not had the opportunity to reconsider our jurisprudence in light of the United States Supreme Court's decision in Elonis , we first address his claim based on that case. The defendant asks us to read Elonis as establishing a subjective intent element for true threats under the first amendment to the United States constitution. He acknowledges, however, that in Elonis , the United States Supreme Court construed 18 U.S.C. § 875(c) (2012), a federal criminal statute that penalized threats made in interstate commerce. The defendant argues, nevertheless, that the United States Supreme Court, by reading a subjective intent element into that statute, signaled an approval of that element as essential to establish liability under the true threats doctrine of the first amendment. As a conceptual matter, we cannot agree with this argument. To be constitutionally valid, a statute must provide at least as much protection as the federal constitution. It follows, therefore, that a statute can provide greater, but not less, protection than the constitution. Concluding that 18 U.S.C. § 875(c) requires subjective intent, the United States Supreme Court held that the statute required a higher mens rea. Elonis v. United States , supra, 135 S. Ct. at 2010 ("[w]hen interpreting federal criminal statutes that are silent on the required mental state, we read into the statute only that mens rea which is necessary to separate wrongful conduct from otherwise innocent conduct" [internal quotation marks omitted] ); see also United States v. White , 810 F.3d 212, 220 (4th Cir. 2016) (" Elonis abrogates our prior holding that liability under [ 18 U.S.C.] § 875(c) can turn solely on how a recipient would interpret a statement, without regard to whether the speaker intended it as a threat.... But Elonis does not affect our constitutional rule that a 'true threat' is one that a reasonable recipient familiar with the context would interpret as a serious expression of an intent to do harm." [citation omitted] ), cert. denied, - U.S. -, 136 S. Ct. 1833, 194 L.Ed. 2d 837 (2016). By contrast, the court expressly declined to address any first amendment issues; see Elonis v. United States , supra, 135 S. Ct. at 2013 ; thereby leaving the elements of the true threats doctrine undisturbed. We, therefore, cannot join the defendant's assumption that the United States Supreme Court abandoned the existing standard for the true threats doctrine sub silentio. See Shalala v. Illinois Council on Long Term Care, Inc. , 529 U.S. 1, 18, 120 S.Ct. 1084, 146 L.Ed.2d 1 (2000) (United States Supreme Court "does not normally overturn, or so dramatically limit, earlier authority sub silentio"). Accordingly, we conclude that Elonis has no bearing on whether the defendant must possess a subjective intent for purposes of the true threats doctrine. Whether Black affected the true threats doctrine, however, is a different question and one which was not addressed by our Supreme Court in Krijger , but which the defendant now invites us to consider. In Virginia v. Black , supra, 538 U.S. at 343, 123 S.Ct. 1536, the United States Supreme Court considered whether a Virginia statute that criminalized cross burning violated the first amendment. The statute made it unlawful for "any person or persons, with the intent of intimidating any person or group of persons, to burn, or cause to be burned, a cross on the property of another, a highway or other public place." (Internal quotation marks omitted.) Id., at 348, 123 S.Ct. 1536. It provided further that "[a]ny such burning of a cross shall be prima facie evidence of an intent to intimidate a person or group of persons." (Internal quotation marks omitted.) Id. It was this latter part of the statute that a plurality of the court struck down as unconstitutional. Id., at 367, 123 S.Ct. 1536. In reaching this conclusion, the court first recited the principle, now well established in this state, that " '[t]rue threats' encompass those statements where the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals." Id., at 359, 123 S.Ct. 1536. The court went on to add, however, that "[i]ntimidation in the constitutionally proscribable sense of the word is a type of true threat, where a speaker directs a threat to a person or group of persons with the intent of placing the victim in fear of bodily harm or death." Id., at 360, 123 S.Ct. 1536. It is this language that the defendant regards as marking a shift from the usual objective standard to a subjective intent requirement for true threats. We are not persuaded. The language on which the defendant relies is found in part III of Black , which upheld the constitutionality of the intent requirement in the Virginia statute. See id., at 363, 123 S.Ct. 1536 ("[a] ban on cross burning carried out with the intent to intimidate is fully consistent with our holding in R.A.V. [v. St. Paul , 505 U.S. 377, 112 S.Ct. 2538, 120 L.Ed.2d 305 (1992) ] and is proscribable under the First Amendment"). Although this holding declares the constitutionality of the intent requirement for the Virginia statute, it says nothing about the traditional objective standard for true threats. See, e.g., Elonis v. U.S. , supra, 135 S. Ct. at 2016 (Alito, J., concurring) (arguing that objective standard should be applied post- Black ). In other words, the constitutional necessity of a subjective intent was never at issue in part III of Black . Consequently, we decline to read it that way. In part IV of Black , a plurality of four justices went further and found the prima facie provision of the Virginia statute to be unconstitutional on its face. In reaching that conclusion, the plurality noted that "[t]he act of burning a cross may mean that a person is engaging in constitutionally proscribable intimidation. But that same act may mean only that the person is engaged in core political speech. The prima facie evidence provision in this statute blurs the line between these two meanings of a burning cross . [and] makes no effort to distinguish among these different types of cross burnings." Virginia v. Black , supra, 538 U.S. at 365-66, 123 S.Ct. 1536. Whatever reservations we might have about the court's reasoning, the court's ratiocination falls far short of bringing the traditional objective standard into question. In fact, it may even be read as suggesting that the prima facie provision lacked objectivity because it lacked any standard at all. See United States v. Jeffries , 692 F.3d 473, 480 (6th Cir. 2012), overruled on other grounds by Elonis v. United States , supra, 135 S.Ct. at 2001. Consequently, we decline to read Black as marking the sea change to the true threats doctrine that the defendant proposes. Thus the objective standard, which has been the traditional standard in this state for the true threats doctrine, remains valid. Accordingly, § 53a-62(a)(3) is constitutionally sound. Because the defendant's sole challenge to his conviction under § 53a-62(a)(3) was constitutional, our treatment of his claim ends here. The judgment is affirmed. In this opinion the other judges concurred. Number 16-67 of the 2016 Public Acts (P.A. 16-67) amended subsection (a) of § 53a-62 by redesignating the existing subdivisions (2) and (3) as subdivision (2)(A) and (B) without modifying the language of that provision. We refer to the 2015 revision of § 53a-62(a)(3) because that is the statute under which the defendant was charged and convicted. In accordance with our policy of protecting the privacy interest of the victim of a criminal violation of a protective order, we decline to identify the victim or others through whom the victim's identity may be ascertained. During deliberations, the jury submitted a note to the trial court asking who Tracey Morton was, whereupon the court responded that there was no evidence in the record from which that question could be answered. In his appellate brief, the defendant cites to article first, § 9, of the Connecticut constitution, but makes no claim that the double jeopardy protection under our constitution exceeds that provided by the federal constitution. As our appellate courts repeatedly have observed, "the absence of an explicit constitutional double jeopardy provision [in our state constitution] strongly suggests that the incorporated common-law double jeopardy protection mirrors, rather than exceeds, the federal constitutional protection." (Emphasis omitted; internal quotation marks omitted.) State v. Burnell , 290 Conn. 634, 652-53, 966 A.2d 168 (2009). Because the defendant does not claim otherwise, and has not briefed such a claim, we review his double jeopardy claim only under the federal constitution. See State v. Baker , 168 Conn. App. 19, 21 n.5, 145 A.3d 955, cert. denied, 323 Conn. 932, 150 A.3d 232 (2016). Under the well established principles of Golding , as revised in In re Yasiel R., 317 Conn. 773, 781, 120 A.3d 1188 (2015), a defendant can prevail on a claim of constitutional error not preserved at trial only if all of the following conditions are met: (1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation exists and deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt. In the absence of any one of these conditions, the defendant's claim will fail. State v. Golding, supra, 213 Conn. at 239-40, 567 A.2d 823. "The first two [prongs of Golding ] involve a determination of whether the claim is reviewable; the second two . involve a determination of whether the defendant may prevail." (Internal quotation marks omitted.) In re Yasiel R., supra, at 779 n.6, 120 A.3d 1188. At oral argument before this court, the defendant's counsel cited to our Supreme Court's decision in State v. Bernacki , 307 Conn. 1, 52 A.3d 605 (2012), cert. denied, 569 U.S. 918, 133 S.Ct. 1804, 185 L.Ed.2d 811 (2013), for the proposition that it prohibits an inspection of how a protective order was violated for purposes of double jeopardy. To the extent the court's decision in Bernacki can be read that way, it pertains to the application of the same elements analysis from the United States Supreme Court case of Blockburger v. United States , 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932). Because the same elements analysis is not at issue in this case, and neither the defendant nor the state claims that it is, Bernacki does not preclude us from examining the terms of the standing criminal protective order. We are also unpersuaded by the defendant's argument that the use of the word "involves" in § 53a-223a(c) signifies the legislature's intent to make the offense punishable only once. A plain reading of the statute reveals no such intent and, given the unambiguous language of the statute, we will not look for further intent of the legislature not expressed within the statute itself. See Cornelius v. Arnold , 168 Conn. App. 703, 717, 147 A.3d 729 (2016), cert. denied, 324 Conn. 908, 152 A.3d 1245 (2017). By contrast, Larsen appears to be the only published Connecticut case to cite to the dictionary definition that the defendant in this case invokes as a constitutional requirement. Contrary to the defendant's assertions, our Supreme Court had the opportunity to examine these issues post-Elonis in State v. Pelella , 327 Conn. 1, 170 A.3d 647 (2017). After the current case was argued before this court, our Supreme Court decided State v. Taupier , 330 Conn. 149, 193 A.3d 1 (2018), which held that General Statutes § 53a-61aa(a)(3) is not unconstitutional under the free speech provisions of the federal and state constitutions because the specific intent to terrorize the victim was not an element of the crime. Taupier was a case in which all threats directed against the victim were not directly addressed to the victim, but instead, were made to third parties. However, in the case before us, there was direct evidence before the jury from the victim's testimony that the defendant told her that he would kill her. The defendant's conviction was therefore not dependent on other evidence of the defendant's threats against the victim that were voiced to a third-party social worker. We therefore decline the defendant's appellate counsel's postargument suggestion made under Practice Book § 67-10 to review the court's jury charge for plain error, in light of Taupier . Plain error review is a rule of reversibility, which we conclude is inappropriate. In reaching this conclusion we align with a majority of federal appellate courts that has declined to read Black as altering the traditional objective standard. See United States v. Castillo , 564 Fed. Appx. 500, 504 (11th Cir.), cert. denied, - U.S. -, 135 S. Ct. 438, 190 L.Ed. 2d 333 (2014) ; United States v. Clemens , 738 F.3d 1, 12 (1st Cir. 2013) ; United States v. Elonis, 730 F.3d 321, 332 (3d Cir. 2013), rev'd on other grounds, - U.S. -, 135 S.Ct. 2001, 192 L.Ed.2d 1 (2015) ; United States v. Nicklas, 713 F.3d 435, 440 (8th Cir. 2013) ; United States v. Jeffries, supra, 692 F.3d at 479-81 ; United States v. White, 670 F.3d 498, 508 (4th Cir. 2012). We note additionally that the appellate courts in this state have had the opportunity to consider these questions and to revise our jurisprudence in light of Black . See, e.g., State v. Pelella , supra, 327 Conn. at 1, 170 A.3d 647 ; State v. Krijger , supra, 313 Conn. at 434, 97 A.3d 946 ; State v. Tarasiuk , 125 Conn. App. 544, 8 A.3d 550 (2010). Specifically, in Krijger , although our Supreme Court declined to address the question the defendant raises in this claim, it went on to apply the traditional objective standard. See State v. Krijger , supra, at 460, 97 A.3d 946. Given the recent and frequent application of the objective standard for true threats by our Supreme Court, this court is not free to depart from it. State v. Inglis , 151 Conn. App. 283, 293 n.13, 94 A.3d 1204, cert. denied, 314 Conn. 920, 100 A.3d 851 (2014), cert. denied, - U.S. -, 135 S. Ct. 1559, 191 L.Ed. 2d 647 (2015).

12503749

SEASIDE NATIONAL BANK AND TRUST v. Gerald LUSSIER

Seaside Nat'l Bank & Trust v. Lussier

2018-10-16

AC 39040

455

464

197 A.3d 455

197

West's Atlantic Reporter, Third Series

Connecticut Appellate Court

Connecticut

2021-08-27T20:57:41.731571+00:00

Fastcase

SEASIDE NATIONAL BANK AND TRUST v. Gerald LUSSIER

SEASIDE NATIONAL BANK AND TRUST v. Gerald LUSSIER AC 39040 Appellate Court of Connecticut. Argued May 17, 2018 Officially released October 16, 2018 Michael J. Habib, Hartford, for the appellant (defendant). Christopher J. Picard, Hartford, for the appellee (plaintiff). Keller, Elgo and Beach, Js.

4175

25700

BEACH, J. The defendant, Gerald Lussier, also known as Gerald J. Lussier, appeals from the judgment of strict foreclosure rendered in favor of the plaintiff, Seaside National Bank & Trust. On appeal, the defendant claims that the trial court (1) improperly granted the plaintiff's motion for summary judgment as to liability, (2) violated his constitutional right to procedural due process by denying him the opportunity to depose the plaintiff's affiant upon whose testimony the court relied in rendering judgment, and (3) abused its discretion in denying his request for a continuance pursuant to Practice Book § 17-47 and in granting the plaintiff's motion for a protective order. We affirm the judgment of the trial court. The following facts and procedural history are relevant to our discussion. The defendant executed an adjustable rate note, dated July 16, 2009, in favor of Taylor, Bean & Whitaker Mortgage Corporation (Taylor Bean) in the principal amount of $318,131. To secure the note, the defendant executed and delivered a mortgage to Mortgage Electronic Registration System, Inc. (MERS), as nominee for Taylor Bean, on property located at 9 Patterson Place in Old Saybrook, which mortgage was duly recorded. The note was endorsed twice, first by Taylor Bean to the plaintiff and second by the plaintiff in blank. MERS assigned the mortgage to the plaintiff; this assignment was recorded on April 2, 2015. Following a dispute over the amount of monthly mortgage payments and the defendant's decision to stop making payments, the plaintiff commenced the underlying foreclosure action on January 14, 2014. After unsuccessful mediation, the plaintiff filed a motion for summary judgment as to liability on July 17, 2015. The defendant filed a motion for a thirty day extension of time to respond to the motion. The court granted the defendant's motion and the motion for summary judgment was marked ready for a hearing for August 31, 2015. On that day, the defendant filed an objection to the plaintiff's motion for summary judgment, stating that he needed more time to conduct discovery. The defendant also filed a request for a continuance pursuant to Practice Book § 17-47, claiming that he needed to depose the affiant upon whose testimony the plaintiff was relying in support of its motion for summary judgment. On the same day, the defendant's counsel sent a notice of deposition to the plaintiff. The plaintiff subsequently filed a motion for a protective order to prohibit the deposition of the affiant, which the court granted on October 5, 2015. The court granted the defendant one week to respond to the plaintiff's motion for summary judgment. On September 21, 2015, the defendant responded by filing an affidavit in opposition to the plaintiff's motion for summary judgment. On September 25, 2015, the court granted the plaintiff's motion for summary judgment as to liability. The plaintiff subsequently moved for a judgment of strict foreclosure. On March 7, 2016, the day of the hearing for the motion for a judgment of strict foreclosure, the defendant filed an objection to that motion, claiming that he needed to depose the plaintiff's affiant before the court entered final judgment. After hearing argument, the court overruled the defendant's objection and rendered a judgment of strict foreclosure. This appeal followed. Additional facts will be set forth as necessary. I The defendant first claims that the court improperly granted the motion for summary judgment as to liability. Specifically, the defendant argues that there was a genuine issue of material fact as to whether the defendant had defaulted on his mortgage. We disagree. "Our review of the trial court's decision to grant [a] motion for summary judgment is plenary.... [I]n seeking summary judgment, it is the movant who has the burden of showing . the absence of any genuine issue as to all the material facts [that], under applicable principles of substantive law, entitle him to a judgment as a matter of law.... "In order to establish a prima facie case in a mortgage foreclosure action, the plaintiff must prove by a preponderance of the evidence that it is the owner of the note and mortgage, that the defendant mortgagor has defaulted on the note and that any conditions precedent to foreclosure, as established by the note and mortgage, have been satisfied.... Thus, a court may properly grant summary judgment as to liability in a foreclosure action if the complaint and supporting affidavits establish an undisputed prima facie case and the defendant fails to assert any legally sufficient special defense.... "A party opposing summary judgment must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact.... A party may not rely on mere speculation or conjecture as to the true nature of the facts to overcome a motion for summary judgment.... In other words, [d]emonstrating a genuine issue of material fact requires a showing of evidentiary facts or substantial evidence outside the pleadings from which material facts alleged in the pleadings can be warrantably inferred.... A material fact is one that will make a difference in the result of the case.... To establish the existence of a [dispute as to a] material fact, it is not enough for the party opposing summary judgment merely to assert the existence of a disputed issue.... Such assertions are insufficient regardless of whether they are contained in a complaint or a brief.... Further, unadmitted allegations in the pleadings do not constitute proof of the existence of a genuine issue as to any material fact . The issue must be one which the party opposing the motion is entitled to litigate under [its] pleadings and the mere existence of a factual dispute apart from the pleadings is not enough to preclude summary judgment." (Citations omitted; internal quotation marks omitted.) Bank of New York Mellon v. Horsey , 182 Conn. App. 417, 435-36, 190 A.3d 105 (2018). In support of its motion for summary judgment, the plaintiff submitted an affidavit stating that it was the holder of the note prior to commencing the foreclosure action against the defendant. The affidavit stated further that the defendant "failed to make monthly mortgage payments as required by the loan documents since the payment due July 1, 2013, and for each and every month thereafter" and that the defendant was "in default under the loan documents for failure to make payments as required by the terms of the note and mortgage." The defendant filed an objection to the plaintiff's motion for summary judgment, stating that he intended to file a memorandum of law in opposition to the motion after he completed discovery, for which he needed more time. The defendant did not subsequently file a memorandum, but rather filed an affidavit, in which he was the affiant, in opposition to the plaintiff's motion for summary judgment. The affidavit recited in relevant part that in January, 2012, the mortgage servicer (servicer) increased the amount of his monthly mortgage payments, and attributed the increase to changes in required escrow payments for taxes and insurance. The affidavit stated further that the defendant paid the increased amounts for more than a year, but he stopped making payments because he didn't believe that the servicer properly could account for the increased escrow amount. The defendant sought explanations from the servicer, who did not satisfactorily respond. The defendant stated in the affidavit that he then stopped making what he believed to be overpayments. He offered instead to pay the lower monthly amount that he had paid in the past, but the servicer refused to accept the lower amount. The defendant presented evidence showing that he disputed the calculation of his escrow payments, but the defendant's insistence in his affidavit that he did not consider himself to be in default, even though he stopped making payments, was not sufficient to create a genuine issue of material fact as to his default under the terms of the note and mortgage. There were no facts in the affidavit tending to show the allegedly correct amount, or, more critically, to show that he had paid the correct amount. "A party opposing summary judgment must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact.... A party may not rely on mere speculation or conjecture as to the true nature of the facts to overcome a motion for summary judgment.... A material fact is one that will make a difference in the result of the case." (Citation omitted; internal quotation marks omitted.) Bank of New York Mellon v. Horsey , supra, 182 Conn. App. at 436, 190 A.3d 105 ; see also Fidelity Bank v. Krenisky , 72 Conn. App. 700, 715-16, 807 A.2d 968 (no genuine issue of material fact despite timely payments for nine years but subsequent failure to make timely tax payments), cert. denied, 262 Conn. 915, 811 A.2d 1291 (2002). We carefully have reviewed the affidavit submitted by the defendant in opposition to the motion for summary judgment. It recites a history of the course of dealing and, together with an attached copy of an email, suggests amounts by which the defendant reportedly believed he was overcharged. There is, however, no evidence supporting the conclusion of overcharge, and the defendant admitted in his affidavit that he stopped paying his mortgage in its entirety . Evidence showing that the defendant believed that he was not in default was not sufficient to create a genuine issue of fact regarding liability in light of his admission that he stopped making payments and evidence submitted by the plaintiff that he defaulted under the terms of the note. Accordingly, we conclude that the court properly granted the plaintiff's motion for summary judgment. II The defendant next claims that the trial court violated his constitutional right to procedural due process by denying him the opportunity to depose the plaintiff's affiant upon whose testimony the court relied in rendering judgment. Specifically, the defendant argues that a deposition of the plaintiff's affiant was necessary to rebut the facts tending to show that he was in default and to rebut the presumption that the plaintiff was in possession of the note at the time it commenced this foreclosure action. We disagree. The defendant's due process claim presents an issue of law over which our review is plenary. In re Shaquanna M. , 61 Conn. App. 592, 600, 767 A.2d 155 (2001). "Our due process inquiry takes the form of a two part analysis. [W]e must determine whether [the defendant] was deprived of a protected interest, and, if so, what process was [he] due.... The fundamental requisite of due process of law is the opportunity to be heard. . The hearing must be at a meaningful time and in a meaningful manner.... [T]hese principles require that a [party] have . an effective opportunity to defend by confronting any adverse witnesses and by presenting his own arguments and evidence orally." (Citations omitted; internal quotation marks omitted.) Pagan v. Carey Wiping Materials Corp. , 144 Conn. App. 413, 418-19, 73 A.3d 784, cert. denied, 310 Conn. 925, 77 A.3d 142 (2013). "Inquiry into whether particular procedures are constitutionally mandated in a given instance requires adherence to the principle that due process is flexible and calls for such procedural protections as the particular situation demands.... There is no per se rule that an evidentiary hearing is required whenever a liberty [or property] interest may be affected. Due process . is not a technical conception with a fixed content unrelated to time, place and circumstances." (Internal quotation marks omitted.) Id., at 418, 73 A.3d 784. The defendant relies primarily on In re Shaquanna M. , supra, 61 Conn. App. at 592, 767 A.2d 155, and RKG Management, LLC v. Roswell Sedona Associates, Inc. , 142 Conn. App. 366, 68 A.3d 1169 (2013), for the proposition that a denial of the right to cross-examine the affiant who signed the plaintiff's affidavit in support of its motion for summary judgment violated his right to due process. His reliance is misplaced. The facts of the cases relied on differ markedly from those of the present case. In re Shaquanna M. , supra, 61 Conn. App. at 593-94, 767 A.2d 155, was a case in which the respondent's parental rights were terminated. During trial, the lawyer serving as the attorney for the minor children and as guardian ad litem died, and the replacement was denied the opportunity to obtain and read a transcript of prior testimony in the trial which he had not heard. Id., at 595-96, 767 A.2d 155. This court held that, in light of the constitutional interest inherent in the parental relationship, the denial of the continuance for the purpose of obtaining the transcripts affected the ability to defend a constitutionally protected right, and, following a Mathews v. Eldridge analysis, held that the respondent's right to due process had been violated. Id., at 608, 767 A.2d 155. RKG Management, LLC v. Roswell Sedona Associates, Inc. , supra, 142 Conn. App. at 367, 68 A.3d 1169, involved the foreclosure of a mechanic's lien. A witness for the plaintiff testified at trial about the work done on the subject premises but refused to return to court to be cross-examined. Id., at 370-71, 68 A.3d 1169. Despite a request, the trial court refused to strike the witness' testimony and, rather, relied on information provided by the errant witness. Id., at 376-77, 68 A.3d 1169. On these facts, this court held that the defendant's constitutionally protected right to cross-examination had been violated. Id., at 378-79, 68 A.3d 1169. It is undoubtedly correct, then, that the denial of the opportunity to cross-examine, as in RKG Management , or the denial of the opportunity to prepare for trial, as in In re Shaquanna M. , may implicate constitutionally protected rights. Where the party has such an opportunity, but fails to take advantage of that opportunity, the considerations are different. Due process requires the opportunity to be heard; where a party has the opportunity to pursue due process but requests more time, the issue is whether the court's action as to any requested continuance constitutes an abuse of discretion. State v. Bethea , 167 Conn. 80, 83-84, 355 A.2d 6 (1974) ; see also Glastonbury Coalition for Sensible Growth v. Conservation Commission of Glastonbury , Superior Court, judicial district of Hartford, Docket No. CV-02-0820726 (Feb. 10, 2004); Spilke v. Spilke , Superior Court, judicial district of New Haven, Docket No. FA-00-0440636S (March 15, 2002); Practice Book § 17-47 ("the judicial authority may deny the motion for judgment or may order a continuance to permit affidavits to be obtained or discovery to be had or may make such other order as is just" [emphasis added] ). As we previously recited, the court denied the defendant's requests for further continuances to depose the affiant. The court's entire ruling in its memorandum of decision is: "Where, as in the present case, the defendant has had over a year and a half to conduct discovery and has done none, he cannot defeat a motion for summary judgment by asserting that he now needs an opportunity to conduct discovery." III The defendant's final claim is that the trial court abused its discretion in denying his Practice Book § 17-47 request for continuance and in granting the plaintiff's motion for a protective order. Specifically, the defendant argues that in denying his request the court focused on "improper and irrelevant considerations," such as the time spent in mediation and the time granted to the defendant after a previous motion for a continuance he had filed under Practice Book § 17-45. Instead, the defendant argues, the court should have specifically addressed the "merits of [his] request" and considered the importance of the discovery sought, namely, the need to rebut the presumption that the plaintiff had standing. The defendant essentially makes the same arguments in support of his claim that the trial court abused its discretion in granting the plaintiff's motion for a protective order. We are not persuaded. "In the absence of an abuse of discretion, a trial court's decision to deny a motion for continuance pursuant to Practice Book § 382 [now Practice Book § 17-47 ] will not be interfered with by an appellate court.... If a party opposing summary judgment has had ample opportunity to procure the information necessary to defeat the motion, a trial court properly may deny a continuance.... Furthermore, [u]nder [ Practice Book § 17-47 ], the opposing party must show by affidavit precisely what facts are within the exclusive knowledge of the [party to be deposed] and what steps he has taken to attempt to acquire these facts." (Citations omitted; internal quotation marks omitted.) Great Country Bank v. Pastore , 241 Conn. 423, 437-38, 696 A.2d 1254 (1997). After unsuccessful mediation and in response to the plaintiff's demand for a disclosure of defense, the defendant, on May 20, 2015, filed a disclosure of defense stating in relevant part that he "intend[ed] to challenge the plaintiff's alleged right and standing to foreclose upon the subject mortgage in a manner that is consistent with [our] Supreme Court's holding in J.E. Robert Co. v. Signature [Properties ], LLC , 309 Conn. 307, [71 A.3d 492] (2013)." The defendant also filed an answer that same day. Nearly two months later, on July 17, 2015, the plaintiff filed its motion for summary judgment. On July 22, the defendant, pursuant to Practice Book (2015) § 17-45, filed a request for a continuance for thirty days, which the trial court granted, continuing the hearing for the motion to August 31. On August 31, the defendant filed an objection to the motion for summary judgment, along with his request for a continuance under Practice Book § 17-47. The defendant's objection stated simply that he needed time to complete discovery necessary to oppose the motion for summary judgment. Alternatively, the objection asked that the trial court deny the plaintiff's motion pursuant to Practice Book § 17-47. At the conclusion of a colloquy with counsel, the court extended a week in which to file "whatever you want to file ." The issue of whether a court has abused its discretion in denying a continuance is not novel. In Great Country Bank v. Pastore , supra, 241 Conn. at 437-38, 696 A.2d 1254, our Supreme Court noted specifically that a trial court has the discretion to deny a Practice Book § 17-47 request where the proponent of the request has had ample opportunity to procure the information necessary to contest a motion for summary judgment. In Altfeter v. Naugatuck , 53 Conn. App. 791, 805-807, 732 A.2d 207 (1999), this court concluded that the trial court did not abuse its discretion in denying a continuance when the plaintiffs' request for time to gather information to oppose a motion for summary judgment was untimely and the plaintiffs had known for more than three months that they would need time to respond to the motion. The court cited Plouffe v. New York, N.H. & H.R. Co., 160 Conn. 482, 490, 280 A.2d 359 (1971), as follows: "Where, however, the party opposing summary judgment timely presents his affidavit . stating reasons why he is presently unable to proffer evidentiary affidavits he directly and forthrightly invokes the trial court's discretion. Unless dilatory or lacking in merit, the motion should be liberally treated. Exercising a sound discretion the trial court then determines whether the stated reasons are adequate. And, absent abuse of discretion, the trial court's determination will not be interfered with by the appellate court." (Internal quotation marks omitted.) Altfeter v. Naugatuck , supra, at 806, 732 A.2d 207. Similarly, in Bank of America, N.A. v. Briarwood Connecticut, LLC , 135 Conn. App. 670, 676-77, 43 A.3d 215 (2012), this court upheld the trial court's denial of a Practice Book § 17-47 continuance because the defendant had had more than two months to file an affidavit and obtain a continuance. In the present case, the trial court observed that the defendant had had since February, 2015, after the mediation terminated, to attempt discovery. As noted in the court's September 25, 2015 memorandum of decision, "the defendant has had over a year and a half to conduct discovery and has done none ." Under these circumstances, the court did not abuse its discretion in granting the defendant only one week to respond to the plaintiff's motion for summary judgment after his Practice Book § 17-47 request. We also conclude that the trial court did not abuse its discretion in overruling the defendant's objection to the motion for a judgment of strict foreclosure, which was predicated on the defendant's stated need to depose the plaintiff's affiant. The judgment is affirmed. In this opinion the other judges concurred. The defendant claims a due process violation under both the fifth amendment to the the United States constitution and article first, § 8, of the Connecticut constitution. Because the defendant does not supply a "state constitutional analysis of [his] claim pursuant to State v. Geisler, 222 Conn. 672, 684-86, 610 A.2d 1225 (1992), we deem that claim abandoned and analyze [his] . arguments under the requirements of the United States constitution." (Internal quotation marks omitted.) Pagan v. Carey Wiping Materials Corp. , 144 Conn. App. 413, 417 n.10, 73 A.3d 784, cert. denied, 310 Conn. 925, 77 A.3d 142 (2013). "[A] holder of a note is presumed to be the owner of the debt, and unless the presumption is rebutted, may foreclose the mortgage ." Countrywide Home Loans Servicing, LP v. Creed , 145 Conn. App. 38, 48, 75 A.3d 38, cert. denied, 310 Conn. 936, 79 A.3d 889 (2013). See Matthews v. Eldridge , 424 U.S. 319, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976). "The three factors to be considered are (1) the private interest that will be affected by the state action, (2) the risk of an erroneous deprivation of such interest, given the existing procedures, and the value of any additional or alternate procedural safeguards, and (3) the government's interest, including the fiscal and administrative burdens attendant to increased or substitute procedural requirements."In re Shaquanna M. , supra, 61 Conn. App. at 606, 767 A.2d 155. Although the defendant's disclosure of defense states that "[t]he plaintiff intends to challenge the plaintiff's alleged right and standing"; (emphasis added); we understand this to be a typographical error and read it to mean that the defendant intended to challenge the plaintiff's standing. Practice Book (2015) § 17-45 provided that "[a] motion for summary judgment shall be supported by such documents as may be appropriate, including but not limited to affidavits, certified transcripts of testimony under oath, disclosures, written admissions and the like. The motion shall be placed on the short calendar to be held not less than fifteen days following the filing of the motion and the supporting materials, unless the judicial authority otherwise directs. Any adverse party may, within ten days of the filing of the motion with the court, file a request for extension of time to respond to the motion. The clerk shall grant such request and cause the motion to appear on the short calendar not less than thirty days from the filing of the request. Any adverse party shall at least five days before the date the motion is to be considered on the short calendar file opposing affidavits and other available documentary evidence. Affidavits, and other documentary proof not already a part of the file, shall be filed and served as are pleadings." Practice Book § 17-47 provides: "Should it appear from the affidavits of a party opposing the motion that such party cannot, for reasons stated, present facts essential to justify opposition, the judicial authority may deny the motion for judgment or may order a continuance to permit affidavits to be obtained or discovery to be had or may make such other order as is just." The following exchange is pertinent to the trial court's denial of the defendant's objection to the plaintiff's motion for a judgment of strict foreclosure: "[The Defendant's Counsel]: The objection, Your Honor, is that we had requested a deposition of the plaintiff's affiant which it relied upon to seek a judgment on liability with the court. When we set up that deposition, the plaintiff filed a motion for protective order which was granted by the court. "Your Honor, we think the recent case cited from the Appellate Court in which the Appellate Court overturned a judgment for foreclosure on the basis that the defendant was denied the right to cross-examine a key witness in the case, which we believe we have here, Your Honor. The plaintiff's affiant was necessary for its claim for judgment in this case and to enter a final judgment without . having the opportunity to cross-examine, Your Honor, we believe violates due process protections under both the federal and state constitutions. "The Court: Well . there were eleven mediations here. There was no trial. So there was no inability to cross-examine anyone. There was no defense disclosed. Summary judgment was granted. So I'm going to have to overrule your objection."

12511345

DEPARTMENT OF TRANSPORTATION v. WHITE OAK CORPORATION

Dep't of Transp. v. White Oak Corp.

2019-08-20

SC 20131

459

467

213 A.3d 459

213

West's Atlantic Reporter, Third Series

Connecticut Supreme Court

Connecticut

2021-08-27T20:58:09.224733+00:00

Fastcase

DEPARTMENT OF TRANSPORTATION v. WHITE OAK CORPORATION

DEPARTMENT OF TRANSPORTATION v. WHITE OAK CORPORATION SC 20131 Supreme Court of Connecticut. Argued November 8, 2018 Officially released August 20, 2019 Kerry M. Wisser, West Hartford, with whom, on the brief, was Sarah Black Lingenheld, Farmington, for the appellant (defendant). Christine Jean-Louis, assistant attorney general, with whom, on the brief, was George Jepsen, Hartford, former attorney general, for the appellee (plaintiff). Palmer, McDonald, Mullins, Kahn and Ecker, Js.

3652

22498

MULLINS, J. After an arbitration proceeding, the defendant, White Oak Corporation (White Oak), was awarded a money judgment against the plaintiff, the Department of Transportation (department) in the amount of $8,362,308.41 plus interest. In paying that judgment on behalf of the department, the Office of the State Comptroller (comptroller) withheld $1,642,312.14 for taxes White Oak had owed to the state. As a result of this withholding, White Oak filed a motion with the trial court seeking a determination as to whether the judgment had been satisfied. In its motion, White Oak asserted that the department did not fully satisfy its judgment because, during a prior arbitration proceeding between the parties, the department had alleged but failed to prove its claim for taxes owed to the state and that, thus, the doctrine of collateral estoppel precluded the comptroller from reducing the payment by any amount for taxes owed. The trial court rejected White Oak's claim and determined that the judgment had been satisfied. The defendant now appeals from the trial court's determination, again alleging that collateral estoppel precluded the comptroller from withholding the taxes owed to the state. We agree with the trial court that the department satisfied its judgment to White Oak because General Statutes § 12-39g imposed a mandatory obligation on the comptroller to reduce the amount paid to White Oak by the amount of taxes owed to the state as those taxes were not the subject of a timely filed administrative appeal. Accordingly, we affirm the judgment of the trial court. The record reveals the following facts and procedural history. In 1994, the parties, White Oak and the department, entered into a contract for construction of the Tomlinson Bridge in New Haven. Nearly three years later, the parties entered into a second contract for reconstruction of the Yellow Mill Pond Bridge in Bridgeport. Both projects were beset by considerable delays and conflicts between the parties. As a result, in 2000, the parties entered into an agreement to reassign the contracts to a different contractor. Thereafter, White Oak filed notices of claims and corresponding demands for arbitration for each project pursuant to General Statutes § 4-61 (b) claiming, inter alia, wrongful termination of each contract. The matter relating to the Tomlinson Bridge was the first to proceed to arbitration (Tomlinson arbitration). In its answer to White Oak's revised amended demand, the department asserted various setoffs and counter-claims, only one of which is relevant here. The relevant counterclaim alleged that "[White Oak] presently has a tax debt due and owing to the state." During arbitration, no evidence was adduced regarding the tax claim and neither party addressed it during oral argument. In 2004, the Tomlinson arbitration panel issued its award, rejecting White Oak's wrongful termination claim and awarding the department $1,169,648.33 in damages. With regard to the department's claim for a tax debt owed to the state, the panel ruled that "[the department] introduced no credible evidence of a tax debt due to the [state] and therefore failed to carry its burden of proof." The matter relating to the Yellow Mill Pond Bridge subsequently proceeded to arbitration (Bridgeport arbitration). In 2009, the panel issued an award to White Oak in the amount of $8,362,308.41 plus interest. In response, the department filed an application to vacate, correct or modify that award pursuant to General Statutes § 52-418, 52-419, and 52-420, and White Oak filed an application to confirm the arbitration award pursuant to General Statutes § 52-417. The trial court denied the department's application to vacate, correct or modify the award and granted White Oak's application to confirm the award. The department appealed from the judgment of the trial court to the Appellate Court. The Appellate Court reversed the judgment of the trial court and remanded the case with direction to vacate the arbitration award. White Oak then filed a petition for certification to appeal to this court, which was granted. In Dept. of Transportation v. White Oak Corp. , 319 Conn. 582, 623, 125 A.3d 988 (2015), this court reversed the judgment of the Appellate Court and remanded the case to that court with direction to affirm the judgment of the trial court, thereby confirming the arbitration award in favor of White Oak. Following this court's decision, White Oak sought payment of the judgment from the comptroller. The comptroller complied with White Oak's request for payment, however, when issuing the payment on behalf of the department, the comptroller reduced the amount paid by $1,642,312.14 for taxes owed to the state pursuant to § 12-39g. Specifically, the comptroller reduced the amount paid by $1,231,350.36 for taxes White Oak owed to the Department of Revenue Services and by $410,961.78 for taxes it owed to the Department of Labor. Thereafter, White Oak filed a motion seeking a determination as to whether the judgment had been satisfied. In that motion, White Oak asserted that the department did not fully satisfy its judgment because the comptroller reduced the amount paid by the amount of taxes owed. White Oak claimed that, because the Tomlinson arbitration panel determined that the department had not proven its claim for taxes owed to the state, the doctrine of collateral estoppel precluded the comptroller from reducing the payment by any amount for taxes. In its memorandum of decision on White Oak's motion, the trial court concluded that the department had not failed to satisfy its judgment to White Oak. The court determined that the doctrine of collateral estoppel did not preclude the comptroller from reducing the payment to White Oak by the amount of taxes owed because that issue was never fully and fairly litigated in the Tomlinson arbitration. It further determined that § 12-39g imposed a separate statutory obligation on the comptroller to reduce the payment to White Oak by the amount of taxes owed. Thus, the trial court denied White Oak's motion seeking a determination that the prior money judgment had not been satisfied. In accordance with that denial, the trial court amended the judgment file to indicate that the department had fully satisfied the judgment against it. This appeal followed. We begin by setting forth the standard of review and the relevant principles of law governing White Oak's claims. Until a judgment has been satisfied, courts have jurisdiction over all parties in an action. General Statutes § 52-350d (a). Moreover, parties may request a determination from the court as to whether a judgment has been satisfied. Practice Book § 6-5. In making that determination, a trial court must consider whether the following prerequisites have been met. "First, the judgment creditor must have obtained a valid money judgment against the judgment debtor. Second, the judgment debtor must have paid the amount of that judgment. In so doing, the court must find that the judgment debtor either made actual payment to the judgment creditor or a payment equivalent thereto." Coyle Crete, LLC v. Nevins , 137 Conn. App. 540, 552, 49 A.3d 770 (2012). In the present case, the parties do not dispute whether White Oak obtained a valid money judgment against the department. See Dept. of Transportation v. White Oak Corp. , supra, 319 Conn. at 582, 125 A.3d 988. Instead, the issue in the present appeal is whether the comptroller's reduction of the payment by the amount of taxes owed by White Oak to the state caused the department to fail to satisfy the judgment. Our resolution of this question requires us to interpret the statutory scheme by which the state effectuates the payment of judgments against it, which "presents a question of statutory construction over which we exercise plenary review.... When construing a statute, [o]ur fundamental objective is to ascertain and give effect to the apparent intent of the legislature.... In other words, we seek to determine, in a reasoned manner, the meaning of the statutory language as applied to the facts of [the] case, including the question of whether the language actually does apply.... In seeking to determine that meaning . § 1-2z directs us first to consider the text of the statute itself and its relationship to other statutes. If, after examining such text and considering such relationship, the meaning of such text is plain and unambiguous and does not yield absurd or unworkable results, extratextual evidence of the meaning of the statute shall not be considered." (Internal quotation marks omitted.) Independent Party of CT-State Central v. Merrill , 330 Conn. 681, 704, 200 A.3d 1118 (2019). We turn next to examining the relevant statutory scheme. As this court previously has explained, a plaintiff must either have an explicit statutory waiver of sovereign immunity or seek a waiver from the claims commissioner before bringing an action for monetary damages against the state in the Superior Court. See Miller v. Egan , 265 Conn. 301, 318, 828 A.2d 549 (2003). Once a party either receives a waiver from the claims commissioner or proceeds under an explicit statutory waiver, the action against the state proceeds pursuant to the statutory scheme set forth in chapter 53 of the General Statutes, which is entitled "Claims Against the State." If the action results in a judgment against the state, that statutory scheme provides a process by which payment of the judgment is made by the state. See General Statutes § 4-160 (j). Specifically, the statutory scheme directs that the comptroller, not the specific state agency involved in the litigation, makes payments of all judgments against the state. The statute explicitly instructs that "the clerk of the court in which judgment is entered against the state shall forward a certified copy of such judgment to the Comptroller. The Attorney General shall certify to the Comptroller when the time allowed by law for proceeding subsequent to final judgment has expired and the Attorney General shall designate the state agency involved in the action. Upon receipt of such judgment and certification the Comptroller shall make payment ." General Statutes § 4-160 (j). In carrying out its obligation to make such payments on behalf of the state, the comptroller is guided by a related statute, § 12-39g. That statute, which is contained within chapter 202 of the General Statutes, entitled "Collection of State Taxes," imposes specific requirements on the comptroller when undertaking the payment of judgments against the state. Thus, this taxing statute must also be considered part of the statutory scheme governing the payment of judgments against the state. Section 12-39g (a) provides in relevant part: "Upon notification to the Comptroller by the Commissioner of Revenue Services that any taxes, including penalties and interest related thereto, are (1) due to the state from any person and unpaid and a period in excess of thirty days has elapsed following the date on which such taxes were due and (2) are not the subject of a timely filed administrative appeal to said commissioner or of a timely filed appeal pending before any court of competent jurisdiction, the Comptroller shall withhold any order upon the Treasurer for payment of any amount payable by the state to such person unless the amount so payable is reduced by the amount of such taxes, penalties and interest ." The plain language of § 12-39g provides that, once the comptroller is notified that taxes are owed and that the taxes are not the subject of a timely filed administrative appeal, he must reduce any amount payable to the person or entity owing taxes by the amount of taxes owed. Indeed, § 12-39g provides that "the Comptroller shall withhold any order upon the Treasurer for payment of any amount payable by the state to such person unless the amount so payable is reduced by the amount of such taxes, penalties and interest ." (Emphasis added.) Put a different way, the plain language of § 12-39g thus provides the comptroller with two choices-either withhold payment of the judgment in its entirety or reduce the payment by the amount of taxes owed. The use of the term "shall" in § 12-39g is noteworthy. "In interpreting statutory text, this court has often stated that the use of the word shall, though significant, does not invariably create a mandatory duty.... The usual rule, however, is that [t]he . use of the word shall generally evidences an intent that the statute be interpreted as mandatory." (Internal quotation marks omitted.) DeMayo v. Quinn , 315 Conn. 37, 43, 105 A.3d 141 (2014), quoting Stewart v. Tunxis Service Center , 237 Conn. 71, 78, 676 A.2d 819 (1996). Therefore, although not dispositive, the use of the phrase "[t]he Comptroller shall withhold" in § 12-39g suggests a mandatory obligation on the part of the comptroller to either reduce the payment by the amount of taxes owed or to withhold such payment entirely. (Emphasis added.) The fact that § 12-39g uses the term "shall" in conjunction with the term "unless" provides further support for our understanding that it creates a mandatory obligation on the part of the comptroller to reduce the payment by taxes owed. See Pereira v. State Board of Education , 304 Conn. 1, 15, 37 A.3d 625 (2012) (concluding that General Statutes [Rev. to 2011] § 10-223e [h], which combined use of the terms shall and unless, "conveys a mandatory procedure to be followed" by State Board of Education); cf. Caulkins v. Petrillo , 200 Conn. 713, 717, 513 A.2d 43 (1986) (concluding that General Statutes [Rev. to 1985] § 20-429 [a], which uses both shall and unless, created mandatory requirement). "The test to be applied in determining whether a statute is mandatory or directory is whether the prescribed mode of action is the essence of the thing to be accomplished, or in other words, whether it relates to a matter of substance or a matter of convenience.... If it is a matter of substance, the statutory provision is mandatory. If, however, the legislative provision is designed to secure order, system and dispatch in the proceedings, it is generally held to be directory, especially where the requirement is stated in affirmative terms unaccompanied by negative words." (Internal quotation marks omitted.) Katz v. Commissioner of Revenue Services , 234 Conn. 614, 617, 662 A.2d 762 (1995). As we have explained previously in this opinion, § 12-39g is a part of the statutory scheme to collect taxes. Indeed, the collection of taxes is the essence of the comptroller's duty under § 12-39g. On the basis of the foregoing, we conclude that § 12-39g not only is an independent statutory basis by which the comptroller can reduce a payment by the amount of taxes owed, but creates a mandatory obligation on the part of the comptroller either to do so or to not issue a payment at all. In the present case, White Oak brought its action pursuant to § 4-61, which is a specific statutory waiver of the state's sovereign immunity with respect to certain claims arising under public works contracts. See footnote 1 of this opinion. Once White Oak obtained a judgment against the state, it proceeded to follow the statutory scheme set forth in chapter 53 of the General Statutes, which is entitled "Claims Against the State." Specifically, pursuant to § 4-160 (j), White Oak requested that the clerk issue a certified copy of the judgment to the comptroller, and the clerk did so. The comptroller, having been notified that White Oak owed taxes to the Department of Labor and the Department of Revenue Services and that those taxes were not the subject of a timely filed administrative appeal, paid the judgment after reducing the amount payable by the amount of taxes owed in accordance with § 12-39g. As we have explained previously in this opinion, the comptroller is obligated to reduce the payment by the amount of taxes owed, unless they are the subject of a timely filed administrative appeal. In the present case, White Oak does not assert that the taxes withheld by the comptroller were the subject of a timely filed administrative appeal. Instead, White Oak asserts that the Tomlinson arbitration resulted in a determination that it did not owe any taxes. Nonetheless, nothing in the plain language of § 12-39g allows the comptroller to not reduce the payment to White Oak by taxes owed because those taxes were not the subject of a timely filed administrative appeal. Accordingly, we conclude that the comptroller properly exercised his statutorily created obligation to reduce the payment to White Oak by the amount of taxes owed. White Oak asserts that, under the doctrine of collateral estoppel, the comptroller was barred from reducing the payment to White Oak by the amount of taxes owed. We disagree. "Application of the doctrine of collateral estoppel is neither statutorily nor constitutionally mandated. The doctrine, rather, is a judicially created rule of reason that is enforced on public policy grounds." (Internal quotation marks omitted.) Cumberland Farms, Inc. v. Groton , 262 Conn. 45, 58-59, 808 A.2d 1107 (2002). We also have explained that "[c]ourts should be careful that the effect of the doctrine does not work an injustice.... Thus, [t]he doctrines of preclusion . should be flexible and must give way when their mechanical application would frustrate other social policies based on values equally or more important than the convenience afforded by finality in legal controversies." (Citation omitted; internal quotation marks omitted.) Id., at 59-60, 808 A.2d 1107. The application of the doctrine of collateral estoppel is a legal question, over which we exercise plenary review. See, e.g., Lighthouse Landings, Inc. v. Connecticut Light & Power Co. , 300 Conn. 325, 345, 15 A.3d 601 (2011). Because we conclude that, pursuant to § 12-39g, the comptroller was obligated to reduce the payment to White Oak by the amount of taxes owed because they were not the subject of a timely filed administrative appeal, we decline to apply the doctrine of collateral estoppel in the present case. As we have explained previously in this opinion, the comptroller's obligation pursuant to § 12-39g is part of a comprehensive scheme for the collection of taxes and that scheme allowed White Oak to file a timely administrative appeal to challenge those taxes. White Oak did not avail itself of that opportunity and allowing it to avoid its tax obligation now through a mechanical application of collateral estoppel would frustrate the well recognized social policy of tax collection. The judgment is affirmed. In this opinion the other justices concurred. General Statutes § 4-61 provides in relevant part: "(a) Any person, firm or corporation which has entered into a contract with the state, acting through any of its departments, commissions or other agencies, for the design, construction, construction management, repair or alteration of any highway, bridge, building or other public works of the state or any political subdivision of the state may, in the event of any disputed claims under such contract or claims arising out of the awarding of a contract by the Commissioner of Administrative Services, bring an action against the state to the superior court for the judicial district of Hartford for the purpose of having such claims determined . "(b) As an alternative to the procedure provided in subsection (a) of this section, any such person, firm or corporation having a claim under said subsection (a) may submit a demand for arbitration of such claim or claims for determination under (1) the rules of any dispute resolution entity, approved by such person, firm or corporation and the agency head and (2) the provisions of subsections (b) to (e), inclusive, of this section ." General Statutes § 12-39g (a) provides: "Upon notification to the Comptroller by the Commissioner of Revenue Services that any taxes, including penalties and interest related thereto, are (1) due to the state from any person and unpaid and a period in excess of thirty days has elapsed following the date on which such taxes were due and (2) are not the subject of a timely filed administrative appeal to said commissioner or of a timely filed appeal pending before any court of competent jurisdiction, the Comptroller shall withhold any order upon the Treasurer for payment of any amount payable by the state to such person unless the amount so payable is reduced by the amount of such taxes, penalties and interest, provided any such amount payable by the state shall not be so reduced if such amount payable is a payment of salary or wages, or any payment in lieu of or in addition to such salary or wages, to a state employee. The Comptroller shall promptly notify the Commissioner of Revenue Services of any payment reduced under the provisions of this section." White Oak appealed to the Appellate Court, and we transferred that appeal to this court pursuant to Practice Book § 65-1 and General Statutes § 51-199. General Statutes § 4-160 (j) provides: "The clerk of the court in which judgment is entered against the state shall forward a certified copy of such judgment to the Comptroller. The Attorney General shall certify to the Comptroller when the time allowed by law for proceeding subsequent to final judgment has expired and the Attorney General shall designate the state agency involved in the action. Upon receipt of such judgment and certification the Comptroller shall make payment as follows: Amounts directed by law to be paid from a special fund shall be paid from such special fund; amounts awarded upon contractual claims for goods or services furnished or for property leased shall be paid from the appropriation of the agency which received such goods or services or occupied such property; all other amounts shall be paid from such appropriation as the General Assembly may have made for the payment of claims."

12503191

Anthony V. GUDDO v. Kimberli M. GUDDO

Guddo v. Guddo

2018-10-09

AC 40004

1246

1249

196 A.3d 1246

196

West's Atlantic Reporter, Third Series

Connecticut Appellate Court

Connecticut

2021-08-27T20:57:41.731814+00:00

Fastcase

Anthony V. GUDDO v. Kimberli M. GUDDO

Anthony V. GUDDO v. Kimberli M. GUDDO AC 40004 Appellate Court of Connecticut. Argued September 6, 2018 Officially released October 9, 2018 Anthony V. Guddo, self-represented, the appellant (plaintiff). Keith Anthony, for the appellee (defendant). Keller, Bright and Pellegrino, Js.

1055

6493

PER CURIAM. The self-represented plaintiff, Anthony V. Guddo, appeals from the judgment of the trial court denying the postdissolution motion for contempt that he brought against the defendant, Kimberli M. Guddo. The plaintiff claims that because of a conflict of interest related to the defendant's counsel, the hearing on the motion for contempt was unfair. We affirm the judgment of the trial court. The record reflects that, in August, 2015, the court, Goodrow, J. , dissolved the parties' marriage and entered financial orders. Thereafter, the plaintiff brought several contempt motions against the defendant in which he alleged that she wilfully failed to comply with the court's orders. On May 23, 2016, the plaintiff filed the contempt motion underlying the present appeal. Therein, he alleged, among other things, that, in violation of prior orders, the defendant failed to make money payments to him and failed to return personal property belonging to him. The plaintiff filed the motion for contempt as a self-represented litigant, appeared as a self-represented litigant during the relevant proceedings before the trial court, and appears as a self-represented litigant in the present appeal. In June, 2016, the court granted the defendant's motion for the appointment of counsel to represent her in connection with the plaintiff's motion. Thereafter, the defendant was represented at trial by Bansley, Anthony, Burdo, LLC, and is so represented in the present appeal. The court held a hearing on the plaintiff's motion for contempt on November 16, 2016. On December 7, 2016, the court rendered judgment denying the contempt motion, finding that the defendant did not wilfully fail to comply with its orders. This appeal followed. The plaintiff, who was incarcerated during the underlying proceedings, states in his appellate brief that when the court held a hearing on his motion for contempt, both he and the defendant were "represented" by the same law firm, namely, Bansley, Anthony, Burdo, LLC. He states that one or more persons associated with the firm not only provided legal assistance to him with respect to "incarceration issues" in connection with "the Inmate Legal Aid Program," but also that the firm provided assistance to him related to the present "case" involving the defendant. The plaintiff baldly asserts that the firm violated numerous rules of professional conduct and that a conflict of interest existed. As a result of this impropriety on the part of the defendant's counsel, the plaintiff argues, the hearing on the motion for contempt was "unfair." These arguments make up the only claim advanced by the plaintiff in the present appeal. The record provided to this court does not reflect that the plaintiff raised the present claim, or any objection related to the defendant's counsel, before the trial court. The defendant argues that the plaintiff did not raise this claim during the hearing or at any time prior to the present appeal and, responding to this critique, the plaintiff acknowledges that the present claim is unpreserved. Moreover, the record is devoid of evidence to support the factual representations underlying the plaintiff's conflict of interest claim, which are made for the first time on appeal. Not surprisingly, it does not appear in the record that the court considered the claim, resolved any of the distinct factual issues that arise from the claim, or ruled on the merits of the claim. "Our appellate courts, as a general practice, will not review claims made for the first time on appeal.... [A]n appellate court is under no obligation to consider a claim that is not distinctly raised at the trial level.... [B]ecause our review is limited to matters in the record, we [also] will not address issues not decided by the trial court.... The purpose of our preservation requirements is to ensure fair notice of a party's claims to both the trial court and opposing parties.... These requirements are not simply formalities. They serve to alert the trial court to potential error while there is still time for the court to act.... The reason for the rule is obvious: to permit a party to raise a claim on appeal that has not been raised at trial-after it is too late for the trial court or the opposing party to address the claim-would encourage trial by ambuscade, which is unfair to both the trial court and the opposing party." (Citations omitted; internal quotation marks omitted.) Gartrell v. Hartford , 182 Conn. App. 526, 537, 190 A.3d 904 (2018) ; see also Practice Book § 60-5 (generally appellate court is not bound to consider claim not distinctly raised at trial or arising subsequent to trial). There is no indication in the record before us that the plaintiff distinctly raised the present claim before the trial court and he does not argue, nor do we believe, that it would be appropriate to afford any extraordinary level of review to the claim. Accordingly, we decline to review the plaintiff's unpreserved claim. The judgment is affirmed. On November 7, 2016, the plaintiff filed a motion to amend his motion for contempt. By agreement of the parties, the court considered the plaintiff's motion to amend on the papers. At the time that it rendered its judgment on the motion for contempt, the court noted that it had granted the motion to amend, but had denied the plaintiff any relief with respect to the amended claims. In her appellate brief, the defendant states that Bansley, Anthony, Burdo, LLC, never represented the plaintiff in any matter and that the firm has not received any confidential information concerning the plaintiff. Thus, the defendant disputes that any conflict of interest existed or that the firm violated any rules of professional conduct. Furthermore, we observe that although it is the plaintiff's burden to furnish this court with a record adequate to review the claim that the November 16, 2016 hearing was unfair; see Practice Book § 61-10 ; he has not provided this court with a copy of the transcript of the hearing. Instead, the plaintiff filed a certificate with the appellate clerk stating that no transcript was necessary in connection with this appeal. See Practice Book § 63-4 (a) (2).

12503185

Thomas BROCHARD v. Britt BROCHARD

Brochard v. Brochard

2018-10-02

AC 38957

1171

1199

196 A.3d 1171

196

West's Atlantic Reporter, Third Series

Connecticut Appellate Court

Connecticut

2021-08-27T20:57:41.731814+00:00

Fastcase

Thomas BROCHARD v. Britt BROCHARD

Thomas BROCHARD v. Britt BROCHARD AC 38957 Appellate Court of Connecticut. Argued April 12, 2018 Officially released October 2, 2018 Britt Brochard, self-represented, the appellant (defendant). Thomas Brochard, self-represented, the appellee (plaintiff). Keller, Prescott and Bright, Js.

14657

89684

KELLER, J. The defendant, Britt Brochard, appeals from the postdissolution judgment of the trial court rendered after a hearing on financial issues raised by the parties in multiple motions for contempt and modification. The self-represented defendant's brief is not a model of clarity, but after a thorough review of the record and the parties' briefs, we have divined that the defendant claims that the court erred in (1) denying her motion for contempt alleging that the plaintiff, Thomas Brochard, had failed to pay his share of the minor children's medical and extracurricular activity expenses; (2) denying her motion for contempt alleging that the plaintiff had violated orders related to the mortgage on the former marital home; (3) denying her motion for contempt alleging that the plaintiff had failed to pay her one half of the amounts of 2010 tax refunds he received; (4) denying her motion for modification of the court's order allocating the parties' obligation pertaining to payment of the guardian ad litem's fees; (5) granting the plaintiff's motion for modification of child support, thereby decreasing his obligation, and failing to consider her cross motion for modification, which sought an increase in the amount of child support; and (6) granting her motion for contempt regarding certain alimony payments, but failing to order the plaintiff to pay her the full amount she was owed. We affirm the judgment of the trial court. The following facts, as determined by multiple judges who have presided over pertinent proceedings in this case, and procedural history are relevant to this appeal. On July 6, 2011, the court, Gordon, J ., dissolved the parties' marriage. In its memorandum of decision, the court found that the parties were married on August 27, 1995, in Ridgefield. They have two children, born in 1997 and 1999. The plaintiff initiated the divorce action in 2008, following the parties' separation. The court found that the marriage had irretrievably broken down and issued the following orders relevant to this appeal. It ordered the plaintiff to pay to the defendant child support in the amount of $342 per week, in accordance with the child support guidelines, on the basis of his yearly income of $85,441.72. It also ordered that he maintain medical and dental insurance for the benefit of the minor children if such insurance coverage was available through his employment. Additionally, the court ordered each of the parties to pay 50 percent of all unreimbursed, uninsured health related expenses for the minor children. The defendant was to submit the bill or statement for such expenses to the plaintiff within one week of receipt, and he was to pay it within one week. Each of the parties was responsible for one half of all reasonably incurred extracurricular expenses for the children. The court further ordered that the plaintiff pay to the defendant alimony of $350 per week until the earliest to occur of the following events: the death of either party, the remarriage of the defendant, June 30, 2021, or as otherwise provided for by law. The court stated that its order was subject to immediate wage withholding. As additional alimony, and subject to the same termination contingencies as the weekly order of alimony, the plaintiff was to pay, quarterly, 30 percent of all gross income earned from wages, self-employment, commissions, incentives, bonuses or other payment plan in excess of $90,000 per year ($22,500 per quarter), but less than $150,000 per year, and 20 percent of any such amounts between $150,000 and $200,000 per year. Every quarter, the plaintiff was to forward to the defendant proof of his earnings for the previous quarter together with any payment due. The court ordered the parties to file a joint tax return for 2010. The plaintiff was responsible for any taxes due and owing for that year, and any refund would be divided equally. The court awarded all right, title and interest in the marital home to the defendant, who would be responsible for all costs associated with the home. The court also approved and incorporated into the judgment the terms of a parenting agreement between the parties dated March 25, 2011, which established joint legal custody of the children with primary residence with the defendant. Protracted postdissolution proceedings commenced almost immediately after the court rendered the judgment of dissolution. In setting forth some of the postdissolution procedural history, we rely, in part, on our earlier opinion in Brochard v. Brochard , 165 Conn. App. 626, 140 A.3d 254 (2016) ( Brochard I ). "On July 20, 2011, the defendant filed a postjudgment motion for order, alleging that the plaintiff had not made payments on the mortgage on the family home since March, 2011. The mortgage was solely in his name. The defendant requested that 'the plaintiff be required to bring the mortgage current, including all attorneys' fees and other charges.' In the alternative, the defendant move[d] that the plaintiff be required to immediately provide the bank with authorization to speak directly to the defendant, timely file all necessary paperwork in the foreclosure action to allow the parties to participate in the foreclosure mediation . attend the foreclosure mediation sessions along with the defendant, and . agree to any resolution the defendant comes to with the bank." Id., at 629, 140 A.3d 254. The plaintiff objected to this motion. Judge Gordon heard the motion for order, granting it in part and denying it in part, on August 12, 2011. The nature of these orders is discussed more thoroughly in part II A of this opinion. On February 5, 2013, the plaintiff filed a motion to modify custody and child support, to which the defendant objected. The plaintiff claimed a substantial change in circumstances making it in the children's best interests for him to have primary physical custody and also sought a modification of his child support obligation. On April 26, 2013, the defendant filed a motion for modification seeking an increase in the child support order. On May 2, 2013, the parties agreed in writing that the plaintiff's motion would not go forward, but further agreed that he could seek retroactivity of any subsequent order(s) regarding child support. That written agreement was approved and made an order of the court. It indicates: "The [plaintiff's] motion to modify child support shall go off with orders retroactive to today. However, the [plaintiff] retains the right to seek retroactivity to the [date of] filing of the motion." Also on May 2, 2013, as part of the same written agreement the parties agreed that a guardian ad litem would be appointed for the parties' then two minor children. They agreed that the percentage of payment for the guardian ad litem's legal fees would be argued upon completion of some outstanding discovery. Attorney Susan E. Nugent was appointed as guardian ad litem. On May 24, 2013, the defendant moved that the plaintiff be ordered to pay the entirety of Nugent's fees. On February 6, 2014, the court, Munro, J. , ordered that the plaintiff pay 80 percent and the defendant pay 20 percent of Nugent's fees. Judge Munro found that Nugent's fees totaled $5400, and that the plaintiff already had paid $2500 toward that amount as a retainer. The defendant had paid nothing despite Nugent's request of a similar retainer from her. The court ordered that the plaintiff would be responsible for $4320 and that the defendant would be responsible for $1080. Both parties were ordered to make payments to Nugent within fourteen days. On June 16, 2014, the defendant moved for an order reallocating the percentage payment obligations ordered by Judge Munro, alleging that she did not have sufficient income or assets to continue to pay her 20 percent share. The plaintiff objected to the defendant's motion for order and requested that either the defendant pay all of Nugent's fees, or, in the alternative, that the parties continue to pay pursuant to Judge Munro's allocated order. On April 26, 2013, the defendant filed a motion for contempt with respect to the payment of medical and activity expenses, claiming that the plaintiff had failed to pay his 50 percent share of some of the children's extracurricular expenses and unreimbursed medical and dental expenses, which he was required to pay pursuant to the parenting agreement. On April 16, 2014, the defendant filed a motion to compel, which supplemented an earlier motion to compel she had filed on March 24, 2014 claiming, inter alia, that the plaintiff should be ordered to pay her one half of the federal and state tax refunds he had received for the year 2010 and to reimburse her for an estimated tax payment she made that year, which she claimed was ordered by Judge Gordon in the dissolution judgment. "On November 13, 2013, the defendant filed a motion for contempt, claiming that the plaintiff had violated Judge Gordon's August 12, 2011 order [with respect to the mortgage on the marital home] by, inter alia, failing to execute an authorization allowing the defendant to speak with and represent the plaintiff with the mortgage loan holder, Wells Fargo, as the mortgage has been in the name of the plaintiff solely; said authorization to make [the] defendant the plaintiff's authorized agent for conversing, negotiating, entering into an agreement, all that kind of stuff with Wells Fargo to modify the mortgage loan to avoid foreclosure. Said authorization was to be specific that she has the authority." (Internal quotation marks omitted.) Brochard I , supra, 165 Conn. App. at 631, 140 A.3d 254. In this contempt motion, the defendant further claimed that she had successfully renegotiated the mortgage loan, cancelled all the late fees and reduced the monthly payments, but that the plaintiff deliberately had interfered and caused the renegotiated plan to be cancelled, thereby forcing imminent foreclosure of the home. She further alleged that the plaintiff had violated other orders of Judge Gordon that he would be responsible for any attorney's fees, interest and/or penalties relating to any foreclosure action on the marital home, that he provide the defendant with any documentation he received from the lender bank, and that he bring the outstanding mortgage on the family home current for the months of March through July, 2011. "The defendant's motion for contempt [regarding the mortgage] was heard by the court, Munro, J ., on November 14, 2013. Judge Munro examined an authorization agreement drafted by the defendant's attorney and asked if the plaintiff consented to it. The plaintiff's attorney replied that he did not, due to language that stated that the defendant would 'have full and complete authority to negotiate, agree and execute proposed settlements with said mortgage[e].' The plaintiff was concerned that this language would permit the defendant to extend the term of the mortgage, thereby further tying up his ability to obtain a new mortgage for a house of his own. The court subsequently told the defendant that 'if he signs something that allows you to negotiate, it should not be something that puts him on the hook for any more liability than he has now. Do you understand that?' The defendant replied that she believed that the intent of Judge Gordon's order was to allow modification of the loan, and that Judge Munro should consult the full transcript containing Judge Gordon's order. Thereupon, Judge Munro stated: 'I'm going to stop. I hear you. This is a complicated problem. It's not going to be dealt with on short calendar with an audience full of people waiting. I'm going to give you a three day hearing, and this will be rolled into the three day hearing.' Following the short calendar hearing, on November 26, 2013, the plaintiff filed an objection to the defendant's motion for contempt, attaching an authorization form and asserting that 'Judge Munro has already told the defendant that Judge Gordon did not intend that the defendant could expand the plaintiff's exposure under the new mortgage.' "The case subsequently was transferred to the regional family trial docket. At a hearing on February 6, 2014, regarding the transfer, Judge Munro asked, '[a]ll right, and the motions I sent to regional are motions regarding modification of custody. Any financial motions at all?' The defendant replied: 'A number of financial motions, there's a motion outstanding for contempt on not paying half the children's expenses; contempt on medical expenses; contempt on alimony; [and] contempt on not signing the authorization for me to be able to modify the home.' Judge Munro stated, 'I remember that.' The parties then began discussing the plaintiff's financial disclosure and did not mention the contempt motions further. "The court, Gould , J ., held a hearing on various matters on June 10, 2014. After concluding the custody and visitation portion of the hearing, Judge Gould indicated that he intended to turn to financial issues. The defendant stated that she wished to proceed to the authorization issue. The plaintiff objected stating that he needed a few days to prepare. Judge Gould queried whether the authorization issue was before him or in the foreclosure court. The defendant replied that it was before him, after which Judge Gould stated that they would proceed with outstanding motions on financial issues at a later date. "The defendant filed a motion for an emergency hearing on August 1, 2014, in which she asserted that the court never returned to the authorization issue. This motion was heard by Judge Gould on September 11, 2014. Judge Gould stated that it was his understanding that there was a ruling that the authorization did not have to be provided. The defendant protested that Judge Munro's ruling indicated otherwise. Judge Gould then stated, 'I'm not indicating [Judge Munro] ruled on [the authorization]. I'm indicating it was ruled on previously; it did not have to be provided.' "The defendant filed a motion to reargue on October 3, 2014, asserting that Judge Gould's ruling of September 11, 2014, was based on a misapprehension of fact. She contended that Judge Gould incorrectly believed that the motion for contempt regarding the authorization had previously been ruled on.... "Judge Gould considered the defendant's motion to reargue on November 6, 2014. He stated that '[t]his court said there was a prior ruling the authorization for modification of the mortgage would not have to be provided, and I have a specific recollection for issuing that order.' The plaintiff asserted that the issue had been decided by three judges . The defendant asserted that the transcripts demonstrated that the issue had not been ruled on. The plaintiff quoted the statement by Judge Munro that the plaintiff should not be on the hook for more liability. Judge Gould then denied the defendant's motion to reargue with prejudice, noting that she could take an appeal if she chose.' " (Footnotes omitted.) Id., at 631-35, 140 A.3d 254. The defendant filed an appeal on November 24, 2014. Despite the pendency of the appeal in Brochard I , the defendant, rather than await a ruling by this court, persisted in seeking to have the trial court decide whether the plaintiff was in contempt for violating of Judge Gordon's August 12, 2011 order regarding authorization of a mortgage modification. The court, Gould, J ., held a consolidated hearing and addressed all of the foregoing motions. The hearing took place on April 21, April 22, and July 10, 2015. On April 22, 2015, the defendant advised the court that she wanted to pursue the exact same contempt motion that the court had addressed on November 6, 2014, even though it was still the subject of an appeal. Although the plaintiff objected on the ground that this particular issue was still on appeal, the court permitted the defendant to present her claim that although she since had been able to assume the mortgage, the plaintiff was in contempt for not cooperating with her efforts to modify or assume the mortgage, and pursuant to Judge Gordon's August 12, 2011 orders, he was liable to her for costs, including interest, penalties, and fees she had incurred to prevent a foreclosure and eventually reinstate and assume the loan. On May 28, 2015, the defendant filed an addendum to her motion to modify child support. The court gave the parties three weeks to file additional information regarding the defendant's claim on the tax refund. The parties also were permitted to file posttrial briefs and attach additional "exhibits" to them. At the July 10, 2015 hearing, the court denied the defendant's request to submit additional evidence, but it indicated that it was giving both parties the opportunity to reinforce their positions and arguments in their briefs. On September 28, 2015, Judge Gould issued a memorandum of decision that included a decision on the defendant's motion for contempt regarding the mortgage. Rather than marking the motion "off," as having previously been decided, he ruled on it. His decision does not reference the statement of Judge Gordon related to the authorization, but it did note that the plaintiff alleged that " 'the court, Munro, J ., has previously ordered that the plaintiff did not have the duty to agree to a mortgage modification that would substantially increase the length of indebtedness to the bank.' [The court's decision also stated] that '[in] his objection, the plaintiff further alleges and provides evidence of a September 1, 2011 letter from his attorney to the defendant [that] enclosed the requested authorization referred to above, and further alleging that the defendant had been directly and actively dealing with the lender since September, 2011.' The decision concludes that 'the recitation of the court's orders and findings made by the plaintiff to be accurate.' The undersigned also finds that the plaintiff provided the subject authorization to the defendant." Brochard I , supra, 165 Conn. App. at 636, 140 A.3d 254. In addition to denying the defendant's motion for contempt concerning the mortgage on the marital home, in its September 28, 2015 decision, relevant to this appeal, the court granted the plaintiff's motion for modification of child support, granted the defendant's motion for contempt with respect to the payment of certain alimony payments, denied the defendant's motion to compel and to hold the plaintiff in contempt for failing to pay her half of the tax refunds he received for the year 2010, denied her motion to modify the allocation of the payment obligations for the guardian ad litem's fees, and denied her motion for contempt regarding the children's activities and unreimbursed medical expenses. On October 19, 2015, the defendant amended her prior pending appeal in Brochard I , claiming error only in the court's consideration of the mortgage authorization issue. Prior to the filing of this appeal, this court heard oral argument on Brochard I . This court issued its decision on May 24, 2016, and reversed the judgment with respect to Judge Gould's conclusion that, due to prior court rulings, the plaintiff could not be held in contempt for failing to provide an adequate authorization. Id., at 642, 140 A.3d 254. This court ruled that neither Judge Munro nor Judge Gould had ever afforded the defendant an opportunity to be heard on whether the plaintiff's proffered authorization met the requirements ordered by Judge Gordon and that the issue had never been decided. Id., at 640, 140 A.3d 254. The case was remanded for an evidentiary hearing only on that issue, consistent with our opinion. Id., at 642, 140 A.3d 254. Upon returning to the trial court, on November 2, 2016, the defendant, through counsel, filed a motion to reargue/reconsider twelve aspects of the court's decision. After a hearing on the motion to reargue/reconsider on February 11, 2016, the court ruled from the bench on several issues and later, on March 16, 2016, issued a memorandum of decision in which it altered its modified order of weekly child support payable by the plaintiff from $220 to $296, effective June 19, 2015, after hearing argument from the defendant that the court had made an error in the calculation of the plaintiff's net income. The court also corrected the amount it found that the plaintiff owed to the defendant for past due 2012 alimony, but denied all of the defendant's other requests to reconsider its decision. This appeal was filed on March 2, 2016. After filing this appeal, the defendant amended her then pending appeal in Brochard I to claim that the court erred in denying her motion for contempt relative to the mortgage authorization on September 28, 2015, because it failed to provide her with a full evidentiary hearing; the defendant has raised the identical claim in this appeal. Additional facts and procedural history will be set forth as necessary. I We first address the defendant's claim that the court erred in denying her motion for contempt alleging that the plaintiff had failed to pay his share of the minor children's medical and extracurricular activity expenses. Specifically, the defendant claims that the plaintiff owes her $242.50 for his share of nonemergency unreimbursed medical expenses and $2129.13 for his share of activity expenses that he is required to pay pursuant to the parties' parenting agreement of March 25, 2011. The defendant asserts that the court erred in not finding the plaintiff in contempt because it misinterpreted the parties' parenting agreement, which, thus, requires us to examine that document to ascertain the meaning of the terms contained therein. At the outset, we note that the applicable standard of review requires a two part inquiry. "First, we must determine whether the agreement entered into between the parties in conjunction with the dissolution of their marriage was clear and unambiguous.... Second, if we find that the court accurately assessed the intent of the parties regarding the [payment of medical and activity expenses for the minor children], we must then decide whether the court correctly determined that the [plaintiff] had [not] wilfully violated its terms." (Internal quotation marks omitted.) Dowd v. Dowd , 96 Conn. App. 75, 79, 899 A.2d 76, cert. denied, 280 Conn. 907, 907 A.2d 89 (2006). Regarding the first inquiry, any agreement, including an agreement that is incorporated into a dissolution judgment is regarded as a contract. Accordingly, our resolution of the defendant's claim is guided by the general principles governing the construction of contracts. "A contract must be construed to effectuate the intent of the parties, which is determined from the language used interpreted in the light of the situation of the parties and the circumstances connected with the transaction.... [T]he intent of the parties is to be ascertained by a fair and reasonable construction of the written words and . the language used must be accorded its common, natural and ordinary meaning and usage where it can be sensibly applied to the subject matter of the contract." (Internal quotation marks omitted.) Lisko v. Lisko , 158 Conn. App. 734, 738-39, 121 A.3d 722 (2015). "Where the language of the contract is clear and unambiguous, the contract is to be given effect according to its terms." (Internal quotation marks omitted.) Tallmadge Bros., Inc. v. Iroquois Gas Transmission System, L.P ., 252 Conn. 479, 498, 746 A.2d 1277 (2000). "Although ordinarily the question of contract interpretation, being a question of the parties' intent, is a question of fact . [when] there is definitive contract language, the determination of what the parties intended by their . commitments is a question of law [over which our review is plenary]." (Internal quotation marks omitted.) Bristol v. Ocean State Job Lot Stores of Connecticut, Inc ., 284 Conn. 1, 7, 931 A.2d 837 (2007). The "determination as to whether language of a contract is plain and unambiguous is a question of law subject to plenary review." (Internal quotation marks omitted.) Perez v. Carlevaro , 158 Conn. App. 716, 722, 120 A.3d 1265 (2015). "A court will not torture words to import ambiguity where the ordinary meaning leaves no room for ambiguity . Similarly, any ambiguity in a contract must emanate from the language used in the contract rather than from one party's subjective perception of the terms." (Internal quotation marks omitted.) Eckert v. Eckert , 285 Conn. 687, 692, 941 A.2d 301 (2008). As to the second inquiry, "[a] finding of indirect civil contempt must be established by sufficient proof that is premised upon competent evidence presented to the trial court . A finding of contempt is a factual finding.... We will reverse that finding only if we conclude the trial court abused its discretion." (Internal quotation marks omitted.) Legnos v. Legnos , 70 Conn. App. 349, 352-53, 797 A.2d 1184, cert. denied, 261 Conn. 911, 806 A.2d 48 (2002). To the extent that the defendant challenges the factual findings the court relied on in making its determination that the plaintiff was not in contempt, "we apply our clearly erroneous standard, which is the well settled standard for reviewing a trial court's factual findings." Id., at 353 n.2, 797 A.2d 1184. The defendant, as the party seeking a finding of indirect civil contempt, has the burden of establishing by clear and convincing evidence that the plaintiff violated an order of the court. See Brody v. Brody , 315 Conn. 300, 318-19, 105 A.3d 887 (2015). We first examine the language of the parenting agreement. The provisions of the parties' parenting agreement concerning the children's unreimbursed medical expenses and activities include paragraph 1, which states, in pertinent part: "It shall be the intent of the joint [legal] custody arrangement to allow each parent to have a full and active role in providing a sound social, economic, educational, religious and moral environment for the minor children. To this end, the [defendant] shall consult with the [plaintiff] on all nonemergency matters affecting the health, safety, welfare and education of the minor children, before such decisions involving the minor children are taken. These matters shall include, but not be limited to, such substantial issues as educational programs, camp, extracurricular activities and medical treatment, etc. If the [plaintiff] disagrees on the resolution of the issue, the parties shall seek the assistance of a co-parenting therapist (chosen by the guardian ad litem) in an effort to resolve the disputed issue.... The parties shall adhere to the following procedures when dealing with a disputed issue: "a. After discussion, the [defendant] shall indicate to the [plaintiff] her final decision. The [plaintiff] shall within twenty-four hours, inform the [defendant] that he wishes to trigger the co-parenting therapy requirement. "b. The [plaintiff] shall make an initial joint appointment with the therapist, said appointment to take place within seven days of the time of his trigger to this provision. "c. At the conclusion of the initial appointment, and at the recommendation of the therapist, the parties may meet for a second appointment, within seven days. "If the parties are unable to reach a joint decision after the meeting with the therapist, the [defendant] shall be allowed to make the final decision. The plaintiff . may elect to have a court hearing on the issue; however, this shall not delay the [defendant] from making the decision prior to any hearing." (Footnote added.) Also relevant to the children's activities is paragraph 5 of the parenting agreement, which states, in pertinent part: "The parties shall enroll the children in agreed upon activities for the children and shall share the cost of the same. Consent for the children to participate in an activity shall not be unreasonably withheld." We first address the defendant's claim that the plaintiff violated his obligation to share equally the cost of the children's unreimbursed medical expenses. The defendant is seeking an order requiring the plaintiff to reimburse her for $42.50 for eye examinations and/or corrective lenses by Shoreline Eye Associates, P.C., and $200 for a psychiatric consultation with a Dr. Paul El-Fishawy. She claims that the court misinterpreted the parenting agreement and thus made an "unwarranted modification" of the terms of the dissolution judgment. The defendant contends that the plaintiff agreed to these treatments, and even if he did not, the parenting agreement does not require her to notify and obtain the consent of the plaintiff before incurring expenses for nonemergency medical treatment or activities for the children. We disagree. A plain reading of the applicable provisions in the parenting agreement, according the language its common, natural and ordinary meaning and usage, is that it obligates the defendant to notify the plaintiff of her intent to seek nonemergency medical treatment for the children. Only after the plaintiff has been given prior notice and, after some discussion, indicates that he disagrees, can the defendant make a decision. Once that occurs, the plaintiff has twenty-four hours to inform the defendant that he wants to continue to dispute that decision and trigger the coparenting therapy requirement. If he does so, and the appointment takes place within seven days and the parties are still unable to reach a joint decision, the defendant is then allowed to make the final decision and incur the contested expense, subject to the plaintiff's right to return to court for a final resolution if he so chooses. The court correctly determined that paragraph 1 of the parenting agreement required the defendant to consult with the plaintiff regarding all nonemergency matters affecting the health, safety, welfare and education of the minor children, before any decisions involving the minor children were made by the defendant. These matters included educational programming, extracurricular activities and nonemergency medical treatment. The court found that the record was "replete with [the defendant's] inability, or unwillingness, to communicate with the plaintiff before undertaking any major decisions regarding the [childrens'] care." It further found that crucial e-mail evidence submitted during the hearing showed that the plaintiff did not agree with undertaking the defendant's claimed medical expenses and wanted to research and/or discuss the matter further with the provider and the defendant. The defendant asserts that the plaintiff should have triggered the coparenting therapy requirement in the parenting agreement to address medical bill disputes, but that provision states: "After discussion, the [defendant] shall indicate to the [plaintiff] her final decision. The [plaintiff] shall within twenty-four hours, inform the [defendant] that he wishes to trigger the co-parenting therapy requirement." There is no evidence that the defendant gave any indication to the plaintiff that she had made her final decisions on medical treatment prior to the defendant's acceptance of the services at issue that would have alerted him that he needed to trigger this requirement. Essentially, the defendant was putting the cart before the horse, incurring expenses for the children without consulting with the plaintiff and then demanding payment from him. Although the defendant is correct that the plaintiff must not unreasonably withhold his approval of such expenses, it is not possible to unreasonably withhold approval of an action if one has no notice of it whatsoever or has not had sufficient time to consider it. We agree with the court's determination that the parenting agreement unambiguously requires the defendant either to obtain the plaintiff's agreement or to have the type of discussion contemplated by the trigger provision before the defendant could incur nonemergency medical expenses for which she would seek reimbursement from the plaintiff. The court did not err in denying the portion of the defendant's motion for contempt regarding her claimed medical expenses. As to the children's extracurricular activities, the defendant acknowledges that she was required to obtain the plaintiff's agreement prior to enrolling the children in those activities. The court noted that the defendant provided the court with an exhibit that contained a list of activities with a total cost of $2129.13. The court, however, found that the testimony was unclear as to whether the defendant complied with the parenting agreement provisions regarding notice and prior agreement for those expenses and which, if any, of the claimed expenses remain unpaid. In denying without prejudice the portion of the defendant's motion related to the children's extracurricular activities, the court essentially determined that the defendant had not proven contempt of court on the part of the plaintiff by clear and convincing evidence. It also indicated that the parties could return to court on this issue at a later date and provide additional evidence regarding any alleged agreement(s) and/or failures to pay. We agree with the court that the defendant failed to meet her burden to prove contempt, and we conclude that the court was more than fair in leaving the door open for her to make a later attempt at proving her claims as to the activity expenses. We find no abuse of discretion on the part of the court in denying the defendant's motion for contempt regarding the children's unreimbursed nonemergency medical and activity expenses. II We next address the defendant's claim that the court erred in denying her motion for contempt alleging that the plaintiff had violated orders related to the mortgage on the former marital home. The defendant appeals from the denial of several of her claims in this motion, in which she alleged that the plaintiff had violated Judge Gordon's August 12, 2011 orders with respect to the mortgage on the marital home. In this contempt motion, the defendant claimed that she had successfully renegotiated the mortgage loan, cancelled all the late fees and reduced the monthly payments, but that the plaintiff deliberately had interfered and caused the renegotiated plan to be cancelled, thereby forcing imminent foreclosure of the home. She further alleged that the plaintiff had violated other orders of Judge Gordon that the plaintiff would be responsible for any attorneys' fees, interest and/or penalties relating to any foreclosure action on the marital home, and requiring that he bring the outstanding mortgage on the family home current for the months of March through July, 2011. A We begin with the defendant's claim that the plaintiff failed to execute an authorization allowing the defendant to speak with and represent the plaintiff with the mortgage loan holder, Wells Fargo, as the mortgage has been in the name of the plaintiff solely. For the following reasons, we decline to reach the merits of this claim. The following additional facts apply to this claim. Shortly after the judgment of dissolution was rendered, on August 12, 2011, Judge Gordon held a hearing on the defendant's motion for an order. The motion for an order requested that the plaintiff be required to bring the mortgage current, including all attorney's fees and other charges. The defendant alleged that the mortgage had gone unpaid since April, 2011. In the alternative, the defendant moved for an order requiring the plaintiff to immediately provide the bank with authorization to speak directly to the defendant, timely file all necessary paperwork in the foreclosure action to allow the parties to participate in foreclosure mediation, attend mediation sessions with the defendant, and agree to any resolution that the defendant came to with the bank. At the August 12, 2011 hearing before Judge Gordon, the plaintiff's attorney presented an authorization he claimed satisfied the defendant's request. The court rejected this proffered authorization and ruled that in order to effectuate a modification of the mortgage, the authorization "has to say more than converse and negotiate. It has to say that she's his authorized agent for conversing, negotiating, entering into an agreement, all that kind of stuff. I mean, they're not going to let her-they-I mean, it's got to be specific that she has the authority." As we noted previously in this opinion in setting forth the procedural history of this case, the particular ruling in the court's September 28, 2015 decision on whether the plaintiff ever provided a proper authorization to the defendant in conformity with Judge Gordon's order was recently the subject of a prior appeal, Brochard I , in which we reversed the judgment with respect to the decision by Judge Gould for having failed to provide the defendant a full evidentiary hearing on the authorization issue. See Brochard I , supra, 165 Conn. App. at 641-42, 140 A.3d 254. The defendant successfully argued to this court that Judge Gould had not afforded her an opportunity to be heard on whether the plaintiff's proffered authorization met the requirements ordered by Judge Gordon. This court held that it was improper for Judge Gould to have issued his September 28, 2015 ruling finding that the plaintiff was not in contempt because he had failed to conduct an evidentiary hearing on the defendant's motion despite her request. Id., at 641, 140 A.3d 254. This court issued its decision in Brochard I on May 24, 2016, and reversed the judgment with respect to Judge Gould's conclusion that the plaintiff could not be held in contempt for failing to provide an adequate authorization. The case was remanded for an evidentiary hearing on the defendant's motion consistent with our decision. Id., at 642, 140 A.3d 254. There is nothing in the record that shows or even suggests that this hearing has ever taken place. In the context of the present appeal, applying the doctrine of res judicata, we decline to address an appellate claim that this court previously has decided. We are cognizant of our sua sponte invocation of the doctrine of res judicata and that, generally, res judicata must be specifically pleaded. "This general rule, however, yields when, as here, the circumstances reveal that a remand 'would simply set judicial wheels unnecessarily spinning, only to remain at the same end of the road.' " Tucker v. Pace Investments Associates , 32 Conn. App. 384, 391-92, 629 A.2d 470, cert. denied, 228 Conn. 906, 634 A.2d 299 (1993), cert. denied, 510 U.S. 1196, 114 S.Ct. 1305, 127 L.Ed.2d 657 (1994). The circumstances in the present case require us to apply res judicata sua sponte, despite the rule that, generally, it must be pleaded. "[T]he doctrine of res judicata, or claim preclusion, [provides that] a former judgment on a claim, if rendered on the merits, is an absolute bar to a subsequent action on the same claim. A judgment is final not only as to every matter which was offered to sustain the claim, but also as to any other admissible matter which might have been offered for that purpose.... The rule of claim preclusion prevents reassertion of the same claim regardless of what additional or different evidence or legal theories might be advanced in support of it.... Furthermore, [t]he judicial doctrines of res judicata and collateral estoppel 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.... Stability in judgments grants to parties and others the certainty in the management of their affairs which results when a controversy is finally laid to rest.... The conservation of judicial resources is of paramount importance as our trial dockets are deluged with new cases daily. We further emphasize that where a party has fully and fairly litigated his claims, he may be barred from future actions on matters not raised in the prior proceeding. But the scope of matters precluded necessarily depends on what has occurred in the former adjudication.... "The transactional test measures the preclusive effect of a prior judgment, which includes any claims relating to the cause of action that were actually made or might have been made.... A cause of action for the purpose of the transactional test is the group of facts which is claimed to have brought about an unlawful injury to the plaintiff . The fact that a prior judicial determination may be flawed . is ordinarily insufficient, in and of itself, to overcome a claim that otherwise applicable principles of res judicata preclude it from being collaterally attacked.... If the judgment [in the prior action] is erroneous, the unsuccessful party's remedy is to have it set aside or reversed in the original proceedings.... It is well settled that [a] judgment may be final in a res judicata sense as to a part of an action although litigation continues as to the rest.... Thus, res judicata may operate to preclude a claim decided in a previous proceeding within the same case.... [F]or purposes of res judicata, a judgment will ordinarily be considered final if it is not tentative, provisional, or contingent and represents the completion of all steps in the adjudication of the claim by the court, short of any steps by way of execution or enforcement that may be consequent upon the particular kind of adjudication." (Citations omitted; internal quotation marks omitted.) Honan v. Dimyan , 63 Conn. App. 702, 706-708, 778 A.2d 989, cert. denied, 258 Conn. 942, 786 A.2d 430 (2001). The defendant's claim pertaining to the plaintiff's failure to authorize her to speak with Wells Fargo was fully briefed by the parties in Brochard I . This court considered the claim on its merits in Brochard I and issued a final decision on the matter. The claim is therefore barred by that decision and we will not allow the parties to relitigate the matter in this appeal. See, e.g., In re Zen T ., 151 Conn. App. 724, 730, 95 A.3d 1258 (due to application of res judicata doctrine, appellant barred from relitigating claim raised in prior appeal), cert. denied, 314 Conn. 911, 100 A.3d 403 (2014), cert. denied sub nom. Heather S . v. Commissioner of Children & Families , U.S., - U.S. -, 135 S.Ct. 2326, 191 L.Ed.2d 991 (2015) ; Oliphant v. Commissioner of Correction , 146 Conn. App. 499, 527, 79 A.3d 77 (same), cert. denied, 310 Conn. 963, 83 A.3d 346 (2013) ; State v. Thomas , 137 Conn. App. 782, 788-91, 49 A.3d 1038 (same), cert. denied, 307 Conn. 923, 55 A.3d 566 (2012) ; Honan v. Dimyan , supra, 63 Conn. App. at 705-10, 778 A.2d 989 (same). B We will address the remaining portion of this claim, which is that the court erred in failing to find the plaintiff in contempt of Judge Gordon's August 12, 2011 orders pertaining to the mortgage on the marital home by failing to reimburse her for the four months of mortgage payments missed between April 1, 2011 and July 1, 2011. Resolution of this particular claim is not precluded by the doctrine of res judicata because it was not raised in the defendant's prior appeal in Brochard I . In order to resolve whether the plaintiff was in contempt of Judge Gordon's orders of August 12, 2011, a review of those orders is necessary. In reviewing an appeal involving a civil contempt proceeding, "we must resolve the threshold question of whether the underlying order constituted a court order that was sufficiently clear and unambiguous so as to support a judgment of contempt.... This is a legal inquiry subject to de novo review." (Citations omitted.) In re Leah S ., 284 Conn. 685, 693, 935 A.2d 1021 (2007). The defendant claims that Judge Gordon ordered the plaintiff to bring the mortgage payments current for the months of April 1 through July 1, 2011, and that the court erred in not finding the plaintiff in contempt for failure to do so. The following additional facts and procedural history are necessary to the consideration of this claim. During the hearing before Judge Gordon on August 12, 2011, the court addressed the defendant's motion for clarification, which contained a request that the court answer five questions. In question three, the defendant asked: "[T]he court ordered the marital home transferred to the defendant, who shall be responsible for all costs associated with the home. The mortgage on the marital home is only in the plaintiff's name, and the last payment made by the plaintiff was the March, 2011 payment . Is the plaintiff responsible to bring the debt current before he quitclaims the property to the defendant?" In question four, the defendant asked: "In paragraph 18, the court ordered the defendant to be responsible for her COBRA benefits. The [d]efendant's health insurance is an individual policy paid monthly. The defendant therefore is not eligible for COBRA. Is the plaintiff responsible for the payments due through July 6, 2011, including the payment due July 1, 2011?" The following pertinent colloquy occurred: "[The Defendant's Counsel]: And is he responsible to bring the mortgage current?- "The Court: Right. "[The Defendant's Counsel]: -Before he quitclaims, which he hasn't done yet. "The Court: Okay. Is the-the question is, does-is the responsible-yes. The answer to number four is yes. There was a payment due on the first. It was due on the first. "[The Defendant's Counsel]: Yes, yes. So, he's responsible to- "The Court: Yes. "[The Defendant's Counsel]: -make the insurance payment due- "[The Plaintiff's Counsel]: Well, but that covers the whole month, Your Honor. "The Court: Was it due on the first? "[The Plaintiff's Counsel]: It was due on the first. "The Court: It was due on the first. My decision didn't come out until the sixth. "[The Plaintiff's Counsel]: Right. "The Court: That's something . I'm not making that determination. "[The Plaintiff's Counsel]: I didn't hear your answer to number three, Your Honor. "The Court: I don't have an answer to number three- "[The Plaintiff's Counsel]: Okay. "The Court: -because it's the same as the problem on the mortgage and whether- "[The Plaintiff's Counsel]: Okay. "The Court: -he needs to bring it current." (Emphasis added; footnote added.) Contrary to the defendant's arguments, it is clear from the previously quoted exchange that, at this point in the hearing, the court had not decided whether the plaintiff should be ordered to bring the mortgage payments missed since April, 2011, current. A few minutes later, the court indicated: "I've got two issues left, one of which . is the mortgage arrearage and who's paying for that ." The court then began a lengthy discussion about the other of the two issues, namely, who was obligated to pay certain other household expenses. At the end of the discussion on household expenses, the court ordered the plaintiff to pay an unpaid household expense arrearage in the amount of $32,438.35 by transferring one half of that amount out of his individual retirement account and paying the other half at the rate of $50 per week. The court then stated: "Oh, I'm sorry. I'm sorry. Hang on for just a second. Let me finish the other order. The request regarding the repayment of the mortgage is denied, for the months to bring it current is denied." After the court issued this order, it considered the defendant's motion for contempt. The following colloquy occurred: "[The Defendant's Counsel]: Your Honor, I just, for one moment, just want to address the mortgage issue. "The Court: Yes. "[The Defendant's Counsel]: There are unpaid mortgage payments. "The Court: Yes, I know. "[The Defendant's Counsel]: That's one thing, but there are attorney's fees that have been incurred because the payments weren't made. All again, in [the plaintiff's] name, and interest because the payments weren't made. All, again, in [the plaintiff's] name. I have e-mails [where the plaintiff] just says it's in foreclosure. That's too bad. "I mean, I really don't think that those things should be seen the same as the mortgage payments, which I also believe he should pay, but if there are attorney's fees that have been incurred, I can't see how that would appropriately be more penalties or any of that would appropriately be my client's responsibility. "Again, she's seeking the mortgage payments as well, but I am asking the court to reconsider the idea that the whole kit and caboodle, which might include a couple thousand dollars in attorney's fees, would be my clients' responsibility. "[The Plaintiff's Counsel]: She had the money to pay, Your Honor. She's liquid. [The plaintiff] was not. When he got a reduction in his income, he was paying 72 percent of his gross income to the defendant. So, he didn't have the money, but she had $400,000 in the account, not including the money she paid back to her father." The court then proceeded to hear evidence, asking the plaintiff's counsel: "All right, so do you want to put on evidence about when your client first gave her notice that the mortgage was not being paid? . Because that goes to the equities of the other fees. I mean, it's one thing to not pay it and say I can't pay it. It's another thing to be silent and let stuff, you know." After hearing evidence, the court commented: "Once again, the enmity between the two of you has continued.... I mean, you're both so adamant about who's right about everything that you just keep, you know, wasting time and money and taking ridiculous positions. [Plaintiff], you owe-you're the only person on the note. If she sat back and did nothing and the house was fore-closed and there was a deficiency judgment, it would all be yours.... [I]f you really wanted to protect your credit as much as you say that you do, that people would go about this in an orderly process. On the other hand, [defendant], you said that you're terribly concerned about the roof over your children's heads. Well, yes and no. I mean, you did. You went through, you got all the stuff and everything is going, but you're still arguing about who's going to advance the money or who's going to do what, and it's absurd. Okay? You're living there. You had the liquidity to make the payments. I mean, I'm not-he hasn't been stellar, and he hasn't made a lot of the payments, and some of it was contemptuous, but he did not have the money to make them all up. Judge Abery-Wetstone's [pendente lite] order was very high, and I think that there-I don't know what everybody was contemplating in terms of the mortgage getting paid, but I already made my order that she's going to take that over, but you're going to be responsible for any attorney's fees, any interest, any penalties, anything else because you could have sat down and instead of threatening . a custody fight . you could have sat down and said, let's get the papers done for the modification.... So, it may be true that you might not have been able to afford to make payments, but your judgment is lacking when it comes to how to solve a problem. Instead of being bellicose, all you had to do is go, great. Let's get the papers done. So, you're going to be responsible for what comes for that delay or that lack of judgment, and that is the attorney's fees, late penalties, reinstatement penalties, anything but the actual mortgage and interest . Okay?" (Emphasis added.) During the hearing before Judge Gould on April 21, 2015, the defendant began the presentation of her motion for contempt on the mortgage issues by advising the court that the plaintiff owed her four months of mortgage payments from April through July, 2011, totaling $7578.88. She argued that Judge Gordon had ordered the plaintiff to pay the past due four months of mortgage payments and that when Judge Gordon stated: "The request regarding the repayment of the mortgage is denied, for the months to bring it current is denied," she only had denied the defendant's request to have the plaintiff pay the August 1, 2011 mortgage payment, but had intended to grant her request for the previous four months, April through July, consistent with her earlier response of "[r]ight," when the defendant's attorney asked: "And is he responsible to bring the mortgage current ." The plaintiff argued that Judge Gordon denied the defendant's request that the plaintiff bring the mortgage current and pay the four months of missed payments. In its memorandum of decision denying this particular motion for contempt, the court repeated the allegations of each party, and then determined that the recitation of the court's order and findings set forth by the plaintiff were accurate. We interpret this ruling of the court to include a finding that the plaintiff's interpretation of Judge Gordon's order on whether the plaintiff had to bring the mortgage current was correct, and that Judge Gordon did not order the plaintiff to pay the four months past due mortgage payments and interest. Therefore, the court did not find the plaintiff in contempt for failing to bring the April through July, 2011 mortgage payments current. A review of the entire transcript of the August 12, 2011 hearing leads us to conclude that the court's ruling was proper. Judge Gordon clearly denied the defendant's request that the plaintiff make up the payments missed on the mortgage between April, 2011, and July 6, 2011. After indicating that "[t]he request regarding the repayment of the mortgage is denied, for the months to bring it current is denied ," counsel for the defendant began to argue that the court should reconsider its ruling on the defendant's request to bring the payments current while she pressed on to argue that, at the very least, she should recover any additional charges resulting from the default. (Emphasis added; footnote added.) Shortly thereafter, Judge Gordon spoke to the parties about their unabating mutual animosity and how it was not helping anyone's situation. Her comments further reveal that she did not believe the plaintiff had the ability to pay the mortgage, and therefore determined only to hold him responsible for attorney's fees, costs, and reinstatement penalties emanating from his default, but not for the five months of missed mortgage and interest payments. The court specifically stated: "So, you're going to be responsible for what comes for that delay or that lack of judgment, and that is the attorney's fees, late penalties, reinstatement penalties, anything but the actual mortgage and interest . Okay?" (Emphasis added.) We reject the defendant's interpretation of Judge Gordon's order because her interpretation depends on the artificial isolation of words and phrases that support her position, but fails to take into account the totality of Judge Gordon's remarks. We conclude that the court did not err in declining to hold the plaintiff in contempt on this issue because he cannot be held in violation of an order that does not exist. III The defendant's next claim is that the court erred in denying her motion that the plaintiff be held in contempt for failing to pay her one half of the 2010 tax refunds that he received after filing individual federal and state tax returns for 2010. The following additional facts pertain to this claim. On March 30, 2011, Judge Gordon asked both parties: "Did you all-you're not going to file-you're not filing jointly for 2010, right?" Counsel for both parties responded in the negative. Subsequently, the plaintiff filed his state and federal tax returns as married, filing separately and received refunds, the amount of which are not ascertainable from the record. It is not clear from the record whether the defendant also filed separate returns in 2010. When Judge Gordon rendered the judgment of dissolution on July 6, 2011, subsequent to the April 15 tax filing deadline, she ordered the parties to file a joint tax return. The plaintiff was ordered to pay any taxes owed, and the parties were to share equally in any refund. This order, which the plaintiff had no reason to contemplate on the basis of the discussion that had taken place in court on March 30, 2011, created another issue necessitating discussion during the August 12, 2011 hearing before Judge Gordon, who advised the parties to consult with an accountant to determine what would happen if a joint return were to be filed in lieu of separate returns. Although the court may have been reconsidering its order pending an accountant's opinion, it did not modify any portion of its dissolution order that obligated the parties to file a joint tax return for the tax year 2010. Despite the fact that this would require an amended return that would not be filed timely, Judge Gordon did not address who would be responsible for any penalties. Ultimately, despite the parties' lack of cooperation for months afterward, Judge Munro finally intervened with an order to end the impasse, and an amended federal joint return was filed, which necessitated further payment to the Internal Revenue Service and resulted in no refund. The defendant, however, contends that because the plaintiff received a generous federal tax refund when he filed separately and had to pay the Internal Revenue Service less than that refund as a result of the jointly filed amended return, he was left with a "net positive," half of which is owed to her. In its memorandum of decision, the court found that, rather than being entitled to a refund, the parties owed the Internal Revenue Service $2990.74 as a result of filing jointly for the calendar year 2010. We conclude that the court's decision conforms to the clear and unambiguous language of the order in the judgment of dissolution as to the joint tax refund, which required the parties to share a refund that would result only from a jointly filed return for tax year 2010. The court properly declined to hold the plaintiff in contempt for failing to derive from this simple order an unstated, additional obligation inferred by the defendant but nowhere clearly imposed by Judge Gordon. The defendant's unverified, proposed mathematical calculation may be a fair proposal but, to effectuate it, she first should have sought a revised dissolution order. "[A] court . after distributing property, which includes assigning the debts and liabilities of the parties, does have the authority to issue postjudgment orders effectuating its judgment." (Internal quotation marks omitted.) O'Halpin v. O'Halpin , 144 Conn. App. 671, 677-78, 74 A.3d 465, cert. denied, 310 Conn. 952, 81 A.3d 1180 (2013). IV We next address the defendant's claim that the court erred in denying her motion for modification of Judge Munro's order of February 6, 2014, which allocated the parties' obligation pertaining to payment of the guardian ad litem's fees. The defendant was ordered to pay 20 percent and the plaintiff was ordered to pay 80 percent of the fees owed to Attorney Nugent. The defendant alleged that there had been a substantial change in circumstances since the entry of Judge Munro's order because she was no longer employed and had insufficient assets to pay her share. The court found that there had been no substantial change in circumstances in the finances of either party since the order of February 6, 2014. "The court may order either party to pay the fees for [a] guardian ad litem pursuant to General Statutes § 46b-62, and how such expenses will be paid is within the court's discretion.... An abuse of discretion in granting [guardian ad litem] fees will be found only if [an appellate court] determines that the trial court could not reasonably have concluded as it did." (Citation omitted; internal quotation marks omitted.) Lamacchia v. Chilinsky , 79 Conn. App. 372, 374-75, 830 A.2d 329 (2003). Both parties filed financial affidavits on July 10, 2015, at the conclusion of the hearing before Judge Gould. The financial affidavits they had filed prior to the hearing before Judge Munro where the 80/20 percent allocation of responsibility was ordered are in the court file. Although the court did not explicitly refer to these affidavits, we presume that it reviewed them in order to ascertain whether there had been a substantial change in the financial circumstances of the parties. At the hearing before Judge Munro, Nugent was owed $2900 and reported that she had asked both parties to pay her a retainer of $2500 each in December, 2013, and that the plaintiff had done so, but the defendant had not. Judge Munro found that as of the date of the hearing, Nugent's fees totaled $5400, and that the plaintiff was responsible for $4320 and the defendant was responsible for $1080. Both were ordered to make their payments within fourteen days. The defendant's financial affidavit filed on February 6, 2014, reflected a net weekly income of $968.91, weekly expenses of $1905.39, liabilities of $140,175.36 and assets of more than $418,758.68. The plaintiff's affidavit at that time reflected a net weekly income of $1372.02, weekly expenses of $1609.95, liabilities of $36,677.97 and assets of $11,446.33. The defendant filed another financial affidavit on July 10, 2015, indicating a debt owed to Attorney Nugent in the amount of $1333.15, which was based on her 20 percent share. The defendant's net weekly income was $692, her weekly expenses were $2760.70, her liabilities were $153,192.41 and her assets were $474,789. The plaintiff's affidavit, also filed July 10, 2015, reflects his outstanding debt to Nugent as $5332.60. His weekly income was $1596.53, his weekly expenses were $2284.97, his liabilities were $103,077.46 and his assets were worth $12,771.68. The court concluded that there had been no substantial change in the financial circumstances of either party since the entry of Judge Munro's order of February 6, 2014, regarding payment of Nugent's fees. "The party seeking the modification has the burden of proving a substantial change in circumstances.... To obtain a modification, the moving party must demonstrate that circumstances have changed since the last court order such that it would be unjust or inequitable to hold either party to it. Because the establishment of changed circumstances is a condition precedent to a party's relief, it is pertinent for the trial court to inquire as to what, if any, new circumstance warrants a modification of the existing order. In making such an inquiry, the trial court's discretion is essential." (Citation omitted; internal quotation marks omitted.) O'Donnell v. Bozzuti , 148 Conn. App. 80, 87, 84 A.3d 479 (2014). There was no evidence presented to the court as to what amount might still be owed to Nugent as of July 10, 2015, other than the amounts each of the parties claimed was due to her on their respective financial affidavits. Although the defendant's weekly net income was slightly reduced, she provided no evidence to the court of any inability to seek employment and earn income. There was only a slight increase in the plaintiff's weekly net income, and both parties had significant increases in their liabilities. The defendant, however, in July, 2015, still possessed assets of significantly higher value than the plaintiff's assets, far in excess of her liabilities and more than sufficient to pay the debt she averred she owed to Nugent. We find no abuse of discretion in the court's denial of her motion to reduce her 20 percent allocated share of the fees for the guardian ad litem, an appointment to which she agreed. See footnote 18 of this opinion. There was a reasonable basis in fact for denying the defendant's motion because the defendant had failed to prove a substantial change in circumstances necessitating a reduction in her allocated 20 percent share of the fees. V The defendant's next claim is that the court erred in granting the plaintiff's motion for modification of child support, thereby decreasing his obligation, and in failing to consider her cross motion for modification, which sought an increase in the amount of child support. We disagree. Before addressing the merits of this claim, we note legal principles relevant to motions for modification. First, we set forth our well established standard of review in domestic relations matters. "A trial court is in an advantageous position to assess the personal factors so significant in domestic relations cases, and its orders in such cases will not be reversed unless its findings have no reasonable basis in fact or it had abused its discretion, or unless, in the exercise of such discretion, it applies the wrong standard of law." (Internal quotation marks omitted.) Hane v. Hane , 158 Conn. App. 167, 172, 118 A.3d 685 (2015). When presented with a motion for modification, a court must "first determine whether there has been a substantial change in the financial circumstances of one or both of the parties.... Second, if the court finds a substantial change in circumstances it may properly consider the motion and, on the basis of the . [General Statutes] § 46b-82 criteria, make an order for modification.... The court has the authority to issue a modification only if it conforms the order to the distinct and definite changes in the circumstances of the parties." (Internal quotation marks omitted.) Barbour v. Barbour , 156 Conn. App. 383, 390, 113 A.3d 77 (2015). The following additional facts are relevant to this claim. At the commencement of the hearing on April 21, 2015, the defendant advised the court that her motion for modification of child support, seeking an increase retroactive to May 2, 2013, was pending and she wanted it to be heard. She advised the court that she had filed three child support guideline worksheets, one for each of the years 2013 through 2015, along with verification of income. She requested that the court, in ordering child support retroactively, consider the three different time periods. Counsel for the plaintiff responded that although the parties had reached an agreement on May 2, 2014, that agreement concerned only the plaintiff's motion for modification and that no such agreement was made with respect to the defendant's motion for modification seeking an increase in child support. The plaintiff filed a child support guidelines work-sheet that had been prepared in 2013. The plaintiff sought a modification of the $342 per week child support obligation to $277, retroactive to May 2, 2013, and a credit for having overpaid his child support since that date. When the defendant asked the court for an opportunity to respond, the court said: "You don't need to respond to it, ma'am. I understood your argument, and I will review your documentation." Later on, at the end of the hearing on April 22, 2015, the defendant inquired of the court whether it would be hearing her pending motion to modify child support. Counsel for the plaintiff responded that he had not seen the defendant's motion, which had been filed on April 26, 2013, so the court told the parties to speak to the presiding judge, Emons, J ., as to how to proceed on this motion because the plaintiff was not prepared to go forward on it, or the defendant could come back on some later date when the court would hear the motion. The defendant indicated that she wanted to speak to Judge Emons. When the parties appeared before Judge Emons on April 22, 2015, Judge Emons indicated that it was Judge Gould's responsibility to hear all the parties' motions and advised the defendant that Judge Gould was going to hear all motions in this case. Judge Emons did not, however, specify a date on which the defendant's motion for modification of child support would be heard, although she had that authority as the presiding judge. On May 28, 2015, the defendant filed a document captioned "Defendant's List of Pending Motions for Hearing July 10, 2015. At the very top of this list she noted, "1. Defendant's Motion to Modify-General 4/ 26/13 MOTION FOR MODIFICATION OF CS 321 JD-FM-174." On that same date, she also filed an "Addendum to Child Support Motion Filed [April 26, 2013]." At the next hearing before Judge Gould on July 10, 2015, which was more of a "wrapup" session than an actual hearing, the court began by noting that it had "received notification from the parties of potential motions to be heard . I have from the plaintiff that there are no motions pending; counsel, if you have anything else, let me know. I have reviewed from the defendant number 430, which is a further motion to compel . 433, which is an addendum to the child support motion, 434, which is a request to provide an update, 435, which is a request to provide an update.... In reviewing those documents and in reviewing the motions that have been filed and reviewing the transcripts, my notes and the evidence that has been filed prior to today, I don't think any additional testimony is necessary on those motions." The defendant then advised the court: "[W]hile [the plaintiff's counsel] gave his child support motion, I was not able to give you evidence, and I have a lot of evidence in conjunction with that child support motion." (Emphasis added.) The court advised the defendant that it was not hearing anything further, but that she could make additional arguments and attach any documents to her posttrial brief. There was no clear discussion during this exchange between the defendant and the court that the defendant wanted to be heard immediately on her motion for modification of child support. The court continued: "Ma'am, the hearing on that issue has already been concluded. I have enough in terms of the amount of information that has been filed. I understand both parties' positions, and you can make any additional arguments and you can attach any documents as exhibits you think are appropriate on the briefs." The defendant responded: "Okay." In its memorandum of decision, the court did not address the defendant's motion for modification of child support. It granted the plaintiff's motion for modification and reduced his child support obligation to $220 per week, finding that amount to be the presumptive amount pursuant to the child support guidelines, after finding that the defendant's net income, based on his most recent financial affidavit, was $904.53, and that the defendant was unemployed. The court found a substantial change of circumstances, which was based on the parties' oldest son having reached the age of majority and graduated from high school. The decision makes no mention of any retroactivity of the order to May 2, 2013, and does not award the plaintiff any credit for overpayment since that date. The court made no mention of, and did not rule on, the defendant' motion for an upward modification of child support. In the defendant's motion to reargue/reconsider, the defendant alleged that the court made an error in determining the plaintiff's net income because the plaintiff should not have deducted his current alimony and support obligation from his gross income, which is not deductible for purposes of calculating the amount of child support due pursuant to the guidelines. The defendant requested that the court adjust the weekly amount up to $296 per week for the one remaining minor child, and the court did so, effective June 19, 2015, in its memorandum of decision on the motion to reargue/ reconsider. As to the court's failure to hear the defendant's motion for modification of child support, we cannot fault the court for not having heard that particular motion as part of its hearing on combined financial issues that began on April 21, 2015, and ended on July 10, 2015. We first note that on February 6, 2014, when Judge Munro inquired of the defendant which motions involving financial issues were to be referred to the regional family trial docket, the defendant never mentioned this pending motion for modification. On April 22, 2015, the plaintiff indicated to the court that he had not seen this motion and was not prepared to defend against it. Finally, in fairness to the court, we observe that the defendant never made any clear reference to her motion for modification on July 10, 2015, and that she subsequently acquiesced when the court indicated it had heard everything it was going to hear and any additional arguments could be made in the posttrial briefs. Because we are unable to conclude that the court actually was put on notice by either Judge Emons or the defendant that the defendant's motion for modification of child support should be heard before the court concluded the financial issues hearing it had commenced on April 21, 2015, we find no error. As the defendant still may intend to pursue her motion for modification retroactive to May 2, 3013, we will address the retroactivity issue. A review of the written agreement the parties submitted to the court reflects an unambiguous agreement as to retroactivity only on the plaintiff's motion; there is no mention of a pending defendant's motion or any reference to motions in the plural. Thus, we conclude that if the defendant were to reclaim this exceedingly stale motion for modification, it will likely be moot, as both of the minor children have attained the age of eighteen and she will be unable to seek a prospective modification. We further conclude that upon the court's reconsideration, it committed no error in granting the plaintiff a modification of child support based on his properly calculated net income and the change in circumstances from the eldest child attaining majority. We find no abuse of discretion in the entry of the $296 per week child support order, effective June 19, 2015. That was part of the numerous changes in the court's orders the defendant requested in her motion to reargue/ reconsider. VI The defendant's final claim is that the court erred in granting her motion for contempt regarding past due alimony for the year 2012 in that it failed to order the plaintiff to pay her the full amount she was owed. We disagree. The following additional facts are relevant to this claim, which concerns the defendant's entitlement to provisional alimony, which is additional alimony payable to her on a quarterly basis. Pursuant to the judgment of dissolution, it includes 30 percent of all of the plaintiff's gross income from wages, self-employment, commissions, incentives, bonuses or other payment plans in excess of $90,000 per year, but less than $150,000 per year. In her testimony of April 22, 2015, the defendant indicated that the plaintiff had sent her a check for $794.45, which represented only a portion of the unpaid provisional alimony payments owed to her for 2012, and that she did not cash the check because she believed that doing so would be an acknowledgment on her part that the plaintiff had fulfilled his entire obligation for that particular time period. In response, the plaintiff's counsel admitted that the plaintiff's check had not been cashed. The evidence reflected that the plaintiff owed the defendant $1802.40 in provisional alimony for 2012. The defendant argues that the court erroneously awarded her $1005.55 in unpaid provisional alimony despite the fact that the evidence clearly reflected that because she did not cash the check for partial payment, she was actually owed $1802.40. In its initial decision of September 28, 2015, the court found that the plaintiff had paid the defendant the $794.45. During the hearing on the defendant's motion to reargue/reconsider, however, the court, at the defendant's request, corrected this oversight after both parties stipulated that $796.85 was owed by the plaintiff to the defendant for 2012 past due provisional alimony. Therefore, we interpret the court's ruling to reflect that the defendant was awarded the full amount she now claims was owed to her. Accordingly, we find no error in the court's granting of the motion for contempt regarding past due alimony. The judgment is affirmed. In this opinion the other judges concurred. On February 6, 2014, at the time the court, Munro, J ., referred this matter to the regional family trial docket in the judicial district of Middlesex at Middletown for a hearing on the plaintiff's motion to modify custody and child support, she inquired if any financial motions were also to be referred. The defendant mentioned four motions: a motion for contempt as to the children's expenses, a motion for contempt as to medical expenses, a motion for contempt as to alimony, and a motion for contempt as to the alleged failure by the plaintiff, Thomas Brochard, to sign an authorization for the defendant to be able to modify the mortgage on the parties' marital home. Prior to proceeding on pending financial issues, the court, Gould, J ., had conducted a hearing on the custody portion of the defendant's motion for modification of custody and child support in Middletown. At the commencement of the hearing on financial issues on April 21, 2015, which took place before Judge Gould in the judicial district of New Haven and gave rise to this appeal, the defendant provided the court with a list of pending motions that she intended to pursue. The court responded, "I have from you a list of twenty-seven motions, all right. We're not going to hear twenty-seven motions." The plaintiff was pursuing four motions. The court encouraged the defendant to reduce the number of motions she was pursuing and then proceeded in an orderly fashion to address each claimed motion chronologically. Eventually, the court considered and decided ten motions. The defendant continued to file numerous motions after the hearing concluded on July 10, 2015, and demanded that the court also rule on them, filing a document titled, "Defendant's List of Motions to Be Decided," which included a list of "motions filed after hearing." The plaintiff also is representing himself on appeal. Both children have since reached the age of majority. We do not find persuasive the defendant's claim that this agreement also provided her with the right to seek a retroactive modification pursuant to her motion for a modification of the child support order. The defendant does not appeal from the court's ruling on the plaintiff's motion for modification of custody or its denial of her motion for contempt regarding religious education expenses. In Emerick v. Emerick , 5 Conn. App. 649, 656-57, 502 A.2d 933 (1985), cert. dismissed, 200 Conn. 804, 510 A.2d 192 (1986), this court discussed the difference between a sole custodian and a joint legal custodian. A sole custodian has the ultimate authority to make all decisions regarding a child's welfare, such as education, religious instruction and medical care, whereas a joint legal custodian shares the responsibility for all of those decisions. Id., at 657 n.9, 502 A.2d 933. In modifying the custody orders, an issue that is not the subject of this appeal, the court stated that "the defendant has repeatedly failed to adhere to her prior agreement to significantly consult with the plaintiff regarding the minor child's matters pursuant to the [parenting] agreement" and removed the sole decision-making authority of the defendant. The defendant's exhibit containing a list of the children's activities for which she claimed she had not been reimbursed includes confusing notations that some of the expenses had been paid by the plaintiff. She provided little evidence of her having sought the plaintiff's prior approval before she incurred these numerous expenditures. Although the defendant claims that some of her exhibits were "missing" or "falsely marked" as plaintiff's exhibits, she provides no further detail, has made no attempt to rectify the record, and we are unable to ascertain the truth of her assertion from the existing record. A number of exhibits were marked for identification only, but on this issue, the defendant does not inform us which of the exhibits for identification only should have been marked as full exhibits with respect to the medical and activities expenses. From our review of the record, the court admitted almost every exhibit the defendant proffered during the exchange on medical and activity expenses. There also was testimony that despite the children being covered by health insurance through the plaintiff's employer, the defendant had applied for and was receiving payments for some of their medical expenses from the HUSKY state medical insurance program. Further undermining the defendant's credibility on amounts owed was evidence from the plaintiff that suggested that the defendant had doctored an e-mail exchange between the parties by deleting portions of it to make it appear that the plaintiff had agreed to pay half of Dr. El-Fishawy's bill. The plaintiff also testified that some of the activities the defendant listed to receive half payment were gifts from the child's grandparents, including a drum set and a tuxedo one child needed for an event. We note that at oral argument before this court in Brochard I on February 9, 2016, the defendant acknowledged that she had not filed transcripts of subsequent hearings that occurred in 2015 on the mortgage authorization issue, but she claimed they only would further demonstrate that she had not been provided with a chance to argue her case before Judge Gould issued his September 28, 2015 decision. The plaintiff asserted that Judge Gould's September 28, 2015 decision solely was based on a prior decision of Judge Munro that the plaintiff claimed declared that he did not have to provide the authorization ordered by Judge Gordon. The plaintiff did not claim, despite this court's questioning of the defendant, that any hearing had been held between November 6, 2014, and September 28, 2015, at which both parties were given sufficient opportunity to be heard regarding the authorization issue. See Brochard I , supra, 165 Conn. App. at 636, 140 A.3d 254. Despite the lack of the additional transcripts of all the hearings, we determined in Brochard I that the record was adequate for review because the parties represented at oral argument before this court that there was no dispute about whether the trial court addressed the issue on any day for which we did not have the transcript; neither party claimed that any argument or evidence related to the authorization issue, the subject of the first appeal, was heard on those additional hearing days in 2015, and the court's memorandum of decision did not indicate that argument or evidence related to the authorization occurred on those hearing days. Id., at 641 n.8, 140 A.3d 254. Having now had the opportunity to review these subsequent transcripts for this appeal, however, we determine that both parties, appearing as self-represented litigants, were less than candid with this court during oral argument in Brochard I as to whether Judge Gould subsequently had addressed the authorization issue. Our determination not to address this claim includes the defendant's claim that the plaintiff reimburse her for interest, penalties and fees incurred as a result of the plaintiff's failure to provide her with a proper authorization to negotiate with the mortgage lender because the amounts owed, if any, pursuant to the claim on the mortgage authorization order, may be dependent on whether a proper authorization was provided, and if so, when. See the Consolidated Omnibus Budget Reconciliation Act of 1985, 29 U.S.C. § 1161 through 1168 (2012). The defendant claims that this particular response is where Judge Gordon ordered the plaintiff to bring the missed mortgage payments current. We disagree because a reading of the subsequent colloquy between counsel and the court reveals that the court reached the opposite conclusion on the defendant's request. The first part of this statement was denying the plaintiff's request that he be reimbursed for paying the mortgage, pendente lite, from September, 2010. This does not support the defendant's assertion that Judge Gordon had no idea the plaintiff had intended to file a separate return prior to the entry of the judgment of dissolution. At the end of the hearing on financial issues on April 22, 2015, the court ordered the parties to provide information regarding what it referred to as the "2010 tax issue and refund issue" within three weeks and that it would keep the hearing open for that three week period of time. No hearing was held three weeks later, and at the next hearing on July 10, 2015, neither party offered any tax documents into evidence. On July 10, 2015, responding to the defendant's ongoing complaint that she was unable to present all of her motions and evidence, the court indicated it was holding the hearing open until July 31, 2015, without stating a purpose for doing so. It further invited the parties to file posttrial briefs and attach additional documents they believed pertinent to their arguments. This court previously has rejected the use of such a procedure. Although seemingly efficient, it deprives both parties of their right to contest the pertinence of such last-minute, off-the-record submissions. See IN Energy Solutions, Inc . v. Realgy, LLC , 114 Conn. App. 262, 268-69, 969 A.2d 807 (2009) (court erred in relying on supplemental documentation contained in supplemental briefs that was not introduced into evidence and no evidence in record supported court's award). The proper procedure would have been for the court to leave open evidence in the hearing, schedule another hearing date , and permit the parties to offer additional documents into evidence at that time. To the extent that the defendant relies on documents she attached to her posttrial briefs to prove she was owed a portion of tax refunds that the plaintiff received from filing individual federal and state tax refunds for 2010, we observe that those attachments are not in evidence, and there is no reference to them or indication in the court's memorandum of decision or in its decision on the motion to reargue/reconsider that it relied on them. We therefore decline to consider any of the defendant's attachments to her posttrial briefs because we cannot presume, as we can with evidence properly admitted during a trial, that the court relied on them. Despite the defendant's assertions to the contrary, the court did not address whether Attorney Nugent was owed any fees for services she may have rendered between February 6, 2014, and the date of the hearing on April 21, 2015. We have added back in a deduction the defendant claimed that the plaintiff improperly took on this affidavit for his current child support and alimony obligation in the amount of $692, a sum the court agreed should not have been deducted from his gross income. The defendant also claims the plaintiff should pay all of the fees for the guardian ad litem and reimburse her for what she has paid because she never wanted a guardian ad litem appointed in the first place. She agreed, however, in writing and in court, on May 2, 2013, that a guardian ad litem should be appointed. We note that, on the basis of the file and after considering the previously noted comments of both Judge Gordon and Judge Gould as to the defendant's tenacity, it would not be fair to say that the need for a guardian ad litem to help resolve parenting issues was caused only by the actions of the plaintiff. There is a statement from Nugent that was filed in court on July 1, 2014, indicating a total balance due of $12,998.75. This statement reflected that as of June 12, 2014, the plaintiff had paid Nugent $3920 and the defendant had paid her $1080. If the amounts owed to Nugent that are reflected on the parties' financial affidavits of July 10, 2015, are accurate, each of them should have paid Nugent additional sums between February 6, 2014, and July 10, 2015, although neither of them indicated as such during the hearing. We decline to consider the defendant's self-serving, unsupported assertions as to her lack of an earning capacity contained in one of her three posttrial briefs, which are based on facts not in evidence. See footnote 15 of this opinion. The May 2, 2013 agreement is in writing, signed by both parties and states in relevant part: "The [plaintiff's] motion to modify child support shall go off with orders retroactive to today. However, [the plaintiff] retains the right to seek retroactivity to the filing of the motion." The agreement was approved and made an order of the court on May 2, 2013. We conclude that the court did not issue a retroactive order because it would have had to consider any changes in the plaintiff's income between 2013 and 2015 in order to do so, and it refers only to the plaintiff's financial affidavit of July 10, 2015. See Zahringer v. Zahringer , 124 Conn. App. 672, 688-89, 6 A.3d 141 (2010) (retroactive award may take into account long time period between date of retroactivity and date motion is heard; court may examine changes in parties' incomes and needs during time motion pending to fashion equitable award). Rather than appealing, the defendant should have reclaimed her motion for modification to the family short calendar in 2015, which would have been a much more efficient way of ensuring it was promptly heard. The parties' youngest child became eighteen years old in 2016. There is no explanation given on the record for the $794.45 amount the defendant claimed during the hearing on April 22, 2015, and the stipulated amount of $796.85, a $2.40 differential that favors the defendant.

12503935

Kimberly CHAMERDA et al. v. John OPIE et al.

Chamerda v. Opie

2018-10-23

AC 40573

982

1000

197 A.3d 982

197

West's Atlantic Reporter, Third Series

Connecticut Appellate Court

Connecticut

2021-08-27T20:57:41.731571+00:00

Fastcase

DiPentima, C.J., and Elgo and Pellegrino, Js.

Kimberly CHAMERDA et al. v. John OPIE et al.

Kimberly CHAMERDA et al. v. John OPIE et al. AC 40573 Appellate Court of Connecticut. Argued May 24, 2018 Officially released October 23, 2018 David L. Weiss, East Haven, for the appellant (named plaintiff). James E. O'Donnell, Fairfield, for the appellee (named defendant). Nadine M. Pare, Cheshire, for the appellee (defendant Norbert W. Church, Jr.). DiPentima, C.J., and Elgo and Pellegrino, Js.

8769

53486

DiPENTIMA, C.J. The plaintiff Kimberly Chamerda inherited certain real property from her aunt, Elsie Nemeth. The defendant John Opie, who owned an adjacent parcel, hired the defendant Norbert W. Church, Jr., an attorney, to commence a legal challenge to the plaintiff's ownership of part of the property. After that action eventually was withdrawn, the plaintiff brought the present action in the Superior Court against Opie and Church for slander of title. The plaintiff now appeals from the judgment of dismissal for lack of subject matter jurisdiction, claiming that the trial court erred by (1) concluding that the defendants were entitled to absolute or qualified immunity, or both, and (2) failing to apply the law of the case doctrine to bar the defendants from raising the immunity defense in their joint motion to dismiss where they had made nearly identical arguments in earlier motions for summary judgment. In addition to responding to the plaintiff's claims on appeal, the defendants raise an alternative ground on which to affirm the judgment: They claim that the court erred by denying their motions for summary judgment where their actions were privileged or the statute of limitations had run, or both. Although we agree with the plaintiff that the trial court erred in concluding that the challenged actions were absolutely privileged and therefore that it lacked subject matter jurisdiction, we nevertheless agree with the defendants that they were entitled to summary judgment on the statute of limitations ground. Accordingly, the form of the judgment is improper; we reverse the judgment of dismissal and remand the case to the trial court with direction to render judgment in favor of the defendants. The relevant facts and procedural history are as follows. In 1984, Opie purchased 15 Buena Vista Road in Branford from Beatrice Hull and Ruth Warner, sisters who had inherited that land from the estate of their father, Howard Kelsey. In addition to lot 15, which had been his residence, Kelsey once owned the two adjacent parcels to the east, lots 19 and 23. In 1960, however, Kelsey sold lot 23 to Elsie Nemeth and her husband, which they then used as their residence. Between the two homes, on lot 19, was a building known as the Vernon Glove Factory (factory). Kelsey and Nemeth formed a partnership to operate a business called the Vernon Glove Company (company) out of the factory. On March 8, 1974, Kelsey divided lot 19 along the roof ridgeline of the factory. He quitclaimed the eastern part to Nemeth, with certain conditions. On the same day, March 8, 1974, Kelsey executed a will by which he left his partnership interests in the company to Nemeth, also with conditions. He left lot 15, as well as the residue and remainder of his estate, to Hull and Warner. Three years later, on March 14, 1977, Nemeth quitclaimed lot 19 east back to Kelsey so that they could remove the conditions on the original deed; Kelsey immediately quitclaimed lot 19 east back to Nemeth, without conditions. Shortly thereafter, on May 23, 1977, Kelsey died. On June 23, 1977, the Branford Probate Court admitted Kelsey's will and appointed Attorney Frank J. Dumark as executor. Dumark initially issued two certificates of title, stating an opinion that Nemeth had owned both lot 19 west and lot 19 east. Later, however, he included lot 19 west as part of Kelsey's estate. Years later, Dumark's administration account was filed; it did not propose distribution for any of the real property in Kelsey's estate. On February 11, 1981, the Branford Probate Court issued an order stating that there were other assets to be had that would be in the best interests of the beneficiaries of the estate and that the administration account would not be accepted as a final account but, instead, would remain an interim account. Dumark never closed the estate, and it remained open for twenty-five years. From the time Opie purchased lot 15 until some point in 2003, he believed that Nemeth owned all of lot 19. In 2003, however, Opie had his property surveyed in preparation for the construction of a deck. The surveyor advised him that nothing existed in the land records to prove Nemeth's ownership of lot 19 west. Opie then hired Church to investigate; Church discovered that lot 19 west remained in Kelsey's open estate and opined that it should have been devised to Hull and Warner as part of the residue of Kelsey's estate. Church drafted a quitclaim deed for Warner to sign that conveyed to Opie whatever interests she may have had in lot 19 west. The signed deed was recorded on April 28, 2005, along with the survey. On November 9, 2006, Nemeth died testate, leaving her home and interests in the company to the plaintiff. On December 27, 2007, the executrix of Nemeth's estate requested that the Branford Probate Court issue a revised certificate of devise transferring to Nemeth, and thus to her estate, lot 19 west. On March 5, 2008, however, Church filed a motion for a hearing in the Branford Probate Court on behalf of Opie to determine who was entitled to lot 19 west. The motion argued that the Probate Court had never issued a certificate of devise, that Kelsey's estate remained open, that Warner and Hull had an interest in lot 19 west as residue of Kelsey's estate, and that Opie was Warner's successor in title. The Branford Probate Court reviewed the archived record and discovered a certificate of devise for lot 19 west in favor of Nemeth. The court noted, however, that this certificate was not part of the official records and was not recorded on the Branford Land Records. Nevertheless, the court denied the request for a hearing on the ground that the certificate demonstrated that the original Probate Court determined that Kelsey devised the property to Nemeth. On July 23, 2008, Church appealed the denial of the hearing request to the Superior Court on behalf of both Opie and Warner. Concomitant with that appeal, Church filed a notice of lis pendens on July 25, 2008. On July 2, 2010, the trial court, Hon. William L. Hadden, Jr. , judge trial referee, remanded the case to the Branford Probate Court for "an evidentiary hearing . to determine who is entitled to a certificate of devise as to [lot 19 west]." That hearing was held in the spring of 2011; the Branford Probate Court issued its decision on July 20, 2011. The court, having heard the evidence and reviewed the arguments de novo, concluded that lot 19 west belonged to the company and therefore that Kelsey intended to transfer his interests therein to Nemeth as a company asset. See footnote 3 of this opinion. On August 17, 2011, Church appealed the July 20, 2011 decision to the Superior Court on behalf of Opie, Warner, and the successors in interest to Hull and her estate. Accordingly, a second notice of lis pendens was recorded on August 26, 2011. Pursuant to an agreement reached by the parties, on June 28, 2012, the appeal was withdrawn and releases of the notices of lis pendens were recorded. On April 1, 2013, the plaintiff commenced this action against the defendants for slander of title. On June 3, 2015, Church filed a motion for summary judgment, as did Opie on August 6, 2015. In both motions, the defendants argued that the statute of limitations had passed and that the alleged conduct was absolutely privileged. The plaintiff objected to those motions on December 4, 2015; the court denied them in a written decision dated April 25, 2016. In its decision, the court recited the applicable law and stated that "[t]he court concludes that [there] are issues of fact which deny the granting of summary judgment." On January 27, 2017, the defendants filed a joint motion to dismiss for lack of subject matter jurisdiction, to which the plaintiff objected. In that motion, the defendants raised substantively the same immunity argument set forth in their motions for summary judgment, but this time couched in terms of subject matter jurisdiction. On June 5, 2017, the court granted the motion to dismiss. On June 23, 2017, the plaintiff appealed. As a preliminary matter, we must clarify what is and what is not being challenged in this appeal. The original bases for the plaintiff's claims for slander of title as alleged in the operative complaint, the third amended complaint, dated February 11, 2015, are as follows: (1) the drafting of the June, 2003 survey, which was revised on December 6, 2004, and recorded on April 28, 2005; (2) the drafting of the quitclaim deed, dated May 26, 2004, and the recording thereof on April 28, 2005; (3) the drafting of the first notice of lis pendens, dated July 23, 2008, and the recording thereof on July 25, 2008; (4) the drafting of the second notice of lis pendens, dated August 17, 2011, and the recording thereof on August 26, 2011; and (5) the prosecution of the Probate Court appeal proceedings, namely, the motion for a hearing, dated March 5, 2008, the first appeal, dated July 23, 2008, and the second appeal, dated August 17, 2011. On appeal, the plaintiff asserts that her slander of title claims are founded only on the drafting and recording of the deed and survey, and that she briefed her appeal accordingly. Consequently, the plaintiff's claims on appeal, properly stated, are that the trial court erred by (1) improperly granting the motion to dismiss for lack of subject matter jurisdiction on the ground that the preparation and recording of the deed and survey were absolutely privileged and (2) failing to apply the law of the case doctrine to bar the defendants from arguing anew that the preparation and recording of the deed and survey were absolutely privileged in their motion to dismiss. The defendants challenge these arguments; further, as an alternative ground on which to affirm the judgment, the defendants contend that the statute of limitations bars the plaintiff's claim. Because we agree with the defendants that the statute of limitations applies to bar the plaintiff's claims for slander of title insofar as they were founded upon the deed and survey, and because the plaintiff challenges only those actions on appeal, we conclude that the defendants were entitled to summary judgment and, accordingly, do not reach the other claims. I First, we must determine whether the trial court had subject matter jurisdiction over the plaintiff's claims with respect to the deed and survey. We do so even though the motion to dismiss was filed subsequent to the motion for summary judgment because "[s]ubject matter jurisdiction involves the authority of the court to adjudicate the type of controversy presented by the action before it.... [A] court lacks discretion to consider the merits of a case over which it is without jurisdiction." (Internal quotation marks omitted.) Fountain Pointe, LLC v. Calpitano , 144 Conn. App. 624, 648, 76 A.3d 636, cert. denied, 310 Conn. 928, 78 A.3d 147 (2013). Specifically, in this case, we must determine whether (1) the plaintiff has standing and (2) the recording of the deed and survey were "communications uttered or published in the course of judicial proceedings" such that they "are absolutely privileged so long as they are in some way pertinent to the subject of the controversy." (Internal quotation marks omitted.) Petyan v. Ellis , 200 Conn. 243, 245-46, 510 A.2d 1337 (1986). "In an appeal from the granting of a motion to dismiss on the ground of subject matter jurisdiction, this court's review is plenary. A determination regarding a trial court's subject matter jurisdiction is a question of law. When . the trial court draws conclusions of law, our review is plenary and we must decide whether its conclusions are legally and logically correct and find support in the facts that appear in the record." (Internal quotation marks omitted.) Stones Trail, LLC v. Weston , 174 Conn. App. 715, 735, 166 A.3d 832, cert. denied, 327 Conn. 926, 171 A.3d 59 (2017). A The defendants contend that the plaintiff lacks standing because she "did not have any interest in or title to [lot 19 west] until after title was determined at the conclusion of the appeal from the decision of the Probate Court dated July 20, 2011, and the issuance of the only valid [c]ertificate of [d]evise from the [e]state of Howard Kelsey to Elsie Nemeth on July 17, 2012." We disagree. It is well established that "[a] party must have standing to assert a claim in order for the court to have subject matter jurisdiction over the claim.... Standing is the legal right to set judicial machinery in motion. One cannot rightfully invoke the jurisdiction of the court unless he has, in an individual or representative capacity, some real interest in the cause of action, or a legal or equitable right, title or interest in the subject matter of the controversy.... [T]he court has a duty to dismiss, even on its own initiative, any appeal that it lacks jurisdiction to hear.... Where a party is found to lack standing, the court is consequently without subject matter jurisdiction to determine the cause.... Our review of the question of [a] plaintiff's standing is plenary." (Citation omitted; internal quotation marks omitted.) Fountain Pointe, LLC v. Calpitano , supra, 144 Conn. App. 644. The defendants' standing argument misconstrues the law. First, "[a]ny kind of legally protected interest in land . may be disparaged if the interest is transferable and therefore salable or otherwise capable of profitable disposal. It may be real or personal, corporal or incorporeal, in possession or reversion. It may be protected either by legal or equitable proceedings and may be vested or inchoate. It may be a mortgage, lease, easement, reversion or remainder, whether vested or contingent, in land or chattels, a trust or other equitable interest.... This does not purport to be a complete catalogue of legally protected interests in land . capable of disparagement. There may be other interests recognized by the law of property that are salable or otherwise capable of profitable disposal and to which the rule stated in this Section is therefore applicable." Restatement (Second) of Property, § 624, comment (d), p. 344 (1977); see also W. Keeton et al., Prosser and Keeton on the Law of Torts (5th Ed. 1984) § 128, pp. 965-66. Thus, although "[n]othing vests by reason of [a will] during the life of the testator"; (emphasis omitted; internal quotation marks omitted) Zanoni v. Hudon , 42 Conn. App. 70, 75, 678 A.2d 12 (1996), citing 79 Am. Jur. 2d, Wills, § 7 (1975) ; the law giving rise to the tort of slander of title clearly contemplates a wider range of "interests" sufficiently cognizable to confer standing. Moreover, although it is true that a certificate of devise merely perfects an extant title, Nemeth took title, albeit contested, imperfect and not absolute, in lot 19 west immediately upon Kelsey's demise. See Cardillo v. Cardillo , 27 Conn. App. 208, 212, 605 A.2d 576 (1992) ("It is fundamental jurisprudence that title to real estate vests immediately at death in a deceased's heirs, or in devisees upon the admission of the will to probate.... The recording of a probate certificate of devise or descent is necessary only to perfect marketable title. That certificate furnishes evidence that the heir's or devisee's title is no longer in danger of being cut off by a probate sale to pay debts of the estate and also because it furnishes a record of who received the title. Such a probate certificate is not a muniment of title, however, but merely a guide or pointer for clarification of the record." [Citations omitted.] ). The plaintiff also produced evidence of a potential sale and the trouble she had in effecting the same. Thus, construing the evidence in the light most favorable to the plaintiff, as we must; see generally Padawer v. Yur , 142 Conn. App. 812, 818, 66 A.3d 931, cert. denied, 310 Conn. 927, 78 A.3d 145 (2013) ; Nemeth had a salable interest in lot 19 west that was adversely affected by the preparation and recording of the deed and survey, as did her specific devisee, the plaintiff. B Having concluded that the plaintiff had standing to bring the slander of title claims, we must determine whether the preparation and recording of the deed and survey, the only activities challenged here, were absolutely privileged such that the court lacked subject matter jurisdiction. See Bruno v. Travelers Cos. , 172 Conn. App. 717, 723, 161 A.3d 630 (2017) ("absolute immunity implicates the trial court's subject matter jurisdiction"). We conclude that the defendants' actions were not absolutely privileged. "As the doctrine of absolute immunity concerns a court's subject matter jurisdiction . we are mindful of the well established notion that, in determining whether a court has subject matter jurisdiction, every presumption favoring jurisdiction should be indulged.... The question before us is whether the facts as alleged in the pleadings, viewed in the light most favorable to the plaintiff, are sufficient to survive dismissal on the grounds of absolute immunity.... "Connecticut has long recognized the litigation privilege . [and has extended it] to judges, counsel and witnesses participating in judicial proceedings.... In Simms [v. Seaman , 308 Conn. 523, 531, 69 A.3d 880 (2013), our Supreme Court] noted that the doctrine of absolute immunity originated in response to the need to bar persons accused of crimes from suing their accusers for defamation.... The doctrine then developed to encompass and bar defamation claims against all participants in judicial proceedings, including judges, attorneys, parties, and witnesses.... [Our Supreme Court] further noted that, [l]ike other jurisdictions, Connecticut has long recognized the litigation privilege, and that [t]he general rule is that defamatory words spoken upon an occasion absolutely privileged, though spoken falsely, knowingly, and with express malice, impose no liability for damages recoverable in an action in slander . "Furthermore, in Rioux v. Barry , [283 Conn. 338, 343-44, 927 A.2d 304 (2007), our Supreme Court] explained that [t]he purpose of affording absolute immunity to those who provide information in connection with judicial and quasi-judicial proceedings is that in certain situations the public interest in having people speak freely outweighs the risk that individuals will occasionally abuse the privilege by making false and malicious statements.... [T]he possibility of incurring the costs and inconvenience associated with defending a [retaliatory] suit might well deter a citizen with a legitimate grievance from filing a complaint.... Put simply, absolute immunity furthers the public policy of encouraging participation and candor in judicial and quasi-judicial proceedings. This objective would be thwarted if those persons whom the common-law doctrine [of absolute immunity] was intended to protect nevertheless faced the threat of suit.... "In Simms v. Seaman , supra, 308 Conn. 540-45, [our Supreme Court] further discussed the expansion of absolute immunity to bar retaliatory civil actions beyond claims of defamation. For example, we have concluded that absolute immunity bars claims of intentional interference with contractual or beneficial relations arising from statements made during a civil action. See Rioux v. Barry , supra, 283 Conn. at 350-51, 927 A.2d 304 (absolute immunity applies to intentional interference with contractual relations because that tort comparatively is more like defamation than vexatious litigation). We have also precluded claims of intentional infliction of emotional distress arising from statements made during judicial proceedings on the basis of absolute immunity. See DeLaurentis v. New Haven , 220 Conn. 225, 263-64, 597 A.2d 807 (1991). Finally, we have most recently applied absolute immunity to bar retaliatory claims of fraud against attorneys for their actions during litigation. See Simms v. Seaman , supra, 545-46, 69 A.3d 880. In reviewing these cases, it becomes clear that, in expanding the doctrine of absolute immunity to bar claims beyond defamation, this court has sought to ensure that the conduct that absolute immunity is intended to protect, namely, participation and candor in judicial proceedings, remains protected regardless of the particular tort alleged in response to the words used during participation in the judicial process. Indeed, we recently noted that [c]ommentators have observed that, because the privilege protects the communication, the nature of the theory [on which the challenge is based] is irrelevant.... "It is well settled that communications uttered or published in the course of judicial proceedings are absolutely privileged [as] long as they are in some way pertinent to the subject of the controversy.... As to the relevance of the statements or documents produced . we note that our law provides for a very generous test for relevance." (Citations omitted; internal quotation marks omitted.) Bruno v. Travelers Cos. , supra, 172 Conn. App. at 724-27, 161 A.3d 630. In this case, the defendants contend that the preparation and recording of the deed and survey are privileged because the deed was prepared and recorded for the express purpose of conferring standing on Opie to bring his claim in the Probate Court, and the survey was prepared and recorded because it was referenced in the deed. The plaintiff, conversely, argues that the preparation and recording of the deed and survey are (1) too remote in time from the probate action to be related thereto and (2) too dissimilar in nature to the kinds of statements the doctrine of absolute immunity was meant to protect to be privileged. We agree with the plaintiff. The actions the court specifically addressed in granting the defendants' motion to dismiss were the preparation and recording of the two notices of lis pendens. These actions are immune in part due to statutory imprimatur. See General Statutes § 52-325. Moreover, they necessarily are relevant to specific litigation because they must give notice of "actions intended to affect real property." See General Statutes § 52-325 (b). Additionally, the notices of lis pendens necessarily identified in their text the specific legal actions to which they were related. The actions challenged in this appeal, however, are entirely different and do not square with the purpose for the privilege. First, the defendants failed to obtain a deed from both of Kelsey's daughters, suggesting that they were less concerned about actually obtaining title than with challenging the plaintiff's title. Second, the defendants' actions were undertaken some five years prior to the bringing of the probate action. Although this does not, in and of itself, exclude the preparation and recording of the deed and survey from the purview of the privilege, the remoteness in time does bear on the legitimacy of the connection between the actions and the judicial proceedings. The defendants' failure within several years to initiate any legal action once they had obtained what they concluded was sufficient standing undermines their arguments. More problematic is the notion that the deed and survey were recorded for the purpose of obtaining standing for some nebulous action that had yet to coalesce until the apparent owner had died. Second, the actions at issue are different in nature because although our statutes expressly permit the use of notices of lis pendens in the manner they were used here, our statutes specifically discourage the abuse of the land records for purposes of slandering title. See General Statutes § 47-33j. Given the defendants' admissions that the purpose of the deed and survey was to confer on Opie the ability to call into legal question the validity of Nemeth's title whenever he so chose to do so, i.e., after she died, these actions are distinct from the preparation and recording of the notices of lis pendens related to a specific judicial proceeding. Although the test for relevance is very generous, we must balance it against the requirement to construe the evidence in the light most favorable to jurisdiction. When we do so, this case falls outside the limits of legal generosity, and the plaintiff has colorable claims for slander of title. Therefore, weighing the evidence in the light most favorable to jurisdiction, we conclude that the defendants' actions and statements in preparing and recording the deed and survey were not absolutely privileged. Therefore, the trial court had subject matter jurisdiction over this case. II Next, we turn to the defendants' alternative ground to affirm that, even if their actions were not absolutely privileged, the court should have granted their motions for summary judgment because the plaintiff's claims were time barred. We conclude that this alternative ground is properly before this court and agree with the defendants that they were entitled to summary judgment. A First, we must consider whether we may properly address the alternative ground at all. Practice Book § 63-4 (a) (1) provides in relevant part: "If any appellee wishes to . (A) present for review alternative grounds upon which the judgment may be affirmed . that appellee shall file a preliminary statement of issues within twenty days from the filing of the appellant's preliminary statement of the issues. Whenever the failure to identify an issue in a preliminary statement of issues prejudices an opposing party, the court may refuse to consider such issue." Nevertheless, even where an alternative ground on which to affirm has been identified in a § 63-4 (a) (1) statement, in most cases, "[t]he appellee's right to file [such] statement has not eliminated the duty to have raised the issue in the trial court ." (Internal quotation marks omitted.) Thomas v. West Haven , 249 Conn. 385, 390 n.11, 734 A.2d 535 (1999), cert. denied, 528 U.S. 1187, 120 S.Ct. 1239, 146 L.Ed.2d 99 (2000). In this case, the defendants properly filed § 63-4 (a) (1) statements identifying the alternative ground at issue. Counsel for Opie conceded at oral argument before this court, however, that the defendants did not file a cross appeal to challenge the trial court's denial of their motions for summary judgment. Nevertheless, all parties had ample opportunity to address the underlying legal issues because they were raised repeatedly in briefing and argument before the trial court and this court. See DeBeradinis v. Zoning Commission , 228 Conn. 187, 198, n.7, 635 A.2d 1220 (1994). Accordingly, we conclude that we may address the alternative ground on which to affirm without prejudice to the plaintiff. B We turn therefore to the legal principles governing the defendants' claim. " Practice Book § 17-49 provides that summary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party.... The party moving for summary judgment has the burden of showing the absence of any genuine issue of material fact and that the party is, therefore, entitled to judgment as a matter of law.... On appeal, we must determine whether the legal conclusions reached by the trial court are legally and logically correct and whether they find support in the facts set out in the memorandum of decision of the trial court.... Our review of the trial court's decision to [deny] the defendant's motion for summary judgment is plenary.... "Public policy generally supports the limitation of a cause of action in order to grant some degree of certainty to litigants.... The purpose of [a] statute of limitation . is . to (1) prevent the unexpected enforcement of stale and fraudulent claims by allowing persons after the lapse of a reasonable time, to plan their affairs with a reasonable degree of certainty, free from the disruptive burden of protracted and unknown potential liability, and (2) to aid in the search for truth that may be impaired by the loss of evidence, whether by death or disappearance of witnesses, fading memories, disappearance of documents or otherwise.... Therefore, when a statute includes no express statute of limitations, we should not simply assume that there is no limitation period. Instead, we borrow the most suitable statute of limitations on the basis of the nature of the cause of action or of the right sued upon." (Citations omitted; internal quotation marks omitted.) Bellemare v. Wachovia Mortgage Corp. , 284 Conn. 193, 198-99, 931 A.2d 916 (2007). 1 The issue of which limitations period applies to a slander of title claim is an issue of first impression and a question of law over which our review is plenary. See Vaccaro v. Shell Beach Condominium, Inc. , 169 Conn. App. 21, 29, 148 A.3d 1123 (2016), cert. denied, 324 Conn. 917, 154 A.3d 1008 (2017). Slander of title is foremost a creature of the common law but also is referenced in the Marketable Title Act, General Statutes § 47-33b et seq. See footnote 11 of this opinion. Section 47-33j, however, does not include a specific limitations period, so we must "borrow the most suitable statute of limitations on the basis of the nature of the cause of action ." Bellemare v. Wachovia Mortgage Corp. , supra, 284 Conn. at 199, 931 A.2d 916. The defendants argue that General Statutes § 52-597 or, in the alternative, General Statutes § 52-577 should apply to bar the plaintiff's action. Although the plaintiff disagrees, she does not offer any alternative statute. We conclude that § 52-577 provides the appropriate limitations period. The tort of slander of title is defined as "the uttering or publication of a false statement derogatory to the plaintiff's title, with malice, causing special damages as a result of diminished value of the plaintiff's property in the eyes of third parties. The publication must be false, and the plaintiff must have an estate or interest in the property slandered. Pecuniary damages must be shown in order to prevail on such a claim." (Internal quotation marks omitted.) Elm Street Builders, Inc. v. Enterprise Park Condominium Assn., Inc. , 63 Conn. App. 657, 669-70, 778 A.2d 237 (2001), quoting 50 Am. Jur. 2d, Libel and Slander § 554 (1995); see also CHFA-Small Properties, Inc. v. Hussein Elazazy , 157 Conn. App. 1, 18, 116 A.3d 814 (2015) ; Fountain Pointe, LLC v. Calpitano , supra, 144 Conn. App. 653-55; Gilbert v. Beaver Dam Association of Stratford, Inc. , 85 Conn. App. 663, 672-73, 858 A.2d 860 (2004), cert. denied, 272 Conn. 912, 866 A.2d 1283 (2005). In dicta in Bellemare, our Supreme Court analogized the claim in that case, a violation of General Statutes § 49-8, to a slander of title claim in determining that the three year limitation on tort claims applied. Specifically, the court noted: "Slander of title is a tort whereby the plaintiff's claim of title [to] land or other property is disparaged by a letter, caveat, mortgage, lien or some other written instrument . A cause of action for slander of title consists of any false communication which results in harm to interests of another having pecuniary value . Such an action lies in tort and is akin to an action for damages pursuant to § 49-8." (Citations omitted; emphasis in original; internal quotation marks omitted.) Bellemare v. Wachovia Mortgage Corp. , supra, 284 Conn. at 202, 931 A.2d 916. Although dicta, this discussion of § 52-577 in connection with slander of title claims counsels in favor of applying the three year limitations period. See W. Keeton, supra, § 128, p. 963 ("Because of the unfortunate association with 'slander,' a supposed analogy to defamation has hung over the tort like a fog, and has had great influence upon its development. On the other hand, the action seems to have been recognized from the beginning as only loosely allied to defamation, and to be rather an action on the case for the special damage resulting from the defendant's interference." [Footnote omitted.] ) 2 Having concluded that § 52-577 applies, we next must determine the point at which the three year limitations period began to run. The plaintiff argues, essentially, that (1) as a matter of law, the statute of limitations does not begin to run until the defendants ceased to assert their claims against the plaintiff, and (2) in the alternative, the "continuing course of conduct" doctrine applies such that the limitations period does not begin to run until the cessation of all the conduct complained of, up to and including the second probate appeal and associated lis pendens. We disagree. The plaintiff first suggests that, as a matter of law, the limitations period commences only after the defendants ceased to assert their claims against her. In support of her argument, the plaintiff cites to a single case from the United States District Court for the Western District of Virginia, Warren v. Bank of Marion , 618 F.Supp. 317, 322 (W.D. Va. 1985) ("[u]nder the rule here adopted, this cause of action did not fully accrue and the limitations period did not begin to run until the defendants released their claim against [the plaintiff's] property"). She urges us to adopt its analysis. We decline to do so. We note that other jurisdictions have considered this question with differing conclusions. In some jurisdictions, the statute of limitations begins to run from the time of the act complained of. See, e.g., Hosey v. Central Bank of Birmingham, Inc. , 528 So.2d 843, 844 (Ala. 1988) ; Old Plantation Corp. v. Maule Industries, Inc. , 68 So.2d 180, 182-83 (Fla. 1953) ; Boaz v. Latson , 260 Ga. App. 752, 759, 580 S.E.2d 572 (2003), rev'd in part on other grounds, 278 Ga. 113, 598 S.E.2d 485 (2004) ; Walley v. Hunt , 212 Miss. 294, 309, 54 So.2d 393 (1951) ; Pro Golf Mfg., Inc. v. Tribune Review Newspaper Co. , 570 Pa. 242, 247, 809 A.2d 243 (2002). In other jurisdictions, the limitations period begins to run when the plaintiff reasonably could be expected to discover the existence of a claim. See, e.g., Stalberg v. Western Title Ins. Co. , 230 Cal. App. 3d 1223, 1230, 282 Cal.Rptr. 43 (1991) ; LaBarge v. Concordia , 23 Kan. App. 2d 8, 18, 927 P.2d 487 (1996). In still others, the limitations period begins to run upon pecuniary loss. See, e.g., State v. Mabery Ranch, Co., LLC , 216 Ariz. 233, 249, 165 P.3d 211 (Az. App. 2007) ; Rosenbaum v. New York , 8 N.Y.3d 1, 12, 861 N.E.2d 43, 828 N.Y.S.2d 228 (2006) ; Ellis v. Waldrop , 656 S.W.2d 902, 904-905 (Tex. 1983) ; Valley Colour v. Beuchert Builders , Inc., 944 P.2d 361, 364 (Utah 1997). Finally, in some jurisdictions, the limitations period begins to run only after the defendant ceases to maintain the adverse claim. See, e.g., Green v. Chamberlain , 60 So.2d 120, 124 (La. App. 1952) ; New England Oil & Pipe Line Co. v. Rogers , 154 Okla. 285, 7 P.2d 638 (Okla. 1931) ; Chesebro v. Powers , 78 Mich. 472, 479, 44 N.W. 290 (1889) ; Nolan v. Kolar , 629 S.W.2d 661, 663 (Mo. App. 1982). The jurisprudence of this state's appellate courts, however, consistently has endorsed the theory that the relevant limitations period begins to run at the occurrence of the act complained of. "This court has determined that [§] 52-577 is an occurrence statute, meaning that the time period within which a plaintiff must commence an action begins to run at the moment the act or omission complained of occurs.... Moreover, our Supreme Court has stated that [i]n construing our general tort statute of limitations . § 52-577, which allows an action to be brought within three years from the date of the act or omission complained of, we have concluded that the history of that legislative choice of language precludes any construction thereof delaying the start of the limitation period until the cause of action has accrued or the injury has occurred.... The three year limitation period of § 52-577, therefore, begins with the date of the act or omission complained of, not the date when the plaintiff first discovers an injury." (Citation omitted; internal quotation marks omitted.) Valentine v. LaBow , 95 Conn. App. 436, 444, 897 A.2d 624, cert. denied, 280 Conn. 933, 909 A.2d 963 (2006) ; PMG Land Associates, L.P. v. Harbour Landing Condominium Assn., Inc. , 135 Conn. App. 710, 717-18, 42 A.3d 508 (2012). Indeed, "[§] 52-577 is a statute of repose in that it sets a fixed limit after which the tortfeasor will not be held liable and in some cases will serve to bar an action before it accrues ." (Emphasis added; internal quotation marks omitted.) Targonski v. Clebowicz , 142 Conn. App. 97, 108, 63 A.3d 1001 (2013). Closer to the specific legal questions at issue in this case, this court previously has determined that, in the context of an ineffective lis pendens, the § 52-577 limitations period begins to run when the lis pendens is rendered ineffective, not when it is released. See PMG Land Associates, L.P. v. Harbour Landing Condominium Assn., Inc. , 172 Conn. App. 688, 694-95, 161 A.3d 596, cert. denied, 326 Conn. 911, 165 A.3d 1252 (2017). Although the deed and survey were never rendered "slanderous," that case applies with equal force to the legal instruments at issue in this case. Inasmuch as the plaintiff has alleged that the preparation and recording of the deed and survey were inherently "slanderous," the statute of limitations began to run, as a matter of law, upon the recording thereof on April 28, 2005. The plaintiff, however, also implies that the equities demand that we recognize the defendants' actions to be a continuing course of conduct such that the limitations period was tolled until the release of the notices of lis pendens. We disagree. "[I]n the context of a motion for summary judgment based on a statute of limitations special defense, a defendant typically meets its initial burden of showing the absence of a genuine issue of material fact by demonstrating that the action had commenced outside of the statutory limitation period.... When the plaintiff asserts that the limitations period has been tolled by an equitable exception to the statute of limitations, the burden normally shifts to the plaintiff to establish a disputed issue of material fact in avoidance of the statute.... "In certain circumstances . we have recognized the applicability of the continuing course of conduct doctrine to toll a statute of limitations. Tolling does not enlarge the period in which to sue that is imposed by a statute of limitations, but it operates to suspend or interrupt its running while certain activity takes place.... Consistent with that notion, [w]hen the wrong sued upon consists of a continuing course of conduct, the statute does not begin to run until that course of conduct is completed.... "[I]n order [t]o support a finding of a continuing course of conduct that may toll the statute of limitations there must be evidence of the breach of a duty that remained in existence after commission of the original wrong related thereto. That duty must not have terminated prior to commencement of the period allowed for bringing an action for such a wrong . Where we have upheld a finding that a duty continued to exist after the cessation of the act or omission relied upon, there has been evidence of either a special relationship between the parties giving rise to such a continuing duty or some later wrongful conduct of a defendant related to the prior act.... Therefore, a precondition for the operation of the continuing course of conduct doctrine is that the defendant must have committed an initial wrong upon the plaintiff.... A second requirement for the operation of the continuing course of conduct doctrine is that there must be evidence of the breach of a duty that remained in existence after commission of the original wrong related thereto.... The doctrine of continuing course of conduct as used to toll a statute of limitations is better suited to claims where the situation keeps evolving after the act complained of is complete . "In sum, [i]n deciding whether the trial court properly granted the defendant's motion for summary judgment, we must determine if there is a genuine issue of material fact with respect to whether the defendant: (1) committed an initial wrong upon the plaintiff; (2) owed a continuing duty to the plaintiff that was related to the alleged original wrong; and (3) continually breached that duty.... [I]f there is no genuine issue of material fact with respect to any one of the three prongs . summary judgment is appropriate." (Citations omitted; internal quotation marks omitted.) Vaccaro v. Shell Beach Condominium, Inc. , supra, 169 Conn. App. at 44-45, 148 A.3d 1123 ; see also Targonski v. Clebowicz , supra, 142 Conn. App. at 108-109, 63 A.3d 1001. Opie's failure to withdraw the deed and survey was not a continuing breach of a continuing duty. First, there clearly was no special relationship between the parties in this case. Second, there was no "later wrongful conduct . related to a prior act." (Internal quotation marks omitted.) Vaccaro v. Shell Beach Condominium, Inc. , supra, 169 Conn. App. at 44, 148 A.3d 1123. Under similar circumstances, our appellate courts have concluded that the failure to rectify the existence of an injurious instrument on the land records is a single occurrence. See Bellemare v. Wachovia Mortgage Corp. , supra, 284 Conn. at 202-205, 931 A.2d 916 (failure to deliver release of mortgage lien not continuing course of conduct); PMG Land Associates, L.P. v. Harbour Landing Condominium Assn., Inc. , supra, 172 Conn. App. at 695-98, 161 A.3d 596 (failure to release lis pendens not continuing course of conduct). Accordingly, because the plaintiff does not challenge the dismissal of her claims insofar as they are not premised on the preparation and recording of the deed and survey, and because the recording thereof was a single occurrence completed some eight years before the commencement of the present action, her claims are untimely, and the trial court should have granted the defendants' motions for summary judgment. III Finally, in light of our conclusions and under the unusual circumstances of this case, we briefly must determine what disposition is proper. In Bruno v. Travelers Cos. , supra, 172 Conn. App. at 729, 161 A.3d 630, we held that where a court concludes that certain conduct is absolutely privileged, it should dismiss claims premised on such conduct. Thus, the court here properly dismissed the plaintiff's claims with respect to the actions not challenged in this appeal, namely the preparation and recording of the two notices of lis pendens and the prosecution of the probate appeals. Although the preparation and recording of the deed and survey were not privileged and thus do not implicate subject matter jurisdiction in the same way, the court should have granted summary judgment as to those claims because they were time barred. The form of the judgment is improper, the judgment dismissing the action is reversed and the case is remanded with direction to render judgment for the defendants. In this opinion the other judges concurred. Paul Gouin, the successor executor of the estate of Elsie Nemeth, was also a plaintiff at the trial court. All of Gouin's claims were dismissed, stricken, or abandoned. See Chamerda v. Opie , Superior Court, judicial district of New Haven, Docket No. CV-13-6037328-S, 2014 WL 4815912 (August 28, 2014) (58 Conn. L. Rptr. 865 ). He is not a participant in this appeal, and, therefore, we refer in this opinion to Chamerda as the plaintiff. Specifically, the deed provided that (1) "Nemeth shall not disturb [the company's] operation, claim rent, lease, sell said property or in any other way exercise ownership to the detriment of said [company]" and (2) in the event of either party's disposal of his or her interest in the company, "the buildings housing said [company] shall be razed within twelve . months of said happening at the expense of said [company] or sole ownership." Specifically, Kelsey's will provided: "I bequeath and devise all of my right, title and interest in [the company] and in and to all of the assets, real and personal, tangible and intangible owned by it, as shown by its books of account, to my partner, Elsie V. Nemeth, in fee; provided however that this gift shall be subject to all debts, obligations and claims of every sort outstanding against said [company] at the time of my death." Specifically, Kelsey's will provided: "To my daughters, Beatrice K. Hull and Ruth K. Warner, per stirpes, as tenants in common, I devise in fee my residence located on the sought side of Buena Vista Road in Branford . commonly known as 15 Buena Vista Road . All the rest, residue and remainder of the property which I may own . I bequeath and devise in equal shares to my daughter, Beatrice K. Hull and my daughter, Ruth K. Warner ." Specifically, Nemeth's will provided: "To my niece, Kimberly Chamerda . I devise and bequeath the real property located at 19 Buena Vista Road, Branford . if owned by me at the time of my death." Specifically, in granting the motion to dismiss, the court stated in relevant part: "The undersigned concludes that the law of the case doctrine does not apply on th[ese] issues. Therefore, the prior ruling of the court, Agati, J. , that there were disputed issues of fact preventing the entry of judgment, is inapplicable to the present issue, whether the action is barred by the absolute immunity doctrine. Although there is no Connecticut Appellate Court case directly on point, other jurisdictions have considered and decided whether a notice of lis pendens is protected by the doctrine of absolute immunity. At one point, a majority of jurisdictions concluded that absolute immunity applies.... However, recently, the trend appears to be that qualified immunity applies. Because none of the indicia that must be present to preclude the application of the doctrine of qualified immunity and because there is persuasive Superior Court authority which suggests that the filing of a lis pendens is absolutely privileged, this court grants the motion to dismiss." The defendants filed a subsequent motion for articulation to clarify whether the court dismissed the case in full. The court granted that motion, noting that "[i]t was the intention of the [court] to dismiss the entire case. The coding, as judgment in part, was erroneous." Although it is unclear from this record, the granting in full of the motion to dismiss suggests that the court agreed that the defendants' actions with respect to the deed and survey were privileged. Indeed, the plaintiff states in her appellate brief that "[w]hether or not the certificates of lis pendens are barred by the doctrine of absolute immunity has no bearing whatsoever as to whether there is subject matter jurisdiction for the [p]laintiff's slander of title claims arising from the wrongful preparation and recording of the [d]eed and [s]urvey as alleged by the [p]laintiff in the [t]hird [a]mended [c]omplaint." Later, she states that "the preparation and recording of the [d]eed and [s]urvey . are the factual basis of the [p]laintiff's slander of title claims." This mirrors her apparent concessions before the trial court that the notices of lis pendens are absolutely privileged. At common law, "communications uttered or published in the course of judicial proceedings are absolutely privileged so long as they are in some way pertinent to the subject of the controversy." (Internal quotation marks omitted.) Petyan v. Ellis , 200 Conn. 243, 245-46, 510 A.2d 1337 (1986) ; see also Bruno v. Travelers Cos. , 172 Conn. App. 717, 719 n.2, 161 A.3d 630 (2017) (discussing distinctions between terms "absolute immunity," "absolute privilege," and "litigation privilege"). We note that the court concluded that the preparation and recording of the notices of lis pendens were entitled to qualified immunity. We read Simms v. Seaman , 308 Conn. 523, 569 n.30, 69 A.3d 880 (2013), as a rejection of the doctrine of qualified immunity. Accordingly, we analyze the defendants' claims in terms of absolute immunity. Arguably, with the evidence at his disposal, Opie already may have had sufficient standing to bring a quiet title action. See, e.g., Fountain Pointe, LLC v. Calpitano , supra, 144 Conn. App. 644-45 ("An action to quiet title 'may be brought by any person claiming title to, or any interest in, real or personal property, or both,' against any person who may 'claim to own the property, or any part of it, or to have any estate in it . adverse to the plaintiff, or against any person in whom the land records disclose any interest, lien, claim or title conflicting with the plaintiff's claim, title or interest, for the purpose of determining such adverse estate, interest or claim, and to clear up all doubts and disputes and to quiet and settle the title to the property....' General Statutes § 47-31 (a). Furthermore, § 47-31 (a) provides: 'Such action may be brought whether or not the plaintiff is entitled to the immediate or exclusive possession of the property.' Thus, under § 47-31, any person having any interest in real property that is affected by a mortgage, the validity of which is being challenged, may bring an action to quiet title and seek to have the court declare the mortgage invalid." [Emphasis in original.] ). General Statutes § 47-33j provides: "No person may use the privilege of recording notices under sections 47-33f and 47-33g for the purpose of slandering the title to land. In any action brought for the purpose of quieting title to land, if the court finds that any person has recorded a claim for that purpose only, the court shall award the plaintiff all the costs of the action, including such attorneys' fees as the court may allow to the plaintiff, and in addition, shall decree that the defendant asserting the claim shall pay to the plaintiff all damages the plaintiff may have sustained as the result of such notice of claim having been so recorded." But see Blumberg Associates.Worldwide, Inc. v. Brown & Brown of Connecticut, Inc. , 311 Conn. 123, 164, 84 A.3d 840 (2014) ("[t]reatment of [unpreserved, alternative grounds for affirmance] claims depends on three variables: (1) whether the claim was raised in the trial court; (2) whether the claim was raised on appeal; and (3) whether the appellant would be entitled to a directed judgment if it prevailed on the claim that it raised on appeal, or whether, instead, there would be further proceedings in the trial court"). See Chadha v. Charlotte Hungerford Hospital , 272 Conn. 776, 787, 865 A.2d 1163 (2005) ("the trial court's partial denial of the defendants' motion for summary judgment, which had been filed on the basis of [a] colorable claim of absolute immunity, constitutes an appealable final judgment"). General Statutes § 52-597 provides: "No action for libel or slander shall be brought but within two years from the date of the act complained of." General Statutes § 52-577 provides: "No action founded upon a tort shall be brought but within three years from the date of the act or omission complained of." This court explicitly has held that our Supreme Court's discussion of slander of title in Bellemare was dicta insofar as it purportedly created a new element of the tort. See Fountain Point, LLC v. Calpitano , supra, 144 Conn. App. 654-55 ("The court's discussion of slander of title analogized the similarities between an action for damages under § 49-8 with the common-law tort of slander of title in order to bolster its holding that the three year tort statute of limitations was applicable.... We do not consider our Supreme Court's discussion of slander of title in Bellemare to have intended to lay down in positive form an additional element to a statutory slander of title cause of action." [Citation omitted; internal quotation marks omitted.] ). General Statutes § 49-8 governs the release of satisfied or partially satisfied mortgages, ineffective attachments, lis pendens or liens. But see 50 Am. Jur. 2d, Libel and Slander § 529 ("In the absence of a statute expressly referring to actions for slander of title, the statute of limitations applicable to actions for libel and slander often applies to actions for slander of title. Slander of title claims, however, may be governed by the limitation period for an action for an injury to the rights of the plaintiff, not arising on contract and not otherwise enumerated, or by a general statute of limitations for actions with no prescribed limitations." [Footnotes omitted.] ). For this reason, we also reject the plaintiff's argument that the limitations period should not have begun until she had actual notice of the filing of the deed and survey. Also, as discussed previously, our appellate courts have rejected the "discovery" theory for accrual adopted by other jurisdictions. See part II B 1 of this opinion.

12503934

STATE of Connecticut v. Elizardo MONTANEZ

State v. Montanez

2018-10-23

AC 40359

959

982

197 A.3d 959

197

West's Atlantic Reporter, Third Series

Connecticut Appellate Court

Connecticut

2021-08-27T20:57:41.731571+00:00

Fastcase

STATE of Connecticut v. Elizardo MONTANEZ

STATE of Connecticut v. Elizardo MONTANEZ AC 40359 Appellate Court of Connecticut. Argued April 19, 2018 Officially released October 23, 2018 Erica A. Barber, assigned counsel, for the appellant (defendant). Ronald G. Weller, senior assistant state's attorney, with whom, on the brief, were John C. Smriga, state's attorney, and Joseph T. Corradino, senior assistant state's attorney for the appellant (state). Alvord, Prescott and Beach, Js.

12191

73500

ALVORD, J. The defendant, Elizardo Montanez, appeals from the judgment of conviction, rendered following a jury trial, of murder in violation of General Statutes § 53a-54a (a), conspiracy to violate the dependency-producing drug laws in violation of General Statutes § 53a-48 and 21a-277 (a), and carrying a pistol without a permit in violation of General Statutes § 29-35 (a), and, following a court trial, of criminal possession of a firearm in violation of General Statutes § 53a-217 (a) (1). The defendant also appeals from the judgment revoking his probation after the trial court found him to be in violation of his probation in violation of General Statutes § 53a-32. On appeal, the defendant claims that (1) he was denied his right to due process and trial by a fair and impartial jury when the court denied his request for a mistrial after a bullet hole was discovered in the jury room during deliberations, and (2) the trial court abused its discretion in concluding that drive test survey data is admissible under the test for admissibility of scientific evidence set forth in State v. Porter , 241 Conn. 57, 698 A.2d 739 (1997), cert. denied, 523 U.S. 1058, 118 S.Ct. 1384, 140 L.Ed.2d 645 (1998). We affirm the judgments of the trial court. The jury reasonably could have found the following facts. At the defendant's request, Jesus Gonzalez contacted the victim, Ernesto Reyes-Santos, on April 7 or 8, 2014, to ask him to bring heroin from New York to Bridgeport. Gonzalez knew the victim through their heroin sales together. The victim would supply Gonzalez with heroin, and Gonzalez would bring customers to the victim. Gonzalez had also known the defendant for a long time, and the defendant became involved with Gonzalez and the victim's heroin business. The defendant told an acquaintance, Valerie Gomez-Delavega, with whom he socialized daily, that Gonzalez had someone coming from New York with drugs that the defendant needed her to try. He also told her that they were going to rob the person from New York and that they would have to kill him so that no one would retaliate. On April 9, 2014, Gonzalez agreed to meet the victim in Bridgeport on Davis Avenue, near where Gonzalez lived. Gonzalez drove his white Jeep Cherokee to the meeting spot at about 9 p.m., and the defendant walked from around the corner and got into the Jeep's front passenger seat. The victim arrived and got into the Jeep's backseat, sitting behind the passenger seat. The victim then "had words with the defendant." The defendant wanted to bring the heroin somewhere to have someone try it. The victim refused and exited the Jeep. The defendant also exited the Jeep and shot the victim, who later died of the gunshot wound at a hospital. Gonzalez then drove home and, at 9:24 p.m., called the defendant, who came to Gonzalez' house. When he arrived, the defendant pointed a gun at Gonzalez and said that if Gonzalez told anyone what happened he would kill him. The defendant also took Gonzalez' cell phone. The day after the victim was shot, the defendant asked Gomez-Delavega whether she had heard about the killing. He told her that they robbed the victim and that he had shot and killed him. The defendant said that he pulled the trigger and shot the victim as the victim reached for the gun, and that the victim fell out of the Jeep. A couple of days later, the defendant told Gonzalez to get rid of the Jeep and said that he would pay Gonzalez for it. Gonzalez parked it somewhere with the key in it and never saw it again. When Gonzalez asked the defendant why he did it, the defendant responded that "he was mad." Gonzalez told his girlfriend, Latasha Vieira, that the Jeep had been stolen, and Vieira reported it stolen to the police on May 8, 2014. Sometime after that date, the defendant went to the Walmart pharmacy where Vieira worked to find out whether Gonzalez had told her anything, and he asked her to leave with him after work. Vieira said no, and the defendant grabbed her as she walked away. She pushed him back and told him to leave and not come back. The defendant was arrested on July 14, 2014. Thereafter, the defendant was tried before a jury and found guilty of murder, conspiracy to commit a violation of the dependency-producing drug laws, and carrying a pistol without a permit. The court sentenced the defendant to a total effective term of fifty-two and one-half years of incarceration, followed by seven and one-half years of special parole. This appeal followed. Additional facts will be set forth as necessary. I The defendant first claims that he was denied his right to a fair trial by an impartial jury after his motion for a mistrial was denied. Specifically, he claims that jurors, during deliberations, "discovered bullet holes in the jury room" and that "there was no conceivable cure for the potential bias that may have developed in jurors' minds as a result of this interference into the required solemnity of the trial process." The state responds that "the jurors were not in the deliberation room when the hole was created, and . there was no evidence that the incident was related to this case. Moreover, the trial court's thorough canvass of the jurors confirmed that they could continue deliberations without any prejudice to the defendant." Accordingly, the state argues that the court acted within its discretion in denying the motion for a mistrial. We agree with the state. The following additional facts and procedural history are relevant to the defendant's claim. On the afternoon of January 28, 2016, the jury's second day of deliberations, the jury delivered a note to the court requesting to go home for the day. The court agreed to release the jury for the day, and when the jury entered the courtroom, the court released the jury for the evening. At that time, the court asked: "Is there a question?" One of the jurors responded, stating: "There's a bullet hole in our window and the ceiling, and it's really disconcerting, and it wasn't there yesterday." The court responded: "All right. So, the maintenance has been notified. I know that you had asked to see a marshal, and maintenance has been notified. They're going to check it out. I'll give you an update tomorrow when we figure out exactly what it is, okay?" After the jurors were released for the day and exited the courtroom, the court addressed counsel: "Nobody has seen it yet. We'll have maintenance take a look. I'm not saying that it's a bullet hole; I don't know what it is, but let's have somebody look at it and then we'll give them an update. They're obviously concerned about it; they've mentioned it to the marshals; they've mentioned it here. The only question is whether we use a different room, then, for purposes of deliberation. If it's bothering them, I certainly don't want to distract them or-the word disconcerting, you know, you just don't want that. But I think it might make them feel better if we at least tell them what it is, one way or the other; so, we'll address that tomorrow, okay?" The next morning, defense counsel made an oral motion for a mistrial pursuant to Practice Book § 42-43. He argued, in part: "The Practice Book says that upon motion of a defendant, the judicial authority may declare a mistrial at any time during the trial if there occurs during the trial an error or legal defect in the proceedings, or any conduct inside or outside the courtroom which results in substantial and irreparable prejudice to the defendant's case. "And it's very concerning that this incident could cause irreparable damage. The jurors have not been interviewed yet, and I don't think we're going to interview them one by one, but there has to be a natural concern here that a young man was on trial for a shooting death is now being-his guilt or innocence is going to be determined by a group of twelve that believed possibly that someone is firing a gun into the jury room." The state opposed the motion, arguing that there was no connection between the bullet hole incident and the case before the jury. It further contended that any potential prejudice could be avoided by an instruction to the jury that it should not hold the incident against the defendant and should decide the case only on the basis of what it heard in court. In its ruling, the court stated: "I am going to deny the motion as it stands right now. We haven't inquired of the jury. The jurors brought it to our attention, and we addressed it immediately. I'm going to give them an instruction now. I'm going to inquire in terms of whether they're able to follow that instruction. I think that perhaps based on their response to that, that may warrant further discussion on this motion. But right now, on the four corners of the evidence that we have, the motion is denied. Now, I do want to put some things on the record in terms of how this occurred and the surrounding circumstances. But I think that perhaps first we'll address the jury and then just so that the record's very clear, let's put some things on the record so it's there for any further review, okay?" After the jury entered the courtroom, the court gave the following instruction: "So, in response to where we ended yesterday, I obviously was concerned with what you had brought to my attention. We brought that to the attention of the police department, both the local and the state police. It is being reviewed and investigated by them right now, which is one of the main reasons that we are not in that courtroom right now. We also obviously don't want that to be a distraction to you at all. It is, as I said, being reviewed, and they will look into that fully, and I appreciate your bringing that to our attention. "Now, in terms of this case itself, I'm giving you this instruction. The fact that obviously you brought this issue to our attention, and that it is being reviewed and investigated right now, is completely and totally unrelated to the case at hand, all right? There is zero suggestion that it relates to this case, and it is certainly not part of the evidence in this case. So, I am instructing you that you must keep that out of your mind as you're deliberating. "The defendant is entitled to his presumption of innocence and to the fact that you can impartially look at and review all of the evidence that has been presented in this case. That also means that you may infer no negative inference upon the defendant in any way in relation to this issue. "The deliberation process must continue based only on the evidence that was presented here in this courtroom while the court was in session. And you must not concern yourself with this issue at all in your deliberations. So, having said that, I'm going to ask all members of the jury to go back and report to me whether or not, and you don't have to do this individually, this can be done as a whole, whether or not you feel that you could follow that instruction; whether you could at this point continue to deliberate on this matter based only on the evidence presented in this courtroom while the court was in session, and not concern yourself in any manner whatsoever with this other issue and not hold it in any way against the defendant, all right? So, I'm going to ask that you all retire and write that in a note to me if you could. Thank you." After the jury exited, the court inquired of counsel whether there was "[a]nything else that you'd like me to indicate to them ." Both counsel responded in the negative, and defense counsel replied: "I think you covered it." The court followed up with defense counsel, remarking: "I know it's your motion right now. If there's a specific inquiry that you think I didn't make, then obviously you could let me know." Defense counsel responded: "No, I think what you did is sufficient because the ultimate question at this moment in time is whether they can continue to serve and follow the court's instructions, and disregard yesterday's incident. That is the ultimate question. So, I think what you did is sufficient." The court then placed the following on the record: "So, one thing I wanted to address was really just the sequence of events that the jury brought to the court's attention at the end of the day; the fact that they believed that there was in fact a bullet hole through the window; that I asked counsel to remain present so that we could all see it for ourselves. We all did, I think both state's attorneys, defense, myself, went back into the jury room. We went back into the jury room, and I wanted to make this clear for the record. After the clerk had gone in and taken out all of the exhibits, had taken out the notebooks, and had been able to secure what was a chalkboard in a situation where nobody could view or see the chalkboard. Ultimately, that chalkboard had to be transported down to this jury room, and what the clerks did was, they put large paper that was secured and taped around both sides of the chalkboard, and it was transported in that fashion. I certainly did not see anything, counsel did not see anything, and all of the evidence remains secure and away from anybody's ability to review it." At this point, the jury delivered a note, which the court read aloud and marked as the court's exhibit seven. The note, signed by the foreperson, stated: "We are fine with continuing our deliberations without any prejudice." The court then indicated that it would continue making a record of the incident before hearing any further argument from counsel. The court continued: "So, the marshals were there for the viewing. At that point, we called in the state police, as they do have jurisdiction. As circumstance had it, the Bridgeport police crime scene unit came in to have a warrant signed, and they were able to inquire as to whether there had been any reports of shots fired or any complaints that had occurred last night or in the immediate vicinity to the trial. And they had indicated that they did not, and so the state police took over the investigation and they continued to do that throughout the night. It is my understanding that they are in the courtroom now. I believe the major crime squad is here. They have blocked off the courtroom so that they can try to secure the evidence and complete the investigation. I know that we have additional presence in the building today in terms of just making sure that security is okay as they continue this investigation. There is an article that apparently just hit the [news]papers relating to this incident." The court then discussed with counsel the newspaper articles describing the incident, and the court indicated that the jury would be instructed that it may not review any media reports. The court further noted that the articles had been released after the jurors had reported for the day, and thus, they would not have seen them. After agreeing with the court that the record should reflect that "it would likely be impossible for the jurors to see" a particular article that included the defendant's name, defense counsel stated: "Other than that, I don't have anything else that needs to be added. I think the court covered it well, and your review is accurate." The jury continued its deliberations until it returned with a question regarding proximate cause. The court further instructed the jury regarding proximate cause, and the jury recommenced deliberations. That afternoon, January 29, 2016, the jury returned its verdict. On February 1, 2016, the defendant filed a motion for a new trial, arguing in part that the court had improperly denied his motion for a mistrial because the bullet hole incident had resulted in "substantial and irreparable prejudice to the defendant's case." During oral argument on the motion for a new trial, defense counsel represented that he became aware that the jurors had tried to determine the direction from which the bullet may have been shot and that the jurors had requested a state trooper escort to their cars after returning their verdict. The state responded by repeating that the jury was not in the room when the bullet was fired, and that the jury "satisfying an itch of curiosity" in looking at the building could not "fairly be said to have affected the determination on the verdict in this case." The court addressed defense counsel's argument by remarking that no one knew when the "small hole" discovered by the jurors was made, but that "there was no suggestion" that it was made while the court was in session or while the jurors were there. The court further stated that once it was brought to the court's attention, the jurors were released for the day and that they returned to deliberations the next day in a different room. The court had inquired of the jury and instructed it that "the hole, whatever it turned out to be, had no bearing upon this case or upon the defendant, [and] that they cannot consider it for purposes of their deliberations." The court stated that it had asked the jury to "go back and, in fact, deliberate, so to speak, as to whether they could continue to deliberate without any prejudice to the defendant and with incorporating the court's instructions that that bullet hole had-if, in fact, it is a bullet hole-but that hole that was found had nothing to do with this case or with the defendant or with anybody associated with the defendant." The court continued: "The jurors did come out and provided a note to the court in which they not only indicated that, yes, they could continue to deliberate, but, just to make it clear that they fully understood the instructions, said that they could continue-that they understood the court's instructions and could continue to deliberate. And they used . the word, to my memory right now, without any prejudice to the defendant. So, you know, that-that certainly, one, shows that-that they could follow the court's instructions and, two, that they understood that it could not have any bearing against the defendant in terms of their deliberations. "I will also indicate that the jurors had deliberated for a period of time. So, it's not as if they just came in and they were only deliberating for forty-five minutes. They, in fact, had asked for some playback, they received that playback both the day before and on the day in question. So, there was more to their deliberations than just that one moment in time certainly. That, additionally, with regard to whether or not the jurors had-had gone out to see the-the window from the outside of the courthouse, I agree with the state that there's no suggestion that-that there's any misconduct involved. They certainly didn't go and do any investigation with regard to an issue that they needed to deliberate on. I'm going to say this because I'm not sure that it-that this is clear for the record, that where the jurors park in Bridgeport requires them to walk outside by the area where you would see the window that is in question here. So, again, I don't think that there's anything on the record to suggest that the jurors said, let's go meet and look at the window, but that the record would be that they, in fact, need to walk by it in order to get to their cars. So, whether or not they were looking at the window in conjunction with walking to their car, you know, I-I can't speak to that. But I just want it clear for the record that that's the way that they would need to go. "And in terms of requesting the escort to their cars, I think we all know, from having done cases and certainly on some of the more serious cases, that after the verdicts are rendered, sometimes the juries do not appreciate having to walk on their own outside where there is some attention, both by way of media or family. And so that request was-was certainly agreed to and accommodated. But again, in no way was there ever a suggestion by any party or any side that there was any misconduct or any concern that related to that specific bullet hole if, in fact, it is a bullet hole. So, with that factual understanding on the record for any appellate purposes, I am denying the motion for a new trial." The state also placed on the record that the layout of the courthouse required the jurors to use the public entrances and corridors, a fact with which the court agreed. We begin with our standard of review. "In our review of the denial of a motion for mistrial, we have recognized the broad discretion that is vested in the trial court to decide whether an occurrence at trial has so prejudiced a party that he or she can no longer receive a fair trial. The decision of the trial court is therefore reversible on appeal only if there has been an abuse of discretion." (Internal quotation marks omitted.) State v. Berrios , 320 Conn. 265, 274, 129 A.3d 696 (2016). "[J]ury impartiality is a core requirement of the right to trial by jury guaranteed by the constitution of Connecticut, article first, § 8, and by the sixth amendment to the United States constitution.... In essence, the right to jury trial guarantees to the criminally accused a fair trial by a panel of impartial, indifferent jurors.... The modern jury is regarded as an institution in our justice system that determines the case solely on the basis of the evidence and arguments given [it] in the adversary arena after proper instructions on the law by the court.... The United States Supreme Court has noted, however, that the [c]onstitution does not require a new trial every time a juror has been placed in a potentially compromising situation . [because] it is virtually impossible to shield jurors from every contact or influence that might theoretically affect their vote.... Were that the rule, few trials would be constitutionally acceptable.... We have recognized, moreover, that [t]he trial court, which has a first-hand impression of [the] jury, is generally in the best position to evaluate the critical question of whether the juror's or jurors' exposure to improper matter has prejudiced a defendant." (Internal quotation marks omitted.) State v. Ciullo , 140 Conn. App. 393, 417-18, 59 A.3d 293 (2013), aff'd, 314 Conn. 28, 100 A.3d 779 (2014). Appellate review of a trial court's preliminary inquiry into claims of jury misconduct or bias is governed by State v. Brown , 235 Conn. 502, 668 A.2d 1288 (1995). In Brown , our Supreme Court invoked its supervisory authority over the administration of justice to hold that "a trial court must conduct a preliminary inquiry, on the record, whenever it is presented with any allegations of jury misconduct in a criminal case, regardless of whether an inquiry is requested by counsel." (Internal quotation marks omitted.) State v. Anderson , 255 Conn. 425, 436, 773 A.2d 287 (2001). "The form and scope of such inquiry is left to the discretion of the trial court based on a consideration of multiple factors, including: (1) the private interest of the defendant; (2) a risk and value assessment of additional procedural safeguards; and (3) the government's interest.... In outlining these factors, we also [have] acknowledged, however, that [i]n the proper circumstances, the trial court may discharge its obligation simply by notifying the defendant and the state of the allegations, providing them with an adequate opportunity to respond and stating on the record its reasons for the limited form and scope of the proceedings held.... Accordingly, [a]ny assessment of the form and scope of the inquiry that a trial court must undertake when it is presented with allegations of jur[or] [bias or] misconduct will necessarily be fact specific." (Citation omitted; internal quotation marks omitted.) State v. James H. , 150 Conn. App. 847, 853, 95 A.3d 524, cert. denied, 314 Conn. 913, 100 A.3d 404 (2014). "Our role as an appellate court is limited . to a consideration of whether the trial court's review of alleged jury misconduct can fairly be characterized as an abuse of its discretion." (Internal quotation marks omitted.) State v. Anderson , supra, at 436, 773 A.2d 287. Our Supreme Court subsequently considered whether the preliminary inquiry required in Brown was sufficient in cases involving allegations of racial bias on the part of a juror. State v. Santiago , 245 Conn. 301, 340, 715 A.2d 1 (1998). Exercising its supervisory authority, the court concluded that Brown "[did] not go far enough" and held that "[s]uch inquiry should include, at a minimum, an extensive inquiry of the person reporting the conduct, to include the context of the remarks, an interview with any persons likely to have been a witness to the alleged conduct, and the juror alleged to have made the remarks." Id. Our Supreme Court declined to so exercise its supervisory authority in State v. Dixon , 318 Conn. 495, 509, 122 A.3d 542 (2015), to require a specific scope of questioning in situations involving concerns about juror bias due to fear. In Dixon , the jury delivered a note to the court, stating: "One of the court attendees approached/spoke to one of the jur[ors] at a public place yesterday, 5/17 late night. The one jur[or] told that individual . the jury cannot speak to anyone. Is this an issue? *We have safety concerns.*" (Internal quotation marks omitted.) Id., at 502, 122 A.3d 542. With respect to the contact with the attendee, the court held an in camera hearing, first questioning under oath the jury's foreperson, then the author of the note, and then each of the remaining jurors. Id., at 503-504, 122 A.3d 542. The court inquired, inter alia, whether the contact influenced each juror's vote in the verdict. Id., at 508, 122 A.3d 542. The court also inquired of the foreperson and the juror who authored the note about safety concerns raised by the jurors. "Both seemed to indicate that, although the jurors had raised questions about the safety issues involved in serving on a jury in a murder trial, none raised any specific concerns about this case in particular." Id. Our Supreme Court concluded that the trial court did not abuse its discretion in the manner in which it conducted a hearing to address the note, and further reasoned that "[a]llegations of fear do not give rise to the same concerns about prejudice as those raised by allegations of racial bias and, therefore, an inquiry pursuant to State v. Brown , supra, 235 Conn. at 526, 668 A.2d 1288, is sufficient." State v. Dixon , supra, at 509, 122 A.3d 542. In support of the defendant's claim on appeal that his right to a fair trial by an impartial jury was violated when the trial court denied his motion for a mistrial, the defendant in the present case argues that a Brown inquiry is not sufficient in the present case. Specifically, he argues that "an external interference of the scope presented here-a real, ascertainable threat to the safety of the jury during its deliberations, as opposed to more innocuous disruptions . requires a concrete, thorough procedure to ferret out bias to the defendant." Alternatively, he argues that the trial court's response was not sufficient to satisfy Brown . The state asserts that these arguments are unpreserved and unreviewable. The defendant maintains that his arguments are preserved, but seeks review under State v. Golding , 213 Conn. 233, 239-40, 567 A.2d 823 (1989), as modified by In re Yasiel R ., 317 Conn. 773, 781, 120 A.3d 1188 (2015), in the event that this court determines otherwise. We conclude that the arguments raised by the defendant in this appeal were not asserted before the trial court, which had expressly asked defense counsel whether there was any inquiry it did not make, and therefore, such arguments are unpreserved. "Arguments asserted in support of a claim for the first time on appeal are not preserved." Bharrat v. Commissioner of Correction , 167 Conn. App. 158, 181, 143 A.3d 1106, cert. denied, 323 Conn. 924, 149 A.3d 982 (2016). The defendant's claim, however, is reviewable pursuant to Golding because the record is adequate for our review and the claim is of constitutional magnitude. See State v. Biggs , 176 Conn. App. 687, 706, 171 A.3d 457, cert. denied, 327 Conn. 975, 174 A.3d 193 (2017). The defendant's claim fails on the merits because we hold, as further discussed, that there is no violation of constitutional law. We first conclude, pursuant to Dixon , that Brown provides the proper framework for analyzing the defendant's claim. The defendant, in an effort to demonstrate that the precautions taken in the present case were "wanting," directs this court's attention to cases in which the trial court questioned jurors individually in response to some allegation of juror misconduct or outside influence. See State v. Berrios , supra, 320 Conn. at 269-71, 298-99, 129 A.3d 696 (after defendant's mother approached juror outside courthouse to tell him that police officer who testified was lying, court conducted individual voir dire of jurors before determining that jury remained fair and unbiased); State v. Anderson , supra, 255 Conn. at 437-38, 773 A.2d 287 (after juror made statements, inter alia, that he "knew the defendant from the street" and that he was "not a nice guy," court conducted interviews with each juror to determine whether they could remain impartial); State v. Santiago , supra, 245 Conn. at 339, 715 A.2d 1 (hearing inquiring into alleged racial bias would permit court to observe juror's demeanor under cross-examination and to evaluate his answers in light of particular circumstances of case). In the present case, as the state emphasizes, the bullet hole incident was experienced by the jury as a group, and, thus, the trial court did not abuse its discretion in inquiring of the jury as a group whether it could follow the court's instruction and remain fair and impartial. As our Supreme Court has noted, "[a]ny assessment of the form and scope of the inquiry that a trial court must undertake when it is presented with allegations of jur[or] [bias or] misconduct will necessarily be fact specific." (Internal quotation marks omitted.) State v. West , 274 Conn. 605, 648, 877 A.2d 787, cert. denied, 546 U.S. 1049, 126 S.Ct. 775, 163 L.Ed.2d 601 (2005). Moreover, the defendant presents this court with no authority suggesting that a trial court is required to question jurors individually. To the contrary, Brown makes clear that in some instances, the trial court may fulfill its obligation by informing both parties of the allegations, providing them with an adequate opportunity to respond, and stating on the record its reasons for conducting a limited proceeding. State v. Brown , supra, 235 Conn. at 529, 668 A.2d 1288. The defendant argues that the bullet hole incident in the present case should be presumed prejudicial. "Under Remmer [v. United States , 347 U.S. 227, 74 S.Ct. 450, 98 L.Ed. 654 (1954) ], prejudice is not presumed unless the court is implicated in the alleged conduct, or there was an external interference with the jury's deliberative process via private communication, contact, or tampering with jurors that relates directly to the matter being tried." State v. Biggs , supra, 176 Conn. App. at 710, 171 A.3d 457 ; see also State v. Berrios , supra, 320 Conn. at 292, 129 A.3d 696 (concluding that "the Remmer presumption is still good law with respect to external interference with the jury's deliberative process via private communication, contact, or tampering with jurors that relates directly to the matter being tried" [footnote omitted] ). "[T]he improper contact must pertain directly to the merits of the matter, rather than merely relate to the trial more topically." State v. Berrios , supra, at 292 n.25, 129 A.3d 696. In the present case, the bullet hole incident in the jury room was determined by the court to be "completely and totally unrelated to the case at hand," and the jury was instructed further that "[t]here is zero suggestion that it relates to this case ." Accordingly, we conclude that the external interference did not pertain directly to the merits of the matter and was not presumptively prejudicial. The defendant argues that three circumstances contributed to prejudice in the present case: "(1) an initial threat in the form of gun violence; (2) a substantive correlation between the shooting and the alleged threatening involvement of the defendant; and (3) provable fear after trial." Specifically, he argues that "[t]he state's case-in-chief involved allegations of the defendant's purported efforts to silence witnesses and obstruct the police investigation." Those efforts included threatening Gonzalez at gunpoint. As we noted previously, however, the court issued a curative instruction to the jury that the bullet hole was unrelated to the case and that "you may infer no negative inference upon the defendant in any way in relation to this issue." It further reminded the jury that "[t]he deliberation process must continue based only on the evidence that was presented here in this courtroom while the court was in session." After receiving the curative instruction, the jury indicated that it could continue to deliberate without any prejudice to the defendant. It is well established that "[i]n the absence of an indication to the contrary, the jury is presumed to have followed [the trial court's] curative instructions." (Internal quotation marks omitted.) State v. Necaise , 97 Conn. App. 214, 225, 904 A.2d 245, cert. denied, 280 Conn. 942, 912 A.2d 478 (2006). The defendant also points to the fact that jurors requested a police escort to their cars after returning their verdict. The trial court addressed this claim by noting that it is not uncommon for jurors in cases involving serious charges to feel uncomfortable leaving the courthouse, walking by media and family, after returning their verdict. We reiterate that "[t]he trial court, which has a first-hand impression of [the] jury, is generally in the best position to evaluate the critical question of whether the juror's or jurors' exposure to improper matter has prejudiced a defendant." (Internal quotation marks omitted.) State v. Ciullo , supra, 140 Conn. App. at 418, 59 A.3d 293. Accordingly, we decline to disturb the trial court's assessment. We conclude that the initial inquiry in the present case complies with Brown 's mandate that the court conduct "a preliminary inquiry, on the record ." State v. Brown , supra, 235 Conn. at 526, 668 A.2d 1288. We note that the factual basis on which the court relied was established on the record, with both parties' knowledge and participation. See State v. Stuart , 113 Conn. App. 541, 555, 967 A.2d 532 (concluding that court did not abuse its discretion in concluding that no further inquiry was required beyond "limited inquiry" to the jury and curative instruction, where "on the record, the court immediately informed counsel of the submission to the jury of the exhibits at issue, [which had been marked as an exhibit for identification only] and extended the opportunity to comment"), cert. denied, 293 Conn. 922, 980 A.2d 914 (2009) ; cf. State v. Kamel , 115 Conn. App. 338, 348, 972 A.2d 780 (2009) ("court's ex parte interactions with the jurors and its unilateral determination that they did not consider the brass knuckles [which had been marked for identification only] during their deliberations further failed to fulfill the requirements of Brown because any preliminary inquiry must be conducted on the record"). Moreover, the court noted, just before issuing its inquiry to the jury, that "perhaps based on their response" to the court's question, it "may warrant further discussion on this motion." The inquiry itself addressed the central issue, whether the jury believed that it could follow the court's instruction and continue to deliberate based only on the evidence presented in the courtroom, and not concern itself in any manner with the bullet hole and not hold it against the defendant. After issuing the question, the court again sought counsel's input, specifically requesting that defense counsel let the court know if he thought there was any inquiry it did not make. Defense counsel responded: "No, I think what you did is sufficient because the ultimate question at this moment in time is whether they can continue to serve and follow the court's instructions, and disregard yesterday's incident. That is the ultimate question. So, I think what you did is sufficient." The jury responded to the court's question that it was "fine with continuing our deliberations without any prejudice." In light of the court's curative instruction, the jury's assurance that it could deliberate without prejudice to the defendant, the input the court sought from counsel, and the defendant's failure to request any further inquiry, the court did not abuse its discretion in conducting its inquiry. See State v. Necaise , supra, 97 Conn. App. at 225, 904 A.2d 245 (noting that defendant did not request further inquiry in concluding that "this case is one of those in which the failure to hold an evidentiary hearing does not violate the defendant's constitutional rights"); State v. Bangulescu , 80 Conn. App. 26, 51, 832 A.2d 1187 (noting defendant's failure to seek any additional questioning or investigation by court despite opportunities to do so in concluding that court did not abuse its discretion in conducting cursory inquiry), cert. denied, 267 Conn. 907, 840 A.2d 1171 (2003). Moreover, after the jury answered the court's question and the court placed additional facts on the record, defense counsel responded to the court: "I think the court covered it well, and your review is accurate." As stated previously, "[o]ur Supreme Court has recognized that [t]he trial court, which has a first-hand impression of [the] jury, is generally in the best position to evaluate the critical question of whether the juror's or jurors' exposure to improper matter has prejudiced a defendant." (Internal quotation marks omitted.) State v. Ciullo , supra, 140 Conn. App. at 419, 59 A.3d 293. We conclude that the court did not abuse its discretion in denying the defendant's motion for a mistrial. II The defendant's second claim on appeal is that the trial court abused its discretion in concluding that drive test survey data was admissible because it was reliable and relevant under State v. Porter , supra, 241 Conn. at 57, 698 A.2d 739. We conclude that the trial court did not abuse its discretion. The following additional facts and procedural history are relevant to the defendant's claim. On January 18, 2016, the state disclosed that it intended to proffer the expert testimony of Special Agent James J. Wines of the New Haven bureau of the Federal Bureau of Investigation (FBI) regarding cell site location information and drive test survey data. The next day, the defendant filed a motion to preclude Wines' testimony and a request for a Porter hearing as to Wines' testimony regarding the drive test survey data, arguing that such testimony was neither generally accepted nor relevant to the case. Specifically, the defendant argued that the drive test was not conducted until December, 2015, approximately twenty months following the shooting in April, 2014. The court held a hearing outside of the presence of the jury on January 25, 2016. Defense counsel represented at the outset that the defendant was not challenging the use of cell site technology evidence. Rather, the motion solely challenged the drive test survey data. The court granted the defendant's request for a Porter hearing, and the state proffered Wines' testimony. Wines, a member of the FBI's cellular analysis survey team (CAST), explained the drive test he conducted. After placing a scanner in his car, Wines conducted the test by driving around the Black Rock area where the crime occurred and surrounding areas while the tool is "scanning the environment and taking measurements of all of the signals from the different cell phone towers that it sees as it's driving around." The measurements were then "plotted using a mapping software program to give the actual coverage area of a particular tower." Wines testified that he believed a drive test would produce "an accurate representation of the coverage area of the particular sectors" in which he was interested because "the towers, the sectors, the orientation technology and the azimuths of the particular towers . had not changed from April of 2014 until December of 2015." Using one Sprint tower as an example, he testified that "the tower itself was the same, the sectors were the same, and the azimuths were the same, and the technology was the same. So, based upon that and based upon my training and experience, I would expect that the . radio frequency [RF] footprint of that particular tower or that particular sector would be the same in December of 2015 as it was in April of 2014." For purposes of the hearing only, the state marked an exhibit containing seven slides that Wines prepared depicting the drive test survey data. The slides illustrated the dominant and possible coverage areas for one Sprint cell sector, one AT & T cell sector, and one T-Mobile cell sector. The first slide showed the dominant and possible coverage area of Sprint tower 533, sector 3, azimuth 205. Wines testified that a handset making a call registering on that sector likely would be in the dominant coverage area, which has the "strongest clearest signal ." Within the possible coverage area, Wines stated that "there are other towers and sectors which would have dominant coverage," which creates "an overlap area." Wines testified that the cell phone industry routinely relies on drive test analysis, conducted in the same manner that he conducted his drive test, to "design, maintain and optimize their network so that they can provide the best coverage to their customers." He stated that drive test analysis was not developed solely for purposes of litigation but rather for carriers to optimize and maintain their cell networks. He testified: "[T]he cell phone industry is a multibillion-dollar industry, and there's a lot of competition between carriers. So, for example, if I had a Sprint phone and I kept dropping calls when I moved from one area to another, I would likely port my number over to another carrier, say, Verizon or T-Mobile, with the expectation I would get better cell phone coverage. So, the carriers don't want to lose customers. They don't want to lose their revenue stream, so they spend a considerable amount of time, effort, and resources to optimize their networks to provide the best coverage possible." On cross-examination, Wines testified that although he was not aware of any scientific publications or scholarly articles addressing drive test analysis, he was aware that "radio frequency theory has been in existence for 150 years; cell phones have been [in] existence . since the 1980s, and the way that cell phones communicate with towers has been generally accepted. All the drive test is, is a measurement of signal and plotting that signal on a map. I don't know of a scientific review; it's simply a collection or measurement of signal and then plotting that signal on a map." He further testified that "on a daily basis around the country, myself and other members of my team use drive test data . to locate fugitives, recover evidence, find victims; it works in a real world setting on a daily basis." In response to questioning regarding a rate of error, Wines stated: "I don't know about a rate of error, but in my own personal experience the handset has never not been where the record said it would be." With respect to the factors affecting whether a cell phone would connect with the closest tower, Wines testified that although topography could be a factor, "in this particular case there's a clear line of sight from the tower to the location where the incident occurred, so topography would not be an issue in this particular case." Wines stated that "day-to-day weather has negligible effect on cell service," but that a "catastrophic weather event" that physically damaged the tower could play a role. He further testified that call overload to a tower would not send a handset to a different tower-if the tower was at capacity, the call would not go through. Wines testified that he would not have conducted a drive test analysis in this case if something was different as to a tower. Regarding signal strength between April, 2014, and December, 2015, Wines testified: "I could not say that they are exactly the same, but I would expect them to be very similar." Wines testified that he reviews the status of the towers through lists provided by the carriers, and that although he did not specifically know whether any improvements were made to the equipment, some of the technology from the Sprint and AT & T towers were 2G and 3G, and that is "not a technology that undergoes a lot of change because it's an older technology." The court issued an oral ruling, finding that Wines' drive test analysis satisfied the first prong of Porter , in that it was "a procedure rooted in science," and was "supported and followed by police, law enforcement, FBI as well as the phone companies ." It further found that "it has been used for many years in a whole variety of means and methods," and that it was "not based on any subjective or speculative analysis." Turning to the second prong, the court found, for purposes of the initial inquiry, that the proffered evidence was relevant. The court noted: "I am not saying that everything that was addressed here or that the state indicated that they intended to question this witness on are necessarily permissible. I think we have to see what is objected to and what's not objected to." The court further found that "the issues of its effectiveness or its reliability go more to weight than it does to admissibility; but again, anytime that the defense deems it appropriate with regard to each individual question, they should in fact object if they think that the evidence is not properly admissible." Following the court's ruling, the jury returned to the courtroom, and the state began its direct examination of Wines. Wines testified as to the historical cell site analysis and drive test he conducted. The state introduced a PowerPoint presentation created by Wines, which depicted the cell site analysis and drive test survey data. Defense counsel did not object to the introduction of the presentation, nor did he object to any of the state's questions to Wines. According to the defendant, Wines "claimed to be able to eliminate the possibility that the cellular handset associated with the defendant was anywhere other than within the coverage area of a cell tower near the location of the shooting during the relevant time period." Through Wines' drive test survey data, the state posits that it was able to show that Gonzalez' phone "was located somewhere in the coverage area of the BJ's [Wholesale Club] tower just before the shooting and that the crime scene was also in that coverage area." According to the state, "[t]he drive test results further showed that both [Gonzalez'] and the defendant's phones were located somewhere in the coverage area of the BJ's tower minutes after the shooting, and that the crime scene was also in that coverage area." Wines testified that while "the call detail record reflects which tower the handset selected . the drive test results reflect the RF footprint of that particular tower and sector, and the handset could not have been anyplace else except within that RF footprint in order to make or receive a call." Before addressing the merits of the defendant's argument, we begin with the applicable legal principles and standard of review governing our analysis. In State v. Porter , supra, 241 Conn. at 57, 698 A.2d 739, "this court followed . Daubert v. Merrell Dow Pharmaceuticals, Inc ., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), and held that scientific evidence should be subjected to a flexible test, with differing factors that are applied on a case-by-case basis, to determine the reliability of the scientific evidence.... Following [ Porter ], scientific evidence, and expert testimony based thereon, usually is to be evaluated under a threshold admissibility standard [relating to] the reliability of the methodology underlying the evidence . "[I]n State v. Porter , supra, 241 Conn. at 78-80, 698 A.2d 739, we expressly recognized that, because the term scientific evidence houses such a large and diverse variety of topics, the formulation of a mechanical evidentiary standard of admissibility designed to apply universally to the many forms scientific evidence may take is an unworkable concept. Rather, the better formulation is a general, overarching approach to the threshold admissibility of scientific evidence . In accordance with this philosophy, we set forth in Porter a number of different factors, nonexclusive and whose application to a particular set of circumstances could vary, as relevant in the determination of the threshold admissibility of scientific evidence.... In particular, we recognized the following considerations: general acceptance in the relevant scientific community; whether the methodology underlying the scientific evidence has been tested and subjected to peer review; the known or potential rate of error; the prestige and background of the expert witness supporting the evidence; the extent to which the technique at issue relies [on] subjective judgments made by the expert rather than on objectively verifiable criteria; whether the expert can present and explain the data and methodology underlying the testimony in a manner that assists the jury in drawing conclusions therefrom; and whether the technique or methodology was developed solely for purposes of litigation.... "In Porter , we also set forth a fit requirement for scientific evidence.... We stated that the proposed scientific testimony must be demonstrably relevant to the facts of the particular case in which it is offered, and not simply be valid in the abstract.... Put another way, the proponent of scientific evidence must establish that the specific scientific testimony at issue is, in fact, derived from and based [on] . [scientifically reliable] methodology." (Emphasis omitted; internal quotation marks omitted.) State v. Guilbert , 306 Conn. 218, 231-32, 49 A.3d 705 (2012). "[I]t is well established that [t]he trial court has broad discretion in ruling on the admissibility [and relevancy] of evidence.... [Accordingly] [t]he trial court's ruling on evidentiary matters will be overturned only upon a showing of a clear abuse of the court's discretion." (Internal quotation marks omitted.) State v. Haughey , 124 Conn. App. 58, 72, 3 A.3d 980, cert. denied, 299 Conn. 912, 10 A.3d 529 (2010). "Because a trial court's ruling under Porter involves the admissibility of evidence, we review that ruling on appeal for an abuse of discretion." (Internal quotation marks omitted.) State v. Victor O ., 301 Conn. 163, 173, 20 A.3d 669, cert. denied, 565 U.S. 1039, 132 S.Ct. 583, 181 L.Ed.2d 429 (2011). On appeal, the defendant argues that the state failed to "meet its burden of showing that its drive test survey data met even minimal reliability and relevance requirements under Porter ." With respect to reliability, the defendant argues that the state (1) presented no studies supporting the accuracy of Wines' technique, (2) "provided no basis for Wines' conclusions about the cell site coverage at the time of the shooting in April, 2014," and (3) "did not provide information by which the trial court could judge the reliability of the method Wines used to arrive at his conclusions," where Wines conceded that certain factors may interfere with towers' signal strength. With respect to relevancy, the defendant argues that the state did not meet its burden, where "all the drive test survey data revealed was the coverage area of selected cell towers nearly two years after the incident at issue," and therefore the evidence lacked a valid scientific connection to the question before the jury. With respect to reliability, we conclude that the court did not err in concluding that Wines' methodology satisfied Porter 's first prong. The defendant challenges Wines' testimony on grounds that the state did not present any studies in support of his technique and that Wines himself could not provide a rate of error, thereby failing to demonstrate the accuracy of his approach. We first note that "[p]eer review and publication is . only one of several nonexclusive factors . No single Porter factor is dispositive." (Citation omitted.) Hayes v. Decker , 263 Conn. 677, 685 n.2, 822 A.2d 228 (2003) ; id. (trial court "improperly treated Porter as a mechanical factor test" in ruling that expert opinion was inadmissible because it was not supported by treatises or studies). Although our appellate courts have yet to address the issue of reliability of drive test survey data, this court has previously remarked generally that "the precision of drive testing makes it the preferred method for determining the shape and size of a cell sector ." State v. Steele , 176 Conn. App. 1, 23-24, 169 A.3d 797, cert. denied, 327 Conn. 962, 172 A.3d 1261 (2017). Certain federal courts have had occasion to consider the admissibility of drive test survey data under the Daubert standard, and have declined to find drive test data unreliable on the basis of a lack of scientific testing and publications. See, e.g., United States v. Morgan , 292 F.Supp.3d 475, 484 (D.D.C. 2018) (noting, in finding drive testing testimony sufficiently reliable, that "the Daubert inquiry is flexible, and a [c]ourt should not automatically exclude evidence because it is too new, or of too limited outside interest, to generate extensive independent research or peer-reviewed publications"); United States v. Allums , Docket No. 2:08-CR-30 TS, 2009 WL 806748, *2 (D. Utah March 24, 2009) (finding drive test methodology admissible despite expert being unable to identify rate of error or any peer review process the methodology has undergone); see also United States v. Mack , Docket No. 3:13-cr-00054 (MPS), 2014 WL 6474329, *4 (D. Conn. November 19, 2014) (concluding, in different context of estimating coverage area, that expert's methods were "not rendered unreliable merely because they have not been validated by scientific peer review"). Courts considering drive test survey data have looked to evidence presented that the data is successfully used to locate missing persons and fugitives as a type of "field testing" that can demonstrate reliability. See United States v. Allums , supra, 2009 WL 806748, at *2 ("the [c]ourt finds that the success achieved by [the agent] and others in catching fugitives while using this methodology is sufficient to establish the methodology's reliability"); see also State v. Steele , supra, 176 Conn. App. at 23, 169 A.3d 797 (noting that drive testing has been used by law enforcement agencies to track suspects and fugitives). Ultimately, a number of courts have determined that drive test survey data satisfies the Daubert factors. See, e.g., United States v. Frazier , Docket No. 2:15-cr-044-GMN-GWF, 2016 WL 4994956, *3 (D. Nev. September 16, 2016). We find these federal decisions persuasive in evaluating whether the trial court properly determined that Wine's methodology was reliable. Here, Wines testified during the Porter hearing that he and other members of the FBI CAST team use drive test data on a daily basis to locate fugitives, recover evidence, and find victims. He also testified to his own personal experience with the accuracy of drive testing, that "the handset has never not been where the record said it would be." We also find no error in the trial court's crediting, as a consideration weighing in favor of reliability, Wines' testimony that the cell phone industry routinely relies on drive tests, conducted in the same manner that he conducted his test, to "design, maintain and optimize their network ." See T-Mobile Central, LLC v. Unified Government of Wyandotte County/Kansas City, Kansas , 528 F.Supp.2d 1128, 1166 (D. Kan. 2007) (noting that "drive tests are widely used throughout the wireless industry and are generally recognized as reliable and accurate"), aff'd in part, 546 F.3d 1299 (10th Cir. 2008). Although the defendant argues that Wines' alleged inability to account for "various factors [that] may interfere with the signal strength of cell towers" goes to both reliability and relevancy, it more appropriately is analyzed under the relevance prong of Porter . See United States v. Morgan , supra, 292 F. Supp. 3d at 485. In fact, during the Porter hearing, defense counsel acknowledged the issue as one of relevancy. We conclude that the trial court did not err in concluding that the state's proffered evidence was relevant. Wines testified that the technology, towers, sectors, and azimuths were the same for the relevant towers from April, 2014, when the crime occurred, through December, 2015, when he conducted the drive test. He also testified that weather has a negligible impact on cell service and that there was an unobstructed view of the tower in question, such that topography would not be a factor in this case. Wines did not know "specifically whether or not there were any improvements" to the towers, but he was able to opine that "for example, with the Sprint tower, the type of [2G] technology . is not a technology that undergoes a lot of change because it's an older technology." Wines further opined that although he could not say that signal strength was exactly the same from April, 2014, to December, 2015, he "would expect them to be very similar." Such testimony is sufficient to satisfy the fit requirement of Porter . We reiterate that "the purpose of the Porter hearing is to ascertain the validity , not the weight , of the methodology underlying the proffered scientific evidence." (Emphasis in original.) Fleming v. Dionisio , 317 Conn. 498, 512, 119 A.3d 531 (2015). Challenges to Wines' alleged inadequacies in accounting for different variables were legitimate material for cross-examination of Wines at trial. See United States v. Allums , supra, 2009 WL 806748, at *2 (arguments that expert failed to account for weather conditions or possibility of high call volumes on days that defendant placed calls "would be appropriately raised on cross-examination"). We conclude that the court did not abuse its discretion in admitting the state's scientific evidence under Porter . The court therefore properly denied the defendant's motion in limine. Moreover, even if we assume, arguendo, that the challenged evidence was improperly admitted, the defendant has failed to show that any such impropriety was harmful. "When an improper evidentiary ruling is not constitutional in nature, the defendant bears the burden of demonstrating that the [impropriety] was harmful." (Internal quotation marks omitted.) State v. Guilbert , supra, 306 Conn. at 265, 49 A.3d 705. "[W]hether [an improper ruling] is harmless in a particular case depends upon a number of factors, such as the importance of the witness' testimony in the prosecution's case, whether the testimony was cumulative, the presence or absence of evidence corroborating or contradicting the testimony of the witness on material points, the extent of cross-examination otherwise permitted, and, of course, the overall strength of the prosecution's case.... Most importantly, we must examine the impact of the... evidence on the trier of fact and the result of the trial.... [T]he proper standard for determining whether an erroneous evidentiary ruling is harmless should be whether the jury's verdict was substantially swayed by the error.... Accordingly, a nonconstitutional error is harmless when an appellate court has a fair assurance that the error did not substantially affect the verdict." (Internal quotation marks omitted.) State v. Edwards , 325 Conn. 97, 133, 156 A.3d 506 (2017). We first note that the disputed evidence, "while compelling, was not vital to the state's case." State v. Bonner , 290 Conn. 468, 501, 964 A.2d 73 (2009). The heart of the challenged evidence before the jury consisted of Wines' conclusion, on the basis of his drive test survey data, that the cell phone associated with the defendant accessed a tower with a coverage area near the location of the shooting during the relevant time period, and that the phone could not have been anywhere else except within that coverage area in order to make that connection. There was, however, significant unchallenged evidence corroborating Wines' testimony on material points. See State v. Bouknight , 323 Conn. 620, 628, 149 A.3d 975 (2016) (any error harmless where, inter alia, state presented ample evidence corroborating challenged exhibits). Although the defendant challenged Wines' use of the drive test survey data, the defendant expressly did not challenge the historical cell site location evidence, from which the jury could conclude that shortly after the shooting, the defendant's cell phone accessed a tower that was located 0.39 miles from the crime scene. See State v. Edwards , supra, 325 Conn. at 134, 156 A.3d 506 (erroneous admission of police officer's testimony as to historical cell site location evidence was harmless, where "the jury still could conclude from the cell phone records themselves that the defendant's cell phone accessed cell towers in Rocky Hill and Wethersfield on the date of the robbery, which coincides with the victim's testimony that she was followed from the grocery store in Rocky Hill and robbed at her home in Wethersfield"). Further, the court did not limit the defendant's ability to challenge Wines' drive test survey data evidence. The defendant had a full opportunity to cross-examine Wines. See State v. Bonner , supra, at 501, 964 A.2d 73 (any error harmless where defendant had "full opportunity to cross-examine" witnesses whose testimony was challenged). Finally, even without the drive test survey data, the state had a strong case against the defendant. The jury had before it evidence that on the night of the shooting, the defendant was in telephone contact with Gonzalez, who was also in contact with the victim. Gonzalez' testimony put the defendant at the scene of the crime, and, as referenced previously, the historical cell site location evidence showed the defendant's phone accessing a cell tower near the crime scene shortly after the shooting. The jury also had before it the testimony of a number of individuals regarding incriminating statements the defendant had made both before and after the murder. See id. (error harmless where witness testified that defendant had confessed guilt to her). Gomez-Delavega testified that the defendant told her he was planning to rob the victim and that he would have to kill him to prevent retaliation. Moreover, after the murder, the defendant told Gomez-Delavega that he had, in fact, shot and killed the victim. The defendant also told Gonzalez that he would kill him if he told anyone and made Gonzalez get rid of the Jeep. The jury also heard testimony from Vieira that the defendant had approached her at her job, asking her whether Gonzalez had told her anything. For the previously discussed reasons, we conclude that any improper admission of the drive test survey evidence did not substantially affect the jury's verdict and it therefore was harmless. The judgments are affirmed. In this opinion the other judges concurred. Police officers were dispatched to the scene and arrived to find the victim lying in the street. The victim was transported to the hospital where he died. The cause of death was determined by autopsy as "a gunshot wound to the trunk." Gonzalez, who testified that he was originally charged with a number of offenses arising out of the events on April 9, 2014, including murder and conspiracy to commit murder, entered into a cooperation agreement with the state and ultimately pleaded guilty as a second offender to sale of narcotics in violation of General Statutes § 21a-277 (a). The defendant was tried before the court and convicted of criminal possession of a firearm and violation of probation. The defendant's principal brief to this court also includes a photograph above an explanatory caption depicting the affected window. The photograph was not made an exhibit at trial. The defendant requests that this court "reconsider" the determination made in Dixon . "It is axiomatic that, [a]s an intermediate appellate court, we are bound by Supreme Court precedent and are unable to modify it . [W]e are not at liberty to overrule or discard the decisions of our Supreme Court but are bound by them.... [I]t is not within our province to reevaluate or replace those decisions." (Internal quotation marks omitted.) State v. Madera , 160 Conn. App. 851, 861-62, 125 A.3d 1071 (2015). Under State v. Golding , supra, 213 Conn. at 239-40, 567 A.2d 823, "[a defendant] can prevail on a claim of constitutional error not preserved at trial only if all of the following conditions are met: (1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation . exists and . deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt." (Emphasis in original; internal quotation marks omitted.) State v. Biggs , 176 Conn. App. 687, 705-706, 171 A.3d 457, cert. denied, 327 Conn. 975, 174 A.3d 193 (2017). The defendant also proffers a related argument that certain intrusions are so disruptive that no actual prejudice must be demonstrated. He argues: "Where exposure to extreme prejudicing circumstances may have a deleterious effect on the jury's ability to remain fair and objective, a new trial may be necessary, even absent an affirmative showing that the verdict was affected." The cases cited by the defendant in support of this proposition are distinguishable. See Sheppard v. Maxwell , 384 U.S. 333, 353, 355, 86 S.Ct. 1507, 16 L.Ed.2d 600 (1966) (no showing of prejudice required where "bedlam reigned" during trial, jurors were "forced to run a gauntlet of reporters" every time they entered or exited the courtroom, and photos of jurors along with addresses were published in newspaper resulting in jurors receiving anonymous letters, which "should have made the judge aware that this publicity seriously threatened the jurors' privacy"); Estes v. Texas , 381 U.S. 532, 538, 544, 85 S.Ct. 1628, 14 L.Ed.2d 543 (1965) (finding extensive television coverage had "set [the case] apart in the public mind as an extraordinary case" and holding such coverage was inconsistent with concepts of due process, where forty-eight states and federal rules had deemed use of television improper in the courtroom, and four of selected jurors had viewed all or part of broadcasts of previous hearings in the case); Turner v. Louisiana , 379 U.S. 466, 468, 473, 85 S.Ct. 546, 13 L.Ed.2d 424 (1965) (two key witnesses for the prosecution, who were deputy sheriffs and whose credibility was central issue in trial, were also in charge of jury throughout trial, ate meals with jury, ran errands for them, and drove them to their lodgings each night; Irvin v. Dowd , 366 U.S. 717, 728-29, 81 S.Ct. 1639, 6 L.Ed.2d 751 (1961) (The court vacated the judgments of conviction where "[t]wo-thirds of the jurors had an opinion that petitioner was guilty and were familiar with the material facts and circumstances involved, including the fact that other murders were attributed to him, some going so far as to say that it would take evidence to overcome their belief. One said that he could not . give the defendant the benefit of the doubt that he is innocent. Another stated that he had a somewhat certain fixed opinion as to petitioner's guilt." [Internal quotation marks omitted.] ). To the extent that the defendant challenges the trial court's finding that the bullet hole was unrelated to his case, he failed to object to the court's instruction on this basis. Moreover, at the conclusion of the trial court's recitation of its findings on the record, defense counsel replied: "I think you covered it." Wines testified that he received training from the FBI regarding how to set up and use the scanner to collect measurements. Another component of his training involved conducting drive tests and presenting the results in a moot court. Wines testified that although he had participated in a drive test for one prior case, this case was his first time testifying in court as to his analysis. He explained that other CAST members conduct and testify as to drive tests "on a regular basis all around the country." Wines testified that the cell signal comes off the tower as a radio wave, and the RF footprint of the signal is what is measured by the scanner. Wines gave the following example: "About two months [ago] I did an analysis on a case in New London that . involved analyzing Nextel phone records, and I did not conduct a drive test in that case because the Nextel network is no longer in existence." Wines' analysis relied on call detail records from Sprint and AT & T for two cell phone numbers associated with Gonzalez, and call detail records from T-Mobile for a cell phone number associated with the defendant. Wines testified that cell towers for T-Mobile, Sprint, and AT & T were located on a water tower in the BJ's parking lot, which was 0.39 miles from the crime scene. We find the sole case cited by the defendant regarding reliability in the context of cell site location evidence distinguishable, given that it does not address drive test survey data, but rather involves "granulization theory," a method of estimating "the range of each antenna's coverage based on the proximity of the tower to other towers in the area" and predicting "where the coverage area of one tower will overlap with the coverage area of another." United States v. Evans , 892 F.Supp.2d 949, 952 (N.D. Ill. 2012). Moreover, other courts considering the issue have reached the opposite conclusion of the court in Evans . See United States v. Machado-Erazo , 950 F.Supp.2d 49, 57 (D.D.C. 2013) ; United States v. Davis , Docket No. 11-60285-CR, 2013 WL 2156659, *6-7 (S.D. Fla. May 17, 2013). We note that courts have treated arguments regarding variables that could affect signal strength in different manners, some analyzing the issue as either one of reliability or relevance under Daubert , and others treating such arguments as going to the weight of the evidence to be raised on cross-examination. One federal court addressed the reliability of drive test testimony in the context of a fifteen month delay between the date of the crime and the date the FBI agent conducted the drive test. United States v. Cervantes , Docket No. CR 12-792 YGR, 2015 WL 7734281, *11 (N.D. Cal. December 1, 2015). The court originally found the government's explanation inadequate that the agent "would not have conducted the . drive-test" if any of the towers or antennas had been replaced or adjusted in the intervening period. (Internal quotation marks omitted.) United States v. Cervantes , Docket No. 12-cr-00792-YGR, 2015 WL 5569276, *4 (N.D. Cal. September 22, 2015). The court permitted the government to submit a supplemental declaration to the extent that it intended to offer opinions that were based on the drive tests. Id. The government thereafter submitted a supplemental affidavit, in which the agent stated that the "cell towers at issue were located at the same locations at the time of the crime as at the time of the field experiment." United States v. Cervantes , supra, 2015 WL 7734281, at *11. The declaration further stated that "cell tower locations and sector azimuths during the time frame of the crime were examined and compared to cell tower locations and sector azimuths during the time frame of the measurements." (Internal quotation marks omitted.) Id. In light of the declaration, the court denied the defendant's motion to exclude or limit the FBI agent's testimony. Id., at *12. The court in Morgan addressed the claim that "any testimony regarding the drive test results is based on the incorrect premise that a drive test conducted six months after an alleged event, at a different time of year and at a different time of day, can accurately depict the coverage area of a cell sector." (Emphasis in original.) United States v. Morgan , supra, 292 F. Supp. 3d at 485-86. The court concluded that cross-examination of the expert and presentation of conflicting expert testimony would cure any possible prejudice. Id., at 486. Wines defined the azimuth as "the direction that the signal is coming off of a particular sector."

12503933

Ismael AGOSTO v. PREMIER MAINTENANCE, INC.

Agosto v. Premier Maint., Inc.

2018-10-23

AC 40184

938

959

197 A.3d 938

197

West's Atlantic Reporter, Third Series

Connecticut Appellate Court

Connecticut

2021-08-27T20:57:41.731571+00:00

Fastcase

Ismael AGOSTO v. PREMIER MAINTENANCE, INC.

Ismael AGOSTO v. PREMIER MAINTENANCE, INC. AC 40184 Appellate Court of Connecticut. Argued April 17, 2018 Officially released October 23, 2018 James F. Sullivan, with whom was Jake A. Albert, for the appellant (plaintiff). Angelica M. Wilson, with whom, on the brief, was Glenn A. Duhl, for the appellee (defendant). Lavine, Alvord and Pellegrino, Js.

