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12498828

STATE of Connecticut v. Donald RAYNOR

State v. Raynor

2018-05-08

AC 41018

652

664

189 A.3d 652

189

West's Atlantic Reporter, Third Series

Connecticut Appellate Court

Connecticut

2021-08-31T19:05:39.044951+00:00

Fastcase

STATE of Connecticut v. Donald RAYNOR

STATE of Connecticut v. Donald RAYNOR AC 41018 Appellate Court of Connecticut. Argued January 31, 2018 Officially released May 8, 2018 Andrew O'Shea, with whom was Damon Kirsch-baum, for the appellant (defendant). James A. Killen, senior assistant state's attorney, with whom, on the brief, were Gail P. Hardy, state's attorney, and Patrick Griffin, state's attorney, for the appellee (state). Keller, Elgo and Eveleigh, Js.

5674

35659

EVELEIGH, J. The defendant, Donald Raynor, appeals from the judgment of conviction, rendered following a jury trial, of murder in violation of General Statutes § 53a-54a(a). On appeal, the defendant claims that the trial court (1) improperly denied the defendant's motion in limine to exclude or limit the scope of the testimony of the state's expert witness on firearm and toolmark identification, and (2) abused its discretion by granting the state's motion for uncharged misconduct related to a shooting that occurred approximately eight months after the events of this case. We disagree and, accordingly, affirm the judgment of the trial court. The following facts, which a jury reasonably could have found, and procedural history are relevant to this appeal. The defendant and Jose Rivera were members of the Money Green Bedrock (Bedrock) street gang in Hartford. The victim was a member of The Avenue, another Hartford street gang. Bedrock and The Avenue are rival gangs, and the defendant and Rivera viewed members of The Avenue as "the enemy." Prior to the events giving rise to this case, there were two incidents between the rival gangs involving the defendant and the victim. The first incident involved the victim firing shots at the defendant and another Bedrock member. The second incident, which occurred approximately one week prior to the events of this case, involved the victim spotting the defendant and Rivera on The Avenue's territory and subsequently taking a picture of the defendant's vehicle leaving the area. Following the second incident, the defendant stated to Rivera that the victim "had to go," which Rivera understood to mean that the victim "had to get killed for what he did." During the early morning hours of June 18, 2007, the defendant called Rivera and stated that he wanted to find members of The Avenue and test out a .223 caliber assault rifle. Rivera understood this to mean that, "[b]asically, he wanted to go look [for] and kill some-body." The defendant picked up Rivera and drove to a parking lot located behind Bedford Street where there was an abandoned vehicle in which the defendant and Rivera stored guns and drugs. The defendant then put on latex gloves, removed a .223 caliber assault rifle from the trunk of the abandoned vehicle, and loaded the rifle. The defendant and Rivera then got back into the vehicle that they were driving; Rivera drove the vehicle and the defendant sat in the backseat. Rivera drove the vehicle around areas that he and the defendant knew were frequented by members of The Avenue. While Rivera was driving on Enfield Street, he informed the defendant that he saw the victim standing on the sidewalk having a conversation with a woman. The defendant instructed Rivera to go around the block, and Rivera complied. As Rivera turned back onto Enfield Street, he lowered the back window and began to slow down. As the vehicle approached the victim and the woman, the defendant hung out the back window and began shooting at the victim. The victim attempted to run away but made it only three steps before he fell to the ground. The defendant continued to fire at the victim while he was on the ground. He fired at least ten to fifteen shots at the victim, who died as a result of gunshot wounds to the chest and neck. In 2008, the police recovered a .223 Kel-Tec assault rifle in an unrelated investigation. In 2011, Rivera gave a statement to the police in which he confessed to his involvement in the victim's murder and implicated the defendant. Rivera also identified the .223 Kel-Tec assault rifle that the police had recovered in 2008 as the weapon that the defendant used to shoot the victim. In 2014, the defendant was charged, in a long form information, with murder in violation of § 53a-54a(a), conspiracy to commit murder in violation of § 53a-54a(a) and General Statutes § 53a-48(a), and criminal use of a firearm in violation of General Statutes § 53a-216(a). A trial on these charges commenced in September, 2014, and ended in a mistrial because the jury was unable to reach a verdict. A second trial commenced in March, 2015, in which the defendant was charged only with one count of murder in violation of § 53a-54a(a). The jury found the defendant guilty, and the court sentenced him to a total effective sentence of sixty years of imprisonment. This appeal followed. Additional facts and procedural history will be set forth as necessary. I The defendant's first claim on appeal is that the court abused its discretion by denying his motion in limine in which he sought to exclude or limit the scope of the testimony of James Stephenson, the state's expert firearm and toolmark examiner. The defendant raises the following arguments in support of this claim: (1) recent studies have established that the methodology underlying firearm and toolmark identification is not sufficiently reliable; (2) the court improperly denied his request for a 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), to determine the reliability of firearm and toolmark identification; (3) the court improperly allowed Stephenson to opine that various cartridge casings recovered from the crime scene were fired from a particular firearm; and (4) the court improperly denied his motion to limit the scope of Stephenson's testimony. We disagree. "It is axiomatic that [t]he trial court's ruling on the admissibility of evidence is entitled to great deference. In this regard, the trial court is vested with wide discretion in determining the admissibility 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 . 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. Legnani , 109 Conn. App. 399, 418, 951 A.2d 674, cert. denied, 289 Conn. 940, 959 A.2d 1007 (2008). "In [ Porter ], our Supreme Court 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 . The court, however, did not define what constituted scientific evidence, thereby allowing the courts to maintain some flexibility in applying the test. As a result, a court's initial inquiry should be whether the [evidence] at issue . is the type of evidence contemplated by Porter . In Porter , our Supreme Court noted that some scientific principles have become so well established that an explicit . analysis [under Daubert v. Merrell Dow Pharmaceuticals, Inc. , 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed. 2d 469 (1993) ] is not necessary for admission of evidence there-under . Evidence derived from such principles would clearly withstand a Daubert analysis, and thus may be admitted simply on a showing of relevance." (Citations omitted; internal quotation marks omitted.) State v. Legnani , supra, 109 Conn. App. at 419, 951 A.2d 674. The following additional facts and procedural history are relevant to the resolution of this claim. Prior to Stephenson's testimony, the defendant filed a motion in limine in which he requested a Porter hearing to determine whether the methodology underlying firearm and toolmark identification was reliable. In the alternative, the defendant sought to limit Stephenson's testimony so that he could not state his conclusions to a particular degree of certainty but, instead, would have been required to state that his conclusions were "merely more likely than not . correct." In support of his request for a Porter hearing, the defendant relied on multiple studies that called into question the scientific validity of firearm and toolmark identification. The defendant also relied upon United States v. Glynn , 578 F.Supp.2d 567 (S.D.N.Y. 2008), to support his alternative argument that the scope of Stephenson's testimony should be limited to opining that his conclusions were "more likely than not" correct. Following argument on the motion, the court denied the defendant's motion in limine and request for a Porter hearing, relying on State v. Legnani , supra, 109 Conn. App. at 399, 951 A.2d 674. The court reasoned that firearm and toolmark evidence is "forensic science [that] has been well established, and we have a case, [ Legnani ] . which stands for the proposition that this is not a new science. Therefore, a Porter hearing is not necessary." The court also denied the defendant's request to limit Stephenson's testimony to state that his conclusions were "more likely than not . correct." Stephenson subsequently testified before the jury that it was possible to determine whether the bullets or cartridge casings recovered from a crime scene could be identified as having been fired from a particular firearm. In fact, twelve of the fifteen cartridge casings recovered from the Enfield Street shooting were "positively matched" to the .223 Kel-Tec assault rifle that Rivera had identified as the firearm that the defendant used to shoot the victim. Although the three remaining cartridge casings were the same size and weight as a .223 caliber shell casing and contained similar toolmarks, there was not sufficient detail for a positive identification to the particular firearm in evidence. The examiner determined that the three remaining cartridge casings produced inconclusive results. Stephenson also testified regarding the Association of Firearm and Tool Mark Examiners (association) and its theory of identification. The association's theory of identification is generally accepted in the science of firearm and toolmark identification, and the Connecticut Forensic Science Laboratory follows the guidelines from this theory. Stephenson conceded, however, that recent studies and reports have critiqued the science of firearm and toolmark identification. Stephenson testified regarding the NAS Report and the Ballistic Imaging studies; see footnote 2 of this opinion; and explained that he viewed some, but not all, of the critiques in those studies as valid. Defense counsel also highlighted the ways in which firearm and toolmark identification does not follow precisely the scientific method-i.e., by not protecting against confirmation bias-and that the association's theory of identification is not a completely objective theory. On appeal, the defendant claims that the court abused its discretion by denying his motion in limine and request for a Porter hearing. The defendant argues that the NAS Report and the Ballistic Imaging studies establish that the methodology underlying firearm and toolmark identification is not reliable, and as a result, the court should have precluded Stephenson from opining that particular cartridge casings positively matched the firearm in evidence. In the alternative, the defendant argues that the court should have limited Stephenson's testimony so that he could opine only that his conclusions were "more likely than not . correct." The state argues that the court properly relied upon State v. Legnani , supra, 109 Conn. App. at 399, 951 A.2d 674, in concluding that the admissibility of firearm and toolmark identification evidence is well established and, therefore, properly denied the defendant's motion. We agree with the state. This court's decision in Legnani controls our resolution of this claim. In Legnani , the defendant requested that the trial court hold a Porter hearing to determine whether the comparison between a firearm's magazine that was recovered from the defendant's home and fired cartridge casings that were recovered from the crime scene was relevant and supported by a valid methodology. Id., at 415-16, 951 A.2d 674. The state argued that a Porter hearing was not necessary, as the evidence fell within the general category of firearm and toolmark identification, which courts routinely have held admissible. Id., at 416, 951 A.2d 674. The trial court held an evidentiary hearing-not a Porter hearing-during which the state called an expert witness in the field of firearm and toolmark identification. Id. The defendant did not call any witnesses during the evidentiary hearing, and the court subsequently denied the defendant's request for a Porter hearing. Id., at 417, 951 A.2d 674. In so doing, the court stated that it "need not conduct a Porter type hearing in this case because the scientific principles of ballistics and firearms analysis are very well established and can be admitted on a mere showing [of] relevance." (Internal quotation marks omitted.) Id. On appeal, the defendant in Legnani argued that the trial court improperly denied his request for a Porter hearing. Id., at 415, 951 A.2d 674. This court noted that "[s]everal times during the cross-examination of [the expert], defense counsel attempted to inquire into the specific methodology used by [the firearm and toolmark examiner]. The court precluded defense counsel from delving too deeply into the specific methodology used, sustaining the state's objection that the specific methodology used pertains to the weight of the evidence and not to the request for a Porter hearing." Id., at 417, 951 A.2d 674. This court concluded that "identifying marks made on the magazine by the cartridge casings is merely a subset of the science of firearm and tool mark identification, which has been well established and admissible evidence under prior case law . Because identifying the magazine markings is a subset of the well established and admissible science and practice of firearm and tool mark identification , the court did not have to subject evidence related thereto to a Porter hearing. As a result, we conclude that the court did not abuse its discretion in refusing to hold a Porter hearing." (Citations omitted; emphasis added.) Id., at 420-21, 951 A.2d 674. Legnani is controlling precedent on the issue of whether the science of firearm and toolmark identification is well established, and thus binds our resolution of this claim. The defendant argues that Legnani is inapplicable because it predates the NAS Report, the Ballistic Imaging study, and other sources that question the validity of firearm and toolmark identification. Although Legnani was decided prior to these reports being published, these reports do not overrule or otherwise abrogate the existing case law in this state; nor do the district court cases or the cases from other states that the defendant has cited in support of this claim. More importantly, the defendant did not proffer his own expert witness to testify that the science of firearm and toolmark identification is not reliable. The evidence admitted during the cross-examination of Stephenson included the flaws and criticisms of firearm and toolmark identification. The jury was free to give this evidence as much or as little weight as it saw fit. See State v. Osbourne , 138 Conn. App. 518, 533-34, 53 A.3d 284 ("[i]t is axiomatic that it is the jury's role as the sole trier of the facts to weigh the conflicting evidence and to determine the credibility of witnesses" [internal quotation marks omitted] ), cert. denied, 307 Conn. 937, 56 A.3d 716 (2012). A Porter hearing to determine the validity of firearm and toolmark identification was not required. The state had to establish only that the firearm and toolmark evidence was relevant, which it did. Therefore, we conclude that the court properly relied upon Legnani , and did not abuse its discretion by denying the defendant's motion in limine to exclude or limit Stephenson's testimony. II The defendant's second claim on appeal is that the court abused its discretion by granting the state's motion for the admission of uncharged misconduct evidence. The defendant argues that the probative value of the uncharged misconduct evidence was outweighed by the risk of unfair prejudice. The state argues that the court properly admitted the evidence to establish identity and means. We agree with the state. The following additional facts and procedural history are relevant to the resolution of this claim. Prior to the start of the second trial, the state filed a motion in which it sought to introduce uncharged misconduct evidence related to a shooting on Baltimore Street that had occurred eight months after the shooting of the victim. The state argued that the uncharged misconduct evidence was admissible to establish identity and means. The defendant opposed this motion, arguing that the evidence was more prejudicial than probative because the evidence showed only "that this gun was used on a separate occasion potentially by [the defendant] to shoot at another person that he's not charged with [shooting] in this case . It's the very sort of thing that yields the prejudice/probative . calculus . in the prohibition against propensity evidence . [W]e think the state has everything it needs to prove the manner and means of the homicide as charged, [and] that to introduce another shooting, the gun charged in this case, is prejudicial, and in mar of the propensity of evidence rule." The court granted the state's motion for uncharged misconduct on the basis of its interpretation of the rules of evidence, and concluded that evidence of the Baltimore Street shooting fell within the identity and means exceptions of § 4-5(c) of the Connecticut Code of Evidence. At trial, Deborah Parker, the target of the Baltimore Street shooting, testified that at approximately 2:30 a.m., on February 16, 2008, she and Daryl Spence returned to their residence on Baltimore Street in Hartford, where they resided with their two sons. As Parker and Spence prepared to exit their vehicle, Parker noticed two men walking in the street. As the men approached, one man fired a handgun in Parker's direction. The other man then raised a rifle and began firing it in Parker's direction. Parker took cover underneath a vehicle and Spence ran away to hide elsewhere. Parker saw the faces of both shooters, which were made visible due to the streetlight. She also noticed that the man with the rifle was wearing white or light colored gloves. Neither Parker nor Spence was injured. Later that morning, Parker's sons were looking online through pictures of a concert that they had attended the night before. While Parker was passing by, she saw on the computer screen a photograph of two men, whom she recognized as the men who had shot at her just hours before. She identified the defendant as the man who had shot the rifle in her direction. Parker testified that she called the detective who was assigned to investigate the shooting to report the identity of the shooters. Because the detective never got back to her, however, she "left the whole situation alone." In August, 2011, Parker met with a cold case detective in Hartford to review photographs related to the Baltimore Street shooting. During this meeting, Parker identified the defendant's picture in a photographic array and circled it to indicate that he was involved in the shooting. In a separate photographic array, Parker identified the second shooter as an individual named Ezekiel. Stephenson testified regarding the cartridge casings that were recovered from the Baltimore Street shooting. There were twenty-two cartridge casings recovered, seventeen of which were positively matched to the .223 Kel-Tec assault rifle that Rivera identified as the firearm the defendant had used in the Enfield Street shooting. See part I of this opinion. On appeal, the defendant does not challenge the court's conclusion that the uncharged misconduct evidence was relevant to establish identity and means. Accordingly, the only question we must resolve with respect to this claim is whether the court abused its discretion in concluding that the probative value of the uncharged misconduct evidence outweighed its prejudicial effect. The defendant argues that the evidence is more prejudicial than probative because "Parker's identification of the defendant was exceedingly unreliable," that the similarities between the charged and uncharged conduct render admission of the uncharged misconduct overly prejudicial, and that the uncharged misconduct evidence painted the defendant as a "deranged gun-man." We disagree. "[A]s a general rule, evidence of prior misconduct is inadmissible to prove that a criminal defendant is guilty of the crime of which the defendant is accused . Such evidence cannot be used to suggest that the defendant has a bad character or a propensity for criminal behavior . On the other hand, evidence of crimes so connected with the principal crime by circumstance, motive, design, or innate peculiarity, that the commission of the collateral crime tends directly to prove the commission of the principal crime, is admissible. The rules of policy have no application whatever to evidence of any crime which directly tends to prove that the accused is guilty of the specific offense for which he is on trial . We have developed a two part test to determine the admissibility of such evidence. First, the evidence must be relevant and material to at least one of the circumstances encompassed by the exceptions [set forth in § 4-5(b) of the Connecticut Code of Evidence ]. . Second, the probative value of the evidence must outweigh its prejudicial effect . Because of the difficulties inherent in this balancing process, the trial court's decision will be reversed only whe[n] abuse of discretion is manifest or whe[n] an injustice appears to have been done . On review by this court, therefore, every reasonable presumption should be given in favor of the trial court's ruling . "The well established exceptions to the general prohibition against the admission of uncharged misconduct [evidence] are set forth in § 4-5(b) of the Connecticut Code of Evidence, which provides in relevant part that [e]vidence 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." (Citation omitted; footnote added; internal quotation marks omitted.) State v. Collins , 299 Conn. 567, 582-83, 10 A.3d 1005, cert. denied, 565 U.S. 908, 132 S.Ct. 314, 181 L.Ed. 2d 193 (2011). "In determining whether the prejudicial effect of otherwise relevant evidence outweighs its probative value, we consider whether: (1) . the facts offered may unduly arouse the jury's emotions, hostility or sympathy, (2) . the proof and answering evidence it provokes may create a side issue that will unduly distract the jury from the main issues, (3) . the evidence offered and the counterproof will consume an undue amount of time, and (4) . the defendant, having no reasonable ground to anticipate the evidence, is unfairly surprised and unprepared to meet it." (Internal quotation marks omitted.) Id., at 586-87, 10 A.3d 1005. Our Supreme Court's decision in State v. Collins , supra, 299 Conn. at 567, 10 A.3d 1005, guides our resolution of this claim. In Collins , the trial court admitted evidence of uncharged misconduct related to another shooting in which the defendant allegedly was involved. Id., at 569-70, 580, 10 A.3d 1005. The state's firearm and toolmark examiner testified that cartridge casings recovered from the scene of the murder at issue were fired from the same weapon that had been used in the uncharged crime. Id., at 572, 10 A.3d 1005. The state argued that such evidence was admissible because "it linked a gun owned and used by the defendant [in the uncharged shooting] to the shooting of [the victim] in this case." Id., at 577, 10 A.3d 1005. The defendant argued that the admission of such evidence was "highly prejudicial and of little probative value," and that the evidence "would inflame the jury" due to the similarities between the charged and uncharged shootings. (Internal quotation marks omitted.) Id., at 574-75, 10 A.3d 1005. On appeal, this court agreed that the trial court abused its discretion in admitting the uncharged misconduct evidence and reversed and remanded the case for a new trial. Id., at 576, 10 A.3d 1005. The state appealed to our Supreme Court, which reversed this court's judgment. Id., at 586, 10 A.3d 1005. In so doing, the court noted, inter alia, that "[u]ncharged misconduct evidence has been held not unduly prejudicial when the evidentiary substantiation of the vicious conduct, with which the defendant was charged, far outweighed, in severity, the character of his prior misconduct." (Internal quotation marks omitted.) Id., at 588, 10 A.3d 1005. The court also stated that it found "significant in mitigating any possible prejudice the limiting instructions . given by the trial court both during the testimony of relevant witnesses and during the final jury charge, which we presume the jury to have followed in the absence of any indication to the contrary." Id., at 590, 10 A.3d 1005. In addition, the court cited "numerous other [decisions from] federal and state courts that have rejected challenges, founded on undue prejudice, to the use of uncharged misconduct evidence in cases wherein the charged offenses were committed using the same gun that the defendant had utilized in [the uncharged] prior shootings." Id. Here, the severity of the charged conduct outweighed the severity of the uncharged conduct. The charged conduct derived from the drive-by shooting of the victim, which resulted in the death of the victim. The uncharged conduct derived from the attempted shooting of Parker and Spence, and did not result in any deaths or even any injuries. Cf. id., at 588, 10 A.3d 1005 (uncharged conduct related to prior, less severe shooting found admissible, where defendant charged with murder, felony murder, and robbery in first degree in connection with shooting death). Additionally, the court in the present case gave the jury limiting instructions on three occasions: (1) prior to the state first presenting evidence of the Baltimore Street shooting; (2) following Parker's testimony; and (3) during its final charge to the jury. These limiting instructions provided, inter alia, that the uncharged misconduct evidence was being admitted "solely to show or establish [the] identity of the person who committed the crimes alleged in this information, and the availability of the means to commit those crimes." On the basis of our review of the record, we conclude that the court did not abuse its discretion in determining that the probative value of the uncharged misconduct evidence outweighed its prejudicial effect. Although the facts of the uncharged misconduct involved the defendant attempting to shoot Parker and Spence, they were much less severe than those of the charged conduct and, therefore, admission of the uncharged misconduct evidence cannot be said to have unduly aroused the jury's emotions. Nor can we say that admission of the uncharged misconduct evidence created a distracting side issue, as the evidence admitted linked the rifle and the perpetrator of the uncharged shooting to the murder at issue in this case. Additionally, the presentation of evidence related to the Baltimore Street shooting did not take up an inordinate amount of time, as the presentation of the uncharged misconduct evidence comprised at most one and one-half days of a six day trial. Finally, the defendant was not unfairly surprised by the admission of this evidence, as it was admitted in the defendant's first trial and the state filed a pretrial motion for the admission of uncharged misconduct evidence. Accordingly, we conclude that the court did not abuse its discretion by admitting the uncharged misconduct evidence related to the Baltimore Street shooting. The judgment is affirmed. In this opinion the other judges concurred. Rivera pleaded guilty to one count of conspiracy to commit murder in violation of General Statutes § 53a-54a(a) and 53a-48 in connection with the murder of the victim in this case. See State v. Rivera , Superior Court, judicial district of Hartford, Docket No. CR-13-0670080-T (August 4, 2015). One such study was the Committee on Identifying the Needs of the Forensic Sciences Community, National Research Council, "Strengthening Forensic Science in the United States: A Path Forward," (2009), available at https://www.ncjrs.gov/pdffiles1/nij/grants/228091.pdf (last visited April 30, 2018) (NAS Report). The NAS Report explained that "[b]ecause not enough is known about the variabilities among individual tools and guns, we are not able to specify how many points of similarity are necessary for a given level of confidence in the result. Sufficient studies have not been done to understand the reliability and repeatability of the methods." Id., at 154. The study added that "[a]lthough some studies have been performed on the degree of similarity that can be found between marks made by different tools and the variability in marks made by an individual tool, the scientific knowledge base for toolmark and firearms analysis is fairly limited." Id., at 155. Another such study was the Committee to Assess the Feasibility, Accuracy, and Technical Capability of a National Ballistics Database, "Ballistic Imaging," (2008), available at http://www.nap.edu/catalog/12162.html (last visited April 30, 2018) (Ballistic Imaging). The Ballistic Imaging study found that "[t]he validity of the fundamental assumptions of uniqueness and reproducibility of firearms-related toolmarks has not yet been fully demonstrated." (Emphasis omitted.) Id., at 3. The court in United States v. Glynn , supra, 578 F.Supp.2d at 567, stated that "ballistics examination not only lacks the rigor of science but suffers from greater uncertainty than many other kinds of forensic evidence. Yet its methodology has garnered sufficient empirical support as to warrant its admissibility . The problem is how to admit it into evidence without giving the jury the impression . that it has greater reliability than its imperfect methodology permits. The problem is compounded by the tendency of ballistics experts . to make assertions that their matches are certain beyond all doubt, that the error rate of their methodology is zero, and other such pretensions. Although effective cross-examination may mitigate some of these dangers, the explicit premise of Daubert and Kumho Tire [Co., Ltd. v. Carmichael , 526 U.S. 137, 119 S.Ct. 1167, 143 L.Ed. 2d 238 (1999) ] is that, when it comes to expert testimony, cross-examination is inherently handicapped by the jury's own lack of background knowledge, so that the [c]ourt must play a greater role, not only in excluding unreliable testimony, but also in alerting the jury to the limitations of what is presented." (Citation omitted; internal quotation marks omitted.) United States v. Glynn , supra, at 574. The court ordered that any testimony from the ballistics expert would be limited to "only that a firearms match was more likely than not ." (Internal quotation marks omitted.) Id., at 574-75. The defendant urges this court to overrule Legnani. "[T]his court's policy dictates that one panel should not . reverse the ruling of a previous panel. The reversal may be accomplished only if the appeal is heard en banc." (Emphasis added; internal quotation marks omitted.) Boccanfuso v. Conner , 89 Conn. App. 260, 285 n.20, 873 A.2d 208, cert. denied, 275 Conn. 905, 882 A.2d 668 (2005). On November 27, 2017, the defendant filed a motion for consideration en banc, which this court denied on January 10, 2018. Additionally, the entire court has not ordered that this case be considered en banc pursuant to Practice Book § 70-7(b), nor are we persuaded that en banc review is warranted. Therefore, we will not overrule Legnani . We do acknowledge, however, that there has been some evolvement in the field of firearm and toolmark identification since this court decided Legnani . As the defendant pointed out before the trial court and in his briefs to this court, recent studies and cases have questioned the scientific validity of firearm and toolmark identification. We are familiar with the findings and conclusions of the NAS Report and the Ballistic Imaging studies, which explain the limitations that exist in the science of firearm and toolmark identification; see footnote 2 of this opinion; as well as the holding of United States v. Glynn , supra, 578 F.Supp.2d at 567, which limited the scope of the testimony regarding firearm and toolmark identification in that case. See footnote 3 of this opinion; see also State v. Burton , Superior Court, judicial district of New Haven, Docket No. CR-14-0150831-S (February 1, 2017) (court applied Legnani in ruling that firearm and toolmark identification evidence is reliable and not subject to Porter , but limited testimony of state's firearm and toolmark identification expert to be that recovered cartridge casing was consistent with being fired from particular firearm, and expert could not opine that recovered casing was match to particular firearm). Defense counsel also extensively cross-examined Stephenson regarding the recent criticisms of firearm and toolmark identification, during which Stephenson acknowledged the validity of at least some of those criticisms. Even if we were inclined to review the scientific validity of firearm and toolmark identification-and therefore inclined to review the holding of Legnani -the circumstances of the present case do not warrant a departure from our precedent. The defendant has not proffered his own expert to rebut the notion that firearm and toolmark evidence is sufficiently reliable as to be admitted without first requiring a Porter hearing. Therefore, we adhere to our precedent that holds that the admissibility of firearm and toolmark identification is well established. The court also noted that its decision was based, in part, on the law of the case doctrine, as the evidence had been admitted in the defendant's first trial. On three occasions, the court gave the jury a limiting instruction regarding the use of the uncharged misconduct evidence. When State v. Collins , 299 Conn. 567, 10 A.3d 1005, cert. denied, 565 U.S. 908, 132 S.Ct. 314, 181 L.Ed. 2d 193 (2011), was decided, the 2009 edition of the Connecticut Code of Evidence was applied in that case. In the 2009 edition, the exceptions to the propensity of the evidence rule were found in § 4-5(b). By the time of the trial in the present case, however, a new edition of the Code of Evidence had been released, and § 4-5(b) has been transferred to § 4-5(c). "In the absence of a showing that the jury failed or declined to follow the court's instructions, we presume that it heeded them." (Internal quotation marks omitted.) State v. Santiago , 269 Conn. 726, 762, 850 A.2d 199 (2004). In addition, as the state notes, three of the witnesses who testified about the uncharged Baltimore Street shooting testified primarily about the charged conduct.

12489768

Michael J. O'BRIEN v. Kathleen E. O'BRIEN

O'Brien v. O'Brien

2017-06-27

SC 19635

1236

1264

161 A.3d 1236

161

West's Atlantic Reporter, Third Series

Connecticut Supreme Court

Connecticut

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

Fastcase

Rogers, C.J., and Palmer, McDonald, Espinosa, Robinson and Vertefeuille, Js.

Michael J. O'BRIEN v. Kathleen E. O'BRIEN

Michael J. O'BRIEN v. Kathleen E. O'BRIEN SC 19635 Supreme Court of Connecticut. Argued December 14, 2016 officially released June 27, 2017 Daniel J. Krisch, with whom was Aidan R. Welsh, for the appellant (defendant). Daniel J. Klau, for the appellee (plaintiff). Rogers, C.J., and Palmer, McDonald, Espinosa, Robinson and Vertefeuille, Js.

13211

81352

PALMER, J. In this certified appeal arising from a marital dissolution action, we must determine whether a trial court properly may consider a party's violation of a court order when distributing marital property, even if the trial court finds that the violation is not contemptuous. The plaintiff, Michael J. O'Brien, filed this action to dissolve his marriage to the defendant, Kathleen E. O'Brien. During the pendency of the action, the plaintiff sold shares of stock and exercised certain stock options without first receiving permission from either the defendant or the trial court, as required by Practice Book § 25-5, which also provides that a party who fails to obey the orders automatically entered thereunder may be held in contempt of court. The trial court found that the plaintiff's transactions violated those orders but did not hold the plaintiff in contempt because the court concluded the violations were not wilful. Nevertheless, because the transactions had caused a significant loss to the marital estate, the court considered that loss when it distributed the marital property between the parties, awarding a greater than even distribution to the defendant. On appeal, the Appellate Court concluded that, in the absence of a finding of contempt, the trial court lacked the authority to afford the defendant a remedy for the plaintiff's violation of the automatic orders. See O'Brien v. O'Brien , 161 Conn.App. 575, 591, 128 A.3d 595 (2015). We thereafter granted the defendant's petition for certification to appeal, limited to the following issue: "Did the Appellate Court correctly determine that the trial court abused its discretion when it considered the plaintiff's purported violations of the automatic orders in its decision dividing marital assets [even though the court did not hold the plaintiff in contempt of court for those violations]?" O'Brien v. O'Brien , 320 Conn. 916, 131 A.3d 751 (2016). We agree with the defendant that the trial court properly exercised its discretion in considering the plaintiff's violations of the automatic orders in its division of the marital assets, and, therefore, we reverse the judgment of the Appellate Court. The Appellate Court's opinion and the record contain the following undisputed facts and procedural history relevant to this appeal. The parties were married in 1985 and had three children together, all of whom were under the age of eighteen when the trial court rendered the dissolution judgment. See O'Brien v. O'Brien , supra, 161 Conn.App. at 578, 128 A.3d 595. The parties are each well educated and have had lucrative careers. See id. The plaintiff holds a law degree and is employed as senior vice president, general counsel, and secretary of Omnicom Group, Inc. (Omnicom). Id. His base salary is $700,000 per year, and his compensation has also included a cash bonus of varying amounts and noncash compensation, usually in the form of stock or stock options. Id. In the years leading up to the dissolution, the plaintiff's annual cash compensation averaged at least $1.2 million, along with additional noncash compensation. See id. The defendant holds a college degree and was previously employed as a managing director for Credit Suisse, earning more than $1 million annually. Id. She left her employment in 2003 to devote her time to raising the parties' children. Id. The defendant later participated in a "returnship" program with JP Morgan Chase, earning about $143,000 annually. Id. At the time of the dissolution action, the parties' assets consisted principally of numerous bank and investment accounts, their principal residence in the town of Greenwich, a second home, and personal property. The plaintiff also held vested shares of Omnicom stock and unvested Omnicom stock options. The plaintiff filed the present action in 2008, alleging that the marriage had irretrievably broken down. See id., at 579, 128 A.3d 595 and n.3. He sought a judgment dissolving the marriage, an equitable division of the marital estate, and orders regarding child custody and support. Attached to the plaintiff's complaint was a copy of the automatic orders required by Practice Book § 25-5 (d). In accordance with the requirement of § 25-5 (b) (1), that attachment included the admonition that the parties were not permitted to "sell, transfer, exchange, assign, remove, or in any way dispose of . any property" while the dissolution action was pending without the prior consent of the other party or the court. The trial court rendered judgment dissolving the parties' marriage in September, 2009. The court also entered custody orders regarding the minor children and financial orders distributing the marital property between the parties. In its financial orders, the trial court effectively awarded 55 percent of the marital assets to the defendant and 45 percent to the plaintiff. O'Brien v. O'Brien , supra, 161 Conn.App. at 580, 128 A.3d 595. These marital assets included all of the plaintiff's vested and unvested Omnicom stock shares and options. See id., at 580 n.4, 128 A.3d 595. The trial court also ordered the plaintiff to pay unallocated alimony and child support to the defendant. See O'Brien v. O'Brien , 138 Conn.App. 544, 545-46, 53 A.3d 1039 (2012), cert. denied, 308 Conn. 937, 938, 66 A.3d 500 (2013). The plaintiff appealed from the trial court's financial orders, challenging, inter alia, its unallocated alimony and child support award. Id., at 545, 53 A.3d 1039. The Appellate Court agreed with the plaintiff's claim concerning the alimony and child support award and reversed the trial court's judgment as to its financial orders, but did not disturb the decree dissolving the marriage. See id., at 546, 557, 53 A.3d 1039. The Appellate Court remanded the case to the trial court for a new trial on all financial issues. Id., at 557, 53 A.3d 1039. The parties do not dispute that the appeal stayed the trial court's financial orders and that the automatic orders remained in effect during the pendency of the appeal. While the dissolution action or the appeal from the judgment of dissolution was pending-and while the automatic orders thus remained in effect-the plaintiff executed three stock transactions that are the subject of the present appeal. See O'Brien v. O'Brien , supra, 161 Conn.App. at 579, 581, 128 A.3d 595. The plaintiff made the first transaction in February, 2009, one year after filing the dissolution action but before the dissolution decree entered in September, 2009. See id., at 579, 128 A.3d 595. In the first transaction, the plaintiff sold all of his 28,127 vested Omnicom shares. Id. He did so without first seeking the consent of the defendant or the approval of the trial court. Id. According to the plaintiff, he was concerned about volatility in the stock market following a market decline in 2008 and thought that preserving the current value of the shares through a sale was in the parties' best, immediate interest. See id. The plaintiff placed the proceeds from the sale into a bank account and disclosed the sale to the defendant approximately two months later when he submitted an updated financial affidavit. The plaintiff executed the second and third transactions in 2010 and 2012, respectively, after the original trial and while the first appeal was pending. See id., at 581, 128 A.3d 595. In these two transactions, the plaintiff exercised a total of 75,000 Omnicom stock options that he had received as part of his noncash compensation while the dissolution action was still pending and before the trial court rendered judgment dissolving the marriage. Id. The options had vested after the trial court's dissolution judgment was rendered but before the Appellate Court reversed the trial court's financial orders. See id., at 581-82, 128 A.3d 595. He exercised 22,500 options in the first transaction and 52,500 options in the second transaction. Each time, the plaintiff immediately converted the options to cash and retained the cash proceeds in a bank account. As with his earlier stock sale, the plaintiff did not seek consent from the defendant or approval from any judicial authority before exercising the options. Id. On remand, the defendant filed a motion for contempt with respect to the plaintiff's transactions. Id., at 582, 128 A.3d 595. The defendant asserted that the plaintiff's transactions violated the automatic orders because he had sold, exchanged or disposed of property without prior permission, as required by Practice Book § 25-5 (b) (1). See id. In her motion, the defendant requested that the court find the plaintiff in contempt, order the plaintiff to pay legal fees and costs in connection with the contempt motion, and award any other relief that the court deemed appropriate. Id. At the remand trial in February, 2014, the defendant presented expert testimony to establish the economic loss resulting from the plaintiff's transactions. See id. The defendant's expert testified that the stock shares and options were worth approximately $2.5 million at the time the plaintiff sold and exercised them, respectively. The expert further testified that, if the plaintiff had not sold or exercised the shares and options but instead had retained them, they would have had a value, as of the date of the retrial, of about $6 million. See id. Thus, according to the defendant's expert, the plaintiff's decision to sell the shares of stock and exercise his stock options had caused a net loss to the marital estate of about $3.5 million. Id. For his part, the plaintiff admitted that he had not sought permission to engage in the transactions. He nevertheless testified that he had consulted with attorneys concerning the transactions before executing them and that he did not believe that he otherwise needed permission to execute the transactions. The plaintiff further testified that he thought converting the shares to cash would best preserve their value in the face of ongoing market volatility. Id., at 579, 128 A.3d 595. After trial following the remand, the trial court issued a memorandum of decision and new financial orders. The court first explained that, in crafting its financial orders, it had considered the testimony and exhibits presented, along with the required statutory criteria, set forth in General Statutes § 46b-81, governing the trial court's distribution of marital property. The court then turned to its findings of fact. After setting forth the history of the parties' marriage and careers, the court determined that the plaintiff's earning capacity exceeded the defendant's, finding that the plaintiff had earned at least $1.2 million annually in the years leading up to the dissolution, compared to $143,000 that the defendant earned annually. With respect to the marital assets, the court explained that it had valued them as of the original date of dissolution. Id., at 583, 128 A.3d 595. The parties had agreed to the value of most of the marital assets in a pretrial stipulation, which the court incorporated by reference. Id. With respect to the transactions, the trial court found that the plaintiff had sold 28,127 shares of Omnicom stock and exercised 75,000 Omnicom stock options while the automatic orders were in effect and without the defendant's consent or the court's permission. Id., at 579, 581, 128 A.3d 595. Although concluding that the plaintiff's transactions "did in fact violate the automatic orders," the court did not hold the plaintiff in contempt because it found that the plaintiff had sought the advice of counsel concerning the transactions, and, consequently, his violations were not wilful. Nevertheless, the court explained that the transactions caused "a significant loss to the marital estate" and that the court had "taken into account these transactions in making [its financial] awards." The trial court then turned to property distribution. The assets in the marital estate had a value of approximately $6.5 million. The trial court awarded the defendant the principal residence and permitted her to keep a pension from Credit Suisse, as well as portions of the parties' bank and retirement accounts, among other assets. The total value of the award to the defendant was approximately $4.4 million. The trial court awarded the plaintiff portions of the parties' bank and retirement accounts, among other assets. The total value of the award to the plaintiff was approximately $2.1 million. According to the plaintiff's accounting, the award amounted to a 68 percent distribution of the marital estate to the defendant and a 32 percent distribution to the plaintiff. The trial court also ordered the plaintiff to pay the defendant child support and alimony for a period of twenty-one years, with a reduction in the amount of alimony every seven years. After the trial court issued its new financial orders, the plaintiff filed a motion for articulation, asking the court to explain the effect of the plaintiff's transactions on the court's property distribution and how the trial court had valued the loss that the transactions caused to the marital estate. In an articulation, the trial court explained that "financial orders in dissolution proceedings often have been described as a mosaic, in which all of the various financial components are carefully interwoven with one another. . Therefore, it is impossible to say, with great specificity, exactly how the court 'took into account' the [sale] of the shares and the exercise of the stock options by the plaintiff. However, these transactions by the plaintiff were taken into account when the defendant was awarded the family home and her pension from Credit Suisse, as well as the equitable division of all of the other assets of the parties." (Citation omitted.) As for the loss to the estate, the trial court explained that it had credited the testimony of the defendant's expert. The court thus determined that, if the plaintiff had not sold the shares and exercised the stock options when he did but, instead, had retained them as contemplated by the automatic orders, they would have been worth about $3.5 million more at the time of the trial following remand when compared to their value at the time that the plaintiff actually sold or exercised them. The plaintiff appealed to the Appellate Court, which reversed the trial court's financial orders. See O'Brien v. O'Brien , supra, 161 Conn.App. at 577, 593, 128 A.3d 595. Among other claims, the plaintiff asserted that the trial court improperly had considered the transactions when fashioning its orders. See id., at 587-88, 128 A.3d 595. The plaintiff argued that, even if his actions technically violated the automatic orders, the trial court improperly held his actions against him when distributing the property because he had not been found in contempt and did not otherwise intentionally dissipate the assets or cause any legally cognizable harm. See id., at 588-89, 128 A.3d 595. The Appellate Court agreed with the plaintiff, concluding that the plaintiff's violations of the automatic orders could be considered by the court only if they rose to the level of contempt or a dissipation of marital assets. Id., at 589, 128 A.3d 595. The court explained that, "even if the plaintiff technically violated the automatic orders when he sold stock and exercised options during the pendency of the dissolution action without permission . the resulting sanction imposed on the plaintiff by the court-namely, some unspecified reduction in the plaintiff's share of the marital estate-was not legally justified and, thus, an abuse of discretion. First, the court expressly found that the plaintiff's actions were not contumacious, and, thus, we conclude that it lacked any authority to punish the plaintiff pursuant to its civil contempt powers. Second, although in exercising its statutory authority under § 46b-81, the court certainly could take into account, when dividing the parties' assets, whether a party had engaged in a dissipation of those assets, there is nothing in the present record that would support a finding that the plaintiff intended to hide or to dissipate assets, nor did the court make such a finding." (Footnote omitted.) Id. Concerning the trial court's contempt powers, the Appellate Court further explained that "[j]udicial sanctions in civil contempt proceedings may, in a proper case, be employed for either or both of two purposes: to coerce the defendant into compliance with the court's order, and to compensate the complainant for losses sustained. . [If] compensation is intended, a fine is imposed, payable to the complainant." (Internal quotation marks omitted.) Id., at 590, 128 A.3d 595. Because, however, the trial court had not found the plaintiff in contempt, the Appellate Court concluded that the trial court had "lost its authority pursuant to its contempt powers to take any remedial action against the plaintiff simply because, with the luxury of hindsight, those transactions had proven unprofitable or even unwise. In other words, if the court had found the plaintiff in contempt of the automatic orders, that conclusion might have justified its further consideration of the effect those violations had on the assets available for distribution. In such circumstances, the court could have taken remedial action, perhaps reducing the plaintiff's distribution in an amount necessary to compensate the defendant. Nevertheless, having effectively denied the defendant's motion for contempt, the court was required to dispose of the marital assets in accordance with its authority under § 46b-81, which did not include the power to punish in the absence of dissipation." Id., at 591, 128 A.3d 595. With respect to the trial court's authority to consider dissipation under § 46b-81, the Appellate Court noted that the trial court had not made a finding of dissipation, and that such a finding would be unwarranted in the present case because, as this court explained in Gershman v. Gershman , 286 Conn. 341, 348, 351, 943 A.2d 1091 (2008), "[p]oor investment decisions, without more, generally do not give rise to a finding of dissipation. . [A]t a minimum, dissipation in the marital dissolution context requires financial misconduct involving marital assets, such as intentional waste or a selfish financial impropriety, coupled with a purpose unrelated to the marriage." (Citation omitted; internal quotation marks omitted.) O'Brien v. O'Brien , supra, 161 Conn.App. at 592, 128 A.3d 595. Because the trial court had not found contempt or dissipation, the Appellate Court concluded that the trial court did not have the authority to compensate the defendant for the plaintiff's transactions, even though those transactions had violated the automatic orders. Id., at 593, 128 A.3d 595. The Appellate Court reversed the trial court's judgment with respect to its financial orders and remanded the case for a new hearing on all financial matters. Id. We then granted the defendant's petition for certification to decide whether the Appellate Court correctly concluded that the trial court should not have considered the plaintiff's violations of the automatic orders in its division of the marital assets because the court had not held the plaintiff in contempt for those violations. O'Brien v. O'Brien , supra, 320 Conn. at 916, 131 A.3d 751. We answer the certified question in the negative. The plaintiff also has raised three alternative grounds for affirming the Appellate Court's judgment, all of which we reject. I We begin with the certified question. The defendant claims that the Appellate Court incorrectly concluded that the trial court lacked the authority to afford her a remedy for the plaintiff's violations of the automatic orders in the absence of a contempt finding. In support of this claim, the defendant contends that the trial court has the power to consider the plaintiff's actions under § 46b-81, which governs a trial court's distribution of marital assets in a dissolution proceeding and empowers the trial court to divide marital assets between the parties upon consideration of "the contribution of each of the parties in the acquisition, preservation or appreciation in value of" the marital assets. (Emphasis added.) General Statutes § 46b-81 (c). The defendant further contends that the plaintiff's unilateral decision to swap a substantial equity stake-along with its potential for increase in value and dividends-for an asset like cash is the antithesis of preservation and appreciation, and thus may be considered by a court when it divides property under the statute. We agree with the defendant that the trial court had the authority to consider the plaintiff's transactions when distributing the marital property, but for reasons different from those advanced by the defendant. Applying plenary review to this question of law; see, e.g., Maturo v. Maturo , 296 Conn. 80, 88, 995 A.2d 1 (2010) ; we conclude in part I A of this opinion that a trial court possesses inherent authority to make a party whole for harm caused by a violation of a court order, even when the trial court does not find the offending party in contempt. In part I B of this opinion, we conclude that the trial court properly exercised that authority in the present case. A It has long been settled that a trial court has the authority to enforce its own orders. This authority arises from the common law and is inherent in the court's function as a tribunal with the power to decide disputes. Papa v. New Haven Federation of Teachers , 186 Conn. 725, 737-38, 444 A.2d 196 (1982). The court's enforcement power is necessary to "preserve its dignity and to protect its proceedings." (Internal quotation marks omitted.) Allstate Ins. Co. v. Mottolese , 261 Conn. 521, 530, 803 A.2d 311 (2002) ; see also Middlebrook v. State , 43 Conn. 257, 268 (1876) ("[a] court of justice must of necessity have the power to preserve its own dignity and protect itself"). A party to a court proceeding must obey the court's orders unless and until they are modified or rescinded, and may not engage in "self-help" by disobeying a court order to achieve the party's desired end. (Internal quotation marks omitted.) Sablosky v. Sablosky , 258 Conn. 713, 719-20, 784 A.2d 890 (2001) ; see also Tyler v. Hamersley , 44 Conn. 393, 412 (1877) ("[e]very court must of necessity possess the power to enforce obedience to its lawful orders"); Rocque v. Design Land Developers of Milford, Inc ., 82 Conn.App. 361, 366, 844 A.2d 882 (2004) ("[t]he interests of orderly government demand that respect and compliance be given to orders issued by courts possessed of jurisdiction of persons and subject matter" [internal quotation marks omitted] ), quoting United States v. United Mine Workers of America , 330 U.S. 258, 303, 67 S.Ct. 677, 91 L. Ed. 884 (1947). The court has an array of tools available to it to enforce its orders, the most prominent being its contempt power. Our law recognizes two broad types of contempt: criminal and civil. See, e.g., DeMartino v. Monroe Little League, Inc. , 192 Conn. 271, 278, 471 A.2d 638 (1984). The two are distinguished by the type of penalty imposed. See, e.g., In re Jeffrey C. , 261 Conn. 189, 197-98, 802 A.2d 772 (2002) ; McTigue v. New London Education Assn. , 164 Conn. 348, 352-53, 321 A.2d 462 (1973). A finding of criminal contempt permits the trial court to punish the violating party, usually by imposing an unconditional fine or a fixed term of imprisonment. See, e.g., General Statutes § 51-33a. Criminal contempt penalties are punitive in nature and employed against completed actions that defy "the dignity and authority of the court." (Internal quotation marks omitted.) In re Jeffrey C. , supra, at 197, 802 A.2d 772. Civil contempt, by contrast, is not punitive in nature but intended to coerce future compliance with a court order, and "the contemner should be able to obtain release from the sanction imposed by the court by compliance with the judicial decree." Connolly v. Connolly , 191 Conn. 468, 482, 464 A.2d 837 (1983). A civil contempt finding thus permits the court to coerce compliance by imposing a conditional penalty, often in the form of a fine or period of imprisonment, to be lifted if the noncompliant party chooses to obey the court. See id. To impose contempt penalties, whether criminal or civil, the trial court must make a contempt finding, and this requires the court to find that the offending party wilfully violated the court's order; failure to comply with an order, alone, will not support a finding of contempt. See, e.g., Marshall v. Marshall , 151 Conn.App. 638, 650, 97 A.3d 1 (2014). Rather, "to constitute contempt, a party's conduct must be wilful." Eldridge v. Eldridge , 244 Conn. 523, 529, 710 A.2d 757 (1998). "A good faith dispute or legitimate misunderstanding" about the mandates of an order may well preclude a finding of wilfulness. (Internal quotation marks omitted.) Sablosky v. Sablosky , supra, 258 Conn. at 718, 784 A.2d 890. Whether a party's violation was wilful depends on the circumstances of the particular case and, ultimately, is a factual question committed to the sound discretion of the trial court. Id. Without a finding of wilfulness, a trial court cannot find contempt and, it follows, cannot impose contempt penalties. But a trial court in a contempt proceeding may do more than impose penalties on the offending party; it also may remedy any harm to others caused by a party's violation of a court order. When a party violates a court order, causing harm to another party, the court may "compensate the complainant for losses sustained" as a result of the violation. (Internal quotation marks omitted.) DeMartino v. Monroe Little League, Inc ., supra, 192 Conn. at 278, 471 A.2d 638. A court usually accomplishes this by ordering the offending party to pay a sum of money to the injured party as "special damages ." (Internal quotation marks omitted.) Id., at 279, 471 A.2d 638. Unlike contempt penalties, a remedial award does not require a finding of contempt. Rather, "[i]n a contempt proceeding, even in the absence of a finding of contempt, a trial court has broad discretion to make whole any party who has suffered as a result of another party's failure to comply with a court order." (Emphasis omitted; internal quotation marks omitted.) Clement v. Clement , 34 Conn.App. 641, 647, 643 A.2d 874 (1994) ; see also Brody v. Brody , 153 Conn.App. 625, 636, 103 A.3d 981, cert. denied, 315 Conn. 910, 105 A.3d 901 (2014) ; Nelson v. Nelson , 13 Conn.App. 355, 367, 536 A.2d 985 (1988). Because the trial court's power to compensate does not depend on the offending party's intent, the court may order compensation even if the violation was not wilful. See, e.g., Clement v. Clement , supra, at 646-47, 643 A.2d 874 ; cf. DeMartino v. Monroe Little League, Inc. , supra, 192 Conn. at 279, 471 A.2d 638 ("[s]ince the purpose is remedial, it matters not with what intent the [offending party] did the prohibited act" [internal quotation marks omitted] ). Following this principle, the Appellate Court has upheld compensatory awards imposed in contempt proceedings even when the trial court did not make a contempt finding. For example, in Clement v. Clement , supra, 34 Conn.App. at 641, 643 A.2d 874, one party failed to make payments on a home mortgage loan, in violation of a court order, which led to a foreclosure and a loss of equity in the home. See id., at 643-44, 643 A.2d 874 and n.2. The trial court ultimately vacated an earlier contempt finding but nevertheless declined to vacate a compensatory award equal to the lost equity. Id., at 646, 643 A.2d 874. The Appellate Court affirmed, explaining that a trial court "has broad discretion to make whole any party who has suffered as a result of another party's failure to comply with [a] court order" and may do so "even in the absence of a finding of contempt ." (Emphasis omitted; internal quotation marks omitted.) Id., at 647, 643 A.2d 874. And in McGuire v. McGuire , 102 Conn.App. 79, 81, 924 A.2d 886 (2007), a court order required the parties to a dissolution proceeding to sell their marital home. When one party delayed the closing date, causing a contract for sale to fall through, the trial court did not find contempt but nevertheless ordered the delaying party to pay the other party compensation for the delay. See id., at 81-82, 924 A.2d 886. On appeal, the Appellate Court, consistent with prior precedent, concluded that a trial court need not find contempt before compensating a party harmed by the violation of a court order. Id., at 88-89, 924 A.2d 886. We cited this principle with approval in AvalonBay Communities, Inc . v. Plan & Zoning Commission , 260 Conn. 232, 243, 796 A.2d 1164 (2002), and again in New Hartford v. Connecticut Resources Recovery Authority , 291 Conn. 489, 501 n.20, 970 A.2d 570 (2009). In AvalonBay Communities, Inc ., for instance, we explained that, "[i]t would defy common sense to conclude that, merely because a party's violation of a court order was not wilful, the trial court is deprived of its authority to enforce the order." AvalonBay Communities, Inc . v. Plan & Zoning Commission , supra, at 241-42, 796 A.2d 1164. The Appellate Court's reasoning and result in the present case are inconsistent with these decisions. The Appellate Court recognized that a court might compensate a party harmed by a violation of a court order, including by reducing the party's share of the marital assets, but only if the court found the offending party in contempt. See O'Brien v. O'Brien , supra, 161 Conn.App. at 591, 128 A.3d 595. According to the Appellate Court, "[h]aving determined that the plaintiff's transactions were not contumacious . the [trial] court lost its authority pursuant to its contempt powers to take any remedial action against the plaintiff" and in favor of the defendant. Id. In light of the decisions from this court and the Appellate Court holding to the contrary, the Appellate Court's conclusion in the present case cannot stand. Parties subject to a court order are bound to follow it and reasonably may rely on an expectation that other parties will also obey the order. Irrespective of whether a violation is wilful, the party violating a court order properly may be held responsible for the consequences of the violation. To hold otherwise would shift the cost of the violation to the innocent party. We therefore conclude that, although the trial court could not punish the plaintiff because it had not found him in contempt, the court nevertheless properly determined that it could compensate the defendant for any losses caused by the plaintiff's violations of the automatic orders. The plaintiff's transactions-in which he sold and exchanged stock shares and options for cash-plainly violated the automatic orders, which expressly provide that, while the dissolution proceedings are pending, no party shall "sell, transfer, [or] exchange" any property without permission from the other party or the court. Practice Book § 25-5 (b) (1). The automatic orders are intended to "keep the financial situation of the parties at a status quo during the pendency of the dissolution action." Ferri v. Powell-Ferri , 317 Conn. 223, 232, 116 A.3d 297 (2015). Allowing parties to sell, exchange, or dispose of assets while a dissolution action is pending, and without permission of the other party or the court, would frustrate the trial court's ability to determine which of the parties' property constituted marital property and to distribute the marital assets fairly between the parties. In the present case, the plaintiff's transactions, made without proper permission, disrupted the status quo and prevented the trial court from determining the proper disposition of the stock shares and options, in violation of the automatic orders. Even if the plaintiff did not intend to violate the court's order, if his unilateral decision to sell the shares and exercise the options caused a loss to the marital estate-and in turn to the defendant-then the trial court was justified in determining that the plaintiff should bear the losses. To be sure, the plaintiff may not have appreciated the extent of the harm his transactions might cause in the future. And, ordinarily, a party in a dissolution proceeding is not responsible for poor or shortsighted business decisions concerning marital assets. See Gershman v. Gershman , supra, 286 Conn. at 346-47, 943 A.2d 1091. But, in the present case, the plaintiff's transactions were not just questionable investment decisions; they also violated a court order. Even if the court order imposes a burden on a party, or the party believes his actions are otherwise justified, the party may not act unilaterally in contravention of the order. See, e.g., Sablosky v. Sablosky , supra, 258 Conn. at 719-20, 784 A.2d 890. Moreover, if the plaintiff in the present case did not wish to bear sole responsibility for the potential risks of his actions, he should not have engaged in self-help by selling the stocks and exercising the options without first consulting the defendant or the court. Because the defendant had no say in the transactions that the plaintiff executed, the trial court acted within its discretion when it determined that the plaintiff had violated the automatic orders and that he should bear any losses caused by his actions. We also conclude that the trial court acted properly in remedying the defendant's loss of her share of the marital estate by adjusting in her favor the distribution of the marital assets. Even though the trial court's property distribution is governed by § 46b-81, and providing a remedy for a violation of a court order is not one of the enumerated statutory factors, the trial court nevertheless had the discretion to remedy the plaintiff's violations of a court order through its distribution of the parties' marital property. See Robinson v. Robinson , 187 Conn. 70, 71-72, 444 A.2d 234 (1982) ("Although created by statute, a dissolution action is essentially equitable in nature. . The power to act equitably is the keystone to the court's ability to fashion relief in the infinite variety of circumstances [that] arise out of the dissolution of a marriage." [Citation omitted; internal quotation marks omitted.] ). The trial court could have distributed the marital assets pursuant to § 46b-81 and then separately ordered the plaintiff to issue a distinct payment to the defendant pursuant to its inherent authority. See Clement v. Clement , supra, 34 Conn.App. at 643-44, 643 A.2d 874 ; cf. DeMartino v. Monroe Little League, Inc. , supra, 192 Conn. at 278-79, 471 A.2d 638. The trial court, exercising its equitable discretion, instead combined these two steps into one, a method that is not without precedent. See, e.g., Greenan v. Greenan , 150 Conn.App. 289, 303, 91 A.3d 909 (upholding trial court's remedy for violation of court order and noting that trial court had "taken the plaintiff's [violation] into consideration in fashioning its [financial] orders" instead of issuing "a specific order to restore the funds" lost from violation [internal quotation marks omitted] ), cert. denied, 314 Conn. 902, 99 A.3d 1167 (2014). Whether the trial court in the present case had ordered a payment separate from the property distribution or effected the payment as part of the property distribution, as it did, is a difference of form, not substance. The result of either method would be the same-each ultimately transfers funds to cover the value of the defendant's loss from the plaintiff to the defendant. We conclude, therefore, that the trial court properly exercised its discretion in affording the defendant a remedy by adjusting the property distribution to account for the loss. B The plaintiff claims that the trial court's award is nevertheless erroneous because it was based on an improper method for valuing the loss to the marital estate, rendering it excessive. We disagree. If a trial court elects to make whole a party injured by another party's violation of a court order, any award it makes must be reasonable in light of the harm to the injured party. A trial court has the equitable discretion to choose whether to provide a remedy in the first place and to determine the amount of any remedial award in light of the specific circumstances of the case. See Clement v. Clement , supra, 34 Conn.App. at 647, 643 A.2d 874 ; see also AvalonBay Communities, Inc. v. Plan & Zoning Commission , supra, 260 Conn. at 243, 796 A.2d 1164. "The essential goal" in making a remedial award "is to do rough justice, not to achieve auditing perfection," and, thus, the award may be based on reasonable estimations of the harm caused and the trial court's own "superior understanding of the litigation ." (Internal quotation marks omitted.) Goodyear Tire & Rubber Co . v. Haeger , - U.S. -, 137 S.Ct. 1178, 1187, 197 L.Ed.2d 585 (2017). The trial court's discretion, however, is not limitless. If the court elects to provide a remedial award, then the value of the award may not exceed the reasonable value of the injured party's losses. DeMartino v. Monroe Little League, Inc. , supra, 192 Conn. at 279, 471 A.2d 638. Although a trial court may choose to award less under the circumstances of a particular case, a decision to order an award greater than the party's loss would exceed the award's remedial purpose. See id. ; see also Goodyear Tire & Rubber Co . v. Haeger , supra, at 1186 (trial court's "award may go no further than to redress the wronged party for losses sustained; in may not impose an additional amount as punishment for the sanctioned party's misbehavior" [internal quotation marks omitted] ). In such a case, the excess instead serves merely to punish the offending party, a sanction that, as we have explained, requires a finding of contempt and thus likely would constitute an abuse of the trial court's discretion. See part I A of this opinion. Moreover, the trial court's conclusions concerning the appropriate remedial award must be based on evidence presented to the court. Nelson v. Nelson , supra, 13 Conn.App. at 367, 536 A.2d 985. The court must therefore allow the parties to present evidence concerning the loss and the proper amount of compensation, and to cross-examine adverse witnesses. Id. As with any other factual determination, the trial court's findings must be supported by the evidence. Id. In the present case, the trial court determined the amount of the loss after a trial at which the parties were each afforded the opportunity to present evidence concerning the extent of the loss, and the defendant adduced testimony from an expert witness. The plaintiff's counsel cross-examined the defendant's expert and also had the opportunity to call witnesses on behalf of the plaintiff but did not do so. The trial court further entertained argument on the issue. After considering the parties' positions, the trial court credited the testimony of the defendant's expert and found that the transactions caused a net loss to the marital estate of $3.5 million. The court arrived at that amount by looking to the difference between (1) the value of the stock shares and options at the time the plaintiff either sold or exercised them, and (2) the value the shares and options would have had at the time of the trial following remand, when the shares or options would have been distributed, if the plaintiff had not sold or exercised them in violation of the automatic orders. The trial court determined that the shares and options had a total value of $2,562,190 when the plaintiff sold or exercised them and that, if the plaintiff had not done so, they would have had a value of $6,093,019 at the time of the trial. Taking the difference between these two values, the trial court found that the plaintiff's transactions had caused a net loss of approximately $3.5 million in value to the marital estate. The defendant, however, was not necessarily entitled to be compensated for the full $3.5 million loss to the marital estate. Because that value reflected the loss amount to the entire marital estate, and not just the defendant's share, she presumably should have received no more than the losses fairly attributable to her share of the marital estate. Thus, the defendant's counsel acknowledged during closing argument that if, for example, the court awarded the defendant 55 percent of the marital assets, including the stock shares and options, she would be entitled to compensation for no more than 55 percent of the total losses to the marital estate. The defendant's counsel also acknowledged that the amount of any remedial award should be adjusted for the taxes that would have been paid on any subsequent sale of the stock and exercise of the options, which was not reflected in the expert's valuation of the stock shares. In light of these factors, and the plaintiff's own valuations of the marital assets distributed, it is apparent that the trial court fairly determined the loss to the estate to be $3.5 million and that its adjustment of the distribution in favor of the defendant did not exceed the defendant's reasonable share of the loss resulting from the unauthorized transactions. Nevertheless, the plaintiff claims that the trial court improperly determined that the loss to the marital estate was $3.5 million. He claims that the trial court was required to calculate the loss to the marital estate by considering the value that the stock shares and options would have had on the date of the dissolution decree, September, 2009, rather than at the time of the remand trial in February, 2014. For support, he relies on Sunbury v. Sunbury , 216 Conn. 673, 583 A.2d 636 (1990), in which we determined that a trial court issuing new property distribution orders on remand from an appellate court must divide the marital assets based on their value as of the original date of the dissolution decree, rather than based on their value at the time of any trial after remand. Id., at 674, 676, 583 A.2d 636. We explained that, when dividing property pursuant to § 46b-81, "[i]n the absence of any exceptional intervening circumstances occurring in the meantime, [the] date of the granting of the divorce would be the proper time as of which to determine the value of the estate of the parties [on] which to base the division of property. . An increase in the value of the property following a dissolution does not constitute such an exceptional intervening circumstance." (Citation omitted; internal quotation marks omitted.) Id., at 676, 583 A.2d 636. Seizing on our conclusion in Sunbury , the plaintiff asks us to extend its reasoning to instances in which, as in the present case, the trial court is not valuing marital property for the purpose of distributing it under § 46b-81 but, rather, determining the proper remedy for a violation of a court order. Because the trial court effected the remedial award by adjusting its property distribution, the plaintiff argues that Sunbury applied to the trial court's remedial award and barred the court from considering the value that the stock shares and options would have had as of the time of the trial following remand, if the plaintiff had not sold or exercised them. Instead, he argues, the court should have looked to their value as of the dissolution date and determined the harm to the marital estate using that value. He also maintains that, because the trial court did not make any findings about the value of the stock shares and options as of the date of dissolution, a new hearing on all financial issues is required. We disagree that Sunbury applies to the trial court's decision to remedy the plaintiff's violations of its orders. As the plaintiff tacitly admits in his brief to this court, Sunbury applies to the distribution of marital property between spouses pursuant to § 46b-81 but does not purport to place limits on the trial court's inherent authority to make a party whole when another party has violated a court order. Sunbury therefore did not limit the discretion of the trial court in the present case to consider the present value of the stocks and options when fashioning an appropriate remedy. In considering how to make the defendant whole for the violation pursuant to its inherent authority, the trial court was justified in looking beyond the value of the stocks and options on the date of dissolution and, instead, to the value the defendant might actually have received from any stocks and options the court could have distributed to the defendant at the time of trial on remand. The trial court's decision in the present case to effect its remedial award by adjusting the distribution, rather than by ordering the plaintiff to make a separate payment, does not alter the fact that its remedial award was made pursuant to its inherent authority, not § 46b-81. Thus, our holding in Sunbury does not apply to the trial court's remedial award. The plaintiff further contends that, if Sunbury does not apply, the trial court should have valued the loss to the defendant by using the value the stocks and options would have had on the date of the violations, not the date of the trial following remand. Borrowing from principles of contract law, the plaintiff asserts that the defendant's damages should be calculated by looking only to the losses the defendant incurred as of the date of the breach, without regard to any later change in the value of the stocks and options. Thus, the plaintiff agrees that if, for example, he had sold the stock for less than fair market value at the time he sold it, he might be responsible to the defendant for the loss, but, because he exchanged the stock for its fair market value in cash, he argues that there was no cognizable loss to the estate on the date of the breach and, as a result, no basis for a remedial award to the defendant. The plaintiff contends that determining loss by looking to the stock value at the time of the trial on remand entails the use of an arbitrary date in time to fix the value because that value fluctuates daily. We disagree that assessing the value of the stocks and options at the time of the remand trial was arbitrary or irrational. At the time of that trial, the court could determine with certainty the precise value of the loss to the marital estate caused by the plaintiff's transactions. The defendant rightfully expected that the plaintiff would obey the automatic orders and that the stocks and options would remain in the marital estate until distributed to the parties by the court following a trial on remand. If the plaintiff had not sold the stock or exercised the options, and the trial court divided the marital assets between the parties, including the stocks and options, the defendant would have enjoyed the benefit of any increase in their value. The plaintiff, however, unilaterally removed the stocks and options from the marital estate, preventing the court from distributing them in the form of stocks and options, and thus depriving the defendant of the opportunity to benefit from the increase in their value. Lacking the stocks and options to distribute, the court essentially awarded the defendant the value that her putative share of the stocks and options would have had at the time of the remand trial, putting the plaintiff in precisely the position she would have occupied at that time if the plaintiff had not violated the automatic orders. At that point, through its remedial award, the trial court made the value of the defendant's share of the marital estate whole against the losses caused by the plaintiff's violations. Certainly, the value of the stocks and options would fluctuate over time, meaning that the value required to make the defendant whole on a particular day would also fluctuate. But the trial court was entitled to put the defendant in the position she would have occupied in the absence of the plaintiff's violations of the automatic orders. As we previously observed, if the plaintiff did not wish to risk being held solely responsible for changes in the value of the stocks and options, he should not have sold the stock and exercised the options without proper authorization. In these circumstances, the trial court properly used the date of the remand trial to value the loss to the marital estate caused by the plaintiff's transactions. For these reasons, we conclude that the Appellate Court incorrectly determined that the trial court had lacked the authority to make the defendant whole for the plaintiff's violations of the automatic orders. We further conclude that the trial court's exercise of that authority was proper. II In light of our conclusions in part I of this opinion, we next consider whether the Appellate Court's judgment may nevertheless be affirmed on one of three alternative grounds raised by the plaintiff. The first two concern the plaintiff's violations of the automatic orders and the third involves the trial court's award of retroactive alimony. A The plaintiff first claims that his stock and option transactions did not violate the automatic orders established under Practice Book § 25-5 because they fall within the exception for transactions made "in the usual course of business ." Practice Book § 25-5 (b) (1). The plaintiff argues that the trial court must have ignored the exception because it did not explicitly address the exception in its memorandum of decision. The plaintiff asserts that, in light of the trial court's failure to address this exception explicitly, the court's decision must be read as concluding that stock transactions can never fall within a person's usual course of business, a determination contrary to the plain language of § 25-5 (b) (1). We disagree that the trial court ignored this exception and conclude instead that the trial court implicitly determined that the exception does not apply. The following additional facts and procedural history are relevant to our resolution of this issue. At trial, the defendant called an expert to quantify the economic loss to the marital estate incurred by the plaintiff's transactions, and the plaintiff's counsel objected to the testimony as irrelevant. While arguing the objection, the plaintiff's counsel suggested that the transactions did not violate the automatic orders, claiming they fell within the usual course of business exception inasmuch as the plaintiff believed he was making a "prudent business" decision at the time. The trial court rejected this argument, responding that the plaintiff was "not in the business. If he were a used car dealer and sold a car in his lot, or if he were a boat salesman and sold a boat, he can do that. That's the ordinary course of business." After brief additional argument, the trial court overruled the objection and permitted the defendant's expert to testify. In its memorandum of decision, the trial court found that the plaintiff had violated the automatic orders, explaining its finding as follows: "During the pendency of the action, and while the automatic orders were in effect, the plaintiff sold 28,127 shares of Omnicom . stock and exercised 75,000 Omnicom . stock options without court order or consent from the defendant. . The result of the sales was a significant loss to the marital estate. The court finds that these transactions did in fact violate the automatic orders." Although the trial court did not explicitly state that it had found that the usual course of business exception was inapplicable in the present case, the lack of an express finding on this point is of no moment. When construing a trial court's memorandum of decision, "[e]ffect must be given to that which is clearly implied as well as to that which is expressed." (Internal quotation marks omitted.) Wheelabrator Bridgeport, L.P. v. Bridgeport , 320 Conn. 332, 355, 133 A.3d 402 (2016). When, as in the present case, a trial court makes an ultimate finding of fact, we presume, in the absence of evidence to the contrary, that the court also made the subsidiary findings necessary to support its ultimate finding. See, e.g., Sosin v. Sosin , 300 Conn. 205, 244-45 n.25, 14 A.3d 307 (2011) (noting that subsidiary finding of wrongful conduct is implicit in trial court's award of compensatory interest under General Statutes § 37-3a ); Bornemann v. Bornemann , 245 Conn. 508, 526, 752 A.2d 978 (1998) (explaining that trial court implicitly must have found that stock options were marital property when court distributed options between parties). In the present case, the trial court expressly found that the plaintiff had violated the automatic orders, which necessarily implies that the court also made a subsidiary finding that the plaintiff's conduct did not fall within any exception. Moreover, even if there were any doubt, arising from the trial court's memorandum of decision, as to whether the court considered the exception, it would be dispelled by the court's consideration and rejection of the exception in overruling the plaintiff's objection to the defendant's proffered expert testimony. We therefore disagree that the trial court ignored the exception or failed to determine whether it applied. The plaintiff nevertheless contends that, even if the trial court rejected his claim that the exception applied, this court should adopt one of two rules concerning stock transactions during a dissolution proceeding. He first argues for a bright line rule that stock sales are always made in the usual course of business and thus not subject to the automatic orders. As an alternative to this categorical rule, he urges us to adopt a rule presuming that stock sales fall within the usual course of business exception. We decline to adopt either of these proposed rules because they are not supported by the text of the automatic orders set forth in Practice Book § 25-5. Those orders govern the transaction of "any property" and make no exception for transactions concerning certain types of assets, including stocks. Practice Book § 25-5 (b) (1). Instead, whether a particular transaction has been conducted in the usual course of business presents a question of fact, to be determined by looking to the circumstances of each case. See Quasius v. Quasius , 87 Conn.App. 206, 208, 866 A.2d 606 (reviewing trial court's finding concerning usual course of business exception for abuse of discretion because trial court is "in the best position to assess all of the circumstances surrounding a dissolution action" [internal quotation marks omitted] ), cert. denied, 274 Conn. 901, 876 A.2d 12 (2005). Whether a transaction is conducted in the usual course of business does not turn solely on the type of asset or transaction but on whether the transaction at issue was "a continuation of prior activities " carried out by the parties before the dissolution action was commenced. (Emphasis in original.) Id. The plaintiff's proposed rules are also inconsistent with the purpose of the automatic orders. The status quo at the commencement of the litigation and the parties' usual course of business will vary significantly from case to case. A one size fits all rule or presumption will not accurately capture the status quo or usual course for all parties in the myriad of dissolution cases filed in our courts. The regular sale of stocks might be usual for a professional stock trader but unusual for someone who invests in stock funds through a retirement account, had not previously sold any of the stocks, and had no preexisting plan to sell those stocks until retirement. Moreover, a rule allowing a party either unconditional or presumptive permission to sell stocks without restraint would be subject to abuse. Significant stock sales have the potential to alter the character of a marital estate and might expose the other party to unwanted financial or tax consequences. For these reasons, determining a party's usual course of business is best treated as a question of fact to be decided by the trial court, unfettered by rules or guidelines that may or may not be appropriate under the unique circumstances of a particular case. B The plaintiff next claims the trial court incorrectly concluded that the stock options that he had exercised were marital property, subject to distribution between the parties. We again disagree. Certain additional facts are necessary to our determination of this claim. The plaintiff received the options at issue in March, 2009, after filing the dissolution action but approximately six months before the trial court rendered judgment dissolving the parties' marriage in September, 2009. See O'Brien v. O'Brien , supra, 161 Conn.App. at 581, 128 A.3d 595. The options did not vest until after the entry of the dissolution decree, with one group of options vesting in 2010, and the remainder in 2012. See id. The plaintiff exercised the options in two groups after they had vested, converting the options to cash. Id. At the trial on remand, the plaintiff testified about the purpose of the options. He initially testified that the options "are not compensatory" and "are not earned," but are issued solely as retention incentives to employees "so that they stay at the company until . [the options] vest." Shortly thereafter, however, he clarified that the options had been awarded as compensation for his performance in the prior year, 2008, but that the options had a retentive component because they vested over time to create an incentive for him to stay with the company. In its memorandum of decision, the trial court found that the options were marital property, explaining that, although "the options had not yet vested at the time of the original trial, they were awarded prior to the dissolution," and that the exercise of the options caused "a significant loss to the marital estate." The plaintiff challenges the court's determination that the options were marital property because, although they were awarded while the parties were still married, they did not vest until 2010 and thereafter, following the dissolution of the marriage in 2009. He further argues that they were not granted as compensation for any services performed during the marriage but were solely an incentive to remain employed until the time the options had vested. For these reasons, he contends that the unvested options were not marital property subject to distribution between the parties, and, consequently, the defendant could not have suffered any cognizable loss by virtue of his decision to exercise them. Unvested stock options may be considered marital property if they are earned during the marriage. See Bornemann v. Bornemann , supra, 245 Conn. at 525, 752 A.2d 978. If they are awarded as compensation for services performed during the marriage, unvested options may properly be considered marital property, even if they will not vest until after the marriage is dissolved. See id. If unvested options are awarded for future services to be performed after the dissolution, however, then they are not considered marital property. See id., at 524-25, 752 A.2d 978. Determining when the options were earned, and whether they are for predissolution or postdissolution services, poses a question of fact for the trial court, and this court must accept the finding unless it is clearly erroneous. Id., at 527, 752 A.2d 978. In the present case, the record supports the trial court's finding that the plaintiff's options were marital property. The plaintiff's testimony about the purpose of the options award was conflicting: although he initially testified that they were exclusively a retention incentive for future services to be performed after the marriage was dissolved, he later testified that they were compensation for past services but that they had a delayed vesting schedule to encourage him to stay employed with Omnicom. The court apparently credited his testimony that the options represented payment for past services and did not credit his earlier assertion to the contrary. The trial court had the opportunity to observe the testimony firsthand and to evaluate the witness' attitude, candor, and demeanor while he was testifying. As the finder of fact, the trial court was free to credit all or any portion of the plaintiff's testimony. See, e.g., State v. Andrews , 313 Conn. 266, 323, 96 A.3d 1199 (2014) ("[i]t is the exclusive province of the trier of fact to weigh conflicting testimony and make determinations of credibility, crediting some, all or none of any given witness' testimony" [internal quotation marks omitted] ). Because the court's finding that the options were marital property has a sound basis in the evidence, that finding was not clearly erroneous, and, consequently, it must stand. C Finally, the plaintiff takes issue with the trial court's award of retroactive alimony. After the remand trial in February, 2014, the trial court ordered the plaintiff to pay alimony to the defendant, and made its order retroactive to the date when the court originally entered the dissolution decree after the original trial in 2009. The total retroactive alimony due under the order was $646,472, with payment to be made to the defendant no more than forty-five days from the issuance of the order. The plaintiff does not dispute the trial court's power to award retroactive alimony generally but claims that the award in this case was improper. He argues that the short payment period will require him to pay the arrearage out of his share of the marital assets distributed by the trial court, effectively making it a reduction in his property distribution. Because he must pay the retroactive alimony from his own property distribution, he asserts, the award constitutes improper "double dipping." (Internal quotation marks omitted.) We are not persuaded. The retroactive alimony award was not improper because trial courts are free to consider the marital assets distributed to the party paying alimony as a potential source of alimony payments. See, e.g., Krafick v. Krafick , 234 Conn. 783, 804-805 n.26, 663 A.2d 365 (1995). Trial courts are vested with broad discretion to award alimony, and, when a court determines whether to award alimony and the amount of any such award, General Statutes § 46b-82 expressly authorizes the court to consider the marital assets distributed to each party in connection with the dissolution proceeding. See General Statutes § 46b-82 ; see also Krafick v. Krafick , supra, at 805 n.26, 663 A.2d 365. A trial court's alimony award constitutes impermissible double dipping only if the court considers, as a source of the alimony payments, assets distributed to the party receiving the alimony. See Krafick v. Krafick , supra, at 804-805 n.26, 663 A.2d 365 ; see also Greco v. Greco , 275 Conn. 348, 357 n.8, 880 A.2d 872 (2005) (double dipping occurs only when trial court considers, as source for alimony, asset not available to payor). That is, if a trial court assigns a certain asset-a bank account, for example-to the party receiving alimony, it cannot consider that same bank account as a source of future alimony payments because the account has not been distributed to the party paying the alimony. In the present case, even if the plaintiff must, as he claims, use his own share of the marital assets to pay the retroactive alimony award, the trial court's award did not constitute double dipping because the assets the plaintiff might use to pay the alimony award were all awarded to him, not the defendant. Nevertheless, the plaintiff asserts his double dipping claim as a basis for challenging the overall fairness of the trial court's property distribution award. He claims that, when the retroactive alimony payment is factored in, the trial court effectively awarded 78 percent of the marital estate to the defendant and awarded him only 22 percent. He asserts that "such a distribution is grossly inequitable and cannot be sustained." Once again, we disagree. "[T]rial courts are endowed with broad discretion to distribute property in connection with a dissolution of marriage"; Greco v. Greco , supra, 275 Conn. at 354, 880 A.2d 872 ; and are "empowered to deal broadly with property and its equitable division incident to dissolution proceedings." (Internal quotation marks omitted.) Id., at 355, 880 A.2d 872. "Although a trial court is afforded broad discretion when distributing marital property, it must take into account several statutory factors. . These factors, enumerated in . § 46b-81 (c), include the age, health, station, occupation, amount and sources of income, vocational skills, employability . and needs of each of the parties . Although the trial court 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, it must take each into account." (Citations omitted; footnote omitted; internal quotation marks omitted.) Id., at 354-55, 880 A.2d 872. "[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." (Citation omitted; internal quotation marks omitted.) Bornemann v. Bornemann , supra, 245 Conn. at 531, 752 A.2d 978. "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." (Internal quotation marks omitted.) Greco v. Greco , supra, 275 Conn. at 355, 880 A.2d 872. Even if we accept the plaintiff's valuation of the trial court's property distribution for purposes of this appeal, we reject his contention that the trial court abused its discretion for at least three reasons. First, a distribution ratio of 78 percent to 22 percent is not, on its face, excessive, as the plaintiff contends. Indeed, we have upheld distributions awarding as much as 90 percent of the marital estate to one party. Sweet v. Sweet , 190 Conn. 657, 664, 462 A.2d 1031 (1983) ; but cf. Greco v. Greco , supra, 275 Conn. at 355-56, 880 A.2d 872 (under circumstances of case, 98.5 percent distribution to one party was excessive). Second, the court's distribution reflected the unequal earnings potential of the parties. The trial court found that the plaintiff had cash compensation in excess of $1.2 million in the years prior to the dissolution, whereas the defendant had an earnings potential of $143,000. The plaintiff thus had an earnings potential of at least eight times that of the defendant. In addition, the trial court found that the plaintiff had received significant noncash compensation and would continue to do so in the future. Although the trial court awarded the defendant alimony to supplement her income, the amount of the award was to diminish every seven years, leaving the defendant with a progressively smaller income over time and justifying a greater up-front distribution. See footnote 4 of this opinion. Finally, as we have discussed, a significant component of the defendant's distribution was the trial court's remedial award for the plaintiff's violations of the automatic orders. See part I of this opinion. In these circumstances, we cannot conclude that the trial court's property distribution award was inequitable, as the plaintiff contends. We therefore reject this alternative ground for affirmance. The judgment of the Appellate Court is reversed and the case is remanded to that court with direction to affirm the judgment of the trial court. In this opinion the other justices concurred. Practice Book § 25-5 provides in relevant part: "The following automatic orders shall apply to both parties, with service of the automatic orders to be made with service of process of a complaint for dissolution of marriage . The automatic orders shall be effective with regard to the plaintiff . upon the signing of the complaint . and with regard to the defendant . upon service and shall remain in place during the pendency of the action, unless terminated, modified, or amended by further order of a judicial authority upon motion of either of the parties: "(b) In all cases involving a marriage . whether or not there are children: "(1) Neither party shall sell, transfer, exchange, assign, remove, or in any way dispose of, without the consent of the other party in writing, or an order of a judicial authority, any property, except in the usual course of business or for customary and usual household expenses or for reasonable attorney's fees in connection with this action. "(d) The automatic orders of a judicial authority as enumerated above shall be set forth immediately following the party's requested relief in any complaint for dissolution of marriage . and shall set forth the following language in bold letters: "Failure to obey these orders may be punishable by contempt of court. If you object to or seek modification of these orders during the pendency of the action, you have the right to a hearing before a judge within a reasonable period of time. "The clerk shall not accept for filing any complaint for dissolution of marriage . that does not comply with this subsection." (Emphasis in original.) General Statutes § 46b-81 provides in relevant part: "(a) At the time of entering a decree annulling or dissolving a marriage . the Superior Court may assign to either spouse all or any part of the estate of the other spouse. . "(c) 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." The parties disagree about the precise value of the property distribution, and the trial court made no specific findings with respect to that value. For purposes of this appeal, however, we rely on the plaintiff's valuation of the marital estate and property distribution. Specifically, the trial court ordered the plaintiff to pay alimony in the amount of $45,000 per month for the first seven years commencing from the date of dissolution, $37,500 per month for the next seven years, and then $25,000 per month for the next seven years. The alimony payments terminated after the third seven year period, unless one of the parties died or the defendant remarried beforehand. In her brief to this court, the defendant did not specifically argue that the trial court possessed the inherent authority to address the plaintiff's violations but instead focused her arguments on the trial court's statutory authority under § 46b-81. We nevertheless resolve the present appeal in reliance on the trial court's inherent authority because (1) the defendant raised this ground in her brief to the Appellate Court, and (2) at oral argument before this court, the plaintiff's counsel acknowledged that the trial court had inherent authority to address the plaintiff's violations of the automatic orders and clarified that the plaintiff was disputing only how the trial court exercised that authority in the present case. Other tools not addressed in the present case include the court's power to sanction parties and their attorneys for "dilatory, bad faith and harassing litigation conduct, even in the absence of a specific rule or order of the court that is claimed to have been violated." (Internal quotation marks omitted.) Millbrook Owners Assn., Inc. v. Hamilton Standard, 257 Conn. 1, 9-10, 776 A.2d 1115 (2001). Sanctions may include awarding litigation costs to the party harmed by the improper conduct, exclusion of certain evidence or testimony, or even the entry of a default, nonsuit or dismissal. See id., at 11, 776 A.2d 1115. Because the plaintiff's transactions removed the stock shares and options from the marital estate before the trial court could distribute them on remand, we do not know precisely what portion of the stock shares and options the trial court might have awarded to the defendant, if they were still available for distribution. In these circumstances, a court could reasonably conclude that a party should be compensated for a percentage of the losses commensurate with that party's share of the marital estate as awarded by the trial court. The trial court in the present case took the plaintiff's transactions into account by adjusting the distribution of marital assets in the defendant's favor, but it did not articulate precisely what share of the marital estate it had awarded to the defendant. Nor did it articulate how much of its total property distribution was attributable to the plaintiff's violations of the automatic orders. The plaintiff has not claimed that the lack of articulation in this respect itself requires reversal. In the future, however, the trial court should articulate both the adverse impact that a party's violation had on the value of the marital estate and precisely how it compensated the injured party for that violation. Nevertheless, in the present case, considering the plaintiff's valuation of the trial court's total property distribution and the plaintiff's suggested split of the marital assets, we conclude that the trial court's remedial award to the defendant did not exceed the defendant's reasonable share of the loss. According to the plaintiff's valuation of the marital assets, the total value of the assets divided, without regard to the stocks and options, was $6,514,836. The plaintiff had asked the trial court to divide the marital assets evenly between the parties. Even if the trial court followed the plaintiff's suggestion, the defendant would have been entitled to one half of this amount, that is, $3,257,418. In this scenario, the trial court also would have been justified in awarding the defendant 50 percent of the $3.5 million in losses caused by the plaintiff's violations of the automatic orders, an additional $1,750,000. The defendant was actually awarded a total of $4,428,784-meaning that she effectively received $3,257,418 of the marital assets and an additional $1,171,366 for the losses caused by the plaintiff. Accordingly, under the plaintiff's valuation, the defendant effectively received exactly one half of the losses caused by the plaintiff, less a discount of 33 percent for taxes. Consequently, even if we assume that the trial court gave the defendant exactly the share of the estate that the plaintiff argued that the defendant was entitled to, and even if we use the plaintiff's own valuation of the trial court's distribution, it is evident that the trial court's award did not exceed the reasonable value of the defendant's losses and thus did not amount to a penalty for the plaintiff's violations of the automatic orders. To be sure, if the plaintiff had not sold the stocks or exercised the options, the stocks and options would have remained a part of the marital estate and have been subject to distribution under § 46b-81. In that circumstance, Sunbury would have required the trial court to look to the value of the stocks and options as of the dissolution date. Of course, if the plaintiff had not sold the stocks or exercised the options, the defendant would nevertheless have benefited from any increase in the actual value of any stocks or options she received in the distribution, even if the trial court could not have formally considered the increased value when distributing the assets. We are thus unpersuaded by the plaintiff's contract law analogy. A plaintiff in a breach of contract action is ordinarily entitled to be placed in as good a position as he would have been in the absence of the breach, and an award of damages may include lost profits. E.g., West Haven Sound Development Corp. v. West Haven, 201 Conn. 305, 319-20, 514 A.2d 734 (1986) ("The general rule in breach of contract cases is that the award of damages is designed to place the injured party, so far as can be done by money, in the same position as that which he would have been in had the contract been performed. . [I]t is our rule that [u]nless [prospective profits] are too speculative and remote, [they] are allowable as an element of damage whenever their loss arises directly from and as a natural consequence of the breach." [Citations omitted; internal quotation marks omitted.] ). The trial court was fully justified in finding that the exception did not apply in the present case. The plaintiff was an attorney by profession, not a stockbroker, and the plaintiff has not directed us to any evidence that he otherwise had a regular practice of buying and selling stocks, either as a hobby or in the management of his personal finances. Nor did he present evidence of a regular practice of transacting his Omnicom stock that he had received as compensation for his employment. In fact, the plaintiff testified that his sale of Omnicom stock in 2009-when the automatic orders were in effect-was the first time he had sold such stock. We do not suggest, as the trial court did, that the usual course of business exception is reserved only for transactions made in connection with a party's business or profession; rather, because the automatic orders are intended to maintain the status quo between the parties, the exception would appear to extend to personal transactions, but only if any such transactions are conducted in the normal course of the parties' ordinary activities, such that both parties would fully expect the transactions to be undertaken without prior permission or approval. Even if the trial court took a more limited view of the exception, however, that view would not provide a basis for reversal of the trial court's financial orders. The testimony in the present case indicates that the plaintiff had not previously sold stocks earned as part of his compensation, and, thus, he cannot establish a preexisting practice of selling these assets, even under a more expansive interpretation of the exception. See footnote 11 of this opinion. The Appellate Court did not address this argument, concluding that the plaintiff had waived it. O'Brien v. O'Brien, supra, 161 Conn.App. at 580 n.4, 128 A.3d 595. Because the claim cannot succeed on its merits even if preserved, we need not consider whether it was waived. We note that, in the present case, whether the options were marital property is irrelevant to our determination that the plaintiff's exercise of those options violated the automatic orders, which expressly bar the sale, transfer, or exchange of "any property," not just marital property, during the pendency of the dissolution proceedings. Practice Book § 25-5 (b) (1). We consider whether the options were marital property because that issue is relevant to determining the extent of any losses that the defendant may have sustained and that are attributable to those transactions and, thus, to the plaintiff. The trial court's finding is also supported by the Omnicom plan governing the issuance of stock options, which was entered into evidence at trial. That plan makes no reference to options being awarded for future services or retention purposes, and does not make the exercise of any options contingent on meeting any future performance goals. General Statutes § 46b-82 (a) provides in relevant part: "At the time of entering the decree, the Superior Court may order either of the parties to pay alimony to the other, in addition to or in lieu of an award pursuant to section 46b-81.... In determining whether alimony shall be awarded, and the duration and amount of the award, the court shall consider the evidence presented by each party and 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 and needs of each of the parties and the award, if any, which the court may make pursuant to section 46b-81, and, in the case of a parent to whom the custody of minor children has been awarded, the desirability and feasibility of such parent's securing employment." (Emphasis added.)