8490

54116

PELLEGRINO, J. The plaintiff, Ismael Agosto, appeals from the summary judgment rendered by the trial court in favor of the defendant, Premier Maintenance, Inc., on all counts of the second revised complaint in which the plaintiff alleged religious discrimination in violation of the Connecticut Fair Employment Practices Act (act), General Statutes § 46a-51 et seq. On appeal, the plaintiff claims that the trial court improperly (1) utilized the pretext/ McDonnell Douglas - Burdine model; Texas Dept. of Community Affairs v. Burdine , 450 U.S. 248, 252-56, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981) ; McDonnell Douglas Corp. v. Green , 411 U.S. 792, 802, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973) ; rather than the mixed-motive/ Price Waterhouse model of analysis; Price Waterhouse v. Hopkins , 490 U.S. 228, 246, 109 S.Ct. 1775, 104 L.Ed.2d 268 (1989) ; when adjudicating the defendant's motion for summary judgment, (2) improperly concluded that there were no genuine issues of material fact as to the circumstances under which he was discharged from employment that give rise to a prima facie inference of religious discrimination and (3) improperly concluded that there were no genuine issues of material fact that he was not engaged in a protected activity that gave rise to a claim of retaliatory discharge. We disagree, and thus affirm the judgment of the trial court. The plaintiff commenced the present action in November, 2013. He alleged three counts against the defendant: employment discrimination in violation of General Statutes (Rev. to 2011) § 46a-60 (a) (1); discriminatory retaliation in violation of § 46a-60 (a) (4); and aiding and abetting discrimination in violation of § 46a-60 (a) (5). The plaintiff alleged that the defendant employed him to be a cleaner/porter at the Enterprise-Schoolhouse Apartments (apartments) in Waterbury from March 13, 2012, until August 3, 2012. The apartments were managed by WinnResidential, a client of the defendant. Sandino Cifuentes was the plaintiff's supervisor. The plaintiff alleged that he was the pastor of Tabernacle of Reunion Church (church). Cifuentes knew that he was the pastor of the church. The plaintiff alleged that he was part of a cleaning crew that was led by Luis Martinez, who was the chaplain at the church, and that Cifuentes had informed Martinez that while he was working, Martinez should not refer to the plaintiff as "pastor" or give him the respect ordinarily afforded a pastor. While he was at work, the plaintiff frequently greeted tenants by stating "God bless," but in giving such greetings, he was never delayed for more than a minute or two. On June 14, 2012, Cifuentes warned the plaintiff about interacting with tenants of the apartments. On or about June 22, 2012, Carolyn Hagan, the manager of the apartments, e-mailed Cifuentes, relaying information she had received from Daisy Alejandro, assistant manager of the apartments. Tenants Enrique Cintron and his wife, Jorge Cintron, had informed Alejandro that, during a church service, the plaintiff had read the names of tenants who were in jeopardy of being evicted. The plaintiff alleged that the Cintrons had lodged the complaint against him in retaliation for his having corrected them for inappropriately playing music in the church. He also alleged that at no time had he read the names of tenants who were in danger of being evicted. The plaintiff further alleged that on or about June 26, 2012, Hagan requested that Cifuentes remove the plaintiff from his position. Cifuentes discharged the plaintiff from the defendant's employ on August 3, 2012, for the reasons that the plaintiff spent too much time talking to the tenants and Hagan's accusation that the plaintiff had read the names of tenants in jeopardy of eviction from the apartments. Also, the plaintiff alleged that Wendy Smart, a representative of the defendant, signed a statement stating that the plaintiff "[o]ver-stepped the boundaries of church and work." (Internal quotation marks omitted.) In count one, the plaintiff claimed that, through its agents, the defendant had violated the act by interfering with his privilege of employment on the basis of his religion. The defendant exhibited ill will, malice, improper motive, and indifference to his religion. In count two, the plaintiff alleged that he held a bona fide religious belief and that the defendant's agents were aware that the plaintiff was the pastor and Martinez was the chaplain of the church. The defendant's agents retaliated against him for practicing his religious beliefs and customs by using the terms "pastor" and "chaplain." In count three, the plaintiff alleged that the defendant aided and abetted the unlawful conduct of its agents, who discriminated against him on the basis of his religious beliefs. On March 30, 2015, the defendant filed an answer in which it denied the material allegations of the complaint and alleged nine special defenses. The fourth special defense to all counts of the complaint alleged: "All actions taken by [the defendant] with respect to [the] [p]laintiff and [the] [p]laintiff's employment were under-taken for legitimate, nondiscriminatory business reasons." The plaintiff filed a general denial of the defendant's special defenses. The defendant filed a motion for summary judgment on July 8, 2016. The defendant claimed that the plaintiff could not establish a prima facie case of employment discrimination and retaliation under the act. Even if the plaintiff were able to establish a prima facie case of employment discrimination and retaliation, those claims would fail because the defendant had a legitimate, nondiscriminatory, nonretaliatory basis for terminating the plaintiff's employment, and the plaintiff cannot demonstrate that the basis is a pretext. The defendant further contended that the plaintiff's claim that it aided and abetted its agent's discriminatory conduct failed because (1) the plaintiff could not establish a material issue of fact as to his discrimination and retaliatory discharge claims, which are predicates to a claim of aiding and abetting, and (2) the defendant cannot be liable for aiding and abetting agents who are not parties to the present action. The defendant appended affidavits from Cifuentes, Hagan, Alejandro and Joseph Deming, superintendent of the apartments, and other documents to its memorandum of law in support of summary judgment. The plaintiff filed an objection to the defendant's motion for summary judgment on October 3, 2016. He asserted that there were genuine issues of material fact and that he had demonstrated a prima facie case of employment discrimination, retaliatory discharge and aiding and abetting under the act. The plaintiff attached his own affidavit to his memorandum of law. The defendant filed a reply to the plaintiff's objection in which it contended that the plaintiff had failed to present evidence that could persuade a rational fact finder that the defendant's legitimate, nondiscriminatory reason for terminating the plaintiff's employment is false or pretextual. The parties argued the motion for summary judgment on November 7, 2016. The court issued its memorandum of decision on February 15, 2017. The court set forth the procedural history of the case and identified the exhibits the defendant had submitted in support of summary judgment. After setting forth the standards for summary judgment and the legal principles governing employment discrimination claims, the court found that the defendant was entitled to summary judgment on each count of the complaint by meeting its burden of proving the absence of a genuine issue of material fact. With respect to the plaintiff's claim of employment discrimination, the court cited the controlling statute. Section 46a-60 (a) provided in relevant part: "It shall be a discriminatory practice . (1) [f]or an employer . to discharge from employment any individual . because of the individual's . religious creed ." The court found that the plaintiff alleged that on March 13, 2012, he was hired by the defendant to be a cleaner/ porter at the apartments, and that he is the pastor at the church. During the course of his duties at the apartments, the plaintiff frequently greeted tenants with the phrase "God bless" and spent time talking with them. Cifuentes warned the plaintiff on June 14, 2012, about interacting with tenants as he had been doing. On June 22, 2012, Hagan received information that the plaintiff, during a service at the church, read the names of tenants who were in jeopardy of being evicted from the apartments. On June 26, 2012, Hagan requested that Cifuentes terminate the plaintiff from his position. Cifuentes discharged the plaintiff on August 3, 2012, on the basis of his spending too much time talking with tenants and acting inappropriately when he read the names of tenants at church. The court concluded that the plaintiff had not demonstrated that his firing occurred under circumstances giving rise to a prima facie inference of discrimination. The plaintiff merely had "alleged the conclusory statement that [b]ecause [the] [d]efendant disapproved of [the] plaintiff's use of religious terms while at work and was aware of his status as a pastor, [the] plaintiff has shown direct evidence of discriminat[ory] motive." (Internal quotation marks omitted.) The court concluded that the plaintiff had not satisfied a prima facie case of employment discrimination under § 46a-60 (a) (1). The defendant demonstrated the absence of any genuine issue of material fact regarding the lack of circumstances giving rise to an inference of religious discrimination. As to the retaliatory discharge claim alleged in count two, the court cited § 46a-60 (a) (4). Section 46a-60 (a) provided in relevant part: "It shall be a discriminatory practice . (4) [f]or any . employer . to discharge, expel or otherwise discriminate against any person . because such person has filed a complaint or testified or assisted in any proceeding under section 46a-82, 46a-83 or 46a-84 ." The defendant asserted that the plaintiff had failed to allege that he had engaged in a protected activity. The plaintiff responded that he engaged in a protected activity when he openly used religious terms at work, spoke out against the defendant by communicating with Martinez and referred to him as chaplain, contrary to the defendant's instructions, and that the defendant retaliated against him by firing him. The court concluded that the protected activity the plaintiff claimed was not a protected activity under the act and, therefore, he had failed to establish a prima facie case of retaliation. In regard to count three, § 46a-60 (a) provided in relevant part: "It shall be a discriminatory practice . (5) [f]or any person, whether an employer or an employee or not, to aid, abet, incite, compel or coerce the doing of any act declared to be a discriminatory employment practice or to attempt to do so ." The court found that the plaintiff alleged that the defendant aided and abetted discriminatory conduct, but because the plaintiff failed to assert successfully a prima facie case of employment discrimination, he could not successfully assert a claim of aiding and abetting. Furthermore, the defendant cannot discriminate against the plaintiff and at the same time aid and abet itself in discriminating against him. The court concluded that the plaintiff's allegations of aiding and abetting failed. Although the plaintiff mentioned the defendant's employee, he did not name the employee as a defendant. The case was commenced against the defendant only. The court, therefore, granted the defendant's motion for summary judgment. We begin with the standard of review and the legal principles that guide our analysis of appeals from the granting of a motion for summary judgment. "The law governing summary judgment and the accompanying standard of review are well settled. Practice Book § [17-49] requires that judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. A material fact is a fact that will make a difference in the result of the case.... The facts at issue are those alleged in the pleadings." (Internal quotation marks omitted.) Marasco v. Connecticut Regional Vocational-Technical School System , 153 Conn. App. 146, 154, 100 A.3d 930 (2014), cert. denied, 316 Conn. 901, 111 A.3d 469 (2015). "In seeking summary judgment, it is the movant who has the burden of showing the nonexistence of any issue of fact. The courts are in entire agreement that the moving party for summary judgment has the burden of showing the absence of any genuine issue as to all the material facts, which, under applicable principles of substantive law, entitle him to a judgment as a matter of law. The courts hold the movant to a strict standard. To satisfy his burden the movant must make a showing that it is quite clear what the truth is, and that excludes any real doubt as to the existence of any genuine issue of material fact.... As the burden of proof is on the movant, the evidence must be viewed in the light most favorable to the opponent.... "The party opposing a motion for summary judgment must present evidence that demonstrates the existence of some disputed factual issue . The movant has the burden of showing the nonexistence of such issues but the evidence thus presented, if otherwise sufficient, is not rebutted by the bald statement that an issue of fact does exist.... To oppose a motion for summary judgment successfully, the nonmovant must recite specific facts . which contradict those stated in the movant's affidavits and documents.... The opposing party to a motion for summary judgment must substantiate its adverse claim by showing that there is a genuine issue of material fact together with the evidence disclosing the existence of such an issue.... The existence of the genuine issue of material fact must be demonstrated by counteraffidavits and concrete evidence.... "[T]ypically [d]emonstrating a genuine issue requires a showing of evidentiary facts or substantial evidence outside the pleadings from which material facts alleged in the pleadings can be warrantably inferred.... Moreover, [t]o establish the existence of a material fact, it is not enough for the party opposing summary judgment merely to assert the existence of a disputed issue.... Such assertions are insufficient regardless of whether they are contained in a complaint or a brief.... Further, unadmitted allegations in the pleadings do not constitute proof of the existence of a genuine issue as to any material fact.... "Although the court must view the inferences to be drawn from the facts in the light most favorable to the party opposing the motion . a party may not rely on mere speculation or conjecture as to the true nature of the facts to overcome a motion for summary judgment." (Citation omitted; emphasis omitted; internal quotation marks omitted.) Walker v. Dept. of Children & Families , 146 Conn. App. 863, 869-71, 80 A.3d 94 (2013), cert. denied, 311 Conn. 917, 85 A.3d 653 (2014). "Requiring the nonmovant to produce such evidence does not shift the burden of proof. Rather, it ensures that the nonmovant has not raised a specious issue for the sole purpose of forcing the case to trial." (Internal quotation marks omitted.) Id., at 871, 80 A.3d 94. "The fundamental purpose of summary judgment is preventing unnecessary trials." Stuart v. Freiberg , 316 Conn. 809, 822, 116 A.3d 1195 (2015). "The burden of proof that must be met to permit an employment-discrimination plaintiff to survive a summary judgment motion at the prima facie stage is de minim[i]s.... Since the court, in deciding a motion for summary judgment, is not to resolve issues of fact, its determination is whether the circumstances giv[e] rise to an inference of discrimination must be a determination of whether the proffered admissible evidence shows circumstances that would be sufficient to permit a rational finder of fact to infer a discriminatory motive." (Citation omitted; internal quotation marks omitted.) Chambers v. TRM Copy Centers Corp. , 43 F.3d 29, 37-38 (2d Cir. 1994). "Though caution must be exercised in granting [a motion for] summary judgment where intent is genuinely in issue . summary judgment remains available to reject discrimination claims in cases lacking genuine issues of material fact." (Citation omitted.) Id., at 40. "On appeal, [an appellate court] must determine whether the legal conclusions reached by the trial court are legally and logically correct and whether they find support in the facts set out in the memorandum of decision of the trial court.... [Appellate] review of the trial court's decision to grant [a] defendant's motion for summary judgment is plenary." (Internal quotation marks omitted.) Rivers v. New Britain , 288 Conn. 1, 10, 950 A.2d 1247 (2008). I The plaintiff first claims that the court improperly concluded that the pretext/ McDonnell Douglas - Burdine model of analysis applied to its adjudication of the defendant's motion for summary judgment rather than the mixed-motive/ Price Waterhouse model of analysis. We do not agree. "Connecticut statutorily prohibits discrimination in employment based upon race, color, religious creed, age, sex, marital status, national origin, ancestry, present or past history of mental disorder, mental retardation, and learning disability or physical disability. General Statutes § 46a-60 (a) (1)." Levy v. Commission on Human Rights & Opportunities , 236 Conn. 96, 102, 671 A.2d 349 (1996). Our courts look to federal precedent for guidance in applying the act. Miko v. Commission on Human Rights & Opportunities , 220 Conn. 192, 202, 596 A.2d 396 (1991). "The legal standards governing discrimination claims involving adverse employment actions are well established." Feliciano v. Autozone, Inc. , 316 Conn. 65, 73, 111 A.3d 453 (2015). Generally, there are four theories of employment discrimination under federal law. Levy v. Commission on Human Rights & Opportunities , supra, 236 Conn. at 103, 671 A.2d 349. In the present case, the plaintiff alleges religious discrimination on the basis of disparate treatment. "[D]isparate treatment simply refers to those cases where certain individuals are treated differently than others.... The principal inquiry of a disparate treatment case is whether the plaintiff was subjected to different treatment because of his . protected status." (Citation omitted; footnote omitted; internal quotation marks omitted.) Id., at 104, 671 A.2d 349. "Under the analysis of the disparate treatment theory of liability, there are two general methods to allocate the burdens of proof: (1) the mixed-motive/ Price Waterhouse model . and (2) the pretext/ McDonnell Douglas - Burdine model." (Citation omitted.) Id., at 104-105, 671 A.2d 349 ; see footnote 1 of this opinion. "A mixed-motive [ Price Waterhouse ] case exists when an employment decision is motivated by both legitimate and illegitimate reasons.... In such instances, a plaintiff must demonstrate that the employer's decision was motivated by one or more prohibited statutory factors. Whether through direct evidence or circumstantial evidence, a plaintiff must submit enough evidence that, if believed, could reasonably allow a [fact finder] to conclude that the adverse employment consequences resulted because of an impermissible factor.... "The critical inquiry [in a mixed-motive case] is whether [a] discriminatory motive was a factor in the [employment] decision at the moment it was made." (Citations omitted; footnote omitted; internal quotation marks omitted.) Id., at 105, 671 A.2d 349. "Under [the mixed-motive] model, the plaintiff's prima facie case requires that the plaintiff prove by a preponderance of the evidence that he . is within a protected class and that an impermissible factor played a motivating or substantial role in the employment decision.... Once the plaintiff has established his prima facie case, the burden of production and persuasion shifts to the defendant. [T]he defendant may avoid a finding of liability only by proving by a preponderance of the evidence that it would have made the same decision even if it had not taken [the impermissible factor] into account.... "If a plaintiff cannot prove directly the reasons that motivated an [adverse] employment decision, the plaintiff may establish a prima facie case under the McDonnell Douglas - Burdine or pretext model of analysis.... [T]o establish a prima facie case of discrimination . the [plaintiff] must demonstrate that (1) he is in the protected class; (2) he was qualified for the position; (3) he suffered an adverse employment action; and (4) that the adverse action occurred under circumstances giving rise to an inference of discrimination.... The level of proof required to establish a prima facie case is minimal and need not reach the level required to support a jury verdict in the plaintiff's favor.... "Under the McDonnell Douglas - Burdine model, the burden of persuasion remains with the plaintiff.... Once the plaintiff establishes a prima facie case, however, the burden of production shifts to the defendant to rebut the presumption of discrimination by articulating (not proving) some legitimate, nondiscriminatory reason for the plaintiff's [discharge].... Because the plaintiff's initial prima facie case does not require proof of discriminatory intent, the McDonnell Douglas - Burdine model does not shift the burden of persuasion to the defendant." (Citations omitted; internal quotation marks omitted.) Jones v. Dept. of Children & Families , 172 Conn. App. 14, 24-25, 158 A.3d 356 (2017) In its memorandum of decision, the court noted the two models of analysis utilized in employment discrimination cases. As stated in a footnote of its decision, the court elected to utilize the pretext/ McDonnell Douglas - Burdine model of analysis after finding that the plaintiff was not claiming that he was discharged from employment due to mixed motives of legitimate and illegitimate reasons. The court found that the plaintiff claimed that the reason for his employment termination offered by the defendant, namely, his excessive socialization with tenants of the apartments, is a pretext for illegal religious discrimination. On the basis of our plenary review of the plaintiff's complaint and his affidavit in opposition to the defendant's motion for summary judgment, we conclude that the plaintiff did not allege or present facts that he was fired for both legitimate and illegitimate reasons. We, therefore, agree with the trial court that the pretext/ McDonnell Douglas - Burdine model of analysis applied to the adjudication of the defendant's motion for summary judgment. II The plaintiff's second claim on appeal is that, even if the court properly determined that the pretext/ McDonnell Douglas - Burdine model of employment discrimination analysis was appropriate, the court improperly found that the defendant had demonstrated the absence of any genuine issue of material fact as to whether the circumstances under which he was discharged from employment gave rise to a prima facie inference of discrimination. We do not agree. Under the pretext/ McDonnell Douglas - Burdine model of analysis, "the employee must first make a prima facie case of discrimination.... In order for the employee to first make a prima facie case of discrimination, the plaintiff must show: (1) the plaintiff is a member of a protected class; (2) the plaintiff was qualified for the position; (3) the plaintiff suffered an adverse employment action; and (4) the adverse employment action occurred under circumstances that give rise to an inference of discrimination.... The employer may then rebut the prima facie case by stating a legitimate, nondiscriminatory justification for the employment decision in question.... This burden is one of production, not persuasion . The employee then must demonstrate that the reason proffered by the employer is merely a pretext and that the decision actually was motivated by illegal discriminatory bias." (Citations omitted; internal quotation marks omitted.) Feliciano v. Autozone, Inc. , 142 Conn. App. 756, 769-70, 66 A.3d 911 (2013), rev'd in part on other grounds, 316 Conn. 65, 111 A.3d 453 (2015) ; see also Craine v. Trinity College , 259 Conn. 625, 636-37, 791 A.2d 518 (2002). Circumstances contributing to a permissible inference of discriminatory intent under the fourth prong of the McDonnell Douglas - Burdine model include: (1) the employer's continuing, after discharging the plaintiff, to seek applicants from persons of the plaintiff's qualifications to fill that position; (2) the employer's criticism of the plaintiff's performance in ethnically degrading terms or invidious comments about others in the employee's protected group; (3) the more favorable treatment of employees not in the protected group; or (4) the sequence of events leading to the plaintiff's discharge or the timing of the discharge. See Chambers v. TRM Copy Centers Corp. , supra, 43 F.3d at 37. The defendant set forth the following facts in support of its motion for summary judgment. The defendant employed the plaintiff as a cleaner/porter at the apartments from March, 2012 through August 3, 2012. The apartments are managed by the defendant's long-standing customer, WinnResidential, for whom it provided cleaning and maintenance services at numerous locations. At all relevant times, the defendant employed a five member "crew" to provide cleaning and maintenance services at the apartments. The crew consisted of four cleaners/porters and one working supervisor, who reported to Cifuentes. While he was employed by the defendant, the plaintiff was supervised by Martinez, a friend and colleague of the plaintiff from the church. Martinez referred and recommended the plaintiff to Cifuentes to fill a vacant position on the crew. Martinez informed Cifuentes that the plaintiff was his friend and a leader of his church. Prior to hiring the plaintiff, Cifuentes cautioned Martinez that if the defendant hired the plaintiff, Martinez could not treat him any differently than Martinez treated other members of the crew. He instructed Martinez to treat all members of the crew fairly and equally and not to give preferential treatment to any of the members of the crew, even if the crew member was a friend outside of work. In addition, to ensure that the crew delivered efficient and reliable high quality services the defendant and its customers expected, the defendant's employees were trained and instructed to limit their interaction with tenants and its customers' employees at customer work locations. In May and early June, 2012, Cifuentes received complaints from members of Martinez' crew that Martinez was not distributing work assignments fairly. The members of the cleaning crew complained that Martinez frequently assigned "easy" jobs to the plaintiff while other members of the crew were assigned more demanding work. He also permitted the plaintiff to take extra breaks and to spend time talking and socializing with tenants of the apartments during working hours, instead of working. After he received the complaints from members of the crew, Cifuentes reminded Martinez of his responsibilities as a supervisor of the crew and of the importance of treating all members of the crew equally. Cifuentes informed Martinez that he had received several complaints from members of the crew that Martinez was giving the plaintiff preferential treatment and permitting him to socialize with tenants instead of working. Cifuentes reminded Martinez that, as supervisor, it was his responsibility to ensure that the plaintiff focused on work and minimized his interaction with tenants during working hours. Cifuentes reminded Martinez that he should not treat the plaintiff more favorably than he treated other members of his crew. In June, 2012, Cifuentes learned that Alejandro observed the plaintiff on many occasions standing in the lobby talking with tenants when he should have been working, frequently taking breaks from work to talk with tenants and to engage in conversations about God, religion and church. The plaintiff walked away from tenants with whom he was speaking when Alejandro got closer to him. Deming witnessed similar conduct on the part of the plaintiff. In addition, Cifuentes learned that Alejandro had received complaints from members of Martinez' crew that Martinez was assigning "easy" jobs to the plaintiff, while they were assigned more difficult and demanding tasks. According to Deming, the plaintiff and Martinez were not performing to WinnResidential standards and work was not being completed or timely done. Also in June, Hagan, Alejandro and Deming discussed staff performance. It was at this time that Hagan learned that Martinez was giving preferential treatment to the plaintiff. She believed that Martinez' treatment of the plaintiff was not conducive to a good working environment because Martinez, as supervisor, should have treated each member of the crew equally and fairly. The fact that Martinez was not treating them fairly and equally led other members of the crew to complain to Alejandro. Hagan reported Martinez' and the plaintiff's conduct to Cifuentes and requested that he address the complaints with them. On June 14, 2012, Cifuentes met first with Martinez and then with both the plaintiff and Martinez. When he met with Martinez, Cifuentes expressed his concern about Martinez' performance as a supervisor and gave him a verbal warning. He admonished Martinez to treat all members of the cleaning crew equally and to limit the plaintiff's nonwork interactions with the tenants of the apartments. When Cifuentes met with the plaintiff and Martinez together, he instructed the plaintiff to focus on work and to minimize his interaction with tenants of the apartments during work hours. Cifuentes issued a written warning to the plaintiff. The plaintiff refused to sign the warning or make comments in the space provided. On June 22, 2012, Hagan sent an e-mail message to Cifuentes concerning an incident involving the plaintiff and Martinez. It had come to Hagan's attention via complaints from tenants that, during a service at the church, the plaintiff had read the names of tenants who were going to be evicted from their apartments due to "bad" housekeeping, nonpayment of rent, and for being "bad" tenants. Hagan was concerned that someone had accessed this private and confidential information from the management office and was misusing it. She considered it a violation of WinnResidential's policy regarding professional conduct and its restrictions on the use of information viewed or obtained while performing job responsibilities. On or about June 26, 2012, Hagan requested that Cifuentes remove the plaintiff and Martinez from their positions. In his affidavit, Cifuentes attested that the defendant viewed WinnResidential's concerns as a serious issue because the defendant strove to provide the best possible service to its customers. It is the defendant's custom and practice to comply, as soon as practicable, with a customer's legitimate request for removal of its employees from a work site. Given WinnResidential's request, as well as his ongoing concern about the way in which the plaintiff and Martinez were performing, Cifuentes determined that it was necessary to replace them as soon as the defendant was able to hire qualified replacements. As a result of the defendant's hiring requirements, which include drug testing and background checks, it took the defendant approximately six weeks to hire qualified replacements. Cifuentes further attested that it is very important to the defendant that WinnResidential be satisfied with the quality of workers the defendant assigns to properties WinnResidential manages. The defendant was concerned that failing to accommodate Hagan's request that the plaintiff and Martinez be removed would "put the whole account in jeopardy," which could have cost five other people to lose their jobs. On August 3, 2015, Cifuentes fired both the plaintiff and Martinez. The plaintiff's termination report states that he had "been warned in the past regarding his conduct while at work, particularly keeping his interactions with residents to a minimum," and that "due to ongoing conduct and performance issues," the plaintiff's employment was terminated. On a Department of Labor form titled "Notice to Employer of Hearing and Unemployment Compensation Claim," and dated August 8, 2012, the plaintiff wrote: "I was discharged for talking excessively to building residents." The plaintiff opposed the defendant's motion for summary judgment by presenting facts that are for the most part consistent with those presented by the defendant. The plaintiff represented that at the time the defendant hired the plaintiff, Cifuentes was aware that the plaintiff was the pastor of the church and that Martinez was a chaplain. Cifuentes had told Martinez that while he was at work, Martinez could not refer to the plaintiff as "pastor" or give him the respect ordinarily given to a pastor. In June, 2012, Hagan was advised by other members of the crew that Martinez was giving the plaintiff easier work. Consequently, Hagan met with the plaintiff and Martinez to address complaints she had received from tenants. Hagan warned the plaintiff about speaking to tenants and using terms such as "God bless" while he was at work. Hagan reported to Cifuentes "what she heard about [the plaintiff] from [Alejandro] and the [Cintrons]." On June 26, 2012, Hagan requested that the plaintiff and Martinez be removed from their positions. Cifuentes fired the plaintiff on August 3, 2012. Martinez was present at the time the plaintiff was fired. When Martinez referred to the plaintiff as pastor, Cifuentes allegedly became angry and fired Martinez as well. The plaintiff also attested that during his term of employment he had no performance or conduct issues. In deciding the defendant's motion for summary judgment as to count one of the complaint, the court recited the evidence submitted by the parties and concluded that the pretext/ McDonnell Douglas - Burdine model of analysis applied. For purposes of the motion for summary judgment, the defendant assumed that the plaintiff met the first three prongs of employment discrimination under the model, i.e., that the plaintiff was a member of a protected class, he was qualified for the position, and he suffered an adverse employment action by the defendant. The court agreed with the defendant that the plaintiff had not demonstrated that the termination of his employment occurred under circumstances giving rise to an inference of discrimination. The court found that the plaintiff simply alleged the conclusory statement that "[b]ecause [the] [d]efendant disapproved of [the] plaintiff's use of religious terms while at work, and was aware of his status as a pastor, [the] plaintiff has shown direct evidence of discriminat[ory] motive." (Internal quotation marks omitted.) The court concluded, therefore, that the plaintiff did not satisfy a prima facie case of employment discrimination under § 46a-60 (a) (1), and that the defendant had met its burden of showing the absence of any genuine issue of material fact regarding the lack of circumstances giving rise to an inference of discrimination On appeal, the plaintiff argues that the court erred in concluding that there were no genuine issues of material fact because the trial court should be cautious when granting a motion for summary judgment when an employer's motive is in question. See Tryon v. North Branford , 58 Conn. App. 702, 707, 755 A.2d 317 (2000). The plaintiff cites the affidavits of Hagan and Alejandro as the basis of his claim of having established a prima facie case of discrimination. Both Hagan and Alejandro attested that the plaintiff engaged tenants of the apartments in conversations about God and church; Hagan warned the plaintiff about using the term "God bless" and engaging tenants in conversation. The plaintiff argues that the warning gives rise to an inference of discrimination against the plaintiff on the basis of his religion. "[R]emarks made by someone other than the person who made the decision adversely affecting the plaintiff may have little tendency to show that the decision-maker was motivated by the discriminatory sentiment expressed in the remark." Tomassi v. Insignia Financial Group, Inc. , 478 F.3d 111, 115 (2d Cir. 2007), abrogated in part on other grounds by Gross v. FBL Financial Services, Inc. , 557 U.S. 167, 177-78, 129 S.Ct. 2343, 174 L.Ed.2d 119 (2009). We first note that both Hagan and Alejandro were employed by WinnResidential; they were not employed by the defendant. Second, Cifuentes' job was to ensure that the defendant's employees performed services to the satisfaction of its customers. He received complaints from Hagan that the plaintiff was talking to tenants about church and God during working hours. Cifuentes warned the plaintiff that during working hours he was to keep his interaction with the tenants to a minimum. Cifuentes was motivated to fire the plaintiff in June, 2012, when Hagan informed him that WinnResidential did not want the plaintiff, or Martinez, to work at any of its properties because the plaintiff received preferential treatment from Martinez, he spent time socializing with tenants when he was supposed to be working, and he discussed God and church with the tenants during working hours. Also, tenants reported that during a church service, the plaintiff published a confidential list of names of tenants who were in danger of eviction. Cifuentes understood that, if WinnResidential was not happy with the manner in which the plaintiff was doing his job and wanted him dismissed, the defendant risked losing the account if it did not fire him. "Circumstances contributing to a permissible inference of discriminatory intent may include [1] the employer's continuing, after discharging the plaintiff, to seek applicants from persons of the plaintiff's qualifications to fill that position . or [2] the employer's criticism of the plaintiff's performance in ethnically degrading terms . or its invidious comments about others in the employee's protected group . or [3] the more favorable treatment of employees not in the protected group . or [4] the sequence of events leading to the plaintiff's discharge . or the timing of the discharge ." (Citations omitted.) Chambers v. TRM Copy Centers Corp. , supra, 43 F.3d at 37. The plaintiff does not dispute that the defendant had a policy that its employees keep their interactions with tenants of the apartments to a minimum during working hours. He also does not dispute that his conversations with tenants were disfavored by WinnResidential and created a business problem for the defendant. He was warned about his behavior and knew that he was not to discuss church and God with tenants when he was to be working. Cifuentes attested that he had informed the plaintiff of the complaints that he had received from Hagan and others. The plaintiff does not take issue with the contents of Cifuentes' affidavit. The written warning the plaintiff received contains no references to religion or church. Cifuentes did not speak of the protected group in ethnically or religiously degrading terms. No matter what the topic, religion or otherwise, the defendant's policy was for its employees not to socialize with tenants during working hours. No discriminatory intent can be inferred from the defendant's policy. As to the third Chambers factor, the plaintiff has failed to point to any evidence that the defendant treated other employees more favorably than it treated him. To the contrary, Martinez gave the plaintiff preferential treatment. This factor weighs against the plaintiff. The plaintiff claims that the sequence of events leading to his firing leads to an inference of discriminatory intent on the basis of religion. Significantly, we note that Cifuentes hired the plaintiff in March, 2012, upon the recommendation of Martinez. Cifuentes knew at that time that the plaintiff was the pastor of the church and that Martinez was chaplain in the church. At the time he hired the plaintiff, Cifuentes warned Martinez that, as crew supervisor, he had to treat all members of the crew fairly. Within three months, Cifuentes received information from Hagan that Martinez was giving the plaintiff preferential treatment by assigning him less challenging tasks than he assigned to other members of the crew. Martinez gave the plaintiff breaks when he could talk to tenants about God and church. On June 14, 2012, Cifuentes warned both the plaintiff and Martinez that the plaintiff needed to focus on his work and not socialize with tenants during working hours. On June 26, 2012, Hagan informed Cifuentes that WinnResidential did not want the plaintiff to work at the apartments. Cifuentes decided that he would fire the plaintiff when he found a qualified replacement. Cifuentes met with the plaintiff on August 3, 2012, and discharged him from employment. The evidence presented by the defendant demonstrates that the plaintiff's discharge was not related to his religion but, instead, concerned his failure to comply with the defendant's policy of limiting his interaction with tenants during working hours. Moreover, WinnResidential, the defendant's customer, was dissatisfied with the plaintiff's performance and requested that he not work at any of the properties that it managed. The plaintiff failed to produce any concrete evidence to contradict the facts presented by the defendant. For the foregoing reasons, the plaintiff's claim fails. III The plaintiff's third clam is that the court improperly rendered summary judgment because the defendant failed to show the absence of any genuine issue of material fact as to whether he had engaged in a protected activity with regard to the plaintiff's claim of retaliation under § 46a-60 (a) (4). We disagree. In count two of the complaint, the plaintiff realleged his claim of employment discrimination and, among other things, that he held a bona fide religious belief and that he was the pastor of the church. He also alleged that the defendant and its agents knew that he was the pastor of the church and that Martinez was the chaplain in the church. He also alleged that the defendant and its agents retaliated against him for practicing his religious beliefs, including, but not limited to, using the terms "pastor" and "chaplain." In ruling on the defendant's motion for summary judgment, the trial court found that the plaintiff alleged that he had engaged in a protected activity when he "openly used religious terms at work that he was legally permitted to use," "spoke out against [the] defendant by communicating with Martinez, and referring to him as chaplain, contrary to what [the] defendant instructed him to do," and "because of [the] plaintiff's engagement in this protected activity, [the] defendant retaliated against him by terminating his employment." (Internal quotation marks omitted.) The court, however, concluded that the protected activity cited by the plaintiff is not protected under the act. The plaintiff, therefore, has not presented evidence that he engaged in a protected activity and has failed to establish a prima facie case of retaliation. Thus, the defendant has met its burden of showing the absence of any genuine issue of material fact regarding its alleged retaliation against the plaintiff. The court, therefore, granted the motion for summary judgment with respect to the plaintiff's retaliation claim. Section 46a-60 (a) provides in relevant part: "It shall be a discriminatory practice in violation of this section . (4) [f]or any . employer . to discharge . or otherwise discriminate against any person because such person has opposed any discriminatory employment practice or because such person has filed a complaint or testified or assisted in any proceeding under section 46a-82, 46a-83 or 46a-84 ." A prima facie case of retaliation requires a plaintiff to show (1) that he or she participated in a protected activity that is known to the defendant, (2) an employment action that disadvantaged the plaintiff and (3) a causal relation between the protected activity and the disadvantageous employment action. See Hebrew Home & Hospital, Inc. v. Brewer , 92 Conn. App. 762, 770, 886 A.2d 1248 (2005). "The term protected activity refers to action taken to protest or oppose statutorily prohibited discrimination." (Internal quotation marks omitted.) Jarrell v. Hospital for Special Care , 626 Fed. Appx. 308, 311 (2d Cir. 2015). "The law protects employees in the filing of formal charges of discrimination as well as in the making of informal protests of discrimination, including making complaints to management, writing critical letters to customers, protesting against discrimination by industry or society in general, and expressing support of [coworkers] who have filed formal charges." (Internal quotation marks omitted.) Matima v. Celli , 228 F.3d 68, 78-79 (2d Cir. 2000). "An employee's complaint may qualify as protected activity . so long as the employee has a good faith, reasonable belief that the underlying challenged actions of the employer violated the law." (Internal quotation marks omitted.) Kelly v. Howard I. Shapiro & Associates Consulting Engineers, P.C. , 716 F.3d 10, 14 (2d Cir. 2013). "The reasonableness of the plaintiff's belief is to be assessed in light of the totality of the circumstances." Galdieri-Ambrosini v. National Realty & Development Corp. , 136 F.3d 276, 292 (2d Cir. 1998). We agree with the trial court that the plaintiff's allegations and the facts of the present case do not constitute a protected activity, and the plaintiff also did not establish that the defendant knew that the plaintiff was engaged in a protected activity. On appeal, the plaintiff claims that his continuing to use religious terms during working hours in contravention of the defendant's instructions that he not do so was a form of informal protest. The plaintiff also claims that his refusal to sign the warning notice Cifuentes presented to him was an informal protest. The defendant points out, however, that the space provided on the warning notice provided the plaintiff with a means of protesting the defendant's alleged discrimination and would have been a protected activity, but the plaintiff did not take advantage of the opportunity. The form clearly states that the "absence of any statement on the part of the EMPLOYEE indicates his/her agreement with the report as stated." On the basis of the plaintiff's very own words in the record, we cannot conclude that he had a good faith belief that he was engaged in a protected activity by continuing to use religious terms as an informal protest. Cifuentes wrote on the warning form that he gave the plaintiff on June 14, 2012, "[e]mployee has been seen several times spending too much time talking to residents instead of working." On his claim for unemployment compensation, the plaintiff stated as the reason for his termination: "I was discharged for talking excessively to building residents." The record contains no facts presented by the plaintiff that he continued to use the terms "pastor" and "chaplain" as an informal means of complaint. We, therefore, conclude that the court properly granted the motion for summary judgment in favor of the defendant on the plaintiff's retaliatory discharge claim. The judgment is affirmed. In this opinion the other judges concurred. See Levy v. Commission on Human Rights & Opportunities , 236 Conn. 96, 104-109, 671 A.2d 349 (1996) (differentiating disparate employment treatment models). Hereinafter, unless otherwise indicated, all references to § 46a-60 in this opinion are to the 2011 revision of the statute. The record reflects that this statement was made in connection with the plaintiff's claim for unemployment compensation. Although the plaintiff claims on appeal that the court improperly determined that there were no genuine issues of material fact, he does not take issue with the court's summary of the facts at issue. Attached to its memorandum of law in support of the motion for summary judgment were numerous exhibits, including some of the plaintiff's employment records and affidavits from Cifuentes, Hagan, Alejandro and Deming. Cifuentes was responsible for ensuring that the defendant's employees delivered superior services to its customers. He visited employees at their job sites one to three times a month. He also served as the liaison between the defendant and its customers with respect to complaints. Hagan also relayed information to Cifuentes that was critical of Martinez alone. Martinez also commenced an employment discrimination cause of action against the defendant. See Martinez v. Premier Maintenance, Inc. , 185 Conn. App. 425, 197 A.3d 919 (2018). In his affidavit, the plaintiff denied that during a church service he published the names of tenants who were in jeopardy of being evicted. He claimed that the Cintrons reported that information in retaliation for his having corrected them during a church service about playing music at an inappropriate time. We do not consider the dispute between the Cintrons and the plaintiff a material fact. The material fact is whether the defendant fired the plaintiff because he excessively interacted with tenants of the apartments when he was to be working. The defendant contradicted the plaintiff's representation about performance and conduct issues by noting that the plaintiff failed to abide by the defendant's policy that employees limit their interaction with tenants and employees of its customers during working hours. Hagan attested in relevant part: "7. During the course of their employment with [the defendant], [the plaintiff] and Martinez were not to be engaging in any activities at WinnResidential associated with their positions at the . [c]hurch, where [the plaintiff] was a pastor and Martinez was a chaplain. "8. In May and June of 2012, WinnResidential received various complaints about Martinez and [the plaintiff]. "9. In or about June of 2012, staff performance was discussed among . Deming . Alejandro . and me. It was brought to my attention that Martinez gave preferential treatment to [the plaintiff]. He called him [p]astor in the workplace. We did not want him to do that because it was a title of respect and authority while Martinez was to be the supervisor. It was also not conducive to a good working environment because the supervisor should be treating each of his subordinates fairly and equally-it was creating a problem, as the other three workers were complaining to [Alejandro]. I also was concerned about [f]air [h]ousing [l]aws where religion was not to be discussed at all. It was also brought to my attention that [the plaintiff] engaged in excessive interaction with [apartment tenants] during working hours when he should be working, not socializing.... "11. It was also reported to me that [the plaintiff] was talking to residents about church, religion and God when he was to be working.... "18. On or about June 26, 2012, I told . Cifuentes that WinnResidential did not want Martinez or [the plaintiff] to work at [the apartments] or any of its other properties." Alejandro attested in relevant part: "9. In or about June of 2012, other [of the defendant's cleaners working at the apartments] expressed their concern to me about [the plaintiff's] excessive interaction with [tenants] during working hours. "10. I personally saw [the plaintiff] standing in the lobby talking with residents when he should be working. I heard [the plaintiff] talking to residents about church and God when he was to be working. This happened on several occasions. He had been aware that he was not to do this during work hours, and when I arrived, he would start walking away from the persons with whom he was speaking. "11. Two cleaners complained to me that Martinez assigned [the plaintiff] 'easy' jobs and assigned them the more difficult and demanding jobs. They also complained that Martinez was giving [the plaintiff] preferential treatment, that is, he was given less strenuous work.... "13. Several cleaners complained to me that [the plaintiff] would frequently take breaks from working to speak to residents and engage in conversations about God, religion and church. I also personally observed that. "14. On or about June 7, 2012, WinnResidential received complaints from its residents, [the Cintrons]. They told Maria Robalino, who was [the] WinnResidential residence service coordinator, that [the plaintiff] read a list of names at their church of WinnResidential residents who were going to be evicted from their units for reasons including bad housekeeping, which is unclean apartments." On appeal, the plaintiff claims that he referred to Martinez as "chaplain" when they were at work, but there is no evidence to that effect, and more importantly, the plaintiff did not allege that he called Martinez "chaplain" during working hours. The resolution of the plaintiff's religious discrimination claim is limited to the facts of this case. The plaintiff's claim does not turn on the use of religious titles and honorifics in the workplace, and we offer no opinion in that regard.

12503931

Abin BRITTON v. COMMISSIONER OF CORRECTION

Britton v. Comm'r of Corr.

2018-10-16

AC 39407

895

919

197 A.3d 895

197

West's Atlantic Reporter, Third Series

Connecticut Appellate Court

Connecticut

2021-08-27T20:57:41.731571+00:00

Fastcase

Abin BRITTON v. COMMISSIONER OF CORRECTION

Abin BRITTON v. COMMISSIONER OF CORRECTION AC 39407 Appellate Court of Connecticut. Argued March 8, 2018 Officially released October 16, 2018 Michael W. Brown, assigned counsel, Wethersfield, for the appellant (petitioner). Michael L. Regan, state's attorney, for the appellee (respondent). Lavine, Keller and Pellegrino, Js.

12126

74977

LAVINE, J. The petitioner, Abin Britton, appeals following the second habeas court's denial of his petition for certification to appeal from that court's denial of his second petition for a writ of habeas corpus. On appeal, the petitioner claims that the second habeas court, Fuger, J. , (1) abused its discretion by denying his petition for certification to appeal, and (2) improperly concluded that he was not denied the constitutional right to due process because the jury was not instructed pursuant to State v. Salamon , 287 Conn. 509, 949 A.2d 1092 (2008), to the effective assistance of trial counsel and to the effective assistance of first habeas counsel. Although we agree that the second habeas court abused its discretion by denying the petitioner certification to appeal, we disagree that the court improperly denied his second petition for a writ of habeas corpus and, therefore, affirm the judgment of the second habeas court. The present appeal has its factual roots in the brutal murder of the victim, James Connor, in the early morning hours of August 23, 1998. See State v. Britton , 283 Conn. 598, 600, 929 A.2d 312 (2007). Pursuant to our plenary review of the petitioner's claims, we have reviewed the entire record, which includes the transcript of the petitioner's criminal trial that was held in November and December, 2004. On the basis of the evidence in the record, we conclude that the jury reasonably could have found that on the night of August 22, 1998, the victim visited his parents on their boat in the Essex Marina and left at approximately 11:30 p.m. to go the Black Seal, an Essex restaurant and bar. Sometime after midnight, he drove his father's Saab to Lucky's Café (Lucky's) in New London in search of cocaine. The petitioner, Gregory Pierre, Jeffrey Smith (perpetrators) and their friend, Junito Jarvis, were present at Lucky's when the victim arrived. The victim approached the petitioner and asked him if he had any crack cocaine. The petitioner did not have any crack "on [him]," but he knew where to get some. The victim drove himself and Pierre to a New London apartment complex where Pierre lived and parked in the parking lot. Jarvis drove the petitioner and Smith to a spot on Michael Road that was adjacent to the parking lot. Jarvis was able to see the Saab and observe the perpetrators from where he was parked. The victim remained in the Saab, but Pierre went to his apartment. When he returned, Pierre walked to the driver's side of the Saab, where the petitioner and Smith joined him some minutes later. Thereafter, all three of the perpetrators got into the Saab where a struggle ensued. The perpetrators got out of the Saab, and pulled the struggling victim out of the vehicle and beat him until he lay motionless on the ground. Jarvis remained in his car, witnessed the beating and saw the petitioner pick up the victim and put him on the backseat of the Saab. The petitioner told Norman L. Carr that the victim was still alive when he put him in the Saab. The perpetrators got back into the Saab and drove to a parking lot in Bates Woods, a New London park. At Bates Woods, the perpetrators removed the victim from the Saab and beat him again. The petitioner took a pipe from the Saab, rammed it into the victim's mouth and twisted it. The perpetrators dragged the victim's body into Bates Woods and covered it with dirt and plastic bags. During the incident, the perpetrators took an imitation Rolex watch and $90 from the victim. At approximately 6:30 a.m. on August 23, 1998, the Waterford police discovered the Saab partially submerged in a duck pond behind the police station. They used the license plate number to identify the Saab's owner, the victim's father, Donald Connor. Members of the New London Police Department impounded the Saab, and, along with the state police, conducted an investigation. During their investigation, the police discovered two palm prints on the door posts of the Saab. The windshield of the Saab was cracked and the rear-view mirror was missing. In addition, investigators found red and brown stains inside the Saab, including on the rear seat, the door panels, and the visor over the driver's seat, which led the police to believe that someone had been injured. In January, 1999, a badly decomposed human body was found in Bates Woods. Harold Wayne Carver II, the state's chief medical examiner, identified the remains as those of the victim and classified the manner of his death as a homicide. The police identified the petitioner, Pierre and Smith as suspects. At the request of the police, the petitioner accompanied the New London police to the station, provided them with his palm prints and gave them a statement regarding his involvement in the victim's death. He subsequently was arrested, as were Smith and Pierre, and charged in connection with the victim's murder. On July 10, 2001, the state filed a substitute information, charging the petitioner with six crimes: capital felony in violation of General Statutes § 53a-54b (5), murder in violation of General Statutes § 53a-54a (a), felony murder in violation of General Statutes § 53a-54c, kidnapping in the first degree in violation of General Statutes § 53a-92 (a) (2) (A), kidnapping in the first degree in violation of General Statutes § 53a-92 (a) (2) (B), and robbery in the first degree in violation of General Statutes § 53a-134 (a) (1). Following the presentation of evidence, a jury of twelve found the petitioner guilty of one count of felony murder, one count of manslaughter in the first degree in violation of General Statutes § 53a-55 (a) (1), two counts of kidnapping in the first degree, and one count of robbery in the first degree. See Britton v. Commissioner of Correction , 141 Conn. App. 641, 645, 61 A.3d 1188, cert. denied, 308 Conn. 946, 67 A.3d 290 (2013). The trial court, Schimelman, J. , merged the petitioner's manslaughter conviction with the felony murder conviction and rendered judgment in accordance with the jury's verdict. Id. The court sentenced the petitioner to sixty years in prison on the manslaughter conviction, twenty-five years on each of the kidnapping counts and twenty years on the robbery conviction. The kidnapping and robbery sentences were to be served concurrently and consecutive to the manslaughter conviction, resulting in an effective term of eighty-five years in prison. The petitioner's conviction was affirmed on direct appeal to our Supreme Court. State v. Britton , supra, 283 Conn. at 598, 929 A.2d 312. After our Supreme Court affirmed the petitioner's conviction, the self-represented petitioner filed a petition for a writ of habeas corpus in November, 2007 (first habeas petition). Appointed habeas counsel amended the first habeas petition, alleging that the petitioner was denied the effective assistance of trial counsel. See Britton v. Commissioner of Correction , supra, 141 Conn. App. at 646, 61 A.3d 1188. The first habeas court, Schuman, J ., denied the first habeas petition and the petition for certification to appeal. Id. The petitioner appealed to this court. This court dismissed the appeal; id., at 669, 61 A.3d 1188 ; and our Supreme Court denied certification to appeal. See Britton v. Commissioner of Correction , 308 Conn. 946, 67 A.3d 290 (2013). The self-represented petitioner filed the present petition for a writ of habeas corpus in October, 2011. On March 24, 2016, appointed counsel filed the second revised amended petition (second habeas petition) alleging that the petitioner's constitutional rights were violated because he was denied (1) the effective assistance of trial counsel, (2) the effective assistance of first habeas counsel and (3) a fair trial because the trial court's jury instruction with respect to the kidnapping charges did not comply with Luurtsema v. Commissioner of Correction , 299 Conn. 740, 12 A.3d 817 (2011), State v. Sanseverino , 287 Conn. 608, 949 A.2d 1156 (2008), and State v. Salamon , supra, 287 Conn. at 509, 949 A.2d 1092. With respect to his claim pursuant to Salamon , the petitioner alleged that if the jury had been charged pursuant to Salamon , it would not have found him guilty of either of the counts of kidnapping in the first degree. The second habeas court denied the second habeas petition in a memorandum of decision issued on June 23, 2016. The court found that (1) the petitioner's claim of ineffective assistance of trial counsel was successive and, therefore, was barred by the doctrine of res judicata; (2) that the petitioner had failed to demonstrate that his first habeas counsel rendered ineffective assistance by failing to prove that trial counsel's performance was ineffective; and (3) a reasonable fact finder clearly could have determined that the petitioner's restraint or movement of the victim was not merely incidental to the other offenses and, therefore, a Salamon instruction was not warranted. The second habeas court denied the petitioner certification to appeal. The petitioner appealed to this court, claiming that the second habeas court abused its discretion by denying certification to appeal. He also claimed that his constitutional right to due process was violated because he was convicted of kidnapping without the jury having been instructed "to determine whether the victim was restrained to an extent exceeding that which was necessary to accomplish or complete the other crimes." See State v. Salamon , supra, 287 Conn. at 542, 949 A.2d 1092. In addition, the petitioner claims that his constitutional right to the effective assistance of trial counsel was violated, and that his statutory and constitutional rights to the effective assistance of habeas counsel were violated. We agree that the second habeas court abused its discretion by denying the petition for certification to appeal, but we disagree that the court erred by denying the second petition for a writ of habeas corpus. I We first consider the petitioner's claim that the second habeas court abused its discretion by denying his petition for certification to appeal. Although we agree that the court should have granted the petition for certification to appeal, the petitioner cannot prevail on the merits of his claims. "Faced with the habeas court's denial of a petition for certification to appeal, a petitioner can obtain appellate review of the [denial] of his petition for habeas corpus only by satisfying the two-pronged test enunciated by our Supreme Court in Simms v. Warden , 229 Conn. 178, 640 A.2d 601 (1994), and adopted in Simms v. Warden , 230 Conn. 608, 612, 646 A.2d 126 (1994). First, he must demonstrate that the denial of his petition for certification constituted an abuse of discretion.... Second, if the petitioner can show an abuse of discretion, he must prove that the decision of the habeas court should be reversed on the merits.... "To prove an abuse of discretion, the petitioner must demonstrate that the [resolution of the underlying claim involves issues that] are debatable among jurists of reason; that a court could resolve the issues [in a different manner]; or that the questions are adequate to deserve encouragement to proceed further." (Internal quotation marks omitted.) Wright v. Commissioner of Correction , 111 Conn. App. 179, 181-82, 958 A.2d 225 (2008), cert. denied, 290 Conn. 904, 962 A.2d 796 (2009). "In determining whether the habeas court abused its discretion in denying the petitioner's request for certification, we necessarily must consider the merits of the petitioner's underlying claims to determine whether the habeas court reasonably determined that the petitioner's appeal was frivolous. In other words, we review the petitioner's substantive claims for the purpose of ascertaining whether those claims satisfy one or more of the three criteria . adopted by [our Supreme Court] for determining the propriety of the habeas court's denial of the petition for certification." (Internal quotation marks omitted.) Duncan v. Commissioner of Correction , 171 Conn. App. 635, 645, 157 A.3d 1169, cert. denied, 325 Conn. 923, 159 A.3d 1172 (2017). In determining whether the second habeas court abused its discretion by denying the petitioner certification to appeal, we have reviewed the records of the petitioner's criminal and second habeas trials and the second habeas court's memorandum of decision. Given the underlying facts, the criminal charges against the petitioner, and the relative newness of Salamon and its retroactive application, we conclude that the petitioner's Salamon claim is adequate to deserve encouragement to proceed further, as the issues it raises are not entirely settled by our Supreme Court. On the basis of our review of the petitioner's Salamon claim, however, we conclude that he cannot prevail on its merits. II The petitioner claims that the second habeas court improperly determined that he was not denied certain constitutional and statutory rights. We disagree. We are mindful that "[t]he habeas court is afforded broad discretion in making its factual findings, and those findings will not be disturbed unless they are clearly erroneous.... Historical facts constitute a recital of external events and the credibility of their narrators.... Accordingly, [t]he habeas judge, as the trier of facts, is the sole arbiter of the credibility of witnesses and the weight to be given to their testimony. . The application of the habeas court's factual findings to the pertinent legal standard, however, presents a mixed question of law and fact, which is subject to plenary review." (Internal quotation marks omitted.) Thomas v. Commissioner of Correction , 141 Conn. App. 465, 470, 62 A.3d 534, cert. denied, 308 Conn. 939, 66 A.3d 881 (2013). A The petitioner claims that the habeas court improperly concluded that his constitutional right to due process was not violated when he was convicted of kidnapping without the jury being instructed to determine whether the victim was restrained to an extent exceeding that which was necessary to accomplish or complete the other crimes charged. We do not agree, given the particular facts of the present case. We first set forth the law applicable to the petitioner's Salamon claim. "[I]t is well established that a defect in a jury charge which raises a constitutional question is reversible error if it is reasonably possible that, considering the charge as a whole, the jury was misled.... [T]he test for determining whether a constitutional error is harmless . is whether it appears beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained.... A jury instruction that improperly omits an essential element from the charge constitutes harmless error [only] if a reviewing court concludes beyond a reasonable doubt that the omitted element was uncontested and supported by overwhelming evidence, such that a jury verdict would have been the same absent the error . The failure to charge in accordance with Salamon is viewed as an omission of an essential element . and thus gives rise to constitutional error." (Citations omitted; internal quotation marks omitted.) Hinds v. Commissioner of Correction , 321 Conn. 56, 77-78, 136 A.3d 596 (2016). Our kidnapping law has changed substantially since the petitioner was convicted of kidnapping in violation of § 53a-92 (a) (2) (A) and (B) in 2005. At that time, our Supreme Court had established that "all that is required under the [kidnapping] statute is that the defendant have abducted the victim and restrained [the victim] with the requisite intent.... Under the aforementioned definitions, the abduction requirement is satisfied when the defendant restrains the victim with the intent to prevent her liberation through the use of physical force.... Nowhere in this language is there a requirement of movement on the part of the victim. Rather, we read the language of the statute as allowing the restriction of movement alone to serve as the basis for kidnapping.... [O]ur legislature has not seen fit to merge the offense of kidnapping with other felonies, nor impose any time requirements for restraint, nor distance requirements for asportation, to the crime of kidnapping.... Furthermore, any argument that attempts to reject the propriety of a kidnapping charge on the basis of the fact that the underlying conduct was integral or incidental to the crime of sexual assault also must fail." (Internal quotation marks omitted.) Pereira v. Commissioner of Correction , 176 Conn. App. 762, 768, 171 A.3d 105, cert. denied, 327 Conn. 984, 175 A.3d 43 (2017). In 2008, however, our Supreme Court reinterpreted our kidnapping statutes in State v. Salamon , supra, 287 Conn. at 542, 949 A.2d 1092. "Our legislature, in replacing a single, broadly worded kidnapping provision with a gradated scheme that distinguishes kidnappings from unlawful restraints by the presence of an intent to prevent a victim's liberation, intended to exclude from the scope of the more serious crime of kidnapping and its accompanying severe penalties those confinements or movements of a victim that are merely incidental to and necessary for the commission of another crime against that victim. Stated otherwise, to commit a kidnapping in conjunction with another crime, a defendant must intend to prevent the victim's liberation for a longer period of time or to a greater degree than that which is necessary to commit the other crime." Id. "Our Supreme Court further noted that [w]hen that confinement or movement is merely incidental to the commission of another crime, however, the confinement or movement must have exceeded that which was necessary to commit the other crime. [T]he guiding principle is whether the [confinement or movement] was so much the part of another substantive crime that the substantive crime could not have been committed without such acts . In other words, the test . to determine whether [the] confinements or movements involved [were] such that kidnapping may also be charged and prosecuted when an offense separate from kidnapping has occurred asks whether the confinement, movement, or detention was merely incidental to the accompanying felony or whether it was significant enough, in and of itself, to warrant independent prosecution.... Conversely, a defendant may be convicted of both kidnapping and another substantive crime if, at any time prior to, during or after the commission of that other crime, the victim is moved or confined in a way that has independent criminal significance, that is, the victim was restrained to an extent exceeding that which was necessary to accomplish or complete the other crime ." (Emphasis added; internal quotation marks omitted.) Robles v. Commissioner of Correction , 169 Conn. App. 751, 755, 153 A.3d 29 (2016), cert. denied, 325 Conn. 901, 157 A.3d 1146 (2017). "[A] defendant may be convicted of both kidnapping and another substantive crime if, at any time prior to, during or after the commission of that other crime, the victim is moved or confined in a way that has independent criminal significance, that is, the victim was restrained to an extent exceeding that which was necessary to accomplish or complete the other crime. Whether the movement or confinement of the victim is merely incidental to and necessary for another crime will depend on the particular facts and circumstances of each case. Consequently, when the evidence reasonably supports a finding that the restraint was not merely incidental to the commission of some other, separate crime, the ultimate factual determination must be made by the jury. For purposes of making that determination, the jury should be instructed to consider the various relevant factors, including the nature and duration of the victim's movement or confinement by the [perpetrator], whether that movement or confinement occurred during the commission of the separate offense, whether the restraint was inherent in the nature of the separate offense, whether the restraint prevented the victim from summoning assistance, whether the restraint reduced the [perpetrator's] risk of detection and whether the restraint created a significant danger or increased the victim's risk of harm independent of that posed by the separate offense." (Emphasis in original; footnote omitted.) State v. Salamon , supra, 287 Conn. at 547-48, 949 A.2d 1092 ; see also White v. Commissioner of Correction , 170 Conn. App. 415, 428-29, 154 A.3d 1054 (2017) ("if the evidence regarding the perpetrator's intent-that is, whether he or she intended to prevent the victim's liberation for a longer period of time or to a greater degree than that which is necessary to commit the other crime-is susceptible to more than one interpretation, that question is one for the jury" [internal quotation marks omitted] ). In its memorandum of decision, the second habeas court noted that the state had charged the petitioner in a substitute information with two separate counts of kidnapping: kidnapping in the first degree in violation of § 53a-92 (a) (2) (A) for abducting and restraining the victim with the intent to inflict physical injury upon him, and kidnapping in the first degree in violation of § 53a-92 (a) (2) (B) for abducting and restraining the victim with attempt to accomplish and advance the commission of a robbery. The court then set forth the facts as the jury reasonably may have found them, as stated in our Supreme Court's decision affirming the petitioner's conviction. To wit: "[t]he victim bought two small bags of crack cocaine in exchange for $20, and he and the [petitioner], with Pierre and Smith following in a separate vehicle, drove to Pierre's apartment complex in New London so that the victim could use the drugs he had just purchased. Once they arrived at the apartment complex, Pierre, Smith and the [petitioner] pulled the victim out of the Saab and beat him. When this attack ceased, the victim was badly injured but still alive. The three men then put the victim into the backseat of the Saab and brought him to a nearby parking lot abutting Bates Woods, a park in New London. They pulled the victim out of the car once more, and this time beat him to death. Pierre, Smith and the [petitioner] then dragged the victim's body into Bates Woods, where they covered the body with dirt and plastic bags. The [petitioner] disposed of the victim's Saab by pushing it into a small pond behind the Waterford police department. State v. Britton , supra, 283 Conn. at 601-602, 929 A.2d 312." (Internal quotation marks omitted.) In its memorandum of decision, the second habeas court quoted the prosecutor's argument to the jury, which contended that there were two kidnappings. The prosecutor stated, in relevant part: "Now, the kidnapping in the first degree; there's actually two counts, the fourth and fifth counts [of the substitute information]. One kidnapping is distinguished from the other because one is that [the victim] was restrained with the intent, that is, the intent from not letting him [get free], and they restrained him with the intent to inflict physical injury upon him. The state asserts that this actually happened on several occasions, this kidnapping. The [perpetrators] restrained [the victim] when they got into his Saab, when they got into his car at Michael Road, he was restrained there. In fact, the evidence is as [Jarvis] told us, that he was pulled out of the car and, as he was being pulled [out of the car, he was kicking as if he was trying to stay in] the car. The state would assert that the evidence says that that's one particular kidnapping. Then [the victim] is put back into his own car and driven to Bates Woods.... "Now, the other kidnapping . is that a kidnapping, which is, as I indicated, a restraining with . the intent of a felony, and the felony, the state would assert in this case, was robbery, and the evidence of the robbery in this case actually comes from several sources, two of which come from the [petitioner]." (Internal quotation marks omitted.) The second habeas court noted that the trial court charged the jury extensively with respect to kidnapping, both as a predicate for the capital felony and felony murder charges, as well as for the separate kidnapping counts, and robbery in the first degree, but that the instructions did not comport with Salamon . The second habeas court stated that it was not disputed that the jury found that the victim was moved or restrained at least two separate times, as alleged in the kidnapping counts: once to facilitate injury to the victim and once to rob him. According to the second habeas court, these movements or restrictions of the victim had a clearly defined and distinct significance from each other and from the other charged offenses. The court also concluded that "a reasonable fact finder could clearly determine that the restraint and/or movement of the victim [were] not merely incidental to the other offenses. That is, the movements and/or confinements had independent criminal significance." The court, therefore, denied the petitioner's Salamon claim because the underlying facts would not have warranted a Salamon instruction. Moreover, the court stated, even if the petitioner were entitled to a Salamon instruction, the absence of such an instruction was harmless error. We agree with the second habeas court that the failure to give a Salamon instruction was harmless beyond a reasonable doubt. In addition to the two kidnapping charges, the petitioner was charged with capital felony, murder, felony murder and robbery. In such circumstances, State v. Fields , 302 Conn. 236, 247, 24 A.3d 1243 (2011), instructs that ordinarily a Salamon instruction should have been given. At his criminal trial, the petitioner all but conceded that the perpetrators robbed and assaulted the victim. See footnote 6 of this opinion. Given his concession, his defense focused on the capital felony and murder charges. If a reviewing court determines that a Salamon instruction on incidental restraint should have been given, it must then determine whether the failure to give the instruction was harmful. In Luurtsema v. Commissioner of Correction , supra, 299 Conn. at 740, 12 A.3d 817, our Supreme Court stated that "the proper standard to [determine whether a petitioner's kidnapping conviction requires reversal due to the omission of a Salamon instruction] would be the harmless error standard applied on direct appeal.... On direct appeal, [i]t is well established that a defect in a jury charge which raises a constitutional question is reversible error if it is reasonably possible that, considering the charge as a whole, the jury was misled.... [T]he test for determining whether a constitutional error is harmless . is whether it appears beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained.... A jury instruction that improperly omits an essential element from the charge constitutes harmless error [only] if a reviewing court concludes beyond a reasonable doubt that the omitted element was uncontested and supported by overwhelming evidence, such that the jury verdict would have been the same absent the error . The failure to charge in accordance with Salamon is viewed as an omission of an essential element . and thus gives rise to constitutional error." (Citations omitted; internal quotation marks omitted.) Hinds v. Commissioner of Correction , supra, 321 Conn. at 77-78, 136 A.3d 596. On appeal, the petitioner argues that the two kidnapping charges were based on (1) the alleged restraint of the victim during the robbery, and (2) the alleged abduction of the victim from the parking lot to Bates Woods. The petitioner's argument assumes that the robbery occurred in the Saab or parking lot where the victim was first beaten. He analyzed the Salamon risk factors as follows: With respect to the events that took place in the parking lot, the petitioner contends that the state did not allege that the perpetrators confined the victim at any time during which they were not attacking him. He argues that the perpetrators restrained the victim only when they were attacking him. As a matter of law and as recited in the court's instruction on robbery, the use or threatened use of physical force is inherent in the crime of robbery. The evidence, however, demonstrates that the petitioner moved the victim when he was not being attacked. Jarvis testified that the perpetrators dragged the victim from the Saab and beat him motionless. The state contended that the robbery occurred at that point. The petitioner picked up the motionless victim, put him on the backseat of the Saab, transported him to Bates Woods, beat him again and murdered him. Putting the victim back into the Saab, transporting him to Bates Woods, and the ensuing violence was not necessary to the crime of robbery. Simply put, abducting and moving the motionless body of the victim exceeded what was necessary to commit the crime of robbery. Moreover, it does not matter at exactly which point in time the perpetrators took the victim's money and watch. The taking could have occurred at any number of points: during the struggle inside the Saab; when the victim was lying motionless on the ground of the parking lot; while he was lying on the backseat of the Saab; after he was driven to Bates Woods; or when he was again pulled from the Saab at Bates Woods. Each of those potential points of taking are separated in time and by distinct movements. If the taking occurred during the struggle inside the Saab, at a minimum, pulling the victim from the Saab, beating him, putting him back in the Saab after he had been beaten motionless was not incidental to or necessary to the taking. If the taking occurred when the victim was placed on the backseat of the Saab after he had been beaten motionless, the initial struggle in the Saab preceded the taking and was not incidental or necessary to it, nor was the asportation to Bates Woods. If the taking occurred after the victim was dead, restraining the victim in and pulling him from the Saab on two occasions was not incidental to or necessary to the commission of the taking. Under any scenario, no reasonable juror could conclude that the restraint or movement imposed on the victim after he was beaten and lying motionless on the ground of the parking lot was necessary for the commission of robbery. With respect to the kidnapping charge alleging that the petitioner restrained the victim with the intent to inflict physical injury upon him, the evidence demonstrated that the perpetrators restrained the victim in the Saab and assaulted him, causing him physical injury. The victim's blood was detected in the blood splatters on the visor above the driver's seat. After restraining the victim and causing him physical injuries, the perpetrators exceeded what was necessary to commit assault with the intent to cause physical injury by removing the struggling victim from the Saab and beating him motionless. As to the kidnapping charge that the petitioner abducted and restrained the victim in order to inflict physical injury, the evidence demonstrates that the victim was placed in the backseat of the Saab, after he had been beaten and rendered motionless, transported to Bates Woods, beaten and murdered. Driving the victim to Bates Woods was not necessary to inflict physical injury on the victim. That was accomplished initially during the struggle in the Saab and again when he was beaten while he was lying motionless on the parking lot. In White v. Commissioner of Correction , supra, 170 Conn. App. at 430-31, 154 A.3d 1054, this court noted that in Hinds v. Commissioner of Correction , supra, 321 Conn. at 92-93, 136 A.3d 596, our Supreme Court categorized Salamon incidental restraint cases depending on the degree of confinement and movement. "Although no minimum period of restraint or degree of movement is necessary for the crime of kidnapping, an important facet of cases where the trial court has failed to give a Salamon instruction and that impropriety on appellate review has been deemed harmless error is that longer periods of restraint or greater degrees of movement demarcate separate offenses. See State v. Hampton , [293 Conn. 435, 463-64, 988 A.2d 167 (2009) ] (defendant confined victim in car and drove her around for approximately three hours before committing sexual assault and attempted murder); State v. Jordan , [129 Conn. App. 215, 222-23, 19 A.3d 241 (2011) ] (evidence showed the defendant restrained the victims to a greater degree than necessary to commit the assaults even though assaultive behavior spanned entire forty-five minute duration of victims' confinement) [cert. denied, 302 Conn. 910, 23 A.3d 1248 (2011) ]; State v. Strong , [122 Conn. App. 131, 143, 999 A.2d 765] (defendant's prolonged restraint of victim while driving for more than one hour from one town to another not merely incidental to threats made prior to the restraint) [cert. denied, 298 Conn. 907, 3 A.3d 73 (2010) ]; and State v. Nelson , [118 Conn. App. 831, 860-62, 986 A.2d 311] (harmless error when defendant completed assault and then for several hours drove victim to several locations) [cert. denied, 295 Conn. 911, 989 A.2d 1074 (2010) ]. Thus, as these cases demonstrate, multiple offenses are more readily distinguishable-and, consequently, more likely to render the absence of a Salamon instruction harmless-when the offenses are separated by greater time spans, or by more movement or restriction of movement." (Internal quotation marks omitted.) White v. Commissioner of Correction , supra, at 430-31, 154 A.3d 1054 ; see also Pereira v. Commissioner of Correction , supra, 176 Conn. App. at 773-74, 171 A.3d 105 (habeas court properly concluded restraint and confinement of victim occurred separately from and was completed prior to murder). The second habeas court cited the Hampton and Nelson cases in support of its conclusion that the failure to give a Salamon instruction in the present case was harmless error, if any. We agree with the second habeas court's conclusion that the failure to give the Salamon charge in the present case was harmless. The evidence demonstrates that the petitioner, along with the other perpetrators, engaged in several offenses during which he restrained and moved the victim in a manner not merely incidental to or necessary for the commission of assault or robbery, and that the offenses were separated by distinct periods of time and by more movement or restraint of movement. Accordingly, with respect to both charges of kidnapping, we conclude, beyond a reasonable doubt, that the "omitted element was uncontested and supported by overwhelming evidence such that the jury verdict would have been the same absent the error ." (Internal quotation marks omitted.) Hinds v. Commissioner of Correction , supra, 321 Conn. at 77-78, 136 A.3d 596. We thus conclude that the "evidence reasonably supports a finding that the restraint was not merely incidental to the commission of some other, separate crime ." (Emphasis in original.) State v. Salamon , supra, 287 Conn. at 547-48, 949 A.2d 1092. For the foregoing reasons, although the second habeas court should have granted the petitioner certification to appeal, the court did not improperly deny his petition for a writ of habeas corpus with regard to his allegation that he was denied due process because the jury was not instructed pursuant to Salamon . B The petitioner claims that the habeas court improperly concluded that his claim of ineffective assistance of trial counsel was barred by the doctrine of res judicata. We disagree. In its memorandum of decision, the second habeas court found that the petitioner alleged in the first count of his second habeas petition that his trial counsel rendered deficient performance in that Attorneys Kevin Barrs and M. Fred DeCaprio (1) presented inadequate evidence during the hearing on the motion to suppress the petitioner's statement to the police, (2) failed to investigate and demonstrate that the victim's body was mishandled by first responders, and (3) failed to introduce exculpatory evidence regarding the contradiction between Carr's statement to the police, and a public defender's investigation report and his trial testimony. The respondent, the Commissioner of Correction, denied the allegations and averred that the ineffective assistance of counsel claim was successive because it was raised in the first habeas petition. The petitioner replied that the claim in the second habeas petition does not present the same ground as presented in the first habeas petition. The second habeas court cited Carter v. Commissioner of Correction , 109 Conn. App. 300, 950 A.2d 619 (2008), for the law concerning successive petitions. "[A] petitioner may bring successive petitions on the same legal grounds if the petitions seek different relief.... But where successive petitions are premised on the same legal grounds and seek the same relief, the second petition will not survive a motion to dismiss unless the petition is supported by allegations and facts not reasonably available to the petitioner at the time of the original petition." (Internal quotation marks omitted.) Id., at 306, 950 A.2d 619. The second habeas court also noted that Connecticut courts repeatedly have applied the doctrine of res judicata to claims duplicated in successive habeas petitions. See Moody v. Commissioner of Correction , 127 Conn. App. 293, 297-98, 14 A.3d 408, cert. denied, 300 Conn. 943, 17 A.3d 478 (2011). The court further determined that the petitioner's first habeas petition was premised on four alleged deficiencies of trial counsel. The petitioner requested that the first habeas court vacate his conviction and sentence, and remand the matter to the criminal court for further proceedings. The claim of ineffective assistance of trial counsel in the petitioner's second habeas petition is identical to the one in the first habeas petition. The court stated that unless the petitioner presented newly discovered evidence that was not reasonably available at the time of the first habeas trial, the petitioner is barred from relitigating a claim of ineffective assistance of trial counsel. In addition, the court found that all of the witnesses at the second habeas trial either testified at the first habeas trial or were available to testify at that trial. Moreover, the documentary evidence the petitioner offered at the second habeas trial contained no new evidence, let alone evidence that was not reasonably available at the time of the first habeas trial. The court concluded that the claim of ineffective assistance of trial counsel alleged in the second habeas petition was successive and was therefore barred by the doctrine of res judicata. The petitioner's claim of ineffective assistance of trial counsel centers on the admission into evidence of Carr's February 16, 1999 statement to the police regarding a conversation he had had with the petitioner about the victim's death. Carr testified at the petitioner's criminal trial, but he could not remember his conversation with the petitioner and could not testify about it. He remembered signing the statement he gave to the police, but he claimed that the police made it up. Carr's statement to the police was admitted into evidence as a prior inconsistent statement pursuant to State v. Whelan , 200 Conn. 743, 753, 513 A.2d 86, cert. denied, 479 U.S. 994, 107 S.Ct. 597, 93 L.Ed.2d 598 (1986). On appeal, the petitioner claims that his trial counsel were deficient in failing to present evidence that Carr's trial testimony that he had no recollection of the conversation with the petitioner was consistent with a report generated by Ligia Werner, an investigator with the Office of the Chief Public Defender, who interviewed him on June 25, 2001. Werner's report indicates that when she spoke with Carr, he had no recollection of the conversation with the petitioner or its contents. At the criminal trial, Carr testified that he had no memory of Werner's interview of him. At the second habeas trial, the petitioner argued that Werner's report should have been offered into evidence as Carr's prior consistent statement. At the second habeas trial, the petitioner argued that his trial counsel's performances were deficient because they failed to place the facts regarding Werner's interview with Carr before the jury or to call her as a witness to substantiate his lack of memory regarding his conversation with the petitioner. The petitioner claims that trial counsel should have called Werner to testify. The second habeas court, however, found that the petitioner's claim was based on the same legal ground asserted in his first habeas petition. Moreover, Werner's report was known to trial counsel, and Werner was available to testify at the first habeas trial. The court concluded, therefore, that the petitioner's claim was successive. "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.... The doctrine . applies to criminal as well as civil proceedings and to state habeas corpus proceedings.... However, [u]nique policy considerations must be taken into account in applying the doctrine of res judicata to a constitutional claim raised by a habeas petitioner.... Specifically, in the habeas context, in the interest of ensuring that no one is deprived of liberty in violation of his or her constitutional rights . the application of the doctrine of res judicata . [is limited] to claims that actually have been raised and litigated in an earlier proceeding." (Internal quotation marks omitted.) Kearney v. Commissioner of Correction , 113 Conn. App. 223, 233, 965 A.2d 608 (2009). Our Supreme Court has "recognized only one situation in which a court is not legally required to hear a habeas petition. In Negron v. Warden , [180 Conn. 153, 158, 429 A.2d 841 (1980), the court] observed that pursuant to Practice Book § . [23-29], [i]f a previous application brought on the same grounds was denied, the pending application may be dismissed without hearing, unless it states new facts or proffers new evidence not reasonably available at the previous hearing. " (Emphasis in original; internal quotation marks omitted.) Kearney v. Commissioner of Correction , supra, 113 Conn. App. at 234, 965 A.2d 608. Given the facts of the present matter and the law regarding successive petitions, we conclude that the second habeas court properly determined that the petitioner's claim of ineffective assistance of trial counsel was successive and therefore was barred by the doctrine of res judicata. The second habeas petition is grounded in the claim of ineffective assistance of trial counsel and alleges no new facts that were not known at the time of the first habeas trial. The second habeas court, therefore, did not abuse its discretion by denying the petitioner certification to appeal on his claim of ineffective assistance of trial counsel, as it is not an issue debatable among jurists of reason that a court could resolve it in a different manner, nor is it deserving of encouragement to proceed further. C The petitioner claims that the habeas court improperly determined that his statutory and constitutional rights to the effective assistance of first habeas counsel were not violated. In his second habeas petition, the petitioner alleged that the performance of his first habeas counsel, Christopher Duby, was deficient because he failed to allege that the petitioner's trial counsel rendered ineffective assistance by (1) failing to present evidence and testimony during the hearing on the motion to suppress the petitioner's statement to the police, (2) failing to investigate defense witnesses to demonstrate that first responders mishandled the victim's body, and (3) failing to introduce exculpatory evidence through witnesses to show the contradiction between Carr's statement to the police, and his statement to an investigator from the public defender's office and his trial testimony, and (4) failing to raise the Salamon jury instruction issue in the first habeas petition. He concedes, however, that the second habeas court properly subsumed his claim of ineffective assistance of trial counsel into his claim of ineffective assistance of first habeas counsel. To prevail on a claim of ineffective assistance of habeas counsel that is predicated on the ineffective assistance of trial counsel, a petitioner must demonstrate that both trial and habeas counsel were ineffective. See Stanley v. Commissioner of Correction , 164 Conn. App. 244, 254, 134 A.3d 253, cert. denied, 321 Conn. 913, 136 A.3d 1274 (2016). "[When] applied to a claim of ineffective assistance of prior habeas counsel, the Strickland [v. Washington , 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) ] standard requires the petitioner to demonstrate that his prior habeas counsel's performance was ineffective and that this ineffectiveness prejudiced the petitioner's prior habeas proceeding.... [T]he petitioner will have to prove that one or both of the prior habeas counsel, in presenting his claims, was ineffective and that effective representation by habeas counsel establishes a reasonable probability that the habeas court would have found that he was entitled to reversal of the conviction and a new trial ." (Emphasis omitted; internal quotation marks omitted.) Harris v. Commissioner of Correction , 108 Conn. App. 201, 209-10, 947 A.2d 435, cert. denied, 288 Conn. 911, 953 A.2d 652 (2008). A petitioner who claims ineffective assistance of habeas counsel on the basis of ineffective assistance of trial counsel must satisfy Strickland twice; that is, he must show that his appointed habeas counsel and his trial counsel were ineffective. Lozada v. Warden , 223 Conn. 834, 842, 613 A.2d 818 (1992). With respect to the motion to suppress the petitioner's statement to the police, the second habeas court found that the petitioner's motion to suppress was unsuccessful prior to trial, on appeal, and at his first habeas trial. At the second habeas trial, DeCaprio and Barrs testified, but the court found that neither of them offered any evidence of what could have been done to make their representation on the motion to suppress at trial more effective. The petitioner told Duby that he believed that he was in custody and not free to leave when the police were questioning him. Duby interviewed some of the police officers involved. The first habeas court concluded that even if the petitioner had testified at the suppression hearing as he testified at the habeas trial, the trial court would not have granted the motion to suppress and, therefore, the petitioner was not prejudiced by counsel's decision not to offer his testimony. In resolving the habeas appeal, this court stated that the petitioner's testimony at the first habeas trial did not establish any credible new or additional facts for a court to find that the petitioner was in custody, thus triggering his Miranda rights. Britton v. Commissioner of Correction , supra, 141 Conn. App. at 651-57, 61 A.3d 1188. This court thus affirmed the finding of the habeas court that the petitioner was not prejudiced by his attorney's failure to offer his testimony at the suppression hearing. On the basis of the foregoing history of litigation and appeals, the second habeas court found that the petitioner failed to demonstrate that Duby was ineffective with respect to his investigation of ineffective assistance of trial counsel regarding the suppression of the petitioner's statement. With regard to the petitioner's claim that Duby provided ineffective assistance because he failed to investigate and subpoena witnesses to demonstrate that first responders to the crime scene mishandled the victim's body, the second habeas court found that Duby spoke with Carver and hired a medical expert because he was not convinced that the cause of death was accurate, and that the petitioner believed that the victim's body had been moved by the police. The expert's testimony was not particularly helpful to the petitioner because the expert was of the opinion that if the victim's body had been moved, it did not affect the autopsy results, and his opinions were consistent with Carver's. The second habeas court concluded that the evidence the petitioner presented failed to demonstrate that Duby's performance was ineffective to demonstrate that first responders at the crime scene mishandled the victim's body. As to the petitioner's claim that Duby failed to introduce adequate exculpatory evidence to show the contradiction between Carr's statement to the police and his statement to Werner, and his trial testimony, DeCaprio testified that Carr's testimony at the criminal trial was adverse to the statement he gave to the police on February 16, 1999. After he gave the statement to the police, but prior to testifying at the petitioner's criminal trial in 2004, Carr testified at Pierre's criminal trial. Werner testified at the second habeas trial that she interviewed Carr on June 27, 2001, and prepared a summary of the interview. Carr's interview with Werner, and his testimony at Pierre's criminal trial and at the petitioner's criminal trial were consistent, but contradicted his February 16, 1999 statement to the police. At both criminal trials, Carr testified that he could not remember anything he said to the police. His police statement was admitted at both criminal trials as a prior inconsistent statement pursuant to State v. Whelan , supra, 200 Conn. at 753, 513 A.2d 86. The second habeas court reviewed all of Carr's criminal trial testimony and found that he repeatedly testified that he had no memory of what he said to the police. Although the trial court admitted Carr's police statement pursuant to Whelan , the petitioner did not challenge the evidentiary ruling on direct appeal. Pierre, however, did challenge the admission of Carr's police statement in his direct appeal. Our Supreme Court rejected Pierre's claim. State v. Pierre , 277 Conn. 42, 53-86, 890 A.2d 474, cert. denied, 547 U.S. 1197, 126 S.Ct. 2873, 165 L.Ed.2d 904 (2006). The second habeas court stated that it failed to see how a similar claim raised at the petitioner's first habeas trial would have reached a different outcome. The petitioner presented no evidence at the second habeas trial that the court considered exculpatory. The jury was apprised of the contradiction between Carr's statement to the police and his trial testimony. The second habeas court, therefore, concluded that the third alleged basis of ineffective assistance of first habeas counsel failed. The petitioner also alleged that Duby was ineffective for failing to raise a Salamon jury instruction claim in the first habeas petition. On the basis of Duby's testimony at the second habeas trial, the court found that Duby was aware of Salamon and its progeny at the time he was filing the amended petition, but that Luurtsema v. Commissioner of Correction , supra, 299 Conn. at 740, 12 A.3d 817, had not yet been decided. Duby had considered raising a Salamon claim but ultimately decided that the trial court's jury instructions on kidnapping were not defective. In considering this claim of ineffective assistance of first habeas counsel, the second habeas court cited the relevant law. "[A] defendant may be convicted of both kidnapping and another substantive crime if, at any time prior to, during or after the commission of that other crime, the victim is moved or confined in a way that has independent criminal significance, that is, the victim was restrained to an extent exceeding that which was necessary to accomplish or complete the other crime. Whether the movement or confinement of the victim is merely incidental to and necessary for another crime will depend on the particular facts and circumstances of each case." (Footnote omitted.) State v. Salamon , supra, 287 Conn. at 547, 949 A.2d 1092. "Connecticut courts ultimately assess the importance of a Salamon instruction by scrutinizing how a reasonable jury would perceive the defendant's restraint of the victim, particularly with respect to when, where, and how the defendant confined or moved the victim." Wilcox v. Commissioner of Correction , 162 Conn. App. 730, 745, 129 A.3d 796 (2016). The court reviewed the two kidnapping charges against the petitioner, i.e., kidnapping in the first degree for abducting and restraining the victim with intent to inflict physical injury, and abducting and restraining the victim with the intent to accomplish and advance the commission of a robbery. The court quoted the facts reasonably found by the jury pursuant to our Supreme Court's decision in State v. Britton , supra, 283 Conn. at 601-602, 929 A.2d 312. It also examined the prosecutor's closing argument and the relevant portions of the trial court's jury instruction. The second habeas court found that the parties did not dispute that the jury found that the victim had been moved and/or restrained on at least two separate occasions as alleged in the two kidnapping counts: "[o]nce to facilitate injury to him, another time to rob him." The movements and/or restrictions had a clearly defined and distinct significance from each other, and exceeded that which was necessary to commit assault and robbery. In other words, the movements or restraints had independent criminal significance. The court, therefore, concluded that the underlying facts would not have warranted a jury instruction pursuant to Salamon , but that if such a charge were warranted, the absence of a Salamon charge was harmless. See, e.g., State v. Hampton , supra, 293 Conn. at 455-64, 988 A.2d 167 (lack of Salamon instruction harmless impropriety given particular facts of case). The second habeas court concluded, therefore, that Duby was not ineffective for failing to raise a Salamon claim in the first habeas petition. On the basis of our plenary review of the record and the law, we agree with the conclusion of the second habeas court. For the foregoing reasons, we conclude that the second habeas court abused its discretion by failing to grant the petition for certification to appeal, but properly denied the petitioner's second petition for a writ of habeas corpus. The judgment is affirmed. In this opinion the other judges concurred. When Jeffrey Smith, another of the perpetrators, was sentenced, the sentencing court, Schimelman, J. , "found that the incident was 'vicious' and it was done for 'a few dollars and a fake wristwatch.' " State v. Smith , Superior Court, judicial district of New London, Docket No. KNLCR-99-250704, 2012 WL 5278688, *1 (October 10, 2012) (sentence review division). Jarvis testified at trial that he remained in his vehicle and witnessed the perpetrators assault the victim in the apartment parking lot. When the perpetrators drove away from the apartment parking lot, Jarvis was unable to follow them and went home. Several days later, he visited Smith at his home. When Jarvis asked, Smith told him that the victim died at Bates Woods. On February 16, 1999, Carr gave a written statement to the state police. Carr stated in part that in the summer of 1998, the perpetrators helped him get a job with a cleaning company. Company employees traveled together in a van to and from work sites. As they were being driven home one day, Carr overheard the petitioner and Pierre talking about the victim's murder. Carr asked them what they were talking about. The petitioner told Carr how the victim had come to Lucky's, how the perpetrators and the victim drove to Pierre's, how the perpetrators beat the victim and drove him to Bates Woods and beat him again. Carr also stated that the petitioner "started to brag and said that he took a pole and placed it into the [victim's] mouth. [The petitioner] said that he really jammed the pole down his throat and then twisted the pole to break his neck. [The petitioner] said that prior to doing this with the pole, the [victim] was still alive but after he did this, the [victim] died immediately." At the petitioner's criminal trial, Carr did not remember his conversation with the petitioner and could not testify about it. Prior to the start of the petitioner's criminal trial, Carr was interviewed by an investigator from the chief public defender's office, Ligia Werner. In her interview report, Werner indicated that Carr had no recollection of his conversation with the petitioner or the contents of his statement. See part III of this opinion. During the course of his autopsy of the victim, Carver discovered that the victim had suffered several broken ribs and that his jaw and facial bones had been fractured. With respect to the capital felony charge, the state's attorney alleged that the petitioner, with intent to cause the death of the victim, whom he had kidnapped, did cause the death of the victim during the course of the kidnapping. In count four of the substitute information, the state's attorney accused the "[petitioner] of kidnapping in the first degree and charge[d] that at the city of New London and the town of Waterford on or about the 23rd day of August, 1998, [the petitioner] did abduct [the victim] and restrained [the victim] with intent to inflict physical injury upon [the victim] in violation of § 53a-92 (a) (2) (A) of said statutes." In count five of the substitute information, the state's attorney accused the "[petitioner] of kidnapping in the first degree and charge[d] that at the city of New London and the town of Waterford on or about the 23rd day of August, 1998, the [petitioner] did abduct [the victim] and [restrained] the victim with intent to accomplish and advance the commission of a robbery in violation of [§] 53a-92 (a) (2) (B) of said statutes." In count six of the substitute information, the state's attorney accused the "[petitioner] of robbery in the first degree and charge[d] that at the city of New London and the town of Waterford on or about the 23rd day of August, 1998, the [petitioner], in the course of the commission of the crime of robbery and of immediate flight therefrom, the [petitioner, Smith and Pierre] caused serious physical injury to [the victim], who was not a participant in the crime, in violation of [§] 53a-134 (a) (1) of said statutes." The petitioner's theory of defense was that he could not be guilty of capital murder because he did not have the intent to cause the death of the victim and that he was not the one who killed the victim. He argued that the incident was a drug deal gone badly and that the victim died in a manner that was not planned. The petitioner conceded, however, that he was involved in the incident and that the state had proved that he assaulted and robbed the victim. On direct appeal, the petitioner claimed that the trial court improperly denied his motion to suppress the statements he gave to the police, and denied him a fair trial and an impartial jury by explaining to the jury that if it found him guilty of capital felony, it would hear evidence regarding aggravating factors during the penalty phase of the trial. See State v. Britton , supra, 283 Conn. at 600-601, 929 A.2d 312. The petitioner alleged that his trial counsel "rendered ineffective assistance by failing (1) to adequately advise him regarding a plea offer, (2) to offer the petitioner's testimony on the circumstances of his giving a statement to police about his involvement in the victim's death and (3) to object to the trial court's preliminary instructions to the venire panel." Britton v. Commissioner of Correction , supra, 141 Conn. App. at 646, 61 A.3d 1188. Attorney Kevin Barrs and Attorney M. Fred DeCaprio represented the petitioner at his criminal trial. In his second habeas petition, the petitioner alleged that his trial counsel rendered ineffective assistance with respect to (1) the motion to suppress his statement to the police, (2) the investigation of first responders' handling of the victim's body, and (3) contradictions between Carr's statement to the police and his trial testimony. Attorney Christopher Duby represented the petitioner at the first habeas trial. The petitioner alleged that Duby's representation was ineffective with respect to (1) the motion to suppress the petitioner's statement to the police, (2) the investigation of the first responders' handling of the victim's body, (3) contradictions between Carr's statement to the police and his trial testimony, and (4) the failure to raise a Salamon claim. Sanseverino was overruled in part by State v. DeJesus , 288 Conn. 418, 437, 953 A.2d 45 (2008), and superseded in part after reconsideration by State v. Sanseverino , 291 Conn. 574, 579, 969 A.2d 710 (2009). The court's conclusion is an inaccurate statement of the standard governing Salamon claims raised in a collateral proceeding. The standard set forth in Hinds v. Commissioner of Correction , 321 Conn. 56, 136 A.3d 596 (2016), is whether "a defect in a jury charge which raises a constitutional question is reversible error if it is reasonably possible that, considering the charge as a whole, the jury was misled.... [T]he test for determining whether a constitutional error is harmless . is whether it appears beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained.... A jury instruction that improperly omits an essential element from the charge constitutes harmless error [only] if a reviewing court concludes beyond a reasonable doubt that the omitted element was uncontested and supported by overwhelming evidence, such that the jury verdict would have been the same absent the error ." (Internal quotation marks omitted.) Id., at 77-78, 136 A.3d 596. Although we conclude that the petitioner's claims of ineffective assistance of trial and habeas counsel are frivolous, they are interwoven with his Salamon claim. The petitioner was convicted of the underlying crimes in January, 2005; Salamon was decided in 2008. Our Supreme Court made its holding in Salamon retroactive with respect to collateral attacks on a kidnapping conviction in Luurtsema v. Commissioner of Correction , supra, 299 Conn. at 740, 12 A.3d 817. The second habeas court addressed the substance of the petitioner's Salamon claim in association with the petitioner's claim that his first habeas counsel rendered ineffective assistance by failing to raise a Salamon claim in the first habeas petition. The court incorporated its Salamon analysis when it addressed the petitioner's stand-alone Salamon claim. Judge Schimelman charged the jury with respect to capital felony, in part, as follows: "The first count of the information accuses [the petitioner] of capital felony and charges that at the city of New London and town of Waterford on or about the twenty-third day of August, 1998, the [petitioner], with intent to cause the death of [the victim], whom he had kidnapped, did cause the death of [the victim] during the course of the kidnapping and before [the victim] was able to return and be returned to safety . "The second essential element of the crime of capital felony . is that the [petitioner] kidnapped another person . [the victim]. For purposes of this first count, our Penal Code provides [that] a person is guilty of kidnapping when he abducts another person.... "Abduct means to restrain a person with intent to prevent his liberation by either A, secreting or holding him in a place where he is not likely to be found or, B, using or threatening to use physical force or intimidation. "Restrain means to restrict a person's movements intentionally and unlawfully in such manner as to interfere substantially with his liberty, by moving him from one place to another or by confining him in the place where either the restriction began or in a place to which he had been moved without consent. Without consent includes but is not limited to deception. The abduction and the restraining must be intentional. There must be an intent to interfere substantially with the alleged victim's liberty either by, one, secreting or hiding him in a place where he is not likely to be found or, two, by using or threatening to use physical force or intimidation." Judge Schimelman charged the jury with respect to felony murder, in part, as follows: "There are three essential elements, each of which the state must prove beyond a reasonable doubt for you to find [the petitioner] guilty of felony murder. One, the [petitioner], acting with one or more persons, committed the crime of kidnapping or the crime of robbery; two, the death of [the victim] was caused by the [petitioner] or another participant, and that person whose death was caused was not a participant in the predicate crime of robbery or kidnapping; and three, the [petitioner] or another participant caused the death of [the victim] in the course of or in furtherance of the commission of the crime of kidnapping or robbery or of flight therefrom.... "First, with respect to the predicate crime of kidnapping for the purpose of [felony murder], a person is guilty of kidnapping when he abducts another person. [The court repeated its instruction regarding abduction and restraint.] . Kidnapping is a continuing crime that commences once a person is wrongfully deprived of freedom and continues for as long as that unlawful detention lasts. The law which makes kidnapping criminal punishes interference with personal liberty and restricting the alleged victim's freedom of movement. You cannot convict the [petitioner] of kidnapping unless you first find that there was a restriction of movement and that it was done intentionally, that it was done without right or authority of law, and that it had the effect of interfering substantially with the alleged victim's liberty.... "With respect to the other predicate crime of robbery for purposes of [felony murder], a person commits robbery when, in the course of committing a larceny, he uses or threatens the immediate use of physical force upon another person for the purpose of preventing or overcoming resistance to the taking of the property or to the retention thereof immediately after the taking or compelling the owner of such property to deliver up the property or to engage in other conduct which aids in the commission of the larceny.... "A larceny is a theft or stealing. A person commits larceny when, with intent to deprive another person of property or to appropriate the same to himself or a third person, he wrongfully takes, obtains, or withholds such property from an owner." Judge Schimelman charged the jury with respect to the kidnapping counts, in relevant part, as follows: "For you to find the [petitioner] directly committed the crime of kidnapping in the first degree, § 53a-92 (a) (2) (A), as a principal, the state must prove each of the following essential elements beyond a reasonable doubt: One, the [petitioner] abducted the alleged victim, two, the [petitioner] unlawfully restrained the person he abducted and, three, he did so with intent to inflict physical injury on the alleged victim. [The court iterated its instructions regarding abduction, restraint, and kidnapping.] . "Again, the term physical force has its everyday meaning. It includes any violence or superior physical strength against the alleged victim. It is for you to decide whether the evidence proves that physical force was used by the [petitioner], and whether it actually produced and resulted in the accomplishment of the restraint which is charged here. "The third essential element of kidnapping in the first degree in violation of § 53a-92 (a) (2) (A) is that the [petitioner] abducted and restrained the alleged victim . with the intent to inflict physical injury upon him. Physical injury means an impairment of physical condition or pain.... "The fifth count of the information accuses [the petitioner] of the crime of kidnapping in the first degree and charges . that [the petitioner] did abduct [the victim] and restrained [the victim] with intent to accomplish and advance the commission of a robbery in violation of § 53a-92 (a) (2) (B).... [T]he state must prove each of the following essential elements beyond a reasonable doubt: One, the [petitioner] abducted the alleged victim, two, the [petitioner] unlawfully restrained the person he abducted and, three, he did so with the intent to accomplish or advance the commission of a felony, here, the crime of robbery." With respect to robbery in the first degree, Judge Schimelman charged the jury in relevant part: "The sixth . count of the information accuses [the petitioner] of robbery in the first degree and . [charges that] in the course of the commission of the crime of robbery and of immediate flight therefrom, [the perpetrators] caused serious physical injury to [the victim], who was not a participant in the crime.... In order to find the [petitioner] guilty of this crime . the state must prove beyond a reasonable doubt, one, the [petitioner] committed a robbery and, two, in the course of the commission of that robbery or immediate flight therefrom, the [petitioner] or another participant in the crime caused serious physical injury to a person who was not a participant in the crime.... "Serious physical injury means physical injury which creates a substantial risk of death or which causes serious impairment of health or serious loss or impairment of any function of any bodily organ for purposes of this sixth count." But see footnote 12 of this opinion regarding the proper standard governing Salamon claims. In support of its conclusion that the error in failing to give a Salamon instruction, if any, was harmless, the second habeas court cited State v. Hampton , 293 Conn. 435, 455-64, 988 A.2d 167 (2009) (lack of Salamon instruction harmless error given particular facts), and State v. Nelson , 118 Conn. App. 831, 834-36, 856, 986 A.2d 311 (same), cert. denied, 295 Conn. 911, 989 A.2d 1074 (2010). The record contains no evidence as to precisely when the perpetrators took the victim's watch and money. The robbery, therefore, is central to our analysis of the petitioner's Salamon claim. Robbery generally may be defined as larceny by force. See State v. Townsend , 206 Conn. 621, 626, 539 A.2d 114 (1988). As such, the petitioner contends that the perpetrators' restraint and movement of the victim was incidental to the crime of robbery. The court instructed the jury [with respect to felony murder] in relevant part as follows: "In order for you to find the [petitioner] directly committed the predicate crime of robbery as a principal, the state must prove that the [petitioner], in the course of committing a larceny, used or threatened the immediate use of physical force upon another person, that is, [the victim], to prevent or overcome resistance to the taking of the property or to its retention or compelling [the victim] to deliver up the property or to engage in other conduct which aided in the commission of the alleged larceny.... "The gist of the crime of robbery is the act of committing a larceny by physical force or threat of immediate use of physical force. Like the intent element of larceny, the remaining essential elements of the offense of robbery must be done intentionally, as I have explained that. Physical force or the threat of its immediate use is a common, readily understandable expression having its ordinary meaning. It means the application or threat of external physical power to another person. Physical force or its immediate threat must be for the purpose of committing the larceny. Such physical force must be used or threatened for the purpose of preventing or overcoming resistance to the taking of the property or to the retention thereof immediately after the taking or for the purpose of compelling the owner of the property to deliver up the property or to engage in other conduct which aids in the commission of the larceny. Robbery requires proof of larceny by force or the threat of use of force, and proof of larceny requires proof of a taking of property with the specific intent to deprive the owner of its possession permanently." On appeal, the petitioner argues that the victim may have been dead when he was put in the backseat of the Saab. That argument is belied by the petitioner's statement to the police that the victim was alive at that time. Even though we conclude, on the basis of the facts of this particular case, that the petitioner's intent is not susceptible to more than one interpretation; see White v. Commissioner of Correction , supra, 170 Conn. App. at 429, 154 A.3d 1054 ; we have undertaken an analysis of the six Salamon jury instruction factors; State v. Salamon , supra, 287 Conn. at 547-48, 949 A.2d 1092 ; which supports our conclusion that the petitioner's restraint and movement of the victim was more than was necessary to complete the crimes of assault and robbery. The petitioner's restraint of the victim was extensive: it began inside the Saab, continued at the apartment parking lot where he beat him, and continued when he put the injured victim back in the Saab and drove him to Bates Woods where he put a pipe in the victim's mouth and twisted it, resulting in the victim's death. The restraint and movement that occurred after the petitioner beat the victim at the apartment parking lot was unnecessary to complete the crimes of assault and robbery and, therefore, had independent significance. The crimes could have been completed prior to returning the victim to the Saab and driving him to Bates Woods. The petitioner's restraint and movement of the badly injured victim from the apartment parking lot to Bates Woods prevented the victim from summoning assistance. The petitioner's moving the victim obviously reduced the petitioner's risk of detection. Finally, the petitioner's restraint and movement of the victim greatly increased the risk of harm to the victim, who was murdered. Under the circumstances of this case, we conclude that the jury was not misled by the failure to give the Salamon charge and, therefore, the failure was harmless beyond a reasonable doubt. See Miranda v. Arizona , 384 U.S. 436, 478-79, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). Carr died and was not available to testify at the second habeas trial.

12504943

Joseph MOORE v. COMMISSIONER OF CORRECTION

Moore v. Comm'r of Corr.

2018-11-27

AC 40112

594

604

199 A.3d 594

199

West's Atlantic Reporter, Third Series

Connecticut Appellate Court

Connecticut

2021-08-27T20:57:42.438369+00:00

Fastcase

Joseph MOORE v. COMMISSIONER OF CORRECTION

Joseph MOORE v. COMMISSIONER OF CORRECTION AC 40112 Appellate Court of Connecticut. Argued September 14, 2018 Officially released November 27, 2018 Michael W. Brown, West Hartford, for the appellant (petitioner). Mitchell S. Brody, senior assistant state's attorney, with whom, on the brief, were Matthew C. Gedansky, state's attorney, and Angela Macchiarulo, senior assistant state's attorney, for the appellee (respondent). Lavine, Keller and Elgo, Js.

5147

31303

KELLER, J. The petitioner, Joseph Moore, appeals following the denial of his petition for certification to appeal from the judgment of the habeas court denying his amended petition for a writ of habeas corpus. The petitioner claims that the habeas court (1) abused its discretion in denying his petition for certification to appeal and (2) improperly rejected his claim that his trial counsel had rendered ineffective assistance. We conclude that the court did not abuse its discretion in denying the petition for certification to appeal, and, accordingly, dismiss the petitioner's appeal. The following facts and procedural history are relevant to our resolution of the petitioner's claims. Following a trial, a jury found the petitioner guilty of robbery in the first degree in violation of General Statutes § 53a-134 (a) (4) and commission of a class B felony with a firearm in violation of General Statutes § 53-202k. The petitioner then pleaded guilty, in response to a part B information, that the aforementioned offenses were committed while on release in violation of General Statutes § 53a-40b. The petitioner also pleaded guilty to a second part B information charging him with being a persistent felony offender in violation of General Statutes § 53a-40 (f). The trial court sentenced the petitioner to a total effective term of thirty-four years incarceration. On direct appeal from the petitioner's underlying conviction, this court set forth the following facts that the jury reasonably could have found. "At approximately 1 p.m. on July 13, 2009, the [petitioner] entered the New Alliance Bank in Columbia wearing a white tank top and dark sweatpants. Branch manager Penny Ritchie and tellers Maria DePietro and Michelle LaLiberty, who were working at the bank that day, observed the [petitioner] approach the check writer station. The [petitioner] then asked another patron, David Woodward, where the withdrawal slips were located, at which point the [petitioner] took a slip from the station and began to write on it. Photographs from the bank's security cameras introduced into evidence depict the [petitioner] writing on a piece of paper at the check writer station and then approaching the teller station with the piece of paper in his hand. "The [petitioner] approached Ritchie and handed her a deposit slip that read, '[g]ive cash. I have gun.' When Ritchie explained that she was not a teller, the [petitioner] ordered her to '[g]ive me the cash. Give it now.' Ritchie then slid the deposit slip to DePietro, who unlocked her teller drawer. As she did, the [petitioner] demanded, '[h]urry up, hurry up' and reached over the counter. DePietro then handed the [petitioner] $3500 in cash. "The [petitioner] immediately exited the bank and Woodward followed. As Ritchie locked the bank's doors and DiPietro called 911, LaLiberty closed the bank's drive-through window. As she did, she saw the [petitioner] walking at the rear of the bank to a grassy strip between the drive-through lane and an adjacent firehouse. LaLiberty wrote down a description of the [petitioner] at that time. Approximately six hours later, the Connecticut state police apprehended the [petitioner] in a grassy area near Route 66 in Columbia. The [petitioner] subsequently reviewed and executed a waiver of Miranda rights form and agreed to speak with Detective Derek Kasperowski. The [petitioner] then admitted to robbing the bank and stated that he remembered 'smoking crack before going into the bank, going to the bank teller and telling her to give him money.' Although no firearm was found on the [petitioner's] person or the surrounding area, the $3500 in cash was recovered." (Internal quotation marks omitted.) State v. Moore , 141 Conn. App. 814, 816-17, 64 A.3d 787, cert. denied, 309 Conn. 908, 68 A.3d 663 (2013). This court affirmed the petitioner's conviction. Id., at 825, 64 A.3d 787. On May 16, 2014, the petitioner, as a self-represented party, filed an application for a writ of habeas corpus. After obtaining counsel, he filed an amended petition on April 28, 2016. He alleged in relevant part that his constitutional right to effective assistance of counsel was violated, arguing that his "trial counsel's performance was deficient because he failed to adequately counsel the petitioner about the advisability of accepting the plea offer" and that there was a "reasonable probability that-but for trial counsel's deficient performance-the petitioner would have accepted the plea offer and the court would have imposed a more favorable sentence than the petitioner received." At the habeas trial on September 15, 2016, the habeas court heard testimony from Matthew Gedansky, the state's attorney in the petitioner's criminal case, Doug-las Ovian, the petitioner's trial counsel, and the petitioner. In particular, the petitioner testified that he admitted from the beginning that he robbed the bank, but he believed that he was only guilty of robbery in the third degree because he only had handed the bank teller a note and never hurt anyone. There was testimony that three plea offers were made to the petitioner: an offer for ten years to serve with five years of special parole; an offer for ten years to serve with two years of special parole; and an offer made at a judicial pretrial conference with Sullivan, J. , offering the petitioner fifteen years to serve if he pleaded guilty to one count of robbery in the first degree. Ovian testified that his notes indicated that he advised the petitioner to accept the offers and that he would never have told the petitioner to take this case to trial. In addition, Gedansky testified that he recalled Ovian telling him that Ovian had advised the petitioner to take the offer of ten years to serve with two years special parole. The petitioner testified that he rejected these offers because he had faith the state might present him with a more favorable offer, and that he believed he deserved only five years of imprisonment. There also was differing testimony between Ovian and the petitioner with respect to what Ovian advised as to the potential maximum sentence the petitioner faced if he was found guilty of all the charges, and whether he advised the petitioner of the potential maximum sentence he faced if he prevailed on a robbery in the third degree theory at trial. In a memorandum of decision filed January 10, 2017, the habeas court denied the amended petition for a writ of habeas corpus, finding that the petitioner had failed to prove deficient performance or prejudice. In particular, the habeas court found that "Ovian had many discussions with the petitioner throughout the course of his representation," and that Ovian "went over the state's evidence with [the petitioner] and he advised the petitioner to take each of the deals as they were offered given the circumstances." Additionally, the habeas court found that Ovian "informed the petitioner that he was facing a maximum exposure of forty-eight and one-half years if convicted of robbery in the first degree due to the sentence enhancements the petitioner faced." The habeas court concluded that Ovian relayed the offers to the petitioner, properly explained the state's evidence to him, and adequately warned him of the exposure he could face should he choose to go to trial. On January 17, 2017, the petitioner filed a petition for certification to appeal, which was later denied by the habeas court. This appeal followed. We begin by setting forth the applicable standard of review and procedural hurdles that the petitioner must overcome in order to obtain appellate review of the merits of a habeas court's denial of the habeas petition following denial of certification to appeal. "In Simms v. Warden , 229 Conn. 178, 187, 640 A.2d 601 (1994), [our Supreme Court] concluded that . [General Statutes] § 52-470 (b) prevents a reviewing court from hearing the merits of a habeas appeal following the denial of certification to appeal unless the petitioner establishes that the denial of certification constituted an abuse of discretion by the habeas court. In Simms v. Warden , 230 Conn. 608, 615-16, 646 A.2d 126 (1994), [the Supreme Court] incorporated the factors adopted by the United States Supreme Court in Lozada v. Deeds , 498 U.S. 430, 431-32, 111 S.Ct. 860, 112 L.Ed.2d 956 (1991), as the appropriate standard for determining whether the habeas court abused its discretion in denying certification to appeal. This standard requires the petitioner to demonstrate that the issues are debatable among jurists of reason; that a court could resolve the issues [in a different manner]; or that the questions are adequate to deserve encouragement to proceed further.... A petitioner who establishes an abuse of discretion through one of the factors listed above must then demonstrate that the judgment of the habeas court should be reversed on its merits.... In determining whether the habeas court abused its discretion in denying the petitioner's request for certification, we necessarily must consider the merits of the petitioner's underlying claims to determine whether the habeas court reasonably determined that the petitioner's appeal was frivolous." (Internal quotation marks omitted.) Hankerson v. Commissioner of Correction , 150 Conn. App. 362, 366-67, 90 A.3d 368, cert. denied, 314 Conn. 919, 100 A.3d 852 (2014). On appeal, the petitioner argues that the habeas court improperly rejected his claim that his trial counsel, Ovian, had rendered ineffective assistance. In his view, although Ovian advised him of the maximum sentence that he faced on the charge of robbery in the first degree, Ovian's performance was deficient for failing to advise him of the maximum sentence he faced if he was successful in proving at trial that he was guilty only of committing the lesser included offense of robbery in the third degree. For the reasons set forth in this opinion, we disagree with the petitioner and conclude that the habeas court did not abuse its discretion in denying the petition for certification to appeal. "The sixth amendment to the United States constitution, made applicable to the states through the due process clause of the fourteenth amendment, affords criminal defendants the right to effective assistance of counsel. Davis v. Commissioner of Correction , 319 Conn. 548, 554, 126 A.3d 538 (2015), cert. denied sub nom. Semple v. Davis , - U.S. -, 136 S.Ct. 1676, 194 L.Ed.2d 801 (2016) ; see also Thiersaint v. Commissioner of Correction , 316 Conn. 89, 100, 111 A.3d 829 (2015) (criminal defendant constitutionally entitled to adequate and effective assistance of counsel at all critical stages of criminal proceedings). Although a chal-lenge to the facts found by the habeas court is reviewed under the clearly erroneous standard, whether those facts constituted a violation of the petitioner's rights under the sixth amendment is a mixed determination of law and fact that requires the application of legal principles to the historical facts of this case. . As such, that question requires plenary review by this court unfettered by the clearly erroneous standard." (Internal quotation marks omitted.) Duncan v. Commissioner of Correction , 171 Conn. App. 635, 646, 157 A.3d 1169, cert. denied, 325 Conn. 923, 159 A.3d 1172 (2017). The United States Supreme Court has made clear that the failure to adequately advise a client throughout the plea process can form the basis for a sixth amendment claim of ineffective assistance of counsel, and that such claims should be evaluated under the two-part standard enunciated in Strickland v. Washington , 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). See Hill v. Lockhart , 474 U.S. 52, 57, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985). "[I]t is axiomatic that the right to counsel is the right to the effective assistance of counsel. . A claim of ineffective assistance of counsel consists of two components: a performance prong and a prejudice prong. To satisfy the performance prong . the petitioner must demonstrate that his attorney's representation was not reasonably competent or within the range of competence displayed by lawyers with ordinary training and skill in the criminal law." (Internal quotation marks omitted.) Silver v. Commissioner of Correction , 180 Conn. App. 592, 597, 184 A.3d 329, cert. denied, 328 Conn. 940, 184 A.3d 759 (2018). "Prior to trial an accused is entitled to rely upon his counsel to make an independent examination of the facts, circumstances, pleadings and laws involved and then to offer his informed opinion as to what plea should be entered. Determining whether an accused is guilty or innocent of the charges in a complex legal indictment is seldom a simple and easy task for a layman, even though acutely intelligent." Von Moltke v. Gillies , 332 U.S. 708, 721, 68 S.Ct. 316, 92 L.Ed. 309 (1948). "A defense lawyer in a criminal case has the duty to advise his client fully on whether a particular plea to a charge appears to be desirable." (Internal quotation marks omitted.) Vazquez v. Commissioner of Correction , 123 Conn. App. 424, 437, 1 A.3d 1242 (2010), cert. denied, 302 Conn. 901, 23 A.3d 1241 (2011), quoting Boria v. Keane , 99 F.3d 492, 496 (2d Cir. 1996), cert. denied, 521 U.S. 1118, 117 S.Ct. 2508, 138 L.Ed.2d 1012 (1997). "Although the defendant ultimately must decide whether to accept a plea offer or proceed to trial, this critical decision, which in many instances will affect a defendant's liberty, should be made by a represented defendant with the adequate professional assistance, advice, and input of his or her counsel. Counsel should not make the decision for the defendant or in any way pressure the defendant to accept or reject the offer, but counsel should give the defendant his or her professional advice on the best course of action given the facts of the particular case and the potential total sentence exposure." (Emphasis omitted.) Barlow v. Commissioner of Correction , 150 Conn. App. 781, 800, 93 A.3d 165 (2014). "We are mindful that [c]ounsel's conclusion as to how best to advise a client in order to avoid, on the one hand, failing to give advice and, on the other, coercing a plea enjoys a wide range of reasonableness. . Accordingly, [t]he need for recommendation depends on countless factors, such as the defendant's chances of prevailing at trial, the likely disparity in sentencing after a full trial compared to the guilty plea . whether [the] defendant has maintained his innocence, and the defendant's comprehension of the various factors that will inform [his] plea decision." (Citation omitted; internal quotation marks omitted.) Sanders v. Commissioner of Correction , 169 Conn. App. 813, 828, 153 A.3d 8 (2016), cert. denied, 325 Conn. 904, 156 A.3d 536 (2017). The petitioner argues that his trial counsel's performance was deficient for failing to advise him of the maximum sentence he faced if he was successful in proving a theory of defense at trial that amounted to conceding that he was guilty only of the lesser included offense of robbery in the third degree. Specifically, the petitioner argues that although Ovian advised him of the maximum exposure he faced if convicted of robbery in the first degree, Ovian's performance was deficient because he had a duty to further encourage the petitioner to accept the plea offers by advising him that the maximum sentence at trial were he convicted only of robbery in the third degree would be "at least as severe" or exceed the sentences of the plea offers initially made to him. In other words, the petitioner argues that his trial counsel was deficient because he was required, but failed, to adequately address the reasons that the petitioner had for proceeding to trial, rendering him unable to meaningfully weigh his options. We disagree. In the present case, our review of the record demonstrates that Ovian provided the petitioner with professional advice on the best course of action given the facts of the petitioner's case and also informed him of the potential total sentence to which he was exposed. See Barlow v. Commissioner of Correction , supra, 150 Conn. App. at 800. While the petitioner may prefer that we broaden this duty by requiring trial counsel to advise their clients on the total sentence exposure they face for each and every possible defense scenario, we decline to adopt such a rule. As the petitioner points out, both parties agree that the evidence against the petitioner was overwhelming and that it was highly unlikely that the petitioner could have prevailed with respect to the charge of robbery in the first degree. To be sure, the evidence at trial included, inter alia, still photographs from the video surveillance of the petitioner entering the bank and writing a note, photographs of him approaching the teller station with the piece of paper in hand, the slip containing the petitioner's written demand for money and reference to a gun, testimony of the bank teller explaining that she had written a description of the petitioner on the back of the slip, and evidence that the petitioner was apprehended with the proceeds of the crime on him. In its memorandum of decision, the habeas court found that Ovian had many discussions with the petitioner throughout the course of his representation and discussed the strengths and weaknesses of the state's evidence with him. On the basis of his assessment of the case, Ovian advised the petitioner to accept each of the plea deals offered to him, informing the petitioner that he was facing a maximum sentence of forty-eight and one-half years if he proceeded to trial. Although the petitioner was apprised of the evidence against him and advised to accept each of the plea deals offered, the record demonstrates that he held strong, subjective, and unrealistic beliefs about his case. For example, the habeas court found that the petitioner believed he should be convicted only of robbery in the third degree because he merely gave the bank teller a note and did not hurt anyone; that he believed that five years was a more reasonable sentence for his offense; that the petitioner, at a judicial pretrial conference, stated, "[s]ir, I apologize, to offend you all but I just want you to know this is not a [r]obbery [first] and I will be going to trial to prove it because I am not copping out to this"; that he believed that the maximum sentence he could receive for robbery in the third degree was five years; and that he rejected plea offers from the state because he had faith the state might present him with a more favorable offer. Despite counsel's advice to the petitioner to accept the plea offers, the petitioner chose to proceed to trial where he attempted to prove that his actions constituted only robbery in the third degree. The petitioner acknowledges that he was "fully advised" about the likelihood of being convicted on the robbery in the first degree charge and the maximum potential sentence that he likely faced, but instead, focuses his argument on trial counsel's lack of specific advice on the maximum sentence he could have faced if he had succeeded on the unlikely strategy of proving that he only had committed robbery in the third degree. In doing so, he argues that he was unable to meaningfully weigh his options on whether to proceed to trial without understanding that the maximum sentence at trial on a theory of robbery in the third degree would be "at least as severe" or exceed the sentences of the plea offers initially made to the petitioner. He asserts that his "decision to proceed to trial was influenced highly by trial counsel's flawed advice" to him, characterizing his decision to reject the plea offers and proceed to trial as "irrational and suicidal given the circumstances." The petitioner's argument, however, completely ignores the adequate and accurate advice Ovian did provide him. Ovian's conversations with the petitioner fully apprised him of the reality of his case. Moreover, the court found that Ovian had many discussions with the petitioner throughout the course of his representation, where Ovian properly explained the state's evidence to him, relayed the plea offers to him, and informed him that he faced up to forty-eight and a half years incarceration if he proceeded to trial. Given the circumstances, Ovian advised the petitioner that the plea offers from the state were desirable and that he should accept them. See Vazquez v. Commissioner of Correction , supra, 123 Conn. App. at 437. While the petitioner may now describe his decision to proceed to trial as "suicidal," that decision was his alone to make. See Andrews v. Commissioner of Correction , 155 Conn. App. 548, 554, 110 A.3d 489 ("[c]ounsel should not make the decision for the defendant or in any way pressure the defendant to accept or reject the offer" [internal quotation marks omitted] ), cert. denied, 316 Conn. 911, 112 A.3d 174 (2015). From the beginning, Ovian's advice to him was unequivocal; he made clear that the petitioner should be prepared for a conviction on the charge of robbery in the first degree should he choose to proceed to trial. And, as counsel had warned, the petitioner was in fact convicted of robbery in the first degree and sentenced to thirty-four years incarceration following his trial. Our case law requires that the petitioner be given "adequate professional assistance, advice, and input" from his counsel and be advised "on the best course of action given the facts of [his] case and the potential total sentence exposure." (Emphasis omitted.) Barlow v. Commissioner of Correction , supra, 150 Conn. App. at 800. On the basis of our review of the record, we conclude that he was provided with just that. We cannot say that Ovian's failure to inform the petitioner of the potential total sentence exposure he faced if he succeeded on the unlikely theory of proving robbery in the third degree or his decision not to further persuade the petitioner to accept the plea offers constituted deficient performance. It also bears noting that the petitioner has cited no relevant cases to support his claim on appeal and presented no evidence at the habeas trial to demonstrate that the prevailing professional norms in Connecticut made it necessary for Ovian to advise the petitioner in the manner he argues. As this court has noted before, trial counsel's decision on "how best to advise a client in order to avoid, on the one hand, failing to give advice and, on the other, coercing a plea enjoys a wide range of reasonableness ." (Internal quotation marks omitted.) Peterson v. Commissioner of Correction , 142 Conn. App. 267, 274, 67 A.3d 293 (2013). The information and advice provided to the petitioner by trial counsel was adequate for him to make an informed decision as whether to accept the state's plea offers. See Melendez v. Commissioner of Correction , 151 Conn. App. 351, 359, 95 A.3d 551, cert. denied, 314 Conn. 914, 100 A.3d 405 (2014). Although the petitioner claims he was entitled to further explanation about the consequences of proceeding to trial, he has not demonstrated, as required under the first prong of Strickland , that trial counsel's actual explanation and advice fell below an objective standard of reasonableness under prevailing professional norms. See Strickland v. Washington , supra, 466 U.S. at 687-88, 104 S.Ct. 2052 ; Heredia v. Commissioner of Correction , 106 Conn. App. 827, 836-37, 943 A.2d 1130, cert. denied, 287 Conn. 918, 951 A.2d 568 (2008). We, therefore, conclude, after a thorough review of the record, that the petitioner failed to establish that the issue he raised is debatable among jurists of reason, that a court could resolve it in a different manner, or that the question he raised is adequate to deserve encouragement to proceed further. Accordingly, we conclude that the habeas court did not abuse its discretion in denying the petition for certification to appeal. The appeal is dismissed. In this opinion the other judges concurred. See Miranda v. Arizona , 384 U.S. 436, 478-79, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). At the habeas trial, Ovian testified that the petitioner had taken a position that the note recovered at the bank was not the note he had written and handed to the teller. Ovian testified that it was the petitioner's position that the note he handed to the teller never indicated that he had a gun, and that the teller had given him back the note prior to his running from the bank and jumping into a river. Gedansky indicated that the petitioner had a theory that the police had invented the note on which the state relied; Gedansky described this as a "conspiracy theory." Ovian also testified that he recalled contacting a handwriting expert to see if his evaluation of the note could give some support to the petitioner's theory. Ovian testified that after the handwriting analyst reviewed a copy of the note, the handwriting analyst indicated to him that he thought it "would not be a good idea to call him as a witness." Gedansky testified that Ovian was able to persuade him to reduce his initial offer of ten years to serve with five years special parole to ten years to serve with two years special parole. At the habeas trial, Ovian testified that he recalled there being a "specific discussion of numbers" with the petitioner about his exposure if he was found guilty of robbery in the first degree. He also testified that his notes contained a chart showing that the total exposure the petitioner faced was forty-eight and one-half years, which included the enhancements the petitioner likely faced for committing a crime while he was out on bond and for being a persistent felony offender. Ovian then testified that he could not definitively say that he advised the petitioner on the maximum sentence the petitioner faced if convicted on the lesser included offense of robbery in third degree, but he indicated that he would not have led the petitioner to believe that he would have avoided jail time, especially in light of the conversations they had about the enhancements the petitioner faced. The petitioner testified that Ovian did not tell him that he may receive a sentence of thirty-four years. He also said that he did not think that Ovian had brought to his attention the potential maximum sentence if he was found guilty on all the charges. The petitioner indicated that had he known that he was going to receive a thirty-four-year sentence, he would not have gone to trial. Additionally, the petitioner testified that he was asking at trial that he be found guilty of robbery in the third degree and felt that the maximum sentence was five years; he testified that Ovian never told him the maximum potential sentence for robbery in the third degree was twenty years. He also testified, though, that he did not recall whether Ovian told him that a five year sentence was a likely outcome. The petitioner appears to predicate his claim of ineffective assistance of counsel on both the sixth amendment to the United States constitution and article first, § 8 and 9, of the Connecticut constitution. Because he has not separately analyzed his state constitutional claim, we address only his claim under the federal constitution. See e.g., Ham v. Commissioner of Correction , 301 Conn. 697, 702 n.6, 23 A.3d 682, 686 (2011) ; State v. Melendez , 291 Conn. 693, 704 n.16, 970 A.2d 64, 72 (2009). After filing this appeal, the petitioner filed a motion for articulation on April 13, 2017, requesting that the habeas court articulate, inter alia, the factual and legal bases for "whether counsel had a duty to advise the petitioner about his potential and realistic exposure after a trial where he prevailed on his robbery in the third degree theory." The habeas court denied that motion on May 10, 2017, and pursuant to Practice Book § 66-7, the petitioner filed a motion for review in this court challenging the habeas court's denial of his motion for articulation. On July 12, 2017, this court granted review, but denied the relief requested. In the petitioner's appellate brief, he appears to renew the arguments he made in his motion for review. He seems to suggest that the record is inadequate for review because the habeas court did not address whether trial counsel's failure to advise the petitioner that "a conviction for robbery in the third degree would very likely result in a sentence at least as high as the offers by the prosecuting authority" constituted deficient performance. We disagree. It is evident from the habeas court's well reasoned decision that it determined that trial counsel's failure to advise the petitioner that a conviction of robbery in the third degree would likely result in a sentence at least as high as the offers by the prosecuting authority did not constitute deficient performance in light of the adequate advice that he did provide the petitioner. Accordingly, we conclude that the record is adequate for our review. As previously noted, the petitioner took the position that the note he handed to the teller never indicated that he had a gun, and that the teller had given him back the note prior to his running from the bank. In his view, the note on which the state relied was not the note he had written. As such, it was his theory that because he never referenced a gun in the note that he handed the teller, he could be found guilty only of robbery in the third degree. Accordingly, after the petitioner declined to follow his counsel's advice to take the plea offers, Ovian pursued the petitioner's preferred theory at trial that called into question the authenticity of the note, which, if the jury believed, would constitute only robbery in the third degree. Ovian also testified at the habeas trial that the petitioner believed that the plea deals offered by the state were too high given his poor health, especially "for someone who might not make it." Ovian noted that the petitioner recently had a heart attack and felt like his "life was fleeting." Ovian testified at the habeas trial that although he disagreed with the petitioner's decision to go to trial, he told him he would do his best to represent him. Accordingly, Ovian decided to pursue a strategy that called into question the authenticity of the note. In fact, advising the petitioner of the consequence of a robbery in the third degree conviction might only have encouraged his unfounded belief that the state only could prove the lesser offense when the evidence of robbery in the first degree was strong. Because Ovian did not render deficient performance, we need not reach the prejudice prong of the Strickland test. See Brunetti v. Commissioner of Correction , 134 Conn. App. 160, 172 n.2, 37 A.3d 811, cert. denied, 305 Conn. 903, 44 A.3d 180 (2012).

12503199

Kathleen MCQUEENEY v. Stephen PENNY

McQueeney v. Penny

2018-12-11

AC 40841

1250

1250

196 A.3d 1250

196

West's Atlantic Reporter, Third Series

Connecticut Appellate Court

Connecticut

2021-08-27T20:57:41.731814+00:00

Fastcase

Kathleen MCQUEENEY v. Stephen PENNY

Kathleen MCQUEENEY v. Stephen PENNY AC 40841 Appellate Court of Connecticut. Argued November 26, 2018 Officially released December 11, 2018

26

178

Per Curiam. The judgment is affirmed.

12503198

U.S. EQUITIES CORP. v. Peggy CERALDI

U.S. Equities Corp. v. Ceraldi

2018-12-11

AC 40917

1250

1250

196 A.3d 1250

196

West's Atlantic Reporter, Third Series

Connecticut Appellate Court

Connecticut

2021-08-27T20:57:41.731814+00:00

Fastcase

U.S. EQUITIES CORP. v. Peggy CERALDI

U.S. EQUITIES CORP. v. Peggy CERALDI AC 40917 Appellate Court of Connecticut. Argued October 23, 2018 Officially released December 11, 2018

47

308

Per Curiam. Defendant's appeal from the Superior Court in the judicial district of New Britain, Hon. Joseph M. Shortall, judge trial referee. The judgment is affirmed.

12510622

HILARIO TRUCK CENTER, LLC v. Kevin S. KOHN et al.

Hilario Truck Ctr., LLC v. Kohn

2019-06-04

AC 41429

678

682

210 A.3d 678

210

West's Atlantic Reporter, Third Series

Connecticut Appellate Court

Connecticut

2021-08-27T20:57:56.130816+00:00

Fastcase

DiPentima, C.J., and Lavine and Harper, Js

HILARIO TRUCK CENTER, LLC v. Kevin S. KOHN et al.

HILARIO TRUCK CENTER, LLC v. Kevin S. KOHN et al. AC 41429 Appellate Court of Connecticut. Argued March 6, 2019 Officially released June 4, 2019 Kenneth A. Votre, New Haven, for the appellant (plaintiff). Raymond J. Kelly, Fairfield, for the appellee (defendant Allstate Insurance Company). DiPentima, C.J., and Lavine and Harper, Js

1775

10988

DiPENTIMA, C.J. The plaintiff, Hilario Truck Center, LLC, appeals from the judgment of dismissal of the third count of its operative complaint following the granting of the motion to dismiss filed by the defendant Allstate Insurance Company (Allstate). The plaintiff argues that the court erred when it concluded that the plaintiff lacked standing to bring a claim as a third-party beneficiary against Allstate pursuant to an automobile insurance policy issued to the defendant Kevin E. Kohn. We affirm the judgment of the trial court. The plaintiff commenced the present action in October, 2015. In its operative complaint, the plaintiff alleged the following facts. On October 23, 2014, the defendant Kevin S. Kohn was operating a 1995 Buick in Newtown. The vehicle, owned by his father, Kevin E. Kohn, swerved off the road and came to rest on the property of Cliff Beers and Maryellen Beers. Kevin E. Kohn called the plaintiff to remove the vehicle from the property and tow the vehicle to its facility. The plaintiff successfully removed the vehicle from the Beers' property. The plaintiff filed a three count complaint against Kevin S. Kohn, Kevin E. Kohn and Allstate. The first and second counts, sounding in breach of contract and unjust enrichment, were directed against Kevin S. Kohn and Kevin E. Kohn. The third count, directed against Allstate, alleged that Kevin E. Kohn was the named insured of an insurance policy issued by Allstate. The plaintiff further claimed the insurance policy obligated Allstate to make payments to a third party for damages arising from the use of an automobile covered under the policy and that Allstate had not done so. Finally, the plaintiff alleged that it was due payment for its towing services as a third-party beneficiary pursuant to the insurance policy and that Allstate had failed to pay the plaintiff. On August 22, 2017, Allstate moved to dismiss the third count of the plaintiff's operative complaint. Allstate argued that the plaintiff was not a third-party beneficiary of its insurance policy issued to Kevin E. Kohn. Allstate reasoned, therefore, that the plaintiff lacked standing. In support of this motion, Allstate relied on the judgment rendered by the court, Truglia, J. , in Hilario's Truck Center, LLC v. Rinaldi , Superior Court, judicial district of Danbury, Docket No. CV-16-6019558-S (October 17, 2016), aff'd, 183 Conn. App. 597, 193 A.3d 683, cert. denied, 330 Conn. 925, 194 A.3d 776 (2018). On December 18, 2017, the court granted Allstate's August 22, 2017 motion to dismiss, stating: "Granted. The court adopts Judge Truglia's ruling in . Hilario's Truck Center, LLC v. [Rinaldi , supra, Superior Court, Docket No. CV-16-6019558-S]." This appeal followed. In Hilario's Truck Center, LLC v. Rinaldi , 183 Conn. App. at 597, 598, 193 A.3d 683, cert. denied, 330 Conn. 925, 194 A.3d 776 (2018), this court specifically held that, under nearly identical circumstances, a towing company is not an intended third-party beneficiary of an automobile insurance policy between an insurance company and the insured. This court noted that "[a] person or entity that is not a named insured under an insurance policy and who does not qualify, at least arguably, as a third-party beneficiary, lacks standing to bring a direct action against the insurer." Id., at 603-604, 193 A.3d 683. Additionally, this court stated that "the fact that a person is a foreseeable beneficiary of a contract is not sufficient for him to claim rights as a [third-party] beneficiary." (Internal quotation marks omitted.) Id., at 608, 193 A.3d 683. Ultimately, this court concluded that neither the language of the insurance contract nor public policy supported the claim that a towing company, under such circumstances, was a third-party beneficiary of an automobile insurance contract. Id., at 606-12, 193 A.3d 683. As a result, the towing company lacked standing to maintain a direct action against the insurance company. Id., at 612, 193 A.3d 683. In its appellate brief in the present case, the plaintiff failed to mention, distinguish, or address in any way Hilario's Truck Center, LLC v. Rinaldi , supra, Superior Court, Docket No. CV-16-6019558-S, which served as the basis of the decision of the trial court to grant the defendant's motion to dismiss in the present case. Additionally, the plaintiff overlooked this court's opinion in Hilario's Truck Center, LLC v. Rinaldi , supra, 183 Conn. App. at 597, 193 A.3d 683, which was issued two months prior to the filing of the plaintiff's appellate brief. The plaintiff did not file a reply brief nor did it provide any notice pursuant to Practice Book § 67-10 addressing the Rinaldi case. As stated succinctly in the defendant's brief, the plaintiff, in its appellate brief, "has not even attempted to distinguish [ Hilario's Truck Center, LLC v. Rinaldi , supra, 183 Conn. App. at 597, 193 A.3d 683 ], from the [present] case." "It is a fundamental principle of appellate review that our appellate courts do not presume error on the part of the trial court.... Rather, we presume that the trial court, in rendering its judgment . undertook the proper analysis of the law and the facts..... [T]he trial court's ruling is entitled to the reasonable presumption that it is correct unless the party challenging the ruling has satisfied its burden demonstrating the contrary." (Citation omitted; internal quotation marks omitted.) Reinke v. Sing , 186 Conn. App. 665, 700, 201 A.3d 404 (2018). By declining to address the basis of the trial court's decision, as well as the controlling precedent from this court, the plaintiff has not met its burden of demonstrating error in the granting of the defendant's motion to dismiss. The judgment is affirmed. In this opinion the other judges concurred. In its complaint, the plaintiff also named Kevin S. Kohn and Kevin E. Kohn (Kohns) as defendants. On February 14, 2018, the court rendered judgment against the Kohns in the amount of $ 5000. The Kohns are not parties to this appeal. "When a . court decides a jurisdictional question raised by a pretrial motion to dismiss, it must consider the allegations of the complaint in their most favorable light.... In this regard, a court must take the facts to be those alleged in the complaint, including those facts necessarily implied from the allegations, construing them in a manner most favorable to the pleader.... The motion to dismiss . admits all facts which are well pleaded, invokes the existing record and must be decided upon that alone.... [I]t is the burden of the party who seeks the exercise of jurisdiction in his favor . clearly to allege facts demonstrating that he is a proper party to invoke judicial resolution of the dispute." (Internal quotation marks omitted.) Ion Bank v. J.C.C. Custom Homes, LLC , 189 Conn. App. 30, 37-38, 206 A.3d 208 (2019). The complaint alleged that the Kohns had failed to pay the plaintiff for its services in recovering the vehicle from the Beers' property and that, therefore, there had been a breach of contract, or, in the alternative, the Kohns had been unjustly enriched. Specifically, the plaintiff alleged: "Allstate's third party liability insurance coverage policy with defendant, Kevin E. [Kohn] states: Allstate will pay for damages an insured person is legally obligated to pay because of bodily injury or property damage meaning . 2. [D]amage to or destruction of property, including loss of use. Under these coverages, your policy protects an insured person from liability for damages on account of accidents arising out of the ownership, maintenance or use, loading or unloading of the auto we insure." (Emphasis omitted.) In Hilario's Truck Center, LLC v. Rinaldi , supra, Superior Court, Docket No. CV-16-6019558-S, the defendant, Nationwide General Insurance Company (Nationwide), moved to dismiss counts one and three of the complaint filed by Hilario's Truck Center, LLC (Hilario's), on the basis of lack of standing. Specifically, the complaint had alleged that Hilario's was a third-party beneficiary of the insurance policy between Nationwide and the named defendant, Laura Rinaldi. Judge Truglia rejected the arguments regarding Hilario's claim that it was a third-party beneficiary of the insurance policy. Accordingly, the court concluded that Hilario's lacked standing and dismissed counts one and three of its complaint. Judge Truglia's memorandum of decision subsequently was affirmed by this court. See Hilario's Truck Center, LLC v. Rinaldi , supra, 183 Conn. App. at 612, 193 A.3d 683. The plaintiff in the present case was also the plaintiff in Hilario's Truck Center, LLC v. Rinaldi , supra, 183 Conn. App. at 597, 193 A.3d 683, and was represented by the same attorney. The following colloquy occurred at oral argument before this court: "[The Court]: I'm just curious why your brief doesn't even mention the case that was relied on by the trial court . and affirmed by this court in 2018, [Hilario's Truck Center, LLC v. Rinaldi , supra, Superior Court, Docket No. CV-16-6019558-S] it's a pertinent authority. Whether it's in your favor or not, it's pertinent authority. "[The Plaintiff's Counsel]: No, no. I understand that. And I think it should have, I think it should have, Your Honor, that's my fault for not addressing it and it wasn't a conscious decision to not address it. I took the position that the facts [in] this case were different because it was a different contract, it was a different situation with a consensual tow rather than [a nonconsensual] tow." At oral argument before this court, the plaintiff's counsel made efforts to distinguish the facts of the present case from those in Hilario's Truck Center LLC v. Rinaldi , supra, 183 Conn. App. at 597, 193 A.3d 683. We decline to consider such arguments when raised for the first time at oral argument. See Sun Val, LLC v. Commissioner of Transportation , 330 Conn. 316, 336-37 n.10, 193 A.3d 1192 (2018) ; Filosi v. Electric Boat Corp. , 330 Conn. 231, 235 n.4, 193 A.3d 33 (2018) ; see also Ryan v. Cassella , 180 Conn. App. 461, 475, 184 A.3d 311 (2018) (well established that claims on appeal must be adequately briefed and cannot be raised for first time on appeal). Even if we were to consider the arguments raised by the plaintiff's counsel that the insurance policy in this case contains broader language when compared to the terms of the policy in Hilario's Truck Center, LLC v. Rinaldi , supra, 183 Conn. App. at 597, 193 A.3d 683, and that a consensual tow occurred here, as opposed to a nonconsensual tow, we would not be persuaded that these differences warrant a different result.

12510621

Michael D. REINER et al. v. Jeffrey A. REINER et al.

Reiner v. Reiner

2019-05-28

AC 41010

668

678

210 A.3d 668

210

West's Atlantic Reporter, Third Series

Connecticut Appellate Court

Connecticut

2021-08-27T20:57:56.130816+00:00

Fastcase

DiPentima, C.J., and Prescott and Bright, Js.

Michael D. REINER et al. v. Jeffrey A. REINER et al.

Michael D. REINER et al. v. Jeffrey A. REINER et al. AC 41010 Appellate Court of Connecticut. Argued February 14, 2019 Officially released May 28, 2019 Richard P. Weinstein, West Hartford, with whom, on the brief, was Sarah Black Lingenheld, Farmington, for the appellant (named defendant). Gary J. Greene, Avon, for the appellee (named plaintiff). DiPentima, C.J., and Prescott and Bright, Js.

5140

31860

BRIGHT, J. The present appeal stems from a dispute over the interpretation of a settlement agreement between, among others, the plaintiff Michael D. Reiner and the defendant Jeffrey A. Reiner. The defendant appeals from the judgment of the trial court, rendered after a hearing pursuant to Audubon Parking Associates Ltd. Partnership v. Barclay & Stubbs, Inc. , 225 Conn. 804, 811-12, 626 A.2d 729 (1993) ( Audubon ), denying his motion to enforce the agreement. On appeal, the defendant claims that the court improperly concluded that the settlement agreement is clear and unambiguous, as construed by the plaintiff. We conclude that the contested sections of the agreement are not clear and unambiguous and, accordingly, we affirm the judgment of the trial court denying the defendant's motion to enforce the agreement on the alternative ground that a settlement agreement that is not clear and unambiguous cannot be enforced through an Audubon hearing. The following procedural history and undisputed facts are relevant to this appeal. The plaintiff and the defendant are brothers who were two of the three primary beneficiaries of four irrevocable trusts (Reiner Trusts) that were established by their parents, Eleanore Reiner and Leo P. Reiner. The defendant was the sole trustee of the Reiner Trusts. The Reiner Trusts owned several parcels of real property (Reiner Trusts properties) that had a substantial value; however, a majority of the properties were encumbered by mortgages. Eleanore Reiner also was the sole member of 711 Farmington, LLC, and Canton Gateway, LLC. 711 Farmington, LLC, and Canton Gateway, LLC, each owned a single parcel of real property, both of which were encumbered by a mortgage. After a dispute arose regarding the Reiner Trusts properties, the plaintiff, in 2011, commenced the present action and several other parallel actions against the defendant alleging that he tortiously had mismanaged the Reiner Trusts properties. On July 5, 2012, the plaintiff, the defendant, and several other individuals and entities associated with the Reiner Trusts executed a settlement agreement to resolve the present action, the parallel actions, and other disputes. In the agreement, the plaintiff agreed to withdraw with prejudice the then pending actions, and all parties to the agreement agreed to a comprehensive mutual release. The agreement contained several provisions in which the defendant agreed to buy out the plaintiff's interests in certain properties after the death of Eleanore Reiner. The following buyout provisions are directly at issue in this appeal. Section 1 (a) of the agreement provides: "[The defendant] shall buyout [the plaintiff's] interests in the Reiner Trusts and the Reiner Trusts Properties by paying cash to [the plaintiff] in proportion to his interests therein no later than 280 days following Eleanore Reiner's death. The buy-out amount payable to [the plaintiff] for his interests in the Reiner Trusts will be based on the fair market value of each of the Reiner Trusts Properties at the time of Eleanore Reiner's death, multiplied by [the plaintiff's] interests in each Trust Property with a deduction of ten (10%) percent to compensate for a minority discount and for the fact that there is no real estate brokerage commission." Section 1 (b) of the agreement detailed the manner in which the fair market value for each of the Reiner Trusts properties was to be determined. The parties also agreed that the parties' "interests" in the Reiner Trusts properties accurately were set forth in the " 'Trust Property Schedule,' " which was attached to the agreement. That attachment, prepared on June 27, 2012, individually detailed the percentage of the Reiner Trusts properties owned by each party, but not the then-existing value of the properties or the amount of any equity in the properties in light of any mortgages on them. Section 2 of the agreement provides in relevant part: "In connection with the execution and delivery of this Agreement, Eleanore Reiner will immediately transfer, by Warranty Deeds (i) her interests (as sole member of 711 Farmington, LLC) in 711 Farmington as follows: two thirds (2/3) to [the defendant] and one-third (1/3) to [the plaintiff] in the form of warranty deed attached to this Agreement . and (ii) her interests (as sole member of Canton Gateway, LLC) in Canton Gateway as follows: three fourths (3/4) to [the defendant] and one-fourth (1/4) to [the plaintiff] in the form of warranty deed attached to this Agreement . Such transfers are being made upon the following conditions . "[The defendant] shall buy out [the plaintiff's] interests in each [of] 711 Farmington and Canton Gateway by paying cash to [the plaintiff] no later than 280 days following Eleanore Reiner's death. The determination of the fair market value of 711 Farmington and Canton Gateway will be based on the same formula and terms used to determine the fair market value of the Reiner Trust Properties provided for in [§] 1 (a) of this Agreement above except that the valuation shall be subject only to a four percent (4%) discount, not ten percent (10%). [The defendant] will have 280 days from the date of Eleanore Reiner's death, to obtain financing and consummate the buyout." On July 11 and 13, 2012, the plaintiff withdrew the present action with prejudice in accordance with the agreement. Nevertheless, on July 25, 2012, the defendant filed a motion in which he requested that the court set aside the withdrawal and reinstate the action on the ground that the plaintiff had violated the agreement by soliciting a "side deal" with Eleanore Reiner to permit him to lease a property owned by her in Florida, which property was governed by § 10 of the agreement. On July 27, 2012, the plaintiff also filed a motion to restore the case to the docket. On September 10, 2012, the court restored the case to the docket. Over the course of the next four and one-half years, the parties engaged in litigation concerning the Florida property and other collateral issues stemming from the agreement. None of those issues are the subject of this appeal. On April 7, 2017, the defendant filed the motion to enforce the agreement that is the subject of this appeal. Therein, he argued that certain buyout provisions of the agreement had been triggered as a result of the recent death of Eleanore Reiner, and that a dispute existed between himself and the plaintiff as to the interpretation of those provisions. In particular, Eleanore Reiner's death triggered the defendant's obligation, under § 2 of the agreement, to buy out the plaintiff's one-third interest in 711 Farmington and his one-quarter interest in Canton Gateway. Her death also triggered the defendant's obligation, under § 1 of the agreement, to buy out the plaintiff's interest in the Reiner Trusts properties, including 603 Farmington Avenue in Hartford. The plaintiff and the defendant were unable to reach an agreement on how to determine the price that the defendant was to pay the plaintiff for his interests in the properties. The defendant claimed that the buyout price of the plaintiff's interests is intended to be calculated as the plaintiff's proportionate interest in the equity in the properties, after deducting the debt secured by any mortgages, less the percentage discounts. The defendant requested that the court adjudicate the dispute by enforcing the agreement in accordance with his interpretation. On April 17, 2017, the plaintiff filed an objection to the defendant's motion to enforce the agreement. Therein, the plaintiff disagreed with the defendant's interpretation and advanced his own contrary interpretation of the agreement. The plaintiff maintained that the settlement agreement clearly and unambiguously provides that the buyout amount is to be " 'based on the fair market value' of each of the properties," which amount did not include consideration of the existing mortgages on the properties. On August 10, 2017, the defendant filed a supplemental memorandum in support of his motion to enforce the agreement. In his supplemental memorandum, the defendant argued that the agreement clearly and unambiguously provides that the amount of the buyout must take into consideration the mortgages on the properties. The defendant argued that a contrary interpretation would be in conflict with Connecticut mortgage jurisprudence, and would result in an absurd result in the form of a substantial unintended windfall for the plaintiff. On October 23, 2017, following an Audubon hearing, the court issued a memorandum of decision in which it denied the defendant's motion to enforce the agreement and concluded that the agreement was clear and unambiguous in conformance with the plaintiff's interpretation. In particular, even though it heard extrinsic evidence regarding what the parties intended by the buyout provisions, the court expressly constrained its analysis to the four corners of the agreement and reasoned that "the terms of the agreement are clear and unambiguous and that the parties did enter into a valid agreement. The agreement, negotiated extensively by and between sophisticated parties, does not refer to 'equity' as a basis for valuation. The agreement clearly and unambiguously states that the buyout amount will be based on the fair market value of each property and the proportionate interests of the parties being taken into consideration refer to the agreed upon percentage interests [as] listed in the Trust Property Schedule. . "The contract provision as to buying out the plaintiff's interest requires determining the fair market value of the property by the method described in the contract itself. By comparison, [§] 3 of the agreement (160 Farmington) makes specific reference to mortgages and prohibits financing or modification of existing mortgages without the consent of the plaintiff. Similarly, references to mortgages are found in [§] 9 (White Pine), and [§] 10 (Florida property). Further, the listing of the trust properties, which is entitled 'Trust Property Schedule-Date Prepared 6/27/2012,' lists the properties with the percentage of ownership in each the plaintiff, the defendant, and their sibling, without reference to mortgages. Finally, the term 'equity,' commonly understood to mean the difference between the fair market value and the encumbrances on a property, does not appear in any relevant portion of the agreement." (Citation omitted.) This appeal followed. Additional facts will be set forth as necessary. We begin by setting forth the relevant standard of review and legal principles that govern our review. "A trial court has the inherent power to enforce summarily a settlement agreement as a matter of law when the terms of the agreement are clear and unambiguous.... Agreements that end lawsuits are contracts, sometimes enforceable in a subsequent suit, but in many situations enforceable by entry of a judgment in the original suit." (Citations omitted; internal quotation marks omitted.) Audubon , supra, 225 Conn. at 811, 626 A.2d 729. "Summary enforcement is not only essential to the efficient use of judicial resources, but also preserves the integrity of settlement as a meaningful way to resolve legal disputes. When parties agree to settle a case, they are effectively contracting for the right to avoid a trial." (Emphasis omitted.) Id., at 812, 626 A.2d 729. Nevertheless, the right to enforce summarily a settlement agreement is not unbounded. "The key element with regard to the settlement agreement in Audubon . [was] that there [was] no factual dispute as to the terms of the accord. Generally, [a] trial court has the inherent power to enforce summarily a settlement agreement as a matter of law [only] when the terms of the agreement are clear and unambiguous . and when the parties do not dispute the terms of the agreement." (Internal quotation marks omitted.) Reid & Riege, P.C. v. Bulakites , 132 Conn. App. 209, 216, 31 A.3d 406 (2011), cert. denied, 303 Conn. 926, 35 A.3d 1076 (2012). "The rule of Audubon effects a delicate balance between concerns of judicial economy on the one hand and a party's constitutional rights to a jury and to a trial on the other hand. See [ Audubon ], supra, [at 810-12, 626 A.2d 729] ; see also Ackerman v. Sobol Family Partnership, LLP , 298 Conn. 495, 534-35, 4 A.3d 288 (2010). To use the Audubon power outside of its proper context is to deny a party these fundamental rights and would work a manifest injustice." Matos v. Ortiz , 166 Conn. App. 775, 792, 144 A.3d 425 (2016) ; see DAP Financial Management Co. v. Mor-Fam Electric, Inc. , 59 Conn. App. 92, 97-98, 755 A.2d 925 (2000) ("The test of disputation . must be applied to the parties at the time they entered into the alleged settlement. To hold otherwise would prevent any motion to enforce a settlement from ever being granted."). "A settlement agreement, or accord, is a contract among the parties." Ackerman v. Sobol Family Partnership, LLP , supra, 298 Conn. at 532, 4 A.3d 288. "When construing a contract, we seek to determine the intent of the parties from the language used interpreted in the light of the situation of the parties and the circumstances connected with the transaction.... [T]he intent of the parties is to be ascertained by a fair and reasonable construction of the written words and . the language used must be accorded its common, natural, and ordinary meaning and usage where it can be sensibly applied to the subject matter of the contract." (Internal quotation marks omitted.) Gabriel v. Gabriel , 324 Conn. 324, 341, 152 A.3d 1230 (2016). "A contract is unambiguous when its language is clear and conveys a definite and precise intent.... The court will not torture words to impart ambiguity where ordinary meaning leaves no room for ambiguity.... Moreover, the mere fact that the parties advance different interpretations of the language in question does not necessitate a conclusion that the language is ambiguous.... "In contrast, a contract is ambiguous if the intent of the parties is not clear and certain from the language of the contract itself.... [A]ny ambiguity in a contract must emanate from the language used by the parties.... The contract must be viewed in its entirety, with each provision read in light of the other provisions . and every provision must be given effect if it is possible to do so.... If the language of the contract is susceptible to more than one reasonable interpretation, the contract is ambiguous." (Internal quotation marks omitted.) Id., at 341-42, 152 A.3d 1230. "[T]he determination as to whether contractual language is plain and unambiguous is . a question of law subject to plenary review." (Internal quotation marks omitted.) Gold v. Rowland , 325 Conn. 146, 157-58, 156 A.3d 477 (2017). On appeal, there is no dispute between the parties that the agreement is valid and enforceable, and that § 1 and 2 of the agreement mandate that the defendant buy out the plaintiff's interests in certain properties. Instead, the parties' views diverge as to the method by which the buyout amount is to be calculated. The defendant claims that the court improperly concluded that the agreement clearly and unambiguously provides that the buyout amount is the fair market value of the properties. He argues that the clear and unambiguous language of the agreement specifies that the buyout amount is the plaintiff's equitable interest in the properties, namely, the fair market value of the properties less the amount of any mortgage encumbrances. In response, the plaintiff argues that the court properly determined that the agreement clearly and unambiguously provides that the buyout amount is the fair market value of the properties without regard to any debt associated with the properties. We disagree with both parties and conclude that the agreement is ambiguous with respect to the calculation of the buyout of the plaintiff's interests in the properties. As noted previously, § 1 (a) of the agreement provides: "[The defendant] shall buyout [the plaintiff's] interests in the Reiner Trusts and the Reiner Trusts Properties by paying cash to [the plaintiff] in proportion to his interests therein no later than 280 days following Eleanore Reiner's death. The buy-out amount payable to [the plaintiff] for his interests in the Reiner Trusts will be based on the fair market value of each of the Reiner Trusts Properties at the time of Eleanore Reiner's death, multiplied by [the plaintiff's] interests in each Trust Property with a deduction of ten (10%) percent to compensate for a minority discount and for the fact that there is no real estate brokerage commission." Section 2 (b) of the agreement provides in relevant part that "[the defendant] shall buy out [the plaintiff's] interests in each [of] 711 Farmington and Canton Gateway by paying cash to [the plaintiff] no later than 280 days following Eleanore Reiner's death. The determination of the fair market value of 711 Farmington and Canton Gateway will be based on the same formula and terms used to determine the fair market value of the Reiner Trust Properties provided for in [§] 1 (a) of this Agreement above except that the valuation shall be subject only to a four percent (4%) discount, not ten percent (10%)...." Section 1 applies to the defendant's buyout of the plaintiff's interests in the Reiner Trusts properties, including 603 Farmington Avenue. With respect to 603 Farmington Avenue, the language of § 1 provides that the buyout amount will be determined on the basis of the fair market value multiplied by the plaintiff's interest , less a percentage discount. For the following reasons, we conclude that it is neither clear nor certain whether the word "interest" was intended, as the defendant contends, to mean the plaintiff's percentage interest in the equity in the properties, or, as the plaintiff contends, to mean the plaintiff's ownership percentage of the fair market value of the properties. First, the agreement does not define "interest," and that term has no talismanic meaning as utilized through-out the agreement. For example, the parties agreed that the Trust Property Schedule attached to the agreement set forth their and Nancy Brooks' interests in the Reiner Trusts properties. That attachment lists the parties' respective percentage ownership in each of the Reiner Trusts properties and is devoid of the then-existing mortgage valuation for each property. Conversely, § 1, upon which the plaintiff and the court relied, provides that, if the defendant refinances one or more of the Reiner Trusts properties to fund his buyout of the plaintiff's interests in other properties, the interest of the third beneficiary of the Reiner Trusts, Nancy Brooks, in the refinanced properties cannot be diminished. The defendant is required to provide her with value in other properties or cash sufficient to offset any reduction in the value of her interest as a result of the refinancing. This language suggests that the parties agreed that a beneficiary's interest in a property is determined by taking into account any outstanding debt associated with the property. Accordingly, the inconsistent use of the term "interest" makes it unclear whether that term was intended to include or to exclude outstanding debt on the properties. Second, the common meaning of the term "interest" provides no certainty. As applicable here, interest is defined as "[a] legal share in something; all or part of a legal or equitable claim to or right in property ." Black's Law Dictionary (10th Ed. 2014); see Merriam-Webster's Collegiate Dictionary (11th Ed. 2003) (defining "interest" to mean "right, title, or legal share in something"). In real estate transactions, interest could be intended to mean, among other things, equitable or legal ownership. See generally Salce v. Wolczek , 314 Conn. 675, 683-96, 104 A.3d 694 (2014) (determining that phrase "any ownership interest . is transferred" encompassed transfers of both legal and equitable interests). As the defendant properly emphasizes, "Connecticut follows the title theory of mortgages, which provides that on the execution of a mortgage on real property, the mortgagee holds legal title and the mortgagor holds equitable title to the property." (Internal quotation marks omitted.) Mortgage Electronic Registration Systems, Inc. v. White , 278 Conn. 219, 231, 896 A.2d 797 (2006). Accordingly, because the plaintiff did not have legal title to certain properties as they were still encumbered by mortgages, it is a reasonable interpretation that his interest was equitable, and the buyout amount was limited to his share of the worth of the properties after deducting the underlying debt on the properties as secured by any mortgages. Furthermore, such an interpretation would avoid what might be viewed as an absurd result of the buyout amount being substantially greater than the entire net value of the property. See footnote 9 of this opinion; see also Welch v. Stonybrook Gardens Cooperative, Inc. , 158 Conn. App. 185, 198-99, 118 A.3d 675 (recognizing principle that "[w]e will not construe a contract's language in such a way that it would lead to an absurd result" and that "contractual documents are to be read as a whole and bizarre results are to be avoided" [internal quotation marks omitted] ), cert. denied, 318 Conn. 905, 122 A.3d 634 (2015). In contrast, as the plaintiff and the court recognize, the agreement does not specify that the plaintiff's interest was equal to his equity, and § 1 does not make reference to mortgages. On the basis of the foregoing, we conclude that § 1 is subject to two reasonable interpretations as it relates to the defendant's obligation to purchase the plaintiff's interest in the Reiner Trusts properties, including 603 Farmington Avenue. We, therefore, disagree with the court's conclusion that the language is clear and unambiguous. We reach the same conclusion as to the defendant's obligation under § 2 to purchase the plaintiff's interests in 711 Farmington and Canton Gateway. Section 2 applies to the defendant's buyout of the plaintiff's interests in 711 Farmington and Canton Gateway. As noted previously, § 2 (b) incorporates the formula for determining fair market value from § 1 (a). Nevertheless, § 2 (b), unlike § 1 (a), does not state that the purchase of the plaintiff's interests in the two properties is to be based on fair market value. Instead, § 2 (b) merely provides, in relevant part, that "[the defendant] shall buy out [the plaintiff's] interests in each [of] 711 Farmington and Canton Gateway by paying cash to [the plaintiff] . The determination of the fair market value of 711 Farmington and Canton Gateway will be based on the same formula and terms used to determine the fair market value of the Reiner Trust Properties provided for in [§] 1 (a) of this Agreement above ." Although it can be argued that the reference to fair market value in § 2 (b) implies that it must be the basis for valuing the plaintiff's interests, the language is certainly not clear and unambiguous. The language of § 2 (b) simply does not state how the price for the plaintiff's interests in the two properties is to be determined. Furthermore, to the extent that this language is understood to adopt the buyout amount formula in § 1 (a), it does not clarify the ambiguity in that section as to whether the plaintiff's interest is to be determined after consideration of the debt associated with the properties. In sum, each party has set forth a reasonable interpretation of the buyout provisions, with both interpretations having bases in the language used in the agreement. We conclude, therefore, that the agreement is ambiguous with respect to the method of calculation of the buyout amounts because the intent of the parties is not clear and certain from the language of the agreement. As noted previously, settlement agreements can be enforced summarily pursuant to Audubon only when they are clear and unambiguous. That is not the case here. Consequently, although the court properly denied the defendant's motion to enforce the agreement, it incorrectly determined that the agreement is clear and unambiguous, and, thus, the court's declaration of the meaning of the contract has no legal effect. We affirm the court's denial of the defendant's motion on the alternative ground that the buyout provisions of the agreement at issue are not clear and unambiguous. The judgment is affirmed. In this opinion the other judges concurred. The Sheila Reiner Trust for Her Children, The Michael D. Reiner Trust for His Children, and Connecticut LLC Irrevocable Trust also were named as plaintiffs in this action. For clarity, we refer to Michael D. Reiner individually as the plaintiff. Although Jeffrey A. Reiner is one of twenty-two defendants in this action, he is the only defendant who appealed; therefore, we refer to him individually as the defendant. "A hearing pursuant to Audubon [supra, 225 Conn. at 811-12, 626 A.2d 729 ], is conducted to decide whether the terms of a settlement agreement are sufficiently clear and unambiguous so as to be enforceable as a matter of law." Ackerman v. Sobol Family Partnership, LLP , 298 Conn. 495, 499 n.5, 4 A.3d 288 (2010). The defendant also claims on appeal that the court improperly considered extrinsic evidence in connection with the Audubon hearing. In light of our conclusion that it was improper for the court to have concluded that the language of the settlement agreement was clear and unambiguous, we need not reach the defendant's other claim. "Where the trial court reaches a correct decision but on [alternative] grounds, this court has repeatedly sustained the trial court's action if proper grounds exist to support it.... [W]e . may affirm the court's judgment on a dispositive [alternative] ground for which there is support in the trial court record." (Internal quotation marks omitted.) Heisinger v. Cleary , 323 Conn. 765, 776 n.12, 150 A.3d 1136 (2016). Nancy Brooks, the sister of the plaintiff and the defendant, was the third primary beneficiary of the trusts. Although the defendant's initial appellate brief does not mention 603 Farmington Avenue, he subsequently filed an errata sheet in which he maintains that 603 Farmington Avenue is the only property at issue under § 1. The plaintiff does not dispute that the buyout of 603 Farmington Avenue also is at issue in this appeal. In that filing, the plaintiff principally requested that the court deny the defendant's motion, but also sought enforcement of the agreement in accordance with his own interpretation. Despite the contradictory language used in the plaintiff's April 17, 2017 filing, we treat it as an objection. See Briere v. Greater Hartford Orthopedic Group, P.C. , 325 Conn. 198, 217, 157 A.3d 70 (2017) (Robinson, J. , concurring) (interpretation of pleadings is question of law); see also Farren v. Farren , 142 Conn. App. 145, 156, 64 A.3d 352 (substance of relief sought by motion, not form, is controlling), cert. denied, 309 Conn. 903, 68 A.3d 658 (2013). For instance, if the parties equally shared a property that had a fair market value of $ 1 million and that was encumbered by $ 900,000 of underlying debt, the buyout amount, pursuant to the plaintiff's construction, would be $ 500,000. As a result, the defendant would be obligated to pay the plaintiff five times the amount of the actual equity in the property. The judgment file is inconsistent with the court's memorandum of decision. The judgment file states "that the parties' settlement agreement [is to] be enforced as set forth in the memorandum of decision [regarding the defendant's] motion to enforce settlement agreement issued on October 23, 2017." In the memorandum of decision, the court denied the defendant's motion to enforce the agreement and, despite its conclusion that the agreement was clear and unambiguous in accordance with the plaintiff's interpretation, the court did not enforce the agreement. The court's memorandum of decision is controlling. See Wesley v. Schaller Subaru, Inc. , 277 Conn. 526, 529 n.1, 893 A.2d 389 (2006) ("[w]hen there is an inconsistency between the judgment file and the oral or written decision of the trial court, it is the order of the court that controls because the judgment file is merely a clerical document, and the pronouncement by the court . is the judgment" [internal quotation marks omitted] ). We emphasize that the scope of our review is narrow and requires us to determine only whether the language of the buyout provision is ambiguous. We do not decide which party has the better interpretation, only whether there is more than one reasonable interpretation of the contract language at issue. See Salce v. Wolczek , 314 Conn. 675, 683, 104 A.3d 694 (2014). The plaintiff and the court also rely on the references to mortgages in § 3, 9, and 10 of the agreement to conclude that the parties intentionally omitted consideration of the mortgages from § 1. We are unpersuaded that these collateral references establish that § 1 is clear and unambiguous. In § 3, the defendant agreed to buy out Connecticut LLC Trust's interest in another parcel of real property "by paying . the sum equal to (i) $ 700,000 plus (ii) forty-nine [percent] (49%) of any principal pay down on the mortgage on" that property. This language sets forth a precise mathematical formula to produce a number "equal to " the buyout price for the property at issue. (Emphasis added.) By contrast, § 1 states that the buyout of the plaintiff's interests in the Reiner Trusts properties "will be based on " the fair market value of each of the properties. (Emphasis added.) "Based on" and "equal to" may have been intended by the parties to have the same meaning, but that is not necessarily so. As the defendant points out in his brief, " 'based on' typically notes that something is a first step and more will be done in addition.... [The] [d]efendant argues that this additional step was calculating the equity in the properties to determine the value of the plaintiff's interest in them." We do not express a view as to which argument regarding the impact of § 3 on the interpretation of § 1 is more reasonable. See footnote 11 of this opinion. We simply note that the court's reliance on § 3 to support its conclusion that § 1 is clear and unambiguous was misplaced. Further, we do not view § 9 and 10 as in anyway helpful to a determination of the meaning of § 1. Sections 9 and 10 are not buyout provisions but, rather, govern the transfer of properties through Eleanore Reiner's will. The fact that the sole beneficiary of § 9 and 10 received the property as encumbered upon Eleanore Reiner's death provides no insight as to how the plaintiff and the defendant intended the buyout provisions between them to work. Although we conclude that this aspect of the agreement cannot be enforced pursuant to Audubon , this does not foreclose the parties' ability, if they are unable to reach an extrajudicial resolution of their dispute, to seek other avenues of recovery on the basis of the agreement. See Matos v. Ortiz , supra, 166 Conn. App. at 809, 144 A.3d 425 ("while [a settlement agreement] may still be enforceable through ordinary procedural channels, these are hardly the circumstances that give rise to a right to summary enforcement under Audubon ").

12489913

BANK OF AMERICA, NATIONAL ASSOCIATION v. Michael C. LA MESA et al.

Bank of Am., Nat'l Ass'n v. La Mesa

2017-05-09

AC 38051

98

100

162 A.3d 98

162

West's Atlantic Reporter, Third Series

Connecticut Appellate Court

Connecticut

2021-08-27T20:57:14.018929+00:00

Fastcase

BANK OF AMERICA, NATIONAL ASSOCIATION v. Michael C. LA MESA et al.

BANK OF AMERICA, NATIONAL ASSOCIATION v. Michael C. LA MESA et al. AC 38051 Appellate Court of Connecticut. Argued February 21, 2017 Officially released May 9, 2017 Michael C. La Mesa, self-represented, the appellant (named defendant). Pierre-Yves Kolakowski, Greenwich, with whom, on the brief, were Christopher J. Picard, Hartford and Elizabeth T. Timkovich, for the appellee (plaintiff). Lavine, Mullins and Dubay, Js.

391

2448

PER CURIAM. The defendant Michael La Mesa appeals from the judgment of foreclosure by sale rendered in favor of the plaintiff, Bank of America, National Association. The sole issue on appeal is whether the defendant's April 22, 2015 notice of rescission, sent pursuant to the Truth in Lending Act, 15 U.S.C. § 1601 et seq., divested the court of subject matter jurisdiction. We affirm the judgment of the trial court. After careful review of the record and the parties' appellate briefs, we conclude that the court was not divested of subject matter jurisdiction because the defendant's notice of rescission had no legal effect. "The Truth in Lending Act gives borrowers the right to rescind certain loans for up to three years after the transaction is consummated." Jesinoski v. Countrywide Home Loans, Inc. , - U.S. -, 135 S.Ct. 790, 791, 190 L.Ed.2d 650 (2015). Importantly, "the borrower's right of rescission shall expire three years after the date of consummation of the transaction or upon the sale of the property, whichever occurs first, even if the required disclosures have never been made.... The [Truth in Lending Act] gives a borrower no express permission to assert the right of rescission as an affirmative defense after the expiration of the [three] year period." (Citation omitted; footnote omitted; internal quotation marks omitted.) Beach v. Ocwen Federal Bank , 523 U.S. 410, 413, 118 S.Ct. 1408, 140 L.Ed.2d 566 (1998). The loan in question was consummated on October 4, 2005, and the defendant's notice of rescission was sent on April 22, 2015, nearly ten years after the consummation of the loan. The time period to assert the right of rescission clearly has passed and the defendant is not entitled to assert the right of rescission as an affirmative defense. Accordingly, the defendant's claim is without merit. The judgment is affirmed. The United States Internal Revenue Service was also named as a defendant and is not involved in this appeal. Our references to the defendant are to La Mesa.

12490406

Nerissa HOSEIN v. Scot EDMAN et al.

Hosein v. Edman

2017-07-25

AC 38472

94

99

166 A.3d 94

166

West's Atlantic Reporter, Third Series

Connecticut Appellate Court

Connecticut

2021-08-27T20:57:14.020814+00:00

Fastcase

Nerissa HOSEIN v. Scot EDMAN et al.

Nerissa HOSEIN v. Scot EDMAN et al. AC 38472 Appellate Court of Connecticut. Argued April 12, 2017 Officially released July 25, 2017 Daniel P. Scholfield, New Haven, with whom, on the brief, was Brendan J. Keefe, New Haven, for the appellant (plaintiff). James E. Coyne, Stratford, with whom, on the brief, were Colleen D. Fries, Stratford, and Joseph M. Walsh, for the appellee (defendant Department of Transportation). Sheldon, Keller and Prescott, Js.

2414

14863

SHELDON, J. The plaintiff, Nerissa Hosein, commenced this action against the defendant Department of Transportation (department) to recover damages for injuries she allegedly suffered due to the department's vicarious negligence on December 14, 2011, in a motor vehicle collision between her personal automobile and a department owned vehicle. The plaintiff claimed that the collision and her resulting injuries were caused by the negligence of a department employee, Scot Edman, who was then operating the department's vehicle in the course of his employment duties. After a bench trial, the court rendered judgment in favor of the department on the grounds that the plaintiff had failed to prove her claim of negligence by a preponderance of the evidence and, in fact, that the plaintiff's own negligence was the proximate cause of the collision and injuries, in that she had failed to keep a proper lookout and failed to keep her vehicle under proper control at or about the time of the collision. The plaintiff's sole claim on appeal is that the trial court erred in completely discrediting the testimony of her expert witness, an accident reconstructionist, and thereby "effectively precluding" that witness' testimony, without affording her an evidentiary hearing pursuant to State v. Porter , 241 Conn. 57, 698 A.2d 739 (1997), cert. denied, 523 U.S. 1058, 118 S.Ct. 1384, 140 L.Ed.2d 645 (1998). We conclude that the trial court did not preclude the testimony of the plaintiff's expert, but, rather, admitted that testimony in its entirety, before ultimately deciding not to afford it any weight. Accordingly, we affirm the judgment of the trial court. On December 14, 2011, at approximately 9:00 a.m., the plaintiff was traveling southbound on Frontage Road in Meriden, approaching the point where it turns into an on-ramp to Route 15, when she observed the department's vehicle, which was then being operated by Edman, parked on the grass on the right side of the roadway. As she was passing by the department's vehicle, she heard a loud noise, after which her vehicle flipped over onto its roof, and then began to slide forward and across the road. Although the plaintiff testified that her attention, as she was passing the department's vehicle, was focused forward instead of to her right, and thus she never saw the department's vehicle move, she alleged in her complaint that Edman "moved [the department's vehicle] from a stopped position on the shoulder [of the roadway and] into the [travel] lane, suddenly and without warning, and struck the [plaintiff's] motor vehicle . from the front right side ." The department denied the plaintiff's allegation that Edman had caused the collision between her vehicle and his department owned vehicle by suddenly moving into the travel lane of the roadway. Edman testified that, on the morning of the accident, he had been setting up construction signs along the roadway in preparation for landscaping work that was scheduled for that day. Edman testified that his vehicle was parked "two thirds in the grass" on the side of the road, that its flashing lights were activated, and that its wheels were "cocked" to the left pursuant to the department's policy, in order to prevent harm to workers who might be working on the side of the road, in the event that the vehicle was struck from behind. He placed a white sign along the side of the road that warned of construction ahead, then returned to his vehicle and fastened his seat belt. He recalled that he was just about to put his vehicle into drive when it was struck from behind. He had not yet looked in his rearview mirror, so he did not see the plaintiff's vehicle approach or strike his vehicle. He testified that his vehicle was pushed twenty to thirty feet as a result of the impact from the collision. The right front of the plaintiff's vehicle impacted the left rear bumper of the department's vehicle. By way of special defense, the department alleged that the plaintiff's own negligence had proximately caused the collision between her vehicle and the department's vehicle. The department alleged, inter alia, that the plaintiff had been negligent in failing to keep a proper lookout, failing to keep her vehicle under reasonable and proper control and operating her vehicle at a rate of speed greater than what was reasonable in light of the width, traffic and use of the roadway. The plaintiff denied all of the allegations in the department's special defense. On August 20, 2014, the plaintiff filed a disclosure of expert witness, pursuant to Practice Book § 13-4, in which she disclosed her intention to present at trial the testimony of Alfred Cipriani, an accident reconstructionist, who would opine that "the collision was caused by . Edman moving the [department's vehicle] from the shoulder of the road into the southbound travel lane and into the path of [the plaintiff's vehicle]." The department moved to preclude the testimony of Cipriani on the sole ground that the plaintiff's disclosure of him was untimely, and thus that it would not have an adequate opportunity to depose him before trial or to make a later determination as to whether to retain a defense expert. When, however, the trial was rescheduled for a later date, the parties were afforded adequate time to complete discovery and depose Cipriani. Therefore, the department did not pursue its motion to preclude or seek to preclude Cipriani's testimony on any other basis prior to trial. The case was tried to the court on June 18 and 19, 2015. At trial, the plaintiff called, inter alios, Cipriani to testify on her behalf. During the direct examination of Cipriani, the department repeatedly objected to his testimony on the ground that it was speculative. Initially, the court sustained many of those objections. Later, however, upon reminding the parties of its ultimate role in the case as the fact finder, it advised the parties that it was going to permit Cipriani to testify fully as to his expert opinions, despite the department's objections, so it could hear everything the witness had to say before deciding what weight, if any, his testimony truly deserved. On that subject, the court explained its approach as follows: "[T]his is a court trial, and I think there are a lot of objections that have been made back and forth. And I think, ultimately, the issue regarding the weight to be given to any conclusion or opinions through this expert witness would be part of the decision the court has to make. So . at this time, I'm aware of the [department's] position about objecting to all of the testimony. But I'm going to permit it all to come in, and let me hear what it is, and that will be an ultimate decision for me to make in this matter." When the plaintiff continued with her direct examination of Cipriani, the department again objected to the admission of his testimony on the ground that it was speculative. In response to that objection, the court reiterated: "As I indicated, I'm going to overrule the objection at this point, based on the statement I made at the beginning of this proceeding . [Y]ou'll have the right to cross-examine the witness, and then ultimately it'll be the court's decision regarding the weight to be given to the total testimony." The plaintiff then resumed her direct examination of Cipriani. Despite the court's clear rulings rejecting the department's objections, the department again objected to Cipriani's testimony on the ground that it was "clearly speculative." In response, the court once again reiterated: "Well, again, for the reasons I've stated earlier, I'm going to overrule your [objection]. And, at this point, I'm going to continue to hear this witness' testimony." The court further stated: "I'm going to permit cross-examination by defense counsel at the appropriate time. But I want to hear your evidence on direct." After Cipriani stated certain of his opinions, the department moved, repeatedly, that those opinions be stricken from the record on the ground that they were speculative. Each time, the court denied the department's motion, stating that it would hear all the challenged testimony, then determine, as the ultimate fact finder, what weight to give to that testimony. The court told the department, "I fully want to hear what it is [Cipriani] has to say and what his opinion is. . [I]t's for the court to determine the weight to be given to the opinion." The court thus admitted Cipriani's direct examination testimony in its entirety, after which the department was permitted to cross-examine him. On July 9, 2015, after both parties filed posttrial briefs, the court filed a memorandum of decision rendering judgment in favor of the department. The court therein found, inter alia, that Cipriani's opinion "was based upon speculation and conjecture [and] was not necessary to assist [it] in deciding the issues." The court concluded its analysis of liability as follows: "This court finds that, based on the evidence, the plaintiff failed to prove her claims of [the department's] negligence by a fair preponderance of the evidence. The court also finds the plaintiff's negligence was the proximate cause of this collision. The plaintiff failed to keep a proper lookout and failed to keep her vehicle under proper control." The plaintiff thereafter filed motions for a new trial, to reargue and to set aside the verdict. The plaintiff also filed a motion for articulation and rectification. Each of those motions, to which the department objected, challenged the court's finding that Cipriani's opinion was based upon speculation and conjecture. The court held a hearing on September 21, 2015, during which it explained, inter alia: "I didn't feel I need[ed] that expert opinion's assistance to help me decide the merits or the-what decision should be made in this case. It was based upon the evidence that was presented [at] trial. And [I], then, drew reasonable legal conclusions, which is my job to do. So, the mere fact that I did not give any weight to the expert['s] [testimony] is not a basis for me to set aside this verdict." The court indicated that it "took all of the evidence [into consideration in order] to come to [its] findings of fact and [its] ultimate conclusion ." The court denied the plaintiff's motions and this appeal followed. The plaintiff claims that the court erred by not relying at all upon Cipriani's testimony, by which, she claims, it effectively precluded such testimony without holding a Porter hearing. We disagree. "It is well settled that [t]he trial court has wide discretion in ruling on the admissibility of expert testimony and, unless that discretion has been abused or the ruling involves a clear misconception of the law, the trial court's decision will not be disturbed." (Internal quotation marks omitted.) Hicks v. State , 287 Conn. 421, 444, 948 A.2d 982 (2008). Similarly, "we give great deference to the findings of the trial court because of its function to weigh and interpret the evidence before it and to pass upon the credibility of witnesses ." (Internal quotation marks omitted.) Wyszomierski v. Siracusa , 290 Conn. 225, 237-38, 963 A.2d 943 (2009). Here, the plaintiff's claim that the court precluded Cipriani's testimony is belied by the record. Although the court initially sustained several of the department's oral objections to Cipriani's testimony on the ground that it was speculative, it ultimately admitted his testimony in full. Thereafter, Cipriani testified extensively, over repeated defense objections. In overruling those objections, the court repeatedly stated that it was admitting all of Cipriani's testimony into evidence so that it could later decide what weight, if any, to give that testimony in deciding the issues before it. Having done so, the court was free to evaluate Cipriani's opinion testimony, and reject it in whole or in part, because "[t]he acceptance or rejection of the opinions of expert witnesses is a matter peculiarly within the province of the trier of fact and its determinations will be accorded great deference by this court. . In its consideration of the testimony of an expert witness, the [finder of fact] might weigh, as it sees fit, the expert's expertise, his opportunity to observe the defendant and to form an opinion, and his thoroughness. It might consider also the reasonableness of his judgments about the underlying facts and of the conclusions which he drew from them. . It is well settled that the trier of fact can disbelieve any or all of the evidence proffered ." (Internal quotation marks omitted.) State v. Washington , 155 Conn.App. 582, 593-94, 110 A.3d 493 (2015). Although the court ultimately determined that Cipriani's testimony was based on conjecture and speculation, and that it was not necessary for the court to rely on it in deciding the issues presented, that statement is indicative of the court's weighing, consideration, and ultimate rejection, of the substance of Cipriani's testimony, not its preclusion as evidence at trial. Because the record does not support the plaintiff's contention that the court precluded her expert's testimony, but, rather, reveals that it admitted that testimony and then properly acted within its role as the finder of fact in weighing and rejecting that testimony, her claim on appeal must fail. The judgment is affirmed. In this opinion the other judges concurred. The plaintiff's initial complaint contained two counts, one against Edman directly for his negligence and another against the department claiming vicarious liability for Edman's negligence. Edman moved to strike the claim against him pursuant to General Statutes § 4-165. The plaintiff thereafter amended her complaint, deleting the count against Edman. The court also noted: "The defense also presented an independent third-party witness, Kevin Gause, who had just passed the signs and . the [department's] vehicle was stopped and the sign was there in the placed position prior to the collision." The trial court denied the plaintiff's motion for articulation, from which the plaintiff sought review from this court. This court dismissed the plaintiff's motion for review, but sua sponte, ordered the trial court to rectify its July 9, 2015 memorandum of decision to indicate that the "plaintiff presented a purported accident reconstructionist ."

12490405

STATE of Connecticut v. Anthony CARTER

State v. Carter

2017-07-18

AC 39271

910

911

166 A.3d 910

166

West's Atlantic Reporter, Third Series

Connecticut Appellate Court

Connecticut

2021-08-27T20:57:14.020814+00:00

Fastcase

STATE of Connecticut v. Anthony CARTER

STATE of Connecticut v. Anthony CARTER AC 39271 Appellate Court of Connecticut. Argued June 1, 2017 Officially released July 18, 2017 Anthony Carter, self-represented, the appellant (defendant). Timothy F. Costello, assistant state's attorney, with whom, on the brief, were Gail P. Hardy, state's attorney, and Richard J. Rubino, senior assistant state's attorney, for the appellee (state). Alvord, Prescott and Kahn, Js.

206

1364

PER CURIAM. The defendant, Anthony Carter, appeals from the judgment of the trial court dismissing in its entirety his motion to correct an illegal sentence. Having thoroughly reviewed the defendant's claims on appeal, we conclude that they are wholly without merit. We agree with the state, however, that the trial court should have denied rather than dismissed the defendant's claim that the sentencing court, under the circumstances of this case, was not authorized by statute to impose consecutive sentences with respect to the defendant's convictions. The court properly dismissed the remainder of the defendant's claims. The form of the judgment is, in part, improper, and the case is remanded with direction to render judgment denying that portion of the defendant's motion to correct an illegal sentence that claims that the court lacked statutory authority to impose consecutive sentences and dismissing the remainder of the motion.

12490404

AMERICAN EXPRESS BANK, FSB v. Krzysztof RUTKOWSKI, et. al.

Am. Express Bank, FSB v. Rutkowski

2017-07-04

AC 38900

908

910

166 A.3d 908

166

West's Atlantic Reporter, Third Series

Connecticut Appellate Court

Connecticut

2021-08-27T20:57:14.020814+00:00

Fastcase

AMERICAN EXPRESS BANK, FSB v. Krzysztof RUTKOWSKI, et. al.

AMERICAN EXPRESS BANK, FSB v. Krzysztof RUTKOWSKI, et. al. AC 38900 Appellate Court of Connecticut. Argued April 24, 2017 Officially released July 4, 2017 Scott M. Schwartz, for the appellants (defendants). Erica Gesing, for the appellee (plaintiff). Sheldon, Beach and Sheridan, Js.

1239

7534

SHERIDAN, J. The defendants, Krzysztof Rutkowski and Tri-City Trading, LLC, appeal from the judgment rendered by the trial court in favor of the plaintiff, American Express Bank, FSB. On appeal, the defendants claim that the court improperly rendered summary judgment as to liability on the plaintiff's claim of breach of a contractual credit agreement because the statute of frauds, General Statutes § 52-550(a)(6), bars enforcement of the agreement. We disagree and, accordingly, affirm the judgment of the trial court. The following facts and procedural history are relevant to this appeal. The defendants opened a credit card account with the plaintiff on February 26, 2004. Upon opening the account, the defendants were mailed a credit card along with a copy of the cardmember agreement. The defendants used the credit card account to pay for various goods and services and received monthly billing statements from the plaintiff. The defendants did not object to the balances shown as due and owing on the monthly statements provided by the plaintiff. Following the defendants' failure to make payments on the credit card account, the plaintiff closed the account with a remaining balance due and owing of $182,367.29. On August 15, 2013, the plaintiff commenced the present action against the defendants. The amended complaint filed on December 20, 2013, alleged one count of breach of a contractual credit agreement (count one) and one count of unjust enrichment (count two). The defendants filed an answer denying the allegations of the complaint and alleging special defenses claiming inter alia, that the plaintiff's claims were barred by the statute of frauds, § 52-550(a)(6). The plaintiff subsequently filed a motion for summary judgment on both counts on August 13, 2015. The court, Hon. Joseph M. Shortall , judge trial referee, found that the statute of frauds did not bar the plaintiff's claim, there was no genuine issue of material fact, and thus the plaintiff was entitled to judgment as a matter of law on count one as to liability only. Following a hearing in damages, the court, Wiese, J ., rendered judgment for the plaintiff on count one in the amount of $182,367.29 plus costs. This appeal followed. Additional facts will be set forth as necessary. We begin by setting forth the relevant standard of review. " Practice Book § 17-49 provides that summary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.... On appeal, we must determine whether the legal conclusions reached by the trial court are legally and logically correct and whether they find support in the facts set out in the memorandum of decision of the trial court.... Our review of the trial court's decision to grant the defendant's motion for summary judgment is plenary." (Internal quotation marks omitted.) Bellemare v. Wachovia Mortgage Corp ., 94 Conn.App. 593, 597, 894 A.2d 335 (2006), aff'd, 284 Conn. 193, 931 A.2d 916 (2007). On appeal, the defendants claim that the court erred in granting summary judgment on the issue of liability on count one because the statute of frauds, § 52-550(a)(6), bars the enforcement of any loan exceeding $50,000 in the absence of a writing signed by the party to be charged. The plaintiff argues that the court did not err because the contractual credit agreement between the plaintiff and defendants was not a loan, and thus it was not governed by the statute of frauds. We agree with the plaintiff that the present action is not barred by the statute of frauds. The plaintiff's claim for breach of the contractual credit agreement was not related to "any agreement for a loan in an amount which exceeds fifty thousand dollars"; General Statutes § 52-550(a)(6) ; because the underlying credit agreement was not a loan within the meaning of the statute of frauds. Cf. Stelco Industries, Inc. v. Zander , 3 Conn.App. 306, 307-308, 487 A.2d 574 (1985) (credit sales agreement was not subject to usury statutes because indebtedness to plaintiff arose out of credit sales transactions, and not out of loan of money). The defendants have failed to point to any legal authority in support of the proposition that the defendants' credit card agreement constitutes a loan as contemplated by the statute of frauds. Further, the defendants were never given a sum that exceeds $50,000 by the plaintiff, but rather were able to effectuate third party transactions in various amounts through the use of the defendants' credit card account with the plaintiff. Accordingly, the trial court properly granted the plaintiff's summary judgment motion, and we affirm the judgment of the trial court. The judgment is affirmed. In this opinion the other judges concurred. Count two is not at issue in this appeal. The court declined to render final judgment because "the amount in demand [was] differently stated in the complaint, the motion [for summary judgment] and the affidavit of debt, and no bill of costs [was] on file." General Statutes § 52-550(a) provides, in relevant part: "No civil action may be maintained in the following cases unless the agreement, or a memorandum of agreement, is made in writing and signed by the party, or the agent of the party, to be charged . (6) upon any agreement for a loan in an amount which exceeds fifty thousand dollars." The defendants' brief cites to Black's Law Dictionary (9th Ed. 2009) as defining a "loan" as "[a] thing lent for the borrower's temporary use; esp., a sum of money lent at interest," as well as a 1962 case stating that "[a] loan is made when borrower receives money over which he exercises dominion and which he expressly or impliedly promises to return." Rogers v. Hannon-Hatch Post No. 9929, 23 Conn.Supp. 326, 327, 182 A.2d 923 (1962). Although these remote authorities may help to establish what constitutes a "loan," they fail to establish how the defendants' credit card agreement should be considered as such. At oral argument before this court, a question was raised regarding a provision in the cardmember agreement specifying that "Utah law and federal law govern this Agreement and the Account." Practice Book § 10-3(b) provides that "[a] party to an action who intends to raise an issue concerning the law of any jurisdiction or governmental unit thereof outside this state shall give notice in his or her pleadings or other reasonable written notice." The defendants in the present case did not rely on Utah law or federal law in alleging their special defense or in opposing the plaintiff's motion, choosing instead to argue that the action was barred by General Statutes § 52-550(a)(6). The parties are bound by their pleadings. O'Halloran v. Charlotte Hungerford Hospital, 63 Conn.App. 460, 463, 776 A.2d 514 (2001). Moreover, "[g]enerally, claims neither addressed nor decided by the trial court are not properly before an appellate tribunal." (Internal quotation marks omitted.) Natarajan v. Natarajan, 107 Conn.App. 381, 394 n.8, 945 A.2d 540, cert. denied, 287 Conn. 924, 951 A.2d 572 (2008). Accordingly, we decline to decide any questions under Utah law or federal law.

12490403

STATE of Connecticut v. Heather GANSEL

State v. Gansel

2017-07-11

AC 39427

904

908

166 A.3d 904

166

West's Atlantic Reporter, Third Series

Connecticut Appellate Court

Connecticut

2021-08-27T20:57:14.020814+00:00

Fastcase

STATE of Connecticut v. Heather GANSEL

STATE of Connecticut v. Heather GANSEL AC 39427 Appellate Court of Connecticut. Argued April 17, 2017 Officially released July 11, 2017 John R. Williams, New Haven, for the appellant (defendant). Kathryn W. Bare, assistant state's attorney, with whom, on the brief, were, David Cohen, former state's attorney, James Bernardi, supervisory assistant state's attorney, and Joseph C. Valdes, senior assistant state's attorney, for the appellee (state). DiPentima, C. J., and Lavine and Flynn, Js.

1463

9169

PER CURIAM. The defendant, Heather Gansel, appeals from the judgment of conviction, following a trial to the court, of larceny in the first degree by embezzlement in an amount more than $20,000 in violation of General Statutes § 53a-119 (1), 53a-121 (b), and 53a-122 (a) (2). The defendant claims that the court abused its discretion by admitting into evidence certain inculpatory e-mails because they were not properly authenticated. Because we conclude that an evidentiary error, if any, was harmless, we affirm the judgment of the trial court. The following facts, which were found by the court in its oral memorandum of decision, and procedural history are relevant to our resolution of the defendant's appeal. The defendant, who was a chiropractor and, for two years, the sole owner of two businesses, lived with her grandparents, Lou Sabini and Marietta Sabini, in her grandparents' house located in Stamford. Her grandparents had two children: the defendant's mother, Marilyn Gansel, and the defendant's uncle, Louis Sabini. The defendant helped her grandparents manage their household accounts and personal needs. On May 13, 2010, after Lou Sabini had died, Marietta Sabini gave the defendant written power of attorney to act as her agent. Marietta Sabini then sold the Stamford house and moved in with Louis Sabini. The defendant lived elsewhere but continued to manage Marietta Sabini's finances and personal needs. On June 22, 2010, Marietta Sabini received approximately $592,539 in proceeds from the sale of her house. She deposited the money in a bank account she jointly held with the defendant (Wachovia account). All of the money deposited in the Wachovia account belonged solely to Marietta Sabini, and she only deposited the money in the Wachovia account so that the defendant could access the funds to fulfil her duties as Marietta Sabini's agent and to use the funds for Marietta Sabini's benefit. The two also jointly held a second bank account (ING Direct account). In addition, the defendant had her own personal account and two separate accounts for each of her businesses. On June 24, 2010, the defendant withdrew $262,720 from the Wachovia account and deposited it into the ING Direct account. Between June 22, 2010 and October 17, 2012, the date of Marietta Sabini's death, the defendant transferred approximately $412,400 from the Wachovia account and the ING Direct account into her personal and business accounts. In addition, she used more than $20,000 of Marietta Sabini's money to pay for her own personal and business expenses, such as catering, family matters, real estate, groceries, gasoline, and student debt. In August, 2012, Marietta Sabini tried to use her Wachovia debit card at a nail salon, but her card was declined because it had been cancelled. Louis Sabini and Marietta Sabini subsequently went to Wachovia bank and learned that a significant amount of Marietta Sabini's money was missing. On August 22, 2012, Louis Sabini held a family meeting to determine what had happened to the missing money. Six people-Louis Sabini, Louis Sabini's wife, the defendant, Marietta Sabini, Marilyn Gansel, and Marilyn Gansel's husband-attended the meeting. During the meeting, Louis Sabini accused the defendant of stealing $110,000 from Marietta Sabini. She responded: "yes," and "I realize that Louis [Sabini]," but then stated that she had only taken $109,000 and that she was willing to create a repayment plan to reimburse Marietta Sabini. Shortly thereafter, the defendant sent Louis Sabini two e-mails from her business e-mail address, both of which contained incriminating information against her, including that she regretted "removing" Marietta Sabini's money from her accounts and that she was working with an attorney to devise an affordable repayment plan. The defendant claims that these e-mails were improperly admitted into evidence. On September 21, 2012, the defendant wrote a letter to Marietta Sabini, promising to repay her $283,000. She also wrote, "[i]n this correspondence to you I want to make you aware of my efforts to make things right," "[p]lease be aware that I want to make every effort possible to return all funds to you in an organized, efficient, and consistent manner," and, "I am terribly sorry for my actions and for the pain all of this has caused you. I hope one day you might be able to forgive me." The defendant was arrested on November 29, 2012. She waived her right to a jury trial, and on October 29, 2015, the court found the defendant guilty of larceny in the first degree by embezzlement in an amount more than $20,000. The court found that the state had proved all of the elements of larceny in the first degree by embezzlement and stated, "[the defendant] had the specific intent to appropriate [Marietta Sabini's property] to herself or her businesses ." The court sentenced the defendant to ten years incarceration, execution suspended after three years, and five years of probation. This appeal followed. Additional facts will be set forth as necessary. On appeal, the defendant claims that the court abused its discretion by admitting into evidence the inculpatory e-mails she had sent to Louis Sabini. She argues that the state failed to properly authenticate the e-mails as being written and sent her because it relied solely on Louis Sabini's testimony to prove their authenticity. She contends that because the court expressly relied on the defendant's admissions in the e-mails to support its judgment, their admission was not harmless. We disagree that the defendant established harm and, therefore, need not decide whether the court abused its discretion. "[W]hen an improper evidentiary ruling is not constitutional in nature, the defendant bears the burden of demonstrating that the error was harmful. . [T]he proper standard for determining whether an erroneous evidentiary ruling is harmless should be whether the [court's judgment] was substantially swayed by the error." (Internal quotation marks omitted.) State v. LeBlanc, 148 Conn.App. 503, 508-509, 84 A.3d 1242, cert. denied, 311 Conn. 945, 90 A.3d 975 (2014). Assuming, without deciding, that the court abused its discretion in admitting the inculpatory e-mails into evidence, we conclude that the defendant has failed to show that the error was harmful because the state presented ample other evidence, apart from the e-mails, that the defendant unequivocally admitted that she unlawfully took Marietta Sabini's money. As noted, Louis Sabini testified that at the family meeting, which six family members attended, when he accused the defendant of stealing $110,000 from Marietta Sabini, the defendant responded, "yes," and "I realize that Louis [Sabini]." She also admitted that she "had stolen" "only $109,000" and that she "would come up with some sort of a plan within the next few days" to reimburse Marietta Sabini. Marilyn Gansel, who testified for the defendant, confirmed that this meeting took place. She also testified that the defendant "did borrow some money" and that she "promised to pay all of this money back ." In addition, the defendant wrote to Marietta Sabini in the September 21, 2012 letter that she "returned a total of $30,500 to the [Wachovia] account," and "[t]o honor my commitment, I will begin to make monthly installments of $500 starting October 15, 2012. My attorney and I have discussed how these funds will be allocated." She indicated that she would transfer $283,000 into two separate trust funds, one of which "will hold your 'living' money ($106,000) and the other trust fund will hold your 'home healthcare' money ($177,000)." Louis Sabini's testimony and the letter the defendant sent to Marietta Sabini were sufficient evidence to support her conviction. Because the defendant's admissions in the e-mails were cumulative of other evidence that properly had been admitted, and which independently provided the basis for conviction, we conclude that the defendant failed to show the admission of the e-mails was harmful. The judgment is affirmed. The defendant has failed to provide this court with a record that contains a signed transcript of the trial court's oral decision, in accordance with Practice Book § 64-1. The record does, however, contain the unsigned transcript of the October 29, 2015 hearing. On the basis of our review of the unsigned transcript, we are able to locate the portions of the record that constitute the court's orders. Thus, despite the defendant's failure to abide by the rules of practice, we will review her claim. See Stechel v. Foster, 125 Conn.App. 441, 445-46, 8 A.3d 545 (2010), cert. denied, 300 Conn. 904, 12 A.3d 572 (2011).

12490402

Stephanie REYES v. MEDINA LOVERAS, LLC

Reyes v. Medina Loveras, LLC

2017-07-18

AC 38682

88

94

166 A.3d 88

166

West's Atlantic Reporter, Third Series

Connecticut Appellate Court

Connecticut

2021-08-27T20:57:14.020814+00:00

Fastcase

Stephanie REYES v. MEDINA LOVERAS, LLC

Stephanie REYES v. MEDINA LOVERAS, LLC AC 38682 Appellate Court of Connecticut. Argued April 10, 2017 Officially released July 18, 2017 Maxwell W. Barrand, for the appellant (plaintiff). Cynthia A. Watts, for the appellee (defendant). Lavine, Keller and Pellegrino, Js.

2540

15581

PELLEGRINO, J. The plaintiff, Stephanie Reyes, appeals from the judgment, rendered after a jury trial, in favor of the defendant, Medina Loveras, LLC. The plaintiff claimed that she sustained serious physical injuries when a bathroom sink on the defendant's premises collapsed beneath her. The plaintiff claims on appeal that the trial court improperly admitted into evidence (1) a photograph of the plaintiff's uninjured buttock, and (2) certain portions of her hospital records. We affirm the judgment of the trial court. The facts giving rise to the plaintiff's claim are contested. It is uncontested that on the night of January 7, 2013, the plaintiff was in the men's bathroom on the premises of the defendant when the bathroom sink collapsed, causing the plaintiff to injure her buttock. Whether the plaintiff was standing at the sink, or whether the plaintiff was urinating in the sink at the time that the sink collapsed, however, was a disputed issue at the trial. The plaintiff testified at trial that while she was using the men's bathroom, she steadied herself on the bathroom sink in order to take a picture of herself. Thereafter, the sink came off the wall, breaking on the floor and causing the plaintiff to fall upon the shattered shards, injuring her right buttock. An employee of Discovery Café testified at trial that he was near the men's bathroom, heard a loud noise from within, pushed the door open, and found the plaintiff with her pants down to her knees on top of the broken sink. In contradiction to the plaintiff's testimony, a report by a Stamford Hospital employee stated that the plaintiff was trying to urinate in the sink before it collapsed, causing her to fall. It is undisputed that the plaintiff received treatment for her injuries at Stamford Hospital. On January 28, 2014, the plaintiff commenced the present action against the defendant. In her amended complaint filed on February 6, 2015, she alleged that the defendant was negligent in failing to properly inspect, secure, and maintain its premises in a reasonably safe condition and that she suffered serious harm as a result of this negligence. Following a trial, the jury returned a verdict finding that the plaintiff was 90 percent liable for her injuries and the defendant was 10 percent liable. The court accepted the verdict and rendered judgment on behalf of the defendant. This appeal followed. Additional facts will be set forth as necessary. We begin by setting forth our standard of review for both of the evidentiary claims the plaintiff has raised on appeal. "The trial court's ruling on evidentiary matters will be overturned only upon a showing of a clear abuse of the court's discretion.... We will make every reasonable presumption in favor of upholding the trial court's ruling, and only upset it for a manifest abuse of discretion.... [Thus, our] review of such rulings is limited to the questions of whether the trial court correctly applied the law and reasonably could have reached the conclusion that it did.... To the extent [that] a trial court's admission of evidence is based on an interpretation of the [Connecticut] Code of Evidence, our standard of review is plenary. For example, whether a challenged statement properly may be classified as hearsay and whether a hearsay exception properly is identified are legal questions demanding plenary review.... We review the trial court's decision to admit [or exclude] evidence, if premised on a correct view of the law, however, for an abuse of discretion." (Citation omitted; internal quotation marks omitted.) Milford Bank v. Phoenix Contracting Group, Inc. , 143 Conn.App. 519, 532-33, 72 A.3d 55 (2013). I The plaintiff first claims that the court abused its discretion in admitting a photograph of her uninjured left buttock into evidence at trial. She argues that the photograph was irrelevant to the facts of the case and that it unduly prejudiced the jury by creating "the illusion that the plaintiff's injury completely healed, when she in fact retains a large scar." We disagree. At trial, the defendant moved to have the photograph of the plaintiff's uninjured buttock admitted as a full exhibit. The court asked the plaintiff: "[D]o you have any problem with the picture itself," to which the plaintiff replied, "[n]o, Your Honor." Once the photograph was admitted into evidence, but before it was marked as a full exhibit, however, the plaintiff's attorney changed his mind and objected to the photograph on the ground that it was not relevant. The court overruled the objection, and the photograph was admitted as a full exhibit. "Relevant evidence is evidence that has a logical tendency to aid the trier in the determination of an issue.... One fact is relevant to another if in the common course of events the existence of one, alone or with other facts, renders the existence of the other either more certain or more probable.... Evidence is not rendered inadmissible because it is not conclusive. All that is required is that the evidence tend to support a relevant fact even to a slight degree ." (Internal quotation marks omitted.) Drake v. Bingham , 131 Conn.App. 701, 708, 27 A.3d 76, cert. denied, 303 Conn. 910, 32 A.3d 963 (2011). On the basis of our review of the record, we conclude that the court did not abuse its discretion in admitting the photograph of the plaintiff's uninjured buttock into evidence. Photographs of the plaintiff's injury and subsequent scarring were also admitted into evidence, and, thus, the photograph of the plaintiff's uninjured buttock was relevant to helping the jury compare the plaintiff's injured and uninjured buttocks. The plaintiff only objected to the photograph after she specifically told the court that she did not have a problem with the photograph, and after the photograph had been admitted into evidence. Accordingly, the plaintiff's first claim fails. II The plaintiff's next claim is that the court abused its discretion when it allowed the tertiary trauma report containing the statement "21 y/o female who was drunk and trying to urinate into a sink, which broke and she fell" into evidence as an exception to the rule against hearsay. The tertiary trauma report was prepared by Kristina Ziegler, a physician at Stamford Hospital, following a surgical procedure in which the plaintiff's wound was stapled shut. Ziegler testified at trial regarding her preparation of the report. The plaintiff argues that the statement could not fall within the admission of a party opponent exception to the hearsay rule because the physician who wrote the report did not place the sentence in quotation marks and could not specifically recall speaking with the plaintiff. In addition, the plaintiff asserts that the statement could not fall within the hospital records exception to the hearsay rule because the statement had no bearing on the diagnosis or treatment of the patient. We disagree with both of the plaintiff's assertions. On November 18, 2015, the plaintiff filed a motion in limine to preclude all entries concerning liability in the plaintiff's hospital records and any testimony based on those entries. In her request, the plaintiff stated that the tertiary trauma report should be precluded, insofar as it pertains to liability, as inadmissible hearsay because it was not relevant to the plaintiff's diagnosis or treatment and because the report directly contradicted the plaintiff's own deposition testimony and other hospital records. The defendant objected to the plaintiff's motion, arguing that the tertiary trauma report should be admissible either as a hospital record or as an admission of a party opponent. The court sustained the defendant's objection and admitted the tertiary trauma report into evidence as a statement of a party opponent, noting: "[A]lmost all admissions that come in as an exception to the hearsay rule are paraphrases . The declarant may well have said it differently or in slightly different words, but the import of what the declarant said is what comes in. And because the declarant is an adverse party and is in court, she is in a position to refute it and that's why it's fair." "Whether evidence offered at trial is admissible pursuant to one of the exceptions to the hearsay rule presents a question of law. Accordingly, our review of the [plaintiff's] claim is plenary." State v. Gonzalez , 75 Conn.App. 364, 375, 815 A.2d 1261 (2003), rev'd, 272 Conn. 515, 864 A.2d 847 (2005). It is an "elementary rule of evidence that an admission of a party may be entered into evidence as an exception to the hearsay rule." Fico v. Liquor Control Commission , 168 Conn. 74, 77, 358 A.2d 353 (1975). "There is no requirement that the statement be against the interest of the party when made or that the party have firsthand knowledge of its content. Basically, the only objection to an admission of a party/opponent is that it is irrelevant or immaterial to the issues, or its admission violates a party's constitutional rights." C. Tait and E. Prescott, Connecticut Evidence (5th Ed. 2014) § 8.16.4 (a), p. 533. On appeal, the plaintiff argues that the statement in the tertiary trauma report was improperly admitted as a statement by a party opponent. Specifically, she points to Ziegler's deposition testimony, which the plaintiff believes establishes that Ziegler did not have a clear enough recollection of the statement to establish that it was indeed given by the plaintiff. The deposition transcript, however, was not admitted into evidence at trial because Ziegler appeared in person and provided live testimony. Accordingly, the deposition transcript is not a part of the record on appeal and we refuse to consider any testimony from the deposition. Turning to the evidence that was admitted at trial, Ziegler testified regarding her recollection of the plaintiff and the preparation of the tertiary trauma statement. The defendant asked Ziegler specifically if "it would have been [the plaintiff] that the information came from," to which Ziegler responded "correct." The defendant then asked Ziegler if the information could have "come from anywhere else?" Ziegler replied that she probably spoke with the physicians who performed the surgery, and that although she did not recall specifically, "this documentation would have come from the patient's own statement." In addition, the plaintiff testified that she "did tell somebody" at the hospital regarding how the accident happened. When the defendant asked the plaintiff to reiterate whether her answer "was, yes, I told them exactly how it happened," the plaintiff responded, "yeah, when-right." On the basis of our review of this record, we conclude that the court properly admitted the statement from the tertiary trauma report as a statement by a party opponent. Ziegler specifically testified that the statement would have come from the plaintiff, and the plaintiff admitted to having told hospital staff how the accident occurred. Because there is testimony attributing the statement to the plaintiff, it was correctly classified by the court as a statement by a party opponent and was properly admitted into evidence. Alternatively, the statement was also admissible under the hospital records exception to the hearsay rule. The admissibility of hospital records is governed by General Statutes § 52-180, which provides in relevant part: "(a) Any writing or record, whether in the form of an entry in a book or otherwise, made as a memorandum or record of any act, transaction, occurrence or event, shall be admissible as evidence of the act, transaction, occurrence or event, if the trial judge finds that it was made in the regular course of any business, and that it was the regular course of the business to make the writing or record at the time of the act, transaction, occurrence or event or within a reasonable time thereafter." Additionally, under General Statutes § 4-104, hospital records are admissible without any preliminary testimony as to authenticity. "It should initially be pointed out that a hospital record as a whole is not necessarily admissible for all purposes or as proof of all facts found therein.... The real business of a hospital is the care and treatment of sick and injured persons. It is not to collect and preserve information for use in litigation. Accordingly, even though it might be the custom of a hospital to include in its records information relating to questions of liability for injuries which had been sustained by its patients, such entries . would not be made admissible by the statute unless they also contained information having a bearing on diagnosis or treatment." (Citation omitted; internal quotation marks omitted.) Marko v. Stop & Shop, Inc., 169 Conn. 550, 561-62, 364 A.2d 217 (1975). In the present case, the medical history at issue in the tertiary trauma report, namely, the portion stating "21 y/o female who was drunk and trying to urinate into a sink, which broke and she fell," was admissible under the hospital records exception to the hearsay rule so long as it had a bearing on the diagnosis or treatment of the plaintiff. Ziegler testified at trial that the purpose of preparing a tertiary trauma report is to "check on [the patient] again to make sure [they] haven't missed any small injuries like a broken finger or anything like that and basically do a top to bottom exam again. It's a way to prevent missed injuries." Given the nature of the accident, it was important for the treating physician to know what had happened to the plaintiff in order to check for "small injuries ." For example, if the plaintiff had been sitting on the sink when it broke, she could have suffered injuries consistent with that specific type of fall. Alternatively, if the plaintiff had been standing at the sink when it fell, she may have suffered a different set of injuries. Moreover, drunkenness is often medically germane to treatment and is therefore admissible evidence. See D'Amato v. Johnston , 140 Conn. 54, 61-62, 97 A.2d 893 (1953). Accordingly, we conclude that the entire statement in the tertiary trauma report was pertinent to the plaintiff's diagnosis and treatment and that the court did not abuse its discretion by admitting it into evidence. The judgment is affirmed. In this opinion the other judges concurred. The defendant owns and operates a restaurant in Stamford known as the Discovery Café (premises). We note that the record is less than clear as to which side of her buttocks the plaintiff injured. The plaintiff testified at trial that she injured her right buttock, yet claims in her brief that she injured her left buttock. For clarity and consistency purposes, we will refer to the plaintiff's right buttock as the injured buttock, and the plaintiff's left buttock as the uninjured buttock. The plaintiff testified at trial that the photograph was taken during the summer of 2014, after her accident occurred. She further testified that it depicted her left buttock and did not document her injuries. A tertiary trauma report is a document prepared after a patient's emergency room visit to alert medical staff to any possible related or consequential injuries that were not reported by the patient. See Conn. Code Evid. § 8-3(1)(A). See General Statutes § 52-180.

12490401

STATE of Connecticut v. Robert John PURCELL

State v. Purcell

2017-07-04

AC 38206

883

904

166 A.3d 883

166

West's Atlantic Reporter, Third Series

Connecticut Appellate Court

Connecticut

2021-08-27T20:57:14.020814+00:00

Fastcase

STATE of Connecticut v. Robert John PURCELL

STATE of Connecticut v. Robert John PURCELL AC 38206 Appellate Court of Connecticut. Argued April 5, 2017 Officially released July 4, 2017 Richard Emanuel, for the appellant (defendant). Timothy J. Sugrue, assistant state's attorney, with whom, on the brief, were Patrick J. Griffin, state's attorney, and Seth R. Garbarsky, senior assistant state's attorney, for the appellee (state). Alvord, Keller and Dennis, Js.

11557

71775

ALVORD, J. The defendant, Robert John Purcell, appeals from the judgment of the trial court, rendered after a jury trial, of conviction of one count of risk of injury to a child in violation of General Statutes § 53-21(a)(1) and of two counts of risk of injury to a child in violation of General Statutes § 53-21(a)(2). The jury found the defendant not guilty of one count of sexual assault in the first degree in violation of General Statutes § 53a-70(a)(1), two counts of sexual assault in the second degree in violation of General Statutes § 53a-71(a)(1), and one count of risk of injury to a child in violation of § 53-21(a)(2). On appeal, the defendant raises various claims pertaining to testimony by the victim's mother that the victim had been diagnosed with post-traumatic stress disorder (PTSD testimony) and the trial court's denial of his motion to suppress statements that he made to the police during a custodial interrogation. With respect to the PTSD testimony, the defendant claims that allowing the victim's mother to testify about his medical conditions constituted a harmful evidentiary error, which was based on the PTSD testimony. With respect to his motion to suppress, the defendant claims that the interrogating detectives violated Edwards v. Arizona , 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981), by continuing to question him after he clearly and unambiguously invoked his right to counsel. Alternatively, the defendant argues that, even if his invocations were ambiguous or equivocal, and therefore ineffective under Edwards , article first, § 8, of the Connecticut constitution required the interrogating detectives to clarify his statements before questioning him further. We reject the defendant's claims and, accordingly, affirm the judgment of the trial court. On the basis of the evidence presented at trial, the jury reasonably could have found the following facts. In 2002, the victim's parents adopted the victim, who had several medical conditions, including autism. The defendant is the victim's uncle by marriage. The victim and his family had only a casual relationship with the defendant, whom they saw on average three to five times a year for holidays and family events. The victim initially viewed the defendant as "just an ordinary uncle," but, in 2010, when the victim was twelve and the defendant was seventy, the defendant began engaging in sexually inappropriate behavior with the victim. Three incidents in particular served as the basis for the defendant's conviction. In August, 2010, the victim, the defendant, and other family members went to lunch at a restaurant. After lunch, the defendant and the victim went to use the bathroom. While in the bathroom, the defendant began rubbing his penis and asked the victim to rub it. The victim refused, left the bathroom, and returned to the table where his family was sitting. In December, 2011, the victim and his father went to the defendant's house to visit his grandparents, who lived with the defendant and his wife. While the defendant and the victim's father spoke to the victim's grandfather in the basement apartment, the victim went upstairs to find the defendant's cats. The victim found one of the cats in the defendant's bedroom and began playing with it on the defendant's bed. Sometime thereafter, the defendant came into the bedroom and had contact with the victim's penis in a sexual and indecent manner. Finally, in August, 2013, the defendant and other members of the victim's family went to the victim's middle school to watch him perform in a school play. After the play, the defendant went to use the school bathroom, and the victim followed him inside so that he could remove his makeup. While in the bathroom, the defendant had contact with the victim's penis in a sexual and indecent manner. In September, 2013, the victim's mother found pictures on the victim's Nintendo DS game console that concerned her, including pictures of the clothed stomachs of the defendant and the victim's father and two pictures of circumcised penises. The victim's mother deleted the penis pictures. Later, she told the victim's father about the pictures she found and asked him to talk to the victim about them. Two weeks later, on Saturday, September 28, 2013, the victim's father engaged in a discussion with the victim about his sexuality. The victim's father asked if the victim liked girls or boys, to which the victim replied that he liked girls. The victim's father explained that, in the eyes of the Catholic Church, it is bad and a sin to like boys and that sex should occur between a man and a woman. The victim then acknowledged that he had started to like and think about boys but maintained, "[i]t's not my fault." The victim told his father that the defendant "has been having sex with me." The following Monday, September 30, 2013, after the victim left for school, the victim's parents went to the police station to report his allegation. While at the police station, the victim's parents received a phone call from the victim's school social worker informing them that the victim told him that his "Uncle Robert" was having sex with him. The defendant was subsequently arrested on the basis of the victim's allegations. The operative long form information charged the defendant with seven offenses in connection with four separate incidents. Relative to the August, 2010 incident, the defendant was charged with risk of injury to a child in violation of § 53-21(a)(1). Relative to the December, 2011 incident, the defendant was charged with sexual assault in the first degree in violation of § 53a-70(a)(1) and risk of injury to a child in violation of § 53-21(a)(2). Relative to an incident that allegedly occurred in April, 2012, the defendant was charged with sexual assault in the second degree in violation of § 53a-71(a)(1) and risk of injury to a child in violation of § 53-21(a)(2). Finally, relative to the August, 2013 incident, the defendant was charged with sexual assault in the second degree in violation of § 53a-71(a)(1) and risk of injury to a child in violation of § 53-21(a)(2). After a trial, a jury found the defendant guilty of the risk of injury counts with respect to the August, 2010, the December, 2011, and the August, 2013 incidents. The jury found the defendant not guilty of all counts of sexual assault and not guilty of the risk of injury count relative to the alleged incident in April, 2012. The defendant was sentenced to a total effective term of sixteen years of imprisonment, execution suspended after nine years, and ten years of probation. This appeal followed. Additional facts will be set forth as necessary. I We begin with the defendant's claims pertaining to the PTSD testimony. The defendant claims that the PTSD testimony was hearsay and constituted a harmful nonconstitutional evidentiary error, and, therefore, the court abused its discretion by denying his motion for a mistrial. In particular, the defendant argues that the PTSD testimony "constituted an [improper] endorsement or confirmation of [the victim's] credibility-and the defendant's guilt," and improperly embraced an ultimate issue in the case, i.e., whether some or all of the events the victim described actually happened, thereby causing his PTSD. The defendant argues that the prejudicial nature of this evidence was beyond the curative powers of the court because the PTSD diagnosis related to the victim's credibility, which was crucial to a successful prosecution because the state's case lacked physical evidence of sexual assault and portions of the victim's testimony "were highly implausible." The state responds that the court's "clear and forceful curative instructions . expressly broke any link between the PTSD diagnosis and the charges for which the defendant was on trial . and expressly removed [the PTSD] testimony . from evidence entirely." As a result, the state argues, the PTSD testimony did not constitute a harmful evidentiary error and the court did not abuse its discretion by denying the defendant's motion for a mistrial. We agree with the state. The following additional facts are relevant to these claims. The victim's mother was the first witness as the trial commenced. She began her testimony by providing background on the victim and his medical conditions, including his autism. During a colloquy with the prosecutor about other medical conditions that the victim had been diagnosed with, defense counsel objected on the ground of hearsay. The court overruled the objection but admonished the victim's mother to limit her testimony to her understanding of her son's medical conditions and not to testify about what someone else told her. After further discussion about the victim's medical conditions, the following colloquy occurred: "[The Prosecutor]: I think we're missing one or two other conditions, if the-if the court pleases. "The Court: Okay. That's the question then. What other conditions? "[The Prosecutor]: Fair enough. "The Court: Yeah. Go ahead. "[The Victim's Mother]: Okay. He also suffers from post-traumatic stress disorder, which was a later diagnosis after why we're here. I'm trying to think what else was on there. I think that's- "[The Prosecutor]: Well, let me ask you this. "[The Victim's Mother]: Yeah. Okay. "[The Prosecutor]: Does he take any meds currently? "[The Victim's Mother]: Yes, he does. "[The Prosecutor]: Okay. And what type of meds does he take? "[The Victim's Mother]: I'm sorry. He takes Concerta for [attention deficit hyperactivity disorder ]. He- "[The Prosecutor]: Is that one of the- "The Court: The jury can be excused for a minute." (Emphasis added.) Thereafter, the jury exited the courtroom, and the court excused the victim's mother from the witness stand. The court then engaged in a lengthy discussion with counsel about how to address the PTSD testimony. The court observed: "PTSD is somebody else's opinion that-that a person has suffered a stressful event and is reacting to it. So, it's almost a comment on circumstantial evidence of the credibility of the [victim]." Defense counsel explained that he had never seen any evidence that the victim had been diagnosed with PTSD and opined: "I don't know how we cure that at this point." Although the prosecutor acknowledged that he was aware of the PTSD diagnosis prior to the PTSD testimony, he maintained that he did not know that the mother would testify about it. The prosecutor further disputed the court's suggestion that the PTSD testimony constituted circumstantial evidence of the credibility of the victim because it was his understanding that the victim was prescribed medication for PTSD based on his symptoms, not based on a discussion with someone about a traumatic event. The court explained: "As soon as I heard that, I interpreted it-that, as someone treated the [victim]. She said it was related to this event. They determined that it was a valid event and diagnosed him with a reaction to this event. That's my-my interpretation of when a person says, he's treated for PTSD as a result of this event." After discussing the import of the statement by the victim's mother with the prosecutor further, the court asked defense counsel for his opinion. Defense counsel stated: "Your Honor, again, I was not prepared for that. I don't think it can be cured. I move for a mistrial at this point, Your Honor. I think it's an-she says that an expert has diagnosed him with this condition and it relates to the reason that we're here." The court and the parties continued to discuss how best to address the PTSD testimony. After a brief recess, the court issued the following ruling: "Well, I don't think that there's enough for a mistrial at this point. I'll give defense counsel the option. I'll give the strongest instruction possible on this issue of PTSD, and point out to [the jury], as the prosecutor has said, that there's really nothing in the record which would indicate that the-whatever that's about is related to this event. Now, PTSD may-may come up later in the trial, but everything is context. At this point, it's-you know, link it-I would think that the jury would link that to this event, and it's somebody else's opinion about- really, about the credibility of the complainant, or I'll ignore it, if that's what you want." Defense counsel stated, "I feel like I'm in a catch-22," because he did not want to highlight the testimony, but he decided that it would be "prudent that a curative instruction be administered." When the jury returned to the courtroom, the court gave the following instruction: "The witness will be back in a minute, but before she comes back, let me talk about-she said that there was-the PTSD-there was a PTSD diagnosis. That has nothing to do with the evidence in this-in this case. There's nothing in the record that links the PTSD to this case. Ignore it. Don't make any decision in this case, none, based on what she said about PTSD. Just completely and totally ignore it, like it isn't even part of the record, like it isn't even part of the evidence. Okay. All right. She can come back." (Emphasis added.) We begin our analysis by setting forth the legal principles that govern the defendant's claims. "When an improper evidentiary ruling is not constitutional in nature, the defendant bears the burden of demonstrating that the error was harmful.... [A] nonconstitutional error is harmless when an appellate court has a fair assurance that the error did not substantially affect the verdict.... [O]ur determination [of whether] the defendant was harmed by the trial court's . [evidentiary ruling] is guided by the various factors that we have articulated as relevant [to] the inquiry of evidentiary harmlessness . such as [1] the importance of the . testimony in the [state's] case, [2] whether the testimony was cumulative, [3] the presence or absence of evidence corroborating or contradicting the testimony . on material points, [4] the extent of cross-examination otherwise permitted, and, of course, [5] the overall strength of the [state's] case.... Most importantly, we must examine the impact of the evidence on the trier of fact and the result of the trial." (Internal quotation marks omitted.) State v. Rodriguez , 311 Conn. 80, 89, 83 A.3d 595 (2014) ; see also State v. Bouknight , 323 Conn. 620, 626, 149 A.3d 975 (2016) ("[t]he proper standard for determining whether an erroneous evidentiary ruling is harmless should be whether the jury's verdict was substantially swayed by the error" [internal quotation marks omitted] ). "In our review of the denial of a motion for mistrial, we have recognized the broad discretion that is vested in the trial court to decide whether an occurrence at trial has so prejudiced a party that he or she can no longer receive a fair trial. The decision of the trial court is therefore reversible on appeal only if there has been an abuse of discretion." (Internal quotation marks omitted.) State v. Berrios , 320 Conn. 265, 274, 129 A.3d 696 (2016). On appeal, we are cognizant of the fact that "[t]he trial court is better positioned than we are to evaluate in the first instance whether a certain occurrence is prejudicial to the defendant and, if so, what remedy is necessary to cure that prejudice.... In general, abuse of discretion exists when a court could have chosen different alternatives but has decided the matter so arbitrarily as to vitiate logic, or has decided it based on improper or irrelevant factors.... Therefore, [i]n those cases in which an abuse of discretion is manifest or where injustice appears to have been done, reversal is required." (Citation omitted; internal quotation marks omitted.) State v. O'Brien-Veader , 318 Conn. 514, 555, 122 A.3d 555 (2015). "While the remedy of a mistrial is permitted under the rules of practice, it is not favored.... If curative action can obviate the prejudice, the drastic remedy of a mistrial should be avoided." (Internal quotation marks omitted.) Id., at 554-55, 122 A.3d 555. "[I]n the absence of evidence that the jury disregarded any of the court's instructions, we presume that the jury followed the instructions." State v. A.M. , 324 Conn. 190, 215, 152 A.3d 49 (2016). Mere conjecture by the defendant is insufficient to rebut this presumption. State v. Gaffney , 209 Conn. 416, 422, 551 A.2d 414 (1988) ; State v. Reddick , 33 Conn.App. 311, 336 n.13, 635 A.2d 848 (1993), cert. denied, 228 Conn. 924, 638 A.2d 38 (1994). "The burden is on the defendant to establish that, in the context of the proceedings as a whole, the challenged testimony was so prejudicial, notwithstanding the court's curative instructions, that the jury reasonably cannot be presumed to have disregarded it." State v. Nash , 278 Conn. 620, 659-60, 899 A.2d 1 (2006). Having scrupulously reviewed the record in this case, we are not persuaded that the jury's verdict was substantially swayed by the PTSD testimony or that the court abused its discretion by denying the defendant's motion for a mistrial. The only time the victim's PTSD diagnosis was mentioned was during the testimony of the victim's mother. After that testimony, the court instructed the jury that the victim's PTSD diagnosis "has nothing to do with the evidence . in this case" and that "[t]here's nothing in the record that links the PTSD to this case." In addition, the court admonished the jury that it was not to "make any decision in this case, none, based on what [the victim's mother] said about PTSD" and that they were to "completely and totally ignore it, like it isn't even part of the record, like it isn't even part of the evidence." The defendant has offered no persuasive reason why this prompt, clear, and forceful instruction by the court was insufficient to break the link between the PTSD diagnosis and the charges for which the defendant was on trial and to prevent the jurors from considering this isolated statement by the victim's mother during their deliberations. We recognize that the state's case was not particularly strong, given the lack of physical or eyewitness evidence, and that, as a result, the victim's testimony was crucial to a successful prosecution. See State v. Maguire , 310 Conn. 535, 561, 78 A.3d 828 (2013) (sexual assault case not strong where "there was no physical evidence of abuse, and there was no eyewitness testimony other than that of the victim, whose testimony at times was both equivocal and vague"); State v. Ritrovato , 280 Conn. 36, 57, 905 A.2d 1079 (2006) ( "[a]lthough the absence of conclusive physical evidence of sexual abuse does not automatically render the state's case weak where the case involves a credibility contest between the victim and the defendant . a sexual assault case lacking physical evidence is not particularly strong, especially when the victim is a minor" [citation omitted] ). During its deliberations, the jury sent notes to the court requesting to hear the victim's police interview, which was not in evidence, and to rehear portions of the victim's testimony, which suggested that the question of the victim's credibility was a difficult one. See State v. Devalda , 306 Conn. 494, 510, 50 A.3d 882 (2012) ("[w]e have recognized that a request by a jury may be a significant indicator of their concern about evidence and issues important to their resolution of the case" [internal quotation marks omitted] ). In addition, the jury's finding that the defendant was not guilty of sexual assault with respect to any of the alleged incidents and not guilty of one of the counts of risk of injury indicates that the jury did not in fact find all aspects of the victim's testimony to be credible. See State v. Samuel M. , 159 Conn.App. 242, 255, 123 A.3d 44 (2015) (jury's finding of guilty of three counts of sexual assault in the first degree and one count of risk of injury and finding of not guilty of nine other counts of sexual assault in the first degree "demonstrates that [the jury] did reject a vast portion of [the victim's] testimony"), aff'd, 323 Conn. 785, 151 A.3d 815 (2016). Nevertheless, a jury may properly decide "what-all, none, or some-of a witness' testimony to accept or reject." (Internal quotation marks omitted.) State v. Victor C. , 145 Conn.App. 54, 61, 75 A.3d 48, cert. denied, 310 Conn. 933, 78 A.3d 859 (2013). The defendant has not persuaded us that the jury failed to heed the court's curative instruction and that its deliberations, therefore, were improperly influenced by the PTSD testimony. II We next address the defendant's claim that his rights under the fifth and fourteenth amendments to the United States constitution and article first, § 8, of the Connecticut constitution were violated when the court denied his motion to suppress statements that he made to the police during a custodial interrogation. The defendant argues that his statements (1) "See, if my lawyer was here, I'd, then I'd, we could talk. That's, you know, that's it," and, (2) "I'm supposed to have my lawyer here. You know that," constituted clear and unequivocal invocations of his right to counsel, requiring the detectives to cease all questioning until counsel was present. Alternatively, the defendant argues that even if the disputed statements were ambiguous or equivocal, article first, § 8, required the detectives to cease questioning immediately and to clarify his statements. We disagree with both contentions. The following additional facts are relevant to this claim. On October 17, 2013, Detective Michael Zerella and Sergeant John Ventura interviewed the defendant concerning the victim's allegations (first interview). The defendant agreed to come to the police station to discuss a complaint made against him, but he was not made aware of the nature of the allegations prior to arriving. When it became apparent that he was being accused of engaging in sexually inappropriate conduct with the victim, the defendant explained two instances that he could think of that served as the basis for the victim's complaint, but he maintained that nothing inappropriate happened. Approximately twenty minutes into the interview, Zerella wondered aloud whether, based on what he knew happened, "(a) you're a sick, perverted person or, or stuff, stuff accidentally happened." The following exchange occurred: "[The Defendant]: Let's, let's, let's stop this here. "[Zerella]: Or stuff, stuff happened. "[The Defendant]: It sounds, sounds, sounds, like I need a lawyer, right? "[Ventura]: It's up to you. "[The Defendant]: I know it. "[Ventura]: Why would you say that, though? That you need a lawyer? "[The Defendant]: Well, it sound, sounds like, well, you, uh . "[Ventura]: You could get up and leave any time you want. "[The Defendant]: That I could be, possibly be, a sick, perverted person. "[Zerella]: You didn't, you didn't let me, you didn't let me finish what I was gonna say. "[The Defendant]: But it sounds, sounds like you said it, I'm a, sounds like I might, might be a sick, perverted person. "[Zerella]: Or something innocently happened that, that, that didn't, that didn't mean to happen. That's all. I, we need to know that. That's why I need to know from you the truth. That's, that's what I'm trying to get at here." The interview continued. Approximately thirty minutes into the interview, however, when Zerella and Ventura began to press the defendant about why the victim would make up these allegations and give "specific incidents that Uncle Bobby and me had sex together," the defendant ended the interview because "[t]hings are getting strange now.... It's a little bit too strange." The defendant was permitted to leave the police station. On November 26, 2013, the defendant was arrested and charged with sexual assault in the first degree and risk of injury to a child. That same day, Zerella and Detective Sean Fairbrother interviewed the defendant (second interview). Zerella began the interview by reading the defendant his Miranda rights and asking him to complete a Miranda waiver form. The defendant asked: "I can still, after, after, after I initial that, I can still stop answering then?" Zerella replied: "Oh, anytime you want. No problem." After the defendant completed the Miranda waiver form, Zerella asked the defendant whether he knew why he had been arrested. The defendant explained that he had received a letter from the Department of Children and Families (department) informing him that he was being investigated for allegations of child abuse with respect to the victim. When Zerella asked what he discussed with the department, the defendant stated that he had never talked to anyone from the department. Zerella asked why, and the defendant explained: "Well, I asked my lawyer, and he said, well, just not to, I, I think that's, I think that's all together wrong, but that's what he said." He went on to elaborate that "my lawyer knows what's going on, you know? But, he says don't talk, I don't talk." When Zerella asked him how he felt about that, the defendant stated: "Well, it's like I said, I probably wouldn't be here now if I talked to them." Zerella suggested that if he had elaborated more and been more forthcoming during the first interview, they might not be here. After some discussion about whether and why Zerella called him a pervert during the first interview, Zerella stated: "Okay, well, we could, we could go on about the last interview if you want to, but-" The defendant interjected: "-I know, I know . let's . let's go on right, what, what more do you want to know?" After remarking that the defendant knew he was under arrest and that a judge and prosecutor had found probable cause to arrest him, the defendant observed that it was because "I didn't talk, that's why." Zerella remarked: "Well, you did, you did talk to me. You did tell me a few things." The defendant agreed but acknowledged, "not enough, I know." The defendant then expressed his belief that the victim's parents were acting wrongly by pressing charges against him and his concern that nobody would believe him over the victim's parents because they are both retired members of the police department. Zerella explained that it was the victim, not his parents, who was pressing charges and that he had already corroborated many of the victim's allegations. When Zerella asked the defendant to tell him some of the stories of his encounters with the victim, the defendant opined: "I don't know the stories that he made up." Fairbrother asked the defendant whether he knew the crime with which he was charged, and the defendant replied child abuse. Fairbrother explained that he was charged with sexual assault and risk of injury to a child. The defendant asked whether that means that the allegation is that he did something sexual with the victim, and Fairbrother said that it did. The defendant adamantly denied having sexual relations with the victim. When the detectives pressed him about whether there were any moments that could be misconstrued as inappropriate, the defendant responded: "Well, yes, there's what, well, I, I, my lawyer said not to talk about it but, no, it's." The detectives both stated that it was up to the defendant whether to talk with them. The defendant observed that Zerella had told him that there was a picture of him naked on the victim's Nintendo DS during the first interview, and he asked repeatedly whether the picture actually existed. When Zerella suggested that the defendant had personal knowledge that the picture existed, the defendant insisted that he did not and that he knew about the picture only because Zerella told him about it during the first interview. Zerella maintained that "there's other, other things, there's other instances beside that," and, after the defendant asked what, Zerella observed that "you just said, there [is] stuff but my lawyer told me not to talk about it." The defendant stated that he was referring to the picture. He further asked, "what else is there," and opined that he wanted to know "what they are pressing against me." Thereafter, the following exchange occurred: "[Zerella]: Alls I got to say is, tomorrow, when you go in to court, you're gonna look at a judge and a prosecutor.... And they're gonna look at all this stuff, all these allegations that were made against you. . That it's a, it's a very, very strong case against you. Very, very strong. They're gonna look at it and say, listen, this, this man, because they don't know you from Adam, but they're just gonna see you. "[The Defendant]: Right. Well, they're gonna know my name. "[Zerella]: As, as a, as a, as a mean, as a mean individual. "[The Defendant]: Right. "[Zerella]: In, in reality- "[Fairbrother]: As a predator. "[Zerella]: As a predator, who, who's technically not cooperating and not saying, yeah, this is, this is what happened, this is probably why he thinks, thinks the way he does or- "[The Defendant]: -See, if my lawyer was here, I'd, then I'd, we could talk. That's, you know, that's it. "[Zerella]: It's up to you. You could- "[The Defendant]: -I know it. I know, I know, I know it. "[Zerella]: You could (a), you could (a) talk to me or you could (b) not talk to me. "[The Defendant]: I know it but, I'm trying, you know I, I'm supposed to have my lawyer here. You know that. "[Zerella]: You don't, you don't have to, it's, it's- "[Fairbrother]: It's up to you. "[Zerella]: It's up to you, man. Some people talk to me without one, some people want one it . it's all up to you, man . I'm just affording you that opportunity, that's all. "[Fairbrother]: The problem is that, at your age, you don't want to go to prison. "[The Defendant]: [indiscernible] "[Fairbrother]: Okay? You don't want to go to prison. If there was some inappropriate things with this child, something that can be explained, maybe you helped him go to the bathroom, maybe, you know, he makes some sort of crazy allegation or does some sort of craziness, he's not- "[Zerella]: -Maybe he- "[Fairbrother]: He doesn't have a hundred percent capacity. If you're in a, now, now is the time to talk about it, now is to get your half out there. "[Zerella]: Yeah, maybe he came at you. "[Fairbrother]: -You know if- "[Zerella]: Maybe he came at you. "[Fairbrother]: You know, that, that's all we're offering you, the opportunity to, because it's the last time we're gonna be able to talk. "[Zerella]: That's all. "[Fairbrother]: You know, that's all, and, and, you know, if- "[The Defendant]: -Oh, geez, I don't know- "[Fairbrother]: -If you want to have an attorney- "[The Defendant]: -I, I don't think it's- "[Fairbrother]: -That's fine. You can, but- "[The Defendant]: -that's right, right or wrong, but, uh, real, really. "[Zerella]: Just, just affording you the opportunity, sir, because after, after today, you're never gonna be able to, to give me or any other cop your story. You're gonna let, a judge is gonna look at ya and say, some serious charges against you. You could go to jail for the rest of your life. "[The Defendant]: All right, now what's, what, what, what, uh, all right, I'll, I'll, I'll talk. Uh, what do you, what do you, what do you want to know? Tell, tell me, what do you want to know." (Emphasis added.) Thereafter, the interview continued without further mention of counsel. On June 4, 2014, the defendant filed a generic motion to suppress any oral or written statements that he gave to the police pursuant to the fifth, sixth, and fourteenth amendments to the United States constitution and article first, § 8, of the Connecticut constitution. On April 28, 2015, the defendant filed a second motion to suppress the statements that he made during the second interview, pursuant to the fifth and fourteenth amendments and article first, § 8, on the grounds that his statement "was taken against his rights to counsel, to remain silent, and self-incrimination." The court was provided with a video recording and transcript of the second interview. A suppression hearing was held during trial on April 29, 2015, during which the court heard the brief testimony of Zerella and argument from counsel. At the end of the hearing, the court issued an oral ruling denying the defendant's motion to suppress. A We begin by setting forth the legal principles that guide our analysis of the defendant's claim that the detectives violated Edwards by continuing to question him after he clearly and unequivocally invoked his right to counsel during the second interview. In Miranda v. Arizona , 384 U.S. 436, 469-73, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), the United States Supreme Court held that "a suspect subject to custodial interrogation has the right to consult with an attorney and to have counsel present during questioning, and that the police must explain this right to him before questioning begins. . If the suspect effectively waives his right to counsel after receiving the Miranda warnings, law enforcement officers are free to question him." (Citations omitted.) Davis v. United States , 512 U.S. 452, 457-58, 114 S.Ct. 2350, 129 L.Ed.2d 362 (1994). In Edwards v. Arizona , supra, 451 U.S. at 484-85, 101 S.Ct. 1880, however, the United States Supreme Court determined that the "traditional standard for waiver was not sufficient to protect a suspect's right to have counsel present at a subsequent interrogation if he had previously requested counsel ." Maryland v. Shatzer , 559 U.S. 98, 104, 130 S.Ct. 1213, 175 L.Ed.2d 1045 (2010). The court therefore superimposed a " 'second layer of prophylaxis' " to prevent the police from badgering a defendant into waiving his previously asserted Miranda rights. Id. ; Davis v. United States , supra, 512 U.S. at 458, 114 S.Ct. 2350. Under the Edwards rule, if a suspect requests counsel at any time during the interview, he cannot be subjected to further questioning until an attorney has been made available, unless the suspect himself reinitiates conversation or a fourteen day break in custody has occurred. See Maryland v. Shatzer , supra, at 110, 130 S.Ct. 1213 ; Edwards v. Arizona , supra, at 484-85, 101 S.Ct. 1880. "The applicability of the rigid prophylactic rule of Edwards requires courts to determine whether the accused actually invoked his right to counsel.... To avoid difficulties of proof and to provide guidance to officers conducting interrogations, this is an objective inquiry.... Invocation of the Miranda right to counsel requires, at a minimum, some statement that can reasonably be construed to be an expression of a desire for the assistance of an attorney.... But if a suspect makes a reference to an attorney that is ambiguous or equivocal in that a reasonable officer in light of the circumstances would have understood only that the suspect might be invoking the right to counsel, our precedents do not require the cessation of questioning.... "Rather, the suspect must unambiguously request counsel. As we have observed, a statement either is such an assertion of the right to counsel or it is not.... Although a suspect need not speak with the discrimination of an Oxford don . he must articulate his desire to have counsel present sufficiently clearly that a reasonable police officer in the circumstances would understand the statement to be a request for an attorney. If the statement fails to meet the requisite level of clarity, Edwards does not require that the officers stop questioning the suspect." (Citations omitted; emphasis in original; internal quotation marks omitted.) Davis v. United States , supra, 512 U.S. at 458-59, 114 S.Ct. 2350. In the present case, we conclude that a reasonable police officer in this circumstance would not have understood the disputed statements-" See, if my lawyer was here, I'd, then I'd, we could talk. That's, you know, that's it," and, "I'm supposed to have my lawyer here. You know that"-to be requests for an attorney. At the outset of the interview, the defendant was informed of his Miranda rights and waived them in writing. Shortly thereafter, the defendant told the detectives that he had consulted an attorney after he received a notice from the department concerning its investigation into the victim's allegations and that the attorney advised him "not to talk about it." The defendant repeatedly expressed his misgivings with that advice and his belief that he would not have been arrested had he spoken with the department concerning the victim's allegations. Moreover, after referencing his attorney's advice "not to talk about it," the defendant continued to talk to the detectives about the victim's allegations. Indeed, on one occasion, he opined that his attorney did not want him to talk about any moments that could be misconstrued as inappropriate, e.g., the picture purportedly on the victim's Nintendo DS, and then he proceeded to ask about the picture Zerella mentioned during the first interview. Finally, in the moments leading up to the disputed statements, it was evident that the defendant wanted both to avoid discussing his side of the story and to obtain more information about the victim's allegations and the evidence against him. In light of these preceding circumstances, the defendant's first reference to counsel-"See, if my lawyer was here, I'd, then I'd, we could talk. That's, you know, that's it"-"lacked the clear implication of a present desire to consult with counsel ." Lord v. Duckworth , 29 F.3d 1216, 1221 (7th Cir. 1994). This statement might well have been an attempt to persuade the detectives to limit the scope of the interview to the victim's allegations and the detectives' evidence, a reiteration of his attorney's advice that he should not discuss his side of the story without counsel present, a request for an attorney, or something else entirely. Because of this ambiguity in the statement, it cannot be considered an effective invocation of the right to counsel under Edwards. The defendant argues that his next reference to counsel-"I'm supposed to have my lawyer here. You know that"-clarified any ambiguity. We disagree. This statement could also mean that the defendant simply believed that it was prudent for him to have an attorney present when speaking to authorities, not that he actually wanted to speak to an attorney before proceeding further with the interview. Accordingly, we conclude that the court properly denied the defendant's motion to suppress because he did not clearly and unequivocally invoke his right to counsel and, therefore, the detectives were not required to cease questioning him. B Alternatively, the defendant argues that even if his invocation of the right to counsel was ambiguous or equivocal, the self-incrimination and due process clauses of article first, § 8, of our state constitution required the detectives to cease questioning immediately and to clarify his ambiguous references to counsel. The defendant seeks review of this unpreserved state constitutional claim pursuant to State v. Golding , 213 Conn. 233, 239-40, 567 A.2d 823 (1989), as modified by In re Yasiel R. , 317 Conn. 773, 781, 120 A.3d 1188 (2015). Although we conclude that the defendant's claim is reviewable pursuant to the first and second prongs of Golding , the defendant is not entitled to reversal under the third prong of Golding because our state constitution does not provide greater protection than the federal constitution in this context. As a matter of state constitutional law, interrogating officers are not required to clarify ambiguous or equivocal references to an attorney. This conclusion does not diminish, however, our admonition to law enforcement that it is the better practice to clarify such issues at the time of interrogation rather than in after-the-fact arguments before the courts. "It is well established that federal constitutional and statutory law establishes a minimum national standard for the exercise of individual rights and does not inhibit state governments from affording higher levels of protection for such rights." (Internal quotation marks omitted.) State v. Saturno , 322 Conn. 80, 102, 139 A.3d 629 (2016). In determining the contours of the protections provided by our state constitution, we employ a multifactor approach that our Supreme Court first adopted in State v. Geisler , 222 Conn. 672, 684-86, 610 A.2d 1225 (1992). The factors that we consider are (1) the text of the relevant constitutional provisions; (2) persuasive federal precedents; (3) related Connecticut precedents; (4) persuasive precedents of other state courts; (5) historical insights into the intent of the constitutional framers; and (6) relevant public policies. State v. Santiago , 318 Conn. 1, 17-18, 122 A.3d 1 (2015). We address each factor in turn. 1 The first factor, the text of the relevant constitutional provisions, favors the state. Although the wording of the state and federal self-incrimination clauses is different, our Supreme Court has repeatedly "declined to construe this provision more broadly than the right provided in the fifth amendment to the United States constitution." State v. Lockhart , supra, 298 Conn. at 552, 4 A.3d 1176 ; State v. Castonguay , 218 Conn. 486, 495-96, 590 A.2d 901 (1991) ; State v. Asherman , 193 Conn. 695, 711-15, 478 A.2d 227 (1984), cert. denied, 470 U.S. 1050, 105 S.Ct. 1749, 84 L.Ed.2d 814 (1985). "The due process clauses of the state and federal constitutions are virtually identical." State v. Ledbetter , 275 Conn. 534, 562, 881 A.2d 290 (2005), cert. denied, 547 U.S. 1082, 126 S.Ct. 1798, 164 L.Ed.2d 537 (2006). As a result, our Supreme Court has previously recognized that the similarity between the two provisions "support[s] a common source and, thus, a common interpretation of the provisions." (Footnote omitted.) Id. ; see also State v. Wade , 297 Conn. 262, 288, 998 A.2d 1114 (2010). 2 The second Geisler factor, persuasive federal precedents, favors the state as well. In Davis v. United States , supra, 512 U.S. at 459, 114 S.Ct. 2350, the United States Supreme Court "decline[d] [the] petitioner's invitation to extend Edwards and require law enforcement officers to cease questioning immediately upon the making of an ambiguous or equivocal reference to an attorney." Instead, the Davis court adopted a bright-line approach: "If the suspect's statement is not an unambiguous or unequivocal request for counsel, the officers have no obligation to stop questioning him." Id., at 461-62, 114 S.Ct. 2350. Moreover, the United States Supreme Court has "frequently emphasized that the Edwards rule is not a constitutional mandate, but judicially prescribed prophylaxis. . Because Edwards is our rule, not a constitutional command, it is our obligation to justify its expansion. . A judicially crafted rule is justified only by reference to its prophylactic purpose . and applies only where its benefits outweigh its costs ." (Citations omitted; internal quotation marks omitted.) Maryland v. Shatzer , supra, 559 U.S. at 105-106, 130 S.Ct. 1213 ; id., at 108-109, 130 S.Ct. 1213 (declining to extend Edwards to prevent officers from approaching suspects who have invoked their right to counsel after there has been break in custody because of diminished benefits and increased costs, namely, "voluntary confessions it excludes from trial, and the voluntary confessions it deters law enforcement officers from even trying to obtain"). 3 The third Geisler factor, related Connecticut precedents, favors the state. The defendant is correct that this state has a long history of commitment to the principles of Miranda , as evidenced by the fact that our Supreme Court recognized the constitutional significance of Miranda long before the United States Supreme Court. Compare State v. Ferrell , 191 Conn. 37, 40-41, 463 A.2d 573 (1983) ("[a]lthough the Miranda warnings were originally effective in state prosecutions only because they were a component of due process of law under the fourteenth amendment . they have also come to have independent significance under our state constitution" [citations omitted] ), with Dickerson v. United States , 530 U.S. 428, 432, 444, 120 S.Ct. 2326, 147 L.Ed.2d 405 (2000) (holding Miranda is a constitutional rule). Nevertheless, our Supreme Court has consistently held that our self-incrimination and due process clauses do not afford greater protection than the federal due process and self-incrimination clauses. See part III B 1 of this opinion. As a result, our courts have previously declined to utilize our state constitution to afford suspects greater protections during custodial interrogations than the federal constitution affords. E.g., State v. Lockhart , supra, 298 Conn. at 543-44, 4 A.3d 1176 (declining to require all custodial interrogations to be recorded); State v. Lawrence , 282 Conn. 141, 158-59, 920 A.2d 236 (2007) (declining to require higher standard of proof to establish voluntariness of confession); State v. Piorkowski , 243 Conn. 205, 221, 700 A.2d 1146 (1997) (declining to require presence of counsel for valid waiver of right to counsel when defendant initiates contact with police and has been properly advised of his Miranda rights); State v. Doyle , 104 Conn.App. 4, 15-16 n.4, 931 A.2d 393 (declining to extend warnings required by Miranda to noncustodial police interviews), cert. denied, 284 Conn. 935, 935 A.2d 152 (2007). Indeed, our Supreme Court has declined to deviate from federal precedent specifically in the context of a defendant's invocation of the right to counsel under Miranda. E.g., State v. Barrett , 205 Conn. 437, 447, 448, 534 A.2d 219 (1987) (state constitution, like federal constitution, permits a distinction between suspect's willingness to make uncounseled oral statements and his disinclination to make uncounseled written statements); State v. Hafford , 252 Conn. 274, 293-94, 746 A.2d 150 (declining to hold that, as a matter of state constitutional law, when officers have honored an equivocal request for counsel by not asking suspect any further questions and suspect subsequently initiates contact with police, they cannot resume interrogation without first clarifying earlier equivocal request for counsel), cert. denied, 531 U.S. 855, 121 S.Ct. 136, 148 L.Ed.2d 89 (2000). Nonetheless, the defendant argues that the rule he proposes finds support in other aspects of our Supreme Court's jurisprudence. The precedent relied on by the defendant, however, is unpersuasive. First, the defendant relies on State v. Ferrell , supra, 191 Conn. at 37, 463 A.2d 573, to support his contention that article first, § 8, affords greater protection than the federal constitution in the context of the right to counsel under Miranda. In Ferrell , our Supreme Court held that police officers may not testify regarding statements they overheard while the defendant, who was in custody, was speaking with his attorney; id., at 41-42, 463 A.2d 573 ; reasoning that "the right to consult a lawyer before being interrogated is meaningless if the accused cannot privately and freely discuss the case with that attorney." Id., at 45, 463 A.2d 573. The court's holding, however, was based on the due process clauses of both the state and federal constitutions, which it treated as being coextensive with one another. Id., at 41, 45, 463 A.2d 573 ; see also State v. Lockhart , supra, 298 Conn. at 554, 4 A.3d 1176 ( Ferrell does not "[indicate] that our state constitution imposes greater protections with regard to the advisement of Miranda rights or requires additional corroboration for admission of testimony describing such an advisement"). The defendant also relies on State v. Stoddard , 206 Conn. 157, 161, 537 A.2d 446 (1988). In that case, our Supreme Court concluded that our state constitution, unlike the federal constitution, imposes a duty on officers who are holding a suspect for custodial interrogation to act reasonably, diligently, and promptly to apprise the suspect of efforts by counsel to provide pertinent and timely legal assistance. Id., at 163, 537 A.2d 446 ; cf. Moran v. Burbine , 475 U.S. 412, 422-23, 106 S.Ct. 1135, 89 L.Ed.2d 410 (1986) (declining to impose such a duty). The court further held that a waiver of Miranda rights may, depending upon the totality of the circumstances, be vitiated by the failure of the police to fulfill this duty. State v. Stoddard , supra, at 163, 537 A.2d 446. The court reasoned that the fact that "a suspect validly waives the presence of counsel only means for the moment the suspect is foregoing the exercise of that conceptual privilege. . Faced with a concrete offer of assistance, however, a suspect may well decide to reclaim his or her continuing right to legal assistance. To pass up an abstract offer to call some unknown lawyer is very different from refusing to talk with an identified attorney actually available to provide at least initial assistance and advice, whatever might be arranged in the long run. A suspect indifferent to the first offer may well react quite differently to the second.... We cannot therefore conclude that a decision to forego the abstract offer contained in Miranda embodies an implied rejection of a specific opportunity to confer with a known lawyer." (Citations omitted; internal quotation marks omitted.) Id., at 168, 537 A.2d 446. Importantly, the conclusion in Stoddard was influenced by Connecticut's "long history of recognizing the significance of the right to counsel ." Id., at 164, 537 A.2d 446 ; see also id., at 164-66, 537 A.2d 446. The court acknowledged that "this history specifically illuminates the right to counsel that attaches after the initiation of adversary judicial proceedings," but it concluded that this history also informed the due process concerns raised by police interference with counsel's access to a custodial suspect. Id., at 166, 537 A.2d 446. In particular, the court reasoned that because the police are responsible for the suspect's isolation during a custodial interrogation, they "may not preclude the suspect from exercising the choice to which he is constitutionally entitled by responding in less than forthright fashion to the efforts by counsel to contact the suspect." Id., at 167, 537 A.2d 446. Our Supreme Court clarified the narrow confines of Stoddard in State v. Whitaker , 215 Conn. 739, 751-52, 578 A.2d 1031 (1990). In that case, the defendant, who was a minor at the time of the custodial interrogation in question, argued that Stoddard required officers to inform him that his mother had called the police station and told them that she wanted him to speak with an attorney. Id., at 751, 578 A.2d 1031. The court rejected the defendant's claim, stating that " Stoddard prohibited only police interference in the attorney-client relationship." (Internal quotation marks omitted.) Id., at 752, 578 A.2d 1031. The court considered the advice of the defendant's mother to be "more akin to an abstract offer to call some unknown lawyer than the concrete offer of [legal] assistance that Stoddard protects." (Internal quotation marks omitted.) Id. Like Whitaker , the present case does not directly implicate the attorney-client relationship or to involve a concrete offer of legal assistance. Instead, the defendant is asking this court to adopt a rule that would require interrogating officers to clarify equivocal or ambiguous references to an attorney in order to determine whether the defendant wants to invoke his right to counsel. Stoddard does not support the proposition that interrogating officers have a duty to help suspects calibrate their self-interest in deciding whether to speak or to invoke their Miranda rights. See State v. Stoddard , supra, 206 Conn. at 168, 537 A.2d 446 ("the police have no general duty to 'supply a suspect with a flow of information to help him calibrate his self-interest in deciding whether to speak or stand by his rights' "); see also State v. Lockhart , supra, 298 Conn. at 554, 4 A.3d 1176 ( Stoddard does not "[indicate] that our state constitution imposes greater protections with regard to the advisement of Miranda rights or requires additional corroboration for admission of testimony describing such an advisement"). Finally, the defendant relies on pre- Davis precedent, in which our Supreme Court held that the federal constitution requires police officers upon the defendant's making of an ambiguous or equivocal reference to an attorney to cease questioning immediately and to clarify the statement. State v. Anderson , 209 Conn. 622, 627, 553 A.2d 589 (1989) ; State v. Acquin , 187 Conn. 647, 673-75, 448 A.2d 163 (1982), cert. denied, 463 U.S. 1229, 103 S.Ct. 3570, 77 L.Ed.2d 1411 (1983), overruled in part by Davis v. United States , 512 U.S. 452, 459, 114 S.Ct. 2350, 129 L.Ed.2d 362 (1994) ; see also State v. Anonymous , 240 Conn. 708, 723 n.16, 694 A.2d 766 (1997). The defendant argues that because of this precedent, he "is not asking this court to 'go out on a limb' to make 'new law,' but is rather asking the court to embrace the 'old law'-and to refuse to follow Davis' step backward with respect to the Miranda right to counsel." (Emphasis in original.) The problem with the defendant's argument is that neither Anderson nor Acquin illuminate the issue presently before this court-whether (and why) our state constitution affords greater protection than the federal constitution in this context-because neither case adopted the clarification approach because of state specific factors. Instead, our Supreme Court adopted the clarification approach because, at the time, the United States Supreme Court had not provided guidance on how to address ambiguous or equivocal references to counsel and the trend among federal courts was to require clarification. State v. Anderson , supra, at 627-28, 553 A.2d 589 ; State v. Acquin , supra, at 673-75, 448 A.2d 163. 4 The fourth Geisler factor, persuasive precedents of other state courts, favors the state. The majority of states to address the specific issue of whether their state constitutions require interrogating officers to clarify ambiguous invocations of the right to counsel have followed Davis and declined to require clarification. E.g., People v. Crittenden , 9 Cal.4th 83, 129, 885 P.2d 887, 36 Cal.Rptr.2d 474 (1994), cert. denied, 516 U.S. 849, 116 S.Ct. 144, 133 L.Ed.2d 90 (1995) ; State v. Owen , 696 So.2d 715, 719 (Fla.), cert. denied, 522 U.S. 1002, 118 S.Ct. 574, 139 L.Ed.2d 413 (1997) ; Taylor v. State , 689 N.E.2d 699, 704 (Ind. 1997) ; State v. Morgan , 559 N.W.2d 603, 609 (Iowa 1997) ; State v. Morris , 255 Kan. 964, 981, 880 P.2d 1244 (1994) ; Franklin v. State , 170 So.3d 481, 491 (Miss. 2015) ; State v. Nixon , 369 Mont. 359, 368-69, 298 P.3d 408 (2013) ; State v. Perry , 146 N.M. 208, 217, 207 P.3d 1185 (App. 2009) ; State v. Saylor , 117 S.W.3d 239, 245-46 (Tenn. 2003), cert. denied, 540 U.S. 1208, 124 S.Ct. 1483, 158 L.Ed.2d 133 (2004) ; State v. Panetti , 891 S.W.2d 281, 283-84 (Tex.App.-San Antonio 1994) ; State v. Horton , 195 Wash.App. 202, 216-17, 380 P.3d 608 (2016), review denied, 187 Wash.2d 1003, 386 P.3d 1083 (2017) ; State v. Farley , 192 W.Va. 247, 256, 452 S.E.2d 50 (1994) ; State v. Jennings , 252 Wis.2d 228, 249, 647 N.W.2d 142 (2002) ; see Commonwealth v. Sicari , 434 Mass. 732, 746 n.10, 752 N.E.2d 684 (2001) (Supreme Judicial Court of Massachusetts "content to interpret" applicable provision in state constitution as fifth amendment has been interpreted by United States Supreme Court), cert. denied, 534 U.S. 1142, 122 S.Ct. 1096, 151 L.Ed.2d 993 (2002). In many of these cases, the court's decision was driven by the fact that the relevant state constitutional provisions were virtually identical to and had been previously treated as coextensive with the relevant federal constitutional provisions. E.g., People v. Crittenden , supra, at 129, 36 Cal.Rptr.2d 474, 885 P.2d 887 ; State v. Morris , supra, at 979-80, 880 P.2d 1244 ; State v. Saylor , supra, at 245-46 ; State v. Horton , supra, at 216-17, 380 P.3d 608 ; State v. Jennings , supra, at 248-49, 647 N.W.2d 142 ; see also State v. Perry , supra, at 216-17, 207 P.3d 1185 (defendant failed to show federal analysis is flawed or there is structural difference between relevant state and federal provisions). We have found only four states that have rejected Davis on the grounds that their state constitutions provide greater protection than the federal constitution in this context. See Steckel v. State , 711 A.2d 5, 10-11 (Del. 1998) ; State v. Hoey , 77 Hawai'i 17, 36, 881 P.2d 504 (1994) ; State v. Risk , 598 N.W.2d 642, 648-49 (Minn. 1999) ; State v. Charboneau , 323 Or. 38, 58-60, 913 P.2d 308 (1996). These decisions are unpersuasive, however, because they appear to be driven by judicial preference for the clarification approach rather than by a meaningful distinction between the state and federal constitutions. Indeed, none of the decisions involved any meaningful state constitutional analysis, such as we are required to perform pursuant to the Geisler decision. 5 The parties agree that the fifth Geisler factor, historical insights into the intent of the constitutional framers, is neutral because Miranda warnings did not exist in 1818 when our constitution was originally enacted. 6 The sixth Geisler factor, relevant public policies, is neutral because there are policy arguments in favor of both the Davis bright-line approach and the clarification approach. The comparative merit of each approach was thoroughly explored in Davis. Compare Davis v. United States , supra, 512 U.S. at 458-62, 114 S.Ct. 2350 (adopting the bright-line approach) with id., at 469-75, 114 S.Ct. 2350 (Souter, J., concurring in the judgment) (advocating for the clarification approach). In addition, numerous academic works have addressed the impact of Davis as well as the merits of the bright-line and clarification approaches. E.g., M. Strauss, " Understanding Davis v. United States," 40 Loy. L.A. L. Rev. 1011, 1012-13 (2007) (analyzing comparative impact of Davis on women, minorities, and Caucasian men); T. Levenberg, " Fifth Amendment-Responding to Ambiguous Requests for Counsel During Custodial Interrogations Davis v. United States, 114 S.Ct. 2350 (1994)," 85 J. Crim. L. & Criminology 962, 963 (1995) (analyzing merits of bright-line, clarification, and per se approaches and proposing modified clarification approach); see also State v. Effler , 769 N.W.2d 880, 896 (Iowa) (Appel, J., specially concurring) (collecting academic and judicial writings criticizing Davis ), cert. denied, 558 U.S. 1096, 130 S.Ct. 1024, 175 L.Ed.2d 627 (2009). These policy perspectives need not be repeated here except to note that the policy debate among the legal and academic communities reflects the fact that " Miranda represents a compromise between the need of the state for effective interrogation of a suspect to solve a crime and the right of the individual to say nothing that may incriminate him." State v. Stoddard , supra, 206 Conn. at 181, 537 A.2d 446 (Shea, J. , dissenting); accord Davis v. United States , supra, at 460-61, 114 S.Ct. 2350 ; Davis v. United States , supra, at 469, 114 S.Ct. 2350 (Souter, J., concurring in the judgment). In essence, the bright-line approach adopted by Davis prioritizes society's interest in effective law enforcement whereas the clarification approach the defendant advocates prioritizes the individual's right not to say something that may incriminate him by securing the advice of counsel. Having performed a complete Geisler analysis of the defendant's state constitutional claim in this appeal, we conclude that article first, § 8, does not provide greater protection than the federal constitution with respect to ambiguous or equivocal references to counsel during a custodial interrogation. Having reviewed our own constitutional language, precedents and history, we cannot discern any meaningful difference between the state and federal constitutional protections against compulsory self-incrimination that would justify or require a "third layer of prophylaxis" that the United States Supreme Court has found to be unnecessary. Moreover, the vast majority of our sister states have concluded that their state constitutions do not afford greater protections than the federal constitution in this context. Although some states have elected to adopt the clarification approach as a matter of state constitutional law, the reasoning in those decisions is not persuasive. Finally, although the defendant's position finds some support in the academic and legal communities, we do not believe that countervailing policy arguments are sufficient justification to diverge from our Supreme Court's well established precedent holding that our self-incrimination and due process clauses are coextensive with the federal self-incrimination and due process clauses. We therefore decline to adopt a new state constitutional standard at this time. Nonetheless, we believe that it is appropriate in this opinion to reiterate the advice offered by the United States Supreme Court in Davis : "[W]hen a suspect makes an ambiguous or equivocal statement it will often be good police practice for the interviewing officers to clarify whether or not he actually wants an attorney . Clarifying questions help protect the rights of the suspect by ensuring that he gets an attorney if he wants one, and will minimize the chance of a confession being suppressed due to subsequent judicial second-guessing as to the meaning of the suspect's statement regarding counsel." (Emphasis added.) Davis v. United States , supra, 512 U.S. at 461, 114 S.Ct. 2350. The judgment is affirmed. In this opinion the other judges concurred. General Statutes § 53-21 provides in relevant part: "(a) Any person who (1) wilfully . causes or permits any child under the age of sixteen years to be placed in such a situation that . the morals of such child are likely to be impaired . or (2) has contact with the intimate parts . of a child under the age of sixteen years . in a sexual and indecent manner likely to impair the health or morals of such child ." "Intimate parts" means, in relevant part, "the genital area ." General Statutes § 53a-65(8). In accordance with our policy of protecting the privacy interests of the victims of the crime of risk of injury to a child, we decline to identify the victim or others through whom the victim's identity may be ascertained. See General Statutes § 54-86e. The victim's mother testified that he is in the middle of the autism scale and considered high functioning. The defendant is not circumcised. At trial, the victim's father maintained that he spoke to the victim about his sexuality because his wife found pictures of penises on the victim's Nintendo DS. In his statement to the police on September 30, 2013, however, he stated that he spoke to the victim about his sexuality because his wife found pictures of his stomach on the victim's Nintendo DS and the victim was always rubbing and touching his stomach. The victim's father did not mention in his police statement that his wife had found pictures of penises on the victim's Nintendo DS. We observe, without further comment, that the victim's mother worked for seven years as a police officer in New Haven and approximately twenty-two years in adult probation. She further acknowledged at trial that, in that capacity, she had testified "countless" times and was comfortable in a courtroom setting. The defendant further asks this court to exercise its supervisory authority over the administration of justice to implement a cease and clarify rule. "It is well settled that [a]ppellate courts possess an inherent supervisory authority over the administration of justice." (Internal quotation marks omitted.) State v. Elson, 311 Conn. 726, 764, 91 A.3d 862 (2014). "The exercise of our supervisory powers is an extraordinary remedy to be invoked only when circumstances are such that the issue at hand, while not rising to the level of a constitutional violation, is nonetheless of utmost seriousness, not only for the integrity of a particular trial but also for the perceived fairness of the judicial system as a whole." (Internal quotation marks omitted.) Id., at 765, 91 A.3d 862. The defendant's request implicates the scope of our supervisory authority, however, "because we normally exercise this power with regard to the conduct of judicial actors." State v. Lockhart, 298 Conn. 537, 576, 4 A.3d 1176 (2010). Although imposing a cease and clarify rule on law enforcement would directly affect the admissibility of evidence, which is surely within the authority of this court, it would also directly implicate the activities of law enforcement agencies. Accordingly, we decline to invoke our supervisory authority in the present case. Accord State v. Fernandez, 52 Conn.App. 599, 615, 728 A.2d 1 (declining defendant's invitation to exercise our supervisory authority "[b]ecause acceptance of the defendant's invitation would require this court to exercise our supervisory powers outside the conduct of judicial actors"), cert. denied, 249 Conn. 913, 733 A.2d 229, cert. denied, 528 U.S. 939, 120 S.Ct. 348, 145 L.Ed.2d 272 (1999). See Miranda v. Arizona, 384 U.S. 436, 478-79, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). Zerella testified at trial that "I actually didn't have a picture of [the defendant] . without any clothes on. I never did." He explained that lying to a suspect is a tactic often used by members of law enforcement to obtain information or an admission from a suspect. Although the defendant invoked his right to counsel under the Connecticut constitution, he did not argue before the trial court that the Connecticut constitution affords greater protection than the federal constitution with respect to ambiguous invocations of the right to counsel during custodial interrogations. Pursuant to Practice Book § 64-1(a)(4), the defendant has provided this court with a signed transcript of the court's oral ruling. Our standard of review of a trial court's findings and conclusions in connection with a motion to suppress is well defined. "A finding of fact will not be disturbed unless it is clearly erroneous in view of the evidence and pleadings in the whole record . [W]hen [however] a question of fact is essential to the outcome of a particular legal determination that implicates a defendant's constitutional rights, and the credibility of witnesses is not the primary issue, our customary deference to the trial court's factual findings is tempered by a scrupulous examination of the record to ascertain that the trial court's factual findings are supported by substantial evidence.... [When] the legal conclusions of the court are challenged, [our review is plenary, and] we must determine whether they are legally and logically correct and whether they find support in the facts set [forth] in the memorandum of decision ." (Internal quotation marks omitted.) State v. Gonzalez, 302 Conn. 287, 295-96, 25 A.3d 648 (2011). "Under Golding, a defendant can prevail on a claim of constitutional error not preserved at trial only if all of the following conditions are met: (1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation . exists and . deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt. In the absence of any one of these conditions, the defendant's claim will fail." (Internal quotation marks omitted.) State v. Dixon, 318 Conn. 495, 511, 122 A.3d 542 (2015). "The first two steps in the Golding analysis address the reviewability of the claim, while the last two steps involve the merits of the claim." (Internal quotation marks omitted.) State v. Britton, 283 Conn. 598, 615, 929 A.2d 312 (2007). "The appellate tribunal is free, therefore, to respond to the defendant's claim by focusing on whichever condition is most relevant in the particular circumstances." (Internal quotation marks omitted.) State v. Dixon, supra, at 511, 122 A.3d 542. Article first, § 8, of the Connecticut constitution, as amended by articles seventeen and twenty-nine of the amendments, provides in relevant part: "No person shall be compelled to give evidence against himself ." The fifth amendment to the United States constitution provides in relevant part: "[No person] shall be compelled in any criminal case to be a witness against himself ." Article first, § 8, of the Connecticut constitution, as amended by articles seventeen and twenty-nine of the amendments, provides in relevant part: "No person shall be . deprived of life, liberty or property without due process of law ." The fifth amendment to the United States constitution provides in relevant part: "No person shall be . deprived of life, liberty, or property, without due process of law ." The fourteenth amendment to the United States constitution provides in relevant part: "No State shall . deprive any person of life, liberty or property, without due process of law ." North Carolina has also adopted Davis' bright-line approach as a matter of state statutory law. See State v. Saldierna, 369 N.C. 401, 794 S.E.2d 474, 479 ( 2016). Some states have also endorsed Davis' bright-line approach but not specifically evaluated whether their state constitution requires them to follow Davis. E.g., Harte v. State, 116 Nev. 1054, 1066-68, 13 P.3d 420 (2000) (holding the rule announced in Davis applies to custodial interrogations in Nevada and overruling conflicting precedent but not analyzing Nevada constitution); Hadden v. State, 42 P.3d 495, 504 (Wyo.) (finding Davis persuasive and adopting Davis ' bright-line approach but not analyzing Wyoming constitution), cert. denied, 537 U.S. 868, 123 S.Ct. 272, 154 L.Ed.2d 114 (2002). Other states have endorsed Davis but interpreted Davis to apply only to the post-Miranda waiver context. E.g., State v. Blackburn, 766 N.W.2d 177, 183 (S.D. 2009) ; State v. Leyva, 951 P.2d 738, 743 (Utah 1997) (abrogating state precedent to extent it contradicts Davis because Miranda warnings not required under state constitution). Accordingly, interrogating officers in those states must clarify an ambiguous or equivocal invocation of the right to counsel if the invocation is made before the suspect waives his Miranda rights. New Jersey has also adopted the clarification approach, albeit not on state constitutional grounds. The right against self-incrimination under New Jersey law "is founded on a common-law and statutory-rather than a constitutional-basis." State v. Chew, 150 N.J. 30, 50, 695 A.2d 1301 (1997). Although "New Jersey law governing the privilege against self-incrimination generally parallels federal constitutional doctrine"; id. ; the New Jersey Supreme Court rejected Davis because it seemed "prudent" to continue to apply the clarification approach it adopted prior to Davis. Id., at 63, 695 A.2d 1301. Although our state constitution has been amended since 1818, the self-incrimination and due process clauses were present in the original constitution.

12490400

CATHEDRAL GREEN, INC. v. Dorothy HUGHES et al.

Cathedral Green, Inc. v. Hughes

2017-07-18

AC 38469

873

883

166 A.3d 873

166

West's Atlantic Reporter, Third Series

Connecticut Appellate Court

Connecticut

2021-08-27T20:57:14.020814+00:00

Fastcase

CATHEDRAL GREEN, INC. v. Dorothy HUGHES et al.

CATHEDRAL GREEN, INC. v. Dorothy HUGHES et al. AC 38469 Appellate Court of Connecticut. Argued March 28, 2017 Officially released July 18, 2017 Sally R. Zanger, with whom was Katrina R. Cessna, for the appellant (named defendant). James P. Sexton, with whom were Matthew C. Eagan and, on the brief, Michael H. Clinton, for the appellee (plaintiff). DiPentima, C. J., and Prescott and Mullins, Js.

4556

28207

PRESCOTT, J. The present appeal arises from a summary process action that initially was settled in November, 2014, by way of a stipulated judgment. In accordance with that stipulation, the court rendered a judgment of possession in favor of the plaintiff, Cathedral Green, Inc., execution of which it stayed through the end of January, 2017. During the stay, the plaintiff agreed to allow the defendant, Dorothy Hughes, and her minor child to remain in the defendant's apartment provided that, inter alia, the defendant no longer allow William Moore, her child's father and a nonparty to the lease, to have access to the premises, which included both the apartment and the common areas of the property. The defendant now appeals from the trial court's postjudgment ruling of October 5, 2015, in which the court found that the defendant wilfully had violated the terms of the stipulated judgment. As a result, the court ordered execution of the judgment of possession. The defendant claims on appeal that the court improperly (1) relied upon facts that were not in evidence or that were not supported by the record, and (2) failed to adjudicate properly the defendant's equitable nonforfeiture defense. We disagree and affirm the judgment of the trial court. The following facts, which the court either set forth in its decision or are undisputed, and procedural history are relevant to our resolution of the defendant's claims. The defendant is a single mother who resides with her minor daughter in a subsidized apartment that is part of a housing complex, Cathedral Green, owned and operated by the plaintiff. In June, 2014, the plaintiff commenced the underlying action seeking to evict the defendant on the ground that she violated the terms of her lease. In particular, the plaintiff alleged that the defendant had allowed Moore to reside in the apartment despite the fact that he was not an authorized occupant under the lease. Further, the plaintiff alleged that Moore had "been coming and going on several occasions using the defendant's keys to enter the premises and has a lot of visitors meeting him briefly at the premises on several occasions during the day and night to transact illegal drug sales." According to the plaintiff, the defendant failed to cure the lease violations after she was notified of them by the plaintiff. On November 25, 2014, the date set for the summary process trial, the parties, each of whom was represented by counsel, filed a joint motion for a stipulated judgment, which was accepted by the court, Woods, J . According to the parties' stipulation, the defendant agreed to pay reasonable use and occupancy payments going forward, and to repay $890 in unpaid rent in accordance with a repayment plan the parties agreed to "work out" by the end of the following month and to present to the court as a modification of the parties' stipulated agreement. The stipulation also provided that the defendant agreed to abide by all of the terms, rules, and conditions contained in the original lease with the plaintiff except as specifically modified by the terms of the stipulation. Of particular relevance to the present appeal, the defendant agreed in the stipulated judgment to the following: "[S]he shall not allow or permit [Moore] to enter her unit or accompany her in the common areas of the property, including all outside areas and the parking lot. The defendant agrees that [Moore] is a trespasser and both Catholic Family Charities and [the Department of Children and Families] agree that [Moore] should not be allowed on the plaintiff's premises. As such, [the] defendant shall have an affirmative obligation to call the police should he enter the premises or the common areas in her presence. Further, the defendant agrees that if [Moore] is to visit the defendant's minor daughter, the visit or transfer shall occur off of the plaintiff's premises, including the common areas, driveway and parking lots. [The defendant] agrees that [the] plaintiff may treat [Moore] as a trespasser and call the police to keep him off of the premises." If the defendant was able to make all payments, as agreed, and to comply with all the other conditions of the stipulation, the plaintiff agreed to reinstate her as a tenant in good standing "on the earlier of the first day of the second month following full payment or February 1, 2017, but in no event sooner than December 31, 2015." On July 27, 2015, however, the plaintiff filed an affidavit with the court noting the defendant's noncompliance with the terms of the stipulated judgment and seeking an order of execution. The affidavit, signed by the plaintiff's property manager, Crystal Wise, stated that, despite the defendant's promise not to allow Moore on the premises, Moore had been observed "coming and going into the defendant's apartment and on the premises with the [defendant's] knowledge and acquiesce[nce]." The court scheduled a hearing on the plaintiff's request for execution, which took place on September 8, 2015. At that hearing, the court heard testimony from the defendant; Wise; Kimberly May-Bailey, the director of community services at Catholic Charities, which oversees program services provided to some of Cathedral Green's tenants; and Michelle Simon, a senior family specialist at Catholic Charities assigned to Cathedral Green. May-Bailey testified that she and Simon observed Moore on the premises on July 9, 2015, after the stipulated judgment was in effect. She recounted that they were in the office at Cathedral Green when they received a phone call from a tenant regarding an issue at the playground. The women found the defendant's daughter at the playground unattended and escorted her back to the defendant's apartment because children were not supposed to play at the playground unattended. At that time, May-Bailey and Simon observed Moore inside the defendant's apartment with the defendant. When they confronted the defendant with the fact that his presence violated the stipulation, the defendant indicated that she was preparing Moore a birthday dinner. The women alerted the property manager of Moore's presence. Wise testified regarding photographs that were taken from security camera video footage which showed Moore following the defendant into the premises on July 3, 2015. Wise was familiar with Moore and could identify him in the photographs because of an encounter she had with him in early June, 2015, when he attempted to enter the premises allegedly to deliver a birthday present and she was alerted by a maintenance worker and asked him to leave. The court admitted three of the five photographs into evidence. In her own testimony, the defendant acknowledged that she had signed the stipulated agreement in this matter with the assistance of an attorney, who had advised her regarding the terms of the agreement. She never informed her attorney that she did not understand the agreement. She admitted that the defendant was in her apartment with her on July 9, 2015. She never disputed that she had been preparing Moore a dinner for his birthday or suggested that he had shown up at the apartment uninvited. She also admitted that he was on the premises on other dates, including on July 3, 2015, when he followed her into the building, and that she had never, at any time, called the police to have him removed from the premises. The court granted the defendant's request to file a posthearing brief, with a reply from the plaintiff to follow. The defendant filed her brief on September 15, 2015, and the plaintiff filed its reply on September 23, 2015. In her posttrial memorandum, the defendant argued that the doctrine of equitable nonforfeiture should bar dispossession in this case because, even if the defendant violated the stipulated judgment, the harm to the defendant and her child in losing their rent-subsidized housing and the attendant stability it afforded far out-weighed any harm to the plaintiff, which harm she characterized as being limited to the inconvenience of having to make phone calls to the police to keep Moore off of the premises. The plaintiff took the position that the court was bound to enforce a validly rendered stipulated judgment and that, because the evidence demonstrated that the defendant had violated the agreement, the plaintiff was entitled to execution as a matter of law. With respect to the equitable nonforfeiture defense, the plaintiff argued that a balancing of all the equities actually favored the plaintiff. Further, it argued that the harm caused by the defendant's wilful violations of the stipulated agreement went beyond simply the harm and inconvenience to the plaintiff, and included potential harm to other tenants in allowing a trespasser and alleged drug dealer onto the premises. On October 5, 2015, the court, Hon. Joseph H. Pellegrino , judge trial referee, issued a memorandum of decision granting the plaintiff's request for an order of execution, finding that the defendant wilfully had violated the stipulation by continuing to allow Moore on the premises and by failing to call the police as she had agreed to do. The court considered and rejected the defendant's equitable defense, finding, on balance, that the various factors did not weigh in favor of the defendant. Although it overruled the defendant's objection to an order of execution, it granted an equitable stay until January 1, 2016, in order to give the defendant time to secure new living arrangements for herself and her child. This appeal followed. I The defendant first claims that the court's decision improperly relied upon facts that were not in evidence or that were not supported by the record. The plaintiff counters that the facts challenged by the defendant were not dispositive of the issue before the court and, thus, even if there was some error with regard to the disputed findings, it was harmless. We conclude that the defendant has failed to demonstrate that any of the court's material factual findings were clearly erroneous. We begin by setting forth our standard of review, which is well settled. "If the factual basis of the court's decision is challenged, our review includes determining whether the facts set out in the memorandum of decision are supported by the evidence or whether, in light of the evidence and the pleadings in the whole record, those facts are clearly erroneous." (Internal quotation marks omitted.) Juliano v. Juliano , 96 Conn.App. 381, 385, 900 A.2d 557, cert. denied, 280 Conn. 921, 908 A.2d 544 (2006). The defendant first takes issue with the court's statement that the parties agreed to the stipulation "[i]n light of the problems that the plaintiff has encountered with [Moore] ." The defendant contends that the record is silent as to why the parties decided to agree on the stipulation and that there was no evidence of any actual problems involving Moore, only the unsubstantiated allegations in the plaintiff's summary process complaint. The defendant argues that the court simply assumed that the allegations in the complaint, particularly the allegations of drug dealing on the premises, were true, "despite the execution of a stipulated agreement that means that the parties decided not to test the allegations of the complaint." The court, however, never stated at the hearing or in its written decision that it was treating the allegations in the summary process complaint as true. The court never references any particular allegation from the complaint. The court's reference in its memorandum to "problems" is more properly understood in the context of the preceding finding that those managing the housing complex did not want Moore on the premises. The defendant does not challenge that finding, which is clearly supported by the record. Moreover, the defendant seems to ignore that, in the stipulation, the defendant acknowledges that Moore was a trespasser on the premises, which status alone would have provided a sufficient basis for the court to describe his presence as a "problem" for the plaintiff. The court, however, never elaborated regarding the reasons for the plaintiff not wanting Moore on the property. In fact, when the plaintiff's attorney referenced Moore's alleged drug dealing during his argument, the court clearly indicated that was an issue that was not before the court and that there was no evidence before the court regarding those allegations. Certainly, in its role as the trier of fact, the court was permitted to draw any reasonable factual inference from the evidence, whether direct or circumstantial. In light of our review of the record as a whole, we cannot conclude that the court impermissibly inferred that the plaintiff had encountered problems involving Moore's presence on the premises or that the stipulation was not entered into "in light of" those problems. The defendant's suggestion that the court's statement was somehow clearly erroneous and also so relevant that it tainted the court's consideration of the issues before it simply lacks any merit. The defendant also takes issue with the court's finding that "[t]here were pictures from security videos, introduced by [Wise], that show [Moore] entering the building and the defendant holding the door for him to enter ." (Emphasis added.) The defendant argues that none of the photographs entered into evidence actually shows the defendant "holding the door" for Moore. We conclude that, allowing for all reasonable inferences, the court's description of the events depicted in the photographs was not clearly erroneous, and, to the extent that there was any misstatement, it was harmless in light of the other undisputed evidence establishing that, on a separate date, Moore was observed in the defendant's apartment with her knowledge and consent and that she never called the police seeking Moore's removal from the premises at any time. Furthermore, whether she held the door open for Moore on that particular date or simply let him enter behind her was only marginally relevant to the material issue before the court. The two photographs at issue were marked as plaintiff's exhibits four and five. They each contained date and time stamps. It is undisputed that exhibit four shows the defendant at the front door of the building with Moore following close behind. The next photo, taken less than three seconds later, shows Moore nearly at the door, which is now swung wide open. Given the short period of time that elapsed between the two photos, and the fact that no one else is shown between the defendant and Moore, it is not unreasonable to infer that the defendant was either holding the door open or was aware that Moore was close behind and entering the premises. The defendant herself testified that Moore was on the premises with her knowledge on July 3, 2015, the date the photographs were taken. Even if we agreed with the defendant that the court's finding was clearly erroneous, which we do not, the defendant cannot demonstrate that the court's specific finding that she held the door open played a significant role in the court's decision that the defendant had violated the terms of the stipulated judgment, and, thus, any error was harmless. After all, the testimony of Simon and May-Bailey, each of whom testified regarding Moore's presence in the defendant's apartment for a birthday dinner, is far more damaging. The remainder of the defendant's arguments in support of this claim are equally unavailing and warrant no further discussion. In sum, we are utterly unconvinced that the court's decision was rendered on the basis of clearly erroneous factual findings, and, if any misstatements exist, they were immaterial to the court's analysis of the issues before it and, thus, harmless. II The defendant also claims that the court failed to adjudicate properly her defense of equitable nonforfeiture. Although there are several aspects to the defendant's claim, we need address only two. First, we consider whether the court failed to apply the correct legal standard. Second, we address whether the court improperly determined that the defendant's breach of the stipulation was wilful. We conclude that the court both applied the correct legal framework and properly exercised its discretion by rejecting the defendant's equitable defense. We begin by setting forth the applicable standards of review and legal principles relevant to the defendant's equitable nonforfeiture defense. To the extent that the defendant challenges whether the court chose and applied the correct legal standard in addressing her equitable defense, this raises a question of law over which our review is plenary. See Mirjavadi v. Vakilzadeh , 310 Conn. 176, 183, 74 A.3d 1278 (2013) ("[i]t is well established that [t]he . determination of the proper legal standard in any given case is a question of law subject to our plenary review" [internal quotation marks omitted] ). Any challenge to how the court exercised its equitable authority, however, is entitled to considerable deference. "We employ the abuse of discretion standard when reviewing a trial court's decision to exercise [or not exercise] its equitable powers.... Although we ordinarily are reluctant to interfere with a trial court's equitable discretion . we will reverse [if] we find that a trial court acting as a court of equity could not reasonably have concluded as it did . or to prevent abuse or injustice. In reviewing claims of error in the trial court's exercise of discretion in matters of equity, we give great weight to the trial court's decision.... [E]very reasonable presumption should be given in favor of its correctness.... The ultimate issue is whether the court could reasonably conclude as it did." (Citations omitted; internal quotation marks omitted.) Presidential Village, LLC v. Phillips , 325 Conn. 394, 407, 158 A.3d 772 (2017). In determining whether a defendant is entitled to equitable relief from forfeiture of a tenancy, our Supreme Court has reiterated that courts should look to the test arising from its decision in Fellows v. Martin , 217 Conn. 57, 66-67, 584 A.2d 458 (1991). See Presidential Village, LLC v. Phillips , supra, 325 Conn. at 406-407, 158 A.3d 772. In Fellows , the court clarified that, under Connecticut law, "equitable defenses and counterclaims implicating the right to possession are available in a summary process proceeding." Fellows v. Martin , supra, at 62, 584 A.2d 458. The court in Fellows also made clear, however, that "[a] court of equity will apply the doctrine of clean hands to a tenant seeking such equitable relief; thus, a tenant whose breach was 'wilful' or 'grossly negligent' will not be entitled to relief." Id., at 67, 584 A.2d 458. Accordingly, Fellows established that an equitable nonforfeiture defense can succeed only if "(1) the tenant's breach was not [wilful] or grossly negligent; (2) upon eviction the tenant will suffer a loss wholly disproportionate to the injury to the landlord; and (3) the landlord's injury is reparable." (Emphasis added.) Cumberland Farms, Inc. v. Dairy Mart, Inc. , 225 Conn. 771, 778, 627 A.2d 386 (1993), citing Fellows v. Martin , supra, 217 Conn. at 66-67, 584 A.2d 458. This enumerated test, formulated from the holding in Fellows , is stated in the conjunctive, and, therefore, the failure of any prong of that test means that equitable relief is unavailable. See Presidential Village, LLC v. Phillips , supra, 325 Conn. at 410-11, 158 A.3d 772 (reversing trial court's granting of equitable relief to tenant because court engaged in improper balancing of harm under prong two); see also BNY Western Trust v. Roman , 295 Conn. 194, 207 n.11, 990 A.2d 853 (2010) (limiting appellate review to one element of conjunctive test); Berzins v. Berzins , 105 Conn.App. 648, 654, 938 A.2d 1281 (same), cert. denied, 289 Conn. 932, 958 A.2d 156 (2008). The burden of establishing an equitable defense in a summary process action falls on the party asserting that defense. See, e.g., Lynwood Place, LLC v. Sandy Hook Hydro, LLC , 150 Conn.App. 682, 690, 92 A.3d 996 (2014) (holding summary process defendant had burden of proving its equitable defense of laches.) A Turning to the defendant's arguments, to the extent that she suggests that the trial court failed to apply the correct legal standard in considering her equitable defense, we reject that aspect of her claim. As the defendant correctly sets forth in her brief, the standard that applies is well settled. As set forth previously, the legal framework discussed in Fellows and the aforementioned three part test are the applicable legal standards that a court must apply in considering a properly raised claim of equitable nonforfeiture in a summary process action. The court did so in this case. In its memorandum of decision, the court clearly identifies that the defendant sought to have it exercise its equitable powers to prevent a forfeiture by the defendant under the facts of this case. The court cites to Fellows and indicates that it must consider the wilfulness of the defendant's breach, whether an eviction would cause disproportionate injury to the defendant when compared to the plaintiff's injury, and whether any injury to the plaintiff is reparable. Although the court discusses in limited detail only the first and last elements, it clearly states that, in reaching its decision, it considered all of the equitable factors argued by the defendant. The defendant has not shown otherwise. See Equity One, Inc. v. Shivers , 310 Conn. 119, 132, 74 A.3d 1225 (2013) (noting presumption that court of general jurisdiction acts "only after due consideration, in conformity with the law and in accordance with duty" [internal quotation marks omitted] ). Accordingly, on the basis of the record before us, we conclude that the court both recognized and applied the proper legal standard in this case. B Finally, the defendant argues that the court improperly found that her breach of the stipulated judgment was wilful. We are not persuaded, and, as previously stated, our resolution of this issue is dispositive of the remainder of the defendant's claim regarding her equitable nonforfeiture defense. "Whether a party's conduct is wilful is a question of fact.... The term has many and varied definitions, with the applicable definition often turn[ing] on the specific facts of the case and the context in which it is used." (Citation omitted; internal quotation marks omitted.) Saunders v. Firtel , 293 Conn. 515, 530, 978 A.2d 487 (2009). "As we previously have observed . wilful has been defined ranging from 'voluntary; knowingly; deliberate . [i]ntending the result which actually comes to pass; designed; intentional; purposeful; not accidental or involuntary' to '[p]remeditated; malicious; done with evil intent, or with a bad motive or purpose, or with indifference to the natural consequences.' " Id., at 530-31, 978 A.2d 487. Wilful misconduct has also been defined as intentional conduct that is "deemed highly unreasonable or indicative of bad faith." Id., at 531, 978 A.2d 487. With respect to whether the defendant's breach of the stipulation was wilful, the court stated as follows: "[T]he court finds that the evidence is clear that the defendant wilfully violated the stipulation. She invited [Moore] to her apartment for a birthday party . Furthermore, the video evidence presented at trial is further evidence that [the defendant] allowed [Moore] to be on the premises without calling the police, in violation of the written stipulation." Those findings, along with our review of the record as a whole, fully support the court's determination that the defendant wilfully violated her agreement under the stipulation to "not allow or permit [Moore] to enter her unit or accompany her in the common areas of the property, including all outside areas and the parking lot." The defendant was represented and assisted by counsel when she signed the stipulation. She testified that her counsel went over the terms of the stipulation with her and that she never told her attorney that she did not understand what was in the agreement. Although she also testified that she did not fully understand her duties under the stipulation, the trial court was not required to credit that testimony. Furthermore, her alleged lack of understanding was belied by her testimony that she had instructed Moore that he was not allowed on the premises and that she was in the process of obtaining a restraining order against Moore. The defendant never disputed that she invited Moore to her apartment on his birthday to cook him dinner, and it can be reasonably inferred from the fact that she and Moore initially tried to hide his presence from Simon and May-Bailey that she knew his presence was in violation of the stipulation and that she sought to avoid being caught. Nor was the birthday dinner an isolated incident as evidenced by the photographs showing the defendant permitting Moore to enter the premises on a prior occasion. The defendant thus knowingly, voluntarily, and deliberately allowed Moore to be on the premises despite her promise not to allow him in her apartment or the common areas. The defendant has failed to demonstrate that the court improperly determined that her violation of the stipulation was wilful, which finding alone was a sufficient basis for denying her equitable relief. The judgment is affirmed. In this opinion the other judges concurred. Moore also was named as a defendant in the underlying summary process complaint, but he never filed an appearance with the trial court, which rendered a default judgment against him indicating that he never had any right or privilege to occupy the premises. Moore never filed an appeal from the summary process judgment, nor has he participated in the present appeal. Accordingly, we refer to Hughes as the defendant throughout this opinion and to Moore by name. Although ordinarily an appeal will not lie from an execution issued in a summary process action because the execution merely effectuates the judgment of possession and, thus, is not itself an appealable order or judgment; see Iannotti v. Turner, 32 Conn.Supp. 573, 575, 346 A.2d 114, cert. denied, 169 Conn. 709, 344 A.2d 357 (1975) ; we construe the present appeal as more analogous to a challenge to the summary enforcement of a judgment, which, even in the case of a stipulated judgment, we have found constitutes an appealable final judgment. See Bernet v. Bernet, 56 Conn.App. 661, 664, 745 A.2d 827, cert. denied, 252 Conn. 953, 749 A.2d 1202 (2000). For clarity and ease of discussion, we have combined and reordered the claims as they are set forth in the defendant's brief. According to May-Bailey's uncontested testimony, Cathedral Green is a twenty-eight unit facility composed of fourteen "service enriched" units funded by the state to provide special services to families in need, and fourteen other units that are designated as affordable housing. The defendant lived in one of the affordable housing units. Because we conclude that the court properly found that the defendant wilfully breached the stipulated judgment, and because that finding is dispositive of whether the defendant established her entitlement to equitable relief, we need not address the defendant's other arguments, namely, whether the court improperly balanced the relative harm of the parties or whether it improperly determined that the breach of the stipulated judgment was not reparable. "Although originally articulated in the context of the nonpayment of rent, the doctrine of equitable nonforfeiture may be applicable in evictions arising from violations of other lease terms." Presidential Village, LLC v. Phillips, supra, 325 Conn. at 407, 158 A.3d 772407.

12490398

Jamie PRONOVOST v. Marisa TIERNEY

Pronovost v. Tierney

2017-07-04

AC 38572

852

857

166 A.3d 852

166

West's Atlantic Reporter, Third Series

Connecticut Appellate Court

Connecticut

2021-08-27T20:57:14.020814+00:00

Fastcase

Jamie PRONOVOST v. Marisa TIERNEY

Jamie PRONOVOST v. Marisa TIERNEY AC 38572 Appellate Court of Connecticut. Argued March 15, 2017 Officially released July 4, 2017 Matthew Julian Forrest, for the appellant (plaintiff). Thomas S. Lambert, with whom, on the brief, was Robert O. Hickey, for the appellee (defendant). Alvord, Prescott and Bear, Js.

2301

14580

BEAR, J. The plaintiff, Jamie Pronovost, appeals from the judgment of the trial court dismissing his single count, amended complaint, in which he alleged negligence against the defendant, Marisa Tierney, arising from a motor vehicle collision in Maryland. The court dismissed the plaintiff's complaint against the defendant, a nonresident of Connecticut at the time that the action was commenced, after determining that the relevant long arm statute, General Statutes § 52-59b (a) (3) (B), did not provide jurisdiction over the defendant based on the facts alleged in the complaint and in an affidavit filed by the defendant in her reply to the plaintiff's memorandum in opposition to the motion to dismiss. On appeal, the plaintiff claims that the court erred in its application of § 52-59b (a) (3) (B) to the facts as pleaded in this case. We affirm the judgment of the court. The following facts, as alleged in the plaintiff's complaint, and procedural history are relevant to the resolution of this appeal. The plaintiff, a Connecticut resident, commenced this action in Connecticut against the defendant on April 9, 2015. In the complaint, the plaintiff alleged that, on September 13, 2013, the defendant, while operating a motor vehicle, collided with the rear end of the plaintiff's vehicle in Maryland. The defendant's conduct or actions caused the damages to the plaintiff's vehicle in that she (1) was inattentive because she failed to a keep reasonable and prudent lookout for other vehicles on the road; (2) failed to operate the vehicle under reasonable and proper control to enable her to avoid causing damage to the plaintiff's vehicle; and (3) failed to operate her vehicle as a reasonably prudent person would have under the circumstances. The collision caused damages to the plaintiff's vehicle and a corresponding diminution in value to the automobile. The plaintiff sought $4737 plus interest from the time of the accident, as well as costs, fees, and other consequential damages. On July 2, 2015, the defendant filed a motion to dismiss the plaintiff's complaint, arguing that the court lacked personal jurisdiction over her under § 52-59b and that the exercise of jurisdiction would violate the due process clause of the fourteenth amendment to the United States constitution. The plaintiff countered in his memorandum of law in opposition to the motion that the court had personal jurisdiction under § 52-59b (a) (3) (B), and he provided evidence purporting to establish that the defendant had maintained a calligraphy and graphic design business engaged in interstate commerce. In reply, the defendant argued, inter alia, that the plaintiff had failed to allege or provide evidence that she derived "substantial revenue from interstate . commerce" under § 52-59b (a) (3) (B), as that phrase was defined by our Supreme Court in Ryan v. Cerullo , 282 Conn. 109, 124-25, 918 A.2d 867 (2007), because there was no allegation or evidence that she had derived any revenue from Connecticut. The court heard argument on October 26, 2015. On October 28, 2015, the court issued its memorandum of decision granting the defendant's motion to dismiss. After setting forth the substantial revenue requirement under Ryan , the court determined that there was no evidence that the defendant derived any revenue from Connecticut residents. Additionally, the court determined that there was no evidence showing that the defendant earned enough revenue from Connecticut to have a commercial impact in the forum. Accordingly, the court granted the defendant's motion to dismiss. This appeal followed. Before addressing the plaintiff's claim on appeal, we set forth the applicable standard of review. "The standard of review for a court's decision on a motion to dismiss is well settled. A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction.... [O]ur review of the court's ultimate legal conclusion and resulting [determination] of the motion to dismiss will be de novo.... When a . court decides a jurisdictional question raised by a pretrial motion to dismiss, it must consider the allegations of the complaint in their most favorable light.... In this regard, a court must take the facts to be those alleged in the complaint, including those facts necessarily implied from the allegations, construing them in a manner most favorable to the pleader." (Internal quotation marks omitted.) Gold v. Rowland , 296 Conn. 186, 200-201, 994 A.2d 106 (2010). "When a defendant challenges personal jurisdiction in a motion to dismiss, the court must undertake a two part inquiry to determine the propriety of its exercising such jurisdiction over the defendant. The trial court must first decide whether the applicable state [long arm] statute authorizes the assertion of jurisdiction over the [defendant]. If the statutory requirements [are] met, its second obligation [is] then to decide whether the exercise of jurisdiction over the [defendant] would violate constitutional principles of due process." (Internal quotation marks omitted.) Cogswell v. American Transit Ins. Co. , 282 Conn. 505, 514-15, 923 A.2d 638 (2007). "Only if we find the [long arm] statute to be applicable do we reach the question whether it would offend due process to assert jurisdiction." (Internal quotation marks omitted.) Matthews v. SBA, Inc. , 149 Conn.App. 513, 543, 89 A.3d 938, cert. denied, 312 Conn. 917, 94 A.3d 642 (2014). "The motion to dismiss . admits all facts which are well pleaded, invokes the existing record and must be decided upon that alone." (Internal quotation marks omitted.) Gold v. Rowland , supra, 296 Conn. at 201, 994 A.2d 106. The court may also consider undisputed facts evidenced in the record established by affidavits submitted in support or opposition, other types of undisputed evidence, and/or public records of which judicial notice may be taken. Cuozzo v. Orange , 315 Conn. 606, 615, 109 A.3d 903 (2015). On appeal, the plaintiff claims that the court erred in its application of § 52-59b (a) (3) (B). Specifically, he argues that the statute does not require that substantial revenue be derived from Connecticut-based commerce; such revenue need only be derived from interstate commerce. We disagree. Section 52-59b (a) provides in relevant part: "As to a cause of action arising from any of the acts enumerated in this section, a court may exercise personal jurisdiction over any nonresident individual . who in person or through an agent . (3) commits a tortious act outside the state causing injury to person or property within the state . if such person or agent . (B) expects or should reasonably expect the act to have consequences in the state and derives substantial revenue from interstate or international commerce ." A trial court, therefore, has personal jurisdiction over a defendant under § 52-59b (a) (3) (B) when (1) the defendant, himself or through an agent, commits a tortious act outside Connecticut, (2) that act causes injury to a person or property in Connecticut, (3) that act gives rise to the cause of action claimed by the plaintiff, (4) the defendant expected or reasonably should have expected that the act would have consequences in Connecticut, and (5) the defendant derives substantial revenue from interstate or international commerce. See Ryan v. Cerullo , supra, 282 Conn. at 123-24, 918 A.2d 867. In the present case, the court, in addressing the fifth prong, determined that the plaintiff had failed to provide evidence that the defendant derived substantial revenue from interstate commerce under Ryan . In Ryan , our Supreme Court for the first time determined the meaning of "derives substantial revenue from interstate or international commerce" under § 52-59b : "Although this court never has been required to determine the meaning of derives substantial revenue from interstate or international commerce for purposes of § 52-59b (a) (3) (B), New York courts have concluded, in interpreting their identically worded long arm statute, that the substantial revenue requirement is designed to narrow the [long arm] reach to preclude the exercise of jurisdiction over nondomiciliaries who might cause direct, foreseeable injury within the [s]tate but whose business operations are of a local character . Put differently, substantial revenue means enough revenue to indicate a commercial impact in the forum , such that a defendant fairly could have expected to be haled into court there.... Because of the indefinite nature of the substantial revenue requirement, the determination of whether that jurisdictional threshold has been met in any particular case necessarily will require a careful review of the relevant facts and frequently will entail an evaluation of both the total amount of revenue involved and the percentage of annual income that that revenue represents. Compare Founding Church of Scientology of Washington, D.C. v. Verlag , 536 F.2d 429, 432-33 (D.C. Cir. 1976) (1 percent of magazine's gross revenue, or $26,000, [from sales in forum] constituted substantial revenue on basis of low unit price of magazines) with Murdock v. Arenson International USA, Inc. , 157 App.Div. 2d 110, 113-14, 554 N.Y.S.2d 887 (1990) ( [sales in forum of] 0.05 percent of corporate defendant's total sales, totaling $9000, did not satisfy substantial revenue requirement)." (Citations omitted; emphasis added; internal quotation marks omitted.) Ryan v. Cerullo , supra, 282 Conn. at 124-25, 918 A.2d 867. In the present case, the plaintiff argues that he need not demonstrate that the defendant's business dealings had any impact in Connecticut, but must only demonstrate that the defendant was engaged in interstate commerce under § 52-59b (a) (3) (B). This is in direct contradiction to how our Supreme Court has defined "substantial revenue" as "enough revenue to indicate a commercial impact in the forum , such that a defendant fairly could have expected to be haled into court there." (Emphasis added; internal quotation marks omitted.) Id., at 125, 918 A.2d 867. We are bound by this interpretation. The plaintiff did not allege, and did not produce any evidence in support of his opposition to the defendant's motion to dismiss, that the defendant derived substantial revenue from this state's residents. The applicable state long arm statute, § 52-59b (a) (3) (B), thus does not authorize the assertion of jurisdiction over the defendant. Moreover, the plaintiff's proposed interpretation of the statute, if accepted by this court, could place the statute in constitutional jeopardy. See Cogswell v. American Transit Ins. Co. , supra, 282 Conn. at 523, 923 A.2d 638 ("[a]s articulated in the seminal case of International Shoe Co. v. Washington , 326 U.S. 310, 316, 66 S.Ct. 154, 90 L.Ed. 95 (1945), the constitutional due process standard requires that, in order to subject a defendant to a judgment in personam, if he be not present within the territory of the forum, he have certain minimum contacts with it such that the maintenance of the suit does not offend traditional notions of fair play and substantial justice" [internal quotation marks omitted] ). In the present case, the defendant had no contact with Connecticut relating to or arising out of the automobile accident in Maryland, and there is no evidence that the defendant derived any revenue from Connecticut with respect to her interstate commerce activities. That automobile accident is the sum total of the interaction between the parties upon which the plaintiff relies for the establishment of personal jurisdiction in Connecticut over the defendant. For the plaintiff to assert that the court has personal jurisdiction over the nonresident defendant under these circumstances is problematic. See Cogswell v. American Transit Ins. Co. , supra, 282 Conn. at 523, 923 A.2d 638 (due process clause protects individual's liberty interest in not being subject to binding judgments of forum with which he has established no meaningful contacts, ties, or relations). "[A] court has a duty to avoid interpreting statutes in a manner that places them in constitutional jeopardy." Turn of River Fire Dept., Inc. v. City of Stamford , 159 Conn.App. 708, 719, 123 A.3d 909 (2015). Accordingly, the court did not err in declining the plaintiff's invitation to expand the ambit of § 52-59b (a) (3) (B) in order to obtain personal jurisdiction over the defendant beyond what is permitted by the due process clause of the United States constitution. Because the court properly determined that the plaintiff had not proved all of the requirements of § 52-59b (a) (3) (B) for long arm jurisdiction over the defendant, and because the court's exercise of jurisdiction over the defendant in this case would violate the due process clause of the United States constitution, the court properly rendered judgment dismissing the plaintiff's single count complaint. The judgment is affirmed. In this opinion the other judges concurred. The plaintiff alleged in the complaint that the defendant was a resident of Virginia when this action commenced, but the defendant's affidavit filed in support of her reply to the memorandum in opposition to the motion to dismiss asserts that she was a resident of Maryland at the time the action was commenced. Regardless of whether she is in fact a Maryland or Virginia resident on the date that this action commenced, it is undisputed that she was not a resident of Connecticut on that date or on the date of the accident, and there is no claim that she owns or owned real property in Connecticut. In reviewing "the trial court's decision to grant a motion to dismiss, we take the facts to be those alleged in the complaint, including those facts necessarily implied from the allegations, construing them in a manner most favorable to the pleader." (Internal quotation marks omitted.) May v. Coffey, 291 Conn. 106, 108, 967 A.2d 495 (2009). "We also recognize that a motion to dismiss invokes any record that accompanies the motion, including supporting affidavits that contain undisputed facts." (Emphasis omitted; internal quotation marks omitted.) Connors v. Rolls-Royce North America, Inc., 161 Conn.App. 407, 409, 127 A.3d 1133 (2015).

12490397

STONES TRAIL, LLC v. TOWN OF WESTON

Stones Trail, LLC v. Town of Weston

2017-07-18

AC 38078

832

852

166 A.3d 832

166

West's Atlantic Reporter, Third Series

Connecticut Appellate Court

Connecticut

2021-08-27T20:57:14.020814+00:00

Fastcase

STONES TRAIL, LLC v. TOWN OF WESTON

STONES TRAIL, LLC v. TOWN OF WESTON AC 38078 Appellate Court of Connecticut. Argued March 13, 2017 Officially released July 18, 2017 Robert A. Fuller, Wilton, with whom was Paul J. Pacifico, Darien, for the appellant (plaintiff). Thomas R. Gerarde, Hartford, with whom was Patricia C. Sullivan, Bridgeport, for the appellee (defendant). Sheldon, Mullins and Harper, Js.

9308

58447

SHELDON, J. The plaintiff, Stones Trail, LLC, brought this action against the defendant, the town of Weston (town), arising from its attempts to develop certain real property located in Weston, alleging, inter alia, denial of equal protection of the law in violation of 42 U.S.C. § 1983 ; denial of procedural due process in violation of 42 U.S.C. § 1983 ; inverse condemnation or regulatory taking of land in violation of 42 U.S.C. § 1983 ; and inverse condemnation or regulatory taking of land in violation of the fifth amendment to the United States constitution and article first, § 11, of the state constitution. The plaintiff appeals from the trial court's dismissal of its claims on the basis of its determination that the lack of a final decision from the town's Planning and Zoning Commission (commission) rendered them unripe for adjudication. We affirm the judgment of the trial court. The trial court set forth the following relevant facts and procedural history. "[Robert] Walpuck, [doing business as the plaintiff], Stones Trail, LLC, entered into a contract to purchase the property on Ladder Hill Road in Weston . (the property) on March 18, 1998. The property was composed of four smaller lots varying from one to two acres in size and one large lot (the Great Gate lot), with the total property aggregating about seventeen acres. The property was located in a two acre zone. Prior to closing the purchase, [the plaintiff] commissioned a title report, which was forwarded to the town. [The plaintiff] submitted three maps of the property to the town. Map # 3447 depicted the property as it had appeared since 1937, consisting of four small lots and one large lot. On September 18, 1998, Town Attorney Christopher Jarboe wrote to the code enforcement officer that the property depicted on map # 3447 was not a subdivision and should be stamped accordingly and filed on the land records. On the same day, the town engineer and [the] town code enforcement officer stamped and signed map # 3447 with a stamp reading as follows: 'The Town Engineer and Code Enforcement Office hereby attest to the fact that this plan is neither a subdivision nor a resubdivision as defined by the General Statutes of Connecticut and the Town of Weston and may be recorded without prior approval of the Weston Planning and Zoning Commission.' Approximately a week later, on September 24, 1998, map # 3448, which altered the property in that the Great Gate lot on map # 3447 was divided into two, yielding a total of six lots, was filed and stamped with the same language. Map # 3449 was also filed and stamped with the same language on September 24, 1998. Map # 3449 substantially altered the lots so that the four smaller lots each slightly exceeded two acres, giving the developer six potentially developable lots. Map # 3448 and map # 3449 were not stamped and filed on the Weston Land Records until roughly a week after the date of . Jarboe's letter.... "Walpuck testified that he felt he did not need subdivision approval and that he could achieve his objective of six buildable lots by lot line adjustments. According to . Walpuck, the procedure in Weston since 1991 was to place the aforementioned stamped language on a map when it was determined that no subdivision approval was needed. This procedure apparently was recommended by Town Counsel Harry Hefferan in 1991, who wrote, '[i]n the event a map is requested to be filed without subdivision or resubdivision action by the Planning and Zoning Commission acting in its planning function, the same shall be presented by its proposed filer to the town engineer and to the code enforcement officer for their examination. If those officers determine that it is unnecessary to appear before the Planning and Zoning Commission because there is no subdivision or resubdivision as so defined, they shall so indicate on the face of the map and the town clerk may accept for filing such map.' . "Walpuck testified that, in reliance on the review of the lots by town officials and the stamped notation on map # 3449, in October, 1998, the plaintiff completed the purchase of the property, having obtained a $1.1 million mortgage from Ridgefield Bank. The mortgage agreement included a provision allowing for the severance or release of individual lots upon payment of an allocated amount.... "Subsequently, on February 14, 2000, special counsel for the commission, Attorney Barry Hawkins, advised the plaintiff's attorney by letter that he had 'determined that under applicable Connecticut law and the Weston Planning and Zoning Regulations and Subdivision By-Laws . Walpuck must seek subdivision approval from the Weston Planning and Zoning Commission prior to dividing his properties situated at 10 Ladder Hill Road and 96 Georgetown Road in Weston .' Hawkins explained that the plaintiff's 'extensive and aggressive lot line adjustments' appeared to be an attempt to 'circumvent compliance with [the town's] Subdivision By-Laws.' Hawkins also notified the plaintiff that he had advised the town's zoning enforcement and building officials not to issue zoning or building permits to the plaintiff, should it attempt to develop the lots. Hawkins advised the plaintiff that it should apply to the commission for subdivision approval, and that '[t]he Planning and Zoning Commission is willing to work with . Walpuck to accomplish reasonably the safe and proper development of his properties in accordance with applicable subdivision statutes and regulations.' "On March 22, 2000, Hawkins wrote to the town's tax assessor, advising that the lot line adjustments reflected on the recorded maps did not create additional building lots, and that, therefore, the plaintiff's property should be taxed as one parcel of land. In May, 2000, the tax assessor revised the tax assessment map so that the plaintiff's property was taxed as a single lot. This did not affect the existing lot lines, however. "In 2002, [the plaintiff] was in default on its mortgage. The bank threatened foreclosure, and . Walpuck sought permission to sell one of the reconfigured lots to generate cash to cure the default. However, the Ridgefield Bank refused to release any of the six lots from the plaintiff's mortgage because of, among other things, uncertainty about the legitimacy of the six lot configuration shown on map # 3449. Subsequently, the bank commenced a mortgage foreclosure action against the plaintiff in February, 2002. "Upon receiving Hawkins' letter, the plaintiff did not seek subdivision approval from the commission or appeal the position of the letter to the Zoning Board of Appeals. Instead, in 2004 and 2005, the plaintiff made requests to town attorneys Kenneth Bernhard and Patricia C. Sullivan to reconsider the town's position, based on the plaintiff's contention that the parcels did not constitute a subdivision under General Statutes § 8-18. The town attorneys rejected these requests and urged [the] plaintiff to apply for subdivision approval. Instead, [the] plaintiff commenced the present action in [November], 2005.... Walpuck testified that he did not apply for subdivision approval because it was a time-consuming and expensive process, and because his lawyer told him that it might impair the collateral to his loan, or, 'since it could be viewed' as a possible admission that the lot line adjustments were invalid. "In April, 2006, subsequent to the commencement of this action, the plaintiff filed an informal, handwritten application with town Zoning Enforcement Officer Robert Turner for a certificate of zoning compliance for parcel D on map # 3449. Turner denied the application, noting that he lacked authority to grant a certificate of zoning compliance for anything other than the smaller, preexisting lot called the 'Honor Leeming Lot' on an older map of the property in its previous, nonconforming configuration. Turner further stated that the proposed lot line arrangements shown on map # 3449 'would have to be reviewed before permission can be given.' Turner continued, '[a]s has been explained to you on a number of prior occasions, the way to legitimately divide the property purported to be owned by [the plaintiff] adjacent to the Honor Leeming parcel, is by filing a subdivision application with the Planning and Zoning Commission.' "The plaintiff appealed Turner's decision to the Zoning Board of Appeals, which upheld Turner's decision. The plaintiff then appealed to the Superior Court, which dismissed the action for lack of aggrievement because the plaintiff had lost the property to foreclosure in August, 2006. See Stones Trail, LLC v. Weston , Superior Court, judicial district of Stamford-Norwalk, Docket No. CV-06-4010003-S, 2008 WL 2168967 (May 6, 2008) (J. Downey, J. ). "Walpuck also testified that the subsequent owner of the property in question successfully applied to the commission for subdivision approval. The subsequent owner received formal subdivision approval for four lots, which were larger than those proposed by . Walpuck, and which allowed the construction of considerably larger houses." The plaintiff commenced this action in November, 2005, by way of an eight count complaint. Of those eight counts, the following proceeded to trial: denial of equal protection of the law in violation of 42 U.S.C. § 1983 ; denial of procedural due process in violation of 42 U.S.C. § 1983 ; inverse condemnation or regulatory taking of land in violation of 42 U.S.C. § 1983 ; and inverse condemnation or regulatory taking of land in violation of the fifth amendment to the United States constitution and article first, § 11, of the state constitution. The plaintiff's three § 1983 claims were tried to the jury, and its federal and state constitutional claims were simultaneously tried to the court. The jury returned a verdict in favor of the plaintiff on all three § 1983 counts and awarded damages to the plaintiff in the amount of $5,000,000. Following trial, the court, sua sponte, raised the issue of whether the plaintiff's claims were ripe for adjudication, and thus whether it had jurisdiction over them. In so doing, it explained: "Over the course of nine and one-half years, this case has amassed an extensive procedural history. Of relevance to the present discussion are the defendant town's motions, on four separate occasions before trial, to dismiss the plaintiff's claims for lack of subject matter jurisdiction, arguing that [the] plaintiff had failed to apply to the commission for subdivision approval, that its claims were unripe for adjudication, and any appealed act of the town lacked finality. On each occasion, the [town's] motion was denied. See Stones Trail, LLC v. Weston , Superior Court, judicial district of Stamford-Norwalk, Docket No. CV-05-4007138-S, 2014 WL 6765409 (October 23, 2014) (Hon. Edward R. Karazin, Jr. , judge trial referee); Stones Trail, LLC v. Weston , Superior Court, judicial district of Stamford-Norwalk, Docket No. CV-05-4007138-S, 2013 WL 4046688 (July 19, 2013) (Hon. Edward R. Karazin, Jr. , judge trial referee); Stones Trail, LLC v. Weston , Superior Court, judicial district of Stamford-Norwalk, Docket No. CV-05-4007138-S, 2011 WL 6976565 [2011 WL 6976575] (December 16, 2011) (Hon. Taggart D . Adams , judge trial referee); Stones Trail, LLC v. Weston , Superior Court, judicial district of Stamford-Norwalk, Docket No. CV-05-4007138-S, 2007 WL 2039086 (June 25, 2007) (Hon. Edward R. Karazin, Jr. , judge trial referee). Among the parties' posttrial motions is the town's fifth motion to dismiss, this time premised on its argument that the plaintiff's § 1983 taking[s] claims were unripe when the jury rendered its verdict because the court had yet to render a decision on the plaintiff's state law takings claim. "[The town's] first and second motions to dismiss were decided prior to the Appellate Court's decision on January 15, 2013, in Lost Trail, LLC v. Weston , [140 Conn.App. 136, 57 A.3d 905, cert. denied, 308 Conn. 915, 61 A.3d 1102 (2013) ]. That case, as more fully explained [herein], was essentially a companion case to the present action, involving the identical stamps by Weston officials and correspondence with attorneys acting on behalf of the town.... Walpuck, the principal in both Stones Trail, LLC, and Lost Trail, LLC, filed both law-suits in December, 2005, and subsequently lost both properties to foreclosure. In the Lost Trail, LLC litigation, the Appellate Court and federal courts agreed with the jurisdictional challenges of the defendant town and dismissed each of [the] plaintiff's claims due to its failure to apply to the commission for subdivision approval. See id.; Lost Trail, LLC v. Weston , 485 F.Supp.2d 59 (D. Conn. 2007), aff'd, Lost Trail, LLC v. Weston , 289 Fed.Appx. 443 (2d Cir. 2008). "The town based its third and fourth pretrial motions to dismiss on the Appellate Court and federal court decisions in Lost Trail, LLC , but the [trial] court, without the benefit of the full factual record which has been developed at trial, noted differences between Lost Trail, LLC , and the facts as then presented to it in the instant case, and denied both motions. See Stones Trail, LLC v. Weston , supra, 2014 WL 6765409 ; Stones Trail, LLC v. Weston , supra, 2013 WL 4046688. "As explained [previously], in its posttrial motion to dismiss, the [town] did not reassert the arguments raised in its previous motions to dismiss. The court, however, in light of the facts developed at trial, and the Appellate Court and federal court decisions in Lost Trail, LLC , elected to raise and reconsider, sua sponte, the issue of the court's subject matter jurisdiction." On June 9, 2015, the court issued a memorandum of decision, in which it set aside the jury's verdict and dismissed all of the plaintiff's claims for lack of subject matter jurisdiction on the ground that its claims were not ripe because it had failed to obtain a final decision from the commission on its subdivision proposal. In its decision, the court specifically discussed Connecticut's law requiring that a plaintiff must establish the finality of the determination made in his case before he is entitled to judicial review of his regulatory takings claim. The court then proceeded in its memorandum of decision to separately discuss the federal law requirement of ripeness, as set forth in Williamson County Regional Planning Commission v. Hamilton Bank , 473 U.S. 172, 186, 105 S.Ct. 3108, 87 L.Ed.2d 126 (1985), which provides that a takings claim "is not ripe until the government entity charged with implementing the regulations has reached a final decision regarding the application of the regulations to the property at issue." The court further noted in its discussion of the federal ripeness requirement that (1) a plaintiff is excused from obtaining a final decision if it would have been futile to pursue such a course, and (2) although the ripeness requirement discussed in Williamson was announced in a takings context, the requirement had been extended to equal protection and due process claims asserted in land use cases. Finally, the court discussed Lost Trail, LLC , and concluded that, "[g]iven the substantial conformity of the facts between the present case and Lost Trail, LLC . the legal outcome should conform as well." The court ultimately determined that, because the plaintiff had both "failed to prove that a final decision was rendered by any administrative body charged with allegedly depriving [the] plaintiff of its rights," or "that it would have been futile to pursue available administrative remedies," it was necessary to dismiss the plaintiff's claims for lack of subject matter jurisdiction. Judgment entered in accordance with the trial court's June 9, 2015 memorandum of decision on that same date. On June 19, 2015, the plaintiff timely filed this appeal. Subsequently, the town filed a motion for articulation, seeking clarification of the basis for the court's June 9, 2015 decision. Specifically, the town argued that clarification was necessary because, in the court's June 9, 2015 memorandum of decision, the court had made several references to the exhaustion of administrative remedies doctrine, which need not be satisfied before bringing a § 1983 claim, thereby creating an ambiguity as to whether the trial court had applied that doctrine. In particular, the town noted that the trial court had included a reference to the exhaustion of administrative remedies doctrine in the conclusion of its memorandum of decision, stating that it was dismissing the plaintiff's federal takings and § 1983 claims "for lack of ripeness due to the plaintiff's failure to exhaust administrative remedies." The town therefore sought in its motion for articulation to have the trial court clarify that (1) the sole basis for its dismissal of the plaintiff's federal takings and § 1983 claims was lack of ripeness under Williamson , (2) the futility exception is the exception to the Williamson ripeness test and not the futility exception to the exhaustion of administrative remedies doctrine, and (3) the plaintiff did not satisfy the futility exception with respect to its § 1983 claims. The court granted the town's motion over the plaintiff's objection, and noted that "it is clear that the court rendered its decision on the § 1983 claims based on its finding that the lack of a final (or any) decision from the [commission] rendered the appeal unripe. Any references to exhaustion of administrative remedies were unnecessary dicta and will be removed to avoid any ambiguity or confusion as to the basis of the court's decision." On October 19, 2015, the court issued a revised memorandum of decision consistent with its articulation. On appeal, the plaintiff claims that (1) "the concept of finality of judgments supersedes reconsideration of claims of lack of subject matter jurisdiction based on ripeness for review under the facts of this case after four pretrial motions denied that claim"; (2) the four pretrial rulings rejecting the town's ripeness claims constituted the law of the case by which the court was bound, and thus it was precluded from reconsidering those rulings after the jury returned its verdict; (3) it had vested property rights to the six lots at issue in this case, and thus it was not required to apply to, nor was a decision on its application required from, the commission, to establish finality; (4) this court's decision in Lost Trail, LLC v. Weston , supra, 140 Conn.App. at 136, 57 A.3d 905, is distinguishable from the present case, and thus the trial court improperly relied upon it; (5) the futility exception to ripeness applies to this case; (6) ripeness does not apply to its § 1983 claims alleging equal protection and procedural due process violations; and (7) the court's articulation improperly altered the basis for its decision. The first two of the plaintiff's claims concern the propriety of the trial court's decision, sua sponte, to reconsider the issue of subject matter jurisdiction. The remaining claims go to the merits of the trial court's decision that the plaintiff's claims were unripe, and thus that it lacked subject matter jurisdiction over them. Because the trial court devoted a great deal of attention to, and relied in large part upon, Lost Trail, LLC v. Weston , supra, 140 Conn.App. at 136, 57 A.3d 905, we set forth the trial court's general description of the pertinent factual and procedural history, and legal rulings, in that case. The trial court recounted: " Lost Trail, LLC v. Weston , supra, [at] 136 [57 A.3d 905], was essentially a companion case to the present case, and involved nearly identical facts, including, inter alia, the purchase of land on Georgetown Road in Weston in 1997 intended for development by [a limited liability company] controlled by . Walpuck; the attempt to create additional buildable lots through the adjustment of lot lines; and the filing of maps showing the existing and proposed configuration in the summer of 1998. The Lost Trail maps received the same stamped language from town officials one month before the Stones Trail maps. The letter of February 14, 2000, from special counsel Hawkins, advising that an application to the commission for subdivision approval was required, referred to both the Lost Trail and Stones Trail properties in its 're' line, and the letter made no distinction between them. As in the present case, rather than pursue subdivision approval from the commission, counsel for Lost Trail argued with the town attorneys, the property went into default and ultimately foreclosure. Lost Trail, LLC, commenced an action against the town in the same month as did Stones Trail, LLC, for the same alleged violations, i.e., denial of equal protection, denial of due process, and a regulatory taking, all in violation of 42 U.S.C. § 1983, and regulatory takings claims premised on the United States and Connecticut constitutions. "The legal action proceeded somewhat more quickly in Lost Trail, LLC , than in Stones Trail, LLC. Upon removal to federal court, the . town . successfully moved to dismiss Lost Trail's § 1983 claims for lack of ripeness. The District Court's summary of Lost Trail, LLC's, arguments, namely, that it was exempt from the subdivision approval process and that it would have been futile to submit permit applications under the circumstances, underscores Lost Trail, LLC 's, similarity to the present case. The court noted that Lost Trail relies heavily on the alleged 1998 decision of the former Town Attorney and Zoning Enforcement Officer, as noted on [the stamps on] map # 3443 and map # 3444, that changes to Lost Trail's property converting two lots . to four lots did not require subdivision approval.... Lost Trail asserts that in 2000 [by way of special counsel Hawkins' letter] the Town reversed this decision and now considers the four lots invalid because they lack subdivision approval from the Planning and Zoning Commission. Lost Trail argues that this reversal, coupled with specific instructions to various town officials not to issue permits until a proper subdivision application is processed, sufficiently meets the finality test in the first part of the Williamson decision and places this case squarely under the futility exception to the finality rule.... Lost Trail, LLC v. Weston , supra, 485 F.Supp.2d [at] 65. "The court disagreed, holding that Lost Trail has failed to demonstrate that the Town has rendered a final decision as to how subdivision or zoning regulations will be applied to Lost Trail's property and whether the Town will prohibit all economically beneficial uses. That the Town refuses to recognize maps, recorded by Lost Trail and depicting four lots, without formal consideration by the Planning and Zoning Commission through the subdivision approval process does not constitute a final decision as to the outcome of that process. [ Id., at 65 ]. Nor does the Town's alleged prospective refusal to issue zoning or building permits until subdivision approval is obtained for the four lots demonstrate either a final decision or futility exempting Lost Trail from the final decision requirement. Lost Trail's futility argument hinges largely on what it deems a purely legal question, namely whether the [Georgetown] lots exist as a matter of law as [four] separate parcels under Connecticut statutory law and case law. . Regardless of the merit to Lost Trail's legal argument, it has never been presented to the Planning and Zoning Commission for its formal consideration and thus Lost Trail has not obtained a final decision regarding the application of the zoning ordinance and subdivision regulations to its property.... Id., [at] 66. The District Court dismissed the plaintiff's equal protection and due process claims along with its takings claim, having noted that '[the plaintiff's claims] asserting denial of equal protection, denial of substantive and procedural due process, and inverse condemnation or regulatory taking of plaintiff's land in violation of the Fifth Amendment are . all tested under the first prong of the Williamson test for ripeness.' [ Id., at 64 ]. On appeal, the United States Court of Appeals for the Second Circuit affirmed, by summary order, the District Court's dismissal of all of the plaintiff's federal claims. Lost Trail, LLC v. Weston , 289 Fed.Appx. 443 (2d Cir. 2008). "The District Court remanded the state law counts to the Superior Court. [The] [d]efendant town filed motions to dismiss the plaintiff's three remaining state law claims, which were granted on the ground that the plaintiff had failed to obtain a final decision from the commission and to exhaust available administrative remedies prior to seeking declaratory relief. See Lost Trail, LLC v. Weston , Superior Court, judicial district of Stamford-Norwalk, Docket No. CV-05-5000500-S, 2009 WL 1532642 (May 8, 2009) (Pavia, J. ); Lost Trail, LLC v. Weston , Superior Court, judicial district of Stamford-Norwalk, Docket No. CV-05-5000500-S, 2011 WL 2739436 (June 9, 2011) (Hon. Alfred J. Jennings, Jr. , judge trial referee). "On appeal, the Appellate Court first noted Lost Trail's argument that its division of the . property plainly did not constitute a subdivision under § 8-18 ; thus, as a matter of law, the commission had no jurisdiction over the matter. In Lost Trail's view, [t]here was nothing for the . [c]ommission to decide as to either (1) whether subdivision approval was necessary for the property . or (2) to review and approve (or deny) a subdivision application. Because this issue was beyond the commission's purview, Lost Trail asserts that the finality requirement is simply beside the point. Lost Trail additionally argues that, even if it was required to seek the commission's consent, the town effectively approved the division of the two preexisting parcels into four separate lots in August, 1998, when the final maps were stamped and signed by town officials and recorded in the town land records. Lost Trail characterizes the town's subsequent actions as a revocation of this apparent approval, which revocation inflicted an immediate injury ripe for adjudication.... Lost Trail, LLC v. Weston , supra, 140 Conn.App. [at] 144-45 [57 A.3d 905]. "The Appellate Court disagreed, holding that [t]he rationale for requiring a final and authoritative determination from local administrators as a prerequisite to asserting a regulatory takings claim is well illustrated here. Although Hawkins suggested that, in his opinion, Lost Trail's division of the Georgetown Road property created a subdivision, he did not have the authority to speak for or to bind the commission. Indeed, he recommended that Lost Trail apply for subdivision approval and stated that the commission was willing to work with Lost Trail to ensure the safe and proper development of the Georgetown Road property. This correspondence cannot be considered a definitive position on the issue from an authoritative initial decision-maker.... Lost Trail tries to circumvent the finality requirement by arguing that its use of the subject property so obviously did not constitute a subdivision that the commission's involvement was gratuitous. Strength of unilateral conviction is not, however, a substitute for a final administrative decision. As the town correctly points out, property owners cannot be their own arbiters of whether the commission has the authority to act.... Furthermore, by refusing to engage the commission in the zoning approval process, Lost Trail eliminated the possibility that this matter could be resolved by local political choices and settlements.... Lost Trail's prediction of futility turned out to be wrong-in January, 2011, the commission agreed with Lost Trail and disavowed Hawkins' position.... Id., [at] 148-49 [57 A.3d 905]. If Lost Trail had sought the opinion of the commission when Hawkins first suggested that Lost Trail's use of its property created a subdivision, these issues could have been settled-that is, the commission would have been given the opportunity to adopt or to correct Hawkins' position. If the commission, as constituted twelve years ago, had decided these issues favorably to Lost Trail, Lost Trail could have then sought building permits and zoning certification. Had it decided the issue adverse to Lost Trail, Lost Trail presumably could have appealed years ago. Having failed to do so, it cannot now challenge the town's actions in court as an unconstitutional taking. Id., [at] 150-51 [57 A.3d 905]. "Finally, the Appellate Court addressed Lost Trail's argument that it was exempted from applying to the commission for subdivision approval by the futility exception, specifically, that once Hawkins informed zoning and building officials that, in his opinion, Lost Trail had illegally subdivided its property, it was pointless to apply for zoning certificates and building permits from those officials because § 8-3 (f) precludes a building official from issuing a building permit in the absence of a zoning permit or certificate in writing from the zoning enforcement official that the proposal is consistent with zoning regulations. Lost Trail additionally contends that an application for zoning permits, without first engaging the commission in the zoning approval process, would have been futile because the town did not recognize the attempted division of its property into four lots. Id., [at] 151 [57 A.3d 905]. "The court rejected these arguments, holding that [h]aving already rejected Lost Trail's reasons for opting out of the planning and zoning review process, we hold that its futility argument must also fail. Although a property owner need not pursue patently fruitless measures to satisfy the finality doctrine . it cannot claim futility by setting up its own obstacles. Put simply, Lost Trail claims that it would have been futile to pursue step two of an administrative process, applying for zoning and building permits, because it refused to engage in step one, pursuing the opinion of the commission as to whether a subdivision had been created.... Id., [at] 151-52 [57 A.3d 905]. Moreover, [i]t is futile to seek a[n] [administrative] remedy only when such action could not result in a favorable decision and invariably would result in further judicial proceedings.... It is clear that the commission could have determined that Lost Trail had not created a subdivision-as it later did-or approved an application to subdivide its property, clearing the way for zoning and building permits to be issued. Thus, we reject Lost Trail's attempt to bootstrap its way to futility.... Id., [at] 152 [57 A.3d 905]. In rejecting Lost Trail's futility argument, the court also noted that '[i]n its reply brief, Lost Trail advances its futility argument by delineating its interactions with several town officials regarding the status of its . property: the town attorney, the zoning enforcement officer, and the tax assessor. None of these officials was a substitute for the commission.' Id., [at] 152 n.11 [57 A.3d 905] ; see also Murphy v. New Milford Zoning Commission , 402 F.3d 342, 352-54 (2d Cir. 2005) (holding that a plaintiff's land use claims were not ripened by the town zoning enforcement officer's issuance of a cease and desist order where the plaintiff could have pursued a variance application to the Zoning Board of Appeals)." (Emphasis in original; internal quotation marks omitted.) Against this backdrop, the trial court stated: "Given the substantial conformity of the facts between the present case and Lost Trail, LLC , supra, 140 Conn.App. [at] 136 [57 A.3d 905], the court believes that the legal outcome should conform as well. Of course, the court is bound to follow the Appellate Court's decision in Lost Trail, LLC , and it is persuaded by the District Court's decision." The court further noted that the doctrine of collateral estoppel might have precluded some of the claims that had been decided in Lost Trail, LLC , but did not engage in an estoppel analysis, since neither of the parties had argued or briefed it. The court then went on to consider its jurisdiction in the present case, which is the issue before us on appeal. Generally, "[t]he standard of review of a challenge to a court's granting of a motion to dismiss is well established. In an appeal from the granting of a motion to dismiss on the ground of subject matter jurisdiction, this court's review is plenary. A determination regarding a trial court's subject matter jurisdiction is a question of law. When . the trial court draws conclusions of law, our review is plenary and we must decide whether its conclusions are legally and logically correct and find support in the facts that appear in the record." (Internal quotation marks omitted.) Bloom v. Miklovich, 111 Conn.App. 323, 335-36, 958 A.2d 1283 (2008). With the foregoing in mind, we address each of the plaintiff's claims in turn. I The plaintiff first claims that the principle of finality of judgments barred the trial court's reconsideration of whether it had subject matter jurisdiction over the plaintiff's claims under the circumstances of this case because the issue of ripeness had been determined four times prior to trial and the case had gone to verdict. We are not persuaded. "[I]t is a fundamental rule that a court may raise and review the issue of subject matter jurisdiction at any time.... Subject matter jurisdiction involves the authority of the court to adjudicate the type of controversy presented by the action before it.... [A] court lacks discretion to consider the merits of a case over which it is without jurisdiction . The subject matter jurisdiction requirement may not be waived by any party, and also may be raised by a party, or by the court sua sponte, at any stage of the proceedings, including on appeal." (Internal quotation marks omitted.) Fernandez v. Commissioner of Correction , 139 Conn.App. 173, 177-78, 55 A.3d 588 (2012), cert. granted on other grounds, 307 Conn. 947, 60 A.3d 960 (2013) (appeal withdrawn May 28, 2013). Nevertheless, "even litigation about subject matter jurisdiction should take into account the importance of the principle of the finality of judgments, particularly when the parties have had a full opportunity originally to contest the jurisdiction of the adjudicatory tribunal.... Under this rationale, at least where the lack of jurisdiction is not entirely obvious, the critical considerations are whether the complaining party had the opportunity to litigate the question of jurisdiction in the original action, and, if he did have such an opportunity, whether there are strong policy reasons for giving him a second opportunity to do so." (Internal quotation marks omitted.) Investment Associates v. Summit Associates, Inc. , 309 Conn. 840, 855, 74 A.3d 1192 (2013). "Litigation about whether subject matter jurisdiction exists should take into account whether the litigation is a collateral or direct attack on the judgment, whether the parties consented to the jurisdiction originally, the age of the original judgment, whether the parties had an opportunity originally to contest jurisdiction, the prevention of a miscarriage of justice, whether the subject matter is so far beyond the jurisdiction of the court as to constitute an abuse of authority, and the desirability of the finality of judgments. Connecticut Pharmaceutical Assn., Inc. v. Milano , 191 Conn. 555, 468 A.2d 1230 (1983) ; Vogel v. Vogel , [178 Conn. 358, 362-63, 422 A.2d 271 (1979) ] ; Monroe v. Monroe , 177 Conn. 173, 413 A.2d 819, [cert. denied], 444 U.S. 801, 100 S.Ct. 20, 62 L.Ed.2d 14 (1979) ; 1 Restatement (Second), Judgments § 12 [ (2012) ]." (Internal quotation marks omitted.) Morris v. Irwin , 4 Conn.App. 431, 434, 494 A.2d 626 (1985). "We have strongly disfavored collateral attacks upon judgments because such belated litigation undermines the important principle of finality.... The law aims to invest judicial transactions with the utmost permanency consistent with justice . Public policy requests that a term be put to litigation and that judgments, as solemn records upon which valuable rights rest, should not lightly be disturbed or overthrown." (Citations omitted; internal quotation marks omitted.) Gennarini Construction Co. v. Messina Painting & Decorating Co. , 15 Conn.App. 504, 512, 545 A.2d 579 (1988). "A collateral attack is an attack upon a judgment, decree or order offered in an action or proceeding other than that in which it was obtained, in support of the contentions of an adversary in the action or proceeding ." Id., at 511-12, 545 A.2d 579. Here, the court's reconsideration of its jurisdiction was not a collateral attack on a judgment rendered in another proceeding. Although the parties had opportunities to argue the issue of ripeness prior to trial, and the court considered it four previous times, and the case had been tried and the jury's verdict accepted, the court determined that reconsideration was necessary based upon facts that were developed at trial and were unknown to the court when previously considering the issue of ripeness. Although it may seem unfair for the trial court to have revisited the issue again, after trial and after the jury returned a sizeable verdict in the plaintiff's favor, it is, as noted, important to prevent a miscarriage of justice, to ensure that the court did, in fact, have jurisdiction over the plaintiff's claims, particularly under these circumstances, where the plaintiff did not comply with municipal procedures to ensure compliance with local zoning regulations, but, instead, sought to circumvent those procedures. We thus conclude that the principle of the finality of judgments did not bar the trial court from reconsidering the ripeness of the plaintiff's claims and its jurisdiction over them. II The plaintiff next claims that the trial court was barred by the law of the case doctrine from reconsidering the issue of ripeness when it had already been considered four times previously during the proceedings. We disagree. "The law of the case doctrine provides that [w]here a matter has previously been ruled upon interlocutorily, the court in a subsequent proceeding in the case may treat that decision as the law of the case, if it is of the opinion that the issue was correctly decided, in the absence of some new or overriding circumstance.... A judge is not bound to follow the decisions of another judge made at an earlier stage of the proceedings, and if the same point is again raised he has the same right to reconsider the question as if he had himself made the original decision.... [O]ne judge may, in a proper case, vacate, modify, or depart from an interlocutory order or ruling of another judge in the same case, upon a question of law." (Citation omitted; emphasis omitted; internal quotation marks omitted.) Olson v. Mohammadu , 169 Conn.App. 243, 263, 149 A.3d 198, cert. denied, 324 Conn. 903, 151 A.3d 1289 (2016). "[T]he application of the law of the case doctrine involves a question of law, over which our review is plenary." (Internal quotation marks omitted.) Glastonbury v. Sakon , 172 Conn.App. 646, 657, 161 A.3d 657 (2017). Here, the trial court explained that it was reconsidering the issue of ripeness, and, thus, its jurisdiction, based upon facts that were developed at trial. In light of that development, and because the law of the case doctrine does not mandate that a court adhere to all rulings made at earlier stages in the proceedings, we cannot conclude that it was improper for the court to revisit the issue of ripeness in this case. III The plaintiff next claims that its rights in the lots at issue in this case were vested, and thus that it was not required to apply to, nor was a decision required from, the commission, to establish finality for the purposes of establishing the ripeness of its claims. The plaintiff claims that because it had "vested property rights" in the six lots at issue in this action, Turner, as the zoning enforcement officer, was the initial decision maker whose decision was required to establish the ripeness of the plaintiff's claims. The plaintiff claims that Turner's decision denying the plaintiff's application on the basis that the plaintiff was required to seek subdivision approval from the commission constituted a final decision revoking the plaintiff's vested rights in the six lots at issue herein. We are not persuaded. "A final decision has been rendered when the initial decision-maker [has] arrived at a definitive position on the issue that inflict [ed] an actual, concrete injury . If a property owner has not obtained a final decision from the administrative agency applying the regulation, the reviewing court lacks jurisdiction to rule on a taking claim. The jurisdictional nature of finality derives from its similarity to ripeness." (Internal quotation marks omitted.) Lost Trail, LLC v. Weston , supra, 140 Conn.App. at 147, 57 A.3d 905. Our Supreme Court has made it clear that "[a] plaintiff is not entitled to judicial review of the merits of his regulatory takings claim until he has met the requirement of establishing the finality of the agency determination." Gil v. Inland Wetlands & Watercourses Agency , 219 Conn. 404, 415, 593 A.2d 1368 (1991). The plaintiff asserted this same claim to the trial court in opposing dismissal of its claims for lack of ripeness. The trial court rejected the claim, explaining: "The plaintiff's argument is unavailing for two reasons.... First, a vested property right is simply a term used to describe a constitutionally protectable property interest, which must be demonstrated in order to assert a takings claim. See Brady v. Colchester , 863 F.2d 205, 212 (2d Cir. 1988) (in the context of fourteenth amendment due process claim, employing the term vested property right interchangeably with property interest . that was protectable under the fourteenth amendment .). The court's research has failed to disclose any authority for the proposition that the existence of a vested property right excuses the plaintiff from the separate requirements of subject matter jurisdiction for its § 1983 challenges. "Second, the court is persuaded by the District Court's holding in Lost Trail, LLC , that the town's alleged prospective refusal to issue zoning or building permits until subdivision approval is obtained for the four lots [does not] demonstrate either a final decision or futility exempting Lost Trail from the final decision requirement. Lost Trail's futility argument hinges largely on what it deems a purely legal question, namely whether the [Georgetown] lots exist as a matter of law as [four] separate parcels under Connecticut statutory law and case law.... Regardless of the merit to Lost Trail's legal argument, it has never been presented to the Planning and Zoning Commission for its formal consideration and thus Lost Trail has not obtained a final decision regarding the application of the zoning ordinance and subdivision regulations to its property . Lost Trail, LLC v. Weston , supra, 485 F.Supp.2d [at] 66 ]. The court also notes that the Appellate Court plainly held, albeit while addressing Lost Trail's municipal estoppel claim, that Lost Trail . cannot demonstrate that the town ever actually repudiated [the] apparent approval [in the form of stamping the maps of Lost Trail's property] because Lost Trail did not engage in the zoning approval process. Lost Trail, LLC v. Weston , supra, 140 Conn.App. [at] 154-55 [57 A.3d 905]. "Thus, even if the court were to accept the plaintiff's characterization of Turner as the initial decision maker, his decision rejecting the plaintiff's application for a certificate of zoning compliance was not a final one. Instead, it was conditional, with Turner refusing to issue the certificate before the plaintiff had presented its application to the commission and received subdivision approval. Turner merely referred the initial determination of the subdivision issue and the validity of the plaintiff's lots to the administrative body charged with deciding those issues. See General Statutes § 8-26 (a) (All plans for subdivisions and resubdivisions, including subdivisions and resubdivisions in existence but which were not submitted to the commission for required approval, whether or not shown on an existing map or plan or whether or not conveyances have been made of any of the property included in such subdivisions or resubdivisions, shall be submitted to the [planning and zoning] commission with an application in the form to be prescribed by it. The commission shall have the authority to determine whether the existing division of any land constitutes a subdivision or resubdivision under the provisions of this chapter, provided nothing in this section shall be deemed to authorize the commission to approve any such subdivision or resubdivision which conflicts with the applicable zoning regulations .)." (Internal quotation marks omitted.) We agree with the trial court that although the plaintiff had vested rights in the property at issue in this case, it did not have vested rights in the configuration of that property as it sought to reconfigure it, nor could it have acquired such vested rights without seeking approval of its proposed reconfiguration in accordance with established protocol and procedures. Indeed, none of the case law cited by the plaintiff in its brief to this court supports the plaintiff's claim. We thus agree with the trial court's thorough and well reasoned analysis of this claim. It would serve no useful purpose to discuss it further. IV The plaintiff next claims that this court's decision in Lost Trail, LLC , supra, 140 Conn.App. at 136, 57 A.3d 905, was factually distinguishable from the present case, and thus that the trial court improperly relied upon it as binding precedent in this case. Although the trial court relied heavily upon Lost Trail, LLC , its jurisdictional inquiry was based upon the factual record developed throughout the proceedings, up to the jury's verdict, in this case . The court relied upon Lost Trail, LLC , for its legal analysis and factual similarities. To the extent that Lost Trail, LLC , differed factually from the case at hand, it is clear that the trial court considered any factual differences in assessing its jurisdiction over the plaintiff's claims in this case. The court properly bore in mind the prior rulings in Lost Trail, LLC , with an eye to the consistent application of the relevant legal principles as they applied to the facts before it here. We cannot conclude that the court's reliance on Lost Trail, LLC , for that purpose was in error. V The plaintiff next claims that the court erred in rejecting its claim that it would have been futile to apply to the commission for subdivision approval, and thus that it should have been excused from applying to the commission for that approval. We disagree. "To demonstrate the requisite finality, a property owner asserting a regulatory takings claim bears the burden of proving that the relevant government entity will not allow any reasonable alternative use of his property." (Emphasis in original.) Gil v. Inland Wetlands & Watercourses Agency , supra, 219 Conn. at 415, 593 A.2d 1368. Thus, "although repeated applications and denials are not necessary to show finality, in most cases, a property owner must do more than submit one plan to an agency in order to establish that the agency's decision is final for the purposes of the takings clause.... [R]ejection of exceedingly grandiose development plans does not logically imply that less ambitious plans will receive similarly unfavorable reviews." (Citation omitted; internal quotation marks omitted.) Id., at 417, 593 A.2d 1368. "A property owner, for example, will be excused from obtaining a final decision if pursuing an appeal to a zoning board of appeals or seeking a variance would be futile. That is, a property owner need not pursue such applications when a zoning agency lacks discretion to grant variances or has dug in its heels and made clear that all such applications will be denied." Murphy v. New Milford Zoning Commission , supra, 402 F.3d at 349. In considering the plaintiff's claim of futility, the trial court noted with approval this court's prior decision in Lost Trail, LLC , in which the plaintiff also claimed that it would have been futile to apply to the commission for subdivision approval, and thus that it should not have been required to do so in order to demonstrate finality. The court explained, inter alia, the following as it pertained to the plaintiff's futility argument: "[W]ith regard to the plaintiff's futility argument, the Appellate Court held that Lost Trail cannot claim futility by setting up its own obstacles. Put simply, Lost Trail claims that it would have been futile to pursue step two of an administrative process, applying for zoning and building permits, because it refused to engage in step one, pursuing the opinion of the commission as to whether a subdivision had been created.... Lost Trail, LLC v. Weston , supra, 140 Conn.App. [at] 152 [57 A.3d 905]. Moreover, [i]t is futile to seek a[n] [administrative] remedy only when such action could not result in a favorable decision and invariably would result in further judicial proceedings.... It is clear that the commission could have determined that Lost Trail had not created a subdivision-as it later did-or approved an application to subdivide its property, clearing the way for zoning and building permits to be issued. Thus, we reject Lost Trail's attempt to bootstrap its way to futility.... Id." (Emphasis in original; internal quotation marks omitted.) The court thus rejected the plaintiff's argument that it would have been futile to engage in the zoning process, noting that, as in Lost Trail, LLC , the commission granted a subdivision application relating to the property in question, in which a subsequent owner of the property was permitted to subdivide the property. Here, not only did the commission not dig in its heels and refuse to grant any subdivision proposals submitted by the plaintiff, but the plaintiff was directed at every turn, by every town representative with whom it spoke about the matter, to seek approval from the commission. It never did so. The plaintiff's futility argument is further belied by Walpuck's testimony that he did not apply for subdivision approval because it was a time-consuming and expensive process and because his attorney told him that it might impair the collateral to his loan or it could be viewed as a possible admission that the lot line adjustments were invalid. As aptly noted by the trial court, if the plaintiff had applied to the commission seventeen years ago, when Hawkins advised it of the invalidity of its attempt to obtain a reconfiguration of the lots on its property by filing a map showing the lot line adjustments, it might have obtained approval from the commission, and would have avoided wasting many years and significant amounts of state and municipal resources. If the commission had denied its application, it could have established the jurisdictional basis for its judicial challenge that it now lacks. As in Lost Trail, LLC , the plaintiff put up its own obstacles. It cannot now hide behind those self-imposed obstacles and avail itself of the futility exception. VI The plaintiff next claims that the concept of ripeness for review does not apply to § 1983 claims for violations of equal protection and procedural due process. We disagree. "The ripeness requirement of Williamson [County Regional Planning Commission v. Hamilton Bank , supra, 473 U.S. at 172, 105 S.Ct. 3108], although announced in a taking[s] context, has been extended to equal protection and due process claims asserted in the context of land use challenges. Dougherty v. [North Hempstead Board ] of Zoning Appeals, 282 F.3d 83, 88 (2d Cir. 2002) ; see also Murphy [v. New Milford Zoning Commission , supra, 402 F.3d at 349] (discussing application of the Williamson finality rule to substantive due process, procedural due process, and equal protection challenges to zoning decisions)." (Internal quotation marks omitted.) Lost Trail, LLC v. Weston , supra, 485 F.Supp.2d at 64. The plaintiff argues that its claims are not subject to ripeness analysis because they are not directly related to its takings or inverse condemnation claims. This argument is belied by the plaintiff's complaint, in which the allegations underlying its takings or inverse condemnation claims mirror those set forth in its § 1983 claims, with the exception of a conclusory allegation at the end of each separate count that the facts therein pleaded gave rise to the legal cause of action claimed therein. Because the plaintiff's takings claims are inextricably intertwined with its § 1983 claims, this argument must fail. VII The plaintiff finally claims that the trial court's decision to grant the town's motion for articulation and to file a revised memorandum of decision, omitting any reference to the inapplicable exhaustion of administrative remedies doctrine, materially changed its June 9, 2015 decision in this case. We are unpersuaded. As noted, the town moved for articulation of the trial court's June 9, 2015 memorandum of decision, seeking clarification of the basis for the dismissal of the plaintiff's claims. Specifically, the town sought clarification of any ambiguity as to the legal basis for the court's determination that the plaintiff's claims were not ripe for adjudication. In granting the town's motion for articulation, the trial court first stated its belief that the basis for its June 9, 2015 decision was clear. The court, nevertheless, issued a revised memorandum of decision to eliminate any references to the exhaustion of administrative remedies doctrine to avoid any ambiguity or confusion as to the basis of its decision. The plaintiff claims that in so doing, the court materially altered its decision. It is well established that "[a]n articulation is appropriate where the trial court's decision contains some ambiguity or deficiency reasonably susceptible of clarification.... [P]roper utilization of the motion for articulation serves to dispel any . ambiguity by clarifying the factual and legal basis upon which the trial court rendered its decision, thereby sharpening the issues on appeal.... In the absence of an articulation, we are unable to determine the basis for the court's decision, and we therefore decline to review this claim." (Internal quotation marks omitted.) Priest v. Edmonds , 295 Conn. 132, 140, 989 A.2d 588 (2010). At the outset of the trial court's June 9, 2015 memorandum of decision, the court specifically stated that, because the plaintiff had "failed to prove that a final decision was rendered by any administrative body charged with allegedly depriving [the] plaintiff of its rights," or "that it would have been futile to pursue available administrative remedies," the plaintiff's claims were not ripe for adjudication, and thus the court lacked jurisdiction over them. A review of the trial court's June 9, 2015 memorandum of decision in its entirety reveals that the court's decision focused on (1) the requirement of finality for the plaintiff's state takings claim, (2) the requirement of ripeness (and the futility exception thereto) with respect to the plaintiff's federal claims and (3) the fact that the present case was similar to Lost Trail, LLC , which was essentially decided by this court and the federal courts on grounds of finality and ripeness. Although the court's June 9, 2015 memorandum of decision at times mentioned the exhaustion of administrative remedies, it did so only in passing without any discussion of that doctrine or how it would apply to the present case. Thus, a fair reading of the court's June 9, 2015 memorandum of decision does not indicate that the exhaustion of administrative remedies doctrine formed the basis for the trial court's decision in this case. Including no reference to that doctrine in the court's October 19, 2015 memorandum of decision thus served only to dispel any confusion concerning the basis of the court's original decision, which is an appropriate use of the articulation process. The judgment is affirmed. In this opinion the other judges concurred. As a claim against a subdivision of the state, this claim was treated as a claim under the fifth and fourteenth amendments to the United States constitution. Even so, we will refer to it, as did the parties and the trial court, as a claim under the fifth amendment. Prior to trial, the plaintiff's claim for violation of substantive due process was stricken as legally insufficient. The plaintiff's additional claims, one for a declaratory judgment and another asserting municipal estoppel, were dismissed prior to trial. Those rulings have not been challenged on appeal. Because we reject all of the plaintiff's claims on appeal, we need not address the town's proposed alternative ground to affirm, which is that the plaintiff failed to seek any variances. See footnote 1 of this opinion. The plaintiff also claims that "[t]he regulatory takings claim based on the Connecticut constitution was incorrectly dismissed for lack of finality, and the state constitution does not apply to the equal protection and procedural due process claims." In support of this claim, the plaintiff claims to be challenging a ruling that the trial court purportedly made regarding its "regulatory takings claim under the Connecticut constitution" in response to the fifth motion to dismiss, which was filed by the town after the jury returned its verdict. Because the court dismissed the plaintiff's regulatory takings claim "for lack of finality" upon its sua sponte raising of the issue of subject matter jurisdiction, the plaintiff's claim in this regard is unfounded.

12490396

Luis DIAZ v. COMMISSIONER OF CORRECTION

Diaz v. Comm'r of Corr.

2017-07-18

AC 39134

815

832

166 A.3d 815

166

West's Atlantic Reporter, Third Series

Connecticut Appellate Court

Connecticut

2021-08-27T20:57:14.020814+00:00

Fastcase

Luis DIAZ v. COMMISSIONER OF CORRECTION

Luis DIAZ v. COMMISSIONER OF CORRECTION AC 39134 Appellate Court of Connecticut. Argued March 7, 2017 Officially released July 18, 2017 James E. Mortimer, for the appellant (petitioner). James M. Ralls, assistant state's attorney, with whom, on the brief, was John Smriga, state's attorney, and Craig Nowak, senior assistant state's attorney, for the appellee (respondent). Lavine, Keller and Pellegrino, Js.

8306

52431

KELLER, J. The petitioner, Luis Diaz, appeals following the denial of his petition for certification to appeal from the judgment of the habeas court denying his amended petition for a writ of habeas corpus. First, the petitioner claims that the court abused its discretion in denying his petition for certification to appeal because his right to due process and a fair trial were violated by the prosecutor's failure to disclose material evidence that was favorable to the defense, namely, that an express or implied agreement existed between the state and one of the state's witnesses, Eddie Ortiz, in exchange for Ortiz' testimony at the petitioner's criminal trial. In connection with this claim, the petitioner also claims that the state failed to correct false testimony provided by Ortiz concerning the existence of such an agreement. Second, the petitioner claims that his right to the effective assistance of counsel was violated by virtue of representation afforded to him by counsel in a prior habeas proceeding. The petitioner claims that prior habeas counsel failed to adequately pursue his claim that his right to due process was violated by the state's failure to disclose an agreement reached with Ortiz prior to the petitioner's trial. Because we conclude that the court's denial of the petition for certification to appeal reflected a proper exercise of its discretion, we dismiss the appeal. The following underlying facts and procedural history are relevant to the present appeal. In 2007, following a jury trial, the petitioner was convicted of murder in violation of General Statutes § 53a-54a, carrying a pistol without a permit in violation of General Statutes § 29-35, and criminal possession of a pistol in violation of General Statutes § 53a-217c. The petitioner was sentenced to a total effective term of incarceration of seventy years. Following the petitioner's direct appeal to our Supreme Court pursuant to General Statutes § 51-199(b)(3), that court affirmed the judgment of conviction. State v. Diaz , 302 Conn. 93, 25 A.3d 594 (2011). Our Supreme Court set forth the following facts underlying the petitioner's conviction: "On the evening of January 11, 2006, the victim, Philip Tate, was shot and killed outside a bar known as the Side Effect West in the city of Bridgeport. Thereafter, the [petitioner] was arrested and charged with murdering the victim, carrying a pistol without a permit and criminal possession of a pistol or revolver. "In March, 2006, Corey McIntosh gave a statement to the police indicating that the [petitioner] had been the shooter. At that time, McIntosh was on federal probation and had received a three year suspended sentence for possessing narcotics in Connecticut. McIntosh testified at the [petitioner's] trial that he had seen the [petitioner] outside the Side Effect West immediately before the shooting and had heard shots as he entered the bar. He then ran out the back door and saw the [petitioner] running down the street with a gun in his hand. Additional state narcotics charges were pending against McIntosh at the time of trial. He testified that, while no promises had been made in connection with the pending charges, he was hoping to receive some consideration in exchange for his testimony. "At some point after July, 2006, Eddie Ortiz wrote a letter to the prosecutor's office indicating that he had information about the murder. He was incarcerated at the time and stated in his letter that he was looking for some consideration in exchange for his testimony. Ortiz testified at the [petitioner's] trial that he had seen the [petitioner] shoot the victim. He also testified that, during the trial, he had been placed in the same holding cell as the [petitioner], who said to him, 'You know what I did' and 'I know where you live at.' In addition, Ortiz testified that the [petitioner] had offered him $5000 not to testify. He further testified that the prosecutor's office had not promised him anything in exchange for his testimony and that he had been told that it would be up to a judge whether he would receive any benefit, such as a sentence modification. He had expectations, however, that his testimony would be taken into consideration. "Approximately six months after the murder, James Jefferson asked his attorney to inform Harold Dimbo, a detective with the Bridgeport [P]olice [D]epartment, that Jefferson had information about the murder. Jefferson, who was incarcerated in Connecticut on domestic violence charges at the time, was subject to lifetime parole in New York in connection with a conviction on narcotics charges in that state. Dimbo visited Jefferson in prison and Jefferson agreed to give a statement about the shooting. Dimbo made no promises to Jefferson. In September, 2006, the domestic violence charges were dismissed for lack of evidence. Thereafter, Jefferson testified at the [petitioner's] trial that he had seen the [petitioner] and the victim outside Side Effect West immediately before the shooting. He also saw the [petitioner] shoot at someone, but he did not see the victim at that point. At the time of trial, Jefferson was incarcerated in Connecticut for violating his parole in New York. "McIntosh, Ortiz and Jefferson were the only witnesses who identified or implicated the [petitioner] as the shooter. The [petitioner's] girlfriend, Shenisha McPhearson, testified that the [petitioner] had been with her at her apartment at the time of the shooting. The state presented no physical evidence to tie the [petitioner] to the shooting and the gun used in the shooting was never recovered." (Footnote omitted.) Id., at 95-97, 25 A.3d 594. In a prior habeas corpus proceeding, in which the petitioner was represented by Attorneys William T. Koch, Jr., and W. Theodore Koch III, the habeas court denied the petitioner relief on May 16, 2012. After the habeas court denied the petitioner's petition for certification to appeal from that judgment, the petitioner appealed to this court, which dismissed the appeal. Diaz v. Commissioner of Correction , 152 Conn.App. 669, 100 A.3d 856, cert. denied, 314 Conn. 937, 102 A.3d 1114 (2014). In the present action, on June 7, 2013, the petitioner filed a petition for a writ of habeas corpus. On February 9, 2015, the petitioner filed a three count amended petition. In count one, he alleged that prior habeas counsel rendered ineffective assistance in ten different ways. In count two, the petitioner alleged that his right to due process was violated because the prosecutor failed to disclose evidence that was favorable to the defense "with respect to an express or implied agreement" with state's witnesses Ortiz, McIntosh, and Jefferson. In count three, the petitioner, referring to evidence that he alleged to have discovered following his conviction, claimed that he was actually innocent of the charges underlying his conviction and incarceration. During the trial, the petitioner withdrew the third count of the petition. In his return, the respondent, the Commissioner of Correction, denied the substantive allegations set forth in each count of the petition. By way of special defenses, the respondent alleged that the claims set forth in count two were barred by the doctrines of successive petition and abuse of the writ because the claims either were previously litigated in the prior habeas proceeding or the petitioner had a full and fair opportunity to litigate such claims in that prior proceeding. Alternatively, the respondent alleged that the claims set forth in count two were barred by the doctrine of procedural default because the petitioner failed to raise such claims in the prior habeas proceeding. In reply, the petitioner denied the respondent's special defenses. A trial before the habeas court took place on August 18, 2015, and October 22, 2015. In addition to receiving evidence that was nontestimonial in nature, the court heard testimony from Donald Collimore, an assistant state's attorney who prosecuted charges against McIntosh, beginning in 2006; Brian Kennedy, an assistant state's attorney who, at Collimore's direction, entered a nolle prosequi in McIntosh's prosecution; W. Theodore Koch III, who represented the petitioner in his prior habeas appeal; Howard Stein, a senior assistant state's attorney who prosecuted the petitioner in the criminal case underlying the present action; Ortiz; and Jefferson. Later, the petitioner and the respondent submitted posttrial briefs to the court. In its memorandum of decision denying the amended petition, the court stated: "In the present action, the petitioner alleges, in the first count, that his previous habeas counsel . rendered ineffective assistance and, in the second count, that his due process rights as enunciated in Brady v. Maryland , [ 373 U.S. 83, 87, 83 S.Ct. 1194, 10 L.Ed. 2d 215 (1963) ], were breached." First, the court addressed the merits of the petitioner's Brady claim. In relevant part, the court stated: "The petitioner asserts that three prosecution witnesses, viz.... Ortiz . McIntosh, and . Jefferson, were offered secret plea dispositions regarding their own criminal files in exchange for their testimony against the petitioner at his criminal trial in 2007. During the present habeas hearing . Collimore . Kennedy . Stein . Ortiz . and . Jefferson . all testified that no such undisclosed understandings existed at the time their cases and the petitioner's criminal case were pending. [Koch] . also testified that he discovered no evidence supporting such clandestine plea arrangements when he represented the petitioner in his previous habeas case. No credible evidence was adduced during the present hearing to support these assertions of Brady violations nor attacking the credibility of the above listed witness' testimony to the contrary. "Although certain favorable plea negotiations occurred with respect to Ortiz, McIntosh, and Jefferson sometime after the petitioner's criminal trial concluded, the court finds that no deals were struck between any of these witnesses and the prosecution in exchange for their testimony [at the petitioner's criminal trial]. Indeed, because Jefferson and McIntosh had given written statements to the police implicating the petitioner as the shooter shortly after the homicide, the prosecutor handling the petitioner's case had no pressing need to proffer promises to these witnesses because of the holding of State v. Whelan , 200 Conn. 743, 753, [513 A.2d 86, cert. denied, 479 U.S. 994, 107 S.Ct. 597, 93 L.Ed. 2d 598] ( 1986). "Therefore, the court determines that the petitioner has failed to prove the factual underpinnings of his Brady violation claim, and the court denies the amended petition as to the second count." (Emphasis in original.) Discussing the merits of the first count of the petition, alleging ineffective assistance of prior habeas counsel, the court began its analysis by setting forth relevant principles of law. The court observed that the petitioner had "a herculean task" of demonstrating that he was prejudiced by the deficient performance of prior habeas counsel and trial counsel. (Internal quotation marks omitted.) Then, the court stated: "[T]he petitioner avers that his previous habeas counsel were professionally deficient by failing to discover and present evidence, in a variety of forms, as to the existence of implied plea agreements between the state and Ortiz, McIntosh, and Jefferson; by misadvising the petitioner with respect to the availability of sentence review; by failing to assert an ineffective assistance claim against appellate counsel . for her failure to lay a proper foundation for a Brady violation argument through rectification of the trial records; and by failing to present expert witnesses regarding the purported insufficiencies of trial and appellate counsel.... "This court's factual findings that no Brady violation occurred, as elucidated above, also requires the court to deny habeas relief with respect to ineffective assistance premised on the existence of such violations.... "Per stipulation between the litigants, the petitioner's opportunity for sentence review was restored. Therefore, this claim of ineffective assistance has been dealt with previously.... "The final specification against habeas counsel is that they failed to engage legal experts to evaluate and testify as to the deficient performance of trial and/or appellate counsel. However, in this present habeas case, the petitioner also presented no such expert witnesses with respect to trial counsel, appellate counsel, or previous habeas counsel. Consequently, this averment lacks any factual foundation whatsoever. [This] court would be left to speculate as to whether such expert testimony would have been available [to prior trial, appellate, and habeas counsel], and as to the substance of such supposed testimony. It is incumbent upon the petitioner to establish the ways in which defense counsel's failure to present a witness negatively affected the pertinent proceeding . Therefore, this allegation of ineffective assistance fails." (Citation omitted; emphasis in original.) Subsequent to its denial of the petition for a writ of habeas corpus, the court denied a petition for certification to appeal filed by the petitioner. "Faced with a habeas court's denial of a petition for certification to appeal, a petitioner can obtain appellate review of the dismissal of his petition for habeas corpus only by satisfying the two-pronged test enunciated by our Supreme Court in Simms v. Warden , 229 Conn. 178, 640 A.2d 601 (1994), and adopted in Simms v. Warden , 230 Conn. 608, 612, 646 A.2d 126 (1994). First, he must demonstrate that the denial of his petition for certification constituted an abuse of discretion.... Second, if the petitioner can show an abuse of discretion, he must then prove that the decision of the habeas court should be reversed on the merits.... "To prove an abuse of discretion, the petitioner must demonstrate that the [resolution of the underlying claim involves issues that] are debatable among jurists of reason; that a court could resolve the issues [in a different manner]; or that the questions are adequate to deserve encouragement to proceed further.... In determining whether the habeas court abused its discretion in denying the petitioner's request for certification, we necessarily must consider the merits of the petitioner's underlying claims to determine whether the habeas court reasonably determined that the petitioner's appeal was frivolous." (Citation omitted; internal quotation marks omitted.) James v. Commissioner of Correction , 170 Conn.App. 800, 807-808, 156 A.3d 89 (2017). In evaluating the merits of the underlying claims on which the petitioner relies in the present appeal, we observe that "[when] the legal conclusions of the court are challenged, [the reviewing court] must determine whether they are legally and logically correct . and whether they find support in the facts that appear in the record.... To the extent that factual findings are challenged, this court cannot disturb the underlying facts found by the habeas court unless they are clearly erroneous . [A] finding of fact is clearly erroneous when there is no evidence in the record to support it . or when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed." (Internal quotation marks omitted.) Brewer v. Commissioner of Correction , 162 Conn.App. 8, 13, 130 A.3d 882 (2015). I First, the petitioner claims that the court abused its discretion in denying his petition for certification to appeal because his right to due process and a fair trial were violated by the prosecutor's failure to disclose material evidence that was favorable to the defense, namely, that an express or implied agreement existed between the state and Ortiz in exchange for Ortiz' testimony at the petitioner's criminal trial. In connection with this claim, the petitioner also claims that the state failed to correct false testimony provided by Ortiz concerning the existence of such an agreement. We disagree that the court abused its discretion in denying the petition for certification to appeal on this ground. As stated previously in this opinion, the petitioner alleged that, at his criminal trial, the state violated Brady in that it "failed to disclose material favorable evidence to the petitioner with respect to an express or implied agreement with the state's witness . Ortiz." In support of this aspect of his claim, the petitioner alleged the following specific facts: (1) "[o]n July 12, 2006 . Ortiz was convicted of robbery in the first degree and sentenced to eight years [of] incarceration"; (2) "[a]t the petitioner's criminal trial . Ortiz testified that he witnessed the petitioner murder . Tate and that the petitioner had attempted to bribe him not to testify"; (3) "[a]fter testifying at the petitioner's criminal trial . Ortiz' sentence was modified to three years"; (4) "Ortiz testified at the petitioner's criminal trial that he was promised no consideration. Furthermore . Stein stated in the state's closing argument that . Ortiz was told that he would get no benefit in exchange for his testimony"; and (5) "[w]hen . Ortiz testified at the petitioner's criminal trial, an undisclosed express or implied agreement that the state would concur with his sentence modification application in exchange for his favorable testimony existed, in violation of the petitioner's constitutional rights." As detailed previously in this opinion, the court rejected the petitioner's assertion that any "clandestine plea arrangement" or "undisclosed understandings" existed between the state and the witnesses at issue in the petition, including Ortiz, at the time that the cases of the petitioner and Ortiz were pending. The court found that "[n]o credible evidence was adduced during the present hearing to support . assertions of Brady violations ." The court found that "no deals were struck" between the witnesses at issue, including Ortiz, and the prosecution in exchange for their testimony. The petitioner argues that "the habeas court entirely misunderstood the nature of the petitioner's claim concerning Ortiz.... The petitioner did not assert that Ortiz was offered secret plea dispositions regarding [Ortiz'] own criminal file in exchange for [his] testimony . Rather, the gravamen of the petitioner's complaint, as advanced through his pleadings, his pretrial brief, through the questioning of witnesses, his posttrial brief, and now on appeal, is that the prosecuting authority explicitly or implicitly promised Ortiz consideration, in the form of a promise of acquiescence to a sentence modification application, prior to his testimony. Further, the petitioner argued that the prosecuting authority's advancement of Ortiz' testimony concerning the same was false and misleading and stood uncorrected." (Citations omitted; internal quotation marks omitted.) The petitioner argues that the evidence presented at the habeas trial "demonstrated [that] the state extended a pretestimonial offer of consideration to Ortiz for a more favorable outcome in his criminal case in exchange for his testimony at the petitioner's criminal trial. The agreement the petitioner finds fault with arose by virtue of the state's implied promise of acquiescence to Ortiz' sentence modification application ." (Emphasis in original.) The petitioner draws our attention to Ortiz' testimony during the habeas trial that when he wrote to the prosecutor's office in 2006, after he received an eight year sentence of incarceration for robbery in the first degree, he hoped that by coming forward to testify against the petitioner he could "get out early." Ortiz testified that, when he met with Stein prior to testifying, a topic of conversation was how his sentence could be changed, and that he learned that the only person that could change his sentence was a judge. Ortiz testified, however, that "there was nothing promised." Ortiz testified that Stein told him that he would be willing to make his participation in the petitioner's criminal trial known, but that Stein did not specify to whom he would make it known. Ortiz testified, as well, that, after he testified against the petitioner, he contacted a public defender, Attorney Joseph Bruckmann, for assistance because he was "being threatened" in jail. He testified that, ultimately, his sentence was reduced by five years. The petitioner also draws our attention to Stein's testimony. Stein testified that when he met with Ortiz initially, Ortiz requested consideration for his testimony. Stein testified, however, that the state did not offer Ortiz any consideration in exchange for his testimony. Stein testified: "[Ortiz] was not a necessary witness and . I explained to him that there would be no consideration. I did explain to him that if he did testify, if he did the right thing, that if he felt that that had value in the future somehow and he wanted me to affirm that to somebody, whoever that might be, that I would be happy to do that, to affirm the fact that he testified, but that there was no consideration, no accommodation to sentence, just that I would state the affirmative, that he testified as a state's witness in a homicide case." Stein acknowledged that "there are many ways for a state's attorney to acknowledge a person's cooperation," and that these ways did not necessarily relate to sentence modification. Stein testified that "[s]entence modifications were not discussed," but he told Ortiz that he would be willing to make a formal acknowledgement of Ortiz' cooperation with the state to any party, including a judge. Stein testified that, after he spoke with Ortiz, he believed that he would be an effective witness for the state. In attempting to demonstrate the existence of an agreement concerning Ortiz' application for sentence modification, the petitioner refers to Stein's testimony that, in fact, he was aware that Ortiz, who had been sentenced to a term of incarceration of more than three years, could not have such application considered by the court without the approval of the state's attorney. See General Statutes § 53a-39(b). Yet, Stein testified that he did not represent to Ortiz that he would agree to support a sentence review application if Ortiz sought to pursue such a remedy. Stein testified that following Ortiz' testimony, on August 9, 2007, he "signed off" on a sentence review application that was filed on Ortiz' behalf. Stein testified that his decision regarding the application was made only after he had learned that Ortiz was being threatened in jail by the petitioner and others on behalf of the petitioner, and that Ortiz had sought the assistance of Bruckmann. Stein testified that Bruckmann related that information to him and filed the application on Ortiz' behalf. Stein testified that, subsequently, he received a letter from Ortiz, which was admitted in evidence, in which Ortiz thanked him for keeping his "promise." Stein testified that it was only after he learned from Bruckmann that Ortiz' life was in danger as a consequence of his testimony against the petitioner that he indicated to Bruckmann that he would concur in the sentence modification application so that Ortiz could appear before the court. Stein testified that, in referring to a promise, Ortiz may have been referring to what Stein told him during his initial meeting with him, when he informed Ortiz that he would acknowledge the fact that he had testified against the petitioner on behalf of the state. Stein testified as to his belief that Ortiz' letter was not evidence that any type of deal had been made with him to secure his testimony. The evidence was undisputed that Ortiz testified against the petitioner in April of 2007. Transcripts from the petitioner's criminal trial, admitted in evidence, reflect that, during his direct examination by Stein for the state, Ortiz testified that the topic of sentence modification had not been discussed with him previously and that "no promises" were made to him in exchange for his testimony. With respect to Ortiz' expectations, the following relevant examination of Ortiz by Stein transpired at the petitioner's criminal trial: "Q. So basically you were told that . it's expected you would cooperate. And what, if anything, came from it was up to a judge one day to decide if it had any value? "A. Yes, sir. "Q. And you were promised nothing? "A. Yes, sir. "Q. Certainly, do you have expectations or would you hope that someone would take this into consideration? "A. Yes, sir. "Q. But other than that, you're here with no promises and no consideration? "A. Yes, sir." Later, Stein inquired of Ortiz, as follows: "Q. As you sit here today, do you have any expectations that you will receive any favorable treatment for your testimony here today? "A. Yes, sir. "Q. And with that, do you expect that there's some type of a preset thing that's going to happen, or you're just hoping someone will take this into consideration? "A. Hoping someone will take it into consideration. "Q. But as you sit here now, you have absolutely no promise or any deals that have been set in exchange for your testimony? "A. Yes, sir." Ortiz also testified with respect to his belief that the state's attorney was "not capable of promising [him] anything" in relation to his previously imposed eight year sentence. During cross-examination, Ortiz reiterated that he had not been offered any consideration, but stated that, in contacting the state's attorney, he was looking for some type of an accommodation with respect to his sentence. During closing arguments at the petitioner's criminal trial, defense counsel pointedly suggested that the evidence demonstrated that Ortiz' testimony was not credible, but was motivated by his desire to receive a lesser sentence. Defense counsel referred to Ortiz as "the classic example of the savvy lifetime criminal," and in relevant part stated that the jury should "not . believe that Ortiz was at the scene of the shooting that night and that he is just providing us with what he thinks the state would want to hear . to get some accommodation on his sentence ." Stein referred to Ortiz' testimony. Then, in an attempt to cast doubt on defense counsel's argument that Ortiz' testimony was motivated by self-interest, he argued in relevant part: "How cold a person do you have to be to point an accusatory finger and say I saw this man commit murder when you're doing it for your own motivation? How cold do you have to be? What is the benefit that would cause a person to be that cold? [He] ha[s] been promised nothing. Flat out told you [that he] get[s] no benefit. It's expected that [he] would cooperate as a good citizen and a good person." The petitioner presented undisputed evidence that the court granted the sentence modification application on September 6, 2007. A transcript of the August 20, 2007 hearing on the sentence modification application was admitted in evidence. At the hearing, Stein referred to his discussions with Bruckmann that preceded the application for sentence review. Stein, referring to his posttrial "agreement" with Ortiz to acquiesce in the application for sentence review, represented to the court that his "agreement with Ortiz . was that [Stein] would not object to the modification and then [he] would leave them on their merits with . Bruckmann and . Ortiz to convince this court as to what, if any, the appropriate modification should be." In support of the application, Bruckmann represented that Ortiz had told him that he was being threatened in jail, he was labeled as "a snitch," and he was told that there was "a contract out for his life based on his testimony [against the petitioner]." Stein represented to the court that when he met with Ortiz prior to the petitioner's trial, he found Ortiz to be "extremely credible" and that he believed his testimony was "clearly influential" in terms of the conviction obtained by the state against the petitioner. Stein testified that during his pretrial meeting with Ortiz, Stein told him that he "was not in a position to promise him anything other than the fact that [he] would make known at the appropriate point in time about the cooperation that [Ortiz] gave to the state with regard to the [petitioner's] homicide case, which is where we're at now, fulfilling [Stein's] agreement with . Ortiz." Stein testified that Ortiz had contacted him to let him know that he has been "facing continuous threats" as a result of his cooperation with the state. On appeal, in challenging the court's findings of fact, the petitioner argues: "It is unquestionable-in light of the evidence presented to the habeas court-that Ortiz was looking for consideration when he first wrote to the state. Secondly, it is unquestionable that the prosecuting authority promised Ortiz to make his cooperation known prior to testifying, be it to a judge or another person. Thirdly, it is unquestionable that Stein recognized Ortiz' status as a sentenced prisoner at the time that this promise was made. Fourthly, it is unquestionable that, at the petitioner's trial, Ortiz testified that it was his understanding that only a judge could effectuate a change upon his sentence. Fifthly, it cannot reasonably be disputed that the only reasonable means for Stein's acknowledgement of cooperation to a judge to have any conceivable effect on Ortiz' sentence is by means of a sentence modification hearing. Sixthly, the passage of time between the conclusion of the petitioner's criminal proceedings and Ortiz' sentence modification cannot be disputed. Seventhly, it cannot be disputed that, despite Ortiz' sentence modification application being predicated upon 'threats,' Ortiz never sought protective custody while incarcerated. Finally, it is undisputable that the state's acquiescence was necessary for a judge to hear Ortiz' application for a sentence modification, as Ortiz' sentence exceeded three years." (Footnote in original.) Having discussed relevant evidence before the court, we turn to some principles of law applicable to claims of this nature. "[T]he law governing the state's obligation to disclose exculpatory evidence to defendants in criminal cases is well established. The defendant has a right to the disclosure of exculpatory evidence under the due process clauses of both the United States constitution and the Connecticut constitution.... In order to prove a Brady violation, the defendant must show: (1) that the prosecution suppressed evidence after a request by the defense; (2) that the evidence was favorable to the defense; and (3) that the evidence was material.... "It is well established that [i]mpeachment evidence as well as exculpatory evidence [fall] within Brady ' s definition of evidence favorable to an accused.... [An express or implied] plea agreement between the state and a key witness is impeachment evidence falling within the definition of exculpatory evidence contained in Brady . "The [United States] Supreme Court established a framework for the application of Brady to witness plea agreements in Napue v. Illinois , 360 U.S. 264, 79 S.Ct. 1173, 3 L.Ed. 2d 1217 (1959), and Giglio v. United States , 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed. 2d 104 (1972).... Drawing from these cases, this court has stated: [D]ue process is . offended if the state, although not soliciting false evidence, allows it to go uncorrected when it appears.... If a government witness falsely denies having struck a bargain with the state, or substantially mischaracterizes the nature of the inducement, the state is obliged to correct the misconception.... Regardless of the lack of intent to lie on the part of the witness, Giglio and Napue require that the prosecutor apprise the court when he knows that his witness is giving testimony that is substantially misleading.... A new trial is required if the false testimony could . in any reasonable likelihood have affected the judgment of the jury.... "The prerequisite of any claim under the Brady , Napue and Giglio line of cases is the existence of an undisclosed agreement or understanding between the cooperating witness and the state. . Normally, this is a fact based claim to be determined by the trial court, subject only to review for clear error." (Citations omitted; internal quotation marks omitted.) State v. Ouellette , 295 Conn. 173, 185-87, 989 A.2d 1048 (2010). "[T]he jury's estimate of the truthfulness and reliability of a . witness may well be determinative of guilt or innocence, and it is upon such subtle factors as the possible interest of the witness in testifying falsely that a defendant's life or liberty may depend.... Accordingly, the Brady rule applies not just to exculpatory evidence, but also to impeachment evidence . which, broadly defined, is evidence having the potential to alter the jury's assessment of the credibility of a significant prosecution witness.... Because a plea agreement is likely to bear on the motivation of a witness who has agreed to testify for the state, such agreements are potential impeachment evidence that the state must disclose.... "Not every failure by the state to disclose favorable evidence rises to the level of a Brady violation. Indeed, a prosecutor's failure to disclose favorable evidence will constitute a violation of Brady only if the evidence is found to be material. The Brady rule is based on the requirement of due process. Its purpose is not to displace the adversary system as the primary means by which truth is uncovered, but to ensure that a miscarriage of justice does not occur. Thus, the prosecutor is not required to deliver his entire file to defense counsel, but only to disclose evidence favorable to the accused that, if suppressed, would deprive the defendant of a fair trial . In a classic Brady case, involving the state's inadvertent failure to disclose favorable evidence, the evidence will be deemed material only if there would be a reasonable probability of a different result if the evidence had been disclosed. [The] . touchstone of materiality is a reasonable probability of a different result, and the adjective is important. The question is not whether the defendant would more likely than not have received a different verdict with the evidence, but whether in its absence he received a fair trial, understood as a trial resulting in a verdict worthy of confidence. A reasonable probability of a different result is accordingly shown when the government's evidentiary suppression undermines confidence in the outcome of the trial.... "When . a prosecutor obtains a conviction with evidence that he or she knows or should know to be false, the materiality standard is significantly more favorable to the defendant. [A] conviction obtained by the knowing use of perjured testimony is fundamentally unfair, and must be set aside if there is any reasonable likelihood that the false testimony could have affected the judgment of the jury.... This standard . applies whether the state solicited the false testimony or allowed it to go uncorrected . and is not substantively different from the test that permits the state to avoid having a conviction set aside, notwithstanding a violation of constitutional magnitude, upon a showing that the violation was harmless beyond a reasonable doubt.... This strict standard of materiality is appropriate in such cases not just because they involve prosecutorial misconduct, but more importantly because they involve a corruption of the truth-seeking function of the trial process.... In light of this corrupting effect, and because the state's use of false testimony is fundamentally unfair, prejudice sufficient to satisfy the materiality standard is readily shown . such that reversal is virtually automatic . unless the state's case is so overwhelming that there is no reasonable likelihood that the false testimony could have affected the judgment of the jury." (Citations omitted; footnotes omitted; internal quotation marks omitted.) Adams v. Commissioner of Correction , 309 Conn. 359, 369-73, 71 A.3d 512 (2013). Our Supreme Court has recognized that evidence that merely suggests an informal understanding between the state and a state's witness may constitute impeachment evidence for purposes of Brady . State v. Floyd , 253 Conn. 700, 740, 756 A.2d 799 (2000). Such evidence is by no means limited to the existence of plea agreements. "Any . understanding or agreement between any state's witness and the state police or the state's attorney clearly falls within the ambit of Brady principles.... An unexpressed intention by the state not to prosecute a witness does not.... "The question of whether there existed an agreement between [a witness] and the state is a question of fact . When reviewing the decision of a habeas court, the facts found by the habeas court may not be disturbed unless the findings were clearly erroneous.... A finding of fact is clearly erroneous when there is no evidence in the record to support it . or when although there is evidence in the record to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.... This court does not retry the case or evaluate the credibility of the witnesses.... Rather, we must defer to the [trier of fact's] assessment of the credibility of the witnesses based on its firsthand observation of their conduct, demeanor and attitude.... The habeas judge, as the trier of facts, is the sole arbiter of the credibility of witnesses and the weight to be given to their testimony.... A petitioner bears the burden of proving the existence of an agreement between the state or police and a state's witness." (Citations omitted; internal quotation marks omitted.) Elsey v. Commissioner of Correction , 126 Conn.App. 144, 152-53, 10 A.3d 578, cert. denied, 300 Conn. 922, 14 A.3d 1007 (2011). The petitioner argues that the court's finding that no pretestimonial agreement existed was clearly erroneous and that "[t]he habeas court's findings should impress upon this court the definite conviction that a mistake has been committed." The petitioner correctly suggests that the evidence of what transpired between Stein and Ortiz generally is not in dispute. The import of that evidence, that is, whether it reflected the existence of an unwritten or informal understanding that implicated Brady , is highly disputed. That factual issue is at the heart of the petitioner's Brady claim. As an initial matter, the petitioner argues that the court misinterpreted or failed to understand the import of his claim. The petitioner argues that the court focused solely on whether a plea agreement between Ortiz and the state existed, rather than on whether any agreement that would have benefitted Ortiz existed and, thus, reasonably might be viewed as motivating his testimony. The court's decision reflects otherwise. Despite its brevity, the court's opinion reflects that it did not limit its analysis to the existence of a written or formal agreement between Stein and Ortiz or the existence of a plea agreement. Instead, the court referred to the lack of any "undisclosed understandings ," the lack of "clandestine plea arrangements," and the fact that "no deals were struck" between Stein and the witnesses at issue, including Ortiz. (Emphasis added.) Thus, it appears that the court focused on the claim as framed by the petitioner's amended petition. Essentially, the petitioner's disagreement with the court's findings of fact concerns the court's failure to interpret the evidence consistently with his allegations. The petitioner relies heavily on the timing of the events at issue and argues that it is circumstantial evidence that compelled a finding that, prior to the petitioner's criminal trial, Stein and Ortiz had come to an understanding that merited disclosure under Brady . Ortiz received an eight year prison sentence. Ortiz testified for the state at the petitioner's criminal trial. Several months later, Stein agreed that Ortiz' sentence modification application should be considered by the sentencing court. Thereafter, the court granted Ortiz' application and reduced his sentence by five years. In reaching its factual findings, the court had the opportunity to consider the testimony of Ortiz and Stein with respect to their conversations prior to the petitioner's trial. Both were consistent in their denial that, prior to the petitioner's trial, any agreement had been reached or that any quid pro quo existed beyond that which was unambiguously disclosed to the jury at the petitioner's criminal trial-that Ortiz, looking for some type of benefit, hoped that Stein would make his cooperation with the state known in the future, and that Stein agreed to confer no benefit to Ortiz beyond making his cooperation known. The petitioner did not present evidence that Stein's promise to acknowledge Ortiz' cooperation either explicitly or implicitly conveyed that Stein would convey any benefit to Ortiz with respect to a sentence review application. The petitioner did not present evidence that compelled a finding that, prior to the petitioner's trial, Stein knew that he would give favorable treatment to Ortiz' sentence modification application or that Ortiz expected Stein to sign off on his application in exchange for his testimony. To the contrary, Stein testified that his decision to acquiesce in the application was based on communications that he had with Ortiz and Bruckmann, concerning Ortiz' well-being in prison, following the petitioner's trial . Cf. Elsey v. Commissioner of Correction , supra, 126 Conn.App. at 155-57, 10 A.3d 578 (evidence that court modified sentence of state's witness two weeks prior to his testimony suggested existence of informal understanding between witness and state under second prong of Brady ). The evidence that Stein was motivated to acquiesce in Ortiz' sentence modification application following the petitioner's trial did not implicate a duty to disclose under Brady at the time of trial. The evidence amply supported the inferences that the court drew from it, and we are not persuaded that a mistake was committed. In the absence of a showing that any understanding existed with respect to sentence modification, as claimed by the petitioner, he is unable to demonstrate that it should have been disclosed under Brady . For the foregoing reasons, we conclude that the petitioner has failed to demonstrate that the court abused its discretion in denying the petition for certification to appeal with respect to this claim. II Second, the petitioner claims that his right to the effective assistance of counsel was violated by virtue of representation afforded him by counsel in a prior habeas proceeding. The petitioner argues that prior counsel rendered ineffective assistance because they failed to identify, understand, research, raise, or argue the Brady claim analyzed in part I of this opinion. We disagree. As stated previously, the habeas court determined that, in light of its finding that no Brady violations occurred, the petitioner was not entitled to relief with respect to the present claim. This analysis is sound. Even if the petitioner could demonstrate that counsel performed deficiently with respect to the Brady claim concerning Ortiz, our analysis set forth in part I of this opinion necessarily leads us to conclude that the court properly determined that the petitioner was unable to demonstrate that he was prejudiced by counsel's performance because no Brady violation occurred. See Gerald W . v. Commissioner of Correction , 169 Conn.App. 456, 463-64, 150 A.3d 729 (2016) (petitioner bears burden of proving deficient performance and prejudice resulting therefrom), cert. denied, 324 Conn. 908, 152 A.3d 1246 (2017). Accordingly, we conclude that the petitioner has failed to demonstrate that the court abused its discretion in denying the petition for certification to appeal with respect to this claim. The appeal is dismissed. In this opinion the other judges concurred. The court denied the petition for a writ of habeas corpus "except for the restoration of sentence review as ordered previously." At the habeas trial, the petitioner's counsel examined Ortiz in relevant part, as follows: "Q. So prior to testifying in the petitioner's case, what understanding did you have about how an individual might get released earlier . than the sentence date? "A. Well, that was never brought up. "Q. What was your understanding of that process? "A. My understanding [in] coming forward [was that] Stein said it's not a promise.... So I'm going up there willingly myself.... "Q. Well, I'm asking you about your understanding of the process by which you could have been released early from prison.... Did you understand that there was some way to get out early? "A. No . it was a hopeful thing I'd get out early, but it was not a promise. "Q. But did you have an understanding [as] someone who had been involved in the criminal justice system how you might be able to get out early? "A. Yes.... Well, my understanding is . I come forward and testif[y]. That was my hope to get out early, but other than that, I came forward myself." The examination of Ortiz by the petitioner's counsel continued in relevant part, as follows: "Q. [B]ut you understood that if you participate in a criminal proceeding, there's some chance . something could happen that . would get [you] out of prison early. "A. When I participated in it, it was promised-it was hopeful that something would happen, but it was, like Stein said, there's nothing promised. "Q. So at the conclusion of your discussions . with . Stein way back before the petitioner's trial, did you leave there with an understanding that you would have an opportunity to get in front of a judge at some point? "A. No." General Statutes § 53a-39(b) provides: "At any time during the period of a definite sentence of more than three years, upon agreement of the defendant and the state's attorney to seek review of the sentence, the sentencing court or judge may, after hearing and for good cause shown, reduce the sentence, order the defendant discharged, or order the defendant discharged on probation or conditional discharge for a period not to exceed that to which the defendant could have been originally sentenced." Ortiz testified that in the letter he intended to thank Stein for working on his behalf and that Stein had not promised him anything. A copy of the completed application was admitted in evidence. The portion of the application entitled "reason for request" states: "[Ortiz] was a prosecution witness in a murder case that resulted in a murder conviction. As a result of his cooperation, [Ortiz'] life has been threatened while he remains incarcerated." "At the time of the petitioner's trial, it may have been possible for Ortiz to pursue a petition for a writ of [error] coram nobis or . a motion to correct an illegal sentence, but there is no evidence that either were even considered, nor that Stein's acknowledgement could have had an appreciable effect on either mechanism of relief...." The petitioner alleged that implied plea agreements existed between the state, on the one hand, and McIntosh and Jefferson, on the other hand. To the extent that, in its findings of fact, the court referred to plea agreements, it is reasonable to interpret such references as pertaining to these allegations, not the allegations pertaining to Ortiz. As discussed previously in this opinion, to the extent that, at the hearing on the application for sentence modification, Stein testified that he had reached an "agreement" with Ortiz not to object to the application, it is clear that such agreement was reached following the petitioner's trial and was based on events that occurred following the petitioner's trial. Intertwined in the analysis of the petitioner's Brady claim, which is based upon the state's failure to disclose certain information concerning Ortiz, is an argument that the state "knowingly solicited Ortiz' false testimony concerning 'no promises' and allowed this testimony to stand uncorrected." He argues that the state failed to disclose certain evidence and that the prosecutor failed to correct Ortiz' testimony. It does not appear that the latter aspect of the claim raised on appeal, which is not based upon the state's failure to disclose information concerning Ortiz, but rather on the state's failure to correct allegedly perjured testimony given by Ortiz under Napue v. Illinois, supra, 360 U.S. 264, 79 S.Ct. 1173, was distinctly raised before the habeas court or that the court considered this claim in denying the petition for a writ of habeas corpus. "A petition for a writ of habeas corpus must set forth specific grounds for the issuance of the writ. Practice Book § 23-22(1) specifically provides that the petition shall state the specific facts upon which each specific claim of illegal confinement is based and the relief requested . A reviewing court will not consider claims not raised in the habeas petition or decided by the habeas court.... Appellate review of claims not raised before the habeas court would amount to an ambuscade of the [habeas] judge." (Internal quotation marks omitted.) Rodriguez v. Commissioner of Correction, 131 Conn.App. 336, 351, 27 A.3d 404 (2011), aff'd, 312 Conn. 345, 92 A.3d 944 (2014). "It is well settled that [t]he petition for a writ of habeas corpus is essentially a pleading and, as such, it should conform generally to a complaint in a civil action.... The principle that a plaintiff may rely only upon what he has alleged is basic.... It is fundamental in our law that the right of a plaintiff to recover is limited to the allegations of his complaint." (Internal quotation marks omitted.) Abdullah v. Commissioner of Correction, 123 Conn.App. 197, 201-202, 1 A.3d 1102, cert. denied, 298 Conn. 930, 5 A.3d 488 (2010). The petitioner argues that he raised the Napue issue sufficiently in his pretrial and posttrial briefs, yet he does not dispute that he did not raise this issue in his amended petition, which framed the issues before the court, or that the court did not address the issue, the resolution of which requires distinct factual findings, it in its memorandum of decision. Accordingly, we will not consider this claim in our analysis of the court's decision to deny the petition for certification to appeal. Additionally, the petitioner argues that this court "should exercise its supervisory authority to require a jury instruction concerning the sentence modification procedure in Connecticut any time the state represents to a sentenced inmate that the state will make the witness' cooperation known." "[O]ur supervisory authority . is not a form of free-floating justice, untethered to legal principle.... [T]he integrity of the judicial system serves as a unifying principle behind the seemingly disparate use of our supervisory powers.... [O]ur supervisory powers are invoked only in the rare circumstance where [the] traditional protections are inadequate to ensure the fair and just administration of the courts ." (Internal quotation marks omitted.) State v. Kuncik, 141 Conn.App. 288, 292-93, 61 A.3d 561, cert. denied, 308 Conn. 936, 66 A.3d 498 (2013). As discussed previously in this opinion, Brady requires the disclosure of evidence that is favorable and material to the defense, including impeachment evidence. State v. Ouellette, supra, 295 Conn. at 185-87, 989 A.2d 1048. The petitioner has not persuaded us that the protections afforded under Brady do not adequately protect his right to a fair trial.

12490395

VALLEY NATIONAL BANK v. Steven MARCANO

Valley Nat'l Bank v. Marcano

2017-06-27

AC 38497

80

88

166 A.3d 80

166

West's Atlantic Reporter, Third Series

Connecticut Appellate Court

Connecticut

2021-08-27T20:57:14.020814+00:00

Fastcase

VALLEY NATIONAL BANK v. Steven MARCANO

VALLEY NATIONAL BANK v. Steven MARCANO AC 38497 Appellate Court of Connecticut. Argued February 16, 2017 Officially released June 27, 2017 David L. Gussak, Farmington, for the appellant (defendant). Miguel A. Almodóvar, New Haven, for the appellee (plaintiff). DiPentima, C. J., and Sheldon and Harper, Js.

3396

21144

HARPER, J. The defendant, Steven Marcano, appeals from the judgment rendered against him, after a court trial, for breach of his obligation under a personal guarantee of a $250,000 line of credit extended to My Little Star Baby Products, Inc. (My Little Star), by the plaintiff, Valley National Bank, as successor in interest to Park Avenue Bank (Valley National). The defendant challenges the trial court's findings that (1) Valley National established a proper chain of title regarding its ownership of the promissory note originally executed and personally guaranteed by the defendant to Park Avenue Bank (Park Avenue), thereby giving Valley National standing to bring an action on the guarantee of payment of that note and (2) Valley National submitted sufficient evidence to accurately establish the loan balance it claimed was owed by the defendant. We affirm the judgment of the trial court. In its September 17, 2015 memorandum of decision, the court found the following facts. "The defendant was one of the founders of the entity known as [My Little Star], and was the president of the company when it applied for a business line of credit with [Park Avenue] in New York. The loan application was approved, and [the defendant] executed the business loan agreement, commercial security agreement, corporate resolution authorizing the borrowing, as well as the promissory note and [personal] guarantee.... The promissory note which secured the line of credit had a maturity date of May 27, 2009, when all sums drawn upon the line of credit along with interest were to be paid in full without demand. "The personal guarantee signed by the defendant secured My Little Star's obligation to [Park Avenue]. After approval, My Little Star made drawdowns on the line of credit through drawdown requests made by the defendant. The total amount of the drawdowns was $248,723.06. "At some point, [Park Avenue] was seized by the [Federal Deposit Insurance Corporation (FDIC) ], and [Valley National] purchased the assets of [Park Avenue] from the FDIC as receiver. [The plaintiff's] Exhibit 9, which is a Purchase and Assumption Agreement, indicates that the FDIC transferred the defendant's obligation to [Park Avenue] to [Valley National].... "The defendant has made no payments on the obligation of My Little Star as a personal guarantor. The current amount due as of July 22, 2015, is $328,009.28, of which $248,723.06 is principal, and $79,286.22 is interest, with a per diem of $36.27." (Citation omitted; footnote omitted.) The plaintiff brought an action to enforce the debt owed by the defendant as the personal guarantor of the loan. The trial court found in favor of the plaintiff and rendered judgment against the defendant in the amount of $330,040.40, which represented a principal balance of $248,723.06, and interest in the amount of $81,317.34. This appeal followed. Additional facts will be set forth as necessary. I The defendant's first claim is that the court improperly found that Valley National had established a proper chain of title regarding its ownership of the promissory note, which was originally executed and personally guaranteed by the defendant to Park Avenue, thereby giving Valley National standing to bring an action on the guarantee of payment of that note. Specifically, the defendant argues that the plaintiff lacks standing to bring an action to enforce the defendant's personal guarantee on the promissory note for the following reasons: (1) none of the loan documents is endorsed, either in blank or specially, from Park Avenue to Valley National; (2) the plaintiff cannot prove that it is a nonholder with the rights of a holder because the plaintiff's witness, Michael Robinson, was not an employee of the plaintiff at the time that it acquired the assets of Park Avenue, nor was he involved in the transaction between the FDIC and the plaintiff; and (3) the purchase and assumption agreement does not specifically identify the My Little Star loan as an asset acquired by the plaintiff from the FDIC. We disagree and conclude that the court properly determined that Valley National had standing to pursue its claim against the defendant for his personal guarantee on the line of credit. We first set forth our standard of review. "The issue of standing implicates [the] court's subject matter jurisdiction.... Standing is the legal right to set judicial machinery in motion. One cannot rightfully invoke the jurisdiction of the court unless he [or she] has, in an individual or representative capacity, some real interest in the cause of action, or a legal or equitable right, title or interest in the subject matter of the controversy.... When standing is put in issue, the question is whether the person whose standing is challenged is a proper party to request an adjudication of the issue . Because standing implicates the court's subject matter jurisdiction, the plaintiff ultimately bears the burden of establishing standing.... "Because a determination regarding the trial court's subject matter jurisdiction raises a question of law, [the standard of] review is plenary.... Standing is established by showing that the party claiming it is authorized by statute to bring suit or is classically aggrieved." (Citations omitted; internal quotation marks omitted.) JPMorgan Chase Bank, National Assn. v. Simoulidis , 161 Conn.App. 133, 142, 126 A.3d 1098 (2015), cert. denied, 320 Conn. 913, 130 A.3d 266 (2016). A The defendant first argues that, because the note is not specially endorsed to the plaintiff or endorsed in blank, the plaintiff lacks standing to enforce its acquired rights under the note and other loan documents. We disagree. In Connecticut, a party may enforce a note pursuant to the Uniform Commercial Code (UCC), codified at General Statutes § 42a-1-101 et seq. U.S. Bank, National Assn. v. Schaeffer , 160 Conn.App. 138, 146, 125 A.3d 262 (2015). General Statutes § 42a-3-301 provides in relevant part that a "[p]erson entitled to enforce an instrument means . the holder of the instrument . [or] a nonholder in possession of the instrument who has the rights of a holder ." (Footnote added; internal quotation marks omitted.) "The UCC's official comment underscores that a person entitled to enforce an instrument . is not limited to holders.... A nonholder in possession of an instrument includes a person that acquired rights of a holder . under [§ 42a-3-203 (a) ].... Under § 42a-3-203 (b), [t]ransfer of an instrument . vests in the transferee any right of the transferor to enforce the instrument . An instrument is transferred when it is delivered by a person other than its issuer for the purpose of giving to the person receiving delivery the right to enforce the instrument. General Statutes § 42a-3-203(a).... Accordingly, a note that is unendorsed still can be transferred to a third party. Although that third party technically is not a holder of the note, the third party nevertheless acquires the right to enforce the note so long as that was the intent of the transferor." (Citation omitted; internal quotation marks omitted.) Berkshire Bank v. Hartford Club , 158 Conn.App. 705, 712, 120 A.3d 544, cert. denied, 319 Conn. 925, 125 A.3d 200 (2015). In this case, the plaintiff presented the court with the loan documents and the purchase and assumption agreement. Section 3.1 of that agreement states in relevant part: "[The plaintiff] hereby purchases from the [FDIC], and the [FDIC] hereby sells, assigns, transfers, conveys, and delivers to the [plaintiff], all right, title and interest of the [FDIC ] in and to all of the assets (real, personal and mixed, wherever located and however acquired) including all subsidiaries, joint ventures, partnerships, and any and all other business combinations or arrangements, whether active, inactive, dissolved or terminated, of [Park Avenue] whether or not reflected on the books of [Park Avenue ] as of Bank Closing ." (Emphasis added.) The court, in its findings of fact, found that the purchase and assumption agreement indicated that the "FDIC transferred the defendant's obligation to [Park Avenue] to [Valley National]." We agree with the court that, by virtue of the express language in Section 3.1 of the March 12, 2010 purchase and assumption agreement, the plaintiff received from the FDIC, on behalf of Park Avenue, "all right, title and interest . in and to all of the assets . whether or not reflected on the books of [Park Avenue] as of Bank Closing." We also conclude that when the FDIC transferred to it "all" of Park Avenue's assets, the plaintiff became a nonholder with the rights of a holder. Our decision in Berkshire Bank makes clear that an unendorsed note can still be transferred and enforced, and that although a third party technically is not a holder of the note, that third party nevertheless acquires the right to enforce the note so long as that was the intent of the transferor. Berkshire Bank v. Hartford Club , supra, 158 Conn.App. at 712, 120 A.3d 544. Therefore, the defendant's first argument, that the note is unenforceable because it is not specially endorsed to the plaintiff or endorsed in blank, fails because the note was not rendered unenforceable by the lack of such endorsements. B Similarly, the defendant's second argument that the plaintiff could not prove that it was a nonholder that had acquired the rights of a holder fails because, although the plaintiff is not technically a holder of the note by virtue of its third-party status, it demonstrated that it acquired the right to enforce that note by way of the purchase and assumption agreement. That agreement evidenced the intent of the FDIC to transfer to the plaintiff Park Avenue's assets. The defendant also argues that the plaintiff cannot prove that it is a nonholder with the rights of a holder because the plaintiff's witness, Robinson, was not an employee of the plaintiff at the time that the plaintiff acquired the assets of Park Avenue, nor was he involved in the transaction between the FDIC and the plaintiff. This argument fails because Robinson's testimony was not offered to authenticate the loan documents and the purchase and assumption agreement as business records. Those exhibits already had been admitted. Rather, Robinson testified as to what information he relied on to reach the total sum owed under the defendant's contractual obligation with Park Avenue. See part II of this opinion. Moreover, a custodian or supervisor of business records, such as Robinson, need not always have made the record or seen it made in order to testify to its authenticity. Therefore, the defendant's argument that Robinson lacked personal knowledge of the documents at issue cannot succeed. See First Union National Bank v. Woermer , 92 Conn.App. 696, 708, 887 A.2d 893 (2005), cert. denied, 277 Conn. 914, 895 A.2d 788 (2006). C The defendant's final argument is that the plaintiff could not prove chain of title because the purchase and assumption agreement does not specifically identify the My Little Star loan as an acquired asset. Specifically, he argues that Robinson mistakenly relied on Section 3.1 of the purchase and assumption agreement to support his contention that the My Little Star loan was transferred to the plaintiff because nowhere in the agreement is there a "listing, identification, enumeration, or description as to what the [Park Avenue] assets consist of, and whether or not they include the [My Little Star] loan." Schedule 3.1 of the purchase and assumption agreement provides, inter alia, that the list of assets acquired "may not include all loans and assets" and that "[t]he list may be replaced with a more accurate list post closing." Paragraph (d) of Schedule 3.2, entitled "Purchase Price of Assets or assets," reads "Loans: Book Value." The agreement defines "loans," in relevant part, to mean "revolving commercial lines of credit," such as the loan at issue. On the basis of this evidence, we agree with the court's conclusion that the plaintiff had "provided the necessary documentation to establish that [Valley National] is the successor in interest" to the FDIC as receiver for Park Avenue and, thus, had standing to prosecute the present action. Accordingly, we reject the defendant's first claim. II The defendant's second claim is that the trial court erred when it determined that Valley National had submitted sufficient evidence from which the outstanding loan balance could be accurately established. Specifically, the defendant argues that he did not create some of the exhibits entered by the plaintiff to establish the debt owed, and that the testimony of Robinson was not sufficient to establish an accurate calculation of the outstanding debt. We disagree and conclude that the trial court's findings as to damages are supported by sufficient evidence and, thus, are not clearly erroneous. The following additional facts are relevant to our resolution of the defendant's claim. At trial, the defendant testified that his signature was on all of the loan documents, and admitted that his signature and a loan number matching the same loan number on the promissory note was on most of the drawdown requests, listed as plaintiff's exhibits ten through eighteen. The plaintiff presented testimony from Robinson, a loan workout officer employed by Valley National, to establish the total debt owed. Robinson testified that, as the loan officer assigned to the loan at issue, he was familiar with the file and that Valley National was the current holder of the loan. He also testified that Valley National became holder of the loan when it purchased, by way of a purchase and assumption agreement, the assets of Park Avenue from the FDIC as receiver. In addition to the note and other loan documents, Robinson was asked to identify and testify about documents that had been admitted into evidence, over the defendant's objections, as plaintiff's exhibits ten through eighteen. Robinson testified that these exhibits were internal transfer memoranda that documented requested and transferred funds from Park Avenue to My Little Star. Robinson testified that when he calculated the balance of the loan, he relied on the Park Avenue loan history, admitted as the plaintiff's exhibit twenty-one, and not the internal transfer memoranda. According to Robinson, the loan history showed a principal balance in the amount of $248,723.06, and that, as of July 22, 2015, the total interest that had accrued on the principal balance was $79,286.22. He further testified that the per diem amount, under the terms of the note, was $36.27 under the note rate of 5.25 percent. On the basis of such evidence, the trial court found that the defendant had made no payments on the loan obligation as the personal guarantor. It further found that the plaintiff had met its burden of establishing the sum of its alleged debts, and entered judgment against the defendant in the amount of $330,040.40, which represented a principal balance of $248,723.06 and interest as of September 17, 2015, in the amount of $81,317.34. "With regard to the trial court's factual findings, the clearly erroneous standard of review is appropriate.... A factual finding is clearly erroneous when it is not supported by any evidence in the record or when there is evidence to support it, but the reviewing court is left with the definite and firm conviction that a mistake has been made.... Simply put, we give great deference to the findings of the trial court because of its function to weigh and interpret the evidence before it and to pass upon the credibility of witnesses...." (Internal quotation marks omitted.) Miller v. Guimaraes , 78 Conn.App. 760, 766-67, 829 A.2d 422 (2003). "It is well established that damages are a necessary element for a breach of contract action.... The trial court has broad discretion in determining damages.... The determination of damages involves a question of fact that will not be overturned unless it is clearly erroneous.... Damages are recoverable only to the extent that the evidence affords a sufficient basis for estimating their amount in money with reasonable certainty.... Thus, [t]he court must have evidence by which it can calculate the damages, which is not merely subjective or speculative, but which allows for some objective ascertainment of the amount." (Citation omitted; internal quotation marks omitted.) Milford Bank v. Phoenix Contracting Group, Inc. , 143 Conn.App. 519, 524-25, 72 A.3d 55 (2013). In the present case, the trial court's award of damages is consistent with the figures provided in exhibit twenty-one and as testified to by Robinson, with the exception of the accrued interest to date, which was updated to reflect the current payoff amount. Although Robinson testified that he did not rely on the drawdown requests, marked as the plaintiff's exhibits ten through eighteen, in arriving at his conclusion as to the total amount owed, such testimony did not undermine Robinson's testimony that exhibit twenty-one, the Park Avenue loan history, accurately reflected the financial transactions between Park Avenue and My Little Star. Further, although the defendant testified that he did not authorize the amounts in the drawdown requests, he presented no evidence from which the court reasonably could have concluded that the amounts at issue had not been disbursed to My Little Star. The Park Avenue loan history reflected in exhibit twenty-one, the defendant's testimony admitting to his signatures on each of the loan documents, and the testimony of Robinson, provided sufficient evidence of the debt owed by My Little Star to the plaintiff at the time of trial, and therefore of the amount owed by the defendant as the personal guarantor of My Little Star's debt. The award of damages is fully supported by the record before us, and, thus, the court's finding that the plaintiff had submitted sufficient evidence from which the outstanding loan balance could be accurately established is not clearly erroneous. The judgment is affirmed. In this opinion the other judges concurred. Although the defendant raises in his brief a third claim that the trial court erred "in entering judgment against" him, this claim is, in substance, a reiteration of the first two claims. The resolution of the defendant's first two claims renders his third claim meritless, and thus, we need not address it here. The defendant contends in his brief: "[The] plaintiff, based upon the evidence offered, lacked standing to maintain its claim." The plaintiff argues that, because the trial court made a factual finding as to Valley National's ownership of the loan documents, we must review the defendant's claim under the clearly erroneous standard. In substance, however, the defendant's first claim challenges Valley National's standing, and, therefore, the standard of review is plenary. See JPMorgan Chase Bank, National Assn. v. Simoulidis, 161 Conn.App. 133, 142, 126 A.3d 1098 (2015), cert. denied, 320 Conn. 913, 130 A.3d 266 (2016). " 'Holder' means: (A) The person in possession of a negotiable instrument that is payable either to bearer or to an identified person that is the person in possession; (B) The person in possession of a negotiable tangible document of title if the goods are deliverable either to bearer or to the order of the person in possession; or (C) The person in control of a negotiable electronic document of title." General Statutes § 42a-1-201(b)(21). The defendant challenges the transfer of the loan from Park Avenue to the FDIC. The court found that "[a]t some point, [Park Avenue] was seized by the FDIC." The record supports this finding, and therefore we also conclude that Park Avenue's assets, including the defendant's loan, were transferred to the FDIC as receiver. Moreover, the defendant testified that Park Avenue went out of business and that it was seized by the FDIC. The defendant's challenge to that transfer fails. The defendant objected to the admission of the plaintiff's exhibit fourteen, a drawdown request dated July 23, 2008, because he could not confirm a signature. He did confirm, however, that the loan number contained on the drawdown request was the same loan number as contained in the promissory note. The defendant also testified that he believed the total amount drawn down on the loan at issue was $40,000 to $50,000, and that his accounting firm also had authority to request funds from the loan's line of credit. The court ultimately overruled the defendant's objection. In its memorandum of decision, the court determined that "[a]lthough [the defendant] testified that his accountants had [the] authority to make these drawdowns, and therefore he was unaware of the drawdowns, there was no credible evidence to support this claim."

12490394

EH INVESTMENT COMPANY, LLC v. CHAPPO LLC et al.

EH Inv. Co. v. Chappo LLC

2017-07-04

AC 38693

800

815

166 A.3d 800

166

West's Atlantic Reporter, Third Series

Connecticut Appellate Court

Connecticut

2021-08-27T20:57:14.020814+00:00

Fastcase

EH INVESTMENT COMPANY, LLC v. CHAPPO LLC et al.

EH INVESTMENT COMPANY, LLC v. CHAPPO LLC et al. AC 38693 Appellate Court of Connecticut. Argued March 7, 2017 Officially released July 4, 2017 Scott D. Brenner, for the appellants (defendants). Robert R. Lewis, for the appellee (plaintiff). Prescott, Beach and Bishop, Js.

7388

45905

PRESCOTT, J. The defendants, Chappo LLC and its principal, Richard J. Chappo, appeal from the judgment of the trial court rendered in favor of the plaintiff, EH Investment Company, LLC, on those counts of the complaint alleging breach of contract by Chappo LLC and conversion by both defendants. The court determined that the defendants, whom the plaintiff had engaged to find a lender willing to make a commercial loan that the plaintiff needed in order to redeem a foreclosed office building it had owned, improperly refused to return the plaintiff's deposit after the plaintiff informed them that it would be unable to proceed with a loan because it had not obtained a lease extension from the building's primary tenant, the proceeds from which were intended to service the debt on the loan. The trial court determined that the existence of an executed lease with the tenant was a condition precedent to the parties' loan procurement contract, the nonoccurrence of which excused the plaintiff's performance and required Chappo LLC to return the plaintiff's deposit. The court awarded the plaintiff total damages of $47,500, the amount of the deposit. The defendants claim on appeal that the trial court improperly determined that the existence of a lease extension was a condition precedent to the parties' contract. According to the defendants, the terms of the parties' contract were memorialized in a written engagement letter drafted by Chappo, and Chappo LLC successfully performed its only duty under the parties' contract by successfully finding a lender willing to make a loan on the terms sought by the plaintiff as set forth in the engagement letter. Further, they contend that because the engagement letter unambiguously set forth express terms governing the disposition of the engagement deposit, which did not include any provision requiring Chappo LLC to return the deposit if the plaintiff was unable to obtain a lease after Chappo LLC procured a commitment from a lender, they were entitled to keep the plaintiff's deposit. For the reasons that follow, we agree with the defendants. Accordingly, we reverse in part the judgment of the trial court and remand the case to that court with direction to render judgment in favor of the defendants on the breach of contract and conversion counts. The remainder of the judgment is affirmed. The relevant facts underlying this appeal are set forth by the court in its memorandum of decision and, generally, are not disputed. The plaintiff is a real estate development company. Its principal, Fred Gordon, is a real estate investor and developer who holds a master's degree in business administration, in addition to being a practicing attorney. Gordon conducts his business from Bloomfield Hills, Michigan. Chappo also has an master's degree in business administration and has worked for more than thirty years in financing and real estate. His business, Chappo LLC, is located in Connecticut and specializes in arranging financing for corporate properties. Prior to entering into the business transaction now at issue, Gordon and Chappo were familiar with each other from Chappo's earlier experiences in investment banking, and the two men had communicated on several occasions over a twelve year period about financing opportunities for various properties. In November, 2012, Gordon spoke with Chappo by phone regarding a 94,000 square foot commercial office building located on a twelve acre property in Auburn Hills, Michigan. The plaintiff previously owned that property, but recently had lost title to a bank in foreclosure proceedings after having defaulted on a loan obligation. The plaintiff had leased the building to Huntsman Corporation (Huntsman), which remained the building's primary tenant. Two years remained on the original lease. Gordon informed Chappo that Huntsman was considering whether to renew or extend the lease. Gordon wished to obtain financing in order to redeem the property from the bank, but indicated to Chappo that, due to the distressed state of Michigan's economy, many lenders would not consider financing property there, especially foreclosed property. Over the next few weeks, Gordon and Chappo continued to discuss by phone or by e-mail details of a potential financing deal for the property, which included details of the plaintiff's efforts to negotiate a lease extension with Huntsman as well as general information about the property market in Auburn Hills. In an e-mail dated November 15, 2012, Gordon sent Chappo a memorandum that contained specifics of the proposed Huntsman lease. The proposed lease was to run for a period of fifteen years and have an annual lease rental value of $1,220,000. Around the same time, Gordon also sent a memorandum to the executives at Huntsman who were handling lease negotiations with the plaintiff, in which he indicated that the plaintiff hoped to obtain a commitment to a lease extension, subject to Huntsman senior management approval, by early January, 2013, in order to permit the plaintiff to obtain a refinancing commitment from a lender. Gordon informed Chappo that any lease with Huntsman would need the approval of Huntsman senior management. As succinctly explained by the trial court, "Gordon's plan was to finance the [redemption] price of the property after [the plaintiff] had defaulted on the existing loan at enough savings that, if he could get [Huntsman] to agree to extend the lease under terms similar to those then in existence, the plaintiff would gain a windfall profit of approximately $5 million." The defendants subsequently began working on obtaining the financing sought by the plaintiff. To that end, Chappo prepared an engagement letter dated November 20, 2012, that "included all the terms of the loan and indicated that [Chappo LLC] had an exclusive engagement to procure a lender which would then provide financing for a single tenant property occupied by [Huntsman] in accordance with the terms outlined in the engagement letter." Those terms, as the trial court indicated, included "that the tenant would be [Huntsman] and that the lender would be an institutional lender, that the term of the loan would be ten years, that the principal amount would be $9,500,000 at an interest rate of 5.25 percent, and that debt service would be based on a twenty year amortization." Lease payments would be made by Huntsman directly to the lender to service the debt, with any excess returned to the plaintiff. The engagement letter also contained a detailed description of the property, set forth basic terms of the as yet unrealized Huntsman lease extension, and indicated that the lender would receive a first mortgage security interest in the property. The closing and funding of the loan were to occur approximately thirty days from the date of the lender commitment. Pursuant to the engagement letter, the plaintiff agreed to pay Chappo LLC a "[p]lacement [f]ee" equal to $95,000, 1 percent of the principal amount of the note, to be paid out of the proceeds when the loan closed. The plaintiff also agreed that, upon executing the engagement letter, it would wire Chappo LLC an "[e]ngagement [d]eposit" equal to one half of 1 percent of the principal amount of the proposed $9,500,000 note, or $47,500. The engagement letter contained the following language directly pertaining to the return or retention of the engagement deposit: "In the event Chappo LLC is unable to provide a [l]ender commitment as stipulated above and such time frame is not extended, the [e]ngagement [d]eposit will be returned to the [b]orrower. Chappo LLC will retain the deposit if the [b]orrower fails to provide requested information in a timely manner or fails to complete the financing after Chappo LLC had provided a [l]ender commitment." Importantly, the penultimate paragraph of the engagement letter provided as follows: "It is understood and agreed that the terms of this [e]ngagement shall supersede any and all prior [e]ngagements, arrangements or understandings among the parties with respect to the subject matter discussed above." On January 4, 2013, the plaintiff executed the engagement letter and delivered it to the defendants. Attached to the executed engagement letter was a memorandum from Gordon that stated as follows: "Enclosed is an executed copy of the engagement letter for the Huntsman property. The deposit of $47,500 will be wire transferred. The deposit will be returned within five days of the time at which it appears a loan pursuant to the application is not probable of funding by February 28, 2013, or an agreed later funding date. Looking forward to the expedited loan closing." Gordon later wire transferred $47,500 to Chappo LLC. As previously noted, Gordon also made changes directly on the engagement letter because he was still in the process of negotiating the exact terms of the lease extension with Huntsman. See footnote 4 of this opinion. The defendants did not respond or object to the changes made by Gordon on the executed engagement letter or to the language in the accompanying memorandum. On January 10, 2013, the defendants e-mailed the plaintiff portions of a loan application from a lender, American National Insurance Company (American National). Gordon, finding the terms acceptable, completed the relevant pages and returned them to the defendants within hours. After receiving the returned pages of the application, an investment officer from American National "circulated the complete application/commitment letter to [the] investment committee and the senior vice president with authority to commit to the loan. The final version of the mortgage loan application was e-mailed to Gordon on January 22, 2015, with a hard copy [sent] direct from American National . the following morning. On the formal application was a signature block for Gordon and for the senior vice president of American National, Scott F. Brast. As soon as Gordon signed and returned the original, Brast would countersign, and the document would become the commitment letter. The application/commitment letter included all the terms specified by Gordon's engagement letter as well as an agreement by American National to fund by February 28, 2013, the date needed by Gordon." Section 4.4 of the application/commitment letter provides: "At the time of closing, Applicant will have entered into a lease or leases and/or lease guarantees, the terms and conditions of which are to be approved by Lender, with a tenant or tenants and lease guarantors approved by Lender, to occupy 94,000 square feet with an annual rental from such lease or leases to produce no less than $1,183,000." The document also provided that American National approved Huntsman for occupancy and as lease guarantors. The plaintiff, however, would not execute the application/commitment letter because it did not have an executed lease agreement with Huntsman, and it surmised that American National would never approve and fund the loan without the extended Huntsman lease as security. From late January, 2013, through mid-February, 2013, there was "a paucity of communication" between the parties. Although American National expressed some concern to the defendants that it might no longer be able to fund the transaction within the requisite time frame, Gordon continued to tell the defendants that he was waiting to hear from Huntsman about executing the lease extension, although he actually was still negotiating with Huntsman about the terms of the lease. As set forth by the trial court, "Huntsman had retained . a real estate services organization to represent it in negotiations regarding the proposed lease renewal. Gordon informed Chappo that the lease advisor informed Huntsman that the terms which Gordon was seeking were too generous to the [plaintiff] and that Huntsman was not offering [the plaintiff] the terms which Gordon had outlined to Chappo. Gordon then informed Chappo that he was working with the original lender . to extend the redemption date deadline of the foreclosure by consent. On March 1, 2013, Gordon sent a memorandum to [the original lender] stating that a tentative lease agreement had been concluded with Huntsman satisfactory to the lender of the redemption funding and that all of the redemption loan documentation had been completely negotiated and prepared. Gordon had been negotiating a separate transaction with a separate lease extension involving a separate lender." The defendants continued to believe that they could broker successfully the deal between American National and the plaintiff. Chappo contacted the investment officer from American National, who presented the transaction to its investment committee. The committee subsequently voted to go forward with the loan. Nevertheless, on March 3, 2013, the plaintiff advised the defendants that "based on current circumstances we are withdrawing the [a]pplication." The plaintiff requested that the defendants return the engagement deposit. The defendants refused, citing the engagement letter's exclusivity clause, which the defendants posited the plaintiff had breached by negotiating directly with another lender. On December 29, 2013, the plaintiff commenced the underlying action. The complaint contained five counts, all premised upon the defendants' alleged wrongful retention of the engagement deposit. Count one alleged breach of contract by Chappo LLC, count two alleged statutory theft against both defendants, count three alleged that the defendants were liable for conversion, count four alleged that the defendants breached the implied covenant of good faith and fair dealing, and count five alleged that the defendants' actions amounted to a violation of the Connecticut Unfair Trade Practices Act (CUTPA). See footnote 1 of this opinion. The defendants filed an answer that denied the material allegations of the complaint, raised a special defense of fraud, and alleged two counterclaims against the plaintiff sounding in fraud and breach of contract. The plaintiff filed a response in which it denied the allegations in the special defense and counterclaims. The matter was tried to the court, Hon. Michael Hartmere , judge trial referee, on May 13 and May 14, 2015. Gordon and Chappo were the only witnesses to testify. The parties each submitted posttrial memoranda. The plaintiff argued in relevant part that the defendants had no legitimate basis for retaining the engagement deposit because Chappo knew from the outset that the entire transaction at issue was predicated on Huntsman executing a lease renewal with the plaintiff, and Chappo acknowledged at trial that no lender would commit to funding a loan without the lease as security. The plaintiff further argued that obtaining the lease was not a promissory obligation undertaken by the plaintiff as suggested by the defendants. Rather, the existence of a lease was a condition precedent, the failure of which voided the contractual obligations of the parties and, thus, obligated the return of the deposit. In their posttrial briefs, the defendants invoked the doctrine of prevention in defense of the breach of contract allegations, arguing that the plaintiff was not entitled to a return of the deposit because, despite Chappo LLC's having found a lender who was willing to provide a loan to the plaintiff in accordance with all the terms specified in the engagement letter, the plaintiff refused to sign and return the application/commitment, thus preventing the execution of a formal commitment letter. Further, the defendants argued that the lease extension with Huntsman was never a condition of the agreement to secure a lender's commitment, but only a condition of ultimately funding the loan. The loan could have proceeded if a lease with terms more favorable to Huntsman could have been negotiated. On October 29, 2015, the court issued a memorandum of decision. The court found in favor of the plaintiff on the breach of contract and conversion counts, but in favor of the defendants on the remainder of the complaint. The court reasoned that the Huntsman lease renewal was a condition precedent to the parties' contract and that, because that condition was never met, the plaintiff had no duty to perform and was entitled to the return of its deposit. The court found that the defendants' failure to return the deposit constituted a breach of contract by Chappo LLC, and, because the defendants exercised "ownership over the plaintiff's property to the plaintiff's harm," the defendants' retention of the deposit also amounted to a conversion. The court nevertheless found that the plaintiff had failed to establish the necessary larcenous intent on the part of the defendants to establish the elements of a statutory theft. Further, the court found that the plaintiff failed to demonstrate that the defendants' actions were done in bad faith or were immoral, unethical, and unscrupulous so as to support, respectively, the plaintiff's counts alleging breach of the implied covenant of good faith and fair dealing or a CUTPA violation. Because the defendants failed to brief their special defense and counterclaims, the court deemed them abandoned. The defendants filed a motion to reargue and for reconsideration on November 18, 2015. The court denied that motion on December 2, 2015. This appeal followed. The defendants claim on appeal that the trial court improperly determined that Chappo LLC breached its contract with the plaintiff by failing to return the engagement deposit. The defendants argue that, although obtaining a lease extension from Huntsman might have been integral to the plaintiff's ability to close on the loan commitment secured by Chappo LLC, the existence of a lease was not, under the express terms of the parties' contract, a condition the absence of which mandated a return of the engagement deposit. The plaintiff agreed to compensate Chappo LLC from the proceeds realized at the closing of a loan, assuming Chappo LLC was able to secure a loan commitment. The deposit requirement reasonably can be viewed as a means to protect the defendants in the event that they secured a commitment but the loan failed to close through no fault of their own. In other words, the deposit signaled the parties' intent to allocate a large portion of the risk that a lease extension or alternative security for the loan would never materialize to the party that was in control of the lease negotiations: the plaintiff. The defendants assert that because Chappo LLC found a lender that was willing to commit to fund a loan on the terms agreed upon, which was the only obligation it undertook pursuant to the plain and unambiguous terms of the parties' contract, the defendants had a right to retain the deposit in accordance with the express terms of the engagement letter despite the fact that a loan never actually closed. We agree and conclude that the court improperly construed the parties' contract as requiring a return of the deposit. Because the defendants' claim challenges the court's interpretation of the parties' contract, particularly its having construed the contract as containing a condition precedent, we begin our analysis by setting forth the applicable standard of review and general principles of law relevant to the construction of contracts. "The law governing the construction of contracts is well settled. When a party asserts a claim that challenges the trial court's construction of a contract, we must first ascertain whether the relevant language in the agreement is ambiguous." (Internal quotation marks omitted.) Ramirez v. Health Net of the Northeast, Inc. , 285 Conn. 1, 13, 938 A.2d 576 (2008). "If a contract is unambiguous within its four corners, intent of the parties is a question of law requiring plenary review.... [If] the language of a contract is ambiguous, the determination of the parties' intent is a question of fact, and the trial court's interpretation is subject to reversal on appeal only if it is clearly erroneous." (Internal quotation marks omitted.) Assn. Resources, Inc . v. Wall , 298 Conn. 145, 183, 2 A.3d 873 (2010). "A contract is ambiguous if the intent of the parties is not clear and certain from the language of the contract itself.... Accordingly, any ambiguity in a contract must emanate from the language used in the contract rather than from one party's subjective perception of the terms.... "[W]e accord the language employed in the contract a rational construction based on its common, natural and ordinary meaning and usage as applied to the subject matter of the contract.... [If] the language is unambiguous, we must give the contract effect according to its terms.... [If] the language is ambiguous, however, we must construe those ambiguities against the drafter.... Moreover, in construing contracts, we give effect to all the language included therein, as the law of contract interpretation . militates against interpreting a contract in a way that renders a provision superfluous." (Citations omitted; internal quotation marks omitted.) Ramirez v. Health Net of the Northeast, Inc. , supra, 285 Conn. at 13-14, 938 A.2d 576. In ascertaining the intent of contracting parties, we are also mindful that a court's interpretation of a contract must also be informed by whether the terms of the contract are contained in a fully integrated writing. This is important because "[t]he parol evidence rule prohibits the use of extrinsic evidence to vary or contradict the terms of an integrated written contract.... The parol evidence rule does not apply, however, if the written contract is not completely integrated." (Citation omitted; internal quotation marks omitted.) Benvenuti Oil Co. v. Foss Consultants, Inc. , 64 Conn.App. 723, 727, 781 A.2d 435 (2001). An integrated contract is one that the parties have reduced to written form and which represents the full and final statement of the agreement between the parties. See id., at 728-29, 781 A.2d 435. Accordingly, an integrated contract must be interpreted solely according to the terms contained therein. Whether a contract is deemed integrated oftentimes will turn on whether a merger clause exists in the contract. Id., at 728, 781 A.2d 435. The presence of a merger clause in a written agreement establishes conclusive proof of the parties' intent to create a completely integrated contract and, unless there was unequal bargaining power between the parties, the use of extrinsic evidence in construing the contract is prohibited. See Tallmadge Bros., Inc. v. Iroquois Gas Transmission System, L.P. , 252 Conn. 479, 502-504, 746 A.2d 1277 (2000). "We long have held that when the parties have deliberately put their engagements into writing, in such terms as import a legal obligation, without any uncertainty as to the object or extent of such engagement, it is conclusively presumed, that the whole engagement of the parties, and the extent and manner of their understanding, was reduced to writing. After this, to permit oral testimony, or prior or contemporaneous conversations, or circumstances, or usages [etc.], in order to learn what was intended, or to contradict what is written, would be dangerous and unjust in the extreme . Although there are exceptions to this rule, we continue to adhere to the general principle that the unambiguous terms of a written contract containing a merger clause may not be varied or contradicted by extrinsic evidence." (Citation omitted; footnote omitted; internal quotation marks omitted.) Id., at 502-503, 746 A.2d 1277 ; see also 2 Restatement (Second), Contracts § 204, comment (e), p. 98 (1981) ("[w]here there is complete integration and interpretation of the writing discloses a failure to agree on an essential term, evidence of prior negotiations or agreements is not admissible to supply the omitted term"). Courts must always be mindful that "parties are entitled to the benefit of their bargain, and the mere fact it turns out to have been a bad bargain for one of the parties does not justify, through artful interpretation, changing the clear meaning of the parties' words." 13 R. Lord, Williston on Contracts (4th Ed. 2000) § 38:13, p. 427. Because the court interpreted the parties' contract as containing an unmet condition precedent, a brief discussion of the legal parameters of contractual conditions is necessary. "A condition precedent is a fact or event which the parties intend must exist or take place before there is a right to performance.... A condition is distinguished from a promise in that it creates no right or duty in and of itself but is merely a limiting or modifying factor.... If the condition is not fulfilled, the right to enforce the contract does not come into existence.... Whether a provision in a contract is a condition the nonfulfillment of which excuses performance depends upon the intent of the parties, to be ascertained from a fair and reasonable construction of the language used in the light of all the surrounding circumstances when they executed the contract." (Citations omitted.) Lach v. Cahill , 138 Conn. 418, 421, 85 A.2d 481 (1951) ; see also 2 Restatement (Second), supra, § 224, p. 160 ("[a] condition is an event, not certain to occur, which must occur, unless its non-occurrence is excused, before performance under a contract becomes due"). Conditions precedent can be either express or implied. 8 C. McCaulif, Corbin on Contracts (J. Perillo ed., Rev. Ed. 1999) § 30.10, p. 19. An express condition precedent is one that springs from language in the contract and qualifies one or both parties' rights or duties of performance. Id., § 30.7, o. 14, § 30.10, p. 19. Although not strictly required, parties often signal their agreement to create an express condition precedent by using words such as "on [the] condition that," "provided that," unless and until, or "if." (Internal quotation marks omitted.) 2 Restatement (Second), supra, § 226, comment (a), p. 170. In addition to express conditions precedent, a condition precedent may be implied or "supplied by the court," often in circumstances in which the court determines that the contracting parties have failed to foresee or recognize the significance of an event or its potential effect on the parties' rights. See id., § 204, comments (b) and (d), pp. 97-98. Interpreting a contract as containing an implied condition precedent, however, is disfavored if the result will be a forfeiture of compensation or other benefit, especially if that forfeiture falls on a party who had no control over whether the condition or event would occur. This principle is aptly reflected in § 227 of the Restatement (Second), supra, p. 174, which provides in relevant part: "In resolving doubts as to whether an event is made a condition of an obligor's duty, and as to the nature of such an event, an interpretation is preferred that will reduce the obligee's risk of forfeiture, unless the event is within the obligee's control or the circumstances indicate that he has assumed the risk." As explained in the commentary of the rule, "[if] the nature of [a] condition is such that the uncertainty as to [an] event will be resolved before either party has relied on its anticipated occurrence, both parties can be entirely relieved of their duties, and the obligee risks only the loss of his expectations. [If], however, the nature of the condition is such that the uncertainty is not likely to be resolved until after the obligee has relied by preparing to perform or by performing at least in part, he risks forfeiture. If the event is within his control, he will often assume this risk. If it is not within his control, it is sufficiently unusual for him to assume the risk that, in case of doubt, an interpretation is preferred under which the event is not a condition." 2 Restatement (Second), supra, § 227, comment (b), pp. 175-76. Thus, whereas the policy favoring freedom of contract would require that an express condition precedent be honored even though a forfeiture would result, if "it is doubtful whether or not the agreement makes an event a condition of an obligor's duty, an interpretation is preferred that will reduce the risk of forfeiture." Id., p. 175. The Restatement (Second) further posits that even in those cases in which the court finds a condition precedent exists, "[t]o the extent that the non-occurrence of a condition would cause disproportionate forfeiture, a court may excuse the non-occurrence of that condition unless its occurrence was a material part of the agreed exchange." 2 Restatement (Second), supra, § 229, p. 185. Turning to the defendants' claim, we first conclude that the language of the engagement letter is unambiguous and, therefore, the intent of the parties is a question of law. We agree with the defendants that the court improperly construed the parties' contractual agreement as intending the occurrence of a Huntsman lease extension as a condition precedent of the parties' contractual obligations such that the nonoccurrence of the lease extension completely excused the plaintiff's performance and required the defendants to return the plaintiff's engagement deposit. In particular, as we will discuss further, the court in this case did not determine whether the parties' contract was a fully integrated writing between commercial entities with equal bargaining power and, thus, entitled to stricter adherence to its express terms; did not state as part of its analysis whether the express contractual provisions regarding the retention or return of the deposit were ambiguous, inapplicable, or insufficient to resolve the parties' dispute; did not identify what contractual language, provision, or extrinsic evidence the court relied upon in determining that obtaining a lease extension was a condition precedent of the contract; and, perhaps most importantly, did not address whether its construction of the contract would result in a forfeiture of compensation by Chappo LLC, despite the fact that Chappo LLC had no involvement in or control over the lease negotiations. After considering these factors, we conclude that the court improperly construed the parties' contract and incorrectly determined that Chappo LLC had breached that contract and wrongfully retained the plaintiff's deposit. We note at the outset that there is no indication that the court gave proper deference to the language of the parties' contract, which was a fully integrated writing. The court determined, and we agree, that a valid contract was formed between the parties as memorialized in the engagement letter. Likewise, there is no disagreement that the terms of that contract also included the modifications that Gordon made at the time he signed the engagement letter on behalf of the plaintiff, both the changes he made to the executed engagement letter as well as the additional language in his accompanying memorandum. Pursuant to the contract, Chappo LLC promised to obtain a commitment from a lender willing to fund a loan on the terms supplied by the plaintiff in the contract, and, in exchange for that promise, the plaintiff agreed to pay Chappo LLC a commission equal to 1 percent of the loan from the proceeds at closing. The plaintiff also agreed to provide Chappo LLC with a deposit equal to roughly one half of the expected commission. In its analysis of the breach of contract claim, the court makes no mention of the paragraph in the engagement letter that, in legal effect, amounted to a merger clause. That paragraph provided that "the terms of this [e]ngagement shall supersede any and all prior [e]ngagements, arrangements or understandings among the parties with respect to the subject matter discussed above ." (Emphasis added.) The inclusion of this merger clause was prima facie evidence that the parties intended their written agreement to encompass "the whole engagement of the parties, and the extent and manner of their understanding, was reduced to writing." (Internal quotation marks omitted.) Tallmadge Bros., Inc. v. Iroquois Gas Transmission System, L.P. , supra, 252 Conn. at 502, 746 A.2d 1277. Although the court notes that Chappo drafted the engagement letter "with full knowledge that the lease extension had not been executed," the court did not find nor does the record disclose any imbalance in the parties' bargaining power. Both Gordon and Chappo are highly educated and familiar with these types of financial transactions, and, as evidenced by the changes that Gordon made to the engagement letter at the time he executed the contract, Gordon fully was capable of protecting the interests of the plaintiff. Rather than construe the language used by the parties, the court appears to have looked beyond the plain language of the agreement in deciding that the Huntsman lease was a condition precedent to any and all performance under the contract. Certainly, at the time the parties entered into their agreement, it is undisputed that the plaintiff had not yet secured a lease extension from Huntsman and that all parties were aware of that fact. Negotiation of the lease was ongoing at that time. Accordingly, this is not a situation where the parties failed to fully contemplate the occurrence or nonoccurrence of a particular event. Despite the uncertainty surrounding the lease, and likely because the window of time for redeeming the property was quickly closing, the plaintiff decided to enter into the agreement with Chappo LLC to find a lender that would be willing to commit to financing the plaintiff's redemption of the property under the assumption that a lease renewal would be executed prior to closing. The defendants had no part in negotiating that lease, which was entirely the responsibility of the plaintiff. The plaintiff had all the information necessary to gauge the likelihood of retaining Huntsman as a lessee or whether some alternative contingency for servicing the loan debt was possible, such as modifying the terms of the proposed lease or securing a different tenant altogether. Because Chappo LLC had no actual control over whether the plaintiff would be able to negotiate a new lease with Huntsman, the plaintiff was the party best situated to evaluate the risk that Chappo LLC would expend resources in obtaining a lender only to have the loan unable to close. To that end, if the plaintiff viewed the Huntsman lease as an indispensable part of its agreement with Chappo LLC, the plaintiff could have insisted that obtaining the lease be made a clear and express condition on its duty to compensate Chappo LLC for its efforts in obtaining a loan commitment. Alternatively, the plaintiff could have insisted that the engagement letter provide that Chappo LLC would return the deposit in the event that a lease never materialized. Instead, there is nothing in the parties' agreement that shifts any potential risk of the failure to obtain a lease from the plaintiff to Chappo LLC. Rather, the contract is clear and unambiguous that if Chappo LLC obtained a loan commitment in accordance with the plaintiff's proposed terms, and the loan failed to close, Chappo LLC was entitled to keep the deposit. Although, by agreement, the loan had to close in order for Chappo LLC to earn its full commission, and the loan almost certainly would not close without the intended lease with Huntsman, a notion that the defendants readily admit, nothing in the language of the parties' agreement expressly made obtaining the lease a condition precedent to the retention of the deposit. Chappo LLC simply had to secure the required loan commitment, which it did. Certainly, if it is clear from the facts and circumstances surrounding the making of a contract that the parties had failed to set forth expressly some condition that needed to exist before the parties' duty to perform under the contract ripened, a court has the authority to recognize and give effect to such an implied condition. In construing a fully integrated written contract, however, drafted and executed by sophisticated commercial parties, the court should be particularly wary before construing the contract to include an implied condition precedent, especially when supplying such a term will result in one of the parties forfeiting the benefits of his performance. It is true that, pursuant to the engagement letter, Chappo LLC agreed to be compensated from the proceeds generated by the loan's closing, and, thus, Chappo LLC accepted some risk that, should the loan fail to close, it would not be entitled to the full benefit of the bargain. Nevertheless, Chappo LLC also ensured that that risk was partially set off by requiring the plaintiff to provide a deposit. Pursuant to the engagement letter, Chappo LLC was required to return the deposit only if it failed to secure a loan commitment, which we have concluded did not occur here. Here, if we were to accept the court's construction of the parties' contract as containing an unmet condition precedent, this would result in a forfeiture of compensation to Chappo LLC, which had substantially performed its duties under the contract. The fact that the loan was unlikely to close due to circumstances outside the control of the defendants did not change the nature of the business arrangement between the plaintiff and Chappo LLC. Chappo LLC kept its promise to find the plaintiff a lender willing to finance on the agreed upon terms. The plaintiff was the party that, hoping to net approximately $5 million, had assumed the risk of engaging a loan broker before it had obtained the necessary lease commitment from Huntsman to secure a loan. It was incorrect for the court to rewrite the parties' contract in such a way as to shift that risk from the plaintiff to Chappo LLC. The judgment is reversed in part and the case remanded with direction to render judgment in favor of the defendants on the breach of contract and conversion counts. The judgment is affirmed in all other respects. In this opinion the other judges concurred. The trial court rendered judgment in favor of the defendants on the remaining counts of the complaint. Those counts, directed at both defendants, alleged statutory theft pursuant to General Statutes § 52-564, breach of the covenant of good faith and fair dealing, and a violation of the Connecticut Unfair Trade Practices Act, General Statutes § 42-110 et seq. The plaintiff has not appealed or cross appealed from those aspects of the court's judgment. In their appellate brief, the defendants assert that, for purposes of this appeal, they do "not dispute or seek to reverse the trial court's findings . with regard to the facts, and focus this appeal instead on the conclusions of law and judgment entered ." Under Michigan law, real property owners whose interest have been foreclosed have between six and twelve months in which to exercise their right of redemption. See Mich. Comp. Laws § 600.3140(1) and 600.3240. As noted by the court, "[t]he lease originally was to commence in November, 2012, but Gordon changed that [term on the executed engagement letter] to [March, 2013], with a term ending October 31, 2024. The lease was a triple net lease in which there are no landlord responsibilities. The lease payments Gordon [also] had corrected to be $1,183,000 for the first sixty-two months and $1,130,000 for the remaining term." There was no requirement in the agreement that the deposit be held in escrow or in a segregated account, and, accordingly, it was deposited into Chappo LLC's general operating account. The record reflects that after title to the property fully vested in the foreclosing bank it reached a new lease agreement with Huntsman. The bank then later sold the property to a third party subject to the Huntsman lease. The complaint contains a typographical error, referring to General Statutes § 52-54, rather than General Statutes § 52-564. Section 52-564 provides: "Any person who steals any property of another, or knowingly receives and conceals stolen property, shall pay the owner treble his damages." The defendants have not challenged that portion of the court's judgment in the present appeal. The plaintiff filed a motion to dismiss the appeal as untimely on the basis of a handwritten notation on the court's memorandum of decision indicating that notice of the court's decision had issued on October 28, 2015. The plaintiff argued that if the initial appeal period began to run on October 28, 2015, the defendants' November 18, 2015 motion for reconsideration was filed one day after the appeal period had expired and, as a result, the present appeal was untimely. See Practice Book § 63-1. The date stamp on the memorandum of decision, however, as well as the electronic docket, indicate that the court's memorandum was not filed with the court until October 29, 2015. We denied the plaintiff's motion to dismiss. As noted, the court also ruled in favor of the plaintiff on its conversion count on the basis of its determination that the defendants wrongfully retained and exercised control over the deposit after the plaintiff asked the defendants to return those funds. The defendants also challenge that aspect of the court's judgment. Our resolution of the appeal in favor of Chappo LLC on the breach of contract count, however, logically also requires a reversal on the conversion count against the defendants. "Conversion is an unauthorized assumption and exercise of the right of ownership over goods belonging to another, to the exclusion of the owner's rights." Discover Leasing, Inc. v. Murphy, 33 Conn.App. 303, 309, 635 A.2d 843 (1993). If the defendants were entitled to retain the deposit, they did not exercise unauthorized control over the plaintiff's funds. Accordingly, we limit our discussion to the breach of contract count. The plaintiff argues that the Gordon memorandum is a part of the parties' contract, and that the following language was intended to further condition Chappo LLC's duty to return the deposit in the event that a loan could not close: "The deposit will be returned within five days of the time at which it appears a loan pursuant to the application is not probable of funding by February 28, 2013, or an agreed later funding date." The defendants do not contest that the parties' contract includes the Gordon memorandum. They argue, however, that the provision in question should be construed as clarifying the last date on which a loan could fund in order to allow the plaintiff time to redeem the property and, accordingly, provides a specific time frame for the return of the engagement deposit should Chappo LLC be unable to obtain a commitment to fund by that date. In other words, the Gordon memorandum did not contain any new condition with respect to the return of the deposit but, as with the other changes Gordon made to the engagement letter, merely clarified an existing term in light of the state of events at the time he executed the engagement letter. In this case, it clarified the existing provision requiring Chappo LLC to return the deposit "[i]n the event Chappo LLC is unable to provide a [l]ender commitment as stipulated above and such time frame is not extended ." To the extent that the language in the Gordon memorandum is susceptible of two meanings, it should be read in conjunction with the contract as a whole and consistent with other terms. See C & H Electric, Inc. v. Bethel, 312 Conn. 843, 853, 96 A.3d 477 (2014). We are simply unpersuaded that any language in the Gordon memorandum supports in any way the court's determination that a Huntsman lease extension was a condition precedent of the parties' agreement or that the failure of the lease negotiations mandated that the defendants return the engagement deposit, the only compensation the defendants received for their work. The record before us shows that Chappo LLC found a lender, American National, that was fully committed to providing a loan to the plaintiff on the terms specified in the engagement letter including the as yet unattained Huntsman lease. The plaintiff suggests that Chappo LLC nevertheless failed to fully perform because it never obtained a duly executed commitment letter. The defendants counter that the only hindrance in obtaining the formal commitment letter from American National was Gordon's refusal to sign the application, and the doctrine of prevention prohibits a party from taking advantage of any failure in performance that the party acted to hinder. We find it unnecessary to engage in such analysis, however, for two reasons. First, the language of the contract required only "a [l]ender commitment" not a formal commitment letter from a lender. Second, even if a formal letter was necessary, because Chappo LLC had found a willing lender and all that remained to secure a formal commitment was the signing of the application, there was substantial performance. "The doctrine of substantial performance shields contracting parties from the harsh effects of being held to the letter of their agreements. Pursuant to the doctrine of substantial performance, a technical breach of the terms of a contract is excused, not because compliance with the terms is objectively impossible, but because actual performance is so similar to the required performance that any breach that may have been committed is immaterial." (Internal quotation marks omitted.) Mastroianni v. Fairfield County Paving, LLC, 106 Conn.App. 330, 340-41, 942 A.2d 418 (2008). Accordingly, Chappo LLC substantially performed all of the obligations it undertook to perform pursuant to the parties' contract.

12490393

WILLIAMS GROUND SERVICES, INC. v. Robert F. JORDAN

Williams Ground Servs., Inc. v. Jordan

2017-06-27

AC 38333

791

800

166 A.3d 791

166

West's Atlantic Reporter, Third Series

Connecticut Appellate Court

Connecticut

2021-08-27T20:57:14.020814+00:00

Fastcase

WILLIAMS GROUND SERVICES, INC. v. Robert F. JORDAN

WILLIAMS GROUND SERVICES, INC. v. Robert F. JORDAN AC 38333 Appellate Court of Connecticut. Argued February 8, 2017 Officially released June 27, 2017 Robert D. Russo, III, with whom was Colin B. Connor, for the appellant (defendant). Paul S. Nakian, for the appellee (plaintiff). Alvord, Prescott and Bear, Js.

3866

23754

BEAR, J. The defendant, Robert F. Jordan, appeals from the judgment rendered, following a bench trial, in favor of the plaintiff, Williams Ground Services, Inc., on the plaintiff's claim of payment due for unpaid landscaping and snow plowing services. On appeal, the defendant claims that the trial court erred by (1) determining that the statute of limitations had been tolled because he unequivocally acknowledged the debt and (2) admitting certain documents that he argues are inadmissible under various provisions of the Connecticut Code of Evidence. We affirm the judgment of the trial court. The following facts, as found by the court, and procedural history are relevant to the resolution of this appeal. The plaintiff's principal, Ronald Williams, beginning in approximately 2001, "performed lawn, cleanup, lawn maintenance, and snow plowing services" for the defendant at his single family home in Darien. These services were provided by Williams annually from 2001 through 2013, and were billed to the defendant, who made payments on an irregular and infrequent basis. At some point, the plaintiff became aware that the defendant's house was for sale, and the two parties discussed the matter. When the sale of the home was imminent, the defendant asked the plaintiff to plow the driveway so that a moving company could move him out safely. The defendant indicated that the plaintiff would receive a "fat check" at the closing. He also indicated that the outstanding bill would be paid in full. The plaintiff acceded to the defendant's request and plowed the driveway. On January 6, 2015, the plaintiff commenced this action against the defendant to recover the outstanding balance due for his services. The defendant filed an answer and three special defenses asserting that (1) the plaintiff sought compensation for services he did not provide, (2) the plaintiff was not the entity the defendant knew to have performed work on his property, and (3) the plaintiff was not entitled to the punitive damages and attorney's fees he claimed. The parties subsequently submitted pretrial briefs in which the defendant for the first time raised a statute of limitations defense as a basis for dismissing the action, and the plaintiff argued that the continuing course of conduct doctrine tolled the statute of limitations. On August 18, 2015, following a bench trial, the court issued its memorandum of decision. The court found that the defendant had waived any statute of limitations defense by failing to raise it as a special defense. Alternatively, the court found that the defendant's several acknowledgments of the debt and the conduct of the parties tolled the statute of limitations. The court also found that the defendant had not proved his first and second special defenses, but it found, pursuant to his third special defense, that he had proved that the plaintiff was not entitled to punitive damages or attorney's fees. Finally, the court found in favor of the plaintiff on his claim for unpaid landscaping and snow plowing services, awarded him $32,558.70 in damages with taxable costs, and rendered judgment thereon. This appeal followed. Further facts and procedural history will be set forth as necessary for the resolution of this appeal. I The defendant claims that the court erred in finding that the statute of limitations was tolled by, inter alia, his acknowledgments of the debt. We disagree. Before addressing the court's determination that the applicable statute of limitations was tolled by the defendant's acknowledgments of the debt, we assess the trial court's reliance in this case on Zatakia v. Ecoair Corp. , 128 Conn.App. 362, 18 A.3d 604, cert. denied, 301 Conn. 936, 23 A.3d 729 (2011). The defendant claims that the court's reliance on Zatakia is misplaced. This court held in Zatakia that, inter alia, the trial court had not committed clear error when it found that correspondence from the defendant's president was a clear acknowledgment of indebtedness. Id., at 370-71, 18 A.3d 604. The defendant claims on appeal that the court's "factual analogy" to Zatakia , in support of its determination that he acknowledged the debt, was misplaced because the cases are factually distinguishable and, thus, its determination that he unequivocally acknowledged the debt was clear error. We reject this argument because we disagree with the defendant's characterization of the manner in which the court relied on Zatakia . The court quoted Zatakia for the applicable legal standard to determine whether an unequivocal acknowledgment of a debt has tolled the statute of limitations. At no point did the court refer to or rely on the facts of Zatakia as set forth by the defendant. The defendant also claims that, under the rule stated in Zatakia , the conduct of the parties in the present case was insufficient to infer an unequivocal acknowledgment of the debt and, thus, the court's determination was clearly erroneous. We disagree. "The [s]tatute of [l]imitations creates a defense to an action. It does not erase the debt. Hence, the defense can be lost by an unequivocal acknowledgment of the debt, such as a new promise, an unqualified recognition of the debt, or a payment on account.... Whether partial payment constitutes unequivocal acknowledgment of the whole debt from which an unconditional promise to pay can be implied thereby tolling the statute of limitations is a question for the trier of fact.... "A general acknowledgment of an indebtedness may be sufficient to remove the bar of the statute. The governing principle is this: The determination of whether a sufficient acknowledgment has been made depends upon proof that the defendant has by an express or implied recognition of the debt voluntarily renounced the protection of the statute . But an implication of a promise to pay cannot arise if it appears that although the debt was directly acknowledged, this acknowledgment was accompanied by expressions which showed that the defendant did not intend to pay it, and did not intend to deprive himself of the right to rely on the [s]tatute of [l]imitations.... [A] general acknowledgment may be inferred from acquiescence as well as from silence, as where the existence of the debt has been asserted in the debtor's presence and he did not contradict the assertion.... "We review the trial court's finding . under a clearly erroneous standard.... [A] finding of fact is clearly erroneous when there is no evidence in the record to support it . or when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.... We do not examine the record to determine whether the trier of fact could have reached a conclusion other than the one reached. Rather, we focus on the conclusion of the trial court, as well as the method by which it arrived at that conclusion, to determine whether it is legally correct and factually supported." (Citations omitted; internal quotation marks omitted.) Cadle Co. v. Errato, 71 Conn.App. 447, 461-63, 802 A.2d 887, cert. denied, 262 Conn. 918, 812 A.2d 861 (2002) ; see also Zatakia v. Ecoair Corp. , supra, 128 Conn.App. at 369-70, 18 A.3d 604. In the present case, the court found that the defendant's several acknowledgments of the debt tolled the statute of limitations. In support of this conclusion, the court relied on the testimony of the plaintiff, stating: "There was testimony by the plaintiff that the defendant said he was unable to pay the bill. There is testimony that the defendant said 'the property had been sold and the plaintiff would receive a fat check at the closing.' The defendant said 'the plaintiff would be paid when the house was sold.' " The court also found: "Exhibit 2 shows payment by the defendant on October 28, 2011, being check [number] 6067 showing a $500 payment with a note on the front that it was 'on account-2011' indicating to this court that there was money due, and this was payment on it." The defendant argues that evidence presented was insufficient to infer an unequivocal acknowledgment of the debt. Specifically, he asserts that the plaintiff's testimony regarding his promises to pay was "undocumented, uncorroborated, and self-serving hearsay testimony from the party directly and materially benefitted by said testimony." Additionally, he argues that his testimony contradicts that of the plaintiff. All of these arguments go to credibility and the weight to be given to the evidence presented. Credibility and weight of the evidence are matters for the finder of fact. Baillergeau v. McMillan , 143 Conn.App. 745, 754 n.2, 72 A.3d 70 (2013). Having reviewed the record, we determine that the testimony and other evidence submitted to the court support the court's finding that the defendant unequivocally acknowledged the debt. The defendant acknowledges that the $500 payment could be considered as evidence of his unequivocal acknowledgment of the debt. He does not challenge any finding of the court made on the basis of this evidence. He merely claims that the amount of evidence supporting any such finding is sparse. Although this evidence concerning the $500 payment, standing alone, could be enough to support the court's finding that the defendant acknowledged the debt, the court also considered the defendant's various statements that he was unable to pay his outstanding balance, his promise of a "fat check" upon closing, and his additional statement that the plaintiff would be paid when his house was sold. Any testimony by the defendant to the contrary, the plaintiff's interest in the outcome, and the plaintiff's lack of documentation and corroboration of the defendant's acknowledgments, are matters of credibility and weight that we do not consider independently on appeal. Accordingly, the defendant has failed to carry his burden of proving that the court's finding was clearly erroneous. The court's conclusion that the statute of limitations had been tolled by the defendant's several acknowledgments of the debt thus was not error. II The defendant also claims that the court erred by admitting, for the truth of their contents, certain photocopies of invoices, which he describes as "yearly summaries," of the monthly bills allegedly delivered to the defendant over more than a decade. We disagree. The following additional procedural facts are relevant to the resolution of this claim. When the plaintiff sought to admit the first invoice into evidence, which included landscaping charges for services performed over the course of 2001, the defendant objected as follows: "Your Honor, I'm going to object on the grounds that this is an incomplete business record. It has the top cut off of it. It has no date from when it was created and he doesn't really remember the specifics of when it was created." The court responded: "The objection is overruled. It goes to weight, not admissibility." On appeal, the defendant claims that the invoices are inadmissible because the yearly summaries were not business records under the legal definition and because the summaries, as photocopies, were incomplete business records and not complete and accurate copies of the originals sufficient to satisfy § 8-4 (c) of the Connecticut Code of Evidence. We reject this argument. The defendant objected at trial that the invoices were "incomplete business record[s]," and the court, based on its ruling on the objection, understood his objection to go to completeness. The defendant did not seek to clarify or to add other grounds to his objection as each of the twenty-one other invoices was admitted into evidence. The defendant, therefore, failed to preserve an objection related to a ground other than to lack of completeness. "Our role in reviewing evidentiary rulings of the trial court is settled. The trial court has wide discretion in its rulings on evidence and its rulings will be reversed only if the court has abused its discretion or an injustice appears to have been done." (Internal quotation marks omitted.) DiLieto v. County Obstetrics & Gynecology Group, P.C. , 297 Conn. 105, 133, 998 A.2d 730 (2010. "In order to preserve an evidentiary ruling for review, trial counsel must object properly.... In objecting to evidence, counsel must properly articulate the basis of the objection so as to apprise the trial court of the precise nature of the objection and its real purpose, in order to form an adequate basis for a reviewable ruling." (Internal quotation marks omitted.) State v. Rivera , 169 Conn.App. 343, 366, 150 A.3d 244 (2016), cert. denied, 324 Conn. 905, 152 A.3d 544 (2017). "Our review of evidentiary rulings made by the trial court is limited to the specific legal ground raised in the objection [to the trial court].... This court reviews rulings solely on the ground on which the party's objection is based.... [W]e have explained that, to afford petitioners on appeal an opportunity to raise different theories of objection would amount to ambush of the trial court because, [h]ad specific objections been made at trial, the court would have had the opportunity to . respond." (Citation omitted; internal quotation marks omitted.) DiLieto v. County Obstetrics & Gynecology Group, P.C. , supra, at 133-34, 998 A.2d 730. Because the defendant's objection was that the invoices were incomplete business records, he failed to preserve his evidentiary claims under § 8-4 (a), 10-2, and 10-5 of the Connecticut Code of Evidence. We, therefore, do not review these claims. The defendant also claims that the invoices, as photocopies, were not complete and accurate copies of the originals sufficient to satisfy § 8-4 (c). We disagree. At trial, the defendant examined the plaintiff regarding the invoices prior to the admission of the first yearly invoice. The plaintiff testified that he would leave the original invoices at the defendant's home and would keep a photocopy for his own records. He testified that the document sought to be admitted into evidence was one of these photocopies. The defendant asked whether the plaintiff had testified at his deposition that he gave "the originals" to his attorney. The plaintiff clarified that he had photocopied the copies that he had kept for his records, kept those photocopies, and gave his attorney the copies that he first kept for his records. Section 8-4 (c) of the Connecticut Code of Evidence provides that a "reproduction, when satisfactorily identified, shall be as admissible in evidence as the original in any judicial or administrative proceeding ." Although the defendant argues that the plaintiff sought to admit reproductions into evidence, the plaintiff sought to admit his original business records . His original business records , for the purposes of § 8-4 (c), were the photocopies of the invoices sent to the defendant that the plaintiff kept for his records. These were the documents that the plaintiff testified were being admitted into evidence. He did not testify that reproductions of business records were being submitted into evidence. The court, therefore, did not abuse its discretion when it admitted the invoices into evidence. In the circumstances of this case, any issue concerning whether they were substantively complete went to the weight to be given them and not to their admissibility. See LPP Mortgage, Ltd. v. Lynch , 122 Conn.App. 686, 699 n.11, 1 A.3d 157 (2010) ("[B]usiness records do not carry any presumption of accuracy merely because they are admissible. The credibility of such records remains a question for the trier of fact." [Internal quotation marks omitted.] ). In summary, the court's finding of several acknowledgments of the debt by plaintiff was not clearly erroneous. The court did not err in concluding that the applicable statute of limitations was tolled by the defendant's acknowledgments of the debt. The court did not abuse its discretion in admitting the plaintiff's business records into evidence. The judgment is affirmed. In this opinion the other judges concurred. The court also found that prior to the sale of the defendant's real property, some confusion occurred because the plaintiff improperly filed a mechanic's lien on the land records for the estimated amount of his services, but money was held out at the closing to satisfy any damages awarded to the plaintiff from any legal action. We need not reach the defendant's claim that the court improperly found that he waived his statute of limitations defense by failing to raise it as a special defense, or that the statute of limitations was tolled by the continuing course of conduct doctrine because we affirm the court's alternative finding that the defendant's acknowledgments of the debt tolled the statute of limitations. The defendant also claims that an ancient case, Weed v. Bishop, 7 Conn. 128 (1828), controls. The court in Weed held that a creditor, as party to the case, was incompetent to testify to an acknowledgment of a debt. Id., at 131-32. The defendant failed to raise Weed before the trial court as the controlling law in this case regarding the acknowledgment of the debt. Accordingly, the defendant failed to preserve his claim that the plaintiff was incompetent to testify to the defendant's acknowledgment of the debt. See Jalbert v. Mulligan, 153 Conn.App. 124, 143-44, 101 A.3d 279, cert. denied, 315 Conn. 901, 104 A.3d 107 (2014). Nevertheless, the defendant's reliance on Weed is misplaced because the General Assembly abolished the general common-law rule upon which Weed was based nearly 170 years ago. See State v. James, 211 Conn. 555, 560, 560 A.2d 426 (1989) ("[i]n 1848 the common law disability of parties to testify as witnesses was removed by a statute now incorporated in General Statutes § 52-145 [a]"). We note that the court appears to have raised sua sponte the tolling doctrine on the basis of the defendant's several acknowledgments of his debt to the plaintiff. At trial, the defendant did not object to the court's sua sponte insertion of such tolling doctrine into the case, and he has not raised the issue on appeal as it relates to any of his claims. We thus do not consider whether the court erred by inserting and relying on that doctrine. The defendant asserts that the court improperly considered a $2500 payment made by him in 2012 as part of its determination that he acknowledged the debt. As the defendant states, however, the court found that the payment was made as an advance payment and was made "in order to induce the plaintiff to continue working." The court, thus, did not consider this payment in determining that the defendant unequivocally acknowledged the debt. As statements of a party opponent, the plaintiff's testimony about the defendant's statements falls within an exception to the hearsay rule. Conn. Code Evid. § 8-3 (1). Having concluded that the defendant had waived any statute of limitations defense, the court did not determine whether the three year statute of limitations for oral contracts, General Statutes § 52-581, or the six year statute of limitations for written contracts, General Statutes § 52-576, would apply to this case. The $500 payment made in 2011 could have tolled the six year statute of limitations if it applied. Because there also was evidence that the defendant acknowledged the debt within three years of the commencement of the action, we need not decide which statute applies. The defendant made his objection to the first landscaping bill for 2001. He seems to have attempted to maintain his objection on the same grounds with respect to other billing documents, stating, "And if you're comfortable with it Your Honor, for expediency purposes, I don't need to voir dire every single invoice that looks like this," to which the court responded, "Okay." The plaintiff submitted twelve other similar annual landscaping invoices, eight snow plowing invoices covering 2003 through 2013, and a single invoice for extra work in 2005, 2008, 2011, and 2013. We assume that the defendant's objection was maintained for all of these documents even though these documents arguably differ. See footnote 8 of this opinion. The defendant also claims that the invoices were inadmissible because the plaintiff failed to establish that the documents were business records under § 8-4 (a) of the Connecticut Code of Evidence ; that the plaintiff did not establish that the original documents qualified as summaries of voluminous writings or that the documents from which the summaries were prepared were admissible business records sufficient to satisfy § 10-5 of the Connecticut Code of Evidence ; and that the plaintiff failed to establish that the summaries satisfied the best evidence rule under § 10-2 of the Connecticut Code of Evidence. These claims are not preserved, and, therefore, we do not discuss them. Section 8-4 (c) of the Connecticut Code of Evidence provides in relevant part: "[I]f any person in the regular course of business has kept or recorded any memorandum, writing, entry, print, representation or combination thereof, of any act, transaction, occurrence or event, and in the regular course of business has caused any or all of them to be recorded, copied or reproduced by any photographic, photostatic, microfilm, microcard, miniature photographic or other process which accurately reproduces or forms a durable medium for so reproducing the original, the original may be destroyed in the regular course of business unless its preservation is otherwise required by statute. The reproduction, when satisfactorily identified, shall be as admissible in evidence as the original in any judicial or administrative proceeding, whether the original is in existence or not, and an enlargement or facsimile of the reproduction shall be likewise admissible in evidence if the original reproduction is in existence and available for inspection under direction of court. The introduction of a reproduced record, enlargement or facsimile shall not preclude admission of the original." (Emphasis added.) Section 8-4 (c) of the Connecticut Code of Evidence was amended in 2015 to make technical changes that are not relevant to this appeal. The following exchange occurred between the defendant's counsel and the plaintiff: "Q. Mr. Williams, is this a complete copy of the original? "A. Yes, as far as I know. "Q. It's not cut off at the top? "A. No. Well, Williams Ground Service is in there. Sometimes when you put it in the copy machine it cuts it off. "Q. But it is not a complete copy of the original invoice? "A. It looks like one for me, except for the name at the top. "Q. So it is cut off on the top? "A. Yes. "Q. Is [it] possible there's other writing up there that we can't see? "A. It would just say Williams Ground Service. "Q. Where are these original invoices? "A. These are the only ones that I have. I-when I made these I gave the originals, left them at [the defendant's] and I keep the copy. "Q. Didn't you say the other day you gave the originals to [your attorney]? "A. In other words I copied and gave them to him off copies that I had. The originals-when I put the original bill, I would turn the originals in and I would keep a copy for myself. Okay. So- "Q. Oh, turn them you mean give them to [the defendant]? "A. That's correct. So then I would copy the bills I have and those are the bills that I gave to [my attorney]."

12489842

Mark HEINONEN v. Wallace I. GUPTON et al.

Heinonen v. Gupton

2017-05-09

AC 38414

70

76

162 A.3d 70

162

West's Atlantic Reporter, Third Series

Connecticut Appellate Court

Connecticut

2021-08-27T20:57:14.018929+00:00

Fastcase

Mark HEINONEN v. Wallace I. GUPTON et al.

Mark HEINONEN v. Wallace I. GUPTON et al. AC 38414 Appellate Court of Connecticut. Argued January 13, 2017 Officially released May 9, 2017 Mark Heinonen, self-represented, the appellant (plaintiff). Leslie A. Link, for the appellees (defendants). Sheldon, Keller and Prescott, Js.

2329

14444

PER CURIAM. The self-represented plaintiff, Mark Heinonen, appeals from the judgment of the trial court dismissing this action alleging fraud on the part of the defendants, Wallace I. Gupton and Roberta S. Douglas, in connection with their purchase of property located in the town of Sherman. The dispositive claim in this appeal is whether the court improperly dismissed this action for lack of subject matter jurisdiction due to his lack of standing. We affirm the judgment of the court. The following facts and procedural history are relevant to this appeal. On February 6, 2015, the plaintiff filed a complaint alleging that in January, 2012, the defendants illegally purchased property located at 138 Rt. 37 South in Sherman (premises) "without the owners' knowledge and for a fraction of its real value." In paragraph three of his complaint, he alleged that in October, 2007, he transferred his interest in the premises to his three children by means of a trust instrument. In his prayer for relief, the plaintiff requested the sum of $3,000,000 to compensate him for the "agony he has suffered as a result of the defendants' fraud-cruel and illegal dealings." On March 13, 2015, the defendants filed a motion to dismiss this action and an accompanying memorandum of law on the ground that the court lacked subject matter jurisdiction. Specifically, the defendants argued that the plaintiff, as a prior owner of the premises, lacked standing to prosecute a claim that he was defrauded as the rightful owner of the property. On April 9, 2015, the plaintiff, by means of a single filing, objected to the motion to dismiss and moved for summary judgment in his favor. The court heard argument on the defendants' motion to dismiss on April 27, 2015. In its decision granting the motion to dismiss, the court found in relevant part: "In this action, the plaintiff . claims compensatory damages for fraudulent actions allegedly committed by the defendants when they purchased [the premises]. The plaintiff claims that in January of 2012, the defendants illegally purchased the premises 'without the owner's knowledge and for a fraction of its real value.' The defendants argue in support of their motion that it is undisputed (and admitted in the plaintiff's complaint) that he no longer owns any interest in the premises and, therefore, has no standing to bring the present suit. In response to the defendants' motion to dismiss, the plaintiff has filed a combined objection to the motion to dismiss and motion for summary judgment . essentially asserting that the manner in which the defendants came into ownership of the premises was tainted by illegality.... "After reviewing the allegations of the plaintiff's complaint and the briefs of the parties, the court is satisfied and agrees with the defendants that the plaintiff has failed to allege sufficient facts to invoke the court's jurisdiction. The record indicates that the plaintiff is not the current owner of the premises which are the subject of this action, had no interest in the premises at the time of conveyance to the defendants, or any time thereafter, and has not owned any interest in the premises since October of 2007." (Footnotes added.) The court rendered a judgment of dismissal on May 12, 2016, after concluding that the plaintiff lacked standing to bring this action because he was not the owner of the premises and, therefore, was not an aggrieved party with respect to the subject matter of his complaint. On May 27, 2015, the plaintiff filed a motion for clarification, articulation, and reargument, which the court denied on June 1, 2015. This appeal followed. Additional facts will be set forth as necessary. Before we address the merits of the plaintiff's claim, we first set forth the standard of review. "The proper procedural vehicle for disputing a party's standing is a motion to dismiss." D'Eramo v. Smith , 273 Conn. 610, 615 n.6, 872 A.2d 408 (2005). "A motion to dismiss . properly attacks the jurisdiction of the court, essentially asserting that the plaintiff cannot as a matter of law and fact state a cause of action that should be heard by the court." (Internal quotation marks omitted.) Caruso v. Bridgeport , 285 Conn. 618, 627, 941 A.2d 266 (2008). "[O]ur review of the trial court's ultimate legal conclusion and resulting [granting] of the motion to dismiss will be de novo.... When a . court decides a jurisdictional question raised by a pretrial motion to dismiss, it must consider the allegations of the complaint in their most favorable light . In this regard, a court must take the facts to be those alleged in the complaint, including those facts necessarily implied from the allegations, construing them in a manner most favorable to the pleader.... The motion to dismiss . admits all facts which are well pleaded, invokes the existing record and must be decided upon that alone." (Citation omitted; internal quotation marks omitted.) Keller v. Beckenstein , 122 Conn.App. 438, 442-43, 998 A.2d 838 (2010), rev'd on other grounds, 305 Conn. 523, 46 A.3d 102 (2012). "Any claim of lack of jurisdiction over the subject matter cannot be waived; and whenever it is found after suggestion of the parties or otherwise that the court lacks jurisdiction of the subject matter, the judicial authority shall dismiss the action." Practice Book § 10-33. "Whenever the absence of jurisdiction is brought to the notice of the court or tribunal, cognizance of it must be taken and the matter passed upon before it can move one further step in the cause; as any movement is necessarily the exercise of jurisdiction." (Internal quotation marks omitted.) Federal Deposit Ins. Corp. v. Peabody, N.E., Inc. , 239 Conn. 93, 99, 680 A.2d 1321 (1996). In the present case, the defendants' motion to dismiss was premised on the plaintiff's lack of standing. "If a party is found to lack standing, the court is without subject matter jurisdiction to hear the case. Because standing implicates the court's subject matter jurisdiction, the plaintiff bears the burden of establishing standing. A trial court's determination of whether a plaintiff lacks standing is a conclusion of law that is subject to plenary review on appeal. We conduct that plenary review, however, in light of the trial court's findings of fact, which we will not overturn unless they are clearly erroneous.... In undertaking this review, we are mindful of the well established notion that, in determining whether a court has subject matter jurisdiction, every presumption favoring jurisdiction should be indulged.... This involves a two part function: where the legal conclusions of the court are challenged, we must determine whether they are legally and logically correct and whether they find support in the facts set out in the memorandum of decision; where the factual basis of the court's decision is challenged we must determine whether the facts set out in the memorandum of decision are supported by the evidence or whether, in light of the evidence and the pleadings in the whole record, those facts are clearly erroneous." (Citations omitted; internal quotation marks omitted.) Success, Inc. v. Curcio , 160 Conn.App. 153, 162-63, 124 A.3d 563, cert. denied, 319 Conn. 952, 125 A.3d 531 (2015). "Standing is established by showing that the party claiming it is authorized by statute to bring suit or is classically aggrieved.... The fundamental test for determining [classical] aggrievement encompasses a well-settled twofold determination: first, the party claiming aggrievement must successfully demonstrate a specific personal and legal interest in the subject matter of the decision, as distinguished from a general interest . Second, the party claiming aggrievement must successfully establish that the specific personal and legal interest has been specifically and injuriously affected by the decision.... Aggrievement is established if there is a possibility, as distinguished from a certainty, that some legally protected interest . has been adversely affected." (Internal quotation marks omitted.) Gold v. Rowland , 296 Conn. 186, 207, 994 A.2d 106 (2010). "Standing is not a technical rule intended to keep aggrieved parties out of court; nor is it a test of substantive rights. Rather it is a practical concept designed to ensure that courts and parties are not vexed by suits brought to vindicate nonjusticiable interests and that judicial decisions which may affect the rights of others are forged in hot controversy, with each view fairly and vigorously represented.... These two objectives are ordinarily held to have been met when a complainant makes a colorable claim of direct injury he has suffered or is likely to suffer, in an individual or representative capacity. Such a personal stake in the outcome of the controversy . provides the requisite assurance of concrete adverseness and diligent advocacy.... The requirement of directness between the injuries claimed by the plaintiff and the conduct of the defendant also is expressed, in our standing jurisprudence, by the focus on whether the plaintiff is the proper party to assert the claim at issue." (Internal quotation marks omitted.) PNC Bank, N.A. v. Kelepecz , 289 Conn. 692, 705, 960 A.2d 563 (2008). In his complaint, the plaintiff admitted that he had not possessed any ownership interest in the premises since October, 2007, and that the sale that he alleges was fraudulent and illegal took place in 2012. Although the plaintiff challenges the legality of the sale of the premises to the defendants, it is undisputed factually that he relinquished any interest, whether legal or equitable in nature, to the premises when he transferred his interest to the trust he created for the benefit of his children. After thoroughly reviewing the record, we agree with the court that the plaintiff, in his individual capacity, was not entitled to set the machinery of the court in operation to obtain redress for an injury he claims to have suffered as a result of an alleged fraudulent transfer of the premises. The plaintiff did not hold an ownership interest, whether legal or equitable in nature, in the premises at the time he filed the complaint-and indeed had held no such interest since 2007. The sale occurred in 2012. An "owner" is "[o]ne who has the right to possess, use, and convey something; a person in whom one or more interests are vested," and "ownership" means "[t]he bundle of rights allowing one to use, manage, and enjoy property, including the right to convey it to others." Black's Law Dictionary (9th Ed. 2009). If the plaintiff intended to assert a claim to protect an allegedly fraudulent deprivation of the interest of the children's trust in the premises, such a claim, if viable, should have been brought by the trustee. "The trustee is the proper person to bring an action against anyone who wrongfully interferes with the interests of a trust." Naier v. Beckenstein , 131 Conn.App. 638, 646, 27 A.3d 104, cert. denied, 303 Conn. 910, 32 A.3d 963 (2011). The court's conclusion that the plaintiff lacked standing is legally correct and wholly supported by facts that the plaintiff fully admitted. The judgment is affirmed. Because our decision on the issue of subject matter jurisdiction is dispositive of this appeal, we need not address the plaintiff's other four claims, which essentially allege error with respect to the court's refusal to consider his case on the merits. The plaintiff attached to his combined objection to the motion to dismiss and motion for summary judgment a copy of the trust instrument and the probate court decree, dated December 28, 2011, Landgrebe, J., accepting and approving it. The probate court decree references the court's awareness of both "[the plaintiff's] stated . declination to receive . [his interest in the premises] and [the plaintiff's recognition of] the transfer of his interest [in the premises] to his children by way of his described irrevocable trust agreement to the Court ." Attached to this filing are ten exhibits comprised of the trust instrument, excerpts from legal decisions and treatises, and various other documents, without any accompanying analysis. Exhibit eight is a copy of the contract of sale for the premises, executed by the defendants and Arthur Scott, the executor of the estate of the plaintiff's mother. "This action is one of a long line of cases brought by the plaintiff to contest the disposition by the New Fairfield/Sherman Probate Court of the assets of the estate of Barbara H. Scott, the [plaintiff's] late mother, who died on December 1, 2006. The principal asset of her estate [was the premises] . "The plaintiff did attach what purports to be two decrees of the Housatonic Regional Probate Court . The first is a decree for sale of the [premises] in which it was expressly noted that 'the will of the said deceased (Scott) does not prohibit the sale or mortgage of said property.' " Heinonenv. Landgrebe, Superior Court, judicial district of Danbury, Docket No. CV-12-5009022-S, 2014 WL 487085 (January 15, 2014), appeal dismissed, Appellate Court, Docket No. 36860 (July 9, 2014), cert. denied, 314 Conn. 922, 100 A.3d 853 (2014). The court, having found it lacked subject matter jurisdiction due to the plaintiff's lack of standing, did not consider his motion for summary judgment. The plaintiff questions the validity of the probate of his mother's will by asserting that the defendants, along with certain lawyers and relatives of the decedent, illegally participated in the perpetration of a fraud upon the rightful heirs of the estate, which commenced with a redrafting of her will shortly before she died. The defendants purchased the premises from the estate in a sale that was approved by the probate court. Although the plaintiff claims to be seeking to protect his children's interests, during argument before the trial court, he referred to himself as the owner of both the premises and the trust, and his prayer for relief seeks only compensation for himself. To the extent that the plaintiff is the trustee, he did not bring his action in that capacity.

12490391

Teaghan MAHONEY et al. v. Lori Storch SMITH et al.

Mahoney v. Smith

2017-07-18

AC 38220

778

783

166 A.3d 778

166

West's Atlantic Reporter, Third Series

Connecticut Appellate Court

Connecticut

2021-08-27T20:57:14.020814+00:00

Fastcase

Teaghan MAHONEY et al. v. Lori Storch SMITH et al.

Teaghan MAHONEY et al. v. Lori Storch SMITH et al. AC 38220 Appellate Court of Connecticut. Argued February 3, 2017 Officially released July 18, 2017 Alan Scott Pickel, with whom, on the brief, was Anthony Cenatiempo, for the appellants (plaintiffs). Michael R. McPherson, for the appellees (defendants). Sheldon, Keller and Prescott, Js.