12485363

STATE of Connecticut v. Russell PEELER.

State v. Peeler

2016-05-26

No. 18125.

811

894

140 A.3d 811

140

West's Atlantic Reporter, Third Series

Connecticut Supreme Court

Connecticut

2021-08-27T20:57:13.996876+00:00

Fastcase

STATE of Connecticut v. Russell PEELER.

STATE of Connecticut v. Russell PEELER. No. 18125. Supreme Court of Connecticut. Argued Jan. 7, 2016. Decided May 26, 2016. Mark Rademacher, assistant public defender, with whom was Lisa J. Steele, for the appellant (defendant). Harry Weller, senior assistant state's attorney, with whom, on the brief, were Kevin T. Kane, chief state's attorney, John C. Smriga, state's attorney, Jonathan Benedict, former state's attorney, Susan C. Marks, supervisory assistant state's attorney, Marjorie Allen Dauster and Joseph Corradino, senior assistant state's attorneys, and Matthew A. Weiner, assistant state's attorney, for the appellee (state). ROGERS, C.J., and PALMER, ZARELLA, EVELEIGH, McDONALD, ESPINOSA and ROBINSON, Js. May 26, 2016, the date that this decision was released as a slip opinion, is the operative date for all substantive and procedural purposes. This case originally was argued before the same panel of justices on July 10, 2014. This court granted the state's request for supplemental argument on November 30, 2015, which was heard on January 7, 2016.

53319

332358

PER CURIAM. A jury found the defendant, Russell Peeler, guilty of, among other things, one count of capital felony in violation of General Statutes (Rev. to 1999) § 53a-54b (8) and one count of capital felony in violation of General Statutes (Rev. to 1999) § 53a-54b (9) in connection with the 1999 shooting deaths of a woman and her young son, and, following a capital sentencing hearing, the trial court, Devlin, J., rendered judgment imposing two death sentences. This appeal of the defendant's death sentences is controlled by State v. Santiago, 318 Conn. 1, 122 A.3d 1 (2015), in which a majority of this court concluded that, following the enactment of No. 12-5 of the 2012 Public Acts (P.A. 12-5), executing offenders who committed capital crimes prior to the enactment of P.A. 12-5 would offend article first, § 8 and 9, of the Connecticut constitution. See, e.g., Conway v. Wilton, 238 Conn. 653, 658-62, 680 A.2d 242 (1996) (explaining scope of and rationale for rule of stare decisis). Our conclusion that the defendant's death sentences must be vacated as unconstitutional in light of Santiago renders moot the defendant's other appellate claims. The judgment is reversed with respect to the imposition of two sentences of death and the case is remanded with direction to impose a sentence of life imprisonment without the possibility of release on each capital felony count; the judgment is affirmed in all other respects. In this opinion ROGERS, C.J., and PALMER, EVELEIGH, McDONALD and ROBINSON, Js., concurred. The facts and procedural history of the case are presented more fully in State v. Peeler, 271 Conn. 338, 343-57, 857 A.2d 808 (2004), cert. denied, 546 U.S. 845, 126 S.Ct. 94, 163 L.Ed.2d 110 (2005).

12488804

Vincent BIFOLCK, Executor (Estate of Jeanette D. Bifolck), et al. v. PHILIP MORRIS, INC.

Bifolck v. Philip Morris, Inc.

2016-12-29

SC 19310

1183

1222

152 A.3d 1183

152

West's Atlantic Reporter, Third Series

Connecticut Supreme Court

Connecticut

2021-08-27T20:57:14.008101+00:00

Fastcase

Vincent BIFOLCK, Executor (Estate of Jeanette D. Bifolck), et al. v. PHILIP MORRIS, INC.

Vincent BIFOLCK, Executor (Estate of Jeanette D. Bifolck), et al. v. PHILIP MORRIS, INC. SC 19310 Supreme Court of Connecticut. Argued September 13, 2016 Officially released December 29, 2016 David S. Golub, with whom were Jonathan M. Levine and, on the brief, Marilyn J. Ramos, for the appellants (plaintiffs). John C. Massaro, with whom were Francis H. Morrison III and, on the brief, Anthony J. Franze, pro hac vice, John B. Daukas, pro hac vice, John M. Tanksi and Michael K. Murray, for the appellee (defendant). Jonathan M. Hoffman, pro hac vice, Cristin E. Sheehan and Kaelah M. Smith filed a brief for the Product Liability Advisory Council, Inc., as amicus curiae. Daniel S. Rawner and Kenneth J. Parsigian, pro hac vice, filed a brief for the Chamber of Commerce of the United States of America as amicus curiae. George Jepsen, attorney general, Gregory T. D'Auria, solicitor general, and Phillip Rosario, Jonathan J. Blake and Thomas J. Saadi, assistant attorneys general, filed a brief for the state of Connecticut et al. as amici curiae. John J. Robinson and Cullen W. Guilmartin filed a brief for the Connecticut Defense Lawyers Association as amicus curiae. Randall L. Goodden filed a brief for the International Product Safety and Liability Prevention Association as amicus curiae. Jennifer M. DelMonico, Proloy K. Das, Eric B. Miller and Terence J. Brunau filed a brief for the Connecticut Business and Industry Association et al. as amici curiae. Brenden P. Leydon filed a brief for the Connecticut Trial Lawyers Association as amicus curiae. Larry A. Tawwater, Alinor Sterling and Jeffrey R. White filed a brief for the American Association for Justice as amicus curiae. Michael G. Rigg filed a brief for Aaron D. Twerski et al. as amici curiae. Rogers, C.J., and Zarella, Eveleigh, McDonald, Espinosa, Robinson and Vertefeuille, Js. December 29, 2016, the date that this decision was released as a slip opinion, is the operative date for all substantive and procedural purposes. This appeal was originally argued on April 22, 2015. On April 25, 2016, we ordered the parties to address certain questions in supplemental briefs and we then granted reargument in this appeal on September 13, 2016.

21837

138012

McDONALD, J. This case is the second of two diversity actions in which the federal courts certified questions for this court's advice regarding the viability of an action under Connecticut's Product Liability Act (act) alleging that a cigarette's design had increased consumers' risk of cancer. The courts sought advice whether specific theories advanced in those actions are precluded by this court's adoption of § 402A of the Restatement (Second) of Torts, which imposes liability for defective products that are "unreasonably dangerous," and more particularly, our adoption of comment (i) to § 402A, which defines that term in relation to consumers' knowledge of the danger. In the first of these actions, this court advised that the strict liability theory advanced was not precluded because it required application of our modified consumer expectation test, under which the obviousness of the danger is only one of many factors that the trier of fact may consider. Izzarelli v. R.J. Reynolds Tobacco Co. , 321 Conn. 172, 177, 136 A.3d 1232 (2016). In the present action, this court considers three substantive questions: (1) whether, for claims alleging design defects, we should abandon our dual tests based on § 402A of the Restatement (Second) of Torts and adopt the standards under the Restatement (Third) of Torts, Products Liability; (2) if not, whether § 402A and comment (i) provide a single, unitary definition for all theories under which product liability claims may be brought, including negligence; and (3) whether the punitive damages available in the act are limited to litigation costs under our common-law punitive damages rule. This court raised the first question; we accepted certification with respect to the second and third questions, pursuant to General Statutes § 51-199b(d), from the United States District Court for the District of Connecticut. See Bifolck v. Philip Morris, Inc. , Docket No. 3:06cv1768 (SRU), 2014 WL 585325 (D. Conn. February 14, 2014). For the reasons that follow, we decline at this time to adopt the Restatement (Third). Nonetheless, we are persuaded that modest refinements to our product liability tests under the Restatement (Second) will clarify the plaintiff's burden of proof in strict liability cases and provide a better guide to any necessity for adopting the Restatement (Third) or any other substantive change. We further conclude that, although all product liability claims require proof of a "defective condition unreasonably dangerous" to the user or consumer, unreasonably dangerous is not determined by consumer expectations under comment (i) to § 402A when such a claim may be brought under a theory of negligence. Finally, we conclude that punitive damages under the act are not limited by the common-law rule. Accordingly, we answer both of the certified questions "No." I BACKGROUND OF THE PRESENT CASE The following facts and procedural history gave rise to the issues presently before us. The plaintiff, Vincent Bifolck, individually and as executor of the estate of his wife, Jeanette D. Bifolck (decedent), commenced this action in the District Court against the defendant, Philip Morris, Inc., after the decedent succumbed to lung cancer at the age of forty-two. The principal thrust of the complaint is that the Marlboro and Marlboro Light cigarettes manufactured by the defendant and smoked by the decedent were defectively designed and that this defective design was responsible for her lung cancer and death from that disease. The plaintiff sought compensatory damages, as well as statutory punitive damages under General Statutes § 52-240b. One count of the complaint asserted a product liability claim under the act, but set forth separate allegations in support of theories of strict liability and negligence. With respect to strict liability, the plaintiff alleged that the defendant's cigarettes were defective and unreasonably dangerous in that their design rendered the cigarettes unnecessarily addictive and unnecessarily carcinogenic. Specifically, the plaintiff alleged that the defendant had (1) added ingredients, including carcinogenic ingredients, that altered the natural form of the tobacco in the cigarettes, and (2) utilized manufacturing processes that affected the composition and form of the tobacco and nicotine, as well as the manner in which the cigarette smoke was transmitted to the smoker. With respect to negligence, the plaintiff alleged that the defendant had failed to conform to the applicable standard of care by knowingly designing the cigarettes in a manner that enhanced their addictive and cancer causing nature and by failing to take available measures to reduce the cigarettes' addictive, toxic, and cancer causing ingredients/properties. After the plaintiff commenced the present action, judgment was rendered in the District Court in another action against a different cigarette manufacturer on the basis of similar allegations of strict liability and negligence. See Izzarelli v. R.J. Reynolds Tobacco Co. , 806 F.Supp.2d 516, 519-20 (D. Conn. 2011). Following the appeal by the defendant, R.J. Reynolds Tobacco Company, from that judgment to the United States Court of Appeals for the Second Circuit, that court certified the following question to this court: "Does [comment (i) ] to § 402A of the Restatement (Second) of Torts preclude a suit premised on strict products liability against a cigarette manufacturer based on evidence that the defendant purposefully manufactured cigarettes to increase daily consumption without regard to the resultant increase in exposure to carcinogens, but in the absence of evidence of adulteration or contamination?" (Emphasis added.) Izzarelli v. R.J. Reynolds Tobacco Co. , 731 F.3d 164, 169 (2d Cir. 2013). A particular focus of that question related to an example in comment (i) providing that "good tobacco" is not unreasonably dangerous. See footnote 2 of this opinion. The trial in the present case was postponed to await this court's response to that question. In the intervening period, the District Court certified two additional questions to this court for advice: (1) "Does [§] 402A of the Restatement (Second) of Torts (and comment [i] to that provision) apply to a product liability claim for negligence under [the act]?"; and (2) "Does Connecticut's [common-law] rule of punitive damages as articulated in Waterbury Petroleum Products, Inc. v. Canaan Oil & Fuel Co. , 193 Conn. 208 [477 A.2d 988] (1984), apply to an award of statutory punitive damages pursuant to [General Statutes] § 52-240b, the punitive damages provision of the [act]?" Bifolck v. Philip Morris, Inc. , supra, 2014 WL 585325, at *8. After oral argument to this court on both cases, we issued our decision in Izzarelli , in which we advised that comment (i) to § 402A did not preclude the strict liability theory advanced. Izzarelli v. R.J. Reynolds Tobacco Co. , supra, 321 Conn. at 177, 136 A.3d 1232. We clarified that, although the two tests available under our law-the ordinary consumer expectation test and the modified consumer expectation test-both apply § 402A's unreasonably dangerous standard, "the modified consumer expectation test is our primary strict product liability test, and the sole test applicable to the present case. Because the obvious danger exceptions to strict liability in comment (i) to § 402A of the Restatement (Second), including '[g]ood tobacco,' are not dispositive under the multifactor modified consumer expectation test, we answer the certified question in the negative." Id. The jury in Izzarelli had been instructed on both strict liability tests and rendered a general verdict in favor of the plaintiff. Id., at 182, 136 A.3d 1232. Neither party had advocated for application of any test other than one of the two tests based on the Restatement (Second) recognized by this court. Id., at 192 n.11, 136 A.3d 1232. Nonetheless, a concurring opinion took the position that we should adopt and apply to the certified question in that case the standard for design defects under the Restatement (Third). Id., at 211, 477 A.2d 988 (Zarella, J. , concurring). Although that position did not garner majority support in that case, the posture of the present case is more conducive to consideration of this issue. Unlike Izzarelli , this case has not yet proceeded to trial. Accordingly, the issue raised by the Izzarelli concurrence can be considered with the benefit of supplemental briefing, but without the possibility of disturbing a presumptively valid verdict under the existing standards in the absence of a challenge to those standards. In light of these considerations, we issued an order to the parties in the present case, concurrently with the issuance of our decision in Izzarelli , seeking supplemental briefs on the following questions: (1) whether, for product liability actions premised on design defects, this court should abandon the ordinary consumer expectation test/modified consumer expectation test and adopt § 1, 2 (b) and 4 of the Restatement (Third), with or without the associated commentary; and (2) if so, whether there is any reason why this court should not apply the Restatement (Third) standard to cases pending before a trial court, like the present case. We also invited professional organizations to submit amicus briefs on the first question. Pursuant to the parties' joint request, the court heard oral argument on these questions. II WHETHER TO ABANDON THE RESTATEMENT (SECOND) IN FAVOR OF THE RESTATEMENT (THIRD) FOR DESIGN DEFECT CLAIMS We begin with the question that this court raised because its answer could be dispositive of the first certified question regarding whether consumer expectations under comment (i) to § 402A govern recovery for a defective design under a theory of negligence. See Restatement (Third), supra, § 2, comment (g), pp. 27-28 (explaining that "consumer expectations do not constitute an independent standard for judging the defectiveness of product designs" and that such expectations are "relevant" but not controlling). A Parties' Positions The parties and the amici supporting their respective positions take sharply divergent views on every consideration relevant to this issue. The plaintiff urges us not to abandon our dual Restatement (Second) tests, characterizing the Restatement (Third) as a significant departure from our long-standing strict liability standard and the public policies that this standard advances. Conversely, the defendant urges us to adopt the Restatement (Third), characterizing it as consistent with our case law, our act, and litigation practice. To the extent that both parties acknowledge that the Restatement (Third) will make some change to our product liability law, they point to different effects of those changes. The plaintiff contends that these changes will have a detrimental, unfair effect on injured consumers, whereas the defendant contends that these changes will provide greater clarity and objectivity without such effects. The plaintiff contends that the task of weighing the numerous policy considerations implicated is better left to the legislature, whereas the defendant contends that the issue should be resolved by this court. B Current Standard under Our Law Prior to 1965, plaintiffs in Connecticut relied on theories of negligence and breach of warranty in actions to recovery for injuries caused by defective products. In 1965, Connecticut adopted the strict liability standard for product liability actions under § 402A of the Restatement (Second), under which a plaintiff need not establish the manufacturer's fault. See Garthwait v. Burgio , 153 Conn. 284, 289-90, 216 A.2d 189 (1965) ; 2 Restatement (Second), Torts, § 402A, comment (a), p. 348 (1965) (product seller is "subject to liability to the user or consumer even though he has exercised all possible care in the preparation and sale of the product"). Under that standard, a manufacturer or seller of a product may be held liable if the product is "unreasonably dangerous ." 2 Restatement (Second), supra, § 402A (1), p. 347. A primary justification for imposing strict liability has been that, as between the injured consumer and the manufacturer who has derived the economic benefits from the sale of the product, the latter is better able to insure against the risk and can pass that cost along to all consumers. See Potter v. Chicago Pneumatic Tool Co. , 241 Conn. 199, 209, 694 A.2d 1319 (1997). Originally, this court defined unreasonably dangerous solely by reference to consumer expectations as set forth in comment (i)-the ordinary consumer expectation test. See id., at 214-15, 694 A.2d 1319 ("[T]he article sold must be dangerous to an extent beyond that which would be contemplated by the ordinary consumer... with the ordinary knowledge common to the community as to its characteristics. 2 Restatement [Second], supra, § 402A, comment [i]." [Internal quotation marks omitted.] ); see also Giglio v. Connecticut Light & Power Co., 180 Conn. 230, 234, 429 A.2d 486 (1980) ; Slepski v. Williams Ford, Inc., 170 Conn. 18, 23, 364 A.2d 175 (1975). In 1997, this court rejected the argument that, for design defects, we should adopt the standard in the draft Restatement (Third), requiring proof of a reasonable alternative design, instead of § 402A's unreasonably dangerous standard. See Potter v. Chicago Pneumatic Tool Co. , supra, 241 Conn. at 215, 694 A.2d 1319. In Potter , the court acknowledged a concern expressed by one court that design defects lacked an objective standard by which they may be proved, whereas manufacturing defects could be objectively evaluated against the intended design of the product. Id., at 211, 694 A.2d 1319, citing Caterpillar Tractor Co. v. Beck , 593 P.2d 871, 880 (Alaska 1979). Nonetheless, the court declined to adopt the alternative design requirement, noting that the majority of jurisdictions had not imposed such an absolute requirement. Potter v. Chicago Pneumatic Tool Co. , supra, at 216, 694 A.2d 1319. More fundamentally, the court rejected this requirement because it "imposes an undue burden on plaintiffs that might preclude otherwise valid claims from jury consideration." Id., at 217, 694 A.2d 1319. The court posited that the rule would require expert witnesses, even when the jury could infer a design defect from circumstantial evidence, in contravention to our case law. Id., at 217-18, 694 A.2d 1319. It also posited that a product could be unreasonably dangerous to the consumer even when there is no alternative, safer design. Id., at 219, 694 A.2d 1319. The court's review of the various tests adopted by other jurisdictions convinced it, however, that our singularly focused consumer expectation test might also preclude some valid claims. Id. Therefore, instead of imposing a more stringent standard of proof, the court established an alternative means of proving that a design defect is unreasonably dangerous-the modified consumer expectation test. Id., at 220, 694 A.2d 1319. Under this test, a product is unreasonably dangerous if a reasonable, informed consumer would conclude that its risks outweigh its utility. Id., at 220-21, 694 A.2d 1319. This is a multifactor test, under which no single factor is per se determinative. See id., at 221 n.15, 694 A.2d 1319 (citing nonexclusive list of factors, including "the usefulness of the product, the likelihood and severity of the danger posed by the design, the feasibility of an alternative design, the financial cost of an improved design, the ability to reduce the product's danger without impairing its usefulness or making it too expensive, and the feasibility of spreading the loss by increasing the product's price or by purchasing insurance" [internal quotation marks omitted] ). Evidence that an alternative design was available that would have reduced or avoided the danger may be proffered, but it is not a mandatory element of the plaintiff's case. Id., at 221, 694 A.2d 1319. The court emphasized in adopting this test that it maintained its allegiance to a strict liability regime that focuses on the product's danger and not the manufacturer's culpability. Id., at 221-22, 694 A.2d 1319. Whereas Potter established dual tests to prove that a design defect is unreasonably dangerous, our recent decision in Izzarelli clarified the circumstances under which each test applies. See Izzarelli v. R.J. Reynolds Tobacco Co. , supra, 321 Conn. at 192, 202-203, 136 A.3d 1232. The modified consumer expectation test is our primary test. Id., at 194, 136 A.3d 1232. The ordinary consumer expectation test is reserved for those cases in which the product failed to meet consumers' legitimate, commonly accepted, minimum safety expectations. Id., at 202-203, 136 A.3d 1232. The defect in such cases is so obvious that expert testimony is not needed to establish it and the utility of the product is not an excuse for the undisclosed defect. Id., at 194, 202-203, 136 A.3d 1232. In sum, under either test, § 402A provides the elements of a strict product liability claim; see footnote 8 of this opinion; but the unreasonably dangerous element is determined by minimum safety expectations in one and by balancing risks and utility in the other. Izzarelli v. R.J. Reynolds Tobacco Co. , supra, 321 Conn. at 193, 208-209, 136 A.3d 1232. C Standard under the Restatement (Third) Unlike § 402A's "unreasonably dangerous" standard, which applies to any type of product defect, § 2 of the Restatement (Third) prescribes different standards for each of the three categories of product defects-design defects, manufacturing defects and defects due to inadequate instructions/warnings. A product "is defective in design when the foreseeable risks of harm posed by the product could have been reduced or avoided by the adoption of a reasonable alternative design by the seller or other distributor, or a predecessor in the commercial chain of distribution, and the omission of the alternative design renders the product not reasonably safe ." Restatement (Third), supra, § 2(b), p. 14. The comments elaborate on the practical application of this standard. They explain that this standard "adopts a reasonableness ('risk-utility balancing') test as the standard for judging . defectiveness ." Id., comment (d), p. 19. "A broad range of factors may be considered in determining whether an alternative design is reasonable and whether its omission renders a product not reasonably safe. The factors include, among others, the magnitude and probability of the foreseeable risks of harm, the instructions and warnings accompanying the product, and the nature and strength of consumer expectations regarding the product, including expectations arising from product portrayal and marketing.... The relative advantages and disadvantages of the product as designed and as it alternatively could have been designed may also be considered. Thus, the likely effects of the alternative design on production costs; the effects of the alternative design on product longevity, maintenance, repair, and esthetics; and the range of consumer choice among products are factors that may be taken into account." (Citation omitted.) Id., comment (f), p. 23. The design defect standard under § 2 is not the exclusive means of establishing liability for a design defect. The Restatement (Third) acknowledges three other standards under which a design defect could be established. A comment to § 2 recognizes the possibility that courts could determine that some products were "so manifestly unreasonable, in that they have low social utility and high degree of danger, that liability should attach even absent proof of a reasonable alternative design." Id., comment (e), pp. 21-22. The example provided of a product that would satisfy this standard is an exploding novelty cigar that causes burns to the user's face. Id., illustration (5), p. 22. This standard will not apply "in most instances even though the plaintiff alleges that the category of product sold by the defendant is so dangerous that it should not have been marketed at all." Id., comment (d), p. 20. In addition, § 3 recognizes that circumstantial evidence alone may support the inference of a product defect. Id., § 3, p. 111. Essentially, this section states the contours of the "malfunction" theory that has long been recognized under Connecticut's § 402A case law. See Metropolitan Property & Casualty Ins. Co. v. Deere & Co. , 302 Conn. 123, 132-33, 25 A.3d 571 (2011) ; see also Living & Learning Centre, Inc. v. Griese Custom Signs, Inc. , 3 Conn.App. 661, 664, 491 A.2d 433 (1985) ( "It is not necessary that the plaintiff in a strict tort action establish a specific defect as long as there is evidence of some unspecified dangerous condition. In the absence of other identifiable causes, evidence of malfunction is sufficient evidence of a defect under § 402A of the [Restatement (Second) of Torts]."). This standard "most often [will] apply to manufacturing defects, [but] occasionally a product design causes the product to malfunction in a manner identical to that which would be caused by a manufacturing defect." Restatement (Third), supra, § 3, comment (b), p. 112. Also, § 4 (a) of the Restatement (Third) provides that "a product's noncompliance with an applicable product safety statute or administrative regulation renders the product defective with respect to the risks sought to be reduced by the statute or regulation ." Liability may not be assessed if the law is unclear as to its meaning or purpose, or conflicts with other safety laws with which the manufacturer must comply. Id., comment (d), p. 121. It is evident that these three alternatives to the standard under § 2 (b) have a narrow field of operation. Few products will have such a marginal utility and such a high degree of risk akin to the cartoonish example of the exploding cigar that will satisfy the manifestly unreasonable standard. See A. Twerski & J. Henderson, Jr., " Manufacturers' Liability for Defective Product Designs: The Triumph of Risk-Utility," 74 Brook. L. Rev. 1061, 1071 (2009) (authors who served as coreporters of Restatement [Third] acknowledged that "comment [ (e) to § 2] speaks merely of the possibility that courts might encounter an unusual case in the future-it does not endorse or recommend the imposition of category liability" and that coreporters hoped to "disarm [that possibility] by dealing with it forthrightly [and narrowly] in comment [e]"). Only occasionally will a design defect cause a product to malfunction in a manner identical to a manufacturing defect. Rarely will manufacturers wholly disregard plain and unambiguous product safety laws. Therefore, it is clear that the standard under § 2 (b) is intended to apply in all but the rarest cases. As such, we focus our attention on the differences between this predominant standard and our tests under § 402A. Section 2 (b) imposes two requirements that are not mandated under our § 402A tests: (1) proof that the harm was foreseeable; and (2) proof that a reasonable alternative design existed that would have reduced or avoided the danger. Restatement (Third), supra, § 2(b), p. 14. The comments explain that the rule under § 2 (b) is stated in functional terms rather than traditional doctrinal categories (i.e., strict liability, negligence, implied warranty). Id., § 2, comment (n), p. 35. Nonetheless, the comments also acknowledge that § 2 (b)"achieve [s] the same general objectives as does liability predicated on negligence"; id., comment (a), p. 16; undertakes the same comparative approach that is used in negligence; id., comment (d), p. 19; and is supported by the same policy considerations that support use of a reasonable person perspective in negligence. Id. Accordingly, while there are nominal differences, many courts and commentators view § 2 (b) as effectively requiring proof of negligence. See, e.g., Aubin v. Union Carbide Corp. , 177 So.3d 489, 506 (Fla. 2015) ; Wright v. Brooke Group Ltd. , 652 N.W.2d 159, 168 (Iowa 2002) ; Godoy v. E.I. du Pont de Nemours & Co. , 319 Wis.2d 91, 124, 768 N.W.2d 674 (2009) (Bradley, J., concurring); 2 D. Dobbs, Law of Torts (2001) § 353, p. 977; R. Cupp, Jr. & D. Polage, " The Rhetoric of Strict Products Liability Versus Negligence: An Empirical Analysis," 77 N.Y.U. L. Rev. 874, 883 (2002) ; F. Hubbard, " 'Sophisticated Robots': Balancing Liability, Regulation, and Innovation," 66 Fla. L. Rev. 1803, 1821 (2014) ; F. Vandall & J. Vandall, " A Call for an Accurate Restatement (Third) of Torts: Design Defect," 33 U. Mem. L. Rev. 909, 921 (2003). Section 402A is a true strict liability standard. A product seller is "subject to liability to the user or consumer even though he has exercised all possible care in the preparation and sale of the product." 2 Restatement (Second), supra, § 402A, comment (a), p. 348. Foreseeability of harm is not an element of the plaintiff's prima facie case. See Vendrella v. Astriab Family Ltd. Partnership , 311 Conn. 301, 307 n.7, 87 A.3d 546 (2014) ("[s]trict liability means liability without proof that the defendant was negligent, i.e., that the defendant failed to take reasonable steps to prevent a foreseeable harm"). Foreseeability is only relevant to a defense that the product was not put to a foreseeable use ; see General Statutes § 52-572l (codifying common-law defense of misuse); Norrie v. Heil Co. , 203 Conn. 594, 600, 525 A.2d 1332 (1987) ("[m]isuse occurs when a product is not used in a manner which should have been foreseen by the defendant" [internal quotation marks omitted] ); or to a request for a reduction of damages due to the plaintiff's comparative responsibility for his injuries. See General Statutes § 52-572o . Although the availability of an alternative design could be relevant under either of our tests under § 402A, neither requires such proof. Indeed, under our primary modified consumer expectation test, a plaintiff may establish liability solely by reference to the product sold, upon proof that its risks outweigh its utility. It bears emphasizing that this risk-utility balancing does not limit liability to products that are of excessively low utility and exceedingly high risk, as does the "manifestly" unreasonable standard in the Restatement (Third). On its face, therefore, the Restatement (Third) would appear to make consequential changes to our product liability law. According to the plaintiff, adopting the Restatement (Third) would make product liability cases significantly more expensive to litigate; in many cases requiring expert testimony/product prototypes to establish that the alternative design is reasonable. As such, he contends it will be more likely that cases will be decided on pretrial motions testing the adequacy of this proof and that injured consumers with smaller damages will be unable to bring product liability actions at all. In response, the defendant and some of the amici contend that adoption of the Restatement (Third) would not significantly alter our law in practice , because plaintiffs typically elect to proffer proof of an alternative design. The defendant does not, and could not, claim, however, that plaintiffs have ever assumed the burden of proving that the harm was foreseeable. Moreover, the defendant's argument does not account for the fact that the adequacy of this proof has generally not been the subject of serious controversy and pretrial motions because plaintiffs have not been required to prove the reasonableness of the alternative design to prevail. D Whether the Restatement (Third) Should Be Adopted In his concurring opinion in Izzarelli , Justice Zarella set forth several reasons why he believes that, regardless of the degree of difference, the greater clarity and objectivity that the Restatement (Third) provides over our current standards favors its adoption. See Izzarelli v. R.J. Reynolds Tobacco Co. , supra, 321 Conn. at 217-43, 136 A.3d 1232 (Zarella, J. , concurring). Putting aside the question of any purported advantages that could be gained from adoption of the Restatement (Third), we note the following considerations that weigh against its adoption. We have followed § 402A's strict liability standard for more than five decades. We have only modified that standard to the extent that it was necessary to fill a gap in our law; Potter v. Chicago Pneumatic Tool Co. , supra, 241 Conn. at 219-20, 694 A.2d 1319 ; or to clarify the field of operation of those tests to a case before us. Izzarelli v. R.J. Reynolds Tobacco Co. , supra, 321 Conn. at 192, 136 A.3d 1232. In the almost two decades since this court adopted our modified consumer expectation test in Potter , there has been no evidence that our § 402A strict liability tests have proved to be unworkable. Not a single case applying Connecticut law has been brought to our attention demonstrating either that a jury had difficulty applying our law or that a jury's verdict yielded a bizarre or unconscionable result. Indeed, we noted in Izzarelli that we would trust our trial courts to safeguard against any such result. See id., at 205, 136 A.3d 1232. In those two decades since Potter , there is also no indication that any action has been undertaken to seek changes to our tests. No party has ever asked this court to modify those tests, or to reconsider the Restatement (Third) in light of the failure of the court in Potter to address its exceptions to the alternative design requirement. See footnote 12 of this opinion; see also Restatement (Third), supra, § 2, reporters' note, comment (d), part II C, pp. 72-73 (asserting that Potter had misinterpreted Restatement [Third] to impose per se requirement). No interest group has sought change legislatively. Shortly before the court's decision in Potter , the Connecticut Business and Industry Association drafted a bill that sought to amend our act to incorporate the definition of design defect in the draft Restatement (Third). See Raised House Bill No. 5709, 1996 Sess.; Conn. Joint Standing Committee Hearings, Judiciary, Pt. 5, 1996 Sess., p. 1119, remarks of Elizabeth Gara, assistant counsel for the Connecticut Business and Industry Association. That bill was not acted on by the Judiciary Committee after it heard competing views on it at a public hearing. Since Potter , other legislation has been proposed to amend the act; see Raised Bill No. 5731, 2002 Sess. (proposing to preclude evidence of subsequent remedial measures in product liability actions); see also Public Acts 2011, No. 11-200, § 1 (amending limitation period for asbestos related product liability claims); but none that would have changed our product liability standards. An argument that our standard is unworkable because it lacks an "objective" basis for decision-making was implicitly rejected in Potter , and is both circular and contradicted by experience. The presumption on which this argument rests is that failing to require proof of a reasonable alternative design in a risk-utility test deprives the fact finder of an objective basis for decision-making because it lacks an alternative against which to compare the marketed product. The flaw in this argument is that it assumes that a product cannot be unsafe unless it can be made safer. If the fact finder's task is to determine whether the defendant could have made a safer product, it necessarily follows that the absence of an alternative design makes this task impossible. If, however, the fact finder's task is to assess whether the product is unreasonably dangerous because its risks exceed its utility, no comparison to an alternative is necessary. The fact that jurors commonly engage in such a balancing test whenever they are called upon to assess reasonableness, such as in a claim of negligence, evidences that such weighing is workable. See 2 Restatement (Second), supra, § 291, p. 54 ("[w]here an act is one which a reasonable man would recognize as involving a risk of harm to another, the risk is unreasonable and the act is negligent if the risk is of such magnitude as to outweigh what the law regards as the utility of the act or of the particular manner in which it is done"); see also Rodriguez v. Suzuki Motor Corp. , 996 S.W.2d 47, 65 (Mo. 1999) ("the term unreasonably dangerous, as used in [§] 402A and [the model jury instructions], needs no judicial definition, whether derived from consumer expectations, risk-utility, or otherwise" [internal quotation marks omitted] ). Indeed, even under the Restatement (Third), the fact finder weighs the risks and utility of each respective design before comparing the alternative design to the product sold. We also note that Connecticut's standard is hardly an outlier. It is not a fruitful exercise to attempt to obtain a precise count of how many jurisdictions have adopted or rejected the Restatement (Third) standard. Like every other aspect of this area of the law, parties on each side of this debate disagree about what legal standard has been adopted in the various jurisdictions and whether that determination should be made on the basis of how the court has articulated its standard or how the cases have been litigated. It suffices for our purposes that several other jurisdictions apply similar standards to ours, some for many years. See, e.g., Barker v. Lull Engineering Co., 20 Cal.3d 413, 430, 573 P.2d 443, 143 Cal.Rptr. 225 (1978) ; Tabieros v. Clark Equipment Co. , 85 Hawai'i 336, 367-68, 944 P.2d 1279 (1997) ; Delaney v. Deere & Co. , 268 Kan. 769, 792-93, 999 P.2d 930 (2000) ; Bustos v. Hyundai Motor Co. , 149 N.M. 1, 13, 243 P.3d 440 (App. 2010). The jurisdictions that have most recently considered this issue have declined to adopt the Restatement (Third). See Aubin v. Union Carbide Corp. , supra, 177 So. 3d at 510 ("In considering which approach is in line with our prior strict liability jurisprudence, we are in accord with those state supreme courts that have thoughtfully considered this issue and determined that the Third Restatement's new approach is inconsistent with the rationale behind the adoption of strict products liability. The Third Restatement is, in fact, contrary to this state's prior precedent."); Tincher v. Omega Flex, Inc. , 628 Pa. 296, 415, 104 A.3d 328 (2014) ("[T]he Third Restatement does not offer an articulation of the law sufficient to persuade us to simply abandon the Second Restatement formulation of the strict products liability cause of action and 'move' to the Third Restatement. Unlike the Third Restatement, we believe that the Second Restatement already adopted, and properly calibrated, permits the plaintiffs to tailor their factual allegations and legal argumentation to the circumstances as they present themselves in the real-world crucible of litigation, rather than relying upon an evidence-bound standard of proof."). Other jurisdictions rejected the Restatement (Third) in the years following its final adoption by the American Law Institute in 1997. The varied standards nationally undermine the defendant's argument that Connecticut manufacturers would be at a competitive disadvantage if we declined to adopt the Restatement (Third). In addition to the lack of evidence that our Restatement (Second) standard is unworkable, we are not persuaded that the Restatement (Third) fully addresses all of the concerns that previously led this court to reject the draft Restatement (Third). The court in Potter did not address whether it would be appropriate to require plaintiffs to prove that the risk of harm was foreseeable. Nonetheless, such a requirement would be manifestly inconsistent with the court's concern in Potter about the burdens of expert testimony; Potter v. Chicago Pneumatic Tool Co. , supra, 241 Conn. at 217-18, 694 A.2d 1319 ; and its unequivocal determination that policy considerations favored adherence to strict liability. Id., at 221-22, 694 A.2d 1319. In some cases, plaintiffs would have to obtain expert testimony to prove that the risk was foreseeable in light of the state of scientific and technical knowledge at the time the product was manufactured. Moreover, the court's allegiance in Potter to § 402A reflects that, as between injured consumers who lack the ability to protect themselves physically and/or financially from the product's danger and a manufacturer who might not be able to foresee the risk of harm, Connecticut would strike the balance in favor of injured consumers. See id., at 209, 694 A.2d 1319 ; see also Wagner v. Clark Equipment Co. , 243 Conn. 168, 194, 700 A.2d 38 (1997) ("[s]trict products liability is based on a policy that assumes that certain losses are better distributed in our society not on the basis of fault, but rather with regard to the ability of the involved parties to absorb them" [internal quotation marks omitted] ). With respect to the reasonable alternative design requirement, the court in Potter expressed a concern that such a rule would preclude valid claims for products for which there is no alternative design. Potter v. Chicago Pneumatic Tool Co. , supra, 241 Conn. at 217-19, 694 A.2d 1319. Although the Restatement (Third) provides some exceptions to this requirement, they are exceedingly limited in their operation. Of particular concern is the narrow scope of manifestly unreasonable designs, which excuses this requirement only for products of negligible utility. This standard will not apply "in most instances even though the plaintiff alleges that the category of product sold by the defendant is so dangerous that it should not have been marketed at all." Restatement (Third), supra, § 2, comment (d), p. 20. Thus, proof of a reasonable alternative design would be required even if the design creates a risk of grave injury or death, as long as the product has some appreciable utility. Moreover, the Restatement (Third) would seem to immunize certain classes of products, like novel products for which there is no alternative design. See Tincher v. Omega Flex, Inc. , supra, 628 Pa. at 408, 104 A.3d 328 (declining to adopt Restatement [Third] in part because "[t]he approach suggests a priori categorical exemptions for some products-such as novel products with no alternative design-but not others," citing similar concern expressed by this court in Potter as support). The court's concerns in Potter are not ameliorated by the argument of the defendant and some of the amici that evidence of a reasonable alternative design is routinely presented. As the Pennsylvania Supreme Court recently explained: "[R]elying upon a confined universe of reported appellate cases to draw evidence-based (versus principle-based) rules is problematic as a general matter in our mature legal system. This is so because the small class of cases posing issues of sufficient consequence to result in reported, precedential decisions naturally tends to raise narrow unsettled issues and/or fact-sensitive applications, rather than to provide vehicles to illustrate those parts of the law that are so 'well accepted' as to reflect emergent general rules. Of course, these cases may, by analogy and distinction, illuminate general principles at issue; but, purporting to limit the general rule to the facts of those cases is anathema to the common law. Stated otherwise, simply because in cases of factually-marginal applications courts have found evidence relating to alternative designs to be particularly probative and persuasive, in our minds, does not necessarily support a thesis that adducing such evidence is dispositive of whether a plaintiff has carried his/her burden of proof.... And, if adopted as a broadly applicable legal regime, the Third Restatement would engender a self-fulfilling prophecy by providing for a future restatement, going forward, of only those cases that meet the evidentiary threshold the regime permits." (Citation omitted.) Id., at 413-14, 104 A.3d 328. Indeed, even the product liability defense bar has admitted that the controversy surrounding adoption of the Restatement (Third) has not abated. See M. McWilliams & M. Smith, " An Overview of the Legal Standard Regarding Product Liability Design Defect Claims and a Fifty State Survey on the Applicable Law in Each Jurisdiction," 82 Def. Couns. J. 80, 83 (2015) ("[a] survey of the fifty states reveals no consensus with respect to application of either the consumer expectations test or the risk-utility test"); A. Purvis & S. Bailey, " Alternative Approaches to Alternative Design: Understanding the Reasonable Alternative Design Requirement and Its Different Applications," 82 Def. Couns. J. 185, 191 (2015) ("[s]eventeen years after the [American Law Institute] adopted the Third Restatement of Torts on the topic of product liability, lawyers across the country continue to wrestle with the reasonable alternative design requirement, including with whether it is [or should be] a requirement at all"). We also observe that if we defer further consideration of the Restatement (Third) until such time as we have a case in which our current standards have demonstrated themselves to be unworkable or result in a manifest injustice, not only might we make a better informed decision, but the legislature might, in the interim, initiate its own reforms. The parties on each side of this issue have raised legitimate policy arguments in support of their respective positions. Public hearings on this issue and further study might yield the best result. We underscore that we do not conclude that this court cannot adopt the Restatement (Third), but simply that we should not do so at the present juncture. See Tincher v. Omega Flex, Inc. , supra, 628 Pa. at 338, 104 A.3d 328 ("This [c]ourt has grown more careful over the years when presented with invitations to issue broad-based pronouncements in areas where it is apparent that such pronouncements are better suited to the information-gathering and give-and-take balancing of competing concerns available in the legislative arena.... That being said, the fact is that, in this particular area of the law, the [c]ourt has played a major developmental role; and when an issue is properly joined in a case, we are of course duty-bound to resolution and explication of the matter."). Finally, although the defendant's arguments have not persuaded us that we should adopt the Restatement (Third) at this time, we have reexamined our standards in light of the concerns expressed by both parties to consider whether we could make refinements to our current strict liability standard to provide greater clarity. Having undertaken that inquiry, we make the following clarifications. First, we agree that the labels of ordinary consumer expectation test and modified consumer expectation test are at best unhelpful and at worst misleading. To distinguish the tests in a manner more reflective of their application, we will call them the consumer expectation test and the risk-utility test. These labels also more closely conform to those used by many other jurisdictions. Second, although our risk-utility test permits a plaintiff to elect whether to proffer evidence of a reasonable alternative design, it would be helpful to require the plaintiff to allege, and thereby put the defendant on notice, whether the product is claimed to be unreasonably dangerous because (a) a reasonable alternative design could have reduced or avoided the danger, or (b) the design of the product marketed is manifestly unreasonable in that the risk of harm from the product so clearly exceeds its utility that a reasonable, informed consumer would not purchase the product, or (c) both. Under either theory, the jury weighs the product's risks and utility. Only under (a), however, would the jury consider the availability of an alternative design and compare that design's risks and utility to that of the product sold. Under (b), the jury would focus exclusively on the risks and utility of the product sold. We underscore that (b) is not limited to products of marginal utility; it applies to any product in which its risks clearly exceed its utility. The greater the utility, the greater the risk must be to render the product unreasonably dangerous. By segregating these risk-utility theories, we may gain a clearer picture of what, if any, problems these theories present in practical application. Third, we recognize that, in most cases, plaintiffs will elect to proceed on the theory that the product is unreasonably dangerous because it lacked some feature that would have reduced or avoided the injury. This narrative is the one that is likely to be most persuasive to a jury, and not many products will be more dangerous than useful or fail to meet minimum safety expectations. Therefore, it would be helpful to clarify the plaintiff's burden of proof on this theory. In order to state a prima facie case that will permit the case to be submitted to the jury, the plaintiff must simply prove that the alternative design was feasible (technically and economically) and that the alternative would have reduced or avoided the harm. Although other factors may be relevant; see part II E of this opinion; a plaintiff's failure to present proof on other factors will not preclude the case from being submitted to the jury. We underscore that, as to economic feasibility, the plaintiff need not prove the precise cost of the alternative design. The plaintiff only need proffer sufficient evidence from which a jury could reasonably conclude that any increase in cost would not materially affect the desirability of the product in light of the benefit derived. Fourth, we conclude that a defect may be established under our consumer expectation test by proof of the product's noncompliance with safety statutes or regulations or a product seller's express representations. Such noncompliance would establish the product's failure to meet consumers' legitimate, commonly accepted, minimum safety expectations. Moreover, the utility of the product would not excuse such noncompliance. E In light of the clarifications in Izzarelli and this opinion, we summarize the standards that govern a product liability claim, as that term is defined under our act. See General Statutes § 52-572m(b). All such claims, whether alleging a design defect, manufacturing defect or failure to warn defect, are governed by the same elements that this court has applied since it adopted § 402A : "(1) the defendant was engaged in the business of selling the product; (2) the product was in a defective condition unreasonably dangerous to the consumer or user; (3) the defect caused the injury for which compensation was sought; (4) the defect existed at the time of the sale; and (5) the product was expected to and did reach the consumer without substantial change in condition." (Emphasis omitted; internal quotation marks omitted.) Izzarelli v. R.J. Reynolds Tobacco Co. , supra, 321 Conn. at 184-85, 136 A.3d 1232 ; Giglio v. Connecticut Light & Power Co. , supra, 180 Conn. at 234, 429 A.2d 486 ; accord Rossignol v. Danbury School of Aeronautics, Inc. , 154 Conn. 549, 562, 227 A.2d 418 (1967). The plaintiff's theory of recovery dictates the scope of a further instruction on the second element. For a strict liability claim alleging design defect, the plaintiff may prove this element under the risk-utility test or under the consumer expectation test. Under the risk-utility test, which will govern most cases, a product is in a defective condition unreasonably dangerous to the consumer or user if: (1) A reasonable alternative design was available that would have avoided or reduced the risk of harm and the absence of that alternative design renders the product unreasonably dangerous. In considering whether there is a reasonable alternative design, the jury must consider the feasibility of the alternative. Other relevant factors that a jury may consider include, but are not limited to, the ability of the alternative design to reduce the product's danger without unreasonably impairing its usefulness, longevity, maintenance, and esthetics, without unreasonably increasing cost, and without creating other equal or greater risks of danger; or (2) The product is a manifestly unreasonable design in that the risk of harm so clearly exceeds the product's utility that a reasonable consumer, informed of those risks and utility, would not purchase the product. The factors that a jury may consider include, but are not limited to, the magnitude and probability of the risk of harm, the instructions and warnings accompanying the product, the utility of the product in relation to the range of consumer choices among products, and the nature and strength of consumer expectations regarding the product, including expectations arising from product portrayal and marketing. Although the fact finder considers under either theory whether the risk of danger inherent in the challenged design outweighs the benefits of that design, these theories are not mutually exclusive. A plaintiff may consistently allege that a product had excessive preventable danger (reasonable alternative design) and that the product was too dangerous to market to the consumer irrespective of whether it could have been designed to be safer (manifestly unreasonable design). Under the consumer expectation test, our secondary test, a product is in a defective condition unreasonably dangerous to the consumer or user only if it is "dangerous to an extent beyond that which would be contemplated by the ordinary consumer who purchases it, with the ordinary knowledge common to the community as to its characteristics." 2 Restatement (Second), supra, § 402A, comment (i), p. 352. The product must fail to meet legitimate, commonly held, minimum safety expectations of that product when used in an intended or reasonably foreseeable manner. Those expectations may be informed by consumers' experience with the product, the seller's express representations, and product safety laws. III FIRST CERTIFIED QUESTION Having reaffirmed our allegiance to a strict liability standard under § 402A of the Restatement (Second), we turn to the first certified question, which asks: "Does [§] 402A of the Restatement (Second) of Torts (and [c]omment [i] to that provision) apply to a product liability claim for negligence under [the act]?" Bifolck v. Philip Morris , Inc. , supra, 2014 WL 585325, at *8. This question requires us to consider the element of § 402A that imposes liability only when a product is in a "defective condition unreasonably dangerous to the user or consumer"; 2 Restatement (Second), supra, § 402A (1), p. 347 ; and the definition in comment (i) of unreasonably dangerous as limited to products that are "dangerous to an extent beyond that which would be contemplated by the ordinary consumer who purchases it, with the ordinary knowledge common to the community as to its characteristics." Id., comment (i), p. 352. Both parties agree that, under the Restatement (Second) and our act, a product liability claim may be brought under theories of strict liability and/or negligence. See footnote 17 of this opinion (setting forth statutory definition of product liability claim). The crux of the dispute is whether a single, unitary definition applies to all such claims, no matter the theory of recovery. The defendant contends that the sole definition of unreasonably dangerous is a product that is "dangerous to an extent beyond that which would be contemplated by the ordinary consumer who purchases it ." 2 Restatement (Second), supra, § 402A, comment (i), p. 352. It argues that our case law and the act support a unified definition of product liability, which is consistent with the practice of most jurisdictions. It suggests that negligence allows the plaintiff to elect to prove an additional element of manufacturer fault to provide a more appealing narrative to the jury. The plaintiff clarified at oral argument before this court that, even under a theory of negligence, he effectively must prove that the product is in a defective condition unreasonably dangerous to the user. Nonetheless, he argues that the proof to establish this fact differs under negligence. He argues that common-law negligence requires proof that the manufacturer breached its duty by failing to exercise reasonable care under the circumstances, not by failing to meet consumers' expectations. He contends that to conclude otherwise would preclude valid claims for injuries sustained by unintended but foreseeable users, like children who should have been protected by safety features that the ordinary consumer would not expect or require. We agree with the defendant that no product liability action can succeed without proof of a defective condition unreasonably dangerous to the consumer or user. See Connecticut Civil Jury Instructions (4th Ed. 2012) § 3.10-1, available at http://www.jud.ct.gov/JI/Civil/Civil.pdf; 1 American Law of Products Liability (3d Ed. 2009) § 10:17, p. 37 ("[w]hether a claim of liability against a product manufacturer is based on negligence or on some other theory of liability, the manufacturer is liable only when the product is so defective as to render it 'unreasonably dangerous' "). Indeed, even before this court's adoption of § 402A, no action alleging injuries caused by the manufacture or design of a product based on negligence and/or warranty theories succeeded without evidence to this effect. See, e.g., Handler v. Remington Arms Co. , 144 Conn. 316, 321, 130 A.2d 793 (1957) (noting that plaintiffs had proved that ammunition cartridge was defective and had offered evidence "that the defendant, although knowing that the cartridge, if defective, would be an inherently dangerous article and a source of unreasonable risk of injury to those who might use it, permitted it to be available for future use without indicating by label or otherwise the danger to which the user would expose himself"); Jump v. Ensign-Bickford Co. , 117 Conn. 110, 118-19, 167 A. 90 (1933) (considering whether fuse for dynamite was defect of "imminently dangerous" character); Burkhardt v. Armour & Co. , 115 Conn. 249, 264-65, 161 A. 385 (1932) (considering seller's liability for product "in a dangerously defective condition"). Since this court adopted § 402A in 1965, and our legislature required all product liability claims to be brought as a statutory cause of action in 1979, our case law has reflected a consistent pattern of claims conforming to this element. Therefore, we agree that any product liability claim, no matter the type or theory, is governed by the same essential elements. See part II E of this opinion. Nonetheless, we disagree with the defendant that there is a single definition for unreasonably dangerous, as provided in comment (i) to § 402A. The parties did not have the benefit of our decision in Izzarelli when they submitted their briefs and provided oral argument on this issue. Indeed, it is evident from the record that the parties assumed that the consumer expectation test would control the plaintiff's strict liability claim. Our decision in Izzarelli , however, not only clarified that a different strict liability test would control the present case, but also negated an argument that a product is unreasonably dangerous only when it is dangerous to an extent beyond that contemplated by the ordinary consumer. The court concluded in Izzarelli that the plaintiff in that case could not proceed under the ordinary consumer expectation test because "[a] cigarette that exposes the user to carcinogens and the attendant risk of cancer cannot be said to fail to meet an ordinary consumer's legitimate, commonly accepted minimum safety expectations." Izzarelli v. R.J. Reynolds Tobacco Co. , supra, 321 Conn. at 203, 136 A.3d 1232. The court then explained why comment (i) to § 402A is not a per se bar to the plaintiff's recovery under the controlling test: "Comment (i) to § 402A serves a limited role under the modified consumer expectation test. Although the modified test asks the jury to weigh various factors through the ultimate lens of the consumer's expectations, as a functional and practical matter that weighing process supplants the definition in comment (i) of unreasonably dangerous . Cf. Wright v. Brooke Group Ltd., [supra, 652 N.W.2d at 169-70] (concluding that comment [i] to § 402A does not apply after court adopted risk-utility test). In other words, the factors that the court in Potter identified essentially provide the jury with information that a fully informed consumer would know before deciding whether to purchase the product. See Potter v. Chicago Pneumatic Tool Co., supra, 241 Conn. at 221, 694 A.2d 1319. When the consumer has specific product expectations that differ from those factors, those too may be factored into the weighing process. It could be that, in a given case, the consumer's expectations of the product would be the determinative factor. See Blue v. Environmental Engineering, Inc., [215 Ill.2d 78, 87, 293 Ill.Dec. 630, 828 N.E.2d 1128 (2005) ] ( [u]nder the risk-utility test, the open and obvious nature of the risk is just one factor to be considered within this range of considerations and it will only serve to bar the liability of the manufacturer where it outweighs all other factors to be considered in weighing the inherent risks against the utility of the product as manufactured); Delaney v. Deere & Co., [supra, 268 Kan. at 792-93, 999 P.2d 930] (rejecting open and obvious danger as precluding recovery and instead making that fact merely one of several informing consumer's expectations); Evans v. Lorillard Tobacco Co., [465 Mass. 411, 428, 990 N.E.2d 997 (2013) ] (noting that under risk-utility test, because reasonable consumer expectations are simply one of many factors that may be considered and not necessarily the determinative factor, the plaintiff was not obligated to prove that Newport cigarettes were more dangerous than consumers reasonably expected); Tomasino v. American Tobacco Co., [23 A.D.3d 546, 548-49, 807 N.Y.S.2d 603 (2005) ] (The mere fact that a risk presented by a product design is open and obvious, or generally known, and that the product thus satisfies expectations . may substantially influence or even be ultimately determinative on risk-utility balancing in judging whether the omission of a proposed alternative design renders the product not reasonably safe. It follows that, while disappointment of consumer expectations may not serve as an independent basis for allowing recovery under [the design defect theory], neither may conformance with consumer expectations serve as an independent basis for denying recovery. Such expectations may be relevant in both contexts, but in neither are they controlling .). "To allow the ordinary consumer's awareness of the product's potential danger to preclude recovery as a matter of law, however, would make Connecticut an outlier and defeat our intention in relegating the ordinary consumer expectation test to a more limited role. " (Emphasis added; footnote omitted; internal quotation marks omitted.) Izzarelli v. R.J. Reynolds Tobacco Co. , supra, 321 Conn. at 208-10, 136 A.3d 1232. In addition to various policy arguments, the court in Izzarelli pointed to other aspects of our law that would be in tension with a conclusion that an essential element of every product liability action is that the product's dangers exceed those known to the consumer. Most significantly, we reasoned that "[o]ur legislature's express rejection of comparative or contributory negligence as a bar to recovery in a strict liability action [under our act] would be in tension with a sweeping immunity based solely on the consumer's knowledge." Id., at 199, 136 A.3d 1232 ; see General Statutes § 52-572o (a) ("[i]n any claim under sections 52-240a, 52-240b, 52-572m to 52-572q, inclusive, or 52-577a, the comparative responsibility of, or attributed to, the claimant, shall not bar recovery but shall diminish the award of compensatory damages proportionately, according to the measure of responsibility attributed to the claimant"). Thus, in Izzarelli , we deemed our act to evidence a clear legislative intent not to preclude recovery due solely to the fact that the product's danger is open and obvious. Accordingly, our decision in Izzarelli makes clear that comment (i) to § 402A does not provide a unitary definition of unreasonably dangerous that governs all product liability claims. See Barker v. Lull Engineering Co. , supra, 20 Cal.3d at 427, 143 Cal.Rptr. 225, 573 P.2d 443 ("the term defect as utilized in the strict liability context is neither self-defining nor susceptible to a single definition applicable in all contexts"). For purposes of strict liability, a product may be unreasonably dangerous if it fails to meet consumers' minimum safety expectations or if its risks exceed its utility, because the consumer may know of the risk of danger but fail to fully appreciate that danger or know how safe the product could be made. When negligence is a viable theory of recovery, consumer expectations have never been an element of that theory. Under our common law, "[t]he essential elements of a cause of action in negligence are well established: duty [of care]; breach of that duty; causation; and actual injury.... A duty to use care may arise from a contract, from a statute, or from circumstances under which a reasonable person, knowing what he knew or should have known, would anticipate that harm of the general nature of that suffered was likely to result from his act or failure to act." (Citations omitted; internal quotation marks omitted.) Sturm v. Harb Development, LLC , 298 Conn. 124, 139-40, 2 A.3d 859 (2010). The Restatement (Second) applies these elements to product liability generally; see 2 Restatement (Second), supra, § 394 through 398 (negligence of product manufacturers); 2 Restatement (Second), supra, § 399 through 402 (negligence of sellers of products manufactured by third persons); and design defects specifically. See 2 Restatement (Second), supra, § 398, p. 336 ("[a] manufacturer of a chattel made under a plan or design which makes it dangerous for the uses for which it is manufactured is subject to liability to others whom he should expect to use the chattel or to be endangered by its probable use for physical harm caused by his failure to exercise reasonable care in the adoption of a safe plan or design"). These provisions all reflect that it is the defendant's actual or imputed knowledge of the danger, not the plaintiff's, that is an essential element of negligence, which in turn gives rise to the defendant's duty to exercise reasonable care to protect product users from that danger. Applying this reasoning to the present case, it is clear that although § 402A fairly reflects the broad contours of the elements of all product liability claims, consumer expectations as set forth in comment (i) do not apply to a product liability claim premised on negligence, when such a claim is viable. To the extent that the defendant argues that many jurisdictions apply a single standard for all product defect claims, that fact does not speak to whether they require all claims to be proved in relation to consumer expectations. The broad acceptance of the risk-utility test plainly indicates that they do not. Indeed, even some courts that apply a consumer expectation test have not applied comment (i) to a claim of negligence. See, e.g., Smith v. Central Mine Equipment Co. , 559 Fed.Appx. 679, 681 (10th Cir. 2014) (summary judgment granted in favor of defendant on strict liability claim because dangers of drill rig were obvious but allowing negligence claim based on defective design for failure to install safety device to be submitted to jury); Tabieros v. Clark Equipment Co. , supra, 85 Hawai'i at 369-70, 944 P.2d 1279 ("The consumer expectation test for determining the defectiveness of products the use of which involve open and obvious dangers can result in finding products to be not defective that could easily have been designed safer without great expense or effect on the benefits or functions to be served by the product.... [I]n connection with a claim of negligent design, the obviousness of [the] peril is [merely] relevant to the manufacturer's defenses [e.g., contributory negligence], and not to the issue of duty, and, therefore, does not, in itself, immunize the manufacturer from potential liability." [Citations omitted; internal quotation marks omitted.] ); Palmer v. Massey-Ferguson, Inc. , 3 Wash.App. 508, 514-15, 476 P.2d 713 (1970) ("We feel constrained to comment on the proper scope of instructions setting out negligence in a products liability setting, since that theory is open as a nonexclusive alternative to the Restatement [Second] of Torts § 402A rule of strict liability. Negligence in products liability cases is unlike the warranty implied in law theory, which was swallowed up and renamed in the adoption of § 402A.... A beginning point for analysis of the requisites demanded for recovery in a negligence theory is Restatement [Second] of Torts § 395...." [Citations omitted.] ); Greiten v. LaDow , 70 Wis.2d 589, 603, 235 N.W.2d 677 (1975) ("Where a plaintiff proves negligence-in this case, the lack of ordinary care in the design of a product-there is no doubt that there may be recovery in the event the defective design results in an unreasonably dangerous product, but there may be recovery for the negligent design of a product even though it is not unreasonably dangerous in the [§ 402A ] sense. All that it is necessary to prove is that the product is designed with a lack of ordinary care and that lack of care resulted in injury." [Footnote omitted.] ). Insofar as courts have concluded that the failure to prove that the product is in a defective condition unreasonably dangerous to the consumer would equally doom strict liability and negligence, we agree. We simply conclude that consumers' awareness of the danger will not preclude establishing such a condition unless it is an element of the applicable common-law theory. We therefore answer the first certified question "no." IV PUNITIVE DAMAGES Lastly, we turn to the second certified question, which asks: "Does Connecticut's common-law rule of punitive damages, as articulated in Waterbury Petroleum Products, Inc. v. Canaan Oil & Fuel Co. , [supra, 193 Conn. at 208, 477 A.2d 988], apply to an award of statutory punitive damages pursuant to . § 52-240b, the punitive damages provision of the [act]?" Bifolck v. Philip Morris, Inc. , supra, 2014 WL 585325, at *8. This question requires us to consider whether punitive damages under the act are limited to litigation expenses less costs. We conclude that they are not. In considering this issue, we apply general rules of statutory construction; see General Statutes § 1-2z ; Martel v. Metropolitan District Commission , 275 Conn. 38, 57, 881 A.2d 194 (2005) ; subject to a significant qualification. "While the legislature's authority to abrogate the common law is undeniable, we will not lightly impute such an intent to the legislature.... Thus, [w]hen a statute is in derogation of common law . it should receive a strict construction and is not to be extended, modified, repealed or enlarged in its scope by the mechanics of [statutory] construction.... In determining whether or not a statute abrogates or modifies a [common-law] rule . the operation of a statute in derogation of the common law is to be limited to matters clearly brought within its scope." (Internal quotation marks omitted.) Chadha v. Charlotte Hungerford Hospital , 272 Conn. 776, 788-89, 865 A.2d 1163 (2005). We begin therefore with the common-law rule and then turn to the statute. In Waterbury Petroleum Products, Inc. v. Canaan Oil & Fuel Co. , supra, 193 Conn. at 235, 477 A.2d 988, this court declined to reconsider limits that it had placed on the recovery of punitive damages. In doing so, the court explained: "Long ago, in Hanna v. Sweeney , 78 Conn. 492, 62 A. 785 (1906), this court set forth the rule which we have since followed regarding the appropriate measure of [common-law] punitive damages. In limiting our measure to the expense of litigation less taxable costs, the court noted that under the typical [common-law] rule the jury was permitted to exercise a virtually unchecked discretion to award damages not only to make the injured person whole, but to punish the wrongdoer.... The court further recognized that the doctrine of punitive damages which permits recovery beyond compensation prevailed in most jurisdictions, but, nonetheless, it refused to adopt such a rule characterizing it as a hybrid between a display of ethical indignation and the imposition of a criminal fine.... Thus, such a rule was found to be at a variance with the generally accepted rule of compensation in civil cases.... Since Hanna , we have consistently adhered to this view.... "The subject of punitive damages has been one of great debate throughout the course of American jurisprudence.... Typically, those who disfavor punitive damage awards in civil cases point to the prospect that such damages are frequently the result of the caprice and prejudice of jurors, that such damages may be assessed in amounts which are unpredictable and bear no relation to the harmful act, and that the prospect of such damages assessed in such a manner may have a chilling effect on desirable conduct.... "In permitting awards of punitive damages, but limiting such damages as we do, our rule strikes a balance-it provides for the payment of a victim's costs of litigation, which would be otherwise unavailable to him, while establishing a clear reference to guide the jury fairly in arriving at the amount of the award. Further, although our rule is a limited one, when viewed in light of the ever rising costs of litigation, our rule does in effect provide for some element of punishment and deterrence in addition to the compensation of the victim. Thus, in limiting punitive damage awards to the costs of litigation less taxable costs, our rule fulfills the salutary purpose of fully compensating a victim for the harm inflicted on him while avoiding the potential for injustice which may result from the exercise of unfettered discretion by a jury." (Citations omitted; footnotes omitted; internal quotation marks omitted.) Waterbury Petroleum Products, Inc. v. Canaan Oil & Fuel Co., supra, 193 Conn. at 236-38, 477 A.2d 988. With the common law in mind, we turn to the punitive damages provision in the act. Section 52-240b provides: "Punitive damages may be awarded if the claimant proves that the harm suffered was the result of the product seller's reckless disregard for the safety of product users, consumers or others who were injured by the product. If the trier of fact determines that punitive damages should be awarded, the court shall determine the amount of such damages not to exceed an amount equal to twice the damages awarded to the plaintiff." Although the statute is consistent with common-law punitive damages in one respect, it is inconsistent in many more. On the one hand, the statutory punitive damages are awarded on the basis of the same conduct that would justify an award of common-law punitive damages-reckless disregard of another's rights. See Vandersluis v. Weil , 176 Conn. 353, 358, 407 A.2d 982 (1978) ("[common-law] [p]unitive damages are awarded when the evidence shows a reckless indifference to the rights of others or an intentional and wanton violation of those rights"). On the other hand, the statutory damages are measured in relation to a multiple of compensatory damages, not litigation expenses. See Hylton v. Gunter , 313 Conn. 472, 486 n.14, 97 A.3d 970 (2014) (distinguishing other categories of statutory punitive damages, such as statutes limiting such damages to multiples of compensatory damages, from common-law punitive damages); MedValUSA Health Programs, Inc. v. MemberWorks, Inc. , 273 Conn. 634, 672 and n.3, 872 A.2d 423 (2005) (Zarella, J. , dissenting) (drawing same distinction and citing General Statutes § 35-53 [b] and 52-240b as examples), cert. denied sub nom. Vertrue, Inc. v. MedValUSA Health Programs, Inc., 546 U.S. 960, 126 S.Ct. 479, 163 L.Ed.2d 363 (2005). In addition, the statute vests the court with exclusive authority to determine the amount of damages, whereas the trier of fact traditionally had determined the amount of common-law punitive damages. See Matthiessen v. Vanech , 266 Conn. 822, 826, 836 A.2d 394 (2003) ; Kenny v. Civil Service Commission , 197 Conn. 270, 277, 496 A.2d 956 (1985) ; Gionfriddo v. Avis Rent A Car System, Inc. , 192 Conn. 280, 295, 472 A.2d 306 (1984) ; Vogel v. Sylvester , 148 Conn. 666, 673, 174 A.2d 122 (1961) ; Hanna v. Sweeney , supra, 78 Conn. at 493, 62 A. 785 ; Perkins v. Colonial Cemeteries, Inc. , 53 Conn.App. 646, 647, 734 A.2d 1010 (1999) ; see also Proto v. Bridgeport Herald Corp. , 136 Conn. 557, 571, 72 A.2d 820 (1950). Indeed, it was precisely because juries assessed the amount of punitive damages that this court was motivated to adopt the common-law rule, limiting the exercise of the jury's discretion by tying such damages to litigation expenses. See Hanna v. Sweeney , supra, 78 Conn. at 493, 62 A. 785. Notably, by vesting the court with authority to determine the amount of punitive damages and by limiting the amount of those damages in the act, the legislature provided an alternative method of reining in excessive punitive damages, the very policy concern that prompted this court to limit common-law punitive damages. Cf. Ulbrich v. Groth , 310 Conn. 375, 451, 78 A.3d 76 (2013) ("[i]t is reasonable to conclude that the legislature provided that a claim for punitive damages under [the Connecticut Unfair Trade Practices Act (CUTPA), General Statutes § 42-110a et seq. ] should be submitted to the trial court, and not the jury, because it believed that the court would be aware of the range of punitive damages that have been awarded for similar CUTPA violations, that it would be less likely to be swayed by appeals to emotion and prejudice, and, therefore, it would be less likely to render an award that was an outlier"). There are other factors that inform our conclusion. If we were to construe the act to equate the statutory punitive damages to litigation expenses, in some cases the statute would have no effect or frustrate the purpose of the common-law rule. In any case in which litigation expenses are less than two times the damages, the statute would have no impact whatsoever, as the common-law recovery would already have been available. In any case in which the plaintiff's compensatory damages are relatively low in comparison to his or her litigation costs, the cap limiting punitive damages to twice compensatory damages would frustrate the purpose of common-law damages-"fully compensating a victim for the harm inflicted on him." Waterbury Petroleum Products, Inc. v. Canaan Oil & Fuel Co. , supra, 193 Conn. at 238, 477 A.2d 988. This disparity would not be uncommon given the statutory reduction of compensatory damages in relation to comparative responsibility. See General Statutes § 52-572o . Attorneys may be disinclined to take complex design defect cases when the plaintiff's injuries are modest, which in turn would remove an incentive for manufacturers to make safety improvements. Another factor that has influenced this court to distinguish an award of statutory punitive damages from common-law punitive damages is when the statutory scheme also authorizes an award of attorney's fees. See Ulbrich v. Groth , supra, 310 Conn. at 450-51, 78 A.3d 76 ; Smith v. Snyder , 267 Conn. 456, 469-71, 839 A.2d 589 (2004). Attorney's fees also may be awarded under the act, although not under the same circumstances as common-law punitive damages. Pursuant to § 52-240a, "[i]f the court determines that the claim or defense is frivolous, the court may award reasonable attorney's fees to the prevailing party in a products liability action." When an award of attorney's fees pursuant to § 52-240a and an award of punitive damages pursuant to § 52-240b are both applicable, the combined effect of such awards would be substantially similar to another statute that this court has interpreted to have punitive damages not limited by the common-law rule. Smith v. Snyder , supra, 267 Conn. at 469-70, 839 A.2d 589 (concluding that punitive damages awarded under § 35-53 are not common-law punitive damages where statute provided: "if the court finds wilful and malicious misappropriation, the court may award punitive damages in an amount not exceeding twice any award made under subsection [a] and may award reasonable attorney's fees to the prevailing party" [internal quotation marks omitted] ). If punitive damages in § 52-240b were interpreted to mean common-law punitive damages, then both § 52-240a and 52-240b would provide for attorney's fees, but under different conditions. See Berry v. Loiseau , 223 Conn. 786, 832, 614 A.2d 414 (1992) ("[l]itigation expenses may include not only reasonable attorney's fees, but also any other nontaxable disbursements reasonably necessary to prosecuting the action"). Several concerns arise from this construction. First, attorney's fees under § 52-240a are not capped, as are punitive damages in § 52-240b. It is difficult to fathom why the legislature would have deemed the defendant's assertion of a frivolous defense to merit a harsher penalty than the defendant's injury causing reckless disregard for others' safety. Second, in cases in which a prevailing plaintiff has established both reckless disregard of safety and frivolous litigation conduct, the defendant would not be penalized for one of those wrongful acts. Which wrongful act was punished would depend on which statute provided greater recovery. In either case, one statute's purpose would not be fulfilled. Thus, unsurprisingly, in the only case in which a prevailing plaintiff sought to recover under both § 52-240a and 52-240b, the trial court did not interpret the latter as subject to the common-law rule. See Roome v. Shop-Rite Supermarkets, Inc. , Docket No. CV-02-0281250-S, 2006 WL 2556572, *4-5 (Conn. Super. August 16, 2006) ; see also R.I. Pools, Inc. v. Paramount Concrete, Inc. , 149 Conn.App. at 839, 874-75 and nn.18 and 19, 89 A.3d 993 (noting that neither party had taken issue with trial court's determination that punitive damages under § 52-240b follow common-law rule and further noting that trial court had not considered award of attorney's fees under § 52-240a ), cert. denied, 312 Conn. 920, 94 A.3d 1200 (2014). In sum, the weight of these inconsistencies supports a conclusion that punitive damages under § 52-240b are not measured by the common-law rule. See Kyrtatas v. Stop & Shop, Inc. , 205 Conn. 694, 699-700, 535 A.2d 357 (1988) (because common-law doctrine of indemnification is inconsistent with provisions of act concerning comparative responsibility, award of damages, and contribution, act abrogates common-law doctrine). To the extent that the defendant contends that construing the statute other than by the common-law rule would frustrate the overarching purpose of the act, which is to limit insurance costs for product liability actions, the legislative history of the act does not support the defendant's construction. The punitive damages provision was added to the proposed bill after consumer interests spoke in opposition to the original bill, which was far less favorable to the consumer than the final bill in various respects. See Committee Bill No. 5870, 1979 Sess.; Substitute House Bill No. 5870, 1979 Sess.; Conn. Joint Standing Committee Hearings, Judiciary, Pt. 2, 1979 Sess., pp. 591-92. The proposed punitive damages provision manifestly intended the broader measure of such damages, not litigation expenses. The proposed provision was taken almost verbatim from the Draft Uniform Product Liability Law published by the United States Department of Commerce. 44 Fed. Reg. 2996 (proposed January 12, 1979) ; see Elliot v. Sears, Roebuck & Co. , 229 Conn. 500, 505-506, 642 A.2d 709 (1994) ; compare 44 Fed. Reg. 3002, § 120 (January 12, 1979), with Substitute House Bill No. 5870, § 8; see also footnote 26 of this opinion. The model provision was based on a newly enacted Minnesota statute that, like most other jurisdictions, does not fix punitive damages in relation to litigation expenses. See 44 Fed. Reg. 3019, § 120, analysis (January 12, 1979), citing Minn. Stat. Ann. § 549.21(3) (West 1978); see also MedValUSA Health Programs, Inc. v. MemberWorks, Inc. , supra, 273 Conn. at 672, 872 A.2d 423 (Zarella, J. , dissenting) ("for nearly a century, we have remained steadfast in our commitment to a common-law measure of punitive damages that is indisputably one of the most conservative in the nation"). The proposed provision provided no cap on punitive damages and provided instead various factors that the court should consider in fixing the proper award. See Substitute House Bill 5870, § 8; see also footnote 26 of this opinion. None of these factors related to litigation costs, but instead related to the wrongfulness of the defendant's conduct and the financial impact of that award and like awards on the defendant. Thereafter, an amendment was adopted that substituted the cap on punitive damages in lieu of the unbridled discretion applying the various factors. See Substitute House Bill No. 5870, as amended by House Amendment A; 22 S. Proc., Pt. 14, 1979 Sess., p. 4626, remarks of Senator Salvatore C. DePiano (sponsor of act explaining that amendment would "place a limitation on the amount of punitive damages that would be awarded"). There is nothing to indicate that, in doing so, the legislature intended to change the meaning of "punitive damages" as used in the proposed bill. No legislator referred to litigation expenses. In fact, one of the bill's sponsors recognized that, despite the amendment, the bill provided a benefit that had not previously been available to plaintiffs. See 22 H.R. Proc., Pt. 21, 1979 Sess., p. 7285, remarks of Representative Richard D. Tulisano (explaining that, in amendment, "we have put a cap on potential punitive damages that were in there which are a benefit to individuals"). As common-law punitive damages already were available for a tort committed in reckless disregard of another's rights, the statute must have provided some recovery that was not previously available. We are mindful that the amendment eliminated the language providing that punitive damages could be awarded "in addition to attorney's fees ." House Bill 5870, House Amendment A. There are numerous reasons, however, why that phrase may have been removed-it was not in the model law, it was superfluous because of the provision expressly providing for attorney's fees, or it might suggest that attorney's fees and punitive damages should be awarded on the same basis. We are not persuaded that the inclusion and then removal of this phrase is persuasive evidence either way. Therefore, we conclude that the legislative history lends no support to the defendant's construction and instead supports what the language of the statute strongly indicates-that statutory punitive damages are not measured by the common-law rule. We answer the first certified question "No. We answer the second certified question "No." No costs shall be taxed in this court to either party. In this opinion ROGERS, C.J., and EVELEIGH and ROBINSON, Js., concurred. ZARELLA, J., with whom ESPINOSA, J., joins, concurring. I agree with the majority's answers to the two certified questions from the United States District Court for the District of Connecticut, but, in light of my conclusion in my concurring opinion in Izzarelli v. R.J. Reynolds Tobacco Co. , 321 Conn. 172, 211, 136 A.3d 1232 (2016) (Zarella, J. , concurring), I rely on a much different analysis in answering the first question than does the majority. I The first certified question asks whether "[§] 402A of the Restatement (Second) of Torts (and [c]omment [i] to that provision) apply to a product liability claim for [negligent design] under [Connecticut's Product Liability Act (act), General Statutes § 52-572m et seq. ]?" Bifolck v. Philip Morris, Inc. , United States District Court, Docket No. 3:06CV1768 (SRU), 2014 WL 585325 (D. Conn. February 14, 2014). The plaintiff in the present case, Vincent Bifolck, individually and as executor of the estate of Jeanette D. Bifolck, brought a product liability action against the defendant, Philip Morris, Inc., in federal court, alleging that the defendant's cigarettes were defectively designed and that this design defect caused the plaintiff's harm. The plaintiff seeks to prove his case using a negligence theory of liability. The District Court has asked us to clarify the proper standard for determining defectiveness that should apply to the plaintiff's claim. The parties agree that, to succeed on his claim, the plaintiff must prove that the defendant's cigarette design was "unreasonably dangerous," but they disagree about the standard for determining whether a product is unreasonably dangerous in a negligence action. The defendant argues that the "ordinary consumer expectations test" in comment (i) to § 402A of the Restatement (Second), and its "good tobacco" exception, should be used to determine whether a product is unreasonably dangerous in the context of a negligence based claim and that this test precludes a finding of liability in the present case. The plaintiff disagrees that § 402A of the Restatement (Second), which is a strict liability test, should apply to his negligence claim. Like the majority, I also conclude that § 402A of the Restatement (Second) does not apply to the plaintiff's claim, but I disagree with the majority's basis for this conclusion in light of my concurring opinion in Izzarelli . In that opinion, I explained that I would adopt the approach used for design defect cases in § 1, 2 and 4 of the Restatement (Third) of Torts, Products Liability. Izzarelli v. R.J. Reynolds Tobacco Co. , supra, 321 Conn. at 241-42, 136 A.3d 1232 (Zarella , J. , concurring). The Restatement (Third) eliminates reliance on § 402A's consumer expectations standards and, instead, adopts a risk-utility test as the proper liability standard for all design defect claims. Restatement (Third), Torts, Products Liability § 2, comment (n), pp. 35-36 (1998). As I explained in Izzarelli , the Restatement (Third) does not recognize a distinction between claims based on negligence or strict liability; see id., p. 36; a position that is consistent with the purposes of the act, which was intended to help simplify product liability causes of action. See Izzarelli v. R.J. Reynolds Tobacco Co. , supra, 321 Conn. at 239-41, 136 A.3d 1232 (Zarella , J. , concurring). The Restatement (Third) instead defines its design defect test "functionally," based on the unique considerations involved in design defect claims. (Internal quotation marks omitted.) Id., at 231, 136 A.3d 1232 (Zarella , J. , concurring), quoting Restatement (Third), supra, § 2, comment (n), p. 35. Unlike the approach of the Restatement (Second), the Restatement (Third) acknowledges that design defect claims present different considerations than other types of product defect claims, like those involving manufacturing defects and, therefore, require a different test. See Restatement (Third), supra, § 2, comment (a), p. 15; id., comment (n), p. 35. To address the fundamental and unique question presented in design defect cases-whether the manufacturer's design was reasonably safe-the Restatement (Third) adopts a risk-utility test, which is essentially a negligence style reasonableness balancing test that allows a jury to consider the reasonableness of the manufacturer's design choice in light of available alternatives. Id., comment (d), pp. 19-20; id., comment (f), pp. 23-24; id., comment (n), pp. 35-36; see also Izzarelli v. R.J. Reynolds Tobacco Co. , supra, at 222-23, 231-37, 136 A.3d 1232 (Zarella , J. , concurring). The Restatement (Third) recognizes that the risk-utility analysis is functionally equivalent to the analysis applicable to a negligence claim-each asks whether the manufacturer's design choice was reasonable in light of available alternatives or the risks presented by the product design. Consequently, it is unnecessary, under the Restatement (Third), to send both theories of liability to a jury; rather, the Restatement (Third) adopts the broader risk-utility test as the appropriate standard for design defect claims. See Izzarelli v. R.J. Reynolds Tobacco Co. , supra, at 235-36, 136 A.3d 1232 (Zarella , J. , concurring) (noting that Restatement [Third] standard avoids traditional trappings associated with negligence theory of recovery by eliminating requirements that plaintiff prove duty of care or that manufacturer was careless in choosing product design). In answering the first certified question, the majority fosters unnecessary confusion with respect to the continued viability of a negligence theory of recovery for claims alleging a design defect at the time of sale. In addressing the certified question, the majority acknowledges authorities concluding that instructing a jury on both a risk-utility and a negligence theory of recovery might result in inconsistent verdicts, but the majority declines to decide whether negligence should survive as an independent theory of recovery in this jurisdiction. See footnote 23 of the majority opinion. In my view, this leaves unnecessary uncertainty for this case and for future cases in which parties may intend to file design defect claims based on a negligence theory. Rather than leave this uncertainty in our law, I would make clear in answering the first certified question that, for the reasons stated in my concurring opinion in Izzarelli , the plaintiff's design defect claims are not governed by comment (i) to § 402A of the Restatement (Second) but by the risk-utility test set forth in the Restatement (Third). See Izzarelli v. R.J. Reynolds Tobacco Co. , supra, 321 Conn. at 231-39, 136 A.3d 1232 (Zarella , J. , concurring). Applying the Restatement (Third) in the present case, I conclude that § 402A of the Restatement (Second) and its ordinary consumer expectations test should no longer apply to claims involving design defects existing at the time of sale, and, thus, § 402A does not control the plaintiff's claim in the present case. Because the Restatement (Third) no longer recognizes a stand-alone negligence theory of recovery for design defect claims, I would further conclude that the plaintiff must proceed under the risk-utility test. See Restatement (Third), supra, § 2, comment (n), pp. 35-36; see also Izzarelli v. R.J. Reynolds Tobacco Co. , supra, 321 Conn. at 231-37, 136 A.3d 1232 (Zarella , J. , concurring). Consequently, I would answer the first certified question in the negative, as the majority does, but for markedly different reasons. II With respect to the second certified question, regarding the measure of punitive damages under General Statutes § 52-240b, I agree with the majority's answer and generally agree with its analysis. I write separately to emphasize that I find the answer to this question to be an extremely close call. As the defendant argues, there is a strong presumption against construing a statute to override the common law. See, e.g., Ames v. Commissioner of Motor Vehicles , 267 Conn. 524, 532, 839 A.2d 1250 (2004) ; Lynn v. Haybuster Mfg., Inc. , 226 Conn. 282, 290, 627 A.2d 1288 (1993). This presumption is especially strong when the common-law principle at issue is our well established, 200 year old method for calculating punitive damage awards, which limits such awards to attorney's fees less taxable costs. When considering the effect of a statute on a common-law principle, we must attempt to harmonize our construction of the statute with the common law, to the extent reasonably possible, unless the statutory language shows a clear intention to displace the common law. See, e.g., Ames v. Commissioner of Motor Vehicles , supra, at 532, 839 A.2d 1250 (noting that our construction of statutes must avoid "any innovation [on] the common law [that a statute] does not fairly express" [internal quotation marks omitted] ). In the present case, I am persuaded that the legislature intended to adopt an approach that is different from the common law with respect to punitive damages calculations, principally in light of its decision to include a separate provision in the act providing for an award of attorney's fees. See General Statutes § 52-240a. I share the majority's concerns that arise from construing § 52-240a and 52-240b as both allowing awards of attorney's fees but under different conditions. As the majority explains, under such a construction, if a prevailing plaintiff established both reckless disregard of the safety of product users, consumers, and others who are injured by a product, and that a defense raised was frivolous, limiting the plaintiff's award under both statutes to his attorney's fees effectively compensates the plaintiff for only one of the defendant's wrongful actions, which would appear to frustrate the purpose of these statutes. I therefore am persuaded that § 52-240b, considered together with other provisions of the act, fairly expresses an intention to depart from the common-law rule regarding the calculation of punitive damages. III In conclusion, I agree with the majority that § 402A of the Restatement (Second) does not apply to the plaintiff's claim, and, therefore, I would answer the first certified question in the negative. I would also make clear, however, that the proper standard governing the plaintiff's claim is the risk-utility standard set forth in § 1 and 2 of the Restatement (Third). With respect to the second certified question, I concur in the majority's reasoning and answer. VERTEFEUILLE, J., concurring and dissenting. I agree with the majority opinion insofar as it concludes that § 402A of the Restatement (Second) of Torts applies to a product liability claim for negligence under Connecticut's Product Liability Act (act), General Statutes § 52-572m et seq. I disagree, however, with the majority's conclusion in part IV of its opinion that our common-law rule of punitive damages does not apply to an award of statutory punitive damages pursuant to General Statutes § 52-240b. Accordingly, I respectfully dissent from that portion of the majority opinion. This court has repeatedly held that "[i]nterpreting a statute to impair an existing interest or to change radically existing law is appropriate only if the language of the legislature plainly and unambiguously reflect such an intent. [W]hen a statute is in derogation of common law or creates a liability where formerly none existed, it should receive a strict construction and is not to be extended, modified, repealed or enlarged in its scope by the mechanics of [statutory] construction.... In determining whether or not 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." (Citation omitted; internal quotation marks omitted.) Vitanza v. Upjohn Co. , 257 Conn. 365, 381, 778 A.2d 829 (2001). "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. The rule that statutes in derogation of the common law are strictly construed can be seen to serve the same policy of continuity and stability in the legal system as the doctrine of stare decisis in relation to case law." (Internal quotation marks omitted.) Id., at 381-82, 778 A.2d 829 ; Alvarez v. New Haven Register, Inc. , 249 Conn. 709, 715, 735 A.2d 306 (1999) ; see also Elliot v. Sears, Roebuck & Co. , 229 Conn. 500, 515, 642 A.2d 709 (1994) ("[w]e will not interpret a statute to have the effect of altering prior statutory or common law unless the language of the statute clearly expresses an intent to have such an effect"); Lynn v. Haybuster Mfg., Inc. , 226 Conn. 282, 289-90, 627 A.2d 1288 (1993) (statute in derogation of common law or creating liability where none existed is strictly construed and not to be extended, modified or enlarged in scope; elimination of common-law right by statute only if legislative intent is clearly and plainly expressed). We previously have applied these principles to the act. See Vitanza v. Upjohn Co. , supra, 257 Conn. at 381, 778 A.2d 829 ; Elliot v. Sears, Roebuck & Co. , supra, at 515, 642 A.2d 709 ; Lynn v. Haybuster Mfg., Inc. , supra, at 289-90, 627 A.2d 1288. Under the common law of this state, "[i]n order to award punitive or exemplary damages, [the] evidence must reveal a reckless indifference to the rights of others or an intentional and wanton violation of those rights." (Internal quotation marks omitted.) Votto v. American Car Rental, Inc. , 273 Conn. 478, 486, 871 A.2d 981 (2005). Punitive damages in common-law tort actions are limited to litigation expenses, such as attorney's fees, less taxable costs. Hylton v. Gunter , 313 Conn. 472, 484, 97 A.3d 970 (2014). This is because, under the long-standing law of this state, "[t]he [purpose] of awarding punitive damages is not to punish the defendant for his offense, but to compensate the plaintiff for his injuries." (Internal quotation marks omitted.) Whitaker v. Taylor , 99 Conn.App. 719, 730, 916 A.2d 834 (2007) ; see also Harty v. Cantor Fitzgerald & Co. , 275 Conn. 72, 97, 881 A.2d 139 (2005) ("common-law punitive damages . are intended to do no more than make the litigant whole"); Waterbury Petroleum Products, Inc. v. Canaan Oil & Fuel Co. , 193 Conn. 208, 236, 477 A.2d 988 (1984) (discussing long history of this state's rule limiting punitive damages to litigation expenses). Section 52-240b provides: "Punitive damages may be awarded if the claimant proves that the harm suffered was the result of the product seller's reckless disregard for the safety of product users, consumers or others who were injured by the product. If the trier of fact determines that punitive damages should be awarded, the court shall determine the amount of such damages not to exceed an amount equal to twice the damages awarded to the plaintiff." Thus, the plain language of § 52-240b merely provides that punitive damages cannot exceed twice the compensatory damages award. The statute does not plainly and unambiguously abrogate the common-law rule that punitive damages are limited to litigation expenses. Indeed, the statute is silent as to the meaning of "punitive damages." Accordingly, I believe that we must interpret § 52-240b as incorporating the common-law limitation on punitive damages. Elliot v. Sears, Roebuck & Co. , supra, 229 Conn. at 515, 642 A.2d 709 ("[w]e will not interpret a statute to have the effect of altering prior statutory or common law unless the language of the statute clearly expresses an intent to have such an effect"); see also Izzarelli v. R.J. Reynolds Tobacco Co. , 767 F.Supp.2d 324, 329 (D. Conn. 2010) (§ 52-240b incorporates "the traditional method of calculating a punitive damages award"). Moreover, in statutes where the legislature has wanted to make it clear that punitive damages may be awarded over and above litigation expenses, the legislature has expressly provided that punitive damages may be awarded "in addition to" attorney's fees, or has used language to that effect. See General Statutes § 42-110g (d) ("[i]n 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 [including punitive damages], costs and reasonable attorneys' fees" [emphasis added] ); Ulbrich v. Groth , 310 Conn. 375, 449, 78 A.3d 76 (2013) (punitive damages authorized by § 42-110g [d] are not subject to common-law limitation because statute provides that attorney's fees may be awarded "in addition to" punitive damages [emphasis omitted] ); see also General Statutes § 35-53 (b) ("the court may award punitive damages in an amount not exceeding twice any award made under subsection [a] and may award reasonable attorney's fees to the prevailing party" [emphasis added] ); Smith v. Snyder , 267 Conn. 456, 469-70, 839 A.2d 589 (2004) (punitive fees authorized by § 35-53 [b] are not subject to common-law limitation). Because these statutes contain language that § 52-240b does not contain, their relationship to § 52-420b does not render the meaning of the term "punitive damages" as used in that statute plain and unambiguous. Accordingly, we may look to the legislative history of the act to determine the scope and meaning of that term. See General Statutes § 1-2z. This legislative history supports the conclusion that § 52-240b was not intended to abrogate the common-law rule of punitive damages. The legislature considered a bill that specifically provided that, if the claimant proved that the harm suffered was the result of reckless disregard for the safety of product users, punitive damages could be awarded "in addition to attorney's fees . " (Emphasis added.) Substitute House Bill No. 5870, 1979 Sess., § 8 (a). The emphasized language was deleted before the bill was enacted. See Substitute House Bill No. 5870, as amended by House Amendment A, § 8 (a). It is reasonable to conclude that this was done because the legislature was aware that, under the common law of this state, punitive damages consist of attorney's fees. Alvarez v. New Haven Register, Inc. , supra, 249 Conn. at 722, 735 A.2d 306 ("[t]he legislature is presumed to be aware of this court's decisions and, therefore, the common-law limitations on the [defendant's] liability already in place"). Thus, the most reasonable explanation for the intentional deletion of such language from § 52-240b is that the legislature intended that, for purposes of the act, the existing common-law limitation would apply to punitive damages. See Izzarelli v. R.J. Reynolds Tobacco Co. , supra, 767 F.Supp.2d at 328 ("[b]y rejecting proposed legislation that would have authorized punitive damages 'in addition to attorney's fees,' the legislature declined to expand punitive damages beyond the common-law measure of litigation less taxable costs"). In addition, the legislature considered and rejected a provision that would have required the court to consider multiple factors in determining the amount of punitive damages; compare Substitute House Bill No. 5870, § 8 (b) and Public Acts 1979, No. 79-483, § 8; and, instead, adopted the provision capping punitive damages at twice the amount of the compensatory award. If the legislature had intended to authorize an award of punitive damages over and above litigation expenses, I can perceive no reason why it would have deliberately declined to provide the court with objective criteria by which it could determine the amount of such an award. See Izzarelli v. R.J. Reynolds Tobacco Co. , supra, 767 F.Supp.2d at 329 ("[t]he legislature's outright rejection of the [multifactor] method of calculation demonstrates its intent to preserve the common-law formulation"). Finally, the legislative history of the act shows that, far from being concerned with punishing defendants in product liability actions by authorizing damage awards that exceed the plaintiffs' actual losses, the legislature was primarily concerned with "the rising price of product liability insurance" that had "hindered the ability of companies to acquire coverage and to assume the risk necessary for innovation without increasing the costs of their products." Connecticut State Library, Law and Legislative Reference Unit, Connecticut Legislative Histories Landmark Series: 1979 Public Act No. 483 (2007) preface. In light of this concern, it would have been entirely reasonable for the legislature to adopt the common-law limitation on punitive damages and, in addition, to cap such damages at twice the compensatory award in order to limit liability in cases where the compensatory damages-and, presumably, the injuries-are small, but the litigation expenses are large. Accordingly, I would conclude that "punitive damages" as used in § 52-240b has the same meaning as under our common law, namely, litigation expenses, such as attorney's fees, less taxable costs. Hylton v. Gunter , supra, 313 Conn. at 484, 97 A.3d 970. Accordingly, I respectfully dissent from part IV of the majority opinion. Although the act commonly refers to General Statutes § 52-572m through 52-572q, which sets forth certain procedural and substantive requirements of product liability actions, the public act enacting these provisions, Public Acts 1979, No. 79-483, also enacted provisions codified at General Statutes § 52-577a, prescribing the statute of limitations and period of repose for product liability actions, and General Statutes § 52-240a and 52-240b, respectively prescribing attorney's fees and punitive damages for such actions. We use the term act to refer to all of these provisions. Comment (i) to § 402A of the Restatement (Second) of Torts provides in relevant part: "The rule stated in this [s]ection applies only where the defective condition of the product makes it unreasonably dangerous to the user or consumer. Many products cannot possibly be made entirely safe for all consumption, and any food or drug necessarily involves some risk of harm, if only from over-consumption.... That is not what is meant by 'unreasonably dangerous' in this [s]ection. The article sold must be dangerous to an extent beyond that which would be contemplated by the ordinary consumer who purchases it, with the ordinary knowledge common to the community as to its characteristics.... Good tobacco is not unreasonably dangerous merely because the effects of smoking may be harmful; but tobacco containing something like marijuana may be unreasonably dangerous...." (Emphasis added.) That count also alleged theories of: (1) breach of implied warranty, predicated on alleged statements by the defendant and its agent that the defendant would notify the public and make changes to its product if it learned that its cigarettes contained harmful ingredients; and (2) breach of express warranty, predicated on the defendant's allegedly false statements that Marlboro Light provided lower tar and nicotine than regular cigarettes. A second count alleged loss of consortium. Section 1 of the Restatement (Third) simply provides that a commercial seller or distributor is subject to liability for harm caused by defective products. In part II C of this opinion, we address in further detail § 2, which defines "Categories of Product Defect," and § 4, which dictates whether a product may be deemed defective due to "Noncompliance and Compliance with Product Safety Statutes or Regulations ." We note with regard to our resolution of the first two issues (parts II and III of this opinion), that, although the act consolidates the various theories that could support a product liability claim as a statutory cause of action; see footnote 17 of this opinion; it did not abrogate the common-law elements of product liability claims under the various theories, except insofar as it provided certain considerations relevant to failure to warn claims. See General Statutes § 52-572m. This court previously recognized that, "because [the] act does not delineate [the] elements of claims that it consolidates, [the] common law provides [the] basis for theories of recovery ." Potter v. Chicago Pneumatic Tool Co., 241 Conn. 199, 245 n.34, 694 A.2d 1319 (1997) (citing Second Circuit case for this proposition). For a more comprehensive discussion of the considerations guiding development of this area of the law, see Izzarelli v. R.J. Reynolds Tobacco Co., supra, 321 Conn. at 184-92, 136 A.3d 1232. See, e.g., Corneliuson v. Arthur Drug Stores, Inc., 153 Conn. 134, 214 A.2d 676 (1965) (implied warranty); Hamon v. Digliani, 148 Conn. 710, 174 A.2d 294 (1961) (breach of warranties and negligence); Crotty v. Shartenberg's-New Haven, Inc., 147 Conn. 460, 162 A.2d 513 (1960) (implied warranty); Handler v. Remington Arms Co., 144 Conn. 316, 130 A.2d 793 (1957) (negligence); Gross v. Loft, Inc., 121 Conn. 394, 185 A. 80 (1936) (warranty and negligence); Burkhardt v. Armour & Co., 115 Conn. 249, 161 A. 385 (1932) (negligence); Wolcho v. Rosenbluth, 81 Conn. 358, 71 A. 566 (1908) (negligence). "The elements of a strict liability action that this court derived from § 402A [of the Restatement [Second] ) required the plaintiff to prove: (1) the defendant was engaged in the business of selling the product; (2) the product was in a defective condition unreasonably dangerous to the consumer or user; (3) the defect caused the injury for which compensation was sought; (4) the defect existed at the time of the sale; and (5) the product was expected to and did reach the consumer without substantial change in condition." (Emphasis omitted; internal quotation marks omitted.) Izzarelli v. R.J. Reynolds Tobacco Co., supra, 321 Conn. at 184-85, 136 A.3d 1232. Section 2 of the Restatement (Third) does not expressly exclude any types of products. The comments, however, explain that another section of the Restatement (Third), § 6, provides a different standard for two categories of products, prescription drugs and medical devices. Restatement (Third), supra, § 2, comment (k), p. 32. We have not asked the parties or amici to address whether we should adopt § 6. Section 3 of the Restatement (Third) of Torts, Products Liability, provides: "It may be inferred that the harm sustained by the plaintiff was caused by a product defect existing at the time of sale or distribution, without proof of a specific defect, when the incident that harmed the plaintiff: "(a) was of a kind that ordinarily occurs as a result of product defect; and "(b) was not, in the particular case, solely the result of causes other than product defect existing at the time of sale or distribution." See, e.g., Standard Structural Steel Co. v. Bethlehem Steel Corp., 597 F.Supp. 164, 183 (D. Conn. 1984) (recognizing Connecticut law permits fact finder to draw inference of defect from circumstantial evidence); Kileen v. General Motors Corp., 36 Conn.Supp. 347, 349, 421 A.2d 874 (1980) ("[t]he fact finder can find, where other identifiable causes are absent, that the mere evidence of a malfunction is sufficient evidence of a defect"); see also annot., 65 A.L.R.4th 354-58 (1988) (listing twenty-seven states and District of Columbia that allow establishment of prima facie case of design defect based upon inferences from circumstantial evidence). The draft Restatement (Third) that was considered in Potter provided these same three alternatives to § 2 (b). See Restatement (Third) of Torts, Products Liability, § 2 and comments, § 3 and 7 (Tentative Draft No. 2, 1995). The court in Potter, however, treated the alternative design requirement under § 2 (b) as absolute. See Potter v. Chicago Pneumatic Tool Co., supra, 241 Conn. at 215-19, 694 A.2d 1319. It is unclear whether the court did so because it was unaware of these alternatives, or whether the court intentionally disregarded them, either because it had not been asked to consider adopting these provisions/comments or because of their marginal application. The notion that our current approach yields an unjust result because it dooms an entire product line without objective evidence is similarly unpersuasive. In any event, a jury verdict in favor of a plaintiff on a design defect claim does not result in a ban on the sale of the product. The manufacturer is free to weigh the risks and costs of injuries against the product's profits to determine whether to issue a recall or to continue sales. Although there is general consensus that most jurisdictions apply a risk-utility test, not every such test is the functional equivalent to the Restatement (Third). Our own law is a perfect example. See, e.g., Mikolajczyk v. Ford Motor Co., 231 Ill.2d 516, 545-46, 327 Ill.Dec. 1, 901 N.E.2d 329 (2008) ("By urging adoption of the Products Liability Restatement's formulation of the elements of a strict product liability design defect claim, [the] defendants seek a change in the substantive law of this state. This argument goes far beyond their assertion that the jury in this particular case was not properly instructed and would require our overruling [three cases], at least in part. We, therefore, decline [the] defendants' invitation to adopt [§] 2 [b] of the Products Liability Restatement. Thus, the existence of a feasible alternative design and the balancing of risks and benefits are relevant considerations in a strict product liability design defect case, but they are not elements of the claim that the plaintiff is required to plead and prove in every case."); Delaney v. Deere & Co., supra, 268 Kan. at 791-92, 999 P.2d 930 (declining to adopt Restatement [Third], citing controversy still surrounding it, lack of support from majority of jurisdictions, inconsistency of requirement of alternative design with Kansas law); Rodriguez v. Suzuki Motor Corp., supra, 996 S.W.2d at 65 (The court rejected the argument that it should adopt the Restatement [Third], citing case law concluding that "the term unreasonably dangerous, as used in [§] 402A and [its model jury instructions], needs no judicial definition, whether derived from consumer expectations, risk-utility, or otherwise.... Instead, the concept of unreasonable danger is to be treated as an ultimate issue for the jury.... Under this [c]ourt's reasoning, [a] signal virtue of such a general instruction is that it allows the jury to give the concept of unreasonable danger content by applying their collective intelligence and experience to the broad evidentiary spectrum of facts and circumstances presented by the parties.... Furthermore, the perceived need to define unreasonable dangerousness is largely satisfied by allowing the litigants to argue that the utility of a design outweighs its risks, or that consumer expectations were violated, or any other theory of unreasonable dangerousness supported by the evidence." [Citations omitted; internal quotation marks omitted.] ); Vautour v. Body Masters Sports Industries, Inc., 147 N.H. 150, 154-56, 784 A.2d 1178 (2001) (declining request to adopt Restatement [Third], citing concerns that "reasonable alternative design requirement would impose an undue burden on plaintiffs because it places a potentially insurmountable stumbling block in the way of those injured by badly designed products"; that it "may be difficult for courts and juries to apply," and that, while proof of alternative design is relevant in design defect case, it "should be neither a controlling factor nor an essential element that must be proved in every case" [internal quotation marks omitted] ); Godoy v. E.I. du Pont de Nemours & Co., supra, 319 Wis.2d at 107, 768 N.W.2d 674 ("Although we have recognized that the Restatement [Third] may offer new insights into product liability, we have neither adopted nor rejected it in its entirety.... Section 402A of the Restatement [Second] of Torts has remained the touchstone of our analysis for strict products liability." [Citation omitted; footnote omitted.] ); Godoy v. E.I. du Pont de Nemours & Co., supra, at 107 n.8, 768 N.W.2d 674 ("[r]ecently, we stated that the Restatement [Third]'s definition of 'defective design' is 'fundamentally at odds with current Wisconsin products liability law' "). As such, although the court in Potter identified two specific concerns relating to the reasonable alternative design requirement, we do not read that decision to reflect every concern that the court may have had with the Restatement (Third) standard. General Statutes § 52-572m(b) provides: " 'Product liability claim' includes all claims or actions brought for personal injury, death or property damage caused by the manufacture, construction, design, formula, preparation, assembly, installation, testing, warnings, instructions, marketing, packaging or labeling of any product. 'Product liability claim' shall include, but is not limited to, all actions based on the following theories: Strict liability in tort; negligence; breach of warranty, express or implied; breach of or failure to discharge a duty to warn or instruct, whether negligent or innocent; misrepresentation or nondisclosure, whether negligent or innocent." The reasonable consumer standard in relation to a manifestly unreasonable design refers to the consumer to whom the product is marketed. Thus, when a product has been designed for and marketed to a limited group with specialized needs and/or knowledge, such as industrial equipment not suited for use by the general public, and the product is accompanied by adequate warnings, whether the product's design is manifestly unreasonable is determined by reference to the intended consumer. Other than circumstances in which the product fails to comply with safety laws or express warranties, we presume that circumstantial evidence will be used to establish a defect based on consumers' minimum safety expectations, under what we have referred to as our "malfunction theory." White v. Mazda Motor of America, Inc., 313 Conn. 610, 612, 99 A.3d 1079 (2014). Conversely, we presume that a plaintiff seeking to prove a defect by direct evidence will proceed under our primary risk-utility test. We do not foreclose, however, the possibility that a plaintiff could proceed under the consumer expectation test with direct evidence of a defect that does not require expert testimony should a case arise in which it would be inappropriate to require the plaintiff to proceed under the risk-utility test. We are unaware of any such circumstances at the present time. The court recognized, however, "that a different conclusion might be warranted in cases in which the plaintiff (or decedent) began smoking before warning labels were mandated by federal law. See Guilbeault v. R.J. Reynolds Tobacco Co., 84 F.Supp.2d 263, 271 (D.R.I. 2000) ('most of the courts considering the common knowledge of the general disease-related health risks of smoking have placed common knowledge at least at 1966 and some before'); see, e.g., Spain v. Brown & Williamson Tobacco Corp., 363 F.3d 1183, 1194 (11th Cir. 2004) ; Insolia v. Philip Morris, Inc., 216 F.3d 596, 600 (7th Cir. 2000) ; Estate of White v. R.J. Reynolds Tobacco Co., 109 F.Supp.2d 424, 432-33 (D. Md. 2000) ; Tillman v. R.J. Reynolds Tobacco Co., 871 So.2d 28, 33 (Ala. 2003) ; Miele v. American Tobacco Co., 2 A.D.3d 799, 802, 770 N.Y.S.2d 386 (2003)." Izzarelli v. R.J. Reynolds Tobacco Co., supra, 321 Conn. at 203 n.16, 136 A.3d 1232. We also explained that "precluding liability solely because the product's dangers were open and obvious would be in tension with" this court's determination in Potter regarding the scope of admissible state of the art evidence. Izzarelli v. R.J. Reynolds Tobacco Co., supra, 321 Conn. at 199 n.14, 136 A.3d 1232. We noted that Potter had held that "state of the art refers to what is technologically feasible, rather than merely industry custom." (Internal quotation marks omitted.) Id. In Izzarelli, we reasoned that "[t]he fact that an industry universally may design a product in a manner that poses a particular danger may provide notice to consumers of such a danger. To preclude liability due to such notice would negate the evidentiary value of the state of the art." Id., at 199-200 n.14, 136 A.3d 1232. Although some comments to the Restatement (Second) sections for negligence of product sellers acknowledge that contributory fault may arise when the danger is known to the consumer; see, e.g., 2 Restatement (Second), supra, § 398, comment (b), p. 336; such fault is not equivalent to the consumer expectation definition in comment (i) to § 402A. If legally available, such fault would be a defense, not an element of the plaintiff's prima facie case, and only if the plaintiff had acted unreasonably in the face of his knowledge. See Stafford v. Roadway, 312 Conn. 184, 191, 93 A.3d 1058 (2014) ; Mazzucco v. Krall Coal & Oil Co., 172 Conn. 355, 358, 374 A.2d 1047 (1977) ; Rohloff v. Fair Haven & Westville Railroad Co., 76 Conn. 689, 692-93, 58 A. 5 (1904). Such a defense is not available, however, for a claim under our act. Our legislature limited application of this common-law defense in 1973, and abolished it for product liability claims in 1979, when adopting that act. See Public Acts 1973, No. 73-622, § 1, codified at General Statutes § 52-572h(b) (limiting defense to preclude recovery only when plaintiff's negligence is greater than combined negligence of defendants); Public Acts 1979, No. 79-483, § 4, codified at General Statutes § 52-572o (comparative responsibility of plaintiff shall not bar recovery, but shall diminish award of compensatory damages proportionately). We are mindful that numerous courts and commentators have concluded that a risk-utility balancing test for design defects like that under the Restatement (Third) is functionally equivalent to the reasonable person inquiry in negligence, which could give rise to the possibility of inconsistent verdicts if a jury were to find for the defendant on strict liability and for the plaintiff on negligence. See Restatement (Third), supra, § 2, comment (n), pp. 35-36 ("[T]wo or more factually identical design-defect claims . should not be submitted to the trier of fact in the same case under different doctrinal labels. Regardless of the doctrinal label attached to a particular claim, design . claims rest on a risk-utility assessment. To allow two or more factually identical risk-utility claims to go to a jury under different labels, whether 'strict liability,' 'negligence,' or 'implied warranty of merchantability,' would generate confusion and may well result in inconsistent verdicts."); see also id., § 2, reporters' note, comment (n), pp. 107-109 (citing cases). Conversely, several courts have concluded that a test that focuses on consumer expectations is sufficiently different from a negligence claim, at least when the plaintiff is a foreseeable but unintended user, that different outcomes would not be inconsistent. See, e.g., Talkington v. Atria Reclamelucifers Fabrieken BV, 152 F.3d 254, 263-64 (4th Cir. 1998) (applying South Carolina law) ; Griggs v. BIC Corp., 981 F.2d 1429, 1438-39 (3d Cir. 1992) (applying Pennsylvania law) ; Calles v. Scripto-Tokai Corp., 224 Ill.2d 247, 271-72, 309 Ill.Dec. 383, 864 N.E.2d 249 (2007) ; see also Bilotta v. Kelley Co., 346 N.W.2d 616, 622 (Minn. 1984) ("[w]hether strict liability or negligence affords a plaintiff the broader theory of recovery will depend largely on the scope of evidence admitted by the trial court and on the jury instructions given under each theory"). It appears that, in most cases, this concern has been addressed in the context of the facts and theories of the particular case rather than the court's adoption of a per se rule. See generally annot., 41 A.L.R.4th 9, Products Liability: Inconsistency of Verdicts on Separate Theories of Negligence, Breach of Warranty, or Strict Liability (1985 and Supp. 2016) (citing cases holding that there was no irreconcilable inconsistency in verdict for defendant on strict liability and verdict for plaintiff on negligence and cases reaching contrary conclusion). To the extent that there is a valid concern that a jury should not be permitted to find that the product is not defective but nonetheless find in favor of the plaintiff on negligence, we assume that we have foreclosed that possibility by making clear in this opinion that the elements of a product liability claim apply to all theories. Moreover, we are unaware of any case applying our law in which a jury has rendered an inconsistent verdict on such claims, as plaintiffs have either elected to pursue one theory; see Coburn v. Lenox Homes, Inc., 186 Conn. 370, 372, 441 A.2d 620 (1982) (negligent design and construction of septic system); or have jointly presented both without distinguishing them. See, e.g., Wagner v. Clark Equipment Co., supra, 243 Conn. at 190, 700 A.2d 38 (allegations that forklift was unreasonably dangerous because it lacked standardized warning system sufficient for use in industrial setting was basis for negligence and strict liability claims). If this court were to place limits on the availability or contours of negligence to safeguard against inconsistent verdicts, it would behoove us to do so in the context of a case implicating such concerns and the parties' arguments in relation thereto. We note that, despite repeated statements in the past that "the extent to which exemplary damages are to be awarded ordinarily rests in the discretion of the trier of the facts"; Gionfriddo v. Avis Rent A Car System, Inc., 192 Conn. 280, 295, 472 A.2d 306 (1984) ; several more recent decisions reflect a trend toward having the trial court determine the amount of common-law punitive damages following a jury trial, thus implicitly limiting this statement to a determination of the entitlement to such damages. See Harris v. Bradley Memorial Hospital & Health Center, Inc., 306 Conn. 304, 313, 50 A.3d 841 (2012), cert. denied, - U.S. -, 133 S.Ct. 1809, 185 L.Ed.2d 812 (2013) ; Nelson v. Tradewind Aviation, LLC, 155 Conn.App. 519, 530, 111 A.3d 887 (2015) ; R.I. Pools, Inc. v. Paramount Concrete, Inc., 149 Conn.App. 839, 873-74, 89 A.3d 993, cert. denied, 312 Conn. 920, 94 A.3d 1200 (2014) ; Metcoff v. NCT Group, Inc., 137 Conn.App. 578, 582, 49 A.3d 282 (2012) ; Bridgeport Harbour Place I, LLC v. Ganim, 131 Conn.App. 99, 165-66, 30 A.3d 703, cert. granted, 303 Conn. 904, 31 A.3d 1179 (2011) (appeal withdrawn January 27, 2012), cert. granted, 303 Conn. 905, 31 A.3d 1180 (2011) (appeal withdrawn January 26, 2012). We express no opinion on the plaintiff's contention that § 52-240b must be construed not to be limited by the common-law rule because he has a constitutional right to a jury determination as to the amount of common-law punitive damages. We recognize that a plaintiff could safeguard against such an outcome by setting attorney's fees under a contingency fee agreement. Substitute Bill No. 5870, § 8, provides: "(a) Punitive damages, in addition to attorney's fees, may be awarded if the claimant shows by clear and convincing evidence that the harm suffered was the result of the product seller's reckless disregard for the safety of product users, consumers or others who were injured by the product. "(b) If the trier of fact determines that punitive damages should be awarded, it shall determine the amount of such damages. In making such determination, the court shall consider: (1) The likelihood at the time of manufacture that a serious harm would arise from the product seller's misconduct, (2) the degree of the product seller's awareness of such likelihood of harm, (3) the profitability of the misconduct to the product seller, (4) the duration of the misconduct and any concealment of it by the product seller, (5) the attitude and conduct of the product seller upon discovery of the misconduct, (6) the financial condition of the product seller, and (7) the total effect of other punishment imposed or likely to be imposed upon the product seller as a result of the misconduct, including punitive damage awards to the persons similarly situated to the claimant and the severity of criminal penalties to which the product seller has been or may be subjected." Despite our adoption of a risk-utility test, the majority has retained the use of the ordinary consumer expectations test but suggests that its application might be limited to cases involving product designs that violate safety laws and regulations or express warranties. See footnote 19 of the majority opinion. The Restatement (Third), however, does not rely on the consumer expectations test for these types of claims but, instead, recognizes separate theories of recovery for claims based on violations of safety laws and regulations; see Restatement (Third), supra, § 4, p. 120; and misrepresentations by the manufacturer. Id., § 9, p. 187; see also id., § 2, comment (r), p. 40. Retaining the consumer expectations test is, therefore, wholly unnecessary in my view, and only fosters further confusion. The majority points out that another provision of the act, General Statutes § 52-240a, provides that, "[i]f the court determines that the claim or defense is frivolous, the court may award reasonable attorney's fees to the prevailing party in a products liability action." The majority contends that, combined, § 52-240a and 52-240b have the same effect as § 35-53(b), which authorizes awards of both punitive damages (not subject to the common-law limitation) and attorney's fees if the court finds "wilful and malicious misappropriation" of a trade secret. As the majority recognizes, however, § 52-240a applies to entirely different conduct than § 52-240b. Specifically, § 52-240a applies either when the plaintiff in a products liability action has raised a frivolous claim or when the defendant has raised a frivolous defense, while § 52-240b applies when the defendant has had "reckless disregard for the safety of product users, consumers or others who were injured by the product." Thus, § 52-240a and 52-240b merely provide that there are two distinct situations under the act that authorize the court to award attorney's fees, not, as provided by § 35-53(b) and 42-110g(d), that the court is authorized to award punitive damages in addition to attorney's fees for the same misconduct. Substitute Bill No. 5870, § 8 (a), provides: "Punitive damages, in addition to attorney's fees, may be awarded if the claimant shows by clear and convincing evidence that the harm suffered was the result of the product seller's reckless disregard for the safety of product users, consumers or others who were injured by the product." Substitute Bill No. 5870, § 8 (b), provides: "If the trier of fact determines that punitive damages should be awarded, it shall determine the amount of such damages. In making such determination, the court shall consider: (1) The likelihood at the time of manufacture that a serious harm would arise from the product seller's misconduct, (2) the degree of the product seller's awareness of such likelihood of harm, (3) the profitability of the misconduct to the product seller, (4) the duration of the misconduct and any concealment of it by the product seller, (5) the attitude and conduct of the product seller upon discovery of the misconduct, (6) the financial condition of the product seller, and (7) the total effect of other punishment imposed or likely to be imposed upon the product seller as a result of the misconduct, including punitive damage awards to persons similarly situated to the claimant and the severity of criminal penalties to which the product seller has been or may be subjected." Accordingly, I disagree with the majority's statement that "[t]here is nothing to indicate that [in deleting the relevant language providing criteria for determining the amount of punitive damages], the legislature intended to change the meaning of 'punitive damages' as used in the proposed bill." If the legislature intended to reject the common-law limitation on punitive damages, there would have been no reason for it to delete the proposed language. See Proposed House Bill No. 5870, 1979 Sess. ("STATEMENT OF PURPOSE: [t]o restore balance in the law of product liability"); Proposed Senate Bill No. 443, 1979 Sess. ("STATEMENT OF PURPOSE: [t]o restore balance in the law of product liability and relieve a serious economic problem"); Conn. Joint Standing Committee Hearings, Judiciary, Pt. 2, 1979 Sess., pp. 552-53, remarks of Philip H. Dreissigacker, vice president of technology for the Farrel Company (referring to "testimony in previous years, 1976, 1977 and 1978 outlining the increasing effect of uncontrollable product liability suits on the economics of our company both as to escalation and cost of insurance, which has been 1200 percent in six years escalation, and in the number of new cases per year"); Conn. Joint Standing Committee Hearings, supra, p. 568, remarks of John Anderson, assistant counsel for the Connecticut Business and Industry Association (referring to "the increased cost of product liability insurance" and "[i]ts impact on the prices of both consumer and industrial goods, the uncertainty nationwide with respect to product liability law"); Conn. Joint Standing Committee Hearings, supra, p. 570, remarks of Anderson ("[w]e believe that the legislature can positively address the product liability problem without unduly restricting any [plaintiff's] rights and that is the thrust of House Bill 5870"); Conn. Joint Standing Committee Hearings, supra, p. 578, remarks of Norman Parsells, director of Sturm, Ruger and Company (company's insurance premiums have increased from $90,000 to $3 million per year as result of product liability); Conn. Joint Standing Committee Hearings, supra, pp. 578-79, remarks of Parsells (proposed legislation "tries to restore fairness and equality to the field of product liability law" and would reduce insurance rates nationally); Conn. Joint Standing Committee Hearings, supra, pp. 582-83, remarks of Parsells ("my client has to add $8 to the cost of every product that ships out because of this product liability problem"). The majority contends that "[t]he punitive damages provision was added to the proposed bill after consumer interests spoke in opposition to the original bill, which was far less favorable to the consumer than the final bill in various respects." Although the punitive damages provision may have been adopted to make the proposed legislation appear more palatable to consumers, it does not necessarily follow that the provision was intended to abrogate the common-law limitation on punitive damages. In light of the overriding legislative intent to rebalance product liability law in favor of defendants, it is more reasonable to conclude that the legislature intended to adopt the common-law limitation. The majority points out that the legislature imposed no such cap in General § 52-240a, which authorizes an award of attorney's fees to the prevailing party if the court determines that a claim or defense was frivolous; see footnote 1 of this concurring and dissenting opinion; and contends that it is unlikely that "the legislature would have deemed the defendant's assertion of a frivolous defense to merit a harsher penalty than the defendant's injury causing reckless disregard for others' safety." The majority fails to recognize, however, that § 52-240a provides a two-edged sword: although it allows for full recovery of attorney's fees from a defendant who raises a frivolous defense, it also allows for full recovery of such fees from a plaintiff who raises a frivolous claim. Thus, the provision maintains balance in product liability law. In contrast, authorizing for the first time an award of broad punitive damages would have altered the existing balance in favor of plaintiffs, thereby exacerbating the economic problem that the act was intended to alleviate. See footnote 5 of this concurring and dissenting opinion.