2340

14301

KELLER, J. This appeal arises from a medical malpractice action brought by the plaintiffs, Thomas and Roxanne Mahoney, both individually and on behalf of their minor child, Teaghan Mahoney (child), against the defendants, Lori Storch Smith and Bay Street Pediatrics, the professional corporation in which Dr. Storch Smith practiced. The plaintiffs alleged that Dr. Storch Smith was negligent in performing a circumcision on the child, who was a newborn at the time. The procedure resulted in the amputation of a portion of the glans-or head-of the child's penis. Following a trial, the jury returned a verdict for the defendants. On appeal, the plaintiffs claim that the trial court abused its discretion by (1) declining to set aside the verdict and order a new trial, and (2) discouraging the jury from rehearing expert medical testimony during deliberations. We disagree with the plaintiffs and, accordingly, affirm the judgment of the court. Additional facts will be provided within the context of each of the plaintiffs' claims. I The plaintiffs' first claim is that the court abused its discretion by declining to set aside the verdict and order a new trial. We disagree. The following facts, as could reasonably have been found by the jury, are pertinent to this claim. Dr. Storch Smith, a pediatrician, performed the circumcision at Norwalk Hospital on December 29, 2010. She used a device known as a Mogen clamp to perform the procedure. The Mogen clamp is one of several medical devices commonly used to circumcise newborns. It is designed to clamp, and therefore isolate, the patient's foreskin above the glans, after which the foreskin is excised using a scalpel. In the present case, Dr. Storch Smith applied the Mogen clamp and excised what she thought was solely the child's foreskin. After observing that the procedure produced an unusually large amount of blood, however, she opened the excised foreskin and observed, in her words, a "small piece" of glans. The child, along with the amputated portion of the glans, was thereafter transported to Yale-New Haven Hospital for treatment by a pediatric urologist. That same day, the pediatric urologist successfully reattached the amputated portion of the glans. Trial commenced on April 15, 2015, and consisted largely of expert medical testimony concerning the standard of care for performing circumcisions using the Mogen clamp. During direct examination of the defendants' expert, Scott Siege, a pediatrician, the following exchange occurred: "[The Defendants' Counsel]: . Did you also, doctor, at my request, review a video that depicts a circumcision procedure being performed with a Mogen clamp? "[Siege]: Yes.... "[The Defendants' Counsel]: Doctor, what did the video, that you reviewed at my request, depict? "[Siege]: It depicted a circumcision using the Mogen clamp . that held to the standard of care for a Mogen circumcision. "[The Defendants' Counsel]: . In your experience, having read the depositions of all the witnesses in the case, is it difficult to explain the details of the procedure without any visual frame of reference? . "[Siege]: Yes, it is very difficult. "[The Defendants' Counsel]: All right. And would the video, in your opinion, assist the jury in understanding how a circumcision is performed using a Mogen clamp? "[Siege]: Yes. "[The Defendants' Counsel]: Your Honor, I offer the video." After excusing the jury, the court watched the video and heard arguments as to its admissibility. The plaintiffs' attorney argued that the video should not be shown to the jury because it was not previously produced for the plaintiffs, it would confuse the jury, and Dr. Siege did not rely on it in forming his expert opinion. The court ruled that the video was admissible as demonstrative evidence. When the jury returned and the defendants' attorney resumed direct examination, Dr. Siege confirmed that the video did not depict the actual circumcision that Dr. Storch Smith performed on the child. The defendants then offered the video "for demonstrative purposes only," which the court permitted. The video, which the defendants' attorney indicated was found on the Internet, was approximately two and one-half minutes in duration. It had no sound. Its title, "The Pollock Technique," was displayed in a corner of the video screen. The video depicted an unidentified individual performing the entirety of a Mogen circumcision on a newborn, including the application of local anesthesia to the patient's penis, as well as the use of hemostats (clamps typically used to control bleeding) to assist in applying the Mogen clamp to the patient's foreskin. While the video played for the jury, Dr. Siege narrated the events depicted therein. Because the video was not admitted as a full exhibit, the jury did not have access to it during its deliberations. After the jury returned its verdict, the plaintiffs filed a motion to set aside the verdict and for a new trial (postverdict motion) on the basis of the court's decision to permit the showing of the video. See Practice Book § 16-35. By way of a memorandum of decision dated July 10, 2015, the court denied that motion, precipitating this claim on appeal. We review the court's denial of the postverdict motion for abuse of discretion. See, e.g., Hall v. Bergman , 296 Conn. 169, 179, 994 A.2d 666 (2010) ; Hughes v. Lamay , 89 Conn.App. 378, 383, 873 A.2d 1055, cert. denied, 275 Conn. 922, 883 A.2d 1244 (2005). "In determining whether there has been an abuse of discretion, every reasonable presumption should be given in favor of the correctness of the court's ruling.... Reversal is required only [when] an abuse of discretion is manifest or [when] injustice appears to have been done." (Internal quotation marks omitted.) Hall v. Bergman , supra, at 179, 994 A.2d 666. "[T]he role of the trial court on a motion to set aside the jury's verdict is . to decide whether, viewing the evidence in the light most favorable to the prevailing party, the jury could reasonably have reached the verdict that it did." (Internal quotation marks omitted.) Id. Additionally, "[a trial court may] set aside a verdict where it finds it has made, in its instructions, rulings on evidence, or otherwise in the course of the trial, a palpable error which was harmful to the proper disposition of the case and probably brought about a different result in the verdict." (Internal quotation marks omitted.) Bovat v. City of Waterbury , 258 Conn. 574, 583, 783 A.2d 1001 (2001). In claiming that the court abused its discretion by denying the postverdict motion, the plaintiffs make three distinct arguments. We address each in turn. A The plaintiffs first argue that the defendants' use of the video violated expert disclosure rules under Practice Book § 13-4, and the continuing duty to disclose under Practice Book § 13-5, because the video and related testimony from Dr. Siege were not disclosed pursuant to those provisions. The plaintiffs, however, did not distinctly raise this argument in connection with their postverdict motion. Accordingly, we decline to review the merits of this argument. See AvalonBay Communities, Inc. v. Zoning Commission , 130 Conn.App. 36, 62 n.24, 21 A.3d 926, cert. denied, 303 Conn. 909, 32 A.3d 962 (2011). B The plaintiffs next argue that the video, and Dr. Siege's testimony concerning it, were irrelevant, as well as unduly cumulative, prejudicial, and confusing to the jury. See Conn. Code Evid. § 4-2 and 4-3. The plaintiffs' attorney did not argue in connection with the postverdict motion that the video was irrelevant or cumulative. We therefore decline to reach the merits of these aspects of the present claim. See State v. McCall , 187 Conn. 73, 84, 444 A.2d 896 (1982). Although we conclude that the plaintiffs preserved their arguments that the video and Dr. Siege's attendant testimony were unduly confusing and prejudicial by asserting these grounds in their postverdict motion, those arguments are without merit. The plaintiffs contend that the portions of the video showing the patient receiving anesthesia and the physician applying hemostats to the patient's foreskin were confusing to the jury because those aspects of the procedure were not at issue in the trial. It is not apparent to us how those parts of the video would confuse the jury. If anything, they likely clarified the earlier direct testimony of the plaintiffs' expert witness, David Weiss, a pediatrician, who stated during an in-court demonstration of the Mogen clamp: "[B]efore you do the circumcision you'll anesthetize the baby and you'll take some hemostat[s] . And you can take a piece of the [foreskin] . you will take the hemostats and pull [the foreskin] through [the Mogen clamp] ." The plaintiffs further argue that the video was prejudicial because "they were in essence precluded from responding to it with their own video or expert." This argument is unavailing. As with all of the other evidence, the defendants marked the video for identification prior to trial. An exhibit list identifying the video as a "[v]ideo demonstrating circumcision procedure" was provided to the plaintiffs prior to trial as well. The plaintiffs could have asked to watch the video prior to its introduction at trial, but did not do so; nor did they file a motion in limine seeking to preclude its admission into evidence, move for a continuance after it was marked for identification, or recall Dr. Weiss to serve as a rebuttal witness concerning the video. C Finally, the plaintiffs contend that the court improperly denied their postverdict motion in light of the fact that it did not instruct the jury that the video was for demonstrative purposes only. The plaintiffs made only brief reference to this issue in their memorandum in support of the postverdict motion, asserting that "[p]rior to the offering of the video, there was no instruction given to the jury relative [to its] use and consideration of the video ." Although the court did not address this ground in its memorandum of decision denying the motion, it determined that the video "was not an attempt to reenact the activities of [Dr. Storch Smith] at the time of the circumcision and primarily portrayed to the jury how a circumcision is performed utilizing a Mogen clamp." Because we agree with the court's observation and that the purpose of the video would have been readily apparent to the jury, we conclude that the court properly rejected the plaintiffs' argument on this ground. We further observe that the plaintiffs did not raise this issue when the court instructed the jury; thus, "[i]n the face of the [plaintiffs'] noncompliance with the prerequisites to appellate review of [their] allegation of instructional impropriety, we cannot say that the court abused its discretion in denying the motion to set aside the verdict." Lewis v. Drew , 132 Conn.App. 306, 314, 31 A.3d 448 (2011). For all of the foregoing reasons, we reject the plaintiffs' claim. II Second, the plaintiffs claim that the court abused its discretion by allegedly discouraging the jury from rehearing the expert medical testimony during deliberation. Because this claim is unpreserved, we decline to reach its merits. The following facts are relevant to this claim. As previously mentioned in part I of this opinion, at trial, the plaintiffs and the defendants presented the expert testimony, respectively, of Dr. Weiss and Dr. Siege. During its deliberations, the jury sent the court a note that read in part as follows: "Can we please view the testimony of [Dr. Weiss] . [and] can we please view the testimony of [Dr. Siege]?" The court responded to the jury in part: "We only have a transcript; it's not a videotape. So we're talking about [a] transcript of it. As to those two [physicians], I've conferred with counsel. They believe that each of the [physician's testimony] will last about a half a day; it will take about an entire day to read the entire testimony. If that's what you want, that's what we'll give you. If there's something more specific you're interested in, we'll be glad to consider whether we can do that in a shorter period of time, but we don't know. I'm not forcing you to do anything. If that's what you want, you'll get the testimony . So what I'm going to ask you to do is to go back in, discuss what you want to do about Dr. Weiss' testimony and Dr. Siege's testimony." The jury returned to its deliberations, after which it sent the court another note. The new note read: "If we ask for testimony, is it read in court or is it transcribed and made available to the jury in deliberations?" The court responded: "[I]t will be played back via the [court] monitor. So I'll send you back in. We're prepared to do whatever you want." Ultimately, the jury did not request that the testimony be replayed. The plaintiffs argue on appeal that "rather than comply with Practice Book § 16-27, which mandates that the jury be provided with the [expert] testimony, the court . took steps to discourage [it] from getting [its] request met." The plaintiffs, however, did not object at the time to the manner in which the court responded to the jury's playback request at trial. "For us [t]o review [a] claim, which has been articulated for the first time on appeal and not before the trial court, would result in a trial by ambuscade of the trial judge." (Internal quotation marks omitted.) Ravetto v. Triton Thalassic Technologies, Inc. , 285 Conn. 716, 730, 941 A.2d 309 (2008). We therefore decline to review the merits of this claim. The judgment is affirmed. In this opinion the other judges concurred. "[D]emonstrative evidence is not part of the incident and is offered to illustrate other evidence, either real or testimonial. Demonstrative evidence is a pictorial or representational communication incorporated into a witness's testimony." C. Tait & E. Prescott, Connecticut Evidence (4th Ed. 2008) § 11.1, p. 656.

12490390

Eric KURISOO v. Harry ZIEGLER et al.

Kurisoo v. Ziegler

2017-07-04

AC 38659

75

80

166 A.3d 75

166

West's Atlantic Reporter, Third Series

Connecticut Appellate Court

Connecticut

2021-08-27T20:57:14.020814+00:00

Fastcase

Eric KURISOO v. Harry ZIEGLER et al.

Eric KURISOO v. Harry ZIEGLER et al. AC 38659 Appellate Court of Connecticut. Argued February 8, 2017 Officially released July 4, 2017 Mary M. Puhlick, for the appellant (plaintiff). Alexandra J. Zeman, with whom, on the brief, were Michael P. Kenney and Kate J. Boucher, for the appellee (named defendant). Joseph M. Musco, for the appellee (defendant Mystic Seaport Museum). Sheldon, Beach and Harper, Js.

2675

16347

SHELDON, J. The plaintiff, Eric Kurisoo, appeals from the summary judgment rendered by the trial court in favor of the defendant Mystic Seaport Museum d/b/a Mystic Seaport. On September 20, 2013, the plaintiff was injured when the motorcycle he was operating collided with a motor vehicle operated by Harry Ziegler, who, at the time of the collision, was participating in an antique car tour sponsored by the defendant. The plaintiff initially brought this action, claiming that its direct negligence had proximately caused his injuries. Subsequently, he amended his complaint to allege, as well, that the defendant was vicariously liable for the negligence of Ziegler, who had proximately caused such injuries. The court rendered summary judgment in favor of the defendant on both of the plaintiff's claims, finding, as a matter of public policy, that it owed no duty to the plaintiff at the time of its direct or vicarious negligence. On appeal, the plaintiff claims that the court improperly rendered summary judgment in favor of the defendant on both of his claims because it based its rulings on a ground not raised in the defendant's summary judgment motions. We agree with the plaintiff, and thus reverse the judgment of the trial court. The trial court found that the following facts were undisputed. "[The defendant] is a nonprofit, educational institution that operates Mystic Seaport [ (seaport) ], located in Mystic.... It is a recreation of a nineteenth century coastal village with historic ships, and it offers related exhibits and attractions to the public. It has, since 1996, sponsored an antique car show featuring pre-1930 vintage automobiles on the grounds of the seaport called the 'By Land and By Sea Antique Vehicle Show.' The show permits vintage car owners to exhibit their vehicles for public viewing on a Sunday. Although there is an admission fee for entry to the seaport, there is no extra charge for viewing the Sunday antique auto show. "At the time of the accident . Ziegler registered his antique car for inclusion in the show. He was required to and did pay a $40 registration fee to be able to enter his car in the show. As part of the weekend activities, [the] seaport staff and volunteers organized driving tours on the Friday and Saturday before the show for the entrants to give them the opportunity to see the local scenery and attractions and to allow them to exhibit their vehicles to the public. "On Friday, September 20, 2013, Ziegler participated in a [thirty] mile scenic tour of the Mystic/Stonington area arranged by the event volunteers and staff. About [forty] or [fifty] cars were involved. The participants gathered at the Old Mystic Village north parking lot and were provided with printed driving directions, routes and a map to follow for the event's tour that particular day. In addition, the participants were provided with banners to place on their antique cars by event volunteers and staff, which stated, 'Follow Me on Sunday to Mystic Seaport to the Mystic Seaport Antique Vehicle Show.' . Ziegler affixed the banner to his car prior to the tour commencing, and then he joined the tour. It was not a parade of cars, with one following the other, and event organizers did not arrange for personnel to guard intersections or direct traffic along the route. Cars did not follow one after the other. Rather, each driver simply proceeded independently and followed the directions given at the start. Although participants were not required to follow the route, it was assumed that most participants would stay together and follow the instructions. They were instructed to follow the rules of the road, and be vigilant at intersections. They were encouraged to remain on the prescribed route because [the] seaport arranged for a 'trouble car' to help with breakdowns along the route, although there was no trouble car available on the day of the accident. "Ziegler did follow the directions he was given. While on Coogan Boulevard at the intersection with Jerry Browne Road in North Stonington, he stopped at a stop sign, then proceeded to turn left (northbound) onto Jerry Browne Road, when the collision [with the plaintiff] occurred." On March 20, 2014, the plaintiff commenced this action by way of a two count complaint, one count against Ziegler and the other count against the defendant. As to the defendant, the plaintiff alleged that it had negligently caused his injuries by failing to provide an escort for the procession, failing to warn the public regarding the route of the procession, failing to properly secure the intersection where the collision occurred, failing to properly instruct or train the participants in the procession, and failing to obtain a permit for the procession. On January 21, 2015, the plaintiff amended his complaint to add a third count, claiming that the defendant was vicariously liable for the negligence of Ziegler, who had caused his injuries. On December 18, 2014, prior to the filing of the plaintiff's amended complaint, the defendant moved for summary judgment on the sole count then pending against it, which sounded in direct negligence. The defendant argued in support of its motion that it did not owe a duty to the plaintiff because "the defendant's negligence, as alleged, [did not create] a reasonably foreseeable risk that . Ziegler would pull out from a stop sign into the path of the plaintiff's oncoming motorcycle when it was not safe to do so." In its memorandum of decision, filed on May 22, 2015, the court disagreed, explaining: "The question is whether a reasonable jury could find that [the defendant] should have anticipated that a motorist might be injured by a vehicle participating in the antique vehicle show without [the defendant] employing additional safety precautions on public roadways. Because reasonable people could disagree as to whether [the defendant] should have anticipated a harm of the general nature of that suffered by the plaintiff, reasonable foreseeability in the present case would be a question for the jury." The court went on, however, to consider "whether public policy militates against imposing a duty under the circumstances of this case." On that issue, which the defendant had not raised in its motion and the parties had not briefed or argued, the court concluded: "If one who provides directions to a motorist may be liable for the consequences of that motorist's failure to follow the rules of the road while en route and not because of the route directions provided, significant costs would be imposed on society. Because public policy considerations preclude the imposition of a duty on [the defendant], there is no need for a jury to determine the factual issue of whether the injuries suffered by the plaintiff were reasonably foreseeable to [the defendant]." On that sole ground, the court rendered summary judgment in favor of the defendant. On July 29, 2015, the defendant filed a second motion for summary judgment on the plaintiff's claim of vicarious liability for the negligence of Ziegler, on the sole ground that vicarious liability could not be established because Ziegler was not acting as the agent, servant or employee of the defendant at the time of the collision that caused the plaintiff's injuries. In its November 20, 2015 memorandum of decision, the court found that "there are multiple facts in the record tending to establish that [Ziegler] was an agent" and, thus, "[a] trier of fact could conclude that . Ziegler was an agent [of the defendant] during the procession." The court concluded, on that basis, that the defendant had failed to establish the absence of a genuine issue of material fact as to whether Ziegler was its agent at the time of his alleged negligence, or thus that it was entitled to judgment on the plaintiff's vicarious liability claim as a matter of law. Even so, the court went on to grant summary judgment in favor of the defendant on the unpleaded, unargued basis of its earlier ruling on the defendant's first motion for summary judgment, to wit: that, on the basis of public policy considerations, the defendant owed the plaintiff no duty of care at the time of the alleged negligence that proximately caused his injuries. The court explained its reasoning as follows: "Absent a duty, [the defendant] cannot be held liable, vicariously or otherwise. To permit vicarious liability where there is no direct liability would be to accomplish indirectly that which could not be accomplished [directly]. The law does not permit that type of legal circumvention." This appeal followed. " Practice Book § 17-49 provides that summary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. A party moving for summary judgment is held to a strict standard.... To satisfy his burden the movant must make a showing that it is quite clear what the truth is, and that excludes any real doubt as to the existence of any genuine issue of material fact.... As the burden of proof is on the movant, the evidence must be viewed in the light most favorable to the opponent.... When documents submitted in support of a motion for summary judgment fail to establish that there is no genuine issue of material fact, the nonmoving party has no obligation to submit documents establishing the existence of such an issue.... Once the moving party has met its burden, however, the opposing party must present evidence that demonstrates the existence of some disputed factual issue.... It is not enough, however, for the opposing party merely to assert the existence of such a disputed issue. Mere assertions of fact . are insufficient to establish the existence of a material fact and, therefore, cannot refute evidence properly presented to the court under Practice Book § [17-45].... Our review of the trial court's decision to grant [a] motion for summary judgment is plenary." (Citation omitted; internal quotation marks omitted.) Ferri v. Powell-Ferri , 317 Conn. 223, 228, 116 A.3d 297 (2015). The plaintiff challenges the court's summary judgment rulings on both of his claims against the defendant on the basis that each was improperly based on a ground that the defendant had not raised in its summary judgment motions, and which the parties had not briefed or argued. The plaintiff claims initially that the court improperly rendered summary judgment in favor of the defendant on his claim of direct negligence because it improperly determined that the defendant owed no duty to him based on public policy considerations, which had not been raised or argued in support of its first motion for summary judgment. We agree. "Duty is a legal conclusion about relationships between individuals, made after the fact, and imperative to a negligence cause of action. The nature of the duty, and the specific persons to whom it is owed, are determined by the circumstances surrounding the conduct of the individual.... Although it has been said that no universal test for [duty] ever has been formulated . our threshold inquiry has always been whether the specific harm alleged by the plaintiff was foreseeable to the defendant. The ultimate test of the existence of the duty to use care is found in the foreseeability that harm may result if it is not exercised.... By that is not meant that one charged with negligence must be found actually to have foreseen the probability of harm or that the particular injury [that] resulted was foreseeable . [T]he test for the existence of a legal duty entails 1) a determination of whether an ordinary person in the defendant's position, knowing what the defendant knew or should have known, would anticipate that harm of the general nature of that suffered was likely to result, and (2) a determination, on the basis of a public policy analysis, of whether the defendant's responsibility for its negligent conduct should extend to the particular consequences or particular plaintiff in the case." (Internal quotation marks omitted.) Ruiz v. Victory Properties, LLC , 315 Conn. 320, 328-29, 107 A.3d 381 (2015). Based on the foregoing principles, the determination of the existence of a legal duty entails a two-pronged analysis. In its first motion for summary judgment, the defendant challenged the existence of a duty to the plaintiff only under the first prong of that analysis-that the harm alleged by the plaintiff was not reasonably foreseeable. The defendant did not assert any argument whatsoever under the second prong-that its responsibility for its alleged negligence should not extend to the plaintiff under these circumstances for reasons of public policy. Consequently, and understandably, the plaintiff did not brief that issue in opposition to the defendant's motion for summary judgment. This court has held that a trial court lacks authority to render summary judgment on a ground not raised or briefed by the parties that does not implicate the court's subject matter jurisdiction. Greene v. Keating , 156 Conn.App. 854, 860, 115 A.3d 512 (2015) ("[t]he court's function is generally limited to adjudicating the issues raised by the parties on the proof they have presented" [emphasis in original; internal quotation marks omitted] ); see also Bombero v. Bombero , 160 Conn.App. 118, 131-32, 125 A.3d 229 (2015). Thus, because the court improperly based its summary judgment ruling on a ground not raised by the defendant in its motion, and rejected the only basis upon which the defendant claimed it was entitled to judgment as a matter of law in its first motion for summary judgment, that motion should have been denied. As to the defendant's second motion for summary judgment, the court similarly rejected the sole argument advanced by the defendant in support of its motion, but rendered summary judgment for the defendant on an unraised ground. The court based its ruling on that motion on the earlier improper determination that the defendant owed no duty to the plaintiff on public policy grounds, which was not raised by the defendant in either of its summary judgment motions. The summary judgment on the plaintiff's vicarious liability claim thus cannot stand. The judgment is reversed and the case is remanded with direction to deny both of the defendant's motions for summary judgment, and for further proceedings according to law. In this opinion the other judges concurred. Ziegler is also a defendant in this action. Because this appeal deals only with the summary judgment rendered in favor of Mystic Seaport Museum, any reference to the defendant herein refers to Mystic Seaport Museum only. We note that Ziegler has filed a brief in this appeal supporting the position of the plaintiff in accordance with Practice Book § 67-3. The plaintiff also claims that the court's public policy analysis was flawed on its merits. Because we reverse the judgment of the trial court on the ground that the public policy issue was not properly before it, we need not address it now. The defendant contends that its citation of cases that involve public policy, among other legal issues, is sufficient to have raised the issue for determination by the trial court, even though it did not actually assert a public policy argument in this case. We decline to countenance such an argument. Other than that argument, which is contained in a single footnote of its brief, the defendant does not address the plaintiff's claims on appeal. Rather, the defendant reasserts the arguments that it made to the trial court in its motions for summary judgment, both of which were rejected by the trial court. The defendant has not challenged those determinations on appeal, nor has it stated an alternative ground to affirm the court's summary judgment. Those arguments are thus not properly before this court.

12490389

STATE of Connecticut v. Jermaine E. REDDICK

State v. Reddick

2017-07-11

AC 38446

754

778

166 A.3d 754

166

West's Atlantic Reporter, Third Series

Connecticut Appellate Court

Connecticut

2021-08-27T20:57:14.020814+00:00

Fastcase

STATE of Connecticut v. Jermaine E. REDDICK

STATE of Connecticut v. Jermaine E. REDDICK AC 38446 Appellate Court of Connecticut. Argued February 3, 2017 Officially released July 11, 2017 Robert E. Byron, assigned counsel, for the appellant (defendant). Sarah Hanna, assistant state's attorney, with whom, on the brief, were Patrick J. Griffin, state's attorney, Michael Dearington, former state's attorney, and Gary W. Nicholson, supervisory assistant state's attorney, for the appellee (state). Sheldon, Keller and Prescott, Js.

11497

69858

SHELDON, J. The defendant, Jermaine E. Reddick, appeals from the judgment of conviction, rendered against him after a jury trial in the judicial district of New Haven, on charges of assault in the first degree in violation of General Statutes § 53a-59 (a) (5), criminal possession of a firearm in violation of General Statutes § 53a-217 (a) (1), and assault in the third degree in violation of General Statutes § 53a-61 (a) (1). On appeal, the defendant claims that his conviction should be reversed on grounds that the prosecutor, in his closing argument to the jury, violated his right to a fair trial by (1) improperly commenting on the defendant's failure to inform police officers at the time of his arrest that he had shot the victim in self-defense; (2) offering his personal opinion as to the credibility of a state's witness; and (3) appealing to the emotions of the jurors by injecting extraneous issues into the trial and commenting on the defendant's prior felony conviction. We affirm the judgment of the trial court. The jury was presented with the following evidence upon which to base its verdict. In the early morning hours of April 29, 2013, the defendant, along with his girlfriend, Myesha Gainey, and their three year old daughter, J, got a ride home from a party they had attended earlier in the evening. Both the defendant and Gainey had been drinking before the ride. At the start of the ride, the defendant was seated in the front passenger seat, while Gainey sat in the backseat with J. At some point during the ride, however, the defendant reached into the backseat, unbuckled J's seat belt, and lifted her into the front seat, where she remained unbuckled for the remainder of the ride. Upon seeing that J was unbuckled in the front seat of the car, Gainey began to argue with the defendant. The argument continued until the couple reached Gainey's home at 38 Peck Street, New Haven, where the defendant stayed several nights a week. Upon arriving at 38 Peck Street, Gainey took J up to the second floor of the home. There, she told the defendant that she was going to call her mother, Marjorie Tillery, to come over and pick up J. The defendant and Gainey then started to argue again. Shortly before 1 a.m., Marjorie Tillery received a phone call from J, who was crying and sounded distraught. During this phone call, Tillery also spoke with Gainey, who sounded emotional and upset. Although Gainey provided few details to her mother about what was happening, Tillery became concerned for Gainey's and J's safety, and agreed to drive over to Peck Street from her home in West Haven. Thereafter, Tillery woke up the victim, her brother, Mickey Tillery, who was asleep in another room. She told her brother that the defendant had been hitting Gainey, and thus that she wanted him to accompany her to retrieve Gainey and J from New Haven. The Tillerys then drove together from West Haven to Lombard Street, New Haven, where Gainey had instructed Marjorie Tillery to meet her. After waiting several minutes at that location, the Tillerys left Lombard Street and drove over to Peck Street. When they arrived, however, they were unable to find parking in the lot behind Gainey's home, and Marjorie Tillery parked her Chevy Tahoe truck in the middle of the parking lot, blocking several occupied parking spaces. At that time, Marjorie Tillery attempted to call Gainey to inform her that they had arrived at Peck Street. Within minutes of the Tillerys' arrival, a grey station wagon began to back out of a parking spot that was partially blocked by Marjorie Tillery's Tahoe. As she was about to move the Tahoe, Marjorie Tillery observed the defendant in the front passenger seat of the station wagon. She then stated to Mickey Tillery, "there go Jermaine right there." Upon seeing the defendant in the passenger seat of the station wagon, both Tillerys exited the Tahoe and began to approach the station wagon. Although Marjorie Tillery recalled that she "came in peace," Mickey Tillery admittedly came with the intent to fight the defendant. He testified at trial that, upon seeing the defendant, "I kind of, like, lost it. I jumped out of the truck. I ran over to where he was sitting in the car ." During this initial encounter, the station wagon remained stationary in its parking space, with its doors unlocked and its passenger window partially down. As he approached the station wagon, Mickey Tillery began to argue with the defendant, saying "something about [how] I'm tired of this with my niece and then . like I said, I pushed him, and I just put my hands inside the car and tried to snatch him out and he yanked back." Mickey Tillery also recounted, "I put my hand inside the car so I could snatch him out the car a minute and . that's why I opened the [passenger] door, but they locked it and then they [rolled] their windows up, and [so] I stepped away from the car and I was just looking because I couldn't get in now that they [had] hatched the windows up and lock[ed] the door." After the defendant locked the car's doors and rolled up its windows, Mickey Tillery took several steps away from the station wagon in an effort to lure the defendant out of the car. Several seconds later, Mickey Tillery heard the doors of the station wagon unlock, and, believing that he and the defendant were about to fight, Mickey Tillery backed away from the car to allow the defendant to exit the station wagon. The defendant then opened the front passenger side door, exited the vehicle, produced a nine millimeter semiautomatic handgun and shot Mickey Tillery, who, at the time, was stepping away from the vehicle with his hands up in the air. Mickey Tillery immediately collapsed on the pavement. Fearing that the defendant might shoot her as well, Marjorie Tillery got back into the Tahoe. The defendant then returned to the passenger side of the station wagon and got in, after which the station wagon backed out of the parking space, drove around the Tahoe, and exited the parking lot. Immediately after the station wagon left the area, Marjorie Tillery saw Gainey exiting her neighbor's home. Although Gainey had not witnessed the shooting, Marjorie Tillery told her that the defendant had shot Mickey Tillery, who, by then, was lying unconscious near the passenger side of the Tahoe. Marjorie Tillery also dialed 911 and reported the incident to the police. Officer Reginald E. McGlotten of the New Haven Police Department arrived first on the scene. After speaking with Marjorie Tillery, McGlotten broadcasted a description of the shooter and the station wagon over his police radio. At the time of that broadcast, Officer Gene Trotman, Jr., who was responding to the initial report of a gunshot fired on Peck Street, observed a station wagon matching the broadcast description of the shooter's vehicle traveling near the intersection of Chapel and Church Streets in New Haven. Trotman first called for backup units, then initiated a traffic stop of the station wagon. Once backup units arrived, Trotman approached the station wagon with his weapon drawn. The driver of the station wagon was identified as Akeem Whitely, and his passenger was identified as Jermaine Reddick, the defendant. Trotman asked the defendant where he was then coming from. The defendant responded that he was coming from 38 Peck Street. Trotman asked if there were any weapons in the vehicle, and the defendant stated that there were. The defendant and Whitely were then placed under arrest. A subsequent search of the station wagon revealed a nine millimeter semiautomatic handgun between the front passenger seat and the center console. Upon further questioning, the defendant stated that the gun was his and that Whitely was simply giving him a ride. Contemporaneously with this traffic stop, Officer Keron Bryce arrived at Peck Street to secure the scene with McGlotten. While securing the scene, Bryce found one nine millimeter shell casing on the pavement near Marjorie Tillery's Tahoe. Bryce then interviewed Marjorie Tillery and Gainey about the events preceding the shooting. During these interviews, Bryce saw a laceration on Gainey's face and noticed that she had a swollen lip. Upon further questioning by the officer, Gainey indicated that the defendant had caused her injuries. Thereafter, Bryce was notified that Trotman had pulled over a vehicle matching the description given by Marjorie Tillery. Bryce then transported Marjorie Tillery to the intersection of Chapel and Church Streets to conduct a one-on-one showup identification of the suspect. Once Bryce and Tillery had arrived at Trotman's location, Bryce shined a spotlight on the defendant, who was then sitting in the backseat of a police cruiser. Upon seeing the defendant, Marjorie Tillery positively identified him as the person who had shot her brother. The defendant was then transported to the New Haven Police Department's detention facility for processing. A subsequent background check revealed that the defendant had previously been convicted of a felony. A few miles away, Mickey Tillery arrived by ambulance at Yale-New Haven Hospital. There, it was determined that the bullet had struck the femoral artery in his right leg and that he was rapidly losing blood. Doctors first performed cardiopulmonary resuscitation on Mickey Tillery, then gave him a "massive [blood] transfusion ." Thereafter, doctors performed reconstructive surgery on his femoral artery to halt the loss of blood. Although the surgery proved successful, Mickey Tillery had to remain in the hospital for the next two weeks. On May 9, 2013, while still recovering in the hospital, Mickey Tillery spoke with members of the New Haven Police Department and agreed to view a photographic array of eight individuals. Upon reviewing the array, Mickey Tillery positively identified a photograph of the defendant as that of the man who had shot him. Thereafter, by way of a long form information, the state charged the defendant with assault in the first degree in connection with the shooting of Mickey Tillery, assault in the third degree in connection with the assault of Gainey, and criminal possession of a firearm. The defendant elected a trial by jury, which took place from April 21 through April 23, 2015. At trial, the defendant argued that Mickey Tillery had been the initial aggressor in the incident between them and that he had shot Mickey Tillery in self-defense. After several hours of deliberations, the jury found the defendant guilty of all three charges. On July 10, 2015, the defendant was sentenced to a total effective term of twenty-three years in prison followed by three years of special parole. This appeal followed. Additional facts will be set forth as necessary. I On appeal, the defendant first claims that the state violated his due process right to a fair trial because the prosecutor, during closing argument, impermissibly commented on the defendant's failure to inform Trotman when he was first interviewed that he had shot Mickey Tillery in self-defense. In support of his claim, the defendant argues that the prosecutor failed to distinguish between the defendant's prearrest and postarrest silence, the latter of which is constitutionally protected. The defendant thus argues that, by commenting on his failure to tell the police when he first spoke with them that he had acted in self-defense, the prosecutor used his postarrest silence as circumstantial evidence of his guilt, in violation of his privilege against self-incrimination, as applied in Doyle v. Ohio , 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976). The defendant claims that the challenged comments were "so egregious, so deliberate, and so calculated to defeat the constitutional right of the defendant and to abuse the authority of the office of the prosecutor that it merits . the reversal of the verdict, even though no objection was made at trial." The state disagrees, arguing that "the defendant's claim fails on both the law and the facts [of this case]." In support of its position, the state argues that the defendant's pre- Miranda silence, unlike his post- Miranda silence, is not constitutionally protected, and thus a prosecutor is not prohibited from commenting on a defendant's pre- Miranda silence during closing argument. The state further argues that the trial court record does not establish when Trotman read the defendant his Miranda rights, and thus there is no basis for concluding that the prosecutor violated the defendant's fifth and fourteenth amendment rights under the rule of Doyle v. Ohio, supra, 426 U.S. at 610, 96 S.Ct. 2240. Finally, the state argues that even if the challenged comments were improper, any error based upon them was harmless and does not warrant reversal of the defendant's conviction. We agree with the state that the record does not establish when the defendant received his Miranda warning, and thus there is no basis upon which to conclude that the prosecutor's comments violated Doyle . The following additional facts are necessary for our resolution of this claim. As discussed in the preceding paragraphs, the defendant advanced a claim of self-defense throughout the trial. In support of his claim, he attempted to establish, through his cross-examination of the state's witnesses, that Mickey Tillery was approximately six inches taller than he was and out-weighed him by as much as seventy pounds. On cross-examination of Mickey Tillery, the defendant elicited admissions as to his anger toward the defendant and his desire to fight him on the evening of the shooting. Mickey Tillery, in fact, agreed with defense counsel's statement that he "would have . beat the crap out of [the defendant]," that he would not have let anyone break up the fight, and that he did not intend to stop fighting with the defendant until he "got tired of hitting him." Defense counsel also sought to emphasize that the defendant had "tried to get away" from Mickey Tillery before the shooting occurred. As part of its case-in-chief, the state presented the testimony of Trotman, the officer who had stopped the station wagon at the intersection of Church and Chapel Streets. Although both parties inquired of Trotman as to the sequence of events during that traffic stop, neither the state nor the defendant established when in that sequence the defendant was arrested, whether the arrest preceded or followed Trotman's questioning of the defendant, whether the defendant was ever given his Miranda warnings, and, if so, when those warnings were given in relation to Trotman's questions. After two days of evidence, the state rested its case-in-chief. The defendant thereafter elected to not testify in his own defense and, after being canvassed by the court as to that decision, rested his case without presenting any defense witnesses. Closing arguments were made the following day. During closing argument, the prosecutor recounted the events leading up to the shooting, emphasizing, inter alia, that during the initial encounter, the defendant had rolled up the car's windows and locked its doors. The prosecutor then recalled for the jury that Mickey Tillery, who was unarmed, had backed away from the defendant's vehicle after its windows were rolled up. "Suddenly," the prosecutor argued, "he hears the door on the passenger's side unlock and what happens? The defendant comes out, pulls out a gun, aims it at Mickey Tillery, and fires at him, striking him in his upper right leg. . I mean, ask yourself, when you shoot somebody who's doing that, is that self-defense? It's not self-defense, ladies and gentlemen." The prosecutor also discussed, without objection, the defendant's conversation with Trotman following the shooting. More specifically, the prosecutor stated: "[W]hat's said by Mr. Reddick at that time? Well, he tells Officer Trotman that he had been over at 38 Peck Street. He also tells . Officer Trotman that the gun was his and that Mr. Whitely was a friend of his and was just giving him a ride. That's what he told Officer Trotman. What didn't he say to Officer Trotman? You know, this is somebody who is going to now claim that he was acting in self-defense. I mean, did he say anything to Officer Trotman, you know, geez, you know . I was just accosted by this [madman] and I had to shoot him. Did he mention the shooting at all? He didn't mention the shooting at all. I . don't know how he thought he was going to get away this. But he, for whatever reason, was willing to admit that he had been over to Peck Street and that the gun was his, but he never admitted to doing any shooting or . that he had to shoot anybody in self-defense, never made . any mention of that, whatsoever." Thereafter, the prosecutor concluded his opening closing argument. At the outset of his closing argument, defense counsel commented that "99 percent of the facts of this case are not disputed. You know what happened; it's just your interpretation of it with a couple of minor twists." Counsel then argued that Marjorie Tillery "was going [to Peck Street] for vengeance. She was going to be a vigilante. She was taking things into her own hands." Thereafter, counsel claimed that Marjorie Tillery "let [Mickey Tillery] loose" on the defendant. Counsel argued that, at that moment, it was the middle of the night, the defendant did not recognize Mickey Tillery, he was being confronted by a larger man who was attempting to pull him out of the car window and that, fearing for his safety, he shot Mickey Tillery in self-defense. Thereafter, defense counsel argued that the state had failed to carry its burden of proof that the defendant had not acted in self-defense that night. In support of his argument, counsel reminded the jury that it could infer that (1) the defendant reasonably believed that he faced serious physical injury because Mickey Tillery admitted that he intended to seriously injure the defendant; (2) the defendant reasonably believed that Mickey Tillery may have had a weapon in the car; (3) the defendant tried to avoid the fight and "stayed in the car for as long as he could"; and (4) the defendant had not used deadly force because he had shot Mickey Tillery in the leg and fired only once before fleeing the area. Counsel then concluded his argument without addressing the state's characterization of the defendant's interaction with Trotman. In its rebuttal argument, the state reiterated that the jury should not credit the defendant's claim of self-defense because the defendant had not told officers at the time of his arrest either that he had shot Mickey Tillery or that he had done so in self-defense. More specifically, the prosecutor argued that, "when the defendant was stopped by Officer Trotman, shortly after the shooting, you know, he didn't say, hey, geez, you know, I'm glad . you can't believe what just happened to me. This madman was coming at me and I had to shoot him. I thought he was going to kill me. He doesn't even mention to Officer Trotman that he shot anybody. So, this wasn't self-defense. If it was self-defense, he would have told the police right then and there what had happened. He didn't." Before reaching the merits of the defendant's claims, we first set forth the relevant portions of our law of self-defense. "Under our Penal Code, self-defense, as defined in [General Statutes] § 53a-19 (a)... is a defense, rather than an affirmative defense. . That is, [the defendant] merely is required to introduce sufficient evidence to warrant presenting his claim of self-defense to the jury. . Once the defendant has done so, it becomes the state's burden to disprove the defense beyond a reasonable doubt. . As these principles indicate, therefore, only the state has a burden of persuasion regarding a self-defense claim: it must disprove the claim beyond a reasonable doubt. "It is well settled that under § 53a-19 (a), a person may justifiably use deadly physical force in self-defense only if he reasonably believes both that (1) his attacker is using or about to use deadly physical force against him, or is inflicting or about to inflict great bodily harm, and (2) that deadly physical force is necessary to repel such attack. . [Our Supreme Court] repeatedly [has] indicated that the test a jury must apply in analyzing the second requirement . is a subjective-objective one. The jury must view the situation from the perspective of the defendant. Section 53a-19 (a) requires, however, that the defendant's belief ultimately must be found to be reasonable." (Internal quotation marks omitted.) State v. Abney , 88 Conn.App. 495, 502-503, 869 A.2d 1263, cert. denied, 274 Conn. 906, 876 A.2d 1199 (2005). Under subsection (b) of § 53a-19, however, "a person is not justified in using deadly physical force upon another person if he or she knows that he or she can avoid the necessity of using such force with complete safety . by retreating ." Moreover, under subsection (c) of § 53a-19, "a person is not justified in using physical force when (1) with intent to cause physical injury or death to another person, he provokes the use of physical force by such other person, or (2) he is the initial aggressor, except that his use of physical force upon another person under such circumstances is justifiable if he withdraws from the encounter and effectively communicates to such other person his intent to do so, but such other person notwithstanding continues or threatens the use of physical force ." Against this backdrop, "[w]e set forth the legal principles that guide our analysis [of the defendant's claims] and our standard of review. In Doyle [v. Ohio , supra, 426 U.S. at 610, 96 S.Ct. 2240 ] . the United States Supreme Court held that the impeachment of a defendant through evidence of his silence following his arrest and receipt of Miranda warnings violates due process. . Likewise, our Supreme Court has recognized that it is also fundamentally unfair and a deprivation of due process for the state to use evidence of the defendant's post- Miranda silence as affirmative proof of guilt . Miranda warnings inform a person of his right to remain silent and assure him, at least implicitly, that his silence will not be used against him. . Because it is the Miranda warning itself that carries with it the promise of protection . the prosecution's use of [a defendant's] silence prior to the receipt of Miranda warnings does not violate due process. . Therefore, as a factual predicate to an alleged Doyle violation, the record must demonstrate that the defendant received a Miranda warning prior to the period of silence that was disclosed to the jury. . The defendant's claim raises a question of law over which our review is plenary." (Citations omitted; internal quotation marks omitted.) State v. Lee-Riveras , 130 Conn.App. 607, 612-13, 23 A.3d 1269, cert. denied, 302 Conn. 937, 28 A.3d 992 (2011) ; see also State v. Bereis , 117 Conn.App. 360, 373, 978 A.2d 1122 (2009). In the present case, the defendant claims that the prosecutor's remarks during his opening and rebuttal closing arguments violated his constitutional rights under the fifth and fourteenth amendments, as applied in Doyle v. Ohio , supra, 426 U.S. at 610, 96 S.Ct. 2240, not to have the exercise of his right to remain silent used against him in a later criminal proceeding. In support of his position, the defendant argues that, although "[p]ostarrest silence is treated differently from prearrest silence," the facts of this case demonstrate that "there was a period under anyone's definition of arrest during which the defendant was silent as to his exculpatory explanation ." The defendant further asserts that the prosecutor failed to distinguish between the defendant's prearrest and postarrest silence, and thus the prosecutor's comments, which "encompassed the entirety of the time the defendant was under the custody of Trotman," violated the defendant's fifth and fourteenth amendment rights to remain silent. Furthermore, although the defendant concedes that Trotman did not testify as to when, if at all, the defendant received his Miranda warnings in the course of the traffic stop, he maintains that the right to remain silent is not contingent upon the receipt of Miranda warnings, but instead "inheres automatically under the fifth amendment." We are not persuaded. At the outset, we address two fundamental flaws in the defendant's argument. We first note that, although the defendant is correct in his assertion that the right to remain silent is not contingent upon the receipt of Miranda warnings, "[i]t has long been settled that the privilege [against self-incrimination] generally is not self-executing and that a witness who desires its protection must claim it." (Citation omitted; internal quotation marks omitted.) Salinas v. Texas , - U.S. -, 133 S.Ct. 2174, 2178, 186 L.Ed.2d 376 (2013). In the present case, however, there is no evidence to support the notion that the defendant, in the absence of any Miranda warning, expressly invoked his constitutional right to remain silent at any time during his encounter with Trotman. We further note that, in support of his claim that the prosecutor violated the constitutional protections described in Doyle , the defendant relies upon the fact that he was either in police custody or under formal arrest when he spoke with Trotman. A review of relevant federal and state case law demonstrates that the defendant's reliance on these facts is misplaced. In Fletcher v. Weir , 455 U.S. 603, 102 S.Ct. 1309, 71 L.Ed.2d 490 (1982), the United States Supreme Court summarized its evolving jurisprudence under Doyle by explaining that the "use of silence for impeachment was fundamentally unfair in Doyle because Miranda warnings inform a person of his right to remain silent and assure him, at least implicitly, that his silence will not be used against him. . [Thus] Doyle bars the use against a criminal defendant of silence maintained after receipt of governmental assurances. " (Emphasis added; internal quotation marks omitted.) Id., at 606, 102 S.Ct. 1309. In State v. Leecan , 198 Conn. 517, 504 A.2d 480, cert. denied, 476 U.S. 1184, 106 S.Ct. 2922, 91 L.Ed.2d 550 (1986), our Supreme Court adopted the rationale of Fletcher , holding that "the absence of any indication in the record that the silence of a defendant had been preceded by a Miranda warning rendered Doyle inapplicable, even though the inquiry of the prosecutor pertained to the time of arrest." Id., at 524-25, 504 A.2d 480 ; see also State v. Berube , 256 Conn. 742, 751-52, 775 A.2d 966 (2001) ; State v. Plourde , 208 Conn. 455, 467, 545 A.2d 1071 (1988), cert. denied, 488 U.S. 1034, 109 S.Ct. 847, 102 L.Ed.2d 979 (1989). Accordingly, our courts have recognized that the giving of Miranda warnings, even in the absence of a formal arrest, entitles the defendant to the Doyle protections because such warnings provide governmental assurance, at least implicitly, that the defendant's silence will not be used against him. See State v. Montgomery , 254 Conn. 694, 715, 759 A.2d 995 (2000). We have, however, distinguished the former cases from cases where no Miranda warnings were given. In so doing, we have held that the act of being placed under arrest does not, by itself, provide governmental assurance that the defendant's silence will not be used against him at a later date. E.g., State v. Plourde , supra, 208 Conn. at 466-67, 545 A.2d 1071. Thus, it is the giving of Miranda warnings, not the act of being placed under arrest, that cloaks a defendant with the protections of Doyle v. Ohio , supra, 426 U.S. at 610, 96 S.Ct. 2240. See B. Gershman, Prosecutorial Misconduct (2d Ed. 2011-2012) § 10:17, p. 416 ("[c]learly, the operative fact in Jenkins [v. Anderson , 447 U.S. 231, 100 S.Ct. 2124, 65 L.Ed.2d 86 (1980) ], as in Doyle , is the giving of Miranda warnings, not the arrest"). As we have long held, if a defendant alleges a constitutional violation, he bears the initial burden of establishing that the alleged violation occurred; it is only then that the state assumes the burden of demonstrating that the constitutional error was harmless beyond a reasonable doubt. See, e.g., State v. Jones , 65 Conn.App. 649, 654, 783 A.2d 511 (2001) ; see also State v. Nasheed , 121 Conn.App. 672, 678-79, 997 A.2d 623, cert. denied, 298 Conn. 902, 3 A.3d 73 (2010). Moreover, when analyzing a defendant's claim that a prosecutor violated the protection set forth in Doyle , we have held that "[i]t is essential to know the timing of these conversations because the use at trial of silence prior to the receipt of Miranda warnings does not violate due process." (Emphasis in original; internal quotation marks omitted.) State v. Berube , supra, 256 Conn. at 751, 775 A.2d 966. In the present case, the record is unclear as to when, if at all, Trotman gave Miranda warnings to the defendant. Accordingly, under the present facts, "we are unable to determine whether a Doyle violation occurred." State v. Gonzalez , 167 Conn.App. 298, 302 n.2, 142 A.3d 1227, cert. denied, 323 Conn. 929, 149 A.3d 500 (2016). In light of the foregoing, we conclude that there is no basis upon which to conclude that the prosecutor's comments during closing argument violated the defendant's due process rights pursuant to Doyle v. Ohio , supra, 426 U.S. at 610, 96 S.Ct. 2240. In so concluding, we need not address the subsequent question of whether such violation, if established, was harmless beyond a reasonable doubt. Cf. State v. Montgomery , supra, 254 Conn. at 717-18, 759 A.2d 995. II The defendant's final claim on appeal is that the prosecutor committed several improprieties in closing argument that combined to deprive him of his due process right to a fair trial. More specifically, the defendant argues that the prosecutor impermissibly (1) voiced his personal opinion as to Gainey's credibility; and (2) appealed to the emotions of the jury by referencing the recent trend of increasing gun violence in New Haven and repeatedly referring to the defendant as a "convicted felon" and a "predator ." The defendant claims, on the basis of such alleged improprieties, that he is entitled to the reversal of his conviction on all charges and a new trial. In response, the state first argues that the defendant misquotes the record and misrepresents the context in which the prosecutor's challenged comments were allegedly made. It thus argues, as a threshold matter, that the prosecutor's comments, when properly understood, were not improper because (1) the comments as to Gainey's credibility were "based in the evidence and the reasonable inferences drawn therefrom"; (2) the comments about gun violence in New Haven only referred to facts about which the jurors had common knowledge, and the prosecutor never suggested that by finding the defendant guilty, the jury could somehow lessen the problem of gun violence; and (3) the prosecutor's comments regarding the defendant's felony conviction were true in fact, supported by the record, and relevant to a substantive issue in the case. Finally, the state argues that, "to the extent that this court finds any impropriety, the defendant has failed to demonstrate a violation of his right to a fair trial." Before addressing the defendant's individual claims of impropriety, we set forth our standard of review and governing legal principles. "[W]hen a defendant raises on appeal a claim that improper remarks by the prosecutor deprived the defendant of his constitutional right to a fair trial, the burden is on the defendant to show, not only that the remarks were improper, but also that, considered in light of the whole trial, the improprieties were so egregious that they amounted to a denial of due process. . In analyzing whether the prosecutor's comments deprived the defendant of a fair trial, we generally determine, first, whether the [prosecutor] committed any impropriety and, second, whether the impropriety or improprieties deprived the defendant of a fair trial." (Citation omitted; internal quotation marks omitted.) State v. Felix R. , 319 Conn. 1, 8-9, 124 A.3d 871 (2015). Put differently, "[impropriety] is [impropriety], regardless of its ultimate effect on the fairness of the trial; whether that [impropriety] caused or contributed to a due process violation is a separate and distinct question ." (Internal quotation marks omitted.) Id., at 9, 124 A.3d 871, quoting State v. Warholic , 278 Conn. 354, 361-62, 897 A.2d 569 (2006) ; see also State v. Ciullo , 314 Conn. 28, 35, 100 A.3d 779 (2014). "[T]he burden is on the defendant to show, not only that the remarks were improper, but also that, considered in light of the whole trial, the improprieties were so egregious that they amounted to a denial of due process." (Internal quotation marks omitted.) State v. Medrano , 308 Conn. 604, 620, 65 A.3d 503 (2013). "As we have indicated, our determination of whether any improper conduct by the state's attorney violated the defendant's fair trial rights is predicated on the factors set forth in State v. Williams , [204 Conn. 523, 540, 529 A.2d 653 (1987) ]." (Internal quotation marks omitted.) State v. Warholic , supra, at 362, 897 A.2d 569. "As we previously have recognized, prosecutorial [impropriety] of a constitutional magnitude can occur in the course of closing arguments. . When making closing arguments to the jury, [however] [c]ounsel must be allowed a generous latitude in argument, as the limits of legitimate argument and fair comment cannot be determined precisely by rule and line, and something must be allowed for the zeal of counsel in the heat of argument. . Thus, as the state's advocate, a prosecutor may argue the state's case forcefully, [provided the argument is] fair and based upon the facts in evidence and the reasonable inferences to be drawn therefrom. . "Nevertheless, the prosecutor has a heightened duty to avoid argument that strays from the evidence or diverts the jury's attention from the facts of the case. [The prosecutor] is not only an officer of the court, like every attorney, but is also a high public officer, representing the people of the [s]tate, who seek impartial justice for the guilty as much as for the innocent. . While the privilege of counsel in addressing the jury should not be too closely narrowed or unduly hampered, it must never be used as a license to state, or to comment upon, or to suggest an inference from, facts not in evidence, or to present matters which the jury [has] no right to consider." (Internal quotation marks omitted.) State v. Medrano , supra, 308 Conn. at 611-13, 65 A.3d 503. With these general principles in mind, we address each of the defendant's arguments. A Gainey's Credibility The defendant first argues that the prosecutor usurped the jury's role in assessing Gainey's credibility, instead "[making] that determination for the jury" by offering his personal belief that she had lied under oath regarding her injuries. The following additional facts are necessary for our resolution of this claim. From the outset of her direct examination, Gainey admitted, inter alia, that she was still in love with the defendant, she did not wish to testify, and she was testifying only because she had been served with a subpoena. Throughout the course of her examination, she vehemently denied that the defendant had hit her on the evening of the shooting or that he was, in any way, responsible for the bruises and cuts she sustained that evening. Rather, she maintained that, although she could not recall what she had had to drink that evening, she was heavily intoxicated, as a result of which she had fallen down her stairs. Gainey stated that, despite informing the police after the shooting that she had fallen down the stairs, she had been pressured into giving a statement implicating the defendant, and thus had lied in her statements to police. She also denied telling either her neighbor or the police that the defendant had hit her that evening. After Gainey became increasingly unresponsive to the state's questions during the trial, the court permitted the prosecutor to examine her as a hostile witness. Thereafter, the prosecutor introduced into evidence a redacted video of Gainey's April 29, 2013 interview with the New Haven police. In that interview, Gainey told the police, inter alia, that the defendant had struck her several times in the face, and that she had attempted to fight back and, thereafter, had run over to her neighbor's house and told her neighbor about the defendant's physical abuse. During his initial closing argument to the jury, the prosecutor argued, inter alia, that Gainey had violated her oath to testify truthfully as to the source of her injuries that night. In support of that argument, the prosecutor reminded the jury that Gainey had told the police that the defendant had struck her several times in the face that evening, but she had never mentioned falling down the stairs. The prosecutor then asked the jury to recall Gainey's demeanor while testifying and her admission that she was testifying only because the state had subpoenaed her. In an attempt to explain why Gainey had offered two drastically different accounts as to the source of her injuries, the prosecutor stated, "[w]ell, people don't come into court and lie just for the heck of it. I mean, I guess there . are pathological liars that might do that; I'm not claiming that Ms. Gainey is that type of person. You know, she came in here. She admitted that she's in love with the defendant. She has a young daughter by him. The state would submit, use your common sense on that issue. Her motivation for fabricating here in court about how she got hurt was because she was trying to help Mr. Reddick. But, again . for you to make that decision, you'd had an opportunity to review and see her actual interview at the New Haven Police Department the night of that incident. She was coherent. She answered questions in a manner that was appropriate. She did not have slurred speech. She never asked to use the bathroom. There was absolutely no evidence whatsoever that during that interview that she was intoxicated or drunk, nothing. So, she came in here and there were some things that had a kernel of truth to it, but for the most part, as far as how she got injured that night, she did not want to blame that on Mr. Reddick because she was trying to protect him and that's what she did. You know, she's a victim of domestic abuse. She'll take a beating and not report it to the police. She's blinded by her love for the defendant and . [her] feelings for him. She's unable to protect herself from this abuse. She's . unable to prevent her daughter from seeing it happen. But, you know, unfortunately, she's blinded by her feelings for the defendant." It is well established that, although "[a] prosecutor may not express his [or her] own opinion, directly or indirectly, as to the credibility of the witnesses . [i]t is not improper for the prosecutor to comment upon the evidence presented at trial and to argue the inferences that the jurors might draw therefrom ." (Internal quotation marks omitted.) State v. Ciullo , supra, 314 Conn. at 40-41, 100 A.3d 779. Moreover, we have held that "[i]t is permissible for a prosecutor to explain that a witness either has or does not have a motive to lie." State v. Ancona , 270 Conn. 568, 607, 854 A.2d 718 (2004), cert. denied, 543 U.S. 1055, 125 S.Ct. 921, 160 L.Ed.2d 780 (2005). In the present case, the prosecutor's comments did not amount to statements of personal opinion as to whether Gainey was, in fact, lying. Rather, the prosecutor argued that Gainey had presented two drastically different accounts as to how she was injured on the evening of the shooting, that she was biased by her feelings for the defendant, and that she had a motive to testify favorably for the defense. From those facts, the prosecutor asked the jury to "use [its] common sense on that issue" and to reject Gainey's claim that she had fallen down the stairs that night. Such argument does not amount to prosecutorial impropriety; "instead, the prosecutor's statements, when placed in the context in which they were made, are reasonable inferences the jury could have drawn from the evidence adduced at trial." State v. Ciullo , supra, at 42, 100 A.3d 779. Because we conclude that the defendant's first claim does not amount to prosecutorial impropriety, we need not consider whether it "caused or contributed to a due process violation ." (Internal quotation marks omitted.) State v. Warholic , supra, 278 Conn. at 362, 897 A.2d 569. B Appealing to Jurors' Emotions The defendant's final argument on appeal is that the prosecutor improperly appealed to the jurors' emotions (1) by arguing that the defendant's conduct was "another example of the unnecessary and senseless gun violence that's become all too common [in] the city of New Haven"; and (2) by engaging in character assassination of the defendant by referring to him as "a predator" and "a convicted felon . [who] doesn't care about the law." The state responds that the prosecutor's comments about gun violence in New Haven were not improper or, alternatively, that they did not violate the defendant's right to a fair trial. As to the defendant's remaining claim, the state first argues that the word "predator" was never used to describe the defendant, but instead was used to describe the kind of person, unlike Mickey Tillery, against whom the defendant might have needed to use deadly force in self-defense. The state further argues that the prosecutor's comments about the defendant being a convicted felon properly referred to the evidence presented and the reasonable inferences that could be drawn therefrom. We address each argument in turn. We first address the prosecutor's comment regarding general patterns of gun violence in New Haven. At the close of the prosecutor's initial remarks to the jury, the prosecutor summarized the events surrounding the shooting and the defendant's ability, but unwillingness, to leave the area safely before he shot Mickey Tillery. In that regard, the prosecutor stated that "what this case is, it's another example of the unnecessary and senseless gun violence that's become all too common in the city of New Haven. That's what this is. This defendant was not justified in using deadly physical force against Mickey Tillery. This was not self-defense, ladies and gentlemen. The defendant didn't shoot Mickey Tillery to protect himself. He was angry at Mickey Tillery for intervening in this domestic abuse situation he had going on with Myesha [Gainey]. He became angry. He was going to teach him a lesson. Mind your own business, stay out of the relationship. He taught him a lesson, all right." (Emphasis added.) As discussed in the preceding paragraphs, "a prosecutor may argue the state's case forcefully, [provided the argument is] fair and based upon the facts in evidence and the reasonable inferences to be drawn therefrom. . Nevertheless, the prosecutor has a heightened duty to avoid argument that strays from the evidence or diverts the jury's attention from the facts of the case." (Internal quotation marks omitted.) State v. Medrano , supra, 308 Conn. at 613, 65 A.3d 503. Accordingly, "the prosecutor should refrain from injecting issues broader than the guilt or innocence of the accused under the controlling law, or by making predictions of the consequences of the jury's verdict ." (Internal quotation marks omitted.) A. Spinella, Connecticut Criminal Procedure (1985) p. 713, quoting State v. Gold , 180 Conn. 619, 659, 431 A.2d 501, cert. denied, 449 U.S. 920, 101 S.Ct. 320, 66 L.Ed.2d 148 (1980). Here, we agree with the defendant that the prosecutor's reference to broader issues of gun violence in New Haven was improper because it was extraneous and irrelevant to the issues before the jury. We turn next to the defendant's argument that the prosecutor engaged in character assassination. We first dispose of the defendant's subsidiary claim that the prosecutor violated his right to a fair trial by referring to the defendant as a "predator" in closing argument. Simply stated, he did not. Instead, as the state has argued, the prosecutor used that word only when he argued as follows: "[T]his is not a typical self-defense claim. You know, typically we think of self-defense, you know, someone minding their own business, doing nothing they shouldn't be doing and being accosted by some predator who sets upon them and . they have this confrontation with the predator, they're forced to protect themselves. That's not what happened here." (Emphasis added.) It is thus readily apparent that, when using the term "predator" in his closing argument, the prosecutor was not referring to the defendant. Accordingly, we conclude that this comment was not improper. Finally, we address the prosecutor's references to the defendant's prior felony conviction during his opening and rebuttal closing arguments to the jury. In his opening argument, the prosecutor recalled for the jury that Officer Bryce had testified that he had performed a background check on the defendant and learned "that the defendant had been previously convicted of a felony." When summarizing the evidence supporting count two, criminal possession of a firearm, he argued that the defendant had admitted that it was his gun, the gun was found in an operable condition, and that "Mr. Reddick, who is a convicted felon, had no right to have that weapon that evening." The defendant did not object to these remarks. In his rebuttal argument, however, the prosecutor made two additional references to the defendant's felony conviction for very different purposes. On the first occasion, he argued that the defendant's claim of self-defense should be rejected because the defendant "created this situation" by assaulting Gainey and then remaining at Peck Street, knowing that Gainey's family "wasn't going to stand for that." "Right after the beating," the prosecutor remarked, "what did [the defendant] do? . He arms himself with a nine millimeter semiautomatic pistol, which, originally, had seventeen live rounds. You know, he was ready for trouble. He was locked and loaded. "He was a convicted felon. He knew he couldn't have that gun. He doesn't care about the law. You think [he] cared about the law when his fists were smashed into his girlfriend's face? He didn't care. He doesn't care. He knew that there was going to be consequences for his actions. . [I]f he thought that the family or Myesha [Gainey] were going to call the New Haven police, do you think he would have been sitting with a nine millimeter fully loaded pistol waiting for the New Haven police to show up? I don't think so." On the second occasion, the prosecutor referenced the defendant's felony conviction while discussing the circumstances immediately preceding the shooting. Specifically, he remarked that the defendant was able to lock the doors and windows to the station wagon, after which "[h]e could have had his buddy drive away" or, alternatively, he could have displayed the pistol and told Mickey Tillery, "look, stay the hell away from me." Had he pursued either of those alternative courses, the prosecutor argued, "[h]e could have went up to his apartment at 38 Peck Street, locked the door, and called the police. Did he do that? No. Well, he's not going to do that because he's a convicted felon in the possession of a pistol." Thereafter, the prosecutor concluded his closing argument by stating, inter alia: "So I want . you to consider all of those things that he could have done. . [T]his was not a necessary shooting because this shooting was not self-defense. That's not what the shooting was about. It was motivated by the defendant wanting to teach the Tillery family a lesson." The defendant voiced no objection to any of these comments. The parties do not dispute that "[e]vidence of other crimes, wrongs or acts of a person is admissible . to prove . an element of the crime. ." Conn. Code Evid. § 4-5 (c) ; see also, e.g., State v. James , 69 Conn.App. 130, 135, 793 A.2d 1200, cert. denied, 260 Conn. 936, 802 A.2d 89 (2002) ; State v. Hanks , 39 Conn.App. 333, 344, 665 A.2d 102, cert. denied, 235 Conn. 926, 666 A.2d 1187 (1995). In this case, the prosecutor's comments during his opening closing argument merely summarized Bryce's unobjected-to testimony that the defendant had, in fact, been convicted of a felony, which was an essential element of the charge of criminal possession of a firearm. We conclude, therefore, that this remark was wholly proper, and obviously did not constitute prosecutorial impropriety. We conclude, however, that the prosecutor's further commentary regarding the defendant's prior felony conviction was improper. It is well established that "[a] prosecutor may not appeal to the emotions of the jurors by engaging in character assassination and personal attacks against . the defendant ." State v. Warholic , supra, 278 Conn. at 389, 897 A.2d 569. As discussed in the preceding paragraphs, "[The prosecutor] is not only an officer of the court, like every attorney, but is also a high public officer, representing the people of the [s]tate, who seek impartial justice for the guilty as much as for the innocent. . His conduct and language in the trial of cases in which human life or liberty [is] at stake should be forceful, but fair, because he represents the public interest, which demands no victim and asks no conviction through the aid of passion, prejudice, or resentment." (Internal quotation marks omitted.) State v. Medrano , supra, 308 Conn. at 612, 65 A.3d 503. Thus, "[a]lthough a state's attorney may argue that the evidence proves the defendant guilty, he may not stigmatize the defendant by the use of epithets which characterize him as guilty before an adjudication of guilt." (Internal quotation marks omitted.) Id., at 615, 65 A.3d 503. In its brief to this court, the state attempts to walk a fine line by arguing that the prosecutor's comments did not suggest that the defendant did not care about the law merely because he was a convicted felon but, instead, suggested that the defendant did not care about the law because, despite the fact that he had previously been convicted of a felony, he assaulted his girlfriend, illegally armed himself with a nine millimeter pistol, and waited for the eventual confrontation with Mickey Tillery. We are unpersuaded. As previously discussed, the defendant did not testify in this case, and thus his prior felony conviction could not be used to challenge the veracity of his testimony. See Conn. Code Evid. § 6-7 (b). Accordingly, the prosecutor could only use evidence of the defendant's prior conviction to establish an essential element of a crime or by utilizing another recognized exception under § 4-5 of the Connecticut Code of Evidence. His comments, however, suggested that the defendant, a convicted felon, was not a law-abiding citizen, and thus had a propensity to engage in the type of criminal conduct for which he had been charged. Our Code of Evidence unequivocally prohibits the use of prior convictions to establish a defendant's propensity for criminal behavior. Conn. Code Evid. § 4-5 (a) ; see, e.g., State v. Ellis , 270 Conn. 337, 354, 852 A.2d 676 (2004). We thus agree with the defendant that these comments were also improper. "Having determined that several of the prosecutor's statements were improper, we now turn to whether the defendant has proven that the improprieties, cumulatively, 'so infected the trial with unfairness as to make the [conviction] a denial of due process.' " State v. Medrano , supra, 308 Conn. at 620, 65 A.3d 503. "To determine whether the defendant was deprived of his due process right to a fair trial, we must determine whether the sum total of [the prosecutor's] improprieties rendered the defendant's [trial] fundamentally unfair, in violation of his right to due process. . The question of whether the defendant has been prejudiced by prosecutorial [impropriety], therefore, depends on whether there is a reasonable likelihood that the jury's verdict would have been different absent the sum total of the improprieties. . This inquiry is guided by an examination of the following Williams factors: the extent to which the [impropriety] was invited by defense conduct or argument . the severity of the [impropriety] . the frequency of the [impropriety] . the centrality of the [impropriety] to the critical issues in the case . the strength of the curative measures adopted . and the strength of the state's case." (Internal quotation marks omitted.) State v. Warholic , supra, 278 Conn. at 396, 897 A.2d 569. With respect to the first Williams factor, there is nothing in the record before us to suggest that the prosecutor's comments about gun violence in New Haven or the defendant's felony conviction were invited by the defendant's conduct or argument. Next, with respect to the second Williams factor, the severity of the improprieties, we agree with the state that the prosecutor's remarks regarding gun violence in New Haven did not go so far as to "imp[ly] that convicting the defendant would alleviate the gun violence in New Haven." Moreover, although we conclude that the prosecutor's comments regarding the defendant's felony conviction were improper, we are cognizant that the defendant failed to object, at any point, to the remarks now at issue. As we have repeatedly held, "the determination of whether a new trial or proceeding is warranted depends, in part, on whether defense counsel has made a timely objection to any [incident] of the prosecutor's improper [conduct]. When defense counsel does not object, request a curative instruction or move for a mistrial, he presumably does not view the alleged impropriety as prejudicial enough to seriously jeopardize the defendant's right to a fair trial." (Internal quotation marks omitted.) State v. Warholic , supra, 278 Conn. at 361, 897 A.2d 569. With respect to the third Williams factor, the frequency of the alleged improprieties, we note that the prosecutor's comment regarding gun violence in New Haven was an isolated remark and was not part of a larger pattern or theme in the state's case. Cf. State v. Ceballos , 266 Conn. 364, 411, 832 A.2d 14 (2003). As for the frequency of his comments regarding the defendant's felony conviction, these questionable comments occurred only twice, and thus we conclude that the frequency of these comments does not rise to the level of the frequency of impropriety that was identified and admonished by our Supreme Court in State v. Williams , supra, 204 Conn. at 547, 529 A.2d 653. As to the fourth Williams factor, whether the challenged comments touched upon the central issues before the jury, we agree with the state that, with respect to the defendant's claim of self-defense, the central issue was whether the jury credited the Tillerys' account of what transpired on the evening of the shooting. Against that background, we conclude that the prosecutor's comment regarding gun violence in New Haven had little, if any, relation to that issue, and thus did not strike at the central issues of this case. As for his comments regarding the defendant's felony conviction, however, we believe that such comments did touch upon the central issue of self-defense, and thus we resolve the fourth Williams factor in the defendant's favor. As for the fifth Williams factor, the strength of the curative measures adopted, we note that the defendant did not request, and the court did not give, any curative instruction to the jury that it should disregard any of the prosecutor's improper comments. Although the court instructed the jury, with respect to the elements of criminal possession of a firearm, that "the state must prove beyond a reasonable doubt, number one, that the defendant possessed a firearm and, number two, that he was prohibited from possessing a firearm at the time because he was convicted of a felony," the court did not provide any limiting instruction concerning the prosecutor's improper remarks about the defendant's felony conviction. With respect to his comments on gun violence in New Haven, the court instructed the jury only generally, that "[y]ou may not go outside the evidence introduced in court to find the facts. This means you may not [resort] to guesswork, conjuncture, or suspicion, and you must not be influenced by any personal likes or dislikes, opinions, prejudices, or sympathy. . Arguments by counsel are not evidence. . What they have said in their closing arguments is intended to help you interpret the evidence, but it is not evidence." We conclude that these instructions were sufficient to cure any prejudice resulting from the prosecutor's improper comment regarding gun violence in New Haven. See, e.g., State v. Williams , supra, 204 Conn. at 534, 529 A.2d 653 ("Absent a fair indication to the contrary, the jury is presumed to follow the court's instructions. . There is nothing in this record to suggest that it did not do so." [Citation omitted.] ). Finally, we emphasize that, with respect to the sixth Williams factor, the strength of the state's case, the state's case against the defendant was strong. During its case-in-chief, the state presented, inter alia: (1) testimony of two eyewitnesses to the shooting, who testified consistently that Mickey Tillery had his hands raised and was moving away from the defendant and his vehicle when the defendant emerged from the station wagon and shot him; (2) photographic and testimonial evidence demonstrating that the location of Marjorie Tillery's Tahoe did not prevent the station wagon from leaving the parking lot had the defendant attempted to do so; (3) testimony that the defendant made inculpatory statements to the police officers shortly after the shooting; and (4) forensic evidence linking the gun found in the defendant's possession to the shell casing recovered at the scene. As such, the remaining issue to be decided was whether the defendant acted in self-defense. As more fully explained throughout this opinion, however, the facts elicited throughout the state's case-in-chief substantially undercut the defendant's claim that he shot Mickey Tillery in self-defense. As previously stated, "when a defendant raises on appeal a claim that improper remarks by the prosecutor deprived the defendant of his constitutional right to a fair trial, the burden is on the defendant to show, not only that the remarks were improper, but also that, considered in light of the whole trial, the improprieties were so egregious that they amounted to a denial of due process." State v. Payne , 303 Conn. 538, 562-63, 34 A.3d 370 (2012). Considering the strength of the state's case, the infrequency with which the improper comments were made, and the defendant's failure to object to any of the comments with which he now takes issue, we conclude that the defendant has not demonstrated that, "in the context of the entire trial"; State v. Williams , supra, 204 Conn. at 538, 529 A.2d 653, 529 A.2d 653 ; the prosecutor's improper comments "rendered the defendant's [trial] fundamentally unfair, in violation of his right to due process." (Internal quotation marks omitted.) State v. Warholic , supra, 278 Conn. at 396, 897 A.2d 569 ; see also State v. Stevenson , 269 Conn. 563, 571, 849 A.2d 626 (2004). The judgment is affirmed. In this opinion the other judges concurred. In view of this court's policy of protecting the privacy interests of juveniles, we refer to the child involved in this matter as J. See, e.g., Frank v. Dept. of Children & Families, 312 Conn. 393, 396 n.1, 94 A.3d 588 (2014). At trial, Gainey claimed that she intended to call her mother because she was too drunk to care for J. Tillery and the victim, her brother, Mickey Tillery, however, stated that Gainey called her mother that evening because the defendant had struck her in front of J. Marjorie Tillery also testified that she wanted her brother to accompany her "in case [the defendant] wanted to disrespect me in a sense . [to make] sure everything would be all right once [we] got there." At trial, Gainey testified inconsistently regarding the plan to meet at Lombard Street that evening. Gainey first testified that, after she had called her mother, she traveled to Lombard Street and waited with J on the front porch of a friend's house before returning to Peck Street. Upon further questioning, Gainey testified that she never made it to her friend's house, but instead had walked approximately halfway to Lombard Street before she returned to Peck Street. Thereafter, she stated that she had gone to her neighbor's home following her argument with the defendant, and was inside that neighbor's home when her mother arrived at Peck Street. Although Marjorie Tillery testified that she first traveled to Lombard Street before heading to Peck Street, Mickey Tillery testified that they traveled directly from West Haven to Peck Street, New Haven. At trial, Marjorie Tillery testified that she "just wanted to talk to [the defendant] and ask him, you know, why [the defendant continued] to keep on doing what he [was] doing to my daughter knowing my granddaughter, which is his daughter, is there to see all that." As we will discuss more fully, the parties agree that the record does not clearly establish the chronology of Trotman's traffic stop or his questioning of the defendant. Notably, there is no indication of whether the defendant was arrested prior to or after answering Trotman's questions or when, if at all, the defendant received his warnings pursuant to Miranda v. Arizona, 384 U.S. 436, 478-79, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), during this encounter. On the second day of trial, Jill Therriault, a firearms and toolmark examiner with the state Department of Emergency Services and Public Protection's division of scientific services, testified that forensic testing confirmed that the shell casing discovered at Peck Street was fired from the nine millimeter handgun later recovered in the defendant's possession. During the state's direct examination of Bryce, the following colloquy occurred: "Q. Finally, sir, as part of your duties or responsibilities in this case, did you have occasion to do a background check for the defendant, Mr. Jermaine Reddick . to determine whether or not he had been previously convicted of a felony? Did you do such a check? . "A. Yes. "Q. All right. And after doing that check, did you confirm that Mr. Reddick, in fact, had been previously convicted of a felony before that date? "A. Yes." The defendant did not object to this line of questioning or request a limiting instruction as to the permissible use of such prior conviction evidence. The defendant also claims that the prosecutor's comments violated General Statutes § 54-84 (a), which provides in relevant part: "Any person on trial for crime shall be a competent witness, and at his or her option may testify or refuse to testify upon such trial. The neglect or refusal of an accused party to testify shall not be commented upon by the court or prosecuting official ." A review of the record, however, demonstrates that the prosecutor never commented on the defendant's decision not to testify during trial. We thus reject this alternative argument. It is well settled that a defendant may raise a claim of prosecutorial impropriety on appeal even though he failed to object to the alleged impropriety at trial. See, e.g., State v. Stevenson, 269 Conn. 563, 573-74, 849 A.2d 626 (2004). See Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). At several points during the trial, the defendant claimed that Mickey Tillery was six feet tall and weighed 240 pounds. On direct examination of Dirk Johnson, a physician at Yale-New Haven Hospital, the state entered into evidence exhibit 25, a medical report dated May 7, 2013, which listed Mickey Tillery's height at five feet, eleven inches and his weight at 219 pounds. On cross-examination, Gainey agreed with defense counsel that the defendant was approximately five feet, six inches tall and weighed 170 pounds. During the state's direct examination of Trotman, the following colloquy occurred: "Q. Okay. Now . after you stopped the vehicle . did you ask Mr. Reddick any questions, sir? "A. Yes, I asked him where he was coming from. "Q. Okay. And do you remember what, if anything, he told you about that? "A. Yes, he said he was coming from 38 Peck. "Q. Okay. Now, after you discovered the handgun . did Mr. Reddick indicate who that gun belonged to? "A. Yes, he said it was his. "Q. And concerning Mr. Whitely's involvement in this incident, what did he say, if anything, about Mr. Whitely? "A. He said Mr. Whitely was just giving him a ride and that the gun belonged to him. "Q. So, at this point, were both Mr. Whitely and Mr. Reddick . were they both detained and placed under arrest, sir? "A. Yes." On cross-examination of Trotman, the following colloquy occurred: "Q. When you spoke to Mr. Reddick, you asked him where he was coming from. Correct? "A. Yes. "Q. And he told you 38 Peck Street. "A. Yes. "Q. And that's, in fact, where he was coming from. Correct? "A. Yes. "Q. And . did you ask him whose gun is that? "A. I don't recall . I think it was more . that he didn't want the driver to get in trouble for what he did. I don't recall how it came about, but he did say that . it was his gun. "Q. And were you the one that stopped him? "A. Yes. "Q. All right. . [Did] you have your weapon drawn when you . stopped him? "A. Yes. "Q. All right. "A. Yes. "Q. Did you ask him if he had any weapons in the car? "A. Yes. "Q. And did he say yes? "A. I don't recall. "Q. Okay. At some point he said yes. Correct? "A. Yes. "Q. He . indicated . that it was his weapon. "A. Yes. "Q. All right. And do you know the person who was shot in this case? Do you know his name? . "A. No, it's not in my notes. I had nothing to do with that part of the investigation. "Q. Okay. So, all you did was stop him, arrest him, and bring him to . Union Station. Correct? "A. No, I . stopped and I waited until the primary officer that was at the scene of the crime-until he came and then he did what he had to do. . "Q. And then . you left. "A. Yes. "Q. Went on with other things. "A. Yup." Although the defendant's argument suggested that he did not recognize Mickey Tillery, both Tillerys testified that the two men had met each other prior to April 29, 2013. Although "[e]vidence of a defendant's postarrest silence is inadmissible under the principles of the law of evidence . a defendant must seasonably object and take exception to an adverse ruling in order to obtain appellate review of his claim of error in this respect." (Internal quotation marks omitted.) State v. Lee-Riveras, supra, 130 Conn.App. at 613 n.7, 23 A.3d 1269. As the state correctly notes, the defendant has not raised an evidentiary claim regarding the state's use of the defendant's postarrest silence. See part II B of this opinion. As we have discussed, the state also called Officer Bryce during its case-in-chief. During his examination, Bryce testified that, while interviewing Gainey that evening, he became interested in locating the defendant in connection with her bruises. Bryce also stated that Gainey never mentioned that she had fallen down the stairs. Pursuant to State v. Whelan, 200 Conn. 743, 753, 513 A.2d 86, cert. denied, 479 U.S. 994, 107 S.Ct. 597, 93 L.Ed.2d 598 (1986), the court admitted only those portions of the taped interview that concerned the cause of Gainey's injuries on the evening of the shooting. Pursuant to General Statutes § 53a-217 (a) : "A person is guilty of criminal possession of a firearm . or . electronic defense weapon when such person possesses a firearm . or . electronic defense weapon and . has been convicted of a felony ." We note that although § 53a-217 has been amended since the events at issue here, those amendments are not relevant to this appeal. We therefore refer to the current revision of § 53a-217. During closing argument, defense counsel argued, "[the prosecutor] may be right. You may feel the same way. You're sick of the gun violence . in New Haven. This case is not a referendum on gun violence. It's not. This case is about Mr. Reddick defending himself against someone who was going to cause him serious physical injury." We are cognizant, however, that these comments occurred after, and in response to, the prosecutor's comments in closing argument. Such facts included, inter alia, the lapse of time between the initial confrontation and the second confrontation between the defendant and Mickey Tillery; Whitely's ability to drive the station wagon around Marjorie Tillery's truck and exit the parking lot; the fact that Mickey Tillery was unarmed; and the fact that Mickey Tillery was backing away from the vehicle with his hands raised when the defendant voluntarily emerged from the station wagon and shot him.

12490388

STATE of Connecticut v. Hiral M. PATEL

State v. Patel

2017-06-27

AC 163346

727

754

166 A.3d 727

166

West's Atlantic Reporter, Third Series

Connecticut Appellate Court

Connecticut

2021-08-27T20:57:14.020814+00:00

Fastcase

STATE of Connecticut v. Hiral M. PATEL

STATE of Connecticut v. Hiral M. PATEL AC 163346 Appellate Court of Connecticut. Argued February 3, 2017 Officially released June 27, 2017 Rachel M. Baird, for the petitioner (American News and Information Services, Inc.). Robert J. Scheinblum, senior assistant state's attorney, Rocky Hill, for the respondent (state). Sheldon, Keller and Prescott, Js.

14948

92515

PRESCOTT, J. In this criminal matter, the petitioner, American News and Information Services, Inc., seeks relief, pursuant to Practice Book § 77-1 and General Statutes § 51-164x (c), from an order of the trial court that, although allowing the petitioner to view certain documents that were marked as exhibits in the underlying murder trial prosecuted by the respondent, the state of Connecticut, against the defendant, Hiram M. Patel, prevented the petitioner from obtaining copies of those exhibits. The petitioner claims that the exhibits at issue are judicial documents to which a presumption of public access attaches, and that the court, in violation of Practice Book § 42-49A, improperly limited the petitioner's access to them without first articulating on the record the overriding interest that the court's order was intended to protect or specifying its findings underlying its order. The respondent contends that we should dismiss the petition for review because, in its view, there was no court order that limited disclosure of or denied the petitioner access to any exhibits or other materials, and the existence of such an order is a factual predicate necessary to invoke our jurisdiction under § 51-164x. See also Practice Book § 77-1. According to the respondent, the court's order merely placed reasonable restrictions on copying exhibits that, at most, limited the dissemination of those exhibits, which the respondent maintains was a permissible restriction authorized pursuant to Practice Book § 1-11C. The respondent further asserts that such an order was final; see Practice Book § 1-11C (j) ; and, thus, cannot be challenged in a petition for review. On the basis of our review of the record, we agree with the petitioner that the court improperly limited the disclosure of judicial documents without adhering to the procedural safeguards required under our rules of practice. Accordingly, we vacate that portion of the court's order preventing the petitioner from obtaining copies of trial exhibits and direct the court to follow the procedures set forth in Practice Book § 42-49A prior to rendering any new order limiting disclosure of exhibits. The following procedural history is relevant to our consideration of the petitioner's claims. On December 28, 2016, the petitioner submitted a request with the Chief Court Administrator to video record the underlying criminal proceedings. That request was forwarded to the trial court, Danaher, J. , which heard arguments on January 4, 2017. Both the defendant and the respondent objected to having the trial proceedings recorded. In response to the petitioner's request, the respondent also filed two motions that asked the court to place restrictions on any audiotaping, videotaping, or photographing of portions of the criminal trial. In the first motion, the respondent, citing Practice Book § 1-11C (e), (g) and (i), asked the court to disallow the recording or photographing of the testimony of the victim's mother, the medical examiner, two additional fact witnesses, and of any testimony discussing the decedent's body or photographs thereof. The respondent argued that there were significant safety and privacy concerns warranting its request. The second motion cited Practice Book § 1-11B (g), and asked the court to disallow any photographing or video recording of an undercover police detective, whom the respondent intended to call as a witness at trial. The respondent argued that because the detective continued to engage in undercover activities, his safety would be seriously compromised by any disclosure of his appearance. The state did not object, however, to any audio recording of the detective's testimony. After hearing from the parties and the petitioner, the court granted the petitioner's request to video record the trial, subject to written orders issued by the court that required the petitioner to follow certain rules throughout the trial proceedings. The court also granted the respondent's two motions and the additional restrictions requested therein. On January 25, 2017, the petitioner requested copies of exhibits entered into the record as full exhibits, but the court clerk's office denied the request. In response, the petitioner filed a motion asking the court for clarification of its January 4, 2017 ruling, "related orders," "and such other directive/order/ruling applicable to [the petitioner]'s access to trial exhibits." The petitioner asserted in its motion that the court had directed the clerk's office to deny the petitioner "copies of full exhibits entered in public view while the jury was present and not subject to any sealing order." (Footnote omitted.) The petitioner further noted that such a prohibition on disclosure was not part of the relief granted to the respondent, nor was an order pertaining to exhibits included in the court's January 4, 2017 written orders. The petitioner indicated that it intended to seek review of the court's directive, and asked the court to clarify whether the prohibition on obtaining copies applied (1) to the public or just the petitioner, and (2) to all exhibits submitted during trial or only a subset of trial exhibits. The court addressed the petitioner's motion during proceedings later in the day on January 25, 2017. The attorney for the petitioner was not present. The court first indicated that, contrary to the petitioner's assertions in the motion to clarify, it had never instructed the clerk's office to deny the petitioner copies of exhibits. The court explained that, because it never issued any order regarding exhibits, the motion to clarify was founded on a faulty premise, and it could not clarify an order it never issued. The court then stated that "[a]ny exhibit that is a full exhibit is available to any member of the public to view. Any member of the public can come here and look at any exhibit. There are some exhibits that are subject to an order that they not be videoed and otherwise disseminated, and that includes, for example, I believe, possibly autopsy photographs, some crime scene photographs, photographs of victims, if there were such. " (Emphasis added.) The court proceeded to indicate that there was no prohibition on the petitioner seeing any exhibit, "[a]nd, in fact, they can have copies of the exhibits, and they can disseminate the full exhibits with the exception of those subject to the order. The problem in effectuating that is that there are some exhibits, like some CDs that might have twenty or thirty photographs in them, some of which are not subject to the sealing order but some of which are, and the parties have, to my understanding-I've conveyed this several days ago to the parties that there is this request. I have no problem with it. I acquiesce in it. The parties have been busy and have not had time to go through all of these exhibits and sort out those that are subject to the sealing order, those that are not ." (Emphasis added.) As set forth more fully in part II A of this opinion, we construe the court's decision as an order establishing that, although the public and the petitioner could examine all of the trial exhibits at the clerk's office, a subset of those exhibits, including crime scene and autopsy photographs, could not be copied. The following day, January 26, 2017, the petitioner filed a second motion for clarification asking the court to explain its January 25, 2017 oral response to the first motion for clarification. After quoting the court's several references to a "sealing" order that instructed that certain exhibits not be "videoed and otherwise disseminated," the petitioner noted that no party had sought to seal any trial exhibits pursuant to Practice Book § 11-20A (c) and (d) (2), and that the court's January 4, 2017 orders only effectuated restrictions on the videotaping of trial proceedings, including limiting the recording of certain witnesses. Because the court's January 25, 2017 ruling nevertheless acknowledged two distinct categories of exhibits-one that included exhibits that could be viewed, copied and disseminated by anyone, and a second that included exhibits that could be viewed at the courthouse but not copied-the petitioner asked the court to produce a list identifying which exhibits were in which category. With respect to the exhibits in the second category, the petitioner indicated that it intended to seek review of the court's ruling in accordance with Practice Book § 77-1. Later that same day, the petitioner asserts, it was provided with a copy of the list of trial exhibits, although nothing on that list indicated which exhibits, if any, were subject to the "sealing" order referenced by the court. To date, the court has not taken any further action on the petitioner's second motion for clarification. On January 27, 2017, the petitioner filed this petition for review in which it challenges the court's January 25, 2017 ruling limiting its right to obtain copies of certain exhibits. The petitioner argues that the trial exhibits are all judicial documents and, thus, are presumptively subject to the public's right of access. It claims that the court improperly restricted that access without following procedures in place to protect the interests of the public and the petitioner. See Practice Book § 42-49A. The respondent filed a response to the petition on January 30, 2017. The respondent asks us to dismiss the petition, arguing that the petitioner has mischaracterized the court's January 25, 2017 response to the motion to clarify either as a sealing order or as an order denying it access to exhibits. The respondent contends that the court never issued an order pursuant to Practice Book § 42-49A that sealed or limited the disclosure of exhibits. Rather, the respondent maintains that the only orders rendered by the court were those issued pursuant to Practice Book § 1-11C, and that the court only limited further dissemination of certain exhibits. According to the respondent, such orders are final and not properly the subject of a petition for review. Alternatively, the respondent asks that, to the extent the record is ambiguous regarding the nature of the court's January 25, 2017 ruling, we should remand the matter to the trial court "for a hearing on [the petitioner]'s claim that it has been denied access to exhibits, so that a factual predicate for such a claim, and any trial court ruling regarding it, may be established." This court heard oral argument on the petition on February 3, 2017. I Before turning to the merits of the petition for review, we must first address whether we have jurisdiction over the petition, an issue that was raised and argued by the parties at oral argument. The respondent takes the position that the petition should be dismissed because the court never issued an order denying the petitioner access to exhibits, but only placed restrictions on their dissemination in accordance with Practice Book § 1-11C. We disagree that the court's order was so limited and conclude that the petition properly invokes our jurisdiction under § 51-164x (c). It is axiomatic that the subject matter jurisdiction of the Appellate Court is governed by statute, and that unless the legislature specifically provides otherwise, our jurisdiction is limited to final judgments of the trial court. Ruggiero v. Fuessenich , 237 Conn. 339, 344-45, 676 A.2d 1367 (1996) ; see also General Statutes § 52-263. An example of such a statutory grant of jurisdiction over an otherwise interlocutory ruling is found in § 51-164x (c), which permits "[a]ny person affected" to obtain expedited review of any court order that "seals or limits the disclosure of any files, affidavits, documents or other material on file with the court or filed in connection with a court proceeding ." General Statutes § 51-164x (c) ; see also Practice Book § 77-1. Appellate courts, in applying certain exceptions to our final judgment rule, have stated that a party wishing to invoke our jurisdiction need not conclusively demonstrate the factual predicate necessary to establish jurisdiction, but must set forth only a colorable claim that such a factual basis exist. Even if an appellant ultimately fails to establish those facts on appeal, this court does not lose jurisdiction; the appeal simply fails on its merits. For example, the denial of a motion to intervene is immediately appealable only if the moving party can make a colorable claim of entitlement to intervene as a matter of right. See Common Condominium Assns., Inc. v. Common Associates , 5 Conn.App. 288, 291, 497 A.2d 780 (1985). If the motion to intervene merely sets forth a colorable claim to intervention as of right, "on appeal the court has jurisdiction to adjudicate both his claim to intervention as a matter of right and to permissive intervention." Id. ; see also State v. Crawford , 257 Conn. 769, 775, 778 A.2d 947 (2001) (denial of motion to dismiss criminal charges immediately appealable if motion raises "colorable claim" of double jeopardy), cert. denied, 534 U.S. 1138, 122 S.Ct. 1086, 151 L.Ed. 2d 985 (2002) ; Shay v. Rossi , 253 Conn. 134, 167, 749 A.2d 1147 (2000) (denial of motion to dismiss raising colorable claim of sovereign immunity immediately appealable), overruled in part on other grounds by Miller v. Egan , 265 Conn. 301, 325, 828 A.2d 549 (2003). Thus, in order to invoke our jurisdiction under § 51-164x, the factual allegations of the petition need not conclusively establish the existence of a Practice Book § 42-49A order, they must only allege sufficient facts necessary to establish a colorable claim that the court has rendered an order that "seals or limits the disclosure" of some material filed with the court. General Statutes § 51-164x (c). The petitioner does not suggest that the court issued a sealing order, but rather relies on the "limits the disclosure" language of the statute. General Statutes § 51-164x (c). To establish a colorable claim, a party must demonstrate only that there is a possibility, rather than a certainty, that the court's order falls within the confines of the statutory provision. See State v. Tate , 256 Conn. 262, 276-77, 773 A.2d 308 (2001). If the petition satisfies this threshold inquiry, we have jurisdiction to consider both whether the court's order in fact limited the disclosure of materials as contemplated by § 51-164x and, if so, whether the court abused its discretion in so ordering. Here, resolution of the jurisdictional dispute turns largely upon whether we construe the court's ruling of January 25, 2017, as a sua sponte order under Practice Book § 42-49A that limited the disclosure of certain trial exhibits-an order from which a petition for review certainly would lie-or whether the court was merely exercising its authority under Practice Book § 1-11C, which, under the provisions of the rule, would constitute a final, and arguably unreviewable, order on the merits. See Practice Book § 1-11C (j) ("[t]he judicial authority shall articulate the reasons for its decision on whether or not to limit or preclude electronic coverage of a criminal proceeding or trial, and such decision shall be final " [emphasis added] ); State v. Rupar , 293 Conn. 489, 496, 978 A.2d 502 (2009) (interpreting identical language in General Statutes § 51-196 [d] that decision of sentence review division "shall be final" as meaning no form of appellate review is available with respect to merits of decision). We do not agree with the respondent that the court's ruling is best characterized as a component of or an addition to its existing order under Practice Book § 1-11C, and conclude that the petitioner has met its burden of establishing a colorable claim that the court's order limited the disclosure of materials presumptively available to the public and, thus, was subject to the procedural requirements of Practice Book § 42-49A. Practice Book § 1-11C is located in the general provisions section of our rules of practice, among other rules pertaining to the possession of electronic devices in court facilities and media coverage of court proceedings in general. Provisions applicable to all media coverage in the Superior Court are found in Practice Book § 1-10B. Practice Book § 1-11C contains specific provisions governing media coverage of a criminal proceeding. A "criminal proceeding" is defined in the rule as "any hearing or testimony, or any portion thereof, in open court and on the record ," except arraignments, which are governed by separate rules set forth in Practice Book § 1-11A. Subsection (a) of § 1-11C provides in relevant part that "the broadcasting, televising, recording or photographing by media of criminal proceedings and trials in the [S]uperior [C]ourt shall be allowed except as hereinafter precluded or limited ." (Emphasis added.) Thus, by their express terms, the remaining provisions in § 1-11C establish the parameters of the court's authority to permit or limit media coverage of proceedings that occur in the courtroom. Nothing in the provisions of Practice Book § 1-11C addresses a court's authority, outside the confines of the broadcasting, televising, recording, or photographing of courtroom proceedings, to limit access to, or the disclosure of, materials filed or lodged with the court (or the procedures for doing so), including limiting access to materials in the custody of the clerk's office, which, by default, are generally available to the public. Practice Book § 42-49A (a). A contrary conclusion would allow a court to seal or limit the disclosure of judicial documents that otherwise would be prohibited by Practice Book § 42-49A merely by the happen-stance that there was media coverage of the trial and the documents were marked as exhibits. The absence of any provision in Practice Book § 1-11C regarding access to trial exhibits is important to note because, as we have previously indicated, our rules provide that orders that merely limit media coverage of trial proceedings "shall be final" and, thus, arguably unreviewable. Practice Book § 1-11C (j). Accordingly, it is important to avoid mislabeling an order intended to limit disclosure of materials to the public as merely a limitation on media coverage because to do so would thwart review that the legislature expressly has sanctioned in § 51-164x. The only reference in Practice Book § 1-11C to exhibits is found in subsection (h), which was not raised by the respondent in its written opposition to the petition, but was raised at oral argument by the court. Subsection (h) provides: "Objection raised during the course of a criminal proceeding or trial to the photographing, videotaping or audio recording of specific aspects of the proceeding or trial, or specific individuals or exhibits will be heard and decided by the judicial authority, based on the same standards as set out in subsection (f) of this section used to determine whether to limit or preclude coverage based on objections raised before the start of a criminal proceeding or trial." (Emphasis added.) Practice Book § 1-11C (h). Subsection (f) in turn provides: "The judicial authority, in deciding whether to limit or preclude electronic coverage of a criminal proceeding or trial , shall consider all rights at issue and shall limit or preclude such coverage only if there exists a compelling reason to do so, there are no reasonable alternatives to such limitation or preclusion, and such limitation or preclusion is no broader than necessary to protect the compelling interest at issue." (Emphasis added.) Practice Book § 1-11C (f). Placed in context of the overall subject matter of the rule, the reference to exhibits in subsection (h) are clearly and unambiguously directed at instances in which an objection arises during a criminal proceeding regarding the media's photographing or videotaping, or the audio recording of exhibits utilized by the parties during the criminal proceeding. This rule has no bearing on and provides no authority for the court to limit access to exhibits except during criminal proceedings, as that term is narrowly defined in the provision. Rules governing limitations on disclosure are explicitly contained in Practice Book § 42-49A, which imposes certain procedural safeguards and an opportunity for review in accordance with § 51-164x and the procedures contained in Practice Book § 77-1. It is undisputed that the petitioner was granted the privilege to video record the criminal trial. It is also undisputed that the respondent, prior to trial, filed motions pursuant to Practice Book § 1-11C, and that the court granted those motions and issued additional restrictions on media coverage in its ruling of January 4, 2017. Nothing in the respondent's motions regarding media coverage or the court's subsequent orders, however, addressed trial exhibits, and, in particular, whether the petitioner was prevented from obtaining copies of the exhibits. The only materials referenced in the motion as likely to be exhibits were autopsy photographs of the victim, and the motion asked only that the court disallow any broadcasting of testimony discussing the autopsy, the victim's body or photographs thereof. The parties have not asserted nor does the record disclose that the court entered any additional, related order directed at any exhibits on file with the court, including autopsy or crime scene photographs. The petition for review does not seek to challenge any of the court's orders related to media coverage in the courtroom. Rather, the petition expressly challenges only the court's January 25, 2017 response to the first motion to clarify, in which the court expressed that certain exhibits were the subject of a "sealing" order and, although they could be viewed at the clerk's office, copies could not be made. Given (1) that § 51-164x permits expedited review of any order that "seals or limits the disclosure of any . material on file with the court," (2) that § 51-164x does not define what it means to limit disclosure, and no court has construed that term, (3) that the allegations in the petition, supported by copies of transcripts, indicate that, on January 25, 2017, the court limited the petitioner's ability to obtain copies of exhibits on file with the court, and (4) that the court made several references to a prior "sealing" order, we are convinced that the petitioner has raised a colorable claim sufficient to establish our jurisdiction over the petition. That the petition properly invokes our jurisdiction is further demonstrated in our substantive discussion of the petition, which follows. II The petitioner maintains that the court's January 25, 2017 ruling, which effectively disallowed the petitioner from obtaining copies of all trial exhibits, was improper because the court's order limited the disclosure of materials on file with the court without adherence to any of the procedures set forth in Practice Book § 42-49A. For the reasons that follow, we agree. We note as a starting point of our review that the exact nature of the court's January 25, 2017 ruling is somewhat difficult to categorize. It was not rendered in response to a motion expressly invoking Practice Book § 42-49A, but rather as part of the court's oral ruling on a motion to clarify an order allegedly directing the clerk's office not to allow copies to be made of trial exhibits. The court, however, disavowed having rendered any such order. The court nevertheless sanctioned, and effectively adopted, the actions of the clerk's office by perpetuating a prohibition on copying certain exhibits, and maintaining that the prohibition was consistent with a prior "sealing" order for which there is no record. In any event, in construing a court's decision, we are concerned with the substance and effect of that decision, rather than with any label attached to the order by the parties or the court. State v. Denya , 294 Conn. 516, 529, 986 A.2d 260 (2010) ("As a general rule, [orders and] judgments are to be construed in the same fashion as other written instruments. . The determinative factor is the intention of the court as gathered from all parts of the [order or] judgment. . The interpretation of [an order or] judgment may involve the circumstances surrounding [its] making . Effect must be given to that which is clearly implied as well as to that which is expressed." [Internal quotation marks omitted.] ). The gravamen of the court's January 25, 2017 ruling was that the petitioner was entitled to view, but not make copies of, certain unspecified trial exhibits in the custody of the court. We therefore must determine (1) whether the prohibition on making copies "limited the disclosure" of those exhibits and, if so, (2) whether the court followed all required procedural safeguards. A Section 51-164x (c) permits expedited review of a court order that either "seals or limits the disclosure" of materials filed with the court. The statute's use of the conjunctive signifies that an order limiting disclosure of materials is something distinct from a sealing order. As we have already indicated, however, there is nothing in our statutes, rules of practice or case law that defines what it means to "limit the disclosure" of materials. We nevertheless conclude, for the reasons that follow, that an order that prevents the media or the public from obtaining copies of documentary or photographic trial exhibits, unless otherwise prohibited from disclosure by an existing order or otherwise applicable law, constitutes a limit on disclosure as contemplated by Practice Book § 42-49A and § 51-164x (c). "Words in a statute must be given their plain and ordinary meaning . unless the context indicates that a different meaning was intended. . Where a statute does not define a term it is appropriate to look to the common understanding expressed in the law and in dictionaries." (Citation omitted; internal quotation marks omitted.) State v. Vickers , 260 Conn. 219, 224, 796 A.2d 502 (2002). To "limit" means "to curtail or reduce in quantity or extent." Merriam-Webster's Collegiate Dictionary (10th Ed. 2003). To disclose means to "expose to view" or to "make known or public." Id. Thus, to limit the disclosure of materials means to curtail making those materials known to the public or infringing on the public's access to the materials. This construction comports with our Supreme Court's understanding that the procedural safeguards set forth in Practice Book § 42-49A are intended to codify and protect the public's and the media's common-law right to access to the court, which includes access to documents filed with the court in criminal cases. See State v. Komisarjevsky , 302 Conn. 162, 174-75, 25 A.3d 613 (2011) ; see also Practice Book (2003) § 42-49A, commentary. Thus, it follows that a limit on disclosure must be construed as synonymous with, or at least strongly correlative to, a limit on the right to access. "[N]ot all documents in the court's possession are presumptively open. The presumption of public access applies only to judicial documents and records. . Such documents provide a surrogate to assist the public in monitoring the judicial process when it cannot be present. . Therefore, when determining whether a document should be open to the public, the threshold question under the common law is whether the document constitutes a judicial document. . A judicial document is any document filed that a court reasonably may rely on in support of its adjudicatory function ." (Citation omitted; internal quotation marks omitted.) Id., at 176, 25 A.3d 613. Because trial exhibits submitted to the court in the course of a criminal action are offered in support of or in opposition to issues relating to substantive rights of the parties, including any determination as to the guilt of the defendant, trial exhibits are unquestionably part of the adjudicative process and, thus, are judicial documents subject to a strong presumption of public access. Courts in other jurisdictions have acknowledged that the public's common-law right to access to judicial documents includes not only a right of physical inspection and viewing, but also a right to obtain copies. The United States Supreme Court, in discussing the scope of the common-law right of access to judicial documents, stated that "[i]t is clear that the courts of this country recognize a general right to inspect and copy public records and documents, including judicial records and documents." (Emphasis added; footnote omitted.) Nixon v. Warner Communications, Inc. , 435 U.S. 589, 597, 98 S.Ct. 1306, 55 L.Ed. 2d 570 (1978) ; accord In re Application of National Broadcasting Co. , 635 F.2d 945, 952 (2d Cir. 1980) ("there is a presumption in favor of public inspection and copying of any item entered into evidence at a public session of a trial" and only "the most extraordinary circumstances [would] justify restrictions on the opportunity of those not physically in attendance at the courtroom to see and hear the evidence, when it is in a form that readily permits sight and sound reproduction" [emphasis added] ); United States v. Beckham , 789 F.2d 401, 414 (6th Cir. 1986) (agreeing with United States Court of Appeals for Second Circuit that common-law right to access extends to obtaining copies of trial exhibits); see also 76 C.J.S. Records § 84 (2007), and cases cited therein; State ex rel. KOIN-TV, Inc. v. Olsen , 300 Or. 392, 405-406, 711 P.2d 966 (1985) (assuming common-law right in Oregon of nonparties to copy exhibits received in a civil trial and discussing history behind common law). The respondent has provided no legal argument or authority that would lead us to conclude that the right of access under Connecticut law is, or should be, more limited in scope. We are persuaded that any order preventing the public or the media from obtaining copies of exhibits, with the exception of reasonable restrictions as to time, place and procedures, constitutes a limitation on the common-law right to access and a limitation on disclosure. The petitioner had a presumptive right not only to inspect all trial exhibits in the custody of the clerk's office but to obtain copies of those exhibits. The court's January 25, 2017 ruling clearly denied the petitioner the right to obtain copies of trial exhibits and therefore limited the disclosure of those exhibits. Certainly, the public's right of access is not absolute. "Every court has supervisory power over its own records and files, and access has been denied where court files might have become a vehicle for improper purposes." Nixon v. Warner Communications, Inc. , supra, 435 U.S. at 598, 98 S.Ct. 1306. In Connecticut, a court has the authority to exercise its discretion, either pursuant to a party's motion or sua sponte, to limit access to judicial documents filed in a criminal matter, including the right to obtain copies of exhibits, provided that it follows the procedures set forth in Practice Book § 42-49A. We thus turn to whether the trial court did so in the present case. B Practice Book § 42-49A provides in relevant part that "(c) . the judicial authority may order that files, affidavits, documents, or other materials on file or lodged with the court or in connection with a court proceeding be sealed or their disclosure limited only if the judicial authority concludes that such order is necessary to preserve an interest which is determined to override the public's interest in viewing such materials. The judicial authority shall first consider reasonable alternatives to any such order and any such order shall be no broader than necessary to protect such overriding interest. . "(d) In connection with any order issued pursuant to subsection (c) of this section, the judicial authority shall articulate the overriding interest being protected and shall specify its findings underlying such order and the duration of such order. . The time, date, scope and duration of any such order shall be set forth in a writing signed by the judicial authority which upon issuance the court clerk shall immediately enter in the court file and publish by posting on a bulletin board adjacent to the clerk's office and accessible to the public. The judicial authority shall order that a transcript of its decision be included in the file or prepare a memorandum setting forth the reasons for its order. "(e) Except as otherwise ordered by the judicial authority, a motion to seal or limit the disclosure of affidavits, documents, or other materials on file or lodged with the court or in connection with a court proceeding shall be calendared so that notice to the public is given of the time and place of the hearing on the motion and to afford the public an opportunity to be heard on the motion under consideration. The notice of the time, date and place of the hearing on the motion shall be posted on a bulletin board adjacent to the clerk's office and accessible to the public. ." In the present case, the court issued its order preventing the petitioner, as well as members of the public, from obtaining copies of certain exhibits in the absence of the petitioner's attorney and without prior notice to the public. See Practice Book § 42-49A (e). Accordingly, neither the petitioner nor interested members of the public were afforded an opportunity to be heard. The court did not articulate what overriding interest it sought to protect by limiting the petitioner's access to copies of exhibits and made no specific findings underlying its order, including listing which exhibits were subject to the order. Because the court clearly failed to follow the procedures set forth in Practice Book § 42-49A, the petitioner is entitled to relief. See Vargas v. Doe , 96 Conn.App. 399, 412-14, 900 A.2d 525 (vacating order rendered pursuant to Practice Book § 11-20A, the civil counterpart of Practice Book § 42-49A, because court did not follow mandatory procedural requirements), cert. denied, 280 Conn. 923, 908 A.2d 546 (2006). The petition for review is granted and that portion of the court's January 25, 2017 ruling on the petitioner's motion to clarify indicating that the petitioner is not entitled to obtain copies of trial exhibits is vacated. Any subsequent order limiting the disclosure of materials on file with the court must comply with the requirements of Practice Book § 42-49A. In this opinion KELLER, J., concurred. General Statutes § 51-164x provides in relevant part: "(c) Any person affected by a court order that seals or limits the disclosure of any files, affidavits, documents or other material on file with the court or filed in connection with a court proceeding, except (1) any order issued pursuant to section 46b-11 or 54-33c or any other provision of the general statutes under which the court is authorized to seal or limit the disclosure of files, affidavits, documents or materials, whether at a pretrial or trial stage, and (2) any order issued pursuant to a court rule that seals or limits the disclosure of any affidavit in support of an arrest warrant, shall have the right to the review of such order by the filing of a petition for review with the Appellate Court within seventy-two hours from the issuance of such court order. "(d) The Appellate Court shall provide an expedited hearing on such petitions filed pursuant to subsections (a) and (c) of this section in accordance with such rules as the judges of the Appellate Court may adopt, consistent with the rights of the petitioner and the parties to the case." Practice Book § 77-1 contains rules and procedures necessary to effectuate the expedited review authorized under § 51-164x. See also Practice Book § 42-49A (g). As set forth in the respondent's opposition to the petition for review, the defendant allegedly participated in a scheme to steal proceeds of illicit drug sales, in which he and a coconspirator entered the home of the victim drug dealer, bound the victim's mother and shot the victim, killing him. In addition to murder, the defendant was charged with felony murder, home invasion, accessory to first degree burglary, accessory to first degree robbery, conspiracy to commit first degree robbery, conspiracy to commit first degree burglary, and evidence tampering. On February 1, 2017, the jury returned a verdict of guilty on all counts, after which the trial court rendered judgment and sentenced the defendant, whose subsequent appeal to our Supreme Court is pending. See State v. Patel, appeal docketed, SC 19920 (May 16, 2017). Practice Book § 42-49A, titled "Sealing or Limiting Disclosure of Documents in Criminal Cases," provides in relevant part: "(a) Except as otherwise provided by law, there shall be a presumption that documents filed with the court shall be available to the public. "(b) Except as provided in this section and except as otherwise provided by law, including [Practice Book §] 36-2, 40-29 and 40-40 through 40-43 and General Statutes § 54-33c, the judicial authority shall not order that any files, affidavits, documents, or other materials on file with the court or filed in connection with a court proceeding be sealed or their disclosure limited. "(c) Upon written motion of the prosecuting authority or of the defendant, or upon its own motion, the judicial authority may order that files, affidavits, documents, or other materials on file or lodged with the court or in connection with a court proceeding be sealed or their disclosure limited only if the judicial authority concludes that such order is necessary to preserve an interest which is determined to override the public's interest in viewing such materials. The judicial authority shall first consider reasonable alternatives to any such order and any such order shall be no broader than necessary to protect such overriding interest. An agreement of the parties to seal or limit the disclosure of documents on file with the court or filed in connection with a court proceeding shall not constitute a sufficient basis for the issuance of such an order. "(d) In connection with any order issued pursuant to subsection (c) of this section, the judicial authority shall articulate the overriding interest being protected and shall specify its findings underlying such order and the duration of such order. If any finding would reveal information entitled to remain confidential, those findings may be set forth in a sealed portion of the record. The time, date, scope and duration of any such order shall be set forth in a writing signed by the judicial authority which upon issuance the court clerk shall immediately enter in the court file and publish by posting on a bulletin board adjacent to the clerk's office and accessible to the public. The judicial authority shall order that a transcript of its decision be included in the file or prepare a memorandum setting forth the reasons for its order. "(e) Except as otherwise ordered by the judicial authority, a motion to seal or limit the disclosure of affidavits, documents, or other materials on file or lodged with the court or in connection with a court proceeding shall be calendared so that notice to the public is given of the time and place of the hearing on the motion and to afford the public an opportunity to be heard on the motion under consideration. The notice of the time, date and place of the hearing on the motion shall be posted on a bulletin board adjacent to the clerk's office and accessible to the public. The procedures set forth in Sections 7-4B and 7-4C shall be followed in connection with a motion to file affidavits, documents or other materials under seal or to limit their disclosure...." Practice Book § 1-11C, titled "Media Coverage of Criminal Proceedings," provides in relevant part: "(a) Except as authorized by Section 1-11A regarding media coverage of arraignments, the broadcasting, televising, recording or photographing by media of criminal proceedings and trials in the superior court shall be allowed except as hereinafter precluded or limited and subject to the limitations set forth in Section 1-10B.... "(c) As used in this rule, the word 'trial' in jury cases shall mean proceedings taking place after the jury has been sworn and in nonjury proceedings commencing with the swearing in of the first witness. 'Criminal proceeding' shall mean any hearing or testimony, or any portion thereof, in open court and on the record except an arraignment subject to Section 1-11A.... "(e) Any party, attorney, witness or other interested person may object in advance of electronic coverage of a criminal proceeding or trial if there exists a substantial reason to believe that such coverage will undermine the legal rights of a party or will significantly compromise the safety of a witness or other person or impact significant privacy concerns. In the event that the media request camera coverage and, to the extent practicable, notice that an objection to the electronic coverage has been filed, the date, time and location of the hearing on such objection shall be posted on the Judicial Branch website. Any person, including the media, whose rights are at issue in considering whether to allow electronic coverage of the proceeding or trial, may participate in the hearing to determine whether to limit or preclude such coverage. When such objection is filed by any party, attorney, witness or other interested person, the burden of proving that electronic coverage of the criminal proceeding or trial should be limited or precluded shall be on the person who filed the objection. "(f) The judicial authority, in deciding whether to limit or preclude electronic coverage of a criminal proceeding or trial, shall consider all rights at issue and shall limit or preclude such coverage only if there exists a compelling reason to do so, there are no reasonable alternatives to such limitation or preclusion, and such limitation or preclusion is no broader than necessary to protect the compelling interest at issue. "(g) If the judicial authority has a substantial reason to believe that the electronic coverage of a criminal proceeding or trial will undermine the legal rights of a party or will significantly compromise the safety or privacy concerns of a party, witness or other interested person, and no party, attorney, witness or other interested person has objected to such coverage, the judicial authority shall schedule a hearing to consider limiting or precluding such coverage. To the extent practicable, notice that the judicial authority is considering limiting or precluding electronic coverage of a criminal proceeding or trial, and the date, time and location of the hearing thereon shall be given to the parties and others whose interests may be directly affected by a decision so that they may participate in the hearing and shall be posted on the Judicial Branch website. "(h) Objection raised during the course of a criminal proceeding or trial to the photographing, videotaping or audio recording of specific aspects of the proceeding or trial, or specific individuals or exhibits will be heard and decided by the judicial authority, based on the same standards as set out in subsection (f) of this section used to determine whether to limit or preclude coverage based on objections raised before the start of a criminal proceeding or trial. "(i) The judge presiding over the proceeding or trial in his or her discretion, upon the judge's own motion or at the request of a participant, may prohibit the broadcasting, televising, recording or photographing of any participant at the trial. The judge shall give great weight to requests where the protection of the identity of a person is desirable in the interests of justice, such as for the victims of crime, police informants, undercover agents, relocated witnesses, juveniles and individuals in comparable situations. 'Participant' for the purpose of this section shall mean any party, lawyer or witness. "(j) The judicial authority shall articulate the reasons for its decision on whether or not to limit or preclude electronic coverage of a criminal proceeding or trial, and such decision shall be final. ." The respondent appears inadvertently to have referred to the rule governing media coverage of civil proceedings rather than the corresponding, and nearly identical, provision applicable to criminal proceedings, which is found in Practice Book § 1-11C (i). Specifically, the court instructed that (1) no recording would take place until after the jury was sworn, (2) the parties, during the course of the trial, should inform the court if they believed any recording would compromise the safety of a witness or undermine a legal right, at which time the court would determine whether to suspend recording, (3) the parties should inform the court at the earliest opportunity if a witness was a victim of crime, a police informant, an undercover agent, a relocated witness, a juvenile, or in any comparable situation, at which point the court would determine whether to suspend recording, (4) recording would be limited to the courtroom, utilizing one camera and one microphone operated by an employee of the petitioner who had read and understood the court's order, (5) the recording equipment would be located in a designated spot, and would be unobtrusive, operated manually and could not remain in the courtroom in the absence of an operator, (6) no equipment producing distracting sound or light, including an artificial light source, would be permitted, (7) recording would be shut off during recesses, sidebar conferences and whenever the jury was excused, and (8) no broadcasting, televising, recording or photographing of jurors would be permitted. It is entirely unclear from the record to what order the court was referring when it recalled a "sealing order." Except for the order now on review, neither party has directed us to any order in which the court expressly limited the dissemination of or sealed any trial exhibits. The petitioner appears to have mistakenly referred to Practice Book § 11-20A, which governs the sealing of files and limiting the disclosure of documents in civil cases. The equivalent rules pertaining to criminal cases are found in Practice Book § 42-49A. See footnote 3 of this opinion. By way of relief, the petition requested expedited review "and such other relief as this court deems appropriate." On February 14, 2017, the petitioner filed a motion asking this court to take judicial notice of media coverage by Connecticut Network (CT-N) of the December, 2008 murder trial in State v. Cipriani, Superior Court, judicial district of Hartford, CR-07-0144338. Specifically, the petitioner referenced the video recording of graphic testimony and exhibits, including photographs of the crime scene and autopsy, which allegedly remains available to the public on CT-N's website. The petitioner argued that the media coverage in Cipriani supports its position that crime scene and autopsy testimony and photographs are important elements in the coverage of a murder trial, and that coverage of murder trials is in the public interest. Because this evidence goes to the merits of the court's ruling, and we grant this petition for review on procedural grounds, it is unnecessary for us to take judicial notice of the requested materials. Accordingly, we deny the petitioner's motion to take judicial notice. The notion that a party need only raise a colorable claim to successfully invoke our jurisdiction is logically consistent with our Supreme Court's opinion in In re Jose B., 303 Conn. 569, 34 A.3d 975 (2012), in which that court attempted to resolve an inconsistency in the way courts handled a party's failure to plead or prove an essential fact necessary to obtain relief in a statutory cause of action; more particularly, whether that failure implicated the court's subject matter jurisdiction or merely went to the legal sufficiency of the pleadings. The court held that "the failure to allege an essential fact under a particular statute goes to the legal sufficiency of the complaint, not to the subject matter jurisdiction of the trial court.... This conclusion is consistent with the rule that every presumption is to be indulged in favor of jurisdiction . is consistent with the judicial policy preference to bring about a trial on the merits of a dispute whenever possible and to secure for the litigant his day in court . by allowing the litigant, if possible, to amend the complaint to correct the defect . and avoids the bizarre result that the failure to prove an essential fact at trial deprives the court of subject matter jurisdiction. . Moreover . the purported distinction between a tribunal's action [that] exceeds its statutory authority, which we have treated as implicating the tribunal's jurisdiction, and a tribunal's action [that] misconstrues its statutory authority, which we have treated as involving the proper construction of the statute . has proven illusory in practice." (Citations omitted; internal quotation marks omitted.) Id., at 579-80, 34 A.3d 975. It is not surprising that a ruling regarding media coverage of a criminal trial is not subject to further judicial scrutiny given that, prior to the amendment of Practice Book § 1-11C in 2012, the video recording or broadcasting of such trials was presumptively prohibited unless otherwise permitted at the discretion of the trial court. Rules governing media coverage of civil matters are found in Practice Book § 1-11B. We do not share the dissent's concern that by not construing Practice Book § 1-11C to implicitly permit a court to enter an unreviewable, no-copying order that, without prior notice, limits the public's right of access to judicial records, we risk sanctioning an unconstitutional prior restraint. First, that constitutional doctrine has not been raised or briefed by the parties in conjunction with this petition. Under these circumstances, it seems particularly unwise and unnecessary to wander into that briar patch. Second, even if we were to consider the issue on its merits, we do not share the dissent's concern. The dissent suggests that the court's no-copying order must be viewed as a necessary extension of the court's earlier Practice Book § 1-11C ruling because, in the absence of a no-copying order, its initial order permitting-with reasonable limitations-the videotaping of the trial would become an impermissible prior restraint. In other words, the dissent argues that, in order to justify a court's reasonable and narrow limitations on the scope of media coverage during a criminal trial, a court must concomitantly order additional and broader governmental restrictions on the public's rights to access court documents. Such an assertion turns on its head the policy underpinning the prior restraint doctrine because it will result in less speech, not more. Because the media has no common-law or constitutional right to broadcast, photograph, or videotape this trial, the petitioner's right to do so here is a privilege extended by the court in order to foster the public's greater knowledge of our court system. In extending this privilege, and imposing reasonable limitations on it, the court does not simultaneously place its order in constitutional jeopardy by declining or failing to issue an order that prevents public access to judicial records that members of the public otherwise would presumptively have the right to copy but for the fact that a media organization was granted the privilege to videotape the trial. Finally, it is important to recognize that the prior restraint doctrine is implicated when the government seeks to prevent the publication of information or materials that are already in the public domain. See In re Brianna B., 66 Conn.App. 695, 701, 785 A.2d 1189 (2001). In the present case, the media and public were not in possession of the trial exhibits at issue when the court granted the petitioner permission, pursuant to Practice Book § 1-11C, to videotape, with reasonable limitations, this criminal trial. Accordingly, limitations on disclosure could not amount to a prior restraint. The one case cited by the dissent in support of its position, Oklahoma Publishing Co. v. District Court, 430 U.S. 308, 97 S.Ct. 1045, 51 L.Ed.2d 355 (1977), is readily distinguishable from the present case because the plaintiff newspaper in that case was already in possession of the juvenile's name and photograph when the District Court issued its order prohibiting their publication. Id., at 309, 97 S.Ct. 1045. We do not mean to suggest that the court is necessarily prevented from simultaneously issuing a no-copying order, pursuant to Practice Book § 42-49A, after it complies with the procedures set forth in that provision, including notice to the public. A decision not to issue such an order, however, does not place its order pursuant to Practice Book § 1-11C in any constitutional jeopardy. We note that § 51-164x (c) is not the source of a trial court's authority to seal or limit the disclosure of files, affidavits, documents or other materials, but only a statute authorizing appellate review of such orders. The trial court's authority to seal or limit disclosure is inherent although limited by constitutional principles, common law, statutes and our rules of practice. See Practice Book § 42-49A and commentary. Our Supreme Court has explained that "[p]ublic access to court documents traces its roots back centuries through the common law, stemming from the practice of open trials.... In the days before the Norman Conquest, public participation at criminal trials was an inherent part of the court system, as the freemen of the community, who represented the patria, or the country, and were required to attend, were responsible for rendering judgment at trial.... Over the centuries, trials remained open, and those not in attendance could be assured that community standards of justice and procedural norms would be enforced by those present.... This tradition of open trials made its way to colonial America and evolved into a presumption of public access to court proceedings and records that remains a fundamental part of our judicial system today.... The rationale underlying the presumption is straightforward: Public monitoring of the judicial process through open court proceedings and records enhances confidence in the judicial system by ensuring that justice is administered equitably and in accordance with established procedures.... [T]he bright light cast upon the judicial process by public observation diminishes the possibilities for injustice, incompetence, perjury and fraud. Furthermore, the very openness of the process should provide the public with a more complete understanding of the judicial system and a better perception of its fairness." (Citations omitted; internal quotation marks omitted.) Rosado v. Bridgeport Roman Catholic Diocesan Corp., 292 Conn. 1, 34-35, 970 A.2d 656, cert. denied sub nom. Bridgeport Roman Catholic Diocesan Corp. v. New York Times Co., 558 U.S. 991, 130 S.Ct. 500, 175 L.Ed.2d 348 (2009). As aptly noted in part I of the dissenting opinion, the notion that the right of disclosure should be construed to include the right to obtain copies finds additional support in how the term "disclosure" is used in other provisions of our rules of practice. See Practice Book § 40-7, 40-11 and 40-26. To the extent that our conclusion is viewed as surprising to trial courts or raises concerns about its effect on efficiency and workload, such issues are best addressed either by changes to our rules of practice or by the legislature. This majority opinion should not be read as suggesting that courts lack the authority to restrict access to graphic crime scene or autopsy photographs on the basis of a compelling interest but, only that, in doing so, the court must follow procedural safeguards in place to protect the right of the public and the media to access such materials. Because we grant the petition on procedural grounds, we express no opinion on whether the court's decision to limit the disclosure of autopsy and crime scene photographs as well as other exhibits was justifiable under the particular facts and circumstances of this case.

12490387

DEUTSCHE BANK AG v. SEBASTIAN HOLDINGS, INC., et al.

Deutsche Bank AG v. Sebastian Holdings, Inc.

2017-07-18

AC 38515, (AC 38516)

716

727

166 A.3d 716

166

West's Atlantic Reporter, Third Series

Connecticut Appellate Court

Connecticut

2021-08-27T20:57:14.020814+00:00

Fastcase

DEUTSCHE BANK AG v. SEBASTIAN HOLDINGS, INC., et al.

DEUTSCHE BANK AG v. SEBASTIAN HOLDINGS, INC., et al. AC 38515, (AC 38516) Appellate Court of Connecticut. Argued February 2, 2017 Officially released July 18, 2017 Richard M. Zaroff, with whom were Thomas P. O'Connor, Wyatt R. Jansen, and, on the brief, Charles W. Pieterse, Greenwich, and Ira S. Zaroff, for the appellants in AC 38515 and appellees in AC 38516 (defendants). David G. Januszewski, with whom were Thomas D. Goldberg, Stamford, and, on the brief, Bryan J. Orticelli, Hartford, Sheila C. Ramesh, and Erin R. McAlister, for the appellee in AC 38515 and appellant in AC 38516 (plaintiff). Alvord, Bentivegna and Pellegrino, Js.

5165

32138

PELLEGRINO, J. These appeals arise from an action to recover an approximately $243 million judgment (English judgment) rendered by the Queen's Bench Division of the High Court of Justice of England and Wales (English court) in an action captioned Deutsche Bank AG v. Sebastian Holdings, Inc. (English action) in which the trial court rendered judgment in favor of the plaintiff, Deutsche Bank AG, against the corporate defendant, Sebastian Holdings, Inc. (Sebastian). In the present action, the plaintiff sought to pierce Sebastian's corporate veil and to enforce the English judgment against the individual defendant, Alexander Vik. The defendants and the plaintiff moved for summary judgment based on the doctrines of res judicata and collateral estoppel, respectively. On appeal, the parties claim that the trial court improperly denied their respective motions for summary judgment. We affirm the judgment of the trial court. The trial court found the following facts. On January 1, 2009, the plaintiff commenced the English action against Sebastian, a corporation organized under the laws of the Turks and Caicos Islands, seeking damages for moneys that it was allegedly owed in connection with various trading losses incurred by Sebastian through accounts that it had opened and operated through the plaintiff. Sebastian incurred various debts owed to the plaintiff through unpaid margin calls and closeouts of its accounts with the plaintiff. Following a forty-five day trial, the English court rendered judgment in favor of the plaintiff in the amount of $243,023,089 plus interest. Subsequent to the English judgment, the plaintiff filed a nonparty costs application with the English court, seeking to hold Vik, the sole shareholder and director of Sebastian, personally liable for portions of the plaintiff's court costs. On June 24, 2014, the English court issued its decision (English costs judgment) in which it concluded that Vik was personally liable for the costs incurred by the plaintiff due to his extensive involvement with the English action. It therefore granted the costs application. On December 13, 2013, the plaintiff commenced the present action to enforce the English judgment against Vik following Sebastian's failure to make payments on the English judgment. Specifically, the plaintiff sought (1) a declaratory judgment seeking to pierce Sebastian's corporate veil and to hold Vik personally liable for the amounts due under the English judgment, and (2) to enforce the English judgment against Vik under the Uniform Foreign Money Judgments Recognition Act, as adopted in Connecticut. Following a period of discovery, on August 21, 2015, the defendants and the plaintiff both moved for summary judgment. In their motion, the defendants argued that res judicata barred the present action because the plaintiff's claim seeking to pierce the corporate veil should have been raised in the English action. The plaintiff, by contrast, argued in its motion that all questions of material fact with respect to its veil piercing claim previously had been decided by the English court and that Vik was collaterally estopped from denying that he is the "alter ego" of Sebastian and personally liable for the English judgment. On October 22, 2015, by way of written memorandum of decision, the trial court denied both parties' motions for summary judgment. With respect to the defendants' motion for summary judgment, the court concluded that the plaintiff's veil piercing claim was not barred by the doctrine of res judicata because that claim was sufficiently different in nature from the breach of contract claims in the English action. With respect to the plaintiff's motion for summary judgment, the court concluded that Vik was not collaterally estopped from denying liability for Sebastian's debt because the issue was not actually or necessarily decided in the English action. From the court's judgment, the parties now appeal. We begin by setting forth our standard of review. " Practice Book § 17-49 provides that summary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party. . The party moving for summary judgment has the burden of showing the absence of any genuine issue of material fact and that the party is, therefore, entitled to judgment as a matter of law. . On appeal, we must determine whether the legal conclusions reached by the trial court are legally and logically correct and whether they find support in the facts set out in the memorandum of decision of the trial court." (Internal quotation marks omitted.) Savvidis v. City of Norwalk , 129 Conn.App. 406, 409-410, 21 A.3d 842, cert. denied, 302 Conn. 913, 27 A.3d 372 (2011). Thus, our review of the trial court's judgment denying the parties' motions for summary judgment is plenary. See id., at 410, 21 A.3d 842. I AC 38515 We turn first to the defendants' appeal in which they claim that the trial court improperly denied their motion for summary judgment because the plaintiff's veil piercing claim was barred by the doctrine of res judicata. Specifically, the defendants argue that the plaintiff's veil piercing claim arises out of the same series of transactions as the English action and should have been raised in the English action. We disagree. In denying the defendants' motion for summary judgment, the trial court stated: "The fact that certain evidence will need to be presented in the case at bar which was previously presented in the English action is insufficient to invoke the doctrine of res judicata. A piercing the corporate veil claim is different in nature and involves a different type of claim than the original contract claim asserted in the English action. The court also observes that Vik was not a party in the English action until the [nonparty costs] proceedings . The court also observes that the facts and evidence which the defendants claim should bar the plaintiff's subsequent action were matters that were probative of the defendants' counterclaim and not the plaintiff's original contractual assertions. The plaintiff brought the English action against [Sebastian] only asserting a contractual claim against [Sebastian]. [Sebastian's] assertion of claims that broadened the evidence (claims that the English court did not find meritorious) should not serve to bar the plaintiff's subsequent action to enforce its judgment against one who allegedly depleted the assets of [Sebastian] rendering it unable to pay its debts. Accordingly the court holds that the plaintiff's claim is not barred by the doctrine of res judicata." (Footnote added.) In so doing, the court concluded that "the action brought by the plaintiff herein is different in nature than the English action. Thus, although the facts at issue in the [English] action overlap with the facts at issue in this case, the differences are more significant than mere shadings of fact. Instead the cases lack a common nucleus of operative facts." (Internal quotation marks omitted.) The following legal principles guide our discussion. "In deciding whether the doctrine of res judicata is determinative, we begin with the question of whether the second action stems from the same transaction as the first. [Our Supreme Court has] adopted a transactional test as a guide to determining whether an action involves the same claim as an earlier action so as to trigger operation of the doctrine of res judicata. [T]he claim [that is] extinguished [by the judgment in the first action] 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. . Orselet v. DeMatteo , [206 Conn. 542, 545-46, 539 A.2d 95 (1988) ] ; see Duhaime v. American Reserve Life Ins. Co. , 200 Conn. 360, 364-65, 511 A.2d 333 (1986) ; see also Nevada v. United States , 463 U.S. 110, 130-31 n.12, 103 S.Ct. 2906, 77 L.Ed.2d 509 (1983) ; 1 Restatement (Second), [Judgments, § 24 (1982) ]. In applying the transactional test, we compare the complaint in the second action with the pleadings and the judgment in the earlier action." (Internal quotation marks omitted.) Powell v. Infinity Ins. Co. , 282 Conn. 594, 604, 922 A.2d 1073 (2007). With regard to that test, it appears that neither party disputes that the first two requirements are satisfied: (1) the English action resulted in a valid, final judgment rendered on the merits; and (2) the English action and the present action were between the same parties. See Coyle Crate LLC v. Nevins , 137 Conn.App. 540, 548, 558, 49 A.3d 770 (2012). Thus, we need only address the third requirement, that is, whether the plaintiff's veil piercing claims arose from the same transaction and should have been raised in the English action. The substance of the plaintiff's claim in the present action is that Vik is Sebastian's "alter ego," and, as a result, he is personally liable for the unsatisfied English judgment. In the English action, the plaintiff alleged various claims against Sebastian arising from their contractual relationship. Although this precise issue has been scarcely discussed by the courts of this state, we agree with the trial court that Wells Fargo Bank, N.A. v. Konover , United States District Court, Docket No. 3:05CV1924 (CFD) (D. Conn. March 20, 2008), 2008 WL 762195 (2008 U.S. Dist. Lexis 21506), provides guidance. In Wells Fargo Bank, N.A. , the plaintiff bank obtained a judgment rendered by a Maryland court against several corporate defendants, including Konover Management Company, for a breach of a mortgage agreement. Id., at *1, 2008 U.S. Dist. Lexis 21506 at *2. Following the defendants' failure to satisfy the judgment, the plaintiff brought an action before the federal court to enforce the Maryland judgment against an individual, Michael Konover, and his various other entities, under a corporate veil piercing theory. Id. In the action to enforce the Maryland judgment, the plaintiff alleged that the individual Connecticut defendant used his control over the entities named in the Maryland judgment to drain funds from those entities. Id. The court analyzed the complaint in the judgment enforcement action and stated: "Counts 1 and 2 are clearly addressed at recovering for a loss distinct from those at issue in Maryland. The claims here are based on the Judgment Debtor's inability to satisfy the Maryland judgment, rather than the mortgage default underlying that judgment." Id., at *4, 2008 U.S. Dist. Lexis 21506 at *4. The court concluded that although "the facts at issue in the Maryland action overlap with the facts at issue in this case, the differences are more significant than mere shadings of facts. Instead, the cases lack a common nucleus of operative facts." (Internal quotation marks omitted.) Id. The circumstances in the present case are nearly identical to those in Wells Fargo Bank, N.A . In essence, the respective plaintiffs in both cases had secured a prior judgment in their favor and sought to enforce that judgment through a corporate veil piercing claim in a subsequent action. The actual claim advanced in the present case is that the plaintiff suffered a loss based upon nonpayment of the judgment rendered by the English court. In our view, the present action is not seeking to relitigate the various claims that gave rise to Sebastian's liability in the English action, but seeking to enforce that judgment. This becomes even more evident when examining the governing law pertaining to the plaintiff's veil piercing claims. Prior to the parties' respective motions for summary judgment, the defendants moved to strike the complaint "arguing that the substantive law of [the] Turks and Caicos [Islands] must apply to the claims made that the corporate veil between Vik and [Sebastian] should be pierced since [Sebastian] is a corporation organized and existing under the laws of [the] Turks and Caicos [Islands]. The defendants further argue[d] that under that applicable Turks and Caicos [Islands'] law the allegations of the complaint are insufficient to state a cause of action pursuant to which the corporate veil between Vik and [Sebastian] may be pierced." The court concluded that the applicable law to be applied to the plaintiff's veil piercing claim was the law of the Turks and Caicos Islands and that the plaintiff sufficiently pleaded a cause of action. In its memorandum of decision denying the defendants' motion to strike, the court stated: "In determining the elements and parameters of [the Turks and Caicos Islands] law with regard to piercing the corporate veil the affidavit relies on decisions of English courts. The court has reviewed the affidavit submitted by the defendants as well as an affidavit submitted by the plaintiff, signed by an individual who is a solicitor admitted to practice in England and Wales. Both affidavits purport to set forth the law as developed in England and therefore applicable to [the Turks and Caicos Islands] with regard to attempts to pierce a corporate veil. Having reviewed those affidavits, as well as other authorities, the court concludes that the plaintiff has adequately alleged a cause of action under [the Turks and Caicos Islands'] law. The affidavits submitted by the defendants indicate that a corporate veil can be pierced only if there is some 'impropriety and that such impropriety must be linked to the use of the companies' structure to avoid or conceal liability.' The affidavits suggest that in order to pierce a veil it is necessary that the plaintiff show both control of the company by wrongdoers and an impropriety that constitutes a misuse of the company by them as a device or facade to conceal their wrongdoing. The defendants' affidavit additionally states that a company can be a facade even though it was not originally incorporated with any deceptive intent. Rather, the question is whether it is being used as a facade at the time of a relevant transaction. If so, the court may pierce the veil only so far as it is necessary to provide a remedy for the particular wrong which those controlling the company have done." The trial court's discussion is helpful in resolving the present appeal because it delineates the elements that the plaintiff must prove in its claim in the present case and the stark differences from the claims in the English action. It is clear to this court that the claims litigated in the English action and those claims alleged in the present case are distinct. For example, in prevailing on its claims in the English action, the plaintiff was not required to prove that Vik demonstrated control over Sebastian and impermissibly drained its assets. Simply put, the plaintiff in present action is not seeking to relitigate a claim of contractual liability that previously was decided in the English judgment. Instead, the plaintiff's claims here are seeking to enforce the unsatisfied English judgment against Vik under a corporate veil piercing theory. In sum, the claims alleged in the English action and those alleged in the present action arise from a distinct nucleus of operative facts. It is also worth noting that Sebastian's refusal to satisfy the judgment left the plaintiff in the precarious position of pursuing alternative methods of enforcing the judgment, that being an enforcement action seeking to pierce Sebastian's corporate veil. Requiring the plaintiff to have pursued such a claim in the English action would produce an unjust result, as the plaintiff would have been required to have anticipated that Sebastian would refuse to satisfy the English judgment. See Gladysz v. Planning & Zoning Commission , 256 Conn. 249, 261, 773 A.2d 300 (2001) (courts must ensure "that the effect of the doctrine does not work an injustice"). We thus conclude that the plaintiff's veil piercing claim is not barred by the doctrine of res judicata. Accordingly, the trial court properly denied the defendants' motion for summary judgment. II AC 38516 We next consider the plaintiff's appeal in which it claims that the trial court improperly denied its motion for summary judgment. The plaintiff argues that the court's denial of its motion was improper because the issue of whether Vik is the "alter ego" of Sebastian previously was decided by the English court and that the doctrine of collateral estoppel precluded the defendants from litigating that issue. We disagree. In its memorandum of decision denying the plaintiff's motion for summary judgment, the court stated: "While it is clear that [the English court] in issuing [its] decision rendering the English judgment did conclude that Vik was in control of the funds and caused them to be transferred out of [Sebastian] to make them harder to reach, [it] did so as a component of [its] decision denying [Sebastian's] counterclaim against the plaintiff. In the English action, [Sebastian] counterclaimed against the plaintiff claiming that the plaintiff had breached duties and contractual obligations to [Sebastian] which resulted in funds not being available to [Sebastian] from which it could have minimized its losses. [the English court] concluded that the plaintiff had not breached its contract or any other duties to [Sebastian], and, therefore, the plaintiff was not liable to [Sebastian] for those breach of contractual or other duties. [The English court] additionally found that because Vik was in control of the funds that had been transferred out of [Sebastian], Vik could have transferred those funds back to [Sebastian] at anytime thereby undercutting [Sebastian's] claim that the failure of [Sebastian] to have access to funds caused it significant damages. But this was unnecessary to the court's conclusion since the court had already determined that the plaintiff had not breached any duties to [Sebastian]. Moreover the issue decided by [the English court] was not whether or not Vik was the alter ego of [Sebastian] and liable for [Sebastian's] debts but only that he was still able to control the transfer of funds that had been transferred out of [Sebastian] and, therefore, could have avoided damage. To be sure in [its] lengthy and thorough decision, [the English court] took a dim view of Vik's conduct and integrity but that is insufficient to establish the collateral estoppel necessary to grant summary judgment for the plaintiff." Our resolution of the plaintiff's appeal is governed by the following legal principles. "Collateral estoppel means simply that when an issue of ultimate fact has once been determined by a valid and final judgment, that issue cannot again be litigated between the same parties in any future lawsuit. . To assert successfully the doctrine of issue preclusion, therefore, a party must establish that the issue sought to be foreclosed actually was litigated and determined in the prior action between the parties or their privies, and that the determination was essential to the decision in the prior case. . An issue is actually litigated if it is properly raised in the pleadings or otherwise, submitted for determination, and in fact determined. . An issue is necessarily determined if, in the absence of a determination of the issue, the judgment could not have been validly rendered. . Therefore, a party may assert the doctrine of collateral estoppel successfully when three requirements are met: [1] [t]he issue must have been fully and fairly litigated in the first action, [2] it must have been actually decided, and [3] the decision must have been necessary to the judgment. . "Before collateral estoppel applies there must be an identity of issues between the prior and subsequent proceedings. To invoke collateral estoppel the issues sought to be litigated in the new proceeding must be identical to those considered in the prior proceeding. [T]he court must determine what facts were necessarily determined in the first trial, and must then assess whether the [party] is attempting to relitigate those facts in the second proceeding. Simply put, collateral estoppel has no application in the absence of an identical issue. Further, [t]he [party seeking estoppel] has the burden of showing that the issue whose relitigation he seeks to foreclose was actually decided in the first proceeding." (Citations omitted; emphasis in original; footnote omitted; internal quotation marks omitted.) Wiacek Farms, LLC v. Shelton , 132 Conn.App. 163, 168-70, 30 A.3d 27 (2011). We begin with a review of the issues presented to each court. In the English action, the plaintiff claimed that Sebastian suffered trading losses through the use of accounts opened and operated through the plaintiff. Those losses led to Sebastian incurring debts owed to the plaintiff as a result of unpaid margin calls and closeouts of Sebastian's accounts with the plaintiff. In the present case, the plaintiff claimed that Vik was personally liable for Sebastian's debts because he was Sebastian's "alter ego" due to, inter alia, his domination and control of Sebastian. It is apparent to this court that the facts relevant to the issues in the English judgment and those in the present case are not "identical" for purposes of issue preclusion. See Corcoran v. Dept. of Social Services , 271 Conn. 679, 689-90, 859 A.2d 533 (2004). Our resolution of the plaintiff's appeal, however, is complicated by the English court's disposition of Sebastian's counterclaims and the postjudgment award of costs rendered against Vik. First, Sebastian made several counterclaims in the English action. Sebastian counterclaimed that the plaintiff breached its contractual duties and other duties that it owed to Sebastian that, in turn, resulted in the depletion of Sebastian's funds that it could have used to mitigate its losses. In denying Sebastian's counterclaim, the English court found both that (1) the plaintiff did not breach its duties to Sebastian, contractual or otherwise, and (2) Vik had control over Sebastian such that any alleged breach of duty on behalf of the plaintiff should not have interfered with Vik's ability to transfer funds to or from Sebastian. In its memorandum of decision, the trial court noted that the English court's findings relating to Vik's control of Sebastian and that Vik could have transferred funds back to Sebastian were "unnecessary to the court's conclusion since the court had already determined that the plaintiff had not breached any duties to [Sebastian]." We agree with this assessment. Because only those issues that were necessarily determined by the English court could invoke the doctrine of collateral estoppel, the English court's finding that the plaintiff did not breach any duties it owed to Sebastian was the only essential issue determined by the English court pertaining to the counterclaim. See Gladysz v. Planning & Zoning Commission , supra, 256 Conn. at 260, 773 A.2d 300. Thus, we decline to afford any preclusive effect to the issues pertaining to Vik's control of Sebastian and related issues because those issues found by the English court were nonessential. See Farmington Valley Recreational Park, Inc. v. Farmington Show Grounds, LLC , 146 Conn.App. 580, 589, 79 A.3d 95 (2013). Second, the English court also made factual findings relating to Vik's dominion and control of Sebastian when it awarded postjudgment costs against Vik. In our view, the factual findings underlying the English costs judgment cannot serve as the grounds for invoking the doctrine of collateral estoppel for two reasons: (1) the sole purpose of the English costs judgment was to determine whether a nonparty, Vik, could be held liable for costs and attorney's fees incurred during the litigation of the English action; and (2) the English costs proceeding did not afford the parties basic procedural safeguards, including presentation and cross-examination of witnesses. In its memorandum of decision as to the costs judgment, the English court noted that under the applicable provision that gives rise to the costs proceeding, § 51, the critical factor is the nature and degree of the nonparty's connection with the proceedings. See Deutsche Bank AG v. Sebastian Holdings, Inc ., [2004] EWHC 2073 (Q.B.). The English court further stated, "[a]s is plain from a number of authorities, an application under [§] 51 does not involve the assertion of a cause of action but is a request for the exercise by the English court of a statutory discretion in relation to the proceedings in which the court already has jurisdiction and, as here, has usually already given judgment against a party subject to that jurisdiction." Id. It is apparent to this court that § 51 proceedings do not afford the parties the same procedural safeguards as the parties were afforded when they litigated the underlying merits in the English action or that the parties are afforded in the present case. Specifically, "[t]he procedure for the determination of costs is a summary procedure, not necessarily subject to all the rules that would apply in an action." Id. The English court observed that "[§] 51 proceedings are intended to be a 'speedy process' where disclosure and cross-examination are not ordinarily part of the procedure." Id. Although the court could have exercised its discretion to allow disclosure and cross-examination, the English court instead relied solely on its findings from the English judgment. In light of the lack of procedural safeguards afforded to a § 51 proceeding, we decline to apply preclusive effect to the issues in the present case. Our courts have declined to apply the doctrine of collateral estoppel to findings made in proceedings where "the panoply of procedural and discovery devices available in civil proceedings [were] not equally available ." Connecticut Natural Gas Corp. v. Miller , 239 Conn. 313, 321-22, 684 A.2d 1173 (1996) ; see also Gateway , Kelso and Co., Inc. v. West Hartford No. 1, LLC. , 126 Conn.App. 578, 587, 15 A.3d 635 (2011) (declining to invoke collateral estoppel where court permitted only plaintiff's witness to testify, defendant was not allowed to call any witnesses, and defendant was not permitted to complete cross-examination of plaintiff's witness). As best we can tell from the record before us, the English costs judgment was the result of a summary proceeding that did not afford the parties the ability to present new evidence, to call witnesses, or to cross-examine witnesses. Moreover, the English court explicitly noted that the issues in determining a nonparty costs order were not the same as a corporate veil piercing claim. Thus, we decline to apply the doctrine of collateral estoppel to the factual findings made by the English court in the costs judgment. Although we acknowledge that there is some overlap in the facts relevant to the issues in the present case and those in the English action, "[o]ur Supreme Court has held . that an overlap in issues does not necessitate a finding of identity of issues for the purposes of collateral estoppel." Wiacek Farms, LLC v. Shelton , supra, 132 Conn.App. at 172, 30 A.3d 27. Our Supreme Court has also "recognized that applying the doctrine of collateral estoppel has harsh consequences, namely, cutting off a party's right to future litigation on a given issue, [and our Supreme Court has] been reluctant to uphold the invocation of the doctrine unless the issues are completely identical." Corcoran v. Dept. of Social Services , supra, 271 Conn. at 695, 859 A.2d 533. On the facts of the present case, we decline to foreclose the issue that Vik is Sebastian's alter ego because that issue is not identical to those issues that were before the English court. Moreover, we decline to give preclusive effect to the English court's postjudgment costs award based on the lack of procedural safeguards. Thus, the court properly concluded that genuine issues of material fact exist as to the issues. The judgment is affirmed. In this opinion the other judges concurred. The defendants filed the present appeal on October 26, 2015, and on October 28, 2015, the plaintiff filed its appeal. Under § 51 of the United Kingdom's Senior Courts Act, a nonparty to an action may be summarily held liable for a judgment of attorney's fees and costs made against a party. See Senior Courts Act 1981, c. 54, § 51. The English court explained in the English costs judgment that, in assessing costs under § 51, the "critical factor" is "the nature and degree of the nonparty's connection with the proceedings." Deutsche Bank AG v. Sebastian Holdings, Inc., [2004] EWHC 2073 (Q.B.) The English court emphasized that "[a]n application under [§] 51 does not involve the assertion of a cause of action but is a request for the exercise by the English court of a statutory discretion in relation to proceedings in which the court already has jurisdiction and, as here, has usually already given judgment against a party subject to that jurisdiction." Id. See General Statutes § 52-604 et seq. As a threshold matter, we note that "[o]rdinarily, the denial of a motion for summary judgment is not an appealable final judgment. . When the decision on a motion for summary judgment, however, is based on the doctrine of collateral estoppel, the denial of that motion does constitute a final judgment for purposes of appeal. . That precept applies to the doctrine of res judicata with equal force." (Citations omitted; internal quotation marks omitted.) Lighthouse Landings, Inc. v. Connecticut Light & Power Co., 300 Conn. 325, 328 n.3, 15 A.3d 601 (2011). The English court's decision in granting the nonparty costs application reflects that it found jurisdiction over Vik solely for the purpose of awarding a judgment for costs incurred in the English action. The English court's jurisdiction over Vik was derived from chapter 54, § 51 of the Senior Courts Act 1981, which confers upon the English court "full power to determine by whom and to what extent the costs are to be paid." In granting the costs application, the English court explained that Vik was responsible for legal costs as a nonparty based on, inter alia, his status as the sole shareholder and sole director of Sebastian and because Vik controlled the conduct of the litigation on Sebastian's behalf. See footnote 2 of this opinion. Specifically, the English court stated, "if a non-party costs order is made against a company director or shareholder, it is wrong to characterize this as piercing or lifting the corporate veil or to say that the company and the director or shareholder are one in the same. The separate personality of a corporation, even a single member corporation, is deeply imbedded in our law for the purpose of dealing with legal rights and obligations." Deutsche Bank AG v. Sebastian Holdings, Inc., [2004] EWHC 2073 (Q.B.).

12490386

STATE of Connecticut v. Patrick YOUNG

State v. Young

2017-07-18

AC 37995, (AC 37997)

704

715

166 A.3d 704

166

West's Atlantic Reporter, Third Series

Connecticut Appellate Court

Connecticut

2021-08-27T20:57:14.020814+00:00

Fastcase

STATE of Connecticut v. Patrick YOUNG

STATE of Connecticut v. Patrick YOUNG AC 37995, (AC 37997) Appellate Court of Connecticut. Argued January 31, 2017 Officially released July 18, 2017 Mary Boehlert, assigned counsel, for the appellant (defendant). James M. Ralls, assistant state's attorney, with whom, on the brief, were Patrick Griffin, state's attorney, and John Doyle, senior assistant state's attorney, for the appellee (state). Alvord, Keller and Beach, Js.

4615

28138

BEACH, J. In this consolidated appeal, the defendant, Patrick Young, appeals from the judgment of conviction, rendered after a jury trial, of assault in the first degree in violation of General Statutes § 53a-59(a)(1) and carrying a pistol without a permit in violation of General Statutes § 29-35, and the judgment revoking his probation. The defendant claims that (1) there was insufficient evidence to support his conviction for assault in the first degree, (2) the trial court abused its discretion by admitting into evidence the names of his prior felony convictions, and (3) the court abused its discretion by giving a supplemental charge to the jury in which it named the defendant's prior convictions. We disagree and affirm the judgments of the trial court. The following facts, as reasonably could have been found by the jury, and procedural history are relevant to this appeal. The defendant's girlfriend, Maria Zambrano, worked as a home health care aide and stole a $6500 check from one of her patients. After Zambrano told the defendant about the stolen check, the defendant, who did not have a bank account, approached Diane Turner, his cousin, and Jessica McFadden, Turner's roommate, for assistance in cashing the check. Zambrano, Turner, McFadden, and the defendant rode together in Zambrano's car in order to cash the check. McFadden was unable to cash the check at the first bank that she tried because the check was postdated; the defendant then had Zambrano alter the date on the check. At a second bank, McFadden was able to obtain $200 by depositing the check into an automatic teller machine. The bank later informed McFadden that the check was stolen and that she would be arrested if she did not repay the bank $200. The defendant became angry when he was told that the check would not be cashed for its entire amount. He thought that Turner and McFadden had lied to him, cashed the check, and kept for themselves the full amount of $6500. On the night of the following day, June 24, 2013, Zambrano and the defendant picked up Turner and McFadden at their New Haven residence under the guise of driving to Hamden to retrieve $200 so that McFadden could repay the bank. While Zambrano drove, the defendant repeatedly questioned Turner and McFadden about what they did with the $6500 and why they had not given it to him. Zambrano stopped the vehicle on a dark road near a wooded area. The defendant again asked Turner and McFadden about the location of the money. The defendant reached into the car's glove compartment, retrieved a silver revolver, waved the revolver in the direction of the backseat where Turner and McFadden were seated, and again asked where the money was. The defendant forced Turner to exit the car. The defendant pointed the revolver at Turner's head, and she pleaded for her life. At some point, Turner ran into the woods and yelled for McFadden to follow. The defendant then returned to the car, pointed the revolver at McFadden, told her to exit the car, and he and Zambrano drove away. McFadden found Turner in the woods, and they hid. They then left the wooded area and walked down the road to search for help. The defendant jumped out from behind bushes and pointed the gun at Turner's head; Turner raised her hands. The defendant said that Turner was throwing him under the bus. He then shot Turner in her left palm, and the bullet exited by her wrist. The defendant fired more shots, and one bullet hit Turner under her right arm near her rib cage. The defendant then ran away, and McFadden and Turner hid in the woods before flagging down a work crew for assistance. Turner was taken to Yale-New Haven Hospital and treated for her injuries. Doctors were unable to remove a .38 caliber bullet at that time, but it was surgically removed months later when it migrated near her spine. Zambrano informed the police that she had accompanied the defendant to a marina where he threw the revolver off the dock. A police dive team recovered the revolver, which was a .38 caliber stainless steel Smith & Wesson revolver. Following a jury trial, the defendant was convicted of assault in the first degree and carrying a pistol without a permit. The defendant was on probation at the time, and the court found him to be in violation of his probation. The defendant was sentenced to a total effective sentence of thirty-one years incarceration, execution suspended after twenty-four years, with five years of probation. This consolidated appeal followed. I The defendant first claims that there was insufficient evidence to support his conviction of assault in the first degree. We disagree. "In reviewing a sufficiency of the evidence claim, we apply a two part test. First, we construe the evidence in the light most favorable to sustaining the verdict. Second, we determine whether upon the facts so construed and the inferences reasonably drawn therefrom the [jury] reasonably could have concluded that the cumulative force of the evidence established guilt beyond a reasonable doubt . This court cannot substitute its own judgment for that of the jury if there is sufficient evidence to support the jury's verdict.... Moreover, we do not ask whether there is a reasonable view of the evidence that would support a reasonable hypothesis of innocence. We ask, instead, whether there is a reasonable view of the evidence that supports the jury's verdict of guilty." (Citation omitted; internal quotation marks omitted.) State v. Revels , 313 Conn. 762, 778, 99 A.3d 1130 (2014), cert. denied, - U.S. -, 135 S.Ct. 1451, 191 L.Ed. 2d 404 (2015). General Statutes § 53a-59(a)(1) provides in relevant part: "A person is guilty of assault in the first degree when . [w]ith intent to cause serious physical injury to another person, he causes such injury to such person . by means of a deadly weapon or a dangerous instrument ." General Statutes § 53a-3(6) defines "deadly weapon" as "any weapon, whether loaded or unloaded, from which a shot may be discharged ." Thus, the state was required to prove that the defendant (1) intended to cause Turner serious physical injury and (2) caused such injury to her by means of a deadly weapon or dangerous instrument. The defendant argues that the state's case rested largely on inconsistent and unreliable testimony of three witnesses-Turner, McFadden, and Zambrano. He argues that the trial testimony of Turner, McFadden, and Zambrano differed from statements that each had given to the police regarding the number of shots fired, whether the defendant left and then returned to the crime scene, whether the defendant ordered Turner onto her hands and knees rather than to put her hands behind her back, whether the defendant pulled Turner out of the car or ordered her to do so herself, whether McFadden alone received the check from the defendant and Zambrano rather than Turner and McFadden together receiving the check, and whether the defendant fired shots at Turner and then left or whether Turner and McFadden ran into the woods before the defendant fired a shot and only upon Turner and McFadden leaving the woods did the defendant fire the gun at Turner. The defendant further contends that, because of the inconsistencies in the evidence presented by the state, the state failed to present sufficient evidence to sustain his conviction. The defendant claims that the evidence was insufficient because of inconsistencies between the trial testimony of Turner, McFadden, and Zambrano, on the one hand, and their police statements, on the other hand. Such inconsistencies do not undermine the sufficiency of the evidence but more aptly affect the credibility of the witnesses. See, e.g., State v. Franklin, 115 Conn.App. 290, 292, 972 A.2d 741, cert. denied, 293 Conn. 929, 980 A.2d 915 (2009). Credibility determinations rest with the jury. "[E]vidence is not insufficient . because it is conflicting or inconsistent.... It is the [jury's] exclusive province to weigh the conflicting evidence and to determine the credibility of witnesses.... The [jury] can . decide what-all, none, or some-of a witness' testimony to accept or reject." (Internal quotation marks omitted.) State v. Rodriguez , 133 Conn.App. 721, 726, 36 A.3d 724 (2012), aff'd, 311 Conn. 80, 83 A.3d 595 (2014). There was ample evidence from which the jury reasonably could have found that the defendant caused serious physical injury to Turner by means of a deadly weapon and that he intended to cause such serious physical injury. Turner testified that the defendant pointed a silver revolver at her and that she pleaded for her life. She further testified that the defendant shot her on the top of her left hand and that the bullet exited near her wrist. She stated that the defendant also shot her under her right arm near her ribcage. Zambrano showed the police the location in a marina where the defendant had discarded the revolver, and the police recovered a .38 caliber stainless steel snub nose Smith & Wesson revolver from that location. Subsequently, a .38 caliber bullet was surgically removed from Turner's torso. The jury reasonably could have inferred from the defendant's conduct of pointing the revolver at Turner and pulling the trigger, and from the resultant injury to Turner's wrist and torso, that the defendant intended to cause serious physical injury to her. See State v. Papandrea , 120 Conn.App. 224, 230, 991 A.2d 617 (2010) (intent may be inferred from conduct and jury may infer defendant intended natural consequences of actions), aff'd, 302 Conn. 340, 26 A.3d 75 (2011). Accordingly, there was sufficient evidence to support the defendant's conviction of assault in the first degree II The defendant next claims that the trial court abused its discretion by admitting the names of his prior felony convictions into evidence. We disagree. At the close of the state's case, the defendant's attorney referred to an in-chambers discussion and objected to the state's proposed admission into evidence of the names of the defendant's prior felony convictions during the cross-examination of the defendant. The court noted that, pursuant to § 6.7 of the Connecticut Code of Evidence, evidence of a felony conviction may be admissible for the purpose of impeachment. The court reasoned that it would allow the felonies to be named because the names of three felonies provided more specific guidance as to the defendant's veracity. In the course of his direct examination, the defendant testified that, in March, 2009, he was convicted of two felonies arising from one incident and that, in 2012, he was convicted of a third felony. On cross-examination by the state, the defendant testified that he had been convicted of conspiracy to commit larceny in the second degree, conspiracy to commit robbery in the first degree, and criminal attempt to commit robbery in the first degree. He further testified that he was aware that, as a result of his felony convictions, he was not permitted to possess a firearm. "It is well settled that evidence that a criminal defendant has been convicted of crimes on a prior occasion is not generally admissible.... There are, however, several well recognized exceptions to this rule, one of which is that [a] criminal defendant who has previously been convicted of a crime carrying a term of imprisonment of more than one year may be impeached by the state if his credibility is in issue.... In its discretion a trial court may properly admit evidence of prior convictions provided that the prejudicial effect of such evidence does not far outweigh its probative value.... [Our Supreme Court] has identified three factors which determine whether a prior conviction may be admitted: (1) the extent of the prejudice likely to arise; (2) the significance of the commission of the particular crime in indicating untruthfulness; and (3) its remoteness in time.... A trial court's decision denying a motion to exclude a witness' prior record, offered to attack his credibility, will be upset only if the court abused its discretion.... Those three factors have been incorporated in [the Connecticut] [C]ode of [E]vidence. Conn. Code Evid. § 6-7(a)." (Citation omitted; internal quotation marks omitted.) State v. Ciccio , 77 Conn.App. 368, 385-86, 823 A.2d 1233, cert. denied, 265 Conn. 905, 831 A.2d 251 (2003). There is no doubt that if evidence of a felony conviction is otherwise admissible, the name of the crime is generally also admissible. See Conn. Code Evid. § 6-7(c) ("[i]f, for purposes of impeaching the credibility of a witness, evidence is introduced that the witness has been convicted of a crime, the court shall limit the evidence to the name of the crime . except that . the court may exclude evidence of the name of the crime ." [emphasis added] ). As indicated in § 6-7, the court has discretion to admit the prior conviction as an unnamed felony. Factors to consider include whether the prior crime reflects directly on credibility and whether the prejudice inherent in the name of the crime outweighs the probative impeaching value. See State v. Crumpton , 202 Conn. 224, 232-33, 520 A.2d 226 (1987) ; State v. Geyer , 194 Conn. 1, 16, 480 A.2d 489 (1984). "[I]n evaluating the separate ingredients to be weighed in the balancing process, there is no way to quantify them in mathematical terms.... Therefore, [t]he trial court has wide discretion in this balancing determination and every reasonable presumption should be given in favor of the correctness of the court's ruling . Reversal is required only where an abuse of discretion is manifest or where injustice appears to have been done.... The burden lies with the party objecting to the admission of evidence of prior convictions to demonstrate the prejudice that is likely to arise from its admission.... The test for determining whether evidence is unduly prejudicial is not whether it is damaging to the defendant but whether it will improperly arouse the emotions of the jury." (Citations omitted; internal quotation marks omitted.) State v. Muhammad , 91 Conn.App. 392, 397-98, 881 A.2d 468, cert. denied, 276 Conn. 922, 888 A.2d 90 (2005). The defendant argues that the admission into evidence of the names of the three prior felony convictions was more prejudicial than probative, and that the court thus abused its discretion in allowing the names of the felonies to be admitted into evidence. He contends that the theory of his defense was that he did not intentionally pull the trigger, but, instead, Turner initiated a struggle with him over control of the revolver, which caused Turner to be shot. He further argues that evidence regarding the convictions did not provide a material benefit to the jury and misled the jury to believe that he was more likely to have committed the crimes at issue in the present case because he had committed three felonies in the past. Assault in the first degree and carrying a pistol without a permit, the crimes alleged in this case, are not strikingly similar to the crimes of conspiracy to commit larceny in the second degree, conspiracy to commit robbery in the first degree, and attempt to commit robbery in the first degree, the names of the prior convictions with which the defendant's credibility was impeached. Indeed, the defendant acknowledges in his appellate brief that the prior convictions bore "no similarity" to the crimes for which he was charged. The dissimilar nature of the crimes charged, as compared to the nature of the prior convictions, minimized the chance that the jury would view the convictions as propensity evidence. Cf. State v. Nardini , 187 Conn. 513, 522, 447 A.2d 396 (1982) ("[w]here the prior crime is quite similar to the offense being tried, a high degree of prejudice is created and a strong showing of probative value would be necessary to warrant admissibility"). The crimes involving larceny and robbery for which the defendant was convicted on prior occasions were significant in indicating untruthfulness. "[Our Supreme Court] has recognized that crimes involving larcenous intent imply a general disposition toward dishonesty or a tendency to make false statements.... [I]n common human experience acts of deceit, fraud, cheating, or stealing . are universally regarded as conduct which reflects on a [person's] honesty and integrity ." (Internal quotation marks omitted.) State v. Banks , 58 Conn.App. 603, 616, 755 A.2d 279, cert. denied, 254 Conn. 923, 761 A.2d 755 (2000). "[C]rimes involving larcenous intent imply a general disposition toward dishonesty . Convictions of this sort obviously bear heavily on the credibility of one who has been convicted of them. The probative value of such convictions, therefore, may often outweigh any prejudice engendered by their admission." (Citation omitted; internal quotation marks omitted.) State v. Geyer , 194 Conn. 1, 12, 480 A.2d 489 (1984). The defendant argues that the naming of his prior convictions was of no material benefit to the jury. Because the prior convictions related to untruthfulness, however, the names of the prior convictions were relevant to the jury's evaluation of the defendant's veracity. See State v. Crumpton , supra, 202 Conn. at 233, 520 A.2d 226. The court, therefore, did not abuse its discretion in allowing into evidence the names of the prior convictions. "Although the probative value of evidence of his prior convictions is certainly damaging to [the defendant's] credibility, that does not necessarily impart an undue degree of prejudicial effect as well.... The test for determining whether evidence is unduly prejudicial is not whether it is damaging to the defendant but whether it will improperly arouse the emotions of the jury." (Citation omitted; emphasis omitted; internal quotation marks omitted.) State v. Muhammad , supra, 91 Conn.App. at 398, 881 A.2d 468. We are not persuaded that the evidence of the prior convictions was likely to arouse the emotions of the jurors. We conclude that the trial court did not abuse its discretion in admitting evidence of the names of the defendant's prior convictions involving larceny and robbery for the purpose of impeachment. III The defendant last claims that the trial court abused its discretion by giving a supplemental charge to the jury in which it named the defendant's prior felony convictions after deliberations had begun, thus unduly highlighting the prior convictions. The defendant also argues that the court's supplemental charge unfairly prejudiced him by marshaling the evidence. We disagree. After the state rested, the defendant's attorney informed the court that the defendant decided to testify. Following closing arguments and outside the presence of the jury, the court invited comment from counsel on its draft jury charge, which had been sent to counsel by e-mail days earlier; the draft charge contained no instruction regarding the use of prior convictions. Later that day, the court instructed the jury, and the jury began deliberating. The next morning, the court informed counsel that it intended to supplement the jury charge by instructing the jury that it could consider the defendant's prior convictions only for the purpose of assessing the defendant's credibility. The defendant's attorney objected, arguing that the supplemental charge was prejudicial because it marshaled the evidence and because it would emphasize the prior convictions after deliberations had begun. The court stated that because the defendant's prior convictions were in evidence, it wanted to make clear to the jury that the prior convictions were to be used only for the purpose of assessing the defendant's credibility. The court did not want the jury to infer from the prior convictions that the defendant was likely to have committed the crimes charged. The court stated that the supplemental charge was "for . the protection of the defendant ." The court then instructed the jury as follows: "I have one more page of a charge that I inadvertently did not give you yesterday, a charge meaning this is the law that you're to apply to the facts that you find, and I'm going to read that to you now. It's going to be-It is part of the charge. We literally are going to plug it into the charge you have in there, its going to page 20a, and it's as follows, and this is the law. Impeachment, prior convictions of a witness. Evidence that one of the witnesses, [the defendant], was previously convicted of a crime or crimes is only admissible on the question of the credibility of that witness, that is, the weight that you will give the witness' testimony. The witness' criminal record bears only on this witness' credibility and the one witness was [the defendant] and the convictions are as follows: conspiracy to commit larceny in the second degree, attempt to commit robbery in the first degree, conspiracy to commit robbery in the first degree. It is your duty to determine whether this witness is to be believed wholly or partly or not at all. You may consider the witness' prior convictions in weighing the credibility of this witness and give such weight to those facts that you decide is fair and reasonable in determining the credibility of this witness." "The standard of review for claims of instructional impropriety is well established. [I]ndividual jury instructions should not be judged in artificial isolation, but must be viewed in the context of the overall charge.... The pertinent test is whether the charge, read in its entirety, fairly presents the case to the jury in such a way that injustice is not done to either party under the established rules of law.... Thus, [t]he whole charge must be considered from the standpoint of its effect on the [jurors] in guiding them to the proper verdict . and not critically dissected in a microscopic search for possible error." (Internal quotation marks omitted.) State v. Peeler , 271 Conn. 338, 360-61, 857 A.2d 808 (2004), cert. denied, 546 U.S. 845, 126 S.Ct. 94, 163 L.Ed. 2d 110 (2005). "In evaluating the propriety of a supplemental charge, we must examine both the main and supplemental charge as a whole." State v. Miller , 36 Conn.App. 506, 514, 651 A.2d 1318, cert. denied, 232 Conn. 912, 654 A.2d 357 (1995). Practice Book § 42-24 provides in relevant part that "[t]he judicial authority . upon its own motion . may recall the jury to the courtroom and give it additional instructions in order to . [i]nstruct the jury on any matter which should have been covered in the original instructions." The decision whether to add a supplemental instruction lies within the sound discretion of the court; State v. Fletcher , 10 Conn.App. 697, 703, 525 A.2d 535 (1987), aff'd, 207 Conn. 191, 540 A.2d 370 (1988) ; and the additional instruction, like any other instruction, is to be read in the context of the charge as a whole. State v. Wokoma , 37 Conn.App. 35, 39, 656 A.2d 226, cert. denied, 233 Conn. 905, 657 A.2d 645 (1995). The supplemental charge informed the jury of the proper use of evidence of the defendant's prior felony convictions. The court had admitted the evidence of the defendant's prior convictions for impeachment purposes only. Section 4-5(a) of the Connecticut Code of Evidence provides that "[e]vidence of other crimes, wrongs or acts of a person is inadmissible to prove the bad character or criminal tendencies of that person." The main charge apparently had inadvertently omitted the instruction emphasizing the limited purpose for which this evidence could be used. The court's supplemental charge, however, properly instructed the jury that the defendant's prior convictions were not to be used as evidence that he committed the crimes charged but, rather, were only to be used in assessing his credibility. The supplemental charge protected the defendant from the jury's use of his prior convictions as evidence of his guilt of the current charged offenses; giving the charge, therefore, was well within the court's discretion. Further, the court did not improperly marshal the evidence by naming the defendant's prior convictions. The names of the three prior convictions were in evidence. The court's reference to them properly guided the jury to understand the limitations on how such evidence could be used and, viewed in context, was part of an instruction to protect the defendant against improper use of the evidence, not an instruction merely to highlight adverse evidence. Accordingly, the trial court did not abuse its discretion in giving its supplemental charge. The judgments are affirmed. In this opinion the other judges concurred. The jury found the defendant not guilty of attempt to commit assault in the first degree in violation of General Statutes § 53a-49(a)(2) and 53a-59(a)(1). The defendant filed two separate appeals. Pursuant to Practice Book § 61-7(3), this court sua sponte ordered that the appeals in AC 37995 and AC 37997 be consolidated. The appeal from the violation of probation raises no independent issues. The defendant also argues that, according to his own testimony, Turner reached for the revolver, initiated a struggle during which the revolver fired a shot, and the defendant did not intend that Turner be shot. The existence of contrary testimony does not undermine the sufficiency of the evidence supporting the conviction. Credibility determinations are within the sole province of the jury. See State v. Rodriguez, 133 Conn.App. 721, 725-28, 36 A.3d 724 (2012), aff'd, 311 Conn. 80, 83 A.3d 595 (2014). There was testimony that a minimum of ten to twelve pounds of pressure was required to pull the trigger. The defendant's attorney objected at trial only to the naming of the three prior felony convictions. There was no objection to the admission of those convictions without naming them. We review only the preserved claim of evidentiary error. See, e.g., State v. Francis D., 75 Conn.App. 1, 11, 815 A.2d 191, cert. denied, 263 Conn. 909, 819 A.2d 842 (2003). Larceny generally is an element of robbery. See, e.g., General Statutes § 53a-133. The defendant also argues that the court abused its discretion in reading the supplemental charge without reading the entire charge again and inserting the additional language. The defendant did not raise this issue before the trial court, and we decline to review it. See, e.g., State v. Francis D., 75 Conn.App. 1, 11, 815 A.2d 191, cert. denied, 263 Conn. 909, 819 A.2d 842 (2003). "A trial court has broad discretion to comment on the evidence adduced in a criminal trial.... A jury trial in which the judge is deprived of the right to comment on the evidence and to express his opinion as to the facts . is not the jury trial which we inherited.... A trial court often has not only the right, but also the duty to comment on the evidence.... The principal function of a jury charge is to assist the jury in applying the law correctly to the facts which they might find to be established . and therefore, we have stated that a charge must go beyond a bare statement of accurate legal principles to the extent of indicating to the jury the application of those principles to the facts claimed to have been proven.... The purpose of marshalling the evidence, a more elaborate manner of judicial commentary, is to provide a fair summary of the evidence, and nothing more; to attain that purpose, the [trial] judge must show strict impartiality." (Citations omitted; internal quotation marks omitted.) State v. Hernandez, 218 Conn. 458, 461-63, 590 A.2d 112 (1991). In this case, the only "marshaling" was a recitation that the defendant had testified and that the named convictions had been introduced into evidence.

12490385

Fortunata MALUCCIO v. EAST LYME ZONING BOARD OF APPEALS

Maluccio v. E. Lyme Zoning Bd. of Appeals

2017-07-18

AC 38680

69

75

166 A.3d 69

166

West's Atlantic Reporter, Third Series

Connecticut Appellate Court

Connecticut

2021-08-27T20:57:14.020814+00:00

Fastcase

Fortunata MALUCCIO v. EAST LYME ZONING BOARD OF APPEALS

Fortunata MALUCCIO v. EAST LYME ZONING BOARD OF APPEALS AC 38680 Appellate Court of Connecticut. Argued February 7, 2017 Officially released July 18, 2017 Mark S. Zamarka, with whom, on the brief, was Edward B. O'Connell, for the appellant (defendant). Eugene C. Cushman, for the appellee (plaintiff). Sheldon, Mullins and Pellegrino, Js.

2508

15443

PELLEGRINO, J. This appeal is brought by the defendant, the East Lyme Zoning Board of Appeals (board), from a decision of the trial court sustaining an appeal from the board's decision denying a building permit for a parcel of land owned by the plaintiff, Fortunata Maluccio, that was designated as a "recreation area" on an original subdivision plan. The defendant claims that the trial court improperly found that the designation of the parcel as a "recreation area" did not preclude the development of that parcel for residential use. We affirm the judgment of the trial court. The following facts and procedural history are relevant to this appeal. The plaintiff purchased a lot with the address of 6 Red Fox Road (parcel) in the Green Valley Lakes subdivision in East Lyme (town) at a tax sale on May 26, 2006. The Green Valley Lakes subdivision was originally approved on July 13, 1970, by the East Lyme Planning Commission (commission). The East Lyme Subdivision Regulations (regulations), as they existed in 1970, gave the commission discretion to require developers to provide land to the town for "open space for parks and playgrounds as it may deem proper ." East Lyme Subdivision Regs. (Rev. to June 5, 1967), § 3.5. Accordingly, the developer of Green Valley Lakes designated one lot as a "recreation area" on the subdivision plan he submitted for approval to the commission. The lot labeled "recreation area" is the parcel at issue in this appeal. At its meeting on July 13, 1970, the commission approved the subdivision plan that included the parcel labeled as a "recreation area." The vote on the subdivision, however, did not explicitly mention whether a recreation area would be required. On February 14, 1972, the developer recorded on the land records of the town a "Declaration of Restrictions" relating to the subdivision. No mention was made of the parcel, any special restrictions regarding the parcel, or any rights created for the use of the parcel by any lot owners. On July 5, 1973, the original developer offered to deed the parcel to the town. The minutes of the town Board of Selectmen meeting state that, following a discussion, the selectmen voted unanimously to reject the offer. Once more, in 1979, a subsequent developer also offered to deed the parcel to the town, but the offer was rejected. The parcel has remained in its natural state since 1970, has not been classified as open space by the assessor, and does not appear as open space on the town's plan of development or comprehensive plan. No rights in the parcel were deeded to lot purchasers in the development, and no lot owner has filed a notice of claim as to any rights in the parcel pursuant to General Statutes § 47-33f. Following years of unpaid taxes on the parcel, it became the subject of a statutory tax sale by a public auction conducted by the town's tax collector. A public notice regarding the sale was issued on March 10, 2006. The notice indicated that the parcel was to be sold subject to a utility easement and sloping rights, but made no mention of any encumbrance relating to open space for parks and playgrounds. The plaintiff purchased the parcel at the tax sale for $19,500. In August, 2012, the plaintiff submitted an application to the town for a zoning permit to build a single family home on the parcel. The application and attached plans conformed to all specific requirements of the zoning regulations of the town. The zoning enforcement officer, acting on behalf of the East Lyme Zoning Commission, denied the permit application, stating his reasons as follows: "[The] application is denied as property is designated as recreation area open space on the original subdivision plan." The plaintiff appealed from the denial of her permit application to the defendant, which, following a hearing, upheld the zoning enforcement officer's decision. The defendant stated that the zoning enforcement officer "had properly denied the zoning permit for [the parcel], [and] that designations of the original subdivision map such as recreation area, open space, etc., were purely semantics as they all serve the same function and the opinion of the attorney was that they were synonymous as you are talking about language from 1970 and now. Further, it was recommended that the appropriate method of change for this item is through the [commission]." Pursuant to General Statutes § 8-8(b), the plaintiff appealed from the decision of the defendant to the Superior Court. The court sustained the plaintiff's appeal, holding that the decision of the defendant was illegal and not supported by the record. Specifically, the court reasoned that the notation of "recreation area" on the original subdivision plans submitted for approval in 1970 created only, if anything, a private right or restriction that cannot be enforced by the zoning enforcement officer or the defendant. Further, the court observed that the town had twice rejected offers from developers to deed the parcel to the town for recreational purposes, and therefore the parcel was never deeded or dedicated to the town as a "recreation area." The court remanded the case to the defendant with direction to reverse the ruling of the zoning enforcement officer. On the granting of certification, this appeal followed. Additional facts will be set forth as necessary. We begin by setting forth the applicable standard of review. "In reviewing the actions of a zoning board of appeals, we note that the board is endowed with liberal discretion and that its actions are subject to review by the courts only to determine whether [they were] unreasonable, arbitrary or illegal.... The burden of proof to demonstrate that the board acted improperly is upon the party seeking to overturn the board's decision.... "It is well settled that . [t]he court's function is to determine on the basis of the record whether substantial evidence has been presented to the board to support its findings.... Upon an appeal from the judgment of the trial court, we review the record to see if there is factual support for the board's decision, not for the contentions of the applicant . to determine whether the judgment was clearly erroneous or contrary to law." (Citations omitted; internal quotation marks omitted.) Wing v. Zoning Board of Appeals , 61 Conn.App. 639, 643-44, 767 A.2d 131, cert. denied, 256 Conn. 908, 772 A.2d 602 (2001). "When a zoning agency has stated its reasons for its actions, a court should not reach beyond those stated purposes to search the record for other reasons supporting the commission's decision.... Rather, the court should determine only whether the assigned grounds are reasonably supported by the record and whether they are pertinent to the considerations which the authority was required to apply under the zoning regulations." (Citations omitted; internal quotation marks omitted.) Harris v. Zoning Commission , 259 Conn. 402, 420-21, 788 A.2d 1239 (2002). A zoning enforcement officer acting on an application for a zoning permit has a purely ministerial function. See Roraback v. Planning & Zoning Commission , 32 Conn.App. 409, 412, 628 A.2d 1350, cert. denied, 227 Conn. 927, 632 A.2d 704 (1993) ; but see Reardon v. Zoning Board of Appeals , 311 Conn. 356, 364-65, 87 A.3d 1070 (2014) (enforcement of zoning regulations generally discretionary). If the application conforms to the requirements of the regulations, he has no discretion but to issue a permit. See Langer v. Planning & Zoning Commission , 163 Conn. 453, 456, 313 A.2d 44 (1972). In the present case, we agree with the trial court's conclusion that the action taken by the defendant in upholding the denial of the plaintiff's permit was illegal and unsupported by the record. The defendant can exercise only such powers as are expressly granted to it by statute. Moscowitz v. Planning & Zoning Commission , 16 Conn.App. 303, 308, 547 A.2d 569 (1988). General Statutes § 8-6(a) provides in pertinent part: "The zoning board of appeals shall have the following powers and duties: (1) [t]o 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 ." General Statutes § 8-7 provides in relevant part: "The board shall hold a public hearing on such appeal . Such board may reverse or affirm wholly or partly or may modify any order, requirement or decision appealed from and shall make such order, requirement or decision as in its opinion should be made in the premises and shall have all the powers of the officer from whom the appeal has been taken but only in accordance with the provisions of this section. Whenever a zoning board of appeals . sustains or reverses wholly or partly any order, requirement or decision appealed from, it shall state upon its records the reason for its decision ." In upholding the decision made by the zoning enforcement officer, the defendant formally stated the reasons for its decision on the record. The reason provided was that the label "recreation area" on the subdivision map precluded the plaintiff from obtaining the building permit. As the trial court aptly noted, however, "[t]he law is well established that restrictive covenants in a deed as to use of property are distinct and separate from the provisions of a zoning law and have no influence or part in the administration of a zoning law . Anniello v. Vernon Planning & Zoning Commission , Superior Court, judicial district of Tolland, Docket No. CV-93-52916-S [1995 WL 493781, *3] (August 14, 1995)." (Internal quotation marks omitted.); see also Am. Jur. 840, Zoning and Planning, § 1006 (1992). On appeal, the defendant contends that the court erred in determining that the label "recreation area" on the subdivision map created, if anything, a private right or restriction unenforceable by the zoning enforcement officer or the defendant. Instead, the defendant asserts that, because such label was required by the regulations in effect in 1970, the parcel is currently designated as a recreation area, and the zoning enforcement officer therefore has the power to deny a permit to build on the parcel. The defendant's proposition fails in at least two regards. First, the regulations did not require an open space parcel, rather, the regulations merely required the developer to allocate a parcel as open space on the subdivision plan submitted for the application. The commission could then decide whether the open space parcel should be required. See East Lyme Subdivision Regs. (Rev. to June 5, 1967), § 3.5. In this case, the commission was silent on the matter, so it cannot be assumed that the commission eventually required the parcel to remain open space. Further, the developers twice offered to deed the parcel to the town but the town denied both offers. Had the town truly wished to ensure that the parcel would remain "open space" indefinitely under the regulations, it could have accepted title to the property. Second, the defendant's argument fails because, even if the regulations actually required the commission to designate the parcel as open space before approving the subdivision application, the designation of "recreation area" did not fall within the explicit confines of the regulations. Instead, the regulations allowed the commission the discretion to mandate that a developer provide land to the town for "open space for parks and playgrounds as it may deem proper ." (Emphasis added.) East Lyme Subdivision Regs. (Rev. to June 5, 1967), § 3.5. The regulations made no mention of the commission's power to require the developer to set aside land for a "recreation area." Thus, because the commission lacked the authority to require the developer to designate a "recreation area," it follows that the zoning enforcement officer and the defendant could not deny the plaintiff a building permit for the parcel on the basis of its original "recreation area" designation on the subdivision plan. The defendant's second claim on appeal, namely, that the court erred in determining that the town was required to accept title to the property in order to effectuate the recreation area designation, also fails. The defendant's argument is based on a misguided reading of the court's decision. Although the court stated that the parcel was not deeded and perpetually dedicated to the town for recreation, the court was responding to the defendant's argument that § 1.61 of the November 22, 2013 revision of the East Lyme Zoning Regulations applied to the parcel. Nowhere in its memorandum of decision did the court state that the town was required to accept title to the parcel to effectuate the recreation area designation. On the contrary, the court's review of the defendant's decision was not based on what action the town could have taken to effectuate the recreation area designation, but rather on the illegality of the action taken by the zoning enforcement officer and the defendant in denying the plaintiff a building permit. Accordingly, the court did not err, and the defendant's second claim fails. We conclude that the court properly sustained the plaintiff's appeal and remanded the case to the defendant with direction to reverse the ruling of the zoning enforcement officer. The judgment is affirmed. In this opinion the other judges concurred. General Statutes § 47-33f(a) provides in pertinent part: "Any person claiming an interest of any kind in land may preserve and keep effective that interest by recording, during the forty-year period immediately following the effective date of the root of title of the person whose record title would otherwise be marketable, a notice in writing, duly verified by oath, setting forth the nature of the claim...." Section 24.3B of the November 22, 2013 revision of the East Lyme Zoning Regulations provides in pertinent part: "The [z]oning [e]nforcement [o]fficer, acting on behalf of the [c]ommission, shall review applications to determine conformity with the [z]oning [r]egulations.... The [z]oning [e]nforcement [o]fficer will review the site plan to ensure compliance with the [z]oning [r]egulations and shall issue a permit within 30 days of receipt if all other applicable requirements of these regulations have been met...." In its October 31, 2014 trial court brief, the defendant had argued that § 1.61 of the November 22, 2013 revision of the East Lyme Zoning Regulations applied to the parcel and restricted its use, which provides in relevant part: "Land area within a subdivision deeded as a parcel or parcels separate from Building Lots and Streets and Perpetually dedicated for Conservation and/ or Recreational purposes. The ownership and purpose of subdivision open space is specified by the Planning Commission in approving a Subdivision, and only recreational facilities, underground utility facility, or other improvements consistent with the approved purpose shall be permitted within subdivision open space."

12490353

Robert E. HEALEY v. The HAYMOND LAW FIRM, P.C., et al.

Healey v. Haymond Law Firm, P.C.

2017-06-27

AC 38599

10

20

166 A.3d 10

166

West's Atlantic Reporter, Third Series

Connecticut Appellate Court

Connecticut

2021-08-27T20:57:14.020814+00:00

Fastcase

Robert E. HEALEY v. The HAYMOND LAW FIRM, P.C., et al.

Robert E. HEALEY v. The HAYMOND LAW FIRM, P.C., et al. AC 38599 Appellate Court of Connecticut. Argued January 31, 2017 Officially released June 27, 2017 Leon M. Rosenblatt and Richard J. Padykula, West Hartford, for the appellant (named defendant). Andrew L. Houlding, for the appellee (plaintiff). Prescott, Mullins and Bear, Js.

5365

33233

MULLINS, J. The defendant, The Haymond Law Firm, P.C., appeals from the judgment of the trial court, rendered after a jury trial, awarding its former employee, the plaintiff, Robert E. Healey, damages for unpaid wages pursuant to General Statutes § 31-72. On appeal, the defendant claims that the court erred by charging the jury on the amended version of § 31-72 because the amendment took effect after this action had commenced. Therefore, the defendant argues, the court was required to charge the jury on the repealed version of that statute that had been in effect at the time the alleged injuries occurred. The defendant also claims that the court's instruction on the amended version of the statute was a clear, obvious, and indisputable error that warrants reversal under the plain error doctrine. We conclude that the defendant's claim is unreviewable because it induced the alleged instructional impropriety by affirmatively requesting that the court charge the jury on the amended version of § 31-72. We also conclude that plain error reversal is not warranted in this case. Accordingly, we affirm the judgment of the trial court. The following facts, which are not in dispute for the purposes of this appeal, and procedural history are relevant to the defendant's claim. The plaintiff worked for the defendant as a medical malpractice attorney for more than seventeen years. In 2011, the plaintiff informed John I. Haymond, the defendant's principal, that he wished to retire from practicing law full time. Consequently, the defendant and the plaintiff agreed that the plaintiff would continue to work for the defendant through 2012 on a part-time basis. In September, 2012, the defendant and the plaintiff reached another agreement that further reduced the plaintiff's workload and modified the plaintiff's compensation. In particular, the agreement provided that (1) the plaintiff would retain responsibility only for a small number of medical malpractice cases; (2) the defendant would pay the plaintiff 50 percent of the legal fees recovered in those cases; and (3) the defendant would pay the plaintiff 15 percent of any referral fees that the defendant received in cases that the plaintiff had referred to the law firm of Koskoff, Koskoff & Bieder, P.C. (Koskoff, Koskoff & Bieder). In March, 2013, the plaintiff settled two medical malpractice cases for which he had retained responsibility pursuant to the September, 2012 agreement. Subsequently, the plaintiff requested that the defendant pay him 50 percent of the legal fees it received in those settlements. The defendant refused to pay the plaintiff 50 percent of the recovered legal fees and, instead, paid him only approximately 15 percent of the fees. Around August, 2014, the plaintiff learned that one of the cases that he had referred to Koskoff, Koskoff & Bieder had been settled and that the defendant received a referral fee from Koskoff, Koskoff & Bieder for that case. The defendant never tendered any part of that referral fee to the plaintiff. Thereafter, the plaintiff brought the present action, seeking recovery of (1) his full 50 percent share of the legal fees recovered in the two medical malpractice cases that he had settled, and (2) 15 percent of the referral fee that the defendant received from the case settled by Koskoff, Koskoff & Bieder. Specifically, the plaintiff's complaint sought recovery principally on the basis of a statutory claim for unpaid wages made pursuant to § 31-72 and a breach of contract claim. Regarding the statutory claim for unpaid wages, the governing statute, § 31-72, was amended while this action was pending. On June 19, 2013, when this action was initiated, the version of the statute that was in effect at that time provided in relevant part: "When any employer [unlawfully] fails to pay an employee wages . such employee . may recover, in a civil action, twice the full amount of such wages ." (Emphasis added.) General Statutes (Rev. to 2013) § 31-72. Our Supreme Court also had provided the following interpretive gloss relating to double damages under that version of § 31-72 : "The statute provides for a discretionary award of double damages . to employees who are successful in actions against their employers for wages due.... Although § 31-72 does not set forth a standard by which to determine whether double damages should be awarded in particular cases, it is well established . that it is appropriate for a plaintiff to recover . double damages . only when the trial court has found that the defendant acted with bad faith, arbitrariness or unreasonableness ." (Citation omitted; emphasis added; internal quotation marks omitted.) Ravetto v. Triton Thalassic Technologies, Inc. , 285 Conn. 716, 724, 941 A.2d 309 (2008). Also, in cases in which a discretionary award of double damages was sought under that version of § 31-72, the burden of proving an employer's bad faith, arbitrariness, or unreasonableness was on the plaintiff. See Somers v. LeVasseur , 230 Conn. 560, 568, 645 A.2d 993 (1994) ("the traditional principle [is] that in a civil case [t]he general burden of proof rests upon the plaintiff" [internal quotation marks omitted] ). In June, 2015, approximately two years after this action was commenced and four months before trial began, § 31-72 was amended by No. 15-86, § 2, of the 2015 Public Acts. The amended version took effect on October 1, 2015, several weeks before trial began. It provides in relevant part: "When any employer [unlawfully] fails to pay an employee wages . such employee . shall recover, in a civil action, (1) twice the full amount of such wages . or (2) if the employer establishes that the employer had a good faith belief that the underpayment of wages was in compliance with law, the full amount of such wages . with costs and such reasonable attorney's fees as may be allowed by the court...." (Emphasis added.) General Statutes § 31-72. On October 20, 2015, the plaintiff submitted a preliminary request to charge, proposing that the court instruct the jury using the language in the amended version of § 31-72. After quoting the relevant part of the amended version of § 31-72 in his proposed instructions, the plaintiff requested the following specific instructions: (1) "If you do find in favor of the plaintiff-that is, that the defendant unlawfully withheld his pay-you must then determine whether the [defendant] had a 'good faith belief that the underpayment of wages was in compliance with law.' It is the defendant's burden to prove to you that the defendant had such a good faith belief"; and (2) "If you find that the defendant failed to prove that it had such a good faith belief , then you must award the plaintiff twice the amount of unpaid wages . [and the plaintiff] is entitled to collect his attorney's fees." (Emphasis added.) On October 26, 2015, the plaintiff filed a memorandum of law supplementing his preliminary request to charge. In that memorandum, the plaintiff argued that the court should conclude that the amended version of § 31-72 applied retroactively and, therefore, use that version in its instructions. The defendant did not file any response to the plaintiff's preliminary request to charge and accompanying memorandum of law. On October 27, 2015, the defendant filed its own preliminary request to charge, which also quoted the amended version of § 31-72. In particular, the defendant asked the court to give the following instruction: "I will summarize the law for you.... [Section] 31-72 provides criteria for an employee to collect unpaid wages. Section 31-72 states, in pertinent part [that] . [w]hen any employer [unlawfully] fails to pay an employee wages . such employee . shall recover, in a civil action, (1) twice the full amount of such wages, with costs and such reasonable attorney's fees as may be allowed by the court, or (2) if the employer establishes that the employer had a good faith belief that the underpayment of wages was in compliance with law, the full amount of such wages or compensation, with costs and such reasonable attorney's fees as may be allowed by the court. " (Emphasis altered; internal quotation marks omitted.) On October 28, 2015, the second day of evidence, the plaintiff filed two additional requests. The first was a request for jury interrogatories. That request proposed interrogatories tracking the language of the amended version of § 31-72, including an interrogatory asking the jury if it "[found] that the defendant failed to prove that it acted in good faith in failing to pay the plaintiff in full the compensation he had earned." (Emphasis added.) Although the defendant did not file a written objection to the proposed interrogatories, the defendant's counsel subsequently made the following oral objection to the aforementioned interrogatory: "[It is] unjustifiably prejudicial. I would suggest that it say, Do you find that the defendant had a good faith belief that it paid wages in compliance with the law, yes or no?" The second request, filed by the plaintiff on October 28, 2015, was a revised request to charge. That request, like the plaintiff's preliminary request to charge, proposed that the court instruct the jury according to the amended version of § 31-72. The defendant did not file a written objection to the revised request to charge. Also on October 28, 2015, the court heard argument from the parties regarding the proposed jury instructions. The plaintiff's counsel began argument by stating: "[T]he defendant has agreed that the latest version of the § 31-72 statute, as amended effective October 1, 2015, is the statute that is in effect now and we don't have to be concerned about the question of retroactivity." It appears that the plaintiff's counsel concluded that the defendant had "agreed" that the amended version controlled because the defendant had quoted verbatim that version of the statute in its own request to charge. Thus, relying on the amended statute, the plaintiff's counsel requested the court to instruct the jury "that it's the employer's burden to prove that it acted in good faith in failing to pay wages ." (Emphasis added.) The defendant's counsel did not object to that requested instruction. Rather, in responding to the argument by the plaintiff's counsel, the defendant's counsel stated that "[t]he plaintiff's attorney is correct that . the statute has been amended going forward. What [the plaintiff's counsel] has not done . though, is articulate that the court still maintains the discretion, under the new wording of the [amended] statute, whether or not to allow attorney's fees if there is a . good faith belief that wages were paid." That is, the defendant's counsel apparently was contending that the amended version is ambiguous as to whether an award of attorney's fees for an employer's withholding of wages is mandatory or discretionary. In so arguing, the defendant was challenging the plaintiff's assertion that the amended version requires an award of attorney's fees where an employer unlawfully fails to pay an employee wages, not his assertion that the amended version applied retroactively and that the employer now was required to prove good faith. Moreover, later in that hearing, the following exchange occurred between the defendant's counsel and the court regarding the interpretation of the amended version of § 31-72 : "The Court: The burden of [proving] good faith, right. That is the defendant's burden. Are we clear about that?" "[The Defendant's Counsel]: We are clear about that . "The Court: Okay. "[The Defendant's Counsel]: The language, I will concede . is very clear with respect . to that ." (Emphasis added.) After the conclusion of evidence on October 28, 2015, the court reviewed the substance of its anticipated charge with counsel. In particular, the court asked the defendant's counsel the following question: "[W]ith respect to the wages, I am going to charge what's in the statute. Is there any objection to that?" The defendant's counsel replied, "No." On October 29, 2015, the court charged the jury. The charge contained the following relevant provisions. First, the court recited the amended version of § 31-72. Second, the court instructed that "[i]f you do find in favor of the plaintiff [with respect to the claim made under § 31-72 ], that is, that the defendant unlawfully withheld his pay, you must then determine whether the [defendant] had a good faith belief that the underpayment of wages was in compliance with law. Please be clear that with respect to this element and this element alone, the burden shifts to the defendant to prove to you that the defendant had such a good faith belief . If you find that the defendant had such a good faith belief, then the defendant is liable to the plaintiff only for the full amount of the unpaid wages. If you find that the defendant failed to prove that it had such a good faith belief , then you must award plaintiff twice the amount of unpaid wages. In addition, if the plaintiff prevails on this count, then he is entitled to collect his attorney's fees, although you will not make any determination with respect to attorney's fees. The amount of attorney's fees shall be determined by the court." (Emphasis added.) When the court asked if counsel had any exceptions to the charge, the defendant's counsel replied: "With respect to the request to charge, we would reclaim our objection to the charge that the General Assembly intended that attorney's fees are automatically recoverable under § 31-72 if a jury finds that a claim for unpaid wages has been sustained. Also, we would object to the inclusion in the charge of General Statutes § 31-71f to the specific claims in this case because the authority has applied that subsection of the law in cases that are significantly different than claimed here." (Footnote added.) The defendant did not raise any other objections to the charge. At no point during the trial court proceedings did the defendant ever argue that the court should instruct on the repealed version of § 31-72, which placed the burden of proving bad faith on the employee, rather than that statute's amended version. Furthermore, the defendant conceded that the amended version of § 31-72 places the burden of proving good faith on the employer. The jury returned a verdict for the plaintiff on all five counts asserted in his complaint and awarded him $262,930 in damages. In addition, the court awarded the plaintiff $114,742 in attorney's fees and interest, resulting in a total judgment for the plaintiff in the amount of $377,672. This appeal followed. On appeal, the defendant claims that the trial court's jury instructions were improper because they retroactively applied the amended version of § 31-72 that was enacted after this action was commenced. Specifically, the defendant argues that the court improperly instructed the jury that, pursuant to the amended version of § 31-72, it must award the plaintiff double damages for unlawfully withheld wages unless the defendant establishes that it withheld the wages in good faith. According to the defendant, the court should have instructed the jury on the repealed version of § 31-72, pursuant to which the plaintiff may recover double damages if he proves that the defendant withheld the wages in bad faith. The plaintiff responds that the defendant failed to preserve this claim for appeal and also that it "induced by [its] own actions the alleged instructional defect that it now challenges." (Internal quotation marks omitted.) We agree with the plaintiff that the defendant induced the alleged instructional impropriety and, thus, decline to review the defendant's claim. We begin with the relevant legal principles. "This court routinely has held that it will not afford review of claims of error when they have been induced. [T]he term induced error, or invited error, has been defined as [a]n error that a party cannot complain of on appeal because the party, through conduct, encouraged or prompted the trial court to make the erroneous ruling.... It is well established that a party who induces an error cannot be heard to later complain about that error.... This principle bars appellate review of induced nonconstitutional and induced constitutional error.... The invited error doctrine rests on principles of fairness, both to the trial court and to the opposing party." (Emphasis added; footnote omitted; internal quotation marks omitted.) Gorelick v. Montanaro , 119 Conn.App. 785, 796-97, 990 A.2d 371 (2010). "The rationale for declining to review jury instruction claims when the instructional error was induced . [is that] . allow[ing] [a] defendant to seek reversal [after] . his trial strategy has failed would amount to allowing him to . ambush the [opposing party and the trial court] with that claim on appeal." (Internal quotation marks omitted.) State v. Kitchens , 299 Conn. 447, 470, 10 A.3d 942 (2011). "[Our appellate courts] ha[ve] found [claims of] induced error undeserving of appellate review in the context of a jury instruction claim when the [appealing party] has affirmatively requested the challenged jury instruction ." (Internal quotation marks omitted.) State v. Lindsay , 143 Conn.App. 160, 183, 66 A.3d 944, cert. denied, 310 Conn. 910, 76 A.3d 626 (2013). See, e.g., State v. Cruz , 269 Conn. 97, 106-107, 848 A.2d 445 (2004) (declining to review claim of induced error where "challenged jury instruction repeated the exact language that the defendant had requested" [emphasis omitted] ); Suarez v. Dickmont Plastics Corp. , 242 Conn. 255, 265-67, 698 A.2d 838 (1997) ("[because] the trial court instruct[ed] on both standards in accordance with the defendant's own request to charge submitted to the trial court . [t]he defendant cannot now complain when the trial court's jury instructions were based largely on [its] own proposed draft jury instructions"). Our review of the record reveals that the defendant induced the alleged instructional impropriety by affirmatively requesting the language it now challenges. The defendant filed a written request to charge that cited and quoted the amended version of § 31-72. In particular, the request quoted the provision of the amended version that imposes liability for double damages on an employer who fails to prove that it withheld wages in good faith. Specifically, the defendant requested the following instruction: "When any employer [unlawfully] fails to pay an employee wages . such employee . shall recover, in a civil action, (1) twice the full amount of such wages . or (2) if the employer establishes that the employer had a good faith belief that the underpayment of wages was [lawful], the full amount of such wages or compensation ." (Emphasis altered; internal quotation marks omitted.) In accordance with the defendant's written request, the court instructed the jury on the amended version of § 31-72. It charged the jury, in relevant part: "If you find that the defendant failed to prove that it had . a good faith belief [in withholding the plaintiff's wages], then you must award the plaintiff twice the amount of unpaid wages." (Emphasis added.) Thus, the defendant received an instruction consistent with the language that it had requested. Accordingly, we decline to review the defendant's claim of instructional impropriety because the defendant induced the alleged error of which it now complains. The defendant also seeks reversal pursuant to the plain error doctrine. Specifically, it argues that the trial court's alleged error in determining that the amended version of § 31-72 applied retroactively was plain error. The plaintiff responds that "[p]lain error review is not appropriate in this case" because the defendant induced the error of which it now complains. He further argues that if we reach the merits of the defendant's plain error claim, the trial court did not err in retroactively applying the amended version of § 31-72. In particular, the plaintiff argues that although there is no authority addressing whether the amended version of § 31-72 applies retroactively, retroactive application is consistent with the general legal principles governing the retroactive applicability of statutes. We conclude that, to the extent that the plain error doctrine applies to claims of induced error, the defendant's alleged instructional impropriety does not rise to the level of plain error because it has failed to demonstrate that such error resulted in manifest injustice. We first review the relevant legal principles governing the plain error doctrine. Notwithstanding the apparent uncertainty regarding whether this court can evaluate claims of induced error under the plain error doctrine, this court recently considered whether a claim of induced instructional error constituted reversible plain error. See State v. Schuler , 157 Conn.App. 757, 774, 776, 118 A.3d 91 ("[o]ur review of the record leads us to the conclusion that the claimed error in the jury instruction, [which the defendant conceded was induced] although potentially ambiguous in its meaning, fails to rise to the level of plain error"), cert. denied, 318 Conn. 903, 122 A.3d 633 (2015) ; cf. State v. McClain , 324 Conn. 782, 808, 155 A.3d 209 (2017) ("[w]e . conclude that a Kitchens waiver [whereby a criminal defendant implicitly waives a claim of instructional error] does not preclude appellate relief under the plain error doctrine"). Accordingly, we address the defendant's claim of plain error. The following principles guide our application of the plain error doctrine to the defendant's claim. "[T]he plain error doctrine . is not . a rule of reviewability. It is a rule of reversibility. That is, it is a doctrine that this court invokes in order to rectify a trial court ruling that, although either not properly preserved or never raised at all in the trial court, nonetheless requires reversal of the trial court's judgment, for reasons of policy.... In addition, the plain error doctrine 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.... "[Our Supreme Court] recently clarified the [two-pronged] framework under which we review claims of plain error. [Under the] [f]irst [prong], we must determine whether the trial court in fact committed an error and, if it did, whether that error was indeed plain in the sense that it is patent [or] readily discernable on the face of a factually adequate record, [and] also . obvious in the sense of not debatable.... [T]his inquiry entails a relatively high standard, under which it is not enough for the defendant simply to demonstrate that his position is correct. Rather, the party seeking plain error review must demonstrate that the claimed impropriety was so clear, obvious and indisputable as to warrant the extraordinary remedy of reversal." (Internal quotation marks omitted.) State v. Darryl W. , 303 Conn. 353, 371-73, 33 A.3d 239 (2012). "[U]nder the second prong of the analysis we must determine whether the consequences of the error are so grievous as to be fundamentally unfair or manifestly unjust.... Only if both prongs of the analysis are satisfied can the appealing party obtain relief." (Emphasis added; internal quotation marks omitted.) In re Jah'za G. , 141 Conn.App. 15, 22, 60 A.3d 392, cert. denied, 308 Conn. 926, 64 A.3d 329 (2013). After reviewing the record, we reject the defendant's request to reverse the trial court's judgment pursuant to the plain error doctrine. Even if we assume, without deciding, that the court's retroactive application of the amended statute was an error satisfying the first prong of the plain error doctrine, we conclude that such error fails to satisfy the second plain error prong because it did not result in manifest injustice. See, e.g., State v. Sanchez , 308 Conn. 64, 84, 60 A.3d 271 (2013) ("assuming that it is not debatable that [trial court improperly failed to give a Ledbetter instruction] . the omitted jury instruction did not result in manifest injustice"); 98 Lords Highway, LLC v. One Hundred Lords Highway, LLC , 138 Conn.App. 776, 804, 54 A.3d 232 (2012) ("assum[ing] that the [court's] failure to require [the counterclaim plaintiffs to amend their pleadings] was an error in satisfaction of the first prong of the plain error test, we would be unable to conclude that the results of such a claimed error rose to the level of fundamental unfairness in satisfaction of the second prong of the test"); State v. Edwin M. , 124 Conn.App. 707, 716, 6 A.3d 124 (2010) ("[e]ven if we assume, without deciding, that it was improper for the trial court to allow . an expert opinion in the area of sexual abuse, we do not believe that [t]his testimony . work[ed] a serious and manifest injustice on the [defendant]" [citation omitted; internal quotation marks omitted] ), cert. denied, 299 Conn. 922, 11 A.3d 151 (2011). Turning then to the second prong, in "address[ing] . claim[s] of plain error despite a finding of waiver or induced error . [our Supreme Court] has relied in part on the defendant's action as a basis for concluding that the defendant had not demonstrated the manifest injustice or prejudice required to prevail under the plain error doctrine." State v. Darryl W. , supra, 303 Conn. at 372 n.17, 33 A.3d 239 ; see also State v. Alston , 272 Conn. 432, 456, 862 A.2d 817 (2005) ("we conclude that the defendant is not entitled to a new trial because he induced the trial court to take the very actions he now criticizes as erroneous, and he has failed to demonstrate any prejudice resulting therefrom"). Indeed, in a case in which we applied the plain error doctrine to a claim of induced error, this court recently opined: "Regardless of whether the [alleged impropriety satisfies the first plain error prong], no manifest injustice results from our refusal to entertain an argument fashioned anew for appellate purposes, particularly where the freshly minted argument contradicts the position that the plaintiff advanced in the trial court." Gladstein v. Goldfield , supra, 163 Conn.App. at 586-87, 137 A.3d 60. As previously set forth in considerable detail, the alleged instructional error was induced by the defendant's submission of a request to charge that quoted and relied on the amended version of § 31-72. Furthermore, the record reveals that on several occasions throughout the trial, the defendant acquiesced to the court instructing the jury on the amended version. In light of the extent to which the defendant's own actions contributed to the claimed error, we conclude that it has failed to demonstrate that the consequences of the claimed error were manifestly unjust. Accordingly, we decline to afford the defendant relief under the plain error doctrine. The judgment is affirmed. In this opinion the other judges concurred. John I. Haymond also was named as a defendant in this action but the plaintiff withdrew the claims against Haymond in his individual capacity prior to trial. Accordingly, we refer to The Haymond Law Firm, P.C., as the defendant throughout this opinion. The plaintiff also sought recovery on four other claims alleging breach of contract, invasion of privacy, money withheld and interest pursuant to General Statutes § 37-3a, and violations of the Connecticut Unfair Trade Practices Act, General Statutes § 42-110a et seq. The jury found for the plaintiff on all of those claims, and the defendant has not challenged the judgment with respect to those claims in this appeal. The defendant's failure to challenge the judgment with respect to those claims does not implicate mootness because those claims are not independent bases supporting the jury's award of double damages. We note that the defendant's invocation of the plain error doctrine occurs only in a footnote in its brief. We previously have indicated that this is not the preferred method by which a party should present claims to this court. See, e.g., State v. Reddick, 15 Conn.App. 342, 343, 545 A.2d 1109 ("we refuse to review any claim or any alternative claim to a properly briefed claim which has been presented and argued by way of footnotes"), cert. denied, 209 Conn. 819, 551 A.2d 758 (1988). Nevertheless, we choose to address the defendant's plain error argument in this case. See State v. Salz, 26 Conn.App. 448, 457 n.4, 602 A.2d 594 (1992) ("we [examine] this claim even though the defendant requested . plain error review in a footnote"), aff'd, 226 Conn. 20, 627 A.2d 862 (1993). See footnote 2 of this opinion. The plaintiff's request to charge asked that the court instruct the jury that "[i]n making [its] determination of whether all wages were paid to the plaintiff, [it] . take into account the provisions of [§] 31-71f." General Statutes § 31-71f requires an employer to "(1) [a]dvise [its] employees in writing, at the time of hiring, of the rate of remuneration, hours of employment and wage payment schedules, and (2) make available to [its] employees, either in writing or through a posted notice maintained in a place accessible to [its] employees, any employment practices and policies or change therein with regard to wages, vacation pay, sick leave, health and welfare benefits and comparable matters." An employer's failure to comply with the requirements of § 31-71f is actionable under § 31-72. See General Statutes § 31-72 ("[w]hen any employer fails to pay an employee wages in accordance with the provisions of sections 31-71a to 31-71i, inclusive . such employee . shall recover, in a civil action, (1) twice the full amount of such wages, with costs and such reasonable attorney's fees as may be allowed by the court, or (2) if the employer establishes that the employer had a good faith belief that the underpayment of wages was in compliance with law, the full amount of such wages or compensation, with costs and such reasonable attorney's fees as may be allowed by the court"). The term "induced error" apparently has become shorthand for the doctrine pursuant to which we decline to review a party's claim of error if the party "induced the action of the [trial] court from which she now complains." Gladstein v. Goldfield, 163 Conn.App. 579, 585, 137 A.3d 60, appeal dismissed, 325 Conn. 418, 159 A.3d 661 (2017). It may be misleading, however, to refer to this doctrine simply as "induced error." Failing to use the qualifiers claimed or alleged to describe the error might give the impression that this court is determining that the claimed error is in fact error. Given that the doctrine implicates only a claim's reviewability, our jurisprudence is clear that the doctrine does not require us to address the merits of the claim. See, e.g., id., at 585, 137 A.3d 60 n.3 ("Because we conclude that the plaintiff's claim is not reviewable, we need not determine whether the court's interpretation of the term 'mistake' in [General Statutes] § 52-109 was proper. We leave consideration of that issue to the day when such claim properly may come before us."). Thus, in applying the doctrine in this case, we do not mean to suggest that the claimed or alleged error actually is error. Id. Our Supreme Court has "recognize[d] that there appears to be some tension in our appellate case law as to whether reversal on the basis of plain error could be available in cases where the alleged error is causally connected to the defendant's own behavior. In [some cases, the Supreme Court] held that where the defendant, personally and through counsel, had expressly waived his right to trial, reversal for plain error was not appropriate because if there has been a valid waiver, there is no error for [the reviewing court] to correct.... In other cases, [it] has addressed a claim of plain error despite a finding of waiver or induced error, but nonetheless has relied in part on the defendant's action as a basis for concluding that the defendant had not demonstrated the manifest injustice or prejudice required to prevail under the plain error doctrine." (Citations omitted; internal quotation marks omitted.) State v. Darryl W., 303 Conn. 353, 371-72 n.17, 33 A.3d 239 (2012) ; see also State v. Coward, 292 Conn. 296, 305-13, 972 A.2d 691 (2009) (applying plain error doctrine to instructional impropriety that defendant conceded was induced by his own conduct); State v. Maskiell, 100 Conn.App. 507, 520, 918 A.2d 293 ("[t]his court has evaluated under the plain error doctrine claims of error that pertained to induced error . and has explicitly rejected the . contention [that the plain error doctrine is inapplicable to claims of induced error]" [citations omitted] ), cert. denied, 282 Conn. 922, 925 A.2d 1104 (2007).

12487859

Jan Jodlowski v. Stanley Works

Jodlowski v. Stanley Works

2016-10-18

AC 38261

741

747

147 A.3d 741

147

West's Atlantic Reporter, Third Series

Connecticut Appellate Court

Connecticut

2021-08-27T20:57:14.001454+00:00

Fastcase

Jan Jodlowski v. Stanley Works

Jan Jodlowski v. Stanley Works AC 38261 Appellate Court of Connecticut. Argued September 14, 2016 Officially released October 18, 2016 Jan Jodlowski, self-represented, the appellant (plaintiff). Erik S. Bartlett, for the appellee (defendant). Lavine, Keller and Flynn, Js.

2382

15470

LAVINE, J. The self-represented plaintiff, Jan Jodlowski, appeals from the decision of the Workers' Compensation Review Board (board) affirming the decision of the Workers' Compensation Commissioner (commissioner), who denied the plaintiff's request for additional treatment. On appeal the plaintiff claims that it was improper for the commissioner (1) to deny his request for lumbar fusion surgery, (2) to fail to consider the conflicting opinions of medical experts, and (3) to decline to order a commissioner's medical examination, pursuant to General Statutes § 31-294f (a). We affirm the decision of the board. Pursuant to a formal hearing held on July 23, 2014, the commissioner found the following facts in his finding and dismissal dated December 15, 2014. The plaintiff sustained compensable injuries to his neck, back, shoulder, leg and hand during the course of his employment with the defendant, Stanley Black and Decker. In his finding and award dated January 7, 2011, the commissioner found that the plaintiff had sustained injuries to his right knee and left shoulder, but denied the plaintiff's claim for a psychiatric injury and total disability benefits. In addition, the commissioner found that the plaintiff's pain management treatment with Jonathan Kost, medical director of the pain treatment center at Hartford Hospital, was reasonable and necessary and ordered the defendant to authorize treatment with Kost. The plaintiff treated with Kost from October, 2006, until the formal hearing. Kost's medical records indicate that the plaintiff continued to complain of pain in multiple parts of his body. On December 14, 2012, to address the plaintiff's continued complaints of pain, Kost discussed with the plaintiff possible treatment options, including a spinal cord stimulator and a surgical consult. Kost referred the plaintiff to Andrew Wakefield, a neurosurgeon, for a neurosurgical consult, which was conducted on September 19, 2013. Wakefield and his physician assistant, Sean T. Brennan, noted in a report that the plaintiff was not a surgical candidate and that he was unable to find any objective evidence to explain the level of the plaintiff's complaints. Kost recommended that the plaintiff undergo an electromyography nerve conduction test to determine whether he was a candidate for a spinal cord stimulator. The test was conducted on February 20, 2014; the results of the test were normal. At the request of the defendant, the plaintiff was examined by Jerrold Kaplan, a physiatrist. Kaplan opined that the plaintiff's pain management was not curative, and he did not recommend a spinal cord stimulator for the plaintiff. He instead recommended that the plaintiff undergo the comprehensive pain management program at the Rosomoff Center in Florida. On April 18, 2014, Kost agreed with Kaplan that the plaintiff was not a candidate for a spinal cord stimulator and that the plaintiff should undergo treatment at the Rosomoff Center. The plaintiff referred himself to Joseph Aferzon, a neurosurgeon, who examined him on April 30, 2014. Aferzon opined that the plaintiff should undergo a discogram and spinal fusion at the L5-S1, and possibly L4-5, level. On June 16, 2014, Kost recommended that the plaintiff delay treatment at Rosomoff Center pending a discogram and spinal fusion. At the formal hearing, the plaintiff contended that, on the basis of the opinions and recommendations of Kost and Aferzon, he had sustained his burden of proof regarding his need for medical treatment, including ongoing pain management, a discogram, and lumbar fusion. The defendant argued, on the basis of the opinions of Wakefield and Kaplan, that the plaintiff had failed to sustain his burden of proof that he is entitled to ongoing medical treatment, including pain management, a discogram, and lumbar fusion. The commissioner found on the basis of the evidence produced that Wakefield's and Kaplan's opinions were more persuasive than those of Kost and Aferzon regarding the plaintiff's need for a spinal stimulator and lumbar spine surgery. He also found Kaplan's recommendation that the plaintiff undergo treatment at the Rosomoff Center to be more persuasive than Kost's proposed treatment plan. Moreover, the commissioner found that although Kost's pain management treatment might or might not be curative, it enabled the plaintiff to function and was reasonable and necessary. Therefore, the commissioner denied the plaintiff's request for a spinal cord stimulator and for lumbar fusion surgery, and dismissed those claims. The commissioner authorized the plaintiff's claim that he undergo treatment at the Rosomoff Center. The commissioner ordered the defendant to be responsible for all reasonable and necessary costs associated with the plaintiff's need for ongoing pain management with Kost. Thereafter, the plaintiff filed a petition for review by the board. In his appeal, the plaintiff stated that he saw other physicians to whom he was referred by his primary care physician due to what he claimed were inconsistent "results" mong the opinions of Wakefield, Kaplan, and Kost. The board issued its opinion on August 12, 2015. It was not persuaded by the plaintiff's arguments that the commissioner's decision was legally erroneous. The board concluded, essentially, that the plaintiff's claims constituted a dispute between physicians as to the optimal manner in which to treat the plaintiff's complaints of pain, i.e., the plaintiff and the defendant each presented differing treatment alternatives to the commissioner. The commissioner found the opinions of the defendant's experts to be more persuasive. As an appellate panel, the board stated that it was not permitted to second-guess the commissioner. In addition, the board disagreed with the plaintiff that the commissioner was obligated to order a commissioner's examination of the plaintiff under § 31-294f. The board, therefore, affirmed the commissioner's finding and dismissal. The plaintiff appealed to this court, claiming that the decision of the board should be reversed because the commissioner did not grant his request for a spinal cord stimulator and lumbar fusion surgery. He also claims that it was error for the commissioner not to order a commissioner's examination to resolve the dispute between the conflicting medical opinions as to the need for lumbar fusion surgery. Before addressing the plaintiff's claims, we set forth the applicable standard of review. "A party aggrieved by a commissioner's decision to grant or deny an award may appeal to the board pursuant to General Statutes § 31-301.... The appropriate standard applicable to the board when reviewing a decision of a commissioner is well established. [T]he review [board's] hearing of an appeal from the commissioner is not a de novo hearing of the facts . [I]t is oblig[ated] to hear the appeal on the record and not retry the facts . "Similarly, on appeal to this court, [o]ur role is to determine whether the review [board's] decision results from an incorrect application of the law to the subordinate facts or from an inference illegally or unreasonably drawn from them . [Therefore, we ask] whether the commissioner's conclusion can be sustained by the underlying facts." (Citations omitted; internal quotation marks omitted.) Estate of Haburey v. Winchester , 150 Conn.App. 699, 713, 92 A.3d 265, cert. denied, 312 Conn. 922, 94 A.3d 1201 (2014). "The [commissioner] alone is charged with the duty of initially selecting the inference [that] seems most reasonable and his choice, if otherwise sustainable, may not be disturbed by a reviewing court." (Internal quotation marks omitted.) Id., 714. It is well within the authority of the commissioner "to choose which evidence he found persuasive and which evidence he found unpersuasive, and adjudicate the claim accordingly. As the fact finder, the commissioner may reject or accept evidence . It is not the province of this court to second-guess the commissioner's factual determinations. [T]he trier of fact-the commissioner-was free to determine the weight to be afforded to [the] evidence . This court, like the board, is precluded from substituting its judgment of that of the commissioner with respect to factual determinations." (Citations omitted; internal quotation marks omitted.) Id., 717. We thoroughly have reviewed the record and the decisions of the commissioner and the board. We agree with the board that it was bound to accept the commissioner's decision as to the medical evidence he found more persuasive. The medical opinions provided by Wakefield and Kaplan are probative evidence that lumbar fusion surgery was not recommended for the plaintiff. We therefore conclude that the board properly affirmed the commissioner's finding and dismissal with respect to treatment of the plaintiff's lumbar spine. We also agree with the board that § 31-294f does not mandate that the commissioner order a commissioner's examination when conflicting medical evidence is presented to the commissioner. The plaintiff's claim requires us to construe the statute. Statutory construction raises questions of law over which we exercise plenary review. Cruz v. Montanez , 294 Conn. 357, 367, 984 A.2d 705 (2009). "When construing a statute, [o]ur fundamental objective is to ascertain and give effect to the apparent intent of the legislature . In other words, we seek to determine, in a reasoned manner, the meaning of the statutory language as applied to the facts of [the] case, including the question of whether the language actually does apply . In seeking to determine that meaning, General Statutes § 1-2z directs us first to consider the text of the statute itself and its relationship to other statutes. If, after examining such text and considering such relationship, the meaning of such text is plain and unambiguous and does not yield absurd or unworkable results, extratextual evidence of the meaning of the statute shall not be considered." (Internal quotation marks omitted.) Kasica v. Columbia , 309 Conn. 85, 93, 70 A.3d 1 (2013). "[A] court must construe a statute as written . Courts may not by construction supply omissions . or add exceptions merely because it appears that good reasons exist for adding them . The intent of the legislature, as this court has repeatedly observed, is to be found not in what the legislature meant to say, but in the meaning of what it did say . It is axiomatic that the court itself cannot rewrite a statute to accomplish a particular result. That is the function of the legislature." (Internal quotation marks omitted.) Viera v. Cohen , 283 Conn. 412, 431-32, 927 A.2d 843 (2007). The salient language of § 31-294f (a) is found in its first sentence: "An injured employee shall submit himself to examination by a reputable practicing physician or surgeon, at any time while claiming or receiving compensation, upon the reasonable request of the employer or at the direction of the commissioner ." The statute, therefore, directs an individual seeking workers' compensation benefits to submit to an examination at the request of the employer or at the direction of the commissioner. The statute further defines the circumstances under which such an examination is to take place and the consequences of a claimant's failure to comply. See footnote 7 of this opinion. The statute does not require the commissioner sua sponte to order a commissioner's examination to resolve conflicting evidence, although there is nothing in the statute to prohibit the commissioner from doing so. Because the commissioner in the present case was under no statutory duty to order a commissioner's examination, the plaintiff's claim to the contrary fails. The decision of the Workers' Compensation Review Board is affirmed. In this opinion the other judges concurred. The record does not disclose the relation between Stanley Works, as the case is captioned, and Stanley Black and Decker. We presume the discrepancy is the result of a scrivener's error. The plaintiff was injured on November 8, 2004, when an upright tool box tipped over and came in contact with his torso and slid down his chest, abdomen, and legs. The plaintiff strained himself when setting the tool box upright. Spinal cord stimulation delivers mild electrical impulses to the spinal cord that interrupt pain signals to the brain, replacing them with a tingling sensation. See University of California San Francisco Medical Center, Spinal Cord Treatments, Spinal Cord Stimulation, available at https://www.ucsfhealth.org/treatments/spinal cord stimulation / (last visited October 4, 2016). A discogram is a test used to evaluate back pain. The test may help a physician determine if an abnormal disk in the spine is causing back pain. Mayo Clinic, Tests and Procedures, Discogram, available at http://www.mayoclinic.org/tests-procedures/discogram /basics/definition/prc-20013848 (last visited October 4, 2016). Spinal fusion is surgery that permanently connects two or more vertebrae in the spine, eliminating motion between them. Mayo Clinic, Tests and Procedures, Spinal Fusion, available at http://www.mayoclinic.org/tests-procedures/spinal-fusion /home/ovc-20155554 (last visited October 4, 2016). Although it is not in the record before the board, the defendant indicates in its brief that the plaintiff has undergone a lumbar spinal fusion during the pendency of the present litigation. The plaintiff does not dispute the defendant's representation. On appeal to the board, the plaintiff sought to submit as additional evidence regarding the results of a magnetic resonance image and the medical notes supporting lumbar surgery that were authored by Aferzon and Jeffrey Bash, an orthopedic surgeon. The defendant objected to the admission of the additional evidence pursuant to Diaz v. Pineda , 117 Conn.App. 619, 980 A.2d 347 (2009). The board sustained the defendant's objection. On appeal here, the plaintiff does not claim that the board improperly denied his request to present additional evidence. General Statutes § 31-294f (a) provides: "An injured employee shall submit himself to examination by a reputable practicing physician or surgeon, at any time while claiming or receiving compensation, upon the reasonable request of the employer or at the direction of the commissioner. The examination shall be performed to determine the nature of the injury and the incapacity resulting from the injury. The physician or surgeon shall be selected by the employer from an approved list of physicians and surgeons prepared by the chairman of the Workers' Compensation Commission and shall be paid by the employer. At any examination requested by the employer or directed by the commissioner under this section, the injured employee shall be allowed to have in attendance any reputable practicing physician or surgeon that the employee obtains and pays for himself. The employee shall submit to all other physical examinations as required by this chapter. The refusal of an injured employee to submit himself to a reasonable examination under this section shall suspend his right to compensation during such refusal."

12499119

Michael S. BRACKEN, Jr. v. TOWN OF WINDSOR LOCKS

Bracken v. Town of Windsor Locks

2018-06-05

AC 39680

125

137

190 A.3d 125

190

West's Atlantic Reporter, Third Series

Connecticut Appellate Court

Connecticut

2021-08-27T20:57:34.263660+00:00

Fastcase

Michael S. BRACKEN, Jr. v. TOWN OF WINDSOR LOCKS

Michael S. BRACKEN, Jr. v. TOWN OF WINDSOR LOCKS AC 39680 Appellate Court of Connecticut. Argued February 14, 2018 Officially released June 5, 2018 Gregg D. Adler, with whom, on the brief, was Zachary L. Rubin, for the appellant (plaintiff). Kevin M. Deneen, for the appellee (defendant). Lavine, Alvord and Prescott, Js.

6209

38565

ALVORD, J. In this action for breach of a settlement agreement, the plaintiff, Michael S. Bracken, Jr., appeals from the judgment of the trial court rendered in favor of the defendant, the town of Windsor Locks. On appeal, the plaintiff claims that the court erroneously concluded that the plaintiff's action was barred by (1) the six year statute of limitations set forth in General Statutes § 52-576, and (2) the doctrine of laches. We conclude that the central factual finding underlying the court's conclusion that the defendant's special defenses barred the action was clearly erroneous. We further conclude that the defendant failed to meet its burden of proving that its special defenses barred the plaintiff's action. Accordingly, we reverse the judgment of the trial court and remand this case for further proceedings. The following facts, which were found by the trial court in its memorandum of decision or are otherwise undisputed, and procedural history are relevant to this appeal. At all times relevant, the defendant participated in the Connecticut Municipal Employee Retirement System (CMERS) for police officers employed by the defendant. The plaintiff was formerly employed by the defendant as a supernumerary police officer, until his employment was terminated in 1987. In August, 1990, the plaintiff filed an action in federal court against the defendant. While that litigation was pending, the plaintiff returned to employment with the defendant on June 19, 1993, as a full-time police officer. The federal action was resolved by way of a written settlement agreement executed on April 21, 1994, between the plaintiff and the defendant. That settlement agreement (agreement) provided, in relevant part: "As further consideration for Bracken's agreement to be bound by the terms of this agreement, defendant town of Windsor Locks agrees to reinstate Bracken to a full-time police officer position as of June 19, 1993 with a seniority date of one day earlier than Officer Squires and to restore to Bracken as of June 19, 1993 full benefits, privileges and emoluments of employment based upon that seniority date." Officer Squires had a seniority date of September 14, 1987. Following the execution of the agreement, the defendant restored certain benefits, privileges, and emoluments of employment based on a seniority date of September 13, 1987. The defendant did not purchase pension credit for the plaintiff covering the period of time from September 13, 1987 through June 18, 1993 (pre-reinstatement period), and the plaintiff became aware in late 2002 or early 2003 that the defendant had not purchased the credit. The plaintiff was placed on administrative leave in August, 2007. In September, 2007, the plaintiff wrote a letter to CMERS stating that he had brought the issue of the pension credit to the defendant's attention on many occasions, but it had done nothing to resolve the issue. The plaintiff stated that Chief of Police John Suchocki had told him that the defendant wanted to wait until the plaintiff retired to make the payments, a position that the plaintiff found "unacceptable." The plaintiff's employment with the defendant terminated on or about November 19, 2009. By letter dated March 16, 2010, the defendant inquired of the Statement Employee Retirement Commission (retirement commission) as to the cost to purchase the pension credit for the pre-reinstatement period. The retirement commission responded by letter dated April 29, 2010, that a payment in the amount of $99,316 would be necessary to purchase the additional pension credit. Beginning in May, 2010, the State Board of Mediation Arbitration held hearings on a grievance the plaintiff had filed challenging his termination of employment. On February 11, 2014, the plaintiff commenced the present action alleging breach of contract and breach of the implied covenant of good faith and fair dealing. In his amended complaint filed December 16, 2015, the plaintiff alleged that after he resumed his employment as a police officer, the defendant had restored to him "all benefits, privileges and emoluments of employment based on the seniority date of September 13, 1987, with the exception of his pension benefits." Specifically, he alleged that "[p]ension credits for Windsor Locks police officers are purchased by the town through the State of Connecticut Municipal Employees Retirement Fund" and that such credit "can be purchased retroactively at any time prior to the date the employee begins receiving retirement benefits." He alleged that he became aware that the defendant had not yet purchased pension credit for him for the pre-reinstatement period and that he raised his concerns with the defendant on several occasions. He claimed that "at no time prior to 2013 was the plaintiff informed by the town that it would not comply with its contractual agreement to provide pension credits" for the pre-reinstatement period. The plaintiff further alleged that his counsel wrote letters to the defendant on July 30, 2013, and October 3, 2013. The plaintiff alleged that his counsel, in the October 3, 2013 letter, requested that the defendant provide "written confirmation that the town is currently refusing to purchase pension credits or otherwise provide retirement benefits to the plaintiff" for the pre-reinstatement period. The plaintiff alleged that the letter concluded: "If I do not receive a response to this letter by October 31, 2013, we will assume that the town has formally refused to provide these benefits ." The plaintiff alleged that the defendant did not respond to the letter. In count two of the complaint, the plaintiff claimed that the defendant breached the implied covenant of good faith and fair dealing in that it had no good faith basis for refusing to purchase the pension credit and that its reasons for "refusing to comply with the terms of the contract are based on personal animosity toward the plaintiff." The plaintiff sought an order requiring the defendant to purchase the pension credit for the pre-reinstatement period. The defendant answered and filed special defenses to the amended complaint alleging, inter alia, that the plaintiff's action was barred by the statute of limitations set forth in § 52-576 and the doctrine of laches. The parties elected a court trial, which was held on February 17 and 18, 2016. The parties stipulated to a number of facts, and the stipulation was entered into evidence as a court exhibit. Eight of the plaintiff's exhibits and four of the defendant's exhibits were agreed upon and received by the court as full exhibits. During trial, two witnesses testified: the plaintiff, and John Suchocki, former chief of police for the town of Windsor Locks. Both parties filed posttrial briefs. On August 3, 2016, the court issued a memorandum of decision, in which it rendered judgment for the defendant after concluding that the plaintiff's action was barred both by the statute of limitations and the doctrine of laches. The court in its memorandum noted that the action involved the plaintiff's claim that the agreement included the retroactive purchase of pension credit for the pre-reinstatement period. The court also found that the "defendant has consistently denied having an obligation under the contract" to purchase the credit, and that the plaintiff learned in late 2002 or early 2003 that the defendant had not purchased the credit. The court in its memorandum stated that since then, the plaintiff had been in a dispute with the defendant and had engaged counsel to assist with his claim. After referencing both parties' inquiries to the retirement commission, the plaintiff in September, 2007, and the defendant in spring, 2010, the court then rejected the plaintiff's argument that the defendant's spring, 2010 inquiry constituted evidence that the defendant had not yet decided that it would not purchase the pension credit for the plaintiff. It found instead that the plaintiff had been aware since 2002 that the defendant "was refusing to make those contributions" pursuant to the agreement. Turning to when the cause of action accrued, the court found that "[t]he plaintiff does not dispute that the defendant, if it had been required to make pension contributions, would have been making those monthly contributions from the time of his reinstatement in 1993. Under well established law, the plaintiff's ignorance until 2002 of the fact that those contributions were not being made, absent fraud which is not alleged here, does not save his action." Recognizing that there was "no basis in law" for a claim that the plaintiff's knowledge of the defendant's decision in late 2002 or early 2003 should operate as the accrual date, the court stated that even using that later date the plaintiff's action was still untimely. With respect to the defendant's special defense of laches, the court found: "In this case, the plaintiff discovered for the first time in late 2002 or early 2003 that the defendant had not been making contributions to his retirement since his reinstatement. He did not file this action until 2014, nearly eleven years after he first learned of the alleged breach. The plaintiff cannot refute the defendant's claim that the delay is unreasonable and inexcusable. Moreover, the defendant has offered credible evidence that it would incur significantly larger damages in order to purchase pension credits at this time, compared to the costs it would have incurred had the plaintiff timely [filed] his claim." The plaintiff filed a motion to reargue pursuant to Practice Book § 11-11, which the court denied on September 14, 2016. This appeal followed. I The plaintiff first claims that the trial court erroneously concluded that his action is barred by the six year statute of limitations set forth in § 52-576. Specifically, he claims that the defendant had no obligation under the agreement to purchase the pension credit until October 10, 2017-the date on which the plaintiff became eligible to receive retirement benefits. He argues that "the town's October, 2013 refusal to honor its obligation to provide retirement benefits covering the pre-1993 period as required under the agreement (by failing to respond to plaintiff's counsel's second letter on the issue) is a repudiation of its promise to do so upon [the plaintiff's] future retirement." In other words, the plaintiff claims that this action accrued in October, 2017, but that the defendant's October, 2013 repudiation permitted the plaintiff to proceed with his action under the theory of anticipatory breach. The defendant responds that "[t]he fact that pension benefits could not be realized until [the plaintiff's] 2009 retirement or 2017 eligibility is immaterial here, as the town would have been obligated to make monthly contributions toward pension funds throughout the entirety of its member's employment, creating a cause of action the first time it fails to do so. ( Conn. Gen. Stat. Section 7-441 )." We first conclude that the factual finding underlying the court's conclusion that the action was time barred was clearly erroneous. Second, mindful that the statute of limitations is an affirmative defense that the defendant must prove by a preponderance of the evidence, we conclude that the defendant failed to meet its burden. As an initial matter, we set forth the appropriate standard of review. "The question of whether a party's claim is barred by the statute of limitations is a question of law, which this court reviews de novo.... The factual findings that underpin that question of law, however, will not be disturbed unless shown to be clearly erroneous." (Internal quotation marks omitted.) Nassra v. Nassra , 180 Conn. App. 421, 435, 183 A.3d 1198 (2018) ; accord Travelers Casualty & Surety Co. of America v. Caridi , 144 Conn. App. 793, 801, 73 A.3d 863 (2013). "[When] the factual basis of the court's decision is challenged we must determine whether the facts set out in the memorandum of decision are supported by the evidence or whether, in light of the evidence and the pleadings in the whole record, those facts are clearly erroneous.... A finding is clearly erroneous when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed." (Citation omitted; internal quotation marks omitted.) Gugliemi v. Willowbrook Condominium Assn., Inc. , 151 Conn. App. 806, 811, 96 A.3d 634 (2014). Both parties agree that the six year statute of limitations set forth in § 52-576 (a) applies in the present case. That statute provides: "No action for an account, or on any simple or implied contract, or on any contract in writing, shall be brought but within six years after the right of action accrues, except as provided in subsection (b) of this section." General Statutes § 52-576 (a). Our Supreme Court has previously recognized that "[o]rdinarily, a defendant must plead the failure to meet the applicable statute of limitations as an affirmative defense, and the defendant bears the burden of proving the elements of the defense by a preponderance of the evidence." St. Paul Travelers Companies, Inc. v. Kuehl , 299 Conn. 800, 815, 12 A.3d 852 (2011). We next set forth the well settled law concerning when a breach of contract action accrues. "[I]n an action for breach of contract . the cause of action is complete at the time the breach of contract occurs, that is, when the injury has been inflicted.... Although the application of this rule may result in occasional hardship, [i]t is well established that ignorance of the fact that damage has been done does not prevent the running of the statute, except where there is something tantamount to a fraudulent concealment of a cause of action." (Citations omitted; emphasis omitted; internal quotation marks omitted.) Tolbert v. Connecticut General Life Ins. Co. , 257 Conn. 118, 124-25, 778 A.2d 1 (2001). "Applied to a cause of action, the term to accrue means to arrive; to commence; to come into existence; to become a present enforceable demand." (Internal quotation marks omitted.) Bouchard v. State Employees Retirement Commission , 328 Conn. 345, 369, 178 A.3d 1023 (2018). "While the statute of limitations normally begins to run immediately upon the accrual of the cause of action, some difficulty may arise in determining when the cause or right of action is considered as having accrued. The true test is to establish the time when the plaintiff first could have successfully maintained an action." (Internal quotation marks omitted.) Amoco Oil Co. v. Liberty Auto & Electric Co. , 262 Conn. 142, 153, 810 A.2d 259 (2002). "The phrase 'successfully maintain an action' refers to the time at which the facts exist (or allegedly exist) to establish the legal elements of the cause of action." Bouchard v. State Employees Retirement Commission , supra, at 370, 178 A.3d 1023. In the present case, the trial court's legal conclusion that the statute of limitations barred the plaintiff's action was premised on its factual finding that "[t]he plaintiff does not dispute that the defendant, if it had been required to make pension contributions, would have been making those monthly contributions from the time of his reinstatement in 1993. Under well established law, the plaintiff's ignorance until 2002 of the fact that those contributions were not being made, absent fraud which is not alleged here, does not save his action." We conclude that this factual finding, in light of the evidence and the pleadings in the record, was clearly erroneous because there was no evidence in the record to support it. To the contrary, the plaintiff consistently represented to the trial court, beginning with the allegations of his complaint, that "[p]ension credits can be purchased retroactively at any time prior to the date the employee begins receiving retirement benefits." In his posttrial brief, the plaintiff repeated his claim that the defendant could have performed its obligation under the agreement by purchasing the pension credit at any time. Finally, in his motion to reargue, the plaintiff again argued that he "has not alleged that the town had a duty to purchase the credits in 1994. Rather, the plaintiff has alleged that the town must comply with the settlement agreement by restoring Bracken's retirement benefits for the period of September 13, 1987 through June 18, 1993 and that the town may retroactively purchase pension credits at any time prior to the date [Bracken] begins receiving retirement benefits." On appeal, the plaintiff reiterates that the present dispute has "nothing to do with" monthly contributions made by the defendant to the retirement commission pursuant to § 7-441. The plaintiff argues, and we agree, that his recognition that the defendant had been making such contributions while he was employed as a police officer is unrelated to and does not weigh against his claim that the defendant was obligated, at any time until the date on which the plaintiff became eligible to receive retirement benefits, to purchase pension credit for the pre-reinstatement period. We have independently examined the record and conclude that there is no evidentiary support for a factual finding that the alleged breach occurred upon the failure to make "monthly contributions" following the execution of the agreement. The defendant presented no testimonial evidence in support of its claim that any alleged breach of the agreement would have occurred the first time it failed to make a monthly contribution. The only witness for the defendant was Suchocki, who testified that he did not recall having any conversations with the plaintiff regarding the defendant's purchase of any pension credit on his behalf; he never spoke to the plaintiff about the credit; he was not aware of anyone communicating on behalf of the defendant to the plaintiff that the defendant would not be purchasing the credit; he did not believe that he made any representations to the plaintiff that the defendant would purchase the credit when he retired and that he did not have "the authority to do that"; the decision as to whether to purchase the credit would not have been his; he was unaware of any decision by the board of selectmen or the police commission as to whether or not to purchase the credit; and he was aware the defendant was making inquiries in the spring of 2010 regarding the cost of purchasing the credit during a grievance proceeding related to the termination of the plaintiff's employment, but he did not know what happened to that settlement. The defendant argues that "the crux of the decision came down to the issue of the credibility of the two witnesses," and that the trial court found Chief Suchocki's testimony credible and the plaintiff's testimony not credible. The plaintiff responds that the court did not expressly make credibility findings, and that the credibility issues raised by the defendant are not relevant to the appeal. The record reveals that the plaintiff testified that when he inquired of Suchocki after learning that the defendant had not purchased the pension credit, Suchocki told him that "they would make me whole when I was ready to retire." Suchocki denied having any such conversation, and the trial court properly could have credited Suchocki's testimony on this point. See Martinez v. Commissioner of Correction , 147 Conn. App. 307, 324, 82 A.3d 666 (2013) ("we must defer to the [trier of fact's] assessment of the credibility of the witnesses based on its firsthand observation of their conduct, demeanor and attitude" [internal quotation marks omitted] ), cert. denied, 311 Conn. 917, 85 A.3d 652 (2014). The core of Suchocki's testimony, however, was that he had no involvement in and was not aware of any decision as to whether the defendant would purchase the pension credit, and therefore, his testimony provides no support for the defendant's argument that the alleged breach would have occurred upon the failure to make a monthly contribution. Moreover, the defendant produced no documentary evidence to support its statute of limitations defense. To the contrary, the only documentary evidence addressing the method for retroactive purchase of pension credit for the plaintiff consisted of communications between the defendant and the retirement commission in 2010. The trial court found that the defendant made inquiries in the spring of 2010 regarding purchasing the pension credit for the pre-reinstatement period as part of settlement discussions. The retirement commission informed the defendant that it could purchase pension credit for the plaintiff for the pre-reinstatement period at a cost of $99,316. The letter further informed the defendant that the calculation would be effective through May 1, 2010, and that if the defendant "does not purchase the service within this one-year period a new calculation will be required." The trial court rejected the plaintiff's claim that the inquiry to the retirement commission constituted evidence that the defendant had not, by that point, decided that it would not provide retirement benefits to the plaintiff. The court's rejection of the evidentiary significance ascribed by the plaintiff, however, does not bear on the status of the record. That is, the commission's response, calculating the cost of the pension credit should the defendant wish to purchase it in the spring of 2010 is the only evidence in the record as to any process for the retroactive purchase of credit, and it provides no support for the defendant's claim that the defendant "would have been obligated to make monthly contributions . creating a cause of action the first time it fails to do so." The defendant cites § 7-441 as support for its argument that its "obligation is to make monthly contributions while an employee works for the town and participates" in CMERS. The plaintiff recognizes that § 7-441 requires monthly payments for " '[m]embers,' " which the statute defines, with certain exceptions, as "any regular employee or elected official receiving pay from a participating municipality . who has been included by such municipality in the pension plan as provided in [§] 7-427 ." General Statutes § 7-425 (5). The plaintiff argues, however, that he was not a member of CMERS during the pre-reinstatement period and that "the defendant obviously did not and could not make retirement contributions for him during that time frame." The plaintiff claims that after his "reinstatement on June 19, 1993 until his employment ended on November 19, 2009, he was a member of [CMERS] and the defendant made monthly retirement contributions for him as required by the statute.... The issue here has nothing to do with those monthly contributions; it is about at what point in time the defendant had to purchase credits for the designated period prior to the time [the plaintiff] was reinstated as an active employee." We agree with the plaintiff that § 7-441 does not provide support for the defendant's claim that the cause of action for breach of the settlement agreement would have accrued upon the failure to make a monthly payment. Section 7-441 (c) provides in relevant part: "All participating municipalities shall pay monthly to the Retirement Commission to be credited to the fund such proportion of the pay of all members employed by such municipality as is determined from time to time by the Retirement Commission on sound actuarial principles to be necessary in addition to the contributions by members to provide future pensions based on service rendered by members subsequent to the effective date of participation as defined in section 7-427 other than the excess pensions referred to in subsection (b) of this section...." The defendant does not direct this court to any provision of the statute addressing the procedure for the retroactive purchase of pension credit, pursuant to a settlement agreement, covering a period of time prior to that employee's reinstatement. Accordingly, we conclude that the court's central finding that "[t]he plaintiff does not dispute that the defendant, if it had been required to make pension contributions, would have been making those monthly contributions from the time of his reinstatement in 1993" is clearly erroneous because there is no evidence in the record to support it. "A finding of fact is clearly erroneous when there is no evidence in the record to support it . or when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed." (Internal quotation marks omitted.) Noroton Properties, LLC v. Lawendy , 154 Conn. App. 367, 378, 107 A.3d 980 (2014) ; see also Tobet v. Tobet , 119 Conn. App. 63, 70, 986 A.2d 329 (2010) (where this court's review of the transcript revealed that no evidence as to the cost of tuition and board at University of Connecticut at Storrs was provided to the court, court's finding that the tuition and board was "$16,000 or $17,000" was clearly erroneous). We further conclude that because the evidence adduced at trial did not support the defendant's claim that the statute of limitations began to run upon its failure to make a monthly contribution, the defendant has failed to meet its burden of proof on its statute of limitations special defense. II The plaintiff next claims that the court erroneously concluded that his action was barred by the doctrine of laches. Specifically, he claims that he did not inexcusably delay filing suit and that the defendant failed to prove that the alleged delay has caused undue prejudice. We conclude that the defendant failed to meet its burden of proving that the elements of the doctrine of laches had been satisfied. We first note the standard of review. "The defense of laches, if proven, bars a plaintiff from seeking equitable relief in a case in which there has been an inexcusable delay that has prejudiced the defendant.... First, there must have been a delay that was inexcusable, and, second, that delay must have prejudiced the defendant.... A conclusion that a plaintiff has been guilty of laches is one of fact for the trier and not one that can be made by this court, unless the subordinate facts found make such a conclusion inevitable as a matter of law.... We must defer to the court's findings of fact unless they are clearly erroneous.... Whether the defense of laches was applicable to this action, however, is a question of law. When there is a question of law, our review of the court's decision is plenary." (Citation omitted; internal quotation marks omitted.) Florian v. Lenge , 91 Conn. App. 268, 281, 880 A.2d 985 (2005). "[T]he burden is on the party alleging laches to establish that defense." (Internal quotation marks omitted.) Lynwood Place, LLC v. Sandy Hook Hydro, LLC , 150 Conn. App. 682, 690, 92 A.3d 996 (2014) ; see also Price v. Independent Party of CT-State Central , 323 Conn. 529, 544, 147 A.3d 1032 (2016). The trial court, in support of its conclusion that the doctrine of laches barred the plaintiff's action, stated: "In this case, the plaintiff discovered for the first time in late 2002 or early 2003 that the defendant had not been making contributions to his retirement since his reinstatement. He did not file this action until 2014, nearly eleven years after he first learned of the alleged breach. The plaintiff cannot refute the defendant's claim that the delay is unreasonable and inexcusable. Moreover, the defendant has offered credible evidence that it would incur significantly larger damages in order to purchase pension credits at this time, compared to the costs it would have incurred had the plaintiff timely [filed] his claim." The plaintiff first argues that "[t]he trial court's finding that the action is barred by the doctrine of laches was premised on the court's erroneous conclusion that the plaintiff could have maintained a cause of action in 2002 or 2003 when he first learned that the defendant had not purchased pension credits covering the period identified in the settlement agreement-despite the defendant having no obligation to provide him with retirement benefits until 2017 and the town not yet having repudiated its obligation to do so." We agree that the trial court's determination that the delay was unreasonable and inexcusable was premised on its erroneous factual finding that the alleged breach occurred upon the failure to make a monthly contribution, as shown by its statement that the plaintiff learned in 2002 or 2003 that "the defendant had not been making contributions to his retirement since his reinstatement ." See part I of this opinion. The plaintiff further claims that the defendant has failed to prove that the alleged delay has caused undue prejudice and argues that the trial court's finding that the defendant would incur significantly larger damages in order to purchase the pension credit at this time is unsupported by any evidence. The plaintiff claims that the "only evidence in the record concerning the costs associated with purchasing the pension credits" is the letter from the retirement commission dated April 29, 2010, indicating that a payment in the amount of $99,316 would be necessary to purchase the additional pension credit. The plaintiff claims that although the letter reflected that a new calculation would be required if the defendant declined to purchase the credit within one year and that it indicated an interest adjustment would be required up until the date of payment, there was no evidence that the "apparent increase would unduly prejudice the defendant." He further argues that "[t]he defendant presented no evidence concerning the relative cost of purchasing the pension credits in 1994 as opposed to in 2014 when this action was filed." The defendant, in its three sentence response in its brief on appeal, generally asserts that the lapse of time would unduly prejudice the defendant; cf. Lynwood Place, LLC v. Sandy Hook Hydro, LLC , supra, 150 Conn. App. at 691, 92 A.3d 996 ("[a] mere lapse of time does not constitute laches unless it results in prejudice to the defendants" [internal quotation marks omitted] ); and repeats the trial court's challenged finding. The defendant does not direct this court to any evidence in the record that supports the challenged finding underlying the court's prejudice determination. Moreover, our independent review of the record reveals that the defendant presented no evidence, beyond the April 29, 2010 letter, as to the relative cost of purchasing the pension credit. Accordingly, we conclude that the trial court's finding that the defendant was prejudiced is clearly erroneous because it is not supported by evidence in the record. Because the defendant failed to show prejudicial delay, the court incorrectly concluded that it had established the defense of laches. See Cifaldi v. Cifaldi , 118 Conn. App. 325, 336, 983 A.2d 293 (2009) ; see also Burrier v. Burrier , 59 Conn. App. 593, 597, 758 A.2d 373 (2000) (holding that trial court incorrectly concluded that laches barred the plaintiff from seeking the relief she requested after it concluded that prejudicial delay had not been established where defendant failed to offer evidence concerning prejudice). In its memorandum of decision, the trial court did not reach the merits of the plaintiff's claims because it concluded that the action was barred by the statute of limitations and the doctrine of laches. Accordingly, we remand this case to the trial court to decide the merits of the plaintiff's claims. The judgment is reversed and the case is remanded for further proceedings consistent with this opinion. In this opinion the other judges concurred. By way of relief, the plaintiff asserts that he is entitled to judgment as a matter of law and requests that this court "find that the defendant breached the settlement agreement when it refused to purchase pension credits or otherwise provide plaintiff with retirement benefits from the period of September 13, 1987 through June 18, 1993." Because the trial court rendered judgment in favor of the defendant on its special defenses, the court did not reach the merits of the plaintiff's claims, which involve questions of fact. See McCoy v. Brown , 130 Conn. App. 702, 707, 24 A.3d 597 ("[w]hether there was a breach of contract is ordinarily a question of fact" [internal quotation marks omitted] ), cert. denied, 302 Conn. 941, 29 A.3d 467 (2011). "This court cannot find facts in the first instance." Fazio v. Fazio , 162 Conn. App. 236, 251, 131 A.3d 1162, cert. denied, 320 Conn. 922, 132 A.3d 1095 (2016). Accordingly, although we agree with the plaintiff that the judgment of the court must be reversed, we cannot grant the relief requested, and we remand this case to the trial court to consider the merits of the plaintiff's cause of action. See id. (concluding that trial court improperly found separation agreement unambiguous and remanding case to trial court to determine "the intent of the parties after consideration of all the available extrinsic evidence and the circumstances surrounding the entering of the agreement"). The statutory framework establishing and governing the retirement system for certain municipal employees is codified at General Statutes § 7-425 et seq., and is referred to as the Municipal Employees' Retirement Act. See Maturo v. State Employees Retirement Commission , 326 Conn. 160, 172, 162 A.3d 706 (2017). Section 7-425 defines a " '[m]ember' " of the retirement system as, among other things, "any regular employee or elective officer receiving pay from a participating municipality . who has been included by such municipality in the pension plan as provided in [§] 7-427 ." General Statutes § 7-425 (5). "General Statutes § 7-427 (a) authorizes each municipality to opt into the retirement system with respect to any department or departments that it chooses to designate for participation." Maturo v. State Employees Retirement Commission , supra, at 172, 162 A.3d 706. General Statutes (Supp. 2018) § 7-441 (c) provides in relevant part: "All participating municipalities shall pay monthly to the Retirement Commission to be credited to the fund such proportion of the pay of all members employed by such municipality as is determined from time to time by the Retirement Commission on sound actuarial principles to be necessary in addition to the contributions by members to provide future pensions based on service rendered by members subsequent to the effective date of participation as defined in section 7-427 other than the excess pensions referred to in subsection (b) of this section...." Officer Squires was the police officer who was hired into the position that the plaintiff contended should have been given to him. Although the defendant has cited various statutory sections in its pleadings and posttrial brief, such discrepancies appear to reflect scrivener's errors, given that the defendant has consistently argued at trial and on appeal that the plaintiff's action is barred by the six year breach of contract statute of limitations. We resolve the plaintiff's appeal on the ground that the defendant failed to carry its burden of proving that the action was commenced outside the statute of limitations or barred by the doctrine of laches. Our resolution of the appeal on these narrow grounds obviates the need for this court to address the question of when the plaintiff's cause of action accrued. Section 7-441 was recently amended by No. 17-107, § 1, of the 2017 Public Acts. These amendments have no bearing on the outcome of this appeal. All references in this opinion to § 7-441 are to the 2018 supplement of the General Statutes. We note that the plaintiff does not claim that the statute of limitations was tolled by the continuing course of conduct doctrine or by the doctrine of fraudulent concealment. On appeal, the defendant construes this statement contained in the trial court's memorandum as determining that if the plaintiff was entitled to pension credit for the pre-reinstatement period pursuant to the agreement, his "right of action would have accrued at the time of the breach, that is in 1993 ." (Emphasis added.) The defendant's position is untenable, given that the agreement was not executed until April 21, 1994. The defendant argues that the plaintiff misstates the defendant's obligations under the retirement system and contends that it "does not provide or administer retirement benefits." Although the plaintiff at times has characterized his claim as one for "retirement benefits," he specifically sought, in his prayer for relief, "[a]n order directing the defendant to perform the contract by purchasing pension credits for the plaintiff covering the period of September 13, 1987 through June 18, 1993." He further indicated in his appellate brief: "As an administrative and practical matter, in order to provide Bracken with retirement benefits pursuant to the town's pension plan with CMERS, the town must purchase the pension credits through CMERS based on an employee's accrued service." At oral argument before this court, the plaintiff's counsel represented that the plaintiff had turned fifty-five in October, 2017, and had begun receiving pension benefits. He further represented that in the event the judgment for the defendant was reversed, the plaintiff would seek to amend its prayer for relief to seek damages, rather than specific performance, in order to make up the difference between the retirement benefits the plaintiff is currently receiving and the benefits he would have received had the defendant purchased the pension credit for the pre-reinstatement period. Neither party argues that the date the plaintiff discovered that the defendant had not yet purchased the pension credit serves as the accrual date for the plaintiff's action, and the trial court correctly recognized that "there is no basis in law" for any claim that the plaintiff's discovery in 2002 or 2003 that the defendant had not yet purchased the credit could serve as the accrual date.

12510614

ROSENTHAL LAW FIRM, LLC v. James COHEN

Rosenthal Law Firm, LLC v. Cohen

2019-05-28

AC 41028

579

585

210 A.3d 579

210

West's Atlantic Reporter, Third Series

Connecticut Appellate Court

Connecticut

2021-08-27T20:57:56.130816+00:00

Fastcase

ROSENTHAL LAW FIRM, LLC v. James COHEN

ROSENTHAL LAW FIRM, LLC v. James COHEN AC 41028 Appellate Court of Connecticut. Argued January 2, 2019 Officially released May 28, 2019 Edward Rosenthal, with whom, on the brief, was Daniel J. Klau, for the appellant (plaintiff). James D. Cohen, self-represented, the appellee (defendant). Lavine, Elgo and Bear, Js.

3991

24870

BEAR, J. This action between the plaintiff, Rosenthal Law Firm, LLC, and its former client, the defendant, James Cohen, arises out of a fee dispute that had been resolved in the plaintiff's favor during a prior arbitration proceeding. Following the confirmation of the arbitration award, the plaintiff commenced the present action seeking attorney's fees, pursuant to a contract between it and the defendant, for its prosecution of the fee dispute. After a trial to the court, the trial court rendered judgment in the defendant's favor, from which the plaintiff now appeals. The plaintiff claims on appeal that the court erred in concluding that it was not entitled to attorney's fees because it had represented itself, through its sole member, in the arbitration and award confirmation proceedings. We disagree and, accordingly, affirm the judgment of the trial court. The following facts and procedural history are relevant to our resolution of the plaintiff's claim. On December 1, 2011, the parties entered into an agreement for legal services (retainer agreement) whereby they agreed, in paragraph 12, that in the event the defendant failed to pay the plaintiff its agreed on fee or expenses, he would be liable for "all costs related to a collection action including [the plaintiff's] attorney's fees and interest at the annual rate of ten percent ." On March 3, 2014, the plaintiff petitioned the legal fee resolution board of the Connecticut Bar Association (board) to resolve a fee dispute that had arisen between the parties. On December 24, 2014, a panel of three arbitrators found that the plaintiff was owed $ 109,683 in fees for its representation of the defendant. The plaintiff subsequently filed an application to confirm the arbitration award in the Superior Court, which the court, Scholl, J. , granted on March 17, 2015. The defendant appealed to this court, which affirmed the trial court's judgment confirming the arbitration award, and our Supreme Court denied the defendant's petition for certification to appeal. See Rosenthal Law Firm, LLC v. Cohen , 165 Conn. App. 467, 473, 139 A.3d 774, cert. denied, 322 Conn. 904, 138 A.3d 933 (2016). Attorney Edward Rosenthal, the sole member of the plaintiff, represented the plaintiff throughout the proceedings before the board and in the trial and appellate courts. On April 1, 2016, the plaintiff commenced the present action alleging, inter alia, that the defendant breached the retainer agreement by failing and refusing to pay for the legal services it had rendered and that, as a result, it suffered damages in the form of "considerable time [spent] in collecting its fees from the defendant" in arbitration and the related court proceedings. As clarified in its trial brief, the plaintiff sought to recover the attorney's fees and interest prescribed by paragraph 12 of the retainer agreement. More specifically, the plaintiff claimed that it had incurred $ 59,600 in "legal fees" in connection with the arbitration and related court proceedings, which reflected the time spent by Rosenthal on these matters. On October 18, 2017, following a trial to the court, the trial court, Shapiro, J. , issued a memorandum of decision in which it concluded that the plaintiff was not entitled to recover attorney's fees under paragraph 12 of the retainer agreement because it had effectively represented itself throughout the proceedings at issue, and "[t]he law of this state is that pro se litigants are not entitled to attorney's fees." (Internal quotation marks omitted.) In so concluding, the trial court relied on Jones v. Ippoliti , 52 Conn. App. 199, 212, 727 A.2d 713 (1999), in which this court extended the rule adopted in Lev v. Lev , 10 Conn. App. 570, 575, 524 A.2d 674 (1987) -barring self-represented litigants generally from recovering attorney's fees-to self-represented attorney litigants. Accordingly, the trial court rendered judgment in favor of the defendant. This appeal followed. The plaintiff's sole claim on appeal is that the trial court erred in determining that the law barring self-represented nonattorney litigants from recovering statutory attorney's fees also precludes a self-represented law firm from recovering contractual attorney's fees. The plaintiff argues that the portion of Jones relied on by the trial court is mere dictum. The plaintiff alternatively argues that we should overrule this portion of Jones because it is based on a "serious misinterpretation" of Lev . We disagree that the statement in Jones concerning self-represented attorney litigants is dictum and decline the plaintiff's invitation to revisit the issue. Preliminarily, we note that, because the plaintiff's appeal concerns the trial court's interpretation and application of the law to the undisputed facts of this case, our standard of review is plenary. See Thompson v. Orcutt , 257 Conn. 301, 308-309, 777 A.2d 670 (2001) ; Steroco, Inc. v. Szymanski , 166 Conn. App. 75, 87, 140 A.3d 1014 (2016). We now turn to an examination of this court's decision in Jones . Jones involved an action by the partners of a law firm against former clients to collect unpaid fees for services previously rendered. Jones v. Ippoliti , supra, 52 Conn. App. at 200 n.2, 203, 727 A.2d 713. The plaintiffs alleged, inter alia, failure to pay a promissory note, and they sought attorney's fees for the prosecution of the collection action pursuant to a provision in the note that provided for "any costs and expenses, including reasonable attorney's . fees incurred in the collection of [the note] or in any litigation or controversy arising from or connected with [the note]." (Internal quotation marks omitted.) Id., at 202 n.5, 203, 727 A.2d 713. The trial court rendered judgment in favor of the plaintiffs on their complaint and awarded them attorney's fees pursuant to the promissory note for the services of their trial counsel, who had been retained by the plaintiffs. Id., at 203 and n.7, 208, 727 A.2d 713. The court, however, denied their claim for attorney's fees based on the services rendered by the attorneys and paralegals employed by the plaintiffs' law firm in assisting their trial counsel in the prosecution of the collection action. Id., at 208, 727 A.2d 713. On appeal, the plaintiffs in Jones claimed that they were entitled "to recover 'in-house' counsel fees for the services they performed to assist their trial counsel." Id. In support of this claim, "[t]he plaintiffs urge[d] [this court] to adopt what they claim[ed] to be a trend in other jurisdictions to award reasonable attorney's fees for both outside counsel, as well as in-house counsel, who participate in the prosecution of a claim in which attorney's fees can be awarded." (Footnote omitted.) Id. According to the plaintiffs, "an award to the successful litigant of reasonable attorney's fees for the services [the plaintiffs' law firm] provided [was] appropriate because the time devoted to this case was time not available for other work." Id., at 210, 727 A.2d 713. Citing a number of out-of-state cases in which courts denied an award of attorney's fees to attorney litigants appearing on their own behalf, the defendants countered that, "if plaintiff-attorneys representing themselves are not entitled to an award of attorney's fees, then, a fortiori, plaintiff-attorneys who merely assist their trial counsel, for whose services they have received an award of attorney's fees, are not entitled to an award of attorney's fees for their own services." Id. The court deemed this distinction to be significant. Id. The court in Jones began its analysis of the plaintiffs' claim by first considering "whether [the plaintiffs' law firm] and in-house counsel [were] synonymous." Id. The court determined that, "[b]y definition, the plaintiffs [were] not in-house counsel because they [were] not employees of a business whose function is to advise the business on day-to-day matters." Id., at 211, 727 A.2d 713. The court therefore concluded that "the cases cited by the plaintiffs in support of their claim that the trial court should have awarded them attorney's fees for the services performed by [the plaintiffs' law firm were] factually distinguishable in that attorney's fees in those cases [had been] awarded for the work done by in-house counsel in businesses such as insurance companies." Id. The court next considered "whether [the plaintiffs' law firm had] functioned as an attorney in [the collection action]." Id. "To begin with, [the court] note[d] that [the plaintiffs' law firm had] not enter[ed] an appearance on behalf of the plaintiffs" and that, accordingly, "it did not represent them in this action." Id., at 211-12, 727 A.2d 713 ; see Practice Book § 3-7 (a) ("[e]xcept by leave of the judicial authority, no attorney shall be permitted to appear in court or to be heard on behalf of a party until the attorney's appearance has been entered"). The court further determined that "[e]ven if [it] were to conclude otherwise, i.e., that [the plaintiffs' law firm had] represented the plaintiffs, such representation would have been of a pro se nature. The law of this state is that pro se litigants are not entitled to attorney's fees." Jones v. Ippoliti , supra, 52 Conn. App. at 212, 727 A.2d 713, citing Lev v. Lev , supra, 10 Conn. App. at 575, 524 A.2d 674. The court therefore held that "the plaintiffs [had] not [been] entitled to attorney's fees for the services provided by [the plaintiffs' law firm] and the trial court [had] properly denied the plaintiffs' request for them." Id. The plaintiff in the present case appears to contend that, because the court in Jones determined that the plaintiffs had not been represented by their law firm, it was unnecessary for the court to consider whether the pro se nature of such representation would have precluded an award of attorney's fees pursuant to the general rule adopted in Lev . Thus, the plaintiff argues that this portion of Jones is dictum, and the trial court, therefore, erred in treating it as binding precedent. We disagree. "[D]ictum is an observation or remark made by a judge in pronouncing an opinion upon a cause, concerning some rule, principle, or application of law, or the solution of a question suggested by the case at bar, but not necessarily involved in the case or essential to its determination . Statements and comments in an opinion concerning some rule of law or legal proposition not necessarily involved nor essential to determination of the case . are obiter dicta, and lack the force of an adjudication." (Internal quotation marks omitted.) U.S. Bank, N.A. v. Morawska , 165 Conn. App. 421, 427 n.4, 139 A.3d 747 (2016). The overwhelming weight of authority, however, recognizes a distinction between dicta and alternative holdings in an opinion. As the United States Supreme Court has explained, "where there are two grounds, upon either of which an appellate court may rest its decision, and it adopts both, the ruling on neither is obiter [dictum], but each is the judgment of the court, and of equal validity with the other." (Internal quotation marks omitted.) United States v. Title Ins. & Trust Co. , 265 U.S. 472, 486, 44 S. Ct. 621, 68 L.Ed. 1110 (1924). Cf. Electrical Contractors, Inc. v. Dept. of Education , 303 Conn. 402, 420-21, 35 A.3d 188 (2012) ("Once it becomes clear that the trial court lacked subject matter jurisdiction to hear the plaintiffs' complaint, any further discussion of the merits is pure dict[um].... When the trial court concluded . that subject matter jurisdiction was missing, the remainder of its [ruling was] merely advisory ." [Internal quotation marks omitted.] ). Although an alternative holding, by its very nature, is not strictly necessary to the disposition of the case, this does not render it dictum. On this point, we find the Utah Supreme Court's opinion in State v. Robertson , 438 P.3d. 491 (Utah 2017), persuasive. "When we say that a holding is binding only when it is necessary, we do not mean that the holding must be the singular basis for our ultimate decision. Courts often confront cases raising multiple issues that could be dispositive, yet they find it appropriate to resolve several, in order to avoid repetition of errors on remand or provide guidance for future cases. Or, [courts] will occasionally find it appropriate to offer alternative rationales for the results they reach. Were we to require that a holding must be necessary in some strict, logical sense before it becomes binding precedent, then every time we articulated alternative bases for a decision we would convert our opinion into dicta, for none of the alternative bases are strictly necessary for the outcome.... Instead, necessary means only that the court undeniably decided the issue, not that it was unavoidable for it [to] do so.... "Of course, not every statement of law in every opinion is binding . Where it is clear that a statement is made casually and without analysis, where the statement is uttered in passing without due consideration of the alternatives, or where it is merely a prelude to another legal issue that commands the [court's] full attention, it may be appropriate to re-visit the issue in a later case.... Where, on the other hand, it is clear that a majority of the [court] has focused on the legal issue presented by the case before it and made a deliberate decision to resolve the issue, that ruling becomes the law ." (Footnotes omitted; internal quotation marks omitted.) Id., at 502-503, quoting United States v. Johnson , 256 F.3d 895, 914-16 (9th Cir. 2001). We now turn to the statement at issue in the present case. In Jones , both parties had raised and discussed in their appellate briefs the question of whether self-represented attorneys may recover attorney's fees for the time spent litigating their own causes and had directed the court's attention to the conflicting authorities on the subject. See footnotes 2 and 4 of this opinion. The court intentionally took up and analyzed the issue and concluded that the general rule announced in Lev would bar the plaintiff attorneys in Jones from recovering attorney's fees. Although the court discussed the issue only briefly, there is nothing in its opinion or the record to suggest that its conclusion was less carefully reasoned than it might otherwise have been. In sum, the court's conclusion cannot reasonably be characterized as a merely casual, passing comment made without analysis or due consideration of conflicting authorities. It is clear that the court made a deliberate decision to resolve this issue and that it undeniably decided it. Accordingly, the court's conclusion that self-represented attorney litigants cannot recover attorney's fees constitutes an alternative holding, not dictum. We, therefore, disagree with the plaintiff that the trial court in the present case improperly treated this portion of Jones as binding precedent. Furthermore, although the plaintiff requests, in the alternative, that this panel revisit such precedent, we are not at liberty to do so. See In re Zoey H. , 183 Conn. App. 327, 340 n.5, 192 A.3d 522 ("[I]t is axiomatic that one panel of this court cannot overrule the precedent established by a previous panel's holding.... This court often has stated that this court's policy dictates that one panel should not, on its own, reverse the ruling of a previous panel. The reversal may be accomplished only if the appeal is heard en banc." [Internal quotation marks omitted.] ), cert. denied, 330 Conn. 906, 192 A.3d 425 (2018). The plaintiff does not otherwise challenge the application of Jones to the present case, and, therefore, we need not address the propriety of the trial court's characterization of the plaintiff law firm-a legal entity distinct from Rosenthal-as a self-represented party. Indeed, when asked during oral argument before this court whether the plaintiff's status as a limited liability company affects the analysis of the issue raised in this appeal, Rosenthal replied, "I don't think so." Similarly, we need not determine whether the plaintiff's status as a law firm litigant renders this case materially distinguishable from Jones , which involved attorney litigants. We note, however, that among the courts that have considered these issues in jurisdictions in which self-represented attorney litigants are barred from recovering attorney's fees, the majority agree that there is no meaningful distinction between solo practitioners who represent themselves and law firms that are represented by their own attorneys. The judgment is affirmed. In this opinion the other judges concurred. The plaintiff also appears to argue that it is entitled to attorney's fees under the plain language of paragraph 12 of the retainer agreement. The plaintiff's discussion of this issue, however, is limited to a single conclusory statement in its appellate brief without any citation to authority. Accordingly, to the extent the plaintiff claims that the contract language is dispositive of this appeal, we conclude that such claim is inadequately briefed and, therefore, decline to review it. See Estate of Rock v. University of Connecticut , 323 Conn. 26, 33, 144 A.3d 420 (2016) ("Claims are inadequately briefed when they are merely mentioned and not briefed beyond a bare assertion.... Claims are also inadequately briefed when they . consist of conclusory assertions . with no mention of relevant authority and minimal or no citations from the record ." [Internal quotation marks omitted.] ). See Connor v. Cal-Az Properties, Inc. , 137 Ariz. 53, 55-56, 668 P.2d 896 (App. 1983) ; O'Connell v. Zimmerman , 157 Cal. App. 2d 330, 336-37, 321 P.2d 161 (1958) ; Sessions, Fishman, Rosenson, Boisfontaine & Nathan v. Taddonio , 490 So.2d 526, 527 (La. App. 1986). The court left for another day the issue of whether, in the appropriate circumstances, a plaintiff may be entitled to attorney's fees for the services that in-house counsel provides to outside counsel during the course of litigation. Jones v. Ippoliti , supra, 52 Conn. App. at 211 n.17, 727 A.2d 713. It would appear at first blush that the court's determination in Jones that the plaintiffs did not constitute "in-house counsel" entirely disposed of the plaintiffs' claim on appeal. A review of the plaintiffs' principal appellate brief, however, reveals that they had argued more generally that they should have been awarded attorney's fees for the reasonable value of their time because "[t]here is no meaningful distinction between the time spent by [outside counsel] and the time spent by attorneys and paralegals at [the plaintiffs' law firm]." In support of this argument, the plaintiffs cited to a number of decisions from other jurisdictions holding that self-represented attorney litigants and law firm litigants represented by their own attorneys may recover attorney's fees. See, e.g., Winer v. Jonal Corp. , 169 Mont. 247, 251, 545 P.2d 1094 (1976) ; Hinkle, Cox, Eaton, Coffield & Hensley v. Cadle Co. of Ohio, Inc. , 115 N.M. 152, 158, 848 P.2d 1079 (1993). Consequently, the court's conclusion in Jones that the plaintiffs were not in-house counsel did not fully dispose of the appeal. See, e.g., Boogaard v. National Hockey League , 891 F.3d 289, 295 (7th Cir. 2018) ("[i]t is blackletter law that where a decision rests on two or more grounds, none can be relegated to the category of obiter dictum" [internal quotation marks omitted] ), cert. denied, - U.S. -, 139 S. Ct. 601, 202 L.Ed.2d 430 (2018) ; Gestamp South Carolina, L.L.C. v. National Labor Relations Board , 769 F.3d 254, 263 n.4 (4th Cir. 2014) ("alternative holdings are not dicta"); Pyett v. Pennsylvania Building Co. , 498 F.3d 88, 93 (2d Cir. 2007) ("[a]n alternative conclusion in an earlier case that is directly relevant to a later case is not dicta; it is an entirely appropriate basis for a holding in the later case"), rev'd on other grounds, 556 U.S. 247, 129 S. Ct. 1456, 173 L.Ed.2d 398 (2009) ; Sturdivant v. State , 84 So.3d 1053, 1060 (Fla. App. 2010) ("A ruling in a case fully considered and decided by an appellate court is not dictum merely because it was not necessary, on account of one conclusion reached upon one question, to consider another question the decision of which would have controlled the judgment. Two or more questions properly arising in a case under the pleadings and proof may be determined, even though either one would dispose of the entire case upon its merits, and neither holding is a dictum, so long as it is properly raised, considered, and determined." [Internal quotation marks omitted.] ); QOS Networks Ltd. v. Warburg, Pincus & Co. , 294 Ga. App. 528, 532-33, 669 S.E.2d 536 (2008) ("A ruling is not dictum merely because the disposition of the case is or might have been made on some other ground. Where a case presents two or more points, any one of which is sufficient to determine the ultimate issue, but the court actually decides all such points, the case is an authoritative precedent as to every point decided, and none of such points can be regarded as having merely the status of a dictum." [Internal quotation marks omitted.] ). The plaintiff also appears to contend that Jones is inapplicable to the present case because the present case involves a claim for contractual, rather than statutory, attorney's fees. In addition to being inadequately briefed, this claim clearly lacks merit given that the plaintiffs in Jones had likewise sought attorney's fees pursuant to a contractual provision. See Jones v. Ippoliti , supra, 52 Conn. App. at 202 n.5, 727 A.2d 713. Moreover, the plaintiff has not presented to this court any persuasive reason for revisiting Jones . See, e.g., Munger Chadwick, P.L.C. v. Farwest Development & Construction of the Southwest, LLC , 235 Ariz. 125, 128, 329 P.3d 229 (App. 2014) ("We . can find no logical reason to draw any distinction between a law firm that represents itself and a sole practitioner that does so.... In applying the rule [against awarding attorney's fees to self-represented attorneys], our courts have expressed a core concern that all parties to litigation be treated equally in their ability to secure compensation for attorney fees.... This court has specifically reasoned that an attorney ought not be entitled to compensation for her time in representing herself when a lay person would not be able to do so.... We likewise conclude it would be inequitable for a law firm to be able to obtain its fees through an arrangement that amounts to self-representation when a sole practitioner would be unable to do so." [Citations omitted.] ); Witte v. Kaufman , 141 Cal. App. 4th 1201, 1211, 46 Cal.Rptr.3d 845 (2006) (Court held that prevailing law firm litigant was not entitled to attorney's fees where it was represented by its own members; "[t]he attorneys of [the firm] are the law firm's product. When they represent the law firm, they are representing their own interests. As such, they are comparable to a sole practitioner representing himself or herself."); Swanson & Setzke, Chtd. v. Henning , 116 Idaho 199, 203 n.3, 774 P.2d 909 (App. 1989) ("When a rule of law is enunciated on whether pro se lawyer litigants are entitled to attorney fee awards, that rule should be applied consistently. It should not turn on distinctions among proprietorships, partnerships, corporations or other modes of law practice."); State ex rel. Schad, Diamond & Shedden, P.C. v. My Pillow, Inc. , 426 Ill.Dec. 1, 115 N.E.3d 923, 930-31 (2018) (holding that, "[t]o the extent that [the plaintiff law firm] prosecuted its own claim using its own lawyers, the law firm was proceeding pro se," and, therefore, "the same considerations were at work here as with any other pro se litigant, and Illinois's long-standing bar against awards of attorney fees to lawyers who represent themselves was fully applicable"); Fraser Trebilcock Davis & Dunlap PC v. Boyce Trust 2350 , 497 Mich. 265, 275-76, 870 N.W.2d 494 (2015) (holding that plaintiff law firm that used its own member lawyers to litigate firm's interests could not recover attorney's fees; "while we acknowledge that [the plaintiff] is a legally distinct corporate entity, we do not find that status sufficient to distinguish the representation it provided to itself through its member lawyers from the self-representation [of an individual attorney litigant], such that [the plaintiff] may recover a reasonable attorney fee" [internal quotation marks omitted] ).

12510613

Antonio VITTI v. CITY OF MILFORD et al.

Vitti v. City of Milford

2019-06-04

AC 40399

567

579

210 A.3d 567

210

West's Atlantic Reporter, Third Series

Connecticut Appellate Court

Connecticut

2021-08-27T20:57:56.130816+00:00

Fastcase

Antonio VITTI v. CITY OF MILFORD et al.

Antonio VITTI v. CITY OF MILFORD et al. AC 40399 Appellate Court of Connecticut. Argued October 12, 2018 Officially released June 4, 2019 Scott W. Williams, Fairfield, with whom, on the brief, were James D. Moran, Jr., and Maribeth M. McGloin, Fairfield, for the appellant (named defendant). David J. Morrissey, Naugatuck, for the appellee (plaintiff). Sheldon, Keller and Moll, Js. The listing of judges reflects their seniority status on this court as of the date of oral argument.

6476

40156

MOLL, J. The principal issue in this appeal is whether the plaintiff's claim for heart and hypertension benefits under General Statutes § 7-433c is governed by the version of the statute in effect on the date of the plaintiff's hire or the date of his injury. The named defendant, the city of Milford (defendant), appeals from the decision of the Compensation Review Board (board) affirming the finding and award rendered by the Workers' Compensation Commissioner for the Third District (commissioner) of the Workers' Compensation Commission (commission), ordering the defendant to pay to the plaintiff, Antonio Vitti, all benefits required by the Workers' Compensation Act (act), General Statutes § 31-275 et seq. On appeal, the defendant claims that the board erred, as a matter of law, by (1) applying to the plaintiff's claim the version of § 7-433c that was in effect on the date of the plaintiff's injury in 2010 (2010 version), rather than the version of § 7-433c that was in effect on the date of the plaintiff's hire in 1993 (1993 version), and (2) affirming the commissioner's finding that the plaintiff's giant cell myocarditis qualifies as heart disease under § 7-433c. We disagree and, accordingly, affirm the decision of the board. The following procedural history and facts, as found by the commissioner in his finding and award, dated December 3, 2015, are relevant to our resolution of this appeal. On February 12, 1993, the defendant hired the plaintiff as a police officer after the plaintiff underwent a preemployment physical examination and was deemed suitable for employment. On August 17, 2010, the plaintiff consulted a doctor after experiencing nausea, abdominal pain, and shortness of breath for several days. At his wife's urging, the plaintiff also consulted a cardiologist, who performed an electrocardiogram that supported a differential diagnosis of coronary artery disease or cardiomyopathy. The plaintiff was later transferred to the Hospital of Saint Raphael, where he underwent a cardiac catheterization that revealed that he had mild coronary artery disease and severe systolic dysfunction. On August 20, 2010, a magnetic resonance imaging scan confirmed the electrocardiogram results and raised the possibility that the plaintiff had myocarditis. On August 23, 2010, the plaintiff was put on an intra-aortic balloon pump for cardiac support. Diagnostic tests indicated a progression of heart failure. The plaintiff was prescribed prednisone, a drug used as an immunosuppressive therapy. On August 24, 2010, he was admitted to Hartford Hospital with a diagnosis of acute myocarditis and cardiogenic shock and began to receive treatment from a cardiologist, Detlef Wencker. Dr. Wencker performed a number of tests and determined that the plaintiff needed a heart transplant. On September 29, 2010, the plaintiff underwent successful heart transplant surgery. A specimen of the plaintiff's heart that was harvested and analyzed showed evidence of giant cell myocarditis ; Dr. Wencker, thus, determined that the plaintiff was suffering from giant cell myocarditis. The plaintiff later returned to employment with the defendant's police department. Meanwhile, on September 10, 2010, the plaintiff filed a timely notice of claim with the commission, noting August 19, 2010, as the date of his injury. On August 14, 2013, after holding formal hearings on the matter, the commissioner, then acting for the fourth district of the commission, issued a finding and award in favor of the plaintiff. The commissioner found, inter alia, that the plaintiff's giant cell myocarditis constituted heart disease pursuant to the 1993 version of § 7-433c and that the defendant had failed to rebut the statutory presumption that the plaintiff's health condition or impairment caused by heart disease was causally related to his employment with the defendant. Accordingly, the commissioner ordered the defendant to pay all benefits due to the plaintiff as required by the act. Thereafter, the defendant filed a petition for review with the board. On September 16, 2014, the board rendered its decision, concluding that (1) some of the commissioner's factual findings were inconsistent with his other findings, and (2) the commissioner had committed plain error by applying the 1993 version of § 7-433c rather than the 2010 version that was in effect on the date of the plaintiff's injury. Thereupon, the board vacated the commissioner's August 14, 2013 finding and award and remanded the matter for additional proceedings. On December 3, 2015, after holding additional formal hearings on the matter, the commissioner, acting for the third district of the commission, issued a finding and award in favor of the plaintiff. The commissioner found, inter alia, that the plaintiff's giant cell myocarditis constituted heart disease pursuant to the 2010 version of § 7-433c and ordered the defendant to pay all benefits due to the plaintiff under the act. Thereafter, the defendant filed a petition for review with the board. On appeal before the board, the defendant claimed that the commissioner's conclusion was legally inconsistent with his factual findings and that the commissioner erred as a matter of law by failing to apply the 1993 version of § 7-433c to his claim. On April 21, 2017, the board affirmed the commissioner's December 3, 2015 finding and award. This appeal followed. At the outset, we set forth the standard of review and corresponding legal principles applicable to the defendant's claims. "[T]he principles [governing] our standard of review in workers' compensation appeals are well established.... The board sits as an appellate tribunal reviewing the decision of the commissioner.... [T]he review . of an appeal from the commissioner is not a de novo hearing of the facts.... [Rather, the] power and duty of determining the facts rests on the commissioner [and] . [t]he commissioner is the sole arbiter of the weight of the evidence and the credibility of witnesses . Where the subordinate facts allow for diverse inferences, the commissioner's selection of the inference to be drawn must stand unless it is based on an incorrect application of the law to the subordinate facts or from an inference illegally or unreasonably drawn from them.... "This court's review of [the board's] decisions . is similarly limited.... The conclusions drawn by [the commissioner] from the facts found must stand unless they result from an incorrect application of the law to the subordinate facts or from an inference illegally or unreasonably drawn from them.... [W]e must interpret [the commissioner's finding] with the goal of sustaining that conclusion in light of all of the other supporting evidence.... Once the commissioner makes a factual finding, [we are] bound by that finding if there is evidence in the record to support it." (Internal quotation marks omitted.) Melendez v. Fresh Start General Remodeling & Contracting, LLC , 180 Conn. App. 355, 362, 183 A.3d 670 (2018). "It is well established that [a]lthough not dispositive, we accord great weight to the construction given to the workers' compensation statutes by the commissioner and [the] board.... A state agency is not entitled, however, to special deference when its determination of a question of law has not previously been subject to judicial scrutiny.... Where . [a workers' compensation] appeal involves an issue of statutory construction that has not yet been subjected to judicial scrutiny, this court has plenary power to review the administrative decision." (Citations omitted; internal quotation marks omitted.) Lafayette v. General Dynamics Corp. , 255 Conn. 762, 770-71, 770 A.2d 1 (2001). Mindful of the foregoing, we now address the defendant's claims. I The defendant first claims that the board erred as a matter of law by applying the 2010 version of § 7-433c to the plaintiff's claim. Specifically, the defendant argues that the board should have applied the 1993 version of § 7-433c, containing a rebuttable presumption, in order to effectuate the legislative purpose underlying such legislation, namely, to provide financial relief to municipalities required to pay heart and hypertension benefits to eligible police officers and firefighters. The plaintiff argues, to the contrary, that the board properly applied the 2010 version of § 7-433c, which contains a conclusive presumption. We agree with the plaintiff. The threshold question of whether the 1993 version or the 2010 version of § 7-433c applies to the plaintiff's claim for heart and hypertension benefits presents a question of statutory interpretation. "When construing a statute, our fundamental objective is to ascertain and give effect to the apparent intent of the legislature.... In other words, we seek to determine, in a reasoned manner, the meaning of the statutory language as applied to the facts of [the] case, including the question of whether the language actually does apply.... [Pursuant to] General Statutes § 1-2z, [t]he meaning of a statute shall, in the first instance, be ascertained from the text of the statute itself and its relationship to other statutes. If, after examining such text and considering such relationship, the meaning of such text is plain and unambiguous and does not yield absurd or unworkable results, extratextual evidence of the meaning of the statute shall not be considered. The test to determine ambiguity is whether the statute, when read in context, is susceptible to more than one reasonable interpretation.... "[S]tatutes must be construed, if possible, such that no clause, sentence or word shall be superfluous, void or insignificant . When a statute is not plain and unambiguous, we also look for interpretative guidance to the legislative history and circumstances surrounding its enactment, to the legislative policy it was designed to implement, and to its relationship to existing legislation and common law principles governing the same general subject matter ." (Citations omitted; internal quotation marks omitted.) State v. Richard P. , 179 Conn. App. 676, 684, 181 A.3d 107, cert. denied, 328 Conn. 924, 181 A.3d 567 (2018). We begin our analysis with a discussion of the relevant statutory language of the 1993 and 2010 versions of § 7-433c. In 1992, the General Assembly amended § 7-433c by virtue of the passage of No. 92-81 of the 1992 Public Acts (P.A. 92-81). The language of P.A. 92-81 was codified in the 1993 revision of § 7-433c. Public Act 92-81 provides: "Section 1. Section 7-433c of the general statutes is repealed and the following is substituted in lieu thereof: "(a) In recognition of the peculiar problems of uniformed members of paid fire departments and regular members of paid police departments, and in recognition of the unusual risks attendant upon these occupations, including an unusual high degree of susceptibility to heart disease and hypertension, and in recognition that the enactment of a statute which protects such fire department and police department members against economic loss resulting from disability or death caused by hypertension or heart disease would act as an inducement in attracting and securing persons for such employment, and in recognition, that the public interest and welfare will be promoted by providing such protection for such fire department and police department members, municipal employers shall provide compensation as follows: Notwithstanding any provision of chapter 568 or any other general statute, charter, special act or ordinance to the contrary, in the event a uniformed member of a paid municipal fire department or a regular member of a paid municipal police department who successfully passed a physical examination on entry into such service, which examination failed to reveal any evidence of hypertension or heart disease, suffers either off duty or on duty any condition or impairment of health caused by hypertension or heart disease resulting in his death or his temporary or permanent, total or partial disability, he or his dependents, as the case may be, shall receive from his municipal employer compensation and medical care in the same amount and the same manner as that provided under chapter 568 if such death or disability was caused by a personal injury which arose out of and in the course of his employment and was suffered in the line of duty and within the scope of his employment, and from the municipal or state retirement system under which he is covered, he or his dependents, as the case may be, shall receive the same retirement or survivor benefits which would be paid under said system if such death or disability was caused by a personal injury which arose out of and in the course of his employment, and was suffered in the line of duty and within the scope of his employment. If successful passage of such a physical examination was, at the time of his employment, required as a condition for such employment, no proof or record of such examination shall be required as evidence in the maintenance of a claim under this section or under such municipal or state retirement systems. The benefits provided by this section shall be in lieu of any other benefits which such policeman or fireman or his dependents may be entitled to receive from his municipal employer under the provisions of chapter 568 or the municipal or state retirement system under which he is covered, except as provided by this section, as a result of any condition or impairment of health caused by hypertension or heart disease resulting in his death or his temporary or permanent, total or partial disability. As used in this section, the term 'municipal employer' shall have the same meaning and shall be defined as said term is defined in section 7-467. "(b) Notwithstanding the provisions of subsection (a) of this section, any uniformed member of a paid municipal fire department or any regular member of a paid municipal police department who begins such employment on or after July 1, 1992 (1) shall not be eligible for benefits pursuant to this section until such member has completed two years of service from the date of employment and (2) shall not be eligible for benefits pursuant to this section after such member has completed two years of service if the municipal employer proves by a preponderance of evidence that the member's condition or impairment of health caused by hypertension or heart disease is not job related. "Sec. 2. Section 7-433a of the general statutes is repealed. "Sec. 3. This act shall take effect July 1, 1992." We first note that the language set forth in subsection (a) of § 1 of P.A. 92-81 remained unchanged from that of its statutory predecessor, including the preamble thereto, which provided that the benefits required to be paid pursuant to the statute were to serve as an inducement in attracting persons to serve as members of paid fire departments and paid police departments and in recognition of the unique challenges attendant upon those occupations. Public Act 92-81 served to amend § 7-433c significantly, however, by adding subsection (b), which provided that police officers and firefighters who began their employment on or after July 1, 1992 , would be ineligible to receive benefits pursuant to the statute under two circumstances: (1) until they completed two years of service; and (2) after they completed two years of service if their employer proved by a preponderance of the evidence that their health condition or impairment caused by hypertension or heart disease was not job related. See General Statutes (Rev. to 1993) § 7-433c (b). Thus, the 1993 version of § 7-433c gave municipal employers the opportunity to rebut the statutory presumption, i.e., that a claimant's health condition or impairment caused by hypertension or heart disease was causally connected to his or her employment, which, if successful, would render the claimant ineligible for benefits under the statute. In 1996, the General Assembly again enacted significant amendments to § 7-433c. Specifically, the General Assembly amended § 7-433c by (1) eliminating the preamble, discussed previously, (2) removing the eligibility restrictions enacted under P.A. 92-81 applicable to police officers and firefighters who began their employment on or after July 1, 1992, (3) eliminating the rebuttable presumption and restoring the conclusive presumption, and (4) adding the provision that a police officer or firefighter who began his or her employment on or after July 1, 1996 , i.e., the effective date of the act, was not eligible to receive any benefits pursuant to the section. General Statutes (Rev. to 1995) § 7-433c, as amended by Public Acts 1996, No. 96-230, § 2 and 3. We pause to highlight that no other amendments to § 7-433c occurred between 1996 and 2010, and, thus, the rebuttable presumption previously available to municipal employers remained unavailable under the 2010 version of § 7-433c. Accordingly, General Statutes (Rev. to 2009) § 7-433c-the 2010 version of § 7-433c in effect on the date of the plaintiff's injury-provides in relevant part: "(a) Notwithstanding any provision of chapter 568 or any other general statute, charter, special act or ordinance to the contrary, in the event a uniformed member of a paid municipal fire department or a regular member of a paid municipal police department who successfully passed a physical examination on entry into such service, which examination failed to reveal any evidence of hypertension or heart disease, suffers either off duty or on duty any condition or impairment of health caused by hypertension or heart disease resulting in his death or his temporary or permanent, total or partial disability, he or his dependents, as the case may be, shall receive from his municipal employer compensation and medical care in the same amount and the same manner as that provided under chapter 568 if such death or disability was caused by a personal injury which arose out of and in the course of his employment and was suffered in the line of duty and within the scope of his employment, and from the municipal or state retirement system under which he is covered, he or his dependents, as the case may be, shall receive the same retirement or survivor benefits which would be paid under said system if such death or disability was caused by a personal injury which arose out of and in the course of his employment, and was suffered in the line of duty and within the scope of his employment.... "(b) Notwithstanding the provisions of subsection (a) of this section, those persons who began employment on or after July 1, 1996, shall not be eligible for any benefits pursuant to this section." We observe at the outset that, by its express terms, the 2010 version of § 7-433c makes clear that the benefits provided by the statute are not available to those persons who began employment on or after July 1, 1996. General Statutes (Rev. to 2009) § 7-433c (b). By implication, and in the absence of any other language addressing dates of employment, the statute can only be reasonably read to provide benefits to all otherwise eligible persons who began employment before July 1, 1996. That is, the statute contains no language that makes any distinction among persons who began employment prior to July 1, 1996. The defendant argues that the board erred in applying the 2010 version of § 7-433c, rather than the 1993 version. Notably, the defendant points to no statutory language in the 2010 version to suggest that it does not provide protection to an individual, like the plaintiff, who began his or her employment prior to July 1, 1996. Rather, the defendant relies exclusively on the legislative purpose underlying the adoption of P.A. 92-81, which was to provide municipalities with financial relief by replacing a conclusive presumption of causation with a rebuttable presumption. In doing so, the defendant cites no maxim of statutory interpretation or any other authority for the proposition that, in the absence of statutory language permitting such an exercise, this court can disregard the language of a statute in order to advance the legislative purpose of repealed legislation. We find such a novel proposition to be without merit. Bakelaar v. West Haven , 193 Conn. 59, 69, 475 A.2d 283 (1984) ("[w]here there is no ambiguity in the legislative commandment, this court cannot, in the interest of public policy, engraft amendments onto the statutory language" [internal quotation marks omitted] ). Even if the 2010 version of § 7-433c could be deemed ambiguous as to the legislature's intended treatment of those persons who began employment prior to July 1, 1996, and the opportunity for municipal employers to rebut the presumption in the context of claims made by such claimants, the relevant legislative history supports this court's conclusion that the 1993 version does not apply to the plaintiff's claim. That is, the legislative history underlying the General Assembly's replacement of the rebuttable presumption with a conclusive presumption in 1996 reveals that the General Assembly intended for all police officers and firefighters hired prior to July 1, 1996, to be "grandfathered in," in an effort to balance the financial concerns of municipalities with the expectations of those police officers and firefighters already employed. See 39 S. Proc., Pt. 8, 1996 Sess., pp. 2570-71, remarks of Senator Louis C. DeLuca; see also id., pp. 2579-81, remarks of Senator John A. Kissel. The legislative history is silent as to any legislative intent to have P.A. 92-81 apply to those police officers or firefighters who were hired on or after July 1, 1992, but prior to July 1, 1996. Finally, we note that the application of the 2010 version of § 7-433c to the plaintiff's claim is consistent with the common-law date of injury rule. Since 1916, Connecticut courts have looked to the statute in effect on the date on which the claimant suffered his or her injury to determine the substantive rights and obligations that exist between the parties in workers' compensation cases. See, e.g., Civardi v. Norwich , 231 Conn. 287, 293 n.8, 649 A.2d 523 (1994) ("[the date of injury] rule dates back to 1916 and has been applied consistently to all nonprocedural aspects of a case"); see also Schmidt v. O. K. Baking Co. , 90 Conn. 217, 220, 96 A. 963 (1916) (applying version of statute in effect at time claimant suffered injury). Notably, the date of injury rule provides that "new workers' compensation legislation affecting rights and obligations as between the parties, and not specifying otherwise, applie[s] only to those persons who received injuries after the legislation became effective, and not to those injured previously." Iacomacci v. Trumbull , 209 Conn. 219, 222, 550 A.2d 640 (1988). Because the present appeal does not involve whether certain legislation should be applied prospectively versus retroactively, the cases on which the defendant cursorily relies in arguing that we should reject the application of the date of injury rule- Hall v. Gilbert & Bennett Mfg. Co. , 241 Conn. 282, 695 A.2d 1051 (1997), Gil v. Courthouse One , 239 Conn. 676, 687 A.2d 146 (1997), and Rice v. Vermilyn Brown, Inc. , 232 Conn. 780, 657 A.2d 616 (1995) -are inapposite. In Hall and Gil , our Supreme Court considered the applicability of legislation that went into effect after the claimant was injured. Hall v. Gilbert & Bennett Mfg. Co. , supra, at 284-86, 301-306, 695 A.2d 1051 ; Gil v. Courthouse One , supra, at 677-78, 685-87, 687 A.2d 146. In Rice , our Supreme Court concluded that "the date of injury rule has no applicability when the claimant's rights have already expired under the terms of the act that governed the employment relationship." Rice v. Vermilyn Brown, Inc. , supra, at 788, 657 A.2d 616. Neither scenario applies in the present case. Here, the defendant's claim on appeal requires this court to choose between two sets of amendments to § 7-433c, both of which went into effect before the plaintiff's date of injury. Accordingly, while the date of injury rule does little to illuminate our analysis, we note that our conclusion is consistent with its application. In sum, we conclude that the board properly applied the 2010 version of § 7-433c to the plaintiff's claim. II The defendant next claims that the board erred as a matter of law by affirming the commissioner's finding that the plaintiff's giant cell myocarditis constitutes heart disease under § 7-433c. Specifically, the defendant argues that, regardless of which version of § 7-433c applies to the plaintiff's claim, it presented evidence to the commissioner establishing that giant cell myocarditis is not heart disease but, rather, is a systemic autoimmune disease involving an agent produced by the body outside of the heart. The plaintiff argues, to the contrary, that there is sufficient evidence in the record to support the commissioner's finding that the plaintiff's giant cell myocarditis constitutes heart disease under § 7-433c. We agree with the plaintiff. We begin by setting forth the commissioner's findings and the procedural history relevant to the defendant's claim. During formal hearings, prior to issuing the August 14, 2013 finding and award, the commissioner heard testimony from two expert witnesses and admitted into evidence multiple exhibits, including various scientific articles concerning giant cell myocarditis. Dr. Wencker, who was serving as the director of the Center for Advanced Heart Failure and Transplant at Hartford Hospital, testified on behalf of the plaintiff. Martin Krauthamer, a consulting cardiologist and former chief of cardiology at Norwalk Hospital, testified on behalf of the defendant. Dr. Wencker testified that giant cell myocarditis is a rare disease of inflammation of the heart. As far as he knows, it is not possible for giant cell myocarditis to spread to the heart from another part of the body, and a patient with giant cell myocarditis who dies, dies from heart failure, not from any other cause. The treatment of choice for giant cell myocarditis is a heart transplant. If a patient has a disease involving multiple organs, such as sarcoidosis, he or she would not be a candidate for a heart transplant. During a heart transplant procedure, the old, native heart is not completely removed, and there remains a small portion of the old heart to which the new heart is attached. After a heart transplant, all patients are given immunosuppressive therapy because a foreign body has been implanted, which stimulates autoimmune processes and could lead to the rejection of the heart. With respect to the plaintiff's treatment and diagnosis, Dr. Wencker testified, among other things, that the plaintiff's treatment team harvested a specimen from his heart and determined that it showed evidence of giant cell myocarditis. They did not find any evidence of autoimmune disease or any other diseases or medical conditions, the lack of which finding supported the plaintiff's diagnosis of "a primary cardiac condition that [was] explained by giant cell myocarditis ." Knowing that the plaintiff had giant cell myocarditis and had failed to respond to prednisone, i.e., immunosuppressive therapy, the plaintiff's treatment team inserted the intra-aortic pump into the plaintiff's heart to keep him alive. The plaintiff underwent a heart transplant, and he has not subsequently experienced a recurrence of giant cell myocarditis. In contrast, Dr. Krauthamer testified that giant cell myocarditis is a disease of the immune system that is mediated by CD4 T cells, which attack the heart. According to Dr. Krauthamer, in some cases, immunosuppressive therapy is effective in suppressing the development of giant cell myocarditis, which means that the disease must be one of the immune system. Additionally, Dr. Krauthamer testified that there is a body of medical literature showing that approximately 20 percent of patients with giant cell myocarditis have giant cells and/or granulomas in other organs in addition to those located in the heart, which suggests to him that giant cell myocarditis is an autoimmune disease affecting the heart and other organs. Moreover, according to Dr. Krauthamer, the fact that, after undergoing successful heart transplant surgery, patients with giant cell myocarditis have a 20 to 25 percent chance of developing the disease in the transplanted heart is "evidence that the immune system is still attacking the heart, and that this is not heart disease but a disease of the immune system, in that the immune system is still seeing heart cells or some substance in the heart as a pathogen and attacking it." On August 14, 2013, in consideration of the record before him, the commissioner rendered his initial finding and award, finding the testimony of Dr. Wencker to be more persuasive than that of Dr. Krauthamer on the subject of giant cell myocarditis. On December 3, 2015, on remand from the board, and in consideration of the same testimony and evidence, the commissioner expressly stated that Dr. Wencker's opinion should be accorded "great weight" and that he was "credible and persuasive" on the subject of giant cell myocarditis. Additionally, the commissioner found that sarcoidosis is different from giant cell myocarditis in that sarcoidosis affects several organs, while giant cell myocarditis is a disease "solely of the heart ." We conclude that there is support in the record for the commissioner's December 3, 2015 finding that the plaintiff's giant cell myocarditis is heart disease. Despite Dr. Krauthamer's contrasting opinions, the commissioner chose to credit heavily Dr. Wencker's testimony, which supports the commissioner's finding that the plaintiff's giant cell myocarditis is heart disease under § 7-433c. We do not disturb that determination on appeal. In support of its argument that giant cell myocarditis is not heart disease, the defendant relies on Estate of Brooks v. West Hartford , No. 4907, No. CRB 6-05-1, 2006 WL 658887 (January 24, 2006), in which the board affirmed the commissioner's finding that the claimant's sarcoidosis was not heart disease. Id., at *3. In so concluding, the board stated: "We recognize that there is an element of 'line-drawing' that must take place in defining heart disease. The body is a holistic machine, involving many interdependent parts. Yet, the ingestion of poison, the metastasizing of cancer, or the sudden impact of a bullet or a knife may all cause the heart to stop functioning by the introduction of an external agent, in contrast to coronary artery disease and vascular disease, which affect the structure of the heart itself. Sarcoidosis . clearly involves the element of an outside agent (tissue granules), even though that agent is one produced by the body itself." Id. The defendant's reliance on the evidentiary record and findings in Estate of Brooks is misplaced. In the present case, the commissioner found that Dr. Wencker credibly distinguished giant cell myocarditis from sarcoidosis. Dr. Wencker testified that, unlike giant cell myocarditis, sarcoidosis is a systemic disease and presents as granulomatous disease or scar tissue that forms in the lungs or other organs, which leads to the destruction of cells. He testified that sarcoidosis granulomas are not confined to the heart; rather, they can be seen in the lungs, liver, or other organs, whereas giant cell myocarditis is "[found] nowhere [other] than in the heart ." He testified that he has not heard of a case where granulomatous disease is found with giant cell myocarditis. Furthermore, although Dr. Wencker testified that there is evidence that giant cell myocarditis is an autoimmune disease because T cells seem to play a significant role in developing the disease, he testified that giant cell myocarditis due to autoimmune disease is believed to be "reacted against the heart, exclusively the heart." Moreover, he testified that "an autoimmune process does not need to be systemic," and one cannot conclude that giant cell myocarditis is not a primary disease of the heart simply because an autoimmune process may be present. It was within the commissioner's purview to credit this testimony as he did. In sum, because there is support in the record for the commissioner's finding that the plaintiff's giant cell myocarditis is heart disease under § 7-433c, we leave that finding undisturbed. The decision of the Compensation Review Board is affirmed. In this opinion the other judges concurred. PMA Management Corporation of New England, Inc. (PMA Management), the workers' compensation liability insurer for the named defendant, was also a defendant in the plaintiff's case before the Workers' Compensation Commissioner for the Third District and the Compensation Review Board. PMA Management is not participating in this appeal, however. We refer, therefore, to the city of Milford as the defendant in this opinion. The plaintiff filed a cross appeal from the board's denial of his motion to dismiss the defendant's appeal from the commissioner's December 3, 2015 finding and award. See footnote 8 of this opinion. The plaintiff did not address this claim in his brief to this court, however, and expressly abandoned his cross appeal during oral argument. We, therefore, have no occasion to review this claim. General Statutes (Rev. to 2009) § 7-433c was in effect on the date of the plaintiff's injury. For convenience, our references to the 2010 version are to that revision of the statute. The parties' principal dispute involves the applicability of statutory amendments to § 7-433c that went into effect in 1996. As we explain in part I of this opinion, those amendments are codified in the 2009 revision of the statute, which was in effect in 2010. Because the parties have generally adhered to the usage of the phrase "2010 version," we do the same throughout this opinion. General Statutes (Rev. to 1993) § 7-433c was in effect on the date of the plaintiff's hire on February 12, 1993. For convenience, our references to the 1993 version are to that revision of the statute. Although the parties, the commissioner, and the board referred to the 1992 version of § 7-433c, the 1993 revision, which codified certain 1992 amendments to the statute, was in effect on the date of the plaintiff's hire, and, therefore, we refer to the 1993 version in this opinion. Additionally, the defendant claims that the board erred as a matter of law by concluding that the defendant failed to rebut the presumption afforded by the 1993 version of § 7-433c, i.e., the presumption that a causal relationship exists between the claimant's alleged health condition or impairment caused by hypertension or heart disease and the claimant's employment. See Malchik v. Division of Criminal Justice , 266 Conn. 728, 740, 835 A.2d 940 (2003). We need not address this claim, however, because we conclude that the 2010 version of § 7-433c, which contains a conclusive presumption, applies in the present case. The parties originally stipulated that the 1993 version of § 7-433c, rather than the 2010 version, applied to the plaintiff's claim. The August 14, 2013 and December 3, 2015 findings and awards were both issued by Commissioner Jack R. Goldberg. On December 18, 2015, the plaintiff filed a motion to dismiss the defendant's appeal on the ground that it was untimely because the defendant failed to appeal from the board's September 16, 2014 decision, arguing that the commissioner's December 3, 2015 finding and award was not a final, appealable decision but, rather, was a "ministerial act." On January 4, 2016, the defendant filed an objection to the motion to dismiss. On April 21, 2017, the board denied the plaintiff's motion to dismiss, concluding that the December 3, 2015 finding and award was not a "ministerial act" because the commissioner "evaluated the relative merits of the evidence presented in reaching his conclusions," which "required deliberation on his part ." See Public Acts 1996, No. 96-231, § 1 (providing in part that "only those persons employed on the effective date of this act shall be eligible for any benefits provided by this section" [emphasis added] ); Public Acts 1996, No. 96-230, § 2 (adopted on same day as No. 96-231, § 1, of the 1996 Public Acts, to correct error therein, thereby providing in part that "those persons who began employment on or after the effective date of this act shall not be eligible for any benefits pursuant to this section" [emphasis added] ). General Statutes (Rev. to 1995) § 7-433c, as amended by Public Acts 1996, No. 96-230, § 2 and 3, provides in relevant part: "(a) Notwithstanding any provision of chapter 568 or any other general statute, charter, special act or ordinance to the contrary, in the event a uniformed member of a paid municipal fire department or a regular member of a paid municipal police department who successfully passed a physical examination on entry into such service, which examination failed to reveal any evidence of hypertension or heart disease, suffers either off duty or on duty any condition or impairment of health caused by hypertension or heart disease resulting in his death or his temporary or permanent, total or partial disability, he or his dependents, as the case may be, shall receive from his municipal employer compensation and medical care in the same amount and the same manner as that provided under chapter 568 if such death or disability was caused by a personal injury which arose out of and in the course of his employment and was suffered in the line of duty and within the scope of his employment, and from the municipal or state retirement system under which he is covered, he or his dependents, as the case may be, shall receive the same retirement or survivor benefits which would be paid under said system if such death or disability was caused by a personal injury which arose out of and in the course of his employment, and was suffered in the line of duty and within the scope of his employment.... "(b) Notwithstanding the provisions of subsection (a) of this section, those persons who began employment on or after July 1, 1996, shall not be eligible for any benefits pursuant to this section." During debate on the Senate floor, Senator DeLuca remarked in pertinent part: "This amendment would become the bill if it were to pass. This is the so-called grandfather bill on heart and hypertension whereby all new hires after July 1, 1996 would not be under the heart and hypertension law, but all those now currently employed as paid firemen, police in the [s ]tate of Connecticut in municipal departments, would still be under the heart and hypertension law . "So therefore, it would not take anything away from existing police and firemen , but anyone who was hired after July 1st would know that they would not be under such law because it would be discontinued for any new hires, so we would not be taking anything away from anyone , but we would also be under the understanding that anyone being hired would know that they would not be under that." (Emphasis added.) 39 S. Proc., supra, pp. 2570-71. During debate on the Senate floor, Senator Kissel stated in relevant part: "[I]t is fundamentally fair to the firefighters and the police officers that are serving our municipalities and our cities at this time.... I feel that it is far better to establish grandfathering in a bright line test that says, you know what the rules of the game are going to be if you get hired after this date." 39 S. Proc., supra, pp. 2580-81.

12510612

Jamey MURPHY et al. v. TOWN OF DARIEN et al.

Murphy v. Town of Darien

2019-07-09

SC 19983

56

73

210 A.3d 56

210

West's Atlantic Reporter, Third Series

Connecticut Supreme Court

Connecticut

2021-08-27T20:57:56.130816+00:00

Fastcase

Robinson, C.J., and Palmer, D'Auria, Mullins and Kahn, Js.

Jamey MURPHY et al. v. TOWN OF DARIEN et al.

Jamey MURPHY et al. v. TOWN OF DARIEN et al. SC 19983 Supreme Court of Connecticut. Argued November 5, 2018 Officially released July 9, 2019 James J. Healy, Hartford, with whom were Joel T. Faxon New Haven, and, on the brief, John P. D'Ambrosio, Hartford, for the appellants (plaintiffs). Robert O. Hickey, with whom, on the brief, were Beck S. Fineman Stamford, and Kerianne E. Kane, Bridgeport, for the appellee (defendant Metro-North Commuter Railroad Company). Robinson, C.J., and Palmer, D'Auria, Mullins and Kahn, Js.

8247

52537

MULLINS, J. The sole issue in this appeal is whether the Federal Railroad Safety Act of 1970 (railroad act), 49 U.S.C. § 20101 et seq., preempts the negligence claims brought by the plaintiff, Jamey Murphy, individually and as executrix of the estate of her late husband, Kevin Murphy (decedent), against the defendant Metro-North Commuter Railroad Company. We conclude that the railroad act does not preempt the plaintiff's negligence claims and, accordingly, reverse the judgment of the trial court rendered in favor of the defendant on that ground. The following facts and procedural history are relevant to this appeal. On March 4, 2013, at approximately 6:30 a.m., the decedent, was walking on the platform adjacent to the westbound tracks at the Noroton Heights train station in Darien. The decedent was awaiting his commuter train to New York City. On that morning, there was a patch of ice on the platform, which measured approximately nine feet long and approximately one foot wide. As the decedent was walking on the platform, he encountered the ice patch, slipped and fell onto the westbound track closest to the platform. At that time, one of the defendant's trains was coming around a curve and approaching the Noroton Heights station on the track closest to the westbound platform. This train was scheduled to travel through the Noroton Heights station without stopping and to do the same through four other commuter stations before completing its express route to Stamford. This type of train is referred to as a "through train." As the train approached the Noroton Heights station, the engineer sounded the train's horn. He then saw an object on the track. When the engineer realized it was a person, he sounded the horn again and applied the emergency brake. Nevertheless, the train struck the decedent. As a result of the collision, the decedent suffered severe trauma and was pronounced dead at the scene. The plaintiff subsequently brought this action against the defendant. See footnote 1 of this opinion. Specifically, the operative complaint alleges that the decedent's injuries and death were proximately caused by the negligence of the defendant when "it violated practices and customs with respect to track selection by moving a through train traveling in excess of seventy miles per hour on the track immediately adjacent to the platform when reasonable care and general practice of [the defendant] required that train to be on an interior track away from the platform." The plaintiff also alleges that the defendant's negligence caused her to suffer loss of spousal consortium. After discovery, the defendant filed a motion for summary judgment, and the plaintiff filed an objection. In support of that motion, the defendant asserted that the plaintiff's negligence claims were preempted by federal law. Specifically, the defendant asserted, in pertinent part, that the plaintiff's claims were barred by the railroad act. The trial court agreed with the defendant, concluding that, "[t]o the extent that the plaintiff's claim is viewed as relating to rail safety, it is preempted by the [railroad act]." Accordingly, the trial court granted the motion for summary judgment and rendered judgment thereon in favor of the defendant. This appeal followed. On appeal, the plaintiff asserts that the trial court incorrectly concluded that her claims were preempted by the railroad act. Specifically, the plaintiff asserts that the railroad act only preempts claims where a federal regulation covers the subject matter, and no such regulation exists for track selection. In response, the defendant asserts that the trial court properly granted its motion for summary judgment because the plaintiff's claims are preempted by the railroad act. Specifically, the defendant asserts that the subject matter of the plaintiff's claim is covered by federal regulation-namely, regulations addressing speed and track classification. We agree with the plaintiff. "The standard of review of a trial court's decision granting summary judgment is well established. Practice Book § 17-49 provides that summary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.... Our review of the trial court's decision to grant the defendant's motion for summary judgment is plenary.... On appeal, we must determine whether the legal conclusions reached by the trial court are legally and logically correct and whether they find support in the facts set out in the memorandum of decision of the trial court." (Citation omitted; internal quotation marks omitted.) Lucenti v. Laviero , 327 Conn. 764, 772-73, 176 A.3d 1 (2018). "[T]he use of a motion for summary judgment to challenge the legal sufficiency of a complaint is appropriate when the complaint fails to set forth a cause of action and the defendant can establish that the defect could not be cured by repleading." (Internal quotation marks omitted.) Ferri v. Powell-Ferri , 317 Conn. 223, 236, 116 A.3d 297 (2015). In the present case, the trial court granted the defendant's motion for summary judgment on the ground that the plaintiff's complaint was insufficient because the negligence claims raised therein were preempted by the railroad act. Accordingly, resolution of this appeal requires us to examine the trial court's conclusion that the plaintiff's negligence claims are preempted by the railroad act. In doing so, we note that the question of whether the plaintiff's negligence claims are preempted by the railroad act is one of law, and, therefore, our review is plenary. "Whether state causes of action are preempted by federal statutes and regulations is a question of law over which our review is plenary." Byrne v. Avery Center for Obstetrics & Gynecology, P.C. , 314 Conn. 433, 447, 102 A.3d 32 (2014) ; see also Hackett v. J.L.G. Properties, LLC , 285 Conn. 498, 502-504, 940 A.2d 769 (2008) (whether trial court's conclusion that municipal zoning regulations were preempted by federal law was a question of law over which court exercised plenary review). "[T]here is a strong presumption against federal preemption of state and local legislation.... This presumption is especially strong in areas traditionally occupied by the states ." (Citation omitted; internal quotation marks omitted.) Dowling v. Slotnik , 244 Conn. 781, 794, 712 A.2d 396, cert. denied sub nom. Slotnik v. Considine , 525 U.S. 1017, 119 S. Ct. 542, 142 L. Ed. 2d 451 (1998). "The ways in which federal law may [preempt] state law are well established and in the first instance turn on congressional intent.... Congress' intent to supplant state authority in a particular field may be express[ed] in the terms of the statute.... Absent explicit [preemptive] language, Congress' intent to supersede state law in a given area may nonetheless be implicit if a scheme of federal regulation is so pervasive as to make reasonable the inference that Congress left no room for the [s]tates to supplement it, if the [a]ct of Congress . touch[es] a field in which the federal interest is so dominant that the federal system will be assumed to preclude enforcement of state laws on the same subject, or if the goals sought to be obtained and the obligations imposed reveal a purpose to preclude state authority.... "The question of preemption is one of federal law, arising under the supremacy clause of the United States constitution.... Determining whether Congress has exercised its power to preempt state law is a question of legislative intent.... [A]bsent an explicit statement that Congress intends to preempt state law, courts should infer such intent where Congress has legislated comprehensively to occupy an entire field of regulation, leaving no room for the [s]tates to supplement federal law . or where the state law at issue conflicts with federal law, either because it is impossible to comply with both . or because the state law stands as an obstacle to the accomplishment and execution of congressional objectives ." (Citation omitted; internal quotation marks omitted.) Hackett v. J.L.G. Properties, LLC , supra, 285 Conn. at 503-504, 940 A.2d 769. Furthermore, the United States Supreme Court has explained that "[w]here a state statute conflicts with, or frustrates, federal law, the former must give way. U.S. Const., [a]rt. VI, cl. 2; Maryland v. Louisiana , 451 U.S. 725, [746, 101 S. Ct. 2114, 68 L. Ed. 2d 576] (1981). In the interest of avoiding unintended encroachment on the authority of the [s]tates, however, a court interpreting a federal statute pertaining to a subject traditionally governed by state law will be reluctant to find [preemption]. Thus, [preemption] will not lie unless it is 'the clear and manifest purpose of Congress.' Rice v. Santa Fe Elevator Corp. , 331 U.S. 218, [230, 67 S. Ct. 1146, 91 L. Ed. 1447] (1947). Evidence of [preemptive] purpose is sought in the text and structure of the statute at issue. Shaw v. Delta Air Lines, Inc. , 463 U.S. 85, [95, 103 S. Ct. 2890, 77 L. Ed. 2d 490] (1983). If the statute contains an express [preemption] clause, the task of statutory construction must in the first instance focus on the plain wording of the clause, which necessarily contains the best evidence of Congress' [preemptive] intent." CSX Transportation, Inc. v. Easterwood , 507 U.S. 658, 663-64, 113 S. Ct. 1732, 123 L. Ed. 2d 387 (1993) ; see also id., at 673-75, 113 S. Ct. 1732 (concluding that negligence claim relating to failure to maintain adequate warning devices at rail crossing was not preempted by railroad act, but negligence claim alleging excessive speed was preempted by railroad act). A brief review of the railroad act provides context for our analysis. The railroad act "was enacted in 1970 to promote safety in all areas of railroad operations and to reduce [railroad related] accidents, and to reduce deaths and injuries to persons . [Under the railroad act], the Secretary [of Transportation] is given broad powers to prescribe, as necessary, appropriate rules, regulations, orders, and standards for all areas of railroad safety ." (Citations omitted; internal quotation marks omitted.) Id., at 661-63, 113 S. Ct. 1732 ; see also 49 U.S.C. § 20101 (2012) (statement of legislative purpose); 49 U.S.C. § 20103 (a) (2012) (delegating regulatory authority to Secretary of Transportation). The railroad act contains an express preemption clause, codified at 49 U.S.C. § 20106, entitled "Preemption." That statute provides in relevant part: "(a) National Uniformity of Regulation.-(1) Laws, regulations, and orders related to railroad safety and laws, regulations, and orders related to railroad security shall be nationally uniform to the extent practicable. "(2) A State may adopt or continue in force a law, regulation, or order related to railroad safety or security until the Secretary of Transportation (with respect to railroad safety matters), or the Secretary of Homeland Security (with respect to railroad security matters), prescribes a regulation or issues an order covering the subject matter of the State requirement. A State may adopt or continue in force an additional or more stringent law, regulation, or order related to railroad safety or security when the law, regulation, or order- "(A) is necessary to eliminate or reduce an essentially local safety or security hazard; "(B) is not incompatible with a law, regulation, or order of the United States Government; and "(C) does not unreasonably burden interstate commerce." 49 U.S.C. § 20106 (a) (2012). In 2007, Congress amended the railroad act preemption clause by adding subsection (b). See Implementing Recommendations of the 9/11 Commission Act of 2007, Pub. L. No. 110-53, § 1528, 121 Stat. 266, 453. That subsection, which is entitled "Clarification Regarding State Law Causes of Action," provides in relevant part: "Nothing in this section shall be construed to preempt an action under State law seeking damages for personal injury, death, or property damage alleging that a party- "(A) has failed to comply with the Federal standard of care established by a regulation or order issued by the Secretary of Transportation (with respect to railroad safety matters), or the Secretary of Homeland Security (with respect to railroad security matters), covering the subject matter as provided in subsection (a) of this section; "(B) has failed to comply with its own plan, rule, or standard that it created pursuant to a regulation or order issued by either of the Secretaries; or "(C) has failed to comply with a State law, regulation, or order that is not incompatible with subsection (a) (2)." 49 U.S.C. § 20106 (b) (1) (2012). As a result of this amendment, federal courts have concluded that "the preemption analysis under the amended [railroad act] requires a two step process. We first ask whether the defendant allegedly violated either a federal standard of care or an internal rule that was created pursuant to a federal regulation. If so, the plaintiff's claim avoids preemption. [See 49 U.S.C. § 20106 (b) (1) (A) and (B) (2012) ]. Otherwise, we move to the second step and ask whether any federal regulation covers the plaintiff's claim. [See 49 U.S.C. § 20106 (a) (2) (2012) ]. A regulation covers-and thus preempts-the plaintiff's claim if it 'substantially subsume[s] the subject matter' of that claim. [ CSX Transportation, Inc. v. Easterwood , supra, 507 U.S. at 664, 113 S.Ct. 1732 ] (noting that the regulation must do more than 'touch upon or relate to [the] subject matter')." Zimmerman v. Norfolk Southern Corp. , 706 F.3d 170, 178 (3d Cir.), cert. denied, 571 U.S. 826, 134 S. Ct. 164, 187 L. Ed. 2d 41 (2013) ; see also Grade v. BNSF Railway Co. , 676 F.3d 680, 686 (8th Cir. 2012) ; Henning v. Union Pacific Railroad Co. , 530 F.3d 1206, 1214-16 (10th Cir. 2008). The parties agree that the plaintiff's claim does not allege that the defendant violated any regulation or order, or failed to comply with its own plan, rule, or standard of care that it adopted pursuant to a federal regulation. Accordingly, the parties agree that the appropriate preemption analysis is contained within 49 U.S.C. § 20106 (a) (2). This provision provides that a state law cause of action is preempted if the Secretary of Transportation or the Secretary of Homeland Security has "prescribe[d] a regulation or issue[d] an order covering the subject matter of the State requirement" on which the plaintiff's negligence claim is based. (Emphasis added.) 49 U.S.C. § 20106 (a) (2) (2012). Thus, the issue before this court is whether the Secretary of Transportation or the Secretary of Homeland Security has promulgated regulations covering the same subject matter as Connecticut negligence law pertaining to the selection of an interior track for a through train. As the United States Supreme Court has explained, "[t]o prevail on the claim that the regulations have [preemptive] effect, [a] petitioner must establish more than that they 'touch upon' or 'relate to' that subject matter . for 'covering' is a more restrictive term which indicates that [preemption] will lie only if the federal regulations substantially subsume the subject matter of the relevant state law. [See Webster's Third New International Dictionary (1961) p. 524] (in the phrase 'policy clauses covering the situation,' cover means 'to comprise, include, or embrace in an effective scope of treatment or operation'). The term 'covering' is in turn employed within a provision that displays considerable solicitude for state law in that its express [preemption] clause is both prefaced and succeeded by express saving clauses." (Citation omitted.) CSX Transportation, Inc. v. Easterwood , supra, 507 U.S. at 664-65, 113 S.Ct. 1732. In the present case, the plaintiff's claim alleges that the defendant was negligent in selecting the track immediately adjacent to the platform to run a "through train." As we have explained, in order to resolve the plaintiff's appeal, we must determine whether there is a federal regulation that covers, or substantially subsumes, the plaintiff's claim. The defendant does not point to any federal regulation that expressly governs track selection. Indeed, the trial court recognized that, "[a]s both parties have conceded, there is no federal rule or regulation that specifically governs track selection." Nevertheless, the trial court reasoned that, "[al]though there is not a federal regulation that specifically covers track selection, the federal regulations in regards to tracks is extensive and, therefore, subsume the subject matter of the plaintiff's claim." In support of its conclusion, the trial court relied on several specific regulations contained within part 213 of title 49 of the Code of Federal Regulations, which is entitled "Track Safety Standards." See 49 C.F.R. § 213.9 (2012) (setting speed limits for trains operating on each class of track); 49 C.F.R. § 213.53 (2012) (measuring gage of track); 49 C.F.R. § 213.57 (2012) (establishing speed limitations based on curvature and elevation of track); 49 C.F.R. § 213.109 (2012) (establishing requirements for crossties); 49 C.F.R. § 213.121 (2012) (establishing requirements for rail joints); 49 C.F.R. § 213.231 et seq. (2012) (establishing requirements for track inspection). The trial court reasoned that, "[a]s part of an overall scheme to standardize railroad transportation and specifically as a scheme that expansively covers railroad track safety . the subject matter of the plaintiff's claim is clearly 'covered' and 'substantially subsumed' by these federal regulations." (Citation omitted; emphasis omitted.) We disagree. We first turn to the regulations on which the trial court relied, namely, part 213 of title 49 of the Code of Federal Regulations. The scope of these regulations is explained as follows: "This part prescribes minimum safety requirements for railroad track that is part of the general railroad system of transportation. In general, the requirements prescribed in this part apply to specific track conditions existing in isolation. Therefore, a combination of track conditions, none of which individually amounts to a deviation from the requirements in this part, may require remedial action to provide for safe operations over that track. This part does not restrict a railroad from adopting and enforcing additional or more stringent requirements not inconsistent with this part." 49 C.F.R. § 213.1 (a) (2012). Accordingly, part 213 of title 49 of the Code of Federal Regulations expressly states that it provides minimum safety requirements and that conditions may be present that require a greater standard of care. Indeed, although the regulations cited by the trial court touch upon tracks, nothing in those regulations indicates that they subsume the subject matter of selecting tracks for through trains. Those regulations set forth how the gage of a track is to be measured and the required size for various tracks. See 49 C.F.R. § 213.53 (2012). Another regulation regulates the maximum elevation of the outer rail on a curve. See 49 C.F.R. § 213.57 (2012). Other regulations regulate the components of a rail-i.e. crossties and rail joints. See 49 C.F.R. § 213.109 and 213.121 (2012). Yet another regulation delineates the speed a train can travel on tracks of various classes. See 49 C.F.R. § 213.9 (2012). Each of these regulations covers a different subject matter than that raised by the plaintiff's claim-namely, selection of an interior or exterior track for operation of a through train. None of the regulations relied on by the defendant or cited by the trial court even mentions selection of an interior or exterior track. Accordingly, the express terms of these provisions support a conclusion that the plaintiff's claim is not covered by the regulations. Although no court has addressed a track selection claim similar to the plaintiff's claim in this case, a review of the case law regarding preemption of state law claims under the railroad act is instructive. For instance, in CSX Transportation, Inc. v. Easterwood , supra, 507 U.S. at 667-68, 113 S.Ct. 1732, the United States Supreme Court held that the railroad act did not preempt a state common-law negligence claim regarding the railroad's duty to maintain warning devices at a railroad crossing. In doing so, the United States Supreme Court rejected the railroad's claim that the subject matter of the plaintiff's claim was covered by regulations requiring that all traffic control devices installed comply with the Federal Highway Administration's manual on uniform traffic control devices. Id., at 665-66, 113 S. Ct. 1732. Instead, the United States Supreme Court explained that, although the states were required to employ warning devices that conformed to standards set forth in the regulations in order to obtain federal funding, state negligence law always played a role in maintaining safety at railroad crossings, and "there is no explicit indication in the regulations . that the terms of the [f]ederal [g]overnment's bargain with the [s]tates require modification of this regime of separate spheres of responsibility." Id., at 668, 113 S. Ct. 1732. Accordingly, the United States Supreme Court reasoned that, "[i]n light of the relatively stringent standard set by the language of [the railroad act's preemption provision] and the presumption against preemption, and given that the regulations provide no affirmative indication of their effect on negligence law, [the court is] not prepared to find [preemption] solely on the strength of the general mandates of [regulations governing warning devices at railroad crossings]." Id. On the other hand, in Norfolk Southern Railway Co. v. Shanklin , 529 U.S. 344, 352-53, 120 S. Ct. 1467, 146 L. Ed. 2d 374 (2000), the United States Supreme Court did conclude that a state law negligence claim alleging that there were inadequate warning signs at a railroad crossing was preempted when the federal regulations applicable to that railroad crossing required the installation of a particular warning device at a particular railway crossing. Accordingly, the United States Supreme Court concluded that, "[b]ecause those regulations establish requirements as to the installation of particular warning devices . when [those regulations] are applicable, state tort law is [preempted].... Unlike the [regulations at issue in Easterwood , these regulations], displace state and private [decision-making] authority by establishing a [federal law] requirement that certain protective devices be installed or federal approval obtained.... As a result, those regulations effectively set the terms under which railroads are to participate in the improvement of crossings." (Citations omitted; internal quotation marks omitted.) Id. The United States Court of Appeals for the Second Circuit also has examined whether a state law claim was preempted by the railroad act. In Island Park, LLC v. CSX Transportation , 559 F.3d 96, 108 (2d Cir. 2009), the Second Circuit concluded that a state agency order to close a private rail crossing was not preempted by the railroad act. Although it concluded that the closure order implicated railroad safety, it concluded that it was not preempted by the railroad act because the railroad act "allows states to impose rail safety requirements as long as they are not inconsistent with federal mandates. [The plaintiff] points to no federal rail safety regulation that covers rail crossing closures. Accordingly, the state closure order is not [preempted] by [the railroad act]." Id. In Strozyk v. Norfolk Southern Corp. , 358 F.3d 268, 269 (3d Cir. 2004), the United States Court of Appeals for the Third Circuit concluded that a state common-law negligence claim against a railroad alleging poor visibility at a railroad crossing was not preempted by the railroad act. The railroad asserted that the plaintiff's claim was preempted by the regulations because the regulations addressing the installation of warning devices at railroad crossings mentioned limited visibility. Id., at 273. The Third Circuit rejected the railroad's claim and concluded that a regulation's "bare mention" of limited visibility did "not indicate an intent to regulate" that condition. Id. Similarly, the United States Court of Appeals for the Sixth Circuit concluded that a state law negligence claim alleging that vegetative growth on railroad property obstructed the motorist's view of an oncoming train was not preempted. Shanklin v. Norfolk Southern Railway Co. , 369 F.3d 978, 987 (6th Cir. 2004) ; see also footnote 8 of this opinion. The railroad asserted that the plaintiff's claim was preempted by regulations under the railroad act that addressed the installation of warning devices and one that provided that "[v]egetation on railroad property which is on or immediately adjacent to [the] roadbed shall be controlled so that it does not . [o]bstruct visibility of railroad signs and signals," preempted the plaintiff's claim. (Internal quotation marks omitted.) Id. The Sixth Circuit explained that the regulation regarding vegetation preempts any state law claim "regarding vegetative growth that blocks a sign immediately adjacent to a crossing, but it does not impose a broader duty to control vegetation so that it does not obstruct a motorist's visibility of oncoming trains." (Internal quotation marks omitted.) Id. Accordingly, the Sixth Circuit concluded that the plaintiff's claim was not preempted because, although these regulations touched upon vegetation, they did not substantially subsume the subject matter of the plaintiff's claim. Id., at 988 ; see also 49 C.F.R. § 213.37 (b) (1993). The Third Circuit addressed preemption under the railroad act again in MD Mall Associates, LLC v. CSX Transportation, Inc. , 715 F.3d 479, 491 (3d Cir. 2013), cert. denied, 571 U.S. 1126, 134 S. Ct. 905, 187 L. Ed. 2d 778 (2014). In that case, the Third Circuit concluded that a mall owner's state law claim against a railroad owner alleging negligence and storm water trespass was not preempted by the railroad act. Id., at 490-91. In doing so, the Third Circuit rejected the railroad owner's claim that a regulation promulgated under the railroad act, which requires that a railroad's drainage facilities "under or immediately adjacent" to the track "be maintained and kept free of obstruction" preempted the mall owner's state law claims. (Internal quotation marks omitted.) Id. ; see also 49 C.F.R. § 213.33 (2010). The Third Circuit explained that it could not "read the silence of [ 49 C.F.R.] § 213.33 on a railroad's duties to its neighbors when addressing track drainage as an express abrogation of state storm water trespass law. Given that the [railroad act] provides no express authorization for disposing of drainage onto an adjoining property, the presumption must be that state laws regulating such action survive ." (Citation omitted.) MD Mall Associate, LLC v. CSX Transportation, Inc. , at 491. Another instructive case is Haynes v. National Railroad Passenger Corp. , 423 F. Supp. 2d 1073 (C.D. Cal. 2006). In Haynes , the estate and children of a passenger who suffered a deep vein thrombosis after traveling on an Amtrak train from Chicago to Los Angeles brought an action in state court alleging that Amtrak violated common-law and statutory duties of care that common carriers must exercise with respect to their passengers. Id., at 1077. Specifically, the plaintiffs alleged that dangerous seats and seating configurations in Amtrak trains and Amtrak's failure to warn passengers about deep vein thrombosis caused the decedent to suffer deep vein thrombosis and die. Id., at 1078. The railroad filed a motion to dismiss for failure to state a claim on which relief can be granted. Id., at 1077. In its motion, the railroad claimed, inter alia, that the plaintiffs' claims were preempted by the railroad act. Id., at 1081. Specifically, the railroad claimed that the federal regulations addressing seats and their configuration on passenger trains covered the subject matter of the plaintiffs' complaint, thereby rendering the plaintiff's claim preempted by the railroad act. Id., at 1082. The United States District Court for the Central District of California explained that federal regulations addressed safe passenger seats, how seats must be fastened to the car body, the load the seats must be able to withstand, and the inspection process for train seats. Id., at 1082. Nevertheless, the court explained that "[t]he regulations relied upon by the [railroad] govern seat safety for circumstances involving train crashes and broken seats. There is no discussion in the regulations of leg room, seat pitch, or ensuring that seats do not contribute to discomfort or illnesses like [deep vein thrombosis ]. The [c]ourt finds that there are no federal safety or security regulations that substantially subsume state tort actions regarding potential of [deep vein thrombosis ] from poorly designed seats or seating arrangements." Id. The court also concluded that there were no federal regulations that substantially subsumed the plaintiffs' claims based on a duty to warn passengers about deep vein thrombosis. Id. The court reasoned that, although there are federal regulations regarding passenger safety on trains in an emergency situation, because deep vein thrombosis arises in nonemergency situations, the safety regulations did not subsume the subject matter of deep vein thrombosis warnings. Id. The rationale employed in Haynes is instructive in the present case because it demonstrates that, even when courts have found an extensive regulatory scheme in a particular area-such as passenger seating on trains-the breadth of regulation does not mean that the subject matter of a complaint is substantially subsumed by the regulations. A review of the case law regarding preemption under the railroad act demonstrates that courts have been reticent to find that a regulatory scheme covers or substantially subsumes the subject matter of a plaintiff's claim. Indeed, even when regulations form a broad regulatory scheme or mention the subject of a plaintiff's claim, courts have not found preemption unless the subject matter is clearly subsumed by the regulations. This construction of the railroad act is consistent with the principle that, "[i]n the interest of avoiding unintended encroachment on the authority of the [s]tates . a court interpreting a federal statute pertaining to a subject traditionally governed by state law will be reluctant to find [preemption]. Thus, [preemption] will not lie unless it is 'the clear and manifest purpose of Congress.' " CSX Transportation, Inc. v. Easterwood , supra, 507 U.S. at 663-64, 113 S.Ct. 1732. Furthermore, the limited application of preemption of the railroad act is also consistent with the express preemption provision contained in the railroad act, which "displays considerable solicitude for state law ." Id., at 665, 113 S. Ct. 1732. In the present case, the defendant asserts that the trial court correctly concluded that, although there is no regulation expressly addressing the selection of an interior or exterior track for trains, the general regulatory scheme of track classification substantially subsumes the subject matter of the plaintiff's claim. We disagree. The defendant claims, and trial court concluded, that Zimmerman v. Norfolk Southern Corp. , supra, 706 F.3d at 170, supports the defendant's contention that the plaintiff's claim is preempted by the act. In Zimmerman , the plaintiff was a motorcyclist who was partially paralyzed in a collision with a train at a railroad crossing. Id., at 175. The plaintiff claimed, inter alia, that the railroad should have been liable for misclassification of the track. Id., at 186-87. Specifically, the plaintiff claimed that the railroad violated a federal standard of care established by part 213 of title 49 of the Code of Federal Regulations, which contains regulations for each class of tracks. Id., at 187. The plaintiff claimed that, under these regulations, the railroad was obligated to classify the track as class two or higher due to the limited sight distance on the track. Id. The Third Circuit rejected the plaintiff's claim that there was a federal standard of care regarding classification of the tracks based on sight distance. Id. Instead, the Third Circuit concluded that no regulation established the sight distance necessary for each class of tracks, so no relevant federal standard of care existed. Id. The Third Circuit further explained that, "[d]espite the absence of a federal standard of care, [the plaintiff] may still avoid preemption if his claim falls outside the scope of the original [railroad act] preemption provision.... As we have previously made clear, state claims are within the scope of this provision if federal regulations 'cover' or 'substantially subsume' the subject matter of the claims.... The regulations must do more than 'touch upon or relate to that subject matter.' " (Citations omitted.) Id. The Third Circuit then concluded that the regulations in part 213 of title 29 of the Code of Federal Regulations "subsume[d] [the plaintiff's] misclassification claim. These regulations establish varying requirements for each class of tracks-governing everything from gage, alinement, and elevation, to crossties, curve speed, and rail joints." Id. The trial court in this case relied on the following language from Zimmerman : "The regulations are part of a broad scheme to standardize railroad tracks. Admittedly, there is no regulation that classifies tracks based on sight distance. But the breadth of the scheme implies a decision not to classify on that basis. At the very least, it implies that the federal government did not want states to decide how tracks would be classified. We doubt that the federal government would create a detailed system with the expectation that states would impose extra classification requirements-especially given the risk that the requirements would vary from state to state. This regulatory scheme preempts [the plaintiff's] misclassification claim." Id. The trial court in this case then concluded that, "[a]s in Zimmerman , the plaintiff's track selection claim is subsumed by this regulatory scheme. Although there is no regulation that classifies tracks on the basis of track selection, such as the choice of using an exterior or interior track, 'the breadth of the scheme implies a decision not to classify on that basis.' . As part of an overall scheme . that expansively covers railroad track safety . the subject matter of the plaintiff's claim is clearly 'covered' and 'substantially subsumed' by these federal regulations.... The plaintiff's track selection claim is therefore preempted by this regulatory scheme." (Citations omitted; emphasis in original.) We disagree that the foregoing analysis from Zimmerman is applicable to the plaintiff's claim in the present case. Unlike Zimmerman , the claim in this case is not based on an area that is clearly covered by the federal regulations. In Zimmerman , it was undisputed that the regulations dictate whether a track is classified as class one, two or three on the basis of various factors set forth in those regulations. Zimmerman v. Norfolk Southern Corp. , supra, 706 F.3d at 179. It was also undisputed in Zimmerman that the basis of the claim at issue was whether the defendant properly classified the track. Id., at 187. In Zimmerman , the plaintiff's claim essentially sought to impose another factor into the decision of how to classify tracks-namely, the sight distance of a particular track. Id. In concluding that the claim in Zimmerman was preempted, the Third Circuit concluded that the regulations already covered and subsumed the factors by which a track should be classified as class one, two or three. Id. Indeed, as the United States Court of Appeals for the Fifth Circuit has explained, preemption under the railroad act "is even more disfavored than preemption generally.... The restrictive terms of its preemption provision [indicate] that [preemption] will lie only if the federal regulations substantially subsume the subject matter of the relevant state law.... When applying [railroad act] preemption, the [c]ourt eschews broad categories such as railroad safety, focusing instead on the specific subject matter contained in the federal regulation.... In sum, when deciding whether the [railroad act] preempts state laws designed to improve railroad safety, we interpret the relevant federal regulations narrowly to ensure that the careful balance that Congress has struck between state and federal regulatory authority is not improperly disrupted in favor of the federal government." (Citations omitted; emphasis in original; footnote omitted; internal quotation marks omitted.) United Transportation Union v. Foster , 205 F.3d 851, 860 (5th Cir. 2000). In the present case, the regulations do not differentiate between interior or exterior tracks and, most certainly, do not provide a set of factors by which interior or exterior tracks are chosen. Accordingly, the regulations do not cover the selection of interior or exterior tracks. Unlike the trial court, we are not persuaded that the failure to address the selection of interior or exterior tracks implies a decision not to differentiate between the two. As the case law we have discussed herein demonstrates, in light of the limited preemption provision in the railroad act, the mere exclusion of a topic from the federal regulations does not imply an intent to preempt state law on that topic. On the basis of the foregoing, although we agree with the trial court that there are extensive federal regulations that address various topics related to tracks, we cannot conclude that the subject matter of the plaintiff's negligence claim-namely, the selection of an exterior track for operating a through train-is "covered by" a federal regulation. To the contrary, the federal regulations relating to tracks touch upon, but do not substantially subsume, the subject matter of the plaintiff's complaint. Our conclusion is further buttressed by a review of cases in which a court has found that a federal regulation covers, or substantially subsumes, the subject matter of a complaint. For instance, in In re Derailment Cases , 416 F.3d 787, 794 (8th Cir. 2005), the United States Court of Appeals for the Eighth Circuit concluded that the plaintiff's claim alleging negligent inspection of freight cars was preempted by the railroad act. The Eighth Circuit concluded that the plaintiff's claim was preempted under the railroad act because "[i]t is clear that the [federal railway administration's] regulations are intended to prevent negligent inspection by setting forth minimum qualifications for inspectors, specifying certain aspects of freight cars that must be inspected, providing agency monitoring of the inspectors, and establishing a civil enforcement regime. These intentions are buttressed by the [federal railway administration] inspection manual for federal and state inspectors." Id. ; see also BNSF Railway Co. v. Swanson , 533 F.3d 618, 619-20 (8th Cir. 2008) (concluding that state statute making it illegal to, inter alia, "discipline, harass or intimidate [a railroad] employee to discourage the employee from receiving medical attention" was preempted by federal regulation mandating that railroads adopt policy statement declaring that "harassment or intimidation of any person that is calculated to discourage or prevent such person from receiving proper medical treatment or from reporting such accident, incident, injury or illness will not be permitted or tolerated" [emphasis omitted; internal quotation marks omitted] ), citing 49 C.F.R. § 225.33 (a) (1) (2008). As these cases demonstrate, courts have found preemption under the railroad act only when there is a federal regulation that thoroughly addresses the safety concern raised in the plaintiff's complaint, not merely mentions it or tangentially relates to it. See CSX Transportation, Inc. v. Easterwood , supra, 507 U.S. at 664-65, 113 S.Ct. 1732 (regulations cover subject matter of plaintiff's complaint when they "comprise, include, or embrace [that concern] in an effective scope of treatment or operation" [internal quotation marks omitted] ). The defendant further asserts that the plaintiff's claim is preempted because, although framed as a claim relating to track selection, it is essentially an excessive speed claim, which is preempted by the railroad act. We disagree. It is well established that there are federal regulations that cover the subject matter of train speed with respect to track conditions. See id., at 675, 113 S. Ct. 1732 ("concluding that relevant regulation "should be understood as covering the subject matter of train speed with respect to track conditions, including the conditions posed by grade crossings"), citing 49 C.F.R. § 213.9 (a) (1992). To be clear, the plaintiff in this case does not assert that the defendant violated a federal standard of care because the train was not traveling above the speed limit. Cf. Zimmerman v. Norfolk Southern Corp. , supra, 706 F.3d at 179. Accordingly, if the plaintiff's claim was based on the speed of the train, it would be preempted by the railroad act because all parties agree that the train was traveling within the established speed limit. The plaintiff claims that the defendant "violated practices and customs with respect to track selection by moving a through train traveling in excess of seventy miles per hour on the track immediately adjacent to the platform when reasonable care and general practice of [the defendant] required that train to be on an interior track away from the platform." The defendant asserts that this "can only be characterized as a speed claim." We disagree. We find Dresser v. Union Pacific Railroad Co. , 282 Neb. 537, 809 N.W.2d 713 (2011), instructive. In Dresser , a motor vehicle passenger who was injured in a collision with a train brought a state law negligence action against the railroad company. Id., at 538, 809 N.W.2d 713. The complaint alleged that the train crew was negligent in failing to maintain a proper lookout, failing to slow or stop the train to avoid the collision, and failing to sound the horn. Id., at 540, 809 N.W.2d 713. The trial court concluded that the plaintiff's claim was preempted. Id., at 541, 809 N.W.2d 713. The trial court reasoned that the engineer's failure to exercise ordinary care to avoid the accident by failing to slow or stop the train was essentially an excessive speed claim, which was preempted by the railroad act. Id., at 549, 809 N.W.2d 713. The Supreme Court of Nebraska reversed the judgment of the trial court. Id., at 553, 809 N.W.2d 713. In doing so, the Supreme Court of Nebraska reasoned: "We do not agree with the [trial] court that appellants' state law negligence claim based on [the railroad's] alleged failure to exercise ordinary care once it appeared that a collision would probably occur is speed based and thus preempted. State tort law is not preempted 'until' a federal regulation 'cover[s]' the same subject matter, and we are not presented with any federal regulations that cover a railroad's duty to exercise ordinary care in situations where collisions are imminent. The mere fact that the speed the train is traveling is tangentially related to how quickly it can be stopped does not transform the claim into an excessive speed claim. Nebraska tort law duties to exercise reasonable care could be violated even if the federal train speed limits are being followed." (Footnote omitted.) Id. Similarly, in Bashir v. National Railroad Passenger Corp. , 929 F. Supp. 404, 412 (S.D. Fla. 1996), aff'd sub nom. Bashir v. Amtrak , 119 F.3d 929 (11th Cir. 1997), the United States District Court for the Southern District of Florida concluded that a plaintiff's state law negligence claims based on a failure to stop was not preempted by the railroad act. The railroad had asserted that the failure to stop claims were covered by the federal regulations on excessive speed. Id. The court rejected that claim, reasoning that the railroad was "quite correct" that the relevant regulation; see 49 C.F.R. § 213.9 (1993) ; "preempts inconsistent state laws regarding speed. As the [c]ourt understands [the] [p]laintiff's negligent failure to stop claims, however, they are not necessarily inconsistent with [that regulation]. This section simply prescribes the maximum speed at which trains may operate given certain track types and conditions. It is silent as to the instances in which a train must stop to avoid colliding with an obstruction on the tracks. State laws that direct a train to stop when, for instance, a child is standing on the tracks do not conflict with federal speed limits that prescribe the speed at which the same train may travel in normal circumstances on the same track. Indeed, if [the railroad's] position were correct, railroads would be insulated from state tort liability regardless of whether a train attempted to stop to avoid even the most obvious obstructions, simply because federal law prescribes the speed at which they may travel absent obstructions. Easterwood does not support this result." Bashir v. National Railroad Passenger Corp. , supra, at 412. Like the claims in Dresser and Bashir , the speed of the train in the present case is tangentially related to the plaintiff's claim. In other words, the plaintiff's claim alleges that the defendant was negligent in choosing to operate a train that did not stop at the Noroton Heights station on the track immediately adjacent to the platform. Because the plaintiff's claim relates to the fact that the train did not stop at the Noroton Heights station, the speed of that train is tangentially related to the plaintiff's claim. As the courts in Dresser and Bashir explained, title 49 of the Code of Federal Regulations, § 213.9, prescribes only the maximum speed at which trains may operate on certain track classifications. Nothing in that regulation covers the subject of the plaintiff's claim-namely, whether it is negligent to operate a through train on a track immediately adjacent to the platform when another track is available. Accordingly, we disagree that the plaintiff's claim is essentially an excessive speed claim that is preempted by the railroad act. In light of the presumption against preemption, the narrow preemption provision in the railroad act, the express acknowledgment in title 49 of the Code of Federal Regulations, § 213.1, that the federal regulations provide the minimum safety standards, and the lack of a regulatory provision expressly addressing track selection, we cannot conclude that the defendant has met its burden of demonstrating that the plaintiff's claim was preempted under the railroad act. Accordingly, we conclude that the trial court improperly granted the defendant's motion for summary judgment. The judgment is reversed and the case is remanded with direction to deny the defendant's motion for summary judgment and for further proceedings according to law. In this opinion the other justices concurred. Although the plaintiff also brought claims against the town of Darien and Wilton Enterprises, Inc., she has subsequently withdrawn those claims. For the sake of simplicity, we refer to Metro-North Commuter Railroad Company as the defendant. During the underlying proceedings, the defendant asserted that the Interstate Commerce Commission Termination Act, 49 U.S.C. § 10101 et seq., also preempted the plaintiff's negligence claims. The defendant has withdrawn that claim, and, therefore, we do not address it in the present appeal. We note that the plaintiff amended her complaint five times. The operative complaint was filed on March 21, 2017. The plaintiff appealed from the judgment of the trial court to the Appellate Court, and we transferred the appeal to this court pursuant to General Statutes § 51-199 (c) and Practice Book § 65-1. To the extent that the trial court's decision can be read to conclude that the plaintiff's negligence claim relating to track selection is preempted by the railroad act solely because "there is no federal standard of care for the defendant to have violated," we disagree. Instead, we conclude that, under the two part test adopted by federal courts, if there is no express regulation governing the subject area of the plaintiff's complaint, the court must next consider whether there is a federal regulation or order covering the subject matter of state law related to the plaintiff's claim in order to resolve the question of preemption. Indeed, both parties agree on the applicable test. We recognize that CSX Transportation, Inc. v. Easterwood , supra, 507 U.S. at 661-65, 113 S.Ct. 1732, was decided prior to the 2007 amendment to the preemption provision in the railroad act. Nevertheless, it is well established that the interpretation of the preemption provision in Easterwood remains good law for the purpose of interpreting 49 U.S.C. § 20106 (a). See, e.g., Zimmerman v. Norfolk Southern Corp. , supra, 706 F.3d at 177-78. As noted subsequently in this opinion, a separate claim that the railroad had failed to remove excessive vegetation from the area surrounding the crossing was the subject of further proceedings on remand. See Shanklin v. Norfolk Southern Railway Co. , 369 F.3d 978, 987 (6th Cir. 2004). In Haynes v. National Railroad Passenger Corp. , supra, 423 F. Supp. 2d at 1073, the railroad also asserted that the plaintiffs' claims were preempted under the commerce clause of the United States constitution because allowing states to regulate these areas would place an undue burden on the flow of commerce across state borders. See U.S. Const., art. I, § 8, cl. 3. The court concluded that the plaintiffs' claims regarding seats and seat configuration were preempted under a dormant commerce clause analysis but that the plaintiffs' claims relating to the railroad's duty to warn passengers were not. Haynes v. National Railroad Passenger Corp. , supra, at 1083-84. We also note that, in California, the California High-Speed Train Project regulates track selection for through trains and has done so for almost ten years. See California High-Speed Train Project, "Technical Memorandum 2.2.4: High-Speed Train Station Platform Geometric Design" (2010) p. 11, available at http://www.hsr.ca.gov/docs/programs/eir_memos/Proj_Guidelines_TM2_2_4R01.pdf (last visited July 3, 2019). This memorandum provides that, "[w]here practical, do not locate the platform adjacent to mainline high-speed tracks. If this is not possible, passenger access to platforms adjacent to tracks where trains may pass through stations without stopping may require mitigation ." Id. The existence of the regulatory scheme in California further supports our conclusion that the railroad act does not preempt state law governing track selection. The plaintiff's initial complaint included a claim that the defendant "failed to maintain a proper operating speed of the train ." The defendant subsequently filed motions in limine seeking to preclude the plaintiff from offering any evidence, testimony, or argument regarding a claim of negligence based on the speed of the train and any evidence, testimony, or argument regarding any claim preempted by the railroad act or the Interstate Commerce Commission Termination Act. The trial court granted the defendant's motions. Thereafter, the plaintiff filed the operative complaint, which does not contain any claim related to the speed of the train. Indeed, the plaintiff concedes that "the sole remaining theory of negligence is limited to track selection."

12489241

ADELE F. v. ROGER F.

Adele F. v. Roger F.

2017-03-07

No. 38461

831

831

155 A.3d 831

155

West's Atlantic Reporter, Third Series

Connecticut Appellate Court

Connecticut

2021-08-27T20:57:14.012355+00:00

Fastcase

ADELE F. v. ROGER F.

ADELE F. v. ROGER F. No. 38461 Appellate Court of Connecticut. Argued February 14, 2017 Officially released March 7, 2017

26

160

Per Curiam. The judgment is affirmed.

12489239

Thomas J. WEIHING, Administrator (Estate of Frederick Grout) v. TIM'S INC. et al.

Weihing v. Tim's Inc.

2017-01-06

No. 38668

830

830

155 A.3d 830

155

West's Atlantic Reporter, Third Series

Connecticut Appellate Court

Connecticut

2021-08-27T20:57:14.012355+00:00

Fastcase

Thomas J. WEIHING, Administrator (Estate of Frederick Grout) v. TIM'S INC. et al.

Thomas J. WEIHING, Administrator (Estate of Frederick Grout) v. TIM'S INC. et al. No. 38668 Appellate Court of Connecticut. Submitted on briefs January 6, 2017 Officially released January 24, 2017

36

235

Per Curiam. The judgment is affirmed.

12489237

NATIONWIDE ADVANTAGE MORTGAGE COMPANY v. John DOE 1 et al.

Nationwide Advantage Mortg. Co. v. Doe

2017-02-28

No. 39166

830

830

155 A.3d 830

155

West's Atlantic Reporter, Third Series

Connecticut Appellate Court

Connecticut

2021-08-27T20:57:14.012355+00:00

Fastcase

NATIONWIDE ADVANTAGE MORTGAGE COMPANY v. John DOE 1 et al.

NATIONWIDE ADVANTAGE MORTGAGE COMPANY v. John DOE 1 et al. No. 39166 Appellate Court of Connecticut. Argued February 2, 2017 Officially released February 28, 2017

31

201

Per Curiam. The judgment is affirmed.

12489236

Stanley FOOTE v. COMMISSIONER OF CORRECTION

Foote v. Comm'r of Corr.

2017-02-14

AC 37428

823

829

155 A.3d 823

155

West's Atlantic Reporter, Third Series

Connecticut Appellate Court

Connecticut

2021-08-27T20:57:14.012355+00:00

Fastcase

Stanley FOOTE v. COMMISSIONER OF CORRECTION

Stanley FOOTE v. COMMISSIONER OF CORRECTION AC 37428 Appellate Court of Connecticut. Officially Released February 14, 2017 Argued November 14, 2016 Jodi Zils Gagné, for the appellant (petitioner). Matthew A. Weiner, assistant state's attorney, with whom, on the brief, were Maureen Platt, state's attorney, Angela R. Macchiarulo, senior assistant state's attorney, and Michael Proto, assistant state's attorney, for the appellee (respondent). Lavine, Alvord and Schaller, Js. Opinion

2466

15547

SCHALLER, J. The petitioner, Stanley Foote, following a grant of certification to appeal by the habeas court, appeals from the judgment of the habeas court dismissing his amended petition for a writ of habeas corpus. On appeal, the petitioner claims that the habeas court improperly dismissed his habeas petition for lack of subject matter jurisdiction because the petitioner was not in the custody of the respondent, the Commissioner of Correction, on the challenged conviction when he filed his petition, as required by General Statutes § 52-466. We disagree and affirm the judgment of the habeas court. Our review of the record reveals the following facts and procedural history. On November 13, 2002, the petitioner was convicted of possession of cocaine with intent to sell by a person who is not drug-dependent and received a sentence of eight years incarceration and five years special parole (Ansonia conviction). See State v. Foote , 85 Conn.App. 356, 360, 857 A.2d 406 (2004) (affirming petitioner's conviction), cert. denied, 273 Conn. 937, 875 A.2d 43, 44 (2005). Thereafter, the special parole portion of his sentence was reduced to three and one-half years. On July 21, 2010, while he was on parole on the Ansonia conviction, the petitioner was arrested for participating in a narcotics sale. On September 14, 2010, in connection with this incident, the petitioner pleaded guilty under the Alford doctrine to conspiracy to sell narcotics. He received a sentence of two years incarceration (Waterbury conviction), to run concurrently with his existing sentence on the Ansonia conviction. After the petitioner was sentenced, he was informed by the Department of Correction that the unexpired portion of his special parole on the Ansonia conviction would not begin to run until after the petitioner completed his sentence on the Waterbury conviction. On January 3, 2013, after completing the sentence on the Waterbury conviction, but before completing the sentence on the Ansonia conviction, the petitioner filed a petition for a writ of habeas corpus challenging the Waterbury conviction. An amended petition was filed on May 19, 2014. On May 23, 2014, the respondent filed a motion to dismiss the petition on the ground that the petitioner was not in custody on the Waterbury conviction at the time that he filed the petition. On July 2, 2014, the petitioner filed an objection, arguing that, although the Waterbury conviction had expired at the time of the petition, the court had jurisdiction pursuant to the custody exception as expressed in Garlotte v. Fordice , 515 U.S. 39, 115 S.Ct. 1948, 132 L.Ed.2d 36 (1995). Under Garlotte , subject matter jurisdiction exists for an expired sentence when the petitioner is serving consecutive sentences and the expired sentence has an appreciable effect on the current sentence. Id., at 47, 115 S.Ct. 1948 ; Oliphant v. Commissioner of Correction , 274 Conn. 563, 574 n.9, 877 A.2d 761 (2005) (explaining circumstance in which Garlotte exception applies). The habeas court issued a memorandum of decision on September 17, 2014, granting the respondent's motion to dismiss. The habeas court held that it did not have subject matter jurisdiction over the petitioner's habeas petition because he was not in custody on the Waterbury conviction when he filed his petition, and the Garlotte custody exception did not apply. The habeas court subsequently granted the petitioner's petition for certification to appeal, and this appeal followed. On appeal, the petitioner claims that the court improperly dismissed his petition for a writ of habeas corpus on the ground that he was not in the custody of the respondent on the challenged Waterbury conviction when he filed his petition, as required by § 52-466. Specifically, he claims that, although the trial court gave the petitioner a concurrent sentence on the Waterbury conviction, it became a consecutive sentence in practice because the unexpired portion of his special parole on the Ansonia conviction did not begin to run until after he finished his sentence on the Waterbury conviction. Moreover, the petitioner claims that he is actually challenging how the sentence on the Waterbury conviction affected the sentence on the Ansonia conviction, and that he should have been allowed to amend the petition to include a challenge to the Ansonia conviction. We disagree. To resolve the petitioner's claim, we begin by setting forth our standard of review and the relevant legal principles. "We have long held that because [a] determination regarding a trial court's subject matter jurisdiction is a question of law, our review is plenary. . Moreover, [i]t is a fundamental rule that a court may raise and review the issue of subject matter jurisdiction at any time. . Subject matter jurisdiction involves the authority of the court to adjudicate the type of controversy presented by the action before it. . [A] court lacks discretion to consider the merits of a case over which it is without jurisdiction . The subject matter jurisdiction requirement may not be waived by any party, and also may be raised by a party, or by the court sua sponte, at any stage of the proceedings, including on appeal." (Internal quotation marks omitted.) Fernandez v. Commissioner of Correction , 139 Conn.App. 173, 177-78, 55 A.3d 588 (2012). Pursuant to § 52-466 (a) (1), "[a] habeas court has subject matter jurisdiction to hear a petition for habeas corpus when the petitioner is in custody at the time that the habeas petition is filed." Young v. Commissioner of Correction , 104 Conn.App. 188, 191, 932 A.2d 467 (2007), cert. denied, 285 Conn. 907, 942 A.2d 416 (2008). "[I]n order to satisfy the custody requirement of § 52-466, the petitioner [must] be in custody on the conviction under attack at the time the habeas petition is filed . [C]ollateral consequences flowing from an expired conviction do not render a petitioner in custody under § 52-466 ; rather, such a claim of confinement or custody and any accompanying loss of liberty [stem] solely from [a petitioner's] current conviction." (Citations omitted; emphasis omitted; internal quotation marks omitted.) Richardson v. Commissioner of Correction , 298 Conn. 690, 698, 6 A.3d 52 (2010). An exception exists, however, to the custody requirement. "A habeas petitioner who is serving consecutive sentences may challenge a future sentence even though he is not serving that sentence at the time his petition is filed; see Peyton v. Rowe , [391 U.S. 54, 67, 88 S.Ct. 1549, 20 L.Ed.2d 426 (1968) ]; and he may challenge a consecutive sentence served prior to his current conviction if success could advance his release date. Garlotte v. Fordice , supra, 515 U.S. at 47, 115 S.Ct. 1948. In other words, the . courts view prior and future consecutive sentences as a continuous stream of custody for purposes of the habeas court's subject matter jurisdiction." (Emphasis in original; internal quotation marks omitted.) Oliphant v. Commissioner of Correction , supra, 274 Conn. at 573, 877 A.2d 761. Our courts have not extended this exception to concurrent sentences, which "do not create a continuous stream of custody because they do not, by their nature, extend the term of incarceration." Fernandez v. Commissioner of Correction , supra, 139 Conn.App. at 188, 55 A.3d 588. With regard to a motion to dismiss, "[t]he standard of review . is . well established. In ruling upon whether a complaint survives a motion to dismiss, a court must take the facts to be those alleged in the complaint, including those facts necessarily implied from the allegations, construing them in a manner most favorable to the pleader. . A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction. . The conclusions reached by the [habeas] court in its decision to dismiss the habeas petition are matters of law, subject to plenary review. . Thus, [w]here the legal conclusions of the court are challenged, we must determine whether they are legally and logically correct . and whether they find support in the facts that appear in the record." (Citation omitted; internal quotation marks omitted.) Young v. Commissioner of Correction , supra, 104 Conn.App. at 193, 932 A.2d 467. In the present case, when the petitioner was sentenced to a term of two years imprisonment on the Waterbury conviction, beginning on July 21, 2010, the trial court determined that the sentence would run concurrently with his eight years of incarceration and reduced three and one-half years special parole on the Ansonia conviction. Although the petitioner believed that his special parole would begin in November, 2010, it did not begin to run until he finished service on the Waterbury conviction, which terminated between July and September, 2012. Special parole was delayed until the petitioner completed the sentence on the Waterbury conviction because, pursuant to General Statutes § 54-125e (a), special parole begins "at the expiration of the maximum term or terms of imprisonment imposed by the court ." See State v. Boyd , 272 Conn. 72, 78, 861 A.2d 1155 (2004) ("[t]he text of § 54-125e (a) demonstrates that the legislature clearly intended for the period of special parole to be distinct from the definite prison sentence, not included in it"); Smith v. Lee , Superior Court, judicial district of New Haven, Docket No. CV-09-5025939, 2009 WL 1578513, *1 (May 20 2009) (petitioner was given concurrent sentences, but special parole was delayed because "[u]nder the statute creating and governing special parole, § 54-125e, special parole does not commence until the expiration of the maximum term of imprisonment," and, therefore, petitioner could not be released on original date for special parole when he received concurrent sentence). The petitioner argues that, because his special parole did not begin to run until the expiration of the sentence on the Waterbury conviction, the sentences should be treated as one continuous stream of custody, and, therefore, the Garlotte custody exception should apply. The fact that parole in the concurrent Ansonia sentence was delayed, however, did not automatically convert the concurrent sentences into consecutive sentences and, thus, trigger the Garlotte custody exception. Rather, the delay in special parole, which cannot be served while one is incarcerated, was merely a consequence of the sentence on the Waterbury conviction, which included incarceration, being imposed. See State v. Andrews , 53 Conn.App. 90, 95, 729 A.2d 232 (1999) (parole eligibility is collateral consequence of guilty plea), aff'd, 253 Conn. 497, 752 A.2d 49 (2000). The collateral consequences of a completed sentence are not sufficient to render an individual in custody for the purpose of a habeas petition, even if the petitioner is suffering those consequences at the time that he filed his petition. Ajadi v. Commissioner of Corrections , 280 Conn. 514, 540, 911 A.2d 712 (2006) ; Lebron v. Commissioner of Correction , 274 Conn. 507, 530, 876 A.2d 2d 1178 (2005), overruled on other grounds by State v. Elson , 311 Conn. 726, 91 A.3d 862 (2014) ; see also Fernandez v. Commissioner of Correction , supra, 139 Conn.App. at 188-89, 55 A.3d 588 (expired conviction's delaying parole eligibility on current sentence was collateral consequence and did not render petitioner in custody). Therefore, when the petitioner filed his petition for a writ of habeas corpus on January 3, 2013, the sentence on the Waterbury conviction was complete, and the petitioner was in custody only on the Ansonia conviction. In turn, his claim of confinement and loss of liberty as a result of the delay in special parole stemmed solely from the Ansonia conviction. Accordingly, we conclude that the court logically and correctly concluded that the petitioner was not in custody for the Waterbury conviction, and it therefore lacked subject matter jurisdiction over his petition. The petitioner also argues that he actually is challenging how the sentence on the Waterbury conviction affected the sentence on the Ansonia conviction and that he should have been allowed to amend his petition to include a challenge to the Ansonia sentence for which he was still in custody. Specifically, the petitioner argues that, instead of dismissing the petition outright, the habeas court should have taken every precaution to save the case. This court previously has determined that the trial court does not have an obligation to amend a pleading sua sponte. Kosinski v. Carr , 112 Conn.App. 203, 210, 962 A.2d 836 (2009) (holding that trial court did not abuse its discretion by failing, sua sponte, to order pleadings amended to conform to proof). In the present case, the petitioner did not file a request to amend the petition to include a challenge to the Ansonia sentence. As it is not the court's obligation to amend pleadings sua sponte, the habeas court was not required to save the petition from dismissal. The judgment is affirmed. In this opinion the other judges concurred. North Carolina v. Alford, 400 U.S. 25, 37, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970). At oral argument before this court, counsel for the petitioner conceded that the outcome of this appeal would not affect the petitioner, but argued that his claim fell under the mootness exception of capable of repetition, yet evading review. See Dutki e wicz v. Dutki e wicz, 289 Conn. 362, 366-67, 957 A.2d 821 (2008) ("[although] the existence of an actual controversy is an essential requisite to appellate jurisdiction . [t]he mootness doctrine does not preclude a court from addressing an issue that is capable of repetition, yet evading review" [internal quotation marks omitted] ). Mootness, however, was not briefed, and, in his oral argument, counsel for the respondent indicated that the petitioner's claim is not moot because, should the petitioner prevail on appeal, he could argue the merits of the Waterbury conviction and potentially could have the conviction removed from his record. General Statutes § 52-466 (a) (1) provides in relevant part: "[a]n application for a writ of habeas corpus . shall be made to the superior court . for the judicial district in which the person whose custody is in question is claimed to be illegally confined or deprived of such person's liberty." Although sentenced on September 14, 2010, the defendant was credited with the time he served between his arrest on July 21, 2010, and his sentencing. In both his brief and at oral argument, the respondent argued that the petitioner did not meet the second prong of Garlotte, which requires that the petitioner show that the expired sentence had an appreciable effect on the current sentence. Garlotte v. Fordice, supra, 515 U.S. at 47, 115 S.Ct. 1948. The petitioner, however, failed to meet the first prong, requiring that the petitioner be serving consecutive sentences. Consequently, we need not address whether the Waterbury conviction had an appreciable effect on the Ansonia conviction.

12489233

Alan J. GORDON v. Carol S. GORDON

Gordon v. Gordon

2017-02-14

AC 38343

809

815

155 A.3d 809

155

West's Atlantic Reporter, Third Series

Connecticut Appellate Court

Connecticut

2021-08-27T20:57:14.012355+00:00

Fastcase

Alan J. GORDON v. Carol S. GORDON

Alan J. GORDON v. Carol S. GORDON AC 38343 Appellate Court of Connecticut. Argued November 28, 2016 Officially released February 14, 2017 Alan J. Gordon, self-represented, the appellant (plaintiff). Irving H. Perlmutter, for the appellee (defendant). Keller, Mullins and Sullivan, Js.

3751

22566

KELLER, J. In this civil action, the plaintiff, Alan J. Gordon, appeals from the trial court's order granting summary judgment for the defendant, Carol Gordon, on the ground that there was no genuine issue of material fact that the three tort actions alleged in the plaintiff's complaint were barred by the applicable statute of limitations, General Statutes § 52-577. The plaintiff claims that the court committed plain error in granting the defendant's motion for summary judgment because the defendant had not properly pleaded the statute of limitations as a special defense, and, therefore, had waived her right to raise it as a ground for summary judgment. We affirm the judgment of the court. The following facts and procedural history, as determined by the trial court in its memorandum of decision, are relevant to this appeal. "The plaintiff . instituted the present action through service of process on the defendant . on May 18, 2014. The [amended and] revised complaint filed on March 12, 2015, alleges three counts of extortion, fraud, and larceny arising out of the parties' divorce on April 18, 2011. "In the extortion count, the plaintiff alleges that the defendant obtained a restraining order against him, then convinced him to break that order by asking him to watch their children while she vacationed in Mexico. [H]e believed the restraining order applied to her, rather than the family residence. The defendant filed a complaint against the plaintiff on March 17, 2011, and an arrest warrant was issued without the plaintiff's knowledge. In order to coerce the plaintiff into signing the separation agreement, the defendant and her attorney . who is the defendant in a companion case, told the plaintiff that if he signed the separation agreement, no charges would be brought against him. The plaintiff [signed the separation agreement] on April 18, 2011, completely against his will. On April 24, 2011, the police arrested the plaintiff for violation of the protective order. "In the fraud count, the plaintiff alleges the defendant abetted her attorney in leading the plaintiff to believe things which were not true. He also alleges that she did so in 'taking the steps necessary to have plaintiff removed from his home' even though she had never called the police before in their twenty-two years of marriage . The plaintiff also alleges that the defendant committed fraud when she filed her financial [affidavit in the dissolution action], stating that the family residence was in an irrevocable trust when it was not, that two other residences were worth considerably less than their actual value, and that her 'other personal property' had a total value of $4700 when the plaintiff paid over $5000 for her wedding ring twenty years prior and the house contained a substantial quantity of furniture and shoes. "In the larceny count, the plaintiff alleges that the defendant 'refused to return any of the more than forty household items owned by the plaintiff and purchased many years prior to their marriage.' " (Footnotes added.) The defendant moved for summary judgment pursuant to Practice Book § 17-44 on March 30, 2015, on the ground that the statute of limitations for tort actions had expired prior to the date on which the defendant was served with process. In support of her motion, the defendant provided a memorandum of law and her own affidavit, and requested that the court take judicial notice of the parties' dissolution file and this court's decision in the plaintiff's direct appeal from the dissolution judgment in Gordon v. Gordon , 148 Conn.App. 59, 84 A.3d 923 (2014). The plaintiff filed a memorandum in opposition, which he styled a "reply," on May 18, 2015. In his reply, the plaintiff asserted that there was no statute of limitations applicable to his fraud claim and that he filed his complaint within the limitations period, but had to wait until his application for a fee waiver was approved so that he could serve process on the defendant. The plaintiff did not file a counteraffidavit or submit any documentation in opposition to the motion for summary judgment. The court noted that the first count of the revised complaint clearly alleged a civil action for fraud, but that the larceny and extortion claims required "further explication," as larceny and extortion are crimes set forth in General Statutes § 53a-119, rather than claims that may be brought in a civil action. The court stated, "[p]ursuant to General Statutes § 52-564, [a]ny person who steals any property of another, or knowingly receives and conceals stolen property, shall pay the owner treble his damages. Statutory theft under § 52-564 is synonymous with larceny under . § 53a-119. Hospital of Central Connecticut v. Neurosurgical Associates, P.C. , 139 Conn.App. 778, 788-89, 57 A.3d 794 (2012). Section 53a-119 states that larceny includes extortion. Therefore, the larceny and extortion claims made by the plaintiff are properly statutory theft claims ." (Internal quotation marks omitted.) The court concluded that the plaintiff's claims for fraud and statutory theft were subject to the three year statute of limitations contained in § 52-577. Citing Kidder v. Read , 150 Conn.App. 720, 726-27, 93 A.3d 599 (2014), the court stated that the "three year limitation period of § 52-577 begins with the date of the act or omission complained of, not the date when the plaintiff first discovers an injury . The relevant date of the act or omission complained of, as that phrase is used in § 52-577, is the date when the negligent conduct of the defendant occurs and not the date when the [plaintiff] first sustain[s] damage . Ignorance of his rights on the part of the person against whom the statute has begun to run, will not suspend its operation . When conducting an analysis under § 52-577, the only facts material to the trial court's decision on a motion for summary judgment are the date of the wrongful conduct alleged in the complaint and the date the action was filed." (Internal quotation marks omitted.) The court then found that the plaintiff had clearly pinpointed when the wrong complained of occurred for his statutory theft count pertaining to extortion because the dissolution agreement was signed on April 18, 2011, under the false belief on the part of the plaintiff that the defendant would not pursue her police complaint for violation of the protective order, and, thereafter, he was arrested on April 24, 2011. The court concluded that the continuing course of conduct doctrine is inapplicable and that the relevant date on which the statute of limitations period began to run for the first count was April 18, 2011. As to the second count, alleging fraud, and the third count, alleging larceny, the court noted that the these counts in the revised complaint "do not contain any specific dates on which the wrongs complained of occurred." It found that the allegations regarding the defendant abetting fraud when she took steps to have the plaintiff removed from his home related to her securing a restraining order on February 3, 2011, and that the statute of limitations for these actions would therefore begin to run on February 3, 2011, or earlier. The court also found that the allegations in the revised complaint concerning the fraudulent financial affidavit as to real property and the values of household furnishings and jewelry in the second count, and the refusal to return his property in the third count, contained no specific dates, but clearly related to the division of assets between the parties in the dissolution action. In relevant part, the court reasoned: "The background section of the complaint states that on April 18, 2011, the defendant 'signed the dissolution agreement, surrendering all of his material assets and giving up virtually all of his worldly goods.' " Therefore, the court concluded that the statute of limitations for the second and third counts also began to run on April 18, 2011, the date on which the separation agreement was signed and the judgment of dissolution entered. Having determined the dates on which the statute of limitations began to run with respect to each of the three counts in the revised complaint, the court addressed whether the present action was commenced within the limitations period. It stated: "The complaint was served on the defendant on May 18, 2014. In Connecticut, service of process commences an action. Pagan v. Gonzalez , 113 Conn.App. 135, 139, 965 A.2d 582 (2009). The plaintiff has argued that the limitations period was tolled because he applied for a fee waiver on April 16, 2014, but has not provided any statute tolling the statute of limitations period due to the filing of [an application for] a fee waiver. Such a provision does exist in certain appeals to the Superior Court; see General Statutes § 4-183 (m) ; and General Statutes § 52-593a provides that an action will not be lost if it is provided to a marshal prior to the limitations period expiring and is served within thirty days." The court noted that absent a statutory exception, even though the plaintiff had filed his fee waiver application two days before the limitations period expired and had no control over how long it would take for the application to be approved, the application of the three year statute of limitations could not be avoided. The court reasoned that "[a]ccording to the allegations in the plaintiff's [revised] complaint, the present action accrued on April 18, 2011. The three year statute of limitations expired on April 18, 2014, and the action was not initiated until May 18, 2014. The complaint in this action is therefore untimely and the motion for summary judgment is granted on this ground." On appeal, the sole issue properly raised by the plaintiff is that the court committed plain error in granting the defendant's motion for summary judgment because the defendant had not properly pleaded the statute of limitations as a special defense, and, therefore, she had waived her right to assert it as a ground for summary judgment. The plaintiff acknowledges that he failed to make this argument to the trial court and is raising it for the first time on appeal. He argues, however, that this court should reverse the judgment under the plain error doctrine. We conclude that the plaintiff has failed to demonstrate that plain error exists and, thus, affirm the judgment of the trial court. This court is not bound to consider a claim unless it was distinctly raised at the trial or arose subsequent to the trial. "[T]he plain error doctrine . is not . a rule of reviewability. It is a rule of reversibility. That is, it is a doctrine that this court invokes in order to rectify a trial court ruling that, although either not properly preserved or never raised at all in the trial court, nonetheless requires reversal of the trial court's judgment, for reasons of policy . In addition, the plain error doctrine is reserved for truly extraordinary situations [in which] the existence of the error is so obvious that it affects the fairness and integrity of and public confidence in the judicial proceedings . Plain error is a doctrine that should be invoked sparingly." (Internal quotation marks omitted.) State v. Myers , 290 Conn. 278, 289, 963 A.2d 11 (2009) ; see also Practice Book § 60-5. The plaintiff's claim is based upon a perceived procedural abnormality; he argues that the court erroneously considered the defendant's statute of limitations defense because the defendant did not file an answer and special defenses to his revised complaint. Thus, the plaintiff argues, the defendant waived any claim that the statute of limitations barred his causes of action. The applicable rule of practice, Practice Book § 17-44, provides in relevant part: "In any action . any party may move for a summary judgment as to any claim or defense as a matter of right at any time if no scheduling order exists and the case has not been assigned for trial." Although prior to October 1, 1992, Practice Book § 379, the precursor to § 17-44, required that the pleadings be closed before seeking a summary judgment, in Girard v. Weiss , 43 Conn.App. 397, 682 A.2d 1078, cert. denied, 239 Conn. 946, 686 A.2d 121 (1996), this court stated: "If we were to hold that a motion for summary judgment cannot be made prior to pleading a statute of limitations as a special defense, we would negate that portion of § 379 [now § 17-44 ] that provides that a motion for summary judgment can be made at any time, without the necessity of closing the pleadings . Facts that are not alleged in a complaint may be added to the procedural mix and facts in avoidance of the statutory time limitation of action can be considered in a motion for summary judgment whereas they cannot be considered in a motion to strike. On a motion for summary judgment, the questions are whether there is any material fact in issue, and, if not, whether the movant is entitled to judgment as a matter of law. The key difference between the two motions is that, when considering a motion for summary judgment, facts in addition to those asserted in the complaint can form the basis for an argument that there is no material fact in dispute that would prevent judgment as a matter of law. When there is no such material fact in dispute or where there is agreement of the parties as to every relevant fact, we conclude that the pleadings need not be closed in order to move for summary judgment." (Footnotes altered; internal quotation marks omitted.) Id., at 416-17, 682 A.2d 1078 ; see also Emmerson v. Super 8 Motel-Stamford , 59 Conn.App. 462, 468-69, 757 A.2d 651 (2000). Accordingly, as it is apparent from our review of the record that the court acted within the boundaries of our applicable rules of procedure in considering and ruling on the motion for summary judgment, we do not conclude that the court's consideration of the motion for summary judgment prior to the defendant's raising the special defense of the statute of limitations in a responsive pleading affected the fairness and integrity of or undermined public confidence in the judicial proceeding at issue. See State v. Hinckley , 198 Conn. 77, 87-88, 502 A.2d 388 (1985). Accordingly, we are not persuaded that plain error exists. The judgment is affirmed. In this opinion the other judges concurred. The plaintiff is self-represented in this appeal and was self-represented during the proceedings before the trial court. General Statutes § 52-577 provides: "No action founded upon a tort shall be brought but within three years from the date of the act or omission complained of." In his reply brief, the plaintiff raises the following additional claimed error on the part of the court. He asserts that the statute of limitations should be equitably tolled on the date he filed his application for a waiver of fees until the date the defendant was actually served based on important public policy considerations and the egregious actions of the defendant and her counsel in the prosecution of the parties' marital dissolution case, actions that form the basis for the present civil case. We decline to address this contention because the plaintiff raised it for the first time on appeal in his reply brief. See Grimm v. Grimm, 276 Conn. 377, 393-94 n.19, 886 A.2d 391 (2005), cert. denied, 547 U.S. 1148, 126 S.Ct. 2296, 164 L.Ed.2d 815 (2006) ; see also Electrical Contractors, Inc. v. Dept. of Education, 303 Conn. 402, 444 n.40, 35 A.3d 188 (2012) ("[c]laims are also inadequately briefed when they are raised for the first time in a reply brief"). In the dissolution action, the plaintiff previously had filed a motion to open the judgment, in which he alleged that, with respect to the marital residence, the defendant had "omitted critical information and made fraudulent representations on her April 18, 2011 financial affidavit." (Internal quotation marks omitted.) Gordon v. Gordon, 148 Conn.App. 59, 63, 84 A.3d 923 (2014). His motion to open the judgment was denied by the trial court, Gould, J., on November 26, 2012. Id., at 63-64, 84 A.3d 923. This court declined to review his appeal from this denial due to an inadequate record for review. Id., at 67-68, 84 A.3d 923. In his "reply" to the motion for summary judgment and in oral argument to the trial court, the plaintiff argued that "[the] [d]efendant . intentionally mis[led] the plaintiff to believe the mortgage free marital residence . was in an irrevocable trust. No such trust was recorded on the land records before, during or after the divorce on April 18, 2011." He also argued that "state statutes provide that fraud can be attacked at any time." The court addressed this claim as follows: "The plaintiff's claim that the statute of limitations does not apply to fraud, for which he provided no citation, is likely based on the principle that a court may vacate a judgment based on fraud at any time, including a marital judgment based upon a fraudulently obtained stipulation. See Billington v. Billington, 220 Conn. 212, 217-18, 595 A.2d 1377 (1991). This principle is inapplicable to a civil action for fraud." Practice Book § 17-44 states in relevant part: "In any action . any party may move for a summary judgment as to any claim or defense as a matter of right at any time if no scheduling order exists and the case has not been assigned for trial. If a scheduling order has been entered by the court, either party may move for summary judgment as to any claim or defense as a matter of right by the time specified in the scheduling order. If no scheduling order exists but the case has been assigned for trial, a party must move for permission of the judicial authority to file a motion for summary judgment." The defendant also alleged that the doctrine of res judicata prevented the plaintiff from relitigating issues that were determined in the parties' divorce action and that the plaintiff was estopped from filing the present action pursuant to an order issued in the divorce case on April 23, 2014 (Schofield, J.), enjoining him from further filings against the defendant without the court's prior permission. We do not address these issues because the court based its summary judgment ruling solely on the ground that all three of the plaintiff's tort claims were barred by the statute of limitations. The court also addressed the plaintiff's contention that the actions of the defendant's attorney, who is not a named defendant in the present action, were an ongoing process that continued through April 18, 2014. The plaintiff, however, did not describe what these ongoing actions were or how they could be imputed to the defendant. We note that the plaintiff also failed to allege a special relationship with the defendant's counsel that gave rise to a continuing duty or some later wrongful conduct related to the prior act. See Giulietti v. Giulietti, 65 Conn.App. 813, 833-35, 784 A.2d 905, cert. denied, 258 Conn. 946, 947, 788 A.2d 95, 96, 97 (2001). The court therefore found no basis to consider the application of the continuing course of conduct doctrine and, on appeal, the plaintiff has not claimed error with respect to this finding. The court here mistakenly refers to the first count as a fraud count. The facts discussed by the court, however, as contained in the first count of the plaintiff's revised complaint, apply to the statutory theft count the plaintiff characterized as extortion. In his reply brief to this court, the defendant appears to make an inadequately briefed reference to a potential fraudulent concealment claim in stating he did not realize the marital residence was not held in trust until September, 2011, when he checked the land records. We decline to consider this issue because it was not raised before the trial court and was raised for the first time in the plaintiff's reply brief. We note, however, that the plaintiff's complaint merely alleges the defendant concealed this fact from him but there is no allegation, nor is there a factual predicate, to establish that the defendant had fraudulently concealed the existence of the plaintiff's causes of action with the intention of delaying the plaintiff in filing the action. See Flannery v. Singer Asset Finance Co., LLC, 128 Conn.App. 507, 517-18, 17 A.3d 509 (2011), aff'd, 312 Conn. 286, 94 A.3d 553 (2014). Furthermore, the plaintiff acknowledges that he learned the true nature of the defendant's interest in the marital home in September, 2011, by checking the town land records, and thereby determined that the property was not held in trust prior to or after the dissolution judgment. We note that the plaintiff does not claim that the court considered the motion for summary judgment in an untimely fashion under Practice Book § 17-44 by arguing either that the motion was filed in violation of a scheduling order or that the case had been assigned for trial, nor does he claim that he did not have an adequate opportunity to prepare a response. See Practice Book § 17-44. The motion for summary judgment was filed on March 30, 2015, and the plaintiff's reply was filed on May 18, 2015, the day the trial court heard oral argument. The court considered the plaintiff's reply to the motion for summary judgment even though it was not filed at least five days before the date the motion was considered on the short calendar, as was required by Practice Book (Rev. to 2015) § 17-45. The defendant's reliance on Vertex, Inc. v. Waterbury, 278 Conn. 557, 898 A.2d 178 (2006), is unavailing. In Vertex, our Supreme Court considered the scope of a trial court's discretion to consider dispositive questions of law outside the boundaries of the rules of practice. Id., at 566-67, 898 A.2d 178. Practice Book (Rev. to 2015) § 17-45 provides in relevant part: "A motion for summary judgment shall be supported by such documents as may be appropriate, including but not limited to affidavits, certified transcripts of testimony under oath, disclosures, written admissions and the like . Any adverse party shall at least five days before the date the motion is to be considered on the short calendar file opposing affidavits and other available documentary evidence ."

12489151

Gregory VALENTE v. COMMISSIONER OF MOTOR VEHICLES

Valente v. Comm'r of Motor Vehicles

2016-12-13

No. 38560

328

328

155 A.3d 328

155

West's Atlantic Reporter, Third Series

Connecticut Appellate Court

Connecticut

2021-08-27T20:57:14.012355+00:00

Fastcase

Gregory VALENTE v. COMMISSIONER OF MOTOR VEHICLES

Gregory VALENTE v. COMMISSIONER OF MOTOR VEHICLES No. 38560 Appellate Court of Connecticut. Argued November 15, 2016 Officially released December 13, 2016

28

193

Per Curiam. The judgment is affirmed.

12489150

IN RE LARRY D.

In re Larry D.

2017-01-31

AC 39478

322

327

155 A.3d 322

155

West's Atlantic Reporter, Third Series

Connecticut Appellate Court

Connecticut

2021-08-27T20:57:14.012355+00:00

Fastcase

IN RE LARRY D.

IN RE LARRY D. AC 39478 Appellate Court of Connecticut. Argued January 3, 2017 Officially released January 31, 2017 David B. Rozwaski, assigned counsel, for the appellant (respondent father). Daniel M. Salton, assistant attorney general, with whom, on the brief, were George Jepsen, attorney general, and Benjamin Zivyon, assistant attorney general, Hartford, for the appellee (petitioner). Sheldon, Mullins and Flynn, Js. In accordance with the spirit and intent of General Statutes § 46b-142(b) and Practice Book § 79a-12, the names of the parties involved in this appeal are not disclosed. The records and papers of this case shall be open for inspection only to persons having a proper interest therein and upon order of the Appellate Court. January 31, 2017, the date that this decision was released as a slip opinion, is the operative date for all substantive and procedural purposes.

2805

18064

FLYNN, J. The respondent father appeals from the judgment of the trial court, rendered in favor of the petitioner, the Commissioner of Children and Families, terminating his parental rights with respect to his minor son, Larry D. On appeal, the respondent claims that the court violated his due process rights by ordering him to participate in a psychological evaluation without first appointing him counsel and advising him of his rights. We affirm the judgment of the trial court. The record discloses the following relevant facts, which are uncontested or were found by the trial court, and procedural history. Larry was born in November, 2014. On January 8, 2015, after receiving reports suggesting that Larry's mother, Charla J., was unable to provide Larry with proper care, the petitioner obtained an order granting the petitioner temporary custody of Larry. The petitioner filed a neglect petition that same day. On January 16, 2015, the petitioner cited the respondent into the neglect proceedings as a putative father and obtained an order requiring the respondent to submit to a paternity test. The respondent was served with the neglect petition on February 24, 2015, at a residence subsequently determined to be his usual place of abode. Nevertheless, on the March 10, 2015 plea date, the respondent failed to appear and a default was entered against him. That same day, Larry was adjudicated neglected and committed to the care and custody of the petitioner. On August 25, 2015, the petitioner filed a petition to, inter alia, terminate the respondent's parental rights as to Larry; see footnote 1 of this opinion; on grounds of abandonment, failure to rehabilitate, and the lack of an ongoing parent-child relationship. The respondent, despite having been properly served, failed to appear at his September 25, 2015 plea hearing on the termination of parental rights petition, and a default was entered against him. As a result, the respondent was not appointed counsel to represent him in the termination proceedings. The respondent again failed to appear at the October 22, 2015 permanency plan hearing. At that hearing, the petitioner obtained an order requiring the respondent to participate in a psychological evaluation. On November 30, 2015, the respondent was incarcerated. After learning of the respondent's incarceration, the court issued a writ of habeas corpus to secure his participation in the psychological evaluation, which was conducted at the courthouse on January 8, 2016, by Ines Schroeder, a forensic psychologist. The respondent appeared in court for the first time on February 25, 2016. At that time, the court vacated the default previously entered against the respondent, appointed counsel to represent him in the termination proceedings, and advised him of his rights. Furthermore, the court ordered the defendant to submit to a paternity test, which ultimately established that he was Larry's biological father and resulted in a judgment of paternity being entered on April 7, 2016. A trial on the termination petition was held on June 7 and 15, 2016. The respondent was represented by counsel throughout the proceedings. The petitioner presented several exhibits and called multiple witnesses, including Dr. Schroeder, who opined, on the basis of her psychological evaluation of the respondent, that there were a "number of things" the respondent needed to address before he could serve as a father figure to Larry, and that it was not in Larry's best interests to wait for the respondent to rehabilitate. The respondent did not object to any of Dr. Schroeder's testimony. Dr. Schroeder's report of her evaluation of the respondent was admitted as a full exhibit by the parties' agreement. The court issued a memorandum of decision on June 21, 2016, granting the petition to terminate the respondent's parental rights. The court found that the petitioner had proved by clear and convincing evidence that the Department of Children and Families (department) had made reasonable efforts to locate the respondent and reunify him with Larry and, moreover, that the respondent was unwilling to benefit from those reunification efforts. See General Statutes § 17a-112(j)(1). In particular, the court noted the respondent's continued, deliberate evasion of consistent attempts by the department to engage him in late 2014 and throughout 2015 concerning paternity testing and his visitation rights; indeed, the court found that "[i]t was only with the commencement of [the respondent's] protracted incarceration on or about November 30, 2015, [that he] bec[a]me responsive to [the department's] inquiries or offers of paternity testing." Next, the court found that the petitioner had proven by clear and convincing evidence all three grounds for termination asserted in the petition. First, with respect to the ground of abandonment; see General Statutes § 17a-112(j)(3)(A) ; the court began by determining that, under the circumstances of the present case, the fact that the respondent's paternity was not established until "March or April" of 2016 did not preclude a finding of abandonment. The court found that, despite Charla J.'s initial suggestion that Edward D. was Larry's father, the respondent "did in fact perceive himself" to be the father. The court also noted that the petitioner "aggressively" sought paternity testing of the respondent and Edward D., to which the respondent refused to submit in order to avoid arrest and incarceration on outstanding criminal warrants. As to whether the respondent's conduct amounted to abandonment, the court observed that, so long as the respondent was free in the community rather than incarcerated, "he was content to be perceived as Larry's father without any of the responsibilities or consequences attendant to fatherhood." The court concluded that the respondent's "evasion of paternity testing, and his contentment with merely being perceived to a limited few as [Larry's] father, without assuming any financial, emotional, or physical support of his young son, constitutes abandonment." Second, the court found that, pursuant to § 17a-112(j)(3)(B)(i), Larry had been adjudicated neglected or uncared for in a prior proceeding on March 10, 2015, and that the respondent had failed to demonstrate that he had sufficiently rehabilitated so as to encourage the belief that he could assume a responsible role in Larry's life within a reasonable period of time. In reaching that conclusion, the court relied, in part, on the information elicited from the respondent by Dr. Schroeder during the psychological evaluation. Specifically, the respondent told Dr. Schroeder that he was ready to "sign [his] rights over" and acknowledged, "If I can't take care of myself, I can't take care of [Larry]." Furthermore, citing Dr. Schroeder's report, the court found that the respondent suffered from a variety of mental health issues stemming from his traumatic childhood, including depression, posttraumatic stress disorder, bipolar disorder, anxiety, and recurring nightmares. The court described the respondent's mental health issues as inadequately treated and "severe in intensity and duration." The court found it "telling" that, in each of the three instances in which Larry was brought to visit the respondent in prison, the respondent either terminated the meeting early or refused to show up at all. The court attributed this behavior to the respondent's "significant untreated mental and emotional issues and a genuine fear and lack of knowledge about how to interact with young children ." Crediting Dr. Schroeder's opinion that the respondent's mental health issues needed to be addressed before reunification would be in Larry's best interests, the court concluded that "[i]t is not in [Larry's] best interest to remain in foster care for the foreseeable future, awaiting to see what, if anything, [the respondent] chooses to do regarding his multifaceted issues upon his release from prison next month." Third, the court found that the petitioner had presented clear and convincing evidence that the respondent lacked an ongoing parent-child relationship with Larry. See General Statutes § 17a-112(j)(3)(D). The court reasoned that, given the respondent's consistent absence from Larry's life and failure to take advantage of the department's early 2015 attempt to arrange for visitation, "[n]o parent child relationship was ever established." Furthermore, relying on the "reasons articulated in the previously discussed adjudicatory grounds," the court determined that "allowing further time to elapse to determine if such a parent-child relationship could be established in the future would be detrimental to [Larry]." Finally, after considering and issuing written findings as to the factors set forth in § 17a-112(k), the court found that terminating the respondent's parental rights was in Larry's best interests. In reaching that conclusion, the court relied on the following facts. The respondent evaded all contact with the department, including its offer to arrange for visitation, until he was incarcerated. The court previously issued specific steps that set forth the respondent's obligations to make reunification viable. Larry was "thriving" while under foster care. The respondent either terminated his supervised visits with Larry early or refused to participate at all, despite the fact that Larry had traveled over an hour to visit him in prison, which "is not in the child's best interest." Although the respondent was scheduled to be released from prison the following month, he entirely failed to establish a relationship with Larry despite having been provided an opportunity to do so. Thus, the court concluded that the respondent's "attendance and behaviors at prison visits since December, 2015, do not support a finding, in light of the other findings previously made, that it would be in [Larry's] best interest to stay in foster care to give [the respondent] time to reintegrate back into society and to see if he could be a potential resource for his son." Accordingly, the court terminated the respondent's parental rights as to Larry. This appeal followed. The respondent claims that the court's failure to advise him of his constitutional rights and to appoint him counsel prior to ordering his participation in a psychological evaluation violated his due process rights. Acknowledging that he failed to preserve this claim in the trial court by objecting to the admission of Dr. Schroeder's report into evidence, the respondent seeks to prevail under State v. Golding , 213 Conn. 233, 239-40, 567 A.2d 823 (1989). We conclude that the alleged constitutional violation was harmless beyond a reasonable doubt. Under Golding , "an appellant can prevail on a claim of constitutional error not preserved at trial only if all of the following conditions are met: (1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation . exists and . deprived the [respondent] of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt. In the absence of any one of these conditions, the [respondent's] claim will fail." (Internal quotation marks omitted.) In re Yasiel R. , 317 Conn. 773, 779, 120 A.3d 1188 (2015) ; see id., at 781, 120 A.3d 1188. Furthermore, "[t]he appellate tribunal is free . to respond to the [respondent's] claim by focusing on whichever condition is most relevant in the particular circumstances." (Internal quotation marks omitted.) In re Lukas K. , 120 Conn.App. 465, 472, 992 A.2d 1142 (2010), aff'd, 300 Conn. 463, 14 A.3d 990 (2011). In the present case, we conclude that the respondent's claim fails the fourth Golding requirement because the alleged constitutional violation was harmless beyond a reasonable doubt. Accordingly, we need not address the first three Golding requirements. See State v. Golding , supra, 213 Conn. at 241-42, 567 A.2d 823 ("In many cases of an alleged constitutional violation . the state is able to demonstrate the harmlessness of such alleged violation beyond a reasonable doubt. . Under such circumstances, it would be a waste of judicial resources, and a pedantic exercise, to delve deeply into the constitutional merits of a claim that can appropriately be resolved in accordance with the relevant harmless error analysis." [Citations omitted.] ); see also State v. Dickson , 322 Conn. 410, 497, 141 A.3d 810 (2016) (Robinson, J. , concurring); State v. Kulmac , 230 Conn. 43, 64-65, 644 A.2d 887 (1994). The respondent argues that, as a result of the court's failure to appoint counsel or canvass him prior to ordering his participation in the psychological evaluation, he participated in the evaluation without the benefit of counsel or knowledge of his rights, which caused him to provide Dr. Schroeder with information that was used against him in the termination proceedings. A review of the court's factual findings and reasoning, however, makes abundantly clear that Dr. Schroeder's evaluation did not form the basis for the court's decision to terminate the respondent's parental rights. The court terminated the respondent's parental rights on three independent grounds-abandonment, failure to rehabilitate, and the lack of an ongoing parent-child relationship-and the court relied upon the information gleaned from the evaluation only in support of its finding of failure to rehabilitate. The court did not rely upon the evaluation in support of its findings of abandonment or the lack of an ongoing parent-child relationship, each of which are independently sufficient to support the court's decision to terminate the respondent's parental rights. See In re Jermaine S. , 86 Conn.App. 819, 822 n.4, 863 A.2d 720 ("[w]e may affirm the court's decision if we find that it properly concluded that any one of the statutory circumstances [under § 17a-112(j)(3) ] existed" [internal quotation marks omitted] ), cert. denied, 273 Conn. 938, 875 A.2d 43 (2005). The respondent has not challenged any of the court's findings with respect to these alternative grounds for termination. Furthermore, in finding that terminating the respondent's parental rights was in Larry's best interests, the court relied not on the information obtained by Dr. Schroeder, but on the respondent's failure to appear in court, evasion of the petitioner's attempts to establish paternity, and erratic behavior during visits with Larry. On that basis, we conclude that the petitioner has established beyond a reasonable doubt that, even without the allegedly tainted evidence derived from Dr. Schroeder's evaluation, the court's ultimate decision to terminate the respondent's parental rights would have remained the same. Accordingly, any error was harmless. The judgment is affirmed. In this opinion the other judges concurred. In the same proceeding, the court also terminated the parental rights of Larry's mother, Charla J. Additionally, the court terminated the parental rights of Charla J. and another individual, Wayne B., as to their minor daughter, Leah B. Because Charla J. and Wayne B. have not appealed from those judgments, we refer to Larry's father as the respondent throughout this opinion. The temporary custody order and neglect petition originally identified another individual, Edward D., as Larry's biological father. Subsequently, after paternity testing, conducted in February, 2015, determined that Edward D. was not Larry's biological father, he was dismissed from the case. The respondent failed to appear at the previously scheduled paternity test, which had been ordered in January, 2015. At the trial on the termination petition, the respondent testified that he elected not to attend the paternity test because in early 2015 he received a letter from the department informing him that Edward D. was Larry's father. See footnote 2 of this opinion. The court explicitly discredited this testimony in its memorandum of decision, finding instead that, "[c]learly, [the respondent] evaded [the department's] attempts to contact him and to engage with him because he feared incarceration on outstanding criminal arrest warrants. Only upon his protracted period of incarceration that commenced on . November 30, 2015, did [the respondent] become responsive to [the department's] inquiries or offers of paternity testing." Although the respondent suggested in his original brief, without any accompanying legal analysis, that this court should exercise its supervisory authority to reverse the court's judgment, he clarified at oral argument that he was not pursuing that claim. Although Dr. Schroder opined that terminating the respondent's parental rights would be in Larry's best interests-an opinion the court credited in support of its finding that the respondent had failed to rehabilitate-the court did not rely on that opinion when analyzing the § 17a-112(k) criteria in the dispositional portion of its decision.

12489149

Benedetto IZZO v. Richard QUINN et al.

Izzo v. Quinn

2016-11-30

AC 37510

315

322

155 A.3d 315

155

West's Atlantic Reporter, Third Series

Connecticut Appellate Court

Connecticut

2021-08-27T20:57:14.012355+00:00

Fastcase

Benedetto IZZO v. Richard QUINN et al.

Benedetto IZZO v. Richard QUINN et al. AC 37510 Appellate Court of Connecticut. Submitted on briefs November 30, 2016 Officially released February 7, 2017 Albert J. Oneto IV and Peter E. Ricciardi, Hamden, field a brief for the appellants (defendants). Patrice Noah filed a brief for the appellee (plaintiff). DiPentima, C. J., and Mullins and Mihalakos, Js.

3298

20288

MULLINS, J. The defendant, Richard Quinn, appeals from the judgment of the trial court dismissing his four count counterclaim against the plaintiff, Benedetto Izzo, doing business as New Haven Drywall. On appeal, the defendant claims that the court erred in dismissing his counterclaim on the ground that he had failed to join an indispensable or necessary party. We agree, and, accordingly, we reverse the judgment of the trial court. The following undisputed facts and procedural history inform our decision. The plaintiff, acting under the name "Benedetto Izzo dba New Haven Drywall," filed a complaint with the Superior Court seeking to foreclose a mechanic's lien that had been filed against the defendant's property. The plaintiff alleged that he had filed the lien because the defendant had failed to pay sums due under a home improvement contract entered into between him and the defendant. In response to the complaint, the defendant filed an answer, three special defenses and a four count counterclaim. In the special defenses, the defendant alleged: (1) he had contracted with North Haven Drywall, LLC, to restore his fire damaged residence, Benedetto Izzo had acted as the general contractor on that job, and the work was not performed in a workmanlike manner; (2) the mechanic's lien was not filed timely; and (3) the plaintiff lacked standing to enforce the mechanic's lien because the defendant had contracted with North Haven Drywall, LLC, not with the plaintiff. In his four count counterclaim, the defendant alleged in relevant part: (1) the defendant had entered into a contract with North Haven Drywall, LLC, Izzo directed the work of North Haven Drywall, LLC, Izzo failed to complete the project and obtain a certificate of completion, and the work that was completed was not completed in a workmanlike manner in accordance with the contract; (2) North Haven Drywall, LLC, and Izzo made false representations to facilitate final payment from the mortgagee of the defendant's property, thereby engaging in conduct that was immoral, unethical and unscrupulous, in violation of the Connecticut Unfair Trade Practices Act (CUTPA), General Statutes § 42-110b et seq. ; (3) prior to the defendant's engagement of North Haven Drywall, LLC, and Izzo, North Haven Drywall, LLC, and Izzo publicly held themselves out to be fire and water damage restoration specialists when they, in fact, possessed no such special skills, and this conduct was immoral, unethical and unscrupulous, in violation of CUTPA; and (4) the defendant contracted with North Haven Drywall, LLC, which took possession of the defendant's property and began work under the direction of Izzo, Izzo owed a duty to the defendant, Izzo breached that duty in several enumerated ways, and those breaches caused the defendant to sustain damages and losses. The plaintiff then sought to substitute "North Haven Drywall dba N.H.D." as the plaintiff in this action, and the defendant objected to the substitution on grounds including that the proposed substitute plaintiff had no legal standing as it was not the party that did the work or that filed the mechanic's lien. The defendant also filed a motion to dismiss the plaintiff's complaint for, inter alia, lack of standing, which the trial court granted without objection on March 31, 2014. On March 11, 2014, the plaintiff filed a "motion to strike and/or dismiss the defendant's counterclaims," in which he alleged that the counterclaim, in actuality, was directed at North Haven Drywall, LLC, and not at the plaintiff. The defendant filed an objection in which he argued that the plaintiff's motion was improper because (1) it was not accompanied by a memorandum of law, in violation of Practice Book § 10-42, and (2) all four counts of his counterclaim are against the plaintiff individually and not against North Haven Drywall, LLC. He also argued that a motion to dismiss was not the proper procedural vehicle for the alleged failure to join a necessary party because such a defect did not affect the court's subject matter jurisdiction. On April 29, 2014, the court granted the plaintiff's motion without a written decision. On September 30, 2014, the defendant filed a request for leave to amend his counterclaim, and he filed a proposed amendment. The plaintiff objected on the ground that the counterclaim had been dismissed on April 29, 2014, and there was no pending case. The defendant, however, contended that it was not clear whether the court had dismissed or stricken the counterclaim, as no judgment of dismissal had been entered. On December 2, 2014, the court rendered a judgment of dismissal explaining that it previously had granted the plaintiff's motion to dismiss the four count counterclaim. This appeal followed. On appeal, the defendant claims that the court improperly dismissed his counterclaim for two reasons, namely, (1) that the court incorrectly ruled that all four of counts were directed solely at North Haven Drywall, LLC, and that North Haven Drywall, LLC, was a necessary or indispensable party to each count; and (2) that, even if the court correctly determined that North Haven Drywall, LLC, was a necessary party, the failure to join a necessary party is not jurisdictional, and the court, therefore, should have granted the plaintiff's motion to strike, rather than dismiss, the counterclaim, which would have given him an opportunity to replead. We agree that the court improperly dismissed the counterclaim on the ground that the defendant failed to join a necessary or indispensable party. "The standard of review for a court's decision on a motion to dismiss . is well settled.... A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction.... [O]ur review of the court's ultimate legal conclusion and resulting [determination] of the motion to dismiss will be de novo.... In undertaking this review, we are mindful of the well established notion that, in determining whether a court has subject matter jurisdiction, every presumption favoring jurisdiction should be indulged.... "Trial courts addressing motions to dismiss for lack of subject matter jurisdiction . may encounter different situations, depending on the status of the record in the case.... Different rules and procedures will apply, depending on the state of the record at the time the motion is filed. "When a trial court decides a jurisdictional question raised by a pretrial motion to dismiss on the basis of the complaint [or counterclaim] alone, it must consider the allegations . in their most favorable light.... In this regard, a court must take the facts to be those alleged in the complaint [or counterclaim], including those facts necessarily implied from the allegations, construing them in a manner most favorable to the pleader.... "In contrast, if the complaint [or counterclaim] is supplemented by undisputed facts established by affidavits submitted in support of the motion to dismiss . other types of undisputed evidence . and/or public records of which judicial notice may be taken . the trial court, in determining the jurisdictional issue, may consider these supplementary undisputed facts and need not conclusively presume the validity of the allegations of the complaint [or counterclaim].... Rather, those allegations are tempered by the light shed on them by the [supplementary undisputed facts].... If affidavits and/or other evidence submitted in support of a . motion to dismiss conclusively establish that jurisdiction is lacking, and the [nonmoving party] fails to undermine this conclusion with counteraffidavits . or other evidence, the trial court may dismiss the action without further proceedings.... If, however, the [moving party] submits either no proof to rebut the . jurisdictional allegations . or only evidence that fails to call those allegations into question . the [moving party] need not supply counteraffidavits or other evidence to support the complaint [or counterclaim], but may rest on the jurisdictional allegations therein." (Citation omitted; emphasis omitted; internal quotation marks omitted.) Astoria Federal Mortgage Corp. v. Genesis Ltd. Partnership , 167 Conn.App. 183, 191-93, 143 A.3d 1121 (2016). In the present case, the plaintiff filed a motion seeking either to dismiss or to strike the defendant's counterclaim on the ground that North Haven Drywall, LLC, was an indispensable or necessary party to each of the four counts alleged therein. The trial court determined that this was a matter of subject matter jurisdiction, and it granted the plaintiff's motion to dismiss. The court concluded that, because the defendant had alleged that he had contracted with North Haven Drywall, LLC, throughout each count of his counterclaim, and each count necessarily involved the LLC and/or the plaintiff acting as the manager or member of the LLC, the LLC was an indispensable party, and the court did not have subject matter jurisdiction over the counterclaim. We disagree with the court's conclusion. "[T]he function of the motion to dismiss is different from that of the motion to strike. [The motion to dismiss] essentially asserts that, as a matter of law and fact, a plaintiff cannot state a cause of action that is properly before the court.... [S]ee Practice Book § 10-31. By contrast, the motion to strike attacks the sufficiency of the pleadings. Practice Book § 10-39.... There is a significant difference between asserting that a plaintiff cannot state a cause of action and asserting that a plaintiff has not stated a cause of action, and therein lies the distinction between the motion to dismiss and the motion to strike." (Internal quotation marks omitted.) Pecan v. Madigan, 97 Conn.App. 617, 621, 905 A.2d 710 (2006), cert. denied, 281 Conn. 919, 918 A.2d 271 (2007). As this court previously has observed: "[T]he nonjoinder of an indispensable party . would create a jurisdictional defect, and therefore require dismissal, only if a statute mandates the naming and serving of [a particular] party." (Emphasis altered; internal quotation marks omitted.) Yellow Cab Co. of New London & Groton, Inc. v. Dept. of Transportation , 127 Conn.App. 170, 176-77, 13 A.3d 690, cert. denied, 301 Conn. 908, 19 A.3d 178 (2011). For example, our Supreme Court held in Simko v. Zoning Board of Appeals , 205 Conn. 413, 533 A.2d 879 (1987), that the failure to name the town clerk in a zoning appeal deprived the trial court of subject matter jurisdiction because General Statutes Rev. to 1986) § 8-8 (b), at that time, provided in relevant part that "[n]otice of such appeal shall be given by . serving a true and attested copy upon the clerk of the municipality." Id., at 414, 533 A.2d 879 n.2. "Conversely, when a party is indispensable but is not required by statute to be made a party, the [trial] court's subject matter jurisdiction is not implicated and dismissal is not required." Demarest v. Fire Dept. , 76 Conn.App. 24, 31, 817 A.2d 1285 (2003) ; see D'Appollonio v. Griffo-Brandao , 138 Conn.App. 304, 313, 53 A.3d 1013 (2012) ; Yellow Cab Co. of New London & Groton, Inc. v. Dept. of Transportation , supra, at 176-77, 13 A.3d 690. Pursuant to General Statutes § 52-108 : "An action shall not be defeated by the nonjoinder or misjoinder of parties. New parties may be added and summoned in, and parties misjoined may be dropped, by order of the court, at any stage of the action, as the court deems the interests of justice require." (Emphasis added.) See also Practice Book § 9-19 ; Hilton v. New Haven , 233 Conn. 701, 721-22, 661 A.2d 973 (1995) (plaintiffs' failure to join state as indispensable party does not implicate trial court's subject matter jurisdiction, but, nevertheless, pursuant to Practice Book § 99 [now § 9-18], trial court may refuse to continue with case until indispensable party summoned). Practice Book § 10-39 and 11-3 also provide that a party's exclusive remedy for nonjoinder or for misjoinder of parties is by the filing of a motion to strike. See also Bauer v. Souto , 277 Conn. 829, 838-39, 896 A.2d 90 (2006) ; George v. St. Ann's Church , 182 Conn. 322, 325, 438 A.2d 97 (1980) ; Kosiorek v. Smigelski , 138 Conn.App. 695, 705, 54 A.3d 564 (2012). "It is well established . that an action cannot be defeated due to the nonjoinder or misjoinder of parties, and failure to notify or join indispensable parties does not deprive a court of subject matter jurisdiction. General Statutes § 52-108.... Instead, the remedy for nonjoinder of parties is by motion to strike." (Internal quotation marks omitted.) Fountain Pointe, LLC v. Calpitano , 144 Conn.App. 624, 648-49, 76 A.3d 636, cert. denied, 310 Conn. 928, 78 A.3d 147 (2013) ; see also Hilton v. New Haven , supra, 233 Conn. at 721, 661 A.2d 973. In the present case, the defendant filed a four count counterclaim against the plaintiff. After the plaintiff's complaint was dismissed, the plaintiff moved to dismiss or to strike all four counts of the counterclaim on the ground that North Haven Drywall, LLC, was a necessary or indispensable party to each count. The court agreed that the defendant's counterclaim was focused against the LLC and/or against Izzo acting as the manager or member of the LLC. On that basis, the court concluded that North Haven Drywall, LLC, was a necessary party to the case, and that it lacked subject matter jurisdiction over the matter. Concluding, in accordance with our precedent, that the failure to join a necessary or indispensable party does not involve the court's subject matter jurisdiction; see General Statutes § 52-107 and 52-108 ; Practice Book § 9-18, 10-39 and 11-3 ; Hilton v. New Haven , supra, 233 Conn. at 721-22, 661 A.2d 973 ; Fountain Pointe, LLC v. Calpitano , supra, 144 Conn.App. at 648-49, 76 A.3d 636 ; D'Appollonio v. Griffo-Brandao , supra, 138 Conn.App. at 313, 53 A.3d 1013 ; we reverse the judgment of dismissal and remand the case to the trial court for further proceedings according to law. The judgment is reversed and the case is remanded for further proceedings according to law. In this opinion the other judges concurred. The plaintiff filed his action against the defendant naming him both as Richard M. Quinn and Richard W. Quinn. The defendant filed an affidavit with the trial court stating that he is "sometimes known as Richard W. Quinn and mistakenly identified as Richard M. Quinn ." To avoid confusion, we refer to the defendant as Richard Quinn. "[T]he use of a fictitious or assumed business name does not create a separate legal entity . [and] [t]he designation [doing business as] . is merely descriptive of the person or corporation who does business under some other name . [I]t signifies that the individual is the owner and operator of the business whose trade name follows his ." (Internal quotation marks omitted.) Youngman v. Schiavone, 157 Conn.App. 55, 56 n.1, 115 A.3d 516 (2015). In other words, the real party in interest is Izzo, and New Haven Drywall merely is descriptive. The defendant's evidence in support of his motion to dismiss includes, in relevant part: (1) his affidavit; (2) a copy of the contract between Richard Quinn and North Haven Drywall, LLC; (3) a claim of lien that was filed with the Hamden town clerk on November 21, 2012, in the name of N.H.D., LLC, which was signed by Izzo, as a member of N.H.D., LLC, and filed against the defendant's property, which apparently was not served on the defendant; (4) a claim of lien that was filed with the Hamden town clerk on December 4, 2012, by Izzo and filed against the defendant's property; and (5) a copy of the marshal's return of service for the December 4, 2012 mechanic's lien. The defendant filed a motion for articulation and a motion for review. We granted the motion for review and directed the trial court to articulate the basis of its judgment of dismissal. On September 10, 2015, the court issued a memorandum of decision detailing the basis of its dismissal of the defendant's counterclaim. "In the past, there had been a distinction between 'necessary' and 'indispensable' parties. See Shields v. Barrow, 58 U.S. (17 How.) 130, 139, 15 L.Ed. 158 (1855) (defining both terms). Over time, however, this distinction has become less pronounced; see Sturman v. Socha, 191 Conn. 1, 6, 463 A.2d 527 (1983) (recognizing that misleading nature of terms 'has resulted in a blurring of the distinction typically drawn between them'); and provisions of our Practice Book and General Statutes currently refer only to necessary parties. See, e.g., Practice Book § 9-6 and 9-24 ; General Statutes § 8-8 (f) and 12-638n." In re Devon B., 264 Conn. 572, 580 n.12, 825 A.2d 127 (2003). We use those terms interchangeably throughout this opinion. Because we agree that the court improperly dismissed the counterclaim for failure to join a necessary party, and the defendant already has filed a request for leave to amend his counterclaim and his proposed amendments, we need not address, at this juncture, whether North Haven Drywall, LLC, is a necessary party. Practice Book § 9-19 provides in relevant part: "Except as provided in Sections 10-44 and 11-3 no action shall be defeated by the nonjoinder or misjoinder of parties. New parties may be added and summoned in, and parties misjoined may be dropped, by order of the judicial authority, at any stage of the cause, as it deems the interests of justice require...." Practice Book § 9-18 provides in relevant part: "The judicial authority may determine the controversy as between the parties before it, if it can do so without prejudice to the rights of others; but, if a complete determination cannot be had without the presence of other parties, the judicial authority may direct that they be brought in. If a person not a party has an interest or title which the judgment will affect, the judicial authority, on its motion, shall direct that person to be made a party...." See also General Statutes § 52-107 (containing similar language). Practice Book § 10-39 provides: "(a) A motion to strike shall be used whenever any party wishes to contest: (1) the legal sufficiency of the allegations of any complaint, counterclaim or cross claim, or of any one or more counts thereof, to state a claim upon which relief can be granted; or (2) the legal sufficiency of any prayer for relief in any such complaint, counterclaim or cross complaint; or (3) the legal sufficiency of any such complaint, counterclaim or cross complaint, or any count thereof, because of the absence of any necessary party or, pursuant to Section 17-56 (b), the failure to join or give notice to any interested person; or (4) the joining of two or more causes of action which cannot properly be united in one complaint, whether the same be stated in one or more counts; or (5) the legal sufficiency of any answer to any complaint, counterclaim or cross complaint, or any part of that answer including any special defense contained therein. "(b) Each claim of legal insufficiency enumerated in this section shall be separately set forth and shall specify the reason or reasons for such claimed insufficiency. "(c) Each motion to strike must be accompanied by a memorandum of law citing the legal authorities upon which the motion relies. "(d) A motion to strike on the ground of the nonjoinder of a necessary party or noncompliance with Section 17-56 (b) must give the name and residence of the missing party or interested person or such information as the moving party has as to the identity and residence of the missing party or interested person and must state the missing party's or interested person's interest in the cause of action." Practice Book § 11-3 provides: "The exclusive remedy for misjoinder of parties is by motion to strike. As set forth in Section 10-39, the exclusive remedy for nonjoinder of parties is by motion to strike."

12489145

STATE of Connecticut v. Jose E. MEDINA

State v. Medina

2017-02-07

AC 38932

285

289

155 A.3d 285

155

West's Atlantic Reporter, Third Series

Connecticut Appellate Court

Connecticut

2021-08-27T20:57:14.012355+00:00

Fastcase

STATE of Connecticut v. Jose E. MEDINA

STATE of Connecticut v. Jose E. MEDINA AC 38932 Appellate Court of Connecticut. Argued October 11, 2016 Officially released February 7, 2017 James P. Sexton, assigned counsel, with whom were Matthew C. Eagan, assigned counsel, and, on the brief, Michael S. Taylor, Marina L. Green, and Emily G. Sexton, assigned counsel, for the appellant (defendant). Harry Weller, senior assistant state's attorney, with whom, on the brief, were Gail P. Hardy, state's attorney, and John Fahey, senior assistant state's attorney, for the appellee (state). Beach, Mullins and Sullivan, Js. The listing of judges reflects their seniority status on this court as of the date of oral argument.

1622

10087

SULLIVAN, J. The defendant, Jose E. Medina, appeals from the judgment of conviction, rendered after a jury trial, of capital felony in violation of General Statutes (Rev. 2011) § 53a-54b (7) and General Statutes § 53a-8 (a), and conspiracy to commit murder in violation of General Statutes § 53a-48 (a) and 53a-54a (a). On appeal, the defendant claims that the trial court improperly allowed the jury to consider inculpatory statements in violation of his federal constitutional rights where the record is clear that either (1) the detectives failed to advise the defendant of his Miranda rights prior to their custodial interrogation of him, or (2) the Miranda waiver that the defendant gave was not knowing, intelligent, and voluntary because he was under the influence of phencyclidine (PCP). We affirm the judgment of the trial court. The jury reasonably could have found the following facts. At approximately 4 a.m. on January 1, 2011, the defendant and his friend, Angel Rivera, were traveling in a black Lexus and engaged in a pursuit of a red Ford Expedition driven by Luis Rivera, one of the victims, with Lionel Roldan, the other victim, as a passenger in that vehicle. As Angel Rivera and the defendant chased the Expedition, the defendant shot at its occupants. The chase ended when Luis Rivera lost control of the Expedition on Francis Avenue in Hartford and the vehicle became lodged in a snowbank. The defendant then exited the Lexus and shot at the victims from the passenger's side of the Expedition. Angel Rivera also exited the Lexus and proceeded to the Expedition, where he and the defendant repeatedly punched Roldan. The defendant and Angel Rivera drove away in the Lexus, but they returned to the scene shortly thereafter. After removing Roldan from the passenger seat, the defendant entered the Expedition and drove away. Angel Rivera departed, driving the Lexus. Both Roldan and Luis Rivera died of gunshot wounds. Later that day, the defendant visited Kasandra Rivera, and they argued, prompting her to call 911 to report a domestic disturbance. Responding police pursued the defendant in a car chase around Hartford, East Hartford, and West Hartford. The chase ended in a shopping plaza in West Hartford after the defendant's vehicle caught fire and police then flattened his tires using stopsticks. After police apprehended the defendant, they arrested him on narcotics, traffic, and domestic disturbance offenses, and transported him to the major crimes division of the Hartford Police Department. The defendant arrived at the major crimes division around 4:55 p.m. and signed a form waiving his Miranda rights at 6:35 p.m. Between the time he arrived at the major crimes division and the time he was " 'book[ed],' " several detectives interviewed him, including Detective Luis Poma. At some point in the evening, the defendant asked to speak with Kasandra Rivera and a detective facilitated that call. With police present, the defendant spoke with Kasandra Rivera on a detective's desk phone and admitted that he had shot the victims. The time of his Miranda waiver relative to the time of his statements to Poma and Kasandra Rivera is unclear from the record. On March 12, 2014, in a long form information, the state charged the defendant with capital felony in violation of § 53a-54b (7) and 53a-8 (a), two counts of murder in violation of § 53a-54a (a) and 53a-8 (a), and conspiracy to commit murder in violation of § 53a-48 (a) and 53a-54a (a). Following a trial, the jury found the defendant guilty on all charges. The court imposed a sentence of life without the possibility of release for capital felony, sixty years each for the murder counts, and ten years for conspiracy to commit murder, consecutive to the capital felony sentence. In accord with existing precedent, however, the court vacated the murder convictions. See State v. Polanco , 308 Conn. 242, 245, 61 A.3d 1084 (2013) (when defendant convicted of greater and lesser included offenses, lesser included offense must be vacated). This appeal followed. Further facts will be set forth where relevant to the issues raised by the defendant. I The defendant first claims that the court violated his constitutional rights by allowing evidence before the jury of inculpatory statements that he made before he had been advised of his Miranda rights. The purported inculpatory statements included statements made to Poma during an alleged custodial interrogation and statements made over the telephone to Kasandra Rivera and overheard by detectives. The defendant concedes that he did not raise this or his other claim that he did not waive his Miranda rights voluntarily, knowingly, or intelligently at trial, but argues that he may raise his claims pursuant to Golding . The state argues that, because the record is inadequate for review, the defendant's claim fails the first prong of Golding . We agree with the state. Before addressing the defendant's claim, we set forth the applicable standard of review. "Under Golding, a criminal defendant can prevail on an unpreserved claim of constitutional error if all of the following conditions are met: (1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation . exists and . deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt." (Internal quotation marks omitted.) State v. Edmonds , 323 Conn. 34, 48 n.8, 145 A.3d 861 (2016). "[U]nless the defendant has satisfied the first Golding prong, that is, unless the defendant has demonstrated that the record is adequate for appellate review, the appellate tribunal will not consider the merits of the defendant's claim." (Internal quotation marks omitted.) State v. Polanco , 165 Conn.App. 563, 572-73, 140 A.3d 230, cert. denied, 322 Conn. 906, 139 A.3d 708 (2016). "Two threshold conditions must be satisfied in order to invoke the warnings constitutionally required by Miranda : (1) the defendant must have been in custody; and (2) the defendant must have been subjected to police interrogation. . If a suspect indicates that he wishes to remain silent, the interrogation must cease and if he requests counsel, the interrogation must cease until an attorney is present." (Citation omitted; emphasis omitted; internal quotation marks omitted.) State v. Burns , 140 Conn.App. 347, 367, 59 A.3d 819, cert. denied, 308 Conn. 918, 62 A.3d 1132 (2013). As stated previously, the record indicates that the defendant signed a Miranda waiver form at 6:35 p.m. Due to the lack of findings by the trial court, and the lack of clear and consistent testimony by Poma and Detective Andrew Jacobson of the Hartford Police Department, however, the record is unclear as to when the defendant was read and waived his Miranda rights in relation to his allegedly incriminatory statements. Accordingly, without a factual finding regarding when the defendant made the statements in question, we cannot determine whether the defendant's constitutional rights were violated. Consequently, the record is inadequate for review and the defendant has failed the first prong of Golding . II The defendant also claims that he could not have waived his Miranda rights voluntarily, knowingly, and intelligently because at the time that he signed the waiver he was under the effects of PCP. Having already determined that the record is inadequate to determine when, in relation to his statements to Poma and the call to Kasandra Rivera, the defendant signed the waiver of his rights, we similarly have no factual findings regarding the voluntariness of the waiver. If the defendant's statements were made after a waiver, then the issue of whether he was capable of knowingly, voluntarily, and intelligently waiving his rights would be germane. The trial court did not address the issue and made no findings. In the absence of a sufficient record, we do not reach the unpreserved issue. The judgment is affirmed. In this opinion the other judges concurred. General Statutes (Rev. to 2011) § 53a-54b was amended by No. 12-5, § 1, of the 2012 Public Acts to substitute "murder with special circumstances" for "capital felony." Hereinafter, all references are to the 2011 revision of that statute unless otherwise indicated. See Miranda v. Arizona, 384 U.S. 436, 478-79, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989) ; see also In re Yasiel R., 317 Conn. 773, 781, 120 A.3d 1188 (2015) (modifying third prong of Golding ). The state has suggested that the defendant deliberately chose not to contest the admissibility of his statements, because they provided a factual basis for a self-defense claim without his having to testify. We have no facts found as to this assertion, however, and do not reach it. See State v. Cushard, 164 Conn.App. 832, 838, 137 A.3d 926 ("To be valid, a waiver must be voluntary, knowing and intelligent. . The state has the burden of proving by a preponderance of the evidence that the defendant voluntarily, knowingly and intelligently waived his Miranda rights." [Internal quotation marks omitted.] ), cert. granted on other grounds, 321 Conn. 926, 138 A.3d 286 (2016).

12489116

James E. BURNS, Jr. v. David Y. ADLER, et al.

Burns v. Adler

2017-03-28

SC 19560, (SC 19561)

1223

1255

155 A.3d 1223

155

West's Atlantic Reporter, Third Series

Connecticut Supreme Court

Connecticut

2021-08-27T20:57:14.012355+00:00

Fastcase

James E. BURNS, Jr. v. David Y. ADLER, et al.

James E. BURNS, Jr. v. David Y. ADLER, et al. SC 19560, (SC 19561) Supreme Court of Connecticut. Argued November 8, 2016 Officially released March 28, 2017 David N. Rosen, with whom, on the brief, was Steven D. Ecker, for the appellant in SC 19560, appellee in SC 19561 (named defendant). William C. Franklin, for the appellee in SC 19560, appellant in SC 19561 (plaintiff). Rogers, C. J., and Palmer, Eveleigh, McDonald, Espinosa, Robinson and Vertefeuille, Js.