12489359

DISCIPLINARY COUNSEL v. Judith B. SPORN

Disciplinary Counsel v. Sporn

2017-03-07

AC 38387

108

120

157 A.3d 108

157

West's Atlantic Reporter, Third Series

Connecticut Appellate Court

Connecticut

2021-08-27T20:57:14.014091+00:00

Fastcase

DISCIPLINARY COUNSEL v. Judith B. SPORN

DISCIPLINARY COUNSEL v. Judith B. SPORN AC 38387 Appellate Court of Connecticut. Argued October 27, 2016 Officially released March 7, 2017 James F. Sullivan, for the appellant (respondent). Karyl L. Carrasquilla, chief disciplinary counsel, for the appellee (petitioner). Lavine, Beach and Keller, Js. The listing of judges reflects their seniority status on this court as of the date of oral argument.

5752

36593

KELLER, J. The respondent, Judith B. Sporn, appeals from the judgment of the trial court suspending her from the practice of law for violating several Rules of Professional Conduct and Practice Book § 2-27. She claims on appeal that the court abused its discretion by: (1) granting the motion in limine of the petitioner, Disciplinary Counsel, seeking to preclude proposed expert testimony on the subject of immigration law; and (2) imposing a two year suspension. We affirm the judgment of the court. This appeal arises from three grievance actions commenced against the respondent in 2013 and 2014. The following facts underlying these actions, as found by the court, are pertinent to our discussion. The first grievance action concerned the respondent's representation of Line Christoffersen. Christoffersen, a citizen of Denmark who came to the United States on a J-1 (exchange) visa, retained the respondent in January, 2010, to assist in filing an application to become a United States permanent resident, also known as a green card application. Christoffersen paid the respondent $1365 for this task. The respondent did not provide Christoffersen with a written fee agreement, nor did she place the fee into a separate client trust account. Christoffersen sought to apply for the green card on the basis of her marriage to a United States citizen. In the months after she retained the respondent, Christoffersen attempted to contact her to inquire about the status of her application. The respondent, however, did not return her calls. In September, 2010, Christoffersen and her husband separated. Because of this, Christoffersen went to the respondent's office that same month to instruct her to stop the application process. As of the time of that meeting, the respondent had yet to begin work on Christoffersen's green card application. The respondent then suggested that Christoffersen file a petition for lawful resident status as a battered or abused spouse under the Violence Against Women Act, also known as an I-360 petition. See 8 U.S.C. § 1101 (a) (51) (A), 1154 (a) (iii) (2012). Once approved, an I-360 petition permits the battered or abused spouse to apply to adjust his or her status to that of permanent resident. See 8 U.S.C. § 1255 (a) (2012). The basis of the I-360 petition in Christoffersen's case was that her husband was cruel and abusive to her. Christoffersen did not pay an additional fee for this task. The respondent did not provide Christoffersen with a written fee agreement relating to this representation. During the following months, Christoffersen attempted to contact the respondent to inquire about the I-360 petition, but the respondent did not respond. The respondent did not file the I-360 petition until March, 2012. Christoffersen terminated the representation in the summer or at the end of 2012. Christoffersen's I-360 petition was approved in April, 2013. At the time of the trial underlying the present appeal, however, Christoffersen had yet to apply to adjust her status to that of permanent resident. She testified that she did not want to pursue such status because she believed that she did not qualify as an abused spouse and would be deceiving immigration authorities if she did. At the time of the trial, Christoffersen did not have permanent resident status. The second and third grievance actions commenced against the respondent concerned her representation of Valent Kolami and Adrian Emin, brothers-in-law from Albania who originally entered the United States on visitor's visas around 2000. Kolami and Emin retained the respondent in 2003 to appeal to the Board of Immigration Appeals (BIA) following its denial of their applications for political asylum. Each paid the respondent a $2500 fee. The respondent did not provide either of them with a written fee agreement, nor did she place the fees into a separate client trust account. The respondent filed appellate briefs before the BIA for Kolami and Emin. The BIA, however, returned the Kolami brief because the respondent certified service to Hartford instead of to New York. In the meantime, the filing deadline for the brief had passed. The respondent therefore moved to late file it. According to the respondent's testimony, she did not receive notice of the disposition of the appeals, nor did she follow up in order to ascertain those dispositions, until 2011. Both Kolami and Emin went to the respondent's office frequently between 2003 and 2011 to inquire about the status of their appeals. Each time the respondent told them that she was still awaiting decisions. In August, 2011, agents from United States Immigration and Customs Enforcement (ICE) detained Kolami and Emin. The respondent learned that the appeals to the BIA had in fact been dismissed in 2004-Emin's on the merits, and Kolami's because the brief was untimely filed. The respondent filed stays of removal for Kolami and Emin, a task for which each paid the respondent an additional $2500. The respondent did not provide either of them with a written fee agreement. The respondent did not place the fees into a separate client trust account. The stays, and two more that the respondent sought subsequently, were granted. When the fourth set of stays was denied, the respondent told Kolami and Emin that she could no longer represent them and referred them to a colleague. In April, 2012, Kolami and Emin were again detained by ICE. This time, however, Kolami was held in detention for eighteen months, and Emin for sixteen months. Further, the court found that the respondent did not maintain a registered IOLTA account until the spring of 2015, despite the fact that she completed a continuing legal education program in ethics in 2012 pursuant to an order arising out of a previous grievance action. After a three day trial, the court, Heller, J. , for reasons set forth more fully below, concluded that the respondent had violated rules 1.1 (competence), 1.3 (diligence), 1.4 (communication), 1.5 (b) (written fee agreements), and 1.15 (b), (d) and (i) (safekeeping of client property) of the Rules of Professional Conduct, as well as Practice Book § 2-27 (clients' funds). After considering the factors set forth in the American Bar Association's Standards for Imposing Lawyer Sanctions (ABA factors); see Burton v. Mottolese , 267 Conn. 1, 55-56, 835 A.2d 998 (2003), cert. denied, 541 U.S. 1073, 124 S.Ct. 2422, 158 L.Ed.2d 983 (2004) ; the court on September 18, 2015, suspended the respondent from the practice of law for two years. Additional facts will be set forth as necessary. I The respondent first claims that the court abused its discretion by granting the petitioner's motion in limine seeking to preclude proposed expert testimony on the subject of immigration law. We disagree. The following additional evidence is relevant to our disposition of this claim. Prior to trial, the respondent filed a memorandum with the court in which she argued for the admission of expert testimony on the subject of immigration law. The memorandum read in part as follows: "The [respondent] has disclosed Crescenzo Deluca, a skilled and highly regarded immigration attorney. Attorney Deluca will not be asked to opine on any ultimate issues such as whether there was a violation of any Rule of Professional Conduct. Rather, he will be providing assistance to the court regarding matters outside this court's ken, namely, the customs and practices in the highly specialized area of immigration law dealing with petitions filed under the Violence Against Women Act and the likelihood of success of the Kolami and Emin deportation cases. Attorney Deluca has been practicing immigration law for over forty years. The cases involving Kolami and Emin are deportation cases involving Albanians and are predicated on an understanding of the circumstances in Albania. There is no attorney in Connecticut who has handled more cases involving Albanians than Attorney Deluca. "It is the [counsel for the respondent's] understanding, based on his due diligence, including speaking to one of the former partners of the present trial judge, that although while she was in private practice she was known as a skilled and well respected litigator in corporate and commercial matters, she did not do immigration work. As [the respondent] and Attorney Deluca can attest (as well as the [counsel for the respondent] having represented immigration attorneys in the past) this is a highly specialized area of the law. Lay people and most judges do not have the training and experience to know of the custom and practices in various areas of immigration law. . The court should have some guidance as to the standards for an I-360 Application, what an I-797 Notice of Action means, what the standards are for various motions to reopen, the standards for appealing decisions on such motions, and the unique procedures that apply to these applications, motions and appeals. A qualified immigration attorney expert will assist with the court in understanding these unique and specialized proceedings." (Citations omitted; footnotes added.) The respondent argued much the same in an oral offer of proof before the court. The petitioner filed a motion in limine seeking to preclude the expert testimony, arguing that an understanding of substantive immigration law was not necessary to determine whether the respondent had violated the Rules of Professional Conduct. The court granted the petitioner's motion in limine, stating in part: "I think the federal law, federal procedures, procedures in the Department of Homeland Security and how immigration matters are handled, I think are all certainly within the purview of this court." The following legal principles guide our analysis. "Expert testimony should be admitted when: (1) the witness has a special skill or knowledge directly applicable to a matter in issue, (2) that skill or knowledge is not common to the average person, and (3) the testimony would be helpful to the court or jury in considering the issues. . [T]o render an expert opinion the witness must be qualified to do so and there must be a factual basis for the opinion." (Internal quotation marks omitted.) Weaver v. McKnight , 313 Conn. 393, 405-406, 97 A.3d 920 (2014). "The preclusion of testimony by a properly disclosed expert witness is an evidentiary ruling. . That decision will not be disturbed unless the court abused its discretion or unless the error is clear and involves a misconception of the law. . An abuse of discretion means a ruling made on untenable grounds. . It is well settled that the trial court's evidentiary rulings are entitled to great deference. . The trial court is given broad latitude in ruling on the admissibility of evidence, and we will not disturb such a ruling unless it is shown that the ruling amounted to an 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. . Even if a court has acted improperly in connection with the introduction of evidence, reversal of a judgment is not necessarily mandated because there must not only be an evidentiary error, but there also must be harm." (Citations omitted; emphasis omitted; footnote omitted; internal quotation marks omitted.) Glaser v. Pullman & Comley, LLC , 88 Conn.App. 615, 622-23, 871 A.2d 392 (2005). On appeal, the respondent essentially makes three arguments in support of her claim that the court abused its discretion in granting the motion in limine. First, the respondent argues that the expert testimony would have provided evidence of the standard of care among attorneys as to the particular immigration benefits sought by Christoffersen, Kolami, and Emin, which the respondent argues was material to the issue of her alleged lack of competence and diligence in those matters. Second, the respondent contends that the expert testimony would have assisted in establishing that the harm that befell Christoffersen, Kolami, and Emin either was nonexistent or would have occurred even absent the alleged misconduct. Third, the respondent argues that the testimony was needed to counter expert testimony given by another immigration lawyer in the underlying grievance proceedings before the Statewide Grievance Committee. We are not persuaded. We find no merit in the respondent's first argument that the court abused its discretion because the expert testimony would have provided evidence of the standard of care among attorneys as to the particular immigration benefits sought by the aggrieved clients, which the respondent contends was material to the issue of her alleged lack of competence and diligence in those matters. As regards the Kolami and Emin cases, an understanding of substantive immigration law was not necessarily germane to the issue of whether the respondent violated the Rules of Professional Conduct pertaining to competence and diligence. In the Kolami case, the respondent simply failed to timely file a brief, resulting in summary dismissal. In both matters, the respondent failed to timely ascertain the dispositions of the cases, and failed to timely communicate those dispositions to the clients. The court was justified in concluding that an understanding of substantive immigration law would not assist in rendering judgment as to those issues. As to Christoffersen, the principal issue was whether the respondent failed in her ethical obligation to perform competently and diligently in filing Christoffersen's green card application. See part II of this opinion. Expert testimony concerning substantive immigration law was not necessarily useful to such inquiry. We therefore conclude that the court did not abuse its discretion in precluding the expert testimony on this ground. Likewise, we are not persuaded by the respondent's second argument that the court abused its discretion because the expert testimony would have assisted in showing that the harm that befell Christoffersen, Kolami, and Emin either was nonexistent or would have occurred even in the absence of the alleged ethical violations. In part II of this opinion, we discuss the court's factual findings that the respondent's misconduct harmed Christoffersen, Kolami, and Emin. We also conclude there that some of those findings are unfounded, but that the court nevertheless did not abuse its discretion by suspending the respondent for two years. Thus, even if we were to determine here that the court abused its discretion by precluding the expert testimony because such testimony would have shown that the respondent's misconduct did not harm the aggrieved clients, for the reasons set forth in part II of this opinion, we conclude that any such error was harmless. See Glaser v. Pullman & Comley, LLC , supra, 88 Conn.App. at 623, 871 A.2d 392 ("there also must be harm" not only evidentiary error). Finally, we must reject the respondent's contention that the expert testimony was needed to counter expert testimony given by another immigration lawyer in the underlying grievance proceedings before the Statewide Grievance Committee. This argument is unsupported by the record, which contains no transcript of any proceeding before the Statewide Grievance Committee. Accordingly, this argument fails. II The respondent next claims that the court abused its discretion in imposing a two year suspension. More specifically, the respondent argues that the court's finding that Christoffersen, Kolami, and Emin suffered harm as a result of the respondent's conduct is clearly erroneous and that, but for that finding, the court's sanction would have been less severe. We agree that some of the court's findings in this regard do not find adequate support in the record. See Commissioner of Transportation v. Towpath Associates , 255 Conn. 529, 546, 554, 767 A.2d 1169 (2001) (rejecting trial court's factual determination where such determination was "nothing more than speculation" and ordering new trial). We conclude, nevertheless, that based on the other findings relied upon by the court in sanctioning the respondent, this is not a case in which "an abuse of discretion is manifest or where injustice appears to have been done." (Internal quotation marks omitted.) Statewide Grievance Committee v. Spirer , 247 Conn. 762, 781, 725 A.2d 948 (1999). The following additional facts are relevant to our discussion. As previously discussed, after concluding that the respondent violated several Rules of Professional Conduct and Practice Book § 2-27, the court considered the respondent's conduct in light of the ABA factors in determining the appropriate sanction. One such factor is "the potential or actual injury stemming from the attorney's misconduct ." Burton v. Mottolese , supra, 267 Conn. at 55, 835 A.2d 998. In analyzing this factor, the court concluded: "The injury resulting from an attorney's misconduct is defined by the type of ethical duty that the attorney has violated and the extent of the actual or potential harm. . The respondent's failure to represent her clients competently and diligently caused them significant injury. [Christoffersen] was unable to obtain a family based green card. [Kolami] and [Emin] were arrested and detained for eighteen and sixteen months, respectively. They were deprived of their livelihood, their families, and their liberty. They were forced to incur legal expenses to retain new counsel." (Citation omitted.) The following legal principles govern our disposition of this claim. A trial court has "inherent judicial power, derived from judicial responsibility for the administration of justice, to exercise sound discretion to determine what sanction to impose in light of the entire record before it." (Internal quotation marks omitted.) Statewide Grievance Committee v. Shluger , 230 Conn. 668, 678, 646 A.2d 781 (1994). "Disciplinary proceedings are for the purpose of preserving the courts from the official ministration of persons unfit to practice in them. . The proceeding to disbar [or suspend] an attorney 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.) Chief Disciplinary Counsel v. Zelotes , 152 Conn.App. 380, 385, 98 A.3d 852, cert. denied, 314 Conn. 944, 102 A.3d 1116 (2014). "[O]ur inquiry is limited to whether the trial court abused its discretion in imposing [the sanction that it did]. The scope of review by this court on a claim that the trial court abused its discretion is well settled. [E]very 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." (Internal quotation marks omitted.) Statewide Grievance Committee v. Spirer , supra, 247 Conn. at 781, 725 A.2d 948 ; see also Statewide Grievance Committee v. Glass , 46 Conn.App. 472, 480, 699 A.2d 1058 (1997) (Abuse of discretion is that which is "clearly against logic and effect of such facts as are presented in support of the application or against the reasonable and probable deductions to be drawn from the facts disclosed upon the hearing; an improvident exercise of discretion; an error of law. . A discretion exercised to an end or purpose not justified by and clearly against reason and evidence. Unreasonable departure from considered precedents and settled judicial custom, constituting error of law. . A judgment or decision by an administrative agency or judge which has no foundation in fact or in law." [Internal quotation marks omitted.] ). "[W]e will upset a factual determination of the trial court only if it is clearly erroneous. The trial court's findings are binding upon this court unless they are clearly erroneous in light of the evidence and the pleadings in the record as a whole. . 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.) U.S. Bank National Assn. v. Palmer , 88 Conn.App. 330, 336, 869 A.2d 666 (2005). The respondent argues that the court's findings that Christoffersen, Kolami, and Emin were harmed as a result of her misconduct are clearly erroneous because (1) there was no showing that Christoffersen would have ultimately been successful with respect to her application for permanent residency based on her marriage to a United States citizen, and her I-360 petition, from which one can obtain permanent residency by filing an additional application, was successful; and (2) there was no evidence presented that Kolami and Emin would not have been in the same legal position with respect to their status, and would not have been detained, in the absence of the respondent's misconduct. As to the harm that befell Christoffersen, the court concluded that she "was unable to obtain a family based green card." We deem this a fair assessment. To be sure, whether Christoffersen would have ultimately been successful in obtaining a marriage based green card in the absence of the respondent's misconduct is an open question. The key point, however, is that the respondent, through her inaction, unilaterally deprived Christoffersen of the opportunity to obtain that particular benefit. We disagree with the respondent's contention that the court's finding of harm in Christoffersen's case was erroneous because Christoffersen could have-fairly easily, the respondent suggests-obtained permanent resident status by virtue of her approved I-360 petition. Although the I-360 petition may have provided Christoffersen with a viable alternative for obtaining permanent resident status, she did not originally retain the respondent to file such a petition. Once the I-360 petition was approved, Christoffersen was, reasonably or not, uncomfortable pursuing permanent resident status by virtue of that petition. Christoffersen was therefore harmed because she did not receive the service for which she paid the respondent-that is, to file a marriage based green card application and, impliedly, to do so within a reasonable time. As to the harm that befell Kolami and Emin, the court concluded: "Kolami and [Emin] were arrested and detained for eighteen and sixteen months, respectively. They were deprived of their livelihood, their families, and their liberty. They were forced to incur legal expenses to retain new counsel." Although it is undisputed that Kolami and Emin were detained by immigration authorities and suffered many attendant hardships, we conclude that the court's finding that the respondent caused Kolami and Emin such harm is unduly speculative. As previously noted, the respondent untimely filed Kolami's appeal to the BIA, resulting in summary dismissal. Even if the appeal was timely filed, however, there was no evidence presented to support a finding that Kolami would have been successful on such appeal. In point of fact, Michael DiRaimondo, an attorney whom Kolami retained after the respondent terminated her representation of him, testified for the petitioner that he filed an ineffective assistance of counsel motion with the BIA for Kolami. DiRaimondo further testified that the BIA had determined that, although there was ineffective assistance by the respondent, there was no prejudice to Kolami. We also conclude that there was insufficient evidence to support the court's inference that but for the respondent's misconduct, Kolami and Emin would not have been detained for eighteen and sixteen months, respectively, and that they would not have had to retain, and pay for, new counsel. Assuming that Kolami's appeal to the BIA had been filed correctly and subsequently denied on the merits, both Kolami and Emin would have, presumably, been without legal status, and therefore subject to detainment and, ultimately, deportation. See M. Scaperlanda, Federal Judicial Center, "Immigration Law: A Primer," (2009), p. 73, available at http://permanent.access.gpo.gov/lps121690/immlaw09.pdf (last visited February 24, 2017) (copy contained in the file of this case in the Appellate Court clerk's office) ("[a]liens are deportable who . have violated the terms of their nonimmigrant status [or] have violated the conditions of admission"). For all that the record discloses, Kolami and Emin may have been subject to the same periods of detention even absent the respondent's misconduct. As to the finding that Kolami and Emin were harmed because they eventually had to retain another lawyer, again, the record is silent as to whether this occurred as a result of the respondent's ethical misconduct, or was simply an event that would have happened regardless of the respondent's conduct. After all, it is not uncommon for attorneys to refer clients to other attorneys in order for those clients to avail themselves of different legal specializations. Of course, "[i]n reviewing factual findings, [w]e do not examine the record to determine whether the [court] could have reached a conclusion other than the one reached." (Internal quotation marks omitted.) Gianetti v. Norwalk Hospital , 304 Conn. 754, 766, 43 A.3d 567 (2012). But where, as here, "the record fails to provide an adequate foundation to support a finding that it was anything other than 'imaginative or speculative' [that an event would have occurred]," we must reject that finding. Commissioner of Transportation v. Towpath Associates , supra, 255 Conn. at 548, 767 A.2d 1169. We therefore reject as unfounded the court's finding that Kolami and Emin were harmed by the respondent in the ways just described. Nevertheless, "[i]n other appeals involving civil matters, this court has observed that an improper finding of fact by a trial court does not automatically warrant a judgment of reversal, but that an appellant must demonstrate that such improper finding was not harmless in light of the court's other findings of fact. The test becomes whether the improper finding undermines appellate confidence in the court's fact-finding process as a whole. This doctrine was set forth in DiNapoli v. Doudera, 28 Conn.App. 108, 112, 609 A.2d 1061 (1992), in which this court, having discussed the clearly erroneous standard of review, stated: 'Where . some of the facts found are clearly erroneous and others are supported by the evidence, we must examine the clearly erroneous findings to see whether they were harmless, not only in isolation, but also taken as a whole. . If, when taken as a whole, they undermine appellate confidence in the court's fact finding process, a new hearing is required.' " State v. Corringham , 155 Conn.App. 830, 843-44, 110 A.3d 535 (2015). Although the court erred in making some of the preceding factual findings as to the harm that befell Kolami and Emin, we conclude, nonetheless, that its decision to suspend the respondent for two years was not manifestly unjust or an abuse of discretion. Statewide Grievance Committee v. Spirer , supra, 247 Conn. at 781, 725 A.2d 948. We so conclude because the court's findings as to the other three ABA factors are adequately supported by the record and weigh heavily against the respondent. See State v. Corringham , supra, 155 Conn.App. at 844, 110 A.3d 535. In regard to the first factor-the nature of the duty violated-the court concluded that the rules that the respondent violated constitute an attorney's "fundamental obligations" toward a client. As to the second factor-the attorney's mental state-the court found that the respondent "was admittedly negligent in her representation of [Christoffersen, Kolami, and Emin], and arguably well aware that she was not acting diligently or promptly or keeping them informed as to the status of their matters." (Emphasis added.) The fourth ABA factor prescribes consideration of enumerated aggravating and mitigating factors. The court concluded in part: "There are several aggravating factors here. The respondent is an experienced member of the bar who has been handling immigration matters since 1982. She is well aware of the vulnerability of clients such as [Kolami] and [Emin], who have limited education and are not fluent in English. The respondent has previously been disciplined for her violation of the Rules of Professional Conduct. The misconduct at issue in this disciplinary proceeding cannot be viewed in isolation from the respondent's previous violations, thus demonstrating a pattern of misconduct. She unreasonably assumed that the Rules of Professional Conduct regarding written fee agreements and client trust accounts did not apply to her practice. The respondent appears to show little remorse for the circumstances of [Kolami] and [Emin], stating only that 'some unfortunate things happened.' When asked by her counsel if she had learned a lesson from the Kolami appeal, she said, 'I will not take an appeal on a case where I wasn't in court below.' She does not acknowledge [Christoffersen's] concern that she would be committing perjury if she applied for adjustment of status. And last, but certainly not least, the respondent inexplicably did not open an IOLTA account until earlier this year, about two months prior to the presentment hearing, despite completing a continuing legal education program in legal ethics in 2012." (Footnotes omitted.) The court found the mitigating factors presented by the respondent to be unpersuasive. The court reasoned: "[The respondent's] 2012 back surgery occurred after the events that gave rise to this disciplinary proceeding. Her reputation with her colleagues and the immigration authorities in Hartford, her commitment to preventing the unlicensed practice of law, [and] her dedication to providing volunteer legal services to victims of domestic violence, while commendable, do not excuse her failure to represent [Christoffersen, Kolami, and Emin] competently and diligently. Immigration law may well be a difficult and complicated area of practice, as the respondent and [another immigration attorney fact witness] testified, but that is irrelevant here. The respondent is charged with violating every attorney's fundamental responsibilities to a client: to represent the client competently and diligently, to keep the client reasonably informed about the status of the matter, to advise the client in writing of the fees and expenses for which the client will be responsible, to communicate with the client in writing regarding the scope of the representation, and to safeguard the client's funds in a client trust account." The court, in imposing the two year suspension, concluded in part: "The [petitioner] recommends in its post-hearing memorandum that the court impose a five year period of suspension as a sanction for the respondent's violation of the Rules of Professional Conduct and Practice Book § 2-27. The respondent argues in her postpresentment brief that a suspension will irreparably harm her practice and her family and deprive the immigration bar community of a productive and caring member. Her clients, many of whom are indigent, will also suffer. The respondent asks that the sanction be limited to additional continuing legal education in ethics and law office management, the requirement that she consult on a quarterly basis with a bookkeeper recommended to her by the Statewide Grievance Committee, and that she regularly consult with another attorney . about best practices; in the alternative, the respondent requests that she be provided a reprimand in addition to the above conditions. She argues that any period of suspension is unnecessary. The court does not agree. "As the [petitioner] points out, conditions have previously been imposed as a sanction on the respondent, apparently to little or no effect. The court finds that a period of suspension is appropriate here." In light of the whole of the court's findings, we conclude that it did not abuse its discretion in imposing a two year suspension on the respondent. As the court found, the respondent's ethical misconduct in the instant case is part of an established pattern. See generally Statewide Grievance Committee v. Shluger , supra, 230 Conn. at 680, 646 A.2d 781 ("[o]n the basis of the serious and repeated nature of the defendant's misconduct, the trial court could reasonably have concluded that he was unfit to practice law and, consequently, that a sanction more severe than a reprimand was necessary. Indeed, the [instant misconduct] occurred after he had already received at least one reprimand, a sanction that, regrettably, proved insufficient to deter the defendant from future wrongdoing."). The court also determined that the respondent was "arguably well aware" that she was not diligently pursuing her clients' cases or apprising them as to the status of those cases. The court noted that the respondent knew that two of those clients-Kolami and Emin-were vulnerable because of their limited education and English skills. Yet, for the better part of a decade, the respondent failed to inform Kolami and Emin that their cases had been dismissed by immigration authorities, despite the fact that the two frequently contacted her to inquire about the status of the cases. "[T]he fiduciary relationship between an attorney and a client requires absolute perfect candor, openness and honesty, and the absence of any concealment or deception." (Internal quotation marks omitted.) Disciplinary Counsel v. Smigelski , 124 Conn.App. 81, 89-90, 4 A.3d 336 (2010), cert. denied, 300 Conn. 906, 12 A.3d 1004, cert. denied, 565 U.S. 818, 132 S.Ct. 101, 181 L.Ed.2d 28 (2011). Finally, the court appeared to take particular note of the respondent's "inexplicabl[e]" failure to properly safeguard her clients' property despite having completed a continuing legal education program in legal ethics in 2012. On the basis of the foregoing findings, we cannot conclude that the court's sanction was an abuse of discretion. The judgment is affirmed. In this opinion the other judges concurred. The respondent represented both Valent Kolami and his wife, Gentiana Kolami, in their appeals to the BIA. Both also filed grievances against the respondent. For purposes of the present appeal, however, we only refer to Valent Kolami. An IOLTA account is "an interest- or dividend-bearing account established by a lawyer or law firm for clients' funds ." Rules of Professional Conduct 1.15 (a) (5). The court confirmed at trial that this statement was correct. An I-797 Notice of Action is "[i]ssued when an application or petition is approved." U.S. Citizenship and Immigration Services, "Form I-797: Types and Functions," available at https://www.uscis.gov/i-797-info (last visited February 24, 2017). The respondent also asserts that expert testimony would have assisted in establishing that her conduct on behalf of the aggrieved clients was in fact the result of considered strategy. Because we view this argument as materially the same as the one just described in the body of this opinion, our resolution of the latter entails resolution of the former. We do not decide whether the court abused its discretion by precluding the expert testimony on this ground. In Connecticut, use of the ABA factors in determining a sanction is permissive, not mandatory. Burton v. Mottolese, supra, 267 Conn. at 55 n.50, 835 A.2d 998. We briefly address the respondent's argument that the court erred in its analysis of the aggravating and mitigating factors. We have reviewed the record, including the trial transcripts and exhibits, and conclude that the court's findings as to the aggravating and mitigating factors are adequately supported by the evidence. We observe that the respondent failed to present any persuasive authority that a suspension of two years, rather than a lesser period, was excessive or disproportionate in light of all of the circumstances of this case.

12501966

Dean HOLLIDAY v. COMMISSIONER OF CORRECTION

Holliday v. Comm'r of Corr.

2018-08-14

AC 39234

867

873

194 A.3d 867

194

West's Atlantic Reporter, Third Series

Connecticut Appellate Court

Connecticut

2021-08-27T20:57:39.405912+00:00

Fastcase

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

Dean HOLLIDAY v. COMMISSIONER OF CORRECTION

Dean HOLLIDAY v. COMMISSIONER OF CORRECTION AC 39234 Appellate Court of Connecticut. Argued May 15, 2018 Officially released August 14, 2018 Nicholas Marolda, assigned counsel, with whom, on the brief, was Temmy Ann Miller, assigned counsel, for the appellant (petitioner). Michael A. Martone, assistant attorney general, with whom, on the brief, were George Jepsen, attorney general, and Terrence M. O'Neill, assistant attorney general, for the appellee (respondent). DiPentima, C.J., and Prescott and Eveleigh, Js.

3030

18693

EVELEIGH, J. The petitioner, Dean Holliday, appeals from the judgment of the habeas court dismissing his petition for a writ of habeas corpus. The petitioner claims that the habeas court erred in dismissing his petition (1) for lack of jurisdiction on the basis of Petaway v. Commissioner of Correction , 160 Conn. App. 727, 125 A.3d 1053 (2015), appeal dismissed, 324 Conn. 912, 153 A.3d 1288 (2017), and (2) without notice or a hearing. For the reasons set forth herein, we disagree and, accordingly, affirm the judgment of the habeas court. The following facts and procedural history are relevant to our resolution of this appeal. In April, 2002, following a jury trial, the petitioner was convicted of attempt to commit robbery in the first degree in violation of General Statutes § 53a-49 and 53a-134 (a) (2), conspiracy to commit robbery in the first degree in violation of General Statutes § 53a-48 and 53a-134 (a) (2), and attempt to commit robbery in the second degree in violation of General Statutes § 53a-49 and 53a-135 (a) (1). The petitioner was sentenced to a total effective term of forty years in prison. This court affirmed the petitioner's conviction on direct appeal. See State v. Holliday , 85 Conn. App. 242, 243, 856 A.2d 1041, cert. denied, 271 Conn. 945, 861 A.2d 1178 (2004). The petitioner remains in the custody of the respondent, the Commissioner of Correction. In 2001, at the time of the petitioner's criminal conduct, and in 2003, when he was convicted, no statutory provision existed that permitted inmates to earn credits toward reducing the length of their sentences. In 2011, while the petitioner was incarcerated, the General Assembly enacted No. 11-51, § 22, of the 2011 Public Acts, later codified in General Statutes § 18-98e. This legislation provided that certain prisoners convicted of crimes committed after October 1, 1994, "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 certain positive behaviors. General Statutes § 18-98e (a). Section 18-98e (a) was enacted in conjunction with a revision to General Statutes § 54-125a (b), which provided, in relevant part, that a person convicted of a violent crime would not be eligible for parole consideration "until such person has served not less than eighty-five percent of the definite sentence imposed less any risk reduction credit earned under the provisions of section 18-98e." (Emphasis added.) General Statutes (Rev. to 2013) § 54-125a (b). The petitioner's crimes qualified as violent under § 54-125a (b). See State v. Holliday , supra, 85 Conn. App. at 247, 856 A.2d 1041. Under the 2011 revisions of § 18-98e and 54-125a (b), the petitioner earned credits toward his discharge date and parole eligibility date. In July, 2013, the General Assembly amended § 54-125a (b), striking the language that allowed credits earned under § 18-98e to reduce the time served by violent offenders before becoming eligible for parole. This revision meant that violent offenders, like the petitioner, were required to serve 85 percent of their definite sentence before becoming eligible for parole. Credits the petitioner had earned toward his discharge date and parole eligibility date were revoked following the revision. On December 24, 2014, the self-represented petitioner filed a petition for a writ of habeas corpus in which he alleged that the 2013 legislative change violated the ex post facto clause of the United States constitution, article one, § 10, by revoking credits he had earned under § 18-98e. In support of his claim, the petitioner cited Teague v. Quarterman , 482 F.3d 769 (5th Cir. 2007), and Cleburne v. Cleburne Living Center , 473 U.S. 432, 105 S.Ct. 3249, 87 L.Ed. 2d 313 (1985), cases that address rights under the due process and equal protection clauses, respectively. On March 29, 2016, the habeas court dismissed the petition on its own motion pursuant to Practice Book § 23-29 (1) for lack of jurisdiction. The habeas court's decision did not analyze the petitioner's due process and equal protection arguments, but, citing this court's opinion in Petaway v. Commissioner of Correction , supra, 160 Conn. App. at 727, 125 A.3d 1053, concluded that the habeas court lacked subject matter jurisdiction. The petitioner filed a petition for certification to appeal on April 15, 2016, which the habeas court granted on April 25, 2016. The petitioner, then represented by appointed counsel, filed a motion for articulation on November 7, 2016, which the court denied on November 21, 2016. This appeal followed. Additional facts and procedural history will be set forth as necessary. I On appeal, the petitioner claims that the habeas court erred in dismissing his habeas petition for lack of subject matter jurisdiction. Specifically, the petitioner argues the court improperly relied on Petaway v. Commissioner of Correction , supra, 160 Conn. App. at 727, 125 A.3d 1053, in dismissing not only his ex post facto claim, but also his due process and equal protection claims. The respondent argues that the habeas court's dismissal for lack of jurisdiction was proper because the habeas court lacked subject matter jurisdiction over the petition on the basis of Petaway , Perez v. Commissioner of Correction , 326 Conn. 357, 163 A.3d 597 (2017), and James E. v. Commissioner of Correction , 326 Conn. 388, 163 A.3d 593 (2017). We agree with the respondent. We first set forth our standard of review and applicable legal principles. "It is well settled that [a] determination regarding a trial court's subject matter jurisdiction is a question of law and, therefore, we employ the plenary standard of review and decide whether the court's conclusions are legally and logically correct and supported by the facts in the record." (Internal quotation marks omitted.) Petaway v. Commissioner of Correction , supra, 160 Conn. App. at 731, 125 A.3d 1053. The habeas court's subject matter jurisdiction is predicated on the deprivation of a recognized liberty interest. See General Statutes § 52-466 (a) (2) ; Santiago v. Commissioner of Correction , 39 Conn. App. 674, 679, 667 A.2d 304 (1995). The petitioner's failure to demonstrate a liberty interest implicated by his loss of risk reduction credit is dispositive of this appeal. Pursuant to Practice Book § 23-29, the habeas court "may, at any time, upon its own motion or upon motion of the respondent, dismiss the petition, or any count thereof, if it determines that . (1) the court lacks jurisdiction ." The only interest implicated by the present petition is credit toward parole eligibility. This court and our Supreme Court have held there is no liberty interest in the application of risk reduction eligibility credit toward an inmate's parole eligibility. Perez v. Commissioner of Correction , supra, 326 Conn. at 372-73, 163 A.3d 597 (no vested liberty interest in risk reduction credit granted under § 18-98e ); Petaway v. Commissioner of Correction , supra, 160 Conn. App. at 734, 125 A.3d at 1057 (no liberty interest in parole eligibility under § 54-125a [b] ). Even if the petitioner had a liberty interest in risk reduction credit and the habeas court had been able to reach the merits of his ex post facto claim, the claim would fail in light of Petaway , which the petitioner recognized as dispositive at oral argument before this court. In Petaway , this court adjudicated nearly identical factual and legal issues to those in the present case. Petaway v. Commissioner of Correction , supra, 160 Conn. App. at 727, 125 A.3d 1053. Petaway involved a habeas petition that alleged that the retroactive application of the 2013 amendment to § 54-125a (b) violated the ex post facto clause. Id., at 729-30, 125 A.3d 1053. The petitioner in that case was convicted of a violent crime before the relevant 2011 enactments and had earned credits toward his parole eligibility, but was unable to apply those credits to his parole eligibility date after the General Assembly made the statute inapplicable to inmates convicted of violent crimes. Id., at 730-31, 125 A.3d 1053. The court in Petaway held that the petitioner had not asserted a colorable ex post facto claim because his only complaint was that favorable legislation, enacted after his conviction, was later repealed, putting him back in the same position as when he was first convicted. Id., at 734, 125 A.3d 1053. The same is true of the petitioner here. Accordingly, we conclude that the habeas court properly dismissed the petitioner's ex post facto claim for lack of subject matter jurisdiction. The petitioner also argues that the habeas court erred in dismissing his petition in its entirety because the failure of his ex post facto claim did not deprive the habeas court of jurisdiction to hear his due process and equal protection claims. We disagree. Our Supreme Court in Perez rejected the argument that the due process and equal protection claims regarding risk reduction credit independently implicate the subject matter jurisdiction of the habeas court, concluding that "[a]n essential predicate to all of these claims is a cognizable liberty interest." Perez v. Commissioner of Correction , supra, 326 Conn. at 370, 163 A.3d 597. Accordingly, because the petitioner has not demonstrated a liberty interest in credits toward parole eligibility, we conclude that the habeas court properly dismissed his due process and equal protection claims. II The petitioner also argues that the habeas court erred in dismissing the petition on its own motion, without notice or a hearing. The respondent argues that the plain meaning of Practice Book § 23-29 (1) and this court's decision in Pentland v. Commissioner of Correction , 176 Conn. App. 779, 169 A.3d 851, cert. denied, 327 Conn. 978, 174 A.3d 800 (2017), show that the habeas court was not required to provide notice or a hearing before dismissing the petition. We agree with the respondent. "[I]t is the established policy of the Connecticut courts to be solicitous of pro se litigants and when it does not interfere with the rights of other parties to construe the rules of practice liberally in favor of the pro se party." (Internal quotation marks omitted.) Ajadi v. Commissioner of Correction , 280 Conn. 514, 549, 911 A.2d 712 (2006). Habeas petitioners generally have "the right to be present at any evidentiary hearing and at any hearing or oral argument on a question of law which may be dispositive of the case ." Practice Book § 23-40. However, Practice Book § 23-40 speaks only to the petitioner's right to be present at an evidentiary hearing when such a hearing is held. Such hearings are not always required, as Practice Book § 23-29 authorizes the court to dismiss a habeas petition on its own motion. As we indicated in Green v. Commissioner of Correction , 184 Conn. App. 76, 83 n.6, 194 A.3d 857 (2018),"we urge the habeas court to exercise this authority [to dispose of a petition without a hearing] sparingly and limit its use to those instances in which it is plain and obvious" that the court lacks jurisdiction over the habeas petition. Notwithstanding this policy, a petitioner's right to a hearing before a habeas court is not absolute. In Pentland v. Commissioner of Correction , supra, 176 Conn. App. at 787, 169 A.3d 851, this court held that the habeas court acted properly in dismissing a habeas petition pursuant to Practice Book § 23-29 without first holding a hearing because it could "be determined from a review of the petition [that] the petitioner had not satisfied his obligation to allege sufficient facts in his pleading" to establish jurisdiction. Here, the petitioner similarly failed to allege sufficient facts to establish jurisdiction. The present petition alleged only the deprivation of risk reduction eligibility credit, which this court and our Supreme Court have held is insufficient to invoke the habeas court's jurisdiction. See Perez v. Commissioner of Correction , supra, 326 Conn. at 357, 163 A.3d 597 ; see also Petaway v. Commissioner of Correction , supra 160 Conn. App. at 727, 125 A.3d 1053. In light of binding precedent establishing the habeas court's lack of subject matter jurisdiction, we find that the habeas court was not obligated to grant the petitioner a hearing before dismissing the petition and acted properly in dismissing the petition. The judgment is affirmed. In this opinion the other judges concurred. In August, 2005, the petitioner's sentence was modified to twenty-five years in prison by the sentence review division. State v. Holliday , Superior Court, judicial district of New Britain, Docket No. CR-011-94794, 2005 WL 2358544, *3 (August 22, 2005). General Statutes (Rev. to 2013) § 54-125a (b) (1) prohibits the use of risk reduction credit toward parole eligibility by "[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 . until such person has served not less than eighty-five per cent of the definite sentence imposed ." A jury found the petitioner guilty of, among other crimes, robbery in the first degree, which involves the "[use] or threaten[ed] . immediate use of physical force upon another person ." (Internal quotation marks omitted.) State v. Holliday , supra, 85 Conn. App. at 247, 856 A.2d 1041. "[D]efinite sentence is the flat maximum to which a defendant is sentenced ." State v. Adam H. , 54 Conn. App. 387, 393, 735 A.2d 839, cert. denied, 251 Conn. 905, 738 A.2d 1091 (1999). The petitioner filed a motion for review of the habeas court's denial of his motion for articulation on December 5, 2016. This court granted the petitioner's motion for review but denied the relief requested therein. Our Supreme Court decided Perez and James E. v. Commissioner of Correction , supra, 326 Conn. at 388, 163 A.3d 593, on the same day. In James E. v. Commissioner of Correction , supra, at 394, 163 A.3d 593, the court stated that the "ex post facto claim raised by the petitioner in the present case is identical to [the ex post facto] claim raised in Perez " and that the petitioners were "identically situated." The claims and facts in these cases are also indistinguishable from those in Petaway. See footnote 4 of this opinion. Whereas the habeas court here dismissed the petition pursuant to Practice Book § 23-29 (1), the court in Petaway v. Commissioner of Correction , supra, 160 Conn. App. at 728, 125 A.3d 1053, declined pursuant to Practice Book § 23-24 to issue a writ of habeas corpus. This distinction does not change the applicability of Petaway to the present case, as both provisions stand for the proposition that a habeas court must have subject matter jurisdiction to grant a habeas petition. We note that two cases alleging an ex post facto violation on the basis of the 2013 amendment to § 54-125a (b) are currently on appeal before our Supreme Court. See Breton v. Commissioner of Correction , SC 19928, and Garner v. Commissioner of Correction , SC 19927. These cases, however, are factually distinguishable from the present case. While the present case involves a petitioner who was convicted before the enactment of the 2011 provisions, thereby defeating the timing requirement for an ex post facto claim, the petitioners in Breton and Warden committed their crimes between the enactment of the 2011 and 2013 amendments. It should be noted that, on June 13, 2018, our Supreme Court granted a petition for certification to appeal this court's decision in Gilchrist v. Commissioner of Correction , 180 Conn. App. 56, 182 A.3d 690 (2018). Certification to appeal was granted only as to the following issue: "Did the Appellate Court properly affirm the habeas court's dismissal of the petition when the habeas court took no action on the petitioner's request for counsel and did not give the petitioner notice and an opportunity to be heard on the court's own motion to dismiss the petition pursuant to Practice Book § 23-29 ?" Gilchrist v. Commissioner of Correction , 329 Conn. 908, 186 A.3d 13 (2018). "[T]he rules of practice were promulgated to create one harmonious and consistent body of law.... If courts can by any fair interpretation find a reasonable field of operation for two [rules of practice] without destroying their evident meaning, it is the duty of the courts to do so, thus reconciling them and according to them concurrent effect." (Citation omitted; internal quotation marks omitted.) Farmington v. Dowling , 22 Conn. App. 564, 566, 577 A.2d 1128, cert. denied, 216 Conn. 816, 580 A.2d 66 (1990). To give effect to both Practice Book § 23-29 and 23-40, the latter section should be read to give a petitioner the right to be present at an evidentiary hearing if one is held, not to give a petitioner the absolute right to an evidentiary hearing itself. The petitioner argues that the habeas court erred in dismissing the petition without a hearing because, in Boyd v. Commissioner of Correction , 157 Conn. App. 122, 126, 115 A.3d 1123 (2015), this court held that dismissal without a hearing is permitted "only under narrowly defined circumstances ." In Boyd , this court held that a petitioner was entitled to a hearing before his petition was dismissed under Practice Book § 23-29 (3), which allows the habeas court to dismiss a petition if "the petition presents the same ground as a prior petition previously denied and fails to state new facts or to proffer new evidence not reasonably available at the time of the prior petition ." The present case is distinguishable in that the habeas court dismissed the petition under a different subdivision of § 23-29. In Boyd v. Commissioner of Correction , supra, at 126, 115 A.3d 1123, the court found dismissal under § 23-29 (3), without a hearing, was improper because the petition "contained a new ground for habeas relief." The petition in the present case failed to implicate a liberty interest, placing it squarely within the grounds for dismissal in § 23-29 (1).

12502727

Enrico VACCARO v. William D'ANGELO, et al.

Vaccaro v. D'Angelo

2018-09-04

AC 40258

443

458

195 A.3d 443

195

West's Atlantic Reporter, Third Series

Connecticut Appellate Court

Connecticut

2021-08-27T20:57:39.404739+00:00

Fastcase

Enrico VACCARO v. William D'ANGELO, et al.

Enrico VACCARO v. William D'ANGELO, et al. AC 40258 Appellate Court of Connecticut. Argued May 22, 2018 Officially released September 4, 2018 Andrew M. McPherson, Bridgeport, for the cross appellant (defendant Stephen Boileau). Sabato P. Fiano, for the appellee (named defendant). Keller, Bright and Beach, Js.

7177

46524

BRIGHT, J. In this interpleader action, the plaintiff-stakeholder, Attorney Enrico Vaccaro, sought an order determining the rights of the defendant-claimant, Stephen Boileau, and the other defendant-claimant, William DeAngelo, Boileau's chiropractic physician, to a portion of the proceeds from a settlement resolving Boileau's personal injury action. Boileau cross appeals from the judgment of the trial court, rendered after a court trial, ordering that $5780 of the contested funds be disbursed to DeAngelo. On appeal, Boileau claims that the court improperly determined that DeAngelo is entitled to any portion of the settlement funds because: (1) DeAngelo failed to comply with the notice requirement of the provider services agreement between DeAngelo and the administrator of Boileau's health plan, and, therefore he may not bill Boileau for services rendered; and (2) the form that Boileau signed acknowledging his financial responsibility for services rendered by DeAngelo is illegal and unenforceable. We affirm the judgment of the trial court. The record reveals the following facts, as found by the trial court or otherwise undisputed, and procedural history. Vaccaro represented Boileau in a personal injury action for injuries sustained in a motor vehicle accident that occurred on August 29, 2011. "Prior to retaining . Vaccaro to represent him, [Boileau] sought medical care and treatment for his injuries from . DeAngelo . d/b/a Neuro-Spinal Center of Connecticut." At that time, "Boileau was an enrollee in Cigna HealthCare [ (Cigna) ], a managed care health plan. Coverage under the plan was secured through his employer.... Boileau never received a summary of his health insurance plan from his employer, and was not familiar with the specific coverages afforded under the applicable policy." At all relevant times, DeAngelo was a participating provider with Cigna and American Specialty Health Networks, Inc. (American). Cigna contracted with American "to provide administrative services and a network of Contracted Chiropractors to meet the health care and customer service needs of Members ." DeAngelo and American entered into a "Provider Services Agreement" (provider agreement), which defined and governed their relationship, and respective rights and obligations. Pursuant to § 2.03.12 of the provider agreement, DeAngelo agreed, inter alia, "to properly notify Members in writing prior to the provision of Chiropractic Services" of their financial responsibilities, "Member Eligibility/Benefits," and "Covered Services." On August 31, 2011, at his initial visit and prior to receiving treatment, Boileau signed a form provided by DeAngelo's office titled "Patient Authorization for Treatment & Financial Policy" (authorization form). The authorization form provides in relevant part: "I fully understand that I am directly responsible to the Neuro-Spinal Center for all professional services submitted and agree to fully satisfy the bill for professional services rendered. I agree to pay you your regular charges for all medical services rendered to me. If so, I agree to pay those charges which are not paid by my health insurance.... Unpaid balances will be subject to an 18 [percent] finance charge per year or 1.5 [percent] per month." DeAngelo's office also had Boileau sign a document titled "Notice of Physician's Lien" (letter of protection) on September 7, 2011, which provides in relevant part: "I hereby authorize and direct you, my attorney/insurance carrier, to pay directly to said doctor such sums as may be due and owing him for medical service rendered me both by reason of this accident and by reason of any other bills that are due his office and to withhold such sums from any settlement, judgment or verdict as may be necessary to adequately protect said doctor. And I hereby further give a [l]ien on my case to said doctor against any and all proceeds of my settlement, judgment or verdict which may be paid to you, my attorney/insurance carrier, or myself, as the result of the injuries for which I have been treated [or] injuries in connection therewith.... "I fully understand that I am directly and fully responsible to said doctor for all medical bills submitted by him for service rendered me and that this agreement is made solely for said doctor's additional protection and in consideration of his awaiting payment. And I further understand that such payment is not contingent on any settlement, judgment or verdict by which I may eventually recover said fee. All unpaid balance[s] will be subject to an 18 [percent] finance charge or 1.5 [percent] per month." The letter of protection was signed by Vaccaro on September 19, 2011. Subsequently, at his thirteenth treatment with DeAngelo, Boileau received an "Insurance Verification Sheet" (verification form), which indicated that his health plan covered only ten chiropractic treatments in each calendar year. At the bottom of the verification form, which Boileau signed on September 23, 2011, is the following: "I _, understand that I have a maximum of _ visits per calendar year. I understand that it is my responsibility to keep record of how many visits have been used. I understand that I will be responsible for any visits over this amount. I have read and understand the above and also understand the insurance company verbal verification is not a guarantee of benefits. Regardless of insurance, I am financially responsible." Although the blank spaces on the verification form were not filled in, the body of the document reflected that Boileau's insurance covered only ten visits per calendar year, and Boileau's signature appears below the quoted provision. Boileau, despite knowing after he signed the verification form that his insurance covered only ten chiropractic office visits, received sixteen additional treatments from DeAngelo between September 23 and November 14, 2011, for a total of twenty-nine visits in 2011. In 2012, Boileau received eleven treatments from DeAngelo. Therefore, Boileau received a total of twenty visits that were not covered by his benefit plan, nineteen in 2011, and one in 2012. In January, 2014, Vaccaro obtained a settlement in Boileau's personal injury action in the amount of $75,000. In a letter addressed to DeAngelo dated January 24, 2014, Vaccaro stated: "With respect to your claim for $6059 from [Boileau] for services rendered, Cigna, his health insurance carrier, has advised that for services rendered by you in 2011 you are only owed $240. With respect to services rendered in 2012, you failed to submit any of these expenses to Cigna for payment although he was clearly covered for [ten] visits. You are at most, therefore, entitled to payment by [Boileau] for an eleventh treatment rendered on May 2, 2012, totaling $245, and for a report fee of $450. Enclosed, therefore, please find my check in the amount of $935 in full and final payment of these expenses. I trust that this concludes this matter." DeAngelo did not accept Vaccaro's payment. "The exchange of correspondence and communications resulted in much acrimony, and . DeAngelo filed a grievance against . Vaccaro as a result." Thereafter, in March, 2015, Vaccaro commenced the underlying interpleader action, pursuant to General Statutes § 52-484, seeking an order determining DeAngelo's and Boileau's rights to the $6059 from Boileau's personal injury settlement, and claiming an allowance for attorney's fees and costs incurred in bringing the action. The trial court, Bellis , J. , rendered an interlocutory judgment of interpleader, and Vaccaro deposited the contested funds with the clerk of the court. Subsequently, DeAngelo and Boileau filed their respective statements of claim. See Practice Book § 23-44. DeAngelo claimed entitlement to a "total amount greater than $6059 . for professional services rendered, interest, attorney's fees and collection costs pursuant to" the authorization form and the letter of protection. Boileau claimed that "DeAngelo's [claim] to the interpleader funds [is] invalid as a matter of law" because it is "based on a contract [that] is illegal, [and] courts cannot enforce it, nor will they enforce any right springing from such [a] contract." According to Boileau, the authorization form is "a consumer contract, as defined by General Statutes [§] 42-151, which is patently illegal and unenforceable because it provides for the recovery of interest on unpaid balances at the rate of 18 [percent] per annum, in violation of General Statutes [§ 37-4 and General Statutes (Rev. to 2011) § 36a-573]; provides for the recovery of attorney's fees in excess of the maximum amount allowed under General Statutes [ (Rev. to 2011) §] 42-150aa; provides for the recovery of sums by a health care provider for medical services covered under a managed care plan in violation of General Statutes [§] 20-7f ; and provides for the recovery of report fees in violation of General Statutes [§] 20-7h, all in violation of the [G]eneral [S]tatutes and public policies of this [s]tate." (Footnote added; internal quotation marks omitted.) The court, Radcliffe , J. , held a trial on October 19, 2016. At trial, Boileau, DeAngelo, and Deborah Lanci, a medical insurance specialist employed by DeAngelo, testified. During direct examination, Boileau testified that he knew that he was entitled to only ten chiropractic visits per calendar year after he signed the insurance verification form on September 23, 2011. Despite acknowledging that fact, Boileau testified that he thought his insurance would cover his treatment, and that "nobody said, oh, you're not going to be covered. Nobody came up to me and said, here, you're done on your ten visits. I didn't hear that part." Lanci testified that DeAngelo's office submitted claims to Boileau's insurance for ten visits in 2011 and ten visits in 2012, but Boileau's insurance did not pay for four of the visits, two in 2011 and two in 2012, due to DeAngelo's failure to submit treatment plans after Boileau's eighth visit in each year. Although Boileau's account statement, which was admitted into evidence at trial, reflected a balance of $6059, DeAngelo's statement of claim alleged that Boileau owed $5239 for treatment. Lanci further testified that DeAngelo's office credited Boileau's account for those four visits, thereby explaining the discrepancy between Boileau's account statement, which reflected a balance of $6059, and DeAngelo's statement of claim, which claimed only $5239 for chiropractic services. On March 6, 2017, the court issued its memorandum of decision. The court found that DeAngelo was entitled to $5780, including $5239 for chiropractic services provided to Boileau, $450 for an "impair rating" report, and $95 for other reports. The court further found that Boileau was entitled to $279, the remaining balance of the interpleader funds. This appeal followed. On appeal, Boileau claims that the court improperly determined that DeAngelo is entitled to any portion of the settlement funds because (1) DeAngelo failed to comply with the provider agreement, and (2) the authorization form, which is the basis for DeAngelo's claim to the settlement funds, is unenforceable, as it is "illegal on its face and is contrary to public policy." As a preliminary matter, we note that the court's memorandum of decision is unclear as to the legal basis for its conclusion as to its award of the settlement funds, and Boileau did not seek articulation of the court's decision. See Practice Book § 61-10. Although it would have been preferable for the trial court to provide its legal analysis in its memorandum of decision, "[w]hen the facts underlying a claim on appeal are not in dispute and that claim is subject to de novo review, the precise legal analysis undertaken by the trial court is not essential to the reviewing court's consideration of the issue on appeal." (Internal quotation marks omitted.) State v. Donald , 325 Conn. 346, 354, 157 A.3d 1134 (2017). In the present case, the court set forth the relevant factual findings, which are not challenged by the parties, in its memorandum of decision, and both of Boileau's claims are subject to de novo review. Accordingly, the record is adequate for review. See id. I Boileau first claims that the court improperly determined that DeAngelo is entitled to a portion of the settlement funds because DeAngelo failed to comply with the notice provision in the provider agreement. Specifically, he argues that DeAngelo, pursuant to the provider agreement, had to provide Boileau with a "Member Billing Acknowledgment" form (acknowledgment form) listing all "Non-Covered Services" prior to treating Boileau. According to Boileau, once he had exhausted his chiropractic benefit under his health plan, DeAngelo had to provide him with an acknowledgment form at each and every subsequent visit before treating him. Thus, he argues that "DeAngelo is precluded from seeking [payment] for [N]on-[C]overed [S]ervices (those services provided after the [tenth] treatment per calendar year) from . Boileau." Both parties agree that the provider agreement is an unambiguous contract subject to plenary review on appeal. "The standard of review for contract interpretation is well established. 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.) Meeker v. Mahon , 167 Conn. App. 627, 632, 143 A.3d 1193 (2016). "In ascertaining the contractual rights and obligations of the parties, we seek to effectuate their intent, which is derived from the language employed in the contract, taking into consideration the circumstances of the parties and the transaction.... We 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." (Internal quotation marks omitted.) Welch v. Stonybrook Gardens Cooperative, Inc. , 158 Conn. App. 185, 197, 118 A.3d 675, cert. denied, 318 Conn. 905, 122 A.3d 634 (2015). "Furthermore, [i]n giving meaning to the language of a contract, we presume that the parties did not intend to create an absurd result." (Internal quotation marks omitted.) South End Plaza Assn., Inc. v. Cote , 52 Conn. App. 374, 378, 727 A.2d 231 (1999). Boileau does not dispute that DeAngelo rendered the treatments; he also does not claim that the charges for those treatments are unreasonable, or that DeAngelo misrepresented Boileau's eligibility and benefits under his health plan. In fact, on appeal, Boileau does not claim that DeAngelo did not notify him that he had exhausted his chiropractic benefit under his health plan. Instead, Boileau asserts that he is a third-party beneficiary of the provider agreement between American and DeAngelo, that DeAngelo breached the provider agreement by failing to provide Boileau with the contractually required acknowledgment form identifying the "Non-Covered Services" prior to rendering treatment, and, as a result, he is contractually obligated to hold Boileau harmless for all charges for those visits in excess of Boileau's annual limit under his health plan. Consequently, the dispositive question is whether DeAngelo breached the provider agreement by failing to utilize the acknowledgment form after Boileau had exhausted his chiropractic benefit under his health plan. We conclude that he did not. Boileau claims that § 2.03.12 of the provider agreement obligated DeAngelo to utilize the acknowledgment form detailing the specific "Non-Covered Services" prior to rendering treatment to Boileau after Boileau had exhausted his coverage under his health plan. Section 2.03.12 provides in relevant part: "Contracted Chiropractor Notification to Members of Their Financial Responsibilities, Member Eligibility/Benefits, and Covered Services. Members need to be notified by their Contracted Chiropractor of their financial responsibility for amounts they may owe Contracted Chiropractor for Chiropractic Services and of their [Member] Eligibility/Benefits and Covered Services prior to the provision of services. Therefore, Contracted Chiropractor agrees to properly notify Members in writing prior to the provision of Chiropractic Services as follows: "(a) Members Determined to be Ineligible. Prior to or on the initial visit before rendering services, Contracted Chiropractor agrees to provide notification to all patients that represent themselves as Members that they must reimburse the Contracted Chiropractor for all rendered services if the Member is later determined to be ineligible with [American] or a Payor. The Initial Health Status form includes a section meeting the notification requirement. "(b) Non-Covered Services. Contracted Chiropractor agrees to have any Member who desires to receive and self-pay for Non-Covered [S]ervices complete and execute the Member Billing Acknowledgment form prior to rendering services to the Member. The Member Billing Acknowledgment form includes a section where the Contracted Chiropractor must identify Non-Covered [S]ervices to be rendered and the amounts for which the Member is agreeing to self-pay the Contracted Chiropractor.... "(d) Accuracy of Member Eligibility/Benefits and Covered Services Information. Contracted Chiropractor agrees to provide current Member Eligibility/Benefits and Covered Services information to Members. [American] shall provide Contracted Chiropractor with Member Eligibility/Benefits and Covered Services information through its provider services department . Contracted Chiropractor must verify Member Eligibility/Benefits and Covered Services initially and periodically during a Member's course of treatment. "Contracted Chiropractor agrees to properly inform Members of their financial responsibilities, Member Eligibility/Benefits and Covered Services. Contracted Chiropractor agrees to use the appropriate written notification process as defined in this Section and the Operations Manual. Contracted Chiropractor agrees and understands that in the absence of the proper notification and appropriate written agreement, the Member shall be held harmless by Contracted Chiropractor, [American] and/or Payor and agrees to waive all charges and not seek payment from Member, [American] and/ or Payor." "Covered Services," "Non-Covered Services" and "Member Eligibility/Benefits" are all defined terms in the provider agreement. "Covered Services" is defined as "Medically Necessary Services for Covered Conditions arranged under a Member Benefit Plan and, pursuant to this Agreement, which Contracted Chiropractor is licensed and qualified to provide and for which Contracted Chiropractor accepts payment from [American] or Payor as payment in full, except for applicable Member Payments." "Non-Covered Services" is defined as "all services other than those defined as Covered Services. Non-Covered Services are not subject to the Payor Summaries and Fee Schedule Amounts listed in Attachments D and E to this Agreement." "Member Eligibility/Benefits" is defined as "information . pertaining to each Member's eligibility, including initial date of eligibility and last date of eligibility and benefits including, but not limited to Member Payments such as co-payments, deductibles and/or co-insurance, annual benefit limits, such as 20, 30, or 40 visits, and remaining annual benefits." Boileau argues that because it is undisputed that DeAngelo did not utilize the acknowledgment form prior to rendering the treatments for which Boileau would be billed directly, as allegedly required by § 2.03.12 (b) of the provider agreement, DeAngelo breached the provider agreement. DeAngelo, however, argues that he complied with § 2.03.12 (d) by providing Boileau with the verification form advising him that his insurance provided coverage for only ten chiropractic visits per calendar year. DeAngelo further argues that § 2.03.12 (b) does not apply once a member has exhausted the benefits under the member's health plan, and "the purpose of the [acknowledgment] form was to avoid confusion in the event that the medical provider rendered specific, individual types of [N]on-[C]overed [S]ervices while simultaneously providing [C]overed [S]ervices within the scope of the subject plan (i.e., within the [ten] covered visits)." We conclude, on the basis of the evidence admitted at trial, that § 2.03.12 (b) applies only to "Non-Covered Services," not to services rendered for members who have exhausted their chiropractic benefit under their health plan. It is readily apparent from the language in both the provider agreement and the acknowledgment form that there is a distinction between services that are not covered under a member's health plan and services that are covered under a health plan, but are subject to plan limits. In particular, the language makes clear the different obligations a contracted chiropractor has depending on whether the provider is supplying information to the member regarding "Non-Covered Services" or supplying information regarding "Member Eligibility/Benefits" and "Covered Services." Section 2.03.12 (b) requires DeAngelo to have a member sign an acknowledgment form before rendering "Non-Covered Services." The definitions of "Covered Services" and "Non-Covered Services" are clear in that they apply to the type of services being provided. Medically necessary services for covered conditions are "Covered Services." By definition, services that are not medically necessary are "Non-Covered Services." Significantly, § 2.03.12 (b) imposes no obligation on the contracted chiropractor regarding "Member Eligibility/ Benefits," which, by definition, includes information regarding the number of visits for which a member has coverage in a given year. Instead, § 2.03.12 (d) sets forth the contracted chiropractor's obligation regarding "Member Eligibility/Benefits" and "Covered Services," which simply requires that the contracted chiropractor provide such information using "the appropriate written notification process as defined in this Section and the Operations Manual." It does not require use of the acknowledgement form, which is required for "Non-Covered Services" in accordance with § 2.03.12 (b). Consequently, the notification requirement in § 2.03.12 (b) would not apply because visits exceeding the member's maximum benefit under the health plan are not "Non-Covered Services" under the provider agreement. This interpretation is consistent with the language in the acknowledgment form providing that "Non-Covered [S]ervices include services such as supplements that are not covered by the member's health plan. Non-Covered [S]ervices may also include services determined by [American] to be maintenance-type services." Those examples of "Non-Covered Services" are not related to a member's eligibility or benefits, and there is no indication that the form would apply to the number of services, in addition to particular types of services that always are not covered under the member's health plan. In addition, the acknowledgment form provides: "I . do hereby acknowledge that a certain portion of my care will not be covered by my . health plan under the terms of my Benefit Plan ." (Emphasis added.) If a member has exhausted coverage under the health plan, then there is no portion of the member's care that will be covered, and it would be illogical to have the member acknowledge that "a certain portion" of the member's care will not be covered. Furthermore, the acknowledgment form provides that DeAngelo may not bill a member "during the course of " a treatment plan approved by American, except for copays, deductibles, or charges for "Non-Covered Services." (Emphasis added.) This further sup-ports our construction of the provider agreement because if a member is not covered for any office visits under the health plan, the member would not be receiving services "during the course of" an approved treatment plan. Thus, the acknowledgment form is required when a member is receiving services that are covered under the health plan, but has elected to receive additional services that are not covered under the health plan. Finally, our conclusion is supported by additional language in the provider agreement. Section 1.07 of the provider agreement provides in relevant part: "Claims Payment Amount. The Claims Payment Amount is the actual amount paid directly and solely by [American] to Contracted Chiropractor and shall be calculated by first deducting from billed charges submitted on a claim any amounts including but not limited to Non-Covered Services, duplicate billed amounts for services, amounts exceeding benefit maximums or limitations of Member Benefit Plans ." (Emphasis added.) Accordingly, "amounts exceeding benefit maximums or limitations" is a distinct category from, and not the same as, "Non-Covered Services," although both types of services are services for which American will not pay the contracted chiropractor. In other words, if a member has exhausted the member's benefit for chiropractic visits, then American will not pay any charges for visits exceeding the member's maximum benefit under the health plan. The provider agreement, however, does not identify such services as "Non-Covered Services" and, therefore, a contracted chiropractor is not obligated to use an acknowledgment form when rendering services that exceed the member's chiropractic benefit limit. Here, after DeAngelo informed Boileau that he had exhausted his chiropractic benefit under his health plan, Boileau was notified in writing as to his financial responsibilities, "Member Eligibility/Benefits" and "Covered Services," as required by § 2.03.12 (d) of the provider agreement. Once DeAngelo notified Boileau that he had exhausted his chiropractic benefit for office visits, DeAngelo satisfied the applicable notification requirement in § 2.03.12 (d), and § 2.03.12 (b) simply does not apply. Any other construction of the provider agreement and the acknowledgment form would lead to the absurd result of having Boileau sign an acknowledgment form for every visit, acknowledging that he will be financially responsible for "a certain portion of " his care, when, in fact, he has already acknowledged that there is no portion of his care that will be covered by his health plan because he exhausted his health plan's chiropractic benefit. We conclude that the parties to the provider agreement did not intend such a result. See South End Plaza Assn., Inc. v. Cote , supra, 52 Conn. App. at 378, 727 A.2d 231 ("[i]n giving meaning to the language of a contract, we presume that the parties did not intend to create an absurd result" [internal quotation marks omitted] ). Consequently, the court properly concluded that DeAngelo is not precluded from billing Boileau for those visits that exceeded Boileau's maximum benefit under his health plan because DeAngelo was not required to have Boileau sign an acknowledgment form prior to each and every one of those visits. II Boileau also claims that the court improperly awarded a portion of the settlement funds to DeAngelo because the authorization form, which is the basis for DeAngelo's claim to the $5780 of the settlement funds, is "illegal on its face and is contrary to public policy." Specifically, Boileau claims that the authorization form violates General Statutes (Rev. to 2011) § 20-7f (b), 14 General Statutes (Rev. to 2011) § 36a-573, and § 42-150aa (b), and, therefore, it is illegal and unenforceable. We disagree. We begin by setting forth our standard of review. "A trial court's decision as to whether a contract is illegal and unenforceable involves a question of law which entails our application of plenary review.... Similarly . the question [of] whether a contract is against public policy is [a] question of law dependent on the circumstances of the particular case ." (Citations omitted; internal quotation marks omitted.) Carriage House I-Enfield Assn., Inc. v. Johnston , 160 Conn. App. 226, 245-46, 124 A.3d 952 (2015). The entirety of Boileau's argument is as follows: "In the present action . § 20-7f(b) provides that it is an unfair billing practice for a healthcare provider to request payment from an enrollee, other than a copayment or deductible, for medical services covered under a 'managed care plan.' . DeAngelo is a healthcare provider as defined in the . General Statutes. The [authorization] form unequivocally establishes that it makes . Boileau responsible for 'all professional services submitted,' that . Boileau agrees 'to fully satisfy the bill for professional services rendered,' that . Boileau agrees to 'pay those charges [that] are not paid by my health insurance.' As a result, the [authorization form] on its face negates . § 20-7f(b), thereby making the [authorization form] illegal and unenforceable. "Furthermore, as previously stated . Lanci, who is . DeAngelo's billing specialist, testified that . DeAngelo, as a practice, never uses the [acknowledgment form] because . DeAngelo never bills for [N]on-[C]overed [S]ervices, thereby further showing that the intent of the [authorization form] is to violate . § 20-7f(b). "As previously stated, the express terms of the [acknowledgment form], which is a consumer contract, [provide] that . Boileau is responsible for all professional services submitted, to fully satisfy the bill for professional services rendered and to pay those charges not paid by health insurance. The [acknowledgment form] on its face violates . § 36a-573 by making . Boileau responsible for an 18 [percent] interest charge. The [authorization form] on its face also violates . § 42-150aa(b), which limits attorney's fees to 15 [percent] of the amount of any judgment [rendered].... DeAngelo claimed 18 [percent] interest per year in the present action." (Footnotes omitted.) We conclude that Boileau has abandoned his claims that the authorization form violates § 36a-573 and 42-150aa(b) as a result of an inadequate brief. "It is well settled that [w]e are not required to review claims that are inadequately briefed.... We consistently have held that [a]nalysis, 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. We do not reverse the judgment of a trial court on the basis of challenges to its rulings that have not been adequately briefed.... The parties may not merely cite a legal principle without analyzing the relationship between the facts of the case and the law cited.... [A]ssignments of error which are merely mentioned but not briefed beyond a statement of the claim will be deemed abandoned and will not be reviewed by this court." (Internal quotation marks omitted.) Nowacki v. Nowacki , 129 Conn. App. 157, 163-64, 20 A.3d 702 (2011). Boileau provides no analysis of the law and does not cite a single case in support of either one of his claims. Specifically, he fails to explain the applicability of § 36a-573 to the facts of this case, which involve a medical services provider imposing a default interest rate on an unpaid bill for services rendered. Furthermore, Boileau fails to explain how a bill for services rendered constitutes a loan within the ambit of the usury statutes, or how a contractual provision providing for the collection of attorney's fees, which are permitted by statute, renders the entire contract illegal or unenforceable. Boileau's conclusory statements are insufficient to avoid abandoning these claims. Accordingly, we decline to review Boileau's claim as it relates to § 36a-573 and 42-150aa(b). We now address Boileau's claim that the authorization form is illegal and against public policy because it violates § 20-7f(b) by providing that Boileau agrees to fully satisfy DeAngelo's bill for professional services rendered. The following legal principles are relevant to our resolution of Boileau's claim. "Although it is well established that parties are free to contract for whatever terms on which they may agree . it is equally well established that contracts that violate public policy are unenforceable." (Internal quotation marks omitted.) Dougan v. Dougan , 301 Conn. 361, 369, 21 A.3d 791 (2011). "As a general rule, a court will [not] lend its assistance in any way toward carrying out the terms of a contract, the inherent purpose of which is to violate the law ." (Emphasis in original; internal quotation marks omitted.) Carriage House I-Enfield Assn., Inc. v. Johnston , supra, 160 Conn. App. at 246, 124 A.3d 952. Nevertheless, "[t]he principle that agreements contrary to public policy are void should be applied with caution and only in cases plainly within the reasons on which that doctrine rests ." (Internal quotation marks omitted.) Dougan v. Dougan , 114 Conn. App. 379, 389, 970 A.2d 131 (2009), aff'd, 301 Conn. 361, 21 A.3d 791 (2011). "Section 20-7f addresses balance billing. Typically, [b]alance billing [occurs] when a provider seeks to collect from [a managed care organization] member the difference between the provider's billed charges for a service and the amount the [managed care organization] paid on that claim.... [M]ost privately insured people are covered by [a managed care organization], which contracts with a network of providers to offer medical services to members. In return, providers agree to deliver services at a negotiated rate that is generally below their usual charges. Providers also agree to hold harmless (i.e., not to balance bill) members for the difference between the contracted rate and their typical billed charge." (Citations omitted; internal quotation marks omitted.) Gianetti v. Rutkin , 142 Conn. App. 641, 650-51, 70 A.3d 104 (2013). Accordingly, § 20-7f(b)"prohibits balance billing for medical services covered under a managed care plan . In a typical balance billing case, the dispute arises after the insurance company has paid less than the full amount billed by the provider." (Emphasis added; internal quotation marks omitted.) Id., at 654-55, 70 A.3d 104. Boileau focuses on the following provision in the authorization form: "I fully understand that I am directly responsible to the Neuro-Spinal Center for all professional services submitted and agree to fully satisfy the bill for professional services rendered. I agree to pay you your regular charges for all medical services rendered to me. If so, I agree to pay those charges which are not paid by my health insurance." According to Boileau, this provision "negates . § 20-7f(b), thereby making the [authorization form] illegal and unenforceable." This claim is meritless. First, the inclusion of the referenced provision does not establish that balance billing is the inherent purpose of the authorization form; see Carriage House I-Enfield Assn., Inc. v. Johnston , supra, 160 Conn. App. at 246, 124 A.3d 952 ; and, Boileau has not identified a single charge billed by DeAngelo that would constitute balance billing. DeAngelo permissibly billed Boileau for his co-payments for each visit that was covered by Boileau's health plan, and DeAngelo's regular and customary charges for each visit that occurred after Boileau's benefits had been exhausted. Second, although Boileau argues that the provision, in accordance with his interpretation, violates § 20-7f, there is another completely plausible interpretation that would not violate the statute and is completely consistent with DeAngelo's obligations under § 2.03.12 (d), namely, that DeAngelo could bill Boileau directly for any charges that are not paid by Boileau's insurance, including copays, deductibles, and charges for services rendered after his benefits were exhausted or that were not covered by the health plan. "[I]f a contract provision has two possible constructions, by one of which the agreement could be held valid and by the other void or illegal, the former is to be preferred." (Internal quotation marks omitted.) Marlborough v. AFSCME, Council 4, Local 818-052 , 309 Conn. 790, 808 n.15, 75 A.3d 15 (2013). Consequently, we reject Boileau's construction of the challenged provision, and we conclude that the authorization form is not illegal on its face. The judgment is affirmed. In this opinion the other judges concurred. DeAngelo was misidentified as "D'Angelo" on the summons, and that misspelling has been retained in the case caption. We, however, use the correct spelling of his name throughout this opinion. Although Vaccaro filed the present appeal on March 22, 2017, and Boileau filed a cross appeal on March 31, 2017, Vaccaro and Boileau jointly submitted a single brief. After oral argument, we sua sponte raised the issue of whether Vaccaro, as a disinterested stakeholder, had standing to pursue the claims raised in the jointly filed brief. On July 5, 2018, we issued an order granting Vaccaro permission to withdraw his appeal or file a supplemental brief giving reasons why his appeal should not be dismissed for lack of standing. Vaccaro withdrew his appeal on July 10, 2018, and, accordingly, only Boileau's cross appeal is before this court. Boileau does not claim that, as a result of providing the verification form on Boileau's thirteenth visit, DeAngelo is precluded from billing for the eleventh and twelfth visits in 2011. General Statutes § 52-484 provides: "Whenever any person has, or is alleged to have, any money or other property in his possession which is claimed by two or more persons, either he, or any of the persons claiming the same, may bring a complaint in equity, in the nature of a bill of interpleader, to any court which by law has equitable jurisdiction of the parties and amount in controversy, making all persons parties who claim to be entitled to or interested in such money or other property. Such court shall hear and determine all questions which may arise in the case, may tax costs at its discretion and, under the rules applicable to an action of interpleader, may allow to one or more of the parties a reasonable sum or sums for counsel fees and disbursements, payable out of such fund or property; but no such allowance shall be made unless it has been claimed by the party in his complaint or answer." "Actions pursuant to § 52-484 involve two distinct parts, the first of which is an interlocutory judgment of interpleader.... An interlocutory judgment of interpleader, which determines whether interpleader lies, traditionally precedes adjudication of the claims." (Internal quotation marks omitted.) Vincent Metro, LLC v. YAH Realty, LLC , 297 Conn. 489, 497, 1 A.3d 1026 (2010). Boileau filed a revised statement of claim on October 17, 2016, which the court accepted as the operative pleading. The authorization form was signed by Boileau in 2011, before the legislature enacted § 20-7h ; see Public Acts 2012, No. 12-14, § 1. The court held a hearing on October 18, 2016, where Cigna appeared as an interested party seeking an order to seal certain documents containing proprietary information. In addition, the parties premarked exhibits and the court provided them the opportunity to offer opening statements. The total amount awarded to DeAngelo should have been $5784. Although we note the arithmetic error, neither party has challenged it. See Guzman v. Yeroz , 167 Conn. App. 420, 422 n.3, 143 A.3d 661, cert. denied, 323 Conn. 923, 150 A.3d 1152 (2016). During oral argument before this court, counsel for DeAngelo stated that he does not dispute that Boileau is a third-party beneficiary of the provider agreement. Because DeAngelo concedes this issue, we will assume without deciding that Boileau is, in fact, a third-party beneficiary of the provider agreement. Section 1.04 of the provider agreement provides in relevant part: "This [provider agreement] between Contracted Chiropractor and [American] includes this Agreement, the Operations Manual, the attachments listed [in this Agreement], and any amendments to such documents.... The attachments . are incorporated by reference herein. Any reference to the 'Agreement' shall include the [American] Operations Manual . and each of the attachments . as amended, unless otherwise specified." The operations manual was not admitted into evidence. The acknowledgement form is not the only written notification process described in § 2.03.12. Section 2.03.12 (a) requires written notification as to the member's financial responsibility for services that are ineligible for reimbursement before any services are provided. It provides that "the Initial Health Status form includes a section meeting the notice requirement." That form was not admitted into evidence. In addition, as noted previously in this opinion, § 2.03.12 (d) refers to the operations manual, also not admitted into evidence, as setting forth the appropriate notification process. The fact that there are different types of notification for different situations further confirms that the acknowledgement form is not intended for any purpose aside from "Non-Covered Services," pursuant to § 2.03.12 (b). Boileau also claims that DeAngelo billed him for massages, which are not covered under his health plan, without having Boileau sign an acknowledgment form. DeAngelo, however, did not bill Boileau for massages that were provided during visits that were covered by Boileau's health plan. DeAngelo only billed Boileau for all services provided during visits that exceeded Boileau's annual limit of ten chiropractic visits. General Statutes (Rev. to 2011) § 36a-573 (a) provides in relevant part: "No person, except as authorized by the provisions of sections 36a-555 to 36a-573, inclusive, shall, directly or indirectly, charge, contract for or receive any interest, charge or consideration greater than twelve per cent per annum upon the loan, use or forbearance of money or credit of the amount or value of . (2) fifteen thousand dollars or less for any such transaction entered into on and after October 1, 1997. The provisions of this section shall apply to any person who, as security for any such loan, use or forbearance of money or credit, makes a pretended purchase of property from any person and permits the owner or pledgor to retain the possession thereof, or who, by any device or pretense of charging for the person's services or otherwise, seeks to obtain a greater compensation than twelve per cent per annum. No loan for which a greater rate of interest or charge than is allowed by the provisions of sections 36a-555 to 36a-573, inclusive, has been contracted for or received, wherever made, shall be enforced in this state, and any person in any way participating therein in this state shall be subject to the provisions of said sections ." Hereinafter, unless otherwise indicated, all references to § 36a-573 in this opinion are to the 2011 revision of the statute. General Statutes § 42-150aa(b) provides: "If a lawsuit in which money damages are claimed is commenced by an attorney who is not a salaried employee of the holder of a contract or lease subject to the provisions of this section, such holder may receive or collect attorney's fees, if not otherwise prohibited by law, of not more than fifteen per cent of the amount of any judgment which is entered." In Stelco Industries, Inc. v. Zander , 3 Conn. App. 306, 308-309, 487 A.2d 574 (1985), this court adopted the rationale of the United States District Court for the District of Connecticut in Scientific Products v. Cyto Medical Laboratory, Inc. , 457 F.Supp. 1373, 1377-78, 1380 (D. Conn. 1978), "wherein the court, after a thorough analysis of this state's usury statute, concluded that 'Connecticut's courts have never expanded the usury statute to include any transaction which was not a loan of money, and, on the basis of what has been considered above, I do not believe that they would do so in this case if it was before them for decision. Furthermore, the fact that the Connecticut statute provides a particularly severe penalty-lenders who violate the statute shall forfeit not only all interest but also all the principal .-is an additional reason for not reading the usury statute more broadly than it is written.' . " 'Both the judicial and legislative treatment of debts arising from the sale of goods on credit clearly indicate that Connecticut adheres to the traditional, historical and analytical views that sales on credit are not equated with loans and that the prohibition of usurious interest applies only to loans of money.' " (Citation omitted.) In the present case, we fail to see how there could be any claim that DeAngelo loaned Boileau money. DeAngelo provided chiropractic services for which Boileau failed to pay. Boileau does not explain how the failure to pay a bill in a timely fashion converts the provision of professional services into a loan of money. Moreover, DeAngelo, in accordance with the letter of protection, agreed to forgo any payment from Boileau until Boileau had settled his personal injury action. Boileau's treatment with DeAngelo concluded on May 3, 2012, and Boileau settled his personal injury action in January, 2014. Neither the authorization form, nor the letter of protection permitted DeAngelo to charge Boileau any amount of interest during that time. Pursuant to the authorization form, Boileau would be charged interest only if he failed to pay his bill on time. Consequently, the 18 percent interest charge appears to be simply a late fee agreed to by the parties. We need not consider whether the late fee is an unenforceable penalty because that issue has not been raised, and, in any event, the court did not award DeAngelo any interest. The salient point though is that Boileau addresses none of these issues in his brief.

12485099

Anda WEYHER v. Harry F. WEYHER III.

Weyher v. Weyher

2016-04-19

No. 37538.

969

979

138 A.3d 969

138

West's Atlantic Reporter, Third Series

Connecticut Appellate Court

Connecticut

2021-08-27T20:57:13.994284+00:00

Fastcase

Anda WEYHER v. Harry F. WEYHER III.

Anda WEYHER v. Harry F. WEYHER III. No. 37538. Appellate Court of Connecticut. Argued Jan. 19, 2016. Decided April 19, 2016. Harry F. Weyher III, self-represented, the appellant (defendant). Gary I. Cohen, Greenwich, with whom, on the brief, was Yakov Pyetranker, for the appellee (plaintiff). GRUENDEL, ALVORD and WEST, Js. The listing of judges reflects their seniority status on this court as of the date of oral argument.

4670

29708

ALVORD, J. The defendant, Harry F. Weyher III, appeals from the trial court's ruling on his postjudgment motion to correct, modify or vacate an arbitration award that divided personal property in the marital estate between him and his former spouse, the plaintiff, Anda Weyher. On appeal, the self-represented defendant claims that the court (1) "erred ab initio in unilaterally ordering binding arbitration [with] respect [to] the division of [the parties'] personal property" in the July 12, 2013 judgment of dissolution, (2) improperly concluded that he failed to prove that the arbitration proceeding was not conducted in accordance with chapter 909 of the General Statutes, as required by General Statutes § 46b-66 (c),2 (3) improperly concluded that he failed to prove that the arbitrator exceeded his authority in the allocation of the assets, and (4) demonstrated bias against him that deprived him of a key witness at the hearing on his motion. We disagree and, accordingly, affirm the judgment of the trial court. The following facts and procedural history are relevant to our review of the defendant's claims. Following a contested trial, the court, S. Richards, J., dissolved the parties' twenty-nine year marriage. There were significant assets in the marital estate. In its memorandum of decision, the court issued orders with respect to, inter alia, the marital residence, alimony, and postsecondary educational support for their daughter. With respect to the parties' personal property, the dissolution judgment provided as follows: "The personal property of the parties consisting of furniture and furnishings shall be divided by agreement between the parties within thirty (30) days from the date hereof. If the parties are not able to agree, then ownership of any disputed assets shall be decided by binding arbitration to be conducted by Roger Grenier or some other independent arbitrator appointed by the court, with the fees therefor to be divided equally between the parties. The plaintiff shall retain her personal jewelry free and clear of any claim by the defendant. The defendant shall retain his grandmother's diamond, his mother's Piaget watch and gold necklace and other inherited paintings, sculptures and antiques free and clear of any claim by the plaintiff." The parties, who were represented by counsel, did not appeal from the dissolution judgment. One month after judgment was rendered, the parties entered into a stipulation agreement that was submitted to and approved by the court, Hon. Stanley Novack, judge trial referee, on August 13, 2013. In paragraph 9 of the parties' stipulation, they agreed to the following: "The parties agree to divide their personal property, household furniture and furnishings as ordered by the court in its Memorandum of Decision. For the avoidance of doubt, it is acknowledged by the parties that items inherited or gifted from their respective families will inure to the benefit of that party." (Emphasis omitted.) On November 12, 2013, the defendant filed a post-judgment motion for contempt and for an order to compel arbitration against the plaintiff, claiming that she "knowingly and willfully violated" the court's orders "by refusing to actively participate with the binding arbitration being conducted by Roger Grenier in order to effectuate the division of the parties' personal property." The parties thereafter proceeded to arbitration conducted by Grenier, and the defendant withdrew his motion for contempt. Grenier issued his arbitration award on January 21, 2014. On February 19, 2014, the defendant, now a self-represented party, filed a motion to correct, modify or vacate the arbitration award. The defendant's primary claim was that the arbitrator exceeded the scope of his authority as set forth in the memorandum of decision and stipulation "by considering and accounting for property already awarded to the defendant by the court and then making an adjustment in the plaintiff's favor...." Specifically, the defendant claimed that he was deprived of his mother's Ebel watch. The defendant's motion acknowledged that the plaintiff had disposed of the watch prior to the arbitration proceeding, and, therefore, he requested that "a new watch of the same or similar value and model be procured by the plaintiff...." The defendant did not argue in his motion that the court's order requiring binding arbitration was void or invalid. A hearing on the defendant's motion, and the plaintiff's opposition to that motion, was held before the court, S. Richards, J., on September 2, 2014. At that time, the defendant raised the issue of the court's authority to order binding arbitration with respect to the parties' personal property in its July 16, 2013 memorandum of decision. The defendant argued: "[T]he court was not empowered to order arbitration. The parties did not agree to have the court delegate its responsibility to an arbitrator. There was no arbitration agreement, and it does require the consent of both parties per Section 46b-66 in family matters in the Connecticut General Statutes." The defendant's second argument was that "the proceedings did not constitute arbitration. There were no established arbitration rules from the outset during, after, implemented at any time during this process. There was no agreement to arbitrate as required by [§] 52-410 of the statutes. There was no arbitration agreement setting forth the conditions and parameters of the arbitration." His final argument was that the "outcome" of the proceeding was "flawed" because the arbitrator's award was contrary to the orders contained in the court's July 16, 2013 memorandum of decision and the August 13, 2013 court-approved stipulation with respect to the Ebel watch. When the court asked the defendant whether he had any evidence regarding the valuation of any of the assets in dispute, including the watch at issue, he responded: "None whatsoever." The plaintiff argued that the balance of the arbitration award was adjusted by the arbitrator to account for the property previously awarded to the defendant. Further, she claimed that the court's order for binding arbitration was set forth in the dissolution judgment, which was never appealed by the defendant. At that time, the defendant was represented by counsel. He could have challenged the judgment or availed himself of other available procedural remedies. Moreover, the plaintiff stated that the defendant had agreed to binding arbitration in the August 13, 2013 court-approved stipulation. Finally, the plaintiff argued that the division of the disputed assets by the arbitrator was proper because the memorandum of decision and the stipulation did not require that the allocation be based on the value of the items. The court issued its decision denying the defendant's motion to correct, modify or vacate the arbitration award on December 19, 2014. The court stated that the signatures on the judgment file and the August 13, 2013 stipulation indicated that "the parties intended to . resolve their differences relating to their personal property by way of binding arbitration." The court further stated that "[a]lthough the defendant's motion alleges numerous claims of error, the defendant's evidence was insufficient to prove that the arbitration award should be vacated or that the arbitrator exceeded his authority." On January 5, 2015, the defendant filed a motion for articulation, requesting further clarification of the court's order. The defendant also filed an appeal from the court's December 19, 2014 order at that time. On June 5, 2015, the court issued a memorandum of decision in response to the defendant's motion for articulation. Again the court referenced the procedural history relating to the parties' stipulation and the defendant's motion to compel the arbitration. The court additionally noted that the defendant failed to challenge the authority of the court to order binding arbitration in his motion to correct, modify or vacate the arbitration award. Nevertheless, the court recognized its failure to obtain the parties' consent to binding arbitration prior to the rendering of the dissolution judgment: "Notwithstanding the foregoing, the court is well aware of the requirements enumerated in Gen[eral] Statutes § 46b-66 that pertain to instances in which the parties have agreed to binding arbitration in an action for dissolution of marriage and surmises that it must have inadvertently ordered binding arbitration in said memorandum of decision, the original one and as corrected, after reviewing the parties' proposed orders, briefs and other voluminous exhibits." With respect to the remainder of the defendant's requests, the court declined to address them and relied on its prior rulings in its December 19, 2014 decision. I We first address the defendant's claim that the "trial court erred ab initio in unilaterally ordering binding arbitration [with] respect [to] the division of personal property" in the July 13, 2013 dissolution judgment, as corrected by the court's July 16, 2013 memorandum of decision. The defendant emphasizes that the court admitted that it "inadvertently" included the order for binding arbitration in the judgment, and he argues that it was "beyond the authority of the court to mandate binding arbitration." See General Statutes § 46b-66 (c). We note that the defendant, who was represented by counsel throughout the dissolution proceedings, advanced no objection whatsoever to the binding arbitration order until the arbitrator issued the arbitration award. In the defendant's proposed orders filed prior to the court's dissolution judgment, the defendant expressly requested the following order: "The parties shall equitably divide their remaining personal property. If the parties are unable to reach agreement regarding such equitable division within thirty (30) days after judgment, the matter will be submitted to a neutral arbitrator for binding arbitration, whose fees shall be paid equally by the parties. The court shall retain jurisdiction to enforce and effectuate this provision." The plaintiff's proposed orders contained a similar request: "The personal property of the parties, consisting of furniture and furnishings, shall be divided by agreement between the parties within 30 days. If they are not able to agree, then ownership of any disputed assets shall be decided by binding arbitration to be conducted by Roger Grenier or some other independent arbitrator appointed by the court, with the fees therefor to be divided equally between the parties." The court's judgment of dissolution incorporated the parties' requested arbitration language from their proposed orders with respect to effectuating the division of their personal property. We also note, as emphasized by the trial court, that the defendant signed the August 13, 2013 stipulation that required the division of the personal property "as ordered by the court...." Furthermore, when the plaintiff initially failed to proceed with arbitration, the defendant promptly filed a motion for contempt against her and sought a court order compelling her to proceed with the arbitration. The record indicates that the defendant voluntarily attended the arbitration and participated in the proceedings. Only after the arbitration award was issued did the defendant claim that the court had no authority to order the binding arbitration, this argument first surfacing at the September 2, 2014 hearing on his motion to correct, modify or vacate the award. Despite the parties' embracing the tool of binding arbitration throughout their dissolution submissions, the defendant is correct that the court failed to comply with § 46b-66 (c) when it included the binding arbitration provision in the dissolution judgment. Section 46b-66 (c) sets forth the procedure to be following by the trial court when the parties in a dissolution proceeding agree to binding arbitration. Any agreement to arbitrate is subject to the provisions of chapter 909 of the General Statutes provided the court makes a thorough inquiry and is satisfied that each party has entered into the agreement voluntarily and without coercion, that the agreement is fair and equitable under the circumstances, and that the agreement does not include issues related to child support, visitation and custody. If the court is satisfied that those requirements have been met, any such arbitration award shall be confirmed, modified or vacated in accordance with the provisions of chapter 909. Chapter 909 of the General Statutes, entitled "Arbitration Proceedings," contains additional requirements, including, inter alia, the need for a written agreement, the meeting of time deadlines, and the procedure for confirming, modifying or vacating an arbitration award. It is undisputed that there was no compliance with § 46b-66 (c) or chapter 909 of the General Statutes. It also is undisputed, however, that the defendant did not appeal from the dissolution judgment that included the court's order for binding arbitration to effectuate the division of the parties' disputed personal property. The defendant first raised the issue of the authority of the court to issue such an order at the September 2, 2014 hearing, which was more than one year after the dissolution judgment was rendered. Unless the court lacked subject matter jurisdiction as claimed by the defendant, he cannot now collaterally attack that judgment. "[D]issolution courts are not vested with the authority to order parties to submit to arbitration absent a voluntary agreement.... Pursuant to . § 46b-66 (c), parties may agree, with the court's permission, to pursue arbitration to resolve certain issues related to their dissolution. A court does not, however, have the authority to order parties to submit such issues to arbitration absent a voluntary arbitration agreement executed between the parties. Arbitration is a creature of contract and without a contractual agreement to arbitrate there can be no arbitration.... [T]he basis for arbitration in a particular case is to be found in the written agreement between the parties.... Parties who have contracted to arbitrate certain matters have no duty to arbitrate other matters which they have not agreed to arbitrate. Nor can the courts, absent a statute, compel the parties to arbitrate those other matters." (Citation omitted; footnote omitted; internal quotation marks omitted.) Barcelo v. Barcelo, 158 Conn.App. 201, 224-25, 118 A.3d 657, cert. denied, 319 Conn. 910, 123 A.3d 882 (2015). Even though the defendant is correct that the court lacked the authority to order binding arbitration in the dissolution judgment, absent an executed agreement by the parties, it does not follow that the court lacked subject matter jurisdiction when it rendered that judgment. "Although the court and the parties repeatedly use the term 'jurisdiction' during the proceedings, we note that the distribution of personal property postdissolution does not implicate the court's subject matter jurisdiction but, rather, its statutory authority." McLoughlin v. McLoughlin, 157 Conn.App. 568, 575-76 n. 5, 118 A.3d 64 (2015). Accordingly, although the court acted improperly when it included the provision requiring binding arbitration, the court did not lack jurisdiction when it rendered its judgment including that provision. See Budrawich v. Budrawich, 156 Conn.App. 628, 649-50, 115 A.3d 39, cert. denied, 317 Conn. 921, 118 A.3d 63 (2015). The time for the defendant to have challenged the statutory authority for the court's order with respect to binding arbitration was when the dissolution judgment with that provision was rendered by the court. The defendant's attempt to raise the issue now is a collateral attack upon the dissolution judgment rendered on July 12, 2013. "Unless a litigant can show an absence of subject matter jurisdiction that makes the prior judgment of a tribunal entirely invalid, he or she must resort to direct proceedings to correct perceived wrongs.... A collateral attack on a judgment is a procedurally impermissible substitute for an appeal." (Internal quotation marks omitted.) Urban Redevelopment Commission v. Katsetos, 86 Conn.App. 236, 244, 860 A.2d 1233 (2004), cert. denied, 272 Conn. 919, 866 A.2d 1289 (2005). The defendant did not exercise his opportunity to appeal that judgment, and there are no facts before us to warrant a conclusion that there has been a miscarriage of justice. Accordingly, the defendant's first claim fails. II The defendant next claims that the court improperly determined that he failed to prove that the arbitration proceeding was not conducted in accordance with chapter 909 of the General Statutes, as required by § 46b-66 (c). The defendant argues that he proved that the award was not timely rendered, that it was not signed by the arbitrator, that the arbitrator failed to state the factual basis for his award, and that the arbitrator failed to file the decision with the clerk of the court. See General Statutes § 52-416 ; Practice Book § 23-64. As previously discussed, the trial court did not enter the binding arbitration order pursuant to § 46b-66, and, accordingly, the arbitration proceedings did not follow the procedures set forth in chapter 909 of the General Statutes. We therefore look to the language of the subject provision in the dissolution judgment to determine whether the court properly denied the defendant's motion to correct, modify or vacate the arbitration award. The court's binding arbitration order simply requires the parties to divide by agreement their personal property consisting of furniture and furnishings within thirty days of the dissolution judgment. If the parties are not able to agree, ownership of any disputed assets is to be decided by binding arbitration to be conducted by Grenier or another independent arbitrator. The defendant presented no evidence to demonstrate that the court's order was not followed. Accordingly, this claim fails. III The defendant next claims that the court improperly concluded that he failed to prove that the arbitrator exceeded his authority in the allocation of the assets. Specifically, the defendant argues that the court had awarded him his mother's Ebel watch in the dissolution judgment, and that the arbitrator failed to consider that order of the court when he issued his arbitration award. The defendant claims that the award "illustrates the unbalanced allocation by the arbitrator of tangible assets due to his consideration of nonallocable assets.... The arbitrator specifically awarded to the plaintiff a diamond watch that the court had expressly awarded to the defendant...." We have reviewed the arbitration award. Grenier's "Personal Property Allocation" is detailed and thorough. The award expressly states that the Ebel watch, which Grenier acknowledged had been allocated to the defendant in the dissolution judgment, had been sold by the plaintiff and no longer was available for distribution. Accordingly, Grenier allocated the watch to the plaintiff and presumably took this allocation into account when he divided the numerous remaining assets. In any event, the defendant did not demonstrate that the personal property allocation was unfair or inequitable. Moreover, it is significant that the court's order did not require that the allocation be based on the value of the disputed items. We therefore conclude that the trial court correctly determined that the defendant failed to prove that Grenier exceeded the scope of his authority in his allocation of the disputed assets. IV The defendant's final claim is that the court demonstrated bias against him that deprived him of a key witness at the hearing on his motion. The following additional facts are necessary to resolve this claim. The defendant, as a self-represented party, decided that he wanted Grenier to testify at the September 2, 2014 hearing on his motion to correct, modify or vacate the arbitration award. The defendant claims that the court required service of the subpoena to Grenier to be made in hand by the marshal. The defendant argues that the court's "more stringent standards of service of process" allowed Grenier to evade being served. Consequently, the defendant claims that he "was deprived of due process owing to the arbitrary, onerous and biased requirements of the court." The defendant does not claim that he raised the issue of judicial bias at any time during the course of the proceedings. He could have requested that the judge recuse herself. "Claims alleging judicial bias should be raised at trial by a motion for disqualification or the claim will be deemed to be waived.... A party's failure to raise a claim of disqualification at trial has been characterized as the functional equivalent of consenting to the judge's presence at trial." (Citation omitted; internal quotation marks omitted.) Wendt v. Wendt, 59 Conn.App. 656, 692, 757 A.2d 1225, cert. denied, 255 Conn. 918, 763 A.2d 1044 (2000). Instead, the defendant waited until after the court rendered its decision on his motion. "Our Supreme Court has criticized the practice whereby an attorney, cognizant of circumstances giving rise to an objection before or during trial, waits until after an unfavorable judgment to raise the issue. We have made it clear that we will not permit parties to anticipate a favorable decision, reserving a right to impeach it or set it aside if it happens to be against them, for a cause which was well known to them before or during the trial." (Internal quotation marks omitted.) Id., at 693, 757 A.2d 1225. Nevertheless, we will address the defendant's claim given the grave nature of his accusation. "Because an accusation of judicial bias or prejudice strikes at the very core of judicial integrity and tends to undermine public confidence in the established judiciary . we . have reviewed unpreserved claims of judicial bias under the plain error doctrine.... Plain error exists only in 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." (Citations omitted; internal quotation marks omitted.) Doody v. Doody, 99 Conn.App. 512, 523, 914 A.2d 1058 (2007). At the beginning of the September 2, 2014 hearing, the court inquired as to the whereabouts of the defendant's witness. The defendant responded that the marshal was unable to serve him personally with the subpoena. The defendant followed that representation with the statement: "I'm prepared to move forward without his testimony to alleviate some of the congestion in your court today." After some discussion relative to the binding arbitration order in the dissolution judgment and the court-approved stipulation, the court returned to the issue of the defendant's witness. The court addressed the defendant: "You'll keep trying to serve the witness that you'd like to call . unless you want to go forward today." The defendant responded: "I'd like to go forward today, Your Honor." Thus, the court itself gave the defendant the option of continuing the matter so he could procure the attendance of his witness. The defendant did not avail himself of that opportunity. At no time during the hearing did the defendant claim that the court had imposed unreasonable requirements for service of process or that the court was biased against him. The record is devoid of any indication that the court was in any way biased against the defendant. We conclude that this claim is totally without merit and is a groundless assault on the integrity of the trial court. The judgment is affirmed. In this opinion the other judges concurred. The court issued a corrected memorandum of decision on July 16, 2013. The corrections do not affect our analysis of the claims in this appeal. General Statutes § 46b-66 (c) provides: "The provisions of chapter 909 shall be applicable to any agreement to arbitrate in an action for dissolution of marriage under this chapter, provided (1) an arbitration pursuant to such an agreement may proceed only after the court has made a thorough inquiry and is satisfied that (A) each party entered into such agreement voluntarily and without coercion, and (B) such agreement is fair and equitable under the circumstances, and (2) such agreement and an arbitration pursuant to such agreement shall not include issues related to child support, visitation and custody. An arbitration award in such action shall be confirmed, modified or vacated in accordance with the provisions of chapter 909." The July 16, 2013 memorandum of decision misidentified the watch as being a Piaget watch, but it is undisputed that it was an Ebel watch. Although the defendant claims that the arbitrator improperly awarded property to the plaintiff that the court previously had awarded to the defendant, the Ebel watch is the only property identified by the defendant in the pleadings and transcript of the September 2, 2014 hearing as being improperly awarded by the arbitrator to the plaintiff. It was clear at the September 2, 2014 hearing that the defendant's primary concern was the disposition of the Ebel watch: "But, at minimum, I want that watch replaced. It has become a matter of principle. I don't like coming here four times, but it's that important to me. And that concludes my remarks." The plaintiff argues that the defendant waived this claim by his conduct before the trial court. "[W]aiver is [t]he voluntary relinquishment or abandonment-express or implied-of a legal right or notice.... In determining waiver, the conduct of the parties is of great importance.... When a party consents to or expresses satisfaction with an issue at trial, claims arising from that issue are deemed waived and may not be reviewed on appeal." (Internal quotation marks omitted.) O'Hara v. Mackie, 151 Conn.App. 515, 522, 97 A.3d 507 (2014). We do not address the plaintiff's claim of waiver because the defendant argues that the court had no jurisdiction to enter the binding arbitration order. Our Supreme Court recently has restated the well settled rule that "[t]he 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.) Keller v. Beckenstein, 305 Conn. 523, 531-32, 46 A.3d 102 (2012). "[A]lthough related, the court's authority to act pursuant to a statute is different from its subject matter jurisdiction. The power of the court to hear and determine, which is implicit in jurisdiction, is not to be confused with the way in which that power must be exercised in order to comply with the terms of the statute." (Internal quotation marks omitted.) In re Jose B., 303 Conn. 569, 573-74, 34 A.3d 975 (2012). Even if we were to assume arguendo that the court lacked subject matter jurisdiction at the time it included the order for binding arbitration in the dissolution judgment, we would conclude that consideration of the defendant's claim is not warranted under the facts and circumstances of this case. "It often is stated that a challenge to subject matter jurisdiction can be raised at any time and that [o]nce the question of lack of jurisdiction of a court is raised, [it] must be disposed of no matter in what form it is presented . and the court must fully resolve it before proceeding with the case.... "Our Supreme Court, however, has stated that there are boundaries to challenges concerning the issue of subject matter jurisdiction. As we have only recently observed . [t]he modern law of civil procedure suggests that 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." (Citations omitted; emphasis omitted; internal quotation marks omitted.) Urban Redevelopment Commission v. Katsetos, supra, 86 Conn.App. at 240-41, 860 A.2d 1233. "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)...." (Citations omitted; internal quotation marks omitted.) Morris v. Irwin, 4 Conn.App. 431, 434, 494 A.2d 626 (1985).

12485084

STATE of Connecticut v. Stephen M. SABATO.

State v. Sabato

2016-06-28

No. 19406; No. 19407.

895

907

138 A.3d 895

138

West's Atlantic Reporter, Third Series

Connecticut Supreme Court

Connecticut

2021-08-27T20:57:13.994284+00:00

Fastcase

STATE of Connecticut v. Stephen M. SABATO.

STATE of Connecticut v. Stephen M. SABATO. No. 19406 No. 19407. Supreme Court of Connecticut. Argued Dec. 8, 2015. Decided June 28, 2016. Jacob L. McChesney, special deputy assistant state's attorney, with whom, on the brief, were Stephen J. Sedensky III, state's attorney, and Sean P. McGuinness, assistant state's attorney, for the appellant in Docket No. SC 19406 and the appellee in Docket No. SC 19407 (state). Glenn W. Falk, Madison, assigned counsel, with whom, on the brief, was Victoria R. Pasculli, law student intern, for the appellee in Docket No. SC 19406 and the appellant in Docket No. SC 19407 (defendant). ROGERS, C.J., and PALMER, ZARELLA, EVELEIGH, McDONALD, ESPINOSA and ROBINSON, Js.