20129

122529

ROGERS, C.J. The primary issue that we must resolve in this certified appeal is whether the bad faith exception to the bar on the enforcement of home improvement contracts that do not comply with the Home Improvement Act (act), General Statutes § 20-418 et seq., entitled the plaintiff contractor, James E. Burns, Jr., to recover damages from the defendant homeowner, David Y. Adler, for home improvement services despite the plaintiff's noncompliance with that statute. The parties entered into an agreement whereby the plaintiff agreed to furnish materials and supply labor in connection with the renovation of a residence owned by the defendant in the town of Salisbury. After the renovation project was largely complete, a dispute arose regarding amounts that the defendant owed the plaintiff for services performed. Thereafter, the plaintiff brought this action claiming, among other things, breach of contract and unjust enrichment. The defendant raised the special defense that the plaintiff's claims were barred because the agreement did not comply with the requirements of General Statutes (Rev. to 2007) § 20-429. In turn, the plaintiff claimed that the defendant was precluded from relying on § 20-429 because his refusal to pay the plaintiff was in bad faith. After a trial to the court, the trial court concluded that the plaintiff had incurred damages in the amount of $214,039 and that § 20-429 did not bar recovery because the defendant's refusal to pay was in bad faith. Accordingly, the court rendered judgment for the plaintiff in the amount of $214,039. The defendant appealed to the Appellate Court, which affirmed the judgment of the trial court. See Burns v. Adler , 158 Conn.App. 766, 808, 120 A.3d 555 (2015). We then granted the defendant's petition for certification to appeal, limited to the following issues: (1) "Did . § 20-429(f) abrogate the bad faith exception to the [act] created in Habetz v. Condon , 224 Conn. 231, 240, 618 A.2d 501 (1992) ?"; and (2) "Did the Appellate Court properly affirm the judgment of the trial court in favor of the plaintiff?" Burns v. Adler , 319 Conn. 931, 125 A.3d 205 (2015) ; see also footnote 7 of this opinion. We conclude that the first certified question is not reviewable because it was not raised in the trial court. We further conclude that the defendant did not act in bad faith and, therefore, the Appellate Court improperly affirmed the judgment of the trial court on the ground that the plaintiff was barred from invoking the protection of the act. Accordingly, we reverse the judgment of the Appellate Court and conclude that the case must be remanded to the trial court with direction to render judgment for the defendant. The record reveals the following facts, which are undisputed or were found by the trial court, and procedural history. In September, 2007, the plaintiff, who is a self-employed construction worker, and the defendant entered into negotiations regarding the renovation and remodeling of a weekend residence that the defendant was planning to buy in the town of Salisbury. The work was to include substantial demolition of the existing structure, the addition of a second floor and the expansion of the structure's footprint. The defendant wanted the work to be performed as quickly as possible so that he and his family could use the residence during the summer of 2008. The parties discussed a cost of approximately $400,000. Pursuant to these discussions, the plaintiff prepared a written "Home Improvement Service Agreement" (agreement) dated October 5, 2007. The agreement described the services that the plaintiff was to perform as "begin demolition [of] existing home in preparation of planned remodel." The agreement also provided that "[a]ny modifications or changes to the above described scope of services shall be set forth in a written [c]hange [o]rder signed by both parties ." (Emphasis in original.) In addition, the agreement provided that the defendant would pay the plaintiff "[$45] per man plus any expenses to include dumpsters [and/or] materials." The agreement further provided that "once full plans have been provided we will start another contract with firm pricing for every aspect of [the] job with the exclusion of any changes as the project progresses." The trial court concluded that the agreement did not satisfy the requirements of § 20-249 (a) or (f) because it was not signed by the plaintiff, it did not contain a completion date and the plaintiff failed to prove that he delivered a completed copy of it to the defendant. From October, 2007 through September, 2008, the plaintiff worked exclusively on the defendant's renovation project. During that period, the plaintiff received numerous work orders related to the project from multiple sources, including the defendant, his wife, Amie R. Weitzman, the defendant's architect, Elizabeth Slotnick, and Weitzman's assistant, Julie Weiner. None of these four people had a complete understanding of the work that the plaintiff was being requested to perform. In addition, none of them ever inquired about the cost of doing the various items of work that they requested. The written plans for the project were frequently revised by the defendant and others acting on his behalf, and many of the changes were significant. Indeed, the trial court found that the "project was marked by untrammeled profligacy on the part of the [defendant]." According to the plaintiff, he continued to rely on the time and materials provision of the agreement and never executed a "contract with firm pricing," as provided by the agreement, because he never received a full set of plans and "things constantly changed from day to day ." As the project moved forward, the plaintiff periodically requested payments from the defendant, which the defendant provided. The plaintiff did not send the defendant itemized bills, however, and the defendant initially did not request them. Rather, the plaintiff calculated his expenses from his checkbook records, invoices and time sheets. The plaintiff did not retain all invoices and time sheets relating to the project, nor did he keep a daily construction log or other records that would show which tradesmen were on the site, what work was performed, or what materials were delivered to the site. On March 15, 2008, the plaintiff presented the defendant with a written budget report showing that the projected total cost of the project was $810,267, including $521,944 for work already completed. On March 25, 2008, the plaintiff presented the defendant with a revised budget report showing that the projected total cost of the project was $795,038, including $518,352 for work already completed. On May 27, 2008, the plaintiff informed the defendant by e-mail that the budget had increased to $886,954, not including certain additional items that the defendant had requested. The e-mail stated that "all future changes will be done on a time and material basis unless it is more efficient to bid," and that "[t]here will . be a need for an [e-mail] or written response for these changes from either you or your wife's office approving them ." The plaintiff also told the defendant that he owed substantial amounts to his subcontractors and required additional funding to keep them working. The defendant was unhappy with the revised budget, but he chose to retain the plaintiff as his contractor because he was anxious to have the project completed so that he could use the house. Although the defendant contended that he believed that the e-mail represented the terms of a new "fixed price contract," he and Weitzman continued to ask the plaintiff to perform additional tasks. On August 25, 2008, the plaintiff sent a letter to the defendant setting forth the "final numbers for all work performed" at the residence. The plaintiff stated that the total cost of the project was $1,188,350 and that payments received to date totaled $985,000, for a balance due of $203,350. At that point, the project was approximately 98 percent complete. In response, the defendant sent an e-mail to the plaintiff on September 3, 2008, summarizing and comparing the various budget reports that the plaintiff had provided. The defendant complained that "the numbers do not add up and there are different categories being created in each budget." According to the defendant's calculations, the total cost of the project was $963,923, or $21,077 less than the $985,000 that the defendant had already paid. The $963,923 figure included extra items of work that the defendant had approved since the plaintiff's May 27, 2008 budget report. The defendant indicated that he was willing to pay for these extras if the plaintiff could establish that the amounts shown were correct, and he requested additional information for certain items. The defendant also noted that the plaintiff had not begun to address "the 100+ item punch list" that the defendant had provided to the plaintiff. Finally, the defendant stated that he had been "very happy with the quality of [the plaintiff's] work generally and it is my hope that we can resolve this matter amicably." On September 8, 2008, the plaintiff informed the defendant that the total cost of the project had increased to $1,199,911, and the total balance due was $214,911. On September 12, 2008, the plaintiff sent an e-mail to the defendant itemizing in detail the work that he and others had been performing at the residence since June 1, 2008. The plaintiff, however, did not provide the cost of each item or any backup documentation. The plaintiff stated that he had performed the work at the defendant's request on the understanding that he would be paid for it. He also stated that he was losing money on the project, that his relationships with his subcontractors and suppliers were in jeopardy, and that he needed to pay them. On September 9, 2008, the defendant's architect, Slotnick, sent an e-mail to the defendant indicating that she had received an e-mail from a supplier inquiring whether the defendant was happy with the kitchen cabinetry, because he had not been paid yet. Slotnick had told the supplier that the plaintiff and the defendant had financial issues that they were attempting to resolve. In response, the defendant sent an e-mail to Slotnick asking if she could recommend "a good attorney who does this kind of work." On September 16, 2008, the defendant informed the plaintiff by e-mail that "[w]e are at the end of the road." The defendant stated that the plaintiff's explanations of the additional charges after the May 27, 2008 budget report "were neither itemized, nor specific, and in my opinion are wholly inadequate ." Accordingly, the defendant concluded that he did not owe the plaintiff any amount beyond the $985,000 that he had already paid, which included payment for all extra work performed after May 27, 2008, of which the defendant was aware. The defendant also stated that he was going to hire a contractor to complete the punch list items and that he was "officially and immediately terminating [the] relationship." Finally, the defendant stated that, if the plaintiff intended to litigate the matter in court, the defendant, who is an attorney, would represent himself, and he strongly believed that he would prevail. The defendant admitted at trial that the statement that he would represent himself was false and that he made it in the hope that the plaintiff would not bring a lawsuit if he knew that he would incur litigation expenses that the defendant would not incur. In response to the defendant's September 16, 2008 e-mail, the following day the plaintiff sent an e-mail to the defendant stating, "[I] would like to finish the punch list. It is my respons[i]bility to complete the work." The plaintiff also asked whether his subcontractors would be paid. On September 24, 2008, the defendant sent an e-mail to the plaintiff inquiring when he would be able to complete the punch list. The defendant explained to the plaintiff that, "unless an item is highlighted on the punch list in yellow, these items are included in the amounts I have paid you to date ." On October 10, 2008, the defendant sent another e-mail to the plaintiff stating that, although the plaintiff had indicated that he wanted to complete the punch list, the defendant had "only seen modest progress ." Accordingly, the defendant was going to hire a contractor to complete the work. In addition, the defendant stated that, in light of the fact that he had received a notice of the plaintiff's intent to file a mechanic's lien on the residence, the plaintiff was no longer permitted to enter the defendant's premises. On October 10, 2008, the plaintiff filed a certificate of mechanic's lien in the amount of $214,039.09 on the defendant's property. According to the certificate of mechanic's lien, the "last day substantial services were performed relative to the work done by [the plaintiff] was August 29, 2008." Thereafter, the plaintiff brought this action against the defendant seeking foreclosure of his mechanic's lien (first count), and claiming damages for breach of contract (second count) and unjust enrichment (third count). The defendant raised the special defense that, because the plaintiff had failed to comply with § 20-429, the agreement was unenforceable. In his reply in avoidance, the plaintiff contended that the agreement complied with the provisions of § 20-429 or, in the alternative, if the agreement was noncompliant, he could seek restitution from the defendant because the defendant's reliance on § 20-429 was in bad faith. The matter was tried to the court, which concluded that the agreement did not comply with the requirements of § 20-429, but that the plaintiff could nevertheless recover damages from the defendant because the defendant had acted in bad faith. In support of this conclusion, the trial court found that the defendant and others had made numerous requests for extra work without inquiring as to the expense, that the defendant was aware that the plaintiff owed significant debts to his subcontractors and suppliers, and that the defendant terminated the contract between the parties, but then continued to ask the plaintiff to work on the project without any intention of making further payments. The court further found that the defendant "unilaterally and arbitrarily selected a price that he was willing to pay for the project." The court reasoned that, because the defendant knew as of August 4, 2008, when he made his final payment, that the project was "largely complete," he must have believed that the project itself would not be at risk if he made no further payments even if he "could not trick the plaintiff into finishing the entire punch list ." The trial court also found that the defendant knew that his failure to pay the plaintiff "created a serious risk of putting the plaintiff out of business," and that he "took advantage of [this] fact" to induce the plaintiff to continue to work for him by suggesting that he might make further payments, even though he had no intention of doing so. The defendant increased the pressure for the plaintiff to complete the work when the defendant stated falsely that he would represent himself if the plaintiff brought an action, thereby reminding the plaintiff that, unlike the defendant, he would have to bear legal expenses. The trial court acknowledged, however, that another contractor ultimately completed most of the work that remained to be done after August 4, 2008. The trial court also acknowledged that "the plaintiff's billing records were poorly maintained" and that "much of the difficulty in preparing the case for trial, trying this case and determining the appropriate resolution of the dispute can be traced directly to the plaintiff's failure to maintain better records. Indeed, the existence of the lawsuit itself is undoubtedly tied to the plaintiff's administrative shortcomings. Just as the parameters of the renovation project [were] a constantly moving target, the precise calculation of the plaintiff's expenses was a difficult exercise, the correct resolution of which is a matter upon which the parties vehemently disagree." On the basis of these findings, the trial court concluded that the defendant's conduct "constituted a design to mislead and/or deceive the plaintiff." Specifically, the court concluded that the defendant's "decision to make no further payments after August 4, 2008, was not prompted by an honest mistake as to his rights or duties. Instead, this decision was the product of [the defendant's] desire to use the plaintiff to finish the project at no further expense to [the defendant]." In addition, the court concluded that the defendant's course of conduct "was the product of [the defendant's] choosing to serve his own financial interests at the plaintiff's expense." Accordingly, the trial court concluded that the plaintiff was entitled to recover damages from the defendant, notwithstanding the fact that the agreement did not meet the requirements of § 20-429, because the defendant's refusal to pay the amounts due to the plaintiff was in bad faith. The court rendered judgment for the plaintiff in the amount of $214,039.09 on his breach of contract claim. The court also rendered judgment for the plaintiff on all of the defendant's counterclaims. See footnote 2 of this opinion. The defendant appealed from the judgment of the trial court to the Appellate Court, claiming that the bad faith exception to § 20-429 that this court adopted in Habetz v. Condon , supra, 224 Conn. at 240, 618 A.2d 501, has been abrogated by the enactment of § 20-429 (f). Burns v. Adler , supra, 158 Conn.App. at 792, 120 A.3d 555. The defendant further claimed that, even if the bad faith exception still exists, the trial court incorrectly determined that he acted in bad faith because "the only situation in which a homeowner can be found to have invoked the act in bad faith to defeat a contractor's claim for payment for work performed without an act-compliant contract is when he does so to avoid paying for services he accepted with knowledge of the act and its requirements and the intent not to pay for them by later invoking the act." Id. Finally, the defendant claimed that, even under a broader bad faith standard, the plaintiff failed to prove that the defendant acted in bad faith because the evidence showed only that the defendant refused to pay the plaintiff as the result of a good faith billing dispute. Id., at 801-802, 120 A.3d 555. The Appellate Court concluded that it was bound to reject the claim that the bad faith exception has been legislatively abrogated pursuant to its decision in Walpole Woodworkers, Inc. v. Manning , 126 Conn.App. 94, 104, 11 A.3d 165 (2011), aff'd, 307 Conn. 582, 57 A.3d 730 (2012), in which it had held to the contrary. Burns v. Adler , supra, at 792, 120 A.3d 555. The Appellate Court also rejected the defendant's claims that the trial court incorrectly determined that he had acted in bad faith. Id., at 801-802, 805, 120 A.3d 555. Accordingly, the Appellate Court affirmed the judgment of the trial court. Id., at 808, 120 A.3d 555. This appeal followed. The defendant claims on appeal that this court should overrule the Appellate Court's holding in Walpole Woodworkers, Inc. v. Manning , supra, 126 Conn.App. at 105, 11 A.3d 165, that the legislature did not abrogate the bad faith exception to the act when it amended § 20-429 to include subsection (f). See Public Acts 1993, No. 93-215, § 1. The defendant further contends that, if the bad faith exception to the act still exists, the Appellate Court improperly affirmed the judgment of the trial court that he acted in bad faith because the plaintiff failed to establish that: (1) there was any causal connection between the plaintiff's losses and the purported acts of bad faith; (2) the defendant was aware of his right to repudiate the contract under the act when he disputed the plaintiff's bill; or (3) the defendant had no reasonable basis to dispute the plaintiff's bill. I We first address the defendant's claim that the legislature's enactment of § 20-429 (f) abrogated the judicially created rule that a homeowner may not avail himself of the protection of the act if the homeowner invokes § 20-429 (a) in bad faith. See Habetz v. Condon , supra, 224 Conn. at 237, 618 A.2d 501. The plaintiff contends that this claim is unreviewable because it was unpreserved. The defendant concedes that he did not raise this claim in the trial court, but contends that the claim is nevertheless reviewable because, in light of the Appellate Court's holding in Walpole Woodworkers, Inc. v. Manning , supra, 126 Conn.App. at 105, 11 A.3d 165, that § 20-429 (f) did not abrogate the bad faith exception, raising the claim would have been futile. We disagree. This court previously has rejected "the proposition that the futility of asking the trial court to overrule a decision of this court automatically excuses the failure to preserve the claim. Moreover, we [have concluded] that there are good reasons not to adopt such a rule. First, requiring the party to raise the claim would put the other parties on notice of the claim and allow them to properly evaluate their position at the time of trial.... Second, a futility exception to preservation could lead to ambuscade of the trial court." (Citation omitted; footnote omitted.) Ulbrich v. Groth , 310 Conn. 375, 428-29, 78 A.3d 76 (2013). Thus, although the futility of raising a claim is a factor that this court will consider when determining whether it will review an unpreserved claim, the general rule is that futility will not excuse the failure to raise a claim in the trial court in the absence of exceptional circumstances. See id. We find no such exceptional circumstances here. Indeed, the Appellate Court did not release its decision in Walpole Woodworkers, Inc. , until January 18, 2011, after the pleadings in this case were already closed. Thus, the defendant had no reason to believe at the time that the plaintiff filed his reply in avoidance alleging bad faith that it would be futile to file a motion to strike that pleading, yet he failed to do so. Accordingly, we conclude that this claim is not reviewable. II We next address the defendant's claim that the Appellate Court improperly affirmed the trial court's conclusion that the defendant acted in bad faith when he refused to pay the plaintiff the amounts that the plaintiff claimed were due. We agree. We begin our analysis with the standard of review. This court previously has held that the question of whether a party acted in bad faith is a question of fact subject to review for clear error. Habetz v. Condon , supra, 224 Conn. at 237 n.11, 618 A.2d 501 ("[i]t is the burden of the party asserting the lack of good faith to establish its existence and whether that burden has been satisfied in a particular case is a question of fact"). In Habetz , however, the plaintiff homeowner did not challenge on appeal the trial court's conclusion that the defendant contractor had met his burden of proving bad faith. Id. Thus, this court was not required to consider the proper standard of review when the underlying facts are not disputed, but the homeowner claims that those facts do not rise to the level of bad faith. We now conclude that whether undisputed facts meet the legal standard of bad faith is a question of law. See Francis v. Dept. of Correction , 178 Wash.App. 42, 51-52, 313 P.3d 457 (2013) ("[w]hether an agency acted in bad faith . presents a mixed question of law and fact, in that it requires the application of legal precepts [the definition of 'bad faith'] to factual circumstances [the details of the agency's conduct]"), review denied, 180 Wash.2d 1016, 327 P.3d 55 (2014) ; Brown v. Labor & Industry Review Commission , 267 Wis.2d 31, 40, 671 N.W.2d 279 (2003) (determination of bad faith presents mixed question of fact and law); see also Walpole Woodworkers, Inc . v. Manning , 307 Conn. 582, 588, 57 A.3d 730 (2012). In the present case, we assume the correctness of the trial court's factual findings that: the defendant and others had made numerous requests for extra work without inquiring as to the expense; the defendant was aware that the plaintiff owed significant debts to his subcontractors and suppliers; the defendant terminated the contract between the parties, but then continued to allow the plaintiff to work on the project because he wanted to finish the project at no further expense to himself; the defendant unilaterally and arbitrarily selected the price that he was willing to pay the plaintiff; the defendant knew that his failure to pay the plaintiff would jeopardize the plaintiff's business; and the defendant intended to pressure the plaintiff to complete the work by suggesting that he might make further payments and that, if the plaintiff brought an action against the defendant, the defendant would represent himself. Because we treat the trial court's factual findings as correct, whether this conduct rose to the level of bad faith for purposes of the bad faith exception to § 20-429 is a pure question of law, subject to plenary review. We turn, therefore, to a review of the relevant law. In Habetz v. Condon , supra, 224 Conn. at 239, 618 A.2d 501, we recognized that the purpose of the act is "to preclude a contractor's recovery on the various restitutionary doctrines so as to effectuate the legislative purpose: to require that contractors comply with the act. . Clearly, the legislature is entitled, in the first instance, to impose the burden of compliance with the statute on the professional, the contractor, rather than on the nonprofessional, the consumer. . The objective of the act is to promote understanding by the consumer, to ensure his ability to make an informed decision and to protect him from substantial work by an unscrupulous contractor." (Citations omitted; internal quotation marks omitted.) We further concluded, however, that the act did not "override the general principle embodied in the bad faith exception: that an individual should not profit from his own deceptive and unscrupulous conduct." Id., at 239-40, 618 A.2d 501. Thus, "[p]roof of bad faith . serves to preclude the homeowner from hiding behind the protection of the act." Id., at 237, 618 A.2d 501. We stated in Habetz that "[b]ad faith in general implies both actual or constructive fraud, or a design to mislead or deceive another, or a neglect or refusal to fulfill some duty or some contractual obligation, not prompted by an honest mistake as to one's rights or duties, but by some interested or sinister motive. . Bad faith means more than mere negligence; it involves a dishonest purpose." (Citation omitted; internal quotation marks omitted.) Id. In the present case, the defendant contends that the Appellate Court improperly affirmed the trial court's finding of bad faith because a homeowner does not act in bad faith unless the homeowner "accepts the contractor's services knowing that he has an 'escape hatch' under the [act] which allows him to avoid payment for those services." See Wadia Enterprises, Inc. v. Hirschfeld, 224 Conn. 240, 248, 618 A.2d 506 (1992) (trial court properly found that plaintiff had not proven bad faith when there was no "proof that the attorneys intentionally [drafted a noncompliant contract] in order to have an escape hatch"). Thus, the defendant claims that the bad faith exception does not apply unless the contractor detrimentally relied on the homeowner's preexisting bad faith conduct when providing services pursuant to a noncompliant contract. We conclude that the bad faith exception to the bar on a contractor's recovery under contracts that do not comply with § 20-429 does not apply when a homeowner receives goods and services from a contractor in the belief that they ultimately will have to be paid for, but then repudiates the contract because the contractor's noncompliance with the act gave rise to a genuine, good faith dispute about the scope of the work or the contract price. As we have explained, the very purpose of the act is to place the burden on the contractor to provide written documentation, signed by both parties, for "[e]ach change in the terms and conditions of a contract ." General Statutes § 20-429(a) ("[e]ach change in the terms and conditions of a contract shall be in writing and shall be signed by the owner and contractor"); see also Habetz v. Condon , supra, 224 Conn. at 239, 618 A.2d 501 ("[c]learly, the legislature is entitled, in the first instance, to impose the burden of compliance with [§ 20-429(a) ] on the professional, the contractor, rather than on the nonprofessional, the consumer" [internal quotation marks omitted] ). When a contractor fails to meet this burden and, as a result, a genuine, good faith dispute about the authorized scope of the work or the contract price arises, the homeowner's refusal to pay the amounts claimed by the contractor is not in bad faith. Rather, under these circumstances, the inability of a contractor to enforce the homeowner's payment obligation is exactly what the act contemplates, even as to work that the contractor actually performed. See Barrett Builders v. Miller , 215 Conn. 316, 326-27, 576 A.2d 455 (1990) (although bar on recovery may be "a harsh result where a contractor in good faith but in ignorance of the law performs valuable home improvements without complying with § 20-429... the legislature could legitimately view as more urgent the need to protect consumers from unscrupulous contractors than the need to protect innocent contractors from manipulative consumers"); see also Wadia Enterprises, Inc. v. Hirschfeld , supra, 224 Conn. at 249, 618 A.2d 506 ("[t]here is nothing dishonest or sinister about homeowners proceeding on the assumption that there is a valid contract, enforcing its provisions, and later, in defense to a suit by the contractor, upon learning that the contract is invalid, then exercising their right to repudiate it"); New England Custom Concrete, LLC v. Carbone , 102 Conn.App. 652, 661, 927 A.2d 333 (2007) (when, "[a]t best, the record demonstrates vigorous disagreement about the quality of the [plaintiff contractor's] workmanship in performing the contract," it was "doubtful that the [trial] court could have made a finding of bad faith" [emphasis in original] ); Kronberg Bros., Inc. v. Steele , 72 Conn.App. 53, 63, 804 A.2d 239 (when trial court found no evidence that defendant homeowners were responsible for defects in contract and plaintiff contractor's allegations of bad faith "arose out of the deteriorating relationship between the parties" such that defendants "were confronted with what must have been an exasperating ordeal," court properly concluded that plaintiff failed to prove that defendants acted in bad faith [internal quotation marks omitted] ), cert. denied, 262 Conn. 912, 810 A.2d 277 (2002). Indeed, it would completely nullify the core purpose of the act to conclude that, if the contractor ultimately is able to establish the value of the work that he actually performed, it is in bad faith for a homeowner to refuse to pay the contractor, even though the contractor failed to document the work and any concomitant change in price in a writing, signed by both parties, and even though his failure to comply with § 20-429 initially gave rise to a genuine dispute about the authorized scope or actual value of the work. See Habetz v. Condon , supra, at 239, 618 A.2d 501 ("[t]he objective of the act is to promote understanding by the consumer, to ensure his ability to make an informed decision and to protect him from substantial work by an unscrupulous contractor"). In the present case, the trial court made no finding, and the plaintiff points to no evidence that would support a finding, that the defendant knew before August 4, 2008, when the project was largely complete, that he had an "escape hatch" to avoid payment for the goods and services that he was receiving. See Wadia Enter prises, Inc. v. Hirschfeld, supra, 224 Conn. at 248, 618 A.2d 506 (trial court properly found that plaintiff had not proven bad faith when there was no "proof that the [defendant homeowners'] attorneys intentionally [drafted a noncompliant contract] in order to have an escape hatch"). Indeed, there is no evidence that the defendant had any reason to believe as of August 4, 2008, that he had received goods and services for which he had not paid. Rather, the undisputed evidence shows that, as of May 27, 2008, the last date that the plaintiff provided a contract price to the defendant, the plaintiff estimated that the price to complete the project would be $886,954, not including certain items that the defendant had requested, and that, as of August 4, 2008, the defendant had paid the plaintiff $985,000. Although the defendant continued to ask the plaintiff to perform extra work between May 27, 2008, and August 4, 2008, the trial court did not find, and the plaintiff has cited no evidence that would support a finding, that the defendant knew or should have known that this extra work would raise the contract price from $886,954 to $1,199,911, an increase of $312,957, or 35 percent, in little more than two months. Indeed, the only evidence regarding the defendant's beliefs on this issue is the defendant's September 3, 2008 e-mail to the plaintiff indicating that, according to the defendant's calculations, the total cost of the project, including extras that he had approved since May 27, 2008, was $963,923, $21,077 less than he had already paid the plaintiff, and the defendant's September 16, 2008 e-mail to the plaintiff stating that he had already paid for all of the extra work performed after May 27, 2008, of which he was aware. Thus, the defendant's conduct before August 4, 2008, could not have been in bad faith. We further conclude that the defendant's repudiation of the contract after he made his final payment to the plaintiff on August 4, 2008, was not in bad faith. The trial court expressly found that "the plaintiff's billing records were poorly maintained," that "much of the difficulty in preparing the case for trial, trying this case and determining the appropriate resolution of the dispute can be traced directly to the plaintiff's failure to maintain better records," and that these "administrative shortcomings" caused the breakdown of the relationship between the parties that, in turn, led to the defendant's termination of the contract and the plaintiff's legal action. Although the trial court found that, "when [the defendant] made his final payment on August 4, 2008, he had no intention of ever making any further payments," and that the defendant "unilaterally and arbitrarily" decided how much he would pay the plaintiff, the court made no finding, and the plaintiff has cited no evidence that would support a finding, that the defendant knew or should have known that the plaintiff's calculations of the amounts owed to him were correct, or even close to correct. The only documents that the plaintiff provided to the defendant after August 4, 2008, were mutually inconsistent lists of work items and prices that were not supported by invoices, receipts, checks or time sheets. Indeed, the trial court expressly acknowledged that "the parties vehemently disagree" about the amounts that are owed to the plaintiff and that the plaintiff's poor record keeping made it difficult, if not impossible, to determine the precise amounts that he was owed even after trial , where the plaintiff had presented extensive documentation of his expenses that he previously had not provided to the defendant. Thus, it is implicit in the trial court's factual findings that the plaintiff's noncompliance with the act gave rise to a genuine, good faith disagreement between the parties as to whether the defendant owed the plaintiff the amounts that the plaintiff claimed. Moreover, even if there were no genuine dispute about the value of the goods and services that the plaintiff actually provided, the plaintiff's failure to comply with the act deprived the defendant of the opportunity to make an informed decision as to whether he should continue to accept goods and services from the plaintiff during the course of the renovation project, which is the core purpose of the act. See Habetz v. Condon , supra, 224 Conn. at 239, 618 A.2d 501. Finally, the fact that the defendant paid almost $1,000,000 to the plaintiff on a project that was initially estimated to cost $400,000, despite the plaintiff's failure to document the cost of the goods and services that he provided, strongly suggests that the defendant did not act in bad faith. To the extent that the trial court concluded that the defendant acted in bad faith when he continued to allow the plaintiff to perform work after August 4, 2008, at which point he had decided that he would make no further payments, we disagree. The trial court made no factual findings as to what items of work the plaintiff performed after that date, nor did it make any findings as to when the plaintiff billed the defendant for those items of work, and the plaintiff has cited no evidence that could provide the basis for such findings. Thus, there is simply no way of knowing whether the defendant believed in good faith that he already had paid the plaintiff for the small amount of work that the plaintiff performed after August 4, 2008, and it clearly would not be in bad faith for the defendant to allow the plaintiff to finish work for which the defendant believed that he had already paid. Moreover, it is clear that the defendant's September 3, 2008 e-mail indicating that he was prepared to pay for extra items of work if the plaintiff could establish that the amounts he claimed were correct did not induce the plaintiff to perform substantial additional work, because, according to the mechanic's lien that the plaintiff prepared and placed on the property, "[t]he last day [that] substantial services were performed" on the project was August 29, 2008. Because the trial court did not find, and the evidence would not support a finding, that the defendant received goods and services from the plaintiff with the intent of invoking § 20-429 to avoid paying for them, and because the trial court found that the plaintiff's failure to comply with the requirements of § 20-429(a) gave rise to a genuine dispute about the value of those goods and services, we conclude that the defendant did not act in bad faith when he invoked that statute as a bar to the plaintiff's enforcement action. Accordingly, we conclude that the Appellate Court improperly affirmed the judgment of the trial court that the plaintiff was entitled to recover damages from the defendant notwithstanding the fact that the agreement between the parties did not comply with § 20-429. The judgment of the Appellate Court is reversed in part and the case is remanded to that court with direction to remand the case to the trial court with direction to render judgment for the defendant on the first and second counts of the plaintiff's complaint; the plaintiff's appeal from the Appellate Court affirming the trial court's denial of his request for attorney's fees is dismissed as moot. In this opinion PALMER, EVELEIGH, McDONALD and VERTEFEUILLE, Js., concurred. ROBINSON, J., with whom ESPINOSA, J., joins, dissenting. I respectfully disagree with the majority's decision in the first certified appeal, SC 19560, to reverse the judgment of the Appellate Court affirming the trial court's judgment in favor of the plaintiff contractor, James E. Burns, Jr., on the ground that the conduct of the defendant homeowner, David Y. Adler, did not fall within the bad faith exception to the statutory bar on the enforcement of contracts that do not comply with the requirements set forth in General Statutes (Rev. to 2007) § 20-429. See Burns v. Adler , 158 Conn.App. 766, 806, 120 A.3d 555 (2015). Specifically, I disagree with the majority's conclusions, set forth in part II of its opinion, that: (1) the bad faith exception is applicable only when a homeowner enters into an agreement with, or accepts services from, a home improvement contractor knowing that, under the Home Improvement Act (act), General Statutes § 20-418 et seq., the defective contract provides them with an " 'escape hatch' " from payment; and (2) the defendant's repudiation of the contract was the product of a good faith dispute over the goods and services provided by the plaintiff. Instead, I would hold that the bad faith exception, as articulated in Habetz v. Condon , 224 Conn. 231, 237-40, 618 A.2d 501 (1992), applies when a homeowner has acted in a manner inconsistent with the duty of good faith and fair dealing in the course of his relationship with a contractor, as the trial court properly found to have occurred in the present case. As a result of this conclusion, I would reach the second certified appeal, SC 19561, and conclude that the Appellate Court properly determined that the plaintiff was not entitled to an award of attorney's fees for the foreclosure of his mechanic's lien pursuant to General Statutes § 52-249(a). Burns v. Adler , supra, at 808, 120 A.3d 555. Because I would affirm the judgment of the Appellate Court, I respectfully dissent. I I begin by noting my agreement with the background facts and procedural history set forth in the majority opinion. I also agree in limited part with the majority's statement of the standard of review. Specifically, I agree that the issue of whether the plaintiff can invoke the bad faith exception in this case presents a question of law over which our review is plenary, albeit only to the extent that the defendant's claims on appeal require this court to define the contours of that doctrine. See, e.g., Thompson v. Orcutt , 257 Conn. 301, 308-309, 777 A.2d 670 (2001) (application of equitable doctrine of unclean hands is committed to trial court discretion, but interpretation of that doctrine is question of law subject to plenary review); see also Walpole Woodworkers, Inc. v. Manning , 307 Conn. 582, 588, 57 A.3d 730 (2012) ("[t]he determination of whether an equitable doctrine applies in a particular case is a question of law subject to plenary review"). With respect, however, to the application of the bad faith exception, I disagree with the majority's statement of the standard of review to the extent it conflicts with the well established principle that "[w]hether a party has acted in bad faith is a question of fact, subject to review only for clear error." Renaissance Management Co. v. Connecticut Housing Finance Authority , 281 Conn. 227, 240, 915 A.2d 290 (2007) ; see MacMillan v. Higgins , 76 Conn.App. 261, 271-73, 822 A.2d 246, cert. denied, 264 Conn. 907, 826 A.2d 177 (2003) ; see also Habetz v. Condon , supra, 224 Conn. at 237 n.11, 618 A.2d 501. This reflects the fact that a finding of bad faith turns on subordinate considerations such as the relevant actor's motives and intent, which often may only be inferred from circumstantial evidence. See, e.g., Wadia Enterprises, Inc. v. Hirschfeld , 224 Conn. 240, 250, 618 A.2d 506 (1992). A I begin with the majority's analysis of the defendant's claims on appeal, which, notwithstanding footnote 16 of the majority opinion, may be misconstrued as embracing an unduly narrow approach to the bad faith exception. In particular, I wish to emphasize my disagreement with the defendant's position, founded largely on this court's decision in Wadia Enterprises, Inc. v. Hirschfeld , supra, 224 Conn. at 240, 618 A.2d 506, that the bad faith exception is applicable only to cases wherein the homeowner entered into an agreement or accepted services from a contractor knowing that the act gave the homeowner an "escape hatch" from payment because the contract was defective under § 20-429(a). I do not read our articulation of the bad faith exception in Habetz as so narrowly circumscribed. At the outset, I briefly discuss the statutory scheme governing home improvement contract disputes and the history of the bad faith exception in Habetz . " Section 20-429(a) provides that no home improvement contract shall be valid or enforceable against a homeowner unless it contains certain enumerated criteria. The aim of the [act] is to promote understanding on the part of consumers with respect to the terms of home improvement contracts and their right to cancel such contracts so as to allow them to make informed decisions when purchasing home improvement services.... "In Barrett Builders v. Miller , 215 Conn. 316, 328, 576 A.2d 455 (1990), this court held that a contractor who did not comply with the written contract requirement of the act could not recover in restitution. This result was subsequently modified by one common-law and one statutory exception. First, in Habetz v. Condon , supra, 224 Conn. at 240, 618 A.2d 501, this court held that contractors may recover in restitution despite noncompliance with § 20-429(a), when homeowners invoke the protections of the act in bad faith. Subsequently, the legislature enacted No. 93-215, § 1, of the 1993 Public Acts, now codified at § 20-429(f), which allows recovery of payment for work performed based on the reasonable value of services which were requested by the owner for partial noncompliance with certain requirements of the act when the court determines that it would be inequitable to deny such recovery. Thus, both Habetz and § 20-429(f) provide for recovery in quantum meruit despite a contractor's noncompliance with certain statutory requirements." (Citation omitted; footnotes omitted; internal quotation marks omitted.) Walpole Woodworkers, Inc. v. Manning , supra, 307 Conn. at 586-87, 57 A.3d 730 ; see also footnote 2 of this dissenting opinion. In formally adopting the bad faith exception, this court emphasized in Habetz that its "central element . is the recognition that to allow the homeowner who acted in bad faith to repudiate the contract and hide behind the act would be to allow him to benefit from his own wrong, and indeed encourage him to act thusly. Proof of bad faith therefore serves to preclude the homeowner from hiding behind the protection of the act. . [W]e need look no further than the maxim that no person may take advantage of his own wrong. . This deeply rooted principle has been applied in many diverse classes of cases by both law and equity courts and has frequently been employed to bar what would otherwise be inequitable reliance on statutes." (Citations omitted; footnote omitted.) Habetz v. Condon , supra, 224 Conn. at 237-38, 618 A.2d 501. The court emphasized that the "bad faith exception is designed to prevent a party's disavowal of previous conduct if such repudiation would not be responsive to demands of justice and good conscience. The law does not permit the exercise of a right to repudiate a contract when the exercise of such a right in bad faith would work an injustice. Every contract carries an implied covenant of good faith and fair dealing requiring that neither party do anything that will injure the right of the other to receive the benefits of the agreement. . To demand this implicit component but do nothing about its absence would be at best incongruous, and, more accurately, grossly unfair. Thus, a contractor, otherwise precluded from recovering moneys owed for his work because of a violation of the act, must be permitted to assert that the homeowner's bad faith precludes him from safely repudiating the contract and hiding behind the act in order to bar the contractor's recovery." (Citations omitted.) Id., at 238, 618 A.2d 501. Acknowledging that this conclusion potentially "frustrate[s]" the purpose of the act, the court emphasized that the bad faith doctrine is "founded on public policy and contain[s] a strong strain of estoppel," and is intended to "prevent a misbehaving party from invoking the benefits of a statute which is absolute on its face. To deny the contractor any opportunity of recovery after he has completed his end of the bargain if he has persuaded the trier of fact that a statutory remedy is being invoked by a homeowner in bad faith would be to countenance a gross injustice and indeed to encourage its perpetuation and to assure its success." Id., at 239-40, 618 A.2d 501. Applying the bad faith exception in Habetz , this court upheld the judgment of the trial court with respect to a contractor's counterclaim for unpaid sums, despite the fact that the contract violated § 20-429(a) by lacking a notice of cancellation provision-a defect that the trial court had deemed "minor." (Internal quotation marks omitted.) Id., at 233-35, 618 A.2d 501. Although this court did not engage in a detailed discussion of what had constituted bad faith on the part of the homeowner, it observed that the homeowner did not pay for numerous requested extras memorialized in change orders during the construction of an addition to his home, along with a portion of the balance remaining on the original contract, and that the homeowner had refused "repeated requests" by the contractor to sign the change orders with respect to the extras. Id., at 233-34, 618 A.2d 501. Rather than confine the bad faith exception to a limited array of homeowner conduct involving the knowing acceptance of services under a noncompliant agreement, I believe that case law from this court and the Appellate Court suggests that, consistent with its equitable and fact dependent nature, the bad faith exception is applicable to a wide variety of homeowner misconduct. First, in Habetz itself, the court suggested that the bad faith exception may have broad applicability. See id., at 236 n.10, 618 A.2d 501 (interpreting Barrett Builders dictum "to mean that a homeowner cannot in bad faith invoke the contractor's statutory violation as a basis for his own repudiation of the contract," but leaving "for another day" question of "[w]hether proof of bad faith in some other manner on the part of the homeowner will also allow a contractor who has failed to comply with the requirements of the act to recover"). Indeed, Habetz focuses on the implied covenant of good faith and fair dealing; id., at 238, 618 A.2d 501 ; which extends through the life of the contract. See Geysen v. Securitas Security Services USA, Inc. , 322 Conn. 385, 405-406, 142 A.3d 227 (2016). Consistent with the covenant, Habetz also focuses on the inequity of the homeowner's receipt of services without payment once the contractor has completed its "end of the bargain"-also an event that naturally extends beyond formation or acceptance. Habetz v. Condon , supra, 224 Conn. at 240, 618 A.2d 501 ; see also Rizzo Pool Co. v. Del Grosso , 232 Conn. 666, 681-82 and n.24, 657 A.2d 1087 (1995) (because bad faith exception only permits restitution, contractor who had not yet begun construction could not recover liquidated damages, even if homeowner acted in bad faith to repudiate defective contract). Thus, I agree with the Appellate Court's conclusion in the present case that a homeowner might well have "invoked the act in bad faith if he did so to cover up and achieve the illicit objectives of other dishonest dealings between himself and the contractor, regardless of whether he knew of the act and its requirements at the time of those other dishonest dealings, or intended at the outset of those dealings to invoke the act to achieve his dishonest purpose." Burns v. Adler , supra, 158 Conn.App. at 799, 120 A.3d 555. I disagree with the defendant's position that Wadia Enterprises, Inc. v. Hirschfeld , supra, 224 Conn. at 240, 618 A.2d 506, a companion case to Habetz , stands for the proposition that the bad faith exception is only applicable when the homeowner accepts services with knowledge of an "escape hatch" under the act. Consistent with the fact sensitive nature of the bad faith inquiry, I would confine Wadia Enterprises, Inc. , to the facts and claims before the court in that case, which held that a contractor's claim of bad faith could not survive summary judgment, despite the fact that the underlying defective contract was prepared by the homeowners' New York based attorney and architect, and the homeowners: (1) had certified payments while retaining 5 percent and refused to make the final payment in reliance on the terms of the contract that they sought to repudiate; (2) forced the contractor to "extend credit for change orders under provisions of the contract they [sought] to repudiate"; and (3) acted to "[enforce] the delay damages clause and alleged breach of specific parts of the very contract they [sought] to repudiate." Id., at 248, 618 A.2d 506. This court held that "[n]one of these facts . indicates a dishonest purpose" sufficient to justify invocation of the bad faith exception, observing that the "fact that the [homeowners] had their architect and New York attorneys draft the contract does not in and of itself indicate bad faith on the part of the defendants. There is no allegation or proof that the attorneys intentionally omitted this requirement in order to have an escape hatch. At most, the New York attorneys were negligent in failing to consult Connecticut law and to include the required clause in the contract. An honest mistake does not rise to the level of bad faith." Id., at 248-49, 618 A.2d 506. The court held that summary judgment was appropriate because these facts were not sufficient to sustain the necessary findings with respect to "motive, intent and good faith ." Id., at 250, 618 A.2d 506. Our Appellate Court has followed Wadia Enterprises, Inc. , in rejecting claims of bad faith in cases wherein-at least in my view-the homeowners or their agents engaged in conduct that should place them beyond the protections of the act-at least by estoppel-such as actively participating in the drafting of the defective contract. See Lucien v. McCormick Construction, LLC , 122 Conn.App. 295, 302-303, 998 A.2d 250 2010) (reversing finding of bad faith, despite "eleventh hour" invocation of act to avoid contract, which homeowner did not sign prior to work starting, because there was no evidence that homeowner knew of violations or that her attorney "purposely drafted the contract in violation of the act in order to later avoid her obligation to pay"); id., at 302 n.5, 998 A.2d 250 (noting that homeowner's attorney was based out of New York and would be charged with knowledge of act if admitted in Connecticut); MacMillan v. Higgins , supra, 76 Conn.App. at 272, 822 A.2d 246 ("the fact that the [homeowners], through their agent, [a Connecticut attorney], drafted the contract does not mandate a finding of bad faith"); see also Dinnis v. Roberts , 35 Conn.App. 253, 256, 259, 644 A.2d 971 (recognizing footnote in Habetz , but declining to extend bad faith exception in upholding summary judgment for homeowners, despite contractor's claim that they acted in bad faith by terminating relationship when work was 85 percent complete, hiring engineer to inspect work without providing notice or expressing dissatisfaction, and using harassing litigation tactics), cert. denied, 231 Conn. 924, 648 A.2d 162 (1994). I believe that Wadia Enterprises, Inc. , was wrongly decided, even beyond its apparent suggestion that the homeowner or their representative must harbor intent to draft a defective contract as an escape hatch in order for the bad faith exception to apply. Wadia Enterprises, Inc. , is inconsistent with both the bad faith exception and the purpose of the act, which is to protect consumers from unscrupulous contractors employing high pressure sales tactics and performing substandard work. Habetz v. Condon , supra, 224 Conn. at 239, 618 A.2d 501. Thus, I hardly see how it is "responsive to demands of justice and good conscience"; id., at 238, 618 A.2d 501 ; to allow a homeowner to repudiate a contract drafted by the homeowner, or especially the homeowner's professional representative such as an attorney or architect, based on technical defects in the contract. Allowing act based repudiation in such a case strikes me as just the kind of "inequitable reliance on statutes" contemplated by the bad faith exception. Id. Given the "strong" estoppel basis of the bad faith doctrine; id., at 240, 618 A.2d 501 ; allowing a repudiation of a defective contract drafted by a homeowner's attorney or architect does nothing to further the legislative judgment to "impose the burden of compliance with the statute on the professional, the contractor, rather than on the nonprofessional, the consumer." Barrett Builders v. Miller , supra, 215 Conn. at 326, 576 A.2d 455 ; see also Wright Bros. Builders, Inc. v. Dowling , 247 Conn. 218, 231, 720 A.2d 235 (1998) ("The [act] is a remedial statute that was enacted for the purpose of providing the public with a form of consumer protection against unscrupulous home improvement contractors. . The aim of the statute is to promote understanding on the part of consumers with respect to the terms of home improvement contracts and their right to cancel such contracts so as to allow them to make informed decisions when purchasing home improvement services." [Citation omitted.] ). I emphasize however, that even if I did not conclude that this court should overrule Wadia Enterprises, Inc. , because it was wrongly decided, I nevertheless do not read it as requiring intent at formation or acceptance to use the defective contract as an escape hatch to establish bad faith in all cases. Instead, I believe that Wadia Enterprises, Inc. , held only that the contractor failed to adduce sufficient evidence to prove that specific theory of bad faith in that particular case. To hold otherwise would be to read Wadia Enterprises, Inc. , as overruling-without saying so-the broader and equitable conception of bad faith articulated in its companion case, Habetz , which expressly left to "another day" other iterations of bad faith. Habetz v. Condon , supra, 224 Conn. at 236 n.10, 618 A.2d 501. Rather, I believe that the intensely fact sensitive bad faith exception may encompass a broad variety of unscrupulous homeowner conduct. I find instructive Walpole Woodworkers, Inc. v. Manning , 126 Conn.App. 94, 101-102, 11 A.3d 165 (2011), aff'd, 307 Conn. 582, 57 A.3d 730 (2012), in which the Appellate Court upheld a finding of bad faith in a dispute arising from the construction of a fence in a case having nothing to do with the formation of the contract. The court held that an arbitrary refusal by the homeowner to pay was enough to support a finding of bad faith, given the fact finder's rejection of the homeowner's claim that the contractor's workmanship was defective. Id., at 99-100, 11 A.3d 165. The Appellate Court observed specifically that, after the construction of a fence was "substantially completed," the homeowner had "delayed payment of the balance due [for more than six months] and, when pressed, revealed the existence of his small dog and his newly voiced concern about its escape. The defendant delayed the plaintiff's installation of a free fix for another six months because the parties could not agree on a date for the fix to be installed and could not agree that the balance would be paid upon completion. After the fix was installed, the defendant continued to refuse to pay the balance due, even though his only real concern about the work was addressed by the fix. Moreover, he testified at trial that the fence work was completed; he simply decided he would not pay the balance due on the contract." Id., at 101-102, 11 A.3d 165. The Appellate Court's decision in Kronberg Bros., Inc. v. Steele , 72 Conn.App. 53, 804 A.2d 239, cert. denied, 262 Conn. 912, 810 A.2d 277 (2002), similarly suggests that the bad faith inquiry is not limited to events surrounding the formation of the contract. Although the Appellate Court disagreed with the contractor's claim that the trial court had "improperly rejected its claim of bad faith by the [homeowners] on the basis of its finding that none of the acts alleged was committed prior to the execution of the contract"; id., at 62, 804 A.2d 239 ; the court emphasized that, even with no evidence that the homeowners had contributed to the defect in the contract, the trial court had "clearly considered the [homeowners'] acts before and after the execution of the contract when it rejected the [contractor's] bad faith claim," in concluding that the homeowners' actions alleged to constitute bad faith "arose out of the deteriorating relationship between the parties and can hardly be held to be actions in bad faith when the [homeowners] were confronted with what must have been an exasperating ordeal. The [contractor] overlooks the evidence in this trial, which hardly depicts a neat, orderly and efficient project proceeding on time and without delay." (Emphasis added; internal quotation marks omitted.) Id., at 63, 804 A.2d 239. Accordingly, I conclude that the Appellate Court properly determined that the bad faith exception is not limited to claims that the homeowner accepted services from the contractor intending to rely on a known defect in the contract to avoid payment. See Burns v. Adler , supra, 158 Conn.App. at 801, 120 A.3d 555. I agree with the Appellate Court that "[a ]ny invocation of the act to avoid a contractual obligation to the contractor for a dishonest or sinister purpose can serve as a proper basis for seeking restitution under the bad faith exception, and thereby preventing an injustice." (Emphasis added.) Id. B Relying heavily on evidence of the plaintiff's disorganized bookkeeping practices as part and parcel of his failure to comply with the act's documentation requirements, the majority further concludes that the defendant's conduct after he made a final payment on August 4, 2008, was not in bad faith because the trial court "made no finding, and the plaintiff has cited no evidence that would support a finding, that the defendant knew or should have known that the plaintiff's calculations of the amounts owed to him were correct, or even close to correct." The majority posits that "it is implicit in the trial court's factual findings that the plaintiff's noncompliance with the act gave rise to a genuine, good faith disagreement between the parties as to whether the defendant owed the plaintiff the amounts that the plaintiff claimed. Moreover, even if there were no genuine dispute about the value of the goods and services that the plaintiff actually provided, the plaintiff's failure to comply with the act deprived the defendant of the opportunity to make an informed decision as to whether he should continue to accept goods and services from the plaintiff during the course of the renovation project ." The majority further emphasizes that the trial court "made no factual findings as to what items of work the plaintiff performed after [August 4, 2008], nor did it make any findings as to when the plaintiff billed the defendant for those items of work, and the plaintiff has cited no evidence that could provide the basis for such findings. Thus, there is simply no way of knowing whether the defendant believed in good faith that he already had paid the plaintiff for the small amount of work that the plaintiff performed after August 4, 2008, and it clearly would not be in bad faith for the defendant to allow the plaintiff to finish work for which the defendant believed that he had already paid." (Footnote omitted.) I respectfully disagree with these conclusions because I believe that the majority's reliance on certain "implicit" findings represents an intrusion into the trial court's explicit factual findings. I begin by noting that the majority's recitation of the governing principles is generally consistent with this court's statement of the law in Wadia Enterprises, Inc. v. Hirschfeld , supra, 224 Conn. at 249, 618 A.2d 506 -with which I agree in the abstract-that the homeowners' act of "initially enforcing the contract and subsequently asserting the contract's invalidity as a defense to a suit by the contractor . does not, by itself, present a claim of bad faith. There is nothing dishonest or sinister about homeowners proceeding on the assumption that there is a valid contract, enforcing its provisions, and later, in defense to a suit by the contractor, upon learning that the contract is invalid, then exercising their right to repudiate it." Indeed, I wholly agree with the majority's statement that the bad faith exception does not apply when the homeowner "repudiates the contract because the contractor's noncompliance with the act gave rise to a genuine, good faith dispute about the scope of the work or the contract price." See Taylor v. King , 121 Conn.App. 105, 125-27, 994 A.2d 330 (2010) (upholding trial court's rejection of contractor's bad faith claim because there was no evidence that contractor repeatedly and unsuccessfully asked homeowner to sign contract, there were multiple violations of § 20-429 [a] beyond lack of signed contract, and "the evidence in this case does not indicate that the plaintiff merely was seeking to avoid paying for the defendant's work but, rather, that the defendant's work was substandard and reduced the anticipated value of the house by approximately $100,000"); New England Custom Concrete, LLC v. Car bone , 102 Conn.App. 652, 661, 927 A.2d 333 (2007) (noting that trial court made no finding of fact with respect to contractor's bad faith claim and calling it "doubtful" that finding could be sustained when "[a]t best, the record demonstrates vigorous disagreement about the quality of the plaintiff's workmanship in performing the contract"). This statement of the law does not, however, alter the fundamentally factual nature of the bad faith inquiry; Renaissance Management Co. v. Connecticut Housing Finance Authority , supra, 281 Conn. at 240, 915 A.2d 290 ; and the deference that the appellate courts owe the finder of fact under the applicable clearly erroneous standard of review, even when we disagree with the finding. See MacMillan v. Higgins , supra, 76 Conn.App. at 271-72, 822 A.2d 246 (deferring to attorney trial referee's finding that homeowners had not acted in bad faith, despite fact that they presented contractor with new contract one month after work had started, and that contract had been drafted by homeowner's attorney who was familiar with act, because referee could have credited attorney's testimony that original defective contract was merely draft). The "question before this court is not whether, if faced with the same set of facts, we would reach the same finding as did the [fact finder], but whether [his] finding of an absence of bad faith was clearly erroneous." Id., at 271, 822 A.2d 246. Turning to the facts in the present case, I agree with the Appellate Court's appropriately deferential treatment of the inferences drawn by the trial court in its rejection of the defendant's claim that "the alleged bad faith in this case involved nothing more than a homeowner's refusal to pay disputed charges arising from a contract dispute ." Burns v. Adler , supra, 158 Conn.App. at 803, 120 A.3d 555. In particular, the trial court "found, and the record confirms, that the renovation project on the defendant's home was largely completed by the time the defendant decided that he had paid the plaintiff enough for the work done on his home and refused to pay the plaintiff any more. The [trial] court found that the defendant's refusal to pay the plaintiff was motivated by the fact that the defendant had already received the bulk of the benefits he expected from his relationship with the plaintiff, and thus that there was little risk to him if he refused to pay. The [trial] court found that although the defendant had agreed to a time and materials contract, he unilaterally and arbitrarily selected a price that he was willing to pay for the project without a sound factual basis. He then employed a carrot and stick approach to entice the plaintiff to continue to do work on the project, suggesting that he might be convinced to pay the plaintiff more, even though he never actually intended to do so. The [trial] court found that the defendant's conduct in asking the plaintiff to continue working on the project, knowing that he would not be paying the plaintiff for that work, constituted . neglect and/or a refusal to fulfill [his] contractual obligations to the plaintiff. The [trial] court concluded, based upon its observation of the conduct, demeanor and attitude of the witnesses-all factors that trial courts are particularly well-suited to assess-that [the defendant's] decision to make no further payments after August 4, 2008, was not prompted by an honest mistake as to his rights or duties.... [Rather], this decision was the product of [the defendant's] desire to use the plaintiff to finish the project at no further expense to [the defendant, which] was faster, more efficient and vastly more economical than concluding the relationship with the plaintiff and retaining a new contractor. Thus, it was a course of conduct that was the product of [himself] choosing to serve his own financial interests at the plaintiff's expense. The [trial] court concluded that the defendant's inducement of the plaintiff to continue working on his home on the pretense that he might pay him more, all the while not intending to do so, and his subsequent invocation of the act was made in bad faith." (Footnote added; internal quotation marks omitted.) Id., at 804-805, 120 A.3d 555. Of particular import in my view is the trial court's factual finding that the defendant knew that the plaintiff's business was in grave peril because of unpaid subcontractors and suppliers in September, 2008, when he had expressed his intention not to make further payments, while exhorting the plaintiff to finish the punch list. I also find significant that the trial court rejected, as a factual matter, the defendant's claim that the "charges beyond the amount he chose to pay were unwarranted," given the defendant's expressed need for speed in completion, and the flurry of parties giving the plaintiff orders and incurring costs at the defendant's disinterested behest throughout the project. I agree with the Appellate Court that the trial court reasonably could have inferred that the defendant's conduct constituted bad faith, insofar as it was a "self-serving attempt by the homeowner to receive the benefit of a bargain for which he had freely contracted without fulfilling his own duty to pay for that benefit. He tried to avoid his obligation by hiding behind the protection of the act, which was not established for that purpose. The bad faith exception to the act has been recognized and enforced to discourage this very conduct." Burns v. Adler , supra, 158 Conn.App. at 805, 120 A.3d 555. The majority's contrary reading of the factual record would have been logical and reasonable in the first instance if the majority had been tasked to serve as the fact finder. My view, however, is that the interpretation of the facts by the fact finder in this case does not lack "evidence in the record to support it," and I am not "left with the definite and firm conviction that a mistake has been committed." (Internal quotation marks omitted.) Naples v. Keystone Building & Development Corp. , 295 Conn. 214, 225, 990 A.2d 326 (2010). I, therefore, agree with the Appellate Court that a conclusion to the contrary would be an impermissible substitution of our judgment for that of the trial court. Burns v. Adler , supra, 158 Conn.App. at 805, 120 A.3d 555. II I next address the plaintiff's certified appeal from the judgment of the Appellate Court affirming the trial court's denial of his motion for attorney's fees upon the foreclosure of a mechanic's lien pursuant to § 52-249(a). See id., at 808, 120 A.3d 555 ; see footnote 4 of this dissenting opinion. The Appellate Court's opinion aptly sets forth the following additional relevant facts and procedural history. "[P]rior to the commencement of trial in this action, the parties agreed that trial on the first count of the plaintiff's complaint, the count seeking foreclosure of his mechanic's lien on the defendant's property, would be bifurcated from the trial on his breach of contract and unjust enrichment counts. The court acquiesced and the case proceeded accordingly. After the court issued its memorandum of decision ruling in favor of the plaintiff under the bad faith exception to the act, the plaintiff moved for a supplemental judgment seeking foreclosure of the mechanic's lien. The parties thereafter stipulated that there would not be a hearing on the terms of the judgment of foreclosure of the mechanic's lien. Accordingly, the stipulation was submitted to, and approved by, the court without a hearing. The trial court concluded, based upon the plain language of § 52-249(a), that the condition precedent to the awarding of attorney's fees, namely, a hearing, had not been satisfied. The court thus denied the plaintiff's request for attorney's fees." (Footnotes added.) Burns v. Adler , supra, 158 Conn.App. at 807-808, 120 A.3d 555. The Appellate Court agreed with the trial court's analysis. Id.,at 808, 120 A.3d 555. On appeal, the plaintiff contends that the Appellate Court improperly concluded that the "hearing" requisite to the award of attorney's fees had not occurred because the terms of the foreclosure were determined by stipulation and in-chambers conferences, rather than in a hearing. The plaintiff argues that this approach is unworkable because it elevates "form over substance" by requiring the court to convene on the record for a very brief hearing. To this end, the plaintiff relies on A. Secondino & Son, Inc. v. LoRicco , 19 Conn.App. 8, 15-16, 561 A.2d 142 (1989), for the proposition that attorney's fees are allowed under § 52-249(a) in foreclosure "actions," rather than just "hearings." He also contends that the requisite hearing commenced with trial on all other counts of the complaint, which served to establish the debt that formed the basis for the foreclosure judgment, given case law such as Clem Martone Construction, LLC v. DePino , 145 Conn.App. 316, 331-32, 77 A.3d 760, cert. denied, 310 Conn. 947, 80 A.3d 906 (2013), which suggests that attorney's fees under § 52-249(a) may include fees for the underlying trial to establish the debt. In response, the defendant emphasizes that the proceedings in this case were bifurcated between the foreclosure and underlying unjust enrichment and breach of contract counts, and that the parties' subsequent stipulation resolving the plaintiff's motion for a supplemental judgment obviated the need for a hearing on the foreclosure remedy. Thus, the defendant contends that the plaintiff's "form over substance" arguments ask this court to rewrite the plain and unambiguous language of § 52-249(a), which calls for a specific type of hearing as a prerequisite to an award of attorney's fees, namely, one to determine the form of the foreclosure judgment and the defendant's right of redemption; he posits that requiring the plaintiff to pay his own attorney's fees in the absence of such a hearing is consistent with the common-law American rule under which parties pay their own attorney's fees absent a statutory or contractual exception. See, e.g., ACMAT Corp. v. Greater New York Mutual Ins. Co. , 282 Conn. 576, 582, 923 A.2d 697 (2007). To this end, the defendant further contends that the stipulation did not have the formalities associated with a hearing. I agree with the defendant, and conclude that the requisite hearing did not occur in this case to permit an award of attorney's fees pursuant to § 52-249(a). Whether § 52-249(a) permits an award of attorney's fees when the foreclosure judgment is the product of a stipulation rather than an on-the-record hearing "presents a question of statutory construction over which we exercise plenary review.... When construing a statute, [o]ur fundamental objective is to ascertain and give effect to the apparent intent of the legislature.... In other words, we seek to determine, in a reasoned manner, the meaning of the statutory language as applied to the facts of [the] case, including the question of whether the language actually does apply. . In seeking to determine that meaning, General Statutes § 1-2z directs us first to consider the text of the statute itself and its relationship to other statutes. If, after examining such text and considering such relationship, the meaning of such text is plain and unambiguous and does not yield absurd or unworkable results, extratextual evidence of the meaning of the statute shall not be considered. . When a statute is not plain and unambiguous, we also look for interpretive guidance to the legislative history and circumstances surrounding its enactment, to the legislative policy it was designed to implement, and to its relationship to existing legislation and common law principles governing the same general subject matter . The test to determine ambiguity is whether the statute, when read in context, is susceptible to more than one reasonable interpretation." (Citation omitted; footnote omitted; internal quotation marks omitted.) Tomick v. United Parcel Service, Inc. , 324 Conn. 470, 477-78, 153 A.3d 615 (2016). I am mindful that, "[i]n determining whether . a statute abrogates or modifies a common law rule the construction must be strict, and the operation of a statute in derogation of the common law is to be limited to matters clearly brought within its scope. . Thus, [n]o statute is to be construed as altering the common law, farther than its words import [and a statute] is not to be construed as making any innovation upon the common law which it does not fairly express. . We recognize only those alterations of the common law that are clearly expressed in the language of the statute because the traditional principles of justice upon which the common law is founded should be perpetuated." Citations omitted; internal quotation marks omitted.) Ames v. Commissioner of Motor Vehicles , 267 Conn. 524, 532, 839 A.2d 1250 (2004). It is well settled that this rule of strict construction applies to statutes such as § 52-249(a) allowing for awards of attorney's fees because such statutes operate in derogation of the "general rule of law known as the American rule," under which "attorney's fees and ordinary expenses and burdens of litigation are not allowed to the successful party absent a contractual or statutory exception." (Internal quotation marks omitted.) ACMAT Corp. v. Greater New York Mutual Ins. Co. , supra, 282 Conn. at 582, 923 A.2d 697 ; see also, e.g., Perry v. Perry , 312 Conn. 600, 625, 95 A.3d 500 (2014) ; Fennelly v. Norton , 294 Conn. 484, 504 n.17, 985 A.2d 1026 (2010) ; Ames v. Commissioner of Motor Vehicles , supra, at 532-33, 839 A.2d 1250 ; Stratford v. Castater , 136 Conn.App. 535, 544-45, 46 A.3d 953 (2012). As required by § 1-2z, I begin with the text of the statute. Section 52-249(a) provides in relevant part: "The plaintiff in any action of foreclosure of a mortgage or lien, upon obtaining judgment of foreclosure, when there has been a hearing as to the form of judgment or the limitation of time for redemption , shall be allowed the same costs, including a reasonable attorney's fee , as if there had been a hearing on an issue of fact. ." (Emphasis added.) Given the strict construction that we must afford § 52-249(a), I conclude that the Appellate Court properly upheld the trial court's denial of the plaintiff's request for attorney's fees because no hearing on the foreclosure remedy took place in the present case. Specifically, the parties stipulated during trial that the foreclosure and merits proceedings in the present case were to be bifurcated, and the conduct of the proceedings reflects this stipulation. Once the plaintiff had prevailed at the court trial, the foreclosure remedy was the product of a second stipulation resolving the plaintiff's motion for a supplemental judgment, rather than a judicial decision following an in-court proceeding. This stipulated judgment procedure was inconsistent with the very specific language that the legislature used in drafting § 52-249(a), which requires "a hearing as to the form of judgment or the limitation of time for redemption ." Allowing the stipulation to substitute for the required hearing, as urged by the plaintiff, would run afoul of the maxim that "a court must construe a statute as written. . Courts may not by construction supply omissions . or add exceptions merely because it appears that good reasons exist for adding them. . The intent of the legislature, as this court has repeatedly observed, is to be found not in what the legislature meant to say, but in the meaning of what it did say. . It is axiomatic that the court itself cannot rewrite a statute to accomplish a particular result. That is the function of the legislature." (Internal quotation marks omitted.) Marciano v. Jimenez , 324 Conn. 70, 77, 151 A.3d 1280 (2016). I disagree with the plaintiff's argument that this interpretation of § 52-249(a) leads to an unworkable result in contravention of § 1-2z because a defendant can avoid liability for attorney's fees by simply paying the debt at the conclusion of the trial, rather than appealing it, thus obviating the need for a hearing to set the terms of the foreclosure judgment because the underlying debt would have been paid. The plaintiff argues that the "only way to avoid such an unjust result is to conclude that when trial commenced on all counts of the complaint, including establishing the debt which . was essential for the mechanic's lien foreclosure action, that the hearing mandated by . § 52-249(a) commenced at that time." In my view, providing a judgment debtor with incentive to satisfy a debt immediately, rather than take an appeal or incur a judgment of foreclosure that would bring into play an attorney's fee award under § 52-249(a), is not an unworkable result because it promotes the speedy resolution of disputes following the court's determination of the debt. I, therefore, conclude that the Appellate Court properly upheld the trial court's denial of the plaintiff's request for attorney's fees. Burns v. Adler , supra, 158 Conn.App. at 808, 120 A.3d 555. Because I would affirm the judgment of the Appellate Court, I respectfully dissent. The plaintiff's complaint also named as defendants Adler's wife, Amie R. Weitzman, and the Salisbury Bank and Trust Company (bank), which held a mortgage on the defendant's residence. The trial court concluded that Weitzman was not liable to the plaintiff, and the plaintiff has not challenged that conclusion on appeal. The bank's interest in this action also is not at issue in this appeal. Accordingly, hereinafter all references to the defendant are to Adler. General Statutes (Rev. to 2007) § 20-429 provides in relevant part: "(a) No home improvement contract shall be valid or enforceable against an owner unless it: (1) Is in writing, (2) is signed by the owner and the contractor, (3) contains the entire agreement between the owner and the contractor, (4) contains the date of the transaction, (5) contains the name and address of the contractor and the contractor's registration number, (6) contains a notice of the owner's cancellation rights in accordance with the provisions of chapter 740, (7) contains a starting date and completion date, and (8) is entered into by a registered salesman or registered contractor. Each change in the terms and conditions of a contract shall be in writing and shall be signed by the owner and contractor, except that the [C]ommissioner [of Consumer Protection] may, by regulation, dispense with the necessity for complying with the requirement that each change in a home improvement contract shall be in writing and signed by the owner and contractor. . "(f) Nothing in this section shall preclude a contractor who has complied with subdivisions (1), (2), (6), (7) and (8) of subsection (a) of this section from the recovery of payment for work performed based on the reasonable value of services which were requested by the owner, provided the court determines that it would be inequitable to deny such recovery." Section 20-429 was amended subsequent to the time the parties entered into their agreement. See Public Acts 2009, No. 09-18, § 2; Public Acts 2016, No. 16-35, § 3. All references herein to § 20-429 are to the 2007 revision of the statute. The defendant also brought a four count counterclaim against the plaintiff alleging a violation of the Connecticut Unfair Trade Practices Act; General Statutes § 42-110a et seq. ; negligence, breach of contract and unjust enrichment. The trial court rendered judgment in favor of the plaintiff on the defendant's counterclaims, and the defendant has not challenged that ruling in this certified appeal. The defendant signed the agreement on October 9, 2007, but he also inadvertently signed three form notices of cancellation that had been attached to the agreement. On October 10, 2007, the defendant sent an e-mail to the plaintiff explaining that his assistant had printed out the agreement and the attachments, and that he had "just signed everything." In response, the plaintiff requested a new copy of the agreement or a letter explaining that the original agreement was still in effect. The defendant never complied with this request. According to the plaintiff, he gave a signed copy of the agreement to the defendant, but no such document was presented as evidence at trial and the defendant denied that he received an executed agreement. The trial court found, for example, that the defendant or others acting on his behalf had directed the plaintiff to assemble furniture, roll up rugs, put mattresses on beds, mow the lawn, remove brush, chop firewood, shop for a wine refrigerator and an oven hood vent, and perform other "tasks that do not normally fall to a contractor." The plaintiff points to no evidence that he ever provided any of these records to the defendant in support of his requests for payment before bringing this action. The trial court found that the defendant made his last payment to the plaintiff on August 4, 2008, at which time the project was "largely complete." The parties agreed that the foreclosure claim would be bifurcated from the plaintiff's other claims and would be addressed in a separate hearing, if necessary, after trial. After the trial court rendered judgment in favor of the plaintiff on his breach of contract claim, he moved for a supplemental judgment seeking foreclosure of the mechanic's lien. The parties then stipulated that there was no need for a hearing on the terms of the judgment of foreclosure. Accordingly, the trial court rendered a judgment of strict foreclosure without a hearing, and the defendant filed an amended appeal to the Appellate Court from that ruling. The trial court denied the plaintiff's request for attorney's fees because, under General Statutes § 52-249, a hearing as to the form of judgment is a condition precedent to an award of attorney's fees in a foreclosure action. The plaintiff filed a separate appeal to the Appellate Court challenging the trial court's denial of his request for attorney's fees, and the Appellate Court affirmed that ruling. See Burns v. Adler, supra, 158 Conn.App. at 808, 120 A.3d 555. We then granted the plaintiff's request for certification to appeal from the judgment of the Appellate Court limited to the following issue: "Did the Appellate Court correctly affirm the judgment of the trial court denying the plaintiff's request for attorney's fees pursuant to . § 52-249(a) ?" Burns v. Adler, 319 Conn. 931, 932, 125 A.3d 206 (2015). Because we are reversing the judgment of the Appellate Court affirming the judgment in favor of the plaintiff on his breach of contract claim and directing a judgment in favor of the defendant on that claim, we also reverse the judgment of strict foreclosure and direct judgment in favor of the defendant on that claim. Accordingly, the plaintiff's certified appeal from the ruling of the Appellate Court affirming the trial court's denial of his request for attorney's fees is dismissed as moot. The trial court also found, however, that the defendant induced the plaintiff to finish the project because that approach would be "faster, more efficient and vastly more economical than concluding the relationship with the plaintiff and retaining a new contractor." It is difficult to reconcile the trial court's finding that the defendant believed that the project would not be at risk if he stopped paying the plaintiff because it was largely complete with its finding that the defendant believed that it would be "vastly more economical" to induce the plaintiff to complete the project than to retain a new contractor. The trial court was apparently referring to the defendant's September 3, 2008 e-mail to the plaintiff indicating that he was willing to pay for extra items of work that he had approved if the plaintiff could establish that the amounts he claimed for the items were correct. The trial court did not expressly address the plaintiff's claim of unjust enrichment. In Walpole Woodworkers, Inc. v. Manning, 126 Conn.App. 94, 102, 11 A.3d 165 (2011), aff'd, 307 Conn. 582, 57 A.3d 730 (2012), the Appellate Court concluded that, "under the bad faith exception, the plaintiff is entitled only to recover the value of the work performed because the contract is otherwise unenforceable due to the plaintiff's violation of the act." In other words, when a contractor has proved bad faith, he may recover only under a theory of unjust enrichment, not breach of contract. Thus, although the parties have not raised the issue, it is unclear to us why the trial court, which cited Walpole Woodworkers, Inc., in its memorandum of decision, rendered judgment for the plaintiff on his breach of contract claim instead of his claim for unjust enrichment. We note, however, that this court concluded in Walpole Woodworkers, Inc. v. Manning, 307 Conn. 582, 590, 57 A.3d 730 (2012), that, when a homeowner has invoked § 20-429 in bad faith, "the contract price is evidence of the reasonable value of the benefit the defendant received from the plaintiff." Accordingly, it is reasonable to presume that any error in rendering judgment for the plaintiff on his breach of contract claim and awarding contract damages was harmless. The plaintiff raised this claim in his brief to the Appellate Court; see Burns v. Adler, Conn. Appellate Court Records & Briefs, January Term, 2015, Plaintiff's Brief p. 31; but the Appellate Court did not address the issue because, as we have indicated herein, the court disposed of the claim on the ground that it was bound by its prior holding on that issue in Walpole Woodworkers, Inc. v. Manning, supra, 126 Conn.App. at 105, 11 A.3d 165. See Burns v. Adler, supra, 158 Conn.App. at 792, 120 A.3d 555. Although the dissent agrees with our conclusion that, when the facts are undisputed, whether those facts rise to the level of bad faith under the act is a question of law, it ultimately concludes that we are substituting our factual findings for the trial court's. As we discuss at length in the body of this opinion, however, we fully accept the trial court's factual findings and assume every inference in favor of a finding of bad faith. The only "finding" by the trial court with which we disagree is that court's ultimate conclusion that the defendant's conduct satisfied the legal standard for bad faith. Indeed, the dissent has not identified a single specific factual finding that we have ignored or rejected. In Habetz, the defendant did not dispute the trial court's finding that he had acted in bad faith. See Habetz v. Condon, supra, 224 Conn. at 237 n.11, 618 A.2d 501. Thus, there was no occasion for this court to determine whether the facts of the case would support a finding of bad faith. See also Lucien v. McCormick Construction, LLC, 122 Conn.App. 295, 298-99, 998 A.2d 250 (2010) (under Wadia Enterprises, Inc., bad faith exception did not apply when plaintiff homeowner did not dispute amounts owed or adequacy of defendant contractor's performance until homeowner made final payment and she failed to raise § 20-429 as defense to defendant's claim for payment until defendant brought action for payment); New England Custom Concrete, LLC v. Carbone, 102 Conn.App. 652, 661, 927 A.2d 333 (2007) (when, "[a]t best, the record demonstrates vigorous disagreement about the quality of the [plaintiff contractor's] workmanship in performing the contract," it was "doubtful that the [trial] court could have made a finding of bad faith" [emphasis in original] ); MacMillan v. Higgins, 76 Conn.App. 261, 272-73, 822 A.2d 246 (attorney trial referee properly found that defendant homeowners had not acted in bad faith even though they had drafted contract and evidence showed that defendants and their agents were familiar with provisions of § 20-429), cert. denied, 264 Conn. 907, 826 A.2d 177 (2003) ; Kronberg Bros., Inc. v. Steele, 72 Conn.App. 53, 63, 804 A.2d 239 (when trial court found no evidence that defendant homeowners were responsible for defects in contract and plaintiff's allegations of bad faith "arose out of the deteriorating relationship between the parties" such that defendants "were confronted with what must have been an exasperating ordeal," court properly concluded that plaintiff failed to prove that defendants acted in bad faith [internal quotation marks omitted] ), cert. denied, 262 Conn. 912, 810 A.2d 277 (2002) ; Dinnis v. Roberts, 35 Conn.App. 253, 259, 644 A.2d 971 (rejecting plaintiffs' claim that "the bad faith exception to the enforcement of the act is not limited to instances of bad faith relating to the formation of, or inducement to, enter into a home improvement contract"), cert. denied, 231 Conn. 924, 648 A.2d 162 (1994). In support of his claim to the contrary, the plaintiff relies on Walpole Woodworkers, Inc. v. Manning, supra, 126 Conn.App. at 94, 11 A.3d 165. In that case, however, the Appellate Court concluded only that a homeowner's repudiation of a noncompliant contract constitutes bad faith when the work has been satisfactorily completed and the contractor's noncompliance has not given rise to a genuine dispute about the scope of the work or the contract price. See id., at 101-102, 11 A.3d 165. Thus, the Appellate Court essentially held that a homeowner's repudiation of a contract pursuant to § 20-429 on the basis of a mere technical violation of the statute is in bad faith. We need not consider here whether that holding was correct, because the trial court implicitly found in the present case that the plaintiff's noncompliance with § 20-429 gave rise to a genuine dispute over the scope of the goods and services that were provided by the plaintiff and the total contract price, which is precisely what that act was intended to prevent. Indeed, the defendant testified at trial that he did not learn about his right to repudiate the contract under the act until mid-September, 2008. The plaintiff contends that there is no requirement under Walpole Woodworkers, Inc., that a contractor prove a "causal nexus" between the homeowner's conduct and the contractor's damages by showing that the homeowner fraudulently induced the contractor to provide goods and services. There is a requirement, however, that a contractor prove that the homeowner acted in bad faith. The mere fact that the contractor provided goods and services that the homeowner ultimately did not pay for, in and of itself, is not evidence of the homeowner's bad faith. We emphasize that we do not conclude that the bad faith exception is applicable only to cases in which the homeowner accepted goods and services from a contractor knowing that the act would provide an "escape hatch" and to cases in which the contractor has detrimentally relied on the homeowner's bad faith conduct in providing goods and services. To the contrary, we have expressly left open the possibility that a homeowner's repudiation of a contract on the basis of the contractor's technical noncompliance with the act, when the contractor has satisfactorily completed the work and his conduct has not given rise to any genuine dispute about the scope of the work or the contract price, may constitute bad faith under the act. See footnote 15 of this opinion. Moreover, we cannot rule out the possibility that there may be other forms of conduct that constitute bad faith under the act. We conclude only that the plaintiff in the present case has not established that the defendant's repudiation of the contract was in bad faith under the "escape hatch" theory, under the detrimental reliance theory, under the technical violation theory, or under any other theory. Although we recognize that this is a harsh result for the plaintiff, our role is to implement the intent of the legislature as embodied in the act, not to impose our own notion of justice. Although the trial court was free to discredit this evidence, any such disbelief would not support a finding that the defendant accepted goods and services from the plaintiff before August 4, 2008, with the intent not to pay for them. Cf. State v. Alfonso, 195 Conn. 624, 634, 490 A.2d 75 (1985) ("[w]hile it is true that it is within the province of the [fact finder] to accept or reject a defendant's testimony, a [fact finder] in rejecting such testimony cannot conclude that the opposite is true"). Thus, although we assume the correctness of the trial court's finding that the defendant decided, "without a sound factual basis, that he would not pay for all of the time and materials expended on the project," we cannot conclude that finding supports a finding of bad faith. The burden was not on the defendant to provide a sound factual basis for the amounts he paid to the plaintiff. Rather, under the act, the burden was on the plaintiff to provide written documentation, signed by both parties, for the amounts that he claimed were owing to him. Because the plaintiff's failure to comply with the act gave rise to a genuine dispute about the scope of the plaintiff's work and the amounts owed, the risk that the defendant would invoke the act to bar an enforcement action was on the plaintiff. Similarly, the trial court's findings that the defendant was profligate, that he was disinterested in managing the cost of the project, that, by repudiating the contract, he was serving his own financial interests at the plaintiff's expense, and that he lied to the plaintiff about representing himself if the plaintiff brought an action against him do not support a finding of bad faith under these circumstances because the act placed the burden of documenting contract changes on the plaintiff and the defendant had no duty to look out for the plaintiff's financial interests. See Hi-Ho Tower, Inc. v. Com-Tronics, Inc., 255 Conn. 20, 38, 761 A.2d 1268 (2000) (party to arm's-length transaction is under no obligation to act for benefit of other party). Moreover, the plaintiff has provided no authority for the proposition that bluffing, in and of itself, constitutes fraud or bad faith. Cf. Cook v. Little Caesar Enterprises, Inc., 210 F.3d 653, 658 (6th Cir. 2000) (to constitute fraud, "allegedly false statements must relate to past or existing facts, not to future promises or expectations . [or] statements referr[ing] to events which might happen in the future" [citations omitted] ). In the absence of a fiduciary duty, evidence of a party's profligacy, disinterest and self-interest does not constitute evidence of dishonesty or bad faith. See Hi-Ho Tower, Inc. v. Com-Tronics, Inc., supra, at 38-39, 761 A.2d 1268. The trial court found that the defendant had waived his right under the agreement to have all modifications set forth in a written change order signed by both parties by ordering the plaintiff to perform extra work. The court made this finding, however, in the portion of its memorandum of decision addressing and rejecting the defendant's counterclaim alleging that the plaintiff had breached the agreement. The court did not suggest that the defendant ever waived his right to invoke § 20-429 as a bar to the plaintiff's enforcement of the agreement. To the contrary, the trial court concluded that the agreement did not comply with § 20-429 and that it would be unenforceable in the absence of proof of bad faith. Although § 20-429(a) does not expressly require contractors to reduce each change in the terms and conditions of the contract to a writing, signed by both parties, before the work that is the subject of the change is performed, this court has held that the purpose of the statute is to ensure that homeowners can make informed decisions as to whether to authorize additional work. See Habetz v. Condon, supra, 224 Conn. at 239, 618 A.2d 501. Thus, if a contractor fails to obtain written authorization from the homeowner for work before performing the work, the risk is on the contractor that the homeowner will refuse to sign a writing ratifying that the work was authorized and the contractor's claim for payment will, therefore, be unenforceable under the act, at least in the absence of proof of bad faith. The dissent contends that the trial court never made a finding that the plaintiff's failure to comply with the act deprived the defendant of the opportunity to make informed decisions as to whether he should continue to accept goods and services from the defendant. There is no dispute, however, that the plaintiff failed to comply with the act. Nor is there any dispute that the core purpose of the act is to enable homeowners to make such informed decisions. See id. Accordingly, in the absence of proof of bad faith, the only possible conclusion is that the plaintiff's conduct deprived the defendant of his rights under the act. As we have indicated, the trial court found that the work was "largely complete" as of August 4, 2008, and 98 percent complete as of August 25, 2008. It is clear, therefore, that the plaintiff could not have performed a substantial amount of work after August 4, 2008. Indeed, the trial court expressly found that there was little risk to the defendant if he refused to make any further payments to the plaintiff after August 4, 2008, because the project was largely complete at that time and the defendant could easily hire another contractor to finish the work, which is what actually happened. We also note that the defendant included these items of extra work in his calculations showing that the total cost of the project was $963,923, while the defendant's payments totaled $985,000. Thus, when the defendant stated that he was prepared to accept these extras, but reserved the right to review whether the amounts were correct, he was essentially stating the he was reserving the right to recoup payments that he had already made to the plaintiff. Thus, it is difficult to understand how the plaintiff reasonably could have believed on the basis of this statement that the defendant was prepared to pay him additional amounts if he continued to work on the project. I note that Amie R. Weitzman and the Salisbury Bank and Trust Company were also named as defendants in the present case. See footnote 1 of the majority opinion. In the interest of simplicity, I refer to Adler as the defendant in this opinion. General Statutes (Rev. to 2007) § 20-429 provides in relevant part: "(a) No home improvement contract shall be valid or enforceable against an owner unless it: (1) Is in writing, (2) is signed by the owner and the contractor, (3) contains the entire agreement between the owner and the contractor, (4) contains the date of the transaction, (5) contains the name and address of the contractor and the contractor's registration number, (6) contains a notice of the owner's cancellation rights in accordance with the provisions of chapter 740, (7) contains a starting date and completion date, and (8) is entered into by a registered salesman or registered contractor. Each change in the terms and conditions of a contract shall be in writing and shall be signed by the owner and contractor, except that the [Commissioner of Consumer Protection] may, by regulation, dispense with the necessity for complying with the requirement that each change in a home improvement contract shall be in writing and signed by the owner and contractor. . "(f) Nothing in this section shall preclude a contractor who has complied with subdivisions (1), (2), (6), (7) and (8) of subsection (a) of this section from the recovery of payment for work performed based on the reasonable value of services which were requested by the owner, provided the court determines that it would be inequitable to deny such recovery." I note that § 20-429 was amended subsequent to the events underlying the present case. See, e.g., Public Acts 2009, No. 09-18, § 2; see also footnote 2 of the majority opinion. All references to § 20-429 in this opinion are to the 2007 revision of the statute. I agree with part I of the majority opinion, which declines to reach, on preservation grounds, the defendant's claim that the 1993 enactment of § 20-429(f) abrogated the judicially created bad faith exception. In contrast to the majority; see footnote 7 of the majority opinion; my resolution of the first certified appeal renders it necessary for me to reach the merits of the second certified appeal, which is limited to the following question: "Did the Appellate Court correctly affirm the judgment of the trial court denying the plaintiff's request for attorney's fees pursuant to General Statutes § 52-249(a) ?" Burns v. Adler, 319 Conn. 931, 932, 125 A.3d 206 (2015). General Statutes § 52-249(a) provides: "The plaintiff in any action of foreclosure of a mortgage or lien, upon obtaining judgment of foreclosure, when there has been a hearing as to the form of judgment or the limitation of time for redemption, shall be allowed the same costs, including a reasonable attorney's fee, as if there had been a hearing on an issue of fact. The same costs and fees shall be recoverable as part of the judgment in any action upon a bond which has been substituted for a mechanic's lien." I believe that the majority improperly characterizes the entirety of the defendant's claim in the first certified appeal as presenting a mixed question of fact and law subject to plenary review because it calls for us to consider whether the facts, which are undisputed for the purposes of the first certified appeal, "meet the legal standard of bad faith ." In my view, this statement of the standard of review is overbroad insofar as a finding of bad faith often depends on those inferences reasonably drawn from otherwise undisputed historical facts with respect to matters such as an actor's motives and intent. See, e.g., Wadia Enterprises, Inc. v. Hirschfeld, supra, 224 Conn. at 250, 618 A.2d 506. Put differently, to the extent that the trial court utilized the proper definition of the bad faith exception, I would adhere to existing precedent that would review the trial court's application of that doctrine under the clearly erroneous standard. See, e.g., Walpole Woodworkers, Inc. v. Manning, 126 Conn.App. 94, 99-102, 11 A.3d 165 (2011), aff'd, 307 Conn. 582, 57 A.3d 730 (2012) ; MacMillan v. Higgins, supra, 76 Conn.App. at 271-73, 822 A.2d 246. The bad faith exception had its genesis in dictum in Barrett Builders v. Miller, supra, 215 Conn. at 328-29, 576 A.2d 455, and its companion cases, A. Secondino & Son, Inc. v. LoRicco, 215 Conn. 336, 340, 576 A.2d 464 (1990), Liljedahl Bros., Inc. v. Grigsby, 215 Conn. 345, 350, 576 A.2d 149 (1990), and Sidney v. DeVries, 215 Conn. 350, 354, 575 A.2d 228 (1990) (per curiam). The court utilized "the standard definition of bad faith," which "in general implies both 'actual or constructive fraud, or a design to mislead or deceive another, or a neglect or refusal to fulfill some duty or some contractual obligation, not prompted by an honest mistake as to one's rights or duties, but by some interested or sinister motive.' Black's Law Dictionary (5th Ed. 1979). Bad faith means more than mere negligence; it involves a dishonest purpose." Habetz v. Condon, supra, 224 Conn. at 236-37, 618 A.2d 501. It appears that this court did not engage in a detailed discussion of the facts giving rise to the bad faith finding in Habetz because "any claims regarding the trial court's finding of bad faith on the part of the homeowner have been waived." Habetz v. Condon, supra, 224 Conn. at 237 n.11, 618 A.2d 501. Given my conclusion that the bad faith exception is not limited to claims arising from formation or acceptance by the homeowner with knowledge of the defect, I similarly disagree with the defendant's corollary argument that the bad faith exception carries with it an element of loss causation. The loss that the bad faith exception seeks to remedy is caused by operation of the act's statutory preclusion on even quantum meruit recovery in cases of defective home improvement contracts. See Habetz v. Condon, supra, 224 Conn. at 239, 618 A.2d 501. In my view, the court looks at the totality of the circumstances to determine whether the homeowner's hands are clean in invoking the substantial protections of the act, as compared to the more limited inquiry, urged by the defendant, of whether the homeowner actively used the act as a sword in an independently tortious scheme to defraud the contractor. See id., at 239-40, 618 A.2d 501 (noting that bad faith exception is judicial creation doctrinally distinct from act, and embodies "the general principle . that an individual should not profit from his own deceptive and unscrupulous conduct"). The trial court found specifically that the parties had entered into a time and materials contract, under which "the defendants would be charged $45 per hour for work done by the plaintiff and any crew members working under him," and that "the defendants would be responsible for any additional expenses on the project, including dumpsters and materials needed for the project." The trial court then found that the "plaintiff presented credible evidence, which the court does credit, indicating that the value of the plaintiff's work on the project, the value of the work of the crew members and subcontractors who worked under his supervision, and the cost of materials and associated expenses exceeds, not only the $985,000 paid by the defendants, but also the $214,039 in damages claimed in the complaint." The trial court reasonably could have credited the plaintiff's testimony that the constantly shifting nature of the project, with no final set of plans furnished to him by the defendant or his architect, rendered it impossible to create a fixed price contract. This also was consistent with the defendant's expressed demand for speed in completing the project. I disagree in particular with the majority's conclusion that, "even if there were no genuine dispute about the value of the goods and services that the plaintiff actually provided, the plaintiff's failure to comply with the act deprived the defendant of the opportunity to make an informed decision as to whether he should continue to accept goods and services from the plaintiff during the course of the renovation project ." First, the trial court never made a finding to this effect. Second, beyond the trial court's observation of the parties' demeanor and credibility during the proceedings, it is reasonable to infer that the trial court considered the unique circumstances of this project, under which the plaintiff had been working under extreme time pressure from the defendant to finish the job quickly, while taking orders from numerous individuals associated with the defendant, including his wife, her assistant, and their architect-despite "mushrooming" costs. In my view, this course of dealing evinced the defendant's implied waiver of his opportunity to make genuinely informed decisions. In my view, the majority's assignment of the risk of noncompliance with the act to the plaintiff under these factual circumstances is completely incompatible with the equitable nature of the bad faith exception. Because both parties had sought attorney's fees in their pleadings, the trial court agreed, for reasons of judicial economy, with their recommendation to bifurcate that issue, and conduct a subsequent evidentiary hearing only upon the court making an initial determination that a fee award is warranted. The trial court then agreed with the parties' joint recommendation, as stated by counsel for the plaintiff, to bifurcate the count of the complaint seeking foreclosure of the mechanic's lien on issues such as the value of the property and setting law days, if there were a finding that a debt is owed. The parties stipulated that: (1) a judgment may enter foreclosing the mechanic's lien on the defendant's home; (2) the debt due and payable pursuant to the mechanic's lien was $214,039.09, "the amount previously found by the [trial court] to be due"; (3) the fair market value of the defendant's improved real property subject to the lien was not less than $500,000; (4) a judgment of strict foreclosure was appropriate, with law days to commence on August 14, 2012; (5) the plaintiff was entitled to a title search fee of $225, but not an appraisal fee; and (6) "[w]hether [the] plaintiff is entitled to an award of attorney's fees on the [foreclosure count] of the revised complaint is subject to dispute between the parties ." With respect to the attorney's fees issue relative to the foreclosure count, the parties "agreed, subject to the court's approval, to submit . simultaneous briefs on this issue ." The parties then stipulated that "the plaintiff has incurred reasonable attorney's fees in the total amount of $98,325 for all legal work in the [above captioned] case," as supported by attached time entries, which "may be considered by the court in considering the issue to be decided by the court pertinent to the attorney's fees, if any, that should be awarded on the [foreclosure count]. Although the parties agree that the plaintiff has incurred these fees, they do not agree as to whether he is entitled to recover fees in that amount, or any amount, as part of the judgment on the [foreclosure count]. Both parties reserve the right to submit briefs to the court regarding that issue, and to present oral argument if the court requests argument ." The parties also stipulated that they would be available for oral argument, if desired by the court, on the attorney's fees issue. The remainder of the stipulation concerned appellate issues, including the plaintiff's agreement not to seek to terminate the automatic appellate stay, collect the judgment, or foreclose the mechanic's lien while an appeal is pending. The parties also stipulated to an annual postjudgment interest rate of 4.5 percent. I recognize that the use of a stipulated judgment procedure in lieu of a hearing has salutary effects with respect to judicial economy, and that the plaintiff argues that it was "tantamount" to a hearing under § 52-249(a) in the present case. Given the strict construction that we are required to give § 52-249(a), I do not view the stipulation as having the formality requisite to a "hearing," as that word is understood as a legal term of art. See State v. Fernando A., 294 Conn. 1, 16-17, 981 A.2d 427 (2009) (describing definitions of term " 'hearing' " in regular and legal dictionaries as encompassing judicial proceeding); Willimantic Car Wash, Inc. v. Zoning Board of Appeals, 247 Conn. 732, 737-38, 724 A.2d 1108 (1999) (relying on legal dictionary's definition of "hearing" as " '[a] proceeding of relative formality . generally public, with definite issues of fact or of law to be tried, in which witnesses are heard and evidence presented, and in which parties to a dispute have a right to be heard" in concluding that pretrial conference was not "hearing" for court approval of settlement contemplated by General Statutes § 8-8n [footnote omitted; internal quotation marks omitted] ). As the plaintiff urges, I recognize that the Appellate Court broadly stated in A. Secondino & Son, Inc. v. LoRicco, supra, 19 Conn.App. at 15-16, 561 A.2d 142, that "§ 52-249(a) succinctly and unambiguously provides for the allowance of attorney's fees in actions for foreclosure of mortgages or liens." (Emphasis added; footnote omitted.) The plaintiff, however, takes that broadly stated language from the Appellate Court's opinion somewhat out of context, as that case did not involve a challenge to the procedure utilized in awarding attorney's fees, and did not involve a stipulation. Id., at 15-16, 561 A.2d 142. The cases on which the plaintiff relies do not support his argument that the stipulation procedure utilized in this case satisfied the hearing requirement under § 52-249(a), or that we have read that requirement in the "broadest possible terms rather than giving it the very narrow reading utilized by the Appellate Court and the trial court in this case." Although these cases upheld fee awards that appear to have encompassed both the foreclosure proceeding and the underlying trial, none of them concerned the propriety of a stipulation procedure in lieu of a hearing-none even mentioned the use of a stipulation, as all involved fee awards rendered after a hearing on the contractor's motion. See Intercity Development, LLC v. Andrade, 286 Conn. 177, 181, 942 A.2d 1028 (2008) (bifurcated proceeding, with foreclosure judgment product of motion); Clem Martone Construction, LLC v. DePino, supra, 145 Conn.App. at 331-32, 77 A.3d 760 (trial court improperly excluded legal work on homeowner's counterclaim in calculating fees for foreclosure claim); Gagne v. Vaccaro, 118 Conn.App. 367, 370-71, 984 A.2d 1084 (2009) (appellate attorney's fees permissible under § 52-249 [a] ); Original Grasso Construction Co. v. Shepherd, 70 Conn.App. 404, 418-19, 799 A.2d 1083 (concluding that contractor did not waive claim for attorney's fees under § 52-249 [a] by failing to present evidence before attorney trial referee because that was question of law for court, and remanding case for hearing on motion for fees), cert. denied, 261 Conn. 932, 806 A.2d 1065 (2002). As the defendant points out, when the legislature has made attorney's fees more broadly available as a remedy in a civil action without mandating a particular procedure, it has said so. See, e.g., General Statutes § 35-53(b) (providing that court "may award reasonable attorney's fees to the prevailing party" in case brought under Uniform Trade Secrets Act for wilful or malicious misappropriation); General Statutes § 42-110g(d) ("In any action brought by a person under [Connecticut Unfair Trade Practices Act], the court may award, to the plaintiff, in addition to the relief provided in this section, costs and reasonable attorneys' fees based on the work reasonably performed by an attorney and not on the amount of recovery. In a class action in which there is no monetary recovery, but other relief is granted on behalf of a class, the court may award, to the plaintiff, in addition to other relief provided in this section, costs and reasonable attorneys' fees."). As the plaintiff urges, I recognize that "[t]his court repeatedly has eschewed applying the law in such a hypertechnical manner so as to elevate form over substance." Lostritto v. Community Action Agency of New Haven, Inc., 269 Conn. 10, 34, 848 A.2d 418 (2004). I also recognize the public policy that supports promoting settlement of disputes. See, e.g., Black v. Goodwin, Loomis & Britton, Inc., 239 Conn. 144, 166, 681 A.2d 293 (1996) ; Tomasso Bros., Inc. v. October Twenty-Four, Inc., 221 Conn. 194, 198, 602 A.2d 1011 (1992). Accordingly, I do not suggest that § 52-249(a) precludes parties from settling foreclosure cases in a manner that specifically accommodates the hearing requirements of § 52-249(a), or requires an extensive on-the-record proceeding. I similarly leave to another day the type of hearing necessary to satisfy the "specific aspects" of the foreclosure proceeding set forth in the plain language of § 52-249(a). In his reply brief, the plaintiff posits that a decision by this court to affirm the judgment of the Appellate Court will result in a remand to the trial court for the purpose of setting new law days with respect to the judgment of strict foreclosure of the mechanic's lien. The plaintiff states that the hearing contemplated by § 52-249(a) will take place at that time, and asks this court to determine whether he is-contrary to the conclusion of the trial court-entitled to attorney's fees for successfully prosecuting the underlying action, defending this appeal, and defending against the defendant's counterclaims, in addition to those fees relevant only to the foreclosure proceedings. Indeed, as the trial court noted in its memorandum of decision, there appears to be a Superior Court split on whether the attorney's fees awarded pursuant to § 52-249(a) may encompass the trial of the underlying action, in addition to the foreclosure aspects of the proceeding-at least prior to the Appellate Court's decision in Clem Martone Construction, LLC v. DePino, supra, 145 Conn.App. at 331-32, 77 A.3d 760. Given the majority's reversal of the judgment in favor of the plaintiff, this issue is not likely to arise on remand and I need not consider it further. See, e.g., Sullivan v. Metro-North Commuter Railroad Co., 292 Conn. 150, 164 and n.8, 971 A.2d 676 (2009).

12510889

STATE of Connecticut v. Divenson PETION

State v. Petion

2019-07-23

SC 19938

991

1013

211 A.3d 991

211

West's Atlantic Reporter, Third Series

Connecticut Supreme Court

Connecticut

2021-08-27T20:58:01.966564+00:00

Fastcase

Robinson, C.J., and Palmer, McDonald, D'Auria, Mullins, Kahn and Ecker, Js.

STATE of Connecticut v. Divenson PETION

STATE of Connecticut v. Divenson PETION SC 19938 Supreme Court of Connecticut. Argued November 13, 2018 Officially released July 23, 2019 Jennifer B. Smith, assigned counsel, for the appellant (defendant). James M. Ralls, assistant state's attorney, with whom were Richard J. Colangelo, Jr., state's attorney, and Maureen Ornousky, senior assistant state's attorney, for the appellee (state). Robinson, C.J., and Palmer, McDonald, D'Auria, Mullins, Kahn and Ecker, Js.

12114

75612

McDONALD, J. Whether an assault results in physical injury or serious physical injury can have profound ramifications for the victim. Consequently, substantially greater punishment may be imposed for the latter injury than the former. Although this court has acknowledged "the difficulty of drawing a precise line as to where physical injury leaves off and serious physical injury begins" (internal quotation marks omitted); State v. Ovechka , 292 Conn. 533, 546-47, 975 A.2d 1 (2009) ; see also State v. Almeda , 211 Conn. 441, 451, 560 A.2d 389 (1989) ; the present case provides an opportunity to illuminate that distinction. In particular, we use this occasion to examine the parameters that should be used by the trier of fact to assess whether a defendant has inflicted serious physical injury in the form of serious disfigurement. See General Statutes § 53a-3 (4). The defendant, Divenson Petion, appeals from the Appellate Court's judgment affirming his conviction of two counts of assault in the first degree in violation of General Statutes § 53a-59 (a) (1). See State v. Petion , 172 Conn. App. 668, 669-70, 687, 161 A.3d 618 (2017). The defendant claims that the forearm scar sustained by one of the two victims was an insufficient basis for the jury to find the serious physical injury necessary to support that charge. The state disagrees but requests, in the event that we conclude otherwise, that a judgment of acquittal not be rendered on that charge and, instead, that the judgment be modified to reflect a conviction of the lesser included offense of assault in the second degree; see General Statutes § 53a-60 (a) (2) ; and the case be remanded for resentencing. We conclude that the evidence was insufficient to support the challenged conviction. We further conclude that, under State v. LaFleur , 307 Conn. 115, 51 A.3d 1048 (2012), the state is not entitled to have the defendant's conviction modified. Therefore, we reverse in part the Appellate Court's judgment. I The Appellate Court's opinion sets forth the facts that the jury reasonably could have found; see State v. Petion , supra, 172 Conn. App. at 670-72, 161 A.3d 618 ; which we summarize as follows. In 2008, the defendant began dating Rosa Bran. Bran gave birth to the defendant's daughter in February, 2010. Bran also had a son from a prior relationship. After the birth of his daughter, the defendant's romantic relationship with Bran ended. However, they remained in contact, and the defendant occasionally would visit his daughter, sometimes showing up unannounced. The defendant told Bran that he did not want other men around his daughter. Shortly before the May, 2012 incident giving rise to the criminal charges at issue, Bran resumed a friendship with a former boyfriend, Robert Raphael. On the day of the incident, Bran invited Raphael to her apartment, and he arrived in the early afternoon. In addition to Bran and her two children, her cousin's two children were present. Later that afternoon, there was a knock on the door. Bran answered the door, expecting that it was her cousin arriving to pick up her children, but it was the defendant. He asked to see his daughter. Bran explained that it was not a good time because the child was asleep. The defendant then saw Raphael. The defendant became angry, pushed Bran aside, and entered the apartment. He began to shout at Raphael to get out of the apartment. Raphael did not want to leave Bran and the children alone with the defendant in his agitated state, and told the defendant that he was staying. In response, the defendant began pushing and punching Raphael. As Raphael retreated further into the apartment, the defendant pursued him. The defendant pulled out a knife from his pocket and slashed Raphael across the face, cutting from Raphael's ear to along his jaw bone, deeply enough to damage a facial nerve and cut a branch of his jugular vein. Bran inserted herself between the two men during the confrontation, hoping to stop the defendant from injuring Raphael. In the process, the defendant cut Bran on her left arm. Raphael, who was bleeding profusely, ran out of the apartment, got in his car, and drove himself to the hospital. The defendant repeatedly apologized to Bran and then left the apartment. Bran was not immediately aware that she had been cut. She realized that she had been injured when her son came downstairs, alerted Bran that she was bleeding, and grabbed a towel to cover her wound. Shortly after the incident, Bran's cousin arrived to pick up her children, and she drove Bran to the hospital. When she arrived at the hospital, Bran had an abrasion and two lacerations on her left arm, one measuring three-quarters of one centimeter and another measuring four centimeters. The smaller laceration was treated with a single suture. The larger laceration was closed with ten sutures, which left a scar after the laceration healed. The record reveals the following additional facts. The state charged the defendant with two counts of assault in the first degree in violation of § 53a-59 (a) (1). The first count alleged that, with the intent to cause serious physical injury to Raphael, the defendant caused such injury to Raphael by means of a dangerous instrument. The second count alleged that, with the intent to cause serious physical injury to Raphael, the defendant caused such injury to Bran by means of a dangerous instrument. At trial, the defendant presented an alibi witness, a family friend. At the close of evidence, the defendant moved for a judgment of acquittal on the charge of first degree assault as to Bran. The court denied the motion. Neither the defendant nor the state elected to have the jury charged on any lesser included offense. The jury returned a guilty verdict on both counts. On each count, the trial court imposed a seventeen year term of imprisonment, followed by three years of special parole, to run concurrently. The defendant appealed from the judgment of conviction to the Appellate Court. He argued, in relevant part, that there was insufficient evidence to support a conviction of first degree assault as to Bran because the state had failed to demonstrate beyond a reasonable doubt that she suffered a " 'serious physical injury.' " Id., at 669, 161 A.3d 618. The Appellate Court agreed with the state "that the evidence presented to the jury showed that one of the two lacerations that Bran received resulted in a significant and readily visible scar and that, under our law, a jury reasonably could have found that such scarring constituted a serious disfigurement and, therefore, a serious physical injury." Id., at 673, 161 A.3d 618. The Appellate Court affirmed the judgment of conviction. Id., at 687, 161 A.3d 618. We thereafter granted the defendant's petition for certification to appeal, limited to the following issue: "In rejecting the defendant's claim that there was insufficient evidence to support his conviction of assault in the first degree in violation of . § 53a-59 (a) (1) with respect to . Bran, did the Appellate Court properly conclude that a jury reasonably could have found that the one and one-half inch scar on her forearm constituted serious disfigurement and, therefore, a serious physical injury?" State v. Petion , 326 Conn. 906, 163 A.3d 1205 (2017). In their responses to this question, the parties devote significant portions of their analyses to a comparison between those injuries that the Appellate Court has deemed sufficient to support a jury's finding of serious disfigurement in other cases and Bran's injury in the present case. Although they disagree as to which side of the line the present case falls, they agree that juries would be aided in making this determination by factors to guide them. We do not find the comparative approach taken by the parties to be useful here, particularly because the Appellate Court had not examined the meaning of "serious disfigurement" in any of these cases, and this court previously had given no guidance on the matter. Thus, before we can consider the evidence, we must ascertain the meaning of the legal standard against which we assess that evidence. See State v. Drupals , 306 Conn. 149, 159, 49 A.3d 962 (2012). The statutory text is our lodestar in this endeavor, and we consider relevant extratextual sources to illuminate any ambiguity therein to ascertain legislative intent. See General Statutes § 1-2z. Insofar as any ambiguity exists, "[i]t is a fundamental tenet of our law to resolve doubts in the enforcement of a [P]enal [C]ode against the imposition of a harsher punishment." (Internal quotation marks omitted.) State v. Drupals , supra, at 160, 49 A.3d 962. The defendant was convicted of violating § 53a-59 (a) (1), which provides in relevant part: "A person is guilty of assault in the first degree when . [w]ith intent to cause serious physical injury to another person, he causes such injury to such person or to a third person by means of . a dangerous instrument ." The Penal Code in turn defines certain essential terms. " 'Physical injury' means impairment of physical condition or pain ." General Statutes § 53a-3 (3). " 'Serious physical injury' means physical injury which creates a substantial risk of death, or which causes serious disfigurement, serious impairment of health or serious loss or impairment of the function of any bodily organ ." General Statutes § 53a-3 (4). These definitions plainly reflect a legislative intention to establish a material degree of difference between mere physical injury and serious physical injury. This differentiation is reflected in the severity of punishment attendant to each. Assault resulting in physical injury, unless inflicted by discharge of a firearm, carries a maximum term of imprisonment of five years, whereas assault resulting in serious physical injury carries a maximum term of imprisonment of twenty years. See General Statutes § 53a-35a (6) and (7), 53a-59 (b) and 53a-60 (b). Thus, "[a]lthough it may often be difficult to distinguish between the two, such a distinction must be drawn; a person can be found guilty of assault in the first degree under . § 53a-59 [a] [1] only if he 'causes serious physical injury to another person.' " (Emphasis in original.) State v. Rossier , 175 Conn. 204, 207, 397 A.2d 110 (1978). We need not attempt, in the present case, to draw comprehensive distinctions for general application. Our focus is on one type of serious physical injury-serious disfigurement. See General Statutes § 53a-3 (4). We begin by examining the foundational term "disfigurement." Our Penal Code does not define this term. Neither did New York's Penal Code, from which our code's relevant definitions and many of its core provisions, such as our assault provisions, were drawn. See, e.g., State v. Courchesne , 296 Conn. 622, 671-73, 998 A.2d 1 (2010) ; State v. Havican , 213 Conn. 593, 601, 569 A.2d 1089 (1990) ; Conn. Joint Standing Committee Hearings, Judiciary, Pt. 1, 1969 Sess., p. 11; Report of the Commission to Revise the Criminal Statutes (1967) pp. 114-15, reprinted in 1 Law and Legislative Reference Unit, Connecticut State Library, Connecticut Legislative Histories Landmark Series: 1969 Public Act No. 828 (2005). Under the common meaning at the time our code was adopted in 1969, "disfigurement" was defined simply as "something that disfigures, as a scar." The Random House Dictionary of the English Language (Unabridged Ed. 1966) p. 411. "Disfigure," in turn, was commonly defined as "to mar the appearance or beauty of; deform"; id.; "to spoil the appearance of"; Webster's Seventh New Collegiate Dictionary (1969) p. 239; or "to deform; to impair, as shape or form; to mar; to deface; to injure the appearance or attractiveness of ." Webster's New Twentieth Century Dictionary (2d Ed. 1964) p. 524. Legal dictionaries of the day reflected a similar definition for "disfigurement" that had been adopted under workers' compensation law in some jurisdictions: "That which impairs or injures the beauty, symmetry, or appearance of a person . that which renders unsightly, misshapen, or imperfect, or deforms in some manner." Black's Law Dictionary (4th Ed. 1968) p. 554; accord Ballentine's Law Dictionary (3d Ed. 1969) p. 554. Our legislature subsequently adopted a substantially similar definition for our workers' compensation scheme. See Public Acts 1991, No. 91-339, § 1, codified as amended at General Statutes § 31-275 (8) (" '[d]isfigurement' means impairment of or injury to the beauty, symmetry or appearance of a person that renders the person unsightly, misshapen or imperfect, or deforms the person in some manner, or otherwise causes a detrimental change in the external form of the person"). Although this court has not previously considered whether this statutory definition would apply to the Penal Code, we note that every other jurisdiction that has considered the term's meaning as applied to penal statutes generally or assault provisions specifically, including New York, has adopted a definition of disfigurement that largely conforms to our workers' compensation definition. Therefore, we conclude that this meaning should apply to our Penal Code. See General Statutes § 1-1 (a) (directing that words that have acquired particular and appropriate meaning in law be construed as such and otherwise be construed in accordance with commonly approved usage). We next consider the difference between disfigurement and serious disfigurement. At the time of the Penal Code's adoption, the common meaning of "serious," specifically in relation to injury, was "having important or dangerous possible consequences ." Webster's Seventh New Collegiate Dictionary, supra, p. 792. Other jurisdictions have applied similar definitions to "serious" as a modifier to "disfigurement" in their penal statutes: "grave, or great"; Williams v. State , 248 Ga. App. 316, 318, 546 S.E.2d 74 (2001) ; "giving cause for apprehension; critical"; State v. Silva , 75 Haw. 419, 434, 864 P.2d 583 (1993) ; "grave and not trivial in quality or manner." State v. Clark , 974 A.2d 558, 573 (R.I. 2009). Thus, just as inflicting serious physical injury is deemed to be conduct of significantly greater culpability than inflicting physical injury, it is evident that " 'to disfigure . seriously' must be to inflict some harm substantially greater than the minimum required for 'disfigurement.' " People v. McKinnon , 15 N.Y.3d 311, 315, 910 N.Y.S.2d 767, 937 N.E.2d 524 (2010). Other jurisdictions that have given a unified definition to serious disfigurement under their penal laws, rather than define each word separately, have defined it as " 'an injury [that] mars the [victim's] physical appearance and causes a degree of unattractiveness sufficient to bring negative attention or embarrassment' "; Akaran v. State , Docket No. A-8690, 2005 WL 1026992, *4 (Alaska App. May 4, 2005) ; an injury that would "make the victim's appearance distressing or objectionable to a reasonable person observing her"; People v. McKinnon , supra, at 316, 910 N.Y.S.2d 767, 937 N.E.2d 524 ; or a "significant cosmetic deformity caused by the injury." Hernandez v. State , 946 S.W.2d 108, 113 (Tex. App. 1997). Cf. People v. McKinnon , supra, at 315, 910 N.Y.S.2d 767, 937 N.E.2d 524 (explaining that "serious" disfigurement would not rise to level of "severe" disfigurement, such that it need not be " 'abhorrently distressing, highly objectionable, shocking or extremely unsightly' to a reasonable person"). In defining a similar term in our workers' compensation scheme, our legislature defined "significant disfigurement" as "any disfigurement that is of such a character that it substantially detracts from the appearance of the person bearing the disfigurement." Public Acts 1991, No. 91-339, § 1, codified at General Statutes (Rev. to 1993) § 31-275 (8). Because "serious" means, at a minimum, "significant"; see Webster's Seventh New Collegiate Dictionary, supra, pp. 792, 809 (defining "serious" as "having important or dangerous possible consequences," and "significant" as "important, weighty"); see also Fisher v. Blankenship , 286 Mich. App. 54, 66, 777 N.W.2d 469 (2009) (disfigurement will be considered serious if it is significant); we also conclude that applying a similar definition to the Penal Code would be appropriate. In considering how to apply this definition to the evidence in a given case, the present case requires consideration of whether, and the extent to which, the duration of the disfigurement is relevant. Unlike many other jurisdictions, our Penal Code does not expressly require an injury to persist for any particular duration to qualify as a serious physical injury, including serious disfigurement. See footnote 11 of this opinion. Early drafts of our Penal Code defined "serious physical injury" to include "serious and protracted disfigurement, protracted impairment of health or protracted loss or impairment of any of the bodily functions." (Emphasis added.) Report of the Commission to Revise the Criminal Statutes, supra, p. 6; Proposed House Bill No. 7182, § 4 (4), 1969 Jan. Sess. In the substitute bill that was favorably reported out of committee, "serious" was substituted for "protracted" where the former had not been included; see Substitute House Bill No. 7182, 1969 Sess.; without explanation. We do not view this change to mean that the duration of the injury is not a proper consideration under § 53a-59 (a) (1). The term "serious" is broader than "prolonged" in that it covers more than only the temporal dimension, and it would appear that the legislature decided that the broader term was all that was necessary. See State v. Bledsoe , 920 S.W.2d 538, 540 (Mo. App. 1996) ("[a]lthough no longer statutorily required . permanency of disfigurement is relevant, as a matter of evidence, on the element of seriousness" [citations omitted] ). For example, a transitory blemish to one's appearance that heals without medical treatment (e.g., a bruise, an abrasion) could hardly be deemed serious disfigurement. See Williams v. State , supra, 248 Ga. App. at 319, 546 S.E.2d 74 ("[i]n every aggravated battery based upon a serious disfigurement, including those in which the disfigurement was temporary, the injury inflicted was more than a superficial wound, that is, a scrape, bruise, discoloration, or swelling"). Conversely, injuries of more lasting duration are more likely to be serious, even when they heal without medical intervention. See, e.g., State v. Barretta , 82 Conn. App. 684, 689-90, 846 A.2d 946 (there was sufficient evidence to establish serious disfigurement when, as result of being viciously beaten with baseball bat, victim sustained contusions, severe bruising, and abrasions all over his body), cert. denied, 270 Conn. 905, 853 A.2d 522 (2004) ; State v. Hughes , 469 S.W.3d 894, 901 (Mo. App. 2015) (there was sufficient evidence to establish serious disfigurement when victim was badly beaten in assault, but injuries would all heal: victim had black eye, swollen eye barely open, bruising around neck from scarf used to choke her, bruising and discoloration on both cheeks, scratches on right side of mouth, and abrasions to lip). In the same way that permanence is not a necessary condition for serious disfigurement; cf. General Statutes § 53a-59 (a) (2) (intent and effect of disfiguring another person "seriously and permanently " is one basis of assault in first degree [emphasis added] ); neither is it a sufficient condition, in and of itself, to establish serious disfigurement. We are mindful that some of our Appellate Court's decisions appear to suggest that, whenever a defendant inflicts an injury that leaves a permanent scar, the evidence would be sufficient to permit the trier of fact to determine that serious disfigurement exists. See, e.g., State v. Griffin , 78 Conn. App. 646, 655 n.3, 828 A.2d 651 (2003) ("[a] permanent scar constitutes serious and permanent disfigurement"). But see State v. Huckabee , 41 Conn. App. 565, 570-71, 677 A.2d 452 ("[a] bullet wound is not per se serious physical injury"), cert. denied, 239 Conn. 903, 682 A.2d 1009 (1996). We agree with those jurisdictions that have recognized that, because any visible scar would mar the victim's appearance and thus constitute disfigurement, the legislative choice of "serious" disfigurement evidences an intent to require the presence of some other factor(s) in addition to permanence to render a scar a "serious" disfigurement. See, e.g., Saelee v. State , Docket No. A-10004, 2011 WL 807391, *9 (Alaska App. March 2, 2011) ("Even in the photographic exhibit, it is difficult to see this scar if one is not looking closely. If we were to declare this evidence sufficient to establish a 'serious and protracted disfigurement,' we would essentially be saying that any visible scar constitutes a 'serious physical injury' for purposes of the assault statutes. We do not believe that the legislature intended this term to be interpreted so broadly."); State v. Silva , supra, 75 Haw. at 433, 864 P.2d 583 ("[E]ven a small but noticeable scar on a person's face, for example, is a disfigurement. However, such a scar would certainly not qualify as a 'serious bodily injury' under the statutory definition nor should it."); Hernandez v. State , supra, 946 S.W.2d at 113 ("Simply that an injury causes a scar is not sufficient to establish serious permanent disfigurement.... There must be evidence of some significant cosmetic deformity caused by the injury." [Citation omitted.] ); see also State v. Hanes , 790 N.W.2d 545, 554 (Iowa 2010) ("[s]carring may in some circumstances rise to the level of serious permanent disfigurement"); State v. Bledsoe , supra, 920 S.W.2d at 540 ("permanency of disfigurement is relevant . on the element of seriousness"). Factors identified by other jurisdictions as relevant to the seriousness of a disfigurement in the form of a scar include its permanence, but also its location, size, and general appearance. See, e.g., State v. Roper , 136 S.W.3d 891, 898 (Mo. App. 2004) ; State v. Demers , Docket No. CX-03-297, 2003 WL 22952813, *1 (Minn. App. December 16, 2003), review denied, Minnesota Supreme Court (February 25, 2004); People v. McKinnon , supra, 15 N.Y.3d at 316, 910 N.Y.S.2d 767, 937 N.E.2d 524. If there is more than one disfiguring feature, courts, including our Appellate Court, have considered the cumulative effect of those features to assess seriousness. See, e.g., State v. Anderson , 16 Conn. App. 346, 357, 547 A.2d 1368, cert. denied, 209 Conn. 828, 552 A.2d 433 (1988) ; Levin v. State , 334 Ga. App. 71, 74, 778 S.E.2d 238 (2015), cert. denied, Georgia Supreme Court, Docket No. S16C0249 (January 11, 2016); Sloan v. State , Docket No. 49A02-1002-CR-195, 2010 WL 4813600, *2 (Ind. App. November 24, 2010) (decision without published opinion, 937 N.E.2d 938 [Ind. App. 2010] ); State v. Roper , supra, at 898. Similar factors have been identified under our workers' compensation scheme. See General Statutes § 31-308 (c) ("[i]n making any award under this subsection, the commissioner shall consider [1] the location of the scar or disfigurement, [2] the size of the scar or disfigurement, [3] the visibility of the scar or disfigurement due to hyperpigmentation or depigmentation, whether hypertrophic or keloidal, [4] whether the scar or disfigurement causes a tonal or textural skin change, causes loss of symmetry of the affected area or results in noticeable bumps or depressions in the affected area, and [5] other relevant factors"). On the basis of the foregoing analysis, we discern the following distinction between disfigurement and serious disfigurement. "Disfigurement" means impairment of or injury to the beauty, symmetry or appearance of a person that renders the person unsightly, misshapen or imperfect, or deforms the person in some manner, or otherwise causes a detrimental change in the external form of the person. "Serious disfigurement" is an impairment of or injury to the beauty, symmetry or appearance of a person of a magnitude that substantially detracts from the person's appearance from the perspective of an objective observer. In assessing whether an impairment or injury constitutes serious disfigurement, factors that may be considered include the duration of the disfigurement, as well as its location, size, and overall appearance. Serious disfigurement does not necessarily have to be permanent or in a location that is readily visible to others. The jury is not bound by any strict formula in weighing these factors, as a highly prominent scar in a less visible location may constitute serious disfigurement, just as a less prominent scar in a more visible location, especially one's face, may constitute serious disfigurement. With these principles in mind, we turn to the defendant's claim that the evidence in the present case is insufficient to establish that Bran suffered a "serious physical injury" in the form of "serious disfigurement." Although ordinarily a factual question for the jury; see, e.g., State v. Almeda , supra, 211 Conn. at 450, 560 A.2d 389 ; State v. Miller , 202 Conn. 463, 489, 522 A.2d 249 (1987) ; there is a legal distinction between physical injury and serious physical injury that is not a purely subjective matter, and it is ultimately our responsibility to draw that line. See State v. Rossier , 175 Conn. 204, 207, 397 A.2d 110 (1978) ("[a]lthough it may often be difficult to distinguish between [physical injury and serious physical injury], such a distinction must be drawn " before defendant can be found guilty of assault in first degree under § 53a-59 [a] [1] [emphasis added] ); State v. Jeustiniano , 172 Conn. 275, 281, 374 A.2d 209 (1977) ("[t]he degree of the injuries suffered by [the victim] was a proper question for the jury to decide if sufficient evidence were introduced"); Hernandez v. State , supra, 946 S.W.2d at 113 ("Disfigurement, like beauty, is in the eye of the beholder. However, when distinguishing between 'bodily injury' and 'serious bodily injury' it is, again, a matter of degree. Simply that an injury causes a scar is not sufficient to establish serious permanent disfigurement.... There must be evidence of some significant cosmetic deformity caused by the injury." [Citation omitted.] ). "In reviewing the [legal] sufficiency of the evidence concerning this element of assault in the first degree, our task is to construe the evidence in the light most favorable to sustaining the jury's verdict, and then to determine whether any rational trier of fact could have found that the harm suffered rose to the level of a serious physical injury under the statute." (Internal quotation marks omitted.) State v. Almeda , supra, 211 Conn. at 450, 560 A.2d 389 ; accord State v. Adams , 327 Conn. 297, 304-305, 173 A.3d 943 (2017). The evidence regarding Bran's injuries principally came from the testimony of her treating physician at the hospital and two sets of photographs of the injured area: one set taken shortly after medical treatment was rendered and the other set taken thirty months later, at the time of trial. Each set included one photograph magnifying the injuries at close range and one photograph in which Bran displayed the injured area of her arm, taken from a sufficient distance to capture the area from Bran's upper torso to her head. Bran's physician testified that the scar would remain in its present condition. Bran testified that she was unaware that she had been cut until her son told her that she was bleeding. Her only testimony relating to the appearance of her injury was her agreement that the photographs taken after treatment accurately depicted her condition at that time and her estimation of the approximate size of the scar at the time of trial. No testimony was provided regarding the impact of the scar on her appearance. The state opted not to have Bran display her scar to the jury directly, presenting the contemporaneous photographs instead. The evidence collectively established the following undisputed facts. Immediately following the incident, Bran had an approximately 1.38 inch (three and one-half centimeters) abrasion and an approximately 0.30 inch (three-quarters of one centimeter) laceration just above her left elbow. Just below her left elbow, on her forearm, Bran had an approximately 1.57 inch (four centimeter) laceration. The smaller laceration was closed with a single suture; the larger laceration was closed with ten sutures. The closed lacerations appear quite narrow. By the time of trial, the larger of the two lacerations had left a scar approximately the same length as the laceration, although it appears to be slightly wider in the magnified close-up than when sutured. The scar is a slightly lighter tone than the surrounding skin. No other injury is apparent. Our application of the factors previously identified as relevant to assessing whether the victim has sustained a serious disfigurement establishes that Bran sustained a disfigurement, in the form of a permanent scar. That scar is in a location that could be seen if Bran wears anything shorter than a three-quarter sleeve top. The scar is not, however, in a prominent location such as her face or neck. It is relatively small in size, uniform in shape (a straight line), and otherwise unremarkable in its general appearance. Although the scar is visible if one looks for it, in the photograph that appears to have been taken from a distance of normal social interaction, its appearance is not such that one's eye naturally would be drawn to it. Serious disfigurement requires something more than visibility, as it must be visible to mar one's appearance and, hence, meet the threshold for disfigurement. See Akaran v. State , supra, 2005 WL 1026992, at *3 (noting that "courts agree that if a scar is observable from a normal social distance, it constitutes a disfigurement," and then considering whether scar is also serious disfigurement); Thomas v. State , 128 Md. App. 274, 303, 737 A.2d 622 ("[d]isfigurement is generally regarded as an externally visible blemish or scar that impairs one's appearance" [emphasis added] ), cert. denied, 357 Md. 192, 742 A.2d 521 (1999). This evidence compels the conclusion that the disfigurement is not of a magnitude that objectively could be found to substantially detract from Bran's appearance. We hold that the evidence is not legally sufficient to meet the threshold for serious disfigurement. We note that, while no two cases are precisely the same, other jurisdictions considering a single scar of roughly similar size, location, and/or appearance as the one in the present case have concluded that the evidence did not rise to the level of serious disfigurement. See, e.g., Vo v. State , 612 So. 2d 1323, 1325 (Ala. App. 1992) (bullet wound through arm was not serious physical injury), cert. denied, Alabama Supreme Court, Docket No. 1920350 (February 19, 1993); Davis v. State , 467 So. 2d 265, 266-67 (Ala. App. 1985) (scars on victim's hand from bullet going through it was not serious disfigurement); McDaniel v. Commonwealth , 415 S.W.3d 643, 659 (Ky. 2013) (small scar on victim's wrist from bullet wound, barely visible in video, was not serious disfigurement, consistent with cases in which court previously held that scar from small stab wound was not serious disfigurement); People v. Stewart , 18 N.Y.3d 831, 832, 939 N.Y.S.2d 273, 962 N.E.2d 764 (2011) (six to seven centimeter [approximately two and one-half inch] wound on victim's inner forearm requiring sutures was not shown to be objectively distressing or objectionable so as to justify conclusion that it constituted serious disfigurement predicate for first degree assault); People v. McKinnon , supra, 15 N.Y.3d at 316, 910 N.Y.S.2d 767, 937 N.E.2d 524 (two scars of moderate size on victim's inner forearm were not serious disfigurement, in absence of evidence that there was something unusually disturbing about scars); Bueno v. State , 996 S.W.2d 406, 408 (Tex. App. 1999) (two inch scar on abdomen was not sufficient to show serious, permanent disfigurement); Hernandez v. State , supra, 946 S.W.2d at 113 (one inch scar on abdomen did not amount to serious, permanent disfigurement); McCoy v. State , 932 S.W.2d 720, 724 (Tex. App. 1996) (scar on victim's lip that was permanent but not visible unless individual looked for it was not sufficient to constitute serious, permanent disfigurement). But cf. Sloan v. State , supra, 2010 WL 4813600, at *1-2 (five scars from stab wounds in left arm and shoulder were sufficient evidence of serious, permanent disfigurement); Thomas v. State , supra, 128 Md. App. at 303, 737 A.2d 622 (court could not conclude that there was insufficient evidence of serious physical injury as result of bite wound on arm that left scar because court did not see scar and, therefore, could not say that reasonable jurors who did see it could not conclude that it was serious, permanent/protracted disfigurement); State v. Williams , 784 S.W.2d 309, 311 (Mo. App. 1990) (three inch laceration to victim's neck, described in hospital record as superficial, was held to constitute serious disfigurement due to keloid formation of scar tissue); State v. Pettis , 748 S.W.2d 793, 794 (Mo. App. 1988) (four inch scar on arm constituted serious disfigurement); State v. Williams , 740 S.W.2d 244, 246 (Mo. App. 1987) (five inch wound on neck with resulting hypertrophic, or elevated, scar was held to constitute serious disfigurement); People v. Ahearn , 88 App. Div. 2d 691, 692, 451 N.Y.S.2d 318 (1982) ("[i]t is reasonable to characterize the extensive permanent scar [on the victim's arm] as a 'serious and protracted disfigurement' " [emphasis added] ). These cases reflect that, even though no bright line can be drawn between simple disfigurement and serious disfigurement, the courts have a role in ensuring that the evidence meets a minimum threshold that distinguishes the two. When reasonable minds could disagree as to the side of the line on which the injury falls, it would be improper for this court to act as a seventh juror and to substitute its own view for that of the jury. However, this is not such a case. Although the state framed its disfigurement argument to the jury solely in reference to Bran's scar at the time of trial, it asserts in its brief to this court that the jury also was free to consider the appearance of Bran's injuries when inflicted, and properly could have rendered its verdict on that basis. We agree that, in assessing the seriousness of the disfigurement, the jury was not limited to considering the injury in its final, fully healed state. See, e.g., State v. Barretta , supra, 82 Conn. App. at 686, 688-90, 846 A.2d 946 (contusions and severe bruising all over body from beating with baseball bat established serious disfigurement). But we are not persuaded that this perspective changes the outcome. The nature of the injury on Bran's arm at the time it was inflicted and at the time of the trial was not significantly different. The forearm laceration was appreciably more apparent immediately after the wound was sutured than after it healed, but it still retained the relatively undistinguishing features previously discussed. Consequently, this evidence also was legally insufficient to support a finding of serious disfigurement. We emphasize that, in concluding that the evidence was not legally sufficient to establish that the defendant caused Bran to suffer serious disfigurement, we do not intend to trivialize the assault or the physical legacy of it that remains with Bran. However, it is clear that the state failed to prove beyond a reasonable doubt that the defendant committed assault in the first degree by inflicting serious physical injury on Bran with a dangerous instrument. Therefore, the defendant's conviction of that charge must be reversed. II In light of this determination, we must consider the state's contention that we should not direct a judgment of acquittal on this charge but, instead, that the judgment should be modified to reflect the highest lesser included offense that requires only physical injury, not serious physical injury, i.e., assault in the second degree in violation of § 53a-60 (a) (2), and the defendant should be resentenced accordingly. The state concedes that, under State v. LaFleur , supra, 307 Conn. at 115, 51 A.3d 1048, the judgment of conviction must be reversed. It contends, however, that we should reconsider this precedent-despite its relatively recent vintage-because its reasoning is unsound. The state asks us, instead, to overrule LaFleur in favor of a rule under which a conviction suffering from evidentiary insufficiency would be modified to the highest lesser included offense supported by the evidence, unless the defendant can prove that the absence of a jury instruction on that lesser included offense was prejudicial. The state contends that the fact that the jury was never charged on the lesser offense does not demonstrate such prejudice because, by finding that the evidence supported all the elements of the greater offense, the jury necessarily found that the evidence supported the elements of the lesser included offense. We decline to overrule LaFleur . Our decision in LaFleur hewed closely to the analysis applied in State v. Sanseverino , 291 Conn. 574, 969 A.2d 710 (2009). That case involved an instructional error based on a posttrial change to our long-standing interpretation of the kidnapping statute under which the defendant was convicted. Id., at 577-78, 595, 969 A.2d 710. In light of that error, this court considered the state's contention that, if it elected not to retry the defendant on the kidnapping charge, it would be entitled to a modification of the judgment to reflect the lesser included offense of unlawful restraint in the second degree. Id., at 590, 969 A.2d 710. The court noted a split of authority in state and federal courts as to whether modification is proper if the jury had not been instructed on the lesser included offense, as was the case in Sanseverino . Id., at 593, 969 A.2d 710. One group held that modification is never proper under those circumstances; the other group held that modification is proper as long as there is no prejudice to the defendant. Id., at 593-94, 969 A.2d 710. This court concluded in Sanseverino that, "[u]nder the unique circumstances" of the case; id., at 595, 969 A.2d 710 ; the judgment could be modified to reflect the lesser included offense because (1) there was no reason to believe that the state had opted against seeking a jury instruction on that lesser included offense for strategic purposes (because our precedent was so well settled), (2) the defendant had benefited from our holding in the case that had overruled precedent, even though he had not raised a claim challenging that precedent, (3) the defendant had not objected to the state's request for a modification of the judgment, and (4) we could conceive of no reason why it would be unfair to the defendant to impose a conviction of unlawful restraint in the second degree (given the preceding circumstances and the fact that the jury "necessarily " found the defendant guilty of the lesser included offense by finding him guilty of the greater offense). (Emphasis in original.) Id., at 595 and 596 n.17, 969 A.2d 710. Three years later, in LaFleur , this court similarly was faced with the question of whether instructional error on an element of assault in the first degree required the conviction to be reversed or the judgment to be modified to the lesser included offense of assault in the second degree when the jury had not been instructed on that lesser offense. State v. LaFleur , supra, 307 Conn. at 140-42, 51 A.3d 1048. The instructional error in LaFleur stemmed from an issue of first impression, whether a fist is a "dangerous instrument." Id., at 140, 51 A.3d 1048. In a closely divided decision, this court concluded that modification was not appropriate. Id., at 153-54, 51 A.3d 1048 ; id., at 164-85, 51 A.3d 1048 (Palmer , J. , dissenting). The majority pointed to the split of authority on this issue that had been acknowledged in Sanseverino . Id., at 142-43, 51 A.3d 1048. It rejected the approach of the courts permitting modification in the absence of evidence of undue prejudice to the defendant because that approach did not give any weight to the fact that the jury had not been charged on the lesser included offense, and did not consider that the state may have had a strategic reason for not requesting the lesser charge. Id., at 145-47, 51 A.3d 1048. Ultimately, the majority in LaFleur looked to the circumstances that justified modification in Sanseverino and concluded that, because these circumstances were not present in LaFleur , the court could not conclude that it would be fair to the defendant to allow modification. Id., at 147-51, 51 A.3d 1048. The majority cited several reasons why, in the absence of those unusual circumstances, a court should not modify a conviction when the state did not request a charge on the lesser included offense: "First, an appellate court does not sit as a [fact finder] in a criminal case and should avoid resolving cases in a manner [that] appears to place the appellate court in the jury box.... "Second . this view preserves the important distinction between an appellate determination [that] the record contains sufficient evidence to support a guilty verdict and a jury determination [that] the [s]tate proved its case beyond a reasonable doubt.... "Third, when [a jury instruction on the lesser offense has been given] . it can be said with some degree of certainty that a [sentencing remand] is but effecting the will of the fact finder within the limitations imposed by law . and . that the appellate court is simply passing on the sufficiency of the implied verdict. When, however, no instruction at all has been offered on the lesser offense, second guessing the jury becomes far more speculative.... "Fourth, when the jury could have explicitly returned a verdict on the lesser offense, the defendant is well aware of his potential liability for the lesser offense and usually will not be prejudiced by the modification of the judgment from the greater to the lesser offense.... "Fifth, adopting a practice of remanding for sentencing on a lesser included offense when that offense has not been submitted to the jury may prompt the [s]tate to avoid requesting or agreeing to submit a lesser included offense to the jury.... "Sixth, the [s]tate would obtain an unfair and improper strategic advantage if it successfully prevents the jury from considering a lesser included offense by adopting an all or nothing approach at trial, but then on appeal, perhaps recognizing [that] the evidence will not support a conviction [of] the greater offense, is allowed to abandon its trial position and essentially concede [that] the lesser included offense should have been submitted to the jury.... "Seventh . [t]he defendant may well have [for-gone] a particular defense or strategy due to the trial [court's] rejection of a lesser included offense." (Internal quotation marks omitted.) Id., at 152 n.30, 51 A.3d 1048, quoting State v. Brown , 360 S.C. 581, 594-97, 602 S.E.2d 392 (2004) ; see State v. Brown , supra, at 594-97, 602 S.E.2d 392 (explaining why charge on lesser included offense is necessary prerequisite to modification). The majority's analysis in LaFleur resulted in two notable clarifications of the Sanseverino factors. First, the majority effectively determined that it would presume that the state's failure to request an instruction on the lesser included offense was strategic unless the evidentiary deficiency resulted from an unforeseeable change in the law, not merely the resolution of an issue of first impression, such that the state could not have anticipated the change. Id., at 147, 51 A.3d 1048. Second, it effectively presumed that the absence of an instruction on the lesser included offense prejudiced the defendant: "Regardless of whether the defense challenged the state's claims as to elements of the lesser included charge, trial strategy and jury deliberations are inevitably colored by the inclusion of a lesser included charge to the jury." (Emphasis added.) Id., at 151, 51 A.3d 1048. The dissent in LaFleur argued that the Sanseverino factors were never intended to apply as a general framework for assessing whether modification of the judgment is proper in the absence of a jury charge on the lesser included offense. Id., at 166-67, 51 A.3d 1048 (Palmer , J. , dissenting). It contended that, as a general matter, modification is not unfair to the defendant in such cases because the greater offense puts the defendant on notice of the lesser offense and a jury finding on the greater offense necessarily means that the jury finds the elements of the lesser offense satisfied. Id., at 168, 173-74, 51 A.3d 1048 (Palmer , J. , dissenting). The dissent contended that, unless the defendant can offer a legitimate reason why it would be unfair to sentence him to the lesser included offense, modification of the judgment achieves the result most consonant with justice. Id., at 166, 173-81, 51 A.3d 1048 (Palmer , J. , dissenting). It criticized the majority for purporting to reject a bright line rule when, in reality, it had adopted one, asserting that the state will be unable to prove either that its failure to seek an instruction on the lesser included offense was not strategic or that the defendant would not have altered his trial strategy had such an instruction been given. Id., at 173, 51 A.3d 1048 (Palmer , J. , dissenting). Having thus provided a comprehensive review of the precedent that the state seeks to overrule, we must consider whether the prudential doctrine of stare decisis counsels against that action. Stare decisis "counsels that a court should not overrule its earlier decisions unless the most cogent reasons and inescapable logic require it.... Stare decisis is justified because it allows for predictability in the ordering of conduct, it promotes the necessary perception that the law is relatively unchanging, it saves resources and it promotes judicial efficiency." (Internal quotation marks omitted.) Graham v. Commissioner of Transportation , 330 Conn. 400, 417, 195 A.3d 664 (2018). "While stare decisis is not an inexorable command . the doctrine carries such persuasive force that we have always required a departure from precedent to be supported by some special justification.... Dickerson v. United States , 530 U.S. 428, 443, 120 S. Ct. 2326, 147 L. Ed. 2d 405 (2000). Such justifications include the advent of subsequent changes or development in the law that undermine[s] a decision's rationale . the need to bring [a decision] into agreement with experience and with facts newly ascertained . and a showing that a particular precedent has become a detriment to coherence and consistency in the law ." (Internal quotation marks omitted.) Sepega v. DeLaura , 326 Conn. 788, 798-99 n.5, 167 A.3d 916 (2017). "When a prior decision is seen so clearly as error that its enforcement [is] for that very reason doomed . the court should seriously consider whether the goals of stare decisis are outweighed, rather than dictated, by the prudential and pragmatic considerations that inform the doctrine to enforce a clearly erroneous decision." (Citation omitted; internal quotation marks omitted.) Conway v. Wilton , 238 Conn. 653, 659, 680 A.2d 242 (1996). In making this determination, the court should consider whether the parties acted in reliance on the rule at issue. See Spiotti v. Wolcott , 326 Conn. 190, 202-203, 163 A.3d 46 (2017) ("a departure from precedent may be justified when the rule to be discarded may not be reasonably supposed to have determined the conduct of the litigants" [internal quotation marks omitted] ). We are not persuaded that the state has provided a sufficient justification for overruling LaFleur . The state's reasons mirror those made by the dissent in LaFleur , which did not carry the day. The state does not argue that the split among both federal and state courts on this issue has evolved to a greater consensus favoring modification. The very fact that reasonable jurists disagree on this matter suggests that LaFleur has not been proven "clearly" wrong. Nor is there any evidence that the rule in LaFleur is unworkable. If the state wants to avoid the possibility that the evidence will be deemed insufficient to support the charge, whether by the jury or a reviewing court, it can simply request an instruction on any lesser included offense supported by the evidence. In fact, we agree with the dissent in LaFleur that the practical effect of the majority's analysis is a bright line rule. Reliance interests also favor application of the holding in LaFleur to the present case. Both parties were on notice at trial that LaFleur was the controlling law. Knowing this, the state chose to gamble that the evidence would be found factually and legally sufficient to support a conviction of assault in the first degree as to both victims, despite the obvious disparity in the seriousness of their injuries. It is fair to presume, under these circumstances, that the defendant believed that the evidence was insufficient to support a charge of assault in the first degree as to Bran and that, in the absence an instruction on a lesser included offense, either (a) the jury would find him not guilty; see Fair v. Warden , 211 Conn. 398, 404, 559 A.2d 1094 ("[i]t may be sound trial strategy not to request a lesser included offense instruction, hoping that the jury will simply return a not guilty verdict"), cert. denied, 493 U.S. 981, 110 S. Ct. 512, 107 L. Ed. 2d 514 (1989) ; or (b) his conviction would be vacated under LaFleur . It would be unfair to the defendant to change the law on appeal. Had he known that the judgment would be modified if he succeeded on his evidentiary sufficiency challenge, he might have sought an instruction not only on assault in the second degree, a class D felony, but also on assault in the third degree, a class A misdemeanor. See General Statutes § 53a-60 (a) (2) and (b) and 53a-61. Under our law, the defendant would have been entitled to instructions all the way down to the lowest offense supported by the evidence. See, e.g., State v. Vasquez , 176 Conn. 239, 241, 244, 405 A.2d 662 (1978) (when information charged defendant with robbery in first degree, he was entitled to jury charge on robbery in second degree, robbery in third degree, and larceny in fourth degree on ground that those offenses are lesser included crimes of robbery in first degree). We conclude, therefore, that the state has not provided a substantial justification for departing from the holding in LaFleur . The state contends, however, that there is evidence here, unlike in LaFleur , to establish that the defendant was not prejudiced by the lack of an instruction on the lesser included offense of assault in the second degree. The state points to the fact that the defendant submitted proposed jury instructions on the first day of evidence that included a request to charge on assault in the second degree with respect to Bran but that he withdrew that request at the charging conference at the close of evidence. Given this timing, the state claims that "the defendant put on his entire defense anticipating that a lesser charge would be given before withdrawing the request" and, therefore, could not have been prejudiced by the absence of the instruction. We disagree. The timing of the withdrawal does not necessarily correlate to the timing of the defendant's decision, as there was no need to inform the court of that decision prior to the charging conference. The defendant may have made that determination during or at the close of the state's case-in-chief, after it likely became apparent that the state's proof as to Bran fell short of the evidence needed for a conviction of assault in the first degree. Moreover, as previously noted, had the state sought an instruction on assault in the second degree at the charging conference, the defendant might have requested a charge on a still lesser offense. We therefore conclude that the defendant's conviction of assault in the first degree as to Bran must be reversed. In light of this determination, one further observation is warranted. "This court has endorsed the . aggregate package theory of sentencing.... Pursuant to that theory, we must vacate a sentence in its entirety when we invalidate any part of the total sentence. On remand, the resentencing court may reconstruct the sentencing package or, alternatively, leave the sentence for the remaining valid conviction or convictions intact.... Thus, we must remand this case for resentencing on the sole [count] on which the defendant stands convicted." (Citation omitted; internal quotation marks omitted.) State v. LaFleur , supra, 307 Conn. at 164, 51 A.3d 1048. The judgment of the Appellate Court is reversed only with respect to the conviction of assault in the first degree as to Bran and the case is remanded to that court with direction to remand the case to the trial court with direction to render judgment of acquittal on that charge, to vacate the defendant's sentence, and to resentence him on the remaining charge; the judgment of the Appellate Court is affirmed in all other respects. In this opinion KAHN and ECKER, Js., concurred. PALMER, J., concurring in the judgment. I agree with and join part I of the majority opinion, in which the majority concludes that there was insufficient evidence of serious physical injury to support the conviction of the defendant, Divenson Petion, on one of two counts of assault in the first degree in violation of General Statutes § 53a-59 (a) (1). Although I concur in the judgment, I do not join part II of the majority opinion, in which the majority rejects the state's request to modify the judgment of conviction to reflect the defendant's conviction of the lesser included offense of assault in the second degree in violation of General Statutes § 53a-60 (a) (2) in light of this court's reversal of the defendant's conviction of first degree assault on the basis of evidentiary insufficiency. I continue to maintain my view that State v. LaFleur , 307 Conn. 115, 151-54, 51 A.3d 1048 (2012), in which this court effectively adopted a bright line rule requiring that a conviction be vacated under the present circumstances, was wrongly decided. See id., at 164-66, 51 A.3d 1048 (Palmer, J., dissenting). As I explained in my dissenting opinion in LaFleur, the majority in that case employed a flawed analysis that failed to account for the fact that the categorical rule it adopted-albeit while claiming to adopt a fairness based, case-by-case approach, a claim that, as the majority in the present case candidly acknowledges, is groundless-penalizes the state for failing to request a charge on the lesser included offense, even though the defendant himself had the absolute right to seek and obtain such an instruction, and irrespective of whether the defendant suffered any prejudice as a result of that omission. Id., at 181-85, 51 A.3d 1048 (Palmer, J., dissenting). In so doing, the rule "bestows a windfall on the wholly undeserving defendant-and does so at the expense of the victim of the assault, the state and the general public-without any countervailing public benefit." Id., at 165, 51 A.3d 1048 (Palmer, J., dissenting). That having been said, LaFleur was the governing law at the time of trial in the present case, and the defendant was entitled to rely on that law when he opted against seeking a lesser included offense instruction. Therefore, even if I would favor overruling LaFleur, I would do so prospectively only. Accordingly, I agree that the defendant's conviction on one of two of the first degree assault counts should be reversed and concur in the judgment. MULLINS, J., with whom ROBINSON, C.J., and D'AURIA, Js., join, dissenting. I agree with much of the well reasoned analysis set forth in today's decision. In particular, I agree with the definitions that it articulates and the factors that it identifies as relevant to assessing whether a disfigurement rises to the level of "serious disfigurement." General Statutes § 53a-3 (4). Certainly, this area was in need of clarification, which this court now has provided. I do not agree, however, that, under the clarification provided today, no reasonable juror could find that the injury the defendant, Divenson Petion, inflicted on the victim, Rosa Bran, rose to the level of serious disfigurement. The source of my disagreement stems from the fact that the question of whether this injury constituted a serious disfigurement is a quintessential jury question. Under the facts of the present case, I cannot conclude that, as a matter of law, no reasonable juror could find that Bran's principal injury, namely the larger cut that required ten stitches to close and left a one and one-half inch permanent scar on her forearm, rose to the level of serious disfigurement. Indeed, although I might not view Bran's injury as one that substantially detracts from her appearance, I cannot conclude that no reasonable juror could conclude otherwise. The injury is permanent, of a sufficient size, and in a sufficiently visible location that others might view it as a significant cosmetic deformity. I do not intend to suggest that this court has no role in reviewing such findings. A disfigurement that is not permanent, or one that is permanent but far less visible, might clearly fail to meet the threshold. That is not the present case. Thus, I would conclude that the evidence presented in this case was sufficient for a reasonable juror to determine that Bran's injury "is an impairment of or injury to the beauty, symmetry or appearance of a person of a magnitude that substantially detracts from the person's appearance from the perspective of an objective observer." Accordingly, I would affirm the judgment of the Appellate Court. Finally, because I believe the defendant's conviction should be upheld, I need not reach the issue of whether this court should overrule State v. LaFleur , 307 Conn. 115, 51 A.3d 1048 (2012). For the foregoing reasons, I respectfully dissent. An exception, not relevant to the present case, arises when a defendant inflicts physical injury by means of the discharge of a firearm. See footnote 2 of this opinion. General Statutes § 53a-59 (a) provides: "A person is guilty of assault in the first degree when: (1) With intent to cause serious physical injury to another person, he causes such injury to such person or to a third person by means of a deadly weapon or a dangerous instrument ; or (2) with intent to disfigure another person seriously and permanently, or to destroy, amputate or disable permanently a member or organ of his body, he causes such injury to such person or to a third person; or (3) under circumstances evincing an extreme indifference to human life he recklessly engages in conduct which creates a risk of death to another person, and thereby causes serious physical injury to another person; or (4) with intent to cause serious physical injury to another person and while aided by two or more other persons actually present, he causes such injury to such person or to a third person; or (5) with intent to cause physical injury to another person, he causes such injury to such person or to a third person by means of the discharge of a firearm." (Emphasis added.) Raphael was in critical condition when he was admitted to the hospital. State v. Petion , supra, 172 Conn. App. at 672 n.2, 161 A.3d 618. His injuries required immediate surgery and resulted in permanent scarring and nerve damage to his face. Id. Bran's treating physician testified that Bran's vital signs-blood pressure and respiratory rate-were "grossly abnormal" when he first had contact with her but acknowledged that the elevated levels were a function of adrenaline when someone is injured. He offered no testimony as to whether or how long these levels were sustained; nor did he suggest that these levels created a substantial risk of death, or caused a serious impairment of health or serious loss or impairment of the function of any bodily organ. See General Statutes § 53a-3 (4) (defining serious physical injury). Bran was not admitted to the hospital for observation and received no treatment other than sutures for the lacerations. The defendant challenged the sufficiency of the evidence only with respect to the assault charge involving Bran. The defendant contended that prosecutorial improprieties deprived him of a fair trial with respect to the charges of assault as to both Raphael and Bran. The Appellate Court rejected that claim; see State v. Petion , supra, 172 Conn. App. at 678, 161 A.3d 618 ; and the defendant has not challenged that aspect of the court's decision. Although the trial court's charge provided no such factors to guide the jury, the defendant does not raise a claim of instructional error. In one earlier case, cited by the Appellate Court in the present case; see State v. Petion , supra, 172 Conn. App. at 674-75, 161 A.3d 618 ; the Appellate Court considered dictionary definitions of "disfigurement" but did not further consider how "serious" modified that meaning. See State v. Barretta , 82 Conn. App. 684, 689, 846 A.2d 946, cert. denied, 270 Conn. 905, 853 A.2d 522 (2004). By declining to use these cases as benchmarks, we do not intend to express a view as to whether they were correctly decided. " 'Dangerous instrument' means any instrument, article or substance which, under the circumstances in which it is used or attempted or threatened to be used, is capable of causing death or serious physical injury ." General Statutes § 53a-3 (7). See, e.g., Akaran v. State , Docket No. A-8690, 2005 WL 1026992, *4 (Alaska App. May 4, 2005) (defining disfigurement as "an injury [that] mars the [victim's] physical appearance"); Williams v. State , 248 Ga. App. 316, 318, 546 S.E.2d 74 (2001) (applying definition of disfigurement "as that which impairs or injures the appearance of a person"); State v. Silva , 75 Haw. 419, 433, 864 P.2d 583 (1993) ("a 'disfigurement' is, in relevant part, 'something that disfigures, as a scar,' while to 'disfigure' is 'to mar the effect or excellence of' "); James v. State , 755 N.E.2d 226, 230 (Ind. App.) (applying definition of disfigure as " 'to make less complete, perfect or beautiful in appearance or character: deface, deform, mar' "), appeal denied, 761 N.E.2d 423 (Ind. 2001) ; Thomas v. State , 128 Md. App. 274, 303, 737 A.2d 622 (applying definition of disfigurement as " 'an externally visible blemish or scar that impairs one's appearance' "), cert. denied, 357 Md. 192, 742 A.2d 521 (1999) ; State v. Bledsoe , 920 S.W.2d 538, 540 (Mo. App. 1996) (disfigure "means to deface or mar the appearance or beauty of someone"); State v. Clark , 974 A.2d 558, 572 (R.I. 2009) (disfigurement means " 'that which impairs or injures the beauty, symmetry or appearance of a person or thing; that which renders unsightly, misshapen or imperfect or deforms in some manner' "); see also State v. Ferrer , Docket No. 47687-8-II, 2018 WL 4896669, *2 (Wash. App. October 9, 2018) (trial court instructed jury that "[d]isfigurement means that which impairs or injures the beauty, symmetry or appearance of a person or thing; that which renders unsightly, misshapen, or imperfect, or deforms in some manner" [internal quotation marks omitted] ) (decision without published opinion, 5 Wash. App. 2d 1034 [2018] ). Penal laws in the majority of jurisdictions also define serious physical or bodily injury to include serious disfigurement, although many of those jurisdictions add a durational term (e.g., protracted, prolonged, permanent). See Ala. Code § 13A-1-2 (14) (2015) ("serious and protracted disfigurement"); Alaska Stat. § 11.81.900 (b) (58) (B) ("serious and protracted disfigurement") (LexisNexis 2012); Ariz. Rev. Stat. Ann. (Cum. Supp. 2018) § 13-105 (39) ("serious and permanent disfigurement"); Cal. Penal Code § 243 ("serious disfigurement" for purposes of assault statutes) (Deering Supp. 2018); Colo. Rev. Stat. § 18-1-901 (3) (p) (2017) ("substantial risk of serious permanent disfigurement"); Del. Code. Ann. tit. 11, § 222 (26) (Supp. 2012) ("serious and prolonged disfigurement"); Ga. Code Ann. § 16-5-24 (a) (Supp. 2018) ("seriously disfiguring" for purposes of aggravated battery); Haw. Rev. Stat. § 707-700 (2014) ("serious, permanent disfigurement"); Ind. Code Ann. § 35-31.5-2-292 (1) (LexisNexis 2012) ("serious permanent disfigurement"); Iowa Code § 702.18 (2001) ("serious permanent disfigurement"); Ky. Rev. Stat. Ann. § 500.080 (15) (LexisNexis Cum. Supp. 2018) ("serious and prolonged disfigurement"); Me. Rev. Stat. Ann. tit. 17-a, § 2 (23) (Cum. Supp. 2018) ("serious, permanent disfigurement"); Md. Code Ann., Criminal Law § 3-201 (d) (2) (i) (LexisNexis 2012) ("permanent or protracted serious . disfigurement"); Mass. Ann. Laws ch. 265, § 13A (c) (LexisNexis 2010) ("permanent disfigurement" for purposes of assault and battery); Minn. Stat. § 609.02 (8) (West 2018) ("serious permanent disfigurement"); Mo. Rev. Stat. § 556.061 (44) (Cum. Supp. 2018) ("serious disfigurement"); Mont. Code Ann. § 45-2-101 (66) (a) (ii) (2017) ("serious permanent disfigurement"); Neb. Rev. Stat. § 21-109 (21) (2016) ("serious permanent disfigurement"); Nev. Rev. Stat. 0.060 (1) (2017) ("serious, permanent disfigurement"); N.J. Stat. Ann. § 2C:11-1 (b) (West 2015) ("serious, permanent disfigurement"); N.M. Stat. Ann. § 30-1-12 (A) (2004) ("serious disfigurement"); N.Y. Penal Law § 10.00 (10) (McKinney Cum. Supp. 2019) ("serious and protracted disfigurement"); N.C. Gen. Stat. 14-32.4 (a) (2017) ("serious permanent disfigurement" for purposes of assault); N.D. Cent. Code § 12.1-01-04 (27) (Supp. 2017) ("serious permanent disfigurement"); Or. Rev. Stat. § 161.015 (8) (2017) ("serious and protracted disfigurement"); 18 Pa. Stat. and Const. Stat. Ann. § 2301 (West 2015) ("serious, permanent disfigurement"); R.I. Gen. Laws § 11-5-2 (c) (Cum. Supp. 2018) ("serious permanent disfigurement"); S.C. Code Ann. § 16-3-600 (A) (1) (2015) ("serious permanent disfigurement"); S.D. Codified Laws § 22-18-1.5 (2017) ("serious permanent disfigurement" for purposes of assault); Tex. Penal Code Ann. § 1.07 (a) (46) (Cum. Supp. 2018) ("serious permanent disfigurement"); Utah Code Ann. § 76-1-601 (11) (LexisNexis 2012) ("serious permanent disfigurement"); Wn. Rev. Code Ann. § 9A.04110 (b) and (c) (West 2015) (substantial bodily harm includes "temporary but substantial disfigurement"; great bodily harm includes "serious permanent disfigurement"); Wis. Stat. § 939.22 (Cum. Supp. 2018) ("serious permanent disfigurement"). Other jurisdictions that define serious physical injury to include disfigurement but do not use the term "serious" include the following: Ark. Code Ann. § 5-1-102 (21) (2013) ("protracted disfigurement"); Idaho Code § 18-907 (West 2016) ("permanent disfigurement" for purposes of aggravated battery); 720 Ill. Comp. Stat. 5/12-3.05 (West 2017) ("permanent . disfigurement" for purposes of aggravated battery); Kan. Stat. Ann. § 21-5413 (b) (1) (A) (Cum. Supp. 2018) ("disfigurement" for purposes of aggravated battery); La. Rev. Stat. Ann. § 14:34.7 (B) (3) (2016) ("protracted and obvious disfigurement"); Ohio Rev. Code Ann. § 2901.01 (A) (5) (d) (West Supp. 2018) ("permanent disfigurement" or "temporary, serious disfigurement"); Okla. Stat. Ann. tit. 21, § 646 (B) (West 2018) ("protracted and obvious disfigurement"); Tenn. Code Ann. § 39-11-106 (a) (34) (D) (West 2018) ("protracted or obvious disfigurement"); Wyo. Stat. Ann. § 6-1-104 (x) (C) (2013) ("severe disfigurement"). The legislature repealed this definition when it decided to limit the circumstances under which compensation would be provided for serious disfigurement or scarring, adding instead language to the statute prescribing those particular limitations. See Public Acts 1993, No. 93-228, § 1, 19, codified at General Statutes (Rev. to 1995) § 31-308 (c) (precluding compensation "for any scar or disfigurement which is not located on [A] the face, head or neck, or [B] any other area of the body which handicaps the employee in obtaining or continuing to work"). Although we have no evidence that this substantive consideration motivated the legislature's decision to eliminate "prolonged," the omission of any specific durational requirement raises a question about the impact that surgery has in terms of minimizing the period of disfigurement. In some jurisdictions that require prolonged or permanent disfigurement, courts have considered the seriousness of the condition only after surgery. See, e.g., State v. Malufau , 80 Haw. 126, 131, 906 P.2d 612 (1995) (under statute requiring serious, permanent disfigurement, court expressed disapproval of case relying on physician's testimony regarding potential severity of victim's injuries in absence of medical treatment); People v. Rosado , 88 App. Div. 3d 454, 454-55, 930 N.Y.S.2d 10 (2011) (assessing sufficiency of evidence of serious disfigurement in relation to victim's appearance after his broken nose and chipped teeth were repaired by surgery; likelihood, and not possibility, of future adverse impact on appearance was relevant consideration), appeal denied, 18 N.Y.3d 928, 942 N.Y.S.2d 467, 965 N.E.2d 969 (2012). In some other jurisdictions, "the relevant issue was the disfiguring and impairing quality of the bodily injury as it was inflicted , not after the effects had been ameliorated or exacerbated by other actions such as medical treatment." (Emphasis in original; internal quotation marks omitted.) Fancher v. State , 659 S.W.2d 836, 838 (Tex. App. 1983) ; see, e.g., Lenzy v. State , 689 S.W.2d 305, 310 (Tex. App. 1985) (concluding that evidence established protracted loss or impairment of function of any bodily member when victim's teeth were fractured and their utility was restored by performance of root canals and installation of porcelain crowns, when dentist's testimony established that, "without his remedial work and treatment, the teeth in question would have been lost or their use substantially impaired"). We note that the former approach would appear to allow the severity of the crime to depend on the fortuity of the level of care that the victim received or was able to afford. This court has similarly concluded that other forms of serious physical injury need not be permanent. See State v. Ovechka , supra, 292 Conn. at 542, 975 A.2d 1 (deeming temporary but grave condition, loss of sight, to be serious physical injury); State v. Barretta , supra, 82 Conn. App. at 684, 689, 846 A.2d 946 ("a victim's complete recovery is of no consequence" in assessing whether victim suffered serious physical injury); State v. Denson , 67 Conn. App. 803, 811, 789 A.2d 1075 ("[i]t is entirely possible to cause serious physical injury without causing . a permanent injury"), cert. denied, 260 Conn. 915, 797 A.2d 514 (2002). The mere fact that a scar is in a location that may be seen only by someone with whom the victim has an intimate relationship would not preclude a finding of serious disfigurement. The photograph magnifying the laceration at close range shows loose threads from bandages that were removed to reveal the wounds. The width of those threads appears to be roughly the same width as the laceration. No evidence was proffered regarding the depth of the lacerations or their appearance prior to suturing. We disagree with the Appellate Court's conclusion that the location of Bran's scar made it "no less observable than a facial scar." State v. Petion , supra, 172 Conn. App. at 677, 161 A.3d 618. Other courts have recognized as much. See, e.g., State v. Hughes , supra, 469 S.W.3d at 900 ("[v]isibility of scarring, particularly on the face , size of scars, and the presence of additional injuries are all factors in determining disfigurement" [emphasis added] ). The state did not produce evidence to establish how long the laceration remained in the condition reflected in the photographs or when the sutures were removed, a fact from which such an inference arguably might be drawn. Although the sutures undoubtedly make Bran's appearance less attractive than after they were removed, the state has not claimed that the jury could properly assess the seriousness of the injury on the basis of the treatment method selected by the victim's physician (e.g., closing a wound with glue, which would not be visible, versus with sutures or some other visible means). Our review of case law from other jurisdictions has not revealed any authority supporting that proposition. General Statutes § 53a-60 (a) provides in relevant part: "A person is guilty of assault in the second degree when . (2) with intent to cause physical injury to another person, the actor causes such injury to such person or to a third person by means of a deadly weapon or a dangerous instrument other than by means of the discharge of a firearm ." See footnote 18 of this opinion for the text of § 53a-60 (a) (2). General Statutes § 53a-61 (a) provides in relevant part: "A person is guilty of assault in the third degree when: (1) With intent to cause physical injury to another person, he causes such injury to such person or to a third person . or (3) with criminal negligence, he causes physical injury to another person by means of a deadly weapon, a dangerous instrument or an electronic defense weapon." That request to charge was for an instruction under the subsection requiring that "the actor recklessly causes serious physical injury to another person by means of a deadly weapon or a dangerous instrument"; (emphasis added) General Statutes § 53a-60 (a) (3) ; whereas the state seeks to modify the judgment to reflect a conviction under the subsection requiring that, "with intent to cause physical injury to another person, the actor causes such injury to such person or to a third person by means of a deadly weapon or a dangerous instrument other than by means of the discharge of a firearm ." General Statutes § 53a-60 (a) (2). The former is a class C felony because it requires serious physical injury, whereas the latter is a class D felony. See General Statutes § 53a-60 (b). Although I agree with and join part I of Justice McDonald's opinion, and concur in the judgment, for reasons stated hereinafter, I do not join part II of Justice McDonald's opinion. Therefore, that opinion, in which Justices Kahn and Ecker join, is technically not a majority opinion but, rather, an opinion announcing the judgment of the majority of this court. In the interest of simplicity, however, I refer to that opinion as the majority opinion.

12503186

Michael ERRICHETTI v. Daniel BOTOFF et al.

Errichetti v. Botoff

2018-10-02

AC 40143

1199

1212

196 A.3d 1199

196

West's Atlantic Reporter, Third Series

Connecticut Appellate Court

Connecticut

2021-08-27T20:57:41.731814+00:00

Fastcase

Michael ERRICHETTI v. Daniel BOTOFF et al.

Michael ERRICHETTI v. Daniel BOTOFF et al. AC 40143 Appellate Court of Connecticut. Argued May 16, 2018 Officially released October 2, 2018 Patrick M. Fahey, Hartford, with whom, on the brief, was Matthew Ranelli, New Haven, for the appellants (defendants). John R. Harness, for the appellee (plaintiff). Lavine, Moll and Bishop, Js.

6287

39058

MOLL, J. This case is about a so-called "spite fence" erected along the border between two residential properties in Greenwich. The defendants, Daniel Botoff and Laura Botoff, appeal from the trial court's judgment rendered in favor of the plaintiff, Michael Errichetti, entering an injunction pursuant to General Statutes § 52-480, which required the defendants to remove the fence that they had constructed on their property and to restore the surrounding area. On appeal, the defendants claim that the court erred by (1) finding the second and third elements of § 52-480 satisfied, namely, a malicious erection of the structure and the intention to injure the enjoyment of the adjacent landowner's property, and (2) ordering the defendants to restore the area in which the fence was erected to its previous condition. We disagree, and, accordingly, we affirm the judgment of the trial court. The trial court found the following facts that are relevant to this appeal. To aid the reader, we include from a trial exhibit (plaintiff's exhibit 5) a diagram of the properties at issue. "B" identifies the defendants' property; "E" identifies the plaintiff's property. Since 1993, the plaintiff and his wife have owned and resided at a property located at 86 Rockwood Lane in Greenwich. In 2011, the defendants purchased, and have since resided at, a property located at 5 Dogwood Lane in Greenwich. Both properties are located in a two acre zoning district. Part of the defendants' backyard abuts part of the plaintiff's yard that lies to the north of his house. The defendants' property is bounded to the northeast by property belonging to the Betters, to the west by property belonging to the Zorthians, and to the south by both the plaintiff's property and property belonging to the plaintiff's neighbor to the west, the Mickleys. The parties share a common boundary of 160 feet. In 2014, the defendants built a wooden stockade style fence along a 103 foot portion of this 160 foot boundary. At trial, the plaintiff described the area surrounding his home. The trial court found that to the northwest of the plaintiff's house is a "natural wooded area, most of which is wetlands," that covers part of the plaintiff's, the defendants', the Zorthians', and the Mickleys' properties. The wooded area creates a forty to sixty foot buffer between the parties' properties. A stream flows through this area on its way to Long Island Sound, and an old farmer's wall runs along the parties' shared boundary. The parties' properties each slope up from the stream to their respective homes. In 2004, the plaintiff and his wife renovated their house so that several main rooms offered views of the wooded area. According to the plaintiff, prior to the erection of the fence, he had "felt that his yard was very tranquil and beautiful" and "that he would not have purchased [his] property if the fence had been there already." After purchasing the property in 2011, the defendants immediately began renovating the house. According to Laura Botoff's testimony, when she and her husband bought the property, they discussed erecting a fence and potentially installing a pool but decided to complete the work in phases for financial reasons. In 2012, after completing the renovations to the house, they began a landscaping project "to make sure that [the backyard] was safe for their young sons." When the defendants began the landscaping project, they had the property staked for a fence. Laura Botoff testified that she and her husband believed that a fence would provide them with privacy and security, but they did not erect the fence for another two years after having it staked. During this period, the relationship between the parties deteriorated. At trial, the parties testified about a few interactions they had concerning their shared boundary. According to the plaintiff, in the spring of 2012, he saw the defendants' landscaping project expanding into the wooded area between his and the defendants' homes. Assuming that the defendants had not received the proper approvals from the Greenwich Inland Wetlands and Watercourses Agency (agency), the plaintiff walked over to the defendants' house, introduced himself to Laura Botoff, and explained that she should contact the agency before proceeding with the project. Laura Botoff's recounting of the interaction differs. She testified that he approached her, without first identifying himself, to question her about the nonexistence of wetlands flags. The next notable incident occurred in 2014, when the plaintiff noticed Laura Botoff walking along their shared boundary with a man who appeared to be measuring for a fence. The plaintiff testified that he went outside to ask Laura Botoff whether they were measuring for a fence and that, when she responded that they were, he reminded her that she needed approval from the agency before building anything in the wetlands. According to the plaintiff, Laura Botoff became agitated, at which point the plaintiff left and called the agency to report the defendants' plans for a fence. Again, Laura Botoff's recollection differs. According to her testimony, she calmly explained that she understood that she could build the fence as long as she received the proper permits, and, after the plaintiff returned to his house, she called the Greenwich Police Department to file a complaint. Shortly after this incident, the defendants applied to the agency for a permit to build the fence. The agency issued the permit over the plaintiff's opposition. In June, 2014, the plaintiff commenced the underlying action, seeking injunctive relief pursuant to § 52-480. In August, 2014, the defendants installed the fence. In February, 2017, following a two day bench trial, at which all parties and their respective expert appraisers testified, the court rendered judgment in favor of the plaintiff and against the defendants. In its memorandum of decision, the court found that the plaintiff had met his burden of proof with respect to his claim under § 52-480 and, as injunctive relief, ordered the defendants to remove the fence and to restore the surrounding area to its previous condition. This appeal followed. Additional facts will be set forth as necessary. I On appeal, the defendants first claim that the court erroneously determined that the plaintiff was entitled to an injunction pursuant to § 52-480. Specifically, they argue that the court, in determining that the defendants had erected the fence maliciously and with the intent to injure the plaintiff's enjoyment of his land, relied on clearly erroneous subordinate findings, namely, that the fence is useless, impairs the plaintiff's enjoyment of his property, and is out of character with the neighborhood. The plaintiff argues, to the contrary, that the evidence adequately supports the court's findings. We agree with the plaintiff. A We begin by setting forth the standard of review and relevant law. "When the factual basis of a trial court's decision . is challenged, our function is to determine whether, in light of the pleadings and evidence in the whole record, these findings of fact are clearly erroneous.... A finding of fact is clearly erroneous when there is no evidence in the record to support it . or when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.... In making this determination, every reasonable presumption must be given in favor of the trial court's ruling." (Internal quotation marks omitted.) Chase & Chase, LLC v. Waterbury Realty, LLC , 138 Conn. App. 289, 296, 50 A.3d 968 (2012). "The Connecticut progenitor of what have commonly been called the spite fence cases appears to be Whitlock v. Uhle , 75 Conn. 423, 53 A. 891 (1903).... In [ Whitlock ], our Supreme Court construed and applied the predecessors to General Statutes § 52-480 and 52-570 and set forth the elements necessary to state a cause of action under § 52-480 and 52-570. The court held that the essential elements are: (1) a structure erected on the [defendant's] land; (2) a malicious erection of the structure; (3) the intention to injure the enjoyment of the adjacent landowner's land by the erection of the structure; (4) an impairment of the value of adjacent land because of the structure; (5) the structure is useless to the defendant; and (6) the enjoyment of the adjacent landowner's land is in fact impaired." (Footnote added; footnotes omitted; internal quotation marks omitted.) Id., at 302, 50 A.3d 968. The plaintiff bears the burden of demonstrating each of these elements by a fair preponderance of the evidence. See Rutka v. Rzegocki , 132 Conn. 319, 322, 43 A.2d 658 (1945) ; see generally Deane v. Kahn , 179 Conn. App. 58, 73-74, 178 A.3d 403 (2018) (plaintiff bears burden of proof). In its memorandum of decision, the court set forth the six Whitlock elements, found facts relating to each, and concluded that the plaintiff had satisfied his burden with respect to all six elements. The court began its analysis by stating that, with respect to the first element, "it is undisputed that the fence is a 'structure' that was erected on the [defendants'] property." The court then noted that the remaining Whitlock elements were "interrelated to a large extent, with the court's findings on the last three [elements] serving to inform the court's analysis on the issues of malice and intent" and, accordingly, analyzed those three elements first. After concluding that "the fence has impaired the value of the [plaintiff's] property; the fence is useless to the [defendants]; and the fence has impaired the enjoyment of the [plaintiff's] property," the court turned to the remaining two elements. In determining that the plaintiff demonstrated that the defendants had maliciously erected the fence, the court relied on the following facts: "[T]he [defendants] have erected a stockade style fence along 103 feet of the boundary between their property and the [plaintiff's] property. They did not install a fence anywhere else on their property. The fence was installed across a previously unspoiled wooded area and wetlands. It blocks [the plaintiff's] view of the natural surroundings and intrudes upon his enjoyment of his own property. The fence is out of character for the neighborhood. It does not provide privacy, safety or security to the [defendants]. Accordingly, the court finds that the fence was maliciously erected." Similarly, the court based its finding that "the [defendants] intended to injure the enjoyment of the [plaintiff's] property when they erected the fence" on the following: "As the court has found, the fence impairs the value of the [plaintiff's] property and [the plaintiff's] enjoyment of the property. The fence is unsightly and out of character in the parties' residential neighborhood. The fence is useless to the [defendants]." On appeal, the defendants do not directly challenge the court's conclusion that the plaintiff satisfied the last three Whitlock elements. Instead, the defendants challenge the court's "subordinate findings" of uselessness, impairment of the plaintiff's enjoyment of his property, and the fence being out of character with the neighborhood, to the extent that those findings support the court's conclusions that the fence was erected maliciously and with the intent to injure the plaintiff's enjoyment of his land. We address these "subordinate findings" in turn. Initially, we note that when determining whether the plaintiff has met his burden with respect to the second and third elements of the Whitlock test, the court does not "journey deep into the defendant's heart." Geiger v. Carey , Superior Court, judicial district of Litchfield, Docket No. CV-11-5007327-S, 2015 WL 1283233 (February 25, 2015) (reprinted at 170 Conn. App. 459, 487, 154 A.3d 1093 [2017] ). "Whether a structure was maliciously erected is to be determined rather by its character, location and use than by an inquiry into the actual motive in the mind of the party erecting it." DeCecco v. Beach , 174 Conn. 29, 32, 381 A.2d 543 (1977) ; see also Gallagher v. Dodge , 48 Conn. 387, 393, 40 Am. Rep. 182 (1880) ("The inquiry into and adjudication upon a man's motives has always been regarded as beyond the domain of civil jurisprudence, which resorts to presumptions of malice from a party's acts instead of enquiring into the real inner workings of his mind. When, therefore, we enquire how far a man was actuated by malice in erecting a structure upon his own land, we are enquiring after something that it will always be very difficult to ascertain, unless we adopt, as in other cases where the courts enquire after malice, a presumption of malice from the act done."). Similarly, assessing whether the defendants possessed the requisite intent to injure "relates to the thing done, its purpose and effect, and does not depend on the existence or nonexistence of personal spite or ill-will." Whitlock v. Uhle , supra, 75 Conn. at 427, 53 A. 891. "It is quite possible for a structure to bear on its face . convincing evidence that it was intended for a legitimate purpose, or that it was intended to injure the adjacent land and its owner.... The intention is not the motive from which it may have sprung, but the established purpose, from whatever motive, to use the land in a manner not justified by its ownership, and forbidden by law.... The intent to injure is determined mainly from the fact that the structure does impair the value of the adjacent land and injure the owner in its use, from the absence of any real usefulness of the structure . to the defendant, and from the character, location and surroundings of the structure itself ." (Citation omitted; internal quotation marks omitted.) DeCecco v. Beach , supra, 174 Conn. at 32, 381 A.2d 543. "When a structure, useless to the owner, injuring adjacent land and its owner, intended to work such injury, is wilfully erected, it is maliciously erected; that is, it is erected in knowing disregard of the law and the rights of others." Whitlock v. Uhle , supra, 75 Conn. at 427, 53 A. 891. "[O]nce it is established that malice was the primary motive in [the fence's] erection, the fact that it also served to protect the [defendants'] premises from observation must be regarded as only incidental, since to hold otherwise would be to nullify the statutes." DeCecco v. Beach , supra, at 32-33, 381 A.2d 543. B We first address the defendants' argument that the court based its determinations of malice and intent to injure on a clearly erroneous finding that the fence is useless. In determining that the fence "does not provide privacy, safety or security" to the defendants and is, instead, useless, the court relied on the findings of fact that it had recited when concluding that the plaintiff had satisfied the fifth Whitlock element, i.e., uselessness of the structure. The defendants rely primarily on Laura Botoff's testimony as support for their argument that the court's finding of uselessness was clearly erroneous. As an initial matter, the defendants seem to suggest that uselessness of a structure cannot be found if the owner of the structure merely articulates an ostensibly useful purpose. We reject this argument. Uselessness under § 52-480 focuses on whether the structure serves an actual use, not whether the defendants can merely assert a purpose for erecting the structure. See, e.g., DeCecco v. Beach , supra, 174 Conn. at 32, 381 A.2d 543 ("intent to injure is determined . [inter alia] from the absence of any real usefulness of the structure" [emphasis added] ); Harbison v. White , 46 Conn. 106, 109 (1878) (rejecting defense to malice element-that structure screened defendants' premises from persons occupying plaintiff's house-because "[t]o concede this would be to nullify the statute; for it is not possible for malice to conceive any kind or form of structure which would not in some measure protect premises from observation"); see also Panagos v. Cooke , Superior Court, judicial district of Fairfield, Docket No. CV-03-0405596-S, 2006 WL 391532 (February 9, 2006) (notwithstanding fact that fence was erected to prevent intruders from entering defendant's property, fence was deemed spite fence because its construction allowed intruders to enter property at various other locations); Brabant v. McCarthy , Superior Court, judicial district of Litchfield, Docket No. CV-96-0070352, 1996 WL 488921 (August 9, 1996) (although fence was erected to prevent neighbors from trespassing on property, portion of fence was deemed spite fence because defendants could not "plausibly argue [it was] of benefit to them"); Horan v. Farmer , Superior Court, judicial district of New Haven, Docket No. 30-29-95 (October 31, 1990) (notwithstanding fact that fence was erected for privacy and to prevent vandalism, fence was deemed spite fence because other factors indicated primary motive was malice). At trial, Laura Botoff testified that she and her husband had erected the fence to provide privacy and safety for them and their children; she testified that the fence does, in fact, serve its intended purposes. For instance, she stated that the fence "deters other people from coming into the yard and it allows for the children to feel more secure because we do have privacy ." Further, she testified that the fence in question, combined with the deer fence erected on the Betters' property and the wetlands separating their property from that of the plaintiff and the Zorthians, prevents the defendants' children from leaving their property. On cross-examination, however, Laura Botoff admitted that, because the fence only ties into the Betters' deer fence on one end and does not connect to any other fencing at the other end, the children could leave their property by crossing the wetlands and going around the end of the fence onto the plaintiff's property. Likewise, she conceded that the way the fence exists now someone on the plaintiff's side of the property could walk around it and get to the defendants' side of the property, and the fence does not prevent someone standing in the defendants' yard from viewing the plaintiff's property. This portion of her testimony was consistent with the plaintiff's testimony that anyone could walk around the ends of the fence to enter his property from the defendants' property and that, because the parties' properties slope downward toward the fence, "when you stand on the sloping topography that is [his] yard and [his] lawn at that point, you can clearly see right over the fence into the [defendants'] backyard." Likewise, the court's description of the fence is consistent with these portions of Laura Botoff's and the plaintiff's testimony. In its memorandum of decision, the court noted that, although the defendants erected the fence for privacy and safety, "[t]he fence as installed does not extend along the entire boundary between the [plaintiff's] property and the [defendants'] property. There is a narrow space between the end of the fence and the Betters' mesh deer fence on the eastern side of the [defendants'] property. The opening at the other end, near the Zorthian[s'] property, is approximately fifty-seven feet wide.... The fence does not block the view from the [plaintiff's] property of the [defendants'] house, patio, and backyard. Apart from any obstruction due to the natural vegetation, there is a clear sight line from one yard to the other because the properties slope down toward their common boundary. The fence would have to be substantially higher to block or screen the view entirely." The court was free to reject parts of Laura Botoff's testimony and to credit the plaintiff's. See, e.g., Normand Josef Enterprises, Inc. v. Connecticut National Bank , 230 Conn. 486, 507, 646 A.2d 1289 (1994) ("[It] was for the trial court to weigh the evidence and determine the credibility of the witnesses.... A trier of fact is free to reject testimony even if it is uncontradicted . and is equally free to reject part of the testimony of a witness even if other parts have been found credible." [Citations omitted; internal quotation marks omitted.] ). Upon review of the evidence, we are not "left with the definite and firm conviction that a mistake has been committed." (Internal quotation marks omitted.) Chase & Chase, LLC v. Waterbury Realty, LLC , supra, 138 Conn. App. at 296, 50 A.3d 968. Accordingly, we conclude that the court's finding of "the absence of any real usefulness" of the fence; (emphasis added) DeCecco v. Beach , supra, 174 Conn. at 32, 381 A.2d 543 ; was not clearly erroneous. C We next turn to the defendants' argument that the court based its findings of malice and intent to injure on a clearly erroneous finding that the fence impairs the plaintiff's enjoyment of his property. Similar to the court's finding of uselessness in the context of its determination of malice and intent to injure, the court did not recite independent facts when it found that the fence "intrudes upon [the plaintiff's] enjoyment of his property" and, therefore, was erected maliciously with an intent to injure the plaintiff. Instead, the court relied on the findings that it had recited when concluding that the plaintiff had satisfied the sixth Whitlock element, i.e., impairment of the plaintiff's enjoyment of his land. In challenging this finding, the defendants primarily argue that the plaintiff has not suffered any objective harm, such as an interference with the flow of light or air across, or the increased risk of damage from rain or snow to, his property. According to the defendants, the only harm suffered by the plaintiff was an impaired view of the defendants' backyard. As the court noted, "[t]he use and enjoyment of property may . be impaired by the intrusion of an unsightly structure into a vista that was formerly unspoiled." See, e.g., DeCecco v. Beach , supra, 174 Conn. at 30-31, 381 A.2d 543. Although the court stated that this "fence itself may not be ugly as far as stockade fences are concerned," it nevertheless credited the plaintiff's testimony and found that the fence impairs his enjoyment of his property. The plaintiff testified extensively about the aesthetics of the wooded area and wetlands surrounding his home prior to the defendants' erection of the fence. He submitted several photographs of the area into evidence, including photographs depicting the dense woods separating the parties' properties and of the fence running along the border between their yards and cutting across the wetlands and stream. As the plaintiff and his expert testified, the plaintiff had designed several rooms of his house to afford views of these wetlands. The fence, therefore, is clearly visible from these rooms, as well as from his yard and when pulling up to the front of the house. The plaintiff testified that he had purchased this property because of the "natural wooded surroundings" and that if he "had seen . a stockade fence . [he] would not have purchased the property." We again note that it is within the province of the trial court to assess the credibility of the witnesses; see, e.g., Normand Josef Enterprises, Inc. v. Connecticut National Bank , supra, 230 Conn. at 507, 646 A.2d 1289 ; and that the court credited the plaintiff's testimony. Upon review of the evidence and in giving "every reasonable presumption . in favor of the trial court's ruling," we are not convinced "that a mistake has been committed." (Internal quotation marks omitted.) Chase & Chase, LLC v. Waterbury Realty, LLC , supra, 138 Conn. App. at 296, 50 A.3d 968. Accordingly, we conclude that the court's finding that the fence impairs the plaintiff's enjoyment of his property was not clearly erroneous. D Finally, we address the defendants' argument that the court clearly erred in finding that "[t]he fence is . out of character in the parties' residential neighborhood." In its memorandum of decision, the court described the fence and surrounding area, noting that "[b]oth properties are located in the Greenwich RA 2 zoning district, which is a two acre zoning district." The court proceeded to describe the natural wooded area and the "old fieldstone farmer's wall between the two properties." The fence, which runs along this fieldstone wall, "is a stockade style fence with a natural wood finish and capped posts between the fence sections." Nevertheless, the court noted that the plaintiff "described the fence as a commercial grade, stockade fence, of the type that he was accustomed to seeing beside a supermarket, not in a residential area" and that "he had not seen similar fences in the Rockwood Lane neighborhood, although the house across the street from the [plaintiff's] property has an old four foot tall stockade type pool fence, which he understood was required by the town of Greenwich." The court heard conflicting testimony from the parties and their experts concerning the character of the neighborhood. According to the plaintiff, "on average, the homes [in this neighborhood] are worth anywhere between . four and seven million dollars," and his property "would achieve at least five million dollars in the market." Although the defendants' expert testified that fences are "not uncommon in Connecticut, in Greenwich" and that the property across the street from the plaintiff has a stockade fence, the plaintiff's expert testified that stockade fences "are rare in property values such as this neighborhood." In discussing the testimony of the parties' respective experts regarding the impact of the fence on property values, the court explicitly credited the testimony of the plaintiff's expert. The court stated "that the fence caused the [plaintiff's] property to lose a beneficial wooded view, which reduced the value of the [plaintiff's] property by 1 to 5 percent." Laura Botoff testified that the Betters and Mickleys had installed fences on their properties, which conflicted with the plaintiff's testimony that he had not seen fences like this elsewhere in his neighborhood of Rockwood Lane. When questioned about the fence across the street from his house, the plaintiff described it as an old, approximately four foot tall pool fence that, for the most part, is not visible from the street and would be removed as soon as the owners remove the pool that it encloses. Although the court received evidence of other fences in the neighborhood, "[w]e cannot second-guess the trial court's assessment of the credibility of the witnesses . It is the trial court which had an opportunity to observe the demeanor of the witnesses and parties; thus, it is best able to judge the credibility of the witnesses and to draw necessary inferences therefrom." (Internal quotation marks omitted.) Normand Josef Enterprises, Inc. v. Connecticut National Bank , supra, 230 Conn. at 507, 646 A.2d 1289. Upon review of the evidence in the record, we are not firmly convinced "that a mistake has been committed"; (internal quotation marks omitted) Chase & Chase, LLC v. Waterbury Realty, LLC , supra, 138 Conn. App. at 296, 50 A.3d 968 ; and, therefore, the court's finding in this regard is not clearly erroneous. In sum, the court did not clearly err with respect to any of the subordinate findings challenged by the defendants in connection with the second and third Whitlock elements, i.e., malice and intent to injure. We therefore affirm the court's conclusion that the plaintiff was entitled to an injunction pursuant to § 52-480. II The defendants also claim that the court erred by ordering them to "restore the area in which the fence was erected to its previous condition." They argue that the plaintiff abandoned this request for relief, the court exceeded its statutory authority by ordering "the landowner to do anything other than take down the offending structure," and the order is impermissibly vague. These arguments are unavailing. The defendants first contend that the plaintiff had abandoned seeking the relief ordered by the court because he did not explicitly mention this particular relief in his trial management report, at trial, or in his posttrial brief. "[T]he scope and quantum of injunctive relief rests in the sound discretion of the trier ." DeCecco v. Beach , supra, 174 Conn. at 35, 381 A.2d 543. The plaintiff's complaint specifically sought, in relevant part, "[p]ermanent injunctive relief ordering the [defendants] . to remove any construction work to date and to restore the wetlands and watercourse area to its previous condition ." See, e.g., Levesque Builders, Inc. v. Hoerle , 49 Conn. App. 751, 758, 717 A.2d 252 (1998) ("general rule is that a prayer for relief must articulate with specificity the form of relief that is sought" [internal quotation marks omitted] ). The plaintiff clearly requested the relief granted, and "there is nothing in the record which discloses that the plaintiff ever abandoned" that request. Varley v. Varley , 170 Conn. 455, 459, 365 A.2d 1212 (1976). Accordingly, this argument fails. The defendants' second argument is that the court lacked the authority to grant such relief. "Any determination regarding the scope of a court's . authority to act presents a question of law over which our review is plenary." Tarro v. Mastriani Realty, LLC , 142 Conn. App. 419, 431, 69 A.3d 956, cert. denied, 309 Conn. 912, 69 A.3d 308, 309 (2013). Section 52-480 provides in relevant part that the court has the authority to order "[a]n injunction . against the malicious erection . of any structure . intended to annoy and injure any owner or lessee of adjacent land in respect to his use or disposition of the same." The defendants rely on DeCecco v. Beach , supra, 174 Conn. at 35, 381 A.2d 543, for the proposition that § 52-480 does not permit an injunction beyond the removal of the offending structure. In that case, however, our Supreme Court found error in an order "enjoining the building of any other structures on that portion of the land from which it ordered removal of the fence since that part of the judgment went beyond the relief to which the plaintiff was entitled under the statutes." Id. The injunctive relief at issue in this case is materially different in that the court ordered the defendants to return the land to its prior condition, which is remedial in nature and consistent with the well settled principle that the effect of § 52-480"should not be extended beyond the evil it was intended to remedy." Whitlock v. Uhle , supra, 75 Conn. at 426, 53 A. 891. Simply stated, we conclude that the relief ordered by the court falls within the statutory authority conferred by § 52-480. The defendants' final argument is that the order is impermissibly vague because "the record does not address how the [defendants'] property appeared in a manner by which compliance-or lack of compliance-with the trial court's permanent injunction could be reasonably assessed." Following the issuance of the court's memorandum of decision, the defendants did not file any motion seeking clarification of this order. Additionally, as previously noted, the plaintiff testified extensively as to the area's appearance prior to the installation of the fence and entered several photographs of the area into evidence. Accordingly, we conclude that this injunction is not "so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application ." (Internal quotation marks omitted.) Gabriel v. Gabriel , 324 Conn. 324, 339, 152 A.3d 1230 (2016). The judgment is affirmed. In this opinion the other judges concurred. General Statutes § 52-480 provides: "An injunction may be granted against the malicious erection, by or with the consent of an owner, lessee or person entitled to the possession of land, of any structure upon it, intended to annoy and injure any owner or lessee of adjacent land in respect to his use or disposition of the same." Although the defendants had applied for, and the Greenwich Inland Wetlands and Watercourses Agency had issued, a permit for a 110 foot fence, the agency later decided that the fence could be only 103 feet long. In June, 2014, the plaintiff appealed from the agency's decision to the Superior Court, which action the court dismissed in July, 2015. See Errichetti v. Inland Wetlands & Watercourses Agency , Superior Court, judicial district of Stamford-Norwalk, Docket No. FST-CV-14-6022517-S, 2015 WL 5626416 (July 28, 2015) (60 Conn. L. Rptr. 892). The plaintiff did not appeal from that dismissal to this court. Whereas § 52-480 provides for injunctive relief for the malicious erection of a structure, § 52-570 provides a legal remedy therefor. See, e.g., Geiger v. Carey , Superior Court, judicial district of Litchfield, Docket No. CV-11-5007327-S, 2015 WL 1283233 (February 25, 2015) (reprinted at 170 Conn. App. 459, 466, 154 A.3d 1093 [2017] ). This case concerns solely § 52-480. In their brief to this court, the defendants argue that "[b]ecause the subordinate facts necessary for [the court's] finding [of intent to injure] are essentially the same as those required for a finding of malice, and because the subordinate findings analyzed [with respect to malice] . are clearly erroneous, the trial court's finding that the [defendants] intended to injure [the plaintiff's] land was also in error." The defendants do not provide additional analysis specific to their claim regarding the intent to injure element. We likewise analyze these two claims together. With respect to the fence's uselessness, the court found that "the fence does not completely enclose the [defendants'] property. The [defendants] did not erect a fence on the eastern boundary of their property with the Better[s'] property, or on the western boundary with the Zorthian[s'] property, or on the southern boundary with the Mickley[s'] property. The fence extends for only 103 feet on the southern border of the [defendants'] property, which is less than two thirds of the 160 foot boundary between the [defendants'] and [the plaintiff's] properties. "The fence does not prevent the [defendants'] children from exploring the [plaintiff's] property or the rest of the neighborhood. Similarly, the fence does not block anyone from entering the [defendants'] property through the [plaintiff's] property. The [defendants'] children-and anyone else-can venture from the [defendants'] property to the [plaintiff's] property and back through the fifty-seven feet of the border that remains unfenced.... The [defendants'] house, patio, and backyard are as visible from the [plaintiff's] property as they were before the fence was erected." The defendants also argue that the court misapprehended the law by concluding that "a 'spite fence' may serve some purpose yet still be objectionable." The defendants seemingly argue that where a structure serves a use, the plaintiff must show malice in fact. The defendants, however, fail to recognize that the court found, as a matter of fact, that the fence in question does not serve a use. Additionally, as previously noted, our Supreme Court has stated that "[w]hether a structure was maliciously erected is to be determined rather by its character, location and use than by an inquiry into the actual motive in the mind of the party erecting it." DeCecco v. Beach , supra, 174 Conn. at 32, 381 A.2d 543. Accordingly, the defendants' argument fails. With respect to this element, the court found that "[t]he fence blocks the view from the [plaintiff's] property of the natural surroundings that [the plaintiff] previously enjoyed. The fence is out of character for the surrounding area-described by [the plaintiff's expert] as having a park-like aesthetic-and it starkly intrudes upon what would otherwise be an unspoiled vista. [The plaintiff] testified that it is impossible to look into his yard without seeing the fence. While the fence itself may not be ugly as far as stockade fences are concerned-it is new and apparently well-constructed-it is unsightly as installed across 103 feet of woodland and wetlands on the boundary between two residential properties in the Greenwich RA 2 zoning district." In addition to arguing that the evidentiary basis for the court's finding was insufficient, the defendants argue that this finding was clearly erroneous because the statute and relevant case law do not provide a landowner with the right to a view of a neighbor's property. Similarly, the defendants argue that the court erroneously construed the statute broadly by ordering the defendants to remove the fence based on its interference with the plaintiff's interest in a view onto their property. See, e.g., Willoughby v. New Haven , 123 Conn. 446, 454, 197 A. 85 (1937) ("operation of a statute in derogation of the common law is to be limited to matters clearly brought within its scope"). The defendants premise this argument on the fact that their "[r]esearch has not revealed a case where . § 52-480 was successfully invoked on the grounds that a structure obstructed an adjoining property owner's view onto her neighbor's property itself." These arguments misconstrue the court's memorandum of decision. The court considered the fence's effect on the plaintiff's view of the surrounding woods and wetlands, some of which is situated on the defendants' property, when finding that the fence impairs the plaintiff's enjoyment and value of his property. Contrary to the defendants' arguments, the court did not find that the plaintiff has a right to a view of their land. Additionally, as our Supreme Court has noted, "[i]t is only incidental that the plaintiff, having established the elements necessary for relief under the [statute], might acquire in the process a . view" of the defendants' land. DeCecco v. Beach , supra, 174 Conn. at 34, 381 A.2d 543 (rejecting defendant's argument that judgment in favor of plaintiff created unlawful visual easement across defendant's land where portion of fence that obstructed plaintiff's view of river was spite fence). Accordingly, these arguments fail. The plaintiff argues that this claim is unreviewable because the defendants failed to seek an articulation of the court's basis for this portion of the order. Although Practice Book § 61-10 places the burden on "the appellant to provide an adequate record for review," that section provides in relevant part that "[t]he failure of any party on appeal to seek articulation pursuant to Section 66-5 shall not be the sole ground upon which the court declines to review any issue or claim on appeal." We therefore reject this argument.

12493435

Jose ESTELA v. BRISTOL HOSPITAL, INC.

Estela v. Bristol Hosp., Inc.

2018-01-09

AC 38813

595

611

180 A.3d 595

180

West's Atlantic Reporter, Third Series

Connecticut Appellate Court

Connecticut

2021-08-27T20:57:29.942366+00:00

Fastcase

Jose ESTELA v. BRISTOL HOSPITAL, INC.

Jose ESTELA v. BRISTOL HOSPITAL, INC. AC 38813 Appellate Court of Connecticut. Argued September 18, 2017 Officially released January 9, 2018 Joseph B. Burns, with whom, on the brief, was Pamela A. LeBlanc, for the appellant (plaintiff). Holly L. Cini, with whom were Sara R. Simeonidis and, on the brief, Jillian R. Orticelli, for the appellee (defendant). Lavine, Keller and Harper, Js.

8164

50447

HARPER, J. This appeal is the latest installment in a long and protracted litigation between the parties. The plaintiff, Jose Estela, a physician, appeals from the trial court's judgment that his case could not be maintained under the accidental failure of suit statute, General Statutes § 52-592(a), because his first action against the defendant, Bristol Hospital, Inc., was dismissed for "serious disciplinary reasons" and not as a matter of form. On appeal, the plaintiff claims that (1) the defendant waived the right to challenge the applicability of § 52-592(a) ; (2) the court incorporated a different and higher standard into its decision and thus deprived him of his rights under Ruddock v. Burrowes , 243 Conn. 569, 706 A.2d 967 (1998), by limiting the § 52-592(a) hearing to the standard set forth in General Statutes § 52-212 ; (3) his alleged discovery noncompliance occurred in circumstances such as mistake, inadvertence, or excusable neglect; and (4) § 52-592(a) applies to any judgment of nonsuit. We disagree and, accordingly, affirm the judgment of the trial court. The relevant procedural history is as follows. Prior to commencing the present action, the plaintiff commenced his first action, Estela v. Bristol Hospital, Inc ., Superior Court, judicial district of New Britain, Docket No. CV-11-6013260-S (Estela I ), on November 3, 2011, alleging that the defendant improperly had restricted his hospital privileges and engaged in anticompetitive behavior by stealing his patients. The complaint set forth causes of action for tortious interference with business expectancies, breach of contract, breach of the covenant of good faith and fair dealing, tortious interference with contractual relations, and defamation. As the court in the present action, Young, J ., noted, Estela I "was heavily litigated, with well over 100 filings before it was ultimately terminated by the court, Swienton, J ., [on October 28, 2013] for the plaintiff's failure to comply with the court's deadlines [set forth in two court orders]." On November 1, 2013, the plaintiff filed a motion for reargument or reconsideration of the entry of nonsuit, which the court in Estela I denied on November 18, 2013. The plaintiff then filed a motion to open the nonsuit on November 27, 2013, which the court denied on December 16, 2013. On January 7, 2014, the plaintiff filed a motion for reconsideration or reargument of the denial of the motion to open, which the court denied on January 21, 2014. On February 10, 2014, the plaintiff appealed from the judgment denying his motion for reconsideration of the denial of the motion to open. This court dismissed the appeal as moot because the plaintiff did not "challenge the court's finding that he failed to show that he was prevented from prosecuting his action because of mistake, accident, or other reasonable cause"; Estela v. Bristol Hospital, Inc ., 165 Conn. App. 100, 107, 138 A.3d 1042, cert. denied, 323 Conn. 904, 150 A.3d 681 (2016) ; which prevented this court from affording him practical relief, even if the plaintiff's claims were resolved in his favor. Id., at 108, 138 A.3d 1042. Prior to the resolution of the plaintiff's appeal from the judgment rendered in Estela I , on October 24, 2014, the plaintiff commenced the present action, which was essentially identical to Estela I , relying on § 52-592(a), in avoidance of any claim that his causes of action would be time barred by the applicable statutes of limitations. On December 16, 2014, the defendant filed a motion for summary judgment. In its memorandum of law in support of the motion for summary judgment, the defendant argued, in relevant part, that the applicable statutes of limitations barred the plaintiff's claims and assumed that the plaintiff was relying on the savings provisions of § 52-592(a), though the defendant did not explicitly challenge the applicability of the statute. On February 26, 2015, prior to the plaintiff's filing an objection to the motion for summary judgment or action by the court, the defendant filed a motion for an order to bifurcate the trial, pursuant to General Statutes § 52-205 and Practice Book § 15-1, to try the plaintiff's claim that his action was not time barred due to § 52-592(a) separately from the merits of the underlying tort and breach of contract claims. On March 12, 2015, the plaintiff filed an objection to the defendant's motion for an order to bifurcate on the grounds that on multiple occasions the defendant had waived its right to challenge the applicability of § 52-592(a) and was estopped from doing so by way of a motion to bifurcate. No immediate action was taken on the defendant's motion to bifurcate or the plaintiff's objection. On June 23, 2015, the court overruled the plaintiff's objection to the defendant's motion for an order to bifurcate and scheduled an evidentiary hearing on the issue of whether § 52-592(a) applies to the plaintiff's case. The evidentiary hearing took place on August 3, 2015. At the court's request, the parties filed posthearing briefs on August 10, 2015. On August 17, 2015, the court determined that, under the applicable analysis set forth in Ruddock v. Burrowes , supra, 243 Conn. at 569, 706 A.2d 967, § 52-592(a) did not apply to the plaintiff's case because "Estela I was not dismissed as a matter of form ." The court found that "[because Estela I ] was terminated for serious disciplinary reasons and not because of mistake, inadvertence or excusable neglect . the viability of this action cannot be based upon . [ § 52-592(a) ]." This appeal followed. Additional facts and procedural history will be set forth as necessary. I We first address the plaintiff's claim that the defendant waived its right to challenge the applicability of § 52-592 (a) by failing to raise the statute of limitations as a special defense, in a motion to dismiss, or in its motion for summary judgment. The plaintiff further claims that a motion to bifurcate was the improper vehicle to challenge the applicability of § 52-592(a). We disagree. Absent § 52-592(a), the causes of action set forth in the plaintiff's complaint in the present case were time barred by the applicable statutes of limitations in General Statutes § 52-577 and 52-597, which the defendant asserted, contrary to the plaintiff's claim, in its December 16, 2014 memorandum of law in support of its motion for summary judgment. " Section 52-592(a) allows a plaintiff to commence a new action for the same cause, within one year, if the original action failed to be tried on its merits . for any matter of form . Deemed a saving statute, § 52-592 enables plaintiffs to bring anew causes of action despite the expiration of the applicable statute of limitations." (Internal quotation marks omitted.) Vestuti v. Miller , 124 Conn. App. 138, 143, 3 A.3d 1046 (2010). "Pursuant to . § 52-205 and Practice Book § 15-1, the trial court may order that one or more issues that are joined be tried before the others. The interests served by bifurcated trials are convenience, negation of prejudice and judicial efficiency. . Bifurcation may be appropriate in cases in which litigation of one issue may obviate the need to litigate another issue. . The bifurcation of trial proceedings lies solely within the discretion of the trial court." (Footnotes omitted; internal quotation marks omitted.) Dumas v. Mena , 82 Conn. App. 61, 64, 842 A.2d 618 (2004). Because "[b]ifurcation of trial proceedings lies solely within the discretion of the trial court . appellate review is limited to a determination of whether that discretion has been abused." (Citations omitted; internal quotation marks omitted.) O'Shea v. Mignone , 50 Conn. App. 577, 582, 719 A.2d 1176, cert. denied, 247 Conn. 941, 723 A.2d 319 (1998). "In determining whether the trial court has abused its discretion, we must make every reasonable presumption in favor of the correctness of its action." (Internal quotation marks omitted.) Id., at 583, 719 A.2d 1176. "[T]he ultimate issue is whether the court could reasonably conclude as it did ." (Internal quotation marks omitted.) Saczynski v. Saczynski , 109 Conn. App. 426, 428, 951 A.2d 670 (2008). Our precedent demonstrates that the question of whether § 52-592(a) applies may be addressed through a motion for an order to bifurcate. In Plante v. Charlotte Hungerford Hospital , 300 Conn. 33, 40-41, 12 A.3d 885 (2011), the applicability of § 52-592(a) initially was challenged in a motion to dismiss and a motion for summary judgment, both of which were denied by the trial court. Thereafter, "[f]ollowing discovery and numerous revisions to the operative complaint, the trial court . granted the hospital defendants' motion pursuant to General Statutes § 52-206 and Practice Book § 15-1 to bifurcate the proceedings, and to try the claim that the action was saved by § 52-592(a) separately from the malpractice claims." Id., at 41, 12 A.3d 885. On appeal, the Supreme Court upheld the court's determination that § 52-592 (a) did not save the plaintiff's action. Id., at 39, 12 A.3d 885. Similarly here, the defendant's first response to the plaintiff's complaint was to file a motion for summary judgment, in which it argued that the applicable statutes of limitations barred the plaintiff's claims. The court never rendered a decision on the defendant's motion for summary judgment because the defendant filed a motion for an order to bifurcate the trial to determine whether § 52-592(a) saved the plaintiff's case. The court determined that the question of whether § 52-592(a) applied was a dispositive issue. Thus, in the present case, as in Plante , the court ultimately addressed the issue of the applicability of § 52-592(a) through a motion to bifurcate. The plaintiff also argues that the court was wrong to "recast" the defendant's motion for an order to bifurcate as a dispositive motion. We disagree. It was within the court's discretion to bifurcate the proceedings and address the issue of the applicability of § 52-592 (a) apart from the issues being tried on the merits in the interests of judicial efficiency. See Dumas v. Mena , supra, 82 Conn. App. at 64, 842 A.2d 618 ; see also Reichhold Chemicals, Inc . v. Hartford Accident & Indemnity Co ., 243 Conn. 401, 423-24, 703 A.2d 1132 (1997). In its memorandum of decision, the court noted that "[t]o allow this action to proceed through the same extensive litigation [as Estela I ] only to have the court determine thereafter that it cannot be saved by [ § 52-592(a) ] would be a waste of the time and resources of the parties and the court. . The issue before the court at this time is whether the action may be saved by [ § 52-592(a) ]." Given that the plaintiff's claim would be time barred if § 52-592(a) did not apply; see Vestuti v. Miller , supra, 124 Conn. App. at 143, 3 A.3d 1046 (" § 52-592 enables plaintiffs to bring anew causes of action despite the expiration of the applicable statute of limitations . [but] to fall within the purview of § 52-592... the original lawsuit must have failed for one of the reasons enumerated in the statute" [internal quotation marks omitted] ); the court did not abuse its discretion in determining the applicability of § 52-592(a) apart from the issues being tried on the merits. II We next address the plaintiff's claim that the court incorporated a different and higher standard into its decision than the standard set forth in Ruddock v. Burrowes , supra, 243 Conn. 569, 706 A.2d 967. Specifically, the plaintiff asserts that he was deprived of his rights under Ruddock because "[r]ather than employing the 'mistake, inadvertence or excusable neglect' standard under § 52-592(a)... and requiring a determination as to whether the nonsuited party engaged in 'egregious conduct,' the court limited the issue to one of 'mistake, [accident] or reasonable cause' under a standard utilized under . § 52-212." We disagree. This court has opined that " § 52-592 and 52-212 have different purposes and, thus, employ different legal standards." Skinner v. Doelger , 99 Conn. App. 540, 559, 915 A.2d 314, cert. denied, 282 Conn. 902, 919 A.2d 1037 (2007). To open a nonsuit pursuant to § 52-212(a), a plaintiff must demonstrate that it was prevented from prosecuting its action by "mistake, accident or other reasonable cause ." General Statutes § 52-212(a). In contrast, the "matter of form" provision of § 52-592(a), as set forth in Ruddock , requires a plaintiff to demonstrate that the prior suit failed "in circumstances such as mistake, inadvertence or excusable neglect." Ruddock v. Burrowes , supra, 243 Conn. at 577, 706 A.2d 967. "[T]he question of whether the court properly applied § 52-592 presents an issue of law over which our review is plenary." Tellar v. Abbott Laboratories, Inc ., 114 Conn. App. 244, 249, 969 A.2d 210 (2009). "Under the plenary standard of review, we must decide whether the court's conclusions are legally and logically correct and supported by the facts in the record." Commissioner of Public Health v. Colandrea , 175 Conn. App. 254, 259-60, 167 A.3d 471, cert. denied, 327 Conn. 957, 172 A.3d 204 (2017). The plaintiff argues that the court improperly limited the August 3, 2015 evidentiary hearing on the applicability of § 52-592 to the "different and higher legal standard" set forth in § 52-212. In response, the defendant asserts that the court employed the correct standard and that the plaintiff "improperly conflates [the court's] discussion of the nonsuit in Estela I ." (Citations omitted.) The defendant further argues that the court's memorandum of decision belies any argument that the court applied the wrong standard. We agree with the defendant. To the extent that the plaintiff's argument rests on the standard quoted by the court during the August 3, 2015 evidentiary hearing, we note that our review of the hearing transcript reveals that the plaintiff did not object to the court's recitation of the § 52-212 standard, but instead, the plaintiff actually agreed with the court that it was reciting the correct standard. Additionally, although the court quoted the standard for § 52-212 at the evidentiary hearing, we cannot conclude that it did so in error. As the defendant asserts, in determining whether § 52-592(a) applied, it was necessary for the court in the present case to consider the court's reasons in Estela I for entering the nonsuit, including its analysis under § 52-212. During the August 3, 2015 evidentiary hearing, the court told counsel: "I need to know what the deficiencies were that form the basis of [the] ruling [by the court in Estela I ] on the motion for nonsuit." As this court noted in Skinner v. Doelger , supra, 99 Conn. App. 540, 915 A.2d 314, " § 52-592 and 52-212 have different purposes and, thus, employ different legal standards. There is a difference, however, between relying on the legal conclusions reached in an action and applying the legal standard that was employed in that action. . Indeed, we wonder how a court could determine why an earlier lawsuit failed without relying on the factual findings and legal conclusions drawn in that other action ." (Emphasis added.) Id., at 559, 915 A.2d 314. More importantly, in its memorandum of decision, the court applied the correct standard under Ruddock , and not the standard under § 52-212-demonstrating that it rendered a decision applying the correct standard. See Disciplinary Counsel v. Parnoff , 158 Conn. App. 454, 467, 119 A.3d 621 (2015) (rejecting plaintiff's claim that court applied incorrect standard because, inter alia, "the language used by the court in its memorandum of decision indicates that the court was aware of and correctly applied the [proper] standard"), aff'd, 324 Conn. 505, 152 A.3d 1222 (2016). In its memorandum of decision, the court set forth its factual basis before concluding: "For the reasons articulated above . [Estela I ] was terminated for serious disciplinary reasons and not because of mistake, inadvertence or excusable neglect . Therefore, the viability of this action cannot be based upon . § 52-592." (Emphasis added.) Accordingly, we reject the plaintiff's claim that the court incorporated a "different and higher" standard than that under Ruddock in rendering its decision on the applicability of § 52-592(a) to his case. III We next address the plaintiff's claim that the court erred in finding that his alleged discovery noncompliance did not occur in circumstances such as mistake, inadvertence, or excusable neglect. The plaintiff argues that the court overlooked that disciplinary dismissals are not categorically excluded from the relief afforded by § 52-592(a), and that the court did not consider his justifications for the alleged discovery noncompliance. The plaintiff further argues that the court's findings as to his conduct that led to the judgment of nonsuit are in clear error. We disagree. The following additional facts and procedural history are relevant to this claim. As summarized in the court's memorandum of decision: "On August 3, 2015, the court conducted an evidentiary hearing solely on the applicability of § 52-592 [and] the circumstances which led to the court's granting of the motion for judgment of nonsuit and denial of the motion to open nonsuit in Estela I . Based upon the nature and conduct of the plaintiff that led to the granting of the motion for judgment of nonsuit, the court determines that Estela I was not dismissed as a matter of form, but rather for serious disciplinary reasons. Therefore, the present action . cannot be maintained under § 52-592. The court sets forth its factual basis below. "In Estela I , the defendant served a disclosure request upon the plaintiff on May 30, 2012. On September 12, 2012, the plaintiff provided some responses and asserted untimely objections. On September 18, 2012, the defendant filed a motion to compel complete responses. The plaintiff filed an objection to the motion to compel, essentially asserting that he was a 'busy practicing physician'; that the defendant provided no guidance as to how to comply; that some of the information requested was privileged or unavailable; and that he had provided substantial compliance. . "On January 28, 2013, after [a] hearing, [the court] ordered the plaintiff to provide revised disclosure responses [by February 8, 2013]. The court further ordered the parties to return on February 25, 2013 'in order to advise the court whether the defendant is seeking further discovery.' On that date, again after [a] hearing, the court gave the plaintiff until March 29, 2013, to provide additional compliance with the discovery request. The primary compliance was to consist of tax returns and the report of the plaintiff's expert witness. As the plaintiff failed to comply with the court's order, the court entered a judgment of dismissal on October 28, 2013. "At the evidentiary hearing in [the present case], the sole witness was the plaintiff's counsel, Mary Alice Moore Leonhardt, [who] testified at length about discussions between the plaintiff's counsel and [the defendant's] counsel in Estela I concerning outstanding discovery issues. Much of these discussions centered on information which the plaintiff requested from the defendant in order to finalize a report of the plaintiff's expert. Attorney Leonhardt essentially claimed that the defendant's attorney led her down the primrose path by promising information which was never actually produced. Attorney Leonhardt assert[ed] that her reliance on the representations of [the defendant's] counsel caused her to be dilatory in complying with the court's order. . "As to the tax returns, Attorney Leonhardt testified that the plaintiff did not possess copies of the returns and was at the mercy of the Internal Revenue Service in order to comply with the court's order. She did not explain why the plaintiff failed to comply with the court's order to timely provide tax returns. At the very least, [the] plaintiff could have provided [the defendant's] counsel an authorization to obtain the returns directly from the Internal Revenue Service. "Attorney Leonhardt's assertions do not address the fact that the [court in Estela I ] had serially ordered the plaintiff's compliance by February 29, 2013, and March 29, 2013. As of September 27, 2013, the plaintiff still had not complied, nor had he complied a month later when [the court in Estela I ] granted the motion for nonsuit and entered judgment." (Footnote omitted.) On the basis of these facts, the court in the present case determined that "[t]he testimony of Attorney Leonhardt and the evidence presented fail[ed] to establish that the judgment was entered as a matter of form. Rather, it is clear that the judgment entered in Estela I was a disciplinary judgment. . The court in Estela I conducted several hearings and issued several orders commanding the plaintiff's compliance with discovery. Despite this, the plaintiff repeatedly ignored the court's orders, thereafter never filed anything to inform the court [that he] could not comply and never filed any motion for extension of time. After almost six months of noncompliance, the court entered a disciplinary dismissal of the action. This court cannot find that the plaintiff's counsel's failure to comply with the orders of Judge Swienton in Estela I was excused, excusable or accidental. . Estela I was terminated for serious disciplinary reasons and not because of mistake, inadvertence or excusable neglect. Therefore, the viability of this action cannot be based upon . § 52-592." (Footnote added.) "Disciplinary dismissals do not, in all cases, demonstrate the occurrence of misconduct so egregious as to bar recourse to § 52-592.... Whether the statute applies cannot be decided in a factual vacuum. To enable a plaintiff to meet the burden of establishing the right to avail himself or herself of the statute, a plaintiff must be afforded an opportunity to make a factual showing that the prior dismissal was 'a matter of form' in the sense that the plaintiff's noncompliance with a court order occurred in circumstances such as mistake, inadvertence or excusable neglect." (Citation omitted; footnote omitted.) Ruddock v. Burrowes , supra, 243 Conn. at 576-77, 706 A.2d 967. Thus, "it is appropriate to consider each case along a continuum; at one extreme are dismissals for mistake or inadvertence, at the other extreme are dismissals for serious misconduct or a series of cumulative transgressions." (Internal quotation marks omitted.) Tellar v. Abbott Laboratories, Inc. , supra, 114 Conn. App. at 251, 969 A.2d 210. "On the one hand, in a long line of cases, we have held that § 52-592(a) is remedial in nature and, therefore, warrants a broad construction. . On the other hand, our decisions also have underscored the importance of trial court caseflow management of crowded dockets. Caseflow management is based upon the premise that it is the responsibility of the court to establish standards for the processing of cases and also, when necessary, to enforce compliance with such standards. Our judicial system cannot be controlled by the litigants and cases cannot be allowed to drift aimlessly through the system. . In the event of noncompliance with a court order, the directives of caseflow management authorize trial courts, in appropriate circumstances, to take action against either the errant attorney or the litigant who freely chose the attorney." (Citations omitted; internal quotation marks omitted.) Ruddock v. Burrowes , supra, 243 Conn. at 575, 706 A.2d 967. "A determination of the applicability of § 52-592 depends on the particular nature of the conduct involved." Stevenson v. Peerless Industries, Inc ., 72 Conn. App. 601, 607, 806 A.2d 567 (2002). This requires the court to make factual findings, and "[a] finding of fact will not be disturbed unless it is clearly erroneous. ." Id., at 606, 806 A.2d 567. "[T]he question of whether the court properly applied § 52-592 presents an issue of law over which our review is plenary." Tellar v. Abbott Laboratories, Inc ., supra, 114 Conn. App. at 249, 969 A.2d 210. As an initial matter, we reject the plaintiff's argument that "[t]he court was . wrong to not consider the plaintiff's justifications for his alleged discovery noncompliance ." Both the court's memorandum of decision, which is quoted previously, and our review of the hearing transcript reveal that the court considered at length the plaintiff's justifications for his noncompliance. We also reject the plaintiff's argument that "[t]he court overlooked in its decision that disciplinary dismissals are not excluded categorically from the relief afforded by § 52-592(a)." (Internal quotation marks omitted.) The court analyzed the case under the "matter of form" analysis set forth in Ruddock precisely because it recognized that disciplinary dismissals are not categorically excluded from relief under § 52-592(a). Applying that standard, which is applicable to disciplinary dismissals, the court found that "[b]ased upon the nature and conduct of the plaintiff that led to the granting of the motion for judgment of nonsuit . Estela I was not dismissed as a matter of form, but rather for serious disciplinary reasons." The plaintiff argues that the court's factual findings in the present case are in "clear error." In response, the defendant argues that "[e]ach of these challenged factual findings is amply supported in the record and, thus, there is no basis to conclude that the . factual findings were clearly erroneous." We agree with the defendant. The record readily supports the court's factual findings underlying its determination that the dismissal of Estela I did not occur in circumstances such as "mistake, inadvertence or excusable neglect." In Estela I , the plaintiff engaged in a pattern of delayed conduct by responding late to discovery requests, filing untimely objections, and filing notices of compliance after the filing of the defendant's motion for a judgment of nonsuit. The plaintiff failed to comply with two court orders, which ordered him to comply with outstanding discovery requests for his 2002-2004 tax returns and his expert report, by February 29, 2013, and March 29, 2013, respectively. As justification for his noncompliance, the plaintiff represented to the court that he could not comply with the defendant's request to provide the expert report absent information from the defendant that had not yet been provided. As the court noted, however, the plaintiff failed to explain why he did not file a motion for extension of time in Estela I while waiting for this purportedly essential information from the defendant. The plaintiff also asserted that he could not comply with the discovery request for his 2002-2004 tax returns because he did not have copies, and he was waiting on copies to be provided by the Internal Revenue Service. The request for the tax returns, however, was not sent to the Internal Revenue Service until November 5, 2013-several days after the court in Estela I rendered the judgment of nonsuit on October 28, 2013, and months after the court-ordered deadlines to comply. Further, as the court noted, the plaintiff could have provided the defendant with an authorization to contact the Internal Revenue Service itself, but failed to do so. Moreover, the plaintiff even admitted in his motion to open the judgment of nonsuit in Estela I that he "purposefully held off on continuing his review and analysis of his own documents to cull out relevant information because he expected that the request[ed] patient information would be produced by the defendant" (emphasis added; internal quotation marks omitted);-further undercutting any argument that the nonsuit resulted from "mistake, inadvertence or excusable neglect." Also as justification for his conduct in Estela I , the plaintiff argued that he complied with the "reasonable meaning" of the court's orders. Specifically, the plaintiff represented to the court in the present case that the parties had come to an agreement amongst themselves to extend the deadline for compliance. "In Connecticut, [however] the general rule is that a court order must be followed until it has been modified or successfully challenged. . Our Supreme Court repeatedly has advised parties against engaging in self-help and has stressed that an order of the court must be obeyed until it has been modified or successfully challenged." (Internal quotation marks omitted.) Worth v. Commissioner of Transportation , 135 Conn. App. 506, 520-21, 523, 43 A.3d 199 (rejecting plaintiff's claim that failure to comply with court order was "excusable neglect" and affirming trial court's finding that plaintiff's case was not saved by § 52-592 ), cert. denied, 305 Conn. 919, 47 A.3d 389 (2012). Thus, even if the parties had come to an agreement between themselves to extend the discovery deadline, the plaintiff needed to first inform the court of the agreement and have the court orders modified. The plaintiff failed to do so. On the basis of the foregoing, we cannot say that the factual findings of the court in the present case, which led it to conclude that the nonsuit in Estela I did not occur in circumstances such as "mistake, inadvertence or excusable neglect," were clearly erroneous. See Ruddock v. Burrowes , supra, 243 Conn. at 572, 706 A.2d 967. Our decision is consistent with cases applying § 52-592(a). The present case is distinguishable from those cases where the court determined that the prior case was dismissed as a matter of form, i.e., in circumstances such as "mistake, inadvertence or excusable neglect." See, e.g., Tellar v. Abbott Laboratories , Inc ., supra, 114 Conn. App. at 252, 969 A.2d 210 (holding § 52-592 saved plaintiff's case where "[t]he conduct . was neither repeated nor protracted . [but] consisted of a singular failure to comply with a discovery request over the course of four months"); Stevenson v. Peerless Industries, Inc ., supra, 72 Conn. App. at 607-608, 806 A.2d 567 (stating "court improperly determined that the plaintiff could not avail himself of § 52-592 [a]" where failure to respond timely to request to revise and discovery demands was due to miscommunication between plaintiff and his counsel). Rather, the plaintiff's behavior is more akin to those cases where the court found that § 52-592(a) did not apply because the plaintiff's conduct was repeated or purposeful, and was not the result of "mistake, inadvertence or excusable neglect." See, e.g., Plante v. Charlotte Hungerford Hospital , supra, 300 Conn. at 57, 12 A.3d 885 (concluding § 52-592 [a] did not apply, and describing plaintiff's failure to provide an opinion letter pursuant to General Statutes § 52-190a [a] as "blatant and egregious" where "[e]ven a cursory reading of § 52-190a would have revealed . [that the nurse writing the letter] did not qualify as a similar health care provider" [internal quotation marks omitted] ); Gillum v. Yale University , 62 Conn. App. 775, 783, 773 A.2d 986 (concluding § 52-592 [a] did not apply, and describing conduct in the first case as "lackadaisical behavior by the plaintiffs at every turn" [internal quotation marks omitted] ), cert. denied, 256 Conn. 929, 776 A.2d 1146 (2001). In summary, although we recognize "that § 52-592(a) is remedial in nature and, therefore, warrants a broad construction," our Supreme Court also has held that "[o]ur judicial system cannot be controlled by the litigants and cases cannot be allowed to drift aimlessly through the system." (Internal quotation marks omitted.) Ruddock v. Burrowes , supra, 243 Conn. at 575, 706 A.2d 967. This court has recognized that there is "a critical distinction between categories of cases involving, for instance, [n]onappearances that interfere with proper judicial management of cases, and cause serious inconvenience to the court and to opposing parties . and those involving things such as a mere failure to respond to a notice of dormancy ." (Citation omitted; internal quotation marks omitted.) Skinner v. Doelger , supra, 99 Conn. App. at 557-58, 915 A.2d 314. Along the continuum, where "at one extreme are dismissals for mistake or inadvertence, [and] at the other extreme are dismissals for serious misconduct or a series of cumulative transgressions"; (internal quotation marks omitted) Tellar v. Abbott Laboratories, Inc ., supra, 114 Conn. App. at 251, 969 A.2d 210 ; the record supports the court's finding that Estela I was dismissed for "serious disciplinary reasons," and not because of "mistake, inadvertence or excusable neglect." Therefore, the findings of the court in the present case as to the plaintiff's conduct that led to the judgment of nonsuit in Estela I are not clearly erroneous. IV Finally, the plaintiff asserts for the first time on appeal that § 52-592(a) applies to any judgment of nonsuit. Specifically, as an alternative to the claim addressed in part II of this opinion, the plaintiff argues that the standard set forth in Ruddock does not apply to judgments of nonsuit, under the plain language of the statute. Before the court in the present case, however, the plaintiff argued that the standard set forth in Ruddock applied, and no party objected to its application. Further, the plaintiff argues at length in his principal brief on appeal that the court employed the wrong standard in determining whether § 52-592 applied to his case by not using the Ruddock analysis. It is well established that "[w]e are not bound to consider claims of law not properly raised at trial." State v. Hilton , 45 Conn. App. 207, 222, 694 A.2d 830, cert. denied, 243 Conn. 925, 701 A.2d 659 (1997), cert. denied, 522 U.S. 1134, 118 S.Ct. 1091, 140 L.Ed. 2d 147 (1998). Further, even if we were to find that the plaintiff's claim was properly preserved, it contradicts precedent. See Lacasse v. Burns , 214 Conn. 464, 473, 572 A.2d 357 (1990) ("[ section] 52-592 does not authorize the reinitiation of all actions not tried on . [their] merits" [internal quotation marks omitted] ); see also Vestuti v. Miller , supra, 124 Conn. App. at 145, 3 A.3d 1046 (applying standard set forth in Ruddock to judgment of nonsuit); Stevenson v. Peerless Industries, Inc ., supra, 72 Conn. App. at 603-607, 806 A.2d 567 (same). The judgment is affirmed. In this opinion the other judges concurred. General Statutes § 52-592(a) provides in relevant part: "If any action, commenced within the time limited by law, has failed one or more times to be tried on its merits because of insufficient service or return of the writ due to unavoidable accident or the default or neglect of the officer to whom it was committed, or because the action has been dismissed for want of jurisdiction, or the action has been otherwise avoided or defeated by the death of a party or for any matter of form; or if, in any such action after a verdict for the plaintiff, the judgment has been set aside, or if a judgment of nonsuit has been rendered or a judgment for the plaintiff reversed, the plaintiff . may commence a new action . for the same cause at any time within one year after the determination of the original action or after the reversal of the judgment." To the extent that any issues are nonreviewable, the plaintiff invokes the plain error doctrine. See Practice Book § 60-5. The plaintiff asserts that the court's decision "violates public policy and manifests injustice." Specifically, the plaintiff claims that the court committed plain error, resulting in manifest injustice, by (1) "[i]mposing sanctions on the plaintiff for reliance on misrepresentations made by the defendant's counsel"; (2) allowing the defendant to "greatly benefit from 'the same sauce . [that it] spread on the [plaintiff's goose]' despite that it 'also necessarily graced his own gander' "; (3) "[r]equiring the plaintiff to demonstrate sufficient evidence in support of an essential element of his cause of action prior to receipt of discovery that he [was] entitled to"; (4) "[r]equiring the plaintiff to produce his expert report based on unknown data, despite that such essential information was due and owing and being withheld improperly by the defendant"; and (5) "[w]rongfully converting the inapplicability of a § 52-592(a) defense to a defense concerning jurisdiction ." "It is well established that the plain error doctrine . is an extraordinary remedy used by appellate courts to rectify errors committed at trial that, although unpreserved [and nonconstitutional in nature], are of such monumental proportion that they threaten to erode our system of justice and work a serious and manifest injustice on the aggrieved party. [T]he plain error doctrine . is not . a rule of reviewability. It is a rule of reversibility. That is, it is a doctrine that this court invokes in order to rectify a trial court ruling that . requires reversal of the trial court's judgment . for reasons of policy.... In addition, the plain error doctrine is reserved for truly extraordinary situations [in which] the existence of the error is so obvious that it affects the fairness and integrity of and public confidence in the judicial proceedings.... Plain error is a doctrine that should be invoked sparingly.... Implicit in this very demanding standard is the notion . that invocation of the plain error doctrine is reserved for occasions requiring the reversal of the judgment under review.... "An appellate court addressing a claim of plain error first must determine if the error is indeed plain in the sense that it is patent [or] readily [discernible] on the face of a factually adequate record, [and] also . obvious in the sense of not debatable.... "[An appellant] cannot prevail under [the plain error doctrine] . unless he demonstrates that the claimed error is both so clear and so harmful that a failure to reverse the judgment would result in manifest injustice." (Citations omitted; emphasis in original; footnote omitted; internal quotation marks omitted.) State v. Jamison , 320 Conn. 589, 595-97, 134 A.3d 560 (2016). After a thorough review of the record, we are not convinced that the claimed errors are so clear that they are "[discernible] on the face of a factually adequate record" or "obvious in the sense of not debatable." (Internal quotation marks omitted.) Id., [at] 596 [134 A.3d 560]. Importantly, many of the claimed errors appear to pertain to the actions of the court in Estela I , and not those of the court in the present case. Further, even if the plaintiff had met his burden of establishing that the error was clear and harmful, he has failed to demonstrate "manifest injustice" that would permit use of this " 'extraordinary remedy' ." Id., [at] 597 [134 A.3d 560]. Accordingly, we conclude that the plaintiff cannot prevail on his claim of plain error. Although § 52-592(a) was not specifically pleaded in the complaint, the parties stipulated to the court that it was not necessary under Beckenstein Enterprises-Prestige Park, LLC v. Keller , 115 Conn. App. 680, 690-91, 974 A.2d 764 ("[w]hile it has been suggested that it might be desirable for the plaintiff to plead sufficient facts necessary to bring the matter within the purview of § 52-592... [i]t has been and is the holding of [our Supreme Court] that matters in avoidance of the Statute of Limitations need not be pleaded in the complaint but only in response to such a defense properly raised" [internal quotation marks omitted] ), cert. denied, 293 Conn. 916, 979 A.2d 488 (2009). General Statutes § 52-205 provides: "In all cases, whether entered upon the docket as jury cases or court cases, the court may order that one or more of the issues joined be tried before the others." Practice Book § 15-1 provides: "In all cases, whether entered upon the docket as jury cases or court cases, the judicial authority may order that one or more of the issues joined be tried before the others. Where the pleadings in an action present issues both of law and of fact, the issues of law must be tried first, unless the judicial authority otherwise directs. If some, but not all, of the issues in a cause are put to the jury, the remaining issue or issues shall be tried first, unless the judicial authority otherwise directs." On August 21, 2015, prior to a final judgment, the plaintiff appealed from the court's decision that his action could not be maintained pursuant to § 52-592(a). This court granted the defendant's motion to dismiss the appeal, by order dated October 20, 2015, for lack of a final judgment. On December 22, 2015, the plaintiff moved for judgment to be rendered in favor of the defendant, as the court's order on the motion to bifurcate so concluded the rights of the parties that further proceedings could not affect them. On January 4, 2016, the court rendered judgment in favor of the defendant. General Statutes § 52-577 provides that "[n]o action founded upon a tort shall be brought but within three years from the date of the act or omission complained of." General Statutes § 52-597 provides that "[n]o action for libel or slander shall be brought but within two years from the date of the act complained of." In his principal brief, the plaintiff argues that the present case differs from Plante v. Charlotte Hungerford Hospital , supra, 300 Conn. at 40-41, 12 A.3d 885, because, in Plante , the defendants challenged the applicability of § 52-592(a) in a motion to dismiss and a motion for summary judgment, before the issue was ultimately addressed by way of a motion to bifurcate. The plaintiff argues that the defendant in this matter "never raised this defense . in its motion for summary judgment ." (Citations omitted.) Contrary to the plaintiff's assertions, however, the defendant did argue in its motion for summary judgment that the plaintiff's claims were time barred by the applicable statute of limitations. Thus, the plaintiff has failed to demonstrate how this case is distinguishable from Plante . The plaintiff argues that § 52-592(a) is a limitation defense, and that the defendant waived this defense because it did not specifically assert in its motion for summary judgment that § 52-592(a) does not apply, but merely asserted that the claims were time barred. Section 52-592(a), however, is not a defense that the defendant must plead; rather, § 52-592(a) is an exception to the statute of limitations special defense that allows a plaintiff to maintain an otherwise time barred action. See Beckenstein Enterprises-Prestige Park, LLC v. Keller , 115 Conn. App. 680, 690-91, 974 A.2d 764, cert. denied, 293 Conn. 916, 979 A.2d 488 (2009) ; see also footnote 3 of this opinion. General Statutes § 52-212(a) provides in relevant part: "Any . nonsuit in the Superior Court may be set aside, within four months following the date on which it was rendered or passed, and the case reinstated on the docket, on such terms in respect to costs as the court deems reasonable, upon the complaint or written motion of any party or person prejudiced thereby, showing reasonable cause, or that a good cause of action or defense in whole or in part existed at the time of the rendition of the judgment or the passage of the decree, and that the plaintiff or defendant was prevented by mistake, accident or other reasonable cause from prosecuting the action or making the defense." We recognize that the plaintiff's counsel did state, at the start of the August 3, 2015 evidentiary hearing, that "the issue here is, did the plaintiff egregiously depart from the obligation to prosecute the case ." Following that, however, the following colloquy took place: "The Court: . The issue here is a very limited issue: mistake, accident or reasonable cause. "[The Plaintiff's Counsel]: Yes. . "The Court: . So, the motion to open nonsuit really doesn't matter here, does it? It's whether or not the nonsuit itself was entered and the cause of the nonsuit was not, from the defense perspective, mistake, accident or other reasonable cause? "[The Plaintiff's Counsel]: I think that's correct, Your Honor. "The Court: Okay. So, we don't have to deal with the deficiencies in the motion to open the nonsuit. . We only have to get to the reasons or what was done in an effort to prevent the nonsuit from entering . "[The Plaintiff's Counsel]: Yes, Your Honor. "The Court: So, that's what we're limiting this hearing to. "[The Plaintiff's Counsel]: You're correct, Your Honor. "The Court: That it's mistake, accident or other reasonable cause." In crafting the "matter of form" standard for § 52-592(a), our Supreme Court cited to § 52-212 and indicated that "[§ 52-212 ] has language resembling our construction of § 52-592(a)." Ruddock v. Burrowes , supra, 243 Conn. at 577 n.13, 706 A.2d 967. We also reject the plaintiff's argument that the court barred "evidence on the plaintiff's conduct that occurred outside of mistake, inadvertence or reasonable cause, such as excusable neglect." As the court noted in its memorandum of decision, and as the transcript supports, the plaintiff's witness testified at length as to the circumstances in which the discovery noncompliance occurred. The plaintiff has failed to show how the hearing was "limited" in any way. In its order denying the plaintiff's motion to open nonsuit, the court in Estela I noted: "The defendant . moved for a judgment of nonsuit against the plaintiff . due to his failure to respond to the defendant's request for disclosure and production. After careful consideration . the court granted the motion for nonsuit on October 28, 2013.... On November 1, 2013, the plaintiff filed a motion to reargue/reconsider the court's granting of the nonsuit . [which] the court denied . on November 18, 2013.... "On November 27, 2013, the plaintiff filed the present motion, motion to open nonsuit, and on December 2, 2013, the defendant filed its objection. Thereafter, on December 5, 2013, the plaintiff filed a notice of compliance (2003-2004 tax returns), and on December 11, 2013, the plaintiff filed a second notice of compliance (preliminary expert report).... "The [plaintiff's] motion to open nonsuit was not filed with the appropriate supporting affidavit, [as required by General Statutes § 52-212a and Practice Book § 17-42 ]; therefore, this court is without the authority to set aside the nonsuit. . Even if the court were to consider [the] late fil[ed] affidavit, the plaintiff failed to establish that 'a good cause of action . existed . at the time of the rendition of the judgment [of nonsuit], and that the plaintiff . was prevented by mistake, accident or other reasonable cause from prosecuting the action .' His filing of the notices of compliance AFTER the filing of the [defendant's] motion for [a judgment of] nonsuit is clear indication that he had failed to comply with the written discovery either at the time of the entry of nonsuit or at the time of the filing of the motion to open nonsuit. Furthermore, the plaintiff argues that his admitted noncompliance is due to the fault of either the defendant or a federal agency, honest mistake, grueling trial schedule, and/or lack of prejudice and/or harm to the defendant. "The court finds no merit in the plaintiff's arguments or explanations. This is not the first instance of the plaintiff's failure to comply with written discovery . Moreover, the plaintiff has admitted in his motion to open nonsuit that he 'purposefully held off on continuing his review and analysis of his own documents to cull out relevant information because he expected that the request[ed] patient information would be produced by the defendant .' The plaintiff has failed to establish . that he was prevented from prosecuting this matter because of 'mistake, accident or other reasonable cause.' " (Citations omitted.) The plaintiff also argued, in essence, in the motion to open the judgment of nonsuit "that his failure to produce the tax returns for the requested years was an oversight, that his failure to produce the requested expert report on the plaintiff's losses was premised in turn on the defendant's own failure to produce the requisite patient information, and that the 'grueling trial schedule' of the plaintiff's attorney was partly responsible for the various delays at issue." Estela v. Bristol Hospital, Inc ., supra, 165 Conn. App. at 103-104, 138 A.3d 1042. During the August 3, 2015 evidentiary hearing, the following colloquy took place: "[Attorney Leonhardt]: . When I got the motion for nonsuit on [September 26] I called Attorney [Michael G.] Rigg [the defendant's counsel], and I don't recall if I spoke with Attorney Rigg or with Attorney [Amy F.] Goodusky [cocounsel for the defendant], but they did agree to give us additional time, and we went through the documents and- "The Court: And you confirmed it in writing? . "[Attorney Leonhardt]: As best I can recollect, Your Honor, it was not reduced to writing. . [M]y understanding was that we would have additional time . "The Court: . Should you have relied on Attorney Rigg or Attorney Goodusky's representation that they would provide you with these things? "[Attorney Leonhardt]: No, Your Honor. "The Court: Okay. "[Attorney Leonhardt]: That was my mistake." Further, as the court commented in a footnote in its memorandum of decision: "The pattern of noncompliance with court orders continues from Estela I to [the present action]. The plaintiff has recently filed two motions for extension of time nunc pro tunc after failing to comply with this court's scheduling deadlines. While this conduct is not directly relevant to the issue at hand, the plaintiff's continued dilatory conduct does not reflect positively on his claim that his failure to comply with the prior court's orders was due to his counsel's reliance on representations made by [the defendant's] counsel or impossibility."

12493269

Carlton MARTIN v. COMMISSIONER OF CORRECTION

Martin v. Comm'r of Corr.

2018-02-13

AC 39202

1003

1015

180 A.3d 1003

180

West's Atlantic Reporter, Third Series

Connecticut Appellate Court

Connecticut

2021-08-27T20:57:29.942366+00:00

Fastcase

Carlton MARTIN v. COMMISSIONER OF CORRECTION

Carlton MARTIN v. COMMISSIONER OF CORRECTION AC 39202 Appellate Court of Connecticut. Argued October 23, 2017 Officially released February 13, 2018 Darcy McGraw, for the appellant (petitioner). Harry Weller, senior assistant state's attorney, with whom, on the brief, were Stephen J. Sedensky III, state's attorney, and Tamara Grosso, assistant state's attorney, for the appellee (respondent). Alvord, Sheldon and Bishop, Js.

6687

42333

ALVORD, J. The petitioner, Carlton Martin, appeals from the judgment of the habeas court denying his petition for a writ of habeas corpus. On appeal, he claims that the court erred in: (1) rejecting his claim that his due process right to a fair trial under the state and federal constitutions was violated by the introduction of testimony from an agent with the Federal Bureau of Investigation (FBI) at his underlying criminal trial, which was later determined to be scientifically invalid; and (2) concluding that his habeas counsel did not render ineffective assistance of counsel. We affirm the judgment of the habeas court. The following facts and procedural history are relevant to our resolution of the petitioner's appeal. In 2000, following a jury trial during which the petitioner was represented by Attorney Robert Field, the petitioner was convicted of felony murder in violation of General Statutes § 53a-54c, robbery in the first degree in violation of General Statutes § 53a-134 (a) (2), and five counts of tampering with a witness in violation of General Statutes § 53a-151. The petitioner was sentenced to a total effective sentence of ninety years imprisonment. The petitioner appealed from the judgment of conviction, and this court set forth the facts underlying his conviction. "At 6 a.m., on January 18, 1999, the [petitioner] called Nicole Harris and asked her to drive from Bridgeport to Danbury to pick up his cousin, Tommie L. Martin. At approximately 8:30 a.m., Harris and the [petitioner] picked up Tommie Martin in Danbury. Harris then drove Tommie Martin and the [petitioner] to a gasoline station located next to Gallo's Hi-Way Package Store (Gallo's) in Danbury. After filling Harris' brown Chevrolet Chevette with gas, Harris drove along the street, passing Gallo's, and turned onto the street next to Gallo's, where she parked. The [petitioner] and Tommie Martin left Harris' vehicle and went toward Gallo's. After five minutes, the [petitioner] and Tommie Martin returned to the vehicle and Tommie Martin told Harris to drive around the block. When the vehicle was in front of Gallo's, Tommie Martin told Harris to drive by slowly. As Tommie Martin peered into Gallo's, he said, '[h]e's by himself,' and the [petitioner] responded, 'I have my heat on me, we'll go back in.' Tommie Martin told Harris to turn her vehicle around and park next to Gallo's. The [petitioner] and Tommie Martin left the vehicle and returned ten minutes later with bottles of E & J brandy. When they reentered the vehicle, Tommie Martin told Harris to drive onto the highway. While driving toward Bridgeport, the [petitioner] and Tommie Martin talked excitedly and were asking each other, '[W]as it worth it?' Shortly thereafter, police were called to the liquor store, where they found the victim, Robert Gallo, lying motionless, having been shot multiple times. The cash register had been disturbed, and two bottles of E & J brandy were missing. Gallo died as a result of his injuries. The [petitioner] subsequently told Harris that he and Tommie Martin were involved in the robbery and shooting at Gallo's." State v. Martin , 77 Conn. App. 778, 781, 825 A.2d 835, cert. denied, 266 Conn. 906, 832 A.2d 73 (2003). "On January 20, 1999, the [petitioner] called Harris and told her to come to his apartment to pick up something. When she arrived, the [petitioner] handed Harris a shoebox containing a .25 caliber handgun wrapped in a towel." Id., at 781-82, 825 A.2d 835. "On January 25, 1999, the Danbury police department obtained a search warrant for the [petitioner's] and Tommie Martin's residence at 2108 Seaview Avenue in Bridgeport. The police executed the warrant. The police seized a sawed-off shotgun, a box of .25 caliber ammunition, a .22 caliber firearm and a magazine for a .22 caliber firearm." Id., at 782, 825 A.2d 835. "While awaiting trial, the [petitioner] attempted to contact Harris from prison and did contact associates of Harris to urge her not to cooperate with the state and to dispose of the .25 caliber handgun, which she had been hiding." Id."In March, 1999, Harris turned the gun over to the police, and ballistics tests confirmed that it had been used to fire the bullets that killed Gallo." Id. Attorney James Streeto represented the petitioner with respect to his appeal. This court affirmed the petitioner's conviction, rejecting arguments that the trial court improperly "(1) failed to recuse itself, (2) denied his motion to suppress certain letters and telephone call tapes, (3) refused to give a requested jury instruction on specific intent, (4) charged the jury as to consciousness of guilt, (5) denied his motion to suppress evidence pursuant to Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed. 2d 667 (1978), and (6) denied him his constitutional right to present a defense as a result of certain evidentiary rulings." Id., at 780, 818, 825 A.2d 835. In 2006, the petitioner, represented by Attorney Sebastian DeSantis, filed his first petition for a writ of habeas corpus (first habeas petition). In his amended petition, dated August 31, 2009, the petitioner alleged that (1) he was denied the effective assistance of appellate counsel in violation of the sixth and fourteenth amendments to the United States constitution and article first, § 8, of the Connecticut constitution, (2) his conviction should be vacated because of newly discovered evidence disclosed by the FBI to the State's Attorney, and (3) he was prejudiced by the late disclosure of Brady material. The first habeas petition was tried before the court, T. Santos, J. , which issued a memorandum of decision on November 16, 2011, denying the petition. With respect to the claim of newly discovered evidence, the habeas court found such claim "indistinguishable, especially in light of the petitioner's assertion that this evidence is clear and convincing and would have proven that he is not guilty, from an actual innocence claim." Martin v. Warden , Superior Court, judicial district of Tolland, Docket No. CV-06-4001122-T, 2011 WL 6117914 (November 16, 2011). The court found that the evidence produced in support of the claim, consisting of two letters from the FBI regarding the comparative bullet lead analysis used in the petitioner's case, fell short of the actual innocence standard. Following the granting of certification to appeal, the petitioner appealed, and this court affirmed the judgment of the habeas court by memorandum decision issued March 5, 2013. Martin v. Commissioner of Correction , 141 Conn. App. 903, 60 A.3d 412 (2013). In August, 2013, the petitioner filed a second petition for a writ of habeas corpus, the petition at issue in this appeal. In his second amended petition, he alleged: (1) a violation of his constitutional rights to due process under the fourteenth amendment to the United States constitution and article first, § 8, of the Connecticut constitution on the basis that his conviction was obtained using evidence of comparative bullet lead analysis that was subsequently discredited by the FBI and that there existed a "reasonable probability that but for [such] evidence . the petitioner would not have been convicted"; and (2) ineffective assistance of Attorney DeSantis, who represented the petitioner with respect to his first habeas petition. Specifically, the petitioner claimed that Attorney DeSantis was ineffective in failing to (1) challenge the testimony concerning comparative bullet lead analysis from FBI Agent Kathleen Lundy, (2) consult with a metallurgist to challenge the testimony of Lundy, (3) present forensic evidence with respect to the petitioner's seized clothing, and (4) present testimony of a crime reconstruction expert. The petitioner also claimed that Attorney DeSantis was ineffective in failing to consult with and present the testimony of an expert regarding comparative bullet lead analysis evidence. The second habeas petition was tried before the habeas court, Sferrazza, J. , which heard testimony from the petitioner, Attorney DeSantis, and William Tobin, a forensic metallurgist material scientist. In its memorandum of decision, the habeas court described Lundy's testimony during the petitioner's criminal trial. Lundy testified as to her examination of bullets recovered from the victim's body and the crime scene, and bullets from cartridges in the ammunition box seized from the petitioner's bedroom closet using a technique known as comparative bullet lead analysis (CBLA). Lundy's testimony purportedly showed that the bullets retrieved from the victim's body and the crime scene came from the same box of ammunition seized from the petitioner's bedroom closet. The FBI previously had used CBLA to deduce whether a lead bullet came from a particular cartridge box from 1996 until it discontinued such examinations on September 1, 2005, after an independent research committee of experts concluded that chemical comparison of trace elements found within bullets through CBLA did not produce sufficiently distinct outcomes to enable an analyst to conclude that bullets with the same chemical profiles come from the same box. The habeas court rejected the petitioner's claim that the admission of CBLA evidence violated his due process rights, concluding that no violation occurred on the basis that the petitioner had presented no evidence that the state actors were aware of defects in CBLA evidence at the time of the petitioner's criminal trial. The court further concluded that the petitioner had failed to show that the CBLA evidence prejudiced his case, explaining that the more salient forensic evidence was the showing that the pistol the petitioner had given to Harris, which Harris had turned over to the police, was the pistol used to shoot the victim. With respect to the petitioner's ineffective assistance of habeas counsel claim, the habeas court found that because the petitioner's trial counsel, Attorney Fields, could not have been deficient in failing to challenge the then-uncontroverted CBLA evidence, Attorney DeSantis could not be faulted for failing to claim ineffective assistance by Attorney Fields in the petitioner's first habeas trial. The court denied the petition and granted certification to appeal. This appeal followed. "Initially, we set forth the appropriate standard of review for a challenge to the denial of a petition for a writ of habeas corpus when certification to appeal is granted. The conclusions reached by the trial court in its decision to dismiss [a] habeas petition are matters of law, subject to plenary review.... [When] the legal conclusions of the court are challenged, [the reviewing court] must determine whether they are legally and logically correct . and whether they find support in the facts that appear in the record.... To the extent that factual findings are challenged, this court cannot disturb the underlying facts found by the habeas court unless they are clearly erroneous." (Citation omitted; internal quotation marks omitted.) Harris v. Commissioner of Correction , 126 Conn. App. 453, 456-57, 11 A.3d 730, cert. denied, 300 Conn. 932, 17 A.3d 69 (2011). I The petitioner first claims that the habeas court erred in rejecting his claim that his due process right to a fair trial under the state and federal constitutions was violated by the introduction of false evidence, consisting of Lundy's testimony regarding CBLA. He claims that "his right [to] a fair trial was violated because, due to the admission of flawed 'forensic' evidence by an incredible witness who was cloaked with the designation 'expert,' the adversarial system failed and he is therefore entitled to a new trial without the taint of false evidence." We disagree. We first note that the petitioner does not claim that Lundy committed perjury. Moreover, in contrast to many of the cases relied on by the petitioner, the petitioner in the present case does not claim that the prosecution knew or should have known of flaws in Lundy's scientific testimony at the time of the petitioner's criminal trial. In fact, he recognizes that "all parts of the system-prosecutor, defense counsel and the court-were under the false impression that the witness' testimony was true to a degree of scientific certainty ." Instead, the petitioner claims that the introduction of "essential evidence" that "later turns out . [to be] false and/or scientifically invalid" deprives a criminal defendant of his due process rights "because the adversarial process fails." As this court has recently acknowledged in Toccaline v. Commissioner of Correction , 177 Conn. App. 480, 492-93, 172 A.3d 821, cert. denied, 327 Conn. 986, 175 A.3d 45 (2017), neither our Supreme Court nor the United States Supreme Court has "addressed the question of whether the state's unknowing use of perjured testimony violates due process principles." (Internal quotation marks omitted.) See also Westberry v. Commissioner of Correction , 169 Conn. App. 721, 735, 152 A.3d 87 (2016) ("[i]t remains an open question in Connecticut whether the state's unknowing use of perjured testimony at trial can violate due process" [emphasis in original] ), cert. denied, 324 Conn. 914, 153 A.3d 1289 (2017). In Horn v. Commissioner of Correction , 321 Conn. 767, 801-802, 138 A.3d 908 (2016), our Supreme Court expressly declined to decide that question, instead concluding that the petitioner had not established that the witnesses had committed perjury, and even without the witnesses' testimony, there was no reasonable probability that the petitioner would not have been convicted. Accordingly, the petitioner had not been deprived of his constitutional due process right to a fair trial. Id., at 802, 138 A.3d 908. Our Supreme Court has noted that a "majority of the federal circuit courts require a knowing use of perjured testimony by the prosecution to find a violation of due process." (Internal quotation marks omitted.) Id., at 801, 138 A.3d 908 ; see also Toccaline , supra, 177 Conn. App. at 492-93 n.12, 172 A.3d 821 (noting that "[t]he clear majority of jurisdictions require that a petitioner must prove that the prosecutor knew or should have known that the testimony at issue was false in order to establish a due process violation" [emphasis in original] ). In Ortega v. Duncan , 333 F.3d 102, 108 (2d Cir. 2003), however, the United States Court of Appeals for the Second Circuit held that "when false testimony is provided by a government witness without the prosecution's knowledge, due process is violated only if the testimony was material and the court [is left] with a firm belief that but for the perjured testimony, the defendant would most likely not have been convicted." (Footnote omitted; internal quotation marks omitted.) This court, in Toccaline , supra, 177 Conn. App. at 491-92, 172 A.3d 821, rejected the petitioner's claim that his due process rights were violated when the prosecutor unknowingly presented the false testimony of the victim and her family members. In rejecting the petitioner's claim, the court recognized that "there is no Connecticut case that supports the proposition that the petitioner's due process rights could have been violated by the prosecutor's presentation of false testimony when the prosecutor neither knew nor should have known that the testimony was false ." Id., at 493, 172 A.3d 821. The court went on to conclude that "even under the more lenient approach taken by the Second Circuit in Ortega , [the petitioner's] claim would still fail." Id. As in Toccaline , even if this court were to apply the Ortega standard, the petitioner cannot prevail on his due process claim because "there is no reasonable probability" that but for Lundy's testimony, "the petitioner would not have been convicted." See Horn v. Commissioner of Correction , supra, 321 Conn. at 801, 138 A.3d 908 (declining to decide whether to adopt Ortega standard and instead concluding that petitioner could not prevail under that standard). In its memorandum of decision, the habeas court detailed the evidence presented at the petitioner's criminal trial, in addition to Lundy's testimony, supporting his conviction. Evidence was presented that an individual named Eugene Laurel, or "Banana," sold a stolen, .25 caliber Titan pistol to the petitioner and his cousin. The petitioner was identified as having participated in the purchase of the gun and as having had access to the gun after they bought it. Together with the pistol, Banana gave the men an ammunition box partially filled with .25 caliber Winchester cartridges. Police later searched the apartment where the petitioner lived and seized an ammunition box with .25 caliber Winchester cartridges from the petitioner's bedroom closet. The jury also heard the testimony of Nicole Harris, the owner and driver of the vehicle used during the robbery, who testified that the petitioner made statements showing his intent to rob the store and indicated that he had a gun. She testified that after the robbery, the petitioner admitted to shooting the victim. Harris further testified that a few days after the shooting, the petitioner gave her a shoe box containing the .25 caliber pistol and asked her to conceal it for him. Harris later turned the pistol over to the police. James Stephenson, a criminalist with the Connecticut State Department of Public Safety's Division of Forensic Services Forensic Science Laboratory, testified during the petitioner's criminal trial that the cartridges in the ammunition box seized from the petitioner's bedroom closet matched those used to commit the murder with respect to the caliber, type, manufacturer, and coating. Stephenson further testified that the cartridge casings recovered from the crime scene were fired from the .25 caliber pistol turned over by Harris. The petitioner admitted calling his girlfriend from prison and, referring to the .25 caliber Titan as "dirty dishes," asking her to tell Harris to get rid of the gun. See State v. Martin , supra, 77 Conn. App. at 817, 825 A.2d 835. The petitioner also engaged in multiple acts of witness tampering, which the habeas court found to show a strong consciousness of guilt. Lundy, then an FBI agent specializing in CBLA, testified as to her opinion based on her examination of the bullets. She testified that the bullets recovered from the crime scene and the victim's body came from the same manufacturing lot as those bullets found in the ammunition box in the petitioner's bedroom closet. Lundy's testimony, the habeas court concluded, was "minimally corroborative of the testimony of Banana, the petitioner's cousin, and Harris as to the petitioner's possession of the weapon and ammunition used in the shooting." We agree with the habeas court's conclusion that the more significant forensic evidence was the testimony of Stephenson, who opined that the pistol the petitioner had given to Harris, which Harris turned over to police, was the same one used to shoot the victim. Stephenson further testified that the ammunition seized from the petitioner's bedroom closet was of the same type and had the same coating as the bullets recovered from the crime scene. This evidence was unaffected by and unrelated to Lundy's testimony, and we agree with the habeas court that it is very unlikely that the jury's determination of guilt would have been different had Lundy's testimony regarding CBLA not been presented to the jury. Accordingly, under the Ortega standard, we are not left with a firm belief that but for Lundy's testimony, the petitioner would most likely not have been convicted, and, therefore, the petitioner was not deprived of his constitutional due process right to a fair trial. See Ortega v. Duncan , supra, 333 F.3d at 108. II The petitioner next claims that the habeas court erred in concluding that his habeas counsel, Attorney DeSantis, did not render ineffective assistance of counsel. The petitioner claims that Attorney DeSantis improperly handled the petitioner's claim that the CBLA evidence lacked scientific validity. Specifically, the petitioner claims that Attorney DeSantis failed to present the testimony of an expert with whom he had consulted, and "merely introduced a report from the FBI stating that it no longer used" CBLA evidence. Moreover, the petitioner claims that Attorney DeSantis incorrectly presented the CBLA evidence claim as a claim of actual innocence, then "failed to introduce any evidence sufficient to establish affirmatively that the petitioner was actually innocent of that crime." We disagree that Attorney DeSantis rendered ineffective assistance of counsel. "The use of a habeas petition to raise an ineffective assistance of habeas counsel claim . was approved by our Supreme Court in Lozada v. Warden , 223 Conn. 834, 613 A.2d 818 (1992). In Lozada , the court determined that the statutory right to habeas counsel for indigent petitioners provided in General Statutes § 51-296 (a) includes an implied requirement that such counsel be effective, and it held that the appropriate vehicle to challenge the effectiveness of habeas counsel is through a habeas petition.... [T]he court explained that [t]o succeed in his bid for a writ of habeas corpus, the petitioner must prove both (1) that his appointed habeas counsel was ineffective, and (2) that his trial counsel was ineffective.... As to each of those inquiries, the petitioner is required to satisfy the familiar two-pronged test set forth in Strickland v. Washington , [ 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed. 2d 674 (1984) ]. First, the [petitioner] must show that counsel's performance was deficient.... Second, the [petitioner] must show that the deficient performance prejudiced the defense." (Emphasis in original; internal quotation marks omitted.) Abreu v. Commissioner of Correction , 172 Conn. App. 567, 574-75, 160 A.3d 1077, cert. denied, 326 Conn. 901, 162 A.3d 724 (2017). "Unless a [petitioner] makes both showings, it cannot be said that the conviction . resulted from a break-down in the adversary process that renders the result unreliable.... In other words, a petitioner claiming ineffective assistance of habeas counsel on the basis of ineffective assistance of trial counsel must essentially satisfy Strickland twice." (Internal quotation marks omitted.) Id., at 575, 160 A.3d 1077. Our Supreme Court has characterized this burden as presenting a "herculean" task. Lozada v. Warden , supra, 223 Conn. at 843, 613 A.2d 818 ; see also Alterisi v. Commissioner of Correction , 145 Conn. App. 218, 226-27, 77 A.3d 748, cert. denied, 310 Conn. 933, 78 A.3d 859 (2013). With respect to the prejudice prong of Strickland , it is not sufficient "to show that [counsel's] . errors had some conceivable effect on the outcome of the proceedings.... Rather, [t]he [petitioner] must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." (Internal quotation marks omitted.) Abreu v. Commissioner of Correction , supra, 172 Conn. App. at 579, 160 A.3d 1077. "A reasonable probability is a probability sufficient to undermine confidence in the outcome." (Internal quotation marks omitted.) State v. Dupigney , 295 Conn. 50, 61, 988 A.2d 851 (2010). On appeal, the petitioner challenges only Attorney DeSantis' treatment and presentation of his habeas claims related to the scientific invalidity of Lundy's testimony during his criminal trial. We have already concluded in part I of this opinion that there is no reasonable probability that but for Lundy's testimony, the petitioner would not have been convicted. In light of this conclusion, the petitioner cannot prove prejudice under Strickland. Even if Attorney DeSantis had consulted with and presented to the habeas court the testimony of both a metallurgist and an expert on CBLA evidence, introduced additional exhibits beyond the FBI report, and presented the challenge to the CBLA evidence as a claimed due process violation rather than an actual innocence claim, the petitioner has failed to establish that there is a reasonable probability that the court in the first habeas proceeding would have found that the petitioner was entitled to a reversal of his judgment of conviction and a new trial. Given the overwhelming evidence of the petitioner's guilt, much of which was unaffected by and unrelated to Lundy's testimony, the petitioner cannot establish a reasonable probability that the first habeas court would have found the prejudice prong of Strickland satisfied. See Crocker v. Commissioner of Correction , 126 Conn. App. 110, 121, 10 A.3d 1079 (concluding that petitioner's ineffective assistance of habeas counsel claim failed because petitioner had not established prejudice, where challenged testimony during criminal trial was "far from the only evidence linking the petitioner to the murder" and where the "the state also introduced other significant evidence that was probative of the petitioner's guilt"), cert. denied, 300 Conn. 919, 14 A.3d 333 (2011). While a reviewing court can find against a petitioner on either prong of Strickland ; Small v. Commissioner of Correction , 286 Conn. 707, 713, 946 A.2d 1203, cert. denied sub nom. Small v. Lantz , 555 U.S. 975, 129 S.Ct. 481, 172 L.Ed. 2d 336 (2008) ; we also conclude, in agreement with the habeas court, that the petitioner has failed to satisfy the performance prong. The habeas court concluded that because the petitioner failed to establish that his trial counsel rendered ineffective assistance, habeas counsel could not have been deficient in failing to raise that meritless claim. "In any case presenting an ineffectiveness claim, the performance inquiry must be whether counsel's assistance was reasonable considering all the circumstances.... Judicial scrutiny of counsel's performance must be highly deferential and courts must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the [petitioner] must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy.... [S]trategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable; [but] strategic choices made after less than complete investigation are reasonable precisely to the extent that reasonable professional judgments support the limitations on investigation." (Citations omitted; internal quotation marks omitted.) Gerald W. v. Commissioner of Correction , 169 Conn. App. 456, 464, 150 A.3d 729 (2016), cert. denied, 324 Conn. 908, 152 A.3d 1246 (2017). We conclude, as the habeas court did, that the United States Supreme Court's decision in Maryland v. Kulbicki , - U.S. -, 136 S.Ct. 2, 3, 193 L.Ed. 2d 1 (2015), is dispositive of the petitioner's claim. In that case, FBI agent Ernest Peele, the state's expert regarding CBLA, testified at the defendant's criminal trial in 1995 that "the composition of elements in the molten lead of a bullet fragment found in the [defendant's] truck matched the composition of lead in a bullet fragment removed from the victim's brain ." Id. Peele further testified that a bullet from the defendant's gun was similar enough to the bullet fragments that "the two bullets likely came from the same package." Id. In 2006, by which time CBLA evidence was no longer generally accepted by the scientific community, the defendant raised a claim that his trial attorneys were ineffective in failing to question the legitimacy of the CBLA evidence. Id. The Court of Appeals of Maryland agreed with the defendant, concluding that his trial counsel should have discovered a report coauthored by Peele that "presaged the flaws in CBLA evidence." Id. One of the findings in the report was that "the composition of lead in some bullets was the same as that of lead in other bullets packaged many months later in a separate box." Id. The Court of Appeals of Maryland concluded that this one finding should have led the report's authors to doubt the faulty assumption that bullets produced from different sources of lead have unique chemical compositions. Id. The United States Supreme Court reversed, concluding that there was no reason to believe that a diligent search would have uncovered the report. Id., at 4. Moreover, even if it had, the report's ultimate conclusion was that CBLA was a "valid investigative technique," and therefore, it was questionable whether trial counsel would have brought it to the attention of the jury. Id. In reversing, the United States Supreme Court also emphasized that the reasonableness of counsel's conduct must be judged as of the time of counsel's conduct. Id. In 1995, CBLA evidence was widely accepted and admitted, and courts routinely admitted CBLA evidence until 2003. Id. Accordingly, the court concluded that "[c]ounsel did not perform deficiently by dedicating their time and focus to elements of the defense that did not involve poking methodological holes in a then-uncontroversial mode of ballistics analysis." Id. The petitioner in the present case was tried in 2000, within the time period in which CBLA evidence was regularly admitted. The petitioner himself notes that the National Academy of Science did not disavow the methodology underlying CBLA evidence until 2007. Moreover, the CBLA evidence admitted at the petitioner's trial is very similar to that considered by the United States Supreme Court in Maryland v. Kulbicki , supra, 136 S.Ct. at 4. As in that case, the petitioner in the present case has provided no support for the conclusion that his trial counsel was "constitutionally required to predict the demise of CBLA." Id. The question is not "what counsel should have done to constitute the proper representation of the [petitioner] considering the case in retrospect, but rather, whether in the circumstances, as viewed at the time, the [petitioner] received effective assistance of counsel." (Internal quotation marks omitted.) Lewis v. Commissioner of Correction , 89 Conn. App. 850, 861-62, 877 A.2d 11, cert. denied, 275 Conn. 905, 882 A.2d 672 (2005) ; see also Crocker v. Commissioner of Correction , 101 Conn. App. 133, 136, 921 A.2d 128 ("[a] fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time"), cert. denied, 283 Conn. 905, 927 A.2d 916 (2007). The petitioner has presented this court with no basis from which we could conclude that his trial counsel's conduct fell outside the wide range of reasonable professional assistance. Accordingly, we agree with the habeas court that the petitioner failed to demonstrate that his trial counsel's performance was deficient and, therefore, his ineffective assistance of counsel claim against his habeas counsel also fails. See Jefferson v. Commissioner of Correction , 144 Conn. App. 767, 773, 73 A.3d 840 (where trial counsel was not ineffective, petitioner could not demonstrate that deficient performance of habeas counsel was prejudicial), cert. denied, 310 Conn. 929, 78 A.3d 856 (2013). The petitioner has satisfied neither the performance prong nor the prejudice prong of the Strickland inquiry. Accordingly, the habeas court properly rejected the petitioner's ineffective assistance of habeas counsel claim. The judgment is affirmed. In this opinion the other judges concurred. This court also set forth facts that reasonably could have been found by the jury from the evidence that the petitioner now claims violated his due process rights. This court stated: "Subsequent laboratory analysis of the bullets recovered from the victim's body and those in a box of .25 caliber cartridges found at the [petitioner's] apartment revealed their chemical elements to be indistinguishable. They all had come from that box of ammunition." State v. Martin , supra, 77 Conn. App. at 782, 825 A.2d 835. In 2001, the petitioner filed a petition for a new trial on the basis of newly discovered evidence. See Martin v. Flanagan , 107 Conn. App. 544, 545, 945 A.2d 1024 (2008). Specifically, he claimed that a prison inmate, Terrell Stanton, had made statements to a third party exculpating the petitioner in the crimes for which he was convicted and incriminating himself. Id., at 547-48, 945 A.2d 1024. The trial court granted the state's motion in limine to preclude the admission of a former prison inmate's testimony recounting what Stanton told him. Id., at 548, 945 A.2d 1024. The court found such statements failed to satisfy the trustworthiness component necessary for the admission of third party statements against penal interest under the Connecticut Code of Evidence. Id. The court further denied the petition for a new trial and granted certification to appeal. On appeal, this court affirmed the judgment of the trial court. Id. Although the petitioner argues that his due process rights under article first, § 8, of the Connecticut constitution were violated, he fails to provide an independent analysis under the state constitution. Therefore, we deem abandoned any state constitutional claim. State v. Bennett , 324 Conn. 744, 748 n.1, 155 A.3d 188 (2017). See, e.g., Napue v. Illinois , 360 U.S. 264, 269, 79 S.Ct. 1173, 3 L.Ed.2d 1217 (1959) (expressing principle that "a state may not knowingly use false evidence, including false testimony, to obtain a tainted conviction" and holding that petitioner's due process rights were violated where witness lied in denying that he had been promised consideration for his testimony, and state's attorney knew that witness was lying); Mooney v. Holohan , 294 U.S. 103, 110, 55 S.Ct. 340, 79 L.Ed. 791 (1935) (briefly reciting due process principles in response to petitioner's claim that state's knowing use of "perjured testimony to obtain the conviction and the deliberate suppression of evidence to impeach that testimony constituted a denial of due process of law"); Pyle v. Kansas , 317 U.S. 213, 216, 63 S.Ct. 177, 87 L.Ed. 214 (1942) (petitioner "set forth allegations that his imprisonment resulted from perjured testimony, knowingly used by the State authorities to obtain his conviction, and from the deliberate suppression by those same authorities of evidence favorable to him"); Giglio v. United States , 405 U.S. 150, 154, 92 S.Ct. 763, 766, 31 L.Ed.2d 104 (1972) (addressing a Brady violation on basis of nondisclosure of promise made to witness in return for his cooperation). Ortega involved a claim of perjured testimony, and it is unclear whether Ortega requires a petitioner to show that the challenged testimony was in fact perjured or only that the testimony was false, as is claimed here. Because we conclude that the petitioner's due process claim fails even under the standard applied to perjured testimony in Ortega , we need not address this question. See Toccaline , supra, 177 Conn. App. at 492 n.12, 172 A.3d 821 (noting uncertainty as to whether Ortega requires a petitioner to show that testimony was perjured or only that it was false, but concluding under Ortega standard that petitioner had not shown prejudice by admission of false testimony). The petitioner challenges the habeas court's reliance upon Lewis v. Commissioner of Correction , 116 Conn. App. 400, 411, 975 A.2d 740, cert. denied, 294 Conn. 908, 982 A.2d 1082 (2009), as support for its conclusion that in order to prevail on a due process claim involving false evidence, the petitioner would be required to prove that the prosecutor intentionally presented false evidence. The petitioner further claims that Lewis is "no longer good law in Connecticut." Lewis is distinguishable in that, there, the petitioner failed to present his perjury claim to the habeas court in the context of a claimed violation of due process and further failed to allege how the claimed perjury affected the outcome of his trial. Id., at 412, 975 A.2d 740 n.9. We need not address the petitioner's claim that the court's reliance on Lewis was misplaced, given that this court's decision in Toccaline , which was released after the habeas court's decision in this case, is procedurally analogous to the petitioner's claim. Toccaline , rather than Lewis , guides this court's analysis. The petitioner provides no legal support for his contention that this court should review his claim to determine whether the introduction of the CBLA evidence was "harmless beyond a reasonable doubt." As the respondent argues, that standard is used to assess harm in the context of a direct appeal of a claimed constitutional violation and is inapplicable in the present habeas action. We agree, and accordingly, we reject the petitioner's request that this court engage in harmless error review. The petitioner claims that the jury "had before it the difficult task of determining who was telling the truth," given that Harris drove the getaway car and received immunity in exchange for her testimony. He claims that Lundy's testimony was especially harmful because it was the sole evidence tying the murder weapon to the petitioner, other than the remaining witnesses' self-serving testimony. The jury was well aware of the fact that Harris had entered into an agreement pursuant to which she would not be prosecuted if she testified truthfully. She testified regarding the agreement on direct and cross-examination, and the written agreement was entered into evidence as a full exhibit and read to the jury during cross-examination. Whether a witness' testimony is believable is "a question solely for the jury. It is . the absolute right and responsibility of the jury to weigh conflicting evidence and to determine the credibility of the witnesses." (Internal quotation marks omitted.) See State v. Vazquez , 119 Conn. App. 249, 255-56, 987 A.2d 1063 (2010) (where testimony of two witnesses for state differed in some respects, evidence that one witness' plea agreement hinged on his testifying against defendant, "merely provide[d] further information on which the jury made its credibility determinations"). Lundy testified, in relevant part, as to her conclusions based on the examination she conducted of seven bullets and bullet fragments recovered from the crime scene and nine bullets from cartridges in the ammunition box: "[The Prosecutor]: Based on your examination of the bullets, which you just described, what conclusions did you draw regarding the seven bullets and bullet fragments as compared to the nine bullets from the box? "[The Witness]: When the analysis was completed, it was determined that the seven bullets, or bullet fragments, and the nine bullets from the cartridges in the box, were what we call, analytically indistinguishable in composition. And, basically, what that means is, if I were to hand you those seven bullets and the nine bullets from the cartridges, and ask you to sample them again, and then give me the samples blindly so that I didn't know which were from the fired bullets and which were the bullets from the cartridges, after I conducted the analysis, I still couldn't tell you. All the specimens were chemically the same. "[The Prosecutor]: And what does that indicate to you about their time of manufacture and their place of manufacture? "[The Witness]: Based on the results and my experience, the conclusion that I came to was that all those bullets were manufactured from the same source, or melt of lead. And because the live ammunition was a Winchester manufacture, that would have occurred at the Winchester manufacturing plant in East Alton, Illinois. "[The Prosecutor]: And were those seven bullets and bullet fragments, and the nine bullets from the box, would they have been manufactured on or near the same time? "[The Witness]: Yes, they would have. "[The Prosecutor]: And would you expect other bullets manufactured on or about that same day from that same batch of lead to have the same analytically indistinguishable lead component? "[The Witness]: Yes, I would. Based on experience, I would expect that other boxes of this same type-this .25 auto Winchester ammunition, it was loaded with the copper coated expanding point bullets. If I were to analyze other boxes made at the same time, I would expect to find the same composition." Because we resolve the petitioner's claim on the basis that he has not shown a reasonable probability that but for Lundy's testimony, he would not have been convicted, we decline to reach the petitioner's broader claims of error that "it is contrary to clearly established Connecticut law to assert that a petitioner is not permitted to raise a claim of due process violation in habeas corpus" and that a due process claim based on the unknowing presentation of false evidence need not be presented in the context of an actual innocence claim. Likewise, we need not address the respondent's arguments that the flaws in CBLA evidence are "not beyond the ken of the adversary process," that "parts of Lundy's testimony . were not entirely 'false,' and [that] not all courts have fully rejected CBLA testimony." In fact, as the habeas court found, Attorney DeSantis had consulted with a metallurgist, but declined to call him as a witness and elected to rely on the FBI report containing similar information. We note that Lundy's testimony did not go entirely unchallenged. On cross-examination, the petitioner's counsel elicited from Lundy recognition that if a local gun store ordered twenty-five boxes of the same product manufactured at the same time, the "boxes could have the same compositions in them." Lundy also acknowledged that she could not give a figure as to how many bullets produced from one melt of lead would have different compositions.

12493366

Paul FAGAN v. CITY OF STAMFORD et al.

Fagan v. City of Stamford

2018-01-30

AC 38836

1

13

180 A.3d 1

180

West's Atlantic Reporter, Third Series

Connecticut Appellate Court

Connecticut

2021-08-27T20:57:29.942366+00:00

Fastcase

Paul FAGAN v. CITY OF STAMFORD et al.

Paul FAGAN v. CITY OF STAMFORD et al. AC 38836 Appellate Court of Connecticut. Argued October 16, 2017 Officially released January 30, 2018 Paul Fagan, self-represented, the appellant (plaintiff). Anthony M. Macleod, with whom, on the brief, was James C. Riley, for the appellees (defendant Policemen's Pension Trust Fund Board of the City of Stamford et al.). Keller, Elgo and Bear, Js.