6284

38466

PALMER, J. A jury found the defendant, Stephen M. Sabato, guilty of attempt to interfere with an officer in violation of General Statutes § 53a-167a (a) and 53a-49 (a)(2), and intimidating a witness in violation of General Statutes § 53a-151a (a)(1). The defendant's conviction of attempt to interfere with an officer was predicated on a text message that the defendant had sent to a friend instructing him not to cooperate with police officers who were investigating the defendant's involvement in the theft of a cell phone; the conviction of intimidating a witness was predicated on a series of threatening messages that the defendant had sent to the same friend through Facebook, an online social networking service, after learning that he had cooperated with the police about the cell phone theft. The Appellate Court affirmed the defendant's conviction of intimidating a witness notwithstanding the defendant's claim that the evidence was insufficient to support his conviction of that offense. State v. Sabato, 152 Conn.App. 590, 597, 600, 98 A.3d 910 (2014). The Appellate Court reversed the defendant's conviction of attempt to interfere with an officer, however, after concluding that, under State v. Williams, 205 Conn. 456, 534 A.2d 230 (1987), fighting words are the only form of speech proscribed by § 53a-167a, and the defendant's text message contained no such language. State v. Sabato, supra, at 595-96, 600, 102 A.3d 1113. We granted the state's petition for certification to appeal on three issues, one of which is whether this court should "modify State v. Williams, [supra, 205 Conn. 456, 534 A.2d 230 ], to proscribe not only fighting words, but also true threats and other categories of unprotected speech...." (Footnote added; internal quotation marks omitted.) State v. Sabato, 314 Conn. 938, 102 A.3d 1114 (2014). We granted the defendant's petition for certification to appeal, limited to the issue of whether the Appellate Court properly determined that there was sufficient evidence to convict him of intimidating a witness. State v. Sabato, 314 Conn. 938, 938-39, 102 A.3d 1113 (2014). We conclude that the state is precluded from arguing that the defendant's text message constituted a true threat because the state never pursued such a theory of guilt at trial. See, e.g., Cole v. Arkansas, 333 U.S. 196, 200, 68 S.Ct. 514, 92 L.Ed. 644 (1948) ("[t]o sustain a conviction on grounds not charged in the information and which the jury had no opportunity to pass [on], deprives [a defendant] of a fair trial and a trial by jury, and denies [him] that due process of law guaranteed by the [fourteenth] [a]mendment to the United States [c]onstitution" [internal quotation marks omitted] ). The state argued, rather, that the defendant committed the crime of attempt to interfere with an officer merely by asking his friend not to give a statement to the police, expression that the state acknowledges is constitutionally protected and, therefore, outside the purview of § 53a-167a (a). Indeed, because the state never argued that the defendant's text message was a true threat, the trial court did not instruct the jury on the definition of such a threat, as it would have been constitutionally required to do if the state had made such an argument. See, e.g., State v. Moulton, 310 Conn. 337, 362-63, 78 A.3d 55 (2013) ("to ensure that a prosecution . does not run afoul of the first amendment, the court must instruct the jury on the difference between protected and unprotected speech whenever the state relies on the content of a communication as substantive evidence of a [crime]"). With respect to the defendant's appeal, we conclude that the evidence supported his conviction of intimidating a witness. Accordingly, we affirm the judgment of the Appellate Court. The opinion of the Appellate Court sets forth the following facts, which the jury reasonably could have found. "On November 4, 2011, Jazmyn Lopez-Gay, accompanied by the defendant and other friends, visited a nightclub in [the city of] Danbury. While at the nightclub, her cell phone was stolen. The following day, she used an application on her computer to track the cell phone's location that indicated that it was near the Danbury [Fair] [M]all [mall]. She then called the Danbury police, who went to look for the cell phone but were unable to find it. That same day, November 5, 2011, the defendant called Ian Mason, an acquaintance, and asked him to pick him up and drive him to the . mall. During that trip, the defendant sold Mason the cell phone. Because the cell phone was password protected, Mason was unable to access its functions or its contents. Seeking to gain access, Mason contacted Michael Barbour, a friend who used to perform work servicing cell phones, and brought the cell phone to his home in [the town of] Newtown. "Meanwhile, occurring parallel to these events, Lopez-Gay again used the tracking application on her computer, which indicated that her cell phone was located at Barbour's home.... Lopez-Gay then called the Newtown Police Department, [which] sent . [O]fficer Michael McGowan to that location. Once there, McGowan spoke with Mason, who relinquished the cell phone. "Later that night, Mason went to the Newtown Police Department. He was questioned by a police officer and eventually provided a sworn, written statement recounting how he came to possess the cell phone. Around this time, Mason sent a text message to the defendant telling him that he was at the police station. In response, the defendant sent a text message to Mason telling him not to write a statement and to 'keep [his] mouth shut.' The message scared Mason and caused him to hesitate before making his statement. "At some point, the defendant discovered that Mason had made a statement to the police. On November 12, 2011, the defendant sent Mason a series of threatening Facebook messages. The messages shared similar content. In one message, the defendant wrote: 'U wrote a statement regardless. Hearsay is nothing they can't arrest u unless they have a statement and that's what u did u wrote a fucking statement.... I thought we were straight and u wouldn't be dumb enough to write a statement after telling u that day what we did to the last snitch. Ur a snitch kid that's what it comes down to and ur gonna get treated like a snitch u wrote that statement u best be ready for the shit u got urself into. U think it's a fuckin game and all this is fine and [we're] gonna be cool cause u got scared when the cops pressed u and u folded like every other snitch when they had NOTHING on either of us. U fucked up I'd watch out if I were u my boys are real pissed at u for this knowing I'm already in enough shit [as] it is. Don't worry about me worry about them period.' "The defendant was charged with larceny in the fifth degree, attempt to interfere with an officer, and intimidating a witness." (Footnote omitted.) State v. Sabato, supra, 152 Conn.App. at 592-94, 98 A.3d 910. The charge alleging that the defendant had attempted to interfere with an officer was predicated solely on the November 5, 2011 text message that the defendant had sent to Mason instructing him not to give a statement to the police. The charge alleging that the defendant had intimidated a witness was based on the November 12, 2011 Facebook messages that he sent to Mason after he learned that Mason had given a statement to the police. Although the Facebook messages were admitted into evidence, the text message was not. The assistant state's attorney (prosecutor) questioned Mason about the contents of the text message, however, during the following colloquy: "Q. . After you texted the defendant and told him that you were at the police station, what did he respond with? "A. He asked me not to write a statement. "Q. Did he tell you to keep your mouth shut? "A. Yes." Thereafter, during closing arguments, the prosecutor, in addressing the charge of attempt to interfere with an officer, argued that, when Mason "[went] down to the police station, [he] . indicates to the defendant that he is . there and . they have some sort of conversation, through text message, and the defendant indicates to him, you know, don't give a statement to [the] police." The prosecutor then explained that, in order to find the defendant guilty of attempt to interfere with an officer, the jury must find that, "when the defendant sent those text messages to . Mason, he was attempting to hinder [the] investigation [by telling Mason], 'don't cooperate with the police....' [T]hat's a substantial step; he didn't complete it, but he took that step. He is guilty of attempt to interfere with an officer." The prosecutor further argued that "the defendant is charged with attempted interference; he's not charged with interfering, and this is important because no one in this courtroom, especially me, is going to claim that the defendant was successful in his attempt to interfere with this investigation. In fact, he was unsuccessful, which led to the Facebook messages, which I'll be getting to a little bit later...." With respect to the charge of intimidating a witness, the prosecutor argued that, to find the defendant guilty of that offense, the jury must find that the defendant believed that an official criminal proceeding was about to be instituted and that he threatened Mason with physical harm in order to prevent him from testifying in that proceeding. The prosecutor argued that the defendant's Facebook messages established both elements of this offense because they demonstrated that the defendant was aware that a criminal proceeding was pending or about to be instituted and that he threatened Mason with physical harm to prevent him from testifying in that proceeding. Subsequently, the jury found the defendant guilty of attempt to interfere with an officer and intimidating a witness. The court thereafter rendered judgment in accordance with the jury's verdict and sentenced the defendant to one year incarceration on the interference charge and six years incarceration, execution suspended after three years, followed by five years of probation, on the intimidation charge. The sentences were to be served consecutively for a total effective sentence of seven years incarceration, suspended after four years, and five years of probation. State v. Sabato, supra, 152 Conn.App. at 594, 98 A.3d 910. The defendant appealed from the trial court's judgment to the Appellate Court, claiming, inter alia, "that § 53a-167a does not proscribe physical or verbal conduct directed against a third party, and thus . there was insufficient evidence to establish his guilt [under that statute] because his conduct was directed against Mason, and not a specific, identifiable police officer." Id., at 595, 98 A.3d 910. The defendant further argued that applying § 53a-167a to conduct directed at Mason, which occurred outside the presence of a police officer, would render the statute unconstitutionally void for vagueness. Id. Finally, the defendant argued that there was insufficient evidence to convict him of intimidating a witness because the Facebook messages "did not constitute proof beyond a reasonable doubt that he intended to influence, delay or prevent Mason from testifying in an official proceeding within the meaning of § 53a-151a." Id., at 597, 98 A.3d 910. Following oral argument in the Appellate Court, that court, sua sponte, ordered the parties to file simultaneous supplemental briefs "addressing the applicability, if any, of the following language in State v. Williams, [supra, 205 Conn. at 473, 534 A.2d 230 ] to the factual circumstances of this case: To avoid the risk of constitutional infirmity, we construe § 53a-167a to proscribe only physical conduct and fighting words that by their very utterance inflict injury or tend to incite an immediate breach of the peace." (Internal quotation marks omitted.) The Appellate Court thereafter concluded that the evidence was insufficient to convict the defendant of attempt to interfere with an officer because the state's long form information charged the defendant with violating § 53a-167a and 53a-49 solely on the basis of the defendant's text message, and it was undisputed that that message contained no language that reasonably could be construed as fighting words. State v. Sabato, supra, 152 Conn.App. at 596, 98 A.3d 910. In light of that determination, the Appellate Court did not reach the defendant's claim that there was insufficient evidence to convict him of attempting to interfere with an officer because § 53a-167a does not proscribe conduct directed at someone who is not an officer. The Appellate Court, however, rejected the defendant's claim that there was insufficient evidence to convict him of intimidating a witness. The court concluded that the November 12, 2011 Facebook messages were more than sufficient to sustain a finding that the defendant believed that the police were preparing to charge him with the theft of the cell phone, that he believed that Mason would be called to testify at the defendant's criminal trial, and that he threatened Mason to prevent him from testifying in that proceeding. See id., at 598-99, 98 A.3d 910. On appeal to this court following our granting of certification, the state argues, inter alia, that the Appellate Court incorrectly interpreted § 53a-167a as excluding from the statute's purview all forms of unprotected speech except fighting words. In the alternative, the state asks this court to "modify Williams ' gloss to allow § 53a-167a to proscribe all forms of unprotected verbal conduct, including 'true threats'...." In his appeal, the defendant claims that the Appellate Court incorrectly concluded that the evidence supported his conviction of intimidating a witness because the state failed to present evidence that the defendant believed that an official proceeding was about to be instituted or that he had a specific intent to influence, delay or prevent Mason's testimony at such a proceeding when he sent him the Facebook messages. We address each appeal in turn. I We first address the state's contention that the Appellate Court incorrectly concluded that § 53a-167a does not proscribe true threats or, alternatively, that this court should expand Williams ' gloss to encompass such threats. The state also argues that, if this court concludes that § 53a-167a proscribes true threats, the evidence was sufficient to convict the defendant of attempt to interfere with an officer because the jury reasonably could have found that the defendant's text message, when viewed in light of the defendant's Facebook messages and certain other evidence, constituted a serious expression of an intent to physically harm Mason if he gave a statement to the police. The defendant contends, inter alia, that the state is attempting to salvage a conviction on the basis of a theory of guilt that was not alleged and was never presented to the jury, in violation of the defendant's right to due process of law. Specifically, the defendant argues that, because the state did not proceed under a theory that the defendant interfered with the police by threatening Mason with physical harm if he gave a statement to them, this court cannot evaluate the sufficiency of the evidence on the basis of such a theory. The state responds that its theory of guilt has always been "that the defendant attempted to interfere with police questioning of Mason by sending Mason a text message that was intended to frighten Mason out of speaking with the police," and, therefore, the defendant's contention that it has changed its theory of guilt on appeal is without merit. We agree with the defendant. The following principles guide our analysis of the state's claim. Section 53a-167a (a) provides in relevant part that "[a] person is guilty of interfering with an officer when such person obstructs, resists, hinders or endangers any peace officer . in the performance of such peace officer's . duties." We previously have interpreted "§ 53a-167a to cover some acts of verbal resistance as well as acts of physical resistance. Although the statute does not explicitly define the nature of the acts that fall within its ambit, 'resistance,' as commonly understood, encompasses both verbal and physical conduct.... The inclusion of verbal conduct does not, per se, leave the statute so open-ended that it lends itself to arbitrary enforcement. The statute's requirement of intent limits its application to verbal conduct intended to interfere with a police officer and excludes situations in which a defendant merely questions a police officer's authority or protests his or her action." (Citation omitted.) State v. Williams, supra, 205 Conn. at 471-72, 534 A.2d 230. Noting, however, that "this court has the power to construe state statutes narrowly to comport with the constitutional right of free speech" and "[t]o avoid the risk of constitutional infirmity"; id., at 473, 534 A.2d 230 ; the court in Williams "construe [d] § 53a-167a to proscribe only physical conduct and fighting words that by their very utterance inflict injury or tend to incite an immediate breach of the peace." (Internal quotation marks omitted.) Id. Such a construction, we explained, "preserves the statute's purpose to proscribe 'core criminal conduct' that is not constitutionally protected." Id., at 474, 534 A.2d 230. "[I]n accordance with the purpose underlying this judicial gloss, a defendant whose alleged threats form the basis of a prosecution under any provision of our Penal Code . is entitled to an instruction that he could be convicted as charged only if his statements . constituted a true threat, that is, a threat that would be viewed by a reasonable person as one that would be understood by the person against whom it was directed as a serious expression of an intent to harm or assault, and not as mere puffery, bluster, jest or hyperbole." (Internal quotation marks omitted.) State v. Moulton, supra, 310 Conn. at 367-68, 78 A.3d 55. "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 assume that the fact finder is free to consider all of the evidence adduced at trial in evaluating the defendant's culpability, and presumably does so, regardless of whether the evidence is relied on by the attorneys.... When the state advances a specific theory of the case at trial, however, sufficiency of the evidence principles cannot be applied in a vacuum. Rather, they must be considered in conjunction with an equally important doctrine, namely, that the state cannot change the theory of the case on appeal.... "The theory of the case doctrine is rooted in principles of due process of law.... In Dunn [v. United States, 442 U.S. 100, 99 S.Ct. 2190, 60 L.Ed.2d 743 1979 ) ], the United States Supreme Court explained: To uphold a conviction on a charge that was neither alleged in an indictment nor presented to a jury at trial offends the most basic notions of due process. Few constitutional principles are more firmly established than a defendant's right to be heard on the specific charges of which he is accused.... [A]ppellate courts are not free to revise the basis on which a defendant is convicted simply because the same result would likely obtain on retrial.... "[I]n order for any appellate theory to withstand scrutiny under Dunn, it must be shown to be not merely before the jury due to an incidental reference, but as part of a coherent theory of guilt that, upon [review of] the principal stages of trial, can be characterized as having been presented in a focused or otherwise cognizable sense.... Thus . we must analyze the evidence adduced at trial to determine whether, when considered in light of the state's theory of guilt at trial, the state presented sufficient evidence...." (Citations omitted; internal quotation marks omitted.) State v. Carter, 317 Conn. 845, 853-54, 120 A.3d 1229 (2015). As we previously indicated, the state denies that its theory of guilt on appeal is different from what it was at trial. The state asserts that, although the prosecutor maintained in his closing argument that the defendant committed the crime of attempt to interfere with an officer by instructing Mason, via text message, not to cooperate with the police, "[t]his one statement . does not constitute an exclusive theory of guilt disavowing the circumstances surrounding the text messages that demonstrated the true threatening nature of the text message and explained Mason's intense fearful response to it." The state also contends that, because the prosecutor referred to Mason's fear and one of the defendant's threatening Facebook messages while discussing the interference charge, he "[implicitly] presented [the] theory that the defendant's attempt to interfere was based on his attempt to frighten Mason out of providing a statement to the police." The state's contention is without merit. A review of the record reveals that, although the prosecutor made reference to Mason's fear and one of the Facebook messages in his closing argument, both references were made in the context of rebutting defense counsel's argument that the state had failed to prove that it was the defendant and not someone else who sent the November 5, 2011 text message to Mason, not to demonstrate that the text message was intended to communicate a serious expression of an intent to harm Mason if he cooperated with the police. Specifically, the prosecutor argued: "[A]s we're thinking about credibility . Mason told you that he was receiving these text messages [from the defendant] and that is consistent with what the officers told you, that he was receiving texts and that he was, in fact, frightened.... And, also, let's go back to the Facebook messages, as [they relate] to this charge, referring to the Facebook message that this defendant sent . on November 12, 2011, [telling Mason] 'never write a statement, ever, I talked with you about that that day'.... And, so, [we have] . consciousness of guilt. This defendant said, 'I told you that day not to write a statement.' Why is that important? Because . Mason told you he was receiving those text messages. Ladies and gentlemen, that is the equivalent of a confession to attempt to interfere with an officer." The prosecutor's explanation as to why the Facebook messages were relevant to the interference charge is consistent with his response, earlier in the trial, when asked by the court whether the Facebook messages were being offered solely in relation to the larceny and intimidation charges. The prosecutor responded that they were also relevant to the interference charge because, in one of the messages, the defendant "basically admits to sending the text and telling [Mason] not to write a statement...." At no time did the prosecutor suggest that the Facebook messages-or any other evidence for that matter-were relevant to the interference charge because they helped to prove that the defendant's November 5, 2011 text message, although neutral on its face, was intended to communicate a serious expression of an intent to harm Mason if he cooperated with the police. Cf. State v. Robert H., 273 Conn. 56, 82-85, 866 A.2d 1255 (2005) (under theory of case doctrine, when state did not present sexual act by defendant as culpable conduct at trial, state could not rely on that act on appeal to support jury's verdict in response to sufficiency challenge). Indeed, the prosecutor never uttered the words "threat" or "threatening" in relation to the text message, even though, as the state acknowledges, under a true threat theory of guilt, the state bore the burden of establishing beyond a reasonable doubt that the text communicated such a threat. See, e.g., State v. Krijger, 313 Conn. 434, 458, 97 A.3d 946 (2014) ("[When] a communication contains language [that] is equally susceptible of two interpretations, one threatening, and the other nonthreatening, the government carries the burden of presenting evidence serving to remove that ambiguity. [In the absence of] such proof, the trial court must direct a verdict of acquittal." [Internal quotation marks omitted.] ). Rather, as we previously indicated, the prosecutor referred to the November 5, 2011 text message exchange between Mason and the defendant as "some sort of conversation" in which "the defendant indicates to [Mason], you know, don't give a statement to [the] police." According to the prosecutor, it was that statement-"don't give a statement to [the] police"-that constituted the actus reus of the offense. As we have explained, however, and as the state concedes, § 53a-167a does not proscribe such verbal conduct, and, therefore, the defendant's conviction under that statute cannot stand. Our determination that the state did not pursue a theory of guilt predicated on threatening language is strongly reinforced by the fact that the trial court did not instruct the jury on the true threat doctrine. Of course, the trial court never gave such an instruction because the state never claimed that the defendant's text message constituted a true threat. A true threat instruction is required, however, in any case in which the defendant's threatening speech forms the basis of the prosecution because only a true threat may be prosecuted under the first amendment. E.g., State v. Moulton, supra, 310 Conn. at 367-68, 78 A.3d 55 ("a defendant whose alleged threats form the basis of a prosecution under any provision of our Penal Code . is entitled [under the first amendment] to an instruction that he could be convicted as charged only if his statements . constituted a true threat" [internal quotation marks omitted] ). Accordingly, and for the reasons previously set forth in this opinion, the state cannot prevail on its claim that the evidence was sufficient to convict the defendant of attempt to interfere with an officer based on the theory that the defendant's November 5, 2011 text message constituted a true threat. II We next address the defendant's appeal, in which he claims that the Appellate Court incorrectly determined that the evidence was sufficient to convict him of intimidating a witness in violation of § 53a-151a (a). The defendant argues that, although the evidence supported a finding that he threatened Mason for "snitch[ing]," it did not support a finding that he believed that an official proceeding was imminent when he did so, or that his intention was to prevent Mason's testimony in such a proceeding. We disagree. Section 53a-151a (a) provides in relevant part: "A person is guilty of intimidating a witness when, believing that an official proceeding is pending or about to be instituted, such person uses, attempts to use or threatens the use of physical force against a witness or another person with intent to (1) influence, delay or prevent the testimony of the witness in the official proceeding...." General Statutes § 53a-146 (6) defines "witness" as "any person summoned, or who may be summoned, to give testimony in an official proceeding." In State v. Ortiz, 312 Conn. 551, 93 A.3d 1128 (2014), this court explained that the phrase "believing that an official proceeding is pending or about to be instituted," as used in General Statutes § 53a-151 (a), the witness tampering statute, is satisfied "as long as the defendant believes that an official proceeding will probably occur, [and] it does not matter whether an official proceeding is actually pending or is about to be instituted." (Emphasis omitted.) State v. Ortiz, supra, at 569, 93 A.3d 1128. In light of the close relationship between § 53a-151 (a) and 53a-151a (a), it is appropriate to give the same phrase in each statute the same meaning. See, e.g., State v. Grant, 294 Conn. 151, 160, 982 A.2d 169 (2009) ("ordinarily, the same or similar language in the same statutory scheme will be given the same meaning"). Applying the foregoing definitions to the present facts, we agree with the Appellate Court that the defendant's November 12, 2011 Facebook messages amply supported a finding that the defendant believed that an official proceeding would probably occur and that Mason would probably be summoned to testify at that proceeding. As the Appellate Court explained, "[i]n one Facebook message, the defendant acknowledged that the police were 'getting warrants' and 'building a case' against him. In a different message, the defendant wrote, 'I'll eat the charge....' In yet another message, the defendant told Mason that he was 'already in enough shit [as] it is.' From these statements [alone], the jury reasonably could have inferred that the defendant believed that an official proceeding probably would be instituted." State v. Sabato, supra, 152 Conn.App. at 598, 98 A.3d 910. "Similarly, the record establishe[d] that there was sufficient evidence for the jury to conclude that the defendant believed that Mason probably would be summoned to testify. The term witness is broad, as it includes any person summoned, or who may be summoned, to give testimony.... General Statutes § 53a-146 (6). The Facebook messages show that the defendant knew that Mason had provided a statement implicating him in the cell phone theft. It was therefore reasonable for the jury to infer that the defendant believed that Mason probably would be called to testify in conformity with that statement at a future proceeding." (Emphasis in original; internal quotation marks omitted.) State v. Sabato, supra, 152 Conn.App. at 598-99, 98 A.3d 910. Indeed, the defendant stated in one of those messages, "it's YOUR statement that is gonna fuck it up," thereby demonstrating the defendant's clear understanding that Mason's testimony would be critical at such a proceeding. We also agree with the Appellate Court that the evidence supported the jury's finding that the defendant, in threatening Mason, intended to influence, delay or prevent Mason's testimony at a criminal trial. As the Appellate Court observed, "in one Facebook message, the defendant wrote, 'Ur gonna learn the hard way that snitches get what's comin to em straight the fuck up.' In a later message, the defendant wrote: 'Bro snitches get fucked up.... The term snitches get stitches is because of snitches.... U know that this shit isn't gonna just be left alone for what u did. I just hope ur ready and prepared for the repercussions for ur actions cause I sure am. I'll see u very soon.' In yet another message, the defendant wrote, 'just know that this shit isn't gonna go unsettled and u can take it how u want but shit is gonna get handled....' In his final message, the defendant wrote: 'I thought we were straight and u wouldn't be dumb enough to write a statement after telling u that day what we did to the last snitch.... [U]r gonna get treated like a snitch.... [U] best be ready for the shit u got urself into.... I'd watch out if I were u....' " State v. Sabato, supra, 152 Conn.App. at 599, 98 A.3d 910. On the basis of this evidence, the Appellate Court concluded, and we agree, that the "jury reasonably could have inferred that the defendant intended the natural consequences of these threats, which would have included the influence, delay or prevention of Mason's testimony at a future proceeding." Id. Indeed, the present case is virtually identical to State v. Ortiz, supra, 312 Conn. at 551, 93 A.3d 1128. In that case, the defendant, Akov Ortiz, was convicted of tampering with a witness in violation of § 53a-151 (a) on the basis of the jury's finding that he threatened a witness with physical harm if she gave a statement to the police. Id., at 553, 557, 93 A.3d 1128. On appeal, Ortiz claimed that the evidence was insufficient to convict him because § 53a-151 (a) "does not proscribe attempts to prevent an individual from speaking to the police" but does proscribe "[attempts] to affect a witness' conduct at an official proceeding." Id., at 554, 93 A.3d 1128. Although we agreed with Ortiz' reading of the statute, we nevertheless concluded that the evidence supported his conviction because the jury reasonably could have inferred that Ortiz "intended the natural consequences of [his] threat-that [the witness] not only withhold information from the police but also withhold testimony or provide false testimony at a future official proceeding." Id., at 573, 93 A.3d 1128. As in Ortiz, the jury in the present case reasonably could have inferred that the defendant, in threatening Mason because of his prior cooperation with the authorities, necessarily intended to convey to Mason that any future cooperation would be treated in the same manner. The judgment of the Appellate Court is affirmed. In this opinion the other justices concurred. General Statutes § 53a-167a (a) provides in relevant part: "A person is guilty of interfering with an officer when such person obstructs, resists, hinders or endangers any peace officer . in the performance of such peace officer's . duties." General Statutes § 53a-49 (a) provides in relevant part: "A person is guilty of attempt to commit a crime if, acting with the kind of mental state required for commission of the crime, he . (2) intentionally does or omits to do anything which, under the circumstances as he believes them to be, is an act or omission constituting a substantial step in a course of conduct planned to culminate in his commission of the crime." General Statutes § 53a-151a (a) provides in relevant part: "A person is guilty of intimidating a witness when, believing that an official proceeding is pending or about to be instituted, such person uses, attempts to use or threatens the use of physical force against a witness or another person with intent to (1) influence, delay or prevent the testimony of the witness in the official proceeding...." We previously have described fighting words as "speech that has a direct tendency to cause imminent acts of violence or an immediate breach of the peace. Such speech must be of such a nature that it is likely to provoke the average person to retaliation." (Internal quotation marks omitted.) State v. Szymkiewicz, 237 Conn. 613, 620, 678 A.2d 473 (1996), quoting Texas v. Johnson, 491 U.S. 397, 409, 109 S.Ct. 2533, 105 L.Ed.2d 342 (1989). "True threats encompass those statements [in 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." (Internal quotation marks omitted.) State v. Moulton, 310 Conn. 337, 349, 78 A.3d 55 (2013). This court certified the following three issues in the state's appeal: "1. Did the Appellate Court properly determine that there was insufficient evidence to convict the defendant of attempt to interfere with an officer in violation of . [§§] 53a-167a [and 53a-49]? "2. If the answer to the first question is in the affirmative, should this court modify State v. Williams, [supra, 205 Conn. 456, 534 A.2d 230 ], to proscribe not only fighting words, but also true threats and other categories of unprotected speech? "3. Under the circumstances of this case, was the lack of a jury instruction on true threats harmless?" (Internal quotation marks omitted.) State v. Sabato, 314 Conn. 938, 102 A.3d 1114 (2014). Because we reject the state's threshold contention that it has not altered its theory of guilt on appeal, we need not reach the other issues presented in its appeal, namely, whether true threats fall within the purview of § 53a-167a (a) and, if they do, whether the state presented sufficient evidence to support a finding that the defendant's November 5, 2011 text message communicated such a threat, and whether the defendant waived his right to an instruction on true threats or, alternatively, whether the trial court's failure to give such an instruction was harmless error. Our determination that the state has changed its theory of guilt on appeal also makes it unnecessary to decide the defendant's claim, which the Appellate Court did not reach, that § 53a-167a (a) does not proscribe the conduct at issue in this case. The defendant also was charged with larceny in the fifth degree for the alleged theft of the cell phone. The jury could not reach a unanimous verdict on that count, however, and the court declared a mistrial as to that charge, which is not the subject of this appeal. See footnote 8 of this opinion. General Statutes § 53a-151 (a) provides: "A person is guilty of tampering with a witness if, believing that an official proceeding is pending or about to be instituted, he induces or attempts to induce a witness to testify falsely, withhold testimony, elude legal process summoning him to testify or absent himself from any official proceeding." We previously have observed that "the purpose of part XI of the Connecticut Penal Code, in which § 53a-151 (a) [and § 53a-151a (a) are] found, [is to] punish those who interfere with the courts and our system of justice." (Internal quotation marks omitted.) State v. Ortiz, supra, 312 Conn. at 562, 93 A.3d 1128.

12508074

Charles HARRIS v. COMMISSIONER OF CORRECTION

Harris v. Comm'r of Corr.

2019-04-02

AC 41460

827

827

204 A.3d 827

204

West's Atlantic Reporter, Third Series

Connecticut Appellate Court

Connecticut

2021-08-27T20:57:45.915931+00:00

Fastcase

Charles HARRIS v. COMMISSIONER OF CORRECTION

Charles HARRIS v. COMMISSIONER OF CORRECTION AC 41460 Appellate Court of Connecticut. Argued March 18, 2019 Officially released April 2, 2019

27

179

Per Curiam. The appeal is dismissed.

12508072

Tajah S. MCCLAIN v. COMMISSIONER OF CORRECTION

McClain v. Comm'r of Corr.

2019-02-26

AC 40541

82

97

204 A.3d 82

204

West's Atlantic Reporter, Third Series

Connecticut Appellate Court

Connecticut

2021-08-27T20:57:45.915931+00:00

Fastcase

Tajah S. MCCLAIN v. COMMISSIONER OF CORRECTION

Tajah S. MCCLAIN v. COMMISSIONER OF CORRECTION AC 40541 Appellate Court of Connecticut. Argued November 27, 2018 Officially released February 26, 2019 Jennifer B. Smith, assigned counsel, with whom, on the brief, was Samuel A. Greenberg, assigned counsel, New Haven, for the appellant (petitioner). Rocco A. Chiarenza, assistant state's attorney, with whom, on the brief, were John C. Smriga, state's attorney, C. Robert Satti, Jr., supervisory assistant state's attorney, Bridgeport, and Emily Dewey Trudeau, assistant state's attorney, for the appellee (respondent). Prescott, Bright and Bishop, Js.

6623

41586

BISHOP, J. The petitioner, Tajah S. McClain, 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 abused its discretion in denying his petition for certification to appeal and improperly rejected (1) his claim that his trial counsel rendered ineffective assistance, and (2) his claim of actual innocence. 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 this appeal. After a jury trial, the petitioner was convicted of murder with a firearm in violation of General Statutes § 53a-54a (a) and 53-202k, assault in the first degree with a firearm in violation of General Statutes § 53a-59 (a) (5) and 53-202k, and carrying a pistol without a permit in violation of General Statutes § 29-35 (a). The petitioner received a total effective sentence of sixty-five years incarceration. This court's opinion in the petitioner's direct appeal; see State v. McClain , 154 Conn. App. 281, 283-84, 105 A.3d 924 (2014), aff'd, 324 Conn. 802, 155 A.3d 209 (2017) ; sets forth the following facts: "On July 17, 2010, a group of more than ten people were drinking alcohol in the area known as 'the X,' located behind the Greene Homes Housing Complex in Bridgeport [Greene Homes]. Shortly before 5:22 a.m., the victim, Eldwin Barrios, was sitting on a crate when all of a sudden the [petitioner] and at least two other men jumped on him, and started punching and kicking him. The victim kept asking them why they were hitting him, but no one answered. The [petitioner] then was passed a chrome or silver handgun and he fired one shot, intended for the victim. The bullet, however, struck one of the other men in the back of the leg. The man who had just been shot yelled, 'you shot me, you shot me, why you shot me,' to which the [petitioner] replied, 'my bad.' As this was happening, the victim got up and tried to run away, but the [petitioner] fired several shots at him. Three of the [petitioner's] shots hit the victim-one in the leg, one in the arm, and one in the torso-at which point, the victim fell to the ground and died. "The [petitioner] was arrested three days after the murder. Following a jury trial, the [petitioner] was convicted and sentenced to a total effective sentence of sixty-five years incarceration." (Footnote omitted.) This court affirmed the petitioner's conviction on direct appeal. Id., at 283, 105 A.3d 924. Thereafter, our Supreme Court affirmed this court's judgment. State v. McClain , 324 Conn. 802, 805, 155 A.3d 209 (2017). On September 3, 2013, the petitioner, in a self-represented capacity, filed a petition for a writ of habeas corpus. On April 1, 2016, the petitioner, represented by counsel, filed the operative amended petition. 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 state's failure to disclose or otherwise correct false testimony, pursuant to Brady v. Maryland , 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), and (3) he was actually innocent. By memorandum of decision issued on May 11, 2017, the habeas court denied the amended petition, concluding that the petitioner did not meet his burden of proving a Brady violation, did not prove that he was prejudiced by his trial counsel's performance, and did not prove his actual innocence. The court thereafter denied the petition for certification to appeal from its decision. This appeal followed. Additional facts will be set forth as necessary. We begin by setting forth the applicable 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, he must demonstrate that the denial of his petition for certification constituted an abuse of discretion.... 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.... 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.... 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 . [and] [r]eversal is required only where an abuse of discretion is manifest or where injustice appears to have been done." (Internal quotation marks omitted.) Peeler v. Commissioner of Correction , 161 Conn. App. 434, 442-43, 127 A.3d 1096 (2015). "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.) Mercado v. Commissioner of Correction , 183 Conn. App. 556, 561, 193 A.3d 671, cert. denied, 330 Conn. 918, 193 A.3d 1211 (2018). I The petitioner first claims that the habeas court abused its discretion by denying his certification to appeal from its decision regarding the petitioner's claim of ineffective assistance of trial counsel. Specifically, the petitioner claims that his trial counsel rendered ineffective assistance by failing to present (1) a third-party culpability defense and (2) evidence of an initial segment of a video recorded police interview of a state's witness that the petitioner alleges exists. In response, the respondent, the Commissioner of Correction, argues, in relevant part, that the habeas court properly denied the petition for a writ of habeas corpus because the petitioner failed to establish that he was prejudiced by an alleged deficiency in his trial counsel's performance. We agree with the respondent. "The 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.) Antwon W. v. Commissioner of Correction , 172 Conn. App. 843, 849, 163 A.3d 1223, cert. denied, 326 Conn. 909, 164 A.3d 680 (2017). "The petitioner's right to the effective assistance of counsel is assured by the sixth and fourteenth amendments to the federal constitution, and by article first, § 8, of the constitution of Connecticut. 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. Because both prongs . must be established for a habeas petitioner to prevail, a court may dismiss a petitioner's claim if he fails to meet either prong. Accordingly, a court need not determine the deficiency of counsel's performance if consideration of the prejudice prong will be dispositive of the ineffectiveness claim.... "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.... When a [petitioner] challenges a conviction, the question is whether there is a reasonable probability that, absent the errors, the fact finder would have had a reasonable doubt respecting guilt." (Internal quotation marks omitted.) Weinberg v. Commissioner of Correction , 112 Conn. App. 100, 106-107, 962 A.2d 155, cert. denied, 291 Conn. 904, 967 A.2d 1221 (2009). Because the habeas court in the present case determined that the petitioner had not proven that he was prejudiced by the performance of his trial counsel without reaching the deficiency prong, "our focus on review is whether the court correctly determined the absence of prejudice." (Internal quotation marks omitted.) Mercado v. Commissioner of Correction , supra, 183 Conn. App. at 565, 193 A.3d 671 ; see also Weinberg v. Commissioner of Correction , supra, 112 Conn. App. at 108, 962 A.2d 155. A We first address the petitioner's argument that he was prejudiced by his trial counsel's failure to present a third-party culpability defense. Specifically, the petitioner argues that his trial counsel's failure to produce evidence that Carlos Vidal shot the victim constituted ineffective assistance of counsel. "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, [our Supreme Court has] 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 [fact finder's] determination." (Citations omitted; internal quotation marks omitted.) State v. Arroyo , 284 Conn. 597, 609-610, 935 A.2d 975 (2007) ; see also Johnson v. Commissioner of Correction , 330 Conn. 520, 564, 198 A.3d 52 (2019). The following additional facts are relevant to this claim. During the habeas trial, Donald J. Cretella, Jr., the petitioner's trial counsel, testified that he recalled seeing a police investigative report about the shooting that described an individual speaking with the police and referencing a man named Carlos Vidal. The habeas court subsequently admitted that report as an exhibit for the purpose of showing what may have been available to Cretella at the time of trial. The petitioner's habeas counsel then asked Cretella to read the following portion of the report that was relevant to his testimony: "Jesenia Rhodes called me then came in to talk. She stated Fro's real name is Charlie or Carlos Vidal. He lives on Catherine [Street], he pulled a gun on a girl, she has a restraining order against him, [and] he lives at his aunt's house at 104 Catherine [Street] which is across the street from his girlfriend's house . His mother is [Eleanor] and she lives at 59 Edwin. Jesenia on [July 19, 2010] went on Fro's MySpace account . and found a picture of a tombstone that stated 'this is where niggas go when they fuck with me 1986.' This concern[ed] Jesenia because [the victim's] birth year is 1986. Jesenia took a picture of the tombstone before Fro removed it from the account. Jesenia stated someone . saw Vidal at Wentfield Park getting out of a rental car with a gun.... Before she left I showed her a picture of . Vidal [date of birth March 23, 1986,] and she stated that was Fro." (Footnote added.) Cretella did not recall having a conversation with the petitioner about the report. He also did not investigate the information it contained because his strategy was to present an alibi defense, and, at the time, he believed that the third-party culpability defense was weak. Sergeant John Losak, the Bridgeport police officer who authored the report, testified at the habeas trial that Rhodes had provided him with information regarding the MySpace post but indicated that there was nothing in the post that was exculpatory for the petitioner. Losak further recalled that the information compiled over the course of the investigation did not suggest that there was more than one suspect at the scene of the shooting. The petitioner's habeas counsel also presented the testimonies of Silas Cox, a purported eyewitness to the shooting, Madeline Griffin, Vidal's aunt, and Shemayah Ben-Israel, an inmate who had shared a holding cell with Vidal in 2014. Cox testified that he was present at a section of the Greene Homes commonly referred to as the "X" in 2010 when the shooting occurred, and that he saw "a Spanish looking guy with a gun shoot and then run away." Cox described the shooter as having white skin and braided hair, not a shaved head as the petitioner had at the time of the shooting. During cross-examination, Cox described his extensive criminal record and acknowledged he had been in jail from February to November, 2010, which period encompasses the July, 2010 date of the shooting. Cox later backtracked from this acknowledgment and stated that he did not recall the exact dates that he had been incarcerated in 2010 because he had "an extensive history of coming back and forth to jail ." Griffin testified that the victim had robbed her, and that when she told Vidal that the victim had robbed her, he began waving a silver gun around. Griffin stated that this encounter happened before a 2010 car accident in which she had been involved. Griffin further testified that her sister, Eleanor, who is also Vidal's mother, had told her that someone named "Boo" had called Eleanor's house asking for Vidal to meet him in the Greene Homes with the victim, and that "it had to do with a gun." Griffin also stated that Eleanor had asked her if Vidal could stay at her house because he had been shot. Griffin's statements regarding what Eleanor had said to her were admitted at the habeas trial, over hearsay objections, for the purpose of showing what information may have been available to Cretella at the time of the criminal trial. Griffin provided more information about her 2010 accident during cross-examination, stating that she had been involved in a car accident in June, 2010, and that, as a consequence, she had developed memory problems. She also stated that she had been diagnosed with mental health issues, including schizophrenia, for which she takes medication. Ben-Israel testified that while he was in a holding cell in MacDougall-Walker Correctional Institution with Vidal in 2014, they had a conversation during which Vidal expressed his concern that "a warrant was going to pop up for his arrest . for that incident that happened in the [Greene Homes]." Ben-Israel also testified that Vidal had been talking about the petitioner, and that Vidal had told him that "he was supposed to turn himself in, but . he wasn't going to turn himself in for nobody. And that is pretty much what he said. He said fuck-he said fuck [the petitioner], basically." Ben-Israel further stated that he had been familiar with the case because he had seen a post that Vidal had made on Facebook in which he bragged "about what was done in the [Greene Homes]." During cross-examination, Ben-Israel acknowledged that he was serving a twelve year sentence for robbery and that he had a previous criminal record under a different name. He also acknowledged that the Facebook post by Vidal that he allegedly saw did not indicate that Vidal had killed the victim. The petitioner also testified at the habeas trial. He stated that the only discussion he had with Cretella about Vidal was regarding Rhodes' reference to Vidal in Losak's report. The petitioner recalled that when he asked Cretella about sequestering Rhodes, Cretella cut him off and told him not to worry about her. The habeas court explicitly addressed the MySpace post and Ben-Israel's testimony in rejecting the petitioner's claim that Cretella failed to investigate or present a third-party culpability defense. The court determined that it was unclear whether Cretella successfully could have authenticated the MySpace post as having been authored by Vidal. The court concluded that, even if the post had been admitted into evidence, it failed "to comprise a clear admission by Vidal that he , and not the petitioner, shot the victim"; (emphasis in original); and noted that "it was the petitioner, and not Vidal, whose appearance more closely resembled the shooter's description [given] by most witnesses." After reviewing the record, we agree with the habeas court's conclusion that, despite the evidence presented, the petitioner failed to demonstrate that there was a reasonable probability that, but for the trial counsel's failure to present a third-party culpability defense, the outcome of his trial would have been different. We agree that even if a third-party culpability defense had been asserted at the petitioner's trial, the purported MySpace post, assuming that it was found and properly authenticated, would have failed to constitute an admission by Vidal sufficient to raise a reasonable doubt of the petitioner's culpability. Sergeant Losak confirmed that he had been made aware of the post, but testified that the investigation of the shooting did not corroborate the information that the post allegedly contained. Moreover, we agree with the court's determination that, because Ben-Israel's testimony concerned a 2014 conversation he had with Vidal "that first came to light about one month before the habeas trial in 2017 . Cretella could hardly be faulted for not premising a third-party [culpability] defense on an event which had not yet occurred at the time of the petitioner's criminal trial in 2012." Additionally, although the court did not specifically discuss the testimony of Cox and Griffin, the court reasonably could have concluded that their testimony did not help the petitioner because it was unclear whether Cox was in prison at the time of the shooting, and because Griffin's memory and mental health issues raise questions as to the reliability of her testimony. Additionally, the testimony of Cox and Griffin did not directly connect Vidal to the shooting in the present case but, rather, at the most, raised a bare suspicion that he may have been involved in a shooting. See State v. Arroyo , supra, 284 Conn. at 609-610, 935 A.2d 975. Finally, as we will discuss further in part II of this opinion, the court found that the evidence at both the criminal and habeas trials provided descriptions of the shooter that more closely matched the physical features of the petitioner than those of Vidal. Accordingly, the habeas court correctly determined that the petitioner was not prejudiced by Cretella's alleged failure to investigate and present a third-party culpability defense. B The petitioner next argues that he was prejudiced by his trial counsel's failure to present evidence of an initial segment of a video recorded police interview of Eduardo Martorony, a witness for the state. The petitioner alleges that an initial portion of the video in which Detective Harold Dimbo intentionally left Martorony alone in the interview room had been redacted. We are not persuaded. The following additional facts are relevant to this claim. Cretalla testified during the habeas trial that he recalled that, during the petitioner's criminal trial, the police video of Martorony was played to corroborate Martorony's trial testimony. During Cretella's testimony before the habeas court, the video was played to show what information had been available to Cretella. The video began by showing Martorony sitting alone in an interview room looking through police materials. Cretella recalled this initial portion of the video but did not recall whether that initial portion was played for the jury at the criminal trial or whether redactions were made to the first part of the video. Cretella did recall that redactions were made to the latter part of the video and that there was a portion of the video showing Martorony sitting alone in the room for a longer period of time than shown in the recording entered into evidence. He testified, however, that this portion may have occurred later in the interview. Cretella additionally testified that he thought Martorony's review of the police material during the video could have suggested that he saw information that would have helped him testify about something he actually may not have witnessed. Cretella stated that he cross-examined Martorony regarding the material left in the interview room and that, although he also cross-examined Dimbo about Martorony's interview, he did not recall whether he specifically asked Dimbo about the material left in the room because he did not want to walk into a "potential trap" by asking questions with potential answers he did not know. Finally, Cretella testified that, in his experience as an attorney, having viewed "hundreds" of police interviews, it is not uncommon for the videos of such interviews to start before the interviewer has entered the room. Dimbo, who interviewed Martorony during the video, testified that he had met with Martorony before the interview to discuss the case. Dimbo stated that, at this initial meeting, Martorony had provided him with information about the shooting on his own accord. Specifically, Dimbo recalled that Martorony told him that he had witnessed a shooting and provided him with the nicknames of those involved. Dimbo then stated that, after hearing those nicknames, he suspected that the petitioner was the shooter. Dimbo also testified that the material Martorony was seen examining in the video contained only a photograph of the victim, Dimbo's notes from his previous discussion with Martorony, and a photo array. He stated, as well, that apart from the photo array, everything included in the material was information that had been provided directly to him by Martorony. Dimbo further testified that Martorony was left alone in the interview room before the recording began because he needed to leave the room to turn on the video recorder. The petitioner testified that he had viewed an original video in which Dimbo had left Martorony alone in the interview room because he said he had forgotten something, and the petitioner contended that during his criminal trial, he wanted Cretella to question Dimbo about why he subsequently did not return to the room with anything. In assessing the petitioner's claim that Cretella failed to present the alleged initial segment of the video recorded police interview, the habeas court determined that the allegation that the video had been redacted was "simply unproven speculation." The court concluded that no credible evidence supported the petitioner's suggestion that the recording began earlier than shown to the jury simply because it abruptly started with Martorony reviewing police material. On the basis of our review of the record, we conclude that the habeas court reasonably determined that the petitioner offered insufficient evidence to support his allegation that an initial segment of the video existed or that, even if it existed, it was not shown to the jury. No evidence of an initial portion of the video was presented at the habeas trial apart from the petitioner's allegation that he had viewed an "original video." Moreover, the court found that Cretella's cross-examination of both Martorony and Detective Dimbo at the petitioner's criminal trial "decidedly put before the jury the possibility that Martorony previewed police documents, photographs, and/or notes and simply repeated information that he believed the police wanted to hear." Accordingly, we agree with the habeas court's assessment that because the jury was able to weigh Martorony and Dimbo's credibility regarding the nature of the video without the presentation of any purported initial segment of the video, no prejudice resulted from Cretella's alleged failure to present additional evidence regarding the nature of the video. The record demonstrates that, even if Cretella had provided deficient performance regarding the third-party culpability defense or the purported missing portion of the video, the petitioner's ineffective assistance claims do not involve issues that are debatable among jurists of reason with respect to the prejudice prong of the Strickland test. We conclude, therefore, that the habeas court did not abuse its discretion in denying the petition for certification to appeal from that court's determination that the petitioner failed to prove that he was prejudiced by the ineffective assistance of counsel at his criminal trial. II The petitioner also claims that the court abused its discretion in denying his petition for certification to appeal with respect to his claim of actual innocence. We are not persuaded. We begin by setting forth the relevant legal principles that govern our analysis. "[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.... "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." (Citation omitted; 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 held 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). The following additional facts are relevant to this claim. During the habeas trial, the petitioner described Vidal as a light-skinned African American, approximately five feet, seven to eight inches tall, and with cornbraids. The petitioner additionally testified that he himself, as opposed to Vidal, never had cornbraids. Vidal also appeared with his counsel during the habeas trial through a video conference and, through his counsel, invoked his right against self-incrimination. When the petitioner's counsel indicated his desire to put Vidal's skin color, hairstyle, and other physical characteristics into the record, the court responded: "Well I can-certainly I can see Mr. Vidal presently, so I can take-my observations are certainly evidence in the case of how he appears. And with that, I don't think you can ask him how his hair was, etc." The court then asked Vidal if he would be willing to answer questions about his height and weight, and although his counsel did not agree to permit him to do so, Vidal did stand up and turn to the side when the court requested that he do so. In its memorandum of decision, the habeas court first indicated that "[t]he newly discovered evidence proffered by the petitioner" was the testimony of Ben-Israel. The court then found "that the petitioner . failed to satisfy his burden of proving, by clear and convincing evidence, affirmatively that [he] did not murder the victim." The court determined that "[a] combination of credible, newly discovered evidence with that previously produced at the petitioner's criminal trial show[ed] that the more accurate and persuasive description of the shooter more closely matched the physical features of the petitioner than those of Vidal." The court stated that it had "viewed Vidal's complexion and other physical characteristics personally." The court also noted that, during the criminal trial, it was established that three persons who knew the petitioner on the day of the shooting identified him as the gunman: (1) Kyle Mason, the other individual who was shot and who provided a recorded statement to police on the day of the incident; (2) Henry Brandon, who saw the petitioner receive a silver pistol from one of his companions and fire the shot that struck Mason; and (3) Martorony, who was speaking with the victim just as the assailants approached to attack and "identified the petitioner as the person who employed a chrome-colored, semi-automatic pistol to shoot the victim." The court concluded that, given the inculpatory evidence against the petitioner, "vague boasts [allegedly] by Vidal of some nonspecific involvement in the victim's demise falls far short of clear and convincing evidence of the petitioner's innocence." On appeal, the petitioner argues that (1) Ben-Israel's testimony was newly discovered evidence that could not have been discovered prior to, or during, the petitioner's criminal trial despite the exercise of due diligence, and (2) the testimony of Cox and Griffin also could be considered newly discovered evidence provided that this court determines that the exercise of due diligence would not have unearthed their testimony. The respondent argues that the petitioner's claim should "be rejected because the habeas court acted well within its role as fact finder in concluding that the proffered evidence was insufficient to meet the 'extraordinarily high' burden of proving the petitioner's actual innocence by clear and convincing evidence." Because it is clear that Ben-Israel's testimony, which came to light one month before the 2017 habeas trial, could not have been discovered prior to the petitioner's 2012 criminal trial through due diligence, we agree with the habeas court that the testimony constitutes newly discovered evidence. We also agree with the habeas court that such testimony fails to establish clearly and convincingly that the petitioner is actually innocent. In his testimony during the habeas trial, Ben-Israel stated that Vidal told him about the shooting in the Greene Homes, but also stated that he knew about the shooting apart from his conversation with Vidal. Moreover, Ben-Israel repeatedly stated that the social media post by Vidal that he allegedly saw was on Facebook, not MySpace, and that the post did not indicate that Vidal, and not the petitioner, had killed the victim. Ben-Israel's testimony was not only contradictory to the inculpatory evidence presented against the petitioner, but it also failed to unequivocally undermine such evidence. See Gould v. Commissioner of Correction , 301 Conn. 544, 560, 22 A.3d 1196 (2011) ("[T]he clear and convincing evidence standard should operate as a weighty caution upon the minds of all judges, and it forbids relief whenever the evidence is loose, equivocal or contradictory.... We equated the clear and convincing burden with an extraordinarily high and truly persuasive [demonstration] of actual innocence ." [Citation omitted; internal quotation marks omitted.] ). The habeas court considered the overwhelming evidence of the petitioner's identification as the shooter at the criminal trial with its own viewing of the petitioner and Vidal during the habeas trial, and reasonably concluded that the petitioner, not Vidal, more closely resembled the shooter identified by eyewitnesses. As such, we conclude that, in light of the evidence presented at the habeas trial, Ben-Israel's testimony did not support the petitioner's actual innocence claim. We next turn to the petitioner's argument, which was not raised during the habeas trial, that the testimony of Cox and Griffin could be newly discovered evidence. In his brief before this court, the petitioner merely restates the relevant portions of Cox and Griffin's testimony without offering an argument or legal authority as to how such testimony could be considered newly discovered. Even assuming, arguendo, that the testimony of Cox and Griffin could be considered newly discovered, we conclude that such testimony, when weighed against the other evidence presented against the petitioner at the habeas trial, did not constitute affirmative proof of the petitioner's innocence. "To disturb a long settled and properly obtained judgment of conviction, and thus put the state to the task of reproving its case many years later, the petitioners must affirmatively demonstrate that they are in fact innocent." (Emphasis in original.) Gould v. Commissioner of Correction , supra, 301 Conn. at 567, 22 A.3d 1196. As previously discussed in part I A of this opinion, the testimony of Cox and Griffin was unreliable and did not constitute clear and convincing evidence of the petitioner's actual innocence. Carmon v. Commissioner of Correction , supra, 178 Conn. App. at 371, 175 A.3d 60 ("the petitioner must establish by clear and convincing evidence that, taking into account all of the evidence . he is actually innocent of the crime of which he stands convicted" [internal quotation marks omitted] ); see also Turner v. Commonwealth , 56 Va. App. 391, 411, 694 S.E.2d 251 (2010) ("the petitioner has not met his burden . because . relief [on a petition for a writ of actual innocence is available] only to those individuals who can establish that they did not, as a matter of fact, commit the crime for which they were convicted and not to those who merely produce evidence contrary to the evidence presented at their criminal trial" [internal quotation marks omitted] ), aff'd, 282 Va. 227, 717 S.E.2d 111 (2011). On the basis of our own review, we conclude that the habeas court properly found that the petitioner had not established by clear and convincing evidence that he is innocent of the murder for which he was convicted, and the petitioner failed to establish that no reasonable fact finder would find him guilty of the crime. On the basis of the foregoing, we conclude that the habeas court did not abuse its discretion in denying the petition for certification to appeal. We are not persuaded that the issues, as presented by the petitioner, are debatable among jurists of reason, that they reasonably could be resolved differently, or that they raise questions deserving further appellate scrutiny. The appeal is dismissed. In this opinion the other judges concurred. In his direct appeal, the petitioner claimed "that the trial court (1) improperly limited his cross-examination of an eyewitness, and (2) committed plain error by not instructing the jury on the doctrine of consciousness of guilt." State v. McClain , supra, 154 Conn. App. at 283, 105 A.3d 924. "MySpace is a social networking website where members can create profiles and interact with other members. Anyone with Internet access can go onto the MySpace website and view content which is open to the general public such as a music area, video section, and members' profiles which are not set as private. However, to create a profile, upload and display photographs, communicate with persons on the site, write blogs, and/or utilize other services or applications on the MySpace website, one must be a member. Anyone can become a member of MySpace at no charge so long as they meet a minimum age requirement and register.... To establish a profile, a user needs only a valid email account.... Generally, a user creates a profile by filling out a series of virtual forms eliciting a broad range of personal data, culminating in a multimedia collage that serves as one's digital face in cyberspace." (Citation omitted; internal quotation marks omitted.) State v. Devalda , 306 Conn. 494, 511 n.19, 50 A.3d 882 (2012). "Facebook is a social networking website that allows private individuals to upload photographs and enter personal information and commentary on a password protected profile." (Internal quotation marks omitted.) State v. Kukucka , 181 Conn. App. 329, 334 n.3, 186 A.3d 1171, cert. denied, 329 Conn. 905, 184 A.3d 1216 (2018). For a third-party culpability defense to succeed, a defendant need only present evidence that creates a reasonable doubt as to whether the defendant committed the offense. See State v. Arroyo , supra, 284 Conn. at 609-610, 935 A.2d 975 ("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"). In the present case, although the habeas court may have overstated the quality of evidence adequate to sustain a third-party culpability defense in concluding that the MySpace post would have failed to constitute a "clear admission" by Vidal of his culpability, the record provides ample support for the court's conclusion that such a defense would not have been successful in raising a reasonable doubt as to the petitioner's culpability in this case. We may properly review the petitioner's argument that the testimony of Cox and Griffin could be considered newly discovered evidence because it is derived from the petitioner's actual innocence claim. See Michael T. v. Commissioner of Correction , 319 Conn. 623, 635 n.7, 126 A.3d 558 (2015) ("[w]e may . review legal arguments that differ from those raised before the trial court if they are subsumed within or intertwined with arguments related to the legal claim raised at trial" [internal quotation marks omitted] ); see also State v. Fernando A. , 294 Conn. 1, 31 n.26, 981 A.2d 427 (2009) ("[although we are mindful that] the plaintiff did not [previously] raise . all of the theories that he raises in his writ . those theories are related to a single legal claim, and . there is substantial overlap between these theories under the case law" [internal quotation marks omitted] ); Rowe v. Superior Court , 289 Conn. 649, 663, 960 A.2d 256 (2008) (same). In the present case, the petitioner's argument regarding the testimony of Cox and Griffin is subsumed within his actual innocence claim raised before the habeas court. As such, we may review this argument.

12508071

IN RE MALACHI E.

In re Malachi E.

2019-03-06

AC 41875

810

823

204 A.3d 810

204

West's Atlantic Reporter, Third Series

Connecticut Appellate Court

Connecticut

2021-08-27T20:57:45.915931+00:00

Fastcase

IN RE MALACHI E.

IN RE MALACHI E. AC 41875 Appellate Court of Connecticut. Argued January 11, 2019 Officially released March 6, 2019 Joshua Michtom, assistant public defender, for the appellant (respondent mother). Benjamin A. Abrams, assistant attorney general, with whom were Benjamin Zivyon, assistant attorney general, and, on the brief, George Jepsen, attorney general, for the appellee (petitioner). Lavine, Bright and Moll, 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. March 6, 2019, the date that this decision was released as a slip opinion, is the operative date for all substantive and procedural purposes.

6241

39088

BRIGHT, J. The respondent mother appeals from the judgment of the trial court terminating her parental rights with respect to her minor child, Malachi E. On appeal, the respondent claims that the court erred in determining that the termination of her parental rights was in the best interest of the child because (1) the court relied entirely on its adjudicatory determination that the respondent had failed to achieve sufficient personal rehabilitation, and (2) there was no evidence to support its determination that the termination of her parental rights was in the best interest of the child. We affirm the judgment of the trial court. The following facts, which the court found by clear and convincing evidence, none of which the respondent challenges on appeal, and procedural history are relevant to the resolution of this appeal. The child was born in December, 2015, and is the respondent's only child. The child, the respondent, and the child's maternal grandmother (grandmother) have lived together in a two family home owned by the grandmother since the child's birth. On May 5, 2016, the grandmother reported to Monique Frey, a parent educator, who was employed by the Catholic Charities Nurturing Families Program and was working with the respondent, that she was concerned about the safety of the child. In particular, the grandmother reported that the respondent is an alcoholic, is aggressive when she is drunk, is depressed and has bipolar disorder, and that the child had fallen off of a bed on two occasions. Frey then reported the grandmother's concerns to the Department of Children and Families (department). On that same date, personnel from the department went to the respondent's residence to discuss the report, but the respondent was defensive and refused to cooperate. On May 6, 2016, the grandmother reported to the department that the respondent began drinking alcohol after its personnel had departed from the residence. The grandmother also elaborated on her prior report, stating that the respondent has a prior history of drinking alcohol and smoking marijuana, that she suffers from blackouts when she drinks, and that she appropriately cares for the child when she is sober. On that same date, the department's personnel returned to the respondent's residence. Upon their arrival, the respondent became verbally and physically aggressive, and expressed a suicidal intent. As a result, she was taken to Hartford Hospital for a seventy-two hour hold and a mental health assessment. On May 7, 2016, the respondent was discharged from Hartford Hospital. On May 9, 2016, personnel from the department met with the respondent regarding the future supervision of the child. At the meeting, the respondent admitted that she had a long history of substance abuse and mental health issues, that she had been in and out of treatment for many years, that she had not been taking her prescribed medications for over a year, and that the child had fallen off a bed. The respondent agreed to submit to a substance abuse and mental health assessment at Wheeler Clinic, and to comply with any recommendations stemming therefrom. She also agreed to permit the grandmother to be the primary caretaker of the child until the respondent had made progress in her treatment, and that she would have only supervised contact with the child. On June 20, 2016, the petitioner, the Commissioner of Children and Families, filed a neglect petition on behalf of the child and an addendum in which she claimed that the child had been denied proper care and attention as a result of the respondent's substance abuse, mental health issues, and the incidents in which the child had fallen from a bed. On June 21, 2016, Wheeler Clinic reported that the respondent had refused to comply with its recommendation that she participate in individual counseling or trauma-focused therapy to address her history of abuse and trauma. The next day, the grandmother reported to the department that the respondent continued to drink alcohol on the weekends. On August 4, 2016, the respondent, who was represented by counsel, appeared in court and denied the allegations of the neglect petition. The respondent then refused two subsequent recommendations for additional counseling services at Wheeler Clinic. On September 6, 2016, the grandmother reported to the department that the respondent had been intoxicated over the weekend and, consequently, the respondent was hospitalized first at Hartford Hospital, and then at the Institute of Living. On September 12, 2016, the petitioner filed a motion for temporary custody of the child that was supported by an affidavit attested to by a social worker. Therein, the petitioner alleged, on the basis of the same facts as the neglect petition, that the child was in physical danger from his surroundings, that immediate removal was necessary to ensure his safety, and that reasonable efforts had been made to eliminate the need to remove the child. On the same date, the court granted the motion for temporary custody, pending a hearing that was scheduled for September 16, 2016, and ordered specific steps for the respondent's rehabilitation. On September 13, 2016, the petitioner filed an amended neglect petition. On September 16, 2016, the respondent appeared in court with counsel, she agreed that the motion for temporary custody could be sustained, and the court issued specific steps for the respondent's rehabilitation. On approximately the same date, the child was removed from the custody of the respondent and placed in the care of the grandmother, who lived in the same residence. Since that time, the grandmother has continued to care for the child "full-time," and the respondent has maintained frequent contact and visits with the child, which have been supervised by the grandmother. On November 8, 2016, the respondent entered a plea of nolo contendre to the neglect petition. On that same date, the court issued final specific steps for the respondent's rehabilitation. In accordance with the specific steps, the respondent was referred to several service providers, including Radiance Innovative Services, and engaged in services to address her mental health and alcohol use. Nevertheless, she achieved limited progress and continued to minimize her issues with alcohol and her history of trauma. On May 4, 2017, a meeting was held among the respondent, a clinician from Radiance Innovative Services, and the department's personnel. At the meeting, the clinician reported that the respondent never expressed any accountability or responsibility for past incidents, denied being intoxicated and claimed to have had just one drink when she was out at dinner with a friend, refused an offer of shelter or sober living housing because she wanted to retain her freedom, continued to minimize her issues with her alcohol use, and stated that alcohol was not an issue for her. On May 18, 2017, the department referred the respondent to the Therapeutic Family Time Program; however, on June 6, 2017, it learned that the respondent had been discharged for her failure to complete the intake process. On June 13, 2017, the petitioner filed a motion to review a permanency plan that recommended the termination of the respondent's parental rights and subsequent adoption of the child. On June 28, 2017, the department's personnel conducted a home visit during which the respondent adamantly refused to participate in any additional programs, and said that the department could keep the child. During that same visit, the grandmother confirmed that the petitioner was drinking alcohol the day prior to the May 4, 2017 meeting. In August and September, 2017, the department started facilitating weekly supervised visits at its office. During that time, the respondent reported to the department that she had been consistently attending therapy, working on her issues, and was making progress in her treatment. She expressed an interest in reunification with the child and recognized that she had made some mistakes. On September 13, 2017, the clinician reported that the respondent was more stable and was doing well and, as a result, the frequency of her sessions was reduced from weekly to biweekly. On September 20, 2017, Frey reported that their recent sessions had been "okay" compared to prior sessions and that the respondent expressed an interest in ending the process so that she could parent the child. On October 15, 2017, the court granted the petitioner's motion to review and approved the permanency plan. On October 16, 2017, the petitioner filed a petition to terminate the respondent's parental rights with respect to the child. The petitioner claimed, among other things, that the child had been found to be neglected and that the respondent had failed to achieve the required degree of personal rehabilitation. On November 16, 2017, the respondent appeared in court and denied the allegations of the petition. On June 5, 2018, after a one day trial, the court issued a memorandum of decision in which it granted the petition to terminate the respondent's parental rights. The court made extensive findings of fact and concluded that the petitioner had met her burden to establish by clear and convincing evidence that statutory grounds for termination existed and that termination was in the best interest of the child. With respect to the statutory grounds for termination, the court determined that the child previously had been adjudicated neglected and that the respondent had failed to achieve a sufficient degree of personal rehabilitation because she failed to comply fully with the specific steps for her rehabilitation that were ordered by the court on September 12 and 16, and November 8, 2016. In particular, the court determined that the respondent had not, and would not, overcome her mental health and substance abuse problems within a reasonable time so that she would "be able to serve as a safe, responsible, and nurturing parent for [the child] ." The court also determined that termination of the respondent's parental rights was in the best interest of the child because, in light of the importance of long-term stability and the need for expedient custodial determinations, the respondent had not been, and would not be able to be, a safe, responsible, and nurturing parent for the child. This appeal followed. Additional facts will be set forth as necessary. Before discussing the respondent's claims, we briefly set forth the legal principles that govern our review. "Proceedings to terminate parental rights are governed by [General Statutes] § 17a-112.... Under [that provision], a hearing on a petition to terminate parental rights consists of two phases: the adjudicatory phase and the dispositional phase. During the adjudicatory phase, the trial court must determine whether one or more of the . grounds for termination of parental rights set forth in § 17a-112 [ (j) (3) ] exists by clear and convincing evidence. The commissioner . in petitioning to terminate those rights, must allege and prove one or more of the statutory grounds." (Internal quotation marks omitted.) In re Egypt E ., 327 Conn. 506, 526, 175 A.3d 21, cert. denied sub nom. Morsy E. v. Commissioner, Dept. of Children & Families , - U.S. -, 139 S.Ct. 88, 202 L.Ed.2d 27 (2018). "Also, as part of the adjudicatory phase, the department is required to prove, by clear and convincing evidence, that it has made reasonable efforts . to reunify the child with the parent, unless the court finds . that the parent is unable or unwilling to benefit from reunification ." (Internal quotation marks omitted.) In re Elijah C. , 326 Conn. 480, 500, 165 A.3d 1149 (2017) ; see General Statutes § 17a-112 (j) (1). "If the trial court determines that a statutory ground for termination exists, then it proceeds to the dispositional phase." (Internal quotation marks omitted.) In re Elijah C. , supra, 326 Conn. at 500, 165 A.3d 1149. "In the dispositional phase of a termination of parental rights hearing, the trial court must determine whether it is established by clear and convincing evidence that the continuation of the respondent's parental rights is not in the best interest of the child. In arriving at this decision, the court is mandated to consider and make written findings regarding seven factors delineated in [ § 17a-112 (k) ]. . The seven factors serve simply as guidelines for the court and are not statutory prerequisites that need to be proven before termination can be ordered.... There is no requirement that each factor be proven by clear and convincing evidence." (Footnote added; internal quotation marks omitted.) In re Athena C. , 181 Conn. App. 803, 811, 186 A.3d 1198, cert. denied, 329 Conn. 911, 186 A.3d 14 (2018) ; see In re Nevaeh W. , 317 Conn. 723, 740, 120 A.3d 1177 (2015). "In the dispositional phase . the emphasis appropriately shifts from the conduct of the parent to the best interest of the child.... The best interests of the child include the child's interests in sustained growth, development, well-being, and continuity and stability of [his or her] environment." (Internal quotation marks omitted.) In re Athena C. , supra, at 811, 186 A.3d 1198. "Because a respondent's fundamental right to parent his or her child is at stake, [t]he statutory criteria must be strictly complied with before termination can be accomplished and adoption proceedings begun." (Internal quotation marks omitted.) In re Elijah C. , supra, 326 Conn. at 500, 165 A.3d 1149. On appeal, the respondent does not contest the court's determination with respect to the adjudicatory phase, namely, that she had failed to achieve rehabilitation, or any of the court's factual findings. Instead, the respondent claims that the court erred with respect to the dispositional phase because it improperly determined that the termination of her parental rights was in the best interest of the child. We now turn to each of the respondent's claims that challenge the court's best interest determination. I The respondent first claims that the court erred because it relied entirely on the respondent's failure to achieve rehabilitation in determining whether the termination of her parental rights was in the best interest of the child. In particular, the respondent argues that the court conflated the adjudicatory phase with the dispositional phase when it improperly failed to "perform a separate analysis of [the child's] best interests," as required by § 17a-112 (j) (2), because the court "entirely substituted the [respondent's] failure to rehabilitate as the basis for its best interests determination." We disagree. We first set forth the applicable standard of review and specific legal principles that govern our analysis of this claim. "The interpretation of a trial court's judgment presents a question of law over which our review is plenary.... 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.... 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." (Internal quotation marks omitted.) In re James O. , 322 Conn. 636, 649, 142 A.3d 1147 (2016). Our Supreme Court repeatedly has held that the adjudicatory phase is separate from the dispositional phase. "It is axiomatic that, once a child has been adjudicated neglected, the dispositional decision must be based on the best interest of the child and that the interest of the child and the parent may diverge." In re Natalie S. , 325 Conn. 833, 847, 160 A.3d 1056 (2017) ; see In re Baby Girl B. , 224 Conn. 263, 280, 618 A.2d 1 (1992) ("[o]ur statutes and caselaw make it crystal clear that the determination of the child's best interests comes into play only after statutory grounds for termination of parental rights have been established by clear and convincing evidence" [emphasis omitted; internal quotation marks omitted] ); In re Jessica M. , 217 Conn. 459, 466 n.5, 586 A.2d 597 (1991) (statute permitting the termination of parental rights "expressly requires the court to find, in addition to the existence of an enumerated ground for termination, that such termination is in the best interests of the child"). Although the emphasis shifts from the parent to the child in the dispositional phase; In re Athena C. , supra, 181 Conn. App. at 811, 186 A.3d 1198 ; a trial court is not required to blind itself to any parental deficiencies that also were considered during the adjudicatory phase. Our precedents establish that the consideration of the parent's circumstances, including the parent's degree of rehabilitation, is proper during the dispositional phase. Indeed, the respondent explicitly recognizes in her brief on appeal that the determinations made in the adjudicatory and dispositional phases "may often be so intertwined that the former leads almost inexorably to the latter ." Nevertheless, she argues that the court improperly failed to make the required best interest determination because it relied entirely on her failure to rehabilitate. We disagree with the respondent's interpretation of the court's decision. The court made the following relevant findings and determinations with respect to the adjudicatory phase and the dispositional phase. In reaching its determination that the respondent had failed to achieve a sufficient degree of personal rehabilitation, which is unchallenged on appeal, the court found that the respondent had failed to comply fully with nine of the seventeen specific steps that were ordered by the court on September 12 and 16, and November 8, 2016. The court found that the respondent had "been unable to correct the factors that led to the initial commitment of her child, insofar as she is concerned. The clear and convincing evidence reveals that from the date of commitment through . the time of trial, [the respondent] ha[d] not been available to take part in her son's life in a safe, nurturing, and positive manner, and, based on her issues of mental health, substance abuse, parenting deficits, and a failure to complete and benefit from counseling and services, she will never be consistently available to [the child]." The court further found that, although the respondent had attended "various referrals and programs for counseling" and that she was making progress in her rehabilitation treatment, she had "failed to show any consistent and adequate benefit from these referrals," and she had "failed to improve her parenting ability to acceptable standards as far as her child's safety and emotional needs are concerned." The court also found that the petitioner "ha[d] demonstrated, by clear and convincing evidence, that [the respondent] cannot exercise the appropriate judgment necessary to keep [the child] safe and healthy and to maximize his abilities to achieve," that "it is patently clear that [the respondent was] not in a better position to parent her child than she was at the time of [the child's] commitment, and still remains without the qualities necessary to successfully parent him," and that "[g]iven th[e] respondent's history of mental health and substance abuse issues, it is reasonable to infer that she will remain besieged by these issues for some extensive time, and that she will not be physically available to serve as a custodial resource for [the child] during the time frame for rehabilitation contemplated in § 17a-112 (j) (3) (B) [ (ii) ]." In reaching its determination that the termination of the respondent's parental rights was in the best interest of the child, the court first made the required findings as to each of the statutory factors provided by § 17a-112 (k). In sum, it determined that (1) the petitioner had made available timely, appropriate, and comprehensive reunification services to the respondent, (2) the petitioner had made reasonable efforts to reunify the respondent and the child, (3) the respondent had failed to comply with nine of the seventeen court ordered specific steps, (4) the respondent has a strong relationship and bond with the child, (5) the child was twenty-nine months old, (6) the respondent had been unable or unwilling to make a realistic and sustained effort to conform her conduct to acceptable parental standards, and (7) there was no unreasonable conduct by any party that prevented the respondent from maintaining a relationship with the child. In doing so, the court incorporated, in a summary fashion, the same factual findings that led to its conclusion in the adjudicatory phase that the respondent had failed to comply with the specific steps and that she failed to benefit from those services. For instance, the court, consistent with its earlier findings, found that although the respondent had "complete[d] some programs . these programs failed to [affect] sufficient change . to correct [the respondent's] inability to appropriately parent [the child]." The court then outlined that it had "examined multiple relevant factors, including the child's interests in sustained growth, development, well-being, stability, and continuity of his environment; his length of stay in foster care; the nature of his relationships with his foster parent and his biological parents; and the degree of contact maintained with [the respondent]," and that it had "balance[d] the child's intrinsic needs for stability and permanency against the benefits of maintaining a connection with [the respondent]." The court then found that "[t]he clear and convincing evidence shows that [the respondent] ha[d] demonstrated mental health issues, substance abuse issues, parenting deficits, and a failure to fully benefit from counseling and services," that she "was unable to appropriately address these issues by the time of the filing of the [termination of parental rights] petition," that "[h]er ability to care for her son remained as poor at the time of the . trial as it was at the inception of the case," that she "remained incapable of being a safe, nurturing, and responsible parent for [the child]," that "despite her referrals and services, [the respondent] ha[d] failed to rehabilitate herself sufficiently to be a safe, nurturing, and responsible parent for [the child]," and that "too much time ha[d] already elapsed to justify giving [the respondent] further time to show her rehabilitation." The court further found that "the time that the [respondent] need[s] to attempt to rehabilitate . as [a] safe, nurturing, and responsible [parent], if that were possible, is time that the child cannot spare," that the respondent's parental performance shows that she "lacks the attributes and characteristics necessary to fulfill a valid parental role," that the respondent's failure to address her issues in a timely manner "clearly and convincingly show[s] that it is unlikely that [she] will ever be able to conform [her] individual behaviors to appropriate parental standards or be able to serve as a safe, nurturing, and responsible [parent] for [the child]," that given her "individual behaviors and performances so far, [the] court [could not] foresee either respondent parent in this case ever having the ability or the patience to follow the regimen necessary for their child to maximize his abilities and achievements," that her "inability to remain sober and to comply with treatment requirements speaks volumes of her lack of ability to parent her son and to keep [the child] safe in the long run," and that the child "can no longer wait for permanency, continuity, and stability in his life." The court then outlined the principles of long-term stability and the exigency of termination of parental rights proceedings and concluded that "the clear and convincing evidence in this case establishes that [the child] is entitled to the benefit of ending, without further delay, the period of uncertainty he has lived with as to the unavailability of [the respondent] as [caretaker].... Having balanced [the child's] individual and intrinsic needs for stability and permanency against the benefits of maintaining a connection with the [respondent], the clear and convincing evidence in this case establishes that the child's best interests cannot be served by continuing to maintain any legal relationship to the [respondent]." The foregoing discussion makes clear that, contrary to the respondent's claim, the court did not rely entirely on its adjudicatory determination in making its dispositional determination. Instead, the court unambiguously made its best interest determination considering, not only the respondent's failure to rehabilitate, but also the seven statutory factors prescribed by § 17a-112 (k), the past effect of the respondent's conduct on the child, her then present ability to care for the child, the effect of the respondent's prospective ability to rehabilitate in order to care for the child, the need for permanency, continuity, and stability in the child's life, and the child's need to end the period of uncertainty. Further, the court expressly stated that it was making its determination considering multiple other factors pertaining to the child, and that it had balanced the child's needs against the benefits of maintaining a connection with the respondent. Therefore, we conclude that the court did not rely solely on the respondent's past failures to achieve rehabilitation in determining whether the termination of her parental rights was in the best interest of the child. II The respondent also claims that there was no evidence to support the court's determination that termination of her parental rights was in the best interest of the child. The respondent argues that, contrary to the court's determination, the evidence presented relating to her unique circumstances demonstrates that this is the rare case in which termination was not warranted. In particular, the respondent argues that termination was improper because the court found, among other things, that the child is currently being cared for by the grandmother in the same residence in which the respondent resides, and the respondent was making progress in her rehabilitation treatment. We disagree. We first set forth the applicable standard of review that governs our analysis of this claim. "[A]n appellate tribunal will not disturb a trial court's finding that termination of parental rights is in a child's best interest unless that finding is clearly erroneous.... On appeal, our function is to determine whether the trial court's conclusion was factually supported and legally correct.... In doing so, however, [g]reat weight is given to the judgment of the trial court because of [the court's] opportunity to observe the parties and the evidence.... We do not examine the record to determine whether the trier of fact could have reached a conclusion other than the one reached.... [Rather] every reasonable presumption is made in favor of the trial court's ruling." (Citation omitted; internal quotation marks omitted.) In re Davonta V. , 285 Conn. 483, 488, 940 A.2d 733 (2008) ; see also In re Brayden E.-H. , 309 Conn. 642, 657, 72 A.3d 1083 (2013). "[T]he balancing of interests in a case involving termination of parental rights is a delicate task and, when supporting evidence is not lacking, the trial court's ultimate determination as to a child's best interest is entitled to the utmost deference.... Although a judge [charged with determining whether termination of parental rights is in a child's best interest] is guided by legal principles, the ultimate decision [whether termination is justified] is intensely human. It is the judge in the courtroom who looks the witnesses in the eye, interprets their body language, listens to the inflections in their voices and otherwise assesses the subtleties that are not conveyed in the cold transcript." (Internal quotation marks omitted.) In re Nevaeh W. , supra, 317 Conn. at 740, 120 A.3d 1177. In the present case, there was an abundance of evidence presented to support the court's determination that termination of the respondent's parental rights was in the best interest of the child. On the basis of the evidence presented, the court found that the following facts had been proven by clear and convincing evidence. The respondent had not been, and would not be, a safe, responsible, and nurturing parent for the child. The respondent's mental health issues, substance abuse issues, parenting deficits, and a failure to fully benefit from counseling and services are antagonistic to the best interest of the child. The child required permanency, continuity, and stability in his life, and an end to the period of uncertainty. The court also made additional findings as to the seven factors mandated under § 17a-122 (k), including that the respondent had failed to comply with a majority of the court ordered specific steps and that she had been unable or was unwilling to make a realistic and sustained effort to conform her conduct to acceptable parental standards. The respondent does not challenge any of the court's factual findings on appeal. Affording the utmost deference to the court's decision, we conclude that the court's best interest determination was not clearly erroneous. The combination of the court's unchallenged factual findings regarding the respondent's parental defects, the likelihood that those defects would continue into the future, and the need for the child to have stability in his life, support the court's determination. Although the respondent directs our attention to other findings that are more favorable to her position, specifically, that the child is being cared for by the grandmother in the same residence as the respondent and that the respondent was making progress in her rehabilitation, these facts do not provide us a basis to reverse the court's determination. We decline the respondent's invitation to place more emphasis on certain of the court's findings so that we might reach a conclusion on appeal that differs from that of the trial court. Therefore, we conclude that the court's best interest determination was factually supported and legally correct. The judgment is affirmed. In this opinion the other judges concurred. The court also terminated the parental rights of John Doe, the unknown father to the child, because he previously had been defaulted for failure to appear. In light of the fact that John Doe has not appealed from the judgment of the trial court, we refer in this opinion to the respondent mother as the respondent. The child's attorney, pursuant to Practice Book § 67-13, adopted the respondent's brief on appeal. General Statutes § 17a-112 (k) provides: "Except in the case where termination of parental rights is based on consent, in determining whether to terminate parental rights under this section, the court shall consider and shall make written findings regarding: (1) The timeliness, nature and extent of services offered, provided and made available to the parent and the child by an agency to facilitate the reunion of the child with the parent; (2) whether the Department of Children and Families has made reasonable efforts to reunite the family pursuant to the federal Adoption and Safe Families Act of 1997, as amended from time to time; (3) the terms of any applicable court order entered into and agreed upon by any individual or agency and the parent, and the extent to which all parties have fulfilled their obligations under such order; (4) the feelings and emotional ties of the child with respect to the child's parents, any guardian of such child's person and any person who has exercised physical care, custody or control of the child for at least one year and with whom the child has developed significant emotional ties; (5) the age of the child; (6) the efforts the parent has made to adjust such parent's circumstances, conduct, or conditions to make it in the best interest of the child to return such child home in the foreseeable future, including, but not limited to, (A) the extent to which the parent has maintained contact with the child as part of an effort to reunite the child with the parent, provided the court may give weight to incidental visitations, communications or contributions, and (B) the maintenance of regular contact or communication with the guardian or other custodian of the child; and (7) the extent to which a parent has been prevented from maintaining a meaningful relationship with the child by the unreasonable act or conduct of the other parent of the child, or the unreasonable act of any other person or by the economic circumstances of the parent." This court consistently has affirmed a trial court's best interest determination that was based, at least in part, on the court's previous findings relating to a parent's failure to rehabilitate. See, e.g., In re Savannah Y. , 172 Conn. App. 266, 281-82, 158 A.3d 864 (affirming trial court's best interest determination that was "largely based upon the respondent's chronic mental health and substance abuse issues"), cert. denied, 325 Conn. 925, 160 A.3d 1067 (2017) ; In re Harmony Q. , 171 Conn. App. 568, 574-75, 157 A.3d 137 (rejecting claim that trial court erred in making best interest determination on ground that court improperly determined that respondent failed to rehabilitate), cert. denied, 325 Conn. 915, 159 A.3d 232 (2017) ; In re Gianni C. , 129 Conn. App. 227, 237-38, 19 A.3d 233 (2011) (affirming trial court's best interest determination that was made, in part, on the basis of respondent's failure to rehabilitate within reasonable time period); In re Sole S. , 119 Conn. App. 187, 193-94, 986 A.2d 351 (2010) (affirming trial court's best interest determination that was made, in part, on the basis of psychologist testimony that it "would be in the child's best interest to give [the respondent] more time to achieve personal rehabilitation"); In re Janazia S. , 112 Conn. App. 69, 99-100, 961 A.2d 1036 (2009) (affirming trial court's best interest determination that was made, in part, on the basis of "abundant evidence of the respondent parents' ongoing struggles with criminal behavior and addiction"). Specifically, the court found that the respondent had failed to comply fully with the following nine steps: (1) to keep appointments with the department and to cooperate with home visits by the department and the representative for the child; (2) to take part in parenting and individual counseling; (3) to submit to substance abuse assessments and to follow the recommendations regarding treatment; (4) to submit to random drug testing; (5) not to use illegal drugs or abuse alcohol or medicine; (6) to cooperate with service providers recommended for counseling, services, and substance abuse assessment or treatment; (7) to sign releases allowing the department to communicate with her service providers to check attendance, cooperation, and progress toward identified goals; (8) to secure and maintain adequate housing and legal income; and (9) to take all psychotropic medication as prescribed. We note that our Supreme Court has clarified that a trial court's ultimate conclusion that a ground for termination of parental rights has been proven presents a question of evidentiary sufficiency. See In re Shane M. , 318 Conn. 569, 587-88, 122 A.3d 1247 (2015) (clarifying standard of review); see also In re Egypt E. , supra, 327 Conn. at 525-26, 175 A.3d 21 ("[a]lthough the trial court's subordinate factual findings are reviewable only for clear error, the court's ultimate conclusion that a ground for termination of parental rights has been proven presents a question of evidentiary sufficiency" [internal quotation marks omitted] ). Since In re Shane M. , our Supreme Court has not had occasion to apply the evidentiary sufficiency standard of review to a court's best interest determination. As a result, this court has either declined to decide whether to apply the evidentiary sufficiency standard of review to a best interest claim; see, e.g., In re Elijah G.-R. , 167 Conn. App. 1, 29-30 n.11, 142 A.3d 482 (2016) ; In re Nioshka A. N. , 161 Conn. App. 627, 637 n.9, 128 A.3d 619, cert. denied, 320 Conn. 912, 128 A.3d 955 (2015) ; or has continued to apply the clearly erroneous standard of review. See, e.g., In re Angelina M. , 187 Conn. App. 801, 803-804, 203 A.3d 698 (2019) (clearly erroneous); In re Gabriella C.-G. , 186 Conn. App. 767, 770, 200 A.3d 1201 (2018) (clearly erroneous), cert. denied, 330 Conn. 969, 200 A.3d 699 (2019) ; contra In re Athena C. , supra, 181 Conn. App. at 809, 815-17, 186 A.3d 1198 (evidentiary sufficiency). We see no reason why the standard of review applicable to the adjudicatory phase would also not apply to the dispositional phase, particularly in cases, as in the present case, in which the court's factual findings are uncontested; however, we decline to apply the evidentiary sufficiency standard instead of the clearly erroneous standard of review for the following reasons. First, we decline to adopt a standard of review for a best interest determination that our Supreme Court has yet to adopt. Second, both parties on appeal agree that the clearly erroneous standard of review applies to the present claim. Third, the evidence in the present case supports the court's determination under either standard because, as articulated by this court in In re Nioshka A. N. , "if the evidence upon which we have relied in finding that the trial court's best interest determination was not clearly erroneous were considered under the evidentiary sufficiency standard, and, thus, was construed in the light most favorable to upholding the trial court's best interest determination . that evidence, so construed, would be sufficient to prove by clear and convincing evidence that termination of the respondent's parental rights was in the best interest of the child." (Citation omitted.) In re Nioshka A. N. , supra, 161 Conn. App. at 637 n.9, 128 A.3d 619.

12505113

IN RE JACOB W. et al.

In re Jacob W.

2019-02-15

SC 20063

1091

1118

200 A.3d 1091

200

West's Atlantic Reporter, Third Series

Connecticut Supreme Court

Connecticut

2021-08-27T20:57:43.750727+00:00

Fastcase

IN RE JACOB W. et al.

IN RE JACOB W. et al. SC 20063 Supreme Court of Connecticut. Argued September 11, 2018 Officially released February 15, 2019 Benjamin M. Wattenmaker, Hartford, assigned counsel, with whom, on the brief, was Amir Shaikh, assigned counsel, for the appellant (respondent father). James P. Sexton, Hartford, assigned counsel, with whom were Matthew C. Eagan, assigned counsel, and, on the brief, Megan L. Wade, assigned counsel, for the appellee (petitioner). Palmer, McDonald, D'Auria, Mullins, Kahn, Ecker and Vertefeuille, 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. February 15, 2019, the date that this decision was released as a slip opinion, is the operative date for all substantive and procedural purposes.

15437

95772

KAHN, J. This certified appeal requires us to clarify the circumstances under which a petitioner is precluded from relying on an alleged lack of an ongoing parent-child relationship as a basis for terminating a noncustodial parent's rights. The respondent father, Daniel W., appeals from the judgment of the Appellate Court, which reversed the judgments of the trial court denying the petitions for termination of the respondent's parental rights with respect to his three minor children and remanded the case for a new trial. In re Jacob W ., 178 Conn. App. 195, 219, 172 A.3d 1274 (2017). The respondent contends that the Appellate Court improperly concluded that the trial court had applied an incorrect legal test in determining that the petitioner, the maternal grandmother of the minor children, had failed to prove the nonexistence of an ongoing parent-child relationship by clear and convincing evidence. See id., at 207, 172 A.3d 1274. The respondent claims that, in so concluding, the Appellate Court incorrectly reasoned that the trial court improperly rested its analysis on inconsistent propositions. The respondent further contends that, even if the trial court applied an incorrect legal test to determine that the petitioner had failed to prove the lack of an ongoing parent-child relationship, the judgment of the trial court may be upheld on the basis that the court also found that the petitioner failed to prove that allowing further time for a parent-child relationship to develop would be detrimental to the best interests of the children. Although we agree with the Appellate Court that the trial court applied an incorrect legal test, our conclusion rests on different grounds. Specifically, we conclude that the trial court incorrectly concluded that, under the facts of the present case, it was required to depart from the usual test to determine whether a petitioner has established a lack of an ongoing parent-child relationship. As we explain in this opinion, the facts as found by the trial court did not support a departure from the ordinary inquiry and instead required the court to base its decision on the present feelings and memories of the children rather than the actions of the respondent. We further conclude that the trial court's determination that the petitioner failed to prove that allowing further time for a parent-child relationship to develop would be detrimental to the best interests of the children was predicated on a clearly erroneous factual finding. Accordingly, we affirm the judgment of the Appellate Court. The record reveals the following relevant facts, found by the trial court or otherwise undisputed, and procedural history. The respondent and his then wife, J, had three children, Jacob, born in 2006, N, born in 2008, and C, born in 2012. Jacob, N and C have been living in the home of their maternal grandparents since May, 2012, when the respondent, J and the children moved in with them. When the grandfather asked the respondent to leave in October, 2012, he moved in with his mother, while J and the children remained with the grandparents. The respondent continued to have contact with the children until he was arrested on April 2, 2014, and charged with multiple counts of sexual assault of a minor. On July 3, 2014, J also was arrested and charged with conspiracy in connection with the same set of incidents that gave rise to the respondent's arrest. As a result of the criminal charges against him, the respondent was convicted, following a jury trial, of six counts of risk of injury to a child in violation of General Statutes (Rev. to 2013) § 53-21 (a) (2), five counts of sexual assault in the first degree in violation of General Statutes (Rev. to 2013) § 53a-70 (a) (2), one count of attempt to commit sexual assault in the first degree in violation of § 53a-70 (a) (2) and General Statutes § 53a-49, one count of sexual assault in the fourth degree in violation of General Statutes (Rev. to 2013) § 53a-73a (a) (1) (A), one count of risk of injury to a child in violation of § 53-21 (a) (1), one count of conspiracy to commit risk of injury to a child in violation of § 53-21 (a) (2) and General Statutes § 53a-48, and one count of attempt to commit risk of injury to a child in violation of § 53-21 (a) (2) and 53a-49. The respondent was sentenced to a total effective term of twenty-nine years of incarceration, followed by sixteen years of special parole. See State v. Daniel W. , 180 Conn. App. 76, 79, 84, 182 A.3d 665, cert. denied, 328 Conn. 929, 182 A.3d 638 (2018). The minor that the respondent was convicted of assaulting was J's younger sister, A, the children's aunt. At the time of the respondent's arrest, a criminal protective order was put in place preventing the respondent from contacting A "in any manner, including by written, electronic or telephone contact ." The order also barred the respondent from contacting A's "home, workplace or others with whom the contact would be likely to cause annoyance or alarm to [A]." At the respondent's January, 2016 sentencing hearing, the court issued a standing criminal protective order to remain in effect until September 6, 2068. During the sentencing hearing, upon the request of the respondent's counsel for clarification of the scope of the order, the court explained that the standing protective order, which was identical to the one already in place, barred the respondent from having contact not only with A, but also with her immediate family, including her parents, the children's grandparents, but not the respondent's children themselves. Because the children lived with A in their grandparents' home, the protective order had the practical effect of prohibiting the respondent from contacting the children's home and the children's guardians. During the sentencing hearing, the respondent did not request any modification to the scope of the standing criminal protective order. On the day that J was arrested, the grandparents petitioned the Probate Court for the district of Ellington for immediate temporary custody of the children on the basis that both parents were now incarcerated. The court granted the petitions and, five months later, granted the grandparents' petitions for the removal of the parents and the appointment of the grandparents as the guardians of the children, to which both the respondent and J consented. Approximately one year after the grandparents were appointed guardians of the children, the petitioner filed the petitions to terminate the parental rights of both the respondent and J. The respondent indicated through counsel his intent to contest the termination, and, on that basis, the guardian ad litem for the children filed a motion pursuant to General Statutes § 45a-715 (g) to transfer the case from the Probate Court to the Superior Court, which the court granted. J subsequently consented to the termination of her parental rights, and the case proceeded against the respondent alone. The original petitions alleged that the children had been denied the care, guidance, or control necessary for their physical, educational, moral, or emotional well-being, by reason of acts of parental commission or omission. In an amendment to the petitions filed on November 16, 2016, the petitioner withdrew that allegation and instead alleged abandonment and the lack of an ongoing parent-child relationship as grounds for termination. Following a trial, the court denied the petitions. In its memorandum of decision, the trial court first turned to the question of whether the petitioner had proven that the respondent abandoned the children pursuant to General Statutes § 45a-717 (g) (2) (A). In concluding that she had not, the court relied on the actions undertaken by the respondent to maintain contact with the children. Prior to the respondent's incarceration, the court found that he provided for the children financially, participated in their daily activities and had hosted birthday parties for the children. The court evaluated the respondent's efforts to maintain contact with the children during his incarceration in light of the protective order, which greatly limited his ability to contact them. The court observed that, despite that obstacle, the respondent had made some efforts to maintain contact with the children. The court noted that the respondent had requested assistance from the Department of Children and Families (department) in facilitating visitation with the children and, in 2014, participated in a program that sends Christmas gifts to children of incarcerated parents. The trial court also found that, in 2014, during a Probate Court proceeding, the respondent requested that the grandparents provide him with updates on the children. Relying on these facts, the court concluded that the petitioner had failed to prove by clear and convincing evidence that the respondent had abandoned the children. The court next turned to the petitioner's claim that there was no ongoing parent-child relationship pursuant to § 45a-717 (g) (2) (C). The court began its analysis by recognizing that § 45a-717 (g) (2) (C) requires a two part inquiry. Turning to the first part of the inquiry-whether the petitioner had established no ongoing parent-child relationship by clear and convincing evidence-the court cited to the same facts it had relied on to conclude that the petitioner had failed to prove abandonment, that is, the court looked to the respondent's conduct. Although the court had made findings regarding the children's negative feelings toward or lack of memory of the respondent, it did not consider the feelings or memories of the children in resolving the first part of the inquiry under § 45a-717 (g) (2) (C). In its analysis, the court cited to an Appellate Court decision, In re Carla C. , 167 Conn. App. 248, 251, 143 A.3d 677 (2016), which held that a custodial parent or guardian who has "interfered [with a noncustodial parent's] visitation and other efforts" cannot terminate the noncustodial parent's rights on the basis of an alleged lack of an ongoing parent-child relationship. The trial court found that the grandparents had interfered with the respondent's efforts to maintain a relationship with his children. In support of that finding, the court cited to the failure of the grandparents to provide updates to the respondent concerning the children. In reaching its finding of interference, the trial court also relied on evidence that the grandparents had not told the children the truth about why the respondent was incarcerated. Specifically, the grandparents initially had not provided the children with any explanation for the respondent's absence, and, when they eventually told the children that the respondent was incarcerated, rather than tell them that he had sexually assaulted their aunt, the grandparents told the children he was in prison for beating J. As a consequence of its finding that the grandparents had interfered with the respondent's efforts to maintain a relationship with the children, the trial court did not conclude that the petitioner was barred from relying on the ground of no ongoing parent-child relationship as a basis for termination. Instead, the trial court suggested that the combination of two of its findings-namely, that the grandparents had interfered and that the respondent had made efforts to maintain contact with the children-supported the conclusion that the petitioner had not proven by clear and convincing evidence a lack of an ongoing parent-child relationship. The court next turned to the second part of the inquiry under § 45a-717 (g) (2) (C) -whether the petitioner had proven by clear and convincing evidence that allowing the respondent additional time to reestablish the parent-child relationship would be detrimental to the best interests of the children. The court's entire discussion of this prong encompassed two sentences: "There was no evidence presented by the petitioner at trial that would support a claim that additional time to reestablish a relationship with the children would be detrimental. The statements of dislike by very young children with false information about their father does not establish by clear and convincing evidence that reestablishing a relationship would be detrimental." The petitioner appealed from the trial court's judgments denying the petitions to the Appellate Court. That court concluded that the trial court had applied an incorrect legal test in denying the petitions. In so concluding, the court focused on inconsistencies that it had discerned in the trial court's memorandum of decision. See In re Jacob W. , supra, 178 Conn. App. at 198-99, 172 A.3d 1274. The Appellate Court identified two inconsistencies in the trial court's analysis: (1) a conclusion that an ongoing parent-child relationship existed and simultaneously did not exist because the grandparents' "unreasonable interference inevitably prevented the respondent from maintaining an ongoing parent-child relationship"; id., at 211, 172 A.3d 1274 ; and (2) a finding "both that the grandparents' unreasonable conduct constituted interference and that there was no evidence of unreasonable interference by any person." Id., at 215-16, 172 A.3d 1274. I We first consider whether the Appellate Court properly concluded that the trial court applied an incorrect legal test to determine whether the petitioner had proven by clear and convincing evidence the lack of an ongoing parent-child relationship. Because that question presents a question of law, our review is plenary. See In re Egypt E. , 327 Conn. 506, 525-26, 175 A.3d 21 (setting forth applicable standards of review for subordinate factual findings [clear error], ultimate conclusion that ground for termination has been proven [evidentiary sufficiency] and legal questions [plenary] ), cert. denied sub nom. Morsy E . v. Commissioner, Dept. of Children & Families , - U.S. -, 139 S.Ct. 88, 202 L.Ed.2d 27 (2018). Section 45a-717 (g) provides in relevant part: "At the adjourned hearing or at the initial hearing where no investigation and report has been requested, the court may approve a petition terminating the parental rights . if it finds, upon clear and convincing evidence, that (1) the termination is in the best interest of the child, and (2) . (C) there is no ongoing parent-child relationship which is defined as the relationship that ordinarily develops as a result of a parent having met on a continuing, day-to-day basis the physical, emotional, moral and educational needs of the child and to allow further time for the establishment or reestablishment of the parent-child relationship would be detrimental to the best interests of the child ." We have explained that the inquiry under § 45a-717 (g) (2) (C) is a two step process. First, the court must determine whether the petitioner has proven the lack of an ongoing parent-child relationship. Only if the court answers that question in the affirmative may it turn to the second part of the inquiry, namely, "whether allowance of further time for the establishment or reestablishment of the relationship would be contrary to the child's best interests." (Emphasis omitted.) In re Juvenile Appeal (Anonymous) , 177 Conn. 648, 675-76, 420 A.2d 875 (1979) ; see id. ("[t]he 'best interests' standard . comes into play only if it has been determined that no ongoing parent-child relationship exists, in order to decide whether allowance of further time for the establishment or reestablishment of the relationship would be contrary to the child's best interests " [emphasis altered] ); see also In re Carla C. , supra, 167 Conn. App. at 265, 143 A.3d 677 ("[t]he best interest standard . does not become relevant until after it has been determined that no parent-child relationship exists" [emphasis added; internal quotation marks omitted] ); In re Michael M. , 29 Conn. App. 112, 128, 614 A.2d 832 (1992) (same); In re Juvenile Appeal (84-3) , 1 Conn. App. 463, 480, 473 A.2d 795, cert. denied, 193 Conn. 802, 474 A.2d 1259 (1984) (same). In interpreting the parameters of § 45a-717 (g) (2) (C), we must be mindful of what is at stake. "[T]he termination of parental rights is defined, in [what is now General Statutes § 45a-707 (8) ], as the complete severance by court order of the legal relationship, with all its rights and responsibilities, between the child and his parent . It is, accordingly, a most serious and sensitive judicial action.... Although the severance of the parent-child relationship may be required under some circumstances, the United States Supreme Court has repeatedly held that the interest of parents in their children is a fundamental constitutional right that undeniably warrants deference and, absent a powerful countervailing interest, protection. Stanley v. Illinois , 405 U.S. 645, 651, 92 S.Ct. 1208, 31 L.Ed.2d 551 (1972)...." (Citation omitted; internal quotation marks omitted.) In re Valerie D. , 223 Conn. 492, 514, 613 A.2d 748 (1992). Moreover, because the respondent is incarcerated, we emphasize that "the fact of incarceration, in and of itself, cannot be the basis for a termination of parental rights.... At the same time, a court properly may take into consideration the inevitable effects of incarceration on an individual's ability to assume his or her role as a parent. See, e.g., In re Katia M. , 124 Conn. App. 650, 661, 6 A.3d 86 (parent's unavailability, due to incarceration, is an obstacle to reunification), cert. denied, 299 Conn. 920, 10 A.3d 1051 (2010) ; see also In re Gwynne P. , 346 Ill. App. 3d 584, 597-98, 281 Ill.Dec. 961, 805 N.E.2d 329 (2004) (parent's repeated incarceration may lead to diminished capacity to provide financial, physical, and emotional support for . child .), aff'd, 215 Ill. 2d 340, 830 N.E.2d 508, 294 Ill.Dec. 96 (2005). Extended incarceration severely hinders the department's ability to offer services and the parent's ability to make and demonstrate the changes that would enable reunification of the family.... This is particularly the case when a parent has been incarcerated for much or all of his or her child's life and, as a result, the normal parent-child bond that develops from regular contact instead is weak or absent." (Citations omitted; internal quotation marks omitted.) In re Elvin G. , 310 Conn. 485, 514-15, 78 A.3d 797 (2013). The lack of an ongoing parent-child relationship is a " 'no fault' " statutory ground for the termination of parental rights. In re Juvenile Appeal (Anonymous) , supra, 177 Conn. at 669, 420 A.2d 875. This court has explained that the ground of " 'no ongoing parent-child relationship' " for the termination of parental rights contemplates "a situation in which, regardless of fault, a child either has never known his or her parents, so that no relationship has ever developed between them, or has definitively lost that relationship, so that despite its former existence it has now been completely displaced." Id., at 670, 420 A.2d 875. The ultimate question is whether the child has "some present memories or feelings for the natural parent that are positive in nature." (Internal quotation marks omitted.) In re Jessica M. , 217 Conn. 459, 469, 586 A.2d 597 (1991). In its interpretation of the language of § 45a-717 (g) (2) (C), this court has been careful to avoid placing "insurmountable burden[s]" on noncustodial parents. Id., at 467, 586 A.2d 597. Because of that concern, we have explicitly rejected a literal interpretation of the statute, which defines the relationship as one "that ordinarily develops as a result of a parent having met on a continuing, day-to-day basis the physical, emotional, moral and educational needs of the child ." General Statutes § 45a-717 (g) (2) (C). "[D]ay-to-day absence alone," we clarified, is insufficient to support a finding of no ongoing parent-child relationship. In re Jessica M. , supra, 217 Conn. at 470, 586 A.2d 597. We also have rejected the notion that termination may be predicated on the lack of a "meaningful relationship," explaining that the statute "requires that there be no relationship." (Emphasis added.) In re Juvenile Appeal (Anonymous) , supra, 177 Conn. at 675, 420 A.2d 875. We have emphasized that, as to noncustodial parents, "[t]he evidence regarding the nature of the [parent's] relationship with [his] child at the time of the termination hearing must be reviewed in the light of the circumstances under which visitation had been permitted." In re Jessica M. , supra, 217 Conn. at 473, 586 A.2d 597. For instance, in In re Jessica M. , we concluded that there was insufficient evidence to prove a lack of an ongoing parent-child relationship between a noncustodial mother and her child. Id., at 472-73, 586 A.2d 597. Although that conclusion was based primarily on the fact that the child had "present memories or feelings for her mother [and] that at least some aspects of [those] memories and feelings [were] positive"; id., at 474-75, 586 A.2d 597 ; we also took into account the circumstances under which visitation had been permitted. Specifically, we considered it relevant that the child's legal guardians, who had petitioned for termination of the mother's parental rights, had placed restrictions on her ability to visit the child during the duration of their guardianship. Id., at 472-73, 586 A.2d 597. We later applied these principles to conclude that, when the department engages in conduct that inevitably leads to a noncustodial parent's lack of an ongoing parent-child relationship, the department cannot rely on the lack of that relationship to terminate the noncustodial parent's rights. In re Valerie D. , supra, 223 Conn. at 531, 535, 613 A.2d 748. In other words, we did not hold that the consequence of such conduct was that the test for determining whether there was an ongoing parent-child relationship was altered. Instead, we held that, as a result of its conduct, the department was precluded from relying on that ground as a basis for termination. Id., at 532, 613 A.2d 748. In In re Valerie D. , the department was granted temporary custody of the child within days after she was born, primarily because the mother, who had used cocaine throughout her pregnancy, had injected herself with cocaine hours prior to delivery, as a result of which the child was born addicted to cocaine and suffered from withdrawal. Id., at 499-504, 613 A.2d 748. Soon after it had obtained temporary custody, the department filed coterminous petitions for custody and termination of the parental rights of the mother. Id., at 499-503, 613 A.2d 748. The amended petition for termination relied, inter alia, on the ground that there was no ongoing parent-child relationship. Id., at 504, 613 A.2d 748. As a result of the department's success in obtaining custody of the child, from the time that the department was granted temporary custody a few days after the child's birth to the date of the termination hearing three and one-half months later, the child remained in foster care. Id., at 527, 613 A.2d 748. During that time, primarily due to the placement of the child in a foster home, the mother had been able to visit the child only eight times. Id., at 528, 613 A.2d 748. Two factors led this court to conclude that, under the circumstances of that case, termination of the mother's parental rights could not be permitted on the basis that there was no ongoing parent-child relationship. Id., at 532, 613 A.2d 748. First, the court observed that, at the time of the termination hearing, the child was not yet four months old. Id., at 527, 613 A.2d 748. The court recognized that the usual test for an ongoing parent-child relationship is not appropriate when the child is "virtually a newborn infant whose present feelings can hardly be discerned with any reasonable degree of confidence." Id., at 532, 613 A.2d 748. Under those circumstances, the court reasoned, it simply makes no sense to inquire as to whether an infant has some present memories or feelings for the natural parent that are positive in nature. Id. Instead, "the inquiry must focus, not on the feelings of the infant, but on the positive feelings of the natural parent." Id. Second, even assuming that the department had established that the mother lacked such positive feelings, the court concluded that principles of statutory construction precluded the department from gaining and maintaining "custody of a newborn infant pursuant to [General Statutes] § 46b-129 under circumstances . that will lead almost inevitably" to termination on the basis of a lack of an ongoing parent-child relationship. Id., at 532 n.34, 533, 613 A.2d 748. The statutory problem, the court explained, stemmed from the different standards governing custody and termination. Under the facts of the case, "a factual predicate for custody, established by the lesser standard of a preponderance of the evidence, led inexorably, for all practical purposes, to the factual predicate for termination required to be established by the higher standard of clear and convincing evidence." Id., at 533-34, 613 A.2d 748. The problem highlighted by the court in In re Valerie D. was that it was the very party who petitioned to terminate the mother's parental rights-the department-whose conduct inevitably had led to the lack of a parent-child relationship. That is, by filing the petitions coterminously in the case of a child who was so young, the department virtually ensured that, upon the grant of custody at the lower standard of proof, and in the absence of heroic efforts by the mother or significant additional services provided by the department, there would be no parent-child bond by the time of the termination hearing. This court has not had the opportunity to consider whether the principle we relied on in In re Valerie D. would apply to a petitioner who is a private party. The Appellate Court, however, has extended the holding of In re Valerie D. to apply to a custodial parent whose conduct inevitably led to the noncustodial parent's lack of an ongoing parent-child relationship. In In re Carla C. , supra, 167 Conn. App. at 251, 143 A.3d 677, the court concluded that, under those circumstances, the petitioner was precluded from relying on the lack of an ongoing parent-child relationship as a basis for termination. Specifically, the court held that "a parent whose conduct inevitably has led to the [other parent's] lack of an ongoing parent-child relationship may not terminate parental rights on this ground." Id., at 262, 143 A.3d 677. The petitioner in that case, the mother and custodial parent of the child, used her status as the custodial parent and engaged in conduct that interfered in a variety of ways with the ability of the father, who was incarcerated, to maintain a relationship with the child. The mother's interference with the father's efforts to maintain contact with the child began after she "met and began a relationship with [Steve], whom she described as a 'real man' and '[the] father figure that [Carla] deserves.' " Id., at 252, 143 A.3d 677. The mother's interfering conduct included the following. She obtained an order from the MacDougall-Walker Correctional Institution, where the father was incarcerated, directing him to cease all oral and written communication with her and the child, either directly or through a third party, or face disciplinary action. Id., at 253, 143 A.3d 677. She also threw away cards and letters that the father had sent to the child, without first showing them to the child. Id. She later successfully moved to suspend the father's visitation, on the basis that the existing arrangement, which relied on the paternal grandmother to facilitate visitation, had proven unworkable. Id., at 255-56, 143 A.3d 677. Under those circumstances, the Appellate Court concluded, the mother was precluded from relying on the lack of an ongoing parent-child relationship as a ground for termination of the father's parental rights because it was her conduct that had inevitably led to the lack of that relationship. Id., at 262, 143 A.3d 677. We agree with the Appellate Court that the reasoning of In re Valerie D. , supra, 223 Conn. at 492, 613 A.2d 748, should extend to individuals who are custodial parents or guardians. We observe that, in In re Carla C. , supra, 167 Conn. App. at 280, 143 A.3d 677, the Appellate Court accurately characterized the mother's conduct as "interference." The concept of "interference" fit particularly well with the facts of that case. We consider it unnecessary, however, as a general rule, to limit the exception that we set forth in In re Valerie D. to instances in which the actions of a custodial parent or guardian necessarily constitute "interference." That term carries with it the connotation that the conduct at issue was undertaken with the express purpose of preventing the noncustodial parent from having access to the child. The question is not whether a petitioner-the department or a private party-intends to interfere with the noncustodial parent's visitation or other efforts to maintain a relationship with the child. For example, there was no suggestion in In re Valerie D. , supra, 223 Conn. at 492, 613 A.2d 748, that the department filed coterminous petitions with the express purpose of preventing the mother from having access to her child, nor did the department's intent play any part in our analysis. It was sufficient that the department's conduct inevitably led to the lack of an ongoing parent-child relationship. Id., at 533, 613 A.2d 748. Our inquiry properly focuses not on the petitioner's intent in engaging in the conduct at issue, but on the consequences of that conduct. In other words, the question is whether the petitioner engaged in conduct that inevitably led to a noncustodial parent's lack of an ongoing parent-child relationship. If the answer to that question is yes, the petitioner will be precluded from relying on the ground of "no ongoing parent-child relationship" as a basis for termination regardless of the petitioner's intent-or not-to interfere. In summary, the following is the proper legal test to apply when a petitioner seeks to terminate a parent's rights on the basis of no ongoing parent-child relationship pursuant to § 45a-717 (g) (2) (C). We reiterate that the inquiry is a two step process. In the first step, a petitioner must prove the lack of an ongoing parent-child relationship by clear and convincing evidence. In other words, the petitioner must prove by clear and convincing evidence that the child has no present memories or feelings for the natural parent that are positive in nature. If the petitioner is unable to prove a lack of an ongoing parent-child relationship by clear and convincing evidence, the petition must be denied and there is no need to proceed to the second step of the inquiry. If, and only if, the petitioner has proven a lack of an ongoing parent-child relationship, does the inquiry proceed to the second step, whereby the petitioner must prove by clear and convincing evidence that to allow further time for the establishment or reestablishment of the relationship would be contrary to the best interests of the child. Only then may the court proceed to the disposition phase. There are two exceptions to the general rule that the existence of an ongoing parent-child relationship is determined by looking to the present feelings and memories of the child toward the respondent parent. The first exception, which is not at issue in the present case, applies when the child is an infant, and that exception changes the focus of the first step of the inquiry. As we have explained, when a child is "virtually a newborn infant whose present feelings can hardly be discerned with any reasonable degree of confidence," it makes no sense to inquire as to the infant's feelings, and the proper inquiry focuses on whether the parent has positive feelings toward the child. In re Valerie D. , supra, 223 Conn. at 532, 613 A.2d 748. Under those circumstances, it is appropriate to consider the conduct of a respondent parent. The second exception, which is at issue in this appeal, applies when the petitioner has engaged in conduct that inevitably has led to the lack of an ongoing parent-child relationship between the respondent parent and the child. This exception precludes the petitioner from relying on the lack of an ongoing parent-child relationship as a basis for termination. Under these circumstances, even if neither the respondent parent nor the child has present positive feelings for the other and, even if the child lacks any present memories of the respondent parent, the petitioner is precluded from relying on § 45a-717 (g) (2) (C) as a basis for termination. In view of the foregoing principles, it is clear that the Appellate Court correctly concluded that the trial court applied an incorrect legal test to deny the petitions to terminate the respondent's parental rights. Nowhere in the trial court's decision did the court suggest that it had determined that the conduct of the grandparents or their alleged interference inevitably led to the lack of an ongoing parent-child relationship between the respondent and the children. The only conduct of the grandparents that the trial court pointed to in its decision was their failure to provide the respondent with updates about the children and to tell the children the truth about the reason for the respondent's incarceration. As to the updates, the court provided no explanation as to how those updates, even if the respondent had received any, would have affected the children's feelings toward him. We also observe that, at the termination hearing, the respondent conceded that the protective order rendered it impossible for the grandparents to provide any such updates to the respondent. Similarly, the trial court did not explain how the children's feelings toward the respondent would have improved had the grandparents told them the truth-that their father was incarcerated for sexually assaulting their aunt when she was between seven and twelve years old. See State v. Daniel W. , supra, 180 Conn. App. at 80-81, 182 A.3d 665. We observe that the court suggested that the children's negative feelings toward the respondent were at least in part due to the false information provided to them by the grandparents, including both the initial failure to provide any explanation for the respondent's absence and the subsequent false explanation provided to the children-that the respondent was incarcerated for beating J. That suggestion falls far short of the required determination for purposes of applying the exception-that the false information provided to the children by the grandparents inevitably led to the lack of an ongoing parent-child relationship. In the absence of a determination that the grandparents engaged in conduct that inevitably led to the lack of an ongoing parent-child relationship, the trial court improperly concluded that the exception applied. We further observe that the department's studies submitted to the court in connection with the petitions for temporary custody and removal of guardianship, both of which were admitted into evidence at the termination hearing, reflect that the children had witnessed the respondent beating J. According to the studies, the department received a referral on June 14, 2013, alleging physical and emotional neglect of Jacob, N and C by the respondent and J. The department's investigation of the allegations revealed that, on June 6, 2013, J reported to the police that the respondent had placed her in a headlock and hit her in the face several times in the presence of all three children. Jacob confirmed J's account, informing the police when questioned that he had witnessed the respondent hitting J, despite Jacob's pleas to the respondent to "stop," and that he had seen the respondent "physically hurting" J on a prior occasion. The respondent admitted that the children were present during the incident. As a result of the investigation, the allegation of emotional neglect was substantiated regarding Jacob. At the termination hearing, the respondent did not challenge the evidence that the children had witnessed him beating J. In light of this evidence, the trial court's failure to provide any explanation as to how the grandparents' prevarication to the children prejudiced them against the respondent is puzzling. The only misrepresentation conveyed to the children was that the domestic violence was the reason for the respondent's incarceration. If anything, the grandparents' prevarication painted the respondent in a more favorable light than the facts warranted. Rather than inform the children of the new information about their father's incarceration that likely would have reinforced or even increased their already negative feelings toward the respondent, the grandparents told the children that he was in prison for a misdeed of which the children were already aware and had personally witnessed. Evidence was presented at trial that the children were unaware that the respondent had been convicted of sexually assaulting their aunt. Accordingly, by determining that the grandparents had prejudiced the children against the respondent when they attributed his incarceration to the domestic violence against J that the children had witnessed, the trial court implied that the children somehow would have held more positive views of him if they had known that he not only had beaten their mother but had also been convicted of sexually assaulting their aunt. It is significant that the trial court acknowledged that it was the protective order that prevented the respondent from contacting the children, rather than any actions of the grandparents. It is undisputed that the grandparents played no role in setting the protective order. Accordingly, the present case is distinguishable from In re Carla C. , supra, 167 Conn. App. at 253, 143 A.3d 677, in which the petitioner mother obtained an order from the prison barring the respondent father from all oral or written communication with her and the child. Because protective orders are commonly issued in cases of sexual assault, applying the rule of In re Valerie D. , supra, 223 Conn. at 492, 613 A.2d 748, and In re Carla C. , supra, at 253, 143 A.3d 677, to the present case would yield the bizarre result that a noncustodial parent who has been convicted of a sexual assault that results in a protective order that has the direct or practical effect of preventing the parent from maintaining a relationship with his or her child would nonetheless automatically be immune from termination on the basis of no ongoing parent-child relationship. Even if the trial court had determined that the grandparents had engaged in conduct that inevitably prevented the respondent from maintaining a relationship with his children, the court's subsequent analysis did not properly apply the applicable exception. Specifically, rather than concluding that, as a result of the court's finding of "interference," the petitioner was precluded from seeking termination of the respondent's parental rights on the basis of no ongoing parent-child relationship, the court appears to have determined that the conduct of the grandparents justified a departure from the ordinary inquiry as to whether the petitioner had proven no ongoing parent-child relationship. That is, in denying the petitions, rather than considering the children's feelings, the trial court looked to the respondent's conduct. As we have explained, however, an inquiry that focuses on the conduct of the respondent parent to resolve a petition for termination on the basis of § 45a-717 (g) (2) (C) is appropriate only upon a finding by the trial court that a child is "virtually" an infant whose present feelings and memories cannot be determined by the court. See In re Valerie D. , supra, 223 Conn. at 532, 613 A.2d 748. An inquiry that focuses on a respondent parent's conduct also is the key inquiry under the abandonment ground pursuant to § 45a-717 (g) (2) (A) ; see, e.g., In re Juvenile Appeal (Docket No. 9489) , 183 Conn. 11, 14, 438 A.2d 801 (1981) ("[a]bandonment focuses on the parent's conduct"); the court already had independently addressed and rejected the ground of abandonment in its memorandum of decision, applying the correct principles to that ground. An inquiry similar to that of the abandonment ground cannot be applied to assess whether a petitioner has established a lack of an ongoing parent-child relationship unless the child is an infant at the time of the inquiry. The court made no finding that any of the children, even the youngest child, was an infant at the time of trial. The trial court, therefore, improperly considered the respondent' s conduct in determining that the petitioner had failed to prove a lack of an ongoing parent-child relationship. Because no exception to the general rule applied under the facts found by the trial court, the court's inquiry properly should have focused on the present feelings and memories of the children. The Appellate Court properly concluded that the trial court had applied an incorrect legal test to determine whether the petitioner had proven the lack of an ongoing parent-child relationship. II We next turn to the respondent's claim that, even if the trial court applied an incorrect legal test to conclude that the petitioner failed to prove the lack of an ongoing parent-child relationship, we must reverse the Appellate Court's judgment on the basis that the trial court found that the petitioner had failed to prove by clear and convincing evidence that allowing the respondent additional time to reestablish the parent-child relationship would be detrimental to the best interests of the children. We agree with the petitioner, however, that the trial court's finding was clearly erroneous. We begin by observing that the trial court correctly turned to the second prong of § 45a-717 (g) (2) (C) only after first addressing whether the petitioner had established the first prong-whether the petitioner had established the lack of an ongoing parent-child relationship. Although a petitioner must establish both prongs by clear and convincing evidence, and, accordingly, a petition may fail under either prong, the inquiries under the two prongs are intertwined. That is, logic dictates that the question of whether it would be detrimental to the children's interests to allow further time for the development of a parent-child relationship will depend to some extent on the findings made and reasoning employed by the trial court in resolving whether there was an ongoing parent-child relationship. See, e.g., In re Juvenile Appeal (Anonymous) , supra, 177 Conn. at 675-76, 420 A.2d 875 ; In re Carla C ., supra, 167 Conn. App. at 265, 143 A.3d 677 ; In re Michael M ., supra, 29 Conn. App. at 128, 614 A.2d 832 ; In re Juvenile Appeal (84-3) , supra, 1 Conn. App. at 480, 473 A.2d 795. The trial court, however, did not provide any analysis as to the second prong of § 45a-717 (g) (2) (C). Instead, the court grounded its decision on the conclusory finding that "[t]here was no evidence presented by the petitioner at trial that would support a claim that additional time to reestablish a relationship with the children would be detrimental [to their best interests]." That finding cannot be reconciled with the record, which reveals that there was evidence presented that was relevant to this question. "Appellate review of a trial court's findings of fact is governed by the clearly erroneous standard of review.... 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.) Powell-Ferri v. Ferri , 326 Conn. 457, 464, 165 A.3d 1124 (2017). In arriving at its finding that the petitioner had presented no evidence that it would be detrimental to allow the respondent more time to develop or reestablish a relationship with the children, the trial court did not accord any effect to evidence that had been presented at trial that was relevant to that precise question. " 'Relevant evidence' means 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." Conn. Code Evid. § 4-1. By finding that no evidence was presented as to the second prong, the court did not consider the negative feelings that Jacob and N had expressed toward the respondent, despite the fact that the court made a finding that the children had those negative feelings. Specifically, evidence was presented during the termination hearing that both Jacob and N had told department social workers that they "hate," "fear," and "distrust" the respondent. The court also had evidence before it that Jacob had told his teachers at school that the respondent was a "bad parent" and that both Jacob and N had told a department social worker that they did not want any present contact with the respondent. Indeed, as of the time of trial, none of the children was requesting opportunities to visit with or speak to the respondent, and both Jacob and N had indicated that they never wanted to see him again. Both Jacob and N specifically refused to call him "Dad," insisted on referring to him by his first name, and indicated that they wished to have their last name changed. Regarding C, who was approximately four years old at the time of trial, the court heard evidence that she had no present recollection of the respondent. The intensity of the negative feelings that Jacob and N harbored toward the respondent, as well as C's lack of any memory of him, was highly relevant to the likelihood that the respondent could succeed in reestablishing a relationship with them, and, if so, how long that would take. The court should have been considered both of those factors in determining whether allowing more time would have been detrimental to the children's best interests. It is particularly problematic that the court provided the same explanation for its refusal to consider the negative feelings of Jacob and N toward the respondent that it had provided for its conclusion that the grandparents had "interfered" with the respondent's efforts to maintain a relationship with them. As we explained in part I of this opinion, one of the flaws of the trial court's analysis of the first prong of § 45a-717 (g) (2) (C) was its determination to discount the negative feelings of the children on the basis of the grandparents' alleged "interference." The trial court relied on that same principle in declining to consider the children's negative feelings in the second prong. Thus, the court's finding as to the second prong suffers from the same flaw. Specifically, in its analysis of the first prong, the court discounted those negative feelings on the basis that the children had been biased against the respondent as a result of the grandparents' failure to tell them that he was incarcerated because he was convicted of sexually assaulting their aunt. As we explained in part I of this opinion, this aspect of the trial court's reasoning is questionable at best. Moreover, the grandparents' false explanation of the reason for the respondent's incarceration has no relevance whatsoever to C's lack of any memories of the respondent. The court took no account of the fact that C did not remember the respondent. This failure cannot be reconciled with the " 'paramount importance' " of the feelings of the child in the application of § 45a-717 (g) (2) (C). See In re Alexander C. , 67 Conn. App. 417, 422, 787 A.2d 608 (2001), aff'd, 262 Conn. 308, 813 A.2d 87 (2003). In addition to expressly declining to consider the relevant evidence regarding Jacob's and N's negative feelings toward the respondent, the court failed to consider significant, additional relevant evidence that had been presented, which would have supported a finding that allowing further time for a relationship to develop would be detrimental to the children's best interests. The elephant in the room, so to speak, was the protective order. As we have noted, even the respondent conceded at trial the overarching preclusive effect that the protective order had on his ability to maintain a relationship with the children. We note that the respondent has not claimed that he ever attempted to have the protective order modified. See id., at 425, 787 A.2d 608 (deeming respondent parent's failure to seek modification of protective order relevant to analysis under § 45a-717 [g] [2] [C] ). That order, which will remain in effect until 2068-long after the children reach adulthood-would function as a significant obstacle to any future efforts that the respondent might make to reestablish a relationship with the children. It is also relevant that the respondent will not be released from prison until 2043, long after the children have reached adulthood. See In re Elvin G. , supra, 310 Conn. at 514-15, 78 A.3d 797 (recognizing that, although incarceration cannot be sole basis for termination of parental rights, courts properly may consider length of incarceration and its effects on parent-child bond). The court also failed to take into account the positions of the department, the guardian ad litem, and the attorney for the minor children, all of whom recommended termination of the respondent's parental rights. The department based its position in part on its conclusion that, with the protective order in place and the respondent incarcerated, the respondent could not be expected to be able to reestablish a relationship with the children until they reached adulthood. The unlikelihood that the respondent will be able to reestablish a relationship with the children prior to adulthood is relevant to the question of whether allowing further time would be detrimental to the best interests of the children. This court has repeatedly recognized that "stability and permanence" are "necessary for a young child's healthy development." In re Egypt E. , supra, 327 Conn. at 531, 175 A.3d 21 ; see also In re Davonta V. , 285 Conn. 483, 495, 940 A.2d 733 (2008) ("[t]ermination of a biological parent's rights, by preventing further litigation with that parent, can preserve the stability a child has acquired in a successful foster placement and, furthermore, move the child closer toward securing permanence by removing barriers to adoption"). In light of the abundance of evidence in the record contrary to the trial court's statement that there was no evidence presented that it would be detrimental to the best interests of the children to allow additional time for the respondent to develop a relationship with them, we are left with a firm conviction that a mistake has been made and, therefore, conclude that the trial court's finding was clearly erroneous. We emphasize that we take no position as to whether the trial court, after considering all of the relevant evidence, properly could have found that the petitioner failed to prove by clear and convincing evidence that it would be detrimental to the children's interests to allow the respondent more time to reestablish the relationship. Our conclusion that the trial court's finding was clearly erroneous is predicated on the court's reliance on its determination that the petitioner had presented no evidence relevant to this issue. That determination finds no support in the record. The trial court's failure to consider its own express factual findings regarding Jacob's and N's negative feelings toward the respondent, to provide any relevant explanation for discounting its finding that C had little to no memory of the respondent, as well as to acknowledge the abundant, additional relevant evidence pertaining to this issue leaves us with a firm conviction that a mistake has been made. The court should have considered all of the relevant evidence before resolving the issue. The judgment of the Appellate Court is affirmed. In this opinion PALMER, MULLINS and VERTEFEUILLE, Js., concurred. DISSENT D'AURIA, J., with whom McDONALD and ECKER, Js., join, dissenting. I would reverse the Appellate Court's judgment and remand the case to that court with direction to affirm the trial court's denial of the petitions filed by the petitioner, the maternal grandmother of the three minor children at issue, to terminate the parental rights of the respondent father, Daniel W., as to those children. My disagreement with the Appellate Court centers on what I view as its failure to adequately address the fact that in addition to finding that the petitioner had failed to prove that there was no ongoing parent-child relationship at the time of trial-a ruling the Appellate Court concluded was in error-the trial court also found that the petitioner had failed to prove that "to allow further time for the establishment or reestablishment of the parent-child relationship would be detrimental to the best interest of the child." This latter finding independently would have sufficed to deny the petitions. My disagreement with the majority is similar. I believe that by focusing on the trial court's isolated and subordinate statement that "[t]here was no evidence presented by the petitioner at trial that would support a claim that additional time to reestablish a relationship with the children would be detrimental," and declaring that statement clearly erroneous, the majority has mistakenly avoided the fact that the latter finding was equally dispositive of the trial court's denial of the petitions. In my view, the majority (1) misreads the meaning of the trial court's memorandum of decision; (2) in essence, substitutes its judgment for the trial court's judgment on an issue of fact entrusted to trial judges in our juvenile session; and (3) ultimately awards the petitioner no real practical relief. I, therefore, respectfully dissent. I The respondent is serving a total effective sentence of twenty-nine years in prison. The conduct that landed him in prison (sexually abusing his children's young aunt, who lives with them) is reprehensible. His children are not aware of that conduct, but the conduct that they believe landed him in prison (beating their mother, which they witnessed) is also reprehensible. It is not difficult to predict that this respondent might well be on the road to having his parental rights terminated. If I had been the trial judge, I might have ruled on the record presented to terminate his parental rights. But no one on this court was the trial judge in this case. The trial court judge who did address the petitions in the present case was confronted with an issue that is not unusual in juvenile cases in which a parent faces a long term of incarceration: whether and when to terminate the parental rights of the parent-inmate. The reality is that some parents serving lengthy prison sentences may not play any significant role in the upbringing of their children and will not do so because of their own conduct. Without extraordinary effort of their own or active cooperation from the children's caregivers, parent-inmates might have little or no contact with their children at all. But, as the majority observes, although a court may consider the "inevitable effects of incarceration" on an individual's ability to parent, "the fact of incarceration, in and of itself, cannot be the basis for a termination of parental rights." In re Elvin G ., 310 Conn. 485, 514, 78 A.3d 797 (2013) ; see also In re Juvenile Appeal (Docket No. 10155) , 187 Conn. 431, 443, 446 A.2d 808 (1982). Termination of parental rights implicates a fundamental constitutional right; In re Yasiel R ., 317 Conn. 773, 792, 120 A.3d 1188 (2015) ; and has implications beyond a child's childhood. When parental rights have been terminated, it becomes unlikely that the child and the parent will ever have any relationship, even as adults. Children, of course, also have rights, as well as a need for a continuous, stable home environment. See In re Davonta V ., 285 Conn. 483, 494, 940 A.2d 733 (2008). In some cases, terminating a parent's rights is exactly the right thing for a child's best interests. Perhaps this is such a case. My point in dissenting from the majority should not be read as suggesting that this respondent is a good example of someone who should necessarily play a parental role in the lives of his children, given his conduct and the other circumstances relevant to that determination. My point is that we are not well positioned to make that determination. Rather, this is a difficult decision assigned to our trial court judges sitting in the juvenile session. Specifically, as it relates to the ground asserted and solely pursued by the petitioner in the present case-"no ongoing parent-child relationship"-the trial court is entrusted not just with determining whether to terminate a parent's rights, but when to do so. In adjudicating this particular ground, as applied to a parent who will be incarcerated throughout a child's childhood, General Statutes § 45a-717 (g) (2) (C) places discretion in the hands of the trial court to determine whether the "effects of incarceration" are indeed "inevitable" under the particular facts of the case, or whether allowing more time for the relationship to establish or reestablish is detrimental to the children's best interest. II Section 45a-717 (g) provides in relevant part that "the court may approve a petition terminating . parental rights . if it finds, upon clear and convincing evidence, that (1) the termination is in the best interest of the child, and (2) . (C) there is no ongoing parent-child relationship which is defined as the relationship that ordinarily develops as a result of a parent having met on a continuing, day-to-day basis the physical, emotional, moral and educational needs of the child and to allow further time for the establishment or reestablishment of the parent-child relationship would be detrimental to the best interests of the child ." (Emphasis added.) Thus, to satisfy subsection (g) (2) (C) of the statute, the court must find both (1) that the petitioner has established that there is no ongoing parent-child relationship (the "no ongoing parent-child relationship" prong) and (2) that permitting the parent further time to establish or reestablish such a relationship would be detrimental to the children's best interests (the "further time" prong). See In re Jonathon G ., 63 Conn. App. 516, 525, 777 A.2d 695 (2001). The petitioner must prove both prongs by clear and convincing evidence. See In re Baby Girl B ., 224 Conn. 263, 300-301, 618 A.2d 1 (1992). The trial court in the present case found that the petitioner had failed to establish either prong by clear and convincing evidence. Specifically, the court found "that the petitioner has not demonstrated that there is a lack of parent-child relationship nor that it would be detrimental to allow further time for the establishment of the relationship." (Emphasis added.) Regarding the "further time" prong, the trial court stated that "[t]here was no evidence presented by the petitioner at trial that would support a claim that additional time to reestablish a relationship with the children would be detrimental." The trial court also found that terminating the respondent's parental rights would not have been in the best interest of the children. III Rather than awaiting the "further time" contemplated by § 45a-717 (g) (2) (C) and either amending her petitions or bringing new petitions, the petitioner appealed to the Appellate Court, claiming that all three of the trial court's critical findings were clearly erroneous. Specifically, she argued to the Appellate Court that upon the record presented, the trial court should have found by clear and convincing evidence that (1) there was no ongoing parent-child relationship between the respondent and his children; (2) permitting the respondent further time to establish or reestablish such a relationship would be detrimental to the children's best interests; and (3) termination of the respondent's parental rights would be in the children's best interests. The petitioner claimed that if she was correct that the trial court erred in each of its findings, she would be entitled to directed judgments terminating the respondent's rights, rather than merely the new trial the Appellate Court ordered and the majority today affirms. See In re James T ., 9 Conn. App. 608, 520 A.2d 644 (1987) ("[f]rom the facts presented in the court's memorandum, to the effect that [the Department of Children and Families (department) ] 'clearly established' that it is not in the child's best interest to allow further time to establish a relationship, we conclude that [the department] did meet its burden of clear and convincing proof, and the petition should have been granted"). As the majority notes, the Appellate Court did not address the petitioner's claims on appeal that the trial court's findings were clearly erroneous. Nor did it address at all the trial court's finding that it had not been proven to the court that allowing further time would be detrimental to the children's best interests. Instead, the Appellate Court reversed the trial court's judgments denying the petitions, holding that the trial court's reasoning was legally and logically inconsistent, and that its factual findings were fatally inconsistent. In re Jacob W ., 178 Conn. App. 195, 215, 172 A.3d 1274 (2017). Specifically, the Appellate Court held that the trial court had applied the wrong legal test to determine whether there was an ongoing parent-child relationship. Id., at 211, 172 A.3d 1274. It determined that the trial court's findings were legally inconsistent in that the trial court found both "that an ongoing parent-child relationship exists and that unreasonable interference inevitably prevented the respondent from maintaining an ongoing parent-child relationship." (Emphasis omitted.) Id. It also determined that the trial court's findings were factually inconsistent in that the trial court "found both that the grandparents' unreasonable conduct constituted interference and that there was no evidence of unreasonable interference by any person." Id., at 215-16, 172 A.3d 1274. The Appellate Court therefore ordered a new trial on the petitioner's amended petitions. Id., at 219, 172 A.3d 1274. Although the trial court's memorandum of decision is not entirely clear-and is in one place inconsistent-neither the parties nor the Appellate Court saw fit to ask the trial court to clarify or articulate its ruling. See Practice Book § 66-5 ; see also In re Jason R ., 306 Conn. 438, 460, 51 A.3d 334 (2012) (trial court states burden of proof correctly in articulations to clarify ambiguity in memorandum of decision regarding allocation of burden of proof). Trial court judges operate under tremendous time pressure and without the resources available to this court and the Appellate Court. See K. Stith, " The Risk of Legal Error in Criminal Cases: Some Consequences of the Asymmetry in the Right to Appeal," 57 U. Chi. L. Rev. 1, 61 n.99 (1990) ("appellate judges have more resources [time, staff, and so on than trial judges]"). Thus, a trial court "opinion must be read as a whole, without particular portions read in isolation, to discern the parameters of its holding." (Internal quotation marks omitted.) In re Jason R ., supra, at 453, 51 A.3d 334. More significantly for this case, even if the trial court's decision was in some way unclear, the examples provided by the Appellate Court concerned only the "no ongoing parent-child relationship" prong. The Appellate Court identified no lack of clarity or inconsistency concerning the "further time" prong, which provides an independent basis for upholding the trial court's decision. See footnote 6 of this dissenting opinion. Therefore, whatever flaws the trial court's opinion might have contained, I had no trouble understanding from my review that the court found that the time had not yet come to terminate the respondent's parental rights. I therefore would not have reversed the trial court's judgments on the ground that the Appellate Court did. IV We granted certification in the present case limited to the following issue: "Did the Appellate Court correctly reverse the trial court's judgment denying the custodian's petition to terminate the father's parental rights when it determined that the trial court's judgment was legally and logically inconsistent?" In re Jacob W ., 328 Conn. 902, 177 A.3d 563 (2018). The majority does not affirm the Appellate Court's judgment on the "legally and logically inconsistent" rationale of that court, however, but rather, it concludes that in addressing the "no ongoing parent-child relationship" prong, the trial court did not properly take account of the "children's negative feelings toward or lack of memory of the respondent," improperly focusing instead on the respondent's conduct. I do not believe we need to reach that issue, however (and I do not), because even if the trial court considered the "no ongoing parent-child relationship" prong under an incorrect standard, the trial court also found that the petitioner had failed to establish that "to allow further time for the establishment or reestablishment of the parent-child relationship would be detrimental to the best interest of the child." In my view, the trial court's ruling on this second prong sufficed independently to deny the petitions. The majority does not hold, as the petitioner has asked us to hold, that the trial court's ruling on the "further time" prong is clearly erroneous and that, therefore, this prong has in fact been established by clear and convincing evidence. This would be a difficult chore. Determining that a trial court's finding that the failure to prove an element by clear and convincing evidence is clearly erroneous is even more challenging an undertaking than contesting any other pedestrian finding. The majority instead takes on a subordinate statement of the trial court: "[t]here was no evidence presented by the petitioner at trial that would support a claim that additional time to reestablish a relationship with the children would be detrimental." The majority protests that there was in fact "evidence presented that was relevant to this question" and that for the trial court to say otherwise was so clearly erroneous that a new trial is warranted. The examples the majority provides, however, are not in my view directly relevant to the finding that further time would not be detrimental , but instead relate to whether additional time will be productive . For example, the majority states that there was evidence that the children had intensely negative feelings about the respondent (including feelings that he is a bad parent) or no present feelings at all. The children were not asking to see or speak with him and wanted to have their last name changed. The majority also claims that the trial court did not consider the recommendations of the department, the guardian ad litem, and the children's attorney to terminate the respondent's parental rights, along with whether the little "likelihood" of reestablishing a relationship, and the time it would have taken to do so, would have been detrimental to the children's best interest. However, I do not agree with the majority that the trial court did not give consideration to all of the evidence the majority cites. In my view, a full and fair reading of the memorandum of decision does not support a conclusion that the trial court "did not accord any effect to," "did not consider," or "took no account of" such evidence. Judges presumptively consider whatever evidence is in front of them. See Lewis v. Commissioner of Correction , 117 Conn. App. 120, 128, 977 A.2d 772 ("There is nothing in the record that suggests that the court failed to review thoroughly the testimony and evidence submitted to it.... [A] judge is presumed to have performed his duty properly unless the contrary appears [in the record]." [Internal quotation marks omitted.] ), cert. denied, 294 Conn. 904, 982 A.2d 647 (2009). And here, the trial court did expressly find and take note in its memorandum of decision of the children's negative and nonexistent feelings, as well as the department's report and the guardian ad litem's recommendation. Thus, unlike the majority, I would not so strictly scrutinize the trial court's statement that there was "no evidence . that would support a claim that additional time to reestablish a relationship with the children would be detrimental." The majority finds fault with this statement because, in its view, there was relevant evidence. Just because evidence is relevant, however, does not mean it clearly and convincingly establishes a fact. I read the trial court's statement as more likely meaning that the court found "no direct evidence" or "no persuasive evidence" that more time would be detrimental. "[W]e read an ambiguous trial court record so as to support, rather than contradict, its judgment." (Internal quotation marks omitted.) In re Jason R ., supra, 306 Conn. at 453, 51 A.3d 334. The trial court might not have been persuaded by the evidence the majority believes it should have been persuaded by, but instead determined that there was not clear and convincing evidence that affording additional time would be detrimental to the children's best interests. Although the trial court's analysis may be sparse, it is clear to me from its factual findings that it considered all the evidence in reaching its determination as to the "further time" prong. In my view, the majority has substituted its judgment for the discretion of the trial court and called it clearly erroneous review. For example, the trial court could have found that, although relevant, the children's statements of dislike of the respondent were not direct evidence of further time being detrimental to their best interest. Although a trial court could have found that further time would be detrimental because the children were upset and any further contact with the respondent would serve only to upset them further, it also could have found that those negative feelings were going to exist regardless of whether the respondent's parental rights are terminated, that termination will not affect those feelings, and that additional time might provide an opportunity for the respondent to attempt to repair his relationship with his children. In fact, in many of such "no ongoing parent-child relationship" cases, the present feelings of the children may be negative or nonexistent. That is why the relationship has to be reestablished. And, that is what the additional time is for: things can change. Thus, when the trial court stated that "[t]he statements of dislike by very young children with false information about [the respondent] does not establish by clear and convincing evidence that reestablishing a relationship would be detrimental," I think that means no more than that: the quantum of evidence necessary was not met by the cited evidence. Further, although the trial court acknowledged that the department had recommended termination of the respondent's parental rights, and that the guardian ad litem found it unlikely that further time would be productive on the basis of the respondent's incarceration and the ongoing protective order preventing contact between him and the children, it did not find this to be direct evidence of detriment if it allowed further time. Lack of productivity does not necessarily equate to detriment, but rather is a factor to consider in determining whether further time would be detrimental. Although the trial court in this case could have found that there was little likelihood of productivity because of the protective order, it also could have found that because the respondent could have sought to modify the protective order or set up some arrangement to have contact with his children, there was a possibility that further time would give the respondent an opportunity to reestablish his relationship with his children. Thus, although relevant, this evidence does not necessarily support a claim that additional time to reestablish a relationship with the children would be detrimental. It is for the trial court to determine whether there is a lack of productivity and, if so, whether it would be detrimental. The trial court in the present case determined that any predicted lack of productivity in providing additional time did not equate to detriment-in this case, at that time-especially in light of the fact that the children had been thriving with their grandparents. In my view, this finding is not clearly erroneous. It is important that in reviewing such a finding, we do not substitute our own judgment for the trial court's judgment on an issue of fact entrusted to trial judges in our juvenile session because, especially in cases involving incarcerated parents, it will be a highly fact-bound question whether additional time is not likely to establish or reestablish the relationship. It is not necessarily true that in each of those cases, granting the additional time would be detrimental. Rather, this is, in my view, an issue best left to the trial judge, who is in the best position to weigh the evidence before her or him. V Hard cases make bad law. In my view, this case qualifies. The respondent's appalling conduct and its consequences would seem to make it highly unlikely that he will play a significant parenting role in his children's lives. I am concerned, however, that the majority's opinion will be read to require trial court judges to consider the "further time" prong to be more of a predictor of the likelihood of reestablishing a relationship. Although I agree that the likelihood that further time will be productive may be a factor in determining whether further time would be detrimental to the children's best interest, I am concerned that judges sitting in our juvenile session will interpret the majority's opinion as equating the probable lack of productivity with detriment. Thus, in this case, I do not believe that any assumed lack of productivity should not be considered by the trial court, but rather I believe that the trial court did indeed consider it and did not find it to be evidence of detriment. There is no requirement that a trial court make a finding of detriment even if there is little foreseeability of reestablishing a relationship. Rather, this is a fact-based issue that will differ under the circumstances of each case. Unless the court's finding is clearly erroneous, we should defer to the trial court's judgment on such an issue. Otherwise, I am concerned that appellate scrutiny will override and overshadow the trial court's prerogative to weigh the evidence and determine not only whether parental rights should be terminated, but when. I am simply unwilling to arrogate to myself the authority to make this determination, and unwilling to so strictly scrutinize the trial court's memorandum of decision in such a pursuit. I am especially unwilling to do so when the reward the majority confers upon the petitioner is so meager. The majority's decision today will not hasten the termination of the respondent's parental rights. In fact, the appellate process might very well have delayed it. This is because all the petitioner has gained by prevailing before both the Appellate Court and this court is a new trial on a trio of two year old petitions. A Pyrrhic victory to be sure. Practically, this is no relief at all because any new trial that follows from a reversal of the trial court's denial of the petitions will necessarily have to measure any "ongoing" relationship as of the time of the new trial, not based on the date of the prior trial. See In re Juvenile Appeal (83-DE) , supra, 190 Conn. at 318, 460 A.2d 1277 ("the issue of whether termination of parental rights is appropriate must be decided upon the basis of conditions as they appear at the time of trial"). If a new trial on these petitions would be any different from a trial on new petitions alleging no ongoing parent-child relationship, that difference is lost on me. See footnote 3 of this dissenting opinion. It is little wonder that that is not the relief the petitioner sought in the Appellate Court, but rather that she sought directed judgments based upon an appellate determination that all of the trial court's findings on the elements of the no ongoing parent-child relationship prong were clearly erroneous. Thus, although my disagreement with the majority is fundamental, it results in little difference to the parties in this case. I therefore respectfully dissent. This court granted the respondent father's petition for certification to appeal, limited to the following issue: "Did the Appellate Court correctly reverse the trial court's judgment[s] denying the custodian's petition[s] to terminate the father's parental rights when it determined that the trial court's judgment[s] [were] legally and logically inconsistent?" In re Jacob W. , 328 Conn. 902, 177 A.3d 563 (2018). After hearing the parties and considering the case more fully, we conclude that the certified question does not properly frame the issues presented in the appeal because it inaccurately reflects the holding of the Appellate Court. The Appellate Court reversed the judgments of the trial court on the basis that the trial court applied an incorrect legal test to determine whether the petitioner had proven the lack of an ongoing parent-child relationship. In re Jacob W. , 178 Conn. App. 195, 198-99, 172 A.3d 1274 (2017). We therefore rephrase the certified issue as whether the Appellate Court properly reversed the trial court's judgments on the basis that the court applied an incorrect legal test to deny the petitions. See, e.g., Stamford Hospital v. Vega , 236 Conn. 646, 656, 674 A.2d 821 (1996) (court may rephrase certified question to more accurately reflect issues presented on appeal). As the Appellate Court explained, "[t]he maternal grandmother is the petitioner pro forma. Both maternal grandparents are currently custodians, and the maternal grandfather signed the applications for termination of parental rights ." In re Jacob W. , 178 Conn. App. 195, 198 n.1, 172 A.3d 1274 (2017). Because we do not rest our affirmance of the judgment of the Appellate Court on the basis of any inconsistent statements in the trial court's memorandum of decision, we need not resolve whether the Appellate Court properly concluded that any inconsistent statements in the memorandum of decision required the conclusion that the trial court applied an incorrect legal test. Because the children were not in its custody, the department was unable to assist the respondent. The respondent reiterates his claim, rejected by the Appellate Court; In reJacob W. , supra, 178 Conn. App. at 209 n.12, 172 A.3d 1274 ; that the "virtual infancy exception" should apply to C, who was one year old at the time of the respondent's incarceration. As the Appellate Court acknowledged, the parties "concede" that the virtual infancy exception applied to C. Id. That court correctly concluded, however, that the parties' concession was irrelevant. The trial court did not rely on the virtual infancy exception and made no finding that C qualified as an infant. We further observe that the parties are incorrect. It is not C's age at the time of the respondent's incarceration three years prior to the termination hearing that controls for purposes of the application of the virtual infancy exception, but C's age, four years old, at the time of the termination hearing. To determine whether a petitioner has established the lack of an ongoing parent-child relationship, the trial court must be able to discern a child's present feelings toward or memories of a respondent parent. The virtual infancy exception takes account of the particular problem that is presented when a child is too young to be able to articulate those present feelings and memories. See In re Valerie D. , supra, 223 Conn. at 532, 613 A.2d 748 (referring to difficulty of trial court's discerning child's "present" feelings). It would make no sense to require a trial court to resolve whether a child's feelings could have been determined at some time prior to the termination hearing. The inability of the court to discern or to be presented with evidence regarding a virtual infant's present feelings drives the exception. That finding must be made at the time of the termination hearing. The present case serves as an apt illustration. The trial court had no difficulty discerning C's present memories of or feelings toward the respondent. The court expressly found that C had "little to no memory" of him. Accordingly, there was no need to apply the virtual infancy exception. The respondent contends that, even if we conclude that the Appellate Court properly held that the trial court applied an improper legal test to conclude that the petitioner had failed to prove the lack of an ongoing parent-child relationship, the error was harmless because the trial court independently determined in the disposition phase that termination was not in the best interests of the children. The respondent's claim ignores the fact that the trial court's analysis of the best interests of the children was affected by its application of an incorrect legal test during the adjudicatory phase. The court's consideration of the children's best interests reflects the same focus on the facts that the court improperly relied on in concluding that the petitioner had failed to prove no ongoing parent-child relationship. Specifically, in determining that termination was not in the best interests of the children, the court relied heavily on the possible motives of the grandparents in failing to tell the children the true reason for the respondent's incarceration, the efforts that the respondent had made to maintain a relationship with the children, and the grandparents failure to provide updates about the children to the respondent. We emphasize that our decision today is grounded in our review of the trial court's analysis of both prongs of § 45a-717 (g) (2)(c). We note that the court also found that Jacob had previously had more positive feelings toward the respondent. It is the child's present feelings and memories, however, that are relevant for purposes of § 45a-717 (g) (2) (C). Of course, because this court cannot engage in fact-finding, we cannot go any farther than to conclude that the trial court's finding-that there was no evidence in the record to support the petitioner's claim that allowing further time for a parent-child relationship to develop would be detrimental to the children's best interests-was clearly erroneous. Accordingly, we disagree with the dissent's statements that the majority opinion "awards the petitioner no real practical relief" and that it would have been appropriate for this court to direct judgment terminating the respondent's parental rights. The petitioner did not request that this court order a directed judgment. Even if she had, we could not order that relief. Our decision today merely affirms the judgment of the Appellate Court setting aside the denial of the petitions. The respondent retains the right to present evidence and to hold the petitioner to her burden of proof. The proper venue for the respondent to exercise that right is in the trial court. The petitioner received the sole relief that she sought from this court: the affirmance of the judgment of the Appellate Court, which remanded the case to the trial court for a new termination hearing. Further, whether the petitioner would file new petitions for termination if we were to reverse the judgment of the Appellate Court is not relevant to our decision today. The petitioner originally alleged that the children had been denied the care, guidance, or control necessary for their physical, educational, moral, or emotional well-being by reason of acts of parental commission or omission. See General Statutes § 45a-717 (g) (2) (B). In her amended petitions, the petitioner withdrew that allegation and instead alleged abandonment and the lack of an ongoing parent-child relationship as grounds for termination. See General Statutes § 45a-717 (g) (2) (A) and (C). The trial court ruled against the petitioner on both grounds. The only ground relevant to this appeal, however, is the ground of no ongoing parent-child relationship. See General Statutes § 45a-717 (g) (2) (C). In support of these findings, the trial court made the following subordinate findings: The respondent is the father of three children, Jacob, N, and C. Because of a protective order put into place to prevent the respondent from having contact with the children's maternal aunt, with whom they live, the respondent has not been able to contact his children while in prison. Nevertheless, while incarcerated, he has requested assistance to arrange visits with and updates about his children, and participated in programs to send Christmas gifts to them. Although Jacob initially stated that he missed the respondent, he has since called him a "bad parent." N has stated that he hates the respondent, and C has little to no memory of him. Both Jacob and N have stated that they want no contact with the respondent. The children have bonded with the petitioner, their maternal grandmother, who wants to change their last name. Additionally, the guardian ad litem has opined that termination of the respondent's parental rights is in the children's best interest because there would be no benefit in the children forming a relationship with him, as he will be incarcerated for the remainder of their childhood. My research identifies nothing that prevents (or would have prevented) the petitioner from pursuing termination on the "no ongoing parent-child relationship" ground, or any other ground, at some point after the trial court ruled against her on the present petitions. This court has held that a party can file an amended or new petition alleging either new grounds or a material change in circumstances so as to avoid both res judicata and collateral estoppel issues. See In re Baby Girl B ., supra, 224 Conn. at 293-94, 618 A.2d 1 ("it makes no difference whether [the Department of Children and Families] chooses to honor its obligation by filing an amended petition or by filing a second independent petition alleging [a material change in circumstances or] new grounds for termination"); see id., at 294 n. 19, 618 A.2d 1 ; In re Juvenile Appeal (83-DE) , 190 Conn. 310, 318-19, 460 A.2d 1277 (1983) ("[T]he doctrines of res judicata and collateral estoppel ordinarily afford very little protection to a parent who has once successfully resisted an attempt to terminate his [or her parental] rights to a child.... An adjudication that a ground for termination did not exist at one time does not mean such ground has not arisen at a later time." [Citations omitted.] ). This is because § 45a-717 (g) (2) (C) looks at whether there is a present ongoing relationship, which necessarily must be assessed as of the time of trial. See In re Juvenile Appeal (83-DE) , supra, at 318, 460 A.2d 1277 ("the issue of whether termination of parental rights is appropriate must be decided upon the basis of conditions as they appear at the time of trial"). In the absence of an articulation, we do not know if the trial court's memorandum of decision truly is inconsistent, or if the legal "inconsistencies" are arguments in the alternative and the factual "inconsistencies" are scrivener's errors. Because we must read a memorandum of decision as a whole; In re Jason R ., 306 Conn. 438, 453, 51 A.3d 334 (2012) ; and because there is a presumption that the trial court properly applied the law and considered the facts; State v. Henderson , 312 Conn. 585, 598, 94 A.3d 614 (2014) ; Walton v. New Hartford , 223 Conn. 155, 165, 612 A.2d 1153 (1992) ; we should construe these "inconsistencies" to conform to the trial court's holding. The majority states that the trial court's holding under the dispositional phase of the proceedings that termination was not in the children's best interest also "was affected by its application of an incorrect legal test during the adjudicatory phase" and by these inconsistencies. These concerns do not apply to the trial court's finding under the "further time" prong. The "best interest" analysis under the second prong of § 45a-717 (g) (2) (C) is separate and distinct from the "best interest" analysis under subsection (g) (1). Citing In re Juvenile Appeal (Anonymous) , 177 Conn. 648, 675-76, 420 A.2d 875 (1979), the majority indicates that "[o]nly if" the trial court determines that the petitioner has proven the lack of an ongoing parent-child relationship "may it turn to the second part of the inquiry ." The majority focuses on a single sentence from In re Juvenile Appeal (Anonymous) : "The 'best interests' standard . comes into play only if it has been determined that no ongoing parent-child relationship exists, in order to decide whether allowance of further time for the establishment or reestablishment of the relationship would be contrary to the child's best interests." (Emphasis omitted.) Id. The majority and the Appellate Court have interpreted this sentence to mean that the trial court cannot and should not address the "further time" prong unless the "no ongoing parent-child relationship" prong has been established. If there is an ongoing relationship, then there is no reason or purpose for affording further time to establish such a relationship. Thus, according to the majority, if this court determines that the trial court's finding as to the first prong was clearly erroneous, it cannot affirm the trial court's decision on the basis of the second prong, but rather must remand the case for a new trial. I do not agree with such an interpretation of In re Juvenile Appeal (Anonymous) , especially when reading the sentence at issue in context. In In re Juvenile Appeal (Anonymous) , the juvenile court found there to be no meaningful ongoing parent-child relationship, and, on appeal, the Superior Court upheld that decision, "characteriz[ing] the decision of the Juvenile Court as holding that 'it was in the best interest of said child that the petition for termination of parental rights be granted.' " In re Juvenile Appeal (Anonymous) , supra, 177 Conn. at 675, 420 A.2d 875. In doing so, the Superior Court combined the first and second prongs of § 45a-717 (g) (2) (C), upholding the juvenile court's finding of no meaningful ongoing parent-child relationship under the first prong because it was in the children's best interest. This court in In re Juvenile Appeal (Anonymous) was holding that the Superior Court improperly upheld the juvenile court's finding as to the first prong on the basis of the child's best interest, which could be considered only as a part of the second prong. Based on this context, I do not read the sentence cited by the majority as prohibiting a trial court from considering the "further time" prong unless the "no ongoing parent-child relationship" prong is first established. Rather, this sentence establishes simply that "best interest" is considered only as part of the second prong, not the first prong. If the cited sentence in In re Juvenile Appeal (Anonymous) is read to mean that the trial court cannot consider the second prong ("further time") before it has found the first prong to be established, in my view this court should overrule that holding. Although it is obvious that the trial court may not grant a termination petition if it does not find the lack of an ongoing parent-child relationship, because both prongs must be established, the petition can fail under either prong. Similarly, even if the trial court finds there is not clear and convincing evidence of no ongoing parent-child relationship, there is no reason why the court cannot go on to determine whether further time would be detrimental as an alternative reason for denying the petitions. See Meribear Productions, Inc . v. Frank , 328 Conn. 709, 724, 183 A.3d 1164 (2018) ("whenever feasible, the far better practice would be for the trial court to fully address the merits of all theories litigated, even those that are legally inconsistent"). In my view, an example of what would be direct evidence (or at least more direct evidence) might be where termination will lead to a different placement or some other contingency. But here, these children will be with the grandparents, regardless. The majority takes issue with the trial court's statement that "[t]he statements of dislike by very young children with false information about [the respondent] does not establish by clear and convincing evidence that reestablishing a relationship would be detrimental." According to the majority, the trial court improperly discounted "the negative feelings of the children on the basis of the grandparents' alleged 'interference,' " and, if properly considered, these negative feelings would have been at least some evidence that further time would be detrimental, making the trial court's finding of "no evidence" clearly erroneous. The problem with this argument, however, is that it presupposes that the children's negative feelings necessarily equate to evidence that further time would be detrimental to their best interest. As explained previously, the children's negative feelings reasonably can be considered not to be direct evidence of detriment, but rather are open to interpretation by the trial court. In her appeal to the Appellate Court, the petitioner specifically asked the court to direct judgments terminating the respondent's parental rights on the ground that the trial court's findings as to § 45a-717 (g) (2) (C) were clearly erroneous because its subordinate findings establish that there was no ongoing parent-child relationship and that allowing further time would be detrimental to the children's best interest. Although the petitioner has repeated this argument before this court as an alternative ground for affirming the judgment of the Appellate Court, she has not specifically requested directed judgments from this court.

12485011

In re ZEN T.

In re Zen T.

2016-04-19

No. 38305.

469

474

138 A.3d 469

138

West's Atlantic Reporter, Third Series

Connecticut Appellate Court

Connecticut

2021-08-27T20:57:13.994284+00:00

Fastcase

In re ZEN T.

In re ZEN T. No. 38305. Appellate Court of Connecticut. Argued Feb. 11, 2016. Decided April 19, 2016. Heather S., self-represented, the appellant (respondent mother). Michael Besso, assistant attorney general, with whom, on the brief, were George Jepsen, attorney general, Gregory T. D'Auria, solicitor general, and Benjamin Zivyon, assistant attorney general, for the appellee (petitioner). GRUENDEL, PRESCOTT and SCHALLER, 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. April 19, 2016, the date that this decision was released as a slip opinion, is the operative date for all substantive and procedural purposes. The listing of judges reflects their seniority status on this court as of the date of oral argument.

2741

16714

SCHALLER, J. The respondent, Heather S., whose parental rights had been terminated in a prior proceeding, appeals from the judgment of the trial court dismissing, on the basis of lack of subject matter jurisdiction, her motion to open and set aside the adoption of her minor child, Zen T. We affirm the judgment of the trial court. This court affirmed the judgment of the trial court terminating the respondent's parental rights in In re Zen T., 149 Conn.App. 376, 88 A.3d 1286, cert. denied, 312 Conn. 911, 93 A.3d 593 (2014). In that opinion, we set forth the following facts and procedural history: "The petitioner, the Commissioner of Children and Families . filed a petition with the court, requesting that the parental rights of the [respondent] be terminated. The statutory ground alleged in the petition against the [respondent was] that the child [had] been denied, by reason of an act or acts of parental commission or omission, including, but not limited to, sexual molestation or exploitation, severe physical abuse or a pattern of abuse, the care, guidance, or control necessary for the child's physical, educational, moral, or emotional well-being, [pursuant to] General Statutes § 17a-112 (j)(3)(C). The matter was tried to the court.... The [respondent] was present and was represented at trial by counsel.... The petitioner called nine witnesses and introduced twenty exhibits. [The respondent] called nine witnesses, testified in her own behalf and introduced twenty-one exhibits. "After the trial concluded, the court held that the petitioner proved, by clear and convincing evidence, that: (1) the Department of Children and Families (department) made reasonable efforts to reunify the family, as required by § 17a-112 (j)(1) ; (2) termination was in the best interest of the child, pursuant to § 17a-112 (j)(2) ; and (3) with respect to § 17a-112 (j)(3)(C), the child's various fractures and hematomas were serious physical injuries that were nonaccidental or were otherwise inadequately explained. The court further found that all seven grounds for termination delineated in § 17a-112 (k) existed. It then ordered the termination of the [respondent's] parental rights." (Footnote omitted; internal quotation marks omitted.) Id., at 378-79, 88 A.3d 1286. In her appeal from the termination judgment, the respondent claimed that she was denied effective assistance of counsel. Id., at 379, 88 A.3d 1286. This court determined that the respondent "did not meet her burden of demonstrating that any alleged inadequacy of counsel prejudiced her in a way that affected the outcome of the termination proceeding." Id., at 384, 88 A.3d 1286. We therefore affirmed the judgment of the trial court. Id. This court set out the subsequent procedural history of the termination of parental rights case in In re Zen T., 151 Conn.App. 724, 95 A.3d 1258, cert. denied, 314 Conn. 911, 100 A.3d 403 (2014), cert. denied sub nom. Heather S. v. Commissioner of Children & Families, - U.S. -, 135 S.Ct. 2326, 191 L.Ed.2d 991 (2015) : "After she had filed her first appeal, the [respondent] filed a motion in the trial court to open or set aside the judgment on December 30, 2013, approximately four months after that court's judgment. She alleged ineffective assistance of counsel, unethical practices by the department, insufficient evidence, the unconstitutionality of § 17a-112, and a violation of her right to be heard as the bases for her motion. "The court held a hearing on January 16, 2014, at which time the [respondent] filed an amended motion to open and set aside the judgment. The court issued an oral ruling denying the [respondent's] amended motion because she failed to allege or establish that granting the motion was in the best interest of Zen T. as required by General Statutes § 45a-719." (Footnotes omitted.) Id., at 727-28, 95 A.3d 1258. This court then affirmed the judgment of the trial court. Id., at 732, 95 A.3d 1258. On October 17, 2014, the Superior Court, Abery-Wetstone, J., approved the adoption of Zen T. On February 17, 2015, the respondent filed the motion to open that forms the basis of the present appeal. Therein, she claimed that the petitioner, the Commissioner of Children and Families, had failed to provide an accurate declaration that there were no proceedings pending or contemplated affecting the custody of the child to be adopted, as required by General Statutes § 45a-727 (a)(2). The petitioner objected on the ground that the respondent lacked standing to move to open the adoption. The trial court, Frazzini, J., heard argument on the respondent's motion and permitted the respondent to file a posthearing brief on the issue of standing. The court subsequently raised the issue of mootness and ordered both parties to provide supplemental briefing on it. It then determined that it lacked subject matter jurisdiction due to mootness, finding that because the proceedings the respondent claimed were pending at the time of the adoption had subsequently been decided adversely to her, her claim was moot. This appeal followed. The respondent claims on appeal that she has standing because the adoption has the effect, pursuant to General Statutes § 45a-719, of preventing her from filing any further motions to open the termination of parental rights, and that her motion to open is not moot because the court could open the adoption and stay its enforcement pending resolution of her challenges to the termination of parental rights, or in the alternative that an exception to the mootness doctrine applies. The petitioner claims that the respondent lacks standing, and, therefore, the dismissal was proper. We conclude that the court properly determined that it lacked subject matter jurisdiction, but we do so on standing, rather than mootness, grounds. "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.... Where a party is found to lack standing, the court is consequently without subject matter jurisdiction to determine the cause.... Our review of this question of law is plenary." (Citations omitted; internal quotation marks omitted.) J.E. Robert Co. v. Signature Properties, LLC, 309 Conn. 307, 318, 71 A.3d 492 (2013). Standing "is a practical concept designed to ensure that courts and parties are not vexed by suits brought to vindicate non-justiciable interests...." (Internal quotation marks omitted.) Harris v. Zoning Commission, 259 Conn. 402, 409-10, 788 A.2d 1239 (2002). General Statutes § 45a-707 (8) defines "Termination of Parental Rights" in relevant part as "the complete severance by court order of the legal relationship, with all its rights and responsibilities, between the child and the child's parent or parents so that the child is free for adoption ." (Emphasis added.) "[T]he state has a vital interest in expediting the termination proceedings...." (Internal quotation marks omitted.) In re Jonathan M., 255 Conn. 208, 233, 764 A.2d 739 (2001). Despite this interest in expedited proceedings, in order to protect the rights of the biological parent, General Statutes § 46b-129b (a) provides in relevant part that the commissioner may file a petition for adoption only "after the expiration of any appeal or appeal period" following the termination of parental rights, and General Statutes § 45a-719 provides in relevant part that "[t]he court may grant a motion to open or set aside a judgment terminating parental rights . provided the court shall consider the best interest of the child, except that no such motion or petition may be granted if a final decree of adoption has been issued prior to the filing of any such motion or petition...." The respondent has taken advantage of both of these avenues for protecting her rights, by appealing the judgment terminating her parental rights, moving to open that judgment and appealing from the judgment denying her motion to open. See Meinket v. Levinson, 193 Conn. 110, 113, 474 A.2d 454 (1984) ("[w]e have strongly disfavored collateral attacks upon judgments because such belated litigation undermines the important principle of finality"). Now that her parental rights have been terminated, the respondent has no more right to challenge the adoption than any member of the public. The definition of termination of parental rights itself states that its purpose is to cut off the legal rights of a parent so that an adoption can occur. It would be antithetical to this purpose if the adoption statutes or the statute that governs a motion to open a termination of parental rights gave the respondent rights that the termination of parental rights statute is intended to terminate. The respondent claims that she still has an interest in the adoption due to the potential that her motion to open the termination of parental rights could eventually be granted. The respondent's various attempts to open the termination of parental rights judgment do not make the judgment any less final. Our Supreme Court and this court have previously noted this in other contexts. "[T]he fact that the trial court has the power to open a judgment . does not mean that the judgment is not final for purposes of appeal...." (Internal quotation marks omitted.) RAL Management, Inc. v. Valley View Associates, 278 Conn. 672, 687, 899 A.2d 586 (2006), quoting Governors Grove Condominium Assn., Inc. v. Hill Development Corp., 187 Conn. 509, 510 n. 2, 446 A.2d 1082 (1982), overruled on other grounds by Morelli v. Manpower, Inc., 226 Conn. 831, 834, 628 A.2d 1311 (1993). Likewise, discovery is not available to a party who has moved to open a judgment because "[u]ntil a motion to open has been granted, the earlier judgment is unaffected, which means that there is no active civil matter." Bruno v. Bruno, 146 Conn.App. 214, 230, 76 A.3d 725 (2013). These same principles apply here; as long as the motion to open the termination of parental rights has not been granted, the parental relationship between the child and the respondent, with all its rights and responsibilities, has been severed, and the child is free for adoption. See General Statutes § 45a-707 (8). Therefore, we conclude that, under the circumstances of this case, the respondent lacked standing to move to open the approval of the adoption. The judgment is affirmed. In this opinion the other judges concurred. As noted by the trial court, the child's name was changed following the termination of parental rights; like the trial court, we will refer to the child by his former name for consistency. The respondent's motion for reconsideration of the Supreme Court's denial of her petition for certification to appeal from this court's affirmance of the trial court's denial of her first motion to open, was pending at the time the adoption was approved. The motion was filed on October 6, 2014, and denied by the Supreme Court on October 22, 2014, five days after the adoption decree. She had also filed a motion for reconsideration of her motion to stay adoption proceedings pending her anticipated appeal to the United States Supreme Court with this court on October 9, 2014, but this motion was denied on October 14, 2014, three days before the adoption decree. The respondent filed a petition for a writ of certiorari to the United States Supreme Court on March 23, 2015. It was denied on May 18, 2015. She petitioned for rehearing on June 12, 2015, and her petition for rehearing was denied on July 20, 2015. She again moved to open the termination of parental rights on October 24, 2014, and petitioned for a new termination trial on November 21, 2014. The trial court denied the motion to open on November 24, 2014, and the petition for a new trial on November 21, 2014. The respondent concedes that her pending motions have been decided adversely to her, but maintains that these denials were due to the adoption; the judges who denied her motions did not state their reasons. General Statutes § 45a-727 (a)(2) provides: "The application shall incorporate a declaration that to the best of the knowledge and belief of the declarant there is no other proceeding pending or contemplated in any other court affecting the custody of the child to be adopted, or if there is such a proceeding, a statement in detail of the nature of the proceeding and affirming that the proposed adoption would not conflict with or interfere with the other proceeding. The court shall not proceed on any application which does not contain such a declaration. For the purposes of this declaration, visitation rights granted by any court shall not be considered as affecting the custody of the child." The respondent moved to reargue her motion to open on August 25, 2015, moved for an articulation of the trial court's decision on September 30, 2015, and moved for this court to review the trial court's denial of her motion for articulation on October 13, 2015. Each motion was denied, on September 1, 2015, October 1, 2015, and October 15, 2015, respectively. Because we have determined that the respondent lacks standing, we make no determination regarding the court's mootness analysis or the respondent's additional arguments regarding the constitutionality of § 45a-719. General Statutes § 46b-129b (a) provides: "If the Superior Court grants a petition to terminate parental rights and appoints the Commissioner of Children and Families as statutory parent, the commissioner may, after the expiration of any appeal or appeal period, file a petition for adoption, together with a written agreement of adoption, in the Superior Court that granted the termination of parental rights." General Statutes § 45a-719 provides: "The court may grant a motion to open or set aside a judgment terminating parental rights pursuant to section 52-212 or 52-212a or pursuant to common law or may grant a petition for a new trial on the issue of the termination of parental rights, provided the court shall consider the best interest of the child, except that no such motion or petition may be granted if a final decree of adoption has been issued prior to the filing of any such motion or petition. Any person who has legal custody of the child or who has physical custody of the child pursuant to an agreement, including an agreement with the Department of Children and Families or a licensed child-placing agency, may provide evidence to the court concerning the best interest of the child at any hearing held on the motion to reopen or set aside a judgment terminating parental rights. For the purpose of this section, 'best interest of the child' shall include, but not be limited to, a consideration of the age of the child, the nature of the relationship of the child with the caretaker of the child, the length of time the child has been in the custody of the caretaker, the nature of the relationship of the child with the birth parent, the length of time the child has been in the custody of the birth parent, any relationship that may exist between the child and siblings or other children in the caretaker's household, and the psychological and medical needs of the child. The determination of the best interest of the child shall not be based on a consideration of the socio-economic status of the birth parent or the caretaker." Although there may be circumstances in which a biological parent, who has had his or her parental rights terminated, may have standing to challenge the decree of adoption, such circumstances are not presented here.

12508063

Nilda RIVERA v. PATIENT CARE OF CONNECTICUT et al.

Rivera v. Patient Care of Conn.

2019-03-05

AC 39154

761

763

204 A.3d 761

204

West's Atlantic Reporter, Third Series

Connecticut Appellate Court

Connecticut

2021-08-27T20:57:45.915931+00:00

Fastcase

Nilda RIVERA v. PATIENT CARE OF CONNECTICUT et al.

Nilda RIVERA v. PATIENT CARE OF CONNECTICUT et al. AC 39154 Appellate Court of Connecticut. Argued November 28, 2018 Officially released March 5, 2019 Jennifer Levine, New Britain, with whom was Harvey Levine, New Britain, for the appellant (plaintiff). Eric F. King, for the appellee (named defendant). Sheldon, Bright and Harper, Js.

1369

8762

SHELDON, J. The plaintiff, Nilda Rivera, appeals from the decision of the Compensation Review Board (board) affirming the decision of the Workers' Compensation Commissioner (commissioner), in which the commissioner approved a form 36 filed by the defendant Patient Care of Connecticut based upon a finding that the plaintiff had reached maximum medical improvement as to one of the three injuries claimed by the plaintiff and accepted by the defendant for which she had been receiving and continues to receive temporary incapacity benefits. On appeal, the plaintiff claims that the board erred in affirming the commissioner's ruling because the commissioner did not require the defendant to prove that she had a work capacity and improperly shifted the burden to her to prove that she did not have a work capacity. Because the commissioner limited his finding on the defendant's form 36 to the issue of whether the plaintiff reached maximum medical improvement as to her partial disability to her right lower extremity, he did not need to address the issue of the plaintiff's work capacity. Consequently, the record does not support the plaintiff's contention that the commissioner improperly required her to prove that she lacked a work capacity. Accordingly, we affirm the decision of the board. The following relevant facts were found by the commissioner. On May 30, 2006, the plaintiff was working as a certified nursing assistant and day care instructor for the defendant, when she sustained a fracture of the third metatarsal of her right foot, which required a surgical repair. Following surgery, she has experienced significant and persistent pain as a result of her injury. As a result of her persistent pain, she has become clinically depressed. As a result of the injury to her right foot, she also has developed bursitis in her right hip. The defendant has accepted all three of these injuries. Since the date of the plaintiff's initial injury, she has received incapacity benefits. On August 29, 2012, the defendant filed a form 36 in which it requested "transfer of benefit status from [temporary partial disability] to [permanent partial disability] based on commissioner's exam[ination] by Dr. Enzo Sella dated July 2, 2012, that places [the plaintiff] at maximum medical improvement with 6 percent impairment rating to the right lower extremity." At an informal hearing held on October 2, 2012, the commissioner approved the form 36. On December 2, 2014, the commissioner held a formal hearing on the form 36, limited to the issue of "[w]hether the [plaintiff] has reached maximum medical improvement to [her] right lower extremity with a permanent partial disability rating of six (6) percent." The commissioner issued his written finding and dismissal on March 31, 2015. The commissioner held, inter alia: "I find the opinion of Dr. Sella persuasive in that the [plaintiff] has reached maximum medical improvement of her right lower extremity with a permanent partial disability rating of 6 percent to the right lower extremity, which equates to 9 percent rating of the [plaintiff's] right foot." The plaintiff thereafter filed a motion to correct the commissioner's decision, which was denied. The plaintiff filed a petition for review with the board, claiming that "the . commissioner's decision to limit the scope of the trial de novo on the form 36 approved on October 2, 2012, to the issue of maximum medical improvement and exclude the issue of work capacity constituted error ." The plaintiff argued that the commissioner "erred by ignoring the incapacity issue and refusing to require that the [defendant] sustain [its] burden of proof showing that . she . has a work capacity." (Internal quotation marks omitted.) The board rejected the plaintiff's claim, explaining that "[a] person may reach maximum medical improvement, have a permanent partial impairment, and be temporarily totally disabled from working all at the same time.... Moreover, a [plaintiff] deemed totally disabled due to one injury or condition is entitled to receive ongoing total disability benefits even if the claimant has reached maximum medical improvement for a different injury or condition." (Citations omitted; emphasis omitted; internal quotation marks omitted.) The board noted that, here, the defendant was not seeking to terminate or reduce the plaintiff's incapacity benefits. Instead, the defendant's form 36 sought a change in the designation of her right lower extremity injury from temporary partial disability to permanent partial disability based on a claim that the plaintiff had reached maximum medical improvement as to that injury. Because the defendant was not seeking to terminate or reduce the plaintiff's incapacity benefits, the board concluded that it was "well within [the commissioner's] discretion to bifurcate the issue of temporary total disability benefits and work capacity." The board thus affirmed the commissioner's decision. This appeal followed. The plaintiff claims that the board erred in affirming the commissioner's approval of the form 36 because the commissioner failed to require the defendant to prove that she had a work capacity and improperly shifted the burden to her to prove that she did not have a work capacity. We disagree. As the board aptly noted, the defendant's form 36 requested only a finding of maximum medical improvement as to the plaintiff's right lower extremity and a change to the plaintiff's disability designation as to her right lower extremity from temporary partial to permanent partial. The defendant did not seek any change to the plaintiff's incapacity benefits. Consequently, the commissioner did not need to address the issue of the plaintiff's work capacity. Accordingly, the plaintiff's claim that the burden of proving that she did not have a work capacity was improperly shifted to her is without merit. The decision of the Compensation Review Board is affirmed. In this opinion the other judges concurred. "A [f]orm 36 is a notice to the compensation commissioner and the [plaintiff] of the intention of the employer and its insurer to discontinue [or reduce] compensation payments. The filing of this notice and its approval by the commissioner are required by statute in order properly to discontinue [or reduce] payments." (Internal quotation marks omitted.) Brinson v. Finlay Bros. Printing Co ., 77 Conn. App. 319, 320 n.1, 823 A.2d 1223 (2003) ; General Statutes § 31-296 (a). Zurich American Insurance Company, the defendant's workers' compensation insurance carrier, also is a defendant but is not a party to this appeal. We therefore refer to Patient Care Connecticut as the defendant. The commissioner also rejected the plaintiff's claims for injuries to her left foot and right shoulder. The plaintiff did not challenge that ruling. The plaintiff filed an extensive motion to correct the findings of the commissioner. That motion was denied by the commissioner and the denial of that motion was affirmed by the board. The board's ruling affirming the denial of the motion to correct has not been challenged on appeal. As noted herein, the commissioner also addressed the compensability of the plaintiff's claimed injuries to her left foot and right shoulder. The commissioner determined that those injuries were not related to her initial injury and therefore were not compensable. The plaintiff asserted two additional claims of error, but does not challenge the board's holdings on those issues on appeal. The board noted that the plaintiff had been receiving incapacity benefits pursuant to General Statutes § 31-308 (a), "which, by definition, contemplates a partial work capacity." The board concluded that any claim for temporary total disability benefits asserted by the plaintiff was outside the scope of the form 36. The plaintiff also claims that the "posttermination evidentiary hearing was fundamentally unfair and violated the plaintiff's due process rights." She claims that her constitutional right to due process was violated because "[t]he posttermination evidentiary hearing did not reconsider the plaintiff's work incapacity, and the defendant did not bear the burden of proving work capacity." As explained herein, the commissioner did not consider or make any ruling regarding the plaintiff's work capacity. The plaintiff thus raises a claim of procedural error that did not actually yield any error.