6307

39695

ELGO, J. The self-represented plaintiff, Paul Fagan, a former police officer for the defendant city of Stamford (city), appeals from the judgment of the Superior Court dismissing his appeal from the decision of the defendant Policemen's Pension Trust Fund Board of the city (board) awarding him a disability pension in the amount of 50 percent of his annual compensation. On appeal, the plaintiff contends that the board improperly denied his request for an enhanced disability pension pursuant to the collective bargaining agreement (agreement) between the city and the Stamford Police Association (association). We disagree and, accordingly, affirm the judgment of the Superior Court. The relevant facts, as gleaned from the amended return of record that was submitted by agreement of the parties, are largely undisputed. In 1971, the city and the association entered into an "Agreement and Declaration of Trust" (trust agreement), which established the city's "Policemen's Pension Trust Fund" (fund). The stated purpose of the fund is to provide "pension and related benefits to [e]mployees, [r]etirees, their families, dependents, or beneficiaries who satisfy the eligibility requirements...." The fund is administered by the board, whose powers and duties are delineated in the trust agreement. Pursuant to article fifth, § 2, thereof, the board is empowered, inter alia, to "[c]onstrue the provisions of this [t]rust [a]greement, and [its] terms" and to "[f]ormulate, adopt, and promulgate any and all rules and regulations necessary or desirable to facilitate the proper administration of the [fund]...." The board's authority to administer the fund also is memorialized in the city charter. See Stamford Charter § C7-10-1 et seq. At all times relevant to this appeal, two distinct disability pensions were available to members of the city's police department under the city charter and the agreement, respectively. Pursuant to § C7-20-1 of the Stamford Charter, the board is authorized to grant a disability pension "equal to [50 percent] of the member's compensation during the last year of service" upon finding that a member of the police department "in the actual performance of duty and without personal fault or misconduct, shall have become permanently disabled, so as to be incapacitated in the performance of duty." In addition, the agreement authorizes the board to award an enhanced disability pension, provided certain criteria are met. Relevant to this appeal is paragraph 9 (K) of the agreement, which provides in relevant part: "Active police officers of the Stamford Police Department who suffer a work related illness or injury at any time during their employment as a police officer shall be eligible for the following [d]isability [p]ension benefits, in addition to those currently existing pursuant to the [c]harter of the [city] and [trust agreement].... [2] Such members shall be entitled to a [d]isability [p]ension equal to [75 percent] of his/her base pay at the time of the [a]pplication if at least two out of three independent medical physicians selected by the [board] in accordance with the provisions of [p]aragraph 9 (K) (1) above, concur that same member has a permanent/partial disability of [30 percent] or a combined permanent/partial disability of [30 percent] or more of any part of his/her body, including mental disability, and also at least two out of three of said independent medical physicians concur that said member is unable to meet the physical or mental requirements of an entry level patrolman for the Stamford Police Department." (Footnote added.) Pursuant to its authority under the trust agreement to enact rules and regulations related to the proper administration of the fund, the board promulgated a retirement guide. The retirement guide details the protocols and procedures by which members may retire from the police department. It requires members to submit a letter to both the chief of police and the board that "[m]ust include [the] effective date of retirement and type of retirement." It also requires members who are applying for a disability pension to apprise the board of that request. The retirement guide then explains that "[t]hree [i]ndependent [m]edical [e]xaminations . will be arranged for you. These exams must not be with any [d]octor that has seen you in the past. Please review with the [board's office] which [independent medical examination] [d]octors are available for use...." Those independent medical examinations, in turn, are used by the board to determine an applicant's eligibility for a disability pension under the city charter and the agreement. The plaintiff began his employment with the city's police department in July of 2004. On October 1, 2012, pursuant to the procedures outlined in the retirement guide, the plaintiff sent a letter to the chief of police and the board. That letter stated in relevant part: "I am submitting my notice to retire from the Stamford Police Department after more than eight years of service. I am applying for a disability pension under the [agreement], as I am eligible for the disability benefits listed in the [agreement] in addition to those currently existing pursuant to the charter . based on injuries I received in the line of duty. My projected date of retirement at this time is December 7, 2012." In accordance with both paragraph 9 (K) (1) of the agreement and the retirement guide, three independent medical examinations of the plaintiff were scheduled in October and December of 2012. In the two October, 2012 examinations, the board sent a letter to the physician that stated in relevant part that the board "would like you to perform an [i]ndependent [m]edical [e]xamination on [the plaintiff]. Please do not proceed if this officer has ever been treated by you. Please advise us if that is the case. The specific information we need in your report includes: [1] Your diagnosis and prognosis. [2] Your opinion of the percentage of disability. [3] Your opinion of the permanency of disability. [4] Your opinion of the causation and job relatedness of the condition. [5] Your opinion if the [o]fficer would be unable to meet the physical requirements of an entry level patrolman." (Emphasis in original.) The relevant language in a November, 2012 letter is virtually identical except that it does not require that the physician's report include his opinion as to whether the plaintiff would be unable to meet the physical requirements of an entry level patrolman. It is undisputed that the board did not direct the physicians to use any specific edition of the Guides to the Evaluation of Permanent Impairment (guide), published by the American Medical Association, in preparing their reports. It further is undisputed that, pursuant to the agreement, the physicians were free to utilize whichever edition of the guide that they preferred. As the plaintiff acknowledges in his principal appellate brief, the agreement "makes no mention of any particular guide to permanent impairment [and] the independent medical examiner may use any guide he/she chooses...." On October 24, 2012, the plaintiff was examined by Patrick Carolan, a physician with Merritt Orthopaedic Associates, P.C. In his October 25, 2012 report, Carolan assigned a 27 percent disability rating to the plaintiff utilizing the sixth edition of the guide. Carolan further opined that the plaintiff's injuries were causally related to his official duties and that the plaintiff was unable to meet the physical requirements of an entry level patrolman. On October 31, 2012, the plaintiff was examined by Gary Solomon, a physician with Rehabilitation Consultants, P.C. In his October 31, 2012 report, Solomon assigned a 38 percent disability rating to the plaintiff. Significantly, Solomon did not specify in his report which edition of the guide he utilized in reaching that determination. Rather, he simply indicated that he was "[f]ollowing the [American Medical Association] Guides to the Evaluation of Permanent Impairment...." Like Carolan, Solomon opined that the plaintiff's injuries were causally related to his official duties and that he was unable to meet the physical requirements of an entry level patrolman. On December 14, 2012, the plaintiff was examined by Kevin Plancher, a physician at Plancher Orthopaedics & Sports Medicine. In his subsequent report, Plancher assigned a 13 percent disability rating to the plaintiff utilizing the sixth edition of the guide. Plancher also opined that the plaintiff's injuries were causally related to his official duties. On January 8, 2013, a regular meeting of the board was convened. At that meeting, the board went into an executive session to discuss three retirements. The minutes of that meeting indicate that, when the executive session concluded, a motion "to approve a 50 percent disability pension, as per the charter, to one officer" was unanimously approved by the board. The board then issued a written resolution dated January 8, 2013, which stated: "Resolved that the [board] hereby grant[s] a [d]isability [p]ension, pursuant to [§] 7-20-1 of the [c]harter of the [city], to: [the plaintiff] who has been a member of the Stamford Police Department for over eight years. [He] will be entitled to a total pension of 50 [percent] of [his] annual salary, or $37,427.35 annually, effective January 11, 2013." That resolution was signed by all five members of the board. Ten days later, the plaintiff sent a letter to Carolan that lies at the heart of this appeal. In that written correspondence, the plaintiff informed Carolan that his October 25, 2012 report was "vastly different from another doctor's opinion of the same injuries." He then explained that, in the "spirit of transparency," he believed that Carolan should know that "Solomon has reached a numerical value of 38 [percent disability] compared to a total of 27 [percent] by [Carolan]." The plaintiff also informed Carolan that he had "applied for a disability pension from the Stamford Police Department and the requirements were a numerical value [of 30 percent] or more . and [Carolan] did not reach that numerical requirement based on his ratings not totaling 30 [percent] or more." Accordingly, the plaintiff stated that he had "included [Solomon's] medical report for your review and consideration. If [Carolan] chooses to review the report and make any amendments, as he deems [necessary, it] would be greatly appreciated." The plaintiff at that time also opined that the discrepancy between the disability ratings assigned by Carolan and Solomon "seem[s] to be based on a different schematic or methodology...." The plaintiff then requested that "Carolan consider using the same schematic or methodologies that were used by [Solomon] to come to a similar numerical value ." (Emphasis added.) Notably, the plaintiff in that letter never referenced the guide or any particular edition thereof. The plaintiff then stated that Carolan "has every right to amend his report as he determines necessary, in light of this new information he is receiving today, and in the spirit of accuracy and fairness. Any amendments to the medical report would be considered an act that was executed on [Carolan's] own volition and without duress or influence by any other person. Purposes of this letter were solely for informative reasons. The information provided to [Carolan] was divulged for transparency and accuracy alone. Any amendment/changes or additions to the report can be forwarded to [the plaintiff], his address is listed below. Kindly respond to this request in writing at your earliest convenience. Thank you in advance for anticipated cooperation concerning this matter regarding the disability ratings of retired police officer Paul Fagan." The letter concluded by listing the plaintiff's home address. It is undisputed that the board was not copied on that written communication or informed in any manner that the plaintiff had sent it to Carolan ten days after the board's January 8, 2013 decision on his application for a disability pension. The return of record is silent as to what transpired over the ensuing months until Carolan mailed a letter to the plaintiff dated April 9, 2013, which was addressed to the board. In that letter, Carolan stated: "I have been requested by [the plaintiff] to [reevaluate] the independent medical report that I had submitted to you on October 25, 2012. In a letter received from [the plaintiff], he asked that I use the [fifth] [e]dition of the [guide]. Previously, I had used the [sixth] [e]dition." Carolan then detailed eight specific changes "in the calculations of the impairment present" in the plaintiff "[w]hen the [fifth] [e]dition is used," which together resulted in a disability rating of 36 percent. Both the plaintiff and "Attorney William J. Varese" were copied on the bottom of that letter. The plaintiff then forwarded a copy of Carolan's April 9, 2013 letter to the board under cover dated April 14, 2013. In that correspondence, the plaintiff stated: "I'm writing to inform you that [Carolan] has amended his independent medical exam report regarding my injuries . and I am requesting that the [board] reconsider my application for a 75 [percent] disability pension under the [agreement]. Two out of three independent medical examiners [concur] that my permanent/partial disability ratings . total 30 [percent] or more." The board considered the plaintiff's request for reconsideration at its June 12, 2013 meeting. At that time, the board unanimously denied that request. Michael Noto, in his capacity as chairman of the board, sent the plaintiff a letter on June 26, 2013, notifying the plaintiff of that decision. That correspondence stated in relevant part: "[T]he [board] has asked me to confirm to you the [b]oard's decision that you do not qualify for a 75 [percent] disability pension under [p]aragraph 9 (K) (2) of the [agreement]. The [b]oard, by formal vote at its meeting on January 8, 2013, previously granted you a 50 [percent] disability retirement benefit pursuant to [§] C7-20-1 of the [city charter] and found at the same time that you did not meet the criteria for a 75 [percent] disability pension pursuant to [the agreement]. The [b]oard, in reaching that decision, had before it three [i]ndependent [m]edical [e]xamination reports which it accepts as valid reports. Examining physicians may use either the [fourth], [fifth], or [sixth] editions of the [guide], and the [b]oard did not specify or request that any physician who examined you use a particular edition. Consequently, the [b]oard does not believe it is necessary now to ask for a reevaluation of your condition using any specific edition. A motion for such a reevaluation was made at the [b]oard's June 12, 2013 meeting . but failed on a unanimous negative vote." The plaintiff appealed from that decision to the Superior Court, claiming that the board's decision was "arbitrary and capricious, and an abuse of discretion." Following a hearing, the court rendered judgment dismissing the appeal. In so doing, the court determined that the agreement does not permit an applicant for a disability pension, following the submission of three independent medical examination reports to the board, to thereafter petition one of the medical examiners to reevaluate the applicant's disability rating in light of the report of another medical examiner. The court further determined that such communications, particularly when done without notice to the board, compromise the independence of those examinations. As the court noted in its memorandum of decision, the agreement "evinces an unmistakable intent that the parties to the agreement wish to keep the examination process free from any outside influences or biases and have a process that would promote honesty and integrity." It continued: "[T]he element of independence is essential to the process [set forth in paragraph 9 (K) (2) of the agreement]. To permit either the applicant or the board to communicate with an examiner when dissatisfied with a disability rating would invite attempts to exert improper influence on the decision maker not only by the applicant but perhaps by the board itself if it was unhappy with an examiner's opinion." The court therefore concluded that substantial evidence in the record supported the board's decision not to reconsider its prior disability pension determination. From that judgment, the plaintiff appealed to this court. Preliminarily, we note the standard applicable to our review of administrative decisions. The board is a creature of municipal enactment and its powers and duties are recognized in both the city charter and the trust agreement. It, therefore, is tantamount to a municipal administrative agency for purposes of appellate review. See O'Connor v. Waterbury , 286 Conn. 732, 740-41, 945 A.2d 936 (2008). The scope of review of an administrative decision "is very restricted.... With regard to questions of fact, it is neither the function of the trial court nor of this court to retry the case or to substitute its judgment for that of the administrative agency.... "The substantial evidence rule governs judicial review of administrative fact-finding.... Substantial evidence exists if the administrative record affords a substantial basis of fact from which the fact in issue can be reasonably inferred.... This substantial evidence standard is highly deferential and permits less judicial scrutiny than a clearly erroneous or weight of the evidence standard of review.... The burden is on the [plaintiff] to demonstrate that the [agency's] factual conclusions were not supported by the weight of substantial evidence on the whole record.... "Even as to questions of law, [t]he court's ultimate duty is only to decide whether, in light of the evidence, the [agency] has acted unreasonably, arbitrarily, illegally, or in abuse of its discretion.... Conclusions of law reached by the administrative agency must stand if the court determines that they resulted from a correct application of the law to the facts found and could reasonably and logically follow from such facts." (Citations omitted; internal quotation marks omitted.) MacDermid, Inc. v. Dept. of Environmental Protection , 257 Conn. 128, 136-37, 778 A.2d 7 (2001) ; accord Ferrier v. Personnel & Pension Appeals Board , 8 Conn. App. 165, 167, 510 A.2d 1385 (1986) (court's function in reviewing decision of municipal pension board "is limited to the examination of the record to determine whether the ultimate decision was factually and legally supported to ensure that the board did not act illegally, arbitrarily or in abuse of its discretion"). "It is fundamental that a plaintiff [bears] the burden of proving that the [municipal board], on the facts before [it], acted contrary to law and in abuse of [its] discretion...." (Internal quotation marks omitted.) O'Connor v. Waterbury , supra, 286 Conn. at 741-42, 945 A.2d 936 ; see also Fonfara v. Reapportionment Commission , 222 Conn. 166, 177, 610 A.2d 153 (1992) ("well established judicial principles . attach a presumption of validity to decisions of authorized public agencies" and burden therefore rests with party challenging agency determination to demonstrate impropriety). In addition, "[b]ecause the . appeal to the [Superior Court was] based solely on the record, the scope of the [Superior Court's] review of the [board's] decision and the scope of our review of that decision are the same.... In other words, the [Superior Court's] decision in this administrative appeal is entitled to no deference from this court." (Internal quotation marks omitted.) Pictometry International Corp. v. Freedom of Information Commission , 307 Conn. 648, 670 n.21, 59 A.3d 172 (2013). In reviewing this administrative appeal, we therefore focus our attention on the propriety of the decisions of the board. I BOARD'S JANUARY 8, 2013 DECISION We first consider the propriety of the board's decision on January 8, 2013, in which it granted the plaintiff a 50 percent disability pension pursuant to § C7-20-1 of the Stamford Charter. In so doing, the board determined that the plaintiff did not meet the requirements for an enhanced disability pension under the agreement. The record contains substantial evidence to support that determination. When the board met at its January 8, 2013 meeting, it had before it three independent medical examination reports prepared by Carolan, Solomon, and Plancher. Only Solomon's report assigned the plaintiff a disability rating of 30 percent or more; Carolan and Plancher's reports assigned disability ratings of 27 and 13 percent, respectively. That evidence indicated that "at least two out of three independent medical physicians" did not "concur that [the plaintiff] has a permanent/partial disability of [30 percent] or a combined permanent/partial disability of [30 percent] or more," as required by paragraph 9 (K) (2) of the agreement. On that evidence, the board concluded that the plaintiff was eligible for a disability pension pursuant to § C7-20-1 of the charter, but not an enhanced one pursuant to paragraph 9 (K) (2) of the agreement. In light of the substantial evidence in the record, we conclude that the board did not act arbitrarily, capriciously, or in abuse of its discretion in reaching its January 8, 2013 decision. The plaintiff has not suggested otherwise in this administrative appeal. II BOARD'S JUNE 12, 2013 DECISION The plaintiff nevertheless asserts that the board acted arbitrarily, capriciously, and in abuse of its discretion in denying his April 14, 2013 request "that the [board] reconsider [his] application for a 75 [percent] disability pension under the [agreement]." He claims that once the board received the April 9, 2013 letter from Carolan containing calculations that resulted in a disability rating of 36 percent, the board was obligated, pursuant to paragraph 9 (K) (2) of the agreement, to discard its prior decision and grant his request for an enhanced disability pension. We disagree. A As an initial matter, we note that the plaintiff's position in this administrative appeal is premised on a faulty presumption-that Carolan's April 9, 2013 letter constituted an amendment of his medical opinion on the plaintiff's disability rating intended to supplant that contained in his earlier report of October 25, 2012. The record before us contains no such finding by the board. To the contrary, Noto's June 26, 2013 letter to the plaintiff suggests that the board regarded Carolan's April 9, 2013 letter as merely a submission of alternate calculations under a different methodology. Substantial evidence in the record supports such a determination. In his April 9, 2013 letter to the board, Carolan stated in relevant part: "I have been requested by [the plaintiff] to [reevaluate] the independent medical report that I had submitted to you on October 25, 2012.... [The plaintiff] asked that I use the [fifth] [e]dition of the [guide].... When the [fifth] [e]dition is used, the following changes occur in the calculation of the impairment...." Nowhere in that written correspondence does Carolan disavow his earlier medical opinion or otherwise indicate that the calculations contained in the April 9, 2013 letter were intended to supplant that prior opinion. See footnote 14 of this opinion. Given the plain language utilized therein by Carolan, the board reasonably could construe that letter as a supplement to, rather than a replacement for, Carolan's prior report, in which the plaintiff's impairment was calculated under an alternative methodology specifically requested by the plaintiff but not by the board. Furthermore, the board was not required, under either the terms of the agreement or its own protocols and procedures, to give any weight to the alternative calculations contained in Carolan's April 9, 2013 letter. The plaintiff concedes, as he must, that neither the charter nor the agreement requires application of any particular edition of the guide in the independent medical examination process. As the plaintiff recognizes in his principal appellate brief, "the independent medical examiner may use any guide he/she chooses...." After conducting his examination of the plaintiff on October 24, 2012, Carolan chose to utilize the sixth edition of the guide in preparing his report to the board. Accordingly, the board was well within its discretion in accepting "as valid" that report, a determination that Noto confirmed in his June 26, 2013 letter to the plaintiff. B On a more fundamental level, the board's decision to credit Carolan's October 25, 2012 report in rendering its decision on the plaintiff's disability pension application implicates its exclusive role as arbiter of credibility and the weight to be afforded to particular evidence. As our Supreme Court has observed, "weighing the accuracy and credibility of the evidence" is the province of the administrative agency. Connecticut Natural Gas Corp. v. Public Utilities Control Authority , 183 Conn. 128, 136, 439 A.2d 282 (1981). Reviewing courts thus "must defer to the agency's assessment of the credibility of the witnesses and to the agency's right to believe or disbelieve the evidence presented by any witness, even an expert, in whole or in part." Briggs v. State Employees Retirement Commission , 210 Conn. 214, 217, 554 A.2d 292 (1989) ; see also Standard Oil of Connecticut, Inc. v. Administrator, Unemployment Compensation Act , 320 Conn. 611, 623, 134 A.3d 581 (2016) (reviewing court cannot "substitute its own judgment for that of the administrative agency on the weight of the evidence" [internal quotation marks omitted] ); Tarasovic v. Zoning Commission , 147 Conn. 65, 69, 157 A.2d 103 (1959) ("[i]t is not the function of the court to pass upon the credibility of the evidence heard" by administrative agency). The board in the present case credited Carolan's October 25, 2012 report in rendering its January 8, 2013 decision on the plaintiff's disability pension application. Noto's June 26, 2013 letter further confirms that the board adhered to that credibility determination even after it was presented with Carolan's subsequent letter offering different calculations of the plaintiff's disability pursuant to an alternative edition of the guide. Although the record of the board's proceedings on the plaintiff's motion for reconsideration is sparse, Noto's letter suggests that the board accorded little weight to Carolan's supplemental communication, as it indicates that reconsideration of the board's prior decision was not warranted. This appellate tribunal cannot revisit that determination. Id. Moreover, in making that credibility determination, the board also could consider the undisputed circumstances that gave rise to Carolan's April 9, 2013 letter. As the Superior Court emphasized in its memorandum of decision, the independence of examining physicians is a crucial component of the medical examination process detailed in paragraph 9 (K) (2) of the agreement and the board's retirement guide. In the present case, it is undisputed that, after being notified of the board's January 8, 2013 decision on his disability pension application, the plaintiff unilaterally contacted Carolan without providing any notice to the board and apprised Carolan (1) that a disability rating of "30 percent or more" was required to qualify for the requested disability pension; (2) that Carolan's October 25, 2012 report was "vastly different" from that submitted by Solomon; (3) that Solomon had assigned a 38 percent disability rating to the plaintiff; and (4) that the plaintiff was "requesting that [Carolan] consider using the same schematic or methodologies that were used by [Solomon] to come to a similar numerical value." That correspondence also included a copy of Solomon's medical report "for [Carolan's] review and consideration." By so doing, the plaintiff undermined, if not eviscerated, the independence that is integral to the medical examination process outlined in paragraph 9 (K) (2) of the agreement and the retirement guide. Because Carolan's April 9, 2013 communication to the board expressly states that it was made at the behest of the plaintiff, the board was free, in its discretion, to decline to credit the substance of that communication. See Briggs v. State Employees Retirement Commission , supra, 210 Conn. at 217, 554 A.2d 292. Our review of the record reveals substantial evidence on which the board could determine that reconsideration of its January 8, 2013 decision was unwarranted. The plaintiff, therefore, has not demonstrated that the board's June 12, 2013 decision was arbitrary, capricious, or an abuse of the board's discretion. We, therefore, conclude that the court properly dismissed the plaintiff's administrative appeal. The judgment is affirmed. In this opinion the other judges concurred. Also named as defendants in the plaintiff's complaint were the city's police department and the individual members of the board-Michael Noto, Michael Merenda, Michael Berkoff, Thomas E. Deegan, and Frank J. Mercede. Approximately thirteen months after that appeal was commenced in the Superior Court, the court rendered summary judgment in favor of the city and the police department. The plaintiff does not contest the propriety of that judgment in this appeal. In hearing administrative appeals such as the present one, the Superior Court acts as an appellate body. See General Statutes § 4-183 (j) ; see also Connecticut Coalition Against Millstone v. Connecticut Siting Council , 286 Conn. 57, 85, 942 A.2d 345 (2008) (noting that Superior Court sits "in an appellate capacity" when reviewing administrative appeal); Par Developers, Ltd. v. Planning & Zoning Commission , 37 Conn. App. 348, 353, 655 A.2d 1164 (1995) (distinguishing administrative appeals in which Superior Court "reviewed the agency's decision in an appellate capacity"). Paragraph 9 (K) (1) of the agreement provides in relevant part that the board "shall select the independent medical examiners from [b]oard [c]ertified [p]hysicians who are specialists in the field which involves the particular physical or mental disability claimed by such member." It is undisputed that the board complied with that mandate in the present case. The plaintiff subsequently notified the board of his request to "extend [his] retirement date until January 11, 2013." The return of record contains a documentary presentation prepared by the American Medical Association regarding the sixth edition of the guide. It states in relevant part that "[t]he state of Connecticut allows the use of the [f]ourth, [f]ifth, and [s]ixth editions of the [guide]. However, the Connecticut State Medical Society recommends the use of the most recent edition." The record also contains the minutes of the March 6, 2009 meeting of the Connecticut Workers' Compensation Commission, at which the chairman of that commission "advised that it is Commission policy to encourage but not require the use of the [guide]. Physicians are not limited to a particular edition of the [guide] but are expected to be able to objectively justify the basis for their rating." The return of record in this case does not include any edition of the guide or any excerpt therefrom. Later in his appellate brief, the plaintiff states that the agreement "essentially leaves the ultimate decision [as to which edition to utilize] to whichever independent medical examiner that the board chooses, and the board is then governed by the [agreement] to follow what the Physician then reports to the board." In their respective appellate briefs, the parties state that Solomon's report indicates that he utilized the fifth edition of the guide in determining the plaintiff's disability. That report, however, contains no reference to any edition of the guide. Moreover, in a May 27, 2013 letter addressed to the president and the vice president of the association, which is contained in the return of record, the plaintiff stated that the reports of the three independent medical examiners that were relied on by the board in reaching their January 8, 2013 decision "all used the sixth edition" of the guide. At the time of his examination by Plancher, the plaintiff was thirty-five years old. Because the board conducted its review of the plaintiff's application for a disability retirement and the corresponding independent medical evaluations in an executive session, the record necessarily lacks evidence of the board's deliberations at that time. The return of record also contains a "Retirement Worksheet" that the board completed on behalf of the plaintiff on January 9, 2013. That worksheet specifies that the plaintiff was to receive a monthly pension of $3118.95 commencing on January 11, 2013. In its appellate brief, the board notes that the plaintiff at that time began collecting his disability benefits "without objection." The plaintiff did not dispute that contention in either his reply brief or at oral argument before this court. Although the plaintiff represented to Carolan that the information contained in his January 18, 2013 letter was communicated in "the spirit of transparency" and "the spirit of accuracy and fairness," he failed to mention in that letter that a third medical examiner had assigned a 13 percent disability rating utilizing the same edition of the guide as Carolan. Carolan's reference to the fifth edition of the guide in his April 9, 2013 letter is, in a word, curious. Although he directly attributes that reference to the written request of the plaintiff, we repeat that, in his January 18, 2013 letter to Carolan, the plaintiff made no mention of the guide or any particular edition. To the extent that further communications transpired between Carolan and either the plaintiff or the legal counsel copied on Carolan's April 9, 2013 letter, those communications are not contained in the record before us. Carolan's April 9, 2013 letter to the board states in full: "I have been requested by [the plaintiff] to [reevaluate] the independent medical report that I had submitted to you on October 25, 2012. In a letter received from [the plaintiff], he asked that I use the [fifth] [e]dition of the [guide]. Previously, I had used the [sixth] [e]dition. When the [fifth] [e]dition is used, the following changes occur in the calculation of the impairment present within [the plaintiff's] various body parts: 1. Cervical spine, 18 [percent] of the cervical spine. 2. Lumbar spine, 6 [percent] of the lumbar spine. 3. Right shoulder, 4 [percent] of the right upper extremity. 4. Right elbow, 0 [percent] of the right upper extremity. 5. Right wrist, 2 [percent] of the right upper extremity. 6. Right knee, 2 [percent] of the right lower extremity. 7. Left knee, 2 [percent] of the left lower extremity. 8. Right foot and ankle, 2 [percent] of the right lower extremity. If there is any further information necessary regarding this matter, please contact me at the above address." The return of record does not contain a transcript or minutes of the board's June 12, 2013 hearing, at which it considered the plaintiff's request for reconsideration. We repeat that, in his January 18, 2013 letter to Carolan, the plaintiff represented that he was requesting a reevaluation of his disability rating "solely for informative reasons." In his subsequent letter to the board, Carolan stated that, at the behest of the plaintiff, he was providing a calculation of the plaintiff's impairment pursuant to the fifth edition of the guide. In response, Noto, in his June 26, 2013 letter to the plaintiff, stated in relevant part that "[e]xamining physicians may use either the [fourth], [fifth], or [sixth] editions of the [guide], and the [b]oard did not specify or request that any physician who examined you use a particular edition. Consequently, the [b]oard does not believe it is necessary now to ask for a reevaluation of your condition using any specific edition." The plain inference of that response is that the board considered Carolan's disability calculations under an alternative edition of the guide to be an unnecessary supplement to the administrative record on which it predicated its January 8, 2013 decision. It bears repeating that, apart from the abstract assertion contained in the plaintiff's January 18, 2013 letter, there is no evidence in the record indicating that Solomon utilized a different edition of the guide or methodology from that employed in Carolan's October 25, 2012 report. See footnote 8 of this opinion. For that reason, the retirement guide mandates that an applicant's three independent medical examinations "must not be with any doctor that has seen you in the past." The board's appointment letter to those physicians likewise cautioned: "Please do not proceed if this officer has ever been treated by you." (Emphasis omitted.) In the letters that were sent to Carolan, Solomon, and Plancher, that sentence was underlined for emphasis. In his principal appellate brief, the plaintiff makes much of the use of the term "concur" in paragraph 9 (K) (2) of the agreement, which provides in relevant part that a member of the city's police department is eligible for an enhanced disability pension "if at least two out of three independent medical physicians . concur that same member has a permanent/partial disability of [30 percent] or a combined permanent/partial disability of [30 percent] or more...." The plaintiff thus argues that the agreement requires that the three independent medical examiners "must review each other's reports [prior to making] a decision." It is well established that individual words or clauses of a contract "cannot be construed by taking them out of context and giving them an interpretation apart from the contract of which they are a part." Levine v. Advest, Inc. , 244 Conn. 732, 753, 714 A.2d 649 (1998) ; see also Restatement (Second), Contracts § 202, comment (d), p. 88 (1981) ("Meaning is inevitably dependent on context. A word changes meaning when it becomes part of a sentence, the sentence when it becomes part of a paragraph."). When properly read in the context in which the word "concur" arises in the agreement between the city and the association, the plaintiff's assertion is absurd, as it contravenes the plain intent of those parties in setting forth a mechanism for the independent medical evaluation of a member's physical impairment by three different physicians. See Welch v. Stonybrook Gardens Cooperative, Inc. , 158 Conn. App. 185, 198, 118 A.3d 675 (courts "will not construe a contract's language in such a way that it would lead to an absurd result"), cert. denied, 318 Conn. 905, 122 A.3d 634 (2015) ; see also Foley v. Huntington Co. , 42 Conn. App. 712, 729, 682 A.2d 1026 ("[t]he law is clear that a contract includes not only what is expressly stated therein but also what is necessarily implied from the language used" [internal quotation marks omitted] ), cert. denied, 239 Conn. 931, 683 A.2d 397 (1996). The examination process outlined in the agreement and the retirement guide requires separate examinations and reports, and not a group effort by the physicians.

12510690

Gad LAVY v. Michele Brown LAVY

Lavy v. Lavy

2019-05-21

AC 40936

98

115

210 A.3d 98

210

West's Atlantic Reporter, Third Series

Connecticut Appellate Court

Connecticut

2021-08-27T20:57:56.130816+00:00

Fastcase

Gad LAVY v. Michele Brown LAVY

Gad LAVY v. Michele Brown LAVY AC 40936 Appellate Court of Connecticut. Argued January 9, 2019 Officially released May 21, 2019 Alexander J. Cuda, Westport, for the appellant (plaintiff). Eric M. Higgins, Stamford, with whom, on the brief, was Sarah Gleason, for the appellee (defendant). Prescott, Elgo and Harper, Js.

8370

52228

PRESCOTT, J. The plaintiff, Gad Lavy, appeals from the judgment of the trial court granting the motion of the defendant, Michele Brown, to open and reform the parties' marital dissolution judgment because the plaintiff failed to disclose on his financial affidavit two marital assets: a savings account with First Niagara Bank, N.A., formerly known as NewAlliance Bank (Niagara account), and real property located in the Middle East (Jerusalem property). The plaintiff later amended this appeal to challenge the court's subsequent decision to grant the defendant's motion for an award of postjudgment interest. On appeal, the plaintiff claims that the court improperly (1) found that his failure to disclose the Niagara account and Jerusalem property on his financial affidavit constituted material omissions that triggered remedial measures set forth in the parties' separation agreement, which was incorporated by reference into the judgment of dissolution, (2) awarded the defendant prejudgment interest despite her having requested such relief for the first time in her posthearing brief, and (3) awarded the defendant postjudgment interest during the pendency of the appeal, purportedly in violation of the automatic appellate stay. We reject the plaintiff's claims and, accordingly, affirm the judgment of the trial court. The following facts and procedural history, which were found by the court or are uncontested, are relevant to our resolution of the plaintiff's claims. The court dissolved the parties' marriage on June 14, 2011, following an uncontested hearing. The judgment of dissolution incorporated by reference the parties' separation agreement. The parties attached to the separation agreement financial affidavits dated June 14, 2011. In article XXI, paragraph 21.1, of the separation agreement, the parties represented that their attached financial affidavits were true and accurate. They further stated that they had relied on the facts set forth in those financial affidavits in reaching the terms and financial arrangements set forth in the separation agreement. Paragraph 21.1 further provides: "Each party expressly represents that there has been no substantial change in circumstances to [either party] since the date of said affidavits and that said affidavits fully, fairly and accurately [sets] forth the existing assets, liabilities, and income of the parties. The parties expressly represent to each other that they do not own any other assets nor are any assets being held by a third party for the benefit of either [party], except those described and divided under the terms of this agreement and the parties' respective financial affidavits. Each party represents that he or she relied on the financial affidavits and voluntary disclosures and representations made by the other party in the course of this dissolution of marriage action for purposes of arriving at the terms of this agreement. The parties further acknowledge that each has a fiduciary duty to the other to make a full and fair disclosure of his or her financial circumstances, including all assets, to the other in connection with this proceeding. In the event of a material omission or misstatement by either party in his or her affidavit, the other party shall have the right to rescind this [a]greement and reopen and reform any judgment entered in the pending action incorporating the terms hereof." Article XXI of the separation agreement further provides that if either party made a material omission of an asset on his or her financial affidavit, the other party would be entitled to receive 75 percent of the undisclosed asset's value measured at the time of dissolution. The party who failed to disclose an asset also would be liable for the other party's "reasonable legal fees, expert fees, and court costs." On August 9, 2011, the defendant filed a motion to open and reform the June 14, 2011 judgment of dissolution, invoking article XXI of the separation agreement. According to the defendant, the plaintiff had failed to disclose on his June 14, 2011 financial affidavit the existence of the Jerusalem property, which she described as a condominium apartment and storeroom. She also claimed there was a "likelihood beyond mere suspicion that the plaintiff has failed to disclose additional assets as yet unknown to the defendant" because his financial affidavit did not disclose any bank accounts in Israel or other means by which the plaintiff could pay the taxes and costs associated with owning the condominium. The defendant asked the court to open the dissolution judgment for the purpose of conducting limited discovery and, if necessary, to distribute any undisclosed property in accordance with the separation agreement, including awarding reasonable attorney's fees and costs. In response to the defendant's motion to open, the plaintiff initially filed a motion to dismiss asserting insufficiency of process, which he later withdrew. He subsequently filed a motion to strike, challenging the legal sufficiency of the defendant's motion, and a request to revise. The court denied both motions. The defendant never filed a written opposition addressing the merits of the motion to open. On December 14, 2011, the defendant amended her motion to open and reform the dissolution judgment, asserting that, since filing her initial motion, she had learned of additional grounds for granting the motion. Specifically, in addition to reasserting the allegations in her initial motion to open, the defendant asserted that the plaintiff had failed to disclose the existence of the Niagara account, which she described as a savings account that had been open for at least three years and, thus, existed at the time the plaintiff submitted his June 14, 2011 financial affidavit. The parties eventually executed a stipulation in which they agreed to have the court open the dissolution judgment for the limited purpose of conducting discovery. The stipulation expressly provided that it was "not an admission of any misrepresentation or fraud on the part of either party with respect to the representations made at the time of [j]udgment." The court approved the stipulation and made it an order of the court on November 5, 2012. On June 15, 2016, the plaintiff filed a motion in which he asserted that the defendant had opened the Niagara account in the plaintiff's name, without his knowledge, using her own funds, and, thus, she had a duty to disclose the Niagara account on her financial affidavit. According to the plaintiff, the defendant's failure to disclose the existence of the account entitled him to an award of legal fees and costs under the terms of the separation agreement. The court conducted an evidentiary hearing on the defendant's motion to open, as amended, on November 16 and 17, 2016. At that time, the court also considered the plaintiff's motion for an award of costs and attorney's fees. The parties submitted posthearing memoranda and reply memoranda. The court later granted a request by the defendant for additional oral argument, which it heard on April 11, 2017. The court issued a memorandum of decision on August 7, 2017, granting the defendant's motion to open and reform the dissolution judgment. With respect to the Jerusalem property, the court found that the plaintiff's brother had conveyed the property to him for no consideration and that a title abstract reflecting the conveyance had been recorded in the Jerusalem land registry on January 27, 1999. The plaintiff remained the record owner of the Jerusalem property at the time of the dissolution judgment. Although the plaintiff testified that he had not included the Jerusalem property on his financial affidavit because he did not know he owned the property, the court did not find that testimony credible. Rather, the court credited the testimony of the defendant's real estate expert, Attorney Yoram Hacohen, who opined that before a conveyance for no consideration could be recorded on the land records in Jerusalem, the grantee, in this case the plaintiff, would have been required to sign a number of legal documents. The court found that the fair market value of the Jerusalem property, measured in United States dollars at the time of the dissolution judgment, was $ 146,379. The court further found that the plaintiff's failure to include the Jerusalem property on his June 14, 2011 financial affidavit was a material omission. The court made the following findings relative to the defendant's knowledge of the Jerusalem property at the time of the dissolution judgment. "The Jerusalem property came to [the defendant's] attention as a result of her efforts to locate property that was owned by [the plaintiff] in Israel.... [I]n early 2011, she and her counsel in the dissolution action had retained an attorney in Israel to find out whether [the plaintiff] owned any property there. That attorney engaged a private investigator, who advised them that [the plaintiff] did not own any real property in Israel. Shortly before the uncontested dissolution hearing, however, [the defendant's] boyfriend, who was also a lawyer, hired a different attorney in Israel. That attorney reported that [the plaintiff] owned a condominium in Jerusalem and forwarded a copy of a document from the land records. "Despite the conflicting, unverified reports that she had received regarding a possible asset belonging to [the plaintiff] that he had not disclosed, [the defendant] determined to proceed with the uncontested dissolution hearing on June 14, 2011.... [S]he did so because of the tremendous distrust and acrimony that existed between the parties at that time. She was afraid that if she did not go ahead with the uncontested divorce in June, 2011, that [the plaintiff] would deny her a get-a divorce under Jewish religious law-and thus prevent her from remarrying in the Jewish faith. She also believed that she would have recourse under article XXI of the June, 2011 separation agreement if she later established that [the plaintiff] owned property in Israel which was not reflected on his June 14, 2011 financial affidavit." Regarding the Niagara account, the court found that the account was opened in July, 2008, with an initial deposit of $ 89,146.50. The balance of the Niagara account as of April 28, 2011, was $ 92,432. The court further found that, although the plaintiff owned the Niagara account on the date of entry of the dissolution judgment, he failed to disclose that account on his financial affidavit, and this constituted a material omission under the separation agreement. The plaintiff testified that, as with the Jerusalem property, he did not know that the account existed. The court, however, did not credit this assertion. The court found that the defendant was the person who originally had funded the Niagara account with money from her office. The defendant opened the Niagara account in the plaintiff's name, in trust for the parties' son. The plaintiff signed the original documents necessary to open the account in two places. The defendant never signed the account-opening documents, never deposited any additional money into the Niagara account after the initial deposit, and never made any withdrawals or had anything to do with the account after it was opened. Although the plaintiff's name appeared on the bank account statements, the defendant's office address was listed on the statement as the depositor's address rather than the plaintiff's office address. According to the defendant and her office manager, however, no statements were ever delivered to her office. With respect to the receipt of banking statements and other correspondences relative to the Niagara account, the court made the following additional findings: "From July, 2008, when [the Niagara account] was opened, through the parties' divorce in June, 2011, [the defendant's] office was at 999 Summer Street, suite 302, and [the plaintiff's] office was two buildings away, at 1275 Summer Street, in Stamford. Counsel for [the defendant] suggested that [the Niagara account] statements and [other forms] were simply delivered to [the plaintiff] at his office on the same street. The plaintiff denied receiving [the Niagara account] statements or any [other forms] from the bank." The court did not expressly resolve the issue regarding the delivery and receipt of the bank statements, but credited the defendant's testimony that she was not aware that the Niagara account still existed as of the date of entry of the dissolution judgment, and that she first learned that it remained open when an escheat letter from the bank, addressed to the plaintiff, was mailed to her office address in November, 2011. On the basis of its findings that the plaintiff had failed to disclose both the Jerusalem property and the Niagara account on his June 14, 2011 financial affidavits, and that the failure to disclose those assets qualified as material omissions under the terms of the separation agreement, the court ordered the plaintiff to pay the defendant an additional $ 179,109, which represented 75 percent of the value of the undisclosed assets at the time of the dissolution judgment. The court also awarded the defendant prejudgment interest from the date of the dissolution judgment at the annual rate of 5 percent or $ 55,141, for a total of $ 234,250. Moreover, the court determined that the defendant was entitled to costs and reasonable attorney's fees totaling $ 194,123.76. It denied the plaintiff's motion for attorney's fees and costs. The plaintiff filed a motion to reargue, which the court denied. The plaintiff filed the present appeal on October 11, 2017. On August 16, 2017, the defendant filed a motion asking the court for an award of postjudgment interest. She later filed a memorandum of law in support of the motion. The plaintiff did not file a written objection or memorandum of law in opposition to the defendant's motion. The court heard argument on the defendant's motion on February 26, 2018. On June 11, 2018, the court issued a decision granting the defendant's motion and awarding postjudgment interest at an annual rate of 5 percent. The plaintiff amended the present appeal, challenging the postjudgment interest award. Because briefs already had been filed in the initial appeal, this court granted permission to file supplemental briefs addressing the issue in the amended appeal. See Practice Book § 61-9. Additional facts will be set forth as needed. I We begin with the plaintiff's claim that the court improperly found that he made material omissions on his financial affidavit in violation of the separation agreement by failing to disclose the Niagara account and Jerusalem property. The plaintiff essentially raises three arguments in support of this claim. First, he argues that, because the defendant knew about the Niagara account and the Jerusalem property at the time of the dissolution judgment, their nondisclosure on his financial affidavit would not have affected her decision-making process and, therefore, his failure to disclose those assets could not have constituted material omissions. Second, he argues that his nondisclosure of the Niagara account and the Jerusalem property had no "real importance or cause[d] great consequences to the overall separation agreement of the parties" and that the court overvalued those assets in determining whether their nondisclosure constituted material omissions. Third, the plaintiff argues that the court should not have found that his failure to disclose the Niagara account was a material omission because there was no evidence that the plaintiff knew the Niagara account existed at the time of the divorce. We are not persuaded by these arguments and conclude that the court properly determined on the basis of the record presented that the plaintiff's failure to disclose the assets in question constituted material omissions. The general standard of review applicable to a motion to open a judgment is well settled. "We do not undertake a plenary review of the merits of a decision of the trial court to grant or to deny a motion to open a judgment.... [O]ur review is limited to the issue of whether the trial court has acted unreasonably and in clear abuse of its discretion.... In determining whether the trial court abused its discretion, this court must make every reasonable presumption in favor of its action.... The manner in which [this] discretion is exercised will not be disturbed so long as the court could reasonably conclude as it did." (Internal quotation marks omitted.) Reville v. Reville , 312 Conn. 428, 440, 93 A.3d 1076 (2014). In applying our abuse of discretion standard, "[t]he court's factual findings will not be disturbed unless there is either no support for them in the record, or, after reviewing the entire evidence, we are left with the definite and firm conviction that a mistake has been committed." (Internal quotation marks omitted.) Rheaume v. Rheaume , 156 Conn. App. 766, 774, 115 A.3d 1116 (2015). It bears repeating that "[j]udicial review of a trial court's exercise of its broad discretion in domestic relations cases is limited to the questions of whether the [trial] court correctly applied the law and could reasonably have concluded as it did.... In making those determinations, we allow every reasonable presumption . in favor of the correctness of [the trial court's] action.... Generally, we will not overturn a trial court's division of marital property unless [the court] misapplies, overlooks, or gives a wrong or improper effect to any test or consideration [that] it was [its] duty to regard." (Citation omitted; internal quotation marks omitted.) O'Brien v. O'Brien , 326 Conn. 81, 122, 161 A.3d 1236 (2017). "[T]he weight to be given the evidence and the credibility of the witnesses are within the sole province of the trial court.... The trial court has the unique opportunity to view the evidence presented in a totality of circumstances, i.e., including its observations of the demeanor and conduct of the witnesses and parties, which is not fully reflected in the cold, printed record which is available to us." (Internal quotation marks omitted.) McRae v. McRae , 129 Conn. App. 171, 180, 20 A.3d 1255 (2011). A We first address the plaintiff's argument that his failure to disclose the Niagara account and Jerusalem property did not constitute "material omissions" as that phrase is used in paragraph 21.1 of the parties' separation agreement because the defendant knew about the existence of the undisclosed assets at the time of the dissolution judgment. According to the plaintiff, because the defendant knew about the undisclosed assets prior to the dissolution judgment, his failure to disclose those assets on his financial affidavit could not have affected her decision-making process with respect to the financial orders in the separation agreement. In other words, the plaintiff contends that the defendant's predissolution knowledge of the undisclosed assets rendered their omission from his financial affidavit immaterial. We are not persuaded. Our rules of practice require that "at the time a dissolution of marriage or civil union, legal separation or annulment action . is scheduled for a hearing, each party shall file . a sworn statement . of current income, expenses, assets and liabilities." Practice Book § 25-30. It is well settled that, in family relations matters, parties have an important and necessary obligation, both to the court and to each other, to be fulsome and honest regarding their financial disclosures because, in doing so, they help to reduce or eliminate the need for extensive financial discovery and the resulting inefficiencies and delays, "and will thereby help to preserve a greater measure of the . marital assets for the support of all of the family members." Billington v. Billington , 220 Conn. 212, 222, 595 A.2d 1377 (1991). In Billington , the court emphasized the heightened duty that parties have for full and frank disclosure on financial affidavits submitted in dissolution actions, and concluded that imposing a requirement on the opposing party to discover nondisclosures or other violations would be inconsistent with that duty. The court noted: "A court is entitled to rely upon the truth and accuracy of sworn statements . and a misrepresentation of assets and income is a serious and intolerable dereliction on the part of the affiant which goes to the very heart of the judicial proceeding.... These sworn statements have great significance in domestic disputes in that they serve to facilitate the process and avoid the necessity of testimony in public by persons still married to each other regarding the circumstances of their formerly private existence.... Thus, the requirement of diligence in discovering fraud is inconsistent with the requirement of full disclosure because it imposes on the innocent injured party the duty to discover that which the wrongdoer already is legally obligated to disclose." (Citations omitted; internal quotation marks omitted.) Id., at 219-20, 595 A.2d 1377. Accordingly, it is the duty of the party who owns an asset to disclose it on his or her financial affidavit. These same principles were incorporated by the parties into article XXI of their separation agreement, in which they expressly acknowledge that they each (1) owed "a fiduciary duty to the other to make a full and fair disclosure of his or her financial circumstances, including all assets, to the other in connection with this proceeding," and (2) "relied on the financial affidavits and voluntary disclosures and representations made by the other party in the course of this dissolution of marriage action for purposes of arriving at the terms of this agreement." The plaintiff nevertheless argues on appeal that the defendant knew about the Jerusalem property and the Niagara account prior to the dissolution and that her knowledge rendered his nondisclosure of the assets on his financial affidavit far less significant. Her knowledge, he contends, made it unlikely that the nondisclosure affected her ability to negotiate the parties' settlement agreement, particularly with respect to ensuring that she received an equitable distribution of the marital assets. The plaintiff's argument fails, however, because there are no findings by the court that the defendant had knowledge of the undisclosed assets during negotiation of the separation agreement let alone at the time the dissolution judgment was rendered. Whether the defendant had knowledge of the undisclosed assets prior to the dissolution judgment was a factual question for the trial court, and the court was free to reject evidence that the defendant knew of the assets. With respect to the Jerusalem property, the court found only that the defendant had received "conflicting" and "unverified reports" that raised the possibility that the plaintiff had real property that he had not disclosed to the defendant. The court also credited the defendant's testimony that she agreed to the divorce despite her suspicions because she was concerned that, given the acrimonious nature of the parties' relationship, if she delayed the divorce proceedings in order to investigate further, the plaintiff might deny her a "get," and that she knew she could take advantage of article XXI of the separation agreement if she was able later to establish that the plaintiff owned additional real property. Accordingly, the record supports only a conclusion that the defendant was aware at the time of dissolution of the possibility that the plaintiff owned undisclosed real property. It was not until later that the defendant received more definitive proof of the existence of the Jerusalem property. As to the Niagara account, the court found that the defendant had opened the account in 2008 in the plaintiff's name. The court, however, credited the defendant's testimony that, after making the initial deposit, the defendant had nothing further to do with the account and specifically found that "[a]s of the date of entry of the dissolution judgment, [the defendant] was not aware that the First Niagara account still existed. She first learned that the First Niagara account remained open when an escheat letter from the bank arrived at her office in November, 2011," which was after the judgment of dissolution. The plaintiff has not challenged the court's factual findings and, therefore, any claim that the defendant had prior knowledge of the account is simply untenable. The plaintiff has not directed us to any language in the parties' separation agreement to support his contention that a party would be exempt from the duty to disclose an asset on his or her financial affidavit if the other party was aware of the existence of the asset. Moreover, the duty of full disclosure of assets was not solely for the benefit of the parties, but was also necessary for the court to evaluate the reasonableness of the parties' agreement and how much, if any, should be incorporated into the dissolution judgment. For all of these reasons, we reject the defendant's argument. B The plaintiff next argues that the undisclosed assets did not "have real importance or cause great consequences to the overall separation agreement of the parties." According to the plaintiff, the court improperly inflated the significance of the omissions by comparing their value to the total value of disclosed assets in the same asset category. The plaintiff argues that the court instead should have compared the value of the undisclosed assets against the value of the entire marital estate. The defendant responds that, regardless of the size of the estate, the nondisclosure of assets totaling $ 238,811 is a material omission. Although it is possible to imagine a marital estate so vast that the nondisclosure of over $ 200,000 in assets might be viewed as nominal or de minimis and thus render the omission immaterial, this certainly is not that case. Accordingly, we find the plaintiff's argument unpersuasive. The court found that, at the time of the dissolution of marriage, the fair market value of the Jerusalem property was $ 146,379 and that the balance in the Niagara account was $ 92,432. Thus, the total value of the undisclosed assets was $ 238,811. The court found that if the plaintiff had disclosed the Jerusalem property on his financial affidavit it "would have represented approximately 7.5 percent of the total real estate assets disclosed ." Similarly, the court found that if the plaintiff properly had disclosed the Niagara account on his financial affidavits, "it would have represented 34 percent of the total value of bank accounts that he reported at that time." The plaintiff maintains that by only comparing the value of the undisclosed assets to the value of similar assets rather than to the value of the entire marital estate, which was approximately $ 16 million, the court inflated the significance of the undisclosed assets. Compared to the entire marital estate, the Jerusalem property and Niagara account together represented 1.5 percent, significantly less than the 7.5 percent and 34 percent calculations mentioned by the trial court. Even if we agreed with the plaintiff that the court did not use the proper yardstick with which to measure the materiality of the omissions, we cannot conclude that the omission of assets valued at 1.5 percent of the marital estate was de minimis or immaterial. To suggest that the failure to disclose nearly $ 240,000 in assets would not have had great consequences to the overall separation agreement is to suggest that the defendant would have been content to walk away from her equitable share of those assets. We cannot reach that conclusion in the present case. The plaintiff does not challenge the trial court's valuation of the undisclosed assets, and we are not convinced that the trial court's discussion of the relative value of the assets rendered its overall determination that the plaintiff's nondisclosures were material omissions legally or logically incorrect or unsupported by the record. C Finally, the plaintiff argues that it was improper for the court to find that his failure to disclose the Niagara account was a material omission because there was no evidence that the plaintiff knew of the Niagara account's existence at the time of the divorce. The gravamen of the plaintiff's argument is that the court's finding that he had knowledge of the Niagara account, and thus had a duty to disclose it, is clearly erroneous because the defendant presented no evidence at the hearing establishing that bank account statements bearing his name were delivered to him rather than to the defendant's office to which they were addressed. We disagree that the court's finding was clearly erroneous. Both the defendant and her office manager testified that no bank statements were delivered to her office, and the court credited that testimony. It is true, as the plaintiff contends, that this, by itself, is not direct evidence that the statements were in fact delivered to the plaintiff. Nevertheless, the account-opening document was admitted into evidence and lists the plaintiff as the account owner. The document contains the plaintiff's signature in two places. One of the signatures authorized the bank to "open one or more deposit accounts, as required, for the person or entity listed as the account owner on this card." The plaintiff acknowledges that the signatures are his. Accordingly, the plaintiff was aware at that time that a savings account was opened in his name, and he never sought to close the account. Even if he was not aware of the status of the account at the time of dissolution or the balance of the funds in the account, he could have, through the exercise of due diligence, determined such information and disclosed it on his financial affidavit. In sum, because there was evidence before the court to support its finding that the plaintiff knew about the Niagara account, the finding was not clearly erroneous. II The plaintiff next claims that the court improperly awarded the defendant statutory prejudgment interest because she requested prejudgment interest for the first time in her posthearing brief. We disagree. The following additional procedural history is relevant to this claim. In both her initial and amended motion to open, the defendant made the following request for relief: "the distribution of previously undisclosed property and an award to the defendant of her reasonable counsel fees and costs." She did not specifically request prejudgment interest at that time. In her posthearing brief, however, the defendant argued that she was entitled to prejudgment interest pursuant to General Statutes § 37-3a (a), which authorizes the court to award interest at a rate not to exceed 10 percent per year as damages for the unlawful retention of money. "The allowance of prejudgment interest as an element of damages is an equitable determination and a matter lying within the discretion of the trial court.... Before awarding interest, the trial court must ascertain whether [a party] has wrongfully detained money damages due [to another].... Interest on such damages ordinarily begins to run from the time it is due and payable to the [party entitled to the damages].... The determination of whether or not interest is to be recognized as a proper element of damage, is one to be made in view of the demands of justice rather than through the application of an arbitrary rule." (Internal quotation marks omitted.) Blakeslee Arpaia Chapman, Inc. v. EI Constructors, Inc. , 239 Conn. 708, 734-35, 687 A.2d 506 (1997). "It is well established that interest need not be specially claimed in the demand for damages in order to recover." Westport Taxi Service, Inc. v. Westport Transit District , 235 Conn. 1, 36 n.39, 664 A.2d 719 (1995). In Westport Taxi Service, Inc. , our Supreme Court concluded that the plaintiff's claim for prejudgment interest properly was before the court because, although the plaintiff had not sought prejudgment interest in its complaint, it "clearly argued that it was entitled to prejudgment interest in its proposed posttrial findings of fact and conclusions of law, and in its posttrial memorandum of law." Id., at 37, 664 A.2d 719. The Supreme Court further noted that the defendant had a meaningful opportunity to argue in its reply brief that prejudgment interest was not an appropriate remedy. Id. Here, as in Westport Taxi Service, Inc. , the defendant raised her claim for prejudgment interest in her posthearing submission. The plaintiff had an opportunity to respond to that claim in his posthearing reply brief. Accordingly, we find no merit in the plaintiff's assertion that he was denied reasonable notice and an opportunity to present a defense regarding the request for prejudgment interest. "[T]here is no statutory prohibition against awarding interest on a judgment in domestic relations cases . because the courts may fashion remedies that are appropriate and equitable ." (Internal quotation marks omitted.) Picton v. Picton , 111 Conn. App. 143, 155, 958 A.2d 763 (2008), cert. denied, 290 Conn. 905, 962 A.2d 794 (2009). Given the court's determination that the plaintiff was unjustified in failing to disclose assets, which resulted in a failure to distribute to the defendant at the time of dissolution her equitable share of those assets under the separation agreement, an award of prejudgment interest properly was within the discretion of the court. Id., at 155-56, 958 A.2d 763. Other than challenging the timing of the request, the plaintiff has raised no other claim regarding the court's exercise of its discretion to award prejudgment interest. III Finally, we turn to the plaintiff's claim that the court violated the automatic appellate stay by awarding the defendant postjudgment interest after this appeal had been filed. Specifically, the plaintiff argues that the court's adjudication of the defendant's motion for an award of postjudgment interest amounted to a "proceeding to enforce or carry out the judgment" on the motion to open and, thus, was in violation of the automatic appellate stay as set forth in Practice Book § 61-11. We disagree. The following additional procedural history is relevant to this claim. On August 16, 2017, nine days after the court rendered judgment on the defendant's motion to open and reform the dissolution judgment, the defendant filed a motion asking the court for an award of postjudgment interest, citing General Statutes § 37-3a and 52-350f. The plaintiff did not file an objection to the motion. The plaintiff filed his appeal from the court's judgment granting the motion to open on October 11, 2017. On January 16, 2018, the defendant filed a memorandum of law in support of her motion for an award of postjudgment interest. In her memorandum, the defendant argued that an award of postjudgment interest was authorized by statute and could be made during the pendency of an appeal without violating the automatic appellate stay because its purpose was to protect the interest of the prevailing party rather than to enforce or carry out the underlying judgment. The court heard argument on the motion for postjudgment interest on February 26, 2018. The defendant argued that the court had awarded prejudgment interest at a rate of 5 percent and that that interest should continue to accrue at the same rate postjudgment because the defendant continued to be deprived of money that she was entitled to have received when her marriage was dissolved in 2011. The plaintiff took the position for the first time at oral argument that, because there was a pending appeal, any award of postjudgment interest at this time would be premature and in violation of the automatic stay. According to the plaintiff, the court was required to wait until the appeal was decided before adjudicating the defendant's motion. On June 11, 2018, the court granted the defendant's motion and awarded postjudgment interest "at the rate of 5 percent per annum on the amounts that the plaintiff has been ordered to pay to the defendant from August 7, 2017, the date of the court's memorandum of decision." With respect to the automatic appellate stay, the court indicated that "the automatic stay does not bar a party from moving for interest on a judgment that is on appeal. While a party may not take action to collect a judgment while the automatic stay is in effect, nothing precludes a party from seeking an award of postjudgment interest while the appeal is pending." The plaintiff amended the appeal, challenging the court's decision to award postjudgment interest. Ordinarily, we review a trial court's decision to award postjudgment interest for an abuse of discretion. See Bower v. D'Onfro , 45 Conn. App. 543, 550, 696 A.2d 1285 (1997). Here, however, the plaintiff's claim on appeal is that the court's award violated the automatic appellate stay, which raises a question of law over which our review is plenary. See Deutsche Bank National Trust Co . v. Fraboni , 182 Conn. App. 811, 821, 191 A.3d 247 (2018). Practice Book § 61-11 (a) provides in relevant part: "Except where otherwise provided by statute or other law, proceedings to enforce or carry out the judgment or order shall be automatically stayed until the time to file an appeal has expired. If an appeal is filed, such proceedings shall be stayed until the final determination of the cause...." "In this state, the filing of an appeal does not divest the trial court of jurisdiction or authority to continue to act in the matter on appeal. To the contrary, our Supreme Court has clarified on numerous occasions that trial courts in this state continue to have the power to conduct proceedings and to act on motions filed during the pendency of an appeal provided they take no action to enforce or carry out a judgment while an appellate stay is in effect.... [In other words] [t]he automatic stay prohibits only those actions that would execute, effectuate, or give legal effect to all or part of a judgment challenged on appeal." (Citations omitted; emphasis added; footnote omitted; internal quotation marks omitted.) Ruiz v. Victory Properties, LLC , 180 Conn. App. 818, 832-33, 184 A.3d 1254 (2018). The automatic appellate stay "merely denies [the successful litigant] the immediate fruits of his or her victory . in order to protect the full and unhampered exercise of the right to appellate review." (Citation omitted; internal quotation marks omitted.) Preisner v. Aetna Casualty & Surety Co. , 203 Conn. 407, 414, 525 A.2d 83 (1987). The plaintiff's primary argument that the court's ruling violated the automatic stay provision of Practice Book § 61-11 derives from language in § 52-350f, which the defendant invoked in her motion seeking an award of postjudgment interest. The plaintiff notes that § 52-350f is titled "[e]nforcement of money judgment," and he highlights the following statutory language: "The money judgment may be enforced , by execution or by foreclosure of a real property lien, to the amount of the judgment with . interest as provided by chapter . 673 on the money judgment ." (Emphasis added.) General Statutes § 52-350f. Section 37-3a is part of chapter 673 and, therefore, according to the plaintiff, an award of interest is part of the mechanism for the enforcement of a judgment and should be automatically stayed pursuant to Practice Book § 61-11 (a). We disagree. Although § 52-350f authorizes the enforcement of a money judgment by either execution or by foreclosure of a real property lien, the defendant's motion for an award of postjudgment interest did not seek to pursue either form of relief. The clause in § 52-350f referring to statutory interest modifies the term "money judgment," merely clarifying that any interest awarded is included in the money judgment that may be enforced. No language in § 52-350f equates obtaining an award of interest with an action to enforce a money judgment, which is expressly limited in the statute to execution or foreclosure of a lien. We conclude that the court was not prohibited by the automatic appellate stay from ruling on the defendant's motion for postjudgment interest because its decision to grant the motion and to award the defendant an additional measure of damages cannot reasonably be viewed as effectuating the judgment on appeal. The plaintiff was able to amend the present appeal to challenge the additional award, and the decision in no way diminished or hampered his appellate rights with respect to the remainder of the court's judgment on the motion to open. Although the effect of the court's decision was to increase the damages the defendant would be entitled to collect if she successfully defended against the appeal, she nevertheless continues to be denied the fruits of her victory because she will be unable to secure payment from the plaintiff by executing on the judgment until the appeal is disposed and the automatic stay has expired. The judgment is affirmed. In this opinion the other judges concurred. The defendant formerly was known as Michele Brown Lavy. The court made the following findings with respect to the title abstract: "The title abstract reflects [the plaintiff's] Israeli identification number. The signatures on the title abstract are not dated. [The plaintiff] was in Israel in 1998, about six months before the title abstract was recorded. He was not in Israel on January 27, 1999, the date of recording." Hacohen did not testify at the hearing, but portions of his deposition testimony were read into the record. Specifically, Hacohen opined that a number of documents must be signed by the grantee in connection with a conveyance for no consideration in Israel, including an agreement between the parties, an affidavit, a transfer deed, and a tax declaration, before the conveyance is recorded. He further explained that conveyance taxes at a reduced rate are required to be paid on a sale of property for no consideration between relatives. The court noted that, in his financial affidavit, the plaintiff had disclosed the following real estate assets that he owned jointly with the defendant: the parties' marital residence in Westport, in which the parties had equity of $ 1,351,577; an apartment in Umbria, Italy, having an appraised value of $ 230,296; and an unimproved lot in Vieques, Puerto Rico, having an appraised value of $ 234,000. In crafting its remedial orders, the court utilized $ 92,432 as the value of the Niagara account as of the date of dissolution on June 14, 2011. Neither party challenges that finding on appeal. After the defendant filed the amended motion to open indicating that the plaintiff had failed to disclose the Niagara account, the plaintiff withdrew all of the funds from the account and closed it, transferring the money to another account. The plaintiff disclosed on his June 14, 2011 financial affidavit three savings accounts with a combined balance of $ 60,224 and two checking accounts with a combined balance of $ 119,695. The defendant, who was concerned about bank failures during the 2008 financial crisis, apparently had transferred money from her practice into several different bank accounts, keeping the amount deposited in each account below the maximum amount insured by the Federal Deposit Insurance Corporation. In addition, the plaintiff argues that the court improperly failed to consider whether the defendant's failure to disclose her alleged knowledge of the assets prior to dissolution was itself a violation of a duty to disclose. The plaintiff takes the position that the principles of full and frank disclosure that our Supreme Court espoused in Billington v. Billington , 220 Conn. 212, 595 A.2d 1377 (1991), which we will discuss in this opinion, should not be limited to disclosures on financial affidavits but also include a duty of overall honesty in negotiating a settlement agreement. According to the plaintiff, the defendant proceeded in bad faith because, rather than disclosing her knowledge of the Niagara account and Jerusalem property prior to judgment, she negotiated terms in the settlement agreement with the intention of invoking those terms to her advantage postjudgment. The plaintiff asserts that the current postjudgment litigation would have been unnecessary if the defendant had made inquiry about the undisclosed assets prior to the divorce judgment. Because we conclude that the record does not support the factual underpinning of the plaintiff's argument-namely, that the defendant knew of the undisclosed assets prior to dissolution-we do not decide whether such knowledge would have imparted any affirmative duty on the part of the defendant to disclose her knowledge to the plaintiff or whether a breach of that purported duty would have had any bearing on the plaintiff's separate and distinct obligation under the separation agreement and rules of practice to disclose all material assets that he owned on his financial affidavit. We nevertheless note that, at least in the context of fraud allegations, our courts have abandoned any requirement that spouses have an obligation to investigate one another's finances in order to prevent fraud through nondisclosure, which arguably would also militate against recognizing a duty to disclose knowledge of the other spouse's assets. See id., at 220, 595 A.2d 1377. The parties do not dispute that paragraph 21.1 of their agreement provides that "[i]n the event of a material omission or misstatement by either party in his or her affidavit," the other party would be entitled to the relief specified in paragraph 21.2 of the separation agreement. (Emphasis added.) Courts often consult dictionaries in considering the plain and ordinary meanings of words used in separation agreements and other contracts. See Nation-Bailey v. Bailey , 316 Conn. 182, 193, 112 A.3d 144 (2015). Something is "material" if it has "real importance or great consequences"; Merriam-Webster's Collegiate Dictionary (11th Ed. 2003) p. 765; and a "material omission" is defined in Black's Law Dictionary as "[a]n omission that significantly affects a person's decision-making." Black's Law Dictionary (10th Ed. 2014) p. 1261. The plaintiff does not argue that the terms of the separation agreement are ambiguous, nor has he directed our attention to anything in the record indicating that the court departed from the usual and ordinary meaning of the phrase "material omission." Rather than raising an issue of construction, the plaintiff challenges the court's application of the term "material omission" to the underlying facts. This presents a mixed question of law and fact. Accordingly, our review is limited to whether the court's determination that the plaintiff's nondisclosures were material omissions was legally and logically correct and supported by the evidence. See Crews v. Crews , 295 Conn. 153, 162-63, 989 A.2d 1060 (2010). A get is, "[u]nder Jewish law, a document signed by a rabbi to grant a divorce." Black's Law Dictionary (10th Ed. 2014) p. 803. The defendant's motion to open was not premised on an allegation of common-law fraud but rather on the plaintiff's breach of his contractual duty under the separation agreement to disclose all assets, liabilities, and income. Although it is an element of fraud that a party make a statement that is both "untrue and known to be so by its maker "; (emphasis added; internal quotation marks omitted) Sousa v. Sousa , 173 Conn. App. 755, 765, 164 A.3d 702, cert. denied, 327 Conn. 906, 170 A.3d 2 (2017) ; the separation agreement contains no equivalent scienter requirement applicable to determining whether one of the parties made a material omission from his or her financial affidavit. Rather, the parties' agreement places the burden of a failure to disclose, regardless of whether that failure is knowing, negligent or otherwise, upon the owner of the asset. In other words, under the terms of the separation agreement, an omission arguably need only be found "material," not knowingly made, in order to trigger the remedy of rescission and reformation of the financial orders. Nevertheless, because we determine that the court's finding that the plaintiff knew about the Niagara account was not clearly erroneous, we need not resolve this issue. The court noted in its memorandum of decision that the defendant's counsel suggested that the postal carrier may have delivered the statements to the plaintiff's office because his name was on the statements and his office was only two blocks away. The defendant, however, offered no admissible evidence that this had occurred, and the plaintiff is correct that arguments of counsel are not evidence. See Lucas v. Lucas , 88 Conn. App. 246, 260, 869 A.2d 239 (2005). What the plaintiff ignores, however, is the other evidence tending to demonstrate that the plaintiff was aware or should have been aware of the Niagara account. It is therefore unnecessary for us to resolve whether the court reasonably could have inferred from circumstantial evidence that the banking statements and other documents relating to the account were more likely than not delivered to the plaintiff. The plaintiff does not argue on appeal that the court lacked the authority to award prejudgment interest or that the court awarded interest back to an incorrect date. General Statutes § 37-3a (a) provides in relevant part: "Except as provided in sections 37-3b, 37-3c and 52-192a, interest at the rate of ten per cent a year, and no more, may be recovered and allowed in civil actions . as damages for the detention of money after it becomes payable...." Our Supreme Court has explained that "the primary purpose of § 37-3a . is not to punish persons who have detained money owed to others in bad faith but, rather, to compensate parties that have been deprived of the use of their money." Sosin v. Sosin , 300 Conn. 205, 230, 14 A.3d 307 (2011). An award of interest under § 37-3a is discretionary; id., at 228, 14 A.3d 307 ; and 10 percent is "the maximum rate of interest that a trial court, in its discretion, can award"; Gianetti v. Meszoros , 268 Conn. 424, 426, 844 A.2d 851 (2004) ; meaning the court, as in the present case, has the discretion to set a lower rate of interest. See Sears, Roebuck & Co. v. Board of Tax Review , 241 Conn. 749, 764-66, 699 A.2d 81 (1997). The plaintiff also claims that, because the award of postjudgment interest was premised on the damages awarded in the August 7, 2017 ruling on the motion to open, we should reverse the award of postjudgment interest on the basis of the claims challenging that decision. Because we rejected those claims in parts I and II of this opinion, we do not reach this additional claim. See footnote 15 of this opinion. Interest under § 37-3a, which is awarded as compensation for the detention of money, "may include either or both prejudgment and postjudgment interest." See Sikorsky Financial Credit Union, Inc. v. Butts , 315 Conn. 433, 442, 108 A.3d 228 (2015). General Statutes § 52-350f provides: "A money judgment may be enforced against any property of the judgment debtor unless the property is exempt from application to the satisfaction of the judgment under section 52-352a, 52-352b, 52-352d or 52-361a, or any other provision of the general statutes or federal law. The money judgment may be enforced, by execution or by foreclosure of a real property lien, to the amount of the money judgment with (1) all statutory costs and fees as provided by the general statutes, (2) interest as provided by chapter 673 on the money judgment and on the costs incurred in obtaining the judgment, and (3) any attorney's fees allowed pursuant to section 52-400c."

12510664

WELLS FARGO BANK, N.A. v. James R. FITZPATRICK et al.

Wells Fargo Bank, N.A. v. Fitzpatrick

2019-05-21

AC 41113

88

98

210 A.3d 88

210

West's Atlantic Reporter, Third Series

Connecticut Appellate Court

Connecticut

2021-08-27T20:57:56.130816+00:00

Fastcase

WELLS FARGO BANK, N.A. v. James R. FITZPATRICK et al.

WELLS FARGO BANK, N.A. v. James R. FITZPATRICK et al. AC 41113 Appellate Court of Connecticut. Argued December 12, 2018 Officially released May 21, 2019 Bryan L. LeClerc, Milford, for the appellants (defendants). David M. Bizar, with whom was J. Patrick Kennedy, for the appellee (plaintiff). Keller, Elgo and Bright, Js.

4471

27442

ELGO, J. The defendants, James R. Fitzpatrick and Marsha A. Fitzpatrick, appeal from the judgment of foreclosure by sale rendered by the trial court in favor of the plaintiff, Wells Fargo Bank, N.A. On appeal, the defendants claim that the court improperly (1) denied their motion to dismiss and rendered judgment of foreclosure by sale because the plaintiff did not comply with the terms of the note and mortgage, namely, compliance with the notice requirements, and (2) concluded that the defendants had not proved their special defense of laches. We affirm the judgment of the trial court. The following facts and procedural history are relevant to the present appeal. On January 31, 2003, the defendants executed and delivered a promissory note payable to World Savings Bank, FSB, in the original principal amount of $ 315,000. The loan was secured by a mortgage deed on the property. The mortgage deed was executed and delivered on January 31, 2003. Effective December 31, 2007, World Savings Bank, FSB, was renamed Wachovia Mortgage, FSB (Wachovia). The defendants have been in default on the note and mortgage deed since March 1, 2009. On May 13, 2009, Wachovia sent a letter to the defendants at the property address by first class mail and certified mail, notifying them that the loan was in default and advising them of the amount required to cure the default and its intent to accelerate if the default was not cured (2009 letter). When the defendants failed to cure the default, Wachovia elected to accelerate the balance due on the note, declare the note due in full, and foreclose the mortgage deed securing the note. Wachovia commenced a foreclosure action against the defendants on July 27, 2009 (first foreclosure action). Berchem Moses, P.C. (Berchem Moses), filed an appearance on behalf of the defendants on August 4, 2009. Effective November 1, 2009, Wachovia converted to a national bank with the name Wells Fargo Bank Southwest, National Association, and merged with and into the plaintiff. The first foreclosure action was in foreclosure mediation for approximately two years; the mediation period was terminated by the court on September 29, 2011. The first foreclosure action subsequently was dismissed for dormancy on May 8, 2014. On June 19, 2014, the law firm formerly known as Hunt Leibert Jacobson, P.C., acting in its capacity as counsel to the plaintiff, sent a letter by certified mail, return receipt requested, to Berchem Moses notifying them, inter alia, that the note was in default (2014 letter). The 2014 letter listed the plaintiff as the creditor, the loan number, and the property address and stated, in relevant part: "Dear BERCHEM MOSES & DEVLIN PC: We are writing to you as counsel for BERCHEM MOSES & DEVLIN PC, MARSHA A FITZPATRICK*. Please be advised that this office represents WELLS FARGO BANK, N.A., who is the holder of a certain Note (the 'Note') and Open-End Mortgage (the 'Mortgage') made by you originally in favor of WORLD SAVINGS BANK, FSB dated January 31, 2003 in the original principal amount of $ 315,000.00. This is to advise you that the above-referenced Note and Mortgage is in DEFAULT because installments of principal and interest have not been paid when due. The amount of payments and other charges due is $ 218,906.08 as of July 19, 2014 (Please see attached itemization). If the full amount needed to bring the loan current has not been paid on/or before said date, WELLS FARGO BANK, N.A. will declare all sums secured by the mortgage immediately due and payable (technically called acceleration) without further demand." A memo sent with the 2014 letter to Berchem Moses provided in relevant part: "Pursuant to the language in the mortgage deed you signed, the Lender is required to advise you that you have the right to reinstate after acceleration and the right to assert in court the non-existence of a default or any other defense of Borrower to acceleration and foreclosure and sale. If the default is not cured on or before the date specified in the notice, Lender at its option may require immediate payment in full of sums secured by the Mortgage without further demand and may invoke any of the remedies permitted by Applicable Law." The defendants failed to cure the default and the plaintiff elected to accelerate the balance due on the note, to declare the note due in full, and to institute foreclosure of the mortgage deed securing the note. The plaintiff then commenced the present foreclosure action against the defendants on September 26, 2014. On October 21, 2014, Berchem Moses entered an appearance on behalf of the defendants. On September 16, 2016, the plaintiff's motion to default the defendants for failure to plead was granted. On that same date, the defendants filed a motion to open the default and filed their answer with three special defenses and a counterclaim. The defendants' motion to open the default was granted on September 28, 2016. The action was tried to the court on July 18, 2017. At the close of the plaintiff's case, the defendants moved to dismiss the case "based upon the plaintiff's failure to establish a prima facie case, specifically their failure to establish a notice of default against the defendants, which is a condition precedent to the foreclosure." After a recess, the court denied the defendants' motion to dismiss. The court, relying on Mortgage Electronic Registration Systems, Inc. v. Goduto , 110 Conn. App. 367, 955 A.2d 544, cert. denied, 289 Conn. 956, 961 A.2d 420 (2008), considered the 2009 letter and the 2014 letter jointly as substantively affording the defendants the requisite notice in paragraph twenty-two of the mortgage deed. The court further noted the absence of any prejudice to the defendants, and that the 2014 letter was sent to the defendants' counsel within approximately thirty days of the dismissal of the first foreclosure case. In its memorandum of decision, the court concluded that the plaintiff was entitled to a judgment of foreclosure by sale against the defendants. The court also concluded that the defendants had proven their first special defense of unclean hands, but failed to prove their second and third special defenses of laches and failure to mitigate damages. This appeal followed. Additional facts will be set forth as necessary. I The defendants first claim that the plaintiff failed to provide them with proper notice as required by paragraphs fifteen and twenty-two of the mortgage deed. Specifically, the defendants argue that the contents of the 2014 letter should not be considered by the court because it was sent to Berchem Moses instead of the property address and further contend that the 2009 letter considered alone does not constitute sufficient notice. In the alternative, the defendants argue that the 2009 letter and 2014 letter together do not constitute sufficient notice. In response, the plaintiff contends that, "by admitting the adequacy of [the] notice in their answer to the complaint and by failing to file a special defense," the defendants have waived their right to challenge the sufficiency of the notice. The plaintiff argues that the defendants admitted that the notice was adequate in their answer when they did not specifically deny paragraph six of the complaint, which states: "The plaintiff has provided written notice in accordance with the note and mortgage to the defendant(s) of the default under the note and mortgage, but said defendant(s) have failed and neglected to cure the default. The plaintiff has elected to accelerate the balance due on said note, to declare said note to be due in full and to foreclose the mortgage securing said note." In response, the defendants answered: "The allegations of paragraph 6 are admitted to the extent that the plaintiff declared the note in default and elected to accelerate the balance due, declared the note to [be] due in full and commenced a foreclosure of the mortgage. The defendants deny that monies are owed to the plaintiff." The plaintiff asks us to read this as a judicially binding admission by the defendants that the plaintiff had provided them with compliant notice under the note and mortgage deed. Although we decline to read the defendants' answer so broadly, we note that the defendants in their answer did not deny that they had received the 2014 letter sent to Berchem Moses. Indeed, the defendants have never advanced that argument and, instead, contend that the 2014 letter was improper notice because it was not sent to the property address. We begin by noting that "[i]t is well established that [n]otices of default and acceleration are controlled by the mortgage documents. Construction of a mortgage deed is governed by the same rules of interpretation that apply to written instruments or contracts generally, and to deeds particularly. The primary rule of construction is to ascertain the intention of the parties. This is done not only from the face of the instrument, but also from the situation of the parties and the nature and object of their transactions.... A promissory note and a mortgage deed are deemed parts of one transaction and must be construed together as such.... "In construing a deed, a court must consider the language and terms of the instrument as a whole.... Moreover, the words [in the deed] are to be given their ordinary popular meaning, unless their context, or the circumstances, show that a special meaning was intended.... "A promissory note is nothing more than a written contract for the payment of money, and, as such, contract law applies.... In construing a contract, the controlling factor is normally the intent expressed in the contract, not the intent which the parties may have had or which the court believes they ought to have had.... Where . there is clear and definitive contract language, the scope and meaning of that language is not a question of fact but a question of law.... In such a situation our scope of review is plenary, and is not limited by the clearly erroneous standard.... The court will not torture words to impart ambiguity where ordinary meaning leaves no room for ambiguity.... "Notice provisions in mortgage documents usually require default notices to contain specific information, which serves a very clear and specific purpose; it informs mortgagors of their rights so that they may act to protect them. Therefore, when the terms of the note and mortgage require notice of default, proper notice is a condition precedent to an action for foreclosure.... Consequently, we must determine whether such a condition precedent was satisfied in the present case." (Citations omitted; internal quotation marks omitted.) Emigrant Mortgage Co. v. D'Agostino , 94 Conn. App. 793, 798-800, 896 A.2d 814, cert. denied, 278 Conn. 919, 901 A.2d 43 (2006). Paragraphs twenty-two and fifteen of the mortgage deed contain the relevant notice provisions in the present case. Paragraph twenty-two states in relevant part: "Lender shall give notice to Borrower prior to acceleration following Borrower's breach of any covenant or agreement in this Security Instrument . The notice shall specify: (a) the default; (b) the action required to cure the default; (c) a date, not less than 30 days from the date the notice is given to Borrower, by which the default must be cured; and (d) that failure to cure the default on or before the date specified in the notice may result in acceleration of the sums secured by this Security Instrument and foreclosure or sale of the Property. The notice shall further inform Borrower of the right to reinstate after acceleration and the right to assert in court the non-existence of a default or any other defense of Borrower to acceleration and foreclosure or sale." Paragraph fifteen of the mortgage deed provides in relevant part: "Any notice to Borrower in connection with this Security Instrument shall be deemed to have been given to Borrower when mailed by first class mail or when actually delivered to Borrower's notice address if sent by other means.... The notice address shall be the Property Address unless Borrower has designated a substitute notice address by notice to Lender." Although they challenged the manner in which the 2014 letter was sent, the defendants conceded before the trial court that the contents of the 2014 letter provide "everything specifically required by the mortgage." Accordingly, we will not entertain on appeal their claim that the 2014 letter was substantively inadequate. See White v. Mazda Motor of America, Inc. , 313 Conn. 610, 619, 99 A.3d 1079 (2014) ("Our appellate courts, as a general practice, will not review claims made for the first time on appeal. We repeatedly have held that [a] party cannot present a case to the trial court on one theory and then seek appellate relief on a different one ." [Internal quotation marks omitted.] ). The defendants principally rely on this court's decision in Aurora Loan Services, LLC v. Condron , 181 Conn. App. 248, 186 A.3d 708 (2018), to support their position that, because the 2014 letter was not sent to them at the property address as required by paragraph fifteen of the mortgage, "there is no evidence of actual delivery as required to set forth a prima facie case." In Aurora , the defendants claimed that they did not receive the single notice of default letter sent by the plaintiff via certified mail, return receipt requested, and the plaintiff did not offer evidence to confirm actual delivery of the letter. Id., at 252-53, 186 A.3d 708. As this court noted: "The plain intent of the notification requirements . of the mortgage deed is to provide notice of a default to a [mortgagor] prior to the commencement of a foreclosure proceeding." Id., at 272, 186 A.3d 708. Because the defendants claimed that they did not receive the noncompliant notice of default letter and there was no evidence that they did so, this court determined that the plaintiff in that case failed to satisfy the contractual condition precedent to foreclosure. Id., at 276, 186 A.3d 708. The present case is materially different. Unlike the defendants in Aurora , the defendants in the present case do not argue that they did not receive notice of the default and the possibility that they faced a foreclosure action. In the present case, the defendants had actual notice of the default and the possibility that they faced a foreclosure because they had been through the first foreclosure action and admittedly received the 2009 letter before the first foreclosure action was commenced against them. This court has applied the doctrine of substantial compliance to contract notice provisions. See Mortgage Electronic Registration Systems, Inc. v. Goduto , supra, 110 Conn. App. at 373, 955 A.2d 544 (mortgage notice provision required plaintiff to afford defendants thirty days notice to cure default); Twenty-Four Merrill Street Condominium Assn., Inc. v. Murray , 96 Conn. App. 616, 624-25, 902 A.2d 24 (2006) (condominium association bylaws required written notice within thirty days of decision); Fidelity Bank v. Krenisky , 72 Conn. App. 700, 714-15, 807 A.2d 968 (mortgage notice provision required plaintiff to inform defendants that they may assert in court nonexistence of default or other defense), cert. denied, 262 Conn. 915, 811 A.2d 1291 (2002). In Mortgage Electronic Registration Systems, Inc. v. Goduto , supra, at 376, 955 A.2d 544, this court affirmed the trial court's judgment "on the alternate ground that by sending a second notice letter, the plaintiff substantially complied with the notice requirements in the defendant's mortgage." It concluded that "the two notices [of default], read jointly, substantially afforded the debtor the requisite notice." Id., at 368, 955 A.2d 544. This court explained that "[i]n deciding whether proper notice was given, we . look primarily to the actual notice received rather than asking whether there has been a punctilious adherence to formality . Although generally contracts should be enforced as written, we will not require mechanistic compliance with the letter of notice provisions if the particular circumstances of a case show that the actual notice received resulted in no prejudice and fairly apprised the noticed party of its contractual rights." (Citation omitted; internal quotation marks omitted.) Id., at 375, 955 A.2d 544. In the present case, counsel for the defendants conceded at trial that the 2014 letter satisfied the notice requirements in paragraph twenty-two of the mortgage. The defendants do not dispute that they received the 2014 letter and they claim no prejudice from the manner in which they received it. In addition, they had received the 2009 letter prior to the first foreclosure action and had actively participated in it. Consequently, it is indisputable that they had actual notice of their default and the possibility that they faced a foreclosure action when the second action was commenced. Accordingly, we conclude that the trial court properly determined that, pursuant to this court's decision in Goduto , the two letters together substantially complied with the mortgage deed's notice requirements. II The defendants also claim that the court improperly failed to find that they had proven their special defense of laches. In response, the plaintiff argues that the defendants failed to meet their burden of proving laches. We agree with the plaintiff. "The standard of review that governs appellate claims with respect to the law of laches is well established. A conclusion that a plaintiff has been guilty of laches is one of fact for the trier and not one that can be made by this court, unless the subordinate facts found make such a conclusion inevitable as a matter of law.... We must defer to the court's findings of fact unless they are clearly erroneous.... "The defense of laches, if proven, bars a plaintiff from seeking equitable relief . First, there must have been a delay that was inexcusable, and, second, that delay must have prejudiced the defendant.... The burden is on the party alleging laches to establish that defense . The mere lapse of time does not constitute laches . unless it results in prejudice to the [opposing party] . as where, for example, the [opposing party] is led to change his position with respect to the matter in question." (Emphasis added; internal quotation marks omitted.) R. F. Daddario & Sons, Inc. v. Shelansky , 123 Conn. App. 725, 737, 3 A.3d 957 (2010). The defendants argue that they are entitled to a finding of laches because "the plaintiff has allowed a period of over nine years to pass in this foreclosure action. During that time it has failed to pursue this matter with due diligence, and has failed to comply with the specific terms of the note and mortgage regarding the alleged default." The defendants, however, have failed to assert, before the trial court or on appeal, how they have been prejudiced. Indeed, no evidence was submitted on which the court could have found that the defendants suffered any prejudice and, in fact, the court reduced the interest that accrued while the first foreclosure action was pending, which equitably addressed any delay in the first foreclosure action. See footnote 5 of this opinion. The only evidence presented by the defendants in this action consisted of their request that the court take judicial notice of the first foreclosure action. Accordingly, because the defendants did not submit any evidence from which the court could have found that they were prejudiced, we conclude that the court's finding that the defendants did not prove their special defense of laches was not clearly erroneous. See Wolyniec v. Wolyniec , 188 Conn. App. 53, 68, 203 A.3d 1269 (2019) ("[a]lthough the court made no express findings of fact with respect to laches . [a]fter examining the record in the present case, we conclude that no evidence was admitted from which the court could have found that the plaintiff was prejudiced by the defendant's delay in filing her motion for contempt" [internal quotation marks omitted] ); Carpender v. Sigel , 142 Conn. App. 379, 387, 67 A.3d 1011 (2013) ("In the present case, no evidence was admitted on which the court could have found that the plaintiff was prejudiced . Accordingly, the court improperly concluded that the defendants' claim . was barred by laches."). The judgment is affirmed. In this opinion the other judges concurred. For convenience, we refer to James R. Fitzpatrick and Marsha A. Fitzpatrick as the defendants in this opinion. We note that the operative complaint also named the United States of America Internal Revenue Service; Manny Rodrigues; Homeward Residential, Inc., formerly known as American Home Mortgage Servicing, Inc., formerly known as Option One Mortgage Corporation; Ford Motor Credit Company, LLC, formerly known as Ford Motor Credit Company; Capital One Bank; and Carbone Financing Services, LLC, as defendants in this action. At the time that the first foreclosure action was commenced, Berchem Moses, P.C., was known as Berchem Moses & Devlin, P.C. The plaintiff filed a motion to substitute a party plaintiff on December 15, 2009, which was granted by the court on January 4, 2010. The defendants alleged the special defenses of (1) unclean hands, (2) laches, and (3) failure to mitigate damages. In their counterclaim, the defendants sought a discharge of the mortgage pursuant to General Statutes § 49-13. In a memorandum of decision dated June 20, 2017, that counterclaim was dismissed by the court. The defendants have not challenged on appeal the dismissal of their counterclaim. Specifically, the court determined that the defendants were entitled to an interest credit for proving their first special defense of unclean hands in the amount of $ 46,004. The court determined that there were 868 days of unexplained delay by the plaintiff in pursuing the first foreclosure action and that the per diem interest on the unpaid principal balance amounted to $ 53 per day. The court multiplied the per diem interest by the 868 days of the unexplained delay to calculate the defendants' interest credit. The propriety of that determination is not at issue in this appeal. In particular, the defendants argue that the 2009 letter was inadequate because it did not comply with subsection (c) of the notice provision, which states that the notice shall specify "a date, not less than 30 days from the date the notice is given to Borrower, by which the default must be cured ." The defendants also argue that the 2009 letter was inadequate because it did not comply with subsection (d), which states that the notice shall provide "that failure to cure the default on or before the date specified in the notice may result in acceleration of the sums secured by this Security Instrument and foreclosure or sale of the Property." In light of the fact that the defendants concede that the 2014 letter was substantively adequate; see footnote 7 of this opinion; and our conclusion that the 2009 letter and 2014 letter together substantially complied with the mortgage deed's notice provisions, we need not address the defendant's arguments as to the deficiencies of the 2009 letter. The plaintiff also argues that the defendants waived their right to challenge the notice provided by the two letters because they failed to file a special defense. The plaintiff asserts that our decision in Mortgage Electronic Registration Systems, Inc. v. Goduto , supra, 110 Conn. App. at 367, 955 A.2d 544, "shows [that the] [d]efendants were required to plead lack of notice or its inadequacy as a special defense ." In that case, this court noted in a footnote that the defendant asserted a failure to comply with the mortgage's notice requirement as a special defense before the trial court. Id., at 369 n.2, 955 A.2d 544. The plaintiff misconstrues the observation made by this court in Goduto . Nothing about that decision implies that the defendant in that case was required to file a special defense in order to challenge the adequacy of the notice provided by the plaintiff. Further, because the plaintiff's obligation to provide notice is a condition precedent to the foreclosure action and a part of a prima facie case; see Deutsche Bank National Trust Co. v. Bliss , 159 Conn. App. 483, 495, 124 A.3d 890 ("[a] plaintiff establishes its prima facie case in a mortgage foreclosure action by demonstrating by a preponderance of the evidence that it is the owner of the note, that the defendant mortgagor has defaulted on the note, and that conditions precedent to foreclosure have been satisfied"), cert. denied, 320 Conn. 903, 127 A.3d 186 (2015), cert. denied, - U.S. -, 136 S. Ct. 2466, 195 L.Ed. 2d 801 (2016) ; we decline to hold that a defendant must plead lack of notice or insufficient notice as a special defense in order to challenge that condition precedent. In their appellate brief, the defendants challenge only one aspect of the contents of the 2014 letter, and the plaintiff argues that the defendants have waived their ability to raise that challenge. We agree. At oral argument before the trial court, counsel for the defendants acknowledged the deficiencies of the contents of the 2009 letter but specifically stated that the 2014 letter's contents followed the provisions of the mortgage's notice requirements: "And if you look at [the 2009 letter], this is not a default letter. One can call it a default letter, as the witness did. However, the last paragraph on the first page said it is our intent to declare your loan past due and payable immediately if the above-mentioned breach is not remedied. And it gives some options: let's have a face-to-face meeting; you can contact Connecticut Housing Finance Authority. It talks about what their future intent is. It is nowhere close to being the actual default letter as required by the mortgage itself and as was sent in [the 2014 letter], which is clearly a default letter which follows the provisions of the mortgage itself with the notifications required, the amounts, the periods, everything specifically required by the mortgage. That is a condition precedent; they have not met it." (Emphasis added.) Furthermore, after counsel for the plaintiff argued that the 2014 letter should be considered by the court, that the two letters together constituted substantial compliance, and that, "on its face, the [2014] letter is clearly compliant," the court began to go through the contents of the 2014 letter to see if it complied with the mortgage's notice requirements, and counsel for the defendants responded not by discussing any deficiency in the contents of the 2014 letter, but by again arguing that the letter was not addressed to the borrower as required by the note. Paragraph fifteen of the mortgage in Aurora Loan Services, LLC v. Condron , supra, 181 Conn. App. at 263-64, 186 A.3d 708, like paragraph fifteen of the mortgage in the present case, specified that a presumption of receipt would exist when notice is sent to the borrowers by first class mail.

12510644

Gregg FISK v. TOWN OF REDDING et al.

Fisk v. Town of Redding

2019-05-21

AC 40216

73

88

210 A.3d 73

210

West's Atlantic Reporter, Third Series

Connecticut Appellate Court

Connecticut

2021-08-27T20:57:56.130816+00:00

Fastcase

Gregg FISK v. TOWN OF REDDING et al.

Gregg FISK v. TOWN OF REDDING et al. AC 40216 Appellate Court of Connecticut. Argued November 14, 2018 Officially Released May 21, 2019 A. Reynolds Gordon, with whom was Frank A. DeNicola, Jr., for the appellant (plaintiff). Thomas R. Gerarde, with whom, on the brief, was Beatrice S. Jordan, for the appellee (named defendant). Sheldon, Elgo and Flynn, Js. The listing of judges reflects their seniority status on this court as of the date of oral argument.

8258

50673

FLYNN, J. The plaintiff, Gregg Fisk, appeals from the judgment of the trial court rendered on a jury verdict in favor of the defendant town of Redding. On appeal, the plaintiff claims that the court erred in (1) denying his motion to set aside the verdict and (2) excluding evidence of subsequent remedial measures. We agree with the plaintiff's first claim but disagree with the second. The record reveals the following facts. A retaining wall was constructed as part of the defendant's "Streetscape Project." The project was funded by federal and state grants, and the state Department of Transportation (department) supervised the construction. The department's design engineer supervisor approved the construction of a five foot retaining wall without a fence. During the construction phase of the project, field conditions existed that necessitated the height of the retaining wall to become taller than five feet, as the driveway below it sloped downward. A wooden barrier in the style of a Merritt Parkway guardrail was installed several feet in distance from the retaining wall with dense landscaping behind it. The retaining wall was adjacent to the parking lot of the Lumberyard Pub. On the evening of August 26, 2011, at approximately 8:30 p.m., the plaintiff went to the Lumberyard Pub for dinner and drinks. The plaintiff left at approximately 2 a.m., after consuming approximately five beers. In order to reach Main Street by a shortcut, the plaintiff climbed over the guardrail and stepped off the retaining wall. While traversing the unfenced retaining wall, the plaintiff fell and injured his left leg and ankle in many places. The plaintiff brought an action against the defendant sounding in absolute public nuisance and alleging that he was injured when he fell off an unfenced retaining wall that had a nearly six foot drop to Main Street below. The defendant filed an answer and special defenses, alleging, inter alia, assumption of the risk and recklessness. Following trial, the jury returned a verdict for the defendant, which the court, Kamp , J. , accepted and recorded. Thereafter, the plaintiff filed a motion to set aside the verdict, and the court issued a memorandum of decision denying the motion. This appeal followed. Additional facts will be set forth as necessary. I The plaintiff claims that the court erred when it denied his motion to set aside the verdict because the jury's answers to the special interrogatories in the verdict form were inconsistent. We agree. The following additional facts are relevant to this claim. The court charged the jury, prior to deliberations, in part, as follows: "First, the plaintiff must prove that the retaining wall was inherently dangerous . that it had a natural tendency to create danger and to inflict injury upon person or property. It is the condition itself which must have a natural tendency to create danger and inflict injury. You, as the trier of fact, must consider all of the circumstances involved in determining whether . the condition in that particular location had a natural tendency to create danger and inflict injury. Second, the plaintiff must prove that the danger was a continuing one . Third, the plaintiff must prove that the use of the land, in this case the retaining wall, was unreasonable or unlawful. In making a determination concerning the reasonableness of the use of the land, all the surrounding factors must be considered. Fourth, the plaintiff must prove that the condition interferes with a right common to the general public . If you find that the plaintiff has proven the above elements of a public nuisance, next the plaintiff must prove that the nuisance was a proximate cause of the injuries suffered by [the plaintiff]." In explaining how to proceed with the verdict forms and jury interrogatories, the court stated: "[F]or example, you respond to question one. If you answer no, as the instructions indicate, you must return a verdict for the defendant, and you would fill out the defendant's verdict form and that would end your deliberations. If you answer number one yes, as the instructions indicate, then you go on to question two, and you answer that question. After question two, if you were to answer that question no, then you would return a verdict for the defendant using the defendant's verdict form. If you answer yes, you continue to number three. And you continue through the process until you've reached your verdict either using one or the other of the verdict forms. You necessarily also have to complete the jury interrogatories at least completely or to where you stop if you answer a question no." The court did not further explicate interrogatories six and seven, which asked the jury to render special verdicts as to whether the defendant had proved its special defenses of recklessness and assumption of the risk. Following the final charge of the court to the jury, the court submitted seven interrogatories to the jury, with the first and third as follows: "1. Has Plaintiff proven to you, by a preponderance of the evidence, that the condition complained of, the subject retaining wall was inherently dangerous in that it had a natural tendency to inflict injury on person or property? . 3. Has Plaintiff proven to you, by a preponderance of the evidence, that the Defendant's use of the land was unreasonable or unlawful?" During deliberations, the jury presented the following question to the court: "If we are not all in agreement on questions one and two but are on question three, are we able to rule in favor of the defendant?" (Emphasis omitted.) Thereafter, counsel discussed the issue with the court outside the presence of the jury, and the plaintiff's attorney stated: "If some of them are saying that the wall was . inherently dangerous and the danger was continuing, then that means that it has to be unreasonable." The court did not agree and stated that the "law requires that you, on behalf of your client, prove all four elements, and if you can't prove each element then there's a defendant's verdict." The plaintiff's counsel explained, "we don't abandon our position," to which the court responded, "of course you don't because you're going to write about this on appeal." The plaintiff's counsel specifically took an exception to "the omission of the words 'without a fence' after 'retaining wall' " in the court's charge to the jury. He also had preserved the issue in the plaintiff's request to charge, dated July 25, 2016, which suggested that the court charged the jury that "[t]he plaintiff must prove that the retaining wall without a fence had a natural tendency to create danger and to inflict injury upon person or property." (Internal quotation marks omitted.) Following the colloquy with counsel, the court responded to the jury's question as follows: "Ladies and gentlemen, I instructed you on the law and you have my charge as a court exhibit. And the plaintiff has the burden of proof, as I indicated in my charge, to prove essentially four elements of an absolute public nuisance . If the jury can unanimously . agree that the plaintiff has not proven one of those four elements and you can agree upon that, and in this case if it's number three and you so indicate on your jury verdict interrogatories and you check that unanimously in the negative, then you . can return a verdict in . favor of the defendant. But you must all unanimously agree that [the plaintiff] has not proven one element of the cause of action." Following deliberations, the jury responded in the affirmative to jury interrogatories one and two and in the negative to the third jury interrogatory. The plaintiff moved to set aside the defendant's verdict, arguing that the jury's responses to the first and third interrogatories, in which it found that the wall was an inherently dangerous condition but was not an unreasonable or unlawful use of the land, were inconsistent. The court denied the motion, reasoning that the "jury's responses to the interrogatories were not inconsistent because there was evidence that allowed the jury to determine that, although the wall was unreasonably dangerous, it was not an unreasonable use of the land." "The standard of review governing our review of a trial court's denial of a motion to set aside the verdict is well settled. The trial court possesses inherent power to set aside a jury verdict which, in the court's opinion, is against the law or the evidence . [The trial court] should not set aside a verdict where it is apparent that there was some evidence upon which the jury might reasonably reach [its] conclusion, and should not refuse to set it aside where the manifest injustice of the verdict is so plain and palpable as clearly to denote that some mistake was made by the jury in the application of legal principles . Ultimately, [t]he decision to set aside a verdict entails the exercise of a broad legal discretion . that, in the absence of clear abuse, we shall not disturb." (Internal quotation marks omitted.) Kumah v. Brown , 160 Conn. App. 798, 803, 126 A.3d 598, cert. denied, 320 Conn. 908, 128 A.3d 953 (2015). "When a claim is made that the jury's answers to interrogatories in returning a verdict are inconsistent, the court has the duty to attempt to harmonize the answers." (Internal quotation marks omitted.) Suarez v. Dickmont Plastics Corp. , 242 Conn. 255, 270, 280, 698 A.2d 838 (1997). The plaintiff pleaded that the nuisance was absolute. "[I]n order to prevail on a claim of nuisance, a plaintiff must prove that: (1) the condition complained of had a natural tendency to create danger and inflict injury upon person or property; (2) the danger created was a continuing one; (3) the use of the land was unreasonable or unlawful; [and] (4) the existence of the nuisance was [a] proximate cause of the [plaintiff's] injuries and damages . [W]here absolute public nuisance is alleged, the plaintiff's burden includes two other elements of proof: (1) that the condition or conduct complained of interfered with a right common to the general public . and (2) that the alleged nuisance was absolute, that is, that the defendants' intentional conduct, rather than their negligence, caused the condition deemed to be a nuisance." (Citations omitted; internal quotation marks omitted.) State v. Tippetts-Abbett-McCarthy-Stratton , 204 Conn. 177, 183, 527 A.2d 688 (1987). "Whether an interference is unreasonable in the public nuisance context depends . on (a) [w]hether the conduct involves a significant interference with the public health, the public safety, the public peace, the public comfort or the public convenience, or (b) whether the conduct is proscribed by [law] . The rights common to the general public can include, but certainly are not limited to, such things as the right to use a public park, highway, river or lake." (Internal quotation marks omitted.) Kumah v. Brown , supra, 160 Conn. App. at 805, 126 A.3d 598. "The test of unreasonableness is essentially a weighing process, involving a comparative evaluation of conflicting interests in various situations according to objective legal standards." (Internal quotation marks omitted.) Walsh v. Stonington Water Pollution Control Authority , 250 Conn. 443, 456, 736 A.2d 811 (1999), citing 4 Restatement, Torts § 826, comment (b) (1939). One of those factors is utility. "Reasonableness in the nuisance context weighs the utility of the interference with the public right against the degree or severity of the interference. See 4 Restatement (Second), Torts § 826, p. 119 (1979) ('[a]n intentional invasion of another's interest in the use and enjoyment of land is unreasonable if . the gravity of the harm outweighs the utility of the actor's conduct'); see also 58 Am. Jur. 2d 632-33, Nuisances § 79 (2012) ('the court must balance the gravity of the harm to the plaintiff against the utility of the defendant's conduct both to the defendant and to the community'). Such considerations are germane to deciding whether an interference with public safety is significant." Kumah v. Brown , supra, at 806 n.6, 126 A.3d 598. In Kumah v. Brown , supra, 160 Conn. App. 798, 126 A.3d 598, the plaintiff driver collided with a fire truck that had been positioned diagonally across Interstate 95 in response to a tractor trailer that had rolled over and was leaking diesel fuel. Id., at 800-801, 126 A.3d 598. The plaintiff driver brought an action sounding in negligence and public nuisance. Id., at 801, 126 A.3d 598. The plaintiffs argued on appeal that "the court erred in failing to set aside the jury's verdict because the jury's finding that the defendant was negligent was inconsistent with its express finding that the defendant's use of the land was not unreasonable." Id., at 802, 126 A.3d 598. This court concluded that "[i]t does not follow that simply because the jury found, as to one or more of the alleged acts or omissions, that the defendant had breached its duty to act as an ordinarily prudent person, it then necessarily had to find that the defendant's use of the land was unreasonable in the circumstances." Id., at 804, 126 A.3d 598. This court further concluded: "The jury could have found, for example, that a reasonably prudent town would have added more traffic cones or placed them differently, but that it was not unreasonable over-all, given the emergency, for the town to interfere with the public's access to the highway generally by placing the fire truck in front of the disabled tractor trailer and generally guarding the scene. The interrogatories were not necessarily inconsistent; therefore, the court did not abuse its discretion in denying the plaintiffs' motion to set aside the verdict." (Footnote omitted.) Id., at 806-807, 126 A.3d 598. We are presented with the question of whether the jury's response to the first interrogatory, that the condition was inherently dangerous, is fatally inconsistent with its response to the third interrogatory, that the defendant's use of the land was not unreasonable. In his complaint, the plaintiff alleged that the defendant constructed a retaining wall that had a precipitous drop of approximately six feet and was not fenced. The plaintiff claims that the wall was inherently dangerous, constituted a public nuisance, and that he injured himself when he fell off the retaining wall. The issue in this case, as it was tried and argued below, was not whether the defendant could build a wall, but whether it could erect an unfenced wall, without thereby creating a public nuisance. In analogous settings, such as highway defect or premises liability cases, where a particular defect must be proved, what must be established is not a condition that might give rise to the defect, but the existence of the very defect that caused the injury, such as a pothole in a highway or a broken stair on someone's premises. See, e.g., DiPietro v. Farmington Sports Arena, LLC , 306 Conn. 107, 49 A.3d 951 (2012). In the present case, the condition which the plaintiff claims to have constituted a nuisance was the retaining wall without a fence . The court instructed the jury on the "reasonable use" element of public nuisance that it was to consider "all the surrounding factors." Although there was evidence of landscaping and a Merritt Parkway style barrier several feet from the approximately five foot tall wall, the jury nonetheless found the wall to be inherently dangerous. Evidence that the plaintiff was intoxicated, wore flip-flops, walked over the Merritt Parkway barrier and jumped off the wall, does not pertain to the question in the third interrogatory as to whether the defendant's use of the land was reasonable. "[T]he only practical distinction between an absolute nuisance and one grounded in negligence is that contributory negligence is not a defense to the former but may be as to the latter." (Internal quotation marks omitted.) Quinnett v. Newman , 213 Conn. 343, 349, 568 A.2d 786 (1990), overruled on other grounds by Craig v. Driscoll , 262 Conn. 312, 813 A.2d 1003 (2003). That evidence might well pertain to the defendant's special defenses of recklessness and assumption of the risk, but the jury did not reach those issues. The issue of utility comes into play logically, not about whether the wall itself had some use to hold back the earth, but whether there was any useful public purpose to erecting the wall without a fence atop it, which is the very defect that the plaintiff, in his complaint, supporting evidence, and argument to the jury, claims to have been the nuisance that proximately caused his injuries. In this case, as a matter of law, the jury could not have determined that the retaining wall without a fence was both inherently dangerous and not an unreasonable use of the land. A wall with or without a fence has the same capacity to hold back earth. The condition at issue is not the wall itself or the Streetscape Project, but the wall without a fence atop it. The inherently dangerous condition of the wall without a fence has no utility to stabilize soil. In Kumah , a jury reasonably could have found that the fire truck placed diagonally across an interstate was not an unreasonable use of the land given the utility of the fire truck in the emergency situation. See Kumah v. Brown , supra, 160 Conn. App. at 806-807, 126 A.3d 598. In the present case, there is no scenario under which the jury reasonably could have determined, after concluding that the retaining wall without a fence was inherently dangerous, that the fact that the retaining wall lacked a fence served any utility to either the defendant or the community, or that a weighing of all relevant circumstances could make the use of the land for an unfenced wall that is inherently dangerous and lacks any utility, reasonable. Under the circumstances of this case, the jury's answers to interrogatories one and three are inconsistent. In Bilodeau v. Bristol , 38 Conn. App. 447, 455, 661 A.2d 1049, cert. denied, 235 Conn. 906, 665 A.2d 899 (1995), this court noted that in attempting to harmonize the jury's inconsistent answers to interrogatories, a court may, as dictated by caution, return the jury to consider its verdict in light of the obvious inconsistency. See also Rendahl v. Peluso , 173 Conn. App. 66, 95, 162 A.3d 1 (2017) ("[a] trial court may decline to accept a verdict and return the jury to continue its deliberations when the verdict form or accompanying interrogatories, if any . are legally inconsistent"). The trial court did not do so in this instance. Because the jury's answers are inconsistent and cannot be harmonized, we conclude that the court abused its discretion in denying the plaintiff's motion to set aside the verdict. "A verdict that is inconsistent or ambiguous should be set aside." Kregos v. Stone , 88 Conn. App. 459, 470, 872 A.2d 901, cert. denied, 275 Conn. 901, 882 A.2d 672 (2005). II The plaintiff next claims that the court erred in excluding evidence that following the plaintiff's accident, the defendant installed a fence. The plaintiff argues that evidence of the remedial repair is admissible because the defendant did not voluntarily install the fence but, rather, did so at the direction of the department. We disagree. "The trial court's ruling on evidentiary matters will be overturned only upon a showing of a clear abuse of the court's discretion . We will make every reasonable presumption in favor of upholding the trial court's ruling ." (Internal quotation marks omitted.) Stokes v. Norwich Taxi, LLC , 289 Conn. 465, 489, 958 A.2d 1195 (2008). Section 4-7 (a) of the Connecticut Code of Evidence provides: "[E]vidence of measures taken after an event, which if taken before the event would have made injury or damage less likely to result, is inadmissible to prove negligence or culpable conduct in connection with the event. Evidence of those measures is admissible when offered to prove controverted issues such as ownership, control or feasibility of precautionary measures." Section 4-7, "which is an exception to the general rule of admissibility of relevant evidence . reflects the settled rule in this [s]tate that evidence of subsequent repairs is inadmissible to prove negligence or [as] an admission of negligence at the time of the accident . [S]uch evidence is likely to be of relatively minor probative value . A broad exclusionary rule prohibiting the use of such evidence to prove negligence [or culpable conduct] therefore fosters the public good by allowing tortfeasors to repair hazards without fear of having the repair used as proof of negligence, even though it requires the plaintiff to make a case without the use of evidence of the subsequent repairs . [E]vidence of subsequent remedial measures may be introduced when the party seeking to introduce the evidence can demonstrate that it is not being used as evidence of negligence but is instead offered to prove another material issue." (Citations omitted; footnote omitted; internal quotation marks omitted.) Duncan v. Mill Management Co. of Greenwich, Inc. , 308 Conn. 1, 13-15, 60 A.3d 222 (2013). The plaintiff stated in his brief that the evidence of the subsequent fence was relevant to the jury's determination of inherent danger and proximate cause. Section 4-7 of the Connecticut Code of Evidence, and the reasons behind the rule, make clear that voluntariness is not a factor, and that evidence of remedial measures is inadmissible to prove the defendant's liability for nuisance. Accordingly, we conclude that the court did not abuse its discretion in excluding evidence of the subsequent fence. The judgment is reversed and the case is remanded for a new trial. In this opinion SHELDON, J., concurred. (One judge concurring in part and dissenting in part) The complaint also named as defendants M. Rondano, Inc., and BL Companies, Inc. The court, Radcliffe , J. , granted the motion for summary judgment of BL Companies, Inc., which was affirmed on appeal. See Fisk v. Redding , 164 Conn. App. 647, 138 A.3d 410 (2016). The plaintiff withdrew his complaint as to M. Rondano, Inc. We will refer in this opinion to the town of Redding as the defendant. There was evidence that the Bridge Design Manual, which applies to retaining walls, provided that a protective fence is required if a retaining wall is greater than five feet, and subsequently was changed, unbeknownst to the project supervisors, to require any retaining wall exceeding four feet to have a fence. There also was evidence that the wall, as built, complied with the Connecticut State Building Code. The plaintiff pleaded, inter alia, in his operative complaint: "The said wall, which was within the highway limits of Main Street . had a precipitous (approximately [six feet] straight down) drop at the border of the highway right-of-way with the driveway (some [six feet] below) serving [number] 2 Main Street . Said precipitous drop had no protective fencing . As such, the said construction was inherently dangerous and constituted an absolute nuisance . Said wall was constructed upon public land and constituted a public nuisance." The plaintiff offered evidence that he suffered almost $ 250,000 in past medical bills and between $ 100,000 and $ 200,000 in future medical bills. The court submitted the following interrogatories to the jury: "1. Has Plaintiff proven to you, by a preponderance of the evidence, that the condition complained of, the subject retaining wall, was inherently dangerous in that it had a natural tendency to inflict injury on person or property? . "[If your answer is 'NO,' you must return a verdict for the defendant by using the defendant's verdict form. If your answer is 'YES,' please proceed to questions # 2.] "2. Has Plaintiff proven to you, by a preponderance of the evidence, that the danger created was a continuing one? . "[If your answer is 'NO,' you must return a verdict for the defendant by using the defendant's verdict form. If your answer is 'YES,' please proceed to questions # 3.] "3. Has Plaintiff proven to you, by a preponderance of the evidence, that the Defendant's use of the land was unreasonable or unlawful? . "[If your answer is 'NO,' you must return a verdict for the defendant by using the defendant's verdict form. If your answer is 'YES,' please proceed to questions # 4.] "4. Has Plaintiff proven to you, by a preponderance of the evidence, that the existence of the nuisance interfered with a right common to the general public? . "[If your answer is 'NO,' you must return a verdict for the defendant by using the defendant's verdict form. If your answer is 'YES,' please proceed to questions # 5.] "5. Has Plaintiff proven to you, by a preponderance of the evidence, that the existence of the nuisance was a proximate cause of the plaintiff's injuries and damages? . "[If your answer is 'NO,' you must return a verdict for the defendant by using the defendant's verdict form. If your answer is 'YES,' please proceed to questions # 6.] "6. Has the Defendant proven to you, by a preponderance of the evidence, that Plaintiff's own reckless misconduct was a proximate cause of his injuries? . "[If your answer is 'YES,' you must return a verdict for the defendant by using the defendant's verdict form. If your answer is 'NO,' please proceed to questions # 7.] "7. Has the Defendant proven to you, by a preponderance of the evidence, its defense of assumption of the risk? . "[If your answer is 'YES,' you must return a verdict for the defendant by using the defendant's verdict form. If your answer is 'NO,' please proceed to the plaintiff's verdict form.]" The focus in Walsh v. Stonington Water Pollution Control Authority , 250 Conn. 443, 449, 736 A.2d 811 (1999), was the utility of what the alleged creators of a private nuisance had made by their conduct rather than any contributory negligence on the part of the plaintiffs. The present case involves a claim of absolute nuisance to which contributory negligence is not a defense. See Warren v. Bridgeport , 129 Conn. 355, 360, 28 A.2d 1 (1942). The court instructed the jury to determine whether the condition in the particular location had a natural tendency to create danger and inflict injury. Because of our conclusion with respect to the first issue, it is appropriate for us to give guidance on issues that are likely to recur upon retrial.

12510620

VIKING CONSTRUCTION, INC. v. 777 RESIDENTIAL, LLC, et al.

Viking Constr., Inc. v. 777 Residential, LLC

2019-05-28

AC 41450

654

668

210 A.3d 654

210

West's Atlantic Reporter, Third Series

Connecticut Appellate Court

Connecticut

2021-08-27T20:57:56.130816+00:00

Fastcase

VIKING CONSTRUCTION, INC. v. 777 RESIDENTIAL, LLC, et al.

VIKING CONSTRUCTION, INC. v. 777 RESIDENTIAL, LLC, et al. AC 41450 Appellate Court of Connecticut. Argued February 14, 2019 Officially released May 28, 2019 Stephen E. Goldman, with whom was Wystan M. Ackerman, Hartford, for the appellant (defendant Liberty Mutual Fire Insurance Company). Jeffrey J. Vita, with whom was Theresa A. Guertin, Trumbull, for the appellees (named defendant et al.). Alvord, Keller and Eveleigh, Js.

6692

41991

EVELEIGH, J. The cross claim defendant, Liberty Mutual Fire Insurance Company (Liberty Mutual), appeals from the summary judgment rendered against it in favor of the cross claim plaintiffs, 777 Main Street, LLC (777 Main) and 777 Residential, LLC (777 Residential). On appeal, Liberty Mutual argues that the trial court erred in granting the 777 entities' motion for summary judgment on their cross claim and in denying Liberty Mutual's motion for summary judgment, on the basis of its interpretation of the insurance policy issued by Liberty Mutual to the 777 entities. Specifically, Liberty Mutual argues that (1) the defects, errors, and omissions exclusion in the insurance policy bars coverage, and (2) the resulting loss clause in the policy does not reinstate coverage. We agree with Liberty Mutual and reverse the judgment of the trial court. The following facts and procedural history are relevant to the resolution of this appeal. The 777 entities are the owners of a high-rise building at 777 Main Street in Hartford (building), which they planned to renovate and convert from an office building into a 285 unit apartment complex. On March 27, 2014, the 777 entities hired Viking Construction, Inc. (Viking), as the general contractor for the renovation. Viking's work on the renovation included cleaning the concrete facade of the building. On October 2, 2014, Viking subcontracted with Armani Restoration, Inc. (Armani), to clean the concrete facade of the building. From September to December, 2014, Armani cleaned the building's facade using a crushed glass cleaner that was sprayed onto the building using power washers. The cleaning inadvertently damaged the building's approximately 1800 windows, all of which had to be replaced at a cost of over $ 4 million. In July, 2015, the 777 entities claimed coverage of the loss under a builder's risk insurance policy (policy) that they had purchased from Liberty Mutual. This policy, which was in effect when the damage occurred, provides: "[Liberty Mutual] cover[s] direct physical loss or damage caused by a covered peril to 'buildings or structures' while in the course of construction, erection, or fabrication." (Footnote added.) The policy contains several exclusions, including a "Defects, Errors, And Omissions" exclusion, which provides that Liberty Mutual is not responsible for "loss or damage consisting of, caused by, or resulting from an act, defect, error, or omission (negligent or not) relating to: a) design, specifications, construction, materials, or workmanship; b) planning, zoning, development, siting, surveying, grading, or compaction; or c) maintenance, installation, renovation, remodeling, or repair." The exclusion, however, contains an exception, also known as a "resulting loss" clause, which provides: "[I]f an act, defect, error, or omission as described [in the exclusion] results in a covered peril, [Liberty Mutual] do[es] cover the loss or damage caused by that covered peril." The policy also includes an optional renovation endorsement, which the 777 entities added to the policy because the project involved the renovation of an existing building rather than the construction of a new structure. The renovation endorsement provides: "[Liberty Mutual] cover[s] direct physical loss or damage caused by a covered peril to 'building materials' and 'existing buildings' that are part of [the 777 entities'] 'rehabilitation or renovation project.' " On August 12, 2015, after investigating the 777 entities' claimed loss under the policy, Liberty Mutual denied coverage. On December 24, 2015, Viking filed an action against 777 Residential, alleging breach of contract on the basis of 777 Residential's alleged refusal "to remit the outstanding contract balance . for work Viking performed on the [renovation]." On May 12, 2016, Viking filed a motion to cite in as defendants, inter alia, 777 Main, Liberty Mutual, and Armani, which the court subsequently granted. On August 19, 2016, the 777 entities filed a cross claim, alleging a breach of contract on the basis of Liberty Mutual's refusal to cover the claimed loss under the policy. In March, 2017, the 777 entities settled their case with Viking and Armani for $ 1.6 million. The 777 entities continue to seek the remaining balance of the cost to replace the windows from Liberty Mutual. On November 6, 2017, after the close of discovery, Liberty Mutual filed a motion for summary judgment on the cross claim. On January 11, 2018, following oral argument on the motion, the trial court denied Liberty Mutual's motion for summary judgment. In its memorandum of decision on the motion, the court explained that its conclusion was based on a reading of the policy's exclusion in conjunction with the loss peril clause. On January 31, 2018, the 777 entities filed a motion for summary judgment on their cross claim, which the court subsequently granted on February 14, 2018 "[f]or the reasons stated in the court's memorandum of decision on Liberty Mutual's motion for summary judgment ." On February 16, 2018, the parties filed a stipulation as to the amount of damages. On February 20, 2018, the 777 entities filed a motion for judgment in accordance with the stipulation and Liberty Mutual filed an objection to the motion. On February 22, 2018, the court granted the motion for judgment and rendered judgment on the cross claim in the amount of $ 1,950,000 in favor of the 777 entities "for the reasons set forth in the court's January 11, 2018, February 14, 2018, and February 22, 2018 memoranda of decision." Thereafter, Liberty Mutual filed the present appeal. Additional facts and procedural history will be set forth as necessary. "We begin our analysis with the standard of review applicable to a trial court's decision to grant a motion for summary judgment. Practice Book § 17-49 provides that summary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. A party moving for summary judgment is held to a strict standard.... To satisfy [its] burden the movant must make a showing that it is quite clear what the truth is, and that excludes any real doubt as to the existence of any genuine issue of material fact.... As the burden of proof is on the movant, the evidence must be viewed in the light most favorable to the opponent.... When documents submitted in support of a motion for summary judgment fail to establish that there is no genuine issue of material fact, the non-moving party has no obligation to submit documents establishing the existence of such an issue.... Once the moving party has met its burden, however, the opposing party must present evidence that demonstrates the existence of some disputed factual issue.... It is not enough, however, for the opposing party merely to assert the existence of such a disputed issue. Mere assertions of fact . are insufficient to establish the existence of a material fact and, therefore, cannot refute evidence properly presented to the court under Practice Book § [17-45].... Our review of the trial court's decision to grant [a] motion for summary judgment is plenary." (Internal quotation marks omitted.) Anderson v. Dike , 187 Conn. App. 405, 409-10, 202 A.3d 448, cert. denied, 331 Conn. 910, 203 A.3d 1245 (2019). "The general principles that guide our review of insurance contract interpretations are well settled.... An insurance policy is to be interpreted by the same general rules that govern the construction of any written contract.... In accordance with those principles, [t]he determinative question is the intent of the parties, that is, what coverage the . [insured] expected to receive and what the [insurer] was to provide, as disclosed by the provisions of the policy.... If the terms of the policy are clear and unambiguous, then the language, from which the intention of the parties is to be deduced, must be accorded its natural and ordinary meaning.... Under those circumstances, the policy is to be given effect according to its terms.... When interpreting [an insurance policy], we must look at the contract as a whole, consider all relevant portions together and, if possible, give operative effect to every provision in order to reach a reasonable overall result.... "In determining whether the terms of an insurance policy are clear and unambiguous, [a] court will not torture words to import ambiguity where the ordinary meaning leaves no room for ambiguity . Similarly, any ambiguity in a contract must emanate from the language used in the contract rather than from one party's subjective perception of the terms.... As with contracts generally, a provision in an insurance policy is ambiguous when it is reasonably susceptible to more than one reading.... Under those circumstances, any ambiguity in the terms of an insurance policy must be construed in favor of the insured because the insurance company drafted the policy." (Internal quotation marks omitted.) New London County Mutual Ins. Co. v. Zachem , 145 Conn. App. 160, 164-65, 74 A.3d 525 (2013). "[I]n the event that an insurance policy term is deemed to be ambiguous, the parties are entitled to present extrinsic evidence regarding the mutual intent of the insured and the insurer as to the scope of coverage, and the trial court must consider that evidence before applying the rule of contra proferentem to resolve the ambiguity in favor of the insured. In other words, the rule should be applied as a tie breaker only when all other avenues to determining the parties' intent have been exhausted. See Cruz v. Visual Perceptions, LLC , 311 Conn. 93, 107-108, 84 A.3d 828 (2014) ; see, e.g., Lexington Ins. Co. v. Lexington Healthcare Group, Inc. , 311 Conn. 29, 59 n.20, 84 A.3d 1167 (2014) ; Connecticut Ins. Guaranty Assn. v. Fontaine , 278 Conn. 779, 788-89, 900 A.2d 18 (2006) ; Metropolitan Life Ins. Co. v. Aetna Casualty & Surety Co. , 255 Conn. 295, 306, 765 A.2d 891 (2001) ." (Citations omitted; footnote omitted.) Connecticut Ins. Guaranty Assn. v. Drown , 314 Conn. 161, 195-96, 101 A.3d 200 (2014) (Rogers, C.J. , concurring). I On appeal, Liberty Mutual first claims that the court erred in rendering summary judgment in favor of the 777 entities on their cross claim because the policy's "Defects, Errors, And Omissions" exclusion (exclusion) unambiguously bars coverage. The 777 entities claim that the court did not err because Liberty Mutual failed to satisfy "its heavy burden of proving that [the exclusion] bars coverage for the losses." We agree with Liberty Mutual. "In an insurance policy, an exclusion is a provision which eliminates coverage where, were it not for the exclusion, coverage would have existed." (Internal quotation marks omitted.) Hammer v. Lumberman's Mutual Casualty Co. , 214 Conn. 573, 588, 573 A.2d 699 (1990). "The burden of proving that an exclusion applies is on the insurer ." Capstone Building Corp. v. American Motorists Ins. Co. , 308 Conn. 760, 788 n.24, 67 A.3d 961 (2013). When policy exclusions are ambiguous, they "are strictly construed in favor of the insured ." (Internal quotation marks omitted.) Connecticut Ins. Guaranty Assn. v. Drown , supra, 314 Conn. at 188, 101 A.3d 200. The 777 entities first argue that the exclusion does not bar recovery because the windows were not part of the renovation. On the basis of a close reading of the exclusion and its terms, we are unpersuaded. The exclusion at issue in the present case provides: "[Liberty Mutual] do[es] not pay for loss or damage consisting of, caused by, or resulting from an act, defect, error, or omission (negligent or not) relating to: a) design, specifications, construction, materials, or workmanship; b) planning, zoning, development, siting, surveying, grading, or compaction; or c) maintenance, installation, renovation, remodeling, or repair." Although the policy contains a definition section, many of the terms used in the provision at issue are undefined. We, therefore, look to the dictionary definition of these words to ascertain their meaning. New London County Mutual Ins. Co. v. Zachem , supra, 145 Conn. App. at 166, 74 A.3d 525 ("[t]o determine the common, natural, and ordinary meaning of an undefined term, it is proper to turn to the definition found in a dictionary"). One such undefined word is "renovate." The verb "renovate" is defined as "to restore to a former better state (as by cleaning, repairing, or rebuilding) ." Merriam-Webster's Collegiate Dictionary (11th Ed. 2003). In the present case, the purpose of Armani's work was to restore the building to a better state by cleaning its facade. In fact, the 777 entities admitted as much in their brief, stating: "Armani was working on the facade (the renovation work) ." (Emphasis added.) On the basis of the plain meaning of the policy, therefore, the cleaning of the building's facade was part of the renovation. Having concluded that the cleaning of the building's facade was part of the renovation, we must next determine whether the damage to the windows, which was a direct result of this cleaning, was related to the renovation, thereby triggering the exclusion. The policy also fails to define "relating to"; therefore, we must again turn to available dictionary definitions to determine the meaning of the term. "Related" is defined as "connected by reason of an established or discoverable relation ." Merriam-Webster's Collegiate Dictionary, supra. Additionally, our courts have consistently given the term "relating to" a broad meaning that comports with the dictionary definition of the term. See, e.g., Brennan v. Brennan Associates , 293 Conn. 60, 79 n.12, 977 A.2d 107 (2009) (defining "relating to" as "to stand in some relation; to have bearing or concern; to pertain; refer; to bring into association with or connection with" [internal quotation marks omitted] ). In the present case, the damage to the windows was not merely connected to the cleaning of the building's facade, it was a direct result of the cleaning. The 777 entities admitted this fact when they stated that "there simply are not two concurrent causes [of the loss]: Armani accidentally sprayed the cleaning media onto the windows, causing damage." Thus, the damage to the windows was related to the renovation, as is required for the exclusion to apply. Additionally, the parties' actions support our conclusion that the windows were part of the renovation. In their renovation plans, the 777 entities contemplated avoiding harm to the windows because the windows were not to be replaced or removed. The specifications of the contract between Viking and the 777 entities set forth Viking's and Armani's obligation to protect adjacent surfaces, which would include the windows, providing that Viking was to "[p]rotect . surrounding surfaces of building being restored . from harm resulting from concrete restoration work." Although these specifications were drafted in contemplation of the use of a chemical cleaning media, Armani had a general obligation to avoid damage to adjacent surfaces, as set forth in the "General Conditions" provision of Viking's contract with the 777 entities, which provided: "[Viking] . shall provide reasonable protection to prevent damage, injury or loss to . other property at the site or adjacent thereto, such as . structures and utilities not designated for removal, relocation or replacement ." Because Armani's obligations in the performance of its renovation work included avoiding harm to the windows, structures not designated for removal, relocation or replacement, it is difficult to see how the windows and the damage to them is not connected or related to the renovation. In support of its argument, Liberty Mutual cites extensively to cases from other jurisdictions. Although the majority of these cases are unpersuasive, one case, Golan Management, LLC v. Hartford Ins. Co. , United States District Court, Docket No. CIV-11-0036-C (RJC) (W.D. Okla. May 3, 2012), is instructive because it is factually similar to the present case. In Golan Management, LLC , the owner of a commercial building filed an insurance claim when the windows of the building were damaged as a result of exterior cleaning. Id. The insurance company denied the claim, and the building owner sued for, inter alia, breach of contract. Id. The policy in Golan Management, LLC , contained an exclusion that is similar to the exclusion at issue in the present case. The exclusion in Golan Management, LLC , provided: "[The insurer] will not pay for the cost of correcting defects in Covered Property, or loss or damage to Covered Property that was caused by, resulting from, or arising out of work done on Covered Property by [the insured], [the insured's] employees, or others working on [the insured's] behalf." (Internal quotation marks omitted.) Id. Like the 777 entities, the building owner in Golan Management, LLC , argued that the exclusion did not apply because "the damage was not caused by work being done to the glass, but by work being done to the building ." Id. The court, however, rejected this argument and granted the insurance company's motion for summary judgment. Id. Like the court in Golan Management, LLC , we are unpersuaded by the 777 entities' argument to the effect that the exclusion is applicable to the cleaning of the building's facade but not to the windows. We conclude that the ordinary meaning of the terms in the policy indicates that the exclusion applies to the windows. The 777 entities next argue that the damage to the windows is not barred by the exclusion because the exclusion only applies to the finished product, not to the process implemented by Armani. This reading of the exclusion would render most of the exclusion's language utterly superfluous, contrary to the principle that "[an insurance] policy should not be interpreted so as to render any part of it superfluous." (Internal quotation marks omitted.) R.T. Vanderbilt Co. v. Continental Casualty Co. , 273 Conn. 448, 468, 870 A.2d 1048 (2005). This interpretation of the exclusion would ignore subsections (b) and (c) of the exclusion and only give effect to subsection (a) of the exclusion, which addresses the quality of the finished product, stating: "[Liberty Mutual] do[es] not pay for loss or damage consisting of, caused by, or resulting from an act, defect, error, or omission (negligent or not) relating to . design, specifications, construction, materials, or workmanship ." Subsections (b) and (c) of the exclusion provide: "[Liberty Mutual] do[es] not pay for loss or damage consisting of, caused by, or resulting from an act, defect, error, or omission (negligent or not) relating to . b) planning, zoning, development, siting, surveying, grading, or compaction; or c) maintenance, installation, renovation, remodeling, or repair." We conclude, therefore, that the 777 entities' argument to the effect that the exclusion applies only to the finished product of Armani's work is untenable. The 777 entities also argue that the exclusion does not bar coverage because such a reading would render the renovation endorsement meaningless. Liberty Mutual counters that, even if coverage is excluded for the damage to the windows, the endorsement has meaning because the main policy that the 777 entities purchased covered only new construction and, therefore, "without the renovation endorsement the policy wouldn't have covered any damage to the existing building ." (Emphasis added.) Indeed, at oral argument before this court, the 777 entities stated that they purchased the endorsement to extend coverage to the existing building because the policy only covered new construction. Although some jurisdictions assume that builder's risk policies exclusively apply to new construction; see, e.g., Ajax Building Corp. v. Hartford Fire Ins. Co. , 358 F.3d 795, 799 (11th Cir. 2004) ("The very purpose of a builder's risk policy is to provide protection for the building under construction.... Just as there are standard forms of property insurance used to insure existing buildings, builder's risk policies are used to insure the building while it is in the process of being built." [Citations omitted; internal quotation marks omitted.] ); in Connecticut, "[t]he scope of coverage depends on the language of the policy." D. Rosengren, 13 Connecticut Practice Series: Construction Law (2005) § 12:3, p. 245. In the present case, the main policy form expressly limits coverage to new construction. The main policy form provides: "[Liberty Mutual] cover[s] direct physical loss or damage caused by a covered peril to 'buildings or structures' while in the course of construction , erection, or fabrication." (Emphasis added.) It then goes on to state: "[Liberty Mutual] only cover[s] . 'buildings or structures' in the course of construction ." (Emphasis added.) Thus, the 777 entities' argument that the endorsement would be rendered meaningless if the exclusion applies is without merit because, if they had failed to purchase the endorsement, they would have been unable to recover for damage caused by a covered peril to the existing building they were renovating, such as fire. Relatedly, the 777 entities argue that the exclusion is not applicable in the present case because the renovation endorsement does not contain a copy of the exclusion. "A rider or endorsement is a writing added to or attached to a policy or certificate of insurance that expands or restricts its benefits or excludes certain conditions from coverage.... When properly incorporated into the policy, the policy and the rider together constitute the contract of insurance and are to be read together to determine the contract actually intended by the parties." (Internal quotation marks omitted.) Liberty Mutual Ins. Co. v. Lone Star Industries, Inc. , 290 Conn. 767, 806, 967 A.2d 1 (2009) ; see also Schultz v. Hartford Fire Ins. Co. , 213 Conn. 696, 705, 569 A.2d 1131 (1990) ("[i]n construing an endorsement to an insurance policy, the endorsement and policy must be read together, and the policy remains in full force and effect except as altered by the words of the endorsement" [internal quotation marks omitted] ). The 777 entities point out that "typically, endorsements to insurance policies include language incorporating the terms and conditions of the endorsement into the main policy form (or vice versa)"; however, contrary to the 777 entities' argument that the endorsement does not incorporate the terms of the main policy, the endorsement, in fact, contains the following language: "This endorsement changes the Builders' Risk Coverage." Because the renovation endorsement in the present case is incorporated by reference into the main policy, all of the provisions of the main policy apply to the endorsement with equal effect. We, therefore, conclude that the exclusion unambiguously bars coverage. II Liberty Mutual also claims that the trial court incorrectly interpreted the resulting loss clause as entitling the 777 entities to coverage. Specifically, Liberty Mutual claims that the clause does not apply because the "cause of the loss (Armani's negligent spraying) did not result in any second cause of loss ." The 777 entities claim that, even if the exclusion applies, the court correctly interpreted the resulting loss clause as restoring coverage. Specifically, the 777 entities argue that "if Armani's acts related to facade cleaning are considered excluded, but resulted in damage to the windows, then [Liberty Mutual] should be obligated to provide coverage." We agree with Liberty Mutual. A resulting loss clause, also known as an ensuing loss clause, is an exception to a policy exclusion that "ensure[s] that if one of the specified uncovered events takes place, any ensuing loss which is otherwise covered by the property insurance policy will remain covered; the uncovered event itself, however, is never covered." 11 S. Plitt et al., Couch on Insurance (3d Ed. Rev. 2017) § 153:2, p. 153-11 n.8. "[T]he insured has the burden of proving that an exception to an exclusion reinstates coverage." Capstone Building Corp. v. American Motorists Ins. Co. , supra, 308 Conn. at 788 n.24, 67 A.3d 961. In order to analyze whether the resulting loss clause reinstates coverage, we must again closely examine the language of the policy. The resulting loss clause in this contract immediately follows the exclusion and provides: "But if an act, defect, error, or omission as described above results in a covered peril, [Liberty Mutual] do[es] cover the loss or damage caused by that covered peril." Although the term "covered peril" is not defined in the policy, the provision titled "PERILS COVERED" provides: "[Liberty Mutual] cover[s] risks of direct physical loss or damage unless the loss is limited or caused by a peril that is excluded." As this provision indicates, perils, in the context of insurance, are "[t]he cause of a risk of loss to person or property; [especially], the cause of a risk such as fire, accident, theft, forgery, earthquake, flood, or illness ." (Emphasis added.) Black's Law Dictionary (9th Ed. 2009); see also 11 S. Plitt et al., supra, p. 153-11 n.8 ("[i]n property insurance parlance, 'perils' refers to fortuitous, active, physical forces such as lightning, wind, and explosion, which bring about the loss"). On the basis of the plain language of the resulting loss clause in the present case, a loss caused by an act during a renovation will be covered if the act causes a covered peril, such as a fire, and that latter peril damages the building. In the present case, there was only one cause of the 777 entities' loss-the spraying of the building, which caused damage to the windows-and because that was not a covered peril, the resulting loss clause does not apply. Our reading of the policy comports with this court's interpretation of ensuing loss clauses in Sansone v. Nationwide Mutual Fire Ins. Co. , 62 Conn. App. 526, 771 A.2d 243 (2001), and New London County Mutual Ins. Co. v. Zachem , supra, 145 Conn. App. 160, 74 A.3d 525. In those cases, this court concluded that ensuing loss clauses apply only when there is more than one peril. In Sansone , this court affirmed the judgment of the trial court and adopted its decision granting an insurer's motion for summary judgment on the basis of its conclusion that an ensuing loss clause in the insured's homeowners policy did not reinstate coverage for a loss caused by an insect infestation. Sansone v. Nationwide Mutual Fire Ins. Co. , supra, 62 Conn. App. at 527-28, 771 A.2d 243. The policy at issue provided: "[The insurer] cover[s] direct physical loss to property . except that caused by . deterioration . wet or dry rot . birds, vermin, rodents, insects or domestic animals.... [A]ny ensuing loss not excluded is covered." (Internal quotation marks omitted.) Sansone v. Nationwide Mutual Fire Ins. Co. , 47 Conn. Supp. 35, 38, 770 A.2d 500 (1999), aff'd, 62 Conn. App. 526, 771 A.2d 243 (2001). The trial court concluded that the ensuing loss clause in the policy did not apply because the loss was caused by a single, excluded peril-insect infestation-and "[t]here was . no aggravating activity or event that caused [the insured's] additional losses ." (Emphasis added.) Id., at 39, 770 A.2d 500. In New London County Mutual Ins. Co. v. Zachem , supra, 145 Conn. App. at 161-63, 74 A.3d 525, this court was asked to interpret an ensuing loss clause in a homeowners insurance policy when the insureds claimed coverage for a loss proximately caused by vandalism. The homeowners policy at issue in Zachem contained a vandalism exclusion and an ensuing loss clause that limited the exclusion. Id., at 162, 74 A.3d 525. Specifically, the ensuing loss clause provided in relevant part: "[A]ny ensuing loss to property . not excluded or excepted in this policy is covered." (Internal quotation marks omitted.) Id. In Zachem , this court concluded that the ensuing loss clause did not apply because the loss was proximately caused by an excluded peril-vandalism-and there was not a "separate and independent hazard ." (Internal quotation marks omitted.) Id., at 173, 74 A.3d 525. Indeed, the approach to ensuing loss clauses adopted by this court is in line with the rulings of many other courts throughout the country, which hold that ensuing loss clauses apply only when a loss is caused by a separate and independent peril. See Taja Investments, LLC v. Peerless Ins. Co. , 717 Fed.Appx. 190, 192 (4th Cir. 2017) ("an ensuing loss provision . applies only to distinct, separable, and ensuing losses" [internal quotation marks omitted] ); Travelers Indemnity Co. v. Board of County Commissioners , 508 Fed.Appx. 733, 734-35 (10th Cir. 2013) ("exception provides for coverage only when the excluded cause . becomes a new causal agent that itself causes resultant property damage" [internal quotation marks omitted] ); Sapiro v. Encompass Ins. , 221 F.R.D. 513, 522 (N.D. Cal. 2004) ("courts have long defined an ensuing loss as a loss separate and independent from [an] original peril" [internal quotation marks omitted] ); H.P. Hood, LLC v. Allianz Global Risks US Ins. Co. , 88 Mass. App. 613, 619, 39 N.E.3d 769 (2015) (resulting loss clause inapplicable because cause of loss was "not one where an excluded occurrence involving initial property damage led to other property damage of a different kind"), review denied, 473 Mass. 1109, 44 N.E.3d 862 (2016) ; Weeks v. Co-Operative Ins. Cos. , 149 N.H. 174, 177, 817 A.2d 292 (2003) (concluding that cause of loss separate and independent from initial excluded loss is required for ensuing loss clause to apply); see also Acme Galvanizing Co. v. Fireman's Fund Ins. Co. , 221 Cal. App. 3d 170, 179-80, 270 Cal.Rptr. 405 (1990) (same), review denied, California Supreme Court, Docket No. S016534 (Cal. October 11, 1990). The New Hampshire Supreme Court's decision in Weeks v. Co-Operative Ins. Cos. , supra, 149 N.H. 174, 817 A.2d 292, and the decision of the California Court of Appeal in Acme Galvanizing Co. v. Fireman's Fund Ins. Co. , supra, 221 Cal. App. 3d 170, 270 Cal.Rptr. 405, are illustrative of the circumstances in which, as here, ensuing loss clauses are inapplicable. In Weeks , a brick veneer wall was damaged when it separated from an asphalt shingle wall because of faulty workmanship. Weeks v. Co-Operative Ins. Cos. , supra, at 174, 817 A.2d 292. The insurance policy that covered the building excluded losses that were a result of faulty workmanship, but contained a resulting loss clause under which the building owner sought coverage. Id., at 174-75, 270 Cal.Rptr. 405. The court in Weeks concluded that the resulting loss clause did not apply because "there was no subsequent ensuing cause of loss separate and independent" from the faulty workmanship. Id., at 177-78, 270 Cal.Rptr. 405. In reaching this conclusion, the court in Weeks cited the decision of the California Court of Appeal in Acme Galvanizing Co . Id., at 177, 270 Cal.Rptr. 405. In Acme Galvanizing Co. v. Fireman's Fund Ins. Co. , supra, 221 Cal. App. 3d at 173, 270 Cal.Rptr. 405, an improperly welded steel kettle filled with several tons of molten zinc ruptured, thereby spilling the zinc onto nearby equipment in the plaintiff's galvanizing plant. The rupture was a result of a latent defect in the kettle, and the plaintiff's insurance policy excluded from coverage losses caused by such defects. Id., at 179, 270 Cal.Rptr. 405. The plaintiff argued, however, that the damage caused by the welding failure should be covered under the policy's ensuing loss clause. Id. The court disagreed and concluded: "[T]here was no peril separate from and in addition to the initial excluded peril of the welding failure and kettle rupture. The spillage of molten zinc was part of the loss directly caused by such peril, not a new hazard or phenomenon. If the molten zinc had ignited a fire or caused an explosion which destroyed the plant, then the fire or explosion would have been a new covered peril with the ensuing loss covered. That did not occur." Id., at 180, 270 Cal.Rptr. 405. Just as in Weeks and Acme Galvanizing Co. , the loss in the present case was caused by a single, excluded peril, and, therefore, the ensuing loss clause similarly does not reinstate coverage. The 777 entities argue, however, that Sansone and Zachem are distinguishable and that, therefore, the independent peril approach to ensuing loss clauses that they set forth is inapplicable to the present case. In an effort to distinguish these cases, the 777 entities rely on the fact that the ensuing loss clause provisions in those cases contained different language than the resulting loss clause in the present case. Although the policies in Sansone and Zachem use the term "ensuing loss," while the policy in the present case uses the language "results in a covered peril," this difference is immaterial. It is undisputed that the clause in the present case is a "resulting loss" provision and, as discussed previously in this opinion; see footnote 9 of this opinion; ensuing loss and resulting loss clauses are substantively indistinguishable. The clauses in Sansone and Zachem and the clause in the present case all serve the same purpose-reinstating coverage if an excluded peril causes a covered peril, which, in turn, results in a loss. The 777 entities also attempt to distinguish Sansone and Zachem by pointing out that those cases involved multiple, concurrent causes of the claimed loss, while the present case only involves one peril. Contrary to the 777 entities' argument, the fact that the loss in the present case was the result of a single, uncovered peril does not make the reasoning of Sansone and Zachem inapplicable. In both of those cases, the court made clear that an ensuing loss clause will only reinstate coverage when a hazard other than the excluded peril causes the loss. These cases clearly indicate that, as in the present case, where an excluded peril-the cleaning of the building's facade as part of the renovation-was the sole and direct cause of the damage to the windows, the ensuing loss clause does not reinstate coverage. The judgment is reversed and the case is remanded with direction to deny the 777 entities' motion for summary judgment on the cross claim, to grant Liberty Mutual's motion for summary judgment and to render judgment on the cross claim for Liberty Mutual. In this opinion the other judges concurred. Although the complaint in the underlying action was filed by Viking Construction, Inc., against Liberty Mutual and 777 Residential, LLC, Viking Construction, Inc., withdrew from the case and is not a party to this appeal. This appeal arises out of a cross claim filed by 777 Main Street, LLC, and 777 Residential, LLC, against their insurer, Liberty Mutual, and other entities which are not parties to this appeal. Hereinafter, we refer to 777 Main and 777 Residential collectively as the 777 entities, and individually by name where appropriate. The policy does not expressly define "covered peril," however, under the heading "PERILS COVERED," it provides: "[Liberty Mutual] cover[s] risks of direct physical loss or damage unless the loss is limited or caused by a peril that is excluded." For specific examples of the kinds of "covered perils" contemplated by the policy, it is helpful to look to the definition section of the policy, which provides in relevant part: "Specified perils means aircraft; civil commotion; explosion; falling objects; fire; hail; leakage from fire extinguishing equipment; lightning; riot; sinkhole collapse; smoke; sonic boom; vandalism; vehicles; volcanic action; water damage; weight of ice, snow, or sleet; and windstorm." (Internal quotation marks omitted.) Specifically, in its January 11, 2018 memorandum of decision denying Liberty Mutual's motion for summary judgment, the trial court stated: "The decisive question for this summary judgment motion is what it means when a builder's risk insurance policy with a renovation endorsement excludes damage 'resulting from an act . relating to . construction, workmanship, [or] renovation.' . "Everyone agrees that the 'renovations' exclusion . excludes insurance coverage for things done to the building that amount to nothing more than a bad job of renovating the thing intended to be renovated. But it's less clear whether there is coverage when a careless worker renovating one part of the building damages another part of the building. "The answer lies in the policy's additional language. It says that if an act of renovation 'results in a covered peril,' damage from that covered peril is covered.... In this context, the language reasonably appears to mean that if the renovation 'results' in damage that isn't a renovation, the latter damage is covered despite being triggered by the former. The [777 entities] reasonably [take] this to mean that damage to a part of the building not being renovated by the worker-a window-is covered.... "But Liberty Mutual says the language is intended to provide coverage only where there are two independent perils: one excluded peril causing an independent peril that causes the damage. A contractor cleaning the facade drops a wrench that breaks a wire that ultimately causes a fire that damages the building. The second peril-the covered one-is the fire. A facade cleaner leaves open a window that lets in rain that damages a carpet. The second peril-the covered one-is the rain.... "The important thing for the special clause here-often called a 'resulting loss' clause-is that the worker wasn't renovating the window but damaged it. The only point of getting this extra renovations policy would be to protect against collateral damage to the building during the renovations. It doesn't cover any other kind of damage-to people or other property, for instance." (Emphasis omitted; footnotes omitted.) The court's January 11, 2018 memorandum of decision denying Liberty Mutual's motion for summary judgment, which the court referenced in its subsequent memoranda of decision, provides the only detailed explanation of the court's rationale for its decision to render summary judgment in favor of the 777 entities. In its January 11, 2018 memorandum of decision denying Liberty Mutual's motion for summary judgment, the trial court did not indicate whether coverage was barred by the exclusion; instead, it based its conclusion that the 777 entities were entitled to coverage upon its reading of the exclusion in conjunction with the resulting loss clause. The resulting loss clause, however, only may be considered when coverage is barred by the exclusion. For the purposes of our analysis, therefore, we must infer that the court found that the exclusion barred coverage. Specifically, the 777 entities argue that the exclusion does not apply because (1) the windows were not part of the renovation; (2) the exclusion only applies to workmanship; (3) the application of the exclusion would obviate the renovation endorsement; (4) the exclusion is not incorporated into the renovation endorsement; and (5) the exclusion is ambiguous and should be construed in their favor. We address each of these arguments in turn. Finally, the 777 entities argue that, at a minimum, the exclusion is ambiguous and, therefore, must be construed in their favor. Because we conclude that the exclusion unambiguously bars coverage, we need not address this argument. See, e.g., Amica Mutual Ins. Co. v. Piquette , 176 Conn. App. 559, 565, 168 A.3d 623 (2017) ("[A]ny ambiguity in the terms of an insurance policy must be construed in favor of the insured because the insurance company drafted the policy.... This rule of construction may not be applied, however, unless the policy terms are indeed ambiguous." [Internal quotation marks omitted.] ). Although the exception at issue in the present case does not use the term "ensuing loss," courts in other jurisdictions have stated that resulting loss clauses and ensuing loss clauses are one and the same. See, e.g., Erie Ins. Property & Casualty Co. v. Chaber , 239 W. Va. 329, 337 n.8, 801 S.E.2d 207 (2017) ("Whether an insurance policy uses the term ensuing loss or resulting loss is of no moment. Resulting loss clauses are sometimes denominated ensuing loss clauses. The distinction is simply a matter of different wording among insurance policies. There is no legal significance to using one phrase over the other." [Internal quotation marks omitted.] ). Alternatively, the 777 entities argue that, even if this court does not interpret the ensuing loss clause as reinstating coverage, "it should deny Liberty Mutual's motion [for summary judgment] and leave it to the trier of fact to determine whether the ensuing loss provision applies in this case [because wind, which would be considered a covered peril, might have caused the loss]." In support of their argument, the 777 entities cite the self-serving deposition testimony of employees of Viking and Armani that the damage to the windows might have been caused by wind because they sometimes noticed that it seemed windy while they were cleaning the building. The 777 entities, however, admitted that there was only one cause of the damage-the faulty spraying of the building's facade. Thus, we conclude that this argument is without merit.

12510610

STATE of Connecticut v. Jean JACQUES

State v. Jacques

2019-07-16

SC 19783

533

554

210 A.3d 533

210

West's Atlantic Reporter, Third Series

Connecticut Supreme Court

Connecticut

2021-08-27T20:57:56.130816+00:00

Fastcase

Robinson, C.J., and Palmer, McDonald, D'Auria, Mullins, Kahn and Ecker, Js.

STATE of Connecticut v. Jean JACQUES

STATE of Connecticut v. Jean JACQUES SC 19783 Supreme Court of Connecticut. Argued October 17, 2018 Officially released July 16, 2019 S. Max Simmons, assigned counsel, for the appellant (defendant). David J. Smith, senior assistant state's attorney, with whom, on the brief, was Michael L. Regan, state's attorney, for the appellee (state). Robinson, C.J., and Palmer, McDonald, D'Auria, Mullins, Kahn and Ecker, Js.

11216

68130

MULLINS, J. After a jury trial, the trial court convicted the defendant, Jean Jacques, of murdering the victim, Casey Chadwick, in violation of General Statutes § 53a-54a. The defendant now appeals from that conviction. The subject of this appeal is the trial court's denial of his motion to suppress incriminating evidence linking him to the murder, which the police obtained from a search of his apartment without a warrant. The defendant had a month-to-month lease for the apartment and had paid only the first month's rent. Five days into that lease, the defendant was arrested for certain drug offenses and, shortly thereafter, the murder of the victim. The defendant never posted bond or made any arrangements to pay for a second month of rent. Five days after his rent was due for a second month, the police searched his apartment without a warrant and discovered the victim's cell phone hidden in a bathroom wall. The defendant moved to suppress that evidence on the ground that the search violated his right to be free from unreasonable searches and seizures under the fourth amendment to the United States constitution. In denying his motion to suppress, the trial court explained that the defendant had failed to "maintain the apartment as his own" because the lease had expired, the defendant had not made any further rent payments, and the defendant did not make arrangements to secure his belongings in the apartment. Thus, the court concluded that the defendant did not have a subjective expectation of privacy in the apartment at the time of the search. The question before us is whether the trial court properly denied the defendant's motion to suppress on the ground that he did not have a subjective expectation of privacy in the apartment at the time of the search. We conclude that, under the specific facts of this case, the defendant established that the apartment was his home and that neither his incarceration nor his failure to pay rent five days after it was due divested him of his subjective expectation of privacy in his apartment. Therefore, we further conclude that the trial court improperly denied the defendant's motion to suppress and, accordingly, reverse the judgment of the trial court. The following undisputed facts and procedural history are relevant to our analysis. On January 16, 2015, the defendant was released from incarceration to supervised parole. Upon being released, he lived with a friend until June 10, 2015. On that date, the defendant secured his own apartment in Norwich. He entered into a month-to-month tenancy and paid the landlord $450 for the first month of rent, which ran from June 10 to July 10, 2015. After securing the apartment, the defendant moved all of his belongings into the apartment and began living there. On June 15, 2015, the defendant was arrested on drug charges unrelated to this case. At the time of his arrest, the police noticed blood on his sneakers. That same day, police officers discovered the body of the victim stuffed into a closet in her apartment. She had been stabbed multiple times. Subsequent forensic testing indicated that some of the blood on the defendant's shoes had come from the victim. The following day, on June 16, 2015, the police, accompanied by the defendant's parole officer, searched the defendant's apartment. Inside, they discovered blood on the walls and a mattress. Forensic testing indicated that this blood came from the defendant, who had various cuts on his hands. The defendant was subsequently arrested for the murder of the victim while he was incarcerated on the drug charges. While the defendant was in jail on the pending drug and murder charges, the police received a tip from a confidential informant that the defendant had hidden the victim's cell phone and some drugs in a hole in the wall of the bathroom of his apartment. As a result, on July 15, 2015, police officers conducted a second search of the defendant's apartment in order to investigate whether there was a hole in the bathroom wall. This time, the officers were not accompanied by the defendant's parole officer. Instead, the officers went to the apartment alone and without a warrant. They obtained written consent from the landlord to search the apartment. After obtaining that consent, the officers entered the defendant's apartment and confirmed the presence of a hole in the bathroom wall with a bag inside of it. Inside the bag, the officers found the victim's cell phone and some drugs. Prior to trial, the defendant filed a motion to suppress the victim's cell phone and the drugs, asserting that this evidence was inadmissible under the exclusionary rule as the fruit of prior police illegality. An evidentiary hearing on the motion was held during which both parties presented evidence related to the defendant's lease of the apartment and the contested search. In its memorandum of decision on that motion, the trial court made the following explicit findings of fact. The defendant had entered into a month-to-month lease for the apartment and paid rent for the first month. Five days into his lease, on June 15, 2015, he was arrested on the drug charges. His bond was set at $100,000, which he was not able to post. While incarcerated on the drug charges, he was arrested for the murder of the victim, and his bond was increased to $1 million. He did not post that bond either. Thus, the defendant was incarcerated and never returned to the apartment following his arrest on June 15, 2015. The defendant did not make any further rent payments for any period beyond the first month. Nor did the defendant contact the landlord or attempt to have his lease extended. Despite having the ability to do so, the defendant also did not contact his friends or family to ask them to pay his rent. The trial court also found that the search at issue occurred on July 15, 2015, five days after the date of expiration of the lease term. Despite not receiving rent for a second month, the landlord did not initiate eviction proceedings. In fact, the court credited the landlord's testimony that, if the defendant had been released from jail in July and had the money to pay his rent, the landlord would have permitted him to continue to stay in the apartment. On the basis of these findings, the court determined that the defendant did not show an interest in the apartment and, thus, did not meet his burden of demonstrating a subjective expectation of privacy in it at the time of the second search. In making that determination, the court considered that the lease had expired five days before the second search occurred, the defendant neither made any further rent payment nor any arrangements to have his rent paid, and the defendant made no effort to "maintain the apartment as his own." The trial court further explained that, even though the defendant had been incarcerated, he could have exhibited some interest in the apartment by asking his family or friends to maintain the apartment or the personal belongings within it. The court acknowledged the defendant's testimony that he would have gone back to the apartment if he had been released from jail. It determined, however, that his expressing this view many months later did not rise to the level of exhibiting an actual subjective expectation of privacy in the apartment. The trial court denied the defendant's motion to suppress, and, following a nine day trial, the jury returned a verdict of guilty on the charge of murder. The trial court subsequently rendered judgment in accordance with that verdict and sentenced the defendant to sixty years incarceration. This appeal followed. Additional facts will be set forth below as necessary. On appeal, the defendant asserts that the trial court improperly denied his motion to suppress the evidence obtained during the second search of his apartment, which occurred on July 15, 2015. Specifically, he claims that he had a reasonable expectation of privacy in the apartment because it was his home and he had never been evicted from it or otherwise abandoned it. We agree with the defendant. We begin by setting forth the relevant principles of law and the standard of review governing the defendant's claim. "The fourth amendment to the United States constitution . provides that [t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures ." (Internal quotation marks omitted.) State v. Saturno , 322 Conn. 80, 88, 139 A.3d 629 (2016). "The capacity to claim the protection of the fourth amendment does not depend upon a property interest, permanency of residence, or payment of rent but upon whether the person who claims fourth amendment protection has a reasonable expectation of privacy in the invaded area." State v. Reddick , 207 Conn. 323, 330, 541 A.2d 1209 (1988) ; see id., at 329, 541 A.2d 1209 ("[a] person is entitled to fourth amendment protection anywhere he resides where he has a reasonable expectation of privacy"); see also Rakas v. Illinois , 439 U.S. 128, 143, 99 S. Ct. 421, 58 L. Ed. 2d 387 (1978) ; Katz v. United States , 389 U.S. 347, 361, 88 S. Ct. 507, 19 L. Ed. 2d 576 (1967) (Harlan, J., concurring). "To receive fourth amendment protection against unreasonable searches and seizures, a defendant must have a legitimate expectation of privacy in the [subject of the search].... Absent such an expectation, the subsequent police action has no constitutional ramifications." (Internal quotation marks omitted.) State v. Pink , 274 Conn. 241, 258, 875 A.2d 447 (2005). To determine whether a defendant has a reasonable expectation of privacy in an invaded place, we follow the test laid out by the United States Supreme Court in Katz v. United States , supra, 389 U.S. at 347, 88 S.Ct. 507. "The Katz test has both a subjective and an objective prong: (1) whether the [person contesting the search] manifested a subjective expectation of privacy with respect to [the invaded premises or seized property]; and (2) whether that expectation [is] one that society would consider reasonable.... This determination is made on a case-by-case basis.... The burden of proving the existence of a reasonable expectation of privacy rests [with] the defendant." (Internal quotation marks omitted.) State v. Houghtaling , 326 Conn. 330, 341, 163 A.3d 563 (2017), cert. denied, - U.S. -, 138 S. Ct. 1593, 200 L. Ed. 2d 776 (2018). It is well settled that "[w]hen reviewing a trial court's denial of a motion to suppress, [a] finding of fact will not be disturbed unless it is clearly erroneous in view of the evidence and pleadings in the whole record . [W]hen a question of fact is essential to the outcome of a particular legal determination that implicates a defendant's constitutional rights . and the credibility of witnesses is not the primary issue, our customary deference to the trial court's factual findings is tempered by a scrupulous examination of the record to ascertain that the trial court's factual findings are supported by substantial evidence.... [When] the legal conclusions of the court are challenged, [our review is plenary, and] we must determine whether they are legally and logically correct and whether they find support in the facts set out in the [trial court's] memorandum of decision ." (Internal quotation marks omitted.) Id., at 339-40, 163 A.3d 563. "Notwithstanding our responsibility to examine the record scrupulously, it is well established that we may not substitute our judgment for that of the trial court when it comes to evaluating the credibility of a witness.... We must defer to the trier of fact's assessment of the credibility of the witnesses that is made on the basis of its firsthand observation of their conduct, demeanor and attitude." (Internal quotation marks omitted.) State v. DeMarco , 311 Conn. 510, 519-20, 88 A.3d 491 (2014). In the present case, the trial court's factual finding that the defendant had no subjective expectation of privacy in the apartment at the time of the search implicates the defendant's constitutional rights. Thus, we undertake a scrupulous review of the record to determine whether the trial court's finding is supported by substantial evidence in the record. See, e.g., id. A review of the record reveals the following. At the suppression hearing, the defendant testified that the apartment was his "home." He explained that, after verbally entering into a lease and paying his first month of rent on June 10, 2015, he moved all of his personal belongings into the apartment and began living there. He was living there when he was arrested and incarcerated five days later. When he missed his rent payment for the next month, he did not make arrangements to have his belongings removed from the apartment because he did not think that his landlord would kick him out for not paying rent. He also expressed his uncertainty as to whether his lease had expired at the time of the search on July 15, 2015. In the five days preceding the search in which the defendant's rent payment was overdue, the landlord neither contacted him nor gave him any reason to believe that he had to vacate the apartment. The defendant testified that, if his landlord had told him that he needed to leave the apartment, he would have contacted a friend to remove his belongings from the premises, but the landlord never did so. He stated that it was his intention to stay in the apartment for a long time. He also stated that he had a key to the apartment and did not give permission for anyone, including the landlord, to enter. While the defendant acknowledged that he knew he might be incarcerated for a long time and made no attempt to contact his landlord when rent became due for a second month, he testified that he thought he could easily talk to the landlord and get his apartment when he got out of jail. When testifying about his expectations with regard to the apartment in the event that he was released from jail, the defendant stated that "I . think about when I get out, this is where I'm going . where I'm going [to] go." The landlord also testified at the suppression hearing, and his testimony supported the defendant's contention that he had a subjective expectation of privacy in the apartment. The landlord testified that he never communicated to the defendant in any way that he had to leave the apartment. He made no attempt to get the keys back from the defendant prior to the time of the search. Nor did he commence eviction proceedings. Although he never notified the defendant, prior to the search, the landlord took it upon himself to put all of the defendant's personal belongings in bags and remove them from the apartment. We are aware that the first prong of Katz focuses on the defendant's actions and beliefs as opposed to those of the landlord. Nevertheless, we find it significant that the landlord's conduct supports the defendant's testimony that he actually believed he had a privacy right in the apartment at the time of the search. The defendant heard nothing from the landlord suggesting that he was in danger of losing the apartment or his possessions therein. Cf. United States v. Miller , 387 Fed. Appx. 949, 951-52 (11th Cir. 2010) (concluding that defendant could not have subjective expectation of privacy where defendant knew property manager would give him only three weeks to remove belongings if he failed to pay rent, and search occurred after three week period elapsed). A scrupulous examination of the record reveals that the trial court's determination that the defendant did not have a subjective expectation of privacy in his apartment at the time of the search is not supported by substantial evidence. Instead, the evidence demonstrates that the apartment was the defendant's home and that he, therefore, had an expectation of privacy in the apartment. The record shows that, the defendant entered into a month-to-month lease and paid for the first month. He was given the keys to the apartment, moved all of his possession into the place, and testified that he never gave anyone, including the landlord, permission to enter. See, e.g., State v. Reddick , supra, 207 Conn. at 331-32, 541 A.2d 1209 (holding that defendant had legitimate expectation of privacy in mother's apartment when defendant had key). He also expressly testified that the apartment was his home, and the landlord's behavior was consistent with that belief. Even though the defendant was five days late on his second rent payment in this month-to-month lease, the landlord did not initiate any eviction proceedings. Neither the fact that the defendant was overdue on his rent nor the fact that he was incarcerated during his tenancy is sufficient, without more, for the defendant to have lost his subjective expectation of privacy in his apartment. Indeed, the failure to pay rent, on its own, does not result in the loss of one's expectation of privacy. See United States v. Robinson , 430 F.2d 1141, 1143-44 (6th Cir. 1970) ; Browning v. State , 176 Ga. App. 420, 422, 336 S.E.2d 41 (1985) ; State v. Hodges , 287 N.W.2d 413, 415 (Minn. 1979) ; State v. Clark , 105 N.M. 10, 13, 727 P.2d 949 (App.), cert. denied, 104 N.M. 702, 726 P.2d 856 (1986). Similarly, the defendant's incarceration and subsequent absence from the apartment did not, without more, result in the loss of his expectation of privacy. See United States v. Robinson , supra, at 1143 ; Browning v. State , supra, at 422, 336 S.E.2d 41 ; State v. Hodges , supra, at 415 ; State v. Clark , supra, at 952. The trial court faulted the defendant for not exhibiting any interest in the apartment and for failing to "maintain the apartment as his own." We construe this as an abandonment analysis. In such an analysis, however, the burden of proof is not placed on the defendant to show that he maintained his privacy interest but, rather, on the state to show "an element of conduct manifesting [an] intent to relinquish an expectation of privacy in the [item or area searched]." (Internal quotation marks omitted.) State v. Jackson , 304 Conn. 383, 396, 40 A.3d 290 (2012) ; see also United States v. Brazel , 102 F.3d 1120, 1147-48 (11th Cir.) (explaining that defendant bears burden of proving legitimate expectation of privacy in area searched, and government has burden of proving abandonment), cert. denied, 522 U.S. 822, 118 S. Ct. 79, 139 L.Ed. 2d 37 (1997). Moreover, abandonment "must be established by clear and unequivocal evidence." United States v. Harrison , 689 F.3d 301, 307 (3d Cir. 2012), cert. denied, 568 U.S. 1242, 133 S. Ct. 1616, 185 L. Ed. 2d 602 (2013). To show that the defendant abandoned his expectation of privacy in his apartment, the law generally requires affirmative conduct on the part of the defendant. See, e.g., United States v. Stevenson , 396 F.3d 538, 544 (4th Cir.) (defendant showed intent to relinquish his privacy interest in apartment while he was incarcerated by writing letter to his girlfriend in which he gave her all of his personal belongings and referred to himself as "former renter"), cert. denied, 544 U.S. 1067, 125 S. Ct. 2534, 161 L. Ed. 2d 1122 (2005) ; see also United States v. Ruiz , 664 F.3d 833, 841 (10th Cir. 2012) (defendant sent letter to his landlord stating he would no longer be renting home and she could keep all of his furniture). In the present case, the record is devoid of any evidence demonstrating that the defendant affirmatively intended to relinquish his expectation of privacy in his apartment. He neither expressed to his landlord that he no longer wanted the apartment nor expressed to anyone else an intention to abandon his possessions. Failure to make arrangements for the security of his possessions a mere five days after his rent was due is not evidence that he intended to relinquish his expectation of privacy in his apartment. Rather, the defendant's conduct was consistent with his stated belief that his possessions were secure and that he was not in danger of losing his apartment five days after the rent was due. On the basis of the foregoing, we conclude that, under the specific facts of this case, the trial court's finding that the defendant lacked a subjective expectation of privacy in the apartment at the time of the search is not supported by substantial evidence and, thus, is clearly erroneous. Instead, we conclude that the defendant met his burden of showing that he had a subjective expectation of privacy in the apartment at the time of the search. Having concluded that the defendant satisfied his burden of proving that he had a subjective expectation of privacy in the apartment, we must now consider the second prong of the Katz test, namely, whether that expectation was reasonable, as measured by society's values, at the time of the search. See Katz v. United States , supra, 389 U.S. at 361, 88 S.Ct. 507 (Harlan, J., concurring). This is a question of law over which our review is plenary. See, e.g., United States v. Stevenson , supra, 396 F.3d at 545. "A reasonable expectation of privacy is one that is legitimate." (Internal quotation marks omitted.) State v. Zindros , 189 Conn. 228, 239, 456 A.2d 288 (1983), cert. denied, 465 U.S. 1012, 104 S. Ct. 1014, 79 L. Ed. 2d 244 (1984). "The test of legitimacy is not whether the individual chooses to conceal assertedly private activity. Rather, the correct inquiry is whether the government's intrusion infringes upon the personal and societal values protected by the [f]ourth [a]mendment." (Footnote omitted; internal quotation marks omitted.) Oliver v. United States , 466 U.S. 170, 182-83, 104 S. Ct. 1735, 80 L. Ed. 2d 214 (1984). "Legitimate expectations of privacy derive from concepts of real or personal property law or [from] understandings that are recognized and permitted by society. One of the main rights attaching to property is the right to exclude others . and one who owns or lawfully possesses or controls property will in all likelihood have a legitimate expectation of privacy by virtue of this right to exclude." (Citation omitted; internal quotation marks omitted.) State v. Hill , 237 Conn. 81, 94 n.19, 675 A.2d 866 (1996) ; see also Rakas v. Illinois , supra, 439 U.S. at 144 n.12, 99 S.Ct. 421. "Of course, one need not have an 'untrammeled power to admit and exclude' in order to claim the protection of the fourth amendment, so long as the place involved is one affording an expectation of privacy that society regards as reasonable." State v. Hill , supra, at 94 n.19, 675 A.2d 866 ; see also State v. Mooney , 218 Conn. 85, 95-96, 588 A.2d 145, cert. denied, 502 U.S. 919, 112 S. Ct. 330, 116 L. Ed. 2d 270 (1991). Moreover, it is well established that "a home is a place in which a subjective expectation of privacy virtually always will be legitimate ." California v. Ciraolo , 476 U.S. 207, 220, 106 S. Ct. 1809, 90 L. Ed. 2d 210 (1986) (Powell, J., dissenting); see also 1 W. LaFave, Search and Seizure (5th Ed. 2012) § 2.3, p. 724 ("one's dwelling has generally been viewed as the area most resolutely protected by the [f]ourth [a]mendment"). Thus, "even under the Katz [justified expectation of privacy] approach, it is . useful to view residential premises as a place especially protected against unreasonable police intrusion." 1 W. LaFave, supra, § 2.3, p. 725; see Payton v. New York , 445 U.S. 573, 586, 100 S. Ct. 1371, 63 L. Ed. 2d 639 (1980) ("[i]t is a basic principle of [f]ourth [a]mendment law that searches and seizures inside a home without a warrant are presumptively unreasonable" [internal quotation marks omitted] ); see also State v. Fausel , 295 Conn. 785, 793, 993 A.2d 455 (2010). Because the trial court determined that the defendant did not have a subjective expectation of privacy in the apartment at the time of the search, it did not reach the issue of whether the expectation was reasonable. It noted, however, that it would have concluded that the expectation was not one that society would consider reasonable. The court reasoned that the defendant's tenancy had expired prior to the search and that the defendant failed to comply with General Statutes § 47a-16a, which requires a tenant to notify his landlord of any anticipated absence from the leased premises. The defendant contends, however, that the trial court failed to consider other portions of Connecticut's landlord tenant statutes, such as those concerning summary process, that are equally relevant to the issue of reasonableness. In particular, the defendant directs our attention to several specific statutory provisions. See General Statutes § 47a-11b (a) (providing that abandonment of premises by occupant means occupant has left premises without notice to landlord as evidenced by removal of all personal belongings from premises and either nonpayment of more than two months of rent or express statements by occupant of intention to leave); General Statutes § 47a-15a (providing nine day grace period before landlord may terminate month-to-month lease for nonpayment of rent); General Statutes § 47a-23 (providing requisite steps for landlord to follow to formally initiate eviction proceedings). We recognize that property law concepts do not necessarily control our fourth amendment inquiry. They are, however, "clearly a factor to be considered." United States v. Salvucci , 448 U.S. 83, 91, 100 S. Ct. 2547, 65 L. Ed. 2d 619 (1980) ; see also United States v. Fields , 113 F.3d 313, 320 (2d Cir.) ("a defendant's property or possessory interest in the place searched is a factor generally considered in determining the reasonableness of a defendant's expectation of privacy"), cert. denied, 522 U.S. 976, 118 S. Ct. 434, 139 L. Ed. 2d 334 (1997) ; State v. Houghtaling , supra, 326 Conn. at 346 n.10, 348-49, 163 A.3d 563 (considering defendant's property interest in fourth amendment analysis and explaining that "property rights may be the beginning and the end of a fourth amendment analysis when the police have physically intruded on a person's residence"). In the present case, the trial court made a finding that the landlord did not initiate formal eviction proceedings as required by statute. See General Statutes § 47a-23 through 47a-23b. Moreover, the search occurred before the nine day statutory grace period for payment of rent had elapsed. See General Statutes § 47a-15a. Thus, at the time of the search, the defendant had a legal right to occupy the premises and exclude others, notwithstanding his failure to pay rent. See, e.g., State v. Johnson , 110 Idaho 516, 523, 716 P.2d 1288 (1986) (concluding that defendant had legitimate and reasonable expectation of privacy in premises and that defendant was "entirely justified in expecting his landlord to resort to the eviction procedures required by law rather than resorting to self-help in seeking rent payment if he was in fact behind in his rent"); State v. Dennis , 182 Ohio App. 3d 674, 683-84, 914 N.E.2d 1071 (2009) (holding that defendant had reasonable expectation of privacy in apartment where defendant received multiple eviction notices, but legal procedures for eviction had not yet been completed); see also United States v. Botelho , 360 F. Supp. 620, 626 (D. Haw. 1973) (concluding that court was "not prepared to hold that a defendant with a perfectly legal right to possession or occupancy of leased premises can be found to have an 'unreasonable' expectation of privacy"). The very existence of the statutory landlord tenant scheme in Connecticut is significant in our analysis for objective standards in this context. "[S]tatutes may . help to define the contours of constitutional rights . Because [l]egislative enactments are expressions of this state's public policy . they may be relevant to the resolution of whether the defendant's expectation of privacy is one that Connecticut citizens would recognize as reasonable." (Citations omitted; internal quotation marks omitted.) State v. Bernier , 246 Conn. 63, 72-73, 717 A.2d 652 (1998). Indeed, this court previously has "considered the presence of state regulation in determining whether a defendant's expectation [of privacy] was one that Connecticut citizens would consider reasonable ." Id., at 73, 717 A.2d 652 ; see also id., at 73-74, 717 A.2d 652 (looking to statutory scheme regarding fire investigations in order to determine reasonableness of defendant's privacy expectations in flooring samples taken from his home); State v. DeFusco , 224 Conn. 627, 636-38, 620 A.2d 746 (1993) (considering existence of statutes regulating garbage collection, recycling, and disposal informative to issue of reasonableness of defendant's expectation of privacy in garbage). This state, as well as every other state in the nation, has a comprehensive statutory scheme in place detailing the process through which a landlord may retake possession of leased property from a tenant. See 2 Restatement (Second), Property, Landlord and Tenant § 14.1, note 1, p. 3 (1977). The existence of these statutes demonstrate that society expects landlords to follow the mandatory legal processes in order to lawfully retake possession of a premises, which, in turn, indicates to us that a tenant's expectation of privacy is valid, or at least reasonable, until the time that the landlord complies with the statutory procedure and regains the right of possession. In this case, the defendant's landlord did not even begin to pursue the legal statutory process. Thus, we conclude that it was reasonable for the defendant to have believed that he had the right to privacy in his apartment a mere five days after rent was due. The state contends that the defendant's failure to pay or arrange for the payment of rent demonstrates his lack of any reasonable expectation of privacy. As we explained previously, the nonpayment of rent, by itself, does not divest a tenant of his expectation of privacy in the premises. See 79 C.J.S., Searches and Seizures § 32 (2019) ("the tenant of leased premises may maintain an expectation of privacy . after the termination of the tenancy, and this is so even if the tenant falls behind in [his] obligation to pay rent" [footnote omitted] ); see also United States v. Washington , 573 F.3d 279, 284-85 (6th Cir. 2009) (reasoning that, "[i]f a landlord's unexercised authority over a lodging with overdue rent alone divested any occupant of a reasonable expectation of privacy, millions of tenants . would be deprived of [f]ourth [a]mendment protection," and concluding that "paying late is a common occurrence . and [thus, there is no merit to] the notion that the [c]onstitution ceases to apply in these circumstances"); United States v. Botelho , supra, 360 F. Supp. at 625 (concluding that nonpayment of rent alone is insufficient to deem defendant's expectation of privacy in home unreasonable because "[t]o hold otherwise would abolish the protections of the [f]ourth [a]mendment for a potentially large group of persons renting homes and apartments" [internal quotation marks omitted] ); State v. Taggart , 7 Or. App. 479, 482-84, 491 P.2d 1187 (1971) (concluding that defendant had reasonable expectation of privacy in premises where he failed to pay rent, search occurred before five day grace period expired, and landlord had not initiated eviction proceedings). To be clear, a tenant may, under certain circumstances, lose an expectation of privacy in his leasehold even before he loses his legal right of possession under applicable law, and nonpayment of rent may be one factor in arriving at that determination. See United States v. Stevenson , supra, 396 F.3d at 547 (any expectation defendant had in apartment was unreasonable where defendant fell behind on rent payments prior to becoming incarcerated, disposed of all of his belongings, and referred to himself as "former renter" of apartment); United States v. Hoey , 983 F.2d 890, 891-93 (8th Cir. 1993) (holding that defendant had no reasonable expectation of privacy in apartment where defendant was six weeks late on rent, defendant told landlord she was leaving and held moving sale, and neighbor saw defendant leave). We also consider the length of time that elapsed after rent was due and before the contested search took place. The defendant's rent was due on July 10, 2015, and the search took place on July 15, 2015. Importantly, the defendant was only five days overdue on his rent at the time of the search. While we recognize that there are limits as to how far in arrears in the payment of rent a defendant may become before his privacy expectation becomes unreasonable, we do not need to define what those limits are under the facts of the present case. Instead, we conclude that, given the record before us, the fact that the defendant's rent was five days overdue is not sufficient to render his expectation of privacy in the apartment unreasonable. See, e.g., People v. Sedrel , 184 Ill. App. 3d 1078, 1081, 132 Ill.Dec. 870, 540 N.E.2d 792 (acknowledging that defendant's rent was only three days overdue at time of search, which was insufficient time for landlord to believe that defendant had abandoned apartment), appeal denied, 127 Ill. 2d 636, 136 Ill.Dec. 602, 545 N.E.2d 126 (1989). Indeed, in the present case, the landlord testified that, had the defendant shown up at the apartment on the day of the search and been able to pay rent, the landlord would have let him stay. Moreover, as we explained previously, § 47a-15a provides tenants with a nine day grace period in which to pay overdue rent, thus suggesting that five days is within the amount of time that society would consider reasonable for a defendant to believe that he has an expectation of privacy in his home notwithstanding the failure to pay the next month's rent. See footnote 12 of this opinion. Aside from property law concepts, other factors aid our analysis of whether the defendant's privacy expectation was reasonable. "Absence due to arrest and incarceration while awaiting trial is not of itself a sufficient basis upon which to conclude that the accused has abandoned any reasonable expectation of privacy in his home. To hold otherwise would make permissible warrantless searches of the homes of those awaiting trial and unable to post bond." Commonwealth v. Strickland , 457 Pa. 631, 637, 326 A.2d 379 (1974) ; see also United States v. Robinson , supra, 430 F.2d at 1143 (rejecting government's argument that defendant's absence from apartment indicates relinquishment of privacy rights when absence was due to incarceration); Browning v. State , supra, 176 Ga. App. at 422, 336 S.E.2d 41 (concluding defendant maintained reasonable expectation of privacy in apartment despite being in jail and failing to pay rent). In the present case, the defendant was living at the apartment at the time he was arrested. His absence from the apartment was solely a result of his incarceration. Further, the defendant's rent, which was only five days late at the time of the search, came due only after he became incarcerated. On the basis of the foregoing, we cannot conclude that, under the facts of the present case, the defendant did not have a reasonable expectation of privacy in the apartment at the time of the search. Because we conclude that the defendant had a reasonable expectation of privacy in the apartment at the time of the search, we conclude that the trial court improperly denied the defendant's motion to suppress. On appeal, the state does not claim that, in the event this court determines that the trial court improperly denied the defendant's motion to suppress, any error was harmless. Thus, we have no occasion to address whether the error here was harmless. See, e.g., State v. Kirby , 280 Conn. 361, 387, 908 A.2d 506 (2006) (acknowledging that state did not argue that violation of defendant's confrontation rights was harmless error and reversing judgment of trial court). The judgment is reversed and the case is remanded for a new trial. In this opinion the other justices concurred. KAHN, J., with whom ROBINSON, C. J., joins, concurring. I agree with and join the judgment of the well reasoned majority opinion reversing the judgment of conviction of the defendant, Jean Jacques. That is, given the absence in the current record of any evidence or argument regarding the effect of the defendant's parole status on his expectation of privacy in his apartment, I agree that we are compelled to conclude that the trial court improperly denied the defendant's motion to suppress evidence obtained during a warrantless search of his apartment. Moreover, in light of the state's waiver of the claim that any error by the trial court was harmless, we are also compelled to reverse the judgment of conviction. I write separately to clarify two points: First, in my view, the state's case, even without the evidence obtained from the July 15, 2015 search of the defendant's apartment, was a strong one. My review of the record persuades me that the state would have readily been able to demonstrate that any error was harmless beyond a reasonable doubt. Second, and more importantly, I write to emphasize that a parolee's expectation of privacy in his or her dwelling does not increase upon being arrested and incarcerated for another offense during the period of parole. I HARMLESS ERROR Before I proceed to the primary point I wish to make in this concurring opinion-that the defendant's expectation of privacy in his apartment did not increase as a result of his incarceration-I observe that, even without the evidence obtained from the July 15, 2015 search that is at issue in this appeal, the state had an overwhelming case against the defendant. The state's theory of the case was that the defendant went to the victim's apartment on the night of June 14, 2015, stabbed her to death, and then stole the crack cocaine and marijuana that the victim had on the premises, with the intent to sell the stolen drugs. The state's evidence that the defendant had been in the victim's apartment and murdered her was compelling, even without the victim's cell phone and the drugs. Most significantly, the state presented evidence that the defendant's blood was on the victim's living room floor and on her kitchen wall. The state also presented the testimony of the victim's boyfriend, Jean Joseph, that, at approximately 11:20 p.m. on June 14, 2015, the victim texted him to tell him that the defendant was at her apartment. Joseph testified that, after receiving the victim's text, he unsuccessfully tried to call the defendant, but that the defendant immediately returned his call, confirmed that he was at the victim's apartment and asked whether Joseph would be coming there that night. The cell phone records of both Joseph and the victim, produced by Verizon Wireless' Law Enforcement Resource Team, confirmed Joseph's testimony as to the substance of the victim's text, and the fact that Joseph spoke to the defendant immediately after receiving that text. The jury also viewed the redacted video-taped recording of the defendant's June 25, 2015 interview with Detective Anthony Gomes of the Norwich Police Department (department), who was the lead detective for the case. During that interview, although he denied entering her apartment, the defendant admitted that, on the night of June 14, 2015, he was outside the victim's building. The state also produced strong evidence that the defendant stabbed the victim to death. The presence of his blood on her living room floor was certainly relevant to that question. When the defendant was arrested for selling crack cocaine on the afternoon of June 15, 2015, his clothing, including the sneakers that he was wearing, was seized. Testing revealed the victim's blood on the defendant's right sneaker. The state also produced the defendant's gym bag, which the police officers recovered from the trunk of a vehicle belonging to the defendant's friend, Indira Barros-Gomes, who had picked the defendant up at a laundromat on June 15, 2015. Inside the gym bag, the officers found a pair of the defendant's jeans, which, when tested, revealed the presence of the victim's blood. The state produced evidence that the defendant suffered injuries during the commission of the murder. At the time of the defendant's arrest, the officers took photographs of the defendant's hands, revealing that he had bandages on both hands, covering multiple cuts. During their first search of his apartment, which the defendant does not challenge on appeal, the police found his blood in the apartment. Jeffrey Payette, a detective with the Connecticut State Police, testified that, ordinarily, they take samples of items that are deemed to have evidentiary value, but, because "there was just so much blood around the entire apartment," they decided to simply take representative samples. Testing later confirmed that the blood in his apartment was the defendant's. The state presented the testimony of Tywan Jenkins, who was the defendant's cellmate at the Corrigan-Radgowski Correctional Center in Uncasville. While they were incarcerated together, the defendant gave Jenkins several accounts related to the victim's murder. In his final version of the events, the defendant told Jenkins that he stabbed the victim and that he cut himself during the attack. He also told Jenkins that, after he had killed the victim, he used a mop and bucket with bleach to clean the crime scene. It is worth noting that when the victim's body was discovered, a mop in a bucket with bleach had been left out in the kitchen, consistent with Jenkins' testimony. Finally, the state produced the following evidence to prove that, after the defendant had murdered the victim, he stole drugs from her apartment. Jenkins testified that the defendant had told him exactly that, confiding in Jenkins that he removed crack cocaine and the victim's cell phone from the apartment. Additional evidence corroborated Jenkins' account. The evidence established that, at the time of the murder, the victim had both crack and marijuana in her home. Joseph testified that he stored crack cocaine in a blue, nondairy creamer container in the victim's kitchen. He also testified that, during the afternoon of June 14, 2015, he and the victim purchased one-quarter pound of marijuana in Mystic, brought it back to the victim's apartment and smoked some of it while they watched television, including "Game of Thrones." When they had finished watching "Game of Thrones," sometime between 10 and 10:30 p.m., Joseph left, in order to go to the home of Johane Jean-Baptiste, the mother of his child. By the next morning, both the crack and the marijuana had been removed from the victim's apartment. Joseph testified that he had a medical appointment on the morning of June 15, 2015, and that he went to the victim's home immediately thereafter. Upon entering, he immediately noticed that the victim's apartment, which ordinarily was very neat and had been so when he left the night before, was in disarray, and there was a mop and bucket left out in the kitchen. A table had been moved, the cushions on the sofa had been disturbed, kitchen cabinets were left open and items that had been removed from the cabinets were strewn over the counter. In particular, the container of nondairy creamer in which Joseph stored crack had been removed from the kitchen cabinet and left on the counter. When he eventually checked, he noticed that neither the crack nor the marijuana was in the apartment. The state also produced evidence that the defendant, who had reported to a prospective buyer the previous week that he did not have any drugs to sell, was selling crack on the very day that the victim had been murdered. Specifically, Officer Nathaniel Tondreau of the department, testified that, on June 15, 2015, he reported to the scene of the murder when he heard the dispatch. Tondreau and his partner brought Joseph to the station to interview him. During the course of the interview, Joseph told them that the last text he received from the victim was that "Zo is here." Tondreau testified that the name "Zo" caught his attention because he and his partner had attempted to use a confidential informant during the preceding week to purchase crack cocaine from a person named Zo. The confidential informant successfully contacted Zo, who was unable to sell any crack because he did not have any drugs. On the basis of their belief that Zo and the defendant were the same person, Tondreau and his partner instructed the confidential informant to attempt to set up a purchase from Zo on the afternoon of June 15, 2015. The informant contacted Zo, who agreed to sell him $40 of crack cocaine. Tondreau and a team accompanied the informant to the arranged meeting place, where they observed the defendant exchange something with the informant, who returned to them and handed Tondreau a bag of crack cocaine. The officers then arrested the defendant. In summary, the state produced evidence that, shortly before she was murdered, the victim told Joseph that the defendant was at her apartment. The defendant's blood was at the scene of the crime. He had cuts on his hands and his blood was all over his apartment. He had the victim's blood on his sneakers and on his jeans, which were discovered in his gym bag in the trunk of a friend's vehicle. He told his cellmate that he killed the victim and that he took the crack from her apartment. The police, who had information that the defendant had no drugs to sell the week before, monitored their confidential informant's purchase of crack cocaine from the defendant on the very day that the victim's body was discovered. In light of all of this evidence, I would have concluded, had the state not waived the issue, that the error was harmless beyond a reasonable doubt. See State v. Artis , 314 Conn. 131, 154, 101 A.3d 915 (2014) (setting forth harmless error standard when error is of constitutional magnitude). II PAROLEE STATUS AND REASONABLE EXPECTATION OF PRIVACY The point I emphasize is a narrow one: whatever reasonable expectation of privacy in his home that the defendant had as a parolee, it did not increase as a result of his June 15, 2015 arrest and incarceration. I acknowledge that, during oral argument before this court, the state waived any claim that the July 15, 2015 warrantless search of the defendant's apartment was proper due to his status as a parolee at the time of his arrest on June 15, 2015. I also acknowledge that the state did not present any evidence in the trial court of the conditions of parole-either standard or specific-to which the defendant had agreed prior to his release to supervised parole on January 16, 2015. My starting point, however, is that, pursuant to the stipulation of the parties and as found by the trial court, when the defendant was arrested on June 15, 2015, he was "indisputably on supervised parole ." Given that starting point, the highest reasonable expectation of privacy in his home possibly enjoyed by the defendant on July 15, 2015, was the same expectation that he had on June 15, 2015-not higher. A brief factual and procedural background of the defendant's motions to suppress the two searches provides helpful context. The police and the defendant's parole officer conducted the first search of his apartment shortly after his arrest and incarceration, in the early morning hours of June 16, 2015. Gomes testified that the defendant's parole officer was "checking the residence for possible drug-related activity and contraband ." The second search, on July 15, 2015, took place after Jenkins told the police that the defendant had told him that he had hidden the victim's cell phone and the crack he had stolen from her apartment in a hole in the wall in his bathroom. There is no indication in the record that the police were accompanied by a parole officer during the second search. The defendant moved to suppress both searches, and the trial court denied both motions in an oral ruling on March 29, 2015, indicating that a memorandum of decision as to each ruling would follow. The court read its decision on its denial of the motion to suppress the first search into the record during the defendant's sentencing hearing on June 6, 2016. On the same day, the court issued its memorandum of decision as to its denial of the motion to suppress the second search. As to the first search, notwithstanding his stipulation that the records of the Department of Correction reflected that he was on parole at the time of his arrest, the defendant argued that the parole board lacked jurisdiction over him. Specifically, the defendant argued that, because at that time he was subject to deportation to Haiti, he properly was under the jurisdiction of federal immigration authorities, rather than the parole board. Therefore, the defendant argued, the parole officer lacked authority to search his apartment and the evidence seized from that search should be suppressed. The trial court rejected the defendant's argument, beginning with the fact that there was no dispute that the defendant was on parole at the time of his arrest. The court explained further that "an individual can be under the jurisdiction of more than one entity simultaneously and that, therefore, being subject to the jurisdiction of one entity is not mutually exclusive [of] the jurisdiction of another, or second, entity." The court therefore concluded that the parole officer had authority to search the defendant's home and denied the motion to suppress. Implicit in the court's ruling was that the police officers had the authority to accompany the parole officer and assist in searching the apartment. As I have stated earlier in this concurring opinion, the defendant does not challenge the trial court's ruling regarding the first search in this appeal. As to the second search, the defendant relied on the federal and state constitutions to argue that the search was unreasonable and the resulting evidence should be suppressed. The defendant argued that the apartment was his home, and that his incarceration had not changed that. The defendant argued that he had established that he retained a subjective expectation of privacy in the apartment and that his expectation was one that society would deem to be reasonable. In its opposition, the state confined its arguments to rebutting the defendant's claim that he had demonstrated that he held a subjective expectation of privacy in the apartment. Neither the defendant nor the state raised any issue regarding the defendant's parole status at the time of the second search. The trial court denied the defendant's motion to suppress on the basis of its conclusion that the defendant had failed to demonstrate that he had a subjective expectation of privacy in the premises. See State v. Hill , 237 Conn. 81, 92, 675 A.2d 866 (1996). The court pointed to the following: the defendant had failed to contact the landlord about maintaining the lease, which was a month-to-month lease; he was in custody and had no income; he had testified that he knew he was going to be incarcerated for a very long time; he did not pay rent; and, he had failed to contact anyone about securing the personal possessions he had left in the apartment. The trial court declined to credit the defendant's testimony during the suppression hearing that he would return to the apartment if he could. Because the court concluded that the defendant had not demonstrated that he had a subjective expectation of privacy in the apartment, it did not reach the question of whether any expectation he had would be deemed reasonable by society. Finally, in light of its conclusion that the defendant had failed to make the required showing, the court relied on the landlord's consent to the search to conclude that the search was reasonable. Although the trial court referenced the defendant's parole status in its factual findings, it did not rely on that status in denying the motion to suppress. "To determine whether a person has a reasonable expectation of privacy in an invaded place or seized effect, that person must satisfy the Katz test. See Katz v. United States , 389 U.S. 347, 361, 88 S. Ct. 507, 19 L. Ed. 2d 576 (1967) (Harlan, J., concurring). The Katz test has both a subjective and an objective prong: '(1) whether the [person contesting the search] manifested a subjective expectation of privacy with respect to [the invaded premises or seized property]; and (2) whether that expectation [is] one that society would consider reasonable.... This determination is made on a case-by-case basis.... The burden of proving the existence of a reasonable expectation of privacy rests [with] the defendant.' " State v. Houghtaling , 326 Conn. 330, 341, 163 A.3d 563 (2017), cert. denied, - U.S. -, 138 S. Ct. 1593, 200 L. Ed. 2d 776 (2018). It is well established that parolees have a diminished expectation of privacy. The United States Supreme Court has explained that "parolees are on the continuum of state-imposed punishments.... On this continuum, parolees have fewer expectations of privacy than probationers, because parole is more akin to imprisonment than probation is to imprisonment. As this [c]ourt has pointed out, parole is an established variation on imprisonment of convicted criminals.... The essence of parole is release from prison, before the completion of sentence, on the condition that the prisoner abide by certain rules during the balance of the sentence.... In most cases, the [s]tate is willing to extend parole only because it is able to condition it upon compliance with certain requirements." (Citations omitted; internal quotation marks omitted.) Samson v. California , 547 U.S. 843, 850, 126 S. Ct. 2193, 165 L. Ed. 2d 250 (2006). "Although probationers and parolees are subject to a degree of impingement upon privacy that would not be constitutional if applied to the public at large . the law requires that such greater intrusions occur pursuant to a rule or regulation that itself satisfies the [f]ourth [a]mendment's reasonableness requirement ." (Citations omitted; internal quotation marks omitted.) United States v. Newton , 369 F.3d 659, 665 (2d Cir.), cert. denied, 543 U.S. 947, 125 S. Ct. 371, 160 L. Ed. 2d 262 (2004). For this reason, the particular scope of a parolee's reasonable expectation of privacy depends on the conditions of parole. In Samson , the court held that a "condition of release can so diminish or eliminate a released prisoner's reasonable expectation of privacy that a suspicionless search by a law enforcement officer would not offend the [f]ourth [a]mendment." Samson v. California , supra, 547 U.S. at 847, 126 S.Ct. 2193. In so holding, the court construed a California statute that required a prisoner eligible for parole to "agree in writing to be subject to search or seizure by a parole officer or other peace officer at any time of the day or night, with or without a search warrant and with or without cause." Cal. Penal Code § 3067 (a) (West 2000); see Samson v. California , supra, at 846, 126 S.Ct. 2193. Samson involved standard conditions of parole as set forth by statute, but courts also have looked to the specific conditions set forth in the order granting the defendant parole or probation. For example, in United States v. Robertson , 239 F. Supp. 3d 426, 448 (D. Conn. 2017), appeal withdrawn, United States Court of Appeals, Docket No. 17-1845, 2017 WL 6326976 (2d Cir. August 25, 2017), the court rejected the government's contention that the defendant's status on federal supervised release functioned as a forfeiture of "all his constitutional rights to the sanctity of his home." The court looked to the defendant's conditions of supervised release, which provided only that "[t]he defendant shall permit a probation officer to visit the defendant at any time at home or elsewhere and shall permit confiscation of any contraband observed in plain view by the probation officer. " (Emphasis in original; internal quotation marks omitted.) Id. The court reasoned that the conditions of release did not extend to the police officers who were unaccompanied by a probation officer when they searched the defendant's apartment. Id., at 449. The relevant case law makes clear that the standard and specific conditions of the defendant's release would define the scope of the defendant's reasonable expectation of privacy in his home at the time of the first search, which occurred mere hours after his arrest. The record does not reflect what those conditions were. Because the second search occurred after the defendant had been incarcerated for one month, in all likelihood he was no longer on parole when that search took place. His conditions of parole, however, remain relevant for purposes of determining whether the July 15, 2015 search violated his reasonable expectation of privacy. As the United States Supreme Court has explained, with respect to one's reasonable expectation of privacy, parole is on a " 'continuum' " with the reasonable expectation of a law-abiding citizen at one end of the continuum and that of an inmate at the opposite end. Samson v. California , supra, 547 U.S. at 850, 126 S.Ct. 2193. Thus, although a parolee enjoys a " 'diminished' " expectation of privacy as compared to a law-abiding citizen, he has a greater expectation of privacy than that of an incarcerated individual. Id., at 849-50, 126 S.Ct. 2193. In other words, if the defendant's expectation of privacy changed when he was incarcerated, that expectation certainly did not increase. At the very best, the defendant's reasonable expectation of privacy in his home, following his incarceration, was the same expectation he enjoyed while on parole. Accordingly, if the July 15, 2015 search would have complied with the defendant's parole conditions at the time of his arrest-whatever those may have been-it did not constitute an invasion of his reasonable expectation of privacy. Of course, because the state did not create a record of what those conditions were, this court cannot determine whether the search comported with the conditions of parole. For the foregoing reasons, I respectfully concur. The fourth amendment's protections against unreasonable searches and seizures are made applicable to the states through the due process clause of the fourteenth amendment to the United States constitution. See Mapp v. Ohio , 367 U.S. 643, 655, 81 S. Ct. 1684, 6 L. Ed. 2d 1081 (1961). The defendant had been incarcerated following a judgment of conviction in 1997 on the charges of attempted murder and carrying a pistol without a permit. The state also presented testimonial evidence placing the defendant in the victim's apartment on the night of the murder. Additionally, forensic testing indicated that the victim's blood was on certain articles of defendant's clothing found inside of his gym bag, and that the defendant's blood was in the victim's living room and kitchen. After the officers confirmed the existence of the hole in the wall, they secured the apartment and obtained a warrant to search the inside of the bag. The defendant also filed a motion to suppress evidence obtained as a result of the first search that occurred on June 16, 2015, which was denied by the trial court. The court reasoned that, because the defendant was on parole at the time of that search, his parole officer, who was present during the search, had authority to conduct the search. The defendant does not challenge the trial court's decision regarding the first search on appeal. Significantly, the state does not make the same argument on appeal regarding the second search. The state explained that it did not attempt to justify the second search on the basis of the defendant's status as a parolee because the state could not definitively determine what the defendant's parole status was at the time of the second search. Because of that uncertainty, the state represented to this court at oral argument that it was not attempting to justify the second search on the basis that the defendant had a reduced expectation of privacy as a parolee. Because the state has made no such claim, and in fact expressly disclaimed any reliance on the notion that this search could be justified on the basis of the defendant's status as a parolee, we have no occasion to address that issue as an alternative basis upon which the second search could be justified. The state asserts in its brief that the defendant never expressly indicated that the apartment was his home. The following exchange belies that assertion: "[The Prosecutor]: Was [the apartment], was that your home? "[The Defendant]: Yes." The following colloquy took place during the state's cross-examination of the defendant: "[The Prosecutor]: In July of 2015, your lease had run, correct? Your rental agreement was over, correct? "[The Defendant]: I don't know. I don't know . that." After an objection by defense counsel on the ground that the question was a legal one, which was overruled by the court, the following exchange occurred: "[The Prosecutor]: Had it run? "[The Defendant]: I don't know about that." We note that, in its memorandum of decision, the trial court does not expressly discredit any portion of the defendant's testimony. It does, however, state that, "[a]lthough the defendant testified that he would have gone back to [the apartment] if he were released [from jail] in July, 2015, [t]he subjective test does not rest on the absolute subjective perception of the individual defendant.... Expressing a view, many months later, that he would have gone back if he could, does not rise to the level of exhibiting an actual subjective expectation of privacy in a location." (Citations omitted; internal quotation marks omitted.) Because the trial court did not expressly discredit the defendant's testimony, we consider it in our analysis. See State v. Edmonds , 323 Conn. 34, 39, 145 A.3d 861 (2016) (under a more probing review of constitutional issue, this court takes into account testimony that was not expressly discredited by trial court); see also State v. DeMarco , supra, 311 Conn. at 520, 88 A.3d 491. This court recently had occasion to address the first prong of the Katz test and clarified that, when determining whether a defendant has a subjective expectation of privacy in property that is not his residence, it is appropriate to examine the record for conduct demonstrating an intent to preserve something as private and free from knowing exposure to the view of others. See State v. Houghtaling , supra, 326 Conn. at 348, 163 A.3d 563. In that case, this court concluded that the owner of property who did not reside there, but instead rented it to a tenant, did not have a subjective expectation of privacy in the property because he failed to adduce evidence sufficient to establish his intent to keep the property private. Id. Because the evidence in the present case established that the apartment was the defendant's residence, we find Houghtaling to be distinguishable from the present case. General Statutes § 47a-16a provides in relevant part: "[T]he tenant shall be required to notify the landlord of any anticipated extended absence from the premises ." General Statutes § 47a-23 through 47a-23b require, inter alia , that landlords first provide each lessee or occupant of the premises with advance written notice to quit, which then provides proper basis for a summary process action upon service. General Statutes § 47a-15a provides in relevant part: "If rent is unpaid when due and the tenant fails to pay rent within nine days thereafter . the landlord may terminate the rental agreement in accordance with the [summary process provisions ]." (Emphasis added.) We note that the landlord could not have initiated eviction proceedings on the basis of nonpayment of rent until the statutory grace period had lapsed. See General Statutes § 47a-23 (a) ("[w]hen the owner . desires to obtain possession or occupancy of . any apartment . and (1) when a rental agreement or lease of such property . terminates [due to] . (D) nonpayment of rent within the grace period . such owner . shall give notice to each lessee or occupant to quit possession or occupancy of such . apartment"); see also Kligerman v. Robinson , 140 Conn. 219, 222, 99 A.2d 186 (1953) ("While the tenant's nonpayment of rent did not automatically terminate the lease, his failure to make a tender for the months of September and October entitled the landlord to end the tenancy by some unequivocal act.... That act . was the service of the notice to quit." [Citation omitted.] ). Thus, the defendant's right of possession could not have ended until a notice to quit was served. Although the argument in its brief is not entirely clear, the state raises the claim that the police had consent to search the apartment. With respect to this issue, in its memorandum of decision, the trial court stated that, "[i]n this case, not only did the defendant lack any actual subjective expectation of privacy in the apartment, but also the police entered the apartment after the expiration of the month-to-month tenancy, with permission from the landlord, who signed a formal consent to search and who opened the door for them." We do not conclude-and more importantly, the state has not argued-that this determination by the trial court amounted to a finding that the warrantless search was justified because the police had obtained the consent of the landlord. Indeed, the state does not argue that any exception to the warrant requirement applies here. Rather, the state appears to argue that, because the defendant had no expectation of privacy, the landlord was the proper authority to consent to a search of the now vacant apartment. Similarly, we read the trial court's decision on consent the same way. To be sure, because the trial court's determination that the landlord had authority to consent to the search was premised on its conclusion that, because the defendant did not have an expectation of privacy in the apartment, there was no violation of fourth amendment rights that the defendant would have had standing to assert. In light of our conclusions to the contrary, the landlord's authority to consent to the search was restricted by the general rule of law prohibiting such consent. Chapman v. United States , 365 U.S. 610, 616-17, 81 S. Ct. 776, 5 L. Ed. 2d 828 (1961) (landlord does not retain right to enter rented premises for purpose of conducting search during term of tenancy, even when tenant may be temporarily absent, or have authority to grant consent to police to enter and to search). Therefore, the landlord's consent in the present case was not a valid justification for the warrantless search of the defendant's home. "Zo" is the defendant's nickname. The police entered the defendant's apartment twice on July 15, 2015. The first time, they verified that Jenkins' information concerning the hole in the bathroom wall was correct by entering the bathroom and looking into the hole without removing the items within. After securing a search warrant, they returned and removed the items from the hole in the wall. The fact that the police obtained a search warrant before retrieving the items, however, is immaterial, as their admissibility stands or falls on the constitutional propriety of the initial search on July 15, 2015. The state appears to have had access to some records pertaining to the defendant's parole, but those records do not appear to have been introduced into evidence or marked for identification.

12489131

U.S. BANK NATIONAL ASSOCIATION, Trustee v. Earl GOODWIN et al.

U.S. Bank Nat'l Ass'n v. Goodwin

2017-02-16

No. 38595

1282

1282

155 A.3d 1282

155

West's Atlantic Reporter, Third Series

Connecticut Appellate Court

Connecticut

2021-08-27T20:57:14.012355+00:00

Fastcase

U.S. BANK NATIONAL ASSOCIATION, Trustee v. Earl GOODWIN et al.

U.S. BANK NATIONAL ASSOCIATION, Trustee v. Earl GOODWIN et al. No. 38595 Appellate Court of Connecticut. Submitted on briefs February 16, 2017 Officially released March 14, 2017

33

216

Per Curiam. The judgment is affirmed.

12489129

Melissa CHANG v. David CHANG

Chang v. Chang

2017-02-21

AC 38201

1272

1278

155 A.3d 1272

155

West's Atlantic Reporter, Third Series

Connecticut Appellate Court

Connecticut

2021-08-27T20:57:14.012355+00:00

Fastcase

Melissa CHANG v. David CHANG

Melissa CHANG v. David CHANG AC 38201 Appellate Court of Connecticut. Argued December 6, 2016 Officially released February 21, 2017 Kenneth J. Bartschi, with whom was Karen L. Dowd, for the appellant (defendant). Gary I. Cohen, with whom, on the brief, was Yakov Pyetranker, for the appellee (plaintiff). Alvord, Keller and Gruendel, Js.

3204

20280

ALVORD, J. The defendant, David Chang, appeals from the financial orders entered in connection with the judgment rendered by the trial court dissolving his marriage to the plaintiff, Melissa Chang. On appeal, the defendant claims that the court improperly (1) determined that the premarital agreement between the parties was unenforceable because his disclosure of certain assets was inadequate, and (2) concluded that it could award alimony and divide certain solely owned assets even if the premarital agreement was enforceable. We affirm the judgment of the trial court. The following facts and procedural history are relevant to the defendant's appeal. The court dissolved the parties' eleven year marriage on June 15, 2015. At the time of the dissolution, the parties had two minor children, ages ten and five. Following a seven day trial, the court made the following findings in its memorandum of decision: (1) neither party was more responsible for the breakdown of the marriage; (2) the parties signed a premarital agreement approximately ten days prior to their marriage; (3) the plaintiff, who has a Ph.D. in psychology, was earning approximately $50,000 a year at the time their first child was born; (4) the plaintiff stopped working altogether after their second child was born with a neuromuscular disorder ; (5) the defendant has a masters degree in computer science and is employed as a trader and portfolio manager; and (6) the defendant earned approximately $600,000 at the time of the marriage and $1,644,000 in 2013. At trial, the defendant claimed that the parties' 2003 premarital agreement was enforceable, and that the terms of that agreement provided that all of the assets in his name only, whether accumulated before or during the marriage, belonged to him and could not be awarded to the plaintiff. Additionally, he claimed that the agreement precluded an award of alimony to the plaintiff. The plaintiff claimed that the agreement was invalid and unenforceable, and she sought an equitable division of all of the marital assets as well as an award of alimony. The court determined that the parties' premarital agreement was unenforceable. In its memorandum of decision, the court referred to the written financial disclosures appended to the premarital agreement, the financial affidavits that the parties had prepared at that time, and the testimony of the plaintiff's expert, who testified at trial as to the value of the defendant's interests in certain family partnerships and corporations at the time of the execution of the agreement. The defendant had not listed a value for the family entities in his 2003 financial affidavit, claiming that they were "too difficult or speculative to value." The court determined that the defendant's claim was "incorrect," and, accordingly, it concluded that the defendant "failed to meet his burden to inform and the premarital agreement [was] unenforceable." The court then considered the assets in the marital estate, together with the applicable statutory factors enumerated in General Statutes § 46b-81 and 46b-82, and entered several financial orders. In addition to awarding the plaintiff alimony for eight years, the court awarded her a lump sum property settlement and interests in various bank accounts, stocks, bonds, and mutual funds. Significantly, in a footnote in its decision, the court made the following observation: "The court finds no express provision in the premarital agreement that would prevent spousal support. The court finds that the definition of separate property in the premarital agreement does not include accounts solely in the defendant's name which were not listed on schedule A of the premarital agreement unless received by bequest, devise, descent, or distribution by other instrument upon death or by gift or were property acquired in exchange for the property listed on schedule A. Accordingly, the orders in this decision would be the same even if it found the premarital agreement to be valid. " (Emphasis added.) The defendant filed a motion for reargument, requesting that the court reconsider its determination that the premarital agreement was invalid. Additionally, the defendant argued that the orders in the decision would not be the same if the court had determined that the premarital agreement was valid because the agreement did not provide for alimony and it did not provide for awarding the plaintiff any interest in the accounts held solely in the defendant's name. The court denied the defendant's motion without discussion. This appeal followed. The defendant argues that the court improperly determined that the premarital agreement was unenforceable because his disclosure of his interests in certain family partnerships and corporations was inadequate. We agree with the trial court's statement that the financial orders in this dissolution action would have been permissible even if the premarital agreement had been determined to be enforceable. That is, the agreement did not preclude awarding the plaintiff alimony or interests in the assets acquired during the marriage, even if held solely in the defendant's name. Accordingly, we need not determine whether the defendant's disclosure with respect to his interests in the family partnerships and corporations was inadequate, which would render the marital agreement unenforceable. "[A]n antenuptial agreement is a type of contract and must, therefore, comply with ordinary principles of contract law.... [A]ntenuptial agreements are to be construed according to the principles of construction applicable to contracts generally.... [A]ntenuptial agreements relating to the property of the parties, and more specifically, to the rights of the parties to that property upon the dissolution of the marriage, are generally enforceable . [if] the circumstances of the parties at the time the marriage is dissolved are not so beyond the contemplation of the parties at the time the contract was entered into as to cause its enforcement to work injustice.... [T]he party seeking to challenge the enforceability of the antenuptial contract bears a heavy burden . This heavy burden comports with the well settled general principle that [c]ourts of law must allow parties to make their own contracts.... It is established well beyond the need for citation that parties are free to contract for whatever terms on which they may agree.... Whether provident or improvident, an agreement moved on calculated considerations is entitled to the sanction of the law ." (Internal quotation marks omitted.) Beyor v. Beyor , 158 Conn.App. 752, 757, 121 A.3d 734, cert. denied, 319 Conn. 933, 125 A.3d 206 (2015). "A contract must be construed to effectuate the intent of the parties, which is determined from the language used interpreted in the light of the situation of the parties and the circumstances connected with the transaction.... [T]he intent of the parties is to be ascertained by a fair and reasonable construction of the written words and . the language used must be accorded its common, natural and ordinary meaning and usage where it can be sensibly applied to the subject matter of the contract.... "Where the language of the contract is clear and unambiguous, the contract is to be given effect according to its terms.... If a contract is unambiguous within its four corners, intent of the parties is a question of law requiring plenary review.... When the language of a contract is ambiguous, the determination of the parties' intent is a question of fact, and the trial court's interpretation is subject to reversal on appeal only if it is clearly erroneous." (Internal quotation marks omitted.) Lisko v. Lisko , 158 Conn.App. 734, 738-39, 121 A.3d 722 (2015). "It is hornbook law that courts do not rewrite contracts for parties.... [A] court simply cannot disregard the words used by the parties or revise, add to, or create a new agreement." (Internal quotation marks omitted.) Hammond v. Hammond , 145 Conn.App. 607, 612-13, 76 A.3d 688 (2013). In the present case, the defendant challenges the court's award of alimony to the plaintiff and its division of certain marital assets between the parties that had been held solely in the defendant's name. Specifically, the defendant claims that "[t]he agreement does not expressly provide whether or not the court would have authority to order alimony," which precluded such an award because "[t]he parties expressly agreed not to seek relief that was not set forth in the agreement." The defendant argues that "it was not necessary for the agreement to use talismanic language such as 'the parties waive alimony' to preclude an alimony award." With respect to his claim regarding solely held assets, the defendant specifically challenges the awards to the plaintiff referenced in paragraph 17 of the financial orders in the memorandum of decision. In paragraph 17, the court ordered that six designated bank accounts be "divided equally by the parties resulting in a payment of not less than $1,267,775 to the plaintiff." The defendant argues that those accounts, which were held solely in the defendant's name, were not subject to division because "the agreement provides for the division of joint property, which is defined as jointly held property. That definition necessarily precludes solely held assets and therefore the parties were enjoined from asking the court to divide such assets." According to the defendant, the money deposited in those accounts, even though earned during the marriage and not listed as premarital assets in the agreement, belonged solely to him. In claiming that alimony is precluded under the terms of the premarital agreement, the defendant relies on the following provisions to support his claims. One of the twelve "whereas" clauses provides: "WHEREAS, both parties wish to protect their respective property, estate and income from any claims by the other that may arise under the laws of any state or country by virtue of their forthcoming marriage ." (Emphasis added.) Additionally, the defendant argues that paragraph 5.13 of the agreement clearly expresses the parties' intent that an award of alimony would be prohibited if the parties divorced. Paragraph 5.13 provides: "This Agreement, in the event of a proceeding for dissolution of marriage, divorce or legal separation of the parties' marriage, shall be submitted to the court. The parties will request said court to incorporate the terms of this Agreement pertaining to property division in the decree. Notwithstanding the same, this Agreement shall not be merged within a decree but shall survive the same and be binding on the parties for all time. Both parties shall be estopped from requesting the court for orders different from or inconsistent with the terms of this Agreement. Both parties expressly will agree to be enjoined (including ex parte injunction) from requesting any relief except as set forth within this Agreement." (Emphasis added.) Because the premarital agreement does not expressly provide that alimony may be awarded in their dissolution action, the defendant argues that those provisions in paragraph 5 must be interpreted to mean that it is prohibited. In other words, although the parties have not incorporated the simple phrase "the parties waive alimony" into the premarital agreement, the other provisions in the agreement, when read in combination, evidence the fact that they have abandoned all claims to alimony. The plaintiff responds that the defendant is attempting to have "an alimony waiver read into the agreement." She argues that such a waiver should not be inferred when the agreement "is silent as to an affirmative statutory right." We agree with the plaintiff. We conclude that the court properly construed the premarital agreement as not precluding the award of alimony to the plaintiff. There is no provision in the agreement that even tangentially governs the parties' rights to alimony upon the dissolution of the marriage. In order for the plaintiff to assent to the waiver of such a right, she would have to be aware that, by signing the premarital agreement, she was relinquishing all claims to alimony in the event of a dissolution of the marriage. "[A] waiver is ordinarily an intentional relinquishment or abandonment of a known right or privilege. An effective waiver presupposes full knowledge of the right or privilege allegedly [being] waived and some act done designedly or knowingly to relinquish it.... Moreover, the waiver must be accomplished with sufficient awareness of the relevant circumstances and likely consequences." (Internal quotation marks omitted.) Perricone v. Perricone , 292 Conn. 187, 207, 972 A.2d 666 (2009). In the absence of a clear and unequivocal waiver of alimony in the premarital agreement, we decline to infer a knowing and voluntary waiver on the basis of the language contained in paragraph 5.13 of that agreement. Not only is the word alimony conspicuously absent from that paragraph, but we also note that such paragraph states that its terms are to be incorporated into and pertain to any "property division" in the decree of dissolution. We will not impute knowledge to the plaintiff that she was aware that she was relinquishing all rights to alimony on the basis of the language in paragraph 5.13 in the absence of any provisions directed to alimony awards in the premarital agreement. We next address the defendant's claim that the agreement precluded the court from awarding the plaintiff any interests in certain bank accounts held solely in the defendant's name, i.e., the six bank accounts listed in paragraph 17 of the court's financial orders. The defendant points to paragraphs 2.1, 2.3, 3.1, 3.2, 3.3, and 5.13 of the premarital agreement as being supportive of his argument that only interests in joint property could be awarded to the plaintiff. Paragraph 2.1 provides in relevant part that "[t]he parties do hereby acknowledge and represent to each other that there may be jointly held property which they will acquire together during the course of their marriage. This would include all sums deposited into any bank accounts in their joint names as well as any substitutions thereof, or increments thereto...." (Emphasis added.) Paragraph 2.3 provides that "[i]n the event the parties' marriage ends in divorce, dissolution of marriage, annulment or legal separation, the joint property shall be divided as determined by mutual agreement or by order of a court of competent jurisdiction." Paragraph 3.1 provides: "In the event that either party hereto shall at any time subsequent to the parties' marriage, file an action in court for divorce, dissolution of marriage, annulment or legal separation (hereinafter 'an action' or 'the action'), the parties hereto waive, discharge and release any and all claims, demands, rights and interests to which they may be entitled in connection with 'the action' with respect to an interest in the Separate Property of the other party as defined herein." Paragraphs 3.2 and 3.3 provide exceptions to paragraph 3.1, addressing the marital residence of the parties and a tax free lump sum payment to the plaintiff. Paragraph 5.13, as previously quoted, states that the parties agree to refrain from requesting any relief other than that provided for in the agreement. The plaintiff responds that the premarital agreement does not expressly address how assets acquired after the marriage and held solely in the name of one party are to be divided. The agreement does, however, define separate property, as distinguished from joint property, in paragraph 1.1. Paragraph 1.1 provides in relevant part: "The following shall constitute and remain the Separate Property of the respective parties: (a) The property listed in Schedule A ( [defendant's] Financial Affidavit), and Schedule B ( [plaintiff's] Financial Affidavit); (b) Property acquired at any time after the date of Schedules A and B of this Agreement, if acquired by bequest, devise, descent, distribution by other instruments upon death, or by gift . (f) Property acquired in exchange for such property and income identified in this paragraph 1.1, the proceeds of sale thereof and property acquired with such proceeds or with other Separate Property." As previously stated, the defendant deposited income that he earned during the marriage into the bank accounts designated in paragraph 17 of the court's financial orders. Because those accounts were held solely in his name, he claims that they constitute "separate property" under the terms of the premarital agreement. He argues that if the court had found the premarital agreement to be enforceable, the court would have been prohibited from awarding any interest in that "separate property" to the plaintiff. We disagree. As previously stated, the court addressed this claim of the defendant in footnote 1 of its memorandum of decision: "The court finds that the definition of separate property in the premarital agreement does not include accounts solely in the defendant's name which were not listed on schedule A of the premarital agreement unless received by bequest, devise, descent, or distribution by other instrument upon death or by gift or were property acquired in exchange for the property listed on schedule A." Significantly, the defendant does not dispute that the challenged bank accounts consist of income that he earned during the marriage. Further, he makes no claim that those assets were acquired prior to the marriage and were listed on his financial affidavit's schedule A that was attached to the premarital agreement. We therefore conclude that the court properly determined that there were no provisions in the premarital agreement that would have precluded it from equitably dividing those bank account assets as part of the marital estate and that its financial orders would have been the same even if the court had determined that the agreement was enforceable. The judgment is affirmed. In this opinion the other judges concurred. The parties agreed that the defendant's child support obligation, pursuant to the guidelines, was $636 per week. In Paragraph 5.1 of the premarital agreement, the defendant did acknowledge that the family entities could be of significant value and could have significant future value potentially in excess of several million dollars. Premarital agreements entered into on or after October 1, 1995, are governed by the Connecticut Premarital Agreement Act, General Statutes § 46b-36a et seq.Section 46b-36g (a) provides in relevant part: "A premarital agreement or amendment shall not be enforceable if the party against whom enforcement is sought proves that . (3) [b]efore execution of the agreement, such party was not provided a fair and reasonable disclosure of the amount, character and value of property, financial obligations and income of the other party ." See Beyor v. Beyor, 158 Conn.App. 752, 757, 762, 121 A.3d 734, cert. denied, 319 Conn. 933, 125 A.3d 206 (2015). "As a general rule, [r]ecitals in a contract, such as whereas clauses, are merely explanations of the circumstances surrounding the execution of the contract, and are not binding obligations unless referred to in the operative provisions of the contract." (Internal quotation marks omitted.) Tomey Realty Co. v. Bozzuto's, Inc., 168 Conn.App. 637, 653 n.10, 147 A.3d 166 (2016). "[I]f alimony is not awarded in a final dissolution decree, it cannot be awarded in the future based on changed circumstances." Passamano v. Passamano, 228 Conn. 85, 90 n.7, 634 A.2d 891 (1993). Black's Law Dictionary defines waiver as "[t]he voluntary relinquishment or abandonment-express or implied-of a legal right or advantage . The party alleged to have waived a right must have had both knowledge of the existing right and the intention of forgoing it." Black's Law Dictionary (7th Ed. 1999).

12510608

Jane DOE v. Charles COCHRAN

Jane Doe v. Cochran

2019-07-16

SC 19879

469

509

210 A.3d 469

210

West's Atlantic Reporter, Third Series

Connecticut Supreme Court

Connecticut

2021-08-27T20:57:56.130816+00:00

Fastcase

Jane DOE v. Charles COCHRAN

Jane DOE v. Charles COCHRAN SC 19879 Supreme Court of Connecticut. Argued November 16, 2017 Officially released July 16, 2019 Thomas B. Noonan, Darien, for the appellant (plaintiff). James S. Newfield, Stamford, with whom, on the brief, was Diana M. Carlino, for the appellee (defendant). Gregory J. Pepe, New Haven, filed a brief for the American Medical Association et al. as amici curiae. Jennifer L. Cox and Jennifer A. Osowiecki, Hartford, filed a brief for the Connecticut Hospital Association as amicus curiae. Emily B. Rock, Cynthia C. Bott, Bridgeport and Julie V. Pinette, Stamford, filed a brief for the Connecticut Trial Lawyers Association as amicus curiae. Palmer, McDonald, Robinson, D'Auria, Mullins, Kahn and Vertefeuille, Js. This appeal originally was argued before a panel of this court consisting of Justices Palmer, McDonald, Robinson, D'Auria, Mullins, and Kahn. Thereafter, Justice Vertefeuille was added to the panel. Justice Vertefeuille read the briefs and appendices, and listened to a recording of the oral argument prior to participating in this decision. The listing of justices reflects their seniority status on this court as of the date of oral argument.