12508062

Gordon MACCALLA et al. v. AMERICAN MEDICAL RESPONSE OF CONNECTICUT, INC.

Maccalla v. Am. Med. Response of Conn., Inc.

2019-03-05

AC 40782

753

760

204 A.3d 753

204

West's Atlantic Reporter, Third Series

Connecticut Appellate Court

Connecticut

2021-08-27T20:57:45.915931+00:00

Fastcase

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

Gordon MACCALLA et al. v. AMERICAN MEDICAL RESPONSE OF CONNECTICUT, INC.

Gordon MACCALLA et al. v. AMERICAN MEDICAL RESPONSE OF CONNECTICUT, INC. AC 40782 Appellate Court of Connecticut. Argued November 26, 2018 Officially released March 5, 2019 Mark S. Kliger, New Haven, with whom, on the brief, was Irving J. Pinsky, for the appellants (plaintiffs). John M. Barr, pro hac vice, with whom, were Carolyn A. Trotta, Hartford and, on the brief, David C. Salazar-Austin, Hartford, for the appellee (defendant). DiPentima, C.J., and Lavine and Moll, Js.

3510

21995

DiPENTIMA, C.J. The plaintiffs, Gordon MacCalla, Alexis Scianna, Tyler Grailich, John Cronin, Timothy J. Yurksaitis, and Cate Saidler, appeal from the judgment of the trial court dismissing their action against the defendant, American Medical Response of Connecticut, Inc., as a sanction for the unprofessional and dilatory conduct of the plaintiffs' counsel, Attorney Irving Pinsky, during discovery. On appeal, the plaintiffs claim that the trial court erred in dismissing (1) the plaintiffs' case solely on the basis of counsel's conduct and (2) the claim of MacCalla, who had in fact complied with his discovery obligations and was not named in defendant's motion for nonsuit. We agree with the plaintiffs' second claim and reverse the judgment of dismissal as to MacCalla. We affirm the judgment of dismissal in all other respects. The following undisputed facts and procedural history are relevant to this appeal. On December 14, 2012, the plaintiffs initiated this action (2012 case) against the defendant. The operative complaint, sounding in promissory estoppel, alleged that the plaintiffs were emergency medical responders employed by the defendant and, prior to their employment, the defendant made a "clear and unambiguous promise" to each of them that they could retain simultaneous employment with Valley Emergency Medical Service, Inc. and/or Danbury Ambulance Service, Inc., while also working for the defendant. The complaint also alleged that, after they were hired, the defendant unilaterally withdrew its approval of simultaneous employment and requested that they either discontinue working for the other ambulance services or resign. The complaint alleged that they came to work for the defendant in reliance on the defendant's promise and that enforcement of this promise was "essential to avoid injustice and detriment." While this case was pending, the plaintiffs initiated a separate action (2016 case) against the defendant on August 11, 2016, alleging damages as a result of the defendant's violation of one or more provisions of the Connecticut Antitrust Act, General Statutes § 35-24 et seq. The 2016 case was consolidated with the 2012 case. On February 7, 2017, the defendant sent six sets of interrogatories and, purportedly, requests for production to Pinsky's office. On February 16, 2017, each plaintiff filed a motion for extension of time, seeking an additional thirty days in which to respond to the "interrogatories and requests for production"; the defendant did not object. Despite the extension, the plaintiffs failed to submit responses prior to the date they were due. On April 25, 2017, the defendant filed a motion for order of compliance as to each of the six plaintiffs. Contemporaneously, the defendant sought to schedule depositions of the six plaintiffs. The depositions were noticed originally for May 3 and 4, 2017, in Hartford. The plaintiffs agreed to the dates but requested that the location be moved to New Haven; the defendant assented and resent notice of the depositions accordingly. On April 26, 2017, as a result of the plaintiffs' failure to provide timely discovery responses, the defendant's counsel, Attorney David Salazar-Austin, e-mailed Pinsky, informing him that the depositions would not go forward. The next day, Pinsky replied that the discovery responses would be provided on or before May 12, 2017, and that the plaintiffs were available to be deposed on May 25, 26, and 31, and on June 1, 2017. In response, the defendant noticed the depositions for May 25 and 26, to be held at Pinsky's office in New Haven. On May 12, 2017, the plaintiffs provided responses and objections to the defendant's interrogatories. In response to the defendant's inquiry as to why the plaintiffs did not respond to the requests for production, Pinsky claimed that he never received any such requests. In an e-mail sent to Pinsky, Salazar-Austin was skeptical of this assertion, contending that the interrogatories and requests for production had been sent as a single document. In the same e-mail, Salazar-Austin asked that the plaintiffs respond promptly to the requests for production and sought to reschedule the plaintiffs' depositions. In his reply e-mail, Pinsky iterated that he had not received the requests for production and indicated that his clients would not be available for depositions until sometime between "very late June and mid-July." Because jury selection was scheduled to begin in early August, the defendant was not amenable to this time frame and filed a request for adjudication of the discovery dispute with the court. On June 5, 2017, the court held a hearing on the defendant's request for adjudication. At the hearing, the parties agreed that the plaintiffs would provide responses to the requests for production by July 7, 2017, and that the plaintiffs' depositions would be held at Pinsky's office on July 17 and 18, 2017. Although the plaintiffs argue in their brief that this agreement was never adopted as a court order, the hearing transcript clearly indicates otherwise: "[The Plaintiffs' Counsel]: My understanding is production by July 7 and depositions to be taken . [on July 17 and 18]; is that correct? "[The Defendant's Counsel]: Yes. "[The Plaintiffs' Counsel]: Yes. Okay. "The Court: Okay. That's now an order of the court." Consistent with the parties' agreement and the court's order, the plaintiffs, with the exception of Saidler, provided complete responses to the defendant's requests for production, and their depositions, starting with MacCalla, were scheduled for July 17, 2017. On that date, Salazar-Austin and Attorney John M. Barr arrived at Pinsky's office to conduct the depositions on behalf of the defendant. Accompanying them was the defendant's corporate representative, William Schietinger. Upon learning that Schietinger would be attending the depositions, the plaintiffs' counsel, Attorney Mark Kliger, objected on the ground that the Practice Book required the defendant to provide prior notice. Following a review of the Practice Book, the parties agreed that notice was required only if the deposition was to be held by remote electronic means. Nonetheless, at the start of MacCalla's deposition, the following colloquy occurred: "[Barr]: Before we get started, opposing counsel wants to make an objection on the record. So please go ahead. Did you want to object? "[Kliger]: Yes, I want to put something on the record. On behalf of Mr. MacCalla, Attorney Mark Kliger from Irving Pinsky's office. "Mr. Schietinger from [American Medical Response of Connecticut, Inc.] is present here at the deposition. He's sitting at the table where the deposition is being conducted. Counsel for [American Medical Response of Connecticut, Inc.] did not tell us in advance that Mr. Schietinger would be attending the deposition. My client, Mr. MacCalla, has indicated he feels a sense of intimidation by Mr. Schietinger's presence, and so we're going to preserve any right we have to object to Mr. Schietinger's presence. "We quoted Section 13-30 in support of our position, and there may be other Practice Book provisions as well which apply specifically to the fact that we were not given notice in advance of Mr. Schietinger's attendance at the deposition, and we did not consent to it, and also again bearing in mind Mr. MacCalla has indicated to me that he feels a sense of intimidation by Mr. Schietinger's presence. "Again, we want to preserve all rights we have with regard to an objection to this deposition and the way it's being conducted. That's it." Despite Kliger's objection, Schietinger was present at MacCalla's deposition. MacCalla testified that he did not feel physically threatened by Schietinger and, although he indicated that he was intimidated "[s]lightly" by Schietinger's presence, did not object to proceeding with the deposition. After MacCalla's deposition, the parties took a lunch break and then reconvened for the deposition of Yurksaitis. During Yurksaitis' deposition, Kliger stated the following: "[Kliger]: Okay. Also on that subject, Mr. Pinksy has asked me to place on the record as part of the objection that since Mr. Schietinger was not invited on Mr. Pinsky's property, that Mr. Pinsky considers Mr. Schietinger to be a trespasser. "[Barr]: Well, then we need to leave because if Mr. Pinsky considers him to be a trespasser, I'm not going to put my client at risk of arrest, and we'll just have to take it up with the judge. You better go talk to Mr. Pinsky really fast, because if my client is a trespasser, I am not having him subject to arrest." When Kliger returned after speaking with Pinsky, he stated the following: "[Kliger]: Okay. I've checked with Mr. Pinsky, and his position is if Mr. Schietinger is going to be-he considers Mr. Schietinger to be a trespasser, someone who's not invited on the property and was not invited to participate in the deposition." After a short discussion, in which Yurksaitis stated that he did not feel physically intimidated by Schietinger, the defendant's counsel suspended the deposition, and the two attorneys for the defendant and Schietinger left Pinsky's office. Later that day, Salazar-Austin sent Pinsky an e-mail that attempted to resolve the issue regarding Schietinger's presence at the plaintiffs' depositions. In the e-mail, Salazar-Austin indicated that if the plaintiffs' counsel was "willing to drop [his] insistence that [American Medical Response of Connecticut, Inc.'s] designated representative is a trespasser," the defendant was willing to conduct the remaining depositions the next day. On August 2, 2017, pursuant to Practice Book § 13-14 and 17-31, the defendant filed a motion for nonsuit or default and entry of judgment of dismissal or other appropriate sanctions against all of the plaintiffs except for MacCalla. In the memorandum of law accompanying that motion, the defendant sought dismissal of the plaintiffs' claims or other appropriate sanctions, given their "complete disregard for their discovery obligations ." The plaintiffs filed an objection to the defendant's motion, and, on August 11, 2017, the court heard oral argument. Following argument, the court took a brief recess before issuing its decision: "The Court: These type of cases are very complicated and require thorough preparation, and they are not-they're not rearend accident cases. "The lack of early discovery requests by the defendant does not excuse the failure to prepare one's case. The shenanigans surrounding the depositions are unprofessional and unacceptable. "The [2012] case is four and [one-half] years old and it is nowhere ready for trial. I'm dismissing the case." At that time, the court did not dismiss the consolidated 2016 case. Following its decision from the bench, the court granted the defendant's motion for nonsuit and entered a judgment of dismissal against the plaintiffs, including MacCalla, as to the 2012 case. The plaintiffs appeal from this decision. We begin by setting forth our standard of review for a trial court's imposition of sanctions pursuant to Practice Book § 13-14. "In order for a trial court's order of sanctions for violation of a discovery order to withstand scrutiny, three requirements must be met. First, the order to be complied with must be reasonably clear. In this connection, however, we also state that even an order that does not meet this standard may form the basis of a sanction if the record establishes that, notwithstanding the lack of such clarity, the party sanctioned in fact understood the trial court's intended meaning. This requirement poses a legal question that we will review de novo. Second, the record must establish that the order was in fact violated. This requirement poses a question of fact that we will review using a clearly erroneous standard of review. Third, the sanction imposed must be proportional to the violation. This requirement poses a question of the discretion of the trial court that we will review for abuse of that discretion." (Internal quotation marks omitted.) Krahel v. Czoch , 186 Conn. App. 22, 32, 198 A.3d 103, cert. denied, 330 Conn. 958, 198 A.3d 584 (2018). For the ease of discussion, we begin by addressing the plaintiffs' second claim on appeal, namely, the contention that the court abused its discretion in dismissing MacCalla's claim as a sanction for Pinsky's actions and for failing to comply with the court's June 5, 2017 order. As noted previously in this opinion, the defendant's motion for nonsuit was not directed to MacCalla, and the defendant at oral argument before this court and the trial court acknowledged that MacCalla had fully complied with his discovery obligations and the June 5, 2017 order. Accordingly, we agree with the plaintiffs that the court's sua sponte dismissal of MacCalla's claim was in error given that the defendant never alleged MacCalla was noncompliant with the discovery order and never sought sanctions against this particular plaintiff. Having resolved that the dismissal of MacCalla's claim was an abuse of discretion, we now turn to the plaintiffs' argument that the court's dismissal of the entire 2012 case was a disproportionate sanction given the noncompliance at issue. The plaintiffs contend that the court abused its discretion in dismissing the entire 2012 case because their conduct during discovery was not intended to be dilatory or obstructive and that the incident on June 17, 2017, was predicated on Pinsky's good faith, but mistaken, belief that prior notice of Schietinger's attendance was required. Additionally, the plaintiffs claim that the court erred inasmuch as the dismissal of the 2012 case constituted a sanction for conduct solely limited to counsel. In response, the defendant argues that the plaintiffs repeatedly failed to comply with discovery deadlines and, with respect to the plaintiffs' depositions, Pinsky accused Schietinger of being a trespasser after both sides had reviewed the Practice Book and determined that prior notice of a party's attendance was not required in this instance. Thus, according to the defendant, Pinsky's subsequent actions during Yurksaitis' deposition represented a deliberate indifference to the rules of practice and a wilful violation of the court's discovery order. We have examined the record and conclude that the court did not abuse its discretion in dismissing the claims of the other five plaintiffs in the 2012 case. We agree with the court's finding that Pinsky's actions were "unprofessional and unacceptable." Labeling a party's corporate representative attending a deposition a trespasser evinces a disregard for the provisions of the Practice Book and the authority of the court. This court has held previously that "where a party [has] show[n] a deliberate, contumacious or unwarranted disregard for the court's authority," dismissal of the entire case may constitute an appropriate sanction. Emerick v. Glastonbury , 177 Conn. App. 701, 736, 173 A.3d 28 (2017), cert. denied, 327 Conn. 994, 175 A.3d 1245 (2018). Moreover, we do not accept the plaintiffs' explanation in their appellate brief that Pinsky made this accusation "out of concern for the fairness of the depositions in light of intimidation felt and expressed by two of the plaintiffs," as both deponents, MacCalla and Yurksaitis, stated that they did not feel physically threatened by Schietinger and indicated a willingness to proceed with their depositions despite his presence. In any event, the appropriate action, had counsel believed that the depositions were "being conducted in bad faith or in such a manner as unreasonably to annoy, embarrass, or oppress the deponent or party," would have been to file a motion with the court to cease or limit the scope and manner of the depositions. Practice Book § 13-30 (c) ; see Practice Book § 13-5. Further, we conclude that it was not an abuse of discretion for the court to dismiss the claims of the other five plaintiffs on the basis of their counsel's actions. This case is distinguishable from Herrick v. Monkey Farm Cafe, LLC , 163 Conn. App. 45, 53, 134 A.3d 643 (2016), in which we reversed the trial court's decision to dismiss a litigant's case as a sanction for his counsel's conduct. In Herrick , the plaintiff's counsel was sanctioned $500 for failing to revise the operative complaint in accordance with an earlier court ruling. Id., at 47-48, 134 A.3d 643. When counsel failed to pay the fine in a timely fashion, the trial court dismissed the action. Id., at 48, 134 A.3d 643. On appeal, this court ruled that the entry of dismissal was a disproportionate sanction in light of the fact "that the dilatory behavior found offensive by the court involved only counsel and not the plaintiff . [and] the court made no finding that counsel's failures were wilful." Id., at 52, 134 A.3d 643. Here, the defendant sought sanctions for the plaintiffs' noncompliance with a discovery order, which was not directed solely to counsel, and the court's dismissal was predicated, at least in part, on the plaintiffs' failure to prepare their case properly. Although in some circumstances it may be unduly harsh to impute counsel's transgressions to his client, "our adversarial system [also] requires that the client be responsible for acts of the attorney-agent whom [he] has freely chosen ." Thode v. Thode , 190 Conn. 694, 698, 462 A.2d 4 (1983) ; see Sousa v. Sousa , 173 Conn. App. 755, 773 n. 6, 164 A.3d 702 ("[a]n attorney is the client's agent and his knowledge is imputed to the client" [internal quotation marks omitted] ), cert. denied, 327 Conn. 906, 170 A.3d 2 (2017). Unlike in Herrick , the court in this case found that the conduct of plaintiffs' counsel demonstrated a deliberate and contumacious disregard for its authority insofar as Pinsky's actions were determined to be "unprofessional and unacceptable," and that the noncompliance was not limited to counsel, given that the case was "nowhere ready for trial" despite the plaintiffs being afforded more than four years to prepare. Cf. Herrick v. Monkey Farm Cafe, LLC , supra, at 52-53, 134 A.3d 643 ; see also Faile v. Stratford , 177 Conn. App. 183, 210, 172 A.3d 206 (2017) (court abused its discretion in dismissing action without finding "wilful disregard of its orders"). The judgment is reversed only as to the dismissal of MacCalla's claim and the case is remanded for further proceedings thereon; the judgment is affirmed in all other respects. In this opinion the other judges concurred. The defendant asserts that its counsel sent several e-mails to Pinsky, asking when the discovery responses would be provided, but it received no response to any of those e-mails. See Practice Book § 13-30 (g) (3). Practice Book § 13-14 provides in relevant part: "(a) If any party . has failed to appear and testify at a deposition duly noticed pursuant to this chapter, or has failed otherwise substantially to comply with any other discovery order made pursuant to Sections 13-6 through 13-11, the judicial authority may, on motion, make such order as the ends of justice require. "(b) Such orders may include the following: "(1) The entry of a nonsuit or default against the party failing to comply; "(5) If the party failing to comply is the plaintiff, the entry of a judgment of dismissal." Practice Book § 17-31 provides in relevant part: "Where either party is in default by reason of failure to comply with Sections 10-8, 10-35, 13-6 through 13-8, 13-9 through 13-11, the adverse party may file a written motion for a nonsuit or default or, where applicable, an order pursuant to Section 13-14." The 2016 case was dismissed on November 20, 2017, for lack of subject matter jurisdiction. Upon review of the trial court file, it was unclear as to whether the court's entry of judgment of dismissal was based on its granting of the defendant's motion for nonsuit. Following a sua sponte request from this court, the trial court issued a clarification providing: "On August 11, 2017, this court granted the defendant's motion for nonsuit or default and entry of judgment of dismissal or other appropriate sanctions (# 144). In doing so, the court entered a judgment of dismissal in this action." To the extent the plaintiffs contend that the court never adopted the parties' agreement to conduct the depositions on July 17 and 18 as a discovery order, this argument is inadequately briefed and, therefore, does not merit our review. Ravalese v. Lertora , 186 Conn. App. 722, 724 n.1, 200 A.3d 1153 (2018) ("[c]laims are inadequately briefed when they are merely mentioned and not briefed beyond a bare assertion" [internal quotation marks omitted] ). During argument on its motion for nonsuit, the defendant conceded that it was able to take MacCalla's deposition and, therefore, was not seeking sanctions against him. The defendant contends that the court's decision constituted harmless error because MacCalla's deposition testimony reveals that his promissory estoppel claim has no evidentiary basis. We decline to address this argument, however, as it requires us to reach the merits of the underlying case in the absence of a motion for summary judgment or trial. See Emeritus Senior Living v. Lepore , 183 Conn. App. 23, 26 n.3, 191 A.3d 212 (2018) ("A court may not grant summary judgment sua sponte.... The issue first must be raised by the motion of a party and supported by affidavits, documents or other forms of proof." [Internal quotation marks omitted.] ).

12506118

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

Finney v. Cameron's Auto Towing Repair

2019-02-19

AC 41716

522

522

201 A.3d 522

201

West's Atlantic Reporter, Third Series

Connecticut Appellate Court

Connecticut

2021-08-27T20:57:43.751599+00:00

Fastcase

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

John K. FINNEY v. CAMERON'S AUTO TOWING REPAIR AC 41716 Appellate Court of Connecticut. Argued January 28, 2019 Officially released February 19, 2019

29

188

Per Curiam. The judgment is affirmed.

12485007

STATE of Connecticut v. Javier R. MONGE.

State v. Monge

2016-04-26

No. 37699.

450

455

138 A.3d 450

138

West's Atlantic Reporter, Third Series

Connecticut Appellate Court

Connecticut

2021-08-27T20:57:13.994284+00:00

Fastcase

STATE of Connecticut v. Javier R. MONGE.

STATE of Connecticut v. Javier R. MONGE. No. 37699. Appellate Court of Connecticut. Argued March 3, 2016. Decided April 26, 2016. Glenn L. Formica, New Haven, for the appellant (defendant). Jacob Pezzulo, certified legal intern, with whom were Harry Weller, senior assistant state's attorney, and, on the brief, David I. Cohen, former state's attorney, and Nancy Dolinsky, senior assistant state's attorney, for the appellee (state). GRUENDEL, BEACH and SHELDON, Js. The listing of judges reflects their seniority status on this court as of the date of oral argument.

2116

13272

GRUENDEL, J. The defendant, Javier R. Monge, appeals from the judgments of the trial court dismissing his postsentencing motion to vacate his guilty pleas and to open the judgments of conviction. The dispositive issue is whether the court properly concluded that it lacked jurisdiction to consider the merits of that motion. We answer that query in the affirmative and, accordingly, affirm the judgment of the trial court. The following facts are relevant to this appeal. The defendant, who is not a citizen of the United States, was involved in two domestic altercations on June 16, 2013, and August 12, 2013. He thereafter was charged with various criminal offenses. Pursuant to a conditional plea agreement, the defendant, on November 12, 2013, pleaded guilty to risk of injury to a child in violation of General Statutes § 53-21, criminal violation of a protective order in violation of General Statutes § 53a-223, assault in the third degree in violation of General Statutes § 53a-61, criminal trespass in the first degree in violation of General Statutes § 53a-107, two counts of disorderly conduct in violation of General Statutes § 53a-182, and two counts of breach of the peace in the second degree in violation of General Statutes § 53a-181. In accordance with the terms of the plea agreement, the court at the plea hearing explained that if the defendant successfully completed (1) "the Evolve program," (2) an anger management program, and (3) substance abuse evaluation and treatment, and further cooperated with the Department of Children and Families through parenting classes and counseling without any further arrests, his pleas to the felony charges of risk of injury and criminal violation of a protective order would be vacated and he would receive a sentence of three years incarceration, execution suspended, with three years of probation on the remaining misdemeanor charges. The defendant subsequently complied with those requirements and the court, on November 4, 2014, vacated his guilty pleas with respect to the risk of injury and criminal violation of a protective order charges. At that time, the court imposed a total effective sentence of three years incarceration, execution suspended, with three years of probation on the remaining charges. More than one month after he was sentenced, the defendant moved to vacate his remaining guilty pleas and to open the judgments of conviction rendered by the court. On January 30, 2015, the defendant filed his "Amended Motion to Vacate Pleas and Reopen Pursuant to Connecticut Practice Book § 39-19, 39-27(1)." In that motion, the defendant argued "that the plea was accepted without first determining that [he] fully understood the plea." The court held a hearing on the defendant's motion to vacate his pleas and to open the judgments of conviction on February 9, 2015. At that hearing, the defendant acknowledged that the state had complied with the terms of his conditional pleas. The defendant also did not dispute that the court properly advised him of the immigration consequences of his pleas during the November 12, 2013 plea hearing. Rather, the defendant argued that federal immigration law "changed substantially" after he entered his guilty pleas, thereby exposing him to the possibility of deportation as a result of those pleas. The defendant's counsel contended that "had [the defendant] known of a new federal guideline for deportation, which went into effect roughly two weeks after he was sentenced . we could have easily and would have likely structured this sentence to accommodate those new regulations and he would not . risk deportation as he does now." The defendant's counsel thus requested that the court "reconstruct" the defendant's sentence, opining that "given the totality of the interest of justice in this case the court should certainly give it its strongest consideration." In response, the state's attorney submitted that "to expect the state to undo plea bargain negotiations every time the federal law changes is, to say the least, insanity." At the conclusion of that hearing, the court dismissed the defendant's motion. The defendant sought an articulation of that decision, which the court granted. In its April 8, 2015 articulation, the court stated in relevant part: "This court denied, or perhaps more properly stated, dismissed the defendant's [motion] because it had no jurisdiction to either hear or to grant it.... The defendant in this matter never made any claim or cited to any authority which would authorize this court to allow him to vacate his guilty pleas after he had been sentenced. This court, therefore, had no jurisdiction to permit the defendant to withdraw his guilty pleas." From that judgment, the defendant now appeals. Although the defendant raises multiple claims in this appeal, the dispositive one is whether the court properly concluded that it lacked jurisdiction over his motion to vacate his pleas and to open the judgments of conviction. A determination regarding the trial court's subject matter jurisdiction is a question of law over which our review is plenary. State v. Alexander, 269 Conn. 107, 112, 847 A.2d 970 (2004). "The Superior Court is a constitutional court of general jurisdiction. In the absence of statutory or constitutional provisions, the limits of its jurisdiction are delineated by the common law.... It is well established that under the common law a trial court has the discretionary power to modify or vacate a criminal judgment before the sentence has been executed.... This is so because the court loses jurisdiction over the case when the defendant is committed to the custody of the commissioner of correction and begins serving the sentence." (Internal quotation marks omitted.) State v. Ramos, 306 Conn. 125, 133-34, 49 A.3d 197 (2012). Practice Book § 39-26 likewise provides in relevant part that "[a] defendant may not withdraw his or her plea after the conclusion of the proceeding at which the sentence was imposed." Because it is well established that the jurisdiction of the trial court terminates once a defendant has been sentenced, a trial court "may no longer take any action affecting a defendant's sentence unless it expressly has been authorized to act." Cobham v. Commissioner of Correction, 258 Conn. 30, 37, 779 A.2d 80 (2001). Accordingly, "once a defendant's sentence is executed, the trial court lacks jurisdiction to entertain any claims regarding the validity of that plea in the absence of a statute or rule of practice to the contrary." State v. Das, 291 Conn. 356, 368, 968 A.2d 367 (2009). The defendant has not identified any express authorization under which the court could have acted on his postsentencing motion to vacate his pleas and to open the judgments of conviction. That motion was brought pursuant to Practice Book § 39-19 and 39-27(1), which permit the withdrawal of pleas, after they have been accepted but before the conclusion of the sentencing proceeding, that are not made in a knowing and voluntary manner. See Practice Book § 39-26. The appellate courts of this state consistently have rejected postsentencing motions to vacate guilty pleas predicated on that ground. See State v. Dyous, 307 Conn. 299, 334-35, 53 A.3d 153 (2012) (trial court lacked jurisdiction after sentencing to entertain "the defendant's due process claim" that his plea "was not knowing, intelligent and voluntary"); State v. Das, supra, 291 Conn. at 368-70, 968 A.2d 367 (trial court lacked jurisdiction to act on postsentencing motion to vacate plea that allegedly was not knowing and voluntary); State v. Reid, 277 Conn. 764, 776, 894 A.2d 963 (2006) ("the trial court lacked jurisdiction to hear and determine the defendant's motion to withdraw" plea on ground that it was not knowing, intelligent and voluntary); State v. Edge, 150 Conn.App. 383, 386, 90 A.3d 381 (adhering to "bedrock principle" that trial court lacks jurisdiction after sentencing to entertain due process claim that plea was not knowing, intelligent and voluntary), cert. denied, 312 Conn. 923, 94 A.3d 1202 (2014). The defendant has provided no authority to the contrary. The defendant nonetheless suggests that, despite the nomenclature employed, his January 30, 2015 "Amended Motion to Vacate Pleas and Reopen Pursuant to Connecticut Practice Book § 39-19, 39-27(1)," which alleged that his pleas were not knowing and voluntary, was actually a motion to correct an illegal sentence pursuant to Practice Book § 43-22. For two reasons, we disagree. First, such a claim was not raised before the court in either the motion itself or the February 9, 2015 hearing thereon. Second, that claim is improper under Connecticut law. In State v. Casiano, 122 Conn.App. 61, 63-64, 998 A.2d 792, cert. denied, 298 Conn. 931, 5 A.3d 491 (2010), the defendant filed a motion to correct an illegal sentence pursuant to Practice Book § 43-22, in which he "alleged that his sentence had been imposed in violation of his state and federal constitutional rights because his plea was not knowing and voluntary." (Internal quotation marks omitted.) This court concluded that the trial court lacked jurisdiction to consider such a motion, stating: "In order for the court to have jurisdiction over a motion to correct an illegal sentence after the sentence has been executed, the sentencing proceeding, and not the [proceedings] leading to the conviction, must be the subject of the attack.... The defendant's claim does not attack the validity of the sentence. Instead, it pertains to . alleged flaws in the court's acceptance of the plea. As such, it does not fit within any of the four categories of claims recognized under Practice Book § 43-22.... Accordingly, the court was without jurisdiction to consider the merits of the defendant's motion to correct." (Citations omitted; internal quotation marks omitted.) Id., at 68, 998 A.2d 792. That precedent compels a similar conclusion in the present case. In light of the foregoing, we concur with the court's determination that it lacked jurisdiction to consider the merits of the defendant's postsentencing motion to vacate his pleas and to open the judgments of conviction. The court, therefore, properly dismissed that motion. The judgment is affirmed. In this opinion the other judges concurred. In his motion to vacate his pleas and to open the judgments of conviction, the defendant also maintained that his pleas to the breach of the peace charges were "procedurally and substantively defective" because they were entered before the physical filing of a substitute information by the state. That contention requires little discussion. Apart from being barred by the court's lack of jurisdiction thereover; see State v. Das, 291 Conn. 356, 368-70, 968 A.2d 367 (2009) (jurisdiction of trial court terminates upon execution of defendant's sentence and no "constitutional violation exception" to that precept exists); the defendant's claim suffers a further infirmity. During the plea hearing, the state's attorney averred as follows: "Madam clerk, the state will be filing a substitute information. Your Honor, I indicated to the court and counsel that I would be filing a substitute information on each file, adding an additional count of breach of peace in the second degree.... I will do that forthwith. But if I may put him to plea again to those two additional charges?" The court granted that request without any objection by the defendant. The defendant then proceeded to plead guilty to those charges, thereby acquiescing in being put to plea on those two misdemeanor charges. See State v. Dukes, 29 Conn.App. 409, 420, 616 A.2d 800 (1992) ("[b]ecause the defendant permitted the filing of the amended information without objection and acquiesced in the proceedings, it necessarily follows that the prophylactic purpose of the rule to require adequate notice has been fulfilled"), cert. denied, 224 Conn. 928, 619 A.2d 851 (1993). During its canvass, the court apprised the defendant that "[w]ith this conviction, if you're not a United States citizen, it may result in deportation, exclusion from readmission, or denial of naturalization." When the court then inquired as to whether he understood that admonition, the defendant answered, "[y]es." At oral argument before this court, the defendant's counsel argued that "the state court doesn't have the knowledge, background, or even the perspective to understand . [that] certain pleas, certain plea colloquies, certain details that are contained in a mittimus can subject you to consequences well beyond the understanding of the defense attorney." That contention has no bearing on the jurisdictional issue before us.

12485005

Fabian RICHARDS v. COMMISSIONER OF CORRECTION.

Richards v. Comm'r of Corr.

2016-04-26

No. 37481.

440

445

138 A.3d 440

138

West's Atlantic Reporter, Third Series

Connecticut Appellate Court

Connecticut

2021-08-27T20:57:13.994284+00:00

Fastcase

Fabian RICHARDS v. COMMISSIONER OF CORRECTION.

Fabian RICHARDS v. COMMISSIONER OF CORRECTION. No. 37481. Appellate Court of Connecticut. Argued Jan. 14, 2016. Decided April 26, 2016. Elyssa N. Williams, New Haven, for the appellant. Jacob L. McChesney, special deputy 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 (respondent). GRUENDEL, LAVINE and MULLINS, Js. The listing of judges reflects their seniority status on this court as of the date of oral argument.

2676

16330

MULLINS, J. The petitioner, Fabian Richards, appeals from the judgment of the habeas court denying his petition for a writ of habeas corpus. In his petition, the petitioner alleged that his criminal trial counsel had provided ineffective assistance by failing to advise the petitioner adequately of the immigration consequences he faced by entering a guilty plea. Because the petitioner already has been deported to Jamaica, pursuant to a deportation order issued by the United States Immigration Court, and has failed to establish that any practical relief could be provided by this court, we conclude that his appeal is moot. Accordingly, the appeal is dismissed. The petitioner is a native of Jamaica, who lawfully entered this country on January 8, 2007, on a visitor visa. He married a citizen of the United States and received permanent resident status in 2010. In 2012, the petitioner entered guilty pleas to charges of second degree assault in violation of General Statutes § 53a-60 (a)(2) and carrying a pistol without a permit in violation of General Statutes § 29-35(a). Subsequently, he brought this habeas petition alleging that his trial counsel rendered ineffective assistance by failing to advise him adequately of the immigration consequences of his plea. The habeas court denied his petition but granted certification to appeal, and the petitioner filed the present appeal. Several months after the petitioner had filed his appellate brief, the respondent, the Commissioner of Correction, on October 1, 2015, submitted to the Appellate Court clerk's office a letter that stated: "The Commissioner respectfully requests that the clerk bring the following matter to the court's attention. During the pendency of this appeal, the petitioner has been deported from the United States to Jamaica pursuant to an immigration court deportation order. This is a relevant fact for the court's consideration under State v. Aquino, 279 Conn. 293, 901 A.2d 1194 (2006), and St. Juste v. Commissioner of Correction, 155 Conn.App. 164, 109 A.3d 523, cert. granted, 316 Conn. 901, 111 A.3d 470 (2015)." The respondent also submitted a letter of supplemental authority, stating that it may also refer to 8 U.S.C. § 1229b (a), 8 U.S.C. § 1229b (d), 8 U.S.C. § 1182(a)(2)(A), and 8 U.S.C. § 1182(a)(2)(C). The respondent contends that the appeal is moot. The petitioner's counsel concedes that the petitioner has been deported, but argues that the matter is not moot. We agree with the respondent that the appeal is moot because there is no practical relief that can be afforded the petitioner. "Under our well established jurisprudence, [m]ootness presents a circumstance wherein the issue before the court has been resolved or had lost its significance because of a change in the condition of affairs between the parties.... In determining mootness, the dispositive question is whether a successful appeal would benefit the plaintiff or defendant in any way.... In other words, the ultimate question is whether the determination of the controversy will result in practical relief to the complainant.... Mootness implicates [this] court's subject matter jurisdiction and is thus a threshold matter for us to resolve." (Citation omitted; internal quotation marks omitted.) State v. Jerzy G., 162 Conn.App. 156, 161, 130 A.3d 303 (2015), cert. granted, 320 Conn. 919, 132 A.3d 1093 (2016). For a deported petitioner to establish that an appeal is not moot, our Supreme Court has stated that the petitioner is required to establish that the underlying conviction was the exclusive basis of his or her deportation. State v. Aquino, supra, 279 Conn. at 298, 901 A.2d 1194 ; see State v. Jerzy G., supra, 162 Conn.App. at 161-64, 130 A.3d 303 (following rule of Aquino ); Paulino v. Commissioner of Correction, 155 Conn.App. 154, 162-63, 109 A.3d 516 (same), cert. denied, 317 Conn. 912, 116 A.3d 310 (2015) ; Quiroga v. Commissioner of Correction, 149 Conn.App. 168, 173, 87 A.3d 1171 (same), cert. denied, 311 Conn. 950, 91 A.3d 462 (2014) ; State v. Chavarro, 130 Conn.App. 12, 17-18, 21 A.3d 541 (2011) (same); but see St. Juste v. Commissioner of Correction, supra, 155 Conn.App. at 174, 109 A.3d 523 (petitioner must prove both that underlying conviction was exclusive basis for deportation and that petitioner would be permitted reentry in absence of underlying conviction). "If [the deportation] was not the result of his guilty plea alone, then this court can grant no practical relief and any decision rendered by this court would be purely advisory." State v. Aquino, supra, 279 Conn. at 298, 901 A.2d 1194. In the present case, the respondent argues that on the basis of the present record, we cannot ascertain the basis for the petitioner's deportation. The petitioner argues that we know the basis because he has no convictions other than those underlying the present case. We agree with the respondent. Although the December 28, 2012 notice to appear, issued by the Department of Homeland Security, was based on the petitioner's underlying convictions in the present case, we do not have an official copy of the decision of the United States Immigration Court giving us the basis for its ruling deporting the petitioner, and the order, itself, does not contain the basis. See footnote 1 of this opinion. Indeed, Aquino requires proof that the conviction being challenged is "the exclusive basis of the petitioner's deportation, rather than a primary or likely one." Quiroga v. Commissioner of Correction, supra, 149 Conn.App. at 174, 87 A.3d 1171. Without knowing the precise basis of the immigration court's ruling, we are left to surmise and speculate as to whether other or additional grounds formed the basis of that court's ruling. If a petitioner fails to prove that the underlying conviction was the sole basis for his deportation, the appeal also may not be moot if the petitioner can prove collateral consequences by providing "evidence to suggest that, in the absence of the guilty plea, [he] would be allowed to reenter this country or become a citizen." State v. Aquino, supra, 279 Conn. at 298-99 n. 3, 901 A.2d 1194 ; see State v. Chavarro, supra, 130 Conn.App. at 18, 21 A.3d 541 (same); but see St. Juste v. Commissioner of Correction, supra, 155 Conn.App. at 174, 109 A.3d 523 (petitioner must prove both that underlying conviction was exclusive basis for deportation and that petitioner would be permitted reentry in absence of underlying conviction). "[U]nder this court's long-standing mootness jurisprudence . despite developments during the pendency of an appeal that would otherwise render a claim moot, the court may retain jurisdiction when a litigant shows that there is a reasonable possibility that prejudicial collateral consequences will occur.... [T]o invoke successfully the collateral consequences doctrine, the litigant must show that there is a reasonable possibility that prejudicial collateral consequences will occur. Accordingly, the litigant must establish these consequences by more than mere conjecture, but need not demonstrate that these consequences are more probable than not. This standard provides the necessary limitations on justiciability underlying the mootness doctrine itself. Where there is no direct practical relief available from the reversal of the judgment . the collateral consequences doctrine acts as a surrogate, calling for a determination whether a decision in the case can afford the litigant some practical relief in the future." (Citation omitted; internal quotation marks omitted.) State v. Jerzy G., supra, 162 Conn.App. at 165-66, 130 A.3d 303. The respondent contends that the petitioner has not and could not establish that he would be allowed reentry into this country because (1) under 8 U.S.C. § 1229b (a) and (d), the petitioner would have to establish that he had been in this country continuously for more than seven years before his deportation began to be eligible to apply to vacate that order of deportation, and he had lived here, at most, six and one-half years before the relevant statutory time period began, and (2) officers discovered that the petitioner had been growing marijuana in his home and had paraphernalia indicating sale of marijuana, and, although that charge had been nolled in this case as part of the plea deal, the petitioner admitted in open court before the habeas judge that he had been growing marijuana. The respondent contends that pursuant to 8 U.S.C. § 1182(a)(2)(A), the petitioner could be denied readmission because he admitted to drug activity, and pursuant to 8 U.S.C. § 1182(a)(2)(C), he could be denied readmission if the Attorney General of the United States has reason to believe he engaged in drug activity. Notwithstanding these federal statutes, the petitioner made no attempt to establish his eligibility for reentry before the habeas court. This failure is fatal to his claim. See Paulino v. Commissioner of Correction, supra, 155 Conn.App. at 164, 109 A.3d 516. Because we are unable to ascertain the precise basis for the order of deportation issued by the United States Immigration Court, and the petitioner failed to produce any evidence before the habeas court that, in the absence of his convictions, he would be permitted to return to the United States, we conclude that this appeal is moot. The appeal is dismissed. In this opinion the other judges concurred. Included in the appendix to the petitioner's appellate brief is a December 28, 2012 notice to appear, issued to the petitioner by the United States Department of Homeland Security, notifying the petitioner that he is subject to removal from the United States, pursuant to the Immigration and Nationality Act, due to his conviction of an aggravated felony, namely, the second degree assault charge, and his conviction of possessing or carrying a firearm. See 8 U.S.C. § 237(a)(2)(A)(iii) and (a)(2)(C). Also included is an order from the United States Immigration Court that states that it is a memorandum of the court's decision, entered on June 12, 2014, but that the "oral or written findings, decision and orders is the official opinion in this case." The order stated that the petitioner was ordered removed from the United States to Jamaica and that his application for deferral of removal was denied. The order does not state the official basis for removal, and the petitioner has not furnished us with a transcript of the immigration court's official decision. During oral argument in this appeal, the parties discussed the issue of mootness. Title 8 of the United States Code § 1229b (a), provides: "Cancellation of removal for certain permanent residents "The Attorney General may cancel removal in the case of an alien who is inadmissible or deportable from the United States if the alien- "(1) has been an alien lawfully admitted for permanent residence for not less than 5 years, "(2) has resided in the United States continuously for 7 years after having been admitted in any status, and "(3) has not been convicted of any aggravated felony...." Title 8 of the United States Code, § 1229b (d), provides: "Special rules relating to continuous residence or physical presence "(1) Termination of continuous period "For purposes of this section, any period of continuous residence or continuous physical presence in the United States shall be deemed to end (A) except in the case of an alien who applies for cancellation of removal under subsection (b)(2) of this section, when the alien is served a notice to appear under section 1229(a) of this title, or (B) when the alien has committed an offense referred to in section 1182(a)(2) of this title that renders the alien inadmissible to the United States under section 1182(a)(2) of this title or removable from the United States under section 1227(a)(2) or 1227(a)(4) of this title, whichever is earliest. "(2) Treatment of certain breaks in presence "An alien shall be considered to have failed to maintain continuous physical presence in the United States under subsections (b)(1) and (b)(2) of this section if the alien has departed from the United States for any period in excess of 90 days or for any periods in the aggregate exceeding 180 days. "(3) Continuity not required because of honorable service in Armed Forces and presence upon entry into service "The requirements of continuous residence or continuous physical presence in the United States under subsections (a) and (b) of this section shall not apply to an alien who- "(A) has served for a minimum period of 24 months in an active-duty status in the Armed Forces of the United States and, if separated from such service, was separated under honorable conditions, and "(B) at the time of the alien's enlistment or induction was in the United States." Title 8 of the United States Code § 1182, provides in relevant part: "(a) Classes of aliens ineligible for visas or admission "Except as otherwise provided in this chapter, aliens who are inadmissible under the following paragraphs are ineligible to receive visas and ineligible to be admitted to the United States . "(2) Criminal and related grounds "(A) Conviction of certain crimes "(i) In general "Except as provided in clause (ii), any alien convicted of, or who admits having committed, or who admits committing acts which constitute the essential elements of- "(I) a crime involving moral turpitude (other than a purely political offense) or an attempt or conspiracy to commit such a crime, or "(II) a violation of (or a conspiracy or attempt to violate) any law or regulation of a State, the United States, or a foreign country relating to a controlled substance (as defined in section 802 of Title 21), "is inadmissible. "(ii) Exception "Clause (i)(I) shall not apply to an alien who committed only one crime if- "(I) the crime was committed when the alien was under 18 years of age, and the crime was committed (and the alien released from any confinement to a prison or correctional institution imposed for the crime) more than 5 years before the date of application for a visa or other documentation and the date of application for admission to the United States, or "(II) the maximum penalty possible for the crime of which the alien was convicted (or which the alien admits having committed or of which the acts that the alien admits having committed constituted the essential elements) did not exceed imprisonment for one year and, if the alien was convicted of such crime, the alien was not sentenced to a term of imprisonment in excess of 6 months (regardless of the extent to which the sentence was ultimately executed)...." Title 8 of the United States Code § 1182, provides in relevant part: "(a) Classes of aliens ineligible for visas or admission "Except as otherwise provided in this chapter, aliens who are inadmissible under the following paragraphs are ineligible to receive visas and ineligible to be admitted to the United States . "(2) Criminal and related grounds . "(C) Controlled substance traffickers "Any alien who the consular officer or the Attorney General knows or has reason to believe- "(i) is or has been an illicit trafficker in any controlled substance or in any listed chemical (as defined in section 802 of Title 21), or is or has been a knowing aider, abettor, assister, conspirator, or colluder with others in the illicit trafficking in any such controlled or listed substance or chemical, or endeavored to do so; or "(ii) is the spouse, son, or daughter of an alien inadmissible under clause (i), has, within the previous 5 years, obtained any financial or other benefit from the illicit activity of that alien, and knew or reasonably should have known that the financial or other benefit was the product of such illicit activity, "is inadmissible...."

12485002

Dean FARMASSONY v. Vivian FARMASSONY.

Farmassony v. Farmassony

2016-04-19

No. 36472.

417

424

138 A.3d 417

138

West's Atlantic Reporter, Third Series

Connecticut Appellate Court

Connecticut

2021-08-27T20:57:13.994284+00:00

Fastcase

DiPENTIMA, C.J., and BEACH and SHELDON, Js.

Dean FARMASSONY v. Vivian FARMASSONY.

Dean FARMASSONY v. Vivian FARMASSONY. No. 36472. Appellate Court of Connecticut. Argued Dec. 14, 2015. Decided April 19, 2016. Sandra M. McDonough, Stratford, for the appellant-cross appellee (defendant). David V. DeRosa, Naugatuck, for the appellee-cross appellant (plaintiff). DiPENTIMA, C.J., and BEACH and SHELDON, Js.

2985

18156

SHELDON, J. The defendant, Vivian Farmassony, whose marriage to the plaintiff, Dean Farmassony, was dissolved in September, 2002, appeals from the post-judgment order of the trial court requiring her to reimburse the plaintiff for all sums he had paid to her as court-ordered contributions toward her child care expenses for their minor children after she had ceased to incur such expenses on August 14, 2006. The defendant claims that the trial court erred by (1) requiring her to repay all such overpayments to the plaintiff, retroactive to August 14, 2006, because the ordering of such retroactive modifications of support orders is barred by General Statutes § 46b-86 ; or, in the alternative, (2) failing to deny the plaintiff's claim for retroactive repayment of overpaid child care expenses on the theory of laches. In his cross appeal, the plaintiff claims that the trial court erred by (1) denying his request for attorney's fees in connection with his motion for modification without holding an evidentiary hearing at which he could present evidence in support of that request; (2) denying his request for an award of interest on the sums he overpaid to the plaintiff for child care expenses, under General Statutes § 37-3a, without holding an evidentiary hearing at which he could present evidence in support of that request; and (3) allowing the defendant to reimburse him for the sums he had overpaid her for child care expenses at the rate of $100 per month. We reverse the judgment ordering the retroactive reimbursement of child care expenses because such an order is barred by § 46b-86. We affirm the judgment denying the plaintiff's requests for awards of attorney's fees and statutory interest. Because we reverse the award of retroactive reimbursement, we need not reach the defendant's claim of laches or the plaintiff's claim regarding the rate of reimbursement. The following facts and procedural history are relevant to our resolution of these appeals. The parties' marriage was dissolved on September 20, 2002, with a separation agreement incorporated by reference into the dissolution judgment. At the time of dissolution, they had two minor children, ages eight and five. A child support order was entered as part of the dissolution judgment, as provided in the separation agreement. That order provided, in relevant part: "The [plaintiff] shall pay to the [defendant] as child support the weekly amount of $231.75 which is in accordance with the Child Support Guidelines. This represents a payment of $167.00 as child support and a contribution of $64.75 toward child care.... Child support shall terminate at age 19, graduation from high school or emancipation, whichever shall occur first." The separation agreement also contained a provision for attorney's fees if either party intentionally breached the agreement. The plaintiff made all necessary payments through wage garnishment until June, 2013. In June, 2013, the plaintiff filed a motion for modification of support and an accounting of child care costs. In the motion, the plaintiff claimed that a substantial change of circumstances had occurred since the order was entered in 2002, in that the older child had turned eighteen years old and graduated from high school, and neither child had attended child care since August, 2006. He therefore requested that support for the older child be terminated, that support for the younger child be modified downward due to his decrease in income, that all child care payments cease, that he be given credit for overpayment of child support for the older child, that he be given credit for child care payments made from August, 2006, to the date of the modification motion, and that he be awarded attorney's fees pursuant to the separation agreement. On July 25, 2013, the parties agreed to modify child support, reducing it to $138 per week, which was promptly made an order of the court. The parties agreed to return to court to address retroactivity. Upon returning to court on September 19, 2013, the court, Pinkus, J., informed the plaintiff that he could not prevail on his claim for retroactive credit for overpayment of child support for the older child because § 46b-86 only allows retroactive modification to the date of service for child support payments. During the hearing, both parties agreed that all child care for the children had ended in 2006. The court ordered the parties to brief the issue of retroactivity of child care payments. The court issued its decision on November 22, 2013, granting the plaintiff's motion for modification of support and accounting of child care costs as follows: "[T]he plaintiff overpaid child care costs in the amount of $23,439.50. This amount is to be repaid without interest at the rate of $100.00 per month commencing December 1, 2013. No attorney fees are awarded to either party." The defendant later filed a motion for reargument and articulation in December, 2013, which was denied by the court, Pinkus, J. The defendant appealed in January, 2014. The plaintiff thereafter filed a cross appeal and a motion for rectification and articulation on March 5, 2014. In response to the motion for rectification and articulation, the court stated only that "[its] orders were made considering all relevant statutory factors and case law and based upon its exercise of broad discretion as allowed by law." On April 14, 2014, the plaintiff filed a motion for review of the trial court's decision on the motion for rectification and articulation. In that motion, the plaintiff asked that the trial court articulate the basis for its decision regarding attorney's fees, interest, and the rate of repayment. On June 4, 2014, this court granted the motion as presented and ordered the relief requested. The trial court issued a further articulation dated June 17, 2014, in which it articulated its ruling as follows. "The court did not award the [defendant] to pay the [plaintiff's] attorney's fees because there was no evidence that the breach was intentional, as required by the separation agreement.... The court did not award the [plaintiff] interest because there was no evidence that the moneys overpaid were wrongly withheld, and the court exercised its discretion in not entering interest.... The order of payments was based upon the defendant's financial affidavit dated and filed July 25, 2013. The defendant had no ability to pay larger payments or a lump sum." (Citation omitted.) We now turn to the merits of the parties' conflicting claims. I On appeal, the defendant first argues that the court erred when it entered an order requiring her to reimburse the plaintiff for all payments he had made to her for child care expenses after she ceased to incur such expenses on August 14, 2006 because such retroactivity is barred by § 46b-86. We agree. The defendant's claim rests on our interpretation of § 46b-86 (a). "The interpretation of a statute, as well as its applicability to a given set of facts and circumstances, involves a question of law and our review, therefore, is plenary.... 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." (Citation omitted; internal quotation marks omitted.) Esposito v. Banning, 110 Conn.App. 479, 483, 955 A.2d 609, cert. denied, 289 Conn. 946, 959 A.2d 1011 (2008). We begin with the language of § 46b-86 (a), which provides in relevant part: "No order for periodic payment of permanent alimony or support may be subject to retroactive modification, except that the court may order modification with respect to any period during which there is a pending motion for modification of an alimony or support order from the date of service of notice of such pending motion upon the opposing party pursuant to section 52-50...." This court has previously held that § 46b-86 (a) "prohibits retroactive modification of an existing support order." Diamond v. Diamond, 32 Conn.App. 733, 741, 631 A.2d 1157 (1993). The issue to be resolved is thus whether child care payments are subject to the statutory prohibition against retroactive modification because they are paid as part of a "support order." The child support and arrearage guidelines, as set forth in § 46b-215a-1 of the Regulations of Connecticut State Agencies, provide that "[c]hild support awards means the entire payment obligation of the noncustodial parent, as determined under the child support and arrearage guidelines, and includes current support payments, health care coverage, child care contribution and periodic payments on arrearages." The term "current support," as used in the guidelines, is defined as "an amount for the ongoing support of a child, exclusive of arrearage payments, health care coverage and a child care contribution." Regs., Conn. State Agencies § 46b-215a-1. The term "child care costs," in turn, is defined as "amounts expended for the care and supervision of a child whose support is being determined." Id. Thus, the noncustodial parent's child care contribution to the custodial parent is ordered by the court and paid as part of the overall child support award. "It is a principle of statutory construction that a court must construe a statute as written.... We are not permitted to supply statutory language that the legislature may have chosen to omit." (Citation omitted; internal quotation marks omitted.) Argentinis v. Fortuna, 134 Conn.App. 538, 550, 39 A.3d 1207 (2012). The retroactive language in § 46b-86 (a) was enacted in 1990; see Public Acts 1990, No. 90-188, § 1; and has been amended several times. If the legislature intended that only current support not be subject to retroactive modification-as the plaintiff suggests-it could easily have so specified. Instead, it used the broader term "support" to identify the types of awards that are not subject to retroactive modification. The child support award, as defined in the child support and arrearage guidelines, § 46b-215a-1 of the Regulations of Connecticut State Agencies, and in the parties' separation agreement, includes child care costs. Thus, the entirety of the order of child support, including its provisions for the payment of child care costs, is part of the order for support. Therefore, § 46b-86 (a) bars any retroactive modification of the order of child care costs because it is an integral part of the overall order of support. Accordingly, we reverse the order of the trial court for retroactive repayment of the child care costs. Because we reverse that order, we need not address the defendant's other claims, as they all present alternative ways to reach the same conclusion. II We now turn to the plaintiff's cross appeal. The plaintiff claims that the trial court erred by (1) not holding a hearing to allow him to present evidence prior to denying his request for attorney's fees, (2) not holding a hearing to allow the him to present evidence prior to denying his request for an award of interest under § 37-3a, and (3) ordering the defendant to repay the overpaid child care expenses at the rate of $100 per month. We are not persuaded that the court erred. "The standard of review in family matters is well settled. 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.... Appellate review of a trial court's findings of fact is governed by the clearly erroneous standard of review. The trial court's findings are binding upon this court unless they are clearly erroneous in light of the evidence and the pleadings in the record as a whole.... 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.) Angle v. Angle, 100 Conn.App. 763, 771-72, 920 A.2d 1018 (2007). The plaintiff first argues that the court erred when it denied his request for attorney's fees and in not holding a hearing to allow him to present evidence prior to the denial. We disagree. The parties' separation agreement contains a provision regarding attorney's fees. It provides that "[i]n the event that it shall be determined by a court of competent jurisdiction that either party has intentionally and materially breached this [a]greement, the offending party shall pay to the prevailing party reasonable attorney's fees, court costs and other related expenses incurred in the enforcement of this [a]greement or the orders entered in connection with the dissolution of marriage action, or both." In order for attorney's fees to be awarded, the court must have found an intentional breach. In explaining why the court did not award the plaintiff attorney's fees, the court's articulation clearly stated that "there was no evidence that the breach was intentional...." After reviewing the record, we do not find this finding to be clearly erroneous and the court did not abuse its discretion when it denied the plaintiff attorney's fees. The plaintiff also argues that the trial court erred in not holding a hearing and allowing him to present evidence on the issue of attorney's fees. However, the plaintiff did not object when the court indicated that it would decide the issue on the briefs and the plaintiff never asked for a hearing on the issue. "The court shall not be bound to consider a claim unless it was distinctly raised at the trial or arose subsequent to the trial...." Practice Book § 60-5. Thus, we will not review this claim. The plaintiff next argues that the court erred in not awarding him interest under § 37-3a and in not holding a hearing to allow him to present evidence prior to the denial. We disagree. The plaintiff argues that he is entitled to interest on his child care payments from August, 2006-when the need for child care ceased-until July, 2013-when the award was modified. "Ordinarily, [t]he decision of whether to grant interest under § 37-3a is primarily an equitable determination and a matter lying within the discretion of the trial court.... 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.) Sosin v. Sosin, 300 Conn. 205, 227, 14 A.3d 307 (2011). In its articulation, the trial court stated that it did not award the plaintiff interest because there was no evidence that the money overpaid by the plaintiff was wrongly withheld by the defendant, and that the court exercised its discretion in not entering interest, pursuant to Sosin v. Sosin, supra, 300 Conn. at 226, 14 A.3d 307. Our review of the record indicates that the decision not to award interest was not an abuse of discretion. The denial of interest is affirmed. The plaintiff also argues that the trial court erred in not holding a hearing and allowing him to present evidence on the issue of an award of interest. However, the plaintiff did not object when the court indicated it would decide the issue on the briefs and the plaintiff never asked for a hearing on the issue. "The court shall not be bound to consider a claim unless it was distinctly raised at the trial or arose subsequent to the trial...." Practice Book § 60-5. Thus, we will not review this claim. The plaintiff's final argument is that the court abused its discretion when it ordered the defendant to repay the amount the plaintiff had overpaid in child care costs at the rate of $100 per month. The plaintiff argues that this amount is too low. Because we reversed the court's order of retroactive repayment in part I of this opinion, we need not reach this issue. The judgment is reversed only as to the award of retroactive repayment of child care expenses by the defendant to the plaintiff and the case is remanded with direction to deny the plaintiff's motion for modification of support and an accounting of child care costs, and to render judgment for the defendant thereon. The judgment is affirmed in all other respects. In this opinion the other judges concurred. During the hearing, the court asked the parties to stipulate to a date in which child care expenses ceased. The plaintiff offered August 24, 2006, while the defendant argued that date "was plucked from someplace." The court asked for the parties to independently reach an agreement on the date. Nothing in the record indicates if the parties ever agreed on a date. General Statutes § 37-3a (a) states 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 or arbitration proceedings under chapter 909, including actions to recover money loaned at a greater rate, as damages for the detention of money after it becomes payable...."

12485001

Gregg FISK v. TOWN OF REDDING, et al.

Fisk v. Town of Redding

2016-04-19

No. 37537.

410

417

138 A.3d 410

138

West's Atlantic Reporter, Third Series

Connecticut Appellate Court

Connecticut

2021-08-27T20:57:13.994284+00:00

Fastcase

Gregg FISK v. TOWN OF REDDING, et al.

Gregg FISK v. TOWN OF REDDING, et al. No. 37537. Appellate Court of Connecticut. Argued Dec. 8, 2015. Decided April 19, 2016. A. Reynolds Gordon, with whom was Frank A. DeNicola, Jr., for the appellant (plaintiff). Jared Cohane, with whom was Luke R. Conrad, Hartford, for the appellee (defendant BL Companies, Inc.). ALVORD, KELLER, and SCHALLER, Js.

3556

21911

SCHALLER, J. The plaintiff, Gregg Fisk, appeals from the summary judgment rendered in favor of the defendant BL Companies, Inc., in his absolute public nuisance action. The plaintiff alleged that he was injured when he fell off a retaining wall that was constructed as part of a municipal construction project for which the defendant was the design contractor. The court rendered summary judgment on the ground that the defendant, as a design contractor, was not a user of the wall and, therefore, as a matter of law could not be liable in public nuisance. On appeal, the plaintiff claims that the court erred in granting summary judgment. We affirm the judgment of the trial court. The record reveals the following undisputed facts and procedural history. By substitute complaint, filed on October 7, 2014, the plaintiff alleged that he was injured when he fell off a retaining wall that was constructed with no protective fencing by M. Rondano, Inc. (Rondano), as contractor for the town of Redding (town). The defendant had been hired by the town to design, engineer, inspect and supervise the "Streetscape Project" (project) of which the wall was a part. The complaint alleged in separate counts against the town, Rondano, and the defendant that the wall was constructed on public land and constituted a public nuisance. In its answer, the defendant denied, inter alia, that it was required to supervise the project, that it was responsible for site safety, and that it had control over the retaining wall. On September 17, 2014, the defendant filed a motion for summary judgment on the ground that it could not, as a matter of law, be deemed to have been in control of the project and therefore could not be liable under a nuisance theory. In support of the motion, the defendant filed a memorandum of law outlining its legal claims, and attached an affidavit of Derek A. Kohl, a principal of the defendant; portions of an agreement between the defendant and the town; a construction report; specifications for roads, bridges and incidental construction by the Department of Transportation (department) dated January, 2010; a letter dated July 5, 2011, from the defendant on behalf of the town to the department; a document entitled scope of services; and several Superior Court cases. Kohl's affidavit averred that the defendant was the architect for the project and was primarily responsible for architectural and engineering services and did not install, perform or put into motion any physical act upon the wall. He further averred that the defendant did not have the ability to control the contractor or the construction site, or to advise as to site safety; those responsibilities were allocated to the contractor during the construction until the responsibilities reverted to the town. The agreement specifies that the contractor will maintain the construction area throughout the duration of the project. The plaintiff filed a memorandum in opposition to the motion for summary judgment on September 26, 2014. He argued in the alternative that each defendant had control of the project, that design engineers can be liable in public nuisance for defective or dangerous construction that they create by their design, that the defendant had control over the project until it was completed in 2012, and that the project was not even substantially completed until October, 2011, after the plaintiff's fall. In support of these contentions, the plaintiff filed a certificate of compliance from the department dated October 25, 2011; a certificate of acceptance of work dated January 18, 2012; sections of the department's bridge design manual; the defendant's meeting minutes from June 16, 2011; further portions of the agreement between the town and the defendant; a department consultant administration and project development manual; an April 6, 2010 letter from the defendant regarding the status of the project; an excerpt from the deposition of Natalie Ketcham; a department project manual for the project with the defendant's copyright notification; a department construction manual; the defendant's meeting minutes dated October 4, 2011; the affidavit of Brandon Smith; the affidavit of Skylar Smith with attached photographs of the wall; and a document entitled "Fielding deposition." The court granted summary judgment in favor of the defendant in a memorandum of decision on December 5, 2014. Citing State v. Tippetts-Abbett-McCarthy-Stratton, 204 Conn. 177, 527 A.2d 688 (1987) ( Tippetts ), it concluded that the plaintiff could not establish that the defendant was a user of the property in question when the plaintiff sustained injury. It noted that the plaintiff had failed to assert claims of professional negligence against the defendant. The plaintiff filed a motion to reargue on December 23, 2014, which the court denied on January 5, 2015. The plaintiff argued that the court was incorrect in concluding that the defendant did not design the wall. The plaintiff subsequently appealed to this court. We apply a well settled standard of review to the plaintiff's claim that the court improperly rendered summary judgment. "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.... The party seeking summary judgment has the burden of showing the absence of any genuine issue as to all material facts, which, under applicable principles of substantive law, entitle him to a judgment as a matter of law.... The party opposing such a motion must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact. See Practice Book § [17-44 and 17-45]. In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party.... A motion for summary judgment is properly granted if it raises at least one legally sufficient defense that would bar the plaintiff's claim and involves no triable issue of fact.... Our review of the trial court's decision to grant a motion for summary judgment is plenary." (Internal quotation marks omitted.) Chirieleison v. Lucas, 144 Conn.App. 430, 437-38, 72 A.3d 1218 (2013). The plaintiff claims that the court improperly concluded the defendant did not design the wall, had no control over the wall, and no longer controlled the wall when the fall occurred. The defendant responds that neither the issue of whether the defendant actually designed the wall nor whether the defendant's role in the design of the wall had ceased is material to the question of whether the defendant had control of the wall for purposes of nuisance liability. It asserts that there is no genuine issue of material fact regarding whether the defendant controlled the wall, and, therefore, the court properly granted the defendant's motion for summary judgment. We agree with the defendant. "A nuisance . describes an inherently dangerous condition that has a natural tendency to inflict injury upon persons or property.... The term nuisance refers to the condition that exists and not to the act or failure to act that creates it." (Citation omitted.) Quinnett v. Newman, 213 Conn. 343, 348, 568 A.2d 786 (1990), overruled on other grounds by Craig v. Driscoll, 262 Conn. 312, 329, 813 A.2d 1003 (2003). Our Supreme Court set out the standard for public nuisance liability in Connecticut in Tippetts, supra, 204 Conn. at 183, 527 A.2d 688 : "Our prior decisions have established that in 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 [the] proximate cause of the plaintiffs' injuries and damages.... In this case, where 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.) "If the creator of the condition intends the act that brings about the condition found to be a nuisance, the nuisance thereby created is said to be absolute and its creator is strictly liable." Quinnett v. Newman, supra, at 348, 568 A.2d 786. In Tippetts, our Supreme Court applied the requirement implicit in the phrase "the use of the land" in the third factor that the defendant be a user of the property. See Tippetts, supra, 204 Conn. at 183-84, 527 A.2d 688. "Our case law has established no bright-line test to determine when a defendant's connection to a particular parcel of property suffices to make it an unreasonable or unlawful 'user' of that property.... In lieu of a rule of general application, our cases frequently have applied a functional test to determine whether a defendant 'uses' property in a manner sufficient to subject him to liability for nuisance. A critical factor in this test is whether the defendant exercises control over the property that is the source of nuisance." (Citations omitted.) Id. "[W]hen circumstances show that a defendant exercises de facto control over nuisance-causing property, the fact that title or possession of the property has been transferred to others does not absolve the defendant of liability for the nuisance." Id., at 184, 527 A.2d 688. "Like the other elements of the tort of nuisance, the question of whether a defendant maintains control over property sufficient to subject him to nuisance liability normally is a jury question." Id., at 185, 527 A.2d 688. In Tippetts, the state brought an action against the firm that designed and supervised the construction of a bridge that collapsed twenty-four years after its construction. Id., at 178, 527 A.2d 688. The trial court withdrew the nuisance claim from the jury; our Supreme Court concluded that this was tantamount to a directed verdict on this issue. Id., at 182, 527 A.2d 688 ; see Provencher v. Enfield, 284 Conn. 772, 791, 936 A.2d 625 (2007) (holding that test for granting summary judgment is whether "the party moving for summary judgment would be entitled to a directed verdict on the same facts [internal quotation marks omitted]"). In analyzing the trial court's decision, our Supreme Court noted that the bridge was at all times state property, that nothing in the contract was purported to transfer the state's control over the property to the defendant in that all decisions by the defendant were subject to state approval, and finally that any delegation of authority was temporally limited and had ceased long before the bridge collapsed. Tippetts, supra, 204 Conn. at 185-87, 527 A.2d 688. It then affirmed the trial court's decision not to charge the jury on public nuisance. Id., at 187, 527 A.2d 688. This court has applied the Tippetts standard to nuisance claims in Lomangino v. LaChance Farms, Inc., 17 Conn.App. 436, 438-39, 553 A.2d 197 (1989), and in Heritage Village Master Assn., Inc. v. Heritage Village Water Co., 30 Conn.App. 693, 708-709, 622 A.2d 578 (1993) (Heritage Village ). In Lomangino, this court reversed a trial court's granting of summary judgment. Lomangino v. LaChance Farms, Inc., supra, at 441, 553 A.2d 197. The trial court had held that the defendant mortgagee did not control the property on which the alleged nuisance was located. Id., at 439, 553 A.2d 197. This court applied Tippetts, but concluded that contrary to its assertion that it was a "mere conduit" of moneys, the defendant mortgagee covenanted not to allow waste on the property, was a party to a sales agreement in which it covenanted that the property owner would not do anything to abate the claimed nuisance, and possessed fee simple ownership over the property for seven to eight weeks. Id., at 440-41, 553 A.2d 197. This court determined that these factors demonstrated that there was a genuine issue of material fact regarding control of the property and reversed the trial court. Id., at 441, 553 A.2d 197. In Heritage Village, at supra, at 708-709, 622 A.2d 578, this court upheld the trial court's removal of a nuisance count from the jury where the plaintiff had claimed that the defendant caused it damage by providing water with an abnormally low pH count. It did so on two grounds, first that the provision of the water, which met governing standards regarding its use for purposes of human consumption, was not inherently dangerous, and second, citing Tippetts, that the alleged fault of the defendant lay not in its use of the property, but in its conduct in supplying water to the plaintiff. Id., at 709, 622 A.2d 578. The plaintiff argues that the defendant had control of the property because it had significant input into the design and construction of the project, and failed to include a fence in its design. A nuisance, however, is the condition on the property, rather than the act that creates it. See Quinnett v. Newman, supra, 213 Conn. at 348, 568 A.2d 786. Tippetts, Lomangino , and Heritage Village all focus on control or use of the physical property itself. Our Supreme Court in Tippetts held that "the defendants did not exercise sufficient control over the bridge, or the property to which it was affixed ." (Emphasis added.) Tippetts, supra, 204 Conn. at 187, 527 A.2d 688. Lomangino is distinguishable from Tippetts and the present case in that by entering into a covenant as to how the property would be used, the defendant in Lomangino exercised control over the physical property and could order that the alleged nuisance continue. See Lomangino v. LaChance Farms, Inc., supra, 17 Conn.App. at 440-41, 553 A.2d 197. In Heritage Village, this court held that the provision of services to users of the property did not equal use of the property. Heritage Village, supra, 30 Conn.App. at 709, 622 A.2d 578. This conclusion is in line with Tippetts and with our conclusion in the present case. An inquiry as to whether the defendant controlled the property is a means to determine whether the defendant had a sufficient connection to the property to be a user of that property. Even if there is an issue of material fact as to whether the defendant designed the wall, and even if the defendant's role in the project had not ceased at the time of the plaintiff's injury, nothing presented by the plaintiff rebuts the statement by the defendant's affiant, supported by the evidence submitted by the defendant, that the defendant had no control over the physical property. Most notably, the agreement states that Rondano is responsible for site safety, maintenance, and operation during construction. Any input the defendant had into the design of the wall was mediated by either the town or Rondano. In Tippetts, our Supreme Court concluded that "[t]he plaintiff's delegation of its authority over the bridge project was temporally as well as functionally limited." Tippetts, supra, 204 Conn. at 187, 527 A.2d 688. In the present case, we conclude that there was no evidence of delegation to the defendant of authority over the wall, therefore the defendant was not a user of the property. The plaintiff also asserts that the defendant's inspection duties amounted to control over the property. The agreement states that the defendant, referred to as the Consulting Engineer, is required "[t]o furnish an inspection force at the level of and in the numbers established by negotiations for the construction engineering and inspection of this contract. The Resident Engineer/Chief Inspector shall work under the general supervision of the Municipality's Municipal Administrator. All orders to the Municipality's contractor on site will be transmitted by the Consulting Engineer's Resident Engineer/Chief Inspector." In the context of the agreement, this language does not indicate any independent control over the property; the defendant was under the supervision of the town and would relay orders from the town to Rondano. Although the defendant may have inspected the property, made recommendations, and relayed orders, there is no genuine issue of material fact that the defendant lacked control over the property. On the basis of the foregoing, the trial court properly concluded there was no genuine issue of material fact regarding whether the defendant had control over the property. Accordingly, the court properly granted the defendant's motion for summary judgment. The judgment is affirmed. In this opinion the other judges concurred. Brandon Smith had brought a similar action, which the trial court consolidated with this action and in which the trial court granted summary judgment as to the defendant BL Companies, Inc., as well. Smith also appealed, but during the pendency of this appeal, withdrew his appeal. The town of Redding and M. Rondano, Inc., were also defendants in the underlying action, but summary judgment was granted only as to BL Companies, Inc., and, therefore, they are not participating in this appeal. Hereinafter, references in this opinion to the defendant are to BL Companies, Inc. The parties have both submitted portions of the agreement and do not contest its authenticity. Rondano is not identified as the contractor in the affidavit or in the attached portion of the agreement, but is identified as the contractor in the complaint. Ketcham was Redding's first selectman at the time of the accident. The court also denied Rondano's motion for summary judgment as to the plaintiff's claims, denied Rondano's motion for summary judgment as to a cross complaint filed by the town, and granted the plaintiff's motion to strike the special defenses of comparative negligence filed by all the defendants as inapplicable to an action sounding in absolute public nuisance. The plaintiff contends that the trial court was in error to deny his motion to reargue, but fails to provide analysis of this claim. We, therefore, decline to review this claim. The plaintiff cited to the definition of control in Panaroni v. Johnson, 158 Conn. 92, 98, 256 A.2d 246 (1969) : "The word 'control' has no legal or technical meaning distinct from that given in its popular acceptation . and refers to the power or authority to manage, superintend, direct or oversee." (Citation omitted.) In Panaroni, a tenant brought an action against a landlord alleging negligent maintenance of the leased premises. Id., at 94, 256 A.2d 246. Landlord-tenant premises liability cases are distinguishable in that they are based on negligence, and the landlord, as owner of the property, has presumptive control over the property because the court's inquiry in these cases concerns whether the landlord has relinquished control over the specific area in which the injury occurred. See Fiorelli v. Gorsky, 120 Conn.App. 298, 308, 991 A.2d 1105 ("The general rule regarding premises liability in the landlord-tenant context is that landlords owe a duty of reasonable care as to those parts of the property over which they have retained control.... [L]andlords [however] generally [do] not have a duty to keep in repair any portion of the premises leased to and in the exclusive possession and control of the tenant." [Internal quotation marks omitted.] ), cert. denied, 298 Conn. 933, 10 A.3d 517 (2010). Although the court in Tippetts referenced landlord-tenant cases in its decision, on the whole, landlord-tenant cases are distinguishable from public nuisance cases involving a defendant who has never been an owner of the property. The defendant asserts that the plaintiff's claim is really one for negligence, therefore it cannot be a nuisance claim. Some legal scholars have addressed the sometimes overlapping nature of nuisance and negligence liability: "The source of the harmful invasion of plaintiff's interest will often involve conduct or a condition for which defendant will be liable under ordinary principles of tort law independent of nuisance. The commonest example is probably negligence. Defendant may create a nuisance by negligence as where one's manufacturing operations are so conducted as to cause an unnecessary and unreasonable amount of smoke or fumes.... [F]amiliar principles of tort law will account for liability without any special regard to the peculiarities of nuisance.... "The above discussion should dispose of the question sometimes put of drawing a distinction between nuisance and negligence. There may be nuisances that do not involve negligence, and there may be negligence that does not produce a nuisance (though it causes other injury). But negligence is one way in which a nuisance may be caused, and where that is the case there is no distinction-the two coalesce." (Footnotes omitted.) 1 F. Harper et al., Torts (3d Ed., 2006), § 1.23, pp. 100-102. Our analysis is therefore focused on the nature of control as a requirement for use of property in Connecticut public nuisance case law, rather than attempting to draw a line between nuisance and negligence, which may or may not exist, depending on the case at issue.

12508057

John STRANO et al. v. Darwyn AZZINARO et al.

Strano v. Azzinaro

2019-03-05

AC 40752

705

712

204 A.3d 705

204

West's Atlantic Reporter, Third Series

Connecticut Appellate Court

Connecticut

2021-08-27T20:57:45.915931+00:00

Fastcase

John STRANO et al. v. Darwyn AZZINARO et al.

John STRANO et al. v. Darwyn AZZINARO et al. AC 40752 Appellate Court of Connecticut. Argued October 17, 2018 Officially released March 5, 2019 John R. Williams, New Haven, for the appellants (plaintiffs). Stephen P. Brown, with whom, on the brief, was Nicole R. Cuglietto, Stamford, for the appellees (defendants). Sheldon, Elgo and Beach, Js.