22752

144092

PALMER, J. The principal issue in this appeal is whether a physician who mistakenly informs a patient that he does not have a sexually transmitted disease (STD) may be held liable in ordinary negligence to the patient's exclusive sexual partner for her resulting injuries when the physician knows that the patient sought testing and treatment for the express benefit of that partner. Under the circumstances alleged, we conclude that the defendant, Charles Cochran, a physician, owed a duty of care to the plaintiff, identified by the pseudonym Jane Doe, even though she was not his patient. Accordingly, we conclude that the trial court improperly granted the defendant's motion to strike the plaintiff's one count complaint and reverse the judgment of the trial court. The following facts, as set forth in the plaintiff's complaint and construed in the manner most favorable to sustaining its legal sufficiency; see, e.g., Lestorti v. DeLeo , 298 Conn. 466, 472, 4 A.3d 269 (2010) ; and procedural history are relevant to our disposition of this appeal. In early 2013, the plaintiff began dating her boyfriend, identified in this action by the pseudonym John Smith. At all relevant times, the plaintiff and Smith were involved in an exclusive romantic relationship. At some point, the couple agreed that, before their relationship became sexual, they would individually seek testing for STDs. As of July, 2013, the plaintiff had tested negative for and did not have any STDs. At that time, pursuant to his agreement with the plaintiff, Smith visited his physician, the defendant, who is a licensed medical doctor practicing in Norwalk. During Smith's visit, the defendant asked Smith why he wanted to be tested again for STDs, as the defendant had tested him just five months earlier. Smith explained that he wanted to be tested again for the protection and benefit of his new, exclusive girlfriend, the plaintiff. The defendant then took a sample of Smith's blood, arranged for it to be tested for STDs, and subsequently reviewed the laboratory (lab) test results. The lab report that the defendant reviewed included a guide for reading the test's results. The guide indicated that an HSV 2 IgG (herpes simplex virus type 2 specific antibody) result of less than 0.9 is negative for the herpes simplex virus type 2 (herpes), a result between 0.9 and 1.1 is equivocal, and a result greater than 1.1 means that the sample tested positive for herpes. Smith's HSV 2 IgG test result was 4.43, significantly above the threshold for a positive herpes diagnosis. The defendant delegated to a member of his staff the task of informing Smith of the results of his test. Even though the lab report clearly demonstrated a positive herpes diagnosis, the staff member incorrectly told Smith over the phone that his STD test results had come back negative. The plaintiff's relationship with Smith subsequently became sexual. Thereafter, the plaintiff began to experience herpes outbreaks and was diagnosed with herpes. Upon learning of this, Smith contacted the defendant to inquire further about his test results. The defendant then informed Smith that he actually had tested positive for herpes and apologized for the error. The plaintiff brought a one count action against the defendant, alleging that the defendant had been negligent in various respects. The defendant moved to strike the complaint on the basis that the plaintiff's claim sounded in medical malpractice and, therefore, must fail for lack of any physician-patient relationship between the plaintiff and the defendant. The defendant argued in the alternative that, even if the court construed the plaintiff's claim as sounding in ordinary negligence, the plaintiff and the defendant were not involved in any special relationship that would justify extending a duty of care to her. The trial court granted the defendant's motion to strike. The court did not expressly resolve the issue of whether the plaintiff's claim sounds in ordinary negligence or medical malpractice, at once describing the plaintiff as "seeking to extend medical malpractice liability of a physician to the sexual partner of a patient" and referring to the defendant's "claimed negligence . in reporting the test results." The analysis undertaken by the trial court, however, implies that it viewed the claim as sounding in ordinary negligence. Specifically, the court concluded that the claim was governed by our decision in Jarmie v. Troncale , 306 Conn. 578, 50 A.3d 802 (2012), and applied the framework that we set out in that case for determining whether a nonpatient may assert an ordinary negligence claim against a health care provider. See id., at 591-99, 50 A.3d 802. Ultimately, the trial court concluded the defendant did not owe a duty of care to the plaintiff and, for that reason, granted the defendant's motion to strike. This appeal followed. I As an initial matter, we must resolve a dispute between the parties as to the gravamen of the plaintiff's complaint. As an alternative ground for affirmance, the defendant contends on appeal, as he did before the trial court, that the plaintiff's one count complaint sounds in medical malpractice. In support of this conclusion, the defendant points to, among other things, the facts that (1) the plaintiff alleged that "[the defendant] had an obligation to perform the STD tests and [to] report the results accurately to . Smith according to accepted medical practice and standards," (2) the plaintiff further alleged that the defendant's "breach of accepted medical practice and standards" by failing to properly treat, test, monitor, and advise Smith, was the cause of her injuries, and (3) the plaintiff's counsel attached to the complaint a certificate, pursuant to General Statutes § 52-190a (a), averring that there were grounds for a good faith belief that the defendant had committed "medical negligence" in the "care or treatment" of Smith. Because a medical malpractice claim that fails to allege a physician-patient relationship between a plaintiff and a defendant is legally insufficient; Jarmie v. Troncale , supra, 306 Conn. at 588-89, 50 A.3d 802 ; and because it is undisputed that the plaintiff never was a patient of the defendant, the defendant contends that the trial court properly struck the complaint. The plaintiff responds that, although she attached a certificate of good faith pursuant to § 52-190a (a) out of an abundance of caution, her complaint alleges ordinary, common-law negligence rather than medical malpractice. She notes that the single count complaint is titled simply "negligence," and it alleges that the plaintiff's "injuries were the result of the negligence and carelessness of the [defendant] . in [that he failed] to properly advise . Smith of his STD test results ." At no point, moreover, does the complaint use the term "medical malpractice." A We begin our analysis by reiterating that, although the better practice may be to include a separate count of the complaint for each distinct theory of liability, there is no such requirement. Practice Book § 10-26 provides that, "[w]here separate and distinct causes of action, as distinguished from separate and distinct claims for relief founded on the same cause of action or transaction, are joined, the statement of the second shall be prefaced by the words Second Count, and so on for the others ." (Emphasis omitted.) In construing an earlier version of this rule of practice, this court explained that it has "uniformly approved the use of a single count to set forth the basis of a plaintiff's claims for relief [when] they grow out of a single occurrence or transaction or closely related occurrences or transactions, and it does not matter that the claims for relief do not have the same legal basis. It is only when the causes of action, that is, the groups of facts [on] which the plaintiff bases his claims for relief, are separate and distinct that separate counts are necessary or indeed ordinarily desirable." (Footnote omitted.) Veits v. Hartford , 134 Conn. 428, 438-39, 58 A.2d 389 (1948). That remains the rule in this state, and it has been applied with respect to a single count complaint alleging different theories of negligence. See Wheeler v. Beachcroft, LLC , 320 Conn. 146, 160, 129 A.3d 677 (2016) ("[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" [internal quotation marks omitted] ); Beaudoin v. Town Oil Co. , 207 Conn. 575, 588, 542 A.2d 1124 (1988) (restating rule as articulated in Veits ); Baldwin v. Jablecki , 52 Conn. App. 379, 382, 726 A.2d 1164 (1999) (statutory and common-law negligence may be pleaded in single count). Indeed, in Jarmie , on which both parties rely, we treated the single count complaint as alleging both medical malpractice and common-law negligence when the pleadings were substantially similar to those at issue here. See Jarmie v. Troncale , supra, 306 Conn. at 583-86, 50 A.3d 802 ; cf. Byrne v. Avery Center for Obstetrics & Gynecology, P.C. , 314 Conn. 433, 463, 102 A.3d 32 (2014) (reference to violation of statutory duty did not transform count of complaint alleging common-law negligence into statutory claim). Accordingly, we may assume, for the sake of argument, that the defendant is correct that the complaint reasonably can be read to allege that he committed professional malpractice by failing to follow accepted medical standards in his advising, treatment, and ongoing testing and monitoring of Smith. The question that we must resolve is simply whether the complaint also alleges that the defendant committed ordinary common-law negligence by permitting or instructing his office staff to give Smith the wrong test results. B The following well established principles guide our analysis. First, "[b]ecause a motion to strike challenges the legal sufficiency of a pleading and, consequently, requires no factual findings by the trial court, our review of the court's ruling . is plenary.... We take the facts to be those alleged in the complaint that has been stricken and we construe the complaint in the manner most favorable to sustaining its legal sufficiency.... Thus, [i]f facts provable in the complaint would support a cause of action, the motion to strike must be denied.... Moreover, we note that [w]hat is necessarily implied [in an allegation] need not be expressly alleged.... It is fundamental that in determining the sufficiency of a complaint challenged by a defendant's motion to strike, all well-pleaded facts and those facts necessarily implied from the allegations are taken as admitted." (Internal quotation marks omitted.) Geysen v. Securitas Security Services USA, Inc. , 322 Conn. 385, 398, 142 A.3d 227 (2016). "In Connecticut, we long have eschewed the notion that pleadings should be read in a hypertechnical manner. Rather, [t]he modern trend, which is followed in Connecticut, is to construe pleadings broadly and realistically, rather than narrowly and technically.... [T]he complaint must be read in its entirety in such a way as to give effect to the pleading with reference to the general theory [on] which it proceeded, and do substantial justice between the parties.... Our reading of pleadings in a manner that advances substantial justice means that a pleading must be construed reasonably, to contain all that it fairly means, but carries with it the related proposition that it must not be contorted in such a way so as to strain the bounds of rational comprehension." (Citation omitted; internal quotation marks omitted.) ATC Partnership v. Windham , 268 Conn. 463, 466 n.4, 845 A.2d 389 (2004). Second, our courts have long recognized that a health care provider may commit ordinary negligence, as opposed to medical malpractice, in the course of treating a patient or providing medical services. See, e.g., Multari v. Yale New Haven Hospital, Inc. , 145 Conn. App. 253, 260, 75 A.3d 733 (2013) ("The plaintiff has not alleged medical malpractice . but simply ordinary negligence against an entity that happens to be a medical provider. The fact that the defendant is a medical provider, does not, by itself, preclude a finding that the plaintiff's action sounds in ordinary negligence."); Badrigian v. Elmcrest Psychiatric Institute, Inc. , 6 Conn. App. 383, 385-86, 505 A.2d 741 (1986) (claim that defendant failed to supervise psychiatric patients in crossing highway sounded in ordinary negligence); see also Jarmie v. Troncale , supra, 306 Conn. at 593 and n.5, 50 A.3d 802 (leaving open possibility of third-party negligence claims against health care providers). To determine whether a claim against a health care provider sounds in ordinary negligence rather than (or in addition to) medical malpractice, we must "review closely the circumstances under which the alleged negligence occurred. [P]rofessional negligence or malpractice . [is] defined as the failure of one rendering professional services to exercise that degree of skill and learning commonly applied under all the circumstances in the community by the average prudent reputable member of the profession with the result of injury, loss, or damage to the recipient of those services.... [M]alpractice presupposes some improper conduct in the treatment or operative skill [or] . the failure to exercise requisite medical skill ." (Citations omitted; emphasis omitted; internal quotation marks omitted.) Gold v. Greenwich Hospital Assn. , 262 Conn. 248, 254, 811 A.2d 1266 (2002). "[T]o prevail in a medical malpractice action, the plaintiff must prove (1) the requisite standard of care for treatment, (2) a deviation from that standard of care, and (3) a causal connection between the deviation and the claimed injury.... Generally, expert testimony is required to establish both the standard of care to which the defendant is held and the breach of that standard." (Internal quotation marks omitted.) Id., at 254-55, 811 A.2d 1266. Accordingly, a claim sounds in medical malpractice when "(1) the defendants are sued in their capacities as medical professionals, (2) the alleged negligence is of a specialized medical nature that arises out of the medical professional-patient relationship, and (3) the alleged negligence is substantially related to medical diagnosis or treatment and involved the exercise of medical judgment." (Internal quotation marks omitted.) Id., at 254, 811 A.2d 1266. In connection with an ordinary negligence claim, by contrast, the defendant's conduct is judged against the standard of "what a reasonable person would have done under the circumstances ." Considine v. Waterbury , 279 Conn. 830, 859, 905 A.2d 70 (2006). C With these principles in mind, we consider the plaintiff's complaint. The relevant allegations of the complaint indicate that the defendant reviewed Smith's test results, notified a staff member of those results, and delegated to the staff member the task of informing Smith of the results. The complaint further alleges that the lab report contained a guide that made clear that Smith had tested positive for herpes. In addition, the complaint alleges that, although the test results were positive, the staff member informed Smith that his results were negative. Finally, the plaintiff alleges that the defendant's negligence in failing to accurately advise Smith of his positive test results caused Smith to infect the plaintiff with herpes. These allegations are consistent with two distinct theories of negligence. First, the defendant could have misread Smith's lab report and incorrectly concluded that the results were negative. Second, it is possible that the defendant interpreted the report correctly but that either the defendant misinformed his staff member that the results were negative or the staff member misinformed Smith. In other words, the alleged error could have occurred either in the initial interpretation of the report or in the inaccurate communication of the results, via the staff member, to Smith. See 2 Restatement (Second), Torts § 311 (2), p. 106 (1965) (negligence may consist of failure to exercise reasonable care in ascertaining accuracy of information or in manner in which information is communicated). In either case, we agree with the plaintiff that her allegations reasonably can be understood to sound in ordinary negligence. It is true that the alleged error transpired in a medical setting and that it arose as a result of a medical diagnosis in the context of an ongoing physician-patient relationship. There are at least two reasons, however, why we nevertheless conclude that this aspect of the complaint need not be read to sound in medical malpractice. First, the alleged error is not one involving professional medical judgment or skill. If the defendant misread Smith's lab result, then he failed to perform what was, in essence, a simple, ministerial task. The index to the report states that a result greater than 1.1 indicates a positive test, and the report states that Smith's result was 4.43. No advanced medical training was necessary to determine that Smith had tested positive for herpes; elementary reading and arithmetic skills should have been sufficient. Indeed, laypeople routinely perform comparable tasks, such as reading and interpreting meat thermometers, oil dipsticks, pool and spa test strips, and insulin tests. Of course, the same conclusion holds to an even greater extent if the genesis of the error was that the defendant simply told his staff member the wrong test result or the staff member relayed the wrong result to Smith. That sort of careless miscommunication could occur in any setting and has nothing to do with the exercise of professional medical judgment or skill. Indeed, the very fact that the defendant delegated the task to a staff member, who presumably was not a medical doctor, points to the nontechnical nature of the communication. Second, regardless of whether the alleged error arose from a misreading or a miscommunication, proving that it constituted negligence would not require expert medical testimony or the establishment of a professional standard of care. A jury will not need expert testimony to determine whether the defendant's staff was negligent in leading Smith to believe that he was free of STDs when the defendant knew, or should have known, that Smith had tested positive for herpes, a contagious STD, and intended to engage in sexual activity. Such a determination is well within the ken of a lay person. Accordingly, we conclude that, as in Jarmie , the plaintiff in this case pleaded a cause of action sounding in ordinary negligence. We therefore turn our attention to the plaintiff's claim that the defendant, in informing Smith of his test results, owed a common-law duty of care not only to Smith but also to the plaintiff, a nonpatient. II Having concluded that the plaintiff's claim sounds in ordinary negligence, we now must determine whether, under the circumstances presented in this case, a physician owes a duty of care to an identifiable third party who is not a patient. We conclude that a physician does owe such a duty. A We begin by setting forth the elements of a cause of action in ordinary negligence. "The essential elements of a cause of action in negligence are well established: duty; breach of that duty; causation; and actual injury.... Contained within the first element, duty, there are two distinct considerations.... First, it is necessary to determine the existence of a duty, and then, if one is found, it is necessary to evaluate the scope of that duty.... The existence of a duty is a question of law and only if such a duty is found to exist does the trier of fact then determine whether the [alleged tortfeasor] violated that duty in the particular situation at hand." (Internal quotation marks omitted.) Jarmie v. Troncale , supra, 306 Conn. at 589, 50 A.3d 802. "Although it has been said that no universal test for [duty] ever has been formulated . our threshold inquiry has always been whether the specific harm alleged by the plaintiff was foreseeable to the defendant. The ultimate test of the existence of the duty to use care is found in the foreseeability that harm may result if it is not exercised.... By that is not meant that one charged with negligence must be found actually to have foreseen the probability of harm or that the particular injury [that] resulted was foreseeable, but the test is, would the ordinary [person] in the [alleged tortfeasor's] position, knowing what he knew or should have known, anticipate that harm of the general nature of that suffered was likely to result . "A simple conclusion that the harm to the plaintiff was foreseeable, however, cannot by itself mandate a determination that a legal duty exists. Many harms are quite literally foreseeable, yet for pragmatic reasons, no recovery is allowed.... A further inquiry must be made, for we recognize that duty is not sacrosanct in itself . but is only an expression of the sum total of those considerations of policy [that] lead the law to say that the plaintiff is entitled to protection.... The final step in the duty inquiry, then, is to make a determination of the fundamental policy of the law, as to whether the defendant's responsibility should extend to such results." (Internal quotation marks omitted.) Id., at 590, 113 A.3d 932. The default assumption of the common law, then, is that one owes a duty to exercise due care in one's affirmative conduct with respect to all people, insofar as one's negligent actions may foreseeably harm them. 3 F. Harper et al., Harper, James and Gray on Torts (3d Ed. 2007) § 18.6, p. 862. Under specific circumstances, however, the law, for reasons of public policy, places additional restrictions on the class of people to whom a duty of care is owed. See, e.g., id., § 18.3, p. 781. In most instances, for example, a physician's liability for the negligent care and treatment of a patient does not extend to nonpatient third parties who have been foreseeably injured by that negligence. Id., § 18.5A, p. 852; see also Jarmie v. Troncale , supra, 306 Conn. at 592-93, 50 A.3d 802. But see Squeo v. Norwalk Hospital Assn. , 316 Conn. 558, 568, 113 A.3d 932 (2015) (recognizing limited cause of action for bystander emotional distress resulting from medical malpractice); Jarmie v. Troncale , supra, at 593 n.5, 50 A.3d 802 (declining to endorse per se rule barring third-party claims against health care providers). The present case requires us to further clarify the scope of this exception to the general duty rule. B With these principles in mind, we now turn our attention to the central question posed by the present appeal, namely, whether a health care provider who negligently misinforms a patient that he does not have an STD owes a duty of care to an identifiable third party who foreseeably contracts the STD as a result of the provider's negligence. The defendant contends that various public policy considerations counsel against recognition of such a duty. Most notably, because a patient such as Smith could have been or become intimate with an unlimited number of romantic partners, there is no meaningful way to identify or restrict the number of individuals whom he might infect and, therefore, to limit the class of persons who could have standing to bring an action of this sort. The defendant further contends that a number of public policy considerations and common-law traditions that are unique to the health care environment or, specifically, to the physician-patient relationship, counsel against recognizing a physician's duty to a nonpatient third party under the circumstances alleged in the present case. He argues that (1) the law generally does not impose on physicians a duty of care to nonpatient third parties, (2) the considerations underlying the adoption of Connecticut's medical malpractice statutes, General Statutes § 52-190a through 52-190c, disfavor the imposition of additional liability on physicians, (3) imposing on physicians duties to third parties risks interfering with and undermining the physician-patient relationship, and (4) considerations of confidentiality create both legal and logistical hurdles to the recognition of such duties. Finally, the defendant contends that the plaintiff could have taken various measures both to protect herself from contracting herpes-presumably sexual abstention or the use of prophylactics-and to establish proper standing to bring an action of this sort-such as accompanying Smith when he sought treatment from the defendant. The trial court, in granting the defendant's motion to strike, was swayed by a number of these arguments. The court also discussed several additional concerns: whether physicians might become obligated to contact and warn or to educate patients' sexual partners; the fact that physicians have no control over whether and how patients share their STD test results with potential sexual partners; and whether the recognition of a duty to nonpatients should be predicated on the existence of a formal, mutual STD testing agreement between the patient and his or her prospective sexual partner. Although the defendant, certain of the amici, and the trial court raise many valid concerns, for the reasons that follow, we are persuaded that they do not counsel against the recognition of a duty under the specific circumstances presented in this case. 1 Setting aside for the moment the question of what third-party duties apply within the distinct confines of the physician-patient relationship, we observe at the outset that many of the concerns that the defendant raises and that the trial court found persuasive have been addressed and resolved in other professional contexts. Although the plaintiff has not labeled it as such, her claim is, in essence, one for negligent misrepresentation. That tort specifically encompasses situations such as this, in which a tortfeasor negligently supplies misinformation knowing that the recipient of that information intends to supply it in turn for the benefit and guidance of a third party. "This court has long recognized liability for negligent misrepresentation. We have held that even an innocent misrepresentation of fact may be actionable if the declarant has the means of knowing, ought to know, or has the duty of knowing the truth.... [When the information supplied is to be used in the furtherance of a business transaction and the alleged harm is solely pecuniary, the] governing principles are set forth in . § 552 of [Volume 3 of] the Restatement Second of Torts [1977]: One who, in the course of his business, profession or employment . supplies false information for the guidance of others in their business transactions, is subject to liability for pecuniary loss caused to them by their justifiable reliance [on] the information, if he fails to exercise reasonable care or competence in obtaining or communicating the information." (Citations omitted; internal quotation marks omitted.) D'Ulisse-Cupo v. Board of Directors of Notre Dame High School , 202 Conn. 206, 217-18, 520 A.2d 217 (1987). Recognizing the potentially limitless scope of the financial harms that may flow from the dissemination of false information, the Restatement (Second) restricts liability for negligent misrepresentation of this sort to the loss suffered "(a) by the person or one of a limited group of persons for whose benefit and guidance [the defendant] intends to supply the information or knows that the recipient intends to supply it," and "(b) through reliance upon it in a transaction that he intends the information to influence or knows that the recipient so intends or in a substantially similar transaction." 3 Restatement (Second), Torts § 552 (2) (a) and (b), p. 127 (1977) ; see also id., comment (a), pp. 127-28. In other words, the Restatement (Second) addresses the problem of potentially limitless third-party liability, first, by conferring standing on only those third parties to whom the defendant knew that the recipient intended to supply the information at issue and, second, by restricting liability to losses arising from transactions for the purpose of which the information was supplied. Defined and cabined in this manner, liability for negligent misinformation has been upheld in various contexts in which a professional is hired to supply information to a client, knowing that the client is obtaining the information at least in part for the benefit and guidance of some third party or parties. Although we have not definitively resolved whether an accountant or an auditor may be liable for negligent misrepresentation to a nonclient third party; see Stuart v. Freiberg , 316 Conn. 809, 816-17, 831-32 n.17, 116 A.3d 1195 (2015) (deeming it unnecessary to determine whether liability could be imposed and leaving question open); a number of other courts have held that such professionals can be held liable under the approach set forth in § 552 of the Restatement (Second) of Torts. See, e.g., Ellis v. Grant Thornton LLP , 530 F.3d 280, 288-89 (4th Cir.) (applying West Virginia law), cert. denied, 555 U.S. 1049, 129 S. Ct. 652, 172 L. Ed. 2d 615 (2008) ; North American Specialty Ins. Co. v. Lapalme , 258 F.3d 35, 38-40 (1st Cir. 2001) (applying Massachusetts law) ; see also Tricontinental Industries, Ltd. v. PricewaterhouseCoopers, LLP , 475 F.3d 824, 836 (7th Cir. 2007) (applying similar Illinois rule). A growing number of courts also have dispensed with the traditional privity requirement and have imposed liability on attorneys with respect to transactions in which the attorney's opinion is solicited for the benefit of an identifiable third party. See generally B. Walker, Note, "Attorney's Liability to Third Parties for Malpractice: The Growing Acceptance of Liability in the Absence of Privity," 21 Washburn L.J. 48 (1981) (noting modern trend toward imposing liability and discussing cases). Although courts following the modern approach to professional negligent misinformation claims have not been oblivious to the concerns raised by the defendant and certain of the amici-the potential for limitless third-party liability, interference with the professional-client relationship, and the undue burdening of the professional practice-they have concluded that limiting liability to circumstances in which professional services are sought for the specific benefit of identifiable third parties adequately addresses any concerns centering around both foreseeability and professionalism. See id., 65-66; see also North American Specialty Ins. Co. v. Lapalme , supra, 258 F.3d at 40 ; Pelham v. Griesheimer , 92 Ill. 2d 13, 20-21, 64 Ill.Dec. 544, 440 N.E.2d 96 (1982). Moreover, as we discuss more fully in part II B 4 of this opinion, the Restatement (Second) of Torts recognized that there is even less need to cabin potential third-party liability for negligent misrepresentation in cases such as this, in which the misinformation was not supplied for the recipient's financial benefit and the third-party plaintiff suffered physical as well as pecuniary injuries. Under those circumstances, the Restatement (Second) advises that "[o]ne who negligently gives false information to another is subject to liability for physical harm caused by action taken by the other in reasonable reliance upon such information, where such harm results . (b) to such third persons as the actor should expect to be put in peril by the action taken." 2 Restatement (Second), supra, § 311 (1) (b), p. 106. Similar principles underlie § 324A, which provides that "[o]ne who undertakes . to render services to another which he should recognize as necessary for the protection of a third person . is subject to liability to the third person for physical harm resulting from his failure to exercise reasonable care to protect his undertaking, if (a) his failure to exercise reasonable care increases the risk of such harm, or . (c) the harm is suffered because of reliance of the other or the third person upon the undertaking." Id., § 324A (a) and (c), p. 142. 2 Turning to the specific question of what duties, if any, a medical professional owes to a nonpatient third party, we begin by reviewing Connecticut precedent. The parties agree that Jarmie v. Troncale , supra, 306 Conn. 578, 50 A.3d 802, is the seminal Connecticut case on the subject, but they disagree as to how the present case should be resolved under Jarmie . We conclude that, although Jarmie helps to guide our analysis, whether a physician owes a duty of care to a patient's intimate partner to accurately report that patient's STD test results remains a question of first impression in Connecticut. In Jarmie , the defendant physician diagnosed and treated a patient for various liver and kidney ailments, including hepatic encephalopathy but failed to warn her of the latent driving impairment associated with her condition. Id., at 581, 50 A.3d 802. After leaving the physician's office, the patient lost consciousness while operating her motor vehicle and struck the plaintiff. Id. The trial court granted the defendant's motion to strike the plaintiff's complaint in his subsequent negligence action against the physician, concluding that physicians owe no common-law duty to protect third parties from injuries caused by patients. Id., at 582, 50 A.3d 802. On appeal, we began by emphasizing that there is no common-law or statutory rule against nonpatients bringing ordinary negligence claims against physicians. Id., at 586, 50 A.3d 802. We recognized, however, that our cases display a general aversion to extending a physician's duty of care to nonpatients. See id., at 592, 50 A.3d 802. That aversion is rooted in the principles of tort reform underlying § 52-190a, as well as the common-law rule that, in the absence of a special relationship, there is no duty to protect a third person from the conduct of another. Id. We further explained that "[t]here is no well established common-law rule that a physician owes a duty to warn or advise a patient for the benefit of another person." Id. Nevertheless, we emphasized that we have not "employed or endorsed a per se rule that [third-party] claims [against health care providers] are categorically barred because of the absence of a physician-patient relationship but, rather . this court has exercised restraint when presented with opportunities to extend the duty of health care providers to persons who are not their patients." (Internal quotation marks omitted.) Id., at 593-94 n.5, 50 A.3d 802. In addition, we distinguished cases from other jurisdictions that had imposed third-party liability on a physician by remarking that those cases, unlike Jarmie , involved a physician who had "failed to warn the patient that he or she either had a communicable disease or had been exposed to one." Id., at 616, 50 A.3d 802. Accordingly, we left open the possibility that, under appropriate circumstances, and in particular with respect to the diagnosis of communicable diseases, a physician's common-law duty of care may extend to nonpatients. In the parts of this opinion that follow, we will discuss and apply the various factors and considerations that we deemed to be relevant to the duty analysis in Jarmie . For now, we emphasize two points. First, a principal reason that we affirmed the judgment of the trial court in Jarmie and declined to recognize that the defendant physician owed a duty to the plaintiff motorist was because the plaintiff was not an identifiable victim at the time that medical services were provided. Id., at 590-91, 603, 50 A.3d 802. Rather, "potential victims of [the physician's] alleged negligence included any random pedestrian, driver, vehicular passenger or other person who happened to come in close proximity to a motor vehicle operated by [the patient] following her diagnosis." Id., at 597, 50 A.3d 802. We explained that, in previous cases, we had "limited foreseeable victims of a health care provider's negligence to identifiable persons ." Id., at 594, 50 A.3d 802 ; see id., at 596, 50 A.3d 802 ("the foreseeability test as applied by this court in the context of health care providers has . required an identifiable victim because we have deemed the effect of a physician's conduct on third parties as too attenuated"); see also Jacoby v. Brinckerhoff , 250 Conn. 86, 96-97, 735 A.2d 347 (1999) (psychiatrist owed no duty to patient's ex-spouse, who was not identifiable victim); Fraser v. United States , 236 Conn. 625, 632, 674 A.2d 811 (1996) (psychotherapist owed no duty to victim because "our decisions defining negligence do not impose a duty to those who are not identifiable victims [and] . in related areas of our common law, we have concluded that there is no duty except to identifiable persons"). In the present case, by contrast, the plaintiff has alleged that "Smith told [the defendant] that he was seeking STD testing not only for his benefit, but for the protection and benefit of his new, exclusive girlfriend, [the] plaintiff." Construing this pleading in the light most favorable to sustaining the sufficiency of the complaint, we must conclude that the plaintiff was an identifiable, if not identified, potential victim of the defendant's alleged negligence at the time that treatment was rendered. That is to say, only one woman could have fit the description of Smith's exclusive girlfriend, and Smith presumably could have identified her by name if he had been asked to do so. See Jarmie v. Troncale , supra, 306 Conn. at 597-98, 50 A.3d 802 (identifiable victim is one whom it was possible to identify before negligent act occurred). This identifiable victim requirement strikes an equitable balance between the interests at stake. Although a health care provider's liability may expand beyond his or her patients, its increased scope would encompass only those third-party victims of whose existence and potential exposure to harm the health care provider had been made aware-or could have become aware-prior to the negligent act. Second, since we decided Jarmie , we have held that, under limited circumstances, a health care provider is liable to third parties for professional negligence, albeit in the context of a bystander emotional distress claim. In Squeo v. Norwalk Hospital Assn. , supra, 316 Conn. 558, 113 A.3d 932, we concluded that "a bystander to medical malpractice may bring a claim for the resulting emotional distress . when the injuries result from gross negligence such that it would be readily apparent to a lay observer." Id., at 560, 113 A.3d 932. In so holding, we relied on "our recent statement in Jarmie . eschewing any per se rule that [third-party tort] claims are categorically barred because of the absence of a physician-patient relationship ." (Citation omitted; internal quotation marks omitted.) Id., at 574, 113 A.3d 932. Accordingly, we find Connecticut precedent to be unsettled with respect to the particular question presented here. Although we never have been confronted with the question of a physician's duty to a third party with respect to the reporting of STD test results, and although we consistently have expressed a general aversion to extending the duty of health care providers to third parties, we have allowed, under limited circumstances, for the imposition of liability to an identifiable potential victim who will be foreseeably harmed by a physician's negligence. 3 In Jarmie , after we concluded that Connecticut precedent did not bar the imposition of the duty at issue, we proceeded to look to sister state authority and also to consider whether various policy factors favored the imposition of such a duty. Jarmie v. Troncale , supra, 306 Conn. at 598-624, 50 A.3d 802. In this part of the opinion, we review how other jurisdictions have resolved similar cases. In part II B 4, we analyze the various policies at issue. A number of other jurisdictions have held that, under certain circumstances, the duty of a medical professional to correctly diagnose and advise a patient who suffers from a communicable disease extends not only to the patient but also to third parties who may foreseeably contract that disease from the patient. See 61 Am. Jur. 2d 382, Physicians, Surgeons and Other Healers § 226 (2012) ("[a] physician is liable for his or her negligence in permitting persons to be exposed to infectious or communicable diseases to the injury of the persons so exposed"); see also L. Gostin & J. Hodge, "Piercing the Veil of Secrecy in HIV/AIDS and Other Sexually Transmitted Diseases : Theories of Privacy and Disclosure in Partner Notification," 5 Duke J. Gender L. & Policy 9, 37 (1998); T. Bateman, annot., " Liability of Doctor or Other Health Practitioner to Third Party Contracting Contagious Disease from Doctor's Patient, 3 A.L.R.5th 370, 377-79, § 2 [a] (1992) ; G. Sarno, "Physician's Failure To Protect Third Party from Harm by Nonpsychiatric Patient," 43 Am. Jur. Proof of Facts 2d 657, 670-72, § 3 (1985). Many such courts, for example, have long held that physicians and other health care providers charged with diagnosing, treating, and controlling the spread of contagious diseases owe a duty of care to members of the immediate family of an infected patient. See, e.g., Bolieu v. Sisters of Providence in Washington , 953 P.2d 1233, 1239 (Alaska 1998) ; Hofmann v. Blackmon , 241 So. 2d 752, 753 (Fla. App. 1970), cert. denied, 245 So. 2d 257 (Fla. 1971) ; Shepard v. Redford Community Hospital , 151 Mich. App. 242, 245-46, 390 N.W.2d 239 (1986), appeal denied, 431 Mich. 872, 430 N.W.2d 458 (1988) ; Skillings v. Allen , 143 Minn. 323, 326, 173 N.W. 663 (1919) ; Wojcik v. Aluminum Co. of America , 18 Misc. 2d 740, 746-47, 183 N.Y.S.2d 351 (1959). In some of these cases, the court held that the provider had an affirmative duty to notify or educate the third party, whereas, in other cases, the court simply held that a third party had standing to enforce the provider's duty to properly diagnose, treat, and educate the infected patient. Although appellate cases addressing a physician's duties to a patient's premarital sexual partners are few and far between, the plaintiff and certain of the amici have identified several cases that permit an action to be brought either by a victim who was identifiable at the time of treatment or by any member of the class of persons who foreseeably could contract an STD from the patient as a result of the physician's negligence. See, e.g., Reisner v. Regents of the University of California , 31 Cal. App. 4th 1195, 1200-1201, 37 Cal. Rptr. 2d 518 (1995) (physician had duty to advise patient that he tested positive for human immunodeficiency virus (HIV) for benefit of unknown and unidentifiable but foreseeable sexual partners), review denied, California Supreme Court, Docket No. S045274 (May 18, 1995); C.W. v. Cooper Health System , 388 N.J. Super. 42, 60-62, 906 A.2d 440 (App. Div. 2006) (health care provider owed duty to inform patient of positive HIV test results and that duty extended to persons "within the class of reasonably foreseeable individuals whose health [was] likely to be threatened by the patient's ignorance of his own health status," including patient's future sexual partner); DiMarco v. Lynch Homes-Chester County, Inc. , 525 Pa. 558, 563-64, 583 A.2d 422 (1990) (when boyfriend of blood technician who acquired hepatitis B from accidental exposure was member of class of persons whose health was likely to be threatened by exposure to such communicable disease, and her physicians gave erroneous advice to her regarding potential spread of that disease, boyfriend had cause of action against physicians); Estate of Amos v. Vanderbilt University , 62 S.W.3d 133, 138 (Tenn. 2001) (future husband and daughter of patient who was not informed that she was at risk of contracting HIV deemed members of identifiable class for purposes of hospital's third-party liability). The defendant attempts to distinguish these cases on the ground that the plaintiff, unlike the sexual partners at issue in the cited cases, could have accompanied Smith when he sought STD testing and thus established a quasipatient relationship with the defendant sufficient to support a legal duty of care. We are not persuaded by this contention. First, the defendant provides no authority to support his theory that either the law or the medical profession confers a special status on a nonspouse sexual partner who accompanies a patient to his or her appointment with a physician and that that status is sufficient to support a legal duty of care. Second, it may well be that the defendant's suggested approach would interfere more directly with the physician-patient relationship and raise more substantial confidentiality concerns than would the imposition of the third-party duty of care for which the plaintiff advocates. The defendant also notes that many of these cases involve potentially deadly diseases such as HIV that are more serious than herpes. We agree with the Alaska Supreme Court, however, that "the duty issue cannot turn on possible distinctions among diseases based on their severity and ubiquity.... Rather, the severity and ubiquity of the disease bear on what the [provider] must do to discharge the duty." Bolieu v. Sisters of Providence in Washington , supra, 953 P.2d at 1240. A Florida case, Hawkins v. Pizarro , 713 So. 2d 1036 (Fla. App.) review denied, 728 So. 2d 202 (Fla. 1998), provides an instructive contrast. In that case, a patient tested positive for hepatitis C, but her physician's office improperly advised her that she had tested negative. Id., at 1037. Several months later, the patient met the plaintiff, whom she eventually married. Id. The plaintiff contracted hepatitis C from the patient and filed an action against the physician for medical negligence. Id. In upholding the trial court's granting of summary judgment in favor of the defendant, the District Court of Appeal of Florida recognized that hepatitis C is a highly contagious sexually transmitted disease and that a physician's duty of care in treating such diseases is intended in part for the benefit of third parties. Id., at 1037-38. The court held that the physician owed no duty to the plaintiff, however, because he was neither identified nor known to the physician at the time of the incorrect diagnosis. Id., 1038. By contrast, our research has not revealed any cases in which a court held that there was no third-party liability under circumstances such as those in the present case, in which STD testing was obtained expressly for the benefit of an identifiable, exclusive romantic partner. But cf. D'Amico v. Delliquadri , 114 Ohio App. 3d 579, 583, 683 N.E.2d 814 (1996) (plaintiff conceded that, under Ohio law, defendant physician owed her no direct duty to properly warn and advise his patient, plaintiff's boyfriend, as to communicability of genital warts ). Beyond sister state authority, we further note that the Restatement (Second) of Torts appears to support the imposition of liability in a case such as this. As we previously discussed, § 311 of the Restatement (Second) provides that one who negligently gives false information may be held liable to a third party who predictably is injured by the recipient's reasonable reliance on that information. Notably, comment (b) to that section holds up the physician-patient relationship as the primary illustration of the rule: "The rule stated in this [s]ection finds particular application where it is part of the actor's business or profession to give information upon which the safety of the recipient or a third person depends. Thus it is as much a part of the professional duty of a physician to give correct information as to the character of the disease from which his patient is suffering, where such knowledge is necessary to the safety of the patient or others , as it is to make a correct diagnosis or to prescribe the appropriate medicine." (Emphasis added.) 2 Restatement (Second), supra, § 311, comment (b), p. 106. Accordingly, we conclude that sister state and secondary authorities, although limited, generally support the imposition of a third-party duty under the circumstances alleged in the present case. As we discuss in part II B 5 of this opinion, sister state courts generally have not been swayed by the various practical concerns that the defendant and certain of the amici have raised and that the trial court found to be compelling. 4 Next, because the question presented is one of first impression in Connecticut, we consider various public policy factors that both this court and other authorities have deemed to be relevant to whether and under what circumstances a physician owes a duty of care to a nonpatient third party. On balance, we conclude that those factors support the imposition of a third-party duty of care under the circumstances of the present case. In Jarmie , we identified the following factors, among others, as being relevant to the question of what duty of care a physician owes to nonpatient third parties: the purposes of the tort compensation system, including efficiency, harm avoidance, and the appropriate distribution of loss; Jarmie v. Troncale , supra, 306 Conn. at 599-602, 50 A.3d 802 ; the normal expectations of the participants in the activity under review and the public policy of encouraging participation in the activity, including the sanctity of the physician-patient relationship; id., at 603-14, 50 A.3d 802 ; and the purposes that underlie Connecticut's medical malpractice statute, § 52-190a, including the avoidance of increased litigation and higher health care costs. Id., at 592-93, 603, 614-15, 50 A.3d 802. When addressing third-party liability in the context of infectious diseases in particular, courts also have taken into account such considerations as "the foreseeability of third-party injury as shown by the patient's [infectious disease] carrier status, the degree of communicability of the patient's infectious disease, and the physician's actual or constructive knowledge of the ease of transmission of the patient's infectious disease; a public health statute [the] legislative intent [of which] is partly to protect third parties, such as a statute requiring physicians to report diagnosed instances of communicable or infectious diseases ; breach of the physician's duty to exercise due care to protect third parties from foreseeable harm as shown by failure to report diagnosed instances of communicable or infectious diseases to public health authorities, failure to warn the patient with the infectious disease not to have contact with third parties, failure to warn the family of the patient with the infectious disease about the ease of, and precautions against, its transmission, failure to quarantine the patient with the infectious disease, failure to vaccinate the patient's family [members] against the infectious disease, conveyance of an affirmative indication that contact with the infected patient is not risky, and failure to take other reasonable measures to prevent exposure to the patient with the communicable disease; additional indicia of negligence, including failure to use standard available tests for diagnosing a patient's infectious disease, failure to interpret diagnostic test results correctly, and failure to diagnose the patient's infectious disease; and harm to a third-party plaintiff as shown by the third party's illness from exposure to the physician's infectious patient." T. Bateman, supra, 3 A.L.R.5th 379, § 2 [b]. a For purposes of the present appeal, two of these factors, or sets of factors, are especially pertinent to our analysis. First, although we continue to recognize the sanctity of the physician-patient relationship and the need to exercise "restraint when presented with opportunities to extend the duty of health care providers to persons who are not their patients"; Jarmie v. Troncale , supra, 306 Conn. at 592, 50 A.3d 802 ; we also recognize that such concerns are at their nadir, and a physician's broader public health obligations are at their zenith, with respect to the diagnosis and treatment of infectious diseases. Throughout history, both medical organizations and government entities have recognized not only the critical role that physicians play in combatting the spread of contagious diseases such as STDs, but also the concomitant fact that, in diagnosing and treating such diseases, a physician's duties and loyalties necessarily must be divided between the patient and other people whom the patient may infect. See generally L. Gostin & J. Hodge, supra, 5 Duke J. Gender L. & Policy 9. For example, "one of the earliest recorded public health strategies for STD prevention was to pierce the veil of secrecy surrounding these hidden diseases by notifying sexual partners . of infected patients ." Id., 11. "Often known collectively as the 'duty to warn,' these [judicially imposed, common-law] obligations subsequently have been codified by many state legislatures." Id., 12. For example, partner notification measures were broadly implemented during the 1930s in an effort to control and eradicate the syphilis epidemic. Id., 21. Many states continue to operate provider based partner referral programs under which health care providers are responsible for contacting, on a confidential basis, the sexual partners of patients diagnosed with various STDs. See id., 27-32. Indeed, even the American Medical Association (AMA), one of the amici supporting the defendant's position, which argues against the imposition of a third-party duty under these circumstances, has recognized that, "[a]lthough physicians' primary ethical obligation is to their individual patients"; American Medical Association, Code of Medical Ethics (2017) opinion 8.4, p. 128; they also have a responsibility "to protect and promote the health of the public." Id., opinion 8.1, p. 125. "[P]hysicians must balance dual responsibilities to promote the welfare and confidentiality of the individual patient and to protect public safety." Id., opinion 8.2, p. 126. The AMA has further observed that a physician's "long-recognized" professional responsibilities to nonpatients are especially pronounced in the context of infectious disease, for which professional standards of care demand that a physician not only treat his or her own patients competently, but also go so far as to "[p]articipate in implementing scientifically and ethically sound quarantine and isolation measures in keeping with the duty to provide care in epidemics." Id., opinion 8.4, p. 128. As we noted, the principle that a physician's duty to protect the broader public health and to help to deter the spread of contagious diseases at times transcends the physician's duty to his or her individual patient has long been codified in federal and state law. See, e.g., L. Gostin & J. Hodge, supra, 5 Duke J. Gender L. & Policy 58. Connecticut is no exception in this respect. Our legislature has, for example, enacted laws that require physicians to test pregnant patients for syphilis and HIV; General Statutes § 19a-90 ; require health care providers to report certain communicable diseases to local and state public health officials; General Statutes § 19a-215 ; and permit physicians to warn, or to disclose confidential patient information for the purpose of warning, a known partner of a patient who has been diagnosed with an HIV infection or related disease. General Statutes § 19a-584 (b). Perhaps most notably, since 2006, both the United States Centers for Disease Control and Prevention (CDC) and the AMA have approved the use of so-called expedited partner therapy programs to combat the spread of STDs. Expedited partner therapy "is the delivery of medications or prescriptions by persons infected with an STD to their sex partners without clinical assessment of the partners"; in accordance with this protocol, "[c]linicians . provide patients with sufficient medications directly or via prescription for the patients and their partners." The AMA has authorized the use of expedited partner therapy even though that approach to treating STDs "potentially abrogates the standard informed consent process, compromises continuity of care for patients' partners, encroaches [on] the privacy of patients and their partners, increases the possibility of harm by a medical or allergic reaction, leaves other diseases or complications undiagnosed, and may violate state practice laws." American Medical Association, supra, opinion 8.9, p. 132. In other words, the medical profession has formed the judgment that the need to stem the spread of STDs is so great, and the traditional physician-patient model so inadequate therefor, that an exception to the prevailing standard of care should be drawn so that physicians can provide treatment to third parties who are not their patients. Our legislature has embraced this novel approach, allowing practitioners to dispense oral antibiotic drugs to the sexual partners of patients who have been diagnosed with chlamydia or gonorrhea, two kinds of STDs, without first physically examining the partners. See General Statutes § 20-14e (e). We recognize that none of these laws directly applies to herpes. This presumably reflects in part the fact that that disease is not curable at present, and, thus, the sexual partners of patients infected with herpes would not be candidates for programs such as expedited partner therapy. At the same time, the fact that herpes is incurable highlights the extent to which a physician's duties in a case such as this run to third parties as well as to the patient, as it will be the patient's potential sexual partners who are the most direct beneficiaries of the diagnosis. Perhaps more than in any other field of medicine, then, the duty of care that a physician owes to his or her patient in the diagnosis and treatment of infectious and sexually transmitted diseases also, necessarily, entails some duty to third parties who are likely to contract the disease from the patient. As the Supreme Court of Pennsylvania explained, "[c]ommunicable diseases are so named because they are readily spread from person to person. Physicians are the first line of defense against the spread of communicable diseases, because physicians know what measures must be taken to prevent the infection of others. The patient must be advised to take certain sanitary measures, or to remain quarantined for a period of time, or to practice sexual abstinence or what is commonly referred to as safe sex." (Internal quotation marks omitted.) DiMarco v. Lynch Homes-Chester County, Inc. , supra, 525 Pa. at 562, 583 A.2d 422. The court continued: "Such precautions are taken not to protect the health of the patient, whose well-being has already been compromised, [but] rather such precautions are taken to safeguard the health of others." (Emphasis omitted.) Id. ; cf. Davis v. Rodman , 147 Ark. 385, 391-92, 227 S.W. 612 (1921) ("[o]n account of his scientific knowledge and his peculiar relation, an attending physician is, in a certain sense, in custody of a patient afflicted with [an] infectious or contagious disease"); V. Schwartz et al., Prosser, Wade and Schwartz's Torts: Cases and Materials (11th Ed. 2005) p. 432 (custody of persons with contagious diseases may give rise to singular duty to control conduct of other person). At the same time, we perceive little risk that imposing a third-party duty under these circumstances would interfere with the physician-patient relationship, breach patient confidentiality, or require the practice of costly defensive medicine. See, e.g., Reisner v. Regents of the University of California , supra, 31 Cal. App. 4th at 1203, 37 Cal.Rptr.2d 518. Although the plaintiff contends that the defendant owed her a duty of care as an identifiable potential victim who foreseeably would rely on the accuracy of his diagnosis, her argument is that that duty would have been fully satisfied if the defendant simply had provided the accurate test results to Smith, his patient. In other words, the defendant was under no obligation to contact the plaintiff, to otherwise ensure that she was made aware of Smith's test results, or to do anything other than fulfill his undisputed professional obligation to accurately convey his patient's test results to the patient himself. The concerns of the dissent that our decision in this case will somehow result in the disclosure of confidential medical information are, therefore, wholly unfounded. In conclusion, we think that it is beyond cavil that physicians such as the defendant owe some duty of care to third parties when diagnosing and treating a patient who suffers from an STD. We do not believe that imposing the duty for which the plaintiff advocates would intrude on the sanctity of the physician-patient relationship. Indeed, the duty at issue here-simply to accurately relay the patient's test results to the patient-is far more limited and less intrusive than the public health reporting and partner notification requirements that have been imposed on physicians in the context of diagnosing and treating infectious diseases. b The second set of factors that governs our analysis relates to the purposes of the tort compensation system. "[T]he fundamental policy purposes of the tort compensation system [are] compensation of innocent parties, shifting the loss to responsible parties or distributing it among appropriate entities, and deterrence of wrongful conduct . It is sometimes said that compensation for losses is the primary function of tort law . [but it] is perhaps more accurate to describe the primary function as one of determining when compensation [is] required.... An equally compelling function of the tort system is the prophylactic factor of preventing future harm . The courts are concerned not only with compensation of the victim, but with admonition of the wrongdoer.... [Of course] [i]mposing liability for consequential damages often creates significant risks of affecting conduct in ways that are undesirable as a matter of policy. Before imposing such liability, it is incumbent [on] us to consider those risks." (Citations omitted; internal quotation marks omitted.) Jarmie v. Troncale , supra, 306 Conn. at 599-600, 50 A.3d 802. In the present case, these factors also weigh strongly in favor of imposing a duty on health care providers to identifiable and foreseeable third-party victims such as the plaintiff. First, we observe that, if the defendant is not held liable to the plaintiff under these circumstances, then, in all likelihood, she will be without remedy or compensation for her injuries. It is doubtful, for example, that the plaintiff could recover in negligence from Smith, who acted responsibly in seeking regular STD testing and did not have sexual contact with her until he was possessed of a reasonable, good faith belief that he was free of STDs. The trial court, while recognizing "the absence of any other source of compensation for the [plaintiff's] harm," apparently concluded that this factor was mitigated by (1) the fact that "the cost of medical treatment likely would be covered by health insurance," and (2) the plaintiff's ability to engage in "self-protective measures ." The dissent also is of the view that the plaintiff is not without recourse because she "may well be covered by public or private health insurance policies ." There is nothing in the record to support the pure speculation that the plaintiff had, or will continue to have, adequate health insurance. Nor do we think it is appropriate to expect ordinary health insurance policies, or taxpayers, to bear the costs of a physician's negligence. Medical malpractice policies exist to spread such costs. In any event, the availability of insurance will be of little consolation to the plaintiff, insofar as genital herpes is presently an incurable disease. E.g., E. Moore, Encyclopedia of Sexually Transmitted Diseases (2005) p. 135; Mosby's Medical Dictionary (8th Ed. 2009) p. 872. We must assume that, for the remainder of her life, the plaintiff will suffer periodic outbreaks of painful blisters or ulcers associated with the virus. See, e.g., E. Moore, supra, pp. 132-33. Her desirability as a potential romantic partner may be diminished. And, if she should become pregnant, she will have to contend with the risk that she may transmit the virus to her newborn child. See, e.g., id., p. 135. Some of these injuries will not be covered-or may not be adequately covered-by medical insurance, and we ought not pretend otherwise. Only the defendant can compensate the plaintiff for these losses. With respect to "self-protective measures," we presume that the trial court was referring to the fact that, notwithstanding Smith's apparently negative STD test results, the plaintiff could have further reduced the risk that she would contract an STD either by using prophylactics or abstaining from intercourse with Smith altogether. Even if we were to assume, for the sake of argument, that it would be reasonable and right to expect couples, such as the plaintiff and Smith, to abstain from sexual intimacy, or to consistently practice safe sex while dating, that would only push back the problem. At some point, their relationship could have progressed to a point at which they would have married and consummated their union. At that point, a wedding band would not have been proof against the defendant's negligence. See Hawkins v. Pizarro , supra, 713 So. 2d at 1037 (STD was misdiagnosed prior to courtship, and sexual partner was diagnosed after marriage). Second, the flip side of the coin is that, if the plaintiff cannot hold the defendant responsible for his alleged negligence, then errors of this sort will go unadmonished. Patients such as Smith are unlikely to have incurred any legally cognizable damages as a result of an incorrect test report and, therefore, may be unable to recover from a defendant physician. We recognize that not every wrong is compensable in tort and that losses, even unjust losses, sometimes must be allowed to lie where fate has cast them. See Jarmie v. Troncale , supra, 306 Conn. at 599, 50 A.3d 802. Under these circumstances, however, imposing third-party liability would play an important role in spurring physicians such as the defendant to take greater care in reporting STD lab results. As the California Court of Appeal recognized in Reisner v. Regents of the University of California , supra, 31 Cal. App. 4th 1195, 37 Cal.Rptr.2d 518, the law should "encourage the highest standard of care concerning communicable and infectious diseases ." Id., at 1201, 37 Cal. Rptr. 2d 518 ; see also id., at 1204, 37 Cal. Rptr. 2d 518 ("we believe that a doctor who knows he is dealing with the [twentieth] [c]entury version of Typhoid Mary ought to have a very strong incentive to tell his patient what she ought to do and not do and how she ought to comport herself in order to prevent the spread of her disease" [footnote omitted] ). Holding the defendant liable to the plaintiff would create such an incentive and deter the careless misreporting of STD test results. The trial court, while recognizing that imposing third-party liability under these circumstances could play an important deterrent function and help control the insidious spread of STDs, expressed concern over what it saw as potentially unforeseen consequences. The court speculated, for instance, that physicians themselves might feel compelled to discuss lab results with their patients, which could be more costly and less efficient than relying on nurses or office staff to relay results. We do not find this concern compelling. A patient who seeks medical attention to be tested for a disease, any disease, has a reasonable expectation that the test results will be reported accurately, by whatever means. See, e.g., L. Casalino et al., "Frequency of Failure To Inform Patients of Clinically Significant Outpatient Test Results," 169 Archives Internal Med. 1123, 1123 (2009) ("[f]ailures to inform patients of abnormal test results . are common and legally indefensible factors in malpractice claims"). The risks and costs associated with misinforming a patient that he does not have a particular disease can be dramatic. Those include the direct costs to the patient and the health care system, as when, for example, treatment of a serious illness such as cancer is irremediably delayed, or, as in the present case, through the inadvertent infection of third parties by a patient who falsely believes that he is free of STDs. Holding health care providers responsible for errors of the sort alleged will help to maintain public trust in the reliability of the STD reporting system and, therefore, encourage continued participation in this important public health regimen. Of course, it ultimately will be for the jury to determine whether a reasonable health care provider would have reported Smith's test results differently, whether through direct physician-to-patient communications or through the use of additional fail-safes and quality assurance measures. But we certainly are not prepared to say, as a matter of law, that, whatever added costs might be entailed by a quick telephone call or a letter from one's physician, or a policy requiring office staff to double check that they are reporting test results accurately, they are too onerous relative to the human, financial, and public health costs associated with a false negative report. Cf. Reisner v. Regents of the University of California , supra, 31 Cal. App. 4th at 1200, 37 Cal.Rptr.2d 518 (it is not unreasonable to expect physicians to give additional warning or warnings). Along these same lines, we note that it would not be unreasonable for a jury to conclude that the defendant, and not the plaintiff or Smith, was most effectively and economically situated to avoid the harm that befell the plaintiff. In this era of technologized medicine, the conveyance of lab results is a regular and central component of a physician's professional duties. The physician has exclusive access to the original lab results, until such time as they are shared with or conveyed to the patient. As between the defendant, on the one hand, who can avoid errors of this sort simply by double checking the results before or after speaking with the patient; see L. Casalino et al., supra, 169 Archives Internal Med. 1123 (discussing "relatively simple" best practices); and Smith and the plaintiff, on the other, who could ensure that the plaintiff remained free of STDs only by permanently abstaining from intimate contact, a jury reasonably could conclude that the defendant was the party who was in the best position to avoid the harm at the lowest cost and, therefore, should bear the costs of the loss. See, e.g., Rodi Yachts, Inc. v. National Marine, Inc. , 984 F.2d 880, 883-84, 888 (7th Cir. 1993). At the same time, physicians such as the defendant can most readily bear and spread through malpractice insurance the costs associated with errors of the sort alleged. We are not convinced that such errors are both so prevalent and so ineluctable that imposing third-party liability, solely with respect to identifiable victims, will meaningfully impact insurance rates or overall health care costs. For these reasons, we conclude that the relevant policy considerations weigh heavily in favor of allowing liability under these circumstances. 5 Finally, we address two concerns that the defendant and certain of the amici have raised and that the trial court found compelling. First is the slippery slope issue. The trial court observed, and we agree, that, "[i]n a sense, [the] plaintiff's complaint identifies a best case scenario ." That is to say, the plaintiff and Smith were involved in an exclusive romantic relationship at the time Smith sought STD testing, Smith informed the defendant that he was seeking testing for the benefit and protection of the plaintiff, and the plaintiff subsequently agreed to engage in sexual relations with Smith in reliance on the test results as reported to Smith. This means that the defendant's potential liability for negligently misreporting Smith's test results extended to at most one nonpatient third party, a party of whose existence the defendant was aware at the time of treatment, who could foreseeably contract a contagious STD if an erroneous negative test result were reported, and to whom he owed no independent duty beyond the duty already owed to Smith to accurately report his test results. Nevertheless, the trial court expressed concerns that imposing a duty under these limited circumstances could open the floodgates. For example, the court questioned whether, if Smith had been dating multiple women at the time, or later began to date other women, with whom Smith had not discussed STDs, the defendant would owe a duty to a large and ill-defined class of potential plaintiffs. The trial court also questioned whether, under different circumstances, a physician such as the defendant might feel compelled to question a patient regarding his sexual partners, or to contact those partners to discuss the patient's STD status, or at least to ensure that the patient accurately relayed the test results to all of his sexual partners. Finally, the court questioned whether it makes sense to make liability hinge on the sort of mutual STD testing arrangement to which the plaintiff and Smith agreed. Beginning with the last point, we emphasize that the defendant's liability does not hinge on the fact that Smith and the plaintiff entered into a mutual testing agreement. The alleged fact that Smith sought and obtained STD testing at the time could become relevant at trial only insofar as it would support the plaintiff's theory of causation, that is, that she was free of STDs until she became intimate with Smith during or after July, 2013. Beyond that, we emphasize that the duty that we recognize today is quite limited. It extends only to identifiable third parties who are engaged in an exclusive romantic relationship with a patient at the time of testing and, therefore, may foreseeably be exposed to any STD that a physician fails to diagnose or properly report. And the physician fully satisfies that third-party duty simply by treating the patient according to the prevailing standard of care and accurately informing the patient of the relevant test results. See, e.g., Reisner v. Regents of the University of California , supra, 31 Cal. App. 4th at 1203, 37 Cal.Rptr.2d 518 ; Pate v. Threlkel , 661 So. 2d 278, 281-82 (Fla. 1995) ; Estate of Amos v. Vanderbilt University , supra, 62 S.W.3d at 138. Whether there are other, broader circumstances under which a physician may be held to owe a duty of care to a nonpatient third party who foreseeably contracts an infectious disease as a result of the physician's negligence is a question that we need not resolve today. Nor, as we have discussed, are we overly concerned that our recognition of a duty under the specific circumstances of this case will create a flood of litigation, increase insurance costs, or discourage physicians from offering STD testing. See, e.g., Bolieu v. Sisters of Providence in Washington , supra, 953 P.2d at 1239. The amici supporting the defendant's position have given us no reason to believe that errors of the sort alleged are commonplace or that they cannot readily be avoided by cost-effective quality assurance measures. As the California Court of Appeal explained in rejecting such arguments, "[a]rguments premised on opened floodgates and broken dams are not persuasive [when] . we suspect that only a few drops of water may spill onto a barren desert." Reisner v. Regents of the University of California , supra, 31 Cal. App. 4th at 1204, 37 Cal.Rptr.2d 518. And, of course, if the legislature perceives differently the risk that conferring standing on individuals such as the plaintiff will result in a health care funding crisis, then nothing bars that body from imposing whatever restrictions it deems prudent on common-law actions of this sort. Second, we do not share the trial court's concern that recognizing a third-party cause of action for negligent misreporting of STD test results would be impracticable. The court reasoned that, in many such instances, a patient such as Smith and an alleged victim such as the plaintiff will no longer be romantically involved by the time an action reaches the trial stage and, therefore, that key evidence-the patient's medical records-may not be available. The court noted that federal and state privacy laws could bar a plaintiff from obtaining and presenting such records without the patient's consent and that the patient might have little incentive to disclose such records to a former partner and have his or her medical and sexual history become part of the public record. The court also appeared to suggest that, in cases in which the patient does cooperate with the plaintiff, the patient might agree to selectively provide only those records that supported the plaintiff's case, leaving the physician unable to defend himself or herself. Although we do not discount the possibility that the concerns that the trial court raises could present logistical hurdles in some other case, those hypothetical challenges do not counsel against allowing the plaintiff to hold the defendant accountable in a case such as this, in which the plaintiff apparently will have full access to the medical records necessary to put on her case. As we noted in Jacoby v. Brinckerhoff , supra, 250 Conn. 86, 735 A.2d 347, "evidentiary constraints at trial do not, themselves, affect the sufficiency of a stated cause of action ." For all of the foregoing reasons, we hold that the trial court incorrectly concluded that, as a matter of law, the defendant owed no duty of care to the plaintiff with respect to the reporting of Smith's STD test results. The judgment is reversed and the case is remanded for further proceedings according to law. In this opinion D'AURIA, MULLINS and VERTE-FEUILLE, Js., concurred. ROBINSON, C.J., with whom McDONALD and KAHN, J., join, dissenting. I respectfully disagree with the majority's conclusion that Connecticut physicians, with respect to the diagnosis and reporting of their patients' sexually transmitted disease (STD) test results, owe a direct duty of care to "identifiable third parties who are engaged in an exclusive romantic relationship with a patient at the time of testing and, therefore, may foreseeably be exposed to any STD that a physician fails to diagnose or properly report." In my view, the majority's conclusion is inconsistent with our recent decision in Jarmie v. Troncale , 306 Conn. 578, 590-91, 50 A.3d 802 (2012), in which we deemed three principal considerations to be especially pertinent in determining what, if any, duty of care is owed by a medical professional to a nonpatient third party, specifically (1) Connecticut precedent, (2) the foreseeability of the alleged harm, and (3) public policy considerations. Following Jarmie , I conclude instead that the defendant physician, Charles Cochran, owed no duty to the plaintiff, Jane Doe, and that the trial court properly granted the defendant's motion to strike the plaintiff's single count complaint. Because I would affirm the judgment subsequently rendered by the trial court in favor of the defendant, I respectfully dissent. I begin by noting my agreement with the majority's recitation of the factual and procedural history of the case. I also note my substantial agreement with the majority's analysis in part I of its opinion, including the standard of review and the treatment of the plaintiff's single count complaint as having alleged both medical malpractice and common-law negligence, similar to our treatment of the action in Jarmie . Id., at 583-86, 50 A.3d 802. I part ways with the majority at part II of its opinion. "The essential elements of a cause of action in negligence are well established: duty; breach of that duty; causation; and actual injury.... Contained within the first element, duty, there are two distinct considerations.... First, it is necessary to determine the existence of a duty, and then, if one is found, it is necessary to evaluate the scope of that duty.... The existence of a duty is a question of law and only if such a duty is found to exist does the trier of fact then determine whether the defendant violated that duty in the particular situation at hand.... If a court determines, as a matter of law, that a defendant owes no duty to a plaintiff, the plaintiff cannot recover in negligence from the defendant.... "Duty is a legal conclusion about relationships between individuals, made after the fact, and imperative to a negligence cause of action. The nature of the duty, and the specific persons to whom it is owed, are determined by the circumstances surrounding the conduct of the individual.... Although it has been said that no universal test for [duty] ever has been formulated . our threshold inquiry has always been whether the specific harm alleged by the plaintiff was foreseeable to the defendant. The ultimate test of the existence of the duty to use care is found in the foreseeability that harm may result if it is not exercised.... By that is not meant that one charged with negligence must be found actually to have foreseen the probability of harm or that the particular injury which resulted was foreseeable, but the test is, would the ordinary [person] in the defendant's position, knowing what he knew or should have known, anticipate that harm of the general nature of that suffered was likely to result . "A simple conclusion that the harm to the plaintiff was foreseeable, however, cannot by itself mandate a determination that a legal duty exists. Many harms are quite literally foreseeable, yet for pragmatic reasons, no recovery is allowed.... A further inquiry must be made, for we recognize that duty is not sacrosanct in itself . but is only an expression of the sum total of those considerations of policy which lead the law to say that the plaintiff is entitled to protection.... The final step in the duty inquiry, then, is to make a determination of the fundamental policy of the law, as to whether the defendant's responsibility should extend to such results." (Internal quotation marks omitted.) Id., at 589-90, 50 A.3d 802. In Jarmie , we considered whether to recognize a duty of care owed by a physician to a third party nonpatient. In that case, a patient crashed her vehicle into the plaintiff after blacking out while driving. Id., at 580, 50 A.3d 802. The plaintiff in Jarmie claimed that the defendant, a physician, had breached a duty to warn the patient of the risks of a latent driving impairment associated with a particular medical condition. Id. In concluding that the physician did not owe a duty of care to a third party nonpatient, this court considered three principal factors: (1) Connecticut precedent, (2) foreseeability, and (3) public policy considerations, including the decisions of courts in other jurisdictions. Id., at 589-91, 50 A.3d 802. We began in Jarmie by analyzing Connecticut precedent, and observed that it "is useful to view Connecticut common-law rules defining the duty of health care providers in conjunction with [General Statutes] § 52-190a, the medical malpractice statute, because all of the relevant case law followed enactment of that provision. The statute had several purposes, including: (1) to put some measure of control on what was perceived as a crisis in medical malpractice insurance rates; (2) to discourage frivolous or baseless medical malpractice actions; (3) to reduce the incentive to health care providers to practice unnecessary and costly defensive medicine because of the fear of such actions; (4) to reduce the emotional, reputational and professional toll imposed on health care providers who are made the targets of baseless medical malpractice actions; and (5) the replacement of proportional liability for the preexisting system of joint and several liability as a central part of [tort reform], so as to remove the health care provider as an unduly attractive deep pocket for the collection of all of the plaintiff's damages.... Thus, a principal goal of § 52-190a, and of tort reform generally, was to limit the potential liability of health care providers.... "The common law, reflecting the goals of the tort reform movement and the legislature's purpose in enacting § 52-190a, likewise disfavors the imposition of liability on health care providers. The established rule is that, absent a special relationship of custody or control, there is no duty to protect a third person from the conduct of another.... Thus, physicians owe an ordinary duty to their patients not to harm them through negligent conduct and an affirmative duty to help them by providing appropriate care.... There is no well established common-law rule that a physician owes a duty to warn or advise a patient for the benefit of another person." (Citations omitted; internal quotation marks omitted.) Id., at 591-92, 50 A.3d 802. "Consistent with the purpose of the medical malpractice statute and the limited duty of health care providers under the common law, this court has exercised restraint when presented with opportunities to extend the duty of health care providers to persons who are not their patients. As a consequence, we have held that a nurse and an emergency medical technician owed no duty of care to a patient's sister, who fainted while observing a medical procedure performed on the patient; Murillo v. Seymour Ambulance Assn., Inc. , [264 Conn. 474, 477-78, 823 A.2d 1202 (2003) ]; a psychiatrist owed no duty to a patient's former spouse for any direct injury to the marriage caused by the allegedly negligent treatment of the patient for marital difficulties; see Jacoby v. Brinckerhoff , 250 Conn. 86, 88, 95-98, 735 A.2d 347 (1999) ; a psychiatrist who evaluated children for possible sexual abuse owed no duty of reasonable care to protect the children's father, the suspected abuser, from false accusations of abuse arising out of the performance of the evaluations; Zamstein v. Marvasti , 240 Conn. 549, 550-51, 559-61, 692 A.2d 781 (1997) ; and a physician owed no duty of care to his patient's daughter, who suffered emotional distress as a result of observing the patient's health deteriorate because of the physician's malpractice. Maloney v. Conroy , 208 Conn. 392, 393, 403, 545 A.2d 1059 (1988). The only time that we have even contemplated enlarging the duty of a health care provider to include a person who is not a patient was when we considered whether a psychotherapist owed a duty to a third party to control an outpatient who was not known to have been dangerous. See Fraser v. United States , [236 Conn. 625, 627-30, 674 A.2d 811 (1996) ]. In that case, we determined that no duty existed in the absence of a showing that the victim was either individually identifiable or, possibly, was either a member of a class of identifiable victims or within the zone of risk to an identifiable victim. Id., at 634, 674 A.2d 811. Accordingly, although there is no directly comparable Connecticut case law on which to rely, our precedent, in general, does not support extending the duty of care . because, with one limited exception that does not apply . we repeatedly have declined, in a variety of situations, to extend the duty of health care providers to persons who are not their patients." (Citation omitted; emphasis omitted; internal quotation marks omitted.) Jarmie v. Troncale , supra, 306 Conn. at 592-93, 50 A.3d 802. Although the precise factual circumstances of this case present an issue of first impression, I conclude that Connecticut precedent, as explained in Jarmie , demonstrates this court's consistent reluctance to extend the legal duties of medical professionals to nonpatient third parties. Indeed, no Connecticut case decided after Jarmie has disturbed the soundness of that assessment. Therefore, Connecticut precedent militates against recognizing a legal duty in the present case. Consistent with Jarmie , I next consider a classic duty analysis focused on the foreseeability of the alleged harm. Id., at 594-98, 113 A.3d 932. I agree with the majority's observation that Jarmie left open the possibility that a duty may exist in a case where the victim is identifiable, and I also agree with the majority that, construing the complaint in the present case in a light most favorable to sustaining its sufficiency, the plaintiff was identifiable. Whereas the plaintiff in Jarmie was neither an identifiable victim nor a member of an identifiable class of victims as a general motorist who might come in close proximity to a vehicle operated by the patient following her diagnosis; id., at 597-98, 113 A.3d 932 ; the patient in the present case explained to the defendant that he had sought STD testing for the benefit of his new, exclusive girlfriend, the plaintiff, thus making her identifiable to the defendant. Our analysis in Jarmie did not, however, hinge solely on the issue of foreseeability. We noted that "[a] simple conclusion that the harm to the plaintiff was foreseeable . cannot by itself mandate a determination that a legal duty exists." (Internal quotation marks omitted.) Id., at 590, 113 A.3d 932. Considerations of foreseeability must be tempered by the reluctance in Connecticut precedent to extend the duties of health care providers to nonpatient third parties and the weight of public policy considerations, which militate against recognizing a duty in the present case. Our final consideration in Jarmie was whether public policy considerations favored or disfavored recognition of a duty. In addressing public policy concerns, we considered the purposes of tort compensation and "four specific factors to be considered in determining the extent of a legal duty as a matter of public policy.... (1) the normal expectations of the participants in the activity under review; (2) the public policy of encouraging participation in the activity, while weighing the safety of the participants; (3) the avoidance of increased litigation; and (4) the decisions of other jurisdictions." (Internal quotation marks omitted.) Id., at 603, 50 A.3d 802. "[T]he fundamental policy purposes of the tort compensation system [are] compensation of innocent parties, shifting the loss to responsible parties or distributing it among appropriate entities, and deterrence of wrongful conduct . It is sometimes said that compensation for losses is the primary function of tort law . [but it] is perhaps more accurate to describe the primary function as one of determining when compensation [is] required.... An equally compelling function of the tort system is the prophylactic factor of preventing future harm . The courts are concerned not only with compensation of the victim, but with admonition of the wrongdoer.... [I]mposing liability for consequential damages often creates significant risks of affecting conduct in ways that are undesirable as a matter of policy. Before imposing such liability, it is incumbent upon us to consider those risks." (Citations omitted; internal quotation marks omitted.) Id., at 599-600, 50 A.3d 802. With regard to the compensation of innocent parties, individuals like the plaintiff in the present case may well be covered by public or private health insurance policies, so it is not necessarily the case that the plaintiff, or others in her position, will be left without compensation. Additionally, as we observed in Jarmie , "to the extent an injured party may not be covered by a . health insurance policy, the financial cost to victims . does not necessarily outweigh the impact of the proposed duty on thousands of physician-patient relationships across the state and the potentially high costs associated with increased litigation ." Id., at 601, 50 A.3d 802. As for the deterrence of wrongful conduct, if, as the majority concludes, the duty owed to the plaintiff is the same duty owed to the patient-namely, the accurate reporting of STD testing results-then "expanding the liability of health care providers would not reduce the potential for harm because health care providers would be required to do no more than they already must do to fulfill their duty to patients." Id., at 601-602, 50 A.3d 802. Finally, the same concerns we voiced in Jarmie concerning interference with the physician-patient relationship and an increase in litigation are present in this case, and are discussed more fully subsequently in this dissenting opinion. I now move to the four specific factors discussed in Jarmie . "Starting with the expectations of the parties, long established common-law principles hold that physicians owe a duty to their patients because of their special relationship, not to third persons with whom they have no relationship. Furthermore, there is no state statute or regulation that imposes a duty on health care providers to warn a patient for the benefit of the public." Id., at 603-604, 50 A.3d 802. It is unlikely that a person harmed in the manner that this plaintiff was harmed would expect to be compensated by the physician, with whom he or she has no special relationship, in light of the privileged status of the physician-patient relationship and the common-law protections granted to physicians. Consequently, the normal expectations of the parties weigh against recognition of a duty in the present case, as they did in Jarmie . Turning to the public policy of encouraging participation in the activity under review, recognizing a duty of care under the circumstances of this case "would be inconsistent with the physician's duty of loyalty to the patient, would threaten the inherent confidentiality of the physician-patient relationship and would impermissibly intrude on the physician's professional judgment regarding treatment and care of the patient." Id., at 606, 50 A.3d 802. Indeed, "[u]nlike most duties, the physician's duty to the patient is explicitly relational: physicians owe a duty of care to patients . Mindful of this principle, we have recognized on more than one occasion the physician's duty of undivided loyalty to the patient . and the patient's corresponding loyalty, trust and dependence on the professional opinions and advice of the physician.... Undivided loyalty means that the patient's well-being must be of paramount importance in the mind of the physician. Indeed, this is the foundation for the patient's reciprocal loyalty, trust and dependence on the physician's medical treatment and advice. Consistent with this view, we have stated that, [a]s a matter of public policy . the law should encourage medical care providers . to devote their efforts to their patients . and not be obligated to divert their attention to the possible consequences to [third parties] of medical treatment of the patient.... It is . the consequences to the patient, and not to other persons, of deviations from the appropriate standard of medical care that should be the central concern of medical practitioners.... "Extending a health care provider's duty also would threaten the confidentiality inherent in the physician-patient relationship because lawsuits alleging a breach of the duty would compel the use of confidential patient records by defending physicians. The principle of confidentiality lies at the heart of the physician-patient relationship and has been recognized by our legislature. General Statutes § 52-146o was enacted in 1990; see Public Acts 1990, No. 90-177; to address the need to protect the confidentiality of communications in order to foster the free exchange of information from patient to physician . The statute provides that a health care provider shall not disclose patient information in their files without the patient's explicit consent. See General Statutes § 52-146o (a). Thus, when a patient decides to bring a claim against a health care provider, the patient makes a purposeful decision to waive confidentiality.... Subsection (b) (2) of § 52-146o, however, contains an exception whereby patient consent is not required for the disclosure of communications or records by a health care provider against whom a claim has been made. Consequently, if [an injured third party] files an action against the health care provider of [a patient], records containing the patient's medical history will very likely be disclosed in court and subjected to public scrutiny. The effect of expanding the duty of a health care provider in this fashion cannot be underestimated. Physician-patient confidentiality is described as a privilege . When that confidentiality is diminished to any degree, it necessarily affects the ability of the parties to communicate, which in turn affects the ability of the physician to render proper medical care and advice. Accordingly, it is not in the public interest to extend the duty of health care providers to third persons in the present context because doing so would jeopardize the confidentiality of the physician-patient relationship." (Citations omitted; emphasis altered; footnote omitted; internal quotation marks omitted.) Jarmie v. Troncale , supra, 306 Conn. at 606-609, 50 A.3d 802. Connecticut state law reflects additional patient confidentiality concerns that militate against the recognition of a duty in the present case. State law demonstrates the overarching primacy of patient confidentiality, even in this context of infectious disease. Connecticut has a communicable disease reporting system and a list of specific diseases and conditions that physicians are required to report to public health officials. See Regs., Conn. State Agencies § 19a-36-A2 (requiring Commissioner of Public Health to issue list of reportable diseases); see also Connecticut Department of Public Health, "Reportable Diseases, Emergency Illnesses and Health Conditions, and Reportable Laboratory Findings Changes for 2019," 39 Conn. Epidemiologist 1 (2019) (list of reportable diseases). The reporting is made by physicians to the public health authority, but it is government officials who may act on the information and intervene with any third parties, not the reporting physician. See General Statutes § 19a-215 (d). Put differently, the physician has no statutory duty vis-à-vis any third party beyond merely reporting the disease or condition to the appropriate authority. Another instructive example of the legislature's concern for confidentiality can be seen in Connecticut's HIV laws, upon which the majority relies for the proposition that physicians' public health obligations may transcend their duties to individual patients, observing that the state "permit[s] physicians to warn, or to disclose confidential patient information for the purpose of warning, a known partner of a patient who has been diagnosed with an HIV infection or related disease." The HIV statute is protective of confidentiality insofar as it does not permit a physician to directly inform a sexual partner about a patient's HIV test results under circumstances similar to this case. See General Statutes § 19a-584 (b) (physician may only directly inform known partner if both partner and patient are under physician's care or if patient has requested it). Although the majority's opinion does not impose a duty to warn on physicians under the circumstances of this case, the overarching emphasis placed on confidentiality by the legislature, including the legislature's decision not to impose further statutory duties on physicians to warn under similar circumstances, coupled with the threat that confidential records may be disclosed in litigation without the patient's consent, suggest that imposition of a duty under the circumstances of this case is incongruous with the legislature's repeated emphasis on patient confidentiality. Put plainly, recognizing a duty under the circumstances of this case endangers participation in the activity under review because it interferes with physicians' duty of loyalty to their patients and threatens the sanctity of physician-patient confidentiality. Moving to the avoidance of the increased risk of litigation, the Department of Public Health has published STD reporting statistics for 2015 that indicate approximately 13,269 reported cases of Chlamydia, 2,092 reported cases of Gonorrhea, and 99 reported cases of Syphilis that year. Connecticut Department of Public Health, "Chlamydia, Gonorrhea, and Primary and Secondary Syphilis Cases Reported by Town," (2015), available at https://portal.ct.gov/-/media/Departments-and-Agencies/DPH/dph/infectious_diseases/std/Table12015pdf (last visited July 11, 2019). Assuming that each of those individuals was in an exclusive sexual relationship, there would have been 15,460 additional individuals to whom physicians may have owed a duty under the majority's opinion in the present case. This increase in the risk of litigation threatens more than just the pocketbooks of physicians and their insurers; it threatens patient care. A likely consequence of this expansion of liability is that physicians will be reticent to discuss their patients' romantic relationships or sexual behavior in an attempt to avoid identifying third parties to whom the physician could be liable, despite such an approach not necessarily being in the patient's best interests. This reaction, referred to as "defensive medicine" in medical literature, involves physicians altering treatment and advice as part of an effort to avoid liability, and it is considered to have very negative and costly effects on the provision of health care. See J. Greenberg & J. Green, "Over-testing: Why More Is Not Better," 127 Am. J. Med. 362, 362-63 (2014); M. Mello et al., "National Costs of the Medical Liability System," 29 Health Aff. 1569, 1572 (2010); see also B. Nahed et al., "Malpractice Liability and Defensive Medicine: A National Survey of Neurosurgeons," (2012), p. 4, available at https://www.ncbi.nlm.nih.gov/pmc/articles/PMC3382203/pdf/pone.0039237.pdf (last visited July 11, 2019). An additional concern is the effect that an expansion of the potential liability of physicians is likely to have on malpractice insurance rates. Connecticut health care professionals cannot obtain a license to practice medicine without showing that they have adequate malpractice insurance. See General Statutes § 20-11b (a). If insurance premiums for physicians increase to an unaffordable level, physicians may leave the practice of medicine or, at the least, stop offering the services that instigate such high premiums. An instructive example of this concern is the early 2000s crisis in the field of obstetrics. "Soaring malpractice insurance costs led to the closings of trauma and maternity wards across the country [and] forced many obstetricians to give up obstetrics, restrict services, deny certain high-risk patients, become consultants, relocate, retire early, or abandon their practices all together." (Footnote omitted.) S. Domin, " Where Have All the Baby-Doctors Gone? Women's Access to Healthcare in Jeopardy: Obstetrics and the Medical Malpractice Insurance Crisis," 53 Cath. U. L. Rev. 499, 499-500 (2004). The threat of something similar happening in Connecticut requires that we exercise caution, particularly in an area where the potential consequences are such that the legislature is in a better position to address these concerns than our courts are. Indeed, this is an issue on which the legislature has previously acted. As we observed in Jarmie , part of the impetus behind the enactment of our medical malpractice statute, § 52-190a, was "to put some measure of control on what was perceived as a crisis in medical malpractice insurance rates." (Internal quotation marks omitted.) Jarmie v. Troncale , supra, 306 Conn. at 591, 50 A.3d 802. One such measure of control, the requirement that an opinion letter issued by a similar health care provider be attached to a medical negligence complaint, was suggested by the General Assembly's Legislative Program Review and Investigations Committee after it conducted hearings following a significant increase in medical malpractice insurance rates in the early 2000s. See Legislative Program Review and Investigations Committee, Connecticut General Assembly, Medical Malpractice Insurance Rates (December 2003). Because the majority's opinion recognizes a duty to potentially thousands of new plaintiffs, which is very likely to have an impact on medical malpractice rates, this court should not throw caution to the wind and take such action when the legislature is in a much better position to investigate the issue, and make findings and recommendations on the subject, as it has done in similar circumstances. Given that the legislature has acted extensively in the areas of both STD reporting and to provide physicians relief from professional liability, I am hesitant to usurp its "primary responsibility for formulating public policy" by recognizing a new duty to third party nonpatients. (Internal quotation marks omitted.) Mayer v. Historic District Commission , 325 Conn. 765, 780, 160 A.3d 333 (2017). Indeed, in Sic v. Nunan , 307 Conn. 399, 410, 54 A.3d 553 (2012), this court recognized that primary responsibility for public policy in declining to impose a duty on motorists stopped at an intersection to keep their wheels pointed straight, emphasizing that the legislature had "not seen fit to enact any statutes" in that respect. Thus, I disagree with the majority's decision to adopt a duty in the present case that will expand the pool of potential litigants, increase the risk of litigation, and threaten access to and the quality of patient care in this state-in contravention of legislative action on point. Finally, turning to decisions of other jurisdictions, I note that there is no clear trend in our sister courts that supports usurping the legislature's responsibility for public policy and creating the duty that the majority recognizes in the present case. To be sure, there is case law that supports the decision of the majority. See Reisner v. Regents of the University of California , 31 Cal. App. 4th 1195, 1197-201, 37 Cal. Rptr. 2d 518 (1995) (physician owed duty to unknown and unidentifiable sexual partner of patient to warn patient or her parents of patient's HIV positive status), review denied, California Supreme Court, Docket No. S045274 (May 18, 1995); C.W. v. Cooper Health System , 388 N.J. Super. 42, 58-62, 906 A.2d 440 (App. Div. 2006) (hospital and its physicians owed direct duty to unknown and unidentifiable sexual partner of patient to warn patient of patient's HIV positive status); DiMarco v. Lynch Homes-Chester County, Inc. , 525 Pa. 558, 563-64, 583 A.2d 422 (1990) (physicians owed duty to sexual partner of patient with hepatitis not to give erroneous advice to patient because class of foreseeable victims included anyone who was intimate with patient); Estate of Amos v. Vanderbilt University , 62 S.W.3d 133, 138 (Tenn. 2001) (university medical center owed duty to future husband and future daughter of HIV positive patient to warn patient so she might take precautionary measures preventing transmission of HIV because future husband and future daughter were within class of identifiable persons within zone of danger). I find, however, that sister state cases declining to recognize a third party duty for physicians are more consistent with our state's public policy and precedent. See, e.g., Hawkins v. Pizarro , 713 So. 2d 1036, 1037-38 (Fla. App.) (physician owed no duty to future spouse of patient when physician improperly advised patient she tested negative for hepatitis C ), review denied, 728 So. 2d 202 (Fla. 1998) ; Dehn v. Edgecombe , 384 Md. 606, 622, 865 A.2d 603 (2005) (physician owed no duty to wife of patient when physician negligently failed to provide patient with minimally acceptable medical care in connection with a vasectomy ); Herrgesell v. Genesee Hospital , 45 App. Div. 3d 1488, 1490, 846 N.Y.S.2d 523 (2007) (physician owed no duty to daughter of patient when daughter contracted hepatitis B from patient because physician does not owe duty to nonpatient who contracts illness from patient, even if physician knows nonpatient cares for patient or is family member of patient); Candelario v. Teperman , 15 App. Div. 3d 204, 204-205, 789 N.Y.S.2d 133 (2005) (physician owed no duty to daughter of patient when daughter contracted hepatitis C, even though physician was aware daughter was caring for patient); D'Amico v. Delliquadri , 114 Ohio App. 3d 579, 581-83, 683 N.E.2d 814 (1996) (physician owed no duty to girlfriend of patient when girlfriend contracted genital warts from patient after defendant cared for and treated patient). Consequently, the decisions of our sister courts demonstrate no clear trend on the broader recognition and extent of physicians' third party duties, let alone the specific duty that the majority recognizes in the present case. Accordingly, I conclude, consistent with Jarmie v. Troncale , supra, 306 Conn. 578, 50 A.3d 802, that the defendant did not owe the plaintiff, who was not his patient, a duty of care in the present case. Given the potential ramifications of recognizing such an expanded duty of care, I would leave that potential expansion of liability to the legislature-which is better equipped than this court to make the public policy findings attendant to that expansion of liability. See, e.g., State v. Lockhart , 298 Conn. 537, 574-75, 4 A.3d 1176 (2010) (declining to require recording of custodial interrogations and deferring to legislature because "it is in a better position to evaluate the competing policy interests at play in developing a recording requirement in that it can invite comment from law enforcement agencies, prosecutors and defense attorneys regarding the relevant policy considerations and the practical challenges of implementing a recording mandate"). Accordingly, I conclude that the trial court properly granted the defendant's motion to strike. Because I would affirm the judgment of the trial court, I respectfully dissent. The plaintiff appealed to the Appellate Court from the trial court's judgment, and we transferred the appeal to this court pursuant to General Statutes § 51-199 (c) and Practice Book § 65-1. We note that the defendant could have filed a request to revise; see Practice Book § 10-35 ; in order to separate out and separately address the plaintiff's medical malpractice and common-law negligence claims, but did not do so. As we discuss in part II of this opinion, the plaintiff's allegations may fit most neatly under the rubric of negligent misrepresentation. Because neither party has addressed the issue, however, we need not determine whether the allegations in the complaint are legally sufficient to plead a cause of action in negligent misrepresentation under the law of this state. It is true that there are rare circumstances in which expert testimony may not be necessary to establish that medical malpractice has occurred, such as when a surgeon leaves a surgical implement inside a patient after completing an operation. Such gross negligence may be assessed by a jury without reference to the prevailing standard of professional care. See, e.g., Squeo v. Norwalk Hospital Assn. , 316 Conn. 558, 580, 113 A.3d 932 (2015). This is not such a case because, among other reasons, the alleged error did not involve a failure on the part of the defendant to exercise that degree of professional skill or judgment that a reasonably prudent health care provider would have exercised under the circumstances. It is not clear from the complaint whether Smith allegedly told the defendant the plaintiff's actual name or simply indicated that he had an exclusive girlfriend for whose benefit he was seeking STD testing. Our analysis would be the same regardless of whether the plaintiff was actually identified to the defendant by name or merely remained identifiable on the basis of Smith's description of her as his exclusive girlfriend. The trial court determined, and we agree, that a jury reasonably could find that "it is foreseeable that a sexual partner of a patient who erroneously had been told that he did not suffer from any STDs might contract the STD with all of the health related consequences of such an illness." We granted permission for the following groups to submit amicus briefs: the Connecticut Trial Lawyers Association, in support of the plaintiff; and the American Medical Association, the Connecticut Hospital Association, and the Connecticut State Medical Society, in support of the defendant. We emphasize that the question of negligent misrepresentation is not before us, and we express no opinion as to whether Connecticut law recognizes a third-party cause of action in negligent misrepresentation against attorneys, accountants, auditors, or medical professionals. See footnote 3 of this opinion. Our point is simply that the concerns that the defendant and the dissent raise regarding potentially limitless liability are the same concerns that have been raised, and satisfactorily addressed, in various professional contexts across many jurisdictions. Neither party advocates that we overrule or reconsider Jarmie . The dissent, while conceding that this remains an open question under Jarmie , fails to note that, in Jarmie , we specifically distinguished cases from other jurisdictions that imposed third-party liability on physicians in the context of failing to warn about communicable diseases. Indeed, aside from one brief footnote, the dissent, which quotes heavily from Jarmie , barely acknowledges that the present case raises a fundamentally different question-the third-party liability of a medical professional with respect to the misreporting of a sexually transmitted disease-than that at issue in Jarmie or any of our previous cases. As we explain more fully hereinafter, it is beyond cavil that both the law and the medical profession impose broader and different duties on physicians, duties that extend beyond the confines of the physician-patient relationship, with respect to the diagnosis of STDs and other infectious diseases. Of course, it is not unreasonable to take the position, as the dissent has, that, for reasons of public policy, we never should impose on physicians any duties beyond those established by the legislature. We think it would be a mistake, however, for this court to simply conclude that Jarmie disposes of the issue presented in this case without carefully evaluating the fundamentally distinct considerations that characterize the context of communicable diseases. We recognize that there could be cases in which a dispute arises over whether the plaintiff is in fact the individual who was identifiable as a potential victim prior to the occurrence of negligence-if, for example, the defendant had argued that the plaintiff was not in fact the exclusive girlfriend of whom he was made aware when Smith sought STD testing. Because the defendant has not made that argument in the present case, for present purposes, the identity of the plaintiff as the identifiable victim is not in question. If it were, the question of identity would, of course, be a question of fact for the fact finder. In Jarmie , we also relied on the fact that the defendant physician had not undertaken any affirmative action that placed the plaintiff at risk. Jarmie v. Troncale , supra, 306 Conn. at 624, 50 A.3d 802. In the present case, however, the plaintiff has alleged that the defendant affirmatively informed Smith that he was free of STDs, knowing that she might become intimate with Smith in reliance on that information. We are not persuaded by the efforts of the dissent to distinguish Squeo . The dissent contends that Squeo is different because the claim in that case sounded in medical malpractice rather than ordinary negligence. See footnote 2 of the dissenting opinion. This argument proves too much. The entire dissent is predicated on the concern that any recognition that physicians have duties to third parties will compromise the sanctity of the physician-patient relationship, jeopardize the confidentiality of patient records, promote unnecessary defensive medicine, and bring about higher insurance rates and health care costs, driving doctors out of practice and adversely affecting patient care. As we have explained, however; see part I B of this opinion; medical malpractice claims are those that go to the core of the physician-patient relationship: physicians are sued in their capacities as medical professionals, on the basis of the specialized medical care of a patient, involving the exercise of medical judgment. If nonpatient third parties can have standing to prosecute claims of that sort, as Squeo says they can, then, a fortiori, allowing them to bring claims sounding in ordinary negligence need not intrude on the sanctity of the physician-patient relationship. And, if our decision in Squeo has not resulted in the parade of horribles that the dissent invokes (and which are, in essence, the very same horribles that the defendants and certain of the amici in Squeo invoked); see Squeo v. Norwalk Hospital Assn. , supra, 316 Conn. at 575-77, 113 A.3d 932 ; then we can have some reassurance that the alarmist warnings in the present case will be no more prescient. One sister state court also has recognized a third-party duty to the spouse of a hospital employee who was not informed that he had been exposed to the human immunodeficiency virus (HIV), an STD, in the line of work. See Vallery v. Southern Baptist Hospital , 630 So. 2d 861, 862, 868-69 (La. App. 1993), cert. denied, 634 So. 2d 860 (La. 1994). But see Doe v. Pharmacia & Upjohn Co. , 388 Md. 407, 409-10, 879 A.2d 1088 (2005) (company that cultivated and harvested HIV cultures for incorporation into test for HIV antibodies owed no duty of care to spouse of employee who tested positive for HIV following workplace exposure). Most of the cases on which the dissent relies address unrelated questions, such as whether a physician has a duty to third parties to properly advise a patient as to his or her fertility status or potential to infect caregivers. See, e.g., Dehn v. Edgecombe , 384 Md. 606, 616, 865 A.2d 603 (2005) ; Candelario v. Teperman , 15 App. Div. 3d 204, 204-205, 789 N.Y.S.2d 133 (2005). The dissent also relies on Hawkins , which, as we have explained, is wholly consistent with the rule that we announce today. Indeed, the court in Hawkins concluded that a physician's duty to accurately report the results of an STD test does run to identified third parties whose existence is known to the physician and who will foreseeably be infected as a result of the inaccurate report, precisely because the duty is intended in part for the benefit of those parties. See Hawkins v. Pizarro , supra, 713 So. 2d at 1037-38. American Bar Association, Recommendation (August 11-12, 2008) p. 2, available at https://www.cdc.gov/std/ept/onehundredsixteena.authcheckdam.pdf (last visited July 5, 2019). American Bar Association, Recommendation (August 11-12, 2008) p. 2, available at https://www.cdc.gov/std/ept/onehundredsixteena.authcheckdam.pdf (last visited July 5, 2019). We emphasize that our recognition of a third-party duty in the present case is grounded in the unique characteristics of STDs in general and herpes in particular. Specifically, one-if not the primary-reason that patients seek to be tested for diseases such as herpes is to be able to represent to a potential sexual partner that they are disease free. Accordingly, the dissent's fear that physicians will be liable to third parties for the improper diagnosis of conditions such as chicken pox, influenza, or the measles is unfounded. See footnote 9 of the dissenting opinion. The dissent's position appears to be that, if the defendant's duty to the plaintiff is no more than the duty he owes to Smith to accurately report the test results, then holding the defendant liable to the plaintiff as well as Smith "would not reduce the potential for harm because health care providers would be required to do no more than they already must do to fulfill their duty to patients." (Internal quotation marks omitted.) Setting aside the fact that increasing a physician's potential liability will presumably increase his or her incentive to avoid negligent errors of the type alleged, the present case is readily distinguishable from Jarmie , from which the dissent draws the quoted language. In the present case, unlike in Jarmie , which involved an automobile accident caused by the defendant physician's patient, Smith himself is unlikely to have any cause of action against the defendant, insofar as there is no indication that he suffered legally cognizable damages. Accordingly, the defendant will face potential liability only to an identifiable third-party victim such as the plaintiff. We note that "[m]any people in Connecticut are currently without health insurance, usually because they think they [cannot] afford it, are unemployed or are at higher risk due to [preexisting] conditions." Insurance for the Uninsured, available at http://www.cthealthchannel.org/individuals/group-health-insurance/insurance-for-the-uninsured/ (last visited July 5, 2019). In order to prevent the spread of genital herpes, the CDC recommends that individuals take exactly the precautions taken by the plaintiff in the present case: "The surest way to avoid transmission of STDs, including genital herpes, is to abstain from sexual contact, or to be in a long-term mutually monogamous relationship with a partner who has been tested for STDs and is known to be uninfected ." (Emphasis added.) Centers for Disease Control and Prevention, Genital Herpes-CDC Fact Sheet (Detailed Version), available at https://www.cdc.gov/std/herpes/stdfact-herpesdetailed.htm (last visited July 5, 2019). The Department of Public Health also has recognized that encouraging sexually active individuals to seek regular STD testing is a high public health priority. See Connecticut Department of Public Health, Press Release, Department of Public Health Urges Residents To Be Tested for Sexually Transmitted Diseases (April 28, 2010), available at https://portal.ct.gov/DPH/Press-Room/Press-Releases---2010/April-2010/Department-of-Public-Health-Urges-Residents-To-Be-Tested-for-Sexually-Transmitted-Diseases (last visited July 5, 2019). We disagree with the dissent that the legally relevant question is whether "a person harmed in the manner that this plaintiff was harmed would expect to be compensated by the physician ." Clearly, the plaintiff expected there was some reasonable possibility that the defendant would be held accountable, or she would not have brought the present action. Equally clearly, she could not have had a high degree of confidence in a favorable result, as no Connecticut court had previously recognized such a duty. When the issue is, as a question of first impression, whether a previously unrecognized common-law duty should be recognized, it makes little sense (and is circular) for the result to hinge on whether a layperson accurately would predict that an appellate court would rule in her favor. The salient question in this case, rather, is whether a person in the plaintiff's position reasonably would expect that a physician would adopt an STD test result reporting protocol with an eye toward the potentially serious harm that could befall a patient's exclusive sexual partner if a negative result should be erroneously reported. It may well be that the steady march of technology already has rendered purely academic the trial court's concerns, as many patients now are able to view their test results directly through online electronic portals. See Office of the National Coordinator for Health Information Technology, ONC Data Brief No. 40 (April, 2018) pp. 1, 6, available at https://www.healthit.gov/sites/default/files/page/2018-04/HINTS-2017-Consumer-Data-Brief-april-2018.pdf (last visited July 5, 2019) (stating that, as of 2017, 52 percent of individuals were offered online access to their medical records, and that lab results were most frequently accessed information). The dissent speculates that recognizing a third-party duty under these circumstances will lead physicians such as the defendant to engage in costly defensive medicine, which could raise the cost of health care. The dissent does not contend, however, that recognizing such a duty will lead to the unnecessary use of expensive medical tests or other modalities typically associated with defensive medicine. Rather, the defensive medicine that a physician may embrace under these circumstances is the avoidance of asking a patient to identify his or her sexual partner or asking whether he or she is seeking STD testing for the purpose of informing future sexual partners of the results. We think that there is little realistic risk that physicians will alter their standards of care when errors of the sort alleged can be so easily and economically avoided by adopting simple quality control measures and exercising reasonable diligence. In any event, we fail to understand the harm that would result if a physician did not go out of his or her way to specifically identify a patient's sexual partner. We note that herpes may be transmitted by forms of intimate contact other than intercourse. See, e.g., 1 Harrison's Principles of Internal Medicine (A. Fauci et al. eds., 14th Ed. 1998) p. 1085. The dissent posits that our decision could have a significant impact on the health care system because more than 15,000 new STDs are diagnosed in Connecticut each year and, if we assume that each newly infected individual was involved in an exclusive sexual relationship, then their more than 15,000 partners all represent potential plaintiffs. This argument falters on many levels. Not surprisingly, having multiple and/or anonymous sexual partners is among the primary risk factors for contracting STDs. Centers for Disease Control and Prevention, STDs and HIV-CDC Fact Sheet (Detailed Version), available at https://www.cdc.gov/std/hiv/stdfact-std-hiv-detailed.htm (last visited July 5, 2019); see also L. Finer et al., "Sexual Partnership Patterns as a Behavioral Risk Factor for Sexually Transmitted Diseases," 31 Fam. Plan. Persp. 228, 228-30 (1999). By contrast, if an individual is engaged in a truly and mutually monogamous relationship, then he or she is unlikely to contract an STD other than from his or her partner (who would not, in that scenario, be a potential plaintiff in a case such as this). Accordingly, the dissent's assumption that each of the more than 15,000 individuals who contracted an STD in Connecticut in 2015 was involved in an exclusive sexual relationship seems highly implausible. Nor is there any reason to believe that a significant percentage of STD test results are inaccurately reported to the patient. Moreover, we note that, of the more than 15,000 new cases of selected STDs to which the dissent refers, the vast majority of them consist of chlamydia and, to a lesser extent, gonorrhea ; see Connecticut Department of Public Health, STD Statistics in Connecticut, available at http://www.ct.gov/dph/cwp/view.asp?a=3136&q=388500 (last visited July 5, 2019); diseases that, unlike herpes, are readily treatable with antibiotics. See, e.g., E. Moore, supra, pp. 77, 107-109. Accordingly, even for the fraction of new STD cases that might involve an identifiable victim, in a newly exclusive relationship, who would become infected as a result of an erroneous test report, the vast majority would suffer minimal damages and would be unlikely to go to the trouble of bringing a legal action. In sum, there is no reasonable basis for concluding that the present case is anything other than a singularity, let alone a harbinger of thousands of future legal actions. For example, there is no indication that other jurisdictions that have allowed such actions to proceed have experienced a spike in medical malpractice rates, and we are aware of no evidence to support the dissent's warning that such an increase is "very likely" in this state. Both parties have represented that Smith executed authorizations allowing the plaintiff to obtain and use his medical records for purposes of this action. Moreover, as in all cases, trial courts are free to take reasonable measures in mitigation of any such problems. Lest there be any confusion, we emphasize that the existence of a third-party duty with respect to the accurate reporting of STD test results does not hinge on whether a patient and a victim remain romantically involved or whether the patient agrees to cooperate in the victim's legal action. Our point is simply that, as in any legal action, the fact that a particular claim may be difficult to prove from an evidentiary standpoint does not imply that the claim itself is not legally cognizable. I agree with the majority's observation in footnote 3 of its opinion that "the plaintiff's allegations may fit most neatly under the rubric of negligent misrepresentation. Because neither party has addressed the issue, however, we need not determine whether the allegations in the complaint are legally sufficient to plead a cause of action in negligent misrepresentation under the law of this state." I nevertheless respectfully disagree with part II B 1 of its opinion, in which the majority discusses principles of negligent misrepresentation at length in combining them with other tort law principles, in order to create a duty of care that we have not previously recognized in this state. Because I do not agree that principles of negligent misrepresentation support recognizing a direct duty of care owed by physicians to nonpatients, I respectfully disagree with this portion of part II B 1 of the majority's opinion. The majority relies on Squeo v. Norwalk Hospital Assn. , 316 Conn. 558, 113 A.3d 932 (2015), to bolster its argument that Connecticut precedent is "unsettled with respect to the particular question presented here." That case is, however, distinguishable. In Squeo , a case involving a bystander emotional distress claim and medical malpractice, and not ordinary negligence, we only cited to Jarmie to note that our rejection of a bar on a cause of action for bystander emotional distress in the context of medical malpractice was consistent with our rejection of a per se rule barring third-party tort claims in the absence of a physician-patient relationship. Squeo v. Norwalk Hospital Assn. , supra, at 573-74, 113 A.3d 932. Squeo does not disturb our assessment of Connecticut precedent in Jarmie that this court is reluctant to extend the duties of medical professionals to nonpatient third parties. See id., at 580-81, 113 A.3d 932 (concluding that "bystander to medical malpractice may recover for the severe emotional distress that he or she suffers as a direct result of contemporaneously observing gross professional negligence such that the bystander is aware, at the time, not only that the defendant's conduct is improper but also that it will likely result in the death of or serious injury to the primary victim"). Further, the majority's reliance on Squeo illustrates a problem with the majority's efforts to limit this case to the precise circumstances presented. The majority effectively uses Squeo as evidence that we have already stepped through the door left open in Jarmie , and, "if our decision in Squeo has not resulted in the parade of horribles that the dissent invokes . then we can have some reassurance that the alarmist warnings in the present case will be no more prescient." As I argue subsequently in this dissenting opinion, the public policy concerns implicated in the context of STDs apply with equal or greater force to any number of different infectious diseases, a contention the majority disputes. Just as the majority relies on Squeo to support an expansion of liability under the circumstances of the present case, this court may subsequently rely on today's decision as a precedent to support further expansions of liability in other contexts. Because I find the majority's efforts to distinguish STDs from other infectious diseases in the context of the present case unavailing, I see it as unlikely that, in the future, the Connecticut Bar or even the courts of this state will view the precedential value of today's decision as limited to STDs. I disagree with the majority's observation that, despite quoting "heavily" from Jarmie , I "barely [acknowledge]" that the present case raises a different question than the one at issue in Jarmie . I believe my agreement with the majority's observation that Jarmie left open the possibility that a duty may exist in a case where the victim is identifiable is acknowledgment enough that this case cannot be simply disposed of under Jarmie . The majority further states that "it would be a mistake . to simply conclude that Jarmie disposes of the issue presented in this case without carefully evaluating the fundamentally distinct considerations that characterize the context of communicable diseases." I take no issue with that statement. In fact, the standard articulated by Jarmie requires evaluation of policy considerations. The majority and I have each evaluated the policy considerations, and conclude differently as to whether they militate in favor of or in opposition to recognition of a duty in this case. In essence, the majority believes certain policy concerns are so strong that this court should walk through the door left open in Jarmie . I, however, would stop at the threshold of that doorway. I further emphasize that the majority misunderstands this dissent as standing for my belief "that, for reasons of public policy, we never should impose on physicians any duties beyond those established by the legislature." (Emphasis added.) Instead, I take the position that, when, as in the present case, our court is so deeply divided as to whether public policy concerns support recognition of a legal duty, and when the implications of such recognition of a duty may be so vast, the legislature is in a far better position to make such a determination given its institutional advantages with respect to considering and receiving evidence as to matters of public policy. See, e.g., Cefaratti v. Aranow , 321 Conn. 593, 632-33, 141 A.3d 752 (2016) (Zarella, J. , dissenting) (observing that, in deciding whether doctrine of apparent authority or apparent agency should be available to tort plaintiffs, "[i]t is not the role of this court to strike precise balances among the fluctuating interests of competing private groups . such as, on the one hand, people who are similarly situated to the plaintiff . and, on the other hand, hospitals and other health-care institutions," and noting that this "function has traditionally been performed by the legislature, which has far greater competence and flexibility to deal with the myriad complications [that] may arise from the assignment of liability" [citation omitted; internal quotation marks omitted] ); Campos v. Coleman , 319 Conn. 36, 65-66, 123 A.3d 854 (2015) (Zarella, J. , dissenting) ("[T]his court has the authority to change the common law to conform to the times. In a society of ever increasing interdependence and complexity, however, it is an authority this court should exercise only sparingly.... [T]he legislature, unlike this court, is institutionally equipped to gather all of the necessary facts to determine whether a claim for loss of parental consortium should be permitted and, if it should, how far it should extend. The legislature can hold public hearings, collect data unconstrained by concerns of relevancy and probative value, listen to evidence from a variety of experts, and elicit input from industry and society in general. Further, elected legislators, unlike the members of this court, can be held directly accountable for their policy decisions." [Citation omitted; emphasis in original; footnote omitted.] ); Doe v. Hartford Roman Catholic Diocesan Corp. , 317 Conn. 357, 439, 119 A.3d 462 (2015) ("balancing of interests that are accommodated by statutes of limitations" is "factual [matter] within the legislative purview"); State v. Lockhart , 298 Conn. 537, 574, 4 A.3d 1176 (2010) (observing that "determining . parameters" of state constitutional rule requiring recording of custodial interrogations "requires weighing competing public policies and evaluating a wide variety of possible rules" and noting that "such determinations are often made by a legislative body because it is in a better position to evaluate the competing policy interests at play"). Before addressing the precedents of other jurisdictions and public policy considerations, the majority states that, "[i]n Jarmie , after we concluded that Connecticut precedent did not bar the imposition of the duty at issue, we proceeded to look to sister state authority and also to consider whether various policy factors favored the imposition of such a duty." Although I agree that Connecticut precedent did not per se bar the imposition of such a duty, I emphasize that this court left little doubt in Jarmie as to how Connecticut precedent viewed the imposition of similar duties on health care providers. As noted previously, this court explicitly concluded that, "although there is no directly comparable Connecticut case law on which to rely, our precedent, in general, does not support extending the duty of care . because, with one limited exception that does not apply . we repeatedly have declined, in a variety of situations, to extend the duty of health care providers to persons who are not their patients." Jarmie v. Troncale , supra, 306 Conn. at 593, 50 A.3d 802. The majority contends, however, that such confidentiality concerns may be present in other cases, but do not exist in a case like this, in which a plaintiff will ostensibly have full access to the pertinent medical records via the patient, her exclusive romantic partner. But this reasoning would further limit the majority's holding to the alleged facts of this case, meaning that in a nearly identical future scenario, in which all that is different from the present case is that the patient is uncooperative with the plaintiff's action with regard to the disclosure of medical records-such as might happen if the relationship dissolved-there might be no recognition of a duty. I am aware of no Connecticut case law suggesting that our recognition of a duty of care should turn on the alleged willingness of a nonparty patient to have his or her medical records made available in a nonpatient's action sounding in ordinary negligence. Consequently, I respectfully find the majority's response to confidentiality concerns-that such concerns may be present in other cases, but do not exist in the present case-unconvincing. I note that in its discussion of public policy concerns, the majority focuses a great deal of attention on public health concerns, namely, the diagnosis and treatment of infectious diseases. The majority suggests that in the context of such diseases, "a physician's duties and loyalties necessarily must be divided between the patient and other people whom the patient may infect," and "the principle that a physician's duty to protect the broader public health and to help to deter the spread of contagious diseases at times transcends the physician's duty to his or her individual patient has long been codified in federal and state law." The dissenting justice in DiMarco observed that "the dangers of adopting a negligence concept of duty analyzed in terms of scope of the risk or foreseeability are considerable and are to be avoided. These dangers include . the prospect of inducing professionals to narrow their inquiries into the client or patient situation, to the detriment of the client or patient, so as to avoid possible liability toward third parties which might come from knowing 'too much.' " (Footnote omitted.) DiMarco v. Lynch Homes-Chester County, Inc. , supra, 525 Pa. at 565-66, 583 A.2d 422 (Flaherty, J., dissenting). The majority attempts to distinguish these cases as not analogous enough to the precise circumstances of the present case, leaving the majority with a handful of cases it deems worthy of consideration. Even if I were to agree with the majority's winnowing of the list of cases we should consider to be relevant, I would hardly call a four to one majority in favor of the majority's position a convincing consensus among our sister courts, especially when so few courts have weighed in on the precise question presented. Finally, even if I were to agree with the majority's recognition of a direct duty of care on the facts of the present case, which I respectfully do not, the future ramifications of the majority's opinion would nevertheless give me pause. Although the majority repeatedly cautions that its holding is limited and narrow, I nevertheless find this contention troubling because its implications portend just the opposite result. First, although the majority states that its decision is limited strictly to cases involving the diagnosis of STDs, the public policy concerns discussed therein apply with equal or even greater force to any number of different infectious diseases, such as chickenpox, influenza, and measles. It is likely that in cases with identifiable nonpatient third parties, the majority's opinion in this case will be held up as a logically convincing precedent to further extend the potential liability of health care providers. Second, the majority's foreseeability analysis is inherently subjective. What if the physician has awareness of a romantic partner's existence independent of knowledge obtained from the patient, such as through a social relationship? There is little reason why this court's logic would not counsel in favor of recognizing a duty in such a case, concerns of which would be exacerbated should the majority's decision be extended beyond STDs to other infectious diseases, such as influenza. Put differently, the majority's opinion sets a precedent that will easily open the floodgates to a great expansion of potential third party liability for health care providers.

12489232

Edward HAMMER v. Dominic POSTA et al.

Hammer v. Posta

2017-02-14

AC 38194

801

809

155 A.3d 801

155

West's Atlantic Reporter, Third Series

Connecticut Appellate Court

Connecticut

2021-08-27T20:57:14.012355+00:00

Fastcase

Edward HAMMER v. Dominic POSTA et al.

Edward HAMMER v. Dominic POSTA et al. AC 38194 Appellate Court of Connecticut. Argued November 28, 2016 Officially released February 14, 2017 Nicholas Stanisci, for the appellants (defendants). James E. Butler, for the appellee (plaintiff). Lavine, Alvord and Harper, Js.

3703

22040

ALVORD, J. The defendants, Dominic Posta and Leticia Posta, appeal from the judgment of the trial court, rendered after a trial to the court, in favor of the plaintiff, Edward Hammer. After rendering a default judgment against Leticia Posta for her failure to appear, the court found Dominic Posta liable to the plaintiff under General Statutes § 22-357 for injuries caused by the defendants' dog and awarded the plaintiff $30,910.30 in damages and court costs. On appeal, the defendants claim that the court improperly (1) denied the defendant's request for a jury trial, and (2) relied on the arguments of counsel rather than reviewing the medical records that had been admitted as evidence. We affirm the judgment of the trial court. The court reasonably could have found the following facts. On May 19, 2012, the plaintiff was walking his leashed dog, Odie, a twenty-one pound miniature schnauzer, when the defendants' dog, Sarge, a seventy-pound pit bull, came across the street and charged at the plaintiff's dog. The plaintiff grabbed Odie and placed him on his shoulder in an attempt to keep Sarge from harming him. Sarge jumped up and latched his teeth onto Odie's left hind leg, at the base of his tail and back. Although the plaintiff tried to pry Sarge off Odie, he was unsuccessful and was supporting the full weight of both dogs during the attack. Hearing the commotion, a neighbor came over to assist the plaintiff and opened the gate to allow the plaintiff and Odie to enter, thereby separating them from Sarge. The plaintiff took Odie to the VCA Shoreline Veterinary Referral and Emergency Center, where he was treated for his injuries. The veterinary bill totaled $643. The plaintiff, although not bitten by the defendants' dog, suffered injuries to his thumb and back. His medical expenses totaled $3637.45. Additionally, the plaintiff was unable to work for a short period of time. On October 18, 2012, the plaintiff commenced this action against the defendants seeking monetary damages. Although the plaintiff initially claimed his case for a jury trial, he withdrew his jury claim on October 6, 2014. The defendant was a self-represented party until February 17, 2015, at which time counsel filed an appearance on his behalf. That same day, the defendant's counsel filed a motion to continue the date of the scheduled trial from February 18 to April 16, 2015. The court, Bellis, J. , denied the defendant's motion for a continuance. Although there is nothing in the record regarding a further request for a continuance, both parties agree that the defendant's counsel made a verbal request for a continuance of the trial date on February 18, 2015, which the court granted until February 19, 2015. Again, although unsupported by the record, the parties agree that the defendant also verbally requested a jury trial on February 18, 2015, which was denied by the court. The trial proceeded on February 19, 2015. The court, Hon. Edward F. Stodolink , judge trial referee, heard testimony from the plaintiff, the defendant, the Stratford animal control officer, the police officer who responded to the plaintiff's 911 call on the day of the incident, and two neighbors. Additionally, fourteen exhibits were submitted into evidence by the plaintiff, which included the police incident report, the plaintiff's medical records and bills, the veterinary report and bill for Odie's treatment, and photographs of Odie's injuries. At the beginning of the trial, the plaintiff's counsel requested that the court take judicial notice of the plaintiff's life expectancy of 40.4 years. The court did so, after confirming that the defendant's counsel had no objection. After the evidence had concluded, the court heard brief closing arguments by both counsel and then rendered its judgment from the bench. The court's oral decision was as follows: "Having heard the-the testimony of the various witnesses, I've-and through counsel the various exhibits and reports. I did not read them, but I'm sure that they were recited properly by the counsel. Based on that and the evidence I've heard or-or the arguments, I will enter a judgment in favor of the plaintiff and against the defendant." The court then awarded economic damages covering the plaintiff's medical bills, the veterinary bills and the plaintiff's lost wages in the amount of $5080.45. With respect to noneconomic damages, the court stated: "According to the testimony of the plaintiff and the-the recital of the injuries, as the hospital records show, and-and the fact that the [plaintiff] has a life expectancy of forty years and it's indicated that he has continuing chronic pain to the thumb and also to his back, I will award him $25,000 . So, the total is $30,080.45 plus costs." The defendant filed postjudgment motions for a new trial and for remittitur, which were denied by the court after a hearing on May 28, 2015. On July 23, 2015, the defendants' appellate counsel filed separate appearances on behalf of Dominic Posta and Leticia Posta. On July 30, 2015, the defendants filed this appeal. The defendants filed a motion for articulation on November 2, 2015, requesting that the trial court articulate, inter alia, the evidence it relied on in determining that the plaintiff suffered permanent injuries. The court, in its response to the motion, stated: "The injuries to the plaintiff's left thumb and low back that occurred on May 19, 2012, continued to be symptomatic on the date of the hearing in this matter on February 19, 2015, and therefore were found to be permanent." With this background in mind, we now turn to the defendants' specific claims. I The defendants claim that they were denied their state constitutional right to a trial by jury. In support of that claim, the defendants argue that the defendant did not agree to the plaintiff's withdrawal of the jury claim, that the defendant was a self-represented party when the plaintiff withdrew his jury claim, that the defendant's counsel asserted the defendant's right to a jury trial on February 18, 2015, and that the court "had no discretion not to try the case to the jury." The defendants concede that the record does not contain a transcript of the proceeding at which the defendant's counsel verbally requested a jury trial and the trial court denied that request. Accordingly, the defendants seek review pursuant to State v. Golding , 213 Conn. 233, 239-40, 567 A.2d 823 (1989), or to prevail under the plain error doctrine. We conclude that the defendants' claim fails under the first and third prongs of Golding . General Statutes § 52-215 provides in relevant part: "The following-named classes of cases shall be entered in the docket as jury cases upon the written request of either party made to the clerk within thirty days after the return day . civil actions involving such an issue of fact as, prior to January 1, 1880, would not present a question properly cognizable in equity . When, in any of the above-named cases an issue of fact is joined, the case may, within ten days after such issue of fact is joined, be entered in the docket as a jury case upon the request of either party made to the clerk; and any such case may at any time be entered in the docket as a jury case by the clerk, upon written consent of all parties or by order of court. ." General Statutes § 51-239b provides: "In civil actions a jury shall be deemed waived unless requested by either party in accordance with the provisions of section 52-215." Practice Book § 14-10 provides: "All claims of cases for the jury shall be made in writing, served on all other parties and filed with the clerk within the time allowed by General Statutes § 52-215. The jury claim fee shall be paid at the time the jury claim is filed." Under our statutes, certain cases shall be entered in the docket as jury cases upon the written request of either party made to the clerk within thirty days of the return date or within ten days after an issue is joined. Thereafter, a case may be entered on the jury docket by the consent of all of the parties or by an order of the court. Falk v. Schuster , 171 Conn. 5, 7, 368 A.2d 40 (1976). "A party may forfeit the right to a jury trial in a civil case if the right is not asserted in a timely manner, may abandon the right to a jury trial if he or she chooses a forum that does not afford the right to a jury trial, or may waive the right to a jury trial. L & R Realty v. Connecticut National Bank , [246 Conn. 1, 10, 715 A.2d 748 (1998) ]; see Anastasia v. Mitsock , Superior Court, judicial district of New Haven, Docket No. CV-05-4012156-S, 2006 WL 3759402 (December 1, 2006) (42 Conn. L. Rptr. 453, 454 ) (summary of law since 1899 that failure to claim civil action to jury within thirty days of return date or within ten days after an issue of fact has been joined amounts to voluntary and intentional relinquishment of right to jury trial); see also General Statutes § 51-239b and 52-215." Delahunty v. Targonski , 158 Conn.App. 741, 749, 121 A.3d 727 (2015). In the present case, the return date on the complaint is November 20, 2012. The defendants filed their answer on November 23, 2012. Although the plaintiff initially claimed the case to the jury list, he thereafter withdrew the jury claim on October 6, 2014. The plaintiff filed a certificate of closed pleadings and a claim for a court trial on October 21, 2014. At no time did the defendant file his own written claim for a jury trial. The defendants now argue that the defendant had been a self-represented party during that period of time and that he had not agreed to the plaintiff's withdrawal of the jury claim. Because the defendant's counsel made a verbal request for a jury trial on the day of the scheduled trial, the defendants claim that the court "had no discretion not to try the case to the jury." Significantly, the defendants cite no statutory or case law in support of the claim that, under such circumstances, a court is required as a matter of law to grant the request for a jury trial. Moreover, we have no transcript to review that contains the request made by the defendant's counsel or the reasons for the court's denial of that request. Without a transcript, it is not possible to determine whether the defendant acquiesced in the court's ruling or otherwise waived his right to a jury trial. Although the defendants claim the record is adequate for review under Golding , we disagree and conclude that the claim fails under the first prong of Golding . Nevertheless, assuming arguendo that the record is sufficient simply because a request for a jury trial was made and was denied by the court, we conclude that the defendants' claim fails under the third prong of Golding . It is not disputed that the defendant did not claim the case for a jury trial within thirty days of the return date or within ten days after an issue of fact had been joined. We recognize that the plaintiff had claimed the case to the jury list and that there was no reason for the defendant to file a jury claim at that time. When the plaintiff withdrew the jury claim on October 6, 2014, however, the defendant did not object to that withdrawal or file his own jury claim. Instead, the defendant waited until the scheduled date of the trial to orally request a trial by jury. By that time, the court reasonably could have concluded that the defendant's request was untimely and that he had forfeited his right to a jury trial. See Delahunty v. Targonski , supra, 158 Conn.App. at 749, 121 A.3d 727. We therefore conclude that the defendant's rights under the Connecticut constitution were not violated under the circumstances of the present case. II The defendants next claim is that the court improperly relied on the arguments of counsel, rather than reviewing the medical records that had been admitted as evidence, in determining the extent of the plaintiff's injuries and the appropriate amount of damages to be awarded. Specifically, they argue that the court found that the plaintiff's injuries were permanent and awarded damages for the plaintiff's life expectancy without looking at the medical reports. The defendants further claim that the court could not rely solely on the plaintiff's testimony to determine that he had sustained a permanent injury. We disagree. The trial court stated that various exhibits and reports had been admitted into evidence, but that "I did not read them, but I'm sure that they were recited properly by the counsel. Based on that and the evidence I've heard or-or the arguments, I will enter a judgment in favor of the plaintiff ." Those remarks are not reflective of exemplary judicial behavior. It is well established that "the trier [of fact] is bound to consider all the evidence which has been admitted, as far as admissible, for all the purposes for which it was offered and claimed." (Internal quotation marks omitted.) Moye v. Commissioner of Correction , 168 Conn.App. 207, 229, 145 A.3d 362 (2016), quoting Giamattei v. DiCerbo , 135 Conn. 159, 162, 62 A.2d 519 (1948). Nevertheless, although a court "is obligated to give careful consideration to all the evidence . it does not have to read the full text of every exhibit." (Emphasis omitted; internal quotation marks omitted.) Moye v. Commissioner of Correction , supra, at 231, 145 A.3d 362. During the trial in the present case, the plaintiff was questioned extensively by his counsel as to the extent of his injuries, and the defendant's counsel thoroughly cross-examined the plaintiff about those claimed injuries. Both counsel referred to the medical reports during the plaintiff's testimony, and portions of the reports were read into the record. Although inartfully expressed by the court, it is apparent that the court deemed that all relevant information had been presented, and that the court was satisfied that further review of those reports would not have been of any additional benefit. With respect to the defendants' claim that the court could not rely on the plaintiff's testimony alone to conclude that his injuries were permanent, Connecticut case law has long held to the contrary. "Our state courts have recognized that the permanency of an injury is a finding that can be determined by jurors without expert testimony. This principle is based on the recognition by Connecticut courts that jurors are able to evaluate for themselves the testimony of the plaintiff, as well as the nature and duration of the injury, the likelihood of its continuance into the future, and the lack of total recovery by the time of trial. . If a jury has the opportunity to appraise the condition of a plaintiff and its probable future consequence, an award of damages for permanent injury and for future pain and suffering is proper." (Internal quotation marks omitted.) Scandariato v. Borrelli , 153 Conn.App. 819, 828-29 n.5, 105 A.3d 247 (2014). "A trier of facts can conclude, by inference, that an injury will be permanent even though there is no medical testimony expressly substantiating permanency." (Internal quotation marks omitted.) Parker v. Supermarkets General Corp. , 36 Conn.App. 647, 650, 652 A.2d 1047 (1995). In Royston v. Factor , 1 Conn.App. 576, 577, 474 A.2d 108, cert. denied, 194 Conn. 801, 477 A.2d 1021 (1984), this court concluded that the trier in fact could conclude, by inference, that the plaintiff's injury was permanent on the basis that her disability still existed two years after the accident. Here, the trial court, in its articulation, noted that "[t]he injuries to the plaintiff's left thumb and low back that occurred on May 19, 2012, continued to be symptomatic on the date of the hearing in this matter on February 19, 2015, and therefore were found to be permanent." The court, hearing all of the plaintiff's testimony about his injuries and continuing pain, had the opportunity to evaluate the evidence and to determine the credibility of the testimony. "We cannot retry the facts or pass on the credibility of [a] witness." (Internal quotation marks omitted.) Noroton Properties, LLC v. Lawendy , 154 Conn.App. 367, 372, 107 A.3d 980 (2014). For all of the foregoing reasons, the defendants' second claim fails. The judgment is affirmed. In this opinion the other judges concurred. General Statutes § 22-357 provides in relevant part: "If any dog does any damage to either the body or property of any person, the owner or keeper . shall be liable for the amount of such damage, except when such damage has been occasioned to the body or property of a person who, at the time such damage was sustained, was committing a trespass or other tort, or was teasing, tormenting or abusing such dog. . For the purposes of this section, 'property' includes, but is not limited to, a companion animal, as defined in section 22-351a, and 'the amount of such damage', with respect to a companion animal, includes expenses of veterinary care ." General Statutes § 22-351a (a) defines a companion animal as "a domesticated dog or cat that is normally kept in or near the household of its owner or keeper and is dependent on a person for food, shelter and veterinary care, but does not include a dog or cat kept for farming or biomedical research practices." Dominic Posta was represented by counsel at trial. His counsel filed an appearance on his behalf on February 17, 2015, which was one day prior to the scheduled trial. The claims raised in this appeal are addressed to issues that occurred immediately prior to and during the trial, when Leticia Posta was unrepresented. For convenience, references in this opinion to the defendant in the singular are to Dominic Posta, and references to the defendants in the plural are to both Dominic Posta and Leticia Posta. The plaintiff filed a motion for default against Leticia Posta for her failure to appear on February 3, 2015, which was granted by the court clerk on February 10, 2015. On February 19, 2015, the day of trial, the plaintiff's counsel moved the court to render a judgment of default against Leticia Posta on the basis of that default. The court granted the motion. The default judgment against Leticia Posta has never been opened or vacated. The court did not issue a memorandum of decision but, rather, orally rendered judgment from the bench following the closing arguments of counsel. Notice of the court's decision was sent to all parties of record. Article first, § 19, of the Connecticut constitution provides: "The right of trial by jury shall remain inviolate, the number of such jurors, which shall not be less than six, to be established by law; but no persons shall, for a capital offense, be tried by a jury of less than twelve jurors without his consent. In all civil and criminal actions tried by a jury, the parties shall have the right to challenge jurors peremptorily, the number of such challenges to be established by law. The right to question each juror individually by counsel shall be inviolate." Under Golding, "a defendant can prevail on a claim of constitutional error not preserved at trial only if all of the following conditions are met: (1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation . exists and . deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt. In the absence of any one of these conditions, the defendant's claim will fail." (Emphasis in original.) State v. Golding, supra, 213 Conn. at 239-40, 567 A.2d 823, as modified in In re Yasiel R., 317 Conn. 773, 781, 120 A.3d 1188 (2015). Golding is applicable in civil cases as well as in criminal cases. Bruno v. Bruno, 132 Conn.App. 339, 348-49, 31 A.3d 860 (2011) ; Lohnes v. Hospital of Saint Raphael, 132 Conn.App. 68, 79-80, 31 A.3d 810 (2011), cert. denied, 303 Conn. 921, 34 A.3d 397 (2012). "[The plain error] doctrine, codified at Practice Book § 60-5, is an extraordinary remedy used by appellate courts to rectify errors committed at trial that, although unpreserved, are of such monumental proportion that they threaten to erode our system of justice and work a serious and manifest injustice on the aggrieved party." (Internal quotation marks omitted.) Bristol Board of Education v. State Board of Labor Relations, 166 Conn.App. 287, 296, 142 A.3d 304 (2016). We decline to apply this extraordinary remedy under the circumstances of this case. Our determination that the trial court did not commit reversible error under the circumstances of the present case does not mean that we countenance the failure of a trial court to consider all of the relevant evidence submitted by the parties during a judicial proceeding. We reiterate the cautionary instructions that this court provided in Moye v. Commissioner of Correction, supra, 168 Conn.App. at 235, 145 A.3d 362, wherein trial courts are advised: "If a . court concludes that it is not necessary to review certain exhibits in light of the manner in which it has disposed of the claims, it should endeavor to explain what it has not reviewed and why it is not necessary to do so. A court should strive to avoid leaving litigants with the impression that it has failed to discharge its duty or somehow acted unlawfully. Public confidence in our justice system is undermined if parties perceive that a court has not met its obligation to provide them with a full and fair review of their claims. We caution courts not to abrogate their duty to review the evidence admitted at trial or to give litigants the erroneous impression that they have done so."

12489230

DEUTSCHE BANK NATIONAL TRUST COMPANY, Trustee v. Carlos A. PARDO et al.

Deutsche Bank Nat'l Trust Co. v. Pardo

2017-02-14

AC 38127

764

772

155 A.3d 764

155

West's Atlantic Reporter, Third Series

Connecticut Appellate Court

Connecticut

2021-08-27T20:57:14.012355+00:00

Fastcase

DEUTSCHE BANK NATIONAL TRUST COMPANY, Trustee v. Carlos A. PARDO et al.

DEUTSCHE BANK NATIONAL TRUST COMPANY, Trustee v. Carlos A. PARDO et al. AC 38127 Appellate Court of Connecticut. Argued October 26, 2016 Officially released February 14, 2017 Peter V. Lathouris, Stamford, for the appellant (named defendant). Elizabeth T. Timkovich, with whom, on the brief, was Pierre-Yves Kolakowski, Greenwich, for the appellee (plaintiff). Beach, Mullins and Lavery, Js. The listing of judges reflects their seniority status on this court as of the date of oral argument.

3915

23903

LAVERY, J. The defendant Carlos A. Pardo appeals from the denial of his motion to dismiss and motion to open the judgment of strict foreclosure rendered by the trial court in favor of the plaintiff, Deutsche Bank National Trust Company, as Trustee under the Pooling Servicing Agreement relating to IMPAC Secured Assets Corp., Mortgage Pass-Through Certificates, Series 2007-3. He claims that the court improperly (1) denied his motion to dismiss for lack of subject matter jurisdiction, and (2) dismissed, pursuant to General Statutes § 49-15, his motion to open the judgment of strict foreclosure as moot. We conclude that neither of these claims are persuasive and, accordingly, affirm the judgment of the trial court. The following facts and procedural history are pertinent to this appeal. The plaintiff commenced this action for strict foreclosure against the defendant on April 29, 2014. The plaintiff alleged the following facts in its complaint. On April 9, 2007, the defendant executed a promissory note in favor of IMPAC Funding Corporation d/b/a IMPAC Lending Group (IMPAC) in exchange for a loan in the amount of $627,500, which was secured by a mortgage on the defendant's real property located at 123 Jeanne Court in Stamford (property). The mortgage, originally executed in favor of Mortgage Electronic Registration Systems, Inc. (MERS), as nominee for IMPAC, was assigned to the plaintiff on August 30, 2012, by virtue of an assignment of mortgage agreement. The plaintiff is "the holder of [the] note and mortgage." The defendant executed loan modification agreements on May 4, 2010, and October 3, 2012, increasing the unpaid principal balance due under the note. The defendant has defaulted on the note, and the plaintiff has elected to declare the unpaid balance under the note to be due in full and to foreclose the mortgage securing the note. Copies of the note, mortgage, and assignment of mortgage, which named the plaintiff as the assignee, were appended to the complaint as exhibits. On August 8, 2014, the court granted the plaintiff's motion for entry of default against the defendant for failure to appear. On September 3, 2014, the plaintiff filed a motion for a judgment of strict foreclosure. On December 8, 2014, following a hearing, the court granted the plaintiff's motion, rendered a judgment of strict foreclosure, and set January 20, 2015, as the law day. Thereafter, the court granted the plaintiff's motion to open the judgment of strict foreclosure, reset the date of judgment to February 2, 2015, and extended the law day to May 19, 2015. On May 12, 2015, the defendant filed a motion to open the judgment of strict foreclosure, asserting that the plaintiff lacked standing to commence the action, along with a motion to dismiss for lack of subject matter jurisdiction. In support of his motion to dismiss, the defendant argued that the plaintiff was not a " 'holder' " of the note, and thus lacked standing to foreclose the mortgage, because the note was not a "negotiable instrument" within the meaning of General Statutes § 42a-3-104. Specifically, the defendant argued that the note ceased to be an unconditional promise or order to pay under General Statutes § 42a-3-106 (a) because, as pleaded in the complaint, the terms of the note were modified by loan modification agreements executed on May 4, 2010, and October 3, 2012. The loan modifications, the defendant maintained, made the promises and obligations set forth in the original note "subject to or governed by" other writings and, consequently, rendered the original note "conditional" under § 42a-3-106 (a) (ii) and (iii). The defendant did not request a hearing on his motion to open or motion to dismiss prior to the May 19, 2015 law day. Following a hearing on the defendant's motion to open, held on May 26, 2015, the court ordered the parties to submit briefs, and scheduled the motion for further argument at the June 16, 2015 short calendar. At the short calendar, the defendant contended that, notwithstanding § 49-15, which precludes trial courts from opening judgments of strict foreclosure after title to the mortgaged property vests following the running of the law days, the court retained authority to open the judgment because he filed a motion to dismiss challenging the court's subject matter jurisdiction on May 12, 2015, which, he asserted, tolled the running of the May 19, 2015 law day. The court disagreed and, pursuant to § 49-15, dismissed the defendant's motion to open as moot. The court then scheduled the motion to dismiss for argument on a later date and ordered the plaintiff not to transfer title to the property until after the motion was heard. At a hearing held on June 22, 2015, the court denied the defendant's motion to dismiss. The court noted that, at the time it rendered the judgment of strict foreclosure, it had found that the foreclosure documents were in order and that the plaintiff was the holder of the note. The court further found that the note remained a negotiable instrument regardless of the modification agreements and that the plaintiff had standing to foreclose the mortgage. This appeal followed. I The defendant first claims that the court improperly denied his motion to dismiss on the basis of its finding that the plaintiff was a holder of the note with standing to commence this action. Specifically, the defendant argues that the plaintiff was not a holder of the note because the note was not a "negotiable instrument" under § 42a-3-104 (a). We disagree. "Standing is the legal right to set judicial machinery in motion. One cannot rightfully invoke the jurisdiction of the court unless he [or she] has, in an individual or representative capacity, some real interest in the cause of action, or a legal or equitable right, title or interest in the subject matter of the controversy.... [When] a party is found to lack standing, the court is consequently without subject matter jurisdiction to determine the cause.... We have long held that because [a] determination regarding a trial court's subject matter jurisdiction is a question of law, our review is plenary.... In addition, because standing implicates the court's subject matter jurisdiction, the issue of standing is not subject to waiver and may be raised at any time." (Internal quotation marks omitted.) Property Asset Management, Inc. v. Lazarte , 163 Conn.App. 737, 745, 138 A.3d 290 (2016). We will not disturb the court's subordinate factual findings unless they are clearly erroneous, but "our review of the trial court's ultimate legal conclusion and resulting [denial] of the motion to dismiss will be de novo." (Internal quotation marks omitted.) JPMorgan Chase Bank National Assn. v. Simoulidis , 161 Conn.App. 133, 135-36, 126 A.3d 1098 (2015), cert. denied, 320 Conn. 913, 130 A.3d 266 (2016). "Generally, in order to have standing to bring a foreclosure action the plaintiff must, at the time the action is commenced, be entitled to enforce the promissory note that is secured by the property.... Whether a party is entitled to enforce a promissory note is determined by the provisions of the Uniform Commercial Code, as codified in General Statutes § 42a-1-101 et seq.... Under [the Uniform Commercial Code], only a holder of an instrument or someone who has the rights of a holder is entitled to enforce the instrument.... "The plaintiff's possession of a note endorsed in blank is prima facie evidence that it is a holder and is entitled to enforce the note, thereby conferring standing to commence a foreclosure action.... After the plaintiff has presented this prima facie evidence, the burden is on the defendant to impeach the validity of [the] evidence that [the plaintiff] possessed the note at the time that it commenced the . action or to rebut the presumption that [the plaintiff] owns the underlying debt.... The defendant [must] . prove the facts which limit or change the plaintiff's rights." (Emphasis omitted; internal quotation marks omitted.) Property Asset Management, Inc. v. Lazarte , supra, 163 Conn.App. at 746-47, 138 A.3d 290. In the present case, we note at the outset that the plaintiff presented prima facie evidence that it is a holder of the note with standing to commence this foreclosure action. In its complaint, the plaintiff alleged that the defendant executed a mortgage on his property in favor of MERS to secure the underlying note, that MERS assigned the note and mortgage to the plaintiff on August 30, 2012, and that the plaintiff "is the holder of [the] note and mortgage." By alleging that it was the holder of the note and mortgage, the plaintiff also alleged, by implication, that it held the note and mortgage at the time the action was commenced. See GMAC Mortgage, LLC v. Ford , 144 Conn.App. 165, 174, 73 A.3d 742 (2013). Additionally, the plaintiff submitted the note, mortgage, and assignment, which names the plaintiff as assignee of the note and mortgage, as attachments to its complaint. Given those pleadings, the burden shifted to the defendant to "prove the facts which limit or change the plaintiff's rights." (Internal quotation marks omitted.) Property Asset Management, Inc. v. Lazarte , supra, 163 Conn. App. at 747, 138 A.3d 290. The defendant failed to answer the complaint or otherwise appear in this action, and the court, on December 8, 2014, granted the plaintiff's motion for a judgment of strict foreclosure. In denying the defendant's motion to dismiss, which was filed after judgment was rendered, the court found that the foreclosure documents were in order and that the plaintiff was a holder of the note with standing to foreclose the mortgage. The defendant's sole argument on appeal, which the trial court rejected, is a legal one-namely, that the plaintiff cannot be a holder of the note because the note is not a "negotiable instrument" as defined in the Uniform Commercial Code. See Florian v. Lenge , 91 Conn.App. 268, 276, 880 A.2d 985 (2005) (question of whether promissory note meets definition of negotiable instrument is question of law subject to plenary review). General Statutes § 42a-1-201 (21) defines "holder" to mean, inter alia, "[t]he person in possession of a negotiable instrument that is payable either to bearer or to an identified person that is the person in possession ." (Emphasis added.) The note is not a negotiable instrument, the defendant contends, because it was modified by two subsequent loan modification agreements that increased the balance due under the note. The defendant's theory is that, as a result of the modification agreements, the note ceased to be "an unconditional promise or order to pay a fixed amount of money," as is required for a writing to qualify as a negotiable instrument; General Statutes § 42a-3-104 (a) ; because its terms became subject to other writings. In support of this novel proposition, the defendant cites only to § 42a-3-106 (a), which provides in relevant part that "for the purposes of section 42a-3-104 (a), a promise or order is unconditional unless it states . (ii) that the promise or order is subject to or governed by another writing, or (iii) that rights or obligations with respect to the promise or order are stated in another writing...." We reject the contention that the note at issue in the present case was rendered "conditional" under § 42a-3-106 (a) (ii) or (iii) by the defendant's subsequent execution of the two loan modification agreements that increased the balance due under the note. The prefatory language in § 42a-3-106 (a) -"a promise or order is unconditional unless it states"-plainly indicates that in order for subsections (ii) or (iii) to apply, the promise or order to pay must itself contain the reference to the other writing. That is, an unconditional promise or order to pay is not rendered conditional by a modification agreement that is not referenced in the original note. Here, because the note does not state that its terms are subject to any other writing, it is a negotiable instrument subject to the Uniform Commercial Code regardless of the two loan modification agreements. For that reason, the defendant has failed to rebut the evidence in the record demonstrating that the plaintiff was the holder of the note with standing to institute this action. Accordingly, the court properly denied the defendant's motion to dismiss for lack of subject matter jurisdiction. II The defendant next claims that the court improperly dismissed his motion to open the judgment of strict foreclosure as moot. We are not persuaded. "Our determination of whether there is any practical relief that can be afforded the defendant depends on whether the trial court had the authority to grant the defendant's motion to open and, therefore, requires us to interpret the statutory provision governing the opening of strict foreclosure judgments. Statutory construction, in turn, presents a question of law over which our review is plenary." (Internal quotation marks omitted.) First National Bank of Chicago v. Luecken , 66 Conn.App. 606, 610-11, 785 A.2d 1148 (2001), cert. denied, 259 Conn. 915, 792 A.2d 851 (2002). The opening of judgments of strict foreclosure is governed by § 49-15, which provides in relevant part: "Any judgment foreclosing the title to real estate by strict foreclosure may, at the discretion of the court rendering the judgment, upon the written motion of any person having an interest in the judgment and for cause shown, be opened and modified . provided no such judgment shall be opened after the title has become absolute in any encumbrancer ." (Emphasis added.) "[W]hen a foreclosure decree has become absolute by the passing of the law days, the outstanding rights of redemption have been cut off and the title has become unconditional in the [lienor].... The [property owner] has no remaining title or interest ." (Internal quotation marks omitted.) Handsome, Inc. v. Planning & Zoning Commission , 317 Conn. 515, 528, 119 A.3d 541 (2015). Thus, once the law day passes and title vests in the lienor, "no practical relief is available [p]rovided that this vesting has occurred pursuant to an authorized exercise of jurisdiction by the trial court.... A natural corollary of this principle is that a judgment of strict foreclosure may be opened only upon a finding that the court lacked jurisdiction over either the person or the case at the time the judgment of strict foreclosure was entered. Anything less would appear to be in direct contravention of the strictures of § 49-15 (a) and our subsequent case law." (Citation omitted; emphasis omitted; internal quotation marks omitted.) Highgate Condominium Assn., Inc. v. Miller , 129 Conn.App. 429, 435, 21 A.3d 853 (2011). Here, the court rendered the judgment of strict foreclosure on February 2, 2015, and set May 19, 2015, as the law day. The defendant filed his motion to open the judgment on May 12, 2015. Critically, however, the motion was not heard until May 26, 2015, after the law day had passed. "A critical factor to be recognized in connection with a motion to reopen a judgment of strict foreclosure is that the motion must be heard, and not merely filed, prior to the vesting of title." (Internal quotation marks omitted.) Farmers & Mechanics Savings Bank v. Sullivan , 216 Conn. 341, 349, 579 A.2d 1054 (1990) ; see also First National Bank of Chicago v. Luecken , supra, 66 Conn.App. at 611-12, 785 A.2d 1148. The record does not reveal any attempt by the defendant to schedule a hearing on the motion prior to the running of the law day. Therefore, by the time the court heard argument on May 26, 2015, title to the property had vested in the plaintiff and the defendant could not have been affording any practical relief. The court properly denied the defendant's motion to open as moot. The defendant, citing no pertinent authority, contends that title to the property never vested in the plaintiff because he filed a motion to dismiss challenging the court's subject matter jurisdiction on May 12, 2015, which, he argues, triggered an automatic stay that tolled the running of the law days. We disagree. Although this court has recognized that "a finding that the court lacked jurisdiction over either the person or the case" provides a basis for opening a judgment of strict foreclosure after the vesting of title; (emphasis added) Highgate Condominium Assn., Inc. v. Miller , supra, 129 Conn.App. at 435, 21 A.3d 853 ; we have not found any basis in the law for the proposition that a mere challenge to jurisdiction tolls the running of the law days. Indeed, as this court has recognized, § 49-15"was intended to give the court flexibility to accommodate the defendant's changed circumstances subsequent to the original judgment. Nonetheless, it also recognizes the rights of the plaintiff and the need for an orderly foreclosure procedure that necessarily must, at some point, conclude." First National Bank of Chicago v. Luecken , supra, 66 Conn.App. at 614, 785 A.2d 1148 ; see also New Milford Savings Bank v. Jajer , 244 Conn. 251, 260, 708 A.2d 1378 (1998) (emphasizing "duty of the [trial] court [in applying § 49-15 ] to do justice to protect the rights of all the interested parties" [emphasis added] ). The defendant's approach, which would require trial courts to toll the running of the law days upon the mere filing of a motion to dismiss, would produce unnecessary delay and interrupt the orderly disposition of foreclosure proceedings. Accordingly, we decline to adopt it. The judgment is affirmed. In this opinion the other judges concurred. The defendant Ford Motor Credit Company, LLC, named in the complaint as a subsequent encumbrancer with respect to the subject property, is not a party to this appeal. Accordingly, in this opinion we refer to Carols A. Pardo as the defendant. General Statutes § 49-15 (a) (1) provides in relevant part: "Any judgment foreclosing the title to real estate by strict foreclosure may, at the discretion of the court rendering the judgment, upon the written motion of any person having an interest in the judgment and for cause shown, be opened and modified . provided no such judgment shall be opened after the title has become absolute in any encumbrancer...." (Emphasis added.) In his main brief to this court, the defendant also claims that the filing of his motion to dismiss for lack of subject matter jurisdiction tolled the running of the law days, and, therefore, that title to the foreclosed property never vested in the plaintiff. Because the defendant advances this argument as support for his claim that the court improperly dismissed his motion to open the judgment of strict foreclosure, rather than as a separate ground for relief, we address it in part II of this opinion rather than as a distinct claim. General Statutes § 42a-3-104 (a) provides in relevant part that, in order to qualify as a " 'negotiable instrument,' " the instrument must, inter alia, constitute "an unconditional promise or order to pay a fixed amount of money ." General Statutes § 42a-3-106 (a) provides: "Except as provided in this section, for the purposes of section 42a-3-104 (a), a promise or order is unconditional unless it states (i) an express condition to payment, (ii) that the promise or order is subject to or governed by another writing, or (iii) that rights or obligations with respect to the promise or order are stated in another writing. A reference to another writing does not of itself make the promise or order conditional." See footnote 2 of this opinion. The court stated that it "is going to find [that] the court reviewed the documents. The court found that all the documents were in order. It was modified pursuant to the [Uniform Commercial Code] that allows for modification and [the court] denies the motion. The court finds it has subject matter jurisdiction and denies the motion to dismiss." In addition to arguing that the defendant's contention regarding the negotiability of the note is incorrect, the plaintiff maintains that it would have had standing to foreclose the mortgage even if the note were not a negotiable instrument. Because we conclude that the note was a negotiable instrument, we need not address this alternative argument. The official comments to § 3-106 (a) of the Uniform Commercial Code bear out this interpretation. Comment 1 provides in relevant part that "[f]or example, a promissory note is not an instrument defined by Section 3-104 if it contains any of the following statements: 1. 'This note is subject to a contract of sale dated April 1, 1990 between the payee and maker of this note.' 2. 'This note is subject to a loan and security agreement dated April 1, 1990 between the payee and maker of this note.' 3. 'Rights and obligations of the parties with respect to this note are stated in an agreement dated April 1, 1990 between the payee and maker of this note.' . The rationale is that the holder of a negotiable instrument should not be required to examine another document to determine rights with respect to payment." The American Law Institute, Uniform Commercial Code (2014) § 3-106, comment 1, p. 297; see W & D Acquisition, LLC v. First Union National Bank, 262 Conn. 704, 712-13, 817 A.2d 91 (2003) (official commentary of Uniform Commercial Code relevant to interpretation of state statute). Each of those examples presents a situation in which the reference to the collateral document is contained within the promissory note itself. Furthermore, contrary to the defendant's argument on appeal, "this vesting [of title in the plaintiff] has occurred pursuant to an authorized exercise of jurisdiction by the trial court ." (Emphasis omitted; internal quotation marks omitted.) Highgate Condominium Assn., Inc. v. Miller, supra, 129 Conn.App. at 435, 21 A.3d 853. The defendant has not challenged the court's personal jurisdiction over him and, as explained in part I of this opinion, the court had subject matter jurisdiction to hear this action. The defendant makes a vague attempt to compare the filing of a motion to dismiss to the filing of an appeal, which triggers an automatic stay. First, our rules of practice specifically provide that "proceedings to enforce or carry out the judgment or order shall be automatically stayed until the time to file an appeal has expired"; Practice Book § 61-11 (a) ; whereas there is no such rule of practice for the filing of a motion to dismiss. Moreover, the automatic tolling of the law days is necessary in the context of filing an appeal because otherwise defendants would be deprived of their rights to file a timely appeal and to redeem. See Continental Capital Corp. v. Lazarte, 57 Conn.App. 271, 274, 749 A.2d 646 (2000) (noting that setting law day within twenty-day appeal period is improper because "[a] party may not effectively be deprived of the right to appeal within the twenty days by having the law day pass within that time, thereby causing a loss of the right of redemption"). By contrast, the imposition of an automatic stay for the filing of a motion to dismiss does not serve any similar procedural safeguards. Indeed, our case law specifically provides a remedy for defendants who prevail in jurisdictional challenges that are instituted after the passing of the law days. See Highgate Condominium Assn., Inc. v. Miller, supra, 129 Conn.App. at 435, 21 A.3d 853.

12489229

STATE of Connecticut v. ROBERTO Q.

State v. Roberto Q.

2017-02-14

AC 37635

756

764

155 A.3d 756

155

West's Atlantic Reporter, Third Series

Connecticut Appellate Court

Connecticut

2021-08-27T20:57:14.012355+00:00

Fastcase

STATE of Connecticut v. ROBERTO Q.

STATE of Connecticut v. ROBERTO Q. AC 37635 Appellate Court of Connecticut. Argued October 13, 2016 Officially released February 14, 2017 Daniel J. Foster, assigned counsel, for the appellant (defendant). Denise B. Smoker, senior assistant state's attorney, with whom, on the brief, were Maureen Platt, state's attorney, and Amy L. Sedensky, senior assistant state's attorney, for the appellee (state). DiPentima, C. J., and Alvord and Gruendel, Js. In accordance with our policy of protecting the privacy interests of the victims of sexual abuse, we decline to use the victim's name or to identify members of the victim's family through whom the victim's identity may be ascertained. See General Statutes § 54-86e.

4262

26190

GRUENDEL, J. Following a jury trial, the defendant, Roberto Q., was found guilty of one count of sexual assault in the second degree in violation of General Statutes § 53a-71 (a) (1), one count of sexual assault in the third degree in violation of General Statutes § 53a-72a (a) (2), one count of sexual assault in the fourth degree in violation of General Statutes § 53a-73a (a) (1) (B), and one count of risk of injury to a child in violation of General Statutes § 53-21 (a) (2). The defendant's niece, S.A. (victim), was between the ages of twelve and fourteen years old at the time of the assaults. The court rendered judgment in accordance with the jury verdict and sentenced the defendant to a total effective sentence of twenty years incarceration, suspended after ten years, followed by fifteen years of probation. On appeal, the defendant claims that the court improperly instructed the jury on the use of constancy of accusation evidence, and that the court erred by denying his motion for a mistrial after the state inadvertently elicited testimony concerning uncharged prior misconduct by the defendant. The state responds that the court properly instructed the jury on the use of constancy evidence, and that the court issued a curative instruction regarding the uncharged prior misconduct testimony, thereby avoiding the need for a mistrial. We conclude that the court's jury instruction was proper, and that the court did not err in denying the defendant's motion for mistrial. Accordingly, we affirm the judgment of the trial court. The record reveals the following relevant facts and procedural history. The victim was born in November, 1996, in Puerto Rico. She, her mother, sister, and brother moved to Waterbury in 2007. The defendant, who also had lived in Puerto Rico, moved to Waterbury as well. The period of charged misconduct was from June, 2009 to June, 2011. The victim and her family lived in New York City from 2009 until at least April, 2011, before returning to Waterbury. In April, 2011, the victim wrote a journal entry in which she referenced the defendant. Her mother discovered the journal entry in June, 2011, after the family had moved back to Waterbury. About a week later, the victim told her mother that the defendant had touched her body, specifically her vagina, in a sexual manner. She also stated that the defendant had touched her sister, C.A., sexually as well. About a month after the victim's mother read the diary entry, the family held a meeting at the home of the defendant's mother to discuss the victim's allegations. The victim, C.A., their parents, their brother, the defendant, his parents, and his brother attended the meeting. C.A. and her mother testified at trial that when the victim announced that the defendant had been touching her, he became upset and threw a bottle of iced tea against the wall. After the meeting, the victim's mother took the victim and C.A. to the police department to file a report against the defendant. The state filed two informations against the defendant, one alleging offenses related to the victim, and one alleging offenses related to C.A. The court consolidated the cases for trial. At the trial, the victim testified that she often visited the defendant at the Waterbury home he shared with his three children and their mother. The victim also testified that from 2009 to April, 2011, when she was living in New York, she and her sister would sometimes stay overnight at the defendant's house on weekends. After the victim and her family moved back to Waterbury, she was at the defendant's house almost every day until June, 2011, when her mother discovered her journal entry pertaining to the defendant. The victim testified that during these visits the defendant touched her sexually many times in his kitchen and living room. In the kitchen, the defendant would lean against the table, hold her with her back to his chest, and touch her vagina over her clothes and then inside her vagina with his fingers. Afterward, the defendant would ask the victim to forgive him and promise never to do it again. On one occasion, the defendant's neighbor, Joshua Roman, walked into the kitchen while the defendant was touching her. The victim testified that the defendant was touching her breasts when Roman interrupted, but Roman testified that he only witnessed the defendant caressing her back. In the living room, the defendant would have the victim sit in his lap on the couch covered by a sheet while he put his fingers in her vagina. Additionally, the victim testified that, on another occasion, the defendant kissed her and put his fingers inside her vagina while they were in the back seat of his car and his children were in the front seat. C.A. also testified regarding the defendant's conduct. Among other incidents, she testified that the defendant began touching her in a sexual manner when she was six years old and living in Puerto Rico. After C.A. testified as to this alleged misconduct, the court excused the jury and noted that the misconduct at issue was not included in the state's disclosure of uncharged misconduct. When the jury returned, the court instructed the jury to disregard any evidence concerning any alleged incidents involving the defendant and C.A. that took place in Puerto Rico. Prior to the conclusion of the state's evidence, the defendant filed a motion for mistrial. In his motion, the defendant claimed that "the introduction of testimony by the state, through C.A., alleging incidents of sexual contact by the defendant in Puerto Rico resulted in a violation of the defendant's right to due process under the state and federal constitutions, his right to a fair trial, and his right to effective assistance of counsel." Specifically, the defendant asserted that the state failed to give notice of certain allegations of sexual contact between the defendant and C.A. prior to 2009 and, therefore, improperly elicited testimony concerning these allegations. The court denied the motion, concluding that the improper solicitation of testimony on this subject did not rise to the level of denying the defendant a fair trial, specifically noting that the court had sua sponte issued a curative instruction to the jury before any objection by the defendant had been made. In addition to the testimony from the victim and C.A., the jury heard testimony from two constancy of accusation witnesses. The first was Roman, who testified about the incident in the defendant's kitchen where he saw the defendant caressing the victim's back. Roman walked into the living room, where the victim joined him a few minutes later. At that point, he testified that the victim said to him, " 'I told you that he touched me and all that.' " After Roman's testimony, the court instructed the jury on constancy of accusation testimony. The second constancy witness was the victim's mother, who testified that, about a week after she found the victim's diary, the victim told her that the defendant had "touched her in a sexual way." Although C.A. was not a part of that particular conversation, she also told her mother later that same day that the defendant had touched her sexually while they were at his apartment. After the mother's testimony concluded, the court again instructed the jury on constancy of accusation witness testimony. The defendant submitted a request to charge asking the court to instruct the jury that (1) constancy evidence was not to be used as substantive evidence to prove the truth of the complainants' out-of-court statements, and (2) constancy evidence could be used only to determine whether such statements were made. The defendant objected to any language that would have allowed the jury to use constancy of accusation testimony to "bolster" the complainants' credibility or "corroborate" their testimony. The defendant raised this objection before trial in a motion in limine, which was denied, and again orally after the court's limiting instruction with respect to Roman's testimony. After considering the parties' requests to charge, the court gave the following instruction with respect to constancy of accusation evidence: "The complainants testified here in court before you. You may use their testimony as evidence and proof of the facts asserted in that testimony and give it the weight you find is reasonable. "The state offered evidence of out-of-court statements made by the complainants to other persons that the defendant sexually assaulted them. Those persons to whom the state alleges that they made such statements are: as to [the victim], [her mother] and Joshua Roman; by [C.A.] to [her mother] and Joshua Roman. "Under our law, the testimony of these witnesses was limited in its scope to the fact and timing of the complainants' complaints, the time and place of the alleged sexual assaults, and the identity of the alleged perpetrator. Each of these people testified as to the statements the complainants made to each of them regarding the defendant's-the defendant sexually assaulting them. "This evidence is to be considered by you only in determining the weight and credibility you will give the complainants' testimony as it pertains to the charges of sexual assault. This evidence of out-of-court statements by the complainants of a sexual assault against them by the defendant is not to be considered by you to prove the truth of the matter asserted in those out-of-court statements. "In determining whether or not these out-of-court statements corroborate the complainants' testimony in court, you should consider all of the circumstances under which they were made and to whom, and whether the statements made to these persons were or were not consistent with the complainants' testimony in court. "If you find any delay in their reporting the alleged incidents, you may consider such delay and any reason which you may find for such delay in evaluating their testimony given in court. "To the extent that you find what they . have said outside the courtroom is consistent with their testimony in court, you may find their testimony in court to be corroborated or supported with respect to the fact and timing of their complaint, the time and place of the alleged sexual assault, and the identity of the alleged perpetrator. "To the extent that you find that what they have said outside the courtroom is inconsistent with their testimony in court, you may consider the degree of inconsistency which you find, and you may consider the reasons which you may find for the inconsistency, in evaluating their testimony given in court." The defendant objected to the charge to the extent that it differed from his written request and oral requests. This appeal followed. On appeal, the defendant asserts two separate claims. First, he argues that the court erred by instructing the jury that the complainants' allegations were corroborated by the testimony of the two constancy of accusation witnesses, and that this error requires reversal. Second, the defendant argues that the court erred by denying his motion for mistrial after the state elicited testimony from C.A. regarding uncharged prior sexual misconduct by the defendant that had not been disclosed prior to trial. We consider each claim in turn. I The defendant first claims that the court improperly instructed the jury regarding the correct use of constancy of accusation evidence, which is admitted under State v. Troupe , 237 Conn. 284, 304, 677 A.2d 917 (1996), only to prove that a complaint was made, not to prove that the complaint was true. The defendant specifically claims that the jury instructions were improper in light of the preexisting susceptibility of jurors to disregard the subtle distinction between constancy evidence and substantive proof, and the court's use of the word "corroborate." The state responds that it is not reasonably probable that the court's instructions misled the jury. We agree with the state that the court's instructions correctly stated the law and did not mislead the jury. "Our review of [a jury instruction] claim requires that we examine the [trial] court's entire charge to determine whether it is reasonably [probable] that the jury could have been misled . While a request to charge that is relevant to the issues in a case and that accurately states the applicable law must be honored, a [trial] court need not tailor its charge to the precise letter of such a request.... If a requested charge is in substance given, the [trial] court's failure to give a charge in exact conformance with the words of the request will not constitute a ground for reversal.... As long as [the instructions] are correct in law, adapted to the issues and sufficient for the guidance of the jury . we will not view the instructions as improper.... Additionally, we have noted that [a]n [impropriety] in instructions in a criminal case is reversible . when it is shown that it is reasonably possible for [improprieties] of constitutional dimension or reasonably probable for nonconstitutional [improprieties] that the jury [was] misled." (Emphasis added; internal quotation marks omitted.) State v. Daniel W. E., 322 Conn. 593, 610, 142 A.3d 265 (2016). Jury instructions regarding constancy of accusation testimony are nonconstitutional in nature. See, e.g., State v. Rivera , 145 Conn.App. 344, 351-53, 76 A.3d 197 (allegedly improper instruction as to constancy of accusation testimony was not matter of constitutional magnitude), cert. denied, 310 Conn. 962, 83 A.3d 344 (2013) ; State v. Wild , 43 Conn.App. 458, 467, 684 A.2d 720 (failure to give instruction as to constancy of accusation testimony not matter of constitutional magnitude), cert. denied, 239 Conn. 954, 688 A.2d 326 (1996). "A challenge to the validity of jury instructions presents a question of law over which [we exercise] plenary review." (Internal quotation marks omitted.) State v. Bonilla , 317 Conn. 758, 770, 120 A.3d 481 (2015). With respect to the governing legal principles, our Supreme Court concluded in Troupe that "a person to whom a sexual assault victim has reported the assault may testify only with respect to the fact and timing of the victim's complaint; any testimony by the witness regarding the details surrounding the assault must be strictly limited to those necessary to associate the victim's complaint with the pending charge, including, for example, the time and place of the attack or the identity of the alleged perpetrator. In all other respects, our current rules remain in effect. Thus, such evidence is admissible only to corroborate the victim's testimony and not for substantive purposes. Before the evidence may be admitted, therefore, the victim must first have testified concerning the facts of the sexual assault and the identity of the person or persons to whom the incident was reported. In determining whether to permit such testimony, the trial court must balance the probative value of the evidence against any prejudice to the defendant." (Footnote omitted.) State v. Troupe , supra, 237 Conn. at 304-305, 677 A.2d 917. Recently, in State v. Daniel W. E., supra, 322 Conn. at 593, 142 A.3d 265, our Supreme Court considered an argument nearly identical to that of the defendant in the present case. As such, Daniel W. E. is controlling authority for the present case. In Daniel W. E ., the defendant was found guilty following a jury trial of two counts of sexual assault in the first degree in violation of General Statutes § 53a-70 (a) (2) and one count of risk of injury to a child in violation of § 53-21 (a) (2). Id., at 595-96, 142 A.3d 265. The defendant claimed that the trial court improperly instructed the jury on the use of constancy of accusation evidence because the instruction "was reasonably understood by the jury to mean that the constancy evidence in fact corroborated the [victim's] testimony, and the jury could not reasonably distinguish between the corroboration language in the charge to the jury and the instruction that the constancy evidence could not be used as substantive evidence that the defendant [sexually assaulted] the [victim]." (Internal quotation marks omitted.) Id., at 607, 142 A.3d 265. The portion of the jury instructions at issue in that case contained the same operative language as the jury instruction in the present case. Our Supreme Court disagreed with the defendant's argument, and held that the instructions did not mislead the jury. "It is clear from these instructions that the jury was permitted to use the constancy testimony only to corroborate the fact and timing of the victim's out-of-court statements to the two constancy witnesses, as well as any other information necessary to associate the victim's out-of-court statements with the pending charge. The instructions also made clear that, although the jury was permitted to consider the constancy evidence in evaluating the weight and credibility of the victim's testimony, including the reasons for her delay in reporting the abuse to the police, the evidence could not be used as proof of the substance or truthfulness of the statements themselves." (Emphasis in original.) Id., at 612-13, 142 A.3d 265. The court rejected the contention that the jury instructions failed to distinguish between constancy evidence and substantive proof, stating that "the trial court expressly cautioned the jury to use the constancy testimony 'for the limited purpose of corroborating what the [victim] . has testified to in court with respect only to the fact and timing of her complaint, the time and place of the alleged sexual assaults, and the identity of the alleged perpetrator,' " and ultimately holding that "this instruction was sufficient to distinguish between constancy evidence and substantive proof." Id., at 613-14, 142 A.3d 265. In the present case, we conclude that it is not reasonably probable that the court's limiting instructions on constancy evidence misled the jury. This case is virtually indistinguishable from Daniel W. E. on this issue, and we decline to diverge from the court's holding in that case. Accordingly, we conclude that the trial court correctly instructed the jury regarding the limited purpose for which the constancy evidence could be considered. II The defendant also argues that the court erred in denying his motion for mistrial after the state inadvertently elicited testimony by C.A. of prior uncharged misconduct that allegedly occurred in Puerto Rico. Specifically, the defendant asserts that, notwithstanding the court's curative instruction, the testimony was so prejudicial that the jury could not reasonably be presumed to have disregarded it. We disagree. We first set forth our standard of review and the relevant law. "In our review of the denial of a motion for mistrial, we have recognized the broad discretion that is vested in the trial court to decide whether an occurrence at trial has so prejudiced a party that he or she can no longer receive a fair trial. The decision of the trial court is therefore reversible on appeal only if there has been an abuse of discretion." (Internal quotation marks omitted.) State v. Anderson , 255 Conn. 425, 435, 773 A.2d 287 (2001). "If a curative action can obviate the prejudice, the drastic remedy of a mistrial should be avoided." (Internal quotation marks omitted.) State v. Luther , 114 Conn.App. 799, 805, 971 A.2d 781, cert. denied, 293 Conn. 907, 978 A.2d 1112 (2009). "[A]s a general matter, the jury is presumed to follow the court's curative instructions in the absence of some indication to the contrary." State v. Grenier , 257 Conn. 797, 810, 778 A.2d 159 (2001). Where an "evidentiary impropriety is not constitutional in nature, the defendant bears the burden of demonstrating harm." Id., at 806-807, 778 A.2d 159. "[T]he burden is on the defendant to establish that, in the context of the proceedings as a whole, the stricken testimony was so prejudicial, notwithstanding the court's curative instructions, that the jury reasonably cannot be presumed to have disregarded it." State v. McIntyre , 250 Conn. 526, 534, 737 A.2d 392 (1999). In the present case, the court properly weighed all of the factors before concluding, within its broad discretion, that the extreme remedy of a mistrial was unwarranted. In particular, the court noted that the defendant did not object to the improper testimony at the time, and that the court, sua sponte, halted the proceedings and issued a curative instruction to the jury immediately following the testimony. We conclude that the curative instructions were sufficient to overcome any prejudice to the defendant resulting from the proffered testimony, and the court, therefore, did not abuse its discretion in denying the defendant's motion for mistrial. The judgment is affirmed. In this opinion the other judges concurred. In response to a special interrogatory, the jury found that the victim was under sixteen years of age at all relevant times with respect to the four counts of which they found the defendant guilty. The journal entry stated "[a]nd if [my father] didn't believe me with [his cousin] not much chance he's going to believe the thing with Roberto them being brothers ." The jury returned verdicts of not guilty for all counts related to C.A. The instructions were as follows: "The state offered evidence of out-of-court statements made by the complainant, C.A., to Joshua Roman that the defendant sexually assaulted her. Under our law, the testimony of this witness is limited in its scope to the fact and time that the complainants complained. Again, this is related only to that portion of his testimony where he indicated that comments were made to him by C.A., limited to the time and place of the alleged sexual assault and the identity of the alleged perpetrator. This particular portion of the testimony, Mr. Roman's testimony, is to be considered by you only in determining the weight and credibility you will give the complainant's testimony as it pertains to the charges of sexual assault. "This evidence of out-of-court statements made by the complainant, C.A., of a sexual assault against her by the defendant is not to be considered by you to prove the truth of the matter asserted in those out-of-court statements. The complainant C.A. testified here in court before you. You may use her testimony as evidence and proof of the facts asserted in that testimony and give it the weight you find is reasonable. "In determining whether or not these out-of-court statements made by C.A. to Mr. Roman corroborate the complainant's testimony here in court, you should consider all of the circumstances under which they were made and to whom and whether the statements made to these persons, in this particular case Mr. Roman, were or were not consistent with the complainant's testimony given here in court. So, we're talking about that limited portion of the testimony related to comments that were allegedly made to Mr. Roman by C.A. The rest of the testimony is to be considered by you in the normal course." In its final instructions to the jury, the court clarified that Roman's testimony as to the victim's statements also was being offered for constancy of accusation purposes. The court instructed the jury that "[u]nder our law, the testimony of this witness for purposes of the comments made to her by C.A. and [the victim] with respect to the allegations here, is limited in scope. The fact of the timing of the complainants' complaints, the time and place of the alleged assaults, and the identity of the alleged perpetrator. "Each of these individuals, C.A. and [the victim], [their mother] testified as to statements that were made, again, to her by C.A. and [the victim]. "With respect to this portion of the testimony, it is to be considered by you, only in determining the weight and . credibility you will give to the complainants' testimony as it pertains to the charges of sexual assault. "This evidence of out-of-court statements by the complainants, C.A. and [the victim], of the assaults against them by the defendant is not to be considered by you to prove the truth of the matter asserted in those out-of-court statements. "In determining whether or not these out-of-court statements corroborate the complainants' testimony in court, you should consider all of the circumstances under which they were made, to whom, and whether the statements made to these individuals, to this individual in particular, were or were not consistent with the complainants' testimony in court." The jury instruction in Daniel W. E. stated in relevant part: "Under our law, [constancy of accusation evidence] is an exception only permitted in cases alleging a sexual assault and only admitted for the limited purpose of corroborating what the complaining witness [the victim], has testified to in court with respect only to the fact and timing of her complaint, the time and place of the alleged sexual assaults, and the identity of the alleged perpetrator.... "In determining whether or not these out-of-court statements corroborate [the victim's] testimony in court, you should consider all of the circumstances under which they were made and to whom, and . whether the statements made to those persons were or were not consistent with [the victim's] testimony here in court." (Internal quotation marks omitted.) State v. Daniel W. E., supra, 322 Conn. at 606-607, 142 A.3d 265.

12510697

STATE of Connecticut v. Ismail H. ABDUS-SABUR

State v. Abdus-Sabur

2019-06-18

AC 41515

1039

1053

211 A.3d 1039

211

West's Atlantic Reporter, Third Series

Connecticut Appellate Court

Connecticut

2021-08-27T20:58:01.966564+00:00

Fastcase

STATE of Connecticut v. Ismail H. ABDUS-SABUR

STATE of Connecticut v. Ismail H. ABDUS-SABUR AC 41515 Appellate Court of Connecticut. Argued February 11, 2019 Officially released June 18, 2019 Jodi Zils Gagné, Bristol, for the appellant (defendant). Timothy F. Costello, assistant state's attorney, with whom, on the brief, were Maureen Platt, state's attorney, and Cynthia S. Serafini and Don E. Therkildsen, Jr., senior assistant state's attorneys, for the appellee (state). Keller, Prescott and Pellegrino, Js.

5068

31410

PRESCOTT, J. The defendant, Ismail H. Abdus-Sabur, appeals from the judgment of conviction, rendered after a jury trial, of murder in violation of General Statutes § 53a-54a and criminal possession of a firearm in violation of General Statutes § 53a-217 (a) (1). The defendant claims on appeal that (1) there was insufficient evidence to prove beyond a reasonable doubt that he possessed the specific intent to kill, as required for the crime of murder, (2) the trial court improperly denied his request for a third-party culpability instruction, and (3) that the court improperly admitted evidence of his gang affiliation. We disagree and, accordingly, affirm the judgment of the trial court. The facts, as could have been reasonably found by the jury, and procedural history, are as follows. On the evening of January 17, 2014, the defendant was at an apartment on the third floor of a Waterbury housing complex known as "Brick City." The defendant's friends, Arvaughn Clemente and Daniel Clinton, were hosting a house party at the apartment. The defendant's brother, Isa Abdus-Sabur (Isa), and Ryan Curry, Sthalron Freeman, and Katrina Montgomery were also in attendance. Clemente was dating Ja-Ki Calloway, who was also in the apartment. Calloway's father, Kareem Morey, Sr. (victim), rented a second floor apartment in the same complex, where he resided with his adult son, Kareem Morey, Jr. (Kareem). On the evening of January 17, 2014, his other son, Kentrell Morey, was also at the housing complex. That night, Calloway's brother, Kareem learned that Clemente had assaulted Calloway, and became angry. Kareem and Kentrell then presented themselves at the third floor apartment and demanded that Calloway leave the apartment, but she refused. Kareem wanted to fight Clemente for having assaulted his sister. A verbal altercation then ensued between the Morey brothers and the men inside the apartment, which spilled onto the landing outside the apartment. The altercation escalated into a fist fight between a number of the party attendees and the Morey brothers. After the fight ended, the Morey brothers, upset by the altercation, left and walked to a nearby neighborhood to recruit additional people to renew the fight. They also called the victim, who had not been present at the initial altercation, and he informed them that he would return home. When the Morey brothers left, the partygoers returned to the third floor apartment. At this point, Montgomery overheard the defendant mention a gun to the other men at the party. At about 10:30 p.m., the Morey brothers returned to Brick City with four additional men. Around this time, the victim also returned and parked his car on the street outside of the housing complex. The Morey brothers then entered the interior courtyard of Brick City through a passage from the street and climbed the stairs to the landing outside of Clemente and Clinton's third floor apartment. The victim remained standing at ground level in the courtyard near the foot of the stairs. The Morey brothers began kicking Clemente and Clinton's apartment door. Eventually, the door to the apartment opened, but all the lights were off inside the apartment. Shortly thereafter, Kareem heard the "click, click" sound of a gun. The Morey brothers then fled by descending the stairs toward the courtyard. As the Morey brothers retreated down the stairs, the occupants of Clemente and Clinton's apartment emerged onto the third floor landing overlooking the courtyard. Within the crowd on the third floor porch were the defendant, Isa, Clemente, Clinton, Curry, and Freeman. The defendant then began firing a black hand-gun from the railing of the landing toward the people in the courtyard below. By the time the defendant started shooting, the Morey brothers had arrived at the bottom of the stairs, where the victim was standing. When the victim heard the first gunshot, he pushed Kareem out of the way. The victim was then struck in the chest with a .45 caliber bullet. He told his sons that he had been hit and ran out of the courtyard through the passage toward his parked vehicle. The victim was driven to St. Mary's Hospital in Waterbury, where he later died as a result of the gunshot wound to his chest. Following the shooting, the defendant and Isa ran to the defendant's car and left Brick City. The next day, the defendant and Isa pulled up in a sports utility vehicle alongside Kentrell's girlfriend, Zyaira Cummings, while she was walking on a street near Brick City. The defendant then said to Cummings, "they're next," which she interpreted to be a threat against the Morey brothers, whom she then warned about the interaction. On January 18, 2014, the day after the shooting, the defendant fled to Southington. On January 21, 2014, the defendant traveled to New York City. That same day, the police obtained a warrant for his arrest. The defendant eventually turned himself in on January 27, 2014. After a trial by jury, the defendant was convicted of murder and criminal possession of a firearm. The court sentenced the defendant to forty-five years of incarceration for his conviction of murder and two years of concurrent incarceration for his conviction of criminal possession of a firearm, for a total effective sentence of forty-five years of incarceration. This appeal followed. I The defendant claims that there was insufficient evidence to prove beyond a reasonable doubt that he possessed the specific intent to cause the death of the victim. We disagree. The following additional procedural history is relevant to this claim. At the close of the state's evidence, the defendant made a motion for a judgment of acquittal, contending that the evidence was insufficient to prove beyond a reasonable doubt that he intended to cause the death of the victim. Specifically, defense counsel argued that the evidence that the defendant possessed and fired a firearm was insufficient to establish the requisite intent to cause the death of the victim. The court denied the defendant's motion. "The standard of review we apply to a claim of insufficient evidence is well established. In reviewing the sufficiency of the evidence to support a criminal conviction we apply a two-part test. First, we construe the evidence in the light most favorable to sustaining the verdict. Second, we determine whether upon the facts so construed and the inferences reasonably drawn therefrom the [finder of fact] reasonably could have concluded that the cumulative force of the evidence established guilt beyond a reasonable doubt.... "We note that the jury must find every element proven beyond a reasonable doubt in order to find the defendant guilty of the charged offense, [but] each of the basic and inferred facts underlying those conclusions need not be proved beyond a reasonable doubt.... If it is reasonable and logical for the jury to conclude that a basic fact or an inferred fact is true, the jury is permitted to consider the fact proven and may consider it in combination with other proven facts in determining whether the cumulative effect of all the evidence proves the defendant guilty of all the elements of the crime charged beyond a reasonable doubt." (Citation omitted; internal quotation marks omitted.) State v. Perkins , 271 Conn. 218, 246, 856 A.2d 917 (2004). "Because [t]he only kind of an inference recognized by the law is a reasonable one [however] . any such inference cannot be based on possibilities, surmise or conjecture.... It is axiomatic, therefore, that [a]ny [inference] drawn must be rational and founded upon the evidence.... [T]he line between permissible inference and impermissible speculation is not always easy to discern. When we infer, we derive a conclusion from proven facts because such considerations as experience, or history, or science have demonstrated that there is a likely correlation between those facts and the conclusion. If that correlation is sufficiently compelling, the inference is reasonable. But if the correlation between the facts and the conclusion is slight, or if a different conclusion is more closely correlated with the facts than the chosen conclusion, the inference is less reasonable. At some point, the link between the facts and the conclusion becomes so tenuous that we call it speculation. When that point is reached is, frankly, a matter of judgment." (Internal quotation marks omitted.) State v. Reynolds , 264 Conn. 1, 93, 836 A.2d 224 (2003), cert. denied, 541 U.S. 908, 124 S. Ct. 1614, 158 L. Ed. 2d 254 (2004). "Moreover, it does not diminish the probative force of the evidence that it consists, in whole or in part, of evidence that is circumstantial rather than direct.... It is not one fact, but the cumulative impact of a multitude of facts which establishes guilt in a case involving substantial circumstantial evidence... In evaluating evidence, the [finder] of fact is not required to accept as dispositive those inferences that are consistent with the defendant's innocence.... The [finder of fact] may draw whatever inferences from the evidence or facts established by the evidence it deems to be reasonable and logical.... "[A]s we have often noted, proof beyond a reasonable doubt does not mean proof beyond all possible doubt . nor does proof beyond a reasonable doubt require acceptance of every hypothesis of innocence posed by the defendant that, had it been found credible by the [finder of fact], would have resulted in an acquittal.... On appeal, we do not ask whether there is a reasonable view of the evidence that would support a reasonable hypothesis of innocence. We ask, instead, whether there is a reasonable view of the evidence that supports the [finder of fact's] verdict of guilty." (Citation omitted; internal quotation marks omitted.) State v. Perkins , supra, 271 Conn. at 246-47, 856 A.2d 917. "[I]t is well settled that the specific intent to kill is an essential element of the crime of murder. To act intentionally, the defendant must have had the conscious objective to cause the death of the victim.... Because direct evidence of the accused's state of mind is rarely available . intent is often inferred from conduct . and from the cumulative effect of the circumstantial evidence and the rational inferences drawn therefrom.... Intent to cause death may be inferred from the type of weapon used, the manner in which it was used, the type of wound inflicted and the events leading to and immediately following the death." (Internal quotation marks omitted.) State v. Bennett , 307 Conn. 758, 780, 59 A.3d 221 (2013). Finally, "transporting a deadly weapon to the location where that weapon ultimately is used supports an inference of an intent to kill." State v. Otto , 305 Conn. 51, 71, 43 A.3d 629 (2012). Moreover, "an intent to kill can be inferred merely from the use of a deadly weapon on another person." (Emphasis added.) State v. McClam , 44 Conn. App. 198, 210, 689 A.2d 475, cert. denied, 240 Conn. 912, 690 A.2d 400 (1997). "One who uses a deadly weapon upon a vital part of another will be deemed to have intended the probable result of that act, and from such a circumstance a proper inference may be drawn in some cases that there was an intent to kill.... A pistol . or gun is a deadly weapon per se." (Citations omitted; internal quotation marks omitted.) State v. Rasmussen , 225 Conn. 55, 72, 621 A.2d 728 (1993). In the present case, the jury was presented with evidence that the defendant repeatedly shot a firearm into a group of people who were standing together within a close range, striking and killing the victim. Therefore, an intent to kill can be inferred based solely on the defendant's use of a deadly weapon on another person. Moreover, even if Kareem was the intended target, the fact that the defendant struck the victim does not undermine the existence of the necessary specific intent to cause the death of another person. See State v. Gary , 273 Conn. 393, 411-12, 869 A.2d 1236 (2005) (defendant who, under chaotic circumstances, shot bystander rather than intended target possessed intent to kill). "The doctrine of transferred intent operates to render a defendant culpable of the murder of a third person when the defendant causes the death of that third person with the intent to cause the death of someone else.... The principle, which is reflected in the express language of § 53a-54a (a), represents a policy determination by the legislature that a defendant who engages in such conduct is no less culpable than if he had killed his intended victim." (Citations omitted; footnote added.) State v. Courchesne , 296 Conn. 622, 719, 998 A.2d 1 (2010). Furthermore, the events leading to and immediately following the victim's death support a finding that the defendant possessed the intent to kill. The shooting followed an altercation earlier in the night between the partygoers, including the defendant and the Morey brothers. Accordingly, the defendant had a motive to seek retribution. See State v. Gary , supra, 273 Conn. at 407, 869 A.2d 1236 (evidence that defendant had been involved in altercation with intended victim on night of murder, and intended victim had punched defendant, supported inference that defendant had motive to kill). Additionally, there was evidence that the defendant fled the scene directly after the shooting, travelled out of town the next day, and travelled out of state later that week. These facts are indicia of an intent to kill. See State v. Melendez , 74 Conn. App. 215, 223 n.5, 811 A.2d 261 (2002) ("[T]he defendant's fleeing the scene [of the murder] and subsequent flight to Puerto Rico are evidence of his consciousness of guilt. 'We have in the past considered consciousness of guilt evidence as part of the evidence from which a jury may draw an inference of an intent to kill.' "), cert. denied, 262 Conn. 951, 817 A.2d 111 (2003). Finally, there was evidence that the defendant threatened the Morey brothers the day after the murder by stating "they're next" to Cummings. This evidence further supports the conclusion that the defendant had the specific intent to kill. In sum, from the cumulative weight of this evidence, the jury reasonably could have concluded beyond a reasonable doubt that the defendant possessed the specific intent required for murder. Accordingly, we reject the defendant's claim that the trial court improperly denied his motion for a judgment of acquittal. II The defendant next claims that the court improperly denied his request for a third-party culpability instruction. We disagree. The following facts are relevant to this claim. Nunez, who lived in Brick City and was present at the shooting, identified the defendant as the shooter on several occasions during her testimony. Nunez also stated that she did not see anyone other than the defendant with a gun. Nunez was impeached, however, by a prior inconsistent statement that she admitted she had made to her friend, Queyla Martinez, that she did not see the shooter. She also testified that Kareem told her that Clinton was the shooter. At the conclusion of the evidentiary portion of the trial, the court instructed the jury that the testimony of Nunez, Kareem, and Martinez given on December 7, 2016, that related to whether Clinton was the shooter was not substantive evidence in the case but, instead, could be considered only for impeachment purposes. Following closing arguments, but before the court charged the jury, defense counsel, contending that Clinton was the actual shooter on the night of the incident, requested a jury charge on third-party culpability. Specifically, defense counsel relied on testimony from Nunez that Kareem had told her that Clinton was the shooter. The court denied the request for a third-party culpability instruction. After the court charged the jury, defense counsel took an exception to the charge and renewed his request for a third-party culpability charge. The state argued that it would be inappropriate to give such a charge because the only evidence before the jury suggesting that Clinton was the shooter was admitted for impeachment purposes only. The court again declined to instruct the jury on third-party culpability, stating that there must be more than a mere suspicion that Clinton was the shooter, and that there was no substantive evidence that Clinton was the shooter in this case. On appeal, defense counsel conceded during oral argument that there was no evidence regarding Clinton's culpability that was admitted for substantive purposes. Moreover, the defendant does not challenge on appeal the court's decision limiting the testimony to impeachment purposes only. "In determining whether the trial court improperly refused a request to charge, [w]e . review the evidence presented at trial in the light most favorable to supporting the . proposed charge. . A request to charge which is relevant to the issues of [a] case and which is an accurate statement of the law must be given.... If, however, the evidence would not reasonably support a finding of the particular issue, the trial court has a duty not to submit it to the jury.... Thus, a trial court should instruct the jury in accordance with a party's request to charge [only] if the proposed instructions are reasonably supported by the evidence.... "It is well established that a defendant has a right to introduce evidence that indicates that someone other than the defendant committed the crime with which the defendant has been charged.... The defendant must, however, present evidence that directly connects a third party to the crime.... It is not enough to show that another had the motive to commit the crime . nor is it enough to raise a bare suspicion that some other person may have committed the crime of which the defendant is accused.... "The admissibility of evidence of third party culpability is governed by the rules relating to relevancy.... Relevant evidence is evidence having any tendency to make the existence of any fact that is material to the determination of the proceeding more probable or less probable than it would be without the evidence.... Accordingly, in explaining the requirement that the proffered evidence establish a direct connection to a third party, rather than raise merely a bare suspicion regarding a third party, we have stated: Such evidence is relevant, exculpatory evidence, rather than merely tenuous evidence of third party culpability [introduced by a defendant] in an attempt to divert from himself the evidence of guilt.... In other words, evidence that establishes a direct connection between a third party and the charged offense is relevant to the central question before the jury, namely, whether a reasonable doubt exists as to whether the defendant committed the offense. Evidence that would raise only a bare suspicion that a third party, rather than the defendant, committed the charged offense would not be relevant to the jury's determination. A trial court's decision, therefore, that third party culpability evidence proffered by the defendant is admissible, necessarily entails a determination that the proffered evidence is relevant to the jury's determination of whether a reasonable doubt exists as to the defendant's guilt.... "[I]f the evidence pointing to a third party's culpability, taken together and considered in the light most favorable to the defendant, establishes a direct connection between the third party and the charged offense, rather than merely raising a bare suspicion that another could have committed the crime, a trial court has a duty to submit an appropriate charge to the jury." (Citations omitted; emphasis added; internal quotation marks omitted.) State v. Arroyo , 284 Conn. 597, 607-10, 935 A.2d 975 (2007). In the present case, there simply was no evidence that tended to establish a direct connection between Clinton and the charged offense. The defendant cites only to testimony by Nunez that she had told Martinez that she did not know the identity of the shooter, and that she had heard from Kareem that Clinton was the shooter. Importantly, this testimony was not admitted for its truth, but rather only to assess the credibility of the witnesses' testimony. Defense counsel conceded at oral argument before this court that there was no substantive evidence that Clinton was the shooter. See footnote 5 of this opinion. Accordingly, we conclude that the court properly determined that the defendant was not entitled to a jury instruction on third-party culpability. III Finally, the defendant claims that the court abused its discretion by permitting Nunez and Kareem to testify regarding the defendant's gang affiliation. In particular, the defendant argues that this evidence was improperly permitted because it constituted uncharged misconduct and did not fall within one of the exceptions provided by § 4-5 (c) of the Connecticut Code of Evidence. Moreover, the defendant argues that the evidence was unduly prejudicial and that its prejudicial effect outweighed its probative value. We decline to reach this claim because the defendant failed to brief whether the admission of this testimony constituted harmful error. Accordingly, we deem the claim abandoned. The following additional facts and procedural history are relevant to our resolution of this claim. Prior to trial, the state filed a notice of uncharged misconduct evidence, indicating that it intended to present evidence of the defendant's gang affiliation. The defendant objected to admission of such evidence, and the court deferred ruling on the evidentiary issue. Thereafter, prior to the start of trial, the court directed that, until it had ruled on an offer of proof outside the jury's presence, witnesses were not to mention the defendant's gang affiliation. The court stated that it would consider each offer of each witness' testimony individually, and would not make a blanket ruling on the issue. At trial, during Nunez' direct examination, the state asked for the jury to be excused and, outside the jury's presence, notified the court that it anticipated asking Nunez about the defendant's gang affiliation. The state then examined Nunez outside the presence of the jury, where she stated that she had not reported the shooting to the police on the night it occurred because she was afraid "that somebody would do something to [her]." When asked who she meant by "somebody," she replied, "the Bloods." After hearing this proffer, the court ruled that it would allow the examination, but that it would provide a limiting instruction. The jury returned and the prosecutor elicited the proffered testimony from the witness that implied that the defendant was a member of the Bloods. Kareem also testified that the defendant was in a gang. There was a proffer of this testimony outside the presence of the jury before it was admitted. At the request of defense counsel, when the prosecutor questioned the witness he specifically used a transcript of the approved questions from the proffer. We now turn to the relevant law. "Evidence of a defendant's uncharged misconduct is inadmissible to prove that the defendant committed the charged crime or to show the predisposition of the defendant to commit the charged crime.... Exceptions to this rule have been recognized, however, to render misconduct evidence admissible if, for example, the evidence is offered to prove intent, identity, malice, motive, a system of criminal activity or the elements of a crime.... To determine whether evidence of prior misconduct falls within an exception to the general rule prohibiting its admission, we have adopted a two-pronged analysis.... First, the evidence must be relevant and material to at least one of the circumstances encompassed by the exceptions. Second, the probative value of such evidence must outweigh the prejudicial effect of the other crime evidence.... [Because] the admission of uncharged misconduct evidence is a decision within the discretion of the trial court, we will draw every reasonable presumption in favor of the trial court's ruling.... We will reverse a trial court's decision only [if] it has abused its discretion or an injustice has occurred.... "It is well settled that, absent structural error, the mere fact that a trial court rendered an improper ruling does not entitle the party challenging that ruling to obtain a new trial. An improper ruling must also be harmful to justify such relief. . It is a fundamental rule of appellate review of evidentiary rulings that if [the] error is not of constitutional dimensions, an appellant has the burden of establishing that there has been an erroneous ruling [that] was probably harmful to him.... We do not reach the merits of [a] claim [if] the defendant has not briefed how he was harmed by the allegedly improper evidentiary ruling." (Citations omitted; internal quotation marks omitted.) State v. Toro , 172 Conn. App. 810, 815-17, 162 A.3d 63, cert. denied, 327 Conn. 905, 170 A.3d 2 (2017) "[W]hether [an improper ruling] is harmless in a particular case depends upon a number of factors, such as the importance of the witness' testimony in the prosecution's case, whether the testimony was cumulative, the presence or absence of evidence corroborating or contradicting the testimony of the witness on material points, the extent of cross-examination otherwise permitted, and, of course, the overall strength of the prosecution's case. . Most importantly, we must examine the impact of the . evidence on the trier of fact and the result of the trial.... [T]he proper standard for determining whether an erroneous evidentiary ruling is harmless should be whether the jury's verdict was substantially swayed by the error.... Accordingly, a nonconstitutional error is harmless when an appellate court has a fair assurance that the error did not substantially affect the verdict." (Internal quotation marks omitted.) Id., at 817, 162 A.3d 63. Although the defendant in his brief discusses the prejudicial effect of the evidence that he was a member of a gang, he does so in the context of arguing that the evidence was inadmissible because its prejudicial effect outweighed its probative value. What the defendant has failed to do, however, is to analyze whether the allegedly erroneous admission of this evidence deprived him of a fair trial, in other words, that the admission of the evidence constituted harmful error. As the court noted in State v. Toro , supra, 172 Conn. App. at 819, 162 A.3d 63, the concept of the prejudicial effect of evidence and whether its admission constitutes harmful error "may overlap with one another to some extent, [but they] are not necessarily equivalent and must be briefed separately.... Indeed, it is not inconsistent for a reviewing court to conclude that, although evidence was unduly prejudicial, and thus improperly admitted at trial, its improper admission nevertheless was harmless." (Citation omitted.) In the present case, beyond summarily concluding that the court's decision to allow witness testimony regarding the defendant's gang affiliation prejudiced him, and stating in his reply brief that "[t]his error is not harmless because it painted the defendant in a very negative and violent light," the defendant has failed to address the issue of whether the alleged error was harmful in light of the evidence as a whole and the court's limiting instruction. The defendant has the burden of demonstrating that the court's allegedly improper ruling likely affected the outcome of the trial. "[W]e are not required to review issues that have been improperly presented to this court through an inadequate brief.... Analysis, rather than mere abstract assertion, is required in order to avoid abandoning an issue by failure to brief the issue properly.... [F]or this court judiciously and efficiently to consider claims of error raised on appeal . the parties must clearly and fully set forth their arguments in their briefs.... The parties may not merely cite a legal principle without analyzing the relationship between the facts of the case and the law cited." (Citation omitted; internal quotation marks omitted.) State v. Buhl , 321 Conn. 688, 724, 138 A.3d 868 (2016). Because the defendant has failed adequately to brief the question of whether the allegedly erroneous admission of his membership in a gang was harmful, we deem his claim abandoned. See id. The judgment is affirmed. In this opinion the other judges concurred. For jurisprudential reasons, we address the sufficiency of the evidence claim first, although this differs from the order the claims were presented by the defendant in his principal appellate brief. General Statutes § 53a-54a (a) provides in relevant part: "A person is guilty of murder when, with intent to cause the death of another person, he causes the death of such person or of a third person ." The court provided the following limiting instruction: "The testimony that you heard today from Ms. Nunez, from [Kareem], and most recently just now from Ms. Martinez, again, that testimony related to alleged prior consistent and inconsistent statements made by other individuals. Therefore, the only thing you could use those statements for is for credibility. You cannot use them for substantive purposes to the truth of their content. "This is the situation under our rules that statements that were or were not made-allegedly were or were not made go to the credibility of that witness, not to the substance of what the person may or may not have said. So it's limited to credibility. It's not for the truth of the matter asserted in the counts." Witnesses at the trial frequently referred to Daniel Clinton by the nicknames of "Country" and "DaDa." The panel at oral argument before this court asked defense counsel whether there was "any evidence in this record that you say supports a third-party culpability instruction where the evidence was admitted for something other than impeachment purposes?" Defense counsel replied, "There was none, Your Honor." Section 4-5 (c) of the Connecticut Code of Evidence provides in relevant part: "Evidence of other crimes, wrongs or acts of a person is admissible . to prove intent, identity, malice, motive, common plan or scheme, absence of mistake or accident, knowledge, a system of criminal activity, or an element of the crime, or to corroborate crucial prosecution testimony." The court provided the following limiting instruction: "There are certain circumstances under which evidence is admitted for a limited purpose only. The testimony that you just heard about any relationship to a gang is admitted solely for purposes of establishing why this witness did not give a statement earlier than the time that she did, that's the only thing that it's admitted for, nothing else, it's limited to that purpose, you can use it for nothing else."

12510694

Andrew CIMMINO v. Maria MARCOCCIA et al.

Cimmino v. Marcoccia

2019-07-30

SC 20084

1013

1025

211 A.3d 1013

211

West's Atlantic Reporter, Third Series

Connecticut Supreme Court

Connecticut

2021-08-27T20:58:01.966564+00:00

Fastcase

Robinson, C.J., and Palmer, McDonald, Kahn and Blawie, Js.

Andrew CIMMINO v. Maria MARCOCCIA et al.

Andrew CIMMINO v. Maria MARCOCCIA et al. SC 20084 Supreme Court of Connecticut. Argued December 19, 2018 Officially released July 30, 2019 Josephine Smalls Miller, self-represented, the plaintiff in error. Alayna M. Stone, assistant attorney general, with whom, on the brief, was George Jepsen, former attorney general, for the defendant in error. Robinson, C.J., and Palmer, McDonald, Kahn and Blawie, Js. This case was originally argued before a panel of this court consisting of Chief Justice Robinson and Justices Palmer, McDonald, Mullins, Kahn, Ecker and Vertefeuille. Thereafter, Justices Mullins, Ecker and Vertefeuille recused themselves and did not participate in the consideration of the case. Judge Blawie was added to the panel and has read the briefs and appendices, and has listened to a recording of the oral argument prior to participating in this decision.

6979

43073

BLAWIE, J. On December 9, 2014, after conducting an en banc hearing on an order to show cause, the defendant in error, the Appellate Court, issued an order suspending the plaintiff in error, Josephine Smalls Miller, "from practice before [the Appellate Court] for a period of six months" and barring her from representing "any client before [the Appellate Court] until she files a motion for reinstatement and that motion has been granted" (2014 order). On October 4, 2017, the Chief Disciplinary Counsel sent a letter to the Chief Clerk of the Supreme and Appellate Courts indicating that Miller had been retained to represent a client in an appeal before the Appellate Court. In response, on February 15, 2018, the Appellate Court issued an additional order, stating that it "hereby clarifies that [the 2014 order] precludes . Miller from providing legal services of any kind in connection with any . Appellate Court matter until she files a motion for reinstatement and that motion has been granted" (2018 order). Miller then filed the present writ of error, claiming that the 2018 order was an unconstitutional ex post facto law in violation of the United States constitution because it retroactively prohibited her from engaging in certain conduct. In addition, Miller claimed that the 2014 order was the result of the Appellate Court's selective enforcement of the rules of attorney discipline, and argued that both orders were the result of the court's disparate and retaliatory treatment of minority attorneys who pursue racial discrimination claims on behalf of their clients. After oral argument before this court, we, sua sponte, ordered the parties to submit supplemental briefs on the following issue: "Whether the Appellate Court's order of February 15, 2018, clarifying its order of December 9, 2014, violated [Miller's] constitutional right to due process?" We conclude that the 2018 order did not violate the ex post facto clause and that Miller's claims of selective enforcement and discriminatory and retaliatory treatment are not reviewable by this court. We further conclude that the 2018 order did not violate Miller's constitutional due process rights because, as applied, that order did not prohibit her from engaging in conduct that was not also prohibited by the 2014 order. Accordingly, we dismiss the writ of error. Many of the underlying facts are set forth in this court's previous decision in Miller v. Appellate Court , 320 Conn. 759, 761-68, 136 A.3d 1198 (2016). In summary, after Miller, who is an attorney licensed to practice law in this state, repeatedly failed to meet certain deadlines and to comply with the rules of appellate procedure in connection with three appeals that were pending before the Appellate Court, and also filed a frivolous appeal in a fourth case, the Appellate Court issued an order directing her to appear before an en banc panel of that court to show cause why she should not be sanctioned. Id., at 761, 136 A.3d 1198. After the show cause hearing, the Appellate Court issued the 2014 order, finding that Miller "has exhibited a persistent pattern of irresponsibility in handling her professional obligations before [the Appellate Court]. . Miller's conduct has included the filing of [a] frivolous [appeal] and the failure to file, or to file in timely and appropriate fashion, all documents and materials necessary for the perfection and prosecution of appeals before [the Appellate Court]." The Appellate Court ordered that Miller be suspended "from practice before [the Appellate Court] in all cases . for a period of six months," with the exception of one appeal then pending. It also barred her from representing "any client before [the Appellate Court] until she files a motion for reinstatement and that motion has been granted." The 2014 order further specified certain remedial steps for Miller to complete before she would be eligible to be considered for reinstatement. The Appellate Court also directed the Chief Disciplinary Counsel to review these matters and to take further action if appropriate. Miller then filed a writ of error in this court, claiming that the Appellate Court had abused its discretion in issuing the 2014 order imposing sanctions on her and referring her to the Chief Disciplinary Counsel without indicating the nature of the inquiry to be conducted. See Miller v. Appellate Court , supra, 320 Conn. at 761, 779-80, 136 A.3d 1198. This court rejected these claims. Id., at 761, 136 A.3d 1198. With respect to the claim that the referral to the Chief Disciplinary Counsel was improper, this court concluded that, "[a]lthough the order of referral could have been clearer, we do not understand it to be a request for an investigation into the specific conduct giving rise to this writ of error but, rather, a request for a determination of whether Miller's conduct before the Appellate Court was part of a larger pattern of irresponsibility in [her] handling of her professional obligations." Id., at 780, 136 A.3d 1198. This court further concluded that the Appellate Court had acted within its discretion. Id., at 780-81, 136 A.3d 1198. Accordingly, this court dismissed the writ of error. See id., at 781, 136 A.3d 1198. It is also worth noting that, despite the long past expiration of the six month minimum period of suspension in the 2014 order, the record reveals that Miller has never filed a motion for reinstatement. Nor has she ever provided a personal affidavit, or presented any evidence to the Appellate Court that she has successfully completed or implemented any of the remedial practice measures specified in the 2014 order, all of which remain conditions precedent to any possible reinstatement to appellate practice. Following the Appellate Court's referral, it came to the attention of the Chief Disciplinary Counsel that one of Miller's clients, Jasmine Williams, had filed a grievance complaint against Miller in 2017, alleging unethical conduct arising from an appeal to the Appellate Court. On October 4, 2017, the Chief Disciplinary Counsel sent a letter to the Chief Clerk of the Supreme and Appellate Courts, stating that "[i]t appears that . Miller may be in violation of the [2014 order], which ordered her suspended from practice before the [A]ppellate [C]ourt in all cases," with the exception of one. According to that letter, Miller had entered into a written retainer agreement with Williams on or about October 1, 2016. By the express terms of that retainer agreement, Miller agreed to "provide legal services at the [A ]ppellate [C ]ourt level , specifically reviewing of the relevant trial transcripts, documents and orders, and drafting of the appellate brief." (Emphasis added; internal quotation marks omitted.) In addition, the retainer agreement provided that another attorney, James Hardy, would argue Williams' case before the Appellate Court. At the time that the Chief Disciplinary Counsel notified the Chief Clerk of the Supreme and Appellate Courts, she did not provide a copy of her letter to Miller. In response to the letter from the Chief Disciplinary Counsel, on February 15, 2018, without prior notice to Miller or an opportunity to be heard on the matter, the Appellate Court issued the 2018 order, which clarified its earlier order but imposed no additional sanctions on Miller. The 2018 order provides in relevant part: "The Appellate Court hereby clarifies that [the 2014 order] precludes [Miller] from providing legal services of any kind in connection with any . Appellate Court matter until she files a motion for reinstatement and that motion has been granted ." Miller then filed the present writ of error, seeking review of both the 2014 order and the 2018 order issued by the Appellate Court. In her brief to this court, Miller argued that (1) the 2018 order constituted an unconstitutional ex post facto law because it retroactively prohibited conduct that was not addressed by the 2014 order, (2) the Appellate Court engaged in the selective enforcement of attorney disciplinary rules when it issued the 2014 order, and (3) the Appellate Court engaged in racially disparate and retaliatory treatment of Miller when it issued both the 2014 order and the 2018 order. After oral argument, this court, sua sponte, ordered the parties to submit supplemental briefs on the following issue: "Whether the Appellate Court's [2018 order] clarifying its [2014 order] violated [Miller's] constitutional right to due process?" In her supplement brief, Miller contended that the 2018 order violated due process because it retroactively prohibited her from engaging in conduct that was outside the scope of the 2014 order, and because she was not provided with any notice or opportunity to be heard before the Appellate Court issued the 2018 order. Miller further contended that the 2018 order "resulted in the addition of a fourth count to the presentment that was already pending before the Superior Court in Office of Chief Disciplinary Counsel v. Miller , [Superior Court, judicial district of Danbury, Docket No. CV-17-6022075-S]. In fact, the presentment judge proceeded, after trial, to issue a one year suspension on this count." In its supplemental brief, the Appellate Court contended that, to the contrary, the 2018 order did not violate due process because it merely reiterated what was already clearly apparent in the 2014 order, namely, that Miller was barred from representing clients in connection with appeals to the Appellate Court. In addition, the Appellate Court contended that there was no violation of due process because the 2018 order "imposed no new or additional sanctions ." Specifically, the Appellate Court contended, the order "did not change the length of the suspension [from practice before the Appellate Court] or alter the requirements for the personal affidavit that must accompany the motion for reinstatement." We agree with the Appellate Court that the 2018 order did not violate Miller's right to due process because that order has not been improperly applied to any conduct that was also not clearly within the scope of the 2014 order. Having previously upheld the validity of the 2014 order in Miller v. Appellate Court , supra, 320 Conn. at 781, 136 A.3d 1198, this court sees no reason to revisit its earlier decision, except as it may bear on the resolution of the present writ of error. We also find the balance of Miller's other claims as to the 2018 order to be without merit. We first address the claims that Miller raised in her initial brief to this court. With respect to her argument that the 2018 order was an unconstitutional ex post facto law because it retroactively expanded the scope of the 2014 order, we reject this claim. "The United States Supreme Court has observed [that], '[a]s the text of the [ex post facto] [c]lause makes clear, it is a limitation upon the powers of the [l]egislature, and does not of its own force apply to the [j]udicial [b]ranch of government.' . Nevertheless, 'limitations on ex post facto judicial decisionmaking are inherent in the notion of due process.' " (Citation omitted.) Washington v. Commissioner of Correction , 287 Conn. 792, 805-806, 950 A.2d 1220 (2008), quoting Rogers v. Tennessee , 532 U.S. 451, 456, 121 S. Ct. 1693, 149 L. Ed. 2d 697 (2001). Accordingly, Miller's claims as to the constitutionality of the 2018 order as retroactively expanding the scope of the 2014 order are more properly framed as possibly implicating her right to due process, rather than her right to be free from ex post facto laws. With respect to Miller's claims that the Appellate Court engaged in the selective enforcement of the rules of attorney discipline and in racially disparate and retaliatory treatment when it issued both the 2014 order and the 2018 order, we conclude that this court is not the appropriate forum in which to raise these fact bound claims in the first instance. It is well established that appellate courts do not decide pure issues of fact or try, or retry, cases on appeal. See Lapointe v. Commissioner of Correction , 316 Conn. 225, 310, 112 A.3d 1 (2015) ; see also Practice Book § 72-1 (a) ("[w]rits of error for errors in matters of law only may be brought from a final judgment . to the Supreme Court" [emphasis added] ). Having rejected these claims, we next address Miller's claim in her supplemental brief that the 2018 order violated her constitutional right to due process because the 2018 order retroactively expanded the scope of the 2014 order. We begin with the standard of review. "Because a license to practice law is a vested property interest, an attorney subject to discipline is entitled to due process of law." (Internal quotation marks omitted.) Lewis v. Statewide Grievance Committee , 235 Conn. 693, 705, 669 A.2d 1202 (1996) ; see also Statewide Grievance Committee v. Botwick , 226 Conn. 299, 306, 627 A.2d 901 (1993) ("[a] license to practice law is a property interest that cannot be suspended without due process"). "It is well settled that, [w]hether [a party] was deprived of his [or her] due process rights is a question of law, to which we grant plenary review." (Internal quotation marks omitted.) Commissioner of Environmental Protection v. Farricielli , 307 Conn. 787, 819, 59 A.3d 789 (2013). As we have already noted, limitations on ex post facto judicial decisionmaking are inherent in the notion of due process. See Washington v. Commissioner of Correction , supra, 287 Conn. at 805-806, 950 A.2d 1220. Any due process analysis must also recognize the unique character of the historical relationship between the bench and bar. Since the earliest days of the Connecticut colony, attorneys have been subject to judicial control. See Massameno v. Statewide Grievance Committee , 234 Conn. 539, 554-55, 663 A.2d 317 (1995). It is well established that the Judicial Branch has the inherent power to investigate Miller's professional conduct as an officer of the court. See Grievance Committee v. Broder , 112 Conn. 263, 273-74, 152 A. 292 (1930) ; see also Practice Book § 2-1 through 2-82. Like a formal disbarment proceeding, a suspension from practice before a court for a period of time "is neither a civil action nor a criminal proceeding, but is a proceeding sui generis, the object of which is not the punishment of the offender, but the protection of the court." (Internal quotation marks omitted.) Burton v. Mottolese , 267 Conn. 1, 26, 835 A.2d 998 (2003), cert. denied, 541 U.S. 1073, 124 S. Ct. 2422, 158 L. Ed. 2d 983 (2004). The Appellate Court therefore has a legitimate and continuing interest in determining whether Miller has the necessary professional competence to practice law before it. See, e.g., Baird v. State Bar , 401 U.S. 1, 7, 91 S. Ct. 702, 27 L. Ed. 2d 639 (1971). Because Miller's claim requires us to construe the scope of the Appellate Court's orders, we next review the legal principles governing their construction. "The construction of a judgment is a question of law for the court.... As a general rule, judgments are to be construed in the same fashion as other written instruments.... The determinative factor is the intention of the court as gathered from all parts of the judgment.... The interpretation of a judgment may involve the circumstances surrounding the making of the judgment.... Effect must be given to that which is clearly implied as well as to that which is expressed . The judgment should admit of a consistent construction as a whole." (Citations omitted; emphasis added; internal quotation marks omitted.) Lashgari v. Lashgari , 197 Conn. 189, 196-97, 496 A.2d 491 (1985). As we have indicated, Miller's essential claim is that the 2018 order of the Appellate Court constitutes an unconstitutional retroactive prohibition of the conduct that was the subject of the October 4, 2017 letter from the Chief Disciplinary Counsel to the Chief Clerk of the Supreme and Appellate Courts and count four of the presentment action, conduct for which the trial court in the presentment action sanctioned Miller. We therefore limit our review to the question of whether the conduct that gave rise to that letter and count four of the presentment action was clearly prohibited by the 2014 order of the Appellate Court. If it was, there can be no due process violation. We note preliminarily that Miller makes no claim that the allegations in the letter from the Chief Disciplinary Counsel were untrue. Miller also does not claim that the related factual findings of the trial court in the presentment action with respect to her dealings with Williams and the appellate legal services that she provided pursuant to their retainer agreement were not supported by the evidence. Rather, because she views her conduct as not being expressly prohibited by the terms of the 2014 order, she argues that it cannot constitutionally be sanctioned under the 2018 order. Because Miller relies on the trial court's findings and rulings in the presentment action in support of her claims, we may take judicial notice of the court file in that action. See, e.g., Davis v. Maislen , 116 Conn. 375, 384, 165 A. 451 (1933) (when court file was examined at request of party and no exception was taken, parties could not complain when court took judicial notice of file). In its written memorandum of decision, the trial court in the presentment action found the following facts. After Williams' parental rights with respect to her two minor children were terminated by the Superior Court, Williams retained Hardy to file an appeal of that decision on her behalf with the Appellate Court. Even before Miller was formally retained by Williams, Miller also provided assistance to Hardy with Williams' appeal by drafting an objection, dated September 22, 2016, to a motion to dismiss that appeal. The Appellate Court ultimately granted the motion to dismiss Williams' appeal. At or about the same time, Hardy referred Williams to Miller. The trial court credited Hardy's testimony at the presentment trial when he spoke of his reliance on Miller's appellate expertise. Hardy had told Williams that, "although [he had] handled some appellate matters previously, [such matters did not] make up a majority of [his] practice, and [he] thought, because of [Miller's] supreme knowledge with respect to appellate matters and her expertise and skill set, that she would be better suited at the very least to assist . in filing the appeal." (Internal quotation marks omitted.) On October 1, 2016, Williams executed a retainer agreement that Miller had presented to her. The agreement provided in relevant part that Miller would represent Williams "with respect to the following: A juvenile court termination of parental rights appeal." (Internal quotation marks omitted.) The agreement further provided that Miller would "provide legal services at the [A ]ppellate [C ]ourt level , specifically reviewing of the relevant trial transcripts, documents, and orders, and drafting of the appellate brief.... Hardy will be responsible for oral argument of the case." (Emphasis added; internal quotation marks omitted.) The trial court in the presentment action credited Miller's testimony that she had orally advised Williams that "there were some restrictions on her ability to represent [Williams in] the Appellate Court." However, the trial court in the presentment action also concluded that these representations were "completely inconsistent with the express terms of the retainer letter, which made no reference whatsoever as to any limitations placed upon her by the Appellate Court. Such conflicting information made it impossible for Williams to make an informed decision regarding the respondent's representation of her." After Williams executed the retainer agreement, Miller reviewed the trial court's decision in the termination of parental rights case and drafted a motion for reconsideration of the Appellate Court's ruling granting the motion to dismiss the appeal from that decision. Miller also advised Hardy and Williams that a motion for permission to file a late appeal should be pursued. She then drafted a motion dated December 6, 2016, and sent it to Hardy so that he could file it with the Appellate Court on his own letterhead. Because Miller was barred by the terms of the 2014 order from filing an appearance with the Appellate Court on behalf of Williams, she received no notices regarding the status of the case but, instead, was required to rely on Hardy for such information. Thereafter, from late December, 2016, until early January, 2017, Miller left the country, and apparently her contact with Hardy during that time frame was limited. Upon her return, she learned from Hardy that the Appellate Court had since denied the motion to file a late appeal. However, by that time, it was also too late to seek permission to file a certified appeal with this court from the judgment of dismissal. On the basis of these facts, the trial court in the presentment action, Shaban, J. , concluded, in a well reasoned decision, that the Chief Disciplinary Counsel had established by clear and convincing evidence that Miller had violated the terms of the 2014 order of the Appellate Court. It further found that, in doing so, she had engaged in the unauthorized practice of law, in violation of rule 5.5 of the Rules of Professional Conduct. In reaching this conclusion, the trial court in that action expressly stated that it was not relying on the language of the Appellate Court's 2018 order "clarifying" the 2014 order, "as the facts are sufficient to establish a violation of the rules based on the language of the original [2014 ] order alone. " (Emphasis added.) As a sanction for Miller's violation of the 2014 order, the trial court suspended her from the practice of law in this state for a period of one year. This suspension was to run concurrently with suspensions imposed by the trial court under the first three counts of the presentment, which pertained to misconduct unrelated to the Appellate Court's orders. We conclude that any reasonable attorney would have understood that the terms of the 2014 order prohibited Miller from proffering the retainer agreement signed by Williams and that undertaking such appellate representation was in defiance of that order. We also conclude that a reasonable attorney would have been aware of such impropriety in the absence of seeking prior reinstatement to practice before the Appellate Court, particularly in light of the facts and circumstances surrounding the issuance of the 2014 order. See Lashgari v. Lashgari , supra, 197 Conn. at 196, 496 A.2d 491 ("[t]he interpretation of a judgment may involve the circumstances surrounding the making of the judgment" [internal quotation marks omitted] ). The 2014 order clearly stated that Miller's "persistent pattern of irresponsibility in handling her professional obligations" before the Appellate Court had both wasted the time and resources of the court and opposing counsel, and "threatened the vital interests of her own clients ." That "persistent pattern of irresponsibility" included Miller's failure to adequately "monitor her cases . and ensure timely compliance with [the] rules of procedure." Moreover, in one of the appeals underlying the 2014 order, Miller was similarly out of the country when a nisi order was issued by the Appellate Court, informing her that the appeal would be dismissed if she failed to comply with certain procedural rules. That appeal was, in fact, dismissed before she returned to Connecticut. See Miller v. Appellate Court , supra, 320 Conn. at 765, 136 A.3d 1198. The Appellate Court asked Miller at the show cause hearing "what assurance she could provide the court that such lapses would not occur in the future, [and] Miller stated that, because of her limited resources as a solo practitioner, she could assure the court only that she would try to find someone to cover her practice on a pro bono basis if she were to travel again for an extended period of time." Id., at 766, 136 A.3d 1198. By entering into a retainer agreement with Williams to "provide legal services at the [A]ppellate [C]ourt level," Miller was in violation of the terms of the 2014 order. Effect must be given to the circumstances surrounding the order, to that which is clearly implied and to that which was directly expressed by the Appellate Court. This court does not share the straitened and overly narrow view of the 2014 order being urged by Miller. Such an interpretation is unreasonable and will not avail to defeat the Appellate Court's intention when that order is read in the context of the attorney disciplinary proceedings that culminated in its issuance. The unmistakable intention of the 2014 order was to prohibit Miller from providing any legal services at the Appellate Court level. "[T]he power of the courts is left unfettered to act as situations, as they may arise, may seem to require, for efficient discipline of misconduct ." (Internal quotation marks omitted.) Burton v. Mottolese , supra, 267 Conn. at 26, 835 A.2d 998. By trying to do indirectly what she could not do directly, Miller failed to make it sufficiently clear to either her client or to Hardy, who relied on her purported "supreme knowledge with respect to appellate matters," that she would not assume responsibility for monitoring the status of Williams' appeal. In that case, Miller thereby engaged in the very same "persistent pattern of irresponsibility" that she demonstrated in the four cases that were the subject of the Appellate Court's previous show cause hearing and the 2014 order. The risks to the client's interests inherent in this lack of clarity and oversight became a reality when, as she had done in connection with an earlier appeal that provided the basis for the 2014 order, Miller again left the country. She did so without first making arrangements with Hardy to ensure that he was aware of, and would be responsible for, complying with all applicable procedural rules and deadlines in Williams' appeal. Miller's failure in this regard worked to the detriment of her client, as it resulted in the loss of any opportunity for Williams to file a certified appeal with this court from the Appellate Court's dismissal of her appeal. To the extent that Miller contends that Hardy should have known, and that she reasonably expected, that he would be solely responsible for monitoring the status of Williams' appeal and complying with all procedural rules and deadlines because he was the only attorney who had filed an appearance in the Appellate Court, we disagree. Contrary to Miller's suggestion, this is not a case in which she was merely providing background legal assistance to a supervising attorney who was expressly acknowledged by the client to be the sole legal representative with respect to an appeal. Williams never viewed Hardy as having sole professional responsibility for the diligent prosecution of her appeal. Moreover, by suggesting that Williams retain Miller, the inference is also clear that Hardy never viewed himself as solely responsible for the diligent prosecution of that appeal. Rather, it is undisputed that Williams had specifically retained Miller to act as her attorney in connection with her appeal and that Hardy had recommended Miller to Williams because of her purported expertise in appellate matters. Thus, Miller failed both to properly express and to reconcile the mutual expectations of two parties-her client, Williams, as well as those of Hardy. It should have been clear to Miller that both were relying on, or reasonably could have relied on, her determination as to what papers needed to be filed in connection with the appeal, and as to any applicable deadlines, notwithstanding the fact that she had not filed an appearance in the Appellate Court on Williams' behalf. The confidence manifested by Williams in hiring counsel to handle her appeal gave her, as the client, the right to expect a corresponding degree of diligence on the part of Miller. As the trial court noted throughout the presentment process, Miller "has not acknowledged any wrongful conduct and has taken no steps to address the issues that led to her suspension by the Appellate Court, despite being given a clear roadmap by that court on how to do so." This court finds that Miller assumed professional duties and responsibilities toward a client in a case before the Appellate Court, and that her dereliction of those duties and obligations worked to the detriment of her client's interests, wasting the time and resources of the Appellate Court and opposing counsel in the process. These are the very harms that gave rise to the 2014 order, the recurrence of which the Appellate Court sought to prevent by its issuance of that order, and by its further issuance of the 2018 order. The judiciary maintains the inherent right to define what constitutes the practice of law. See Massameno v. Statewide Grievance Committee , supra, 234 Conn. at 554-55, 663 A.2d 317 ; State Bar Assn. v. Connecticut Bank & Trust Co. , 145 Conn. 222, 232, 140 A.2d 863 (1958). In the present case, the Appellate Court acted well within its discretion to use the occasion of the referral from the Chief Disciplinary Counsel to elaborate on its definition of what constituted the practice of law before it. In the absence of the imposition of any additional sanctions on Miller, the Appellate Court did not violate due process by issuing the 2018 order without any prior notice or a hearing. The clear intent of the original 2014 order was not to allow Miller to continue to assume the representation of clients in appellate matters as long as her involvement remained sub rosa, and could be masked from the Appellate Court in the absence of an appearance. For Miller to contend otherwise merely highlights her ongoing and obdurate refusal to accept any personal responsibility for her conduct, and to acknowledge the adverse effects that her conduct has had on her own clients, the courts, and opposing counsel. Moreover, Miller has provided no proof that she has undertaken any of the necessary remedial measures specified in the 2014 order to ensure that such misconduct will not be repeated. For the foregoing reasons, we conclude that Miller's representation of Williams in her appeal to the Appellate Court violated the 2014 order, as it fell within the scope of that original order suspending Miller from practice before that court. Accordingly, we reject Miller's claim that the 2018 order of the Appellate Court violated due process by retroactively prohibiting her from engaging in such conduct. Having also rejected Miller's other claims, we dismiss the writ of error. The writ of error is dismissed. In this opinion the other justices concurred. The constitution of the United States, article one, § 10, provides in relevant part: "No state shall . pass any . ex post facto [l]aw ." The four appeals that were the subject of the show cause order were Addo v. Rattray , Docket No. AC 36837, Willis v. Community Health Services, Inc. , Docket No. AC 36955, Cimmino v. Marcoccia , Docket No. AC 35944, and Coble v. Board of Education , Docket No. AC 36677. See Miller v. Appellate Court , supra, 320 Conn. at 761, 136 A.3d 1198. The Appellate Court ultimately dismissed all four appeals. See id., at 768, 136 A.3d 1198 (Appellate Court dismissed appeal in Coble as frivolous); id., at 770, 136 A.3d 1198 (Appellate Court dismissed appeals in Addo , Willis , and Cimmino as result of Miller's failure to comply with various procedural requirements). The 2014 order provides: "After reviewing . Miller's conduct in [Coble v. Board of Education , Docket No. AC 36677, Willis v. Community Health Services, Inc. , Docket No. AC 36955, Cimmino v. Marcoccia , Docket No. AC 35944, and Addo v. Rattray , Docket No. AC 36837], the Appellate Court has determined that . Miller has exhibited a persistent pattern of irresponsibility in handling her professional obligations before [the Appellate Court].... Miller's conduct has included the filing of frivolous appeals and the failure to file, or to file in timely and appropriate fashion, all documents and materials necessary for the perfection and prosecution of appeals before [the Appellate Court]. "[Miller's] conduct before [the Appellate Court] has threatened the vital interests of her own clients while consuming an inordinate amount of [the Appellate Court's] time and her opponents' resources.... Miller has neither accepted personal responsibility for the aforesaid conduct nor offered [the Appellate Court] any assurance that such conduct will not be repeated, based upon either her commitment to improving her knowledge of appellate practice and procedure or her institution of changes in her law practice to monitor her cases more effectively and ensure timely compliance with [the] rules of procedure. "It is hereby ordered that: "1. [Miller] is suspended from practice before [the Appellate Court] in all cases, except for the case of [Addo v. Rattray , Docket No. AC 36837], effective immediately for a period of six months from issuance of notice of this order until June 9, 2015. "2. After June 9, 2015 . Miller may not represent any client before [the Appellate Court] until she files a motion for reinstatement and that motion has been granted. The motion for reinstatement shall not be filed until after June 9, 2015. Any motion for reinstatement shall include a personal affidavit in which . Miller: "A. commits herself to discharging her professional responsibilities before [the Appellate Court] in a timely and professional manner; "B. provides documentary proof of successful completion of a seminar on legal ethics and a seminar on Connecticut appellate procedure; "C. documents any other efforts since the date of this order to improve her knowledge of appellate practice and procedure; and "D. offers [the Appellate Court] detailed, persuasive assurances that she has implemented changes in her law practice designed to ensure full compliance with the rules of appellate procedure including a written plan indicating what procedures she has implemented in her office to ensure her compliance with the appellate rules and procedures and to protect her clients' interests. "3. After June 9, 2015, upon the filing and granting of a motion for reinstatement . Miller may resume the practice of law before the Appellate Court if she is otherwise qualified to practice law in the courts of this state. "4. The [a]ppellate . clerk's office is directed not to accept for filing and to return any documents filed in violation of this order. "5. If . Miller violates the provisions of this order she is subject to further sanctions. "It is further ordered that these matters are referred to the Chief Disciplinary Counsel for review and further action as it is deemed appropriate." The Appellate Court also contends that these claims are barred by the doctrine of res judicata because Miller could have raised them in her previous writ of error challenging the 2014 order. See, e.g., LaSalla v. Doctor's Associates, Inc. , 278 Conn. 578, 590, 898 A.2d 803 (2006) ("claim preclusion prevents the pursuit of any claims . which were actually made or might have been made " in prior proceeding [emphasis in original] ). The claims could not have been raised in that writ of error, however, for the same reason that they cannot be raised here, namely, because they involve issues of fact that are not within the authority of this court to decide in the first instance. We note that, in the proceeding on her previous writ of error, Miller sought permission to file a supplemental reply brief raising the claim that the Chief Disciplinary Counsel and the Statewide Grievance Committee had engaged in discriminatory and retaliatory conduct in connection with various disciplinary proceedings against her. Although Miller made a passing reference to the "grave and unjust manner in which the Appellate Court . sought to sully the thirty-five year spotless reputation of the plaintiff in error," she did not raise any specific allegations of discriminatory or retaliatory conduct by that court. This court thereafter summarily denied the motion. Miller also contends that the Appellate Court violated due process by failing to provide her with notice and a hearing before issuing the 2018 order. See Szymonik v. Szymonik , 167 Conn. App. 641, 656-57, 144 A.3d 457 ("[i]t is a fundamental tenet of due process that no court will proceed to the adjudication of a matter involving conflicting rights and interests, until all persons directly concerned in the event have been actually or constructively notified of the pendency of the proceeding, and given reasonable opportunity to appear and be heard . in sufficient time to prepare their positions on the issues involved" [internal quotation marks omitted] ), cert. denied, 323 Conn. 931, 150 A.3d 232 (2016) ; see also Statewide Grievance Committee v. Botwick , 226 Conn. 299, 308, 627 A.2d 901 (1993) ("[b]efore discipline may be imposed, an attorney is entitled to notice of the charges, a fair hearing and an appeal to court for a determination of whether he or she has been deprived of these rights in some substantial manner" [internal quotation marks omitted] ). The gist of Miller's claim, however, is that the 2018 order was unconstitutional because it retroactively prohibited conduct that would otherwise have been permitted. If Miller were correct, that order would be unconstitutional regardless of whether she was provided with notice and a hearing. On the other hand, if the 2018 order has not been applied to prohibit or punish conduct beyond the scope of the 2014 order, there can be no constitutional violation, regardless of whether Miller was provided with notice and a hearing. Accordingly, the lack of notice and a hearing has no bearing on Miller's claims. Miller also contends that the 2018 order "severely hindered her ability to practice law, even beyond appellate practice," because, for example, it could be construed to bar her from filing a motion for articulation or an offer of proof in the trial court in order to ensure an adequate recording in the event of an appeal, from pointing out weak points in the evidence to appellate counsel, or from performing a title search for a party with a pending appeal in a foreclosure action. None of these hypothetical scenarios posited by Miller, however, accurately describes the conduct at issue in this proceeding. Miller has also filed an appeal from the judgment in the presentment action that is currently pending in the Appellate Court. Office of Chief Disciplinary Counsel v. Miller , AC 42395. As we have indicated, however, she has not claimed in the present case that she intends to challenge in that appeal the underlying factual findings of the trial court regarding her professional dealings with Williams. Rather, she claims only that the 2014 order did not prohibit those dealings. This court recognizes that our analysis and resolution of this proceeding may also be dispositive of one or more claims made by Miller in connection with her pending appeal of the presentment action. This unique procedural circumstance is, however, a necessary consequence invited by Miller herself. Having chosen to pursue a two-pronged legal challenge, i.e., having chosen to file both a writ of error challenging the 2018 order of the Appellate Court, in addition to a direct appeal of the trial court's judgment in the presentment action, it is clearly necessary for this court to revisit the 2014 order in the context of the 2018 order. In particular, it is necessary that we address the question of whether, as the trial court in the presentment action found, the 2014 order prohibited Miller from engaging in the course of conduct that gave rise to the 2018 order of the Appellate Court, the latter of which is the subject of this proceeding. We now resolve that issue against Miller. Rule 5.5 (a) of the Rules of Professional Conduct provides in relevant part: "A lawyer shall not practice law in a jurisdiction in violation of the regulation of the legal profession in that jurisdiction ." The trial court in the presentment action also stated in its memorandum of decision that Miller acknowledged at trial that the 2018 order "did clarify the original order." The trial court in that action did not suggest, however, and our review of the trial transcript does not support a finding, that Miller had conceded at trial that the 2018 order was merely a clarification that did not alter the scope of the 2014 order. Rather, Miller argued that opposing counsel "seem[ed] to be suggesting that just because [Williams] had an appellate matter that I could not advise her on something that did not relate to the Connecticut Appellate Court. That's a real problem that I have with this clarification that came out on [February 15, 2018]." Thus, Miller was contending that the 2018 order was not simply a clarification of the 2014 order, but that it prohibited conduct that the earlier order did not prohibit. Indeed, the trial court in the presentment action expressly noted in its memorandum of decision that Miller contended that the 2014 order did not bar her from representing Williams in connection with her appeal because it "only prohibited her from appearing before the Appellate Court." (Emphasis in original.) To the extent that Miller contends that she was entitled to contemporaneous notice of the letter from the Chief Disciplinary Counsel to the Appellate Court, we also reject that claim. In carrying out her important professional oversight responsibilities in this particular context, the Chief Disciplinary Counsel acts not as a third party litigant, but as an arm of the court. See Miller v. Appellate Court , supra, 320 Conn. at 780, 136 A.3d 1198 (in carrying out duty to investigate allegations of attorney misconduct, attorney disciplinary "bodies act as an arm of the court" [internal quotation marks omitted] ); see also General Statutes § 51-90 et seq.

12489808

Shirley PAPALLO et al. v. Ronald D. LEFEBVRE

Papallo v. Lefebvre

2017-04-25

AC 38538

603

617

161 A.3d 603

161

West's Atlantic Reporter, Third Series

Connecticut Appellate Court

Connecticut

2021-08-27T20:57:14.017834+00:00

Fastcase

Shirley PAPALLO et al. v. Ronald D. LEFEBVRE

Shirley PAPALLO et al. v. Ronald D. LEFEBVRE AC 38538 Appellate Court of Connecticut. Argued December 6, 2016 Officially released April 25, 2017 Charles F. Brower, for the appellants (plaintiffs). Alvord, Keller and Gruendel, Js. April 25, 2017, the date that this decision was released as a slip opinion, is the operative date for all substantive and procedural purposes.

6228

38381

KELLER, J. The named plaintiff, Shirley Papallo (plaintiff), held a 50 percent membership interest in Big Dog Entertainment, LLC (LLC). The LLC is the other plaintiff in this matter. The defendant, Ronald D. Lefebvre, held the other 50 percent membership interest. The LLC was in the sole business of operating a bar-Central Cafe-in Plainville. During the relevant time period, the defendant managed the bar, while the plaintiff had limited involvement in its operations. In 2013, the plaintiff and the LLC (collectively plaintiffs) brought suit against the defendant alleging breach of fiduciary duty to the plaintiff, statutory theft on behalf of the LLC, and violations of the Connecticut Unfair Trade Practices Act (CUTPA), General Statutes § 42-110a et seq., on behalf of both plaintiffs. The plaintiffs also sought an accounting from the defendant. See, e.g., Zuch v. Connecticut Bank & Trust Co. , 5 Conn.App. 457, 460-63, 500 A.2d 565 (1985). These counts all stemmed from the defendant's alleged misappropriation and misuse of LLC assets. Specifically, the plaintiffs alleged that the defendant misappropriated LLC revenues and also participated in a "barter exchange" program through which the defendant traded food and drinks from the bar for services rendered by other participants in the barter program for his own benefit or otherwise to the exclusion of the LLC. After a trial to the court in which the plaintiffs were represented by counsel and the defendant represented himself, the court concluded that the defendant breached his fiduciary duty to the plaintiff by misusing the barter agreement, but determined that the defendant did not breach that duty through his handling of the LLC revenues. Accordingly, the court rendered judgment for the plaintiff on the breach of fiduciary duty count, but awarded compensatory damages only for the defendant's misuse of the barter agreement. The court determined that those damages amounted to $10,191.25. The court rendered judgment in favor of the defendant on the remaining counts. On appeal, the plaintiffs claim that the court erred by concluding that (1) the defendant did not breach his fiduciary duty to the plaintiff through his handling of the LLC revenues; (2) the defendant did not have the intent necessary to be found liable for statutory theft; (3) an accounting was not warranted; and (4) the defendant's conduct did not violate CUTPA. The defendant did not participate in this appeal. We agree with the first claim but disagree with the remaining ones. Accordingly, we affirm in part and reverse in part the judgment of the court. The following facts, as found by the court, provide additional background to the underlying dispute. "The plaintiff and the defendant met when they both worked for Associated Spring. They were colleagues and friends at the time they started discussing the purchase of a bar that they planned to jointly own and operate. Around August of 2005, the defendant located a potential property that they both decided to purchase. Due to the defendant's recent bankruptcy filing, the parties were in a poor position to secure a business loan on behalf of the LLC. The plaintiff obtained a home equity loan in the amount of $150,000 in order to purchase the property. The parties planned for the defendant to leave his $70,000 salaried position at Associated Spring to run the bar, since the plaintiff had secured financing. She would join the defendant in running the business once she retired from Associated Spring. The parties formed the LLC as 50 percent members in December of 2005, for the purpose of operating the business. They purchased Central Cafe in May of 2006. "The defendant operated the business solely until February of 2010. The plaintiff was still employed at Associated Spring and did not retire until July 1, 2009. During the time that the defendant managed the business, the plaintiff would occasionally come to the bar to help clean after closing. She was busy working and caring for sick family members. She had limited time to participate actively in the day-to-day management of the business and left it all to the defendant. The plaintiff's health also interfered with her full involvement with the bar even once she began regularly working at the bar in 2010. "During the three years when the defendant solely operated the business, since the business was just starting out, he took care of everything that the business needed, including cleaning, tending to customers, closing the bar each night, balancing the register, handling the business records of the bar, and various other activities. The defendant had no experience with running a business. "When the plaintiff began working regularly at the bar in February of 2010, she started helping with cleaning and learning how to run the banquets that the bar would host. She also started balancing the cash register at the end of each night. As she began running more of the bar, she noticed certain practices of the bar that she found questionable. She noticed that employees were paid a certain amount of wages in cash and that the cash register balances she determined at the end of each night did not match up with amounts that the defendant reported. The plaintiff also noticed that certain customers were not paying for their orders but running tabs. The defendant explained that Central Cafe was part of a barter exchange with other businesses so that the bar would allow patrons in the barter exchange to trade services they provided for food and drinks at the bar. The plaintiff never saw the barter exchange agreement or any records related to the agreement. The defendant admittedly used some of the services through the barter exchange for his own personal use and benefit. "By that time, the defendant had hired an accountant, [Guy] Giantonio, to handle the business tax filings for the bar. When the plaintiff learned of certain record keeping practices of the bar, she decided to set up a meeting with her personal accountant, Diane Libby . Giantonio, and the defendant in August of 2010. In reviewing the financials of the bar, Libby said that the expenses were at least five to ten percent higher than industry benchmarks and that the income was underreported. In particular, she expressed concern over the adjustments that were done without any documentation, which was exceptional based on standard accounting practices. "Within months of that meeting, the relationship between the parties deteriorated. At some point in 2011, the plaintiff asked if there were any profits and the defendant still indicated that there were not sufficient profits to generate equal salaries for the both of them. The plaintiff was increasingly concerned, but did not ask for specific documentation from the defendant. In 2012, she started to log the amount she counted in the register each night and compared that number to the amount noted by the defendant the following morning. The defendant was aware of the plaintiff tracking these amounts and raised the matter with her several months later. The defendant admitted that he kept cash in a drawer in the bar's office to pay for daily expenses and some employee wages. The defendant offered to buy out the plaintiff's interest in the bar so he could continue to run it, but the plaintiff believed he was simply trying to push her out so he could continue to run the business without concern for the issues she raised regarding his questionable business practices. "The plaintiff filed this action when the defendant prevented her from entering the bar in June of 2013. The defendant subsequently transferred all of his interest in the limited liability corporation to the plaintiff in August of 2013. The plaintiff is now the sole member of the LLC and the sole owner of Central Cafe." Additional facts will be provided as necessary. I The plaintiff first claims that the court erred by concluding that the defendant did not breach his fiduciary duty to her through his handling of the LLC revenues. Specifically, the plaintiff argues that, although the court correctly allocated the burden of proof to the defendant with respect to her allegation that he misused the barter agreement, the court misallocated the burden of proof with respect to the plaintiff's allegation that the defendant misappropriated LLC revenues. We agree with the plaintiff. In rendering judgment on the breach of fiduciary duty count, the court first observed that "[o]nce a fiduciary duty is found to exist, the burden of proving fair dealing shifts to the fiduciary and must be established by clear and convincing evidence." The court then concluded as follows: "The plaintiff trusted the defendant with the operation of their business and relied upon him to run it legally. The parties were equal members of the limited liability corporation, but the defendant had sole control over the operation of the business for the first three years. The plaintiff did fairly have an expectation that the defendant would operate the business legally and the defendant breached this trust by operating the business in the manner that he did and continuing to do so once the plaintiff actively participated in the operation and raised her concerns over certain business practices to the defendant. By using an asset of the business, specifically the barter agreement to pay for home heating and dental bills, the defendant clearly misused a business asset for his personal benefit at the expense of the other [member] and breached the trust that he had as the managing member of the bar. The court finds that the plaintiff has met her burden of establishing a breach of fiduciary duty by the defendant by his use of the barter exchange agreement and awards damages based on the misuse of this asset. The plaintiff presented other evidence of damages but the court does not find that the plaintiff met her burden of proof with respect to those claims. The defendant has failed to establish fair dealing by clear and convincing evidence. Therefore, the court finds for the plaintiff and against the defendant on count one, alleging a breach of fiduciary duty." The plaintiff asserts that the court, in determining that "[t]he plaintiff presented other evidence of damages but [that] . the plaintiff [did not meet] her burden of proof with respect to those claims," improperly imposed on her the burden of proving that the defendant breached his fiduciary duty to the plaintiff with respect to his handling of the LLC revenues. The plaintiff argues that once she established that the defendant owed a fiduciary duty to her, the court should have allocated the burden of proving fair dealing to the defendant. See, e.g., Murphy v. Wakelee , 247 Conn. 396, 400, 721 A.2d 1181 (1998). We observe the following legal principles governing breach of fiduciary duty actions. "Once a [fiduciary] relationship is found to exist, the burden of proving fair dealing properly shifts to the fiduciary. . Furthermore, the standard of proof for establishing fair dealing is not the ordinary standard of fair preponderance of the evidence, but requires proof either by clear and convincing evidence, clear and satisfactory evidence or clear, convincing and unequivocal evidence. . Proof of a fiduciary relationship, therefore, generally imposes a twofold burden on the fiduciary. First, the burden of proof shifts to the fiduciary; and second, the standard of proof is clear and convincing evidence." (Citation omitted; internal quotation marks omitted.) Id."Such burden shifting occurs in cases involving claims of fraud, self-dealing or conflict of interest." (Internal quotation marks omitted.) Heaven v. Timber Hill, LLC , 96 Conn.App. 294, 303, 900 A.2d 560 (2006). Our Supreme Court has applied the preceding burden shifting framework to partnership disputes involving breach of fiduciary duty allegations, which we view as analogous to the limited liability company context. See Oakhill Associates v. D'Amato , 228 Conn. 723, 726-27, 638 A.2d 31 (1994) (burden of proving fair dealing by clear and convincing evidence properly shifted to partner against whom allegation of self-dealing was made); Konover Development Corp. v. Zeller , 228 Conn. 206, 229-30, 635 A.2d 798 (1994) (burden of proving fair dealing properly shifts to fiduciary once fiduciary relationship is found to exist); see also Martinelli v. Bridgeport Roman Catholic Diocesan Corp. , 196 F.3d 409, 421 (2d Cir. 1999) ("To be sure, where the fiduciary has not received some kind of benefit that would engender suspicion and there is no other evidence of wrongdoing, the burden of proof remains on the plaintiff. . But Connecticut law routinely shifts the burden of proof, irrespective of circumstances, where a fiduciary appears to have obtained a benefit at the expense of a person to whom it owes a fiduciary duty." [Citation omitted.] ). We must now determine whether the court erred in applying the foregoing burden shifting framework. "When a party contests the burden of proof applied by the court, the standard of review is de novo because the matter is a question of law." (Internal quotation marks omitted.) Rollar Construction & Demolition, Inc. v. Granite Rock Associates, LLC , 94 Conn.App. 125, 133, 891 A.2d 133 (2006). As previously stated, for purposes of this appeal, we assume, without deciding, that the plaintiff and the defendant owed fiduciary duties to one another by virtue of their membership interests in the LLC. See footnote 1 of this opinion. The plaintiff alleged in the operative complaint that the defendant misappropriated LLC revenues and engaged in fraudulent conduct by inaccurately reporting those revenues and expenses. The plaintiff then produced evidence, in the form of tax and accounting documents, as well as testimony from the plaintiff's accountant, appearing to support those allegations. See part II of this opinion. There was also evidence adduced at trial suggesting that the defendant exerted control over those revenues and the accounting thereof. See 37 Am. Jur. 2d 487, Fraud and Deceit § 461 (2013) ( "rule that fraud is not presumed . is relaxed or qualified in a case where a fiduciary or confidential relationship exists between the parties and where one has a dominant and controlling force or influence over the other" [footnote omitted] ). The burden of proof with respect to the LLC revenues therefore properly shifted to the defendant to prove fair dealing by clear and convincing evidence. The court erred by placing the burden of proof on the plaintiff with respect to her allegation that the defendant breached his fiduciary duty by misappropriating LLC revenues. This does not end our inquiry, however, because "[g]enerally, a trial court's ruling will result in a new trial only if the ruling was both wrong and harmful." (Emphasis in original; internal quotation marks omitted.) Wiseman v. Armstrong , 295 Conn. 94, 106, 989 A.2d 1027 (2010). On the basis of our review of the court's decision, we are not persuaded that the court would have reached the same decision had it applied the burden of proof correctly. The court's error was simply of such a fundamental nature that the only proper remedy is to reverse the judgment in part and remand the case for a new trial on the issue of whether the defendant breached his fiduciary duty to the plaintiff through his handling of the LLC's revenues. II Next, the LLC claims that the court erred by concluding that the defendant did not have the intent necessary to be found liable for statutory theft. We disagree. "Statutory theft under [General Statutes] § 52-564 is synonymous with larceny under General Statutes § 53a-119.... Pursuant to § 53a-119, [a] person commits larceny when, with intent to deprive another of property or to appropriate the same to himself or a third person, he wrongfully takes, obtains or [withholds] such property from an owner. . Conversion can be distinguished from statutory theft as established by § 53a-119 in two ways. First, statutory theft requires an intent to deprive another of his property; second, conversion requires the owner to be harmed by a defendant's conduct. Therefore, statutory theft requires a plaintiff to prove the additional element of intent over and above what he or she must demonstrate to prove conversion." (Internal quotation marks omitted.) Deming v. Nationwide Mutual Ins. Co. , 279 Conn. 745, 771, 905 A.2d 623 (2006). The court concluded as follows with regard to the statutory theft count: "The court finds the evidence presented by the plaintiffs is not sufficient to prove that the defendant had the requisite intent to deprive the LLC of its assets for his own personal appropriation and benefit. The defendant and the plaintiff were partners in a business with the plaintiff leaving almost all of the responsibility for the daily operations of the bar to the defendant. There was no evidence of a written operating agreement, only evidence of a contradictory verbal understanding between the parties. The defendant presented evidence that the understanding of the parties was that he would first be provided a salary from any profits, to the extent there were any, since he was the only one actively involved in the business. The plaintiffs claim that the parties' intent was to share all profits equally, but they do not allege a claim to any profits from the period when the plaintiff was not actively working at the bar. Although clearly improper, the cash that the defendant took was not used for his own benefit, but to pay the employees of the bar and other expenses of the business. He also used the bar's asset, specifically the barter agreement, only when the bar would lose the value of its exchange if it went unused. "The defendant admitted to his lack of business acumen and hired an accountant to ensure that the proper business accounting was kept and taxes were filed. The plaintiffs have not shown the requisite intent on the part of the defendant, and the court finds that the plaintiffs have not sustained their burden of proof to establish statutory theft. Therefore, the court finds for the defendant and against the LLC on count two, alleging statutory theft." "[T]he question of intent is purely a question of fact. . Intent may be, and usually is, inferred from the defendant's verbal or physical conduct. . Intent may also be inferred from the surrounding circumstances. . The use of inferences based on circumstantial evidence is necessary because direct evidence of the [defendant's] state of mind is rarely available." (Internal quotation marks omitted.) Fernwood Realty, LLC v. AeroCision, LLC , 166 Conn.App. 345, 359, 141 A.3d 965, cert. denied, 323 Conn. 912, 149 A.3d 981 (2016). "[W]here the factual basis of the court's decision is challenged we must determine whether the facts set out in the memorandum of decision are supported by the evidence or whether, in light of the evidence and the pleadings in the whole record, those facts are clearly erroneous." (Internal quotation marks omitted.) Id., at 356, 141 A.3d 965. "A finding of fact is clearly erroneous when there is no evidence in the record to support it . or when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed ." (Internal quotation marks omitted.) Id., at 369, 141 A.3d 965. The court's finding that the defendant lacked the intent to commit theft under § 52-564 is not clearly erroneous. There was evidence presented at trial tending to show that, although the defendant had perhaps been sloppy in documenting the LLC's financials, he did not intend to deprive the LLC of its revenues for his personal benefit. The defendant was inexperienced in running a bar, a deficiency undoubtedly compounded by the fact that he bore the largely undivided responsibility of managing it. In 2010, he hired an accountant to assist with the LLC's accounting and tax filing. Further, there was evidence that the defendant used the LLC's revenues to pay for the bar's expenses, including employee wages. This conduct does not amount to theft. As a final matter with respect to the LLC's revenues, we address an argument repeatedly pressed by the plaintiffs in their appellate brief. As previously mentioned, at trial, the plaintiff entered as exhibits certain tax and accounting documents completed on behalf of the LLC for the years 2010 to 2012. The LLC asserts that those documents show, more or less conclusively, that the defendant improperly took LLC revenues. We disagree. The record discloses the following evidence relevant to this argument. Among the tax and accounting documents entered as exhibits was the LLC's 2010 balance sheet. Libby, the plaintiff's accountant, testified at trial that the balance sheet showed revenues of $782,000 and income of $51,000 for that year. The plaintiff then entered as an exhibit the LLC's 2010 state sales tax returns. Libby testified that, in comparison to the figures shown on the balance sheet, the sales tax returns "showed sales larger . by $46,426." The plaintiff also entered as an exhibit the LLC's 2010 state and federal income tax returns, which, Libby testified, showed the same figures as on the balance sheet. Asked by the plaintiffs' attorney whether "the income reported on the LLC tax return[s] is $46,426 less than the actual sales . on the sales tax return?" Libby answered "correct." After examining other accounting documents for the LLC for the year 2010, which were admitted as exhibits, Libby testified that there was "a total of $122,435 of expenses that were taken on the return [s] that were unsubstantiated." The 2011 and 2012 tax and accounting documents entered as exhibits showed similar patterns. According to Libby, for 2011 there was a $185,142 difference between the LLC's revenues as reported on its balance sheet versus its sales tax returns, as well as $137,142 in unsubstantiated expenses. Libby testified that for 2012 the LLC had unsubstantiated expenses of $153,879. Libby further testified that "[b]ased on the [restaurant] industry standards . it appeared that the cost of sales, the purchase of the liquor and the food . [was] well above the typical benchmark for a restaurant. . [T]ypically . a restaurant would have [30] to [45] percent of their costs . this restaurant in those years was about [50] percent on sales." Asked by the plaintiffs' counsel, "[A]pplying that formula to the numbers representing the revenues for the [LLC], how much of an increase in revenues would that indicate should be applied to those figures?" Libby answered, "Conservatively, could be [$75,000] to [$125,000] per year." These documents, together with Libby's testimony, appear to suggest that the LLC underreported revenues on certain accounting documents and tax returns, and that at least some of the LLC's expenses were unsubstantiated. We fail to see, however, how the documents necessarily lead to the conclusion that the defendant stole LLC revenues. The documents are equally consistent with another plausible scenario: that the operating agreement entitled the defendant to the LLC's profits; see footnote 6 of this opinion; and that he simply failed to record some of the bar's expenses. Accordingly, this argument fails. As to the defendant's use of the barter program, the court's finding that the defendant's use of that program did not amount to statutory theft is not clearly erroneous. Again, the key question is whether the defendant had the specific intent to steal the LLC's property. See Deming v. Nationwide Mutual Ins. Co. , supra, 279 Conn. at 771, 905 A.2d 623; see also D. Borden & L. Orland, 10 Connecticut Practice Series: Criminal Law (2d Ed. 2007) § 53a-119, p. 246 ("[larceny] is a specific intent crime; the state must prove that the defendant acted with the subjective desire or knowledge that his actions constituted stealing"). The defendant testified that participation in the barter program was intended, at least in part, to attract new patrons to the bar. The defendant did admit to using some value in the barter account to provide dental services to one of the bar's employees, but said that it was to "use . up" the value in the account. He also cast the provision of the dental services as a way to boost employee morale: "[H]appy employees make better employees. I tried to help her." While evidently poor business judgment-as previously mentioned, the court found that such conduct constituted a breach of fiduciary duty to the plaintiff-the defendant's use of the barter program in this manner did not necessarily demonstrate a specific intent to steal. See D. Borden & L. Orland, supra, § 53a-119, p. 246. Finally, although the defendant did admit to using the barter program to have heating oil delivered to his house-a practice that, again, the court found constituted a breach of fiduciary duty, and which strikes us as more problematic than the practice relating to the dental services-we cannot conclude on the basis of the record that it necessarily evidences a specific intent to steal the LLC's property. If, for instance, the defendant merely took the oil in lieu of what would otherwise be distributed to him as salary, then, on balance, he did not deprive the LLC of its property. We are, therefore, not persuaded. III Both plaintiffs further claim that the court erred by concluding that an accounting was not warranted. We disagree. "An accounting is defined as an adjustment of the accounts of the parties and a rendering of a judgment for the balance ascertained to be due." (Internal quotation marks omitted.) Mankert v. Elmatco Products, Inc. , 84 Conn.App. 456, 460, 854 A.2d 766, cert. denied, 271 Conn. 925, 859 A.2d 580 (2004). "In any judgment or decree for an accounting, the court shall determine the terms and principles upon which such accounting shall be had." General Statutes § 52-401. "Courts of equity have original jurisdiction to state and settle accounts, or to compel an accounting, where a fiduciary relationship exists between the parties and the defendant has a duty to render an account." (Internal quotation marks omitted.) Mankert v. Elmatco Products, Inc. , supra, 84 Conn.App. at 460, 854 A.2d 766. "In an equitable proceeding, the trial court may examine all relevant factors to ensure that complete justice is done . The determination of what equity requires in a particular case, the balancing of the equities, is [therefore] a matter for the discretion of the trial court." (Internal quotation marks omitted.) Id., at 459, 854 A.2d 766. "An accounting is not available in an action where the amount due is readily ascertainable." (Internal quotation marks omitted.) Id., at 460, 854 A.2d 766. Both the plaintiff in her individual capacity and the LLC sought to compel the accounting. The court concluded, on the basis of Internet Airport Parking, LLC v. Parking Access, LLC , Superior Court, judicial district of Hartford, Docket No. CV-13-6044395-S (December 5, 2013) (57 Conn. L. Rptr. 265 ), that the plaintiff did not have standing in her individual capacity to compel an accounting because she had not "suffered any injury distinct from the one suffered by the LLC." The plaintiff does not appear to challenge this conclusion on appeal, nor, even if she did, is the issue adequately briefed. Accordingly, we do not review the merits of the court's determination that the plaintiff lacked standing in her individual capacity to compel an accounting. See State v. Henderson , 47 Conn.App. 542, 558-59, 706 A.2d 480, cert. denied, 244 Conn. 908, 713 A.2d 829 (1998). As to the LLC's request that the defendant account for the allegedly misappropriated revenues, the court concluded: "[T]he plaintiffs have not provided sufficient evidence on behalf of the LLC for the court to order an accounting of Central Cafe's business and financial records for the period from 2010 through 2012. The plaintiffs only had one meeting with their accountant and never asked for documentation from the defendant though they raised questions about operations, and the plaintiff was fully aware of and engaged in some of the complained of practices, specifically the payment of employees in cash." As to the defendant's use of the barter program, the court concluded: "[T]he plaintiff obtained the records related to the agreement and the loss was ascertainable." The LLC's claim consists of little more than a conclusory statement that the court's decision declining to order an accounting was an abuse of discretion. We conclude that the court properly exercised its discretion. "The right to accounting is not absolute, but should be accorded only on equitable principles." 1A C.J.S. 9, Accounting § 7 (2005). "While certain circumstances must be present, there is no guideline for determining when an accounting is warranted, and the court will consider the particular circumstances of each case." (Footnotes omitted.) Id., § 6, p. 8. The court evidently believed that the plaintiff had not shown a genuine need for an accounting based on her implicit acquiescence to the defendant's conduct at the time. The record bears this out. There was evidence presented at trial that the plaintiff engaged in, or at least tolerated, some of the very practices to which she objects. The plaintiff faults the defendant for paying employees "off the books," yet she testified to having done exactly the same. The plaintiff stated: "I didn't like it, but the employees, if they didn't get paid, they wouldn't work there and we would not have a business, and I was following [the defendant's] direction." The plaintiff also objects to the defendant's admittedly slapdash method of managing the LLC's revenues and paying for expenses, yet she appears to have been a participant in such methods, testifying that "[the defendant] gave [her] cash out of [the box in which the revenues were stored] to purchase food and stuff for banquets and for parties at the bar ." Further, the plaintiff did not demand documentation from the defendant relating to the LLC's financials until, at the earliest, 2010-nearly four years after the purchase of the bar. As for the bartering agreement, the plaintiffs had records pertaining to the defendant's use of it, and therefore any loss was ascertainable. See Mankert v. Elmatco Products, Inc. , supra, 84 Conn.App. at 460, 854 A.2d 766. The LLC nevertheless asserts that an accounting should be ordered on the basis of "[General Statutes §] 34-144 (e), [which] requires the defendant to hold as trustee 'any profit or benefit' obtained by him as manager of the LLC property." Section 34-144 (e), however, says no such thing. Instead, it is General Statutes § 34-141 (e) that provides in part: "Unless otherwise provided in writing in the articles of organization or the operating agreement, every member and manager must account to the limited liability company and hold as trustee for it any profit or benefit derived by that person ." The court did not address the applicability of this particular provision to the facts of this case, most likely because the plaintiffs' complaint never cites § 34-141 (e). It is not the trial court's responsibility to search the General Statutes for theories upon which a litigant may obtain relief but which the litigant does not adequately identify. Nor are we required to address the merits of an argument that was not properly raised before or addressed by the trial court. See Jahn v. Board of Education , 152 Conn.App. 652, 665, 99 A.3d 1230 (2014). We therefore decline to review the merits of this particular argument. IV Finally, the plaintiffs claim that the court erred by concluding that the defendant's conduct did not violate CUTPA. We disagree. General Statutes § 42-110b (a) provides: "No person shall engage in unfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce." "It is well settled that in determining whether a practice violates CUTPA we have adopted the criteria set out in the cigarette rule by the [F]ederal [T]rade [C]ommission for determining when a practice is unfair: (1) [W]hether the practice, without necessarily having been previously considered unlawful, offends public policy as it has been established by statutes, the common law, or otherwise . (2) whether it is immoral, unethical, oppressive, or unscrupulous; (3) whether it causes substantial injury to consumers, [competitors or other businesspersons]. . All three criteria do not need to be satisfied to support a finding of unfairness." (Internal quotation marks omitted.) Naples v. Keystone Building & Development Corp. , 295 Conn. 214, 227, 990 A.2d 326 (2010). In concluding that the defendant's conduct did not violate CUTPA, the court reasoned: "The plaintiffs have presented evidence of negligence, poor judgment, and inexperience. The plaintiffs rely on the evidence presented to support their claim for breach of fiduciary duty, but the evidence presented in this claim is not sufficient to rise to the level of conduct prohibited under CUTPA." Although we also question whether the present dispute is a mere "intracorporate conflict," and therefore not actionable under CUTPA; see Metcoff v. Lebovics , 123 Conn.App. 512, 519, 2 A.3d 942 (2010) ; the court's stated rationale is sufficient basis for affirmance. "It is well settled that whether a defendant's acts constitute . deceptive or unfair trade practices under CUTPA, is a question of fact for the trier, to which, on appellate review, we accord our customary deference." (Internal quotation marks omitted.) Ulbrich v. Groth , 310 Conn. 375, 433-34, 78 A.3d 76 (2013). Additionally, "[i]n the absence of aggravating unscrupulous conduct, mere incompetence does not by itself mandate a trial court to find a CUTPA violation." Naples v. Keystone Building & Development Corp. , supra, 295 Conn. at 229, 990 A.2d 326. The court found that the defendant's conduct was merely negligent, and therefore did not rise to a violation of CUTPA. This finding is adequately supported by the evidence adduced at trial. See part II of this opinion. Accordingly, we reject this claim. The judgment is reversed in part and the case is remanded for a new trial with respect to the plaintiff's allegation in count one that the defendant breached his fiduciary duty to her by allegedly misappropriating LLC revenues. The judgment is affirmed in all other respects. In this opinion the other judges concurred. The defendant has not participated in this appeal and, therefore, does not challenge the court's finding, not reproduced in this opinion, that a fiduciary relationship existed between the plaintiff and the defendant by virtue of their membership in the LLC. For purposes of this appeal, we therefore assume, without deciding, that such relationship existed. As previously mentioned, the court awarded the plaintiff damages of $10,191.25 for misuse of the barter agreement. Those damages reflected value in the bar's barter account that the defendant used to have heating oil delivered to his house and to provide one of the bar's employees with dental services. We express no opinion as to whether the defendant's conduct with respect to the LLC's revenues actually constituted fraud or a breach of fiduciary duty. The damages that the plaintiff recites in this claim appear to be limited to those revenues that the defendant allegedly improperly took from 2010 to 2012. The evidence shows that, by 2010, the plaintiff had begun working regularly at the bar, but from that time until 2012, it appears that the defendant still shouldered the majority, if not all, of the managerial responsibilities. The fact that the defendant paid some employees "off the books" for a period of time-a practice that, it should be noted, the plaintiff also engaged in; see part III of this opinion-does not, in and of itself, constitute theft of LLC revenues. To the extent that the LLC claims that the defendant's disposition of the bar's profits-that is, revenues less expenses-evidences an intent to steal, we conclude that the plaintiff was unable to show that the defendant improperly took those profits. As previously mentioned in the body of this opinion, there was no written operating agreement for the LLC, only what appears to be an oral one. See generally General Statutes § 34-101 (17) (operating agreement can be written or oral). The plaintiff argued at trial that she and the defendant agreed to split the profits evenly, while the defendant maintained that the two agreed that he would take the profits, if any, as his salary in exchange for managing the bar. The court did not explicitly credit one party's account over the other's. Nevertheless, because the burden of proving statutory theft belonged to the plaintiff, it was her responsibility to show that the defendant took profits properly belonging to her. In light of all of the evidence, the court reasonably could have concluded that she failed to make such showing. General Statutes § 34-152, which provides in part that profits "shall be allocated on the basis of the value of the contributions made by each member," does not alter our conclusion. Such allocation pursuant to § 34-152 occurs only when the operating agreement is silent as to the division of profits. By contrast, in this case, there was evidence of an oral operating agreement whose terms allocated the profits in a certain way. The parties simply dispute what those terms were. Although the plaintiffs, in their complaint, recite a portion of the languageof General Statutes § 34-141 (e), they incorrectly cite it as General Statutes § 34-142 (c). General Statutes § 34-142 (c) does not exist, and § 34-142 has no relevance to the duty of a member of a limited liability company to account for or hold as trustee property of the limited liability company.

12489520

Debbie A. LEVANTI v. Margaret D. CONWAY et al.

Levanti v. Conway

2017-05-02

No. 38437

448

448

158 A.3d 448

158

West's Atlantic Reporter, Third Series

Connecticut Appellate Court

Connecticut

2021-08-27T20:57:14.014548+00:00

Fastcase

Debbie A. LEVANTI v. Margaret D. CONWAY et al.

Debbie A. LEVANTI v. Margaret D. CONWAY et al. No. 38437 Appellate Court of Connecticut. Argued April 5, 2017 Officially released May 2, 2017

30

180

Per Curiam. The judgment is affirmed.

12489519

STATE of Connecticut v. Raymond MARTIN

State v. Martin

2017-05-02

No. 38611

448

448

158 A.3d 448

158

West's Atlantic Reporter, Third Series

Connecticut Appellate Court

Connecticut

2021-08-27T20:57:14.014548+00:00

Fastcase

STATE of Connecticut v. Raymond MARTIN

STATE of Connecticut v. Raymond MARTIN No. 38611 Appellate Court of Connecticut. Argued April 10, 2017 Officially released May 2, 2017

51

307

Per Curiam. The judgment of the trial court's dismissal of the motion to correct an illegal sentence is affirmed. See State v. Delgado, 323 Conn. 801, 151 A.3d 345 (2016).

12489518

Jerome THORPE v. COMMISSIONER OF CORRECTION

Thorpe v. Comm'r of Corr.

2017-05-02

No. 39101

448

448

158 A.3d 448