3562

22539

BEACH, J. The plaintiffs, John Strano and Rider Strano, appeal from the judgment of the trial court rendered after its decision striking their claims sounding in intentional infliction of emotional distress, which claims were brought against the defendants, Darwyn Azzinaro, in his official capacity as Essex Boy Scouts Troop 12 Committee Chairman, and the Boy Scouts of America Corporation. The plaintiffs claim that their revised complaint alleged facts sufficient to support the conclusion that the defendants engaged in extreme and outrageous conduct toward them. We affirm the judgment of the trial court. The following facts and procedural history are pertinent to our decision. The original complaint was brought by John Strano on his own behalf and as the father and next friend of his minor son. The plaintiffs alleged, in relevant part, that the minor plaintiff, a scout in the Essex Boy Scouts Troop 12, had been bullied by a fellow scout. After John Strano requested that Azzinaro and other adult troop leaders intervene to stop the bullying and John Strano attended troop meetings to monitor his son's treatment, Azzinaro sent John Strano a letter notifying him that the minor plaintiff was no longer permitted to attend troop meetings or events, because John Strano's presence at troop meetings disrupted the group's functioning. The defendants filed a motion to strike the complaint on the ground that the plaintiffs failed to allege facts sufficient to establish that the defendants had engaged in extreme and outrageous conduct. The court granted the motion to strike, concluding that no reasonable fact finder could find that the defendants' conduct was extreme and outrageous. The plaintiffs filed a revised complaint, in which they pleaded additional facts in support of their claim of intentional infliction of emotional distress. The revised complaint added that the minor plaintiff had been diagnosed with autism spectrum disorder, which diagnosis qualified him for an Individual Education Plan pursuant to Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794 et seq., and that the defendants were aware that the minor plaintiff required educational accommodations. The revised complaint also described several instances in which a fellow scout had bullied the minor plaintiff, as well as remedial actions that the alleged bully's parents and the defendants had taken in response to the bullying. The defendants filed a motion to strike the plaintiffs' revised complaint on the ground that it, like the original complaint, failed to plead facts sufficient to allege that the defendants had engaged in extreme and outrageous conduct toward them. The court granted the defendants' motion. The plaintiffs did not file a new pleading within the time allotted in Practice Book § 10-44. The defendants filed a motion for judgment, which the court granted. This appeal followed. The plaintiffs claim that the court erroneously determined that no reasonable fact finder could find that the defendants' alleged conduct had been extreme and outrageous and, therefore, erred in striking their revised complaint. We disagree. "The standard of review for granting a motion to strike is well settled. In an appeal from a judgment following the granting of a motion to strike, we must take as true the facts alleged in the plaintiff's complaint and must construe the complaint in the manner most favorable to sustaining its legal sufficiency.... A motion to strike admits all facts well pleaded.... A determination regarding the legal sufficiency of a claim is, therefore, a conclusion of law, not a finding of fact. Accordingly, our review is plenary.... If 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." (Citations omitted; internal quotation marks omitted.) Bell v. Board of Education , 55 Conn. App. 400, 404, 739 A.2d 321 (1999). To prevail on a claim sounding in intentional infliction of emotional distress, a plaintiff must prove the following four elements: "(1) that the actor intended to inflict emotional distress; or that he knew or should have known that emotional distress was a likely result of his conduct; (2) that the conduct was extreme and outrageous; (3) that the defendant's conduct was the cause of the plaintiff's distress; and (4) that the emotional distress sustained by the plaintiff was severe." (Internal quotation marks omitted.) Id., at 409, 739 A.2d 321, citing, inter alia, 1 Restatement (Second), Torts § 46 (1965). "In assessing a claim for intentional infliction of emotional distress, the court performs a gatekeeper function. In this capacity, the role of the court is to determine whether the allegations of a complaint . set forth behaviors that a reasonable fact finder could find to be extreme or outrageous. In exercising this responsibility the court is not [fact-finding], but rather it is making an assessment whether, as a matter of law, the alleged behavior fits the criteria required to establish a claim premised on intentional infliction of emotional distress." (Internal quotation marks omitted.) Historic District Commission v. Sciame , 140 Conn. App. 209, 218, 58 A.3d 354 (2013). "Liability for intentional infliction of emotional distress requires conduct exceeding all bounds usually tolerated by decent society, of a nature which is especially calculated to cause, and does cause, mental distress of a very serious kind." (Internal quotation marks omitted.) Bell v. Board of Education , supra, 55 Conn. App. at 409, 739 A.2d 321. "Generally, the case is one in which the recitation of the facts to an average member of the community would arouse his resentment against the actor, and lead him to exclaim, Outrageous!" (Internal quotation marks omitted.) Appleton v. Board of Education , 254 Conn. 205, 211, 757 A.2d 1059 (2000), quoting 1 Restatement (Second), supra, § 46, comment (d). "[E]ven if emotional harm is inflicted for no purpose other than to cause such harm, some degree of emotional harm must be expected in social interaction and tolerated without legal recourse. Under the 'extreme and outrageous' requirement, an actor is liable only if the conduct goes beyond the bounds of human decency such that it would be regarded as intolerable in a civilized community. Ordinary insults and indignities are not enough for liability to be imposed, even if the actor desires to cause emotional harm." 2 Restatement (Third), Torts § 46, comment (d), pp. 138-39 (2012). In Bell v. Board of Education , supra, 55 Conn. App. at 400, 739 A.2d 321, the parents of several children alleged that the principal of their elementary school "imposed on the children a teaching method . [which emphasized] social skills at the expense of discipline and academics... [and, consequently,] the defendants encouraged, created and tolerated an atmosphere of chaos, disruptiveness and violence at the school so that the children were exposed on a daily basis to so much physical and verbal violence that it became a place of fear." Id., at 403, 739 A.2d 321. Emphasizing that the "place of fear" lasted for two years, this court concluded that the allegations were sufficient to state a cause of action for intentional infliction of emotional distress. Id., at 411, 739 A.2d 321. In Appleton v. Board of Education , supra, 254 Conn. at 205, 757 A.2d 1059, and Dollard v. Board of Education , 63 Conn. App. 550, 777 A.2d 714 (2001), on the other hand, offensive and insulting behavior was alleged but the allegations were not found sufficient to support a conclusion of intentional infliction of emotional distress. In Appleton , the plaintiff teacher was allegedly insulted in front of her colleagues. The defendants allegedly questioned her vision and her ability to read, her daughter was told that the plaintiff had been "acting differently" and should take a few days off, she was subjected to two psychiatric examinations, and police were called to escort her from work. Appleton v. Board of Education , supra, at 211, 757 A.2d 1059. Although the events "may very well have been distressing and hurtful to the plaintiff," they were held not to constitute "extreme and outrageous" conduct. Id. In Dollard v. Board of Education , supra, 63 Conn. App. at 550, 777 A.2d 714, the complaint alleged that the plaintiff school psychologist had been subjected to a concerted plan to compel her to resign from her position and to make her distraught. Allegedly, she was transferred against her wishes and her replacement was secretly hired. Id., at 552-53, 777 A.2d 714. She was publicly admonished for chewing gum, being habitually late and disorganized and not using time well, and she was unnecessarily placed under the close supervision of a friend of a defendant. Id., at 553, 777 A.2d 714. This court deemed these allegations insufficient to establish extreme and outrageous conduct. Id., at 555, 777 A.2d 714. I We first apply the foregoing principles to the allegations specifically regarding John Strano. The plaintiffs alleged that John Strano asked the defendants to intervene to protect the minor plaintiff from bullying. Subsequently, Azzinaro sent a letter to John Strano expelling the minor plaintiff from the troop. Azzinaro allegedly stated that John Strano's presence "at troop meetings [was] a major disruption to the other scouts, scout parents, Rider and leaders of the troop." The plaintiffs alleged that this statement was false and that the defendants punished the minor plaintiff "for the purpose of causing pain and injury to John Strano." He alleged, in essence, that the defendants inflicted emotional distress on him by expelling his son, and that the expulsion was effected for the purpose of inflicting distress on John Strano. This conduct is not different in kind or degree from that alleged in cases such as Appleton v. Board of Education , supra, 254 Conn. at 205, 757 A.2d 1059, and Dollard v. Board of Education , supra, 63 Conn. App. at 550, 777 A.2d 714. Even if hurtful, the conduct did not exceed all bounds of decency in civilized society. We, therefore, affirm the trial court's judgment as to John Strano. II Our analysis of the minor plaintiff's claim is modified by two factors that do not apply to the claim of John Strano. The Restatement provides that conduct may be deemed extreme and outrageous if the actor knew that "the other person was especially vulnerable." 2 Restatement (Third), supra, § 46, comment (d). The Restatement also provides: "Whether an actor's conduct is extreme and outrageous depends on the facts of each case, including the relationship of the parties, [and] whether the actor abused a position of authority over the other person ." Id., comment (d). The complaint alleged facts sufficient to trigger consideration of the additional factors. The plaintiffs alleged that the minor plaintiff exhibited neuroatypical behaviors associated with his autism spectrum diagnosis, and that the defendants knew that the minor plaintiff required speech and language services at school to address deficits in social skills and executive functioning. They further alleged several instances in which the minor plaintiff was bullied by a fellow scout while participating in troop activities. Although the defendants notified the other scout's parents of these instances and suspended the fellow scout from meetings for four weeks, they refused to take any further-and, impliedly, more harsh-disciplinary action against the bully. The revised complaint asserts, as well, that the defendants had a duty to protect troop members from bullying and sets forth facts sufficient to conclude that the defendants were in a position of authority over the minor plaintiff. Thus, vulnerability on the part of the minor plaintiff and the position of authority on the part of the defendants were alleged. The allegation of additional factors, however, does not necessarily compel the conclusion that the element of extreme and outrageous conduct has been adequately alleged. There remains the dispositive question as to whether under the circumstances, which include vulnerability and the exercise of authority, the alleged conduct was extreme and outrageous, as defined and illustrated in case law. We turn, then, to illustrative cases. In Karlen v. Westport Board of Education , Docket No. 3:07-CV-309 (CFD), 2010 WL 3925961 (D. Conn. September 30, 2010), the plaintiff alleged that the defendant failed to act to mitigate racially motivated harassment of a minor student. The court noted that in response to the plaintiff's reporting that she was the victim of racially motivated harassment, the defendant investigated her allegations, met with her parents, and promptly honored her father's request to transfer the plaintiff to another school. Id., at *18. In light of such actions, the District Court, applying Connecticut law, concluded that summary judgment was appropriate because "the plaintiffs have not alleged conduct that is sufficiently 'extreme and outrageous' to constitute intentional infliction of emotional distress." Id. It is instructive to note a qualitative difference between Bell and Karlen . In Karlen v. Westport Board of Education , supra, 2010 WL 3925961, the defendant superintendent allegedly made an effort to address the hurtful behavior complained of, though the effort may have been unproductive. In Bell v. Board of Education , supra, 55 Conn. App. at 400, 739 A.2d 321, by contrast, the defendants themselves allegedly created the "place of fear" that plagued the plaintiffs for two years. Failure to remedy a difficult environment, at least where some effort is made to do so, is rarely, if ever, the kind of behavior that exceeds the bounds of civil decency for the purpose of proving the tort of intentional infliction of emotional distress. See also Bass ex rel. Bass v. Miss Porter's School , 738 F.Supp.2d 307 (D. Conn. 2010) (expulsion of student for violating school code of conduct, even though she previously told staff she had been ridiculed for her attention deficit disorder, not sufficiently extreme and outrageous conduct). Additionally, we find persuasive guidance in Rudis v. National College of Education , 191 Ill.App.3d 1009, 139 Ill.Dec. 89, 548 N.E.2d 474 (1989), in which the court applied the Restatement in determining whether the additional factors alleged in the plaintiff's complaint alleged facts sufficient to support a conclusion that the defendant's conduct was extreme and outrageous. In Rudis , the plaintiff was employed as a schoolteacher in Illinois. The National College of Education invited her to apply as a student to their Masters in Computer Education Program. Id., 139 Ill.Dec. 89, 548 N.E.2d at 475. After enrolling in the program, the plaintiff was dismissed from the school on a number of grounds, but, after seeking legal counsel, she was reinstated. Id., 139 Ill.Dec. 89, 548 N.E.2d at 476. The plaintiff then received several comments from faculty who called her "a cheat and a computer hacker, and accused her of 'not getting what she deserved.' " Id. Rumors spread at her place of employment, and she was denied expected promotions and advancements. Id. The plaintiff claimed intentional infliction of emotional distress based on this course of conduct. Id. The plaintiff alleged that the conduct was extreme and outrageous because "(1) the character of the conduct itself is extreme and outrageous, (2) the conduct arises out of an abuse of a position or relationship in which the defendant has authority over the plaintiff, [and] (3) the defendant knew [the plaintiff had] some peculiar susceptibility . to emotional distress." See id. As to the character of the defendants' conduct, the court concluded that "[the plaintiff] has not alleged that the defendants used vituperative, profane, threatening, or coercive language or conduct. While the defendants' remarks may have been insulting or untrue, we do not believe that they rise to a level of intensity or duration that no reasonable man could be expected to endure." Id., 139 Ill.Dec. 89, 548 N.E.2d at 477. Additionally, the court rejected the plaintiff's argument that the defendants abused their authority, reasoning that the defendants had not coerced the plaintiff into engaging in behavior in which she would not otherwise have engaged and did not use expulsion as a threat against her. Id., 139 Ill.Dec. 89, 548 N.E.2d at 478. Moreover, the court noted that "[e]ven if we were to accept [the plaintiff's] argument that the defendants wielded some position of authority over her, such authority does not transform conduct which otherwise amounts to no more than insults or indignities into extreme and outrageous conduct." Id. Finding no outrageous conduct, the court reasoned that the plaintiff's contention that her peculiar susceptibility could warrant a finding of extreme and outrageous conduct must also fail as "peculiar susceptibility unaccompanied by major outrage cannot of itself raise the defendants' conduct to the level of extreme and outrageous." Id. The court affirmed the trial court's judgment granting the defendant's motion to dismiss. Id. ; see also Shore v. Mirabilio , Docket No. 3:16-cv-2078 (VLB), 2018 WL 1582548 (D. Conn. March 29, 2018) (although plaintiff allegedly had learning disorder and allegedly had been called " 'like a fifth grader,' 'not too swift,' 'slow,' and 'stupid' " by instructor, expulsion from professional training school after telling prospective students about instances in which she was criticized, demeaned, and unfairly treated by instructor was not basis for intentional infliction of emotional distress claim, as such conduct did not transgress all bounds of decency). With these principles in mind, we turn to the precise allegations of the minor plaintiff. As stated previously, the revised complaint alleged that the minor plaintiff was autistic and that the defendants knew that he required speech and language services at school to address deficits in his executive ability and social skills. The revised complaint alleged that he had been bullied several times, most notably by a particular fellow scout. The defendants suspended the bully for four weeks but did not take further action against him. The defendants then expelled the minor plaintiff for the stated reason that the presence of his father, the plaintiff John Strano, at troop activities was "a major disruption to the other scouts, scout parents, [the minor plaintiff] and leaders of the troop." The stated reason was false, according to the revised complaint, as John Strano had asked the defendants to intervene to protect the minor plaintiff from bullying, and it was the defendants' obligation to do so. The revised complaint concluded by alleging that the defendants punished the minor plaintiff for the actions of his father in order to cause John Strano pain and injury, and, as a result of the conduct of the defendants, both of the plaintiffs suffered extreme emotional distress. It is instructive to note what was not alleged. It was not alleged that the minor plaintiff was expelled because he was autistic, nor was it alleged that the defendants promoted bullying and the minor plaintiff suffered distress as a result. Nor were the mechanics of the expulsion allegedly abusive or degrading. Rather, it allegedly was the expulsion itself, for an allegedly false reason not based on the minor plaintiff's behavior or character, that caused him extreme emotional distress. In these circumstances, we conclude that the expulsion in itself was not sufficient to constitute extreme and outrageous conduct for purposes of a claim sounding in intentional infliction of emotional distress. In so concluding, we are mindful of the minor plaintiff's alleged vulnerability. We recognize that troop participation may have been a valuable opportunity for the minor plaintiff to interact positively with others, and that being terminated from participation in that activity may have caused him distress. Although efforts by the defendants allegedly were inadequate to end the bullying, we are not persuaded that, in light of the previously discussed authorities, their alleged conduct toward the minor plaintiff was extreme and outrageous, beyond all bounds of civilized behavior. Additionally, the manner in which the minor plaintiff was expelled does not rise to the level of intentional infliction of emotional distress. The revised complaint does not allege that the defendants used any harsh or humiliating language in the letter or, for that matter, at any time. Even if the defendants' given reason for the expulsion was untrue, the scenario does not exceed the bounds of civilized behavior. The allegations in the present case present a scenario that may well have been difficult, and the plaintiffs perhaps may have been treated unfairly. Allegedly uneven discipline and punishment for a parent's actions are a far cry from the two years of an intensely fearful environment such as was presented in Bell v. Board of Education , supra, 55 Conn. App. at 400, 739 A.2d 321, and which the plaintiffs in Bell had no choice but to attend. The circumstances of this case are consistent with the scenarios in those cases that present unfortunate, but not totally uncivilized, behavior. The judgment is affirmed. In this opinion the other judges concurred. In their brief, the defendants claimed that the Federal Volunteer Protection Act, 42 U.S.C. § 14503 (a), barred recovery. In oral argument, the defendants noted that they did not raise this claim at the trial level because they had not yet filed an answer and defenses. Accordingly, the defendants agreed that we need not consider this claim. The revised complaint quoted only a brief portion of the letter. In Appleton , our Supreme Court reversed this court's conclusion that summary judgment for the defendants had been rendered improperly. Although the federal cases applying Connecticut law and the appellate case from another jurisdiction are not binding, we find them persuasive.

12484925

William C. STYSLINGER III v. BREWSTER PARK, LLC, et al.

Styslinger v. Brewster Park, LLC

2016-05-17

No. 19489.

257

265

138 A.3d 257

138

West's Atlantic Reporter, Third Series

Connecticut Supreme Court

Connecticut

2021-08-27T20:57:13.994284+00:00

Fastcase

William C. STYSLINGER III v. BREWSTER PARK, LLC, et al.

William C. STYSLINGER III v. BREWSTER PARK, LLC, et al. No. 19489. Supreme Court of Connecticut. Argued Dec. 15, 2015. Decided May 17, 2016. Joel Z. Green, Bridgeport, with whom, on the brief, was Linda Pesce Laske, for the appellant (plaintiff). Andrew M. McPherson, with whom, on the brief, was William J. Kupinse, Jr., Bridgeport, for the appellees (defendants). ROGERS, C.J., and PALMER, ZARELLA, McDONALD, ESPINOSA, ROBINSON and VERTEFEUILLE, Js.

3572

21691

VERTEFEUILLE, J. In this appeal, we must determine whether the assignee of a membership interest in a Connecticut limited liability company (LLC) has standing to seek a court order forcing the winding up of the affairs of an LLC in the absence of the LLC's dissolution. We conclude that the assignee does not have standing to do so. The named defendant, Brewster Park, LLC (Brewster Park), is an LLC with a business address in Fairfield that owns, maintains, and leases residential housing units in Bridgeport and Trumbull. It has two members: the defendant Michael Weinshel and Joyce Styslinger, a nonparty to this action who is the former spouse of the plaintiff, William C. Styslinger III. As part of a marriage dissolution settlement agreement, Joyce Styslinger assigned her membership interest in Brewster Park to the plaintiff. The parties agree that, under General Statutes § 34-170 and 34-172, the plaintiff, as assignee, has the right to receive distributions resulting from Joyce Styslinger's membership interest in Brewster Park, while Joyce Styslinger remains a member of Brewster Park unless and until the plaintiff is admitted to membership by Weinshel, the other member of Brewster Park. See General Statutes § 34-172 and 34-179. The plaintiff has requested membership status, but has not been granted it by Weinshel. Brewster Park also has not made any distributions to the plaintiff, despite the plaintiff's demand. The plaintiff filed the present action against Brewster Park and Weinshel claiming, among other things, that Weinshel has breached his fiduciary duties to Brewster Park and the plaintiff by refusing to make distributions to the plaintiff while taking distributions for himself, and by refusing to allow the plaintiff to inspect Brewster Park's books and records. In his complaint, the plaintiff sought the following forms of relief: (1) an order dissolving Brewster Park; (2) the appointment of a receiver to wind up its affairs and distribute its assets; and (3) "[s]uch other and further relief as in law or equity may appertain." The defendants moved to dismiss the complaint on the ground that the plaintiff, as an assignee, lacked standing to seek orders to dissolve and wind up the affairs of Brewster Park because only members could seek this relief under the Connecticut Limited Liability Company Act (act), General Statutes § 34-100 et seq. The plaintiff responded that both the act and principles of equity gave him standing to pursue the dissolution and the winding up of affairs, even as an assignee, as a remedy for Weinshel's wrongful conduct. The trial court agreed with the defendants that the plaintiff did not have standing to seek a dissolution or a winding up of Brewster Park's affairs. Because the plaintiff did not request with specificity any other form of relief besides a dissolution and a winding up of the affairs, the court rendered judgment dismissing the complaint. The trial court also denied a motion by the plaintiff to reconsider its ruling. The plaintiff appealed from the judgment of dismissal to the Appellate Court and we transferred the appeal to this court pursuant to General Statutes § 51-199(c) and Practice Book § 65-1. On appeal, the plaintiff no longer argues that he has standing to seek the dissolution of Brewster Park. Instead, he claims that the act grants him standing to seek a winding up of Brewster Park's affairs and distribution of its assets even in the absence of a dissolution. We disagree, and affirm the trial court's judgment. "As a preliminary matter, we set forth the standard of review. 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.... A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction.... [O]ur review of the trial court's ultimate legal conclusion and resulting [decision to] grant . the motion to dismiss will be de novo.... "The issue of standing implicates subject matter jurisdiction and is therefore a basis for granting a motion to dismiss.... [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.... "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...." (Citations omitted; internal quotation marks omitted.) Wilcox v. Webster Ins., Inc., 294 Conn. 206, 213-14, 982 A.2d 1053 (2009). The question of whether the plaintiff, as assignee of a membership interest in an LLC, has standing to bring his claims under the act, presents an issue of statutory construction, also a question of law over which our review is plenary. Well established principles guide our interpretation. "When construing a statute, [o]ur fundamental objective is to ascertain and give effect to the apparent intent of the legislature.... [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.... [W]e are [also] guided by the principle that the legislature is always presumed to have created a harmonious and consistent body of law.... [T]his tenet of statutory construction . requires us to read statutes together when they relate to the same subject matter.... Accordingly, [i]n determining the meaning of a statute . we look not only at the provision at issue, but also to the broader statutory scheme to ensure the coherency of our construction." (Internal quotation marks omitted.) Hartford/Windsor Healthcare Properties, LLC v. Hartford, 298 Conn. 191, 197-98, 3 A.3d 56 (2010). We begin our analysis with the nature of LLCs and the law that governs them. Our common law does not recognize LLCs, which were first created by statute in Connecticut in 1993. Public Acts 1993, No. 93-267. An LLC is a distinct type of business entity that allows its owners to take advantage of the pass-through tax treatment afforded to partnerships while also providing them with limited liability protections common to corporations. See, e.g., 51 Am.Jur.2d 818, Limited Liability Companies § 1 (2011); see also General Statutes § 34-133 (setting forth members' limited liability protections). The act establishes the right to form an LLC and all of the rights and duties of the LLC, as well as all of the rights and duties of members and assignees. It permits the members to supplement these statutory provisions by adopting an operating agreement to govern the LLC's affairs. See, e.g., General Statutes § 34-140(c) (permitting members to adopt operating agreement governing LLC's affairs, provided agreement is consistent with act). It is undisputed in the present case, however, that Brewster Park does not have an operating agreement to supplement the rights and duties established in the act. The provisions of the act relating to winding up an LLC's affairs inextricably link the winding up process to a dissolution, and therefore must be read together with the statutes governing the dissolution of an LLC. See, e.g., General Statutes § 34-206 through 34-209. Tellingly, the provisions governing a winding up of the affairs of an LLC are found within the provisions governing the dissolution process. The statutory provisions with regard to both dissolution and winding up of affairs are found within the portion of the act entitled "DISSOLUTION." General Statutes § 34-206 through 34-216. Reading the winding up and dissolution statutes together, the act creates a clear progression from dissolution to winding up the affairs, demonstrating that a winding up is not an independent event, but is an integral part of the dissolution process. Once an event of dissolution occurs, the LLC winds up its affairs, distributes its assets, and then terminates its business operations. See, e.g., Mukon v. Gollnick, 151 Conn.App. 126, 131-32, 92 A.3d 1052 (2014). The act provides only a single mechanism for triggering a winding up of an LLC's affairs: an event of dissolution. Section 34-206 provides in relevant part that "[a] limited liability company is dissolved and its affairs shall be wound up upon the happening" of one of three events: (1) any event of dissolution specified in the LLC's articles of organization or operating agreement; (2) a vote to dissolve by the majority of the LLC's members; or (3) the entry of a decree of judicial dissolution under General Statutes § 34-207. (Emphasis added.) Under § 34-207, only a member or someone on the member's behalf may apply for a decree of dissolution, and a decree may enter only if the court determines that "it is not reasonably practicable to carry on the business in conformity with the articles of organization or operating agreement." General Statutes § 34-207. There are no other mechanisms in the act for triggering a winding up of the affairs. Moreover, the provisions of the act governing the winding up process presuppose that the LLC has already dissolved prior to winding up its affairs. For instance, General Statutes § 34-208(a)(1) explains who may carry out the winding up process and vests this power in "the members or managers who have authority . to manage the limited liability company prior to dissolution ." (Emphasis added.) General Statutes § 34-209(a) sets out the powers of members and managers to bind the LLC after dissolution, providing in relevant part that, "after dissolution of the limited liability company, each of the members having authority to wind up the limited liability company's business and affairs can bind the limited liability company . (1) [b]y any act appropriate for winding up the limited liability company's business and affairs or completing transactions unfinished at dissolution ." (Emphasis added.) In addition, General Statutes § 34-210, the sole provision among the dissolution sections of the act that governs the final distribution of the LLC's assets, provides in relevant part that, "[u]pon the winding up of a limited liability company, the assets shall be distributed as follows...." (Emphasis added.) In the present case, none of the events of dissolution specified in § 34-206 has occurred and the plaintiff therefore cannot trigger a winding up of Brewster Park's affairs. First, the plaintiff has not alleged that Brewster Park's articles of organization have triggered a dissolution and it has no operating agreement. Second, the plaintiff has not alleged that its members voted to dissolve. Third, because the plaintiff is not a member of Brewster Park, he cannot pursue a judicial dissolution under § 34-207. Unless and until the plaintiff is admitted to membership, Joyce Styslinger continues to hold the sole power to exercise the rights accompanying her membership interest; see General Statutes § 34-170(a)(4) and 34-172(d) ; and she has not sought a judicial dissolution of Brewster Park in this action. Because no event of dissolution has occurred, and the plaintiff cannot force a judicial dissolution under § 34-207 as an assignee, we conclude that the act does not grant the plaintiff standing to seek a winding up of Brewster Park's affairs. The plaintiff argues that his right to force a winding up of Brewster Park's affairs is found in § 34-208(a). We disagree. That subsection pertains only to who may carry out the winding up process once it has been triggered by dissolution; it does not provide authority for an assignee to trigger a winding up in the first place. Section 34-208(a)(1) provides in relevant part that, by default, the winding up may be carried out "by the members or managers who have authority . to manage the limited liability company prior to dissolution...." Alternatively, "if one or more of the members or managers of the limited liability company have engaged in wrongful conduct, or upon other cause shown," the statute permits any member or an assignee to apply to the Superior Court to ask the court to carry out the winding up process in place of the members and managers. General Statutes § 34-208(a)(2). Thus, under § 34-208(a), if an LLC has dissolved, but the members or managers had engaged in wrongful conduct or for other cause shown, an assignee can apply to the Superior Court to have the court perform the winding up process instead of the members or managers. Nothing in § 34-208, however, permits an assignee to apply to the Superior Court to force the commencement of a winding up process absent a dissolution under § 34-206. Apart from having no support from the text of the act, the plaintiff's interpretation of § 34-208 allowing an assignee to force a winding up of affairs without a dissolution of the LLC would undermine the statutory scheme for LLCs, thus leading to absurd results. Under the act, an assignee is a passive recipient of the economic benefit of a membership interest and is barred by the act from participating in the management of the LLC's business or exercising any right of membership unless and until the assignee is admitted as a member. General Statutes § 34-170(a)(2) through (4). The act expressly provides that "an assignment of a limited liability company membership interest does not dissolve the limited liability company or entitle the assignee to participate in the management and affairs of the limited liability company or to become or exercise any rights of a member...." General Statutes § 34-170(a)(3). Instead, the rights and duties of membership remain vested in the assignor until the assignee is admitted to membership. General Statutes § 34-170(a)(4) and 34-172(d). Recognizing that assignees have no role to play in managing the LLC's affairs, the act shields them from any liabilities that a member might have; General Statutes § 34-170(a)(5) ; including, for example, for capital contributions. See General Statutes § 34-151 (describing member liability for capital contributions to LLC). Instead, the assignor member continues to hold the obligations of membership, including for capital contributions, and continues to owe a duty of good faith to the LLC. See, e.g., General Statutes § 34-140, 34-141 and 34-151. The plaintiff's interpretation of the act is directly contrary to these limitations on the rights of an assignee, and would exalt rights of assignees to a level on par with those of members in the face of the act's clear intention to the contrary. Only members may vote to dissolve an LLC and wind up its affairs. General Statutes § 34-206(2). Only a member or someone on his behalf may apply to a court for a judicial dissolution forcing a winding up of an LLC. General Statutes § 34-207. If an assignee could obtain a judgment effecting a winding up of the LLC's affairs without a dissolution, the assignee would hold the power to force a termination of the LLC's business operations, giving the assignee undue leverage over the members. In the present case, Joyce Styslinger, rather than the plaintiff, retains the sole right under the act to exercise her membership rights and to protect her membership interests. There is only one provision of the act that places the rights of assignees on par with the members, and the power to exercise this right is available to assignees only after the LLC has dissolved. As we have previously explained, § 34-208 permits assignees, after a dissolution, to ask the Superior Court to conduct the winding up process in the stead of its members and managers, "if one or more of the members or managers of the limited liability company have engaged in wrongful conduct, or upon other cause shown." General Statutes § 34-208(a)(2). Providing assignees this power after a dissolution and during a winding up process is wholly consistent with the limited role that the act grants to assignees. The assignee's interest in receiving distributions from the LLC becomes primary after an LLC dissolves. After dissolution, the purpose of the LLC is no longer to maintain its business operations, but to wind up its affairs so that the LLC's assets may be liquidated and distributed to its members or their assignees. General Statutes § 34-206 through 34-211. Thus, only after a dissolution does the act permit an assignee to petition the court to protect his or her then primary interest in receiving a share of the LLC's assets. General Statutes § 34-208(a)(b)(5). We therefore conclude that the act does not provide an assignee such as the plaintiff with standing to seek the winding up of the affairs of an LLC in the absence of a dissolution of that LLC. Accordingly, the trial court properly dismissed the plaintiff's complaint. The judgment is affirmed. In this opinion the other justices concurred. References to Brewster Park and Weinshel jointly are to the defendants; individual references are by name. The plaintiff claims on appeal that he is also entitled to pursue other forms of relief besides a winding up of Brewster Park's affairs, including money damages for Weinshel's wrongful conduct. In dismissing the complaint, however, the trial court noted that the plaintiff had failed to specifically request money damages and thus could not sustain such a claim. We agree with the trial court. Assuming for the sake of argument that an assignee is entitled to seek some other relief, including money damages, for wrongful conduct on the part of the members or managers of an LLC, the plaintiff did not explicitly ask for any other relief besides a court-ordered dissolution and winding up of Brewster Park's affairs in his complaint. Although the plaintiff requested "[s]uch other and further relief as in law or equity may appertain," the trial court properly concluded that a more specific request was necessary to put the defendants on notice that the plaintiff was seeking some other form of relief besides dissolution and winding up. As the Appellate Court has explained, a catchall prayer for relief such as " 'such other relief as the court deems necessary and just' is too amorphous to be a claim for money damages." Solomon v. Hall-Brooke Foundation, Inc., 30 Conn.App. 129, 134, 619 A.2d 863 (1993) ; see also Stern v. Connecticut Medical Examining Board, 208 Conn. 492, 501, 545 A.2d 1080 (1988) ("In an ordinary civil case, the general rule is that a prayer for relief must articulate with specificity the form of relief that is sought.... A party who fails to comply with this rule runs the risk of being denied recovery." [Citations omitted.] ). By contrast, our Uniform Partnership Act; General Statutes § 34-300 et seq. ; expressly permits transferees of a partnership interest to ask a court to dissolve and wind up the affairs of a partnership. See, e.g., General Statutes § 34-348(b) and 34-372(6). We find this difference significant and strongly suggestive of the fact that the legislature did not intend to provide an assignee of a membership interest in an LLC with the right to wind up the affairs of the LLC. The plaintiff has also claimed that he is classically aggrieved under the common law or principles of equity, but we disagree. The act permits "principles of law and equity [to] supplement" the act only to the extent that they are not "displaced" by the act's provisions. General Statutes § 34-242(b). Thus, even if we assume, for the sake of argument, that the common law or equitable principles would otherwise grant an assignee standing to seek a winding up of an LLC's affairs, we nevertheless conclude that these principles are displaced by the provisions of the act discussed previously herein that expressly limit an assignee's role and prevent an assignee from forcing the dissolution or winding up of the LLC. In support of this claim, the plaintiff cites the Delaware Chancery Court decision in In re Carlisle Etcetera LLC, 114 A.3d 592 (Del.Ch.2015), but we find that decision inapposite because Delaware law concerning assignments of membership interests in an LLC differs markedly from that in Connecticut. Under Delaware law, an assignment leaves both the member and the assignee without the power to assert the rights of membership at issue unless and until the assignee is admitted to membership Id., at 597-601. The court in In re Carlisle Etcetera LLC resolved this lacuna by granting equitable standing to the assignee. Id., at 601-607. Connecticut law, by contrast, does not result in a similar void because the assignor continues to hold the exclusive power to exercise the rights of membership until the assignee becomes a member. General Statutes § 34-170(a)(4) and 34-172(d).

12506110

STATE of Connecticut v. Joseph A. STEPHENSON

State v. Stephenson

2019-01-08

AC 40250

427

438

201 A.3d 427

201

West's Atlantic Reporter, Third Series

Connecticut Appellate Court

Connecticut

2021-08-27T20:57:43.751599+00:00

Fastcase

STATE of Connecticut v. Joseph A. STEPHENSON

STATE of Connecticut v. Joseph A. STEPHENSON AC 40250 Appellate Court of Connecticut. Argued September 11, 2018 Officially released January 8, 2019 Vishal K. Garg, West Hartford, for the appellant (defendant). Sarah Hanna, assistant state's attorney, with whom, on the brief, were Richard J. Colangelo, Jr., Norwalk, state's attorney, and Michelle Manning, assistant state's attorney, for the appellee (state). Sheldon, Bright and Mihalakos, Js.

6139

36855

SHELDON, J. The defendant, Joseph A. Stephenson, appeals from the judgment of conviction rendered against him after a jury trial in the Stamford Superior Court on charges of burglary in the third degree in violation of General Statutes § 53a-103, attempt to commit tampering with physical evidence in violation of General Statutes § 53a-49 (a) (2) and (Rev. to 2013) 53a-155 (a) (1), and attempt to commit arson in the second degree in violation of General Statutes § 53a-49 (a) (2) and 53a-112 (a) (1) (B). The defendant claims on appeal that (1) the evidence presented at trial was insufficient to support his conviction on those charges, and thus that he is entitled to the reversal of his conviction and the entry of a judgment of acquittal on each such charge, and (2) the court improperly prevented him from presenting exculpatory testimony from his trial attorney as to a conversation between them two days before his alleged commission of the charged offenses that tended to contradict the state's claim that he had a special motive for committing those offenses. We agree with the defendant that the evidence presented at trial was insufficient to convict him of any of the charged offenses, as the state charged and sought to prove them in this case, and, thus, we conclude that his conviction on those charges must be reversed and this case must be remanded with direction to render a judgment of acquittal thereon. In light of this conclusion, we need not address the defendant's second claim. The following procedural history and evidence, as presented at trial, are relevant to our resolution of the defendant's claims. On Sunday, March 3, 2013, at approximately 11:00 p.m., the silent alarm at the Norwalk Superior Courthouse was triggered by the breaking of a window in the state's attorney's office on the east side of the courthouse. Soon thereafter, Connecticut State Trooper Justin Lund arrived at the courthouse, followed almost immediately by Troopers Darrell Tetreault and Alex Pearston. Upon Tetreault's arrival, he saw Lund standing "right against the building, at the window, with his firearm deployed yelling at somebody in the building." Because, however, Lund was later injured and could not testify at the defendant's trial, no evidence was presented as to what, if anything, he saw or heard through the broken courthouse window at that time. The troopers promptly established a perimeter around the outside of the courthouse and radioed for the assistance of a canine unit. When a canine unit arrived several minutes later, the troopers followed it inside the courthouse, which they promptly searched for intruders, without success. The searching officers determined that the broken window was located in an interior office on the east side of the state's attorney's office, which was shared by two assistant state's attorneys, each of whom kept a desk and certain personal effects in the office. Photos of the interior office taken after the break-in showed that a set of blinds that had been hanging in the window through which the intruder entered the building were bent and broken, but still hanging where they were when the intruder came in through them. Inside the larger state's attorney's office, the troopers found a black duffel bag on the floor near the south end of the corridor running past the doors of the three interior offices on the east side of the larger office, including the middle office where the intruder had broken the window and entered the building. The bag thus lay to the far left of a person entering the larger office through the door of the interior office with the broken window. Inside the duffel bag were six unopened blue canisters of industrial strength kerosene with their tags and UPC strips cut off. The officers swabbed the bag and the six canisters of kerosene for DNA. Meanwhile, in the "secretary's desk area" in the northwest corner of the larger state's attorney's office, across the room from and to the right of a person entering the larger office from the interior office with the broken window, the troopers found several case files lying in a disorganized pile on the floor, where they appeared to have been dumped, dropped or knocked over. The secretary's desk area contained two adjacent desks on which telephones, computer monitors, other case files, assorted office equipment and personal memorabilia were arrayed. The desk further to the north, in front of which the pile of files was found, had two partially open drawers on its left side, above which other case files were loosely stacked. To the left of and behind the chair of a person sitting at that desk were two large lateral file cabinets with case files densely packed on open shelves inside them. No evidence was presented as to which case files were found either in the disorganized pile on the floor or in the loose stack on the adjacent desk. Nor, because those case files were never identified, was there any evidence as to where such files had been stored in the office before the intruder entered or whether, if the intruder had moved such files to where they were found from another location in the office, the intruder had touched or disturbed anything in any such location in such a way as to shed light on the object or purpose of his search. None of the case files or any other objects in any locations where they were stored before or found after the break-in was dusted for fingerprints or swabbed for DNA. The troopers also recovered a ball-peen hammer from the vestibule area just inside an exterior door to the courthouse, marked "employee entrance only," through which it was later determined that the intruder fled from the courthouse after the troopers arrived, and began to search inside it. The troopers also swabbed the hammer for DNA. During their ensuing investigation, police investigators obtained and reviewed surveillance videos of the outside of the courthouse, which had been taken on the evening of the break-in by cameras installed on the courthouse itself and in a beauty salon to the east of the courthouse. Video footage obtained from those cameras included a sequence in which an "individual . dressed all in black, [who] appeared to have a black mask on, [a] black jacket, [and] black pants, and appeared to be carrying a black or dark colored bag . approached the side of the courthouse, which is the side that the window was broken on, the side adjacent to the beauty salon." It also included, in the hour before the foregoing sequence was recorded, several other sequences in which a suspicious vehicle-a light colored SUV with a defective rear brake light and a roof rack on the top, a brush bar on the front, and a tire mounted on the back-could be seen driving slowly past the front of the courthouse and driving in and out of the courthouse parking lot. Finally, it included a short sequence, filmed shortly after the troopers entered the courthouse, in which a person dressed all in black emerged from the east side door of the courthouse and ran away across the parking lot where the suspicious vehicle had been seen before the break-in. The troopers later identified the make, model and vintage of the suspicious vehicle seen in the surveillance videos as a Land Rover Freelander manufactured between the years 2002 and 2005. They subsequently determined that the database of the Connecticut Department of Motor Vehicles listed 167 registered vehicles that matched the suspicious vehicle's description. Later, upon narrowing their search to matching vehicles registered to persons living in the Norwalk and Stamford areas, investigators learned that one such vehicle, a 2002 Land Rover Freelander, was registered to Chuck Morrell, the defendant's stepfather. When Morrell was interviewed by the police, he informed them that he had purchased the vehicle for his wife, the defendant's mother, in 2012, and that both the defendant and his mother used the vehicle and were listed as insureds on his automobile insurance policy. When police investigators finally examined Morrell's vehicle several weeks after the break-in, they found that it closely matched the suspicious vehicle seen in the surveillance videos because it not only had aftermarket equipment of the sorts installed on the suspicious vehicle, but it had a defective rear brake light. In addition to the previously described information, police investigators developed the following additional information concerning the defendant's possible involvement in the courthouse break-in. On March 4, 2013, the day after the break-in, the defendant called the Norwalk public defenders' office to ask if the courthouse would be open that day. The defendant was then scheduled to commence jury selection in the trial of two felony charges then pending against him in Norwalk the following day. The window that had been broken and used to gain access to the courthouse on March 3, 2013, was located in the office of the assistant state's attorney who was responsible for prosecuting the defendant in his upcoming trial. The state also presented evidence that the defendant, while incarcerated in April, 2013, made certain recorded phone calls to his brother Christopher Stephenson, and his mother, in which he discussed the March 3, 2013 break-in. In particular, the defendant's brother told the defendant in one such phone call that Morrell "must have" told the police about the defendant's use of the Freelander on the evening of the break-in and the defendant stated that the police "must have" seen the vehicle at the courthouse on that evening. The defendant urged his brother to say that he had been in New York at the time of the break-in, and thereafter urged both his brother and his mother not to discuss anything about the break-in with the police. Finally, upon testing the DNA swabs taken from the physical evidence discarded by the intruder at the courthouse on the evening of March 3, 2013, personnel from the Connecticut Forensic Science Laboratory determined that each swab contained a mixture of DNA from at least two persons, and that the defendant could not be eliminated as a possible contributor to any such mixture. In his own defense, the defendant presented testimony from his brother that they were together in New York on the evening of the break-in. In addition, he attempted unsuccessfully to present testimony from his attorney as to a conversation between them on the Friday before the break-in, in which he had voiced his intention to plead guilty to the charges then pending against him in Norwalk rather than to go to trial the following Tuesday. The trial court sustained the state's objection to such testimony on the ground that it was inadmissible hearsay. On the basis of the foregoing evidence, the state urged the jury to find the defendant guilty of all three offenses with which he was charged: burglary in the third degree in violation of § 53a-103 ; attempt to commit tampering with physical evidence in violation of § 53a-49 (a) (2) and 53a-155 (a) (1) ; and attempt to commit arson in the second degree in violation of § 53a-49 (a) (2) and 53a-112 (a) (1) (B). The state attempted to prove its case against the defendant under the following, closely intertwined theories of factual and legal liability. As to the charge of burglary in the third degree, the state claimed that the defendant had entered or remained unlawfully in the courthouse, when it was closed to the public and he had no license or privilege to be there for any lawful purpose, with the intent to commit the crime of tampering with physical evidence therein. Although the state conceded that the defendant had not completed the crime of tampering with physical evidence while he was inside the courthouse, it nonetheless claimed that he had intended to commit that offense within the courthouse by engaging in conduct constituting an attempt to commit that offense therein. On that score, the state further argued that the defendant had broken into the courthouse through the window of the assistant state's attorney who was prosecuting him on two pending felony charges, entered the larger state's attorney's office and gone directly to the file cabinets where the state stored its case files, and in the short time he had there before the state police arrived in response to the silent alarm, begun to rummage through the state's case files in an effort to find and tamper with the contents of his own case files. Claiming that the defendant was desperate to avoid his impending trial, the state argued that the defendant thereby attempted to tamper with his case file by altering, destroying, concealing or removing its contents, and thus to impair the verity or availability of such materials for use against him in his upcoming trial. Finally, as to the charge of attempt to commit arson in the second degree, the state claimed that the defendant had committed that offense by breaking into the Norwalk courthouse as aforesaid, while carrying a duffel bag containing six canisters of industrial strength kerosene, and thereby intentionally taking a substantial step in a course of conduct planned to culminate in the commission of arson in the second degree by starting a fire inside the courthouse, with the intent to destroy or damage the courthouse building, for the purpose of concealing his planned crime of tampering with physical evidence, as described previously. The state expressly disclaimed any intent to prosecute the defendant for tampering with physical evidence on the theory that he attempted to start a fire inside the courthouse in order to damage or destroy the building, and thus to damage or destroy the contents of his case files or their contents by fire. Instead, it claimed that the defendant planned to start a fire in the courthouse in order to conceal his earlier crime of tampering with physical evidence. Similarly, the state did not allege or seek to prove that the defendant had committed burglary in the third degree by entering or remaining unlawfully in the courthouse with the intent to commit arson in the second degree therein. Following a jury trial in which the jury was specifically instructed on the charged offenses under the previously-described theories of liability, the defendant was found guilty on all three charges. He later was sentenced on those charges to a total effective sentence of twelve years incarceration followed by eight years of special parole. This appeal followed. The defendant first claims that the evidence presented at trial was insufficient to support his conviction of any of the three offenses of which his jury found him guilty because such evidence failed to prove a single common essential element of those offenses, as the state charged and sought to prove them in this case, beyond a reasonable doubt. That common essential element was that, upon entering the Norwalk Superior courthouse on March 3, 2013, the defendant's intent was to tamper with physical evidence. In making this claim, the defendant does not challenge the sufficiency of the state's evidence to prove that he was the intruder who broke into the courthouse on the evening of March 3, 2013. Rather, he claims that neither his proven conduct on that evening, nor any of his words or actions thereafter, afforded the jury any nonspeculative basis for inferring that his intent, upon entering the courthouse on that evening, was to commit the crime of tampering with physical evidence therein. "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.... [I]n viewing evidence which could yield contrary inferences, the jury is not barred from drawing those inferences consistent with guilt and is not required to draw only those inferences consistent with innocence. The rule is that the jury's function is to draw whatever inferences from the evidence or facts established by the evidence it deems to be reasonable and logical." (Emphasis added; internal quotation marks omitted.) State v. Perez, 147 Conn. App. 53, 64-65, 80 A.3d 103 (2013), aff'd, 322 Conn. 118, 139 A.3d 654 (2016). It is axiomatic, however, that in evaluating the sufficiency of the evidence to support a criminal conviction, the only theory of liability upon which the conviction can be sustained is that upon which the case was actually tried, in the sense that it was not only charged in the information, but it was argued by the state and instructed upon by the court. State v. Carter, 317 Conn. 845, 853-54, 120 A.3d 1229 (2015). As a threshold matter, we note that the defendant is correct in asserting that a common essential element of his conviction of all three charges here challenged is that, upon entering the Norwalk Superior courthouse on the evening of March 3, 2013, he had the intent to commit the crime of tampering with physical evidence therein. All three counts of the amended long form information on which he was brought to trial so alleged, the state's attorney so argued in his closing arguments, and the court so instructed the jury in its final instructions on the law. Accordingly, the state does not dispute this aspect of the defendant's evidentiary sufficiency claims on appeal. Therefore, our sole focus in resolving those claims must be on whether the evidence presented at trial, construed in the light most favorable to sustaining the challenged conviction, was sufficient to prove beyond a reasonable doubt that, when the defendant entered the courthouse on the evening of March 3, 2013, he did so with the intent to commit the offense of tampering with physical evidence therein by some means other than setting fire to the building. General Statutes § 53a-3 (11) provides that "[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 ." Section 53a-155 (a) (1), in turn, provides in relevant part: "A person is guilty of tampering with . physical evidence if, believing that an official proceeding is pending . he . [a]lters, destroys, conceals or removes any record, document or thing with purpose to impair its verity or availability in such [official] proceeding ." Under the foregoing provisions, a person acts with the intent to commit tampering with physical evidence when, believing that an official proceeding is pending, he engages in conduct with the conscious objective of altering, destroying, concealing or removing any record, document or thing in order to impair its verity or availability for use in that official proceeding. Here, more particularly, the state claimed and sought to prove that the defendant acted with that intent by breaking into the Norwalk Superior courthouse, where he was about to start trial in two pending felony cases, in order to alter, destroy, conceal or remove his case files in those cases or their contents, and thereby impair the verity or availability of such materials for use against him in those prosecutions. "Intent is a question of fact, the determination of which should stand unless the conclusion drawn by the trier is an unreasonable one.... Moreover, the [jury is] not bound to accept as true the defendant's claim of lack of intent or his explanation of why he lacked intent.... Intent may be and usually is inferred from conduct. Of necessity, it must be proved by the statement or acts of the person whose act is being scrutinized and ordinarily it can only be proved by circumstantial evidence." (Internal quotation marks omitted.) State v. O'Donnell , 174 Conn. App. 675, 687-88, 166 A.3d 646, cert. denied, 327 Conn. 956, 172 A.3d 205 (2017). "The use of inferences based on circumstantial evidence is necessary because direct evidence of the accused's state of mind is rarely available.... Furthermore, it is a permissible, albeit not a necessary or mandatory, inference that a defendant intended the natural consequences of his voluntary conduct." (Internal quotation marks omitted.) State v. Lamantia , 181 Conn. App. 648, 665, 187 A.3d 513, cert. granted, 330 Conn. 919, 194 A.3d 290 (2018). The defendant does not dispute that two felony prosecutions, both official proceedings, were pending against him in the Norwalk Superior Court when he allegedly broke into the Norwalk Superior courthouse on the evening of March 3, 2013, or that he lacked knowledge of the pendency of those official proceedings, in which trial was scheduled to begin two days later. Nor, to reiterate, does he argue that the evidence presented at trial was insufficient to prove that he was the intruder who broke into the courthouse on that evening. Instead, he claims that such evidence was insufficient to prove that he then acted with the intent to tamper with physical evidence within the courthouse because the state failed to establish any connection between his proven conduct within the courthouse and any of the files or materials with which he is claimed to have had the intent to tamper. We agree. Here, the state claims that, on the evening of March 3, 2013, the defendant broke a window in the state's attorney's office at the courthouse, climbed through that window into the office of the assistant state's attorney who was then prosecuting him on two felony charges, walked through that office into the larger state's attorney's office where he dropped a duffel bag containing kerosene at the end of the corridor running past it to his left, then "walked all the way around to the [state's attorneys'] case files" on the other side of the larger office, where he "pull[ed] [the] files down onto the floor and [went] through them." The state further argued to the jury such evidence showed that the defendant's intent was to tamper with his own case files or their contents before lighting the building on fire because he did not ignite one of the bottles of kerosene and throw it through the broken window, or start a fire immediately upon entering the building. Instead, the state argued, "[the] [f]irst thing he did was drop that bag of kerosene in the hall outside the office, walk all the way around the wall past the secretary's desk and over to the corner where the criminal files were kept and he started going through them." On that basis, the state claims that the defendant intended to alter, destroy, conceal or remove either his own case files or something contained within them, then to start a fire within the office to conceal his act of tampering. The state concedes that no witness saw the defendant engage in any of these acts. Furthermore, although there is physical evidence that directly links the defendant to the bag containing the kerosene, supporting a reasonable inference that the defendant dropped the bag where the police found it, there is no such evidence that puts the defendant in the office where the files were located. Instead, the state argued that the jury could infer that the defendant entered the office, proceeded to the secretary area where the files were located, started to go through them and did so with the intent of tampering with evidence all from the single fact that there was a disorganized pile of files on the floor. We conclude that this single fact was insufficient for the jury to infer that the defendant ever touched any case files in the state's attorney's office on March 3, 2013, let alone pulled case files out of any file cabinet or off any desk, shelf or table, or that he went through such files for any purpose, much less that he took any steps to alter, remove, conceal or destroy the files or their contents as or after he went through them. This is true for four fundamental reasons. To reiterate, no witness saw or heard the intruder doing anything while he was inside the state's attorney's office or any other part of the courthouse. The only person who may possibly have seen or heard the intruder in that time frame was Trooper Lund, who was seen standing by the broken window, and heard yelling at someone inside the building when the other troopers arrived. Lund, however, did not testify because he had been injured in another incident before trial began, and no other witness reported seeing or hearing anyone doing anything inside the building during the break-in. Without such direct testimony, the state was left to prove its claim by circumstantial evidence based upon the intruder's proven conduct during the break-in and thereafter. Second, although the state expressly theorized that the intruder, upon entering the larger state's attorney's office, dropped his duffel bag of kerosene down a hallway to his left, then circled all the way around the office to his right, where he pulled case files out of lateral file cabinets in that area and rummaged through them, assertedly for the purpose of finding his own case files and tampering with them or their contents, before dumping the pulled out case files in a disorganized pile on the floor, it failed to establish that the intruder ever touched those or any other case files in the office during the break-in. To begin with, no evidence was presented that the files on the floor were not exactly where police investigators found them when the state's attorney's office last closed before the break-in. Although the supervising state's attorney testified that her colleagues generally kept their case files in orderly fashion in the lateral file cabinets in the secretary's desk area, she did not state that they always did so. In fact she testified that they did not always do so, for they sometimes kept their own files with them, particularly when they were preparing cases for trial. This testimony was confirmed by photographic evidence showing piles of case files lying elsewhere in the office, undermining the state's unsupported contention that the files in the pile on the floor must have been pulled out of the lateral file cabinets and left there by the intruder. Indeed, such photos also showed that the lateral file cabinets were so densely packed with case files, without apparent gaps or irregularities, as to make it unlikely that the large number of files on the floor had been indiscriminately pulled out of there during the break-in. Third, no list or inventory was ever made of the files on the floor. Therefore, not only was there no evidence that the defendant's case files were among the files found on the floor, but there was no evidence as to where in the office any such files had been stored before the break-in. Armed with such information, the state might reasonably have claimed that the intruder gained access to the files during the break-in and moved them to where the police later found them on the floor. It might also have been able to argue, from the names or numbers on the files or the places where the intruder had searched for and found them, that by selecting files in that manner, the intruder had given evidence as to his purpose in so doing. If, for example, the selected files were in an alphabetical sequence that included the defendant's name, or in a numerical sequence that included the date of the defendant's upcoming trial, such a selection might have supported the inference that the intruder was searching for the defendant's file. Similarly, if he had selected files that were stored in the office of the assistant state's attorney who was prosecuting his cases, such a selection might have supported the inference that he was searching for the defendant's files. In that event, the state might have further supported its claim by lifting fingerprints from or taking DNA swabs of the places where the selected files had been stored or the files themselves. Without an inventory of the files found on the floor, however, no such logical inference could be argued and no supporting forensic evidence was sought or presented. Fourth and finally, there is no evidence that the defendant's purpose in going through any case files, if in fact he did so, was to alter, destroy, conceal or remove them or their contents from the state's attorney's office. No evidence was presented that any case file was altered, destroyed, concealed or removed in any way. Nor was evidence presented as to the contents of the case files in the defendant's two pending cases, or of any reason why the defendant might have found it in his interest to tamper with them prior to his trial. Indeed, although the supervising state's attorney testified as to the types of materials that case files often contain, including physical evidence and witness statements, neither she nor any other witness offered evidence as to the contents of the defendant's pending case files, or advanced any reason why the defendant might have believed that it was in his interest to compromise their verity or availability to the state in advance of his impending trial. Nor could the jury have drawn an inference as to the defendant's motive to tamper with his case files from the nature of his pending charges, for those charges were never listed for the jury. In conclusion, the state presented no evidence at all from which the jury reasonably could have inferred that, during the short period of time between the intruder's breaking of the window and the arrival of the state police on the scene, the defendant entered the building through that window and went directly to the filing cabinet in another office and removed the files that were later discovered on the floor. Although the state argued that the defendant's intent to tamper with physical evidence could be inferred from his "handl[ing]" of those files, the evidence presented showed only that the defendant entered the courthouse through the window of the office of two assistant state's attorneys, walked through that office and dropped the duffel bag containing the six bottles of kerosene onto the floor in the corridor running past that office, to the far left of the door leading into the larger state's attorney's office. In the absence of any evidence that the defendant ever touched case files in the state's attorney's office, much less that he did so with the intent to tamper with such files or their contents, the jury reasonably could not have inferred that the defendant had that intent, as required to prove him guilty of each of the three offenses of which he was convicted. Accordingly, his conviction cannot stand. The defendant also claims, as previously noted, that the court improperly prevented him from presenting exculpatory testimony from his trial attorney as to a conversation between them two days before his alleged commission of the charged offenses that tended to contradict the state's claim that he had a special motive for committing those offenses. Because we reverse his conviction for the reasons stated previously, we need not address this claim. The judgment is reversed and the case is remanded with direction to render judgment of acquittal on all three charges against the defendant. In this opinion the other judges concurred. All references in this opinion to § 53a-155 (a) (1) are to the 2013 revision. Although the state's exhibit 36, which is a diagram of the Norwalk Superior courthouse, bears a notation indicating that the window that was broken was on the north side of the building, all of the other evidence at trial indicates that it was, in fact, located on the east side of the building. We therefore construe the notation on exhibit 36 as an error. The defendant initially was charged with criminal mischief in the first degree in violation of General Statutes § 53a-115, rather than attempted tampering with physical evidence. The defendant also argues that, in order to convict him of attempting to tamper with physical evidence, the state was required to prove beyond a reasonable doubt that the documents or materials he attempted to tamper with qualified as "physical evidence" within the meaning of General Statutes § 53a-146 (8), in that they constituted "any article, object, document, record, or other thing of physical substance which is or is about to be produced or used as evidence in an official proceeding." General Statutes § 53a-146 (8). Because we reverse the defendant's conviction on the ground that the state failed to prove that the defendant intended to tamper with the case files and/or their contents with which he is claimed to have attempted to tamper, we need not address his claim that the state failed to prove that such case files and their contents did not qualify as physical evidence under § 53a-146 (8). In its amended long form information dated September 30, 2016, the state charged the defendant as follows: "[The] State's Attorney for the Judicial District of Stamford-Norwalk accuses Joseph Stephenson of the crime of burglary in the third degree and charges that in the city of Norwalk, on or about the [third] day of March, 2013, the said defendant . did enter and remain unlawfully in a building with intent to commit the crime of tampering with physical evidence, in violation of . [§§ ] 53a-103 and 53a-155 (a) (1) . "And said state's attorney further accuses the defendant . of the crime of attempted tampering with physical evidence, and alleges that, acting with the belief that an official proceeding is pending and about to be instituted, did an act, which under the circumstances as he believed them to be, was an act which constituted a substantial step in a course of conduct planned to culminate in his commission of the crime of tampering with evidence in violation of . [§§ ] 53a-155 (a) (1) and 53a-49 (a) (2).... " And said state's attorney further accuses the defendant . with the crime of attempt at arson in the second degree and alleges that in the city of Norwalk on or about the [third] day of March 2013, the said defendant . with intent to destroy and damage a building, did an act, which under the circumstances as he believed them to be, was an act which constituted a substantial step in a course of conduct planned to culminate in starting a fire and such fire was intended to conceal the crime of tampering with physical evidence in violation of . [§§ ] 53a-112 (a) (1) (B), 53a-49 (a) (2), and 53a-155 (a) (1) ." (Emphasis added.) In its closing argument to the jury, the state argued specifically, inter alia, that the evidence "clearly show[ed] . what [the defendant's] motive, and what his intentions were, and what that plan really was there to do and that was to tamper with the files, to get to his case or any case, and hinder the prosecution, the prosecution that was going to start in two days ." (Emphasis added.) The court instructed the jury, inter alia, that to find the defendant guilty of burglary in the third degree, "the state must prove beyond a reasonable doubt that, one, the defendant unlawfully entered a building and, two, that he intended to commit a crime therein, to wit, tampering with physical evidence. " (Emphasis added.) The court also instructed the jury that: "A person is guilty of arson in the second degree when, with intent to destroy or damage a building, he starts a fire . and such fire was intended to conceal some other criminal act, to wit, the crime of tampering with physical evidence ." (Emphasis added.) As stated herein, the state expressly disavowed any contention that the defendant intended to tamper with evidence by setting it on fire, and consistently argued that the defendant intended to tamper with physical evidence and then to conceal his act of tampering by setting the building on fire. Section 53a-155 was amended in 2015 to add that one may be guilty of tampering during a criminal investigation or when a criminal proceeding is about to commence. The state has not argued that the defendant should be convicted of any lesser included offenses in the event that we determine that the evidence was insufficient to sustain his conviction. Accordingly, we have no occasion to so order. See State v. Jahsim T ., 165 Conn. App. 534, 541, 139 A.3d 816 (2016).

12484921

Marian PIKULA v. DEPARTMENT OF SOCIAL SERVICES.

Pikula v. Dep't of Soc. Servs.

2016-05-10

No. 19533.

212

223

138 A.3d 212

138

West's Atlantic Reporter, Third Series

Connecticut Supreme Court

Connecticut

2021-08-27T20:57:13.994284+00:00

Fastcase

Marian PIKULA v. DEPARTMENT OF SOCIAL SERVICES.

Marian PIKULA v. DEPARTMENT OF SOCIAL SERVICES. No. 19533. Supreme Court of Connecticut. Argued Jan. 25, 2016. Decided May 10, 2016. J. Colin Heffernan, with whom, on the brief, was John C. Heffernan, Hartford, for the appellant (plaintiff). Patrick B. Kwanashie, assistant attorney general, with whom, on the brief, was George Jepsen, attorney general, for the appellee (defendant). ROGERS, C.J., and PALMER, ZARELLA, EVELEIGH, McDONALD, ESPINOSA and ROBINSON, Js.

6023

37413

EVELEIGH, J. The plaintiff, Marian Pikula, appeals from the judgment of the trial court dismissing her appeal from the decision of an administrative hearing officer for the defendant, the Department of Social Services (department), denying her application for benefits under the state administered Medicaid program Medicaid) because her assets, in the form of a testamentary trust, exceeded prescribed Medicaid limits. We conclude that the trial court should not have dismissed the appeal on the ground that the hearing officer correctly determined that the trust was an asset available to the plaintiff. Accordingly, we reverse the judgment of the trial court. The following undisputed facts, as found by the trial court, are relevant to this appeal. "In 1989, John Pikula, the plaintiff's father, executed a will containing a testamentary trust for his two daughters: Dorothy McKee and the plaintiff. When John Pikula died in 1991, the trust became effective and the Probate Court appointed a trustee." The testamentary language creating the trust provided as follows: "A. Until [the plaintiff] shall die, the [t]rustee shall pay to or spend on behalf of [the plaintiff] as much of the net income derived from this trust fund as the [t]rustee may deem advisable to provide properly for [her] maintenance and support and may incorporate any income not so distributed into the principal of the fund at the option of the [t]rustee. "B. I hereby authorize and empower the [t]rustee in his sole and absolute discretion at any time and from time to time to disburse from the principal for any of the trust estates created under this [will], even to the point of completely exhausting the same, such amount as he may deem advisable to provide adequately and properly for the support and maintenance of the current income beneficiaries thereof, any expenses incurred by reason of illness and disability. In determining the amount of principal to be so disbursed, the [t]rustee shall take into consideration any other income or property which such income beneficiary may have from any other source, and the [t]rustee's discretion shall be conclusive as to the advisability of any such disbursement and the same shall not be questioned by anyone. For all sums so distributed, the [t]rustee shall have full acquittance." In March, 2012, the plaintiff entered a long-term care facility. At that time, she applied for financial and medical assistance under Medicaid. At the time she applied for Medicaid benefits, the trust value was approximately $169,745.91. In May, 2013, the department denied the plaintiff's application for Medicaid benefits on the ground that her assets, including the trust, exceeded the relevant asset limits. The plaintiff then requested a hearing to contest the department's decision. The hearing occurred in October, 2013. Thereafter, on December 20, 2013, the hearing officer issued a decision upholding the department's denial of the plaintiff's Medicaid benefits because the trust was an asset that was available to her and, therefore, her assets exceeded the regulatory limits. The plaintiff subsequently requested reconsideration of the decision pursuant to General Statutes § 4-181a (a)(1)(A). Her motion was denied. Pursuant to General Statutes § 17b-61 and 4-183, the plaintiff appealed from the hearing officer's decision to the Superior Court. In her complaint, the plaintiff alleged, inter alia, that, under the terms of the department's policy manual and applicable case law, the trust assets are not available to the plaintiff. Specifically, the plaintiff asserted that, under the terms of the trust, the assets of the trust are not available to her because she is not entitled to receive trust principal and the trustee has sole and absolute discretion regarding trust expenditures and his decisions cannot be challenged by anyone. The trial court rendered judgment dismissing the plaintiff's appeal, concluding that the hearing officer properly determined that the trust in this case was an available asset and that, therefore, the plaintiff's assets disqualified her from Medicaid eligibility. The plaintiff appealed from the trial court's judgment of dismissal to the Appellate Court. Thereafter, we transferred the appeal to this court pursuant to General Statutes § 51-199(c) and Practice Book § 65-1. On appeal to this court, the plaintiff claims that the trial court improperly upheld the hearing officer's conclusion that the trust was an asset available to the plaintiff as defined by relevant Medicaid regulations. Specifically, the plaintiff claims that the testator intended to create a discretionary, supplemental needs trust, the assets of which should not be considered available for Medicaid purposes. The department, however, contends that the testamentary language indicates that the testator intended the trust to provide for the plaintiff's general support, in which case it would constitute an asset available to the plaintiff. We agree with the plaintiff that the testator intended to create a discretionary, supplemental needs trust and, therefore, we further agree that the trust corpus and income may not be considered to be available to the plaintiff for the purpose of determining eligibility for Medicaid benefits. We begin by setting forth our applicable standard of review. Resolution of this issue requires us to determine whether the hearing officer properly construed the terms of the trust instrument. "The construction of a will presents a question of law.... Canaan National Bank v. Peters, 217 Conn. 330, 335, 586 A.2d 562 (1991). As we previously have stated . [c]onclusions 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.... Board of Education v. Commission on Human Rights & Opportunities, 266 Conn. 492, 504 [832 A.2d 660] (2003)." (Internal quotation marks omitted.) Corcoran v. Dept. of Social Services, 271 Conn. 679, 698, 859 A.2d 533 (2004). Given the nature of the plaintiff's claim, namely, that the trial court improperly upheld the hearing officer's determination that the trust in the present case was a general needs trust for the purpose of eligibility for Medicaid benefits, "[o]ur analysis begins with an overview of the [M]edicaid program. The program, which was established in 1965 as Title XIX of the Social Security Act and is codified at 42 U.S.C. § 1396 et seq. ( [M]edicaid act), is a joint federal-state venture providing financial assistance to persons whose income and resources are inadequate to meet the costs of, among other things, medically necessary nursing facility care.... The federal government shares the costs of [M]edicaid with those states that elect to participate in the program, and, in return, the states are required to comply with requirements imposed by the [M]edicaid act and by the [S]ecretary of the Department of Health and Human Services.... Specifically, participating states are required to develop a plan, approved by the [S]ecretary of [H]ealth and [H]uman [S]ervices, containing reasonable standards . for determining eligibility for and the extent of medical assistance to be provided.... "Connecticut has elected to participate in the [M]edicaid program and has assigned to the department the task of administering the program.... Pursuant to General Statutes § 17b-262 and 17b-10, the department has developed Connecticut's state [M]edicaid plan and has promulgated regulations that govern its administration.... "The [M]edicaid act requires that a state's [M]edicaid plan make medical assistance available to qualified individuals. 42 U.S.C. § 1396a (a)(10). The term medical assistance means payment of part or all of the cost of . care and services . [including] nursing facility services.... 42 U.S.C. § 1396d (a) ; see Catanzano v. Wing, 103 F.3d 223, 229 (2d Cir.1996). Participating states are required to provide coverage to certain groups and are given the option to extend coverage to various other groups. The line between mandatory and optional coverage primarily is drawn in 42 U.S.C. § 1396a (a)(10)(A) : mandatory coverage is specified in 42 U.S.C. § 1396a (a)(10)(A)(i) ; and optional coverage is set forth in subsection (a)(10)(A)(ii). In [M]edicaid parlance, individuals who qualify for [M]edicaid benefits pursuant to those subsections are referred to as the categorically needy because, in general, they are eligible for financial assistance under Titles IV-A (Aid to Families with Dependent Children) or XVI (Supplemental Security Income for the Aged, Blind, and Disabled) of the Social Security Act. "Under the [M]edicaid act, states have an additional option of providing medical assistance to the medically needy-persons who . lack the ability to pay for their medical expenses but do not qualify as categorically needy solely because their income exceeds the income eligibility requirements of the applicable categorical assistance program.... The medically needy become eligible for [M]edicaid, if the state elects to cover them, by incurring medical expenses in an amount sufficient to reduce their incomes below the income eligibility level set by the state in its [M]edicaid plan. See 42 U.S.C. § 1396a (a)(17) (in determining eligibility, state must take costs . incurred for medical care into account); see also 42 C.F.R. § 435.301. Only when they spend down the amount by which their income exceeds that level, are [medically needy persons] in roughly the same position as [categorically needy] persons . [because then] any further expenditures for medical expenses . would have to come from funds required for basic necessities. Atkins v. Rivera, [477 U.S. 154, 158, 106 S.Ct. 2456, 91 L.Ed.2d 131 (1986) ]. Connecticut has chosen to cover the medically needy.... "The [M]edicaid act, furthermore, requires participating states to set reasonable standards for assessing an individual's income and resources in determining eligibility for, and the extent of, medical assistance under the program. 42 U.S.C. § 1396a (a)(17).... The resources standard set forth in Connecticut's state [M]edicaid plan for categorically needy and medically needy individuals is $1600. General Statutes § 17b-264 and 17b-80 (c) ; [Dept. of Social Services, Uniform Policy Manual] § 4005.10.... Consequently, a person who has available resources; see 42 U.S.C. § 1396a (a)(17)(B) ; in excess of $1600 is not eligible to receive benefits under the Connecticut [M]edicaid program even though the person's medical expenses cause his or her income to fall below the income eligibility standard.... Ahern v. Thomas, 248 Conn. 708, 713-16, 733 A.2d 756 (1999)." (Citation omitted; internal quotation marks omitted.) Palomba-Bourke v. Commissioner of Social Services, 312 Conn. 196, 203-206, 92 A.3d 932 (2014). This court has stated that, "[u]nder applicable federal law, only assets actually available to a medical assistance recipient may be considered by the state in determining eligibility for public assistance programs such as [Medicaid].... A state may not, in administering the eligibility requirements of its public assistance program . presume the availability of assets not actually available...." (Citations omitted; emphasis omitted.) Zeoli v. Commissioner of Social Services, 179 Conn. 83, 94, 425 A.2d 553 (1979). This principal "has served primarily to prevent the [s]tates from conjuring fictional sources of income and resources by imputing financial support from persons who have no obligation to furnish it or by overvaluing assets in a manner that attributes nonexistent resources to recipients." Heckler v. Turner, 470 U.S. 184, 200, 105 S.Ct. 1138, 84 L.Ed.2d 138 (1985). To resolve the issue on appeal, we must determine whether the assets in the testamentary trust were available to the plaintiff. "For the purposes of determining eligibility for the Medicaid program, an available asset is one that is actually available to the applicant or one that the applicant has the legal right, authority or power to obtain or to have applied for the applicant's general or medical support. If the terms of a trust provide for the support of an applicant, the refusal of a trustee to make a distribution from the trust does not render the trust an unavailable asset." General Statutes (Supp.2016) § 17b-261 (c). For Medicaid purposes, general support trusts are considered available because a beneficiary can compel distribution of the trust income. See General Statutes § 52-321. In other words, the beneficiary has a "legal right . to obtain" the funds. See General Statutes (Supp.2016) § 17b-261(c). Conversely, supplemental needs trusts, in which a trustee retains unfettered discretion to withhold the income, are not considered available to the beneficiary. Connecticut Bank & Trust Co. v. Hurlbutt, 157 Conn. 315, 327, 254 A.2d 460 (1968) (spendthrift trust not open to alienation or assignment by anyone until income paid over to beneficiary); Bridgeport-City Trust Co. v. Beach, 119 Conn. 131, 141, 174 A. 308 (1934) (beneficiary may not alienate or assign interest of spendthrift trust). "It is well settled that in the construction of a testamentary trust, the expressed intent of the testator must control. This intent is to be determined from reading the instrument as a whole in the light of the circumstances surrounding the testator when the instrument was executed, including the condition of his estate, his relations to his family and beneficiaries and their situation and condition. Gimbel v. Bernard F. & Alva B. Gimbel Foundation, Inc., 166 Conn. 21, 26, 347 A.2d 81 (1974). Therefore, in determining whether the assets of a testamentary trust are available to a beneficiary, this court considers whether the testator intended to create a supplemental needs trust or a general support trust. See Zeoli v. Commissioner of Social Services, supra, 179 Conn. at 91-92, 425 A.2d 553." (Internal quotation marks omitted.) Corcoran v. Dept. of Social Services, supra, 271 Conn. at 700, 859 A.2d 533. "A trust which creates a fund for the benefit of another, secures it against the beneficiary's own improvidence, and places it beyond the reach of his creditors is a spendthrift trust. Carter v. Brownell, 95 Conn. 216, 223, 111 A. 182 [1920]. Section 52-321 . provides that trust fund income is not subject to the claims of creditors of the beneficiary if the trustee is granted the power to accumulate or withhold trust income or if the income has been expressly given for the support of the beneficiary or his family. See Cromwell v. Converse, 108 Conn. 412, 424-25, 143 A. 416 [ (1928) ]...." (Citation omitted.) Zeoli v. Commissioner of Social Services, supra, 179 Conn. at 88, 425 A.2d 553 ; see also Restatement (Third), Trusts § 58 (2003) ( "[i]f the terms of a trust provide that a beneficial interest shall not be transferable by the beneficiary or subject to claims of the beneficiary's creditors, the restraint on voluntary and involuntary alienation of the interest is valid"). Accordingly, to resolve the issue on appeal, we must determine whether John Pikula intended to create a supplemental needs trust or a general support trust. In making this determination, we agree with both parties and the trial court that prior case law from this court provides the appropriate framework within which to examine this issue. Specifically, Zeoli v. Commissioner of Social Services, supra, 179 Conn. 83, 425 A.2d 553, and Corcoran v. Dept. of Social Services, supra, 271 Conn. 679, 859 A.2d 533, guide our analysis of this issue. First, in Zeoli v. Commissioner of Social Services, supra, 179 Conn. at 84-88, 425 A.2d 553, this court concluded that the testator intended to create a supplemental needs trust for the plaintiffs, his two disabled daughters. In doing so, this court recognized that "[t]o determine the discretionary powers provided, it is necessary to ascertain the dispositive intention as expressed by the language of the entire will in the light of the circumstances surrounding the testator when the instrument was executed, including the condition of his estate, his relations to his family and beneficiaries and their situation and condition." (Internal quotation marks omitted.) Id., at 89, 425 A.2d 553 ; see also Rosa v. Palmer, 177 Conn. 10, 13, 411 A.2d 12 (1978) ; Gimbel v. Bernard F. & Alva B. Gimbel Foundation, Inc., supra, 166 Conn. at 26, 347 A.2d 81 ; Colonial Bank & Trust Co. v. Stevens, 164 Conn. 31, 37, 316 A.2d 768 (1972) ; Connecticut Bank & Trust Co. v. Lyman, 148 Conn. 273, 279, 170 A.2d 130 (1961). On the basis of these principles, this court concluded that "the testator's intent was to provide the trustee with sufficient flexibility to use the funds under the trust solely for supplemental support. Both the surrounding circumstances and the language of the will militate in favor of this interpretation. The trust established by [the testator's] will clearly recognizes the obvious incapacity of his daughters to care for themselves. As the amount held under trust, approximately one-half of his entire estate, indicates, the [testator] was a person of modest means. Presumably, the funds under the trust would not provide for general support of his daughters in an institution for much more than a few months. Moreover, at the time of the will's execution and at the time of the testator's death, the daughters were not receiving medical assistance payments and the testator could not know if and how soon such benefits would become available." (Footnotes omitted.) Zeoli v. Commissioner of Social Services, supra, at 90, 425 A.2d 553. This court further explained that "[t]he trust grants the trustee in express terms the power both to discriminate totally against either of the beneficiaries by withholding all income and to disregard funds that might be available to either of the beneficiaries. On the other hand, in precatory language, the trust provides that the trustee apply 'the net income or principal of the trust for the maintenance, support, education, health and general welfare of those of my daughters who my [t]rustee believes would benefit most from a share of the income of this trust after considering the income of the beneficiaries from other sources.' "In granting the trustee the ability to discriminate against either of the beneficiaries as well as to consider other sources of funds available to the beneficiaries, the testator reveals an intent to provide for only the supplementary support of his daughters. The combination of express and precatory terms in the will attempts to grant the trustee flexibility to provide the support that would benefit either of the beneficiaries the most, that is, imposing on the trustee the legal duty to furnish only supplementary support. If the testator had desired to create a trust for general support, it would have been simple to do so and no discriminatory provision would have been necessary or desirable."(Footnote omitted.) Id., at 90-91, 425 A.2d 553. On the basis of the terms of the trust, this court concluded that the testator had intended to create a supplemental needs trust and that those assets were not available to the daughters for the purpose of determining their eligibility for Medicaid benefits. Id., at 97, 425 A.2d 553. In 2004, this court again confronted whether a trust was available for the purpose of Medicaid eligibility in Corcoran v. Dept. of Social Services, supra, 271 Conn. 679, 859 A.2d 533. In Corcoran, this court acknowledged that the testamentary language reflective of the testator's intent in Corcoran was markedly different than that used in Zeoli. Id., at 701, 859 A.2d 533. Specifically, this court explained that "[i]n Zeoli, the trust instrument was replete with references to the 'absolute and uncontrolled discretion' afforded the [trustee] in [his] decision-making process.... In addition to the overt references to the unfettered discretion of the [trustee], the court in Zeoli deemed the provision authorizing the trustee to discriminate among the beneficiaries when making distributions highly probative of the vast level of discretion the testator intended to confer on the trustee." (Citation omitted.) Id. This court then compared the testamentary language in Corcoran, explaining that "the testator granted the trustees 'sole discretion' to make distributions and provided them with factors to consider when making 'discretionary distributions....' This language is not as strong as that used in Zeoli and suggests that the testator in the present case intended to confer a lesser amount of discretion." (Footnote omitted.) Id., at 701-702, 859 A.2d 533. This court further reasoned as follows: "The principal distinction between Zeoli and [Corcoran ], however, is the manner in which the respective testators expressed their intentions regarding the use of the trust funds. In Zeoli, after establishing the trust, the testator provided in his will that it [was his] fond hope that [his] trustee pay or apply the net income or principal of the trust for the maintenance, support, education, health and general welfare of [the beneficiaries].... [In Zeoli, the] court interpreted this to mean that [t]he combination of express and precatory terms in the will attempts to grant the trustee flexibility to provide the support that would benefit either of the [daughters] the most, that is, imposing on the trustee the legal duty to furnish only supplementary support." (Citation omitted; emphasis omitted; internal quotation marks omitted.) Id., at 702, 859 A.2d 533. This court, however, found the testamentary language in Corcoran to be distinguishable from that in Zeoli. Id. In Corcoran, the testator created the trust with the following language: "If [the plaintiff] is then living, the trust established for her shall be retained by my trustees to hold, manage, invest and reinvest said share as a [t]rust [f]und, paying to or expending for the benefit of [the plaintiff] so much of the net income and principal of said [t]rust as the [t]rustees, in their sole discretion, shall deem proper for her health, support in reasonable comfort, best interests and welfare...." (Emphasis omitted; internal quotation marks omitted.) Id., at 703, 859 A.2d 533. This court relied on the fact that the trustees did not have absolute discretion, instead their sole discretion was "limited by the ascertainable standard of the plaintiff's 'health, support in reasonable comfort, best interests and welfare....' " Id. On the basis of these distinctions, this court concluded that the testamentary trust in Corcoran did not display the testamentary intent to provide only for the plaintiff's supplemental needs and, therefore, was a general needs trust available to the plaintiff. Id. These cases provide a framework for considering the language of the trust in the present case. Specifically, in Zeoli and Corcoran, this court identified and examined several factors that are useful in determining whether a particular testamentary trust is intended to be a general needs trust or a supplemental needs trust-namely, the amount and nature of the trustee's discretion with regards to trust income and principal, any limitations or guiding principles within which the trustee must operate, and the factual circumstances regarding the establishment of the trust, including the amount of the trust. With these factors in mind, we examine the language of the testamentary trust in the present case. The relevant portions of the testamentary trust in the present case provides as follows: "I give, devise and bequeath all of the rest, residue and remainder of my estate, real, personal and mixed, of whatever nature and wheresoever situated, including all property that I may acquire or become entitled to after the execution of this will to [the trustee] in trust, nevertheless . for the benefit of . [the plaintiff] . and [McKee].... Said [t]rustee shall hold, manage and control all of the afore-said property as a trust estate with all of the rights and powers subject to limitations herein enumerated for the following uses and purposes: "A. Until [the plaintiff] shall die, the [t]rustee shall pay to or spend on behalf of [the plaintiff] as much of the net income derived from this trust fund as the [t]rustee may deem advisable to provide properly for [her] maintenance and support and may incorporate any income not so distributed into the principal of the fund at the option of the [t]rustee. "B. I hereby authorize and empower the [t]rustee in his sole and absolute discretion at any time and from time to time to disburse from the principal for any of the trust estates created under this [will], even to the point of completely exhausting the same, such amount as he may deem advisable to provide adequately and properly for the support and maintenance of the current income beneficiaries thereof, any expenses incurred by reason of illness and disability. In determining the amount of principal to be so disbursed, the [t]rustee shall take into consideration any other income or property which such income beneficiary may have from any other source, and the [t]rustee's discretion shall be conclusive as to the advisability of any such disbursement and the same shall not be questioned by anyone. For all sums so distributed, the [t]rustee shall have full acquittance." First, the language set forth previously in this opinion indicates that the trustee in the present case need only use as much income from the trust "as the [t]rustee may deem advisable" to the plaintiff. The testamentary language further provides that any unused income may be returned to the trust principal. Although the language in the present case indicates that the trustee may use the net income for the maintenance and support of the plaintiff, the fact that the trustee is only required to use as much income as he "may deem advisable" to provide for such maintenance, indicates that the testator intended for the trustee to have complete discretion in determining what, if any, of the income was to be used for the plaintiff's maintenance. Furthermore, the fact that the trust provides that any unused income may be returned to the principal of the trust indicates that the testator did not intend to provide for the general needs of the plaintiff. The trust was only valued at approximately $169,745, therefore, it is unlikely that the income of the trust would have been significant enough to provide for the plaintiff's maintenance at the time the testator executed his will in 1989 or when the trust was established in 1991. Furthermore, the testamentary language in the present case provides that the trustee has "sole and absolute discretion" to make disbursements from the principal of the trust. The trust further provides that the trustee's discretion "shall be conclusive as to the advisability of any such disbursement and the same shall not be questioned by anyone." Furthermore, the trust provides a release from liability for the trustee regarding any distributions of principal. On the basis of the foregoing, it is clear that no person can compel the trustee to disburse any principal to the plaintiff. We conclude that the language regarding the discretion of the trustee in the present case is analogous to the language providing absolute and sole discretion to the trustee in Zeoli. Next, we examine whether the trust in the present case contains any limitations or guiding principles within which the trustee must operate. In the present case, the trust mentions "support" and "maintenance" in both the section providing for expenditure of the income and the section addressing disbursement of principal. Nevertheless, in each of these sections the "support" and "maintenance" language is followed or preceded by language allowing the trustee broad discretion to do so only if he deems it advisable. Unlike the language of the trust in Corcoran, nothing in the present trust mentions a standard by which the trustee shall make the expenditures or distribution. In Corcoran, this court relied on language that the trustees shall "hold, manage, invest and reinvest said share as a [t]rust [f]und, paying to or expending for the benefit of [the plaintiff] so much of the net income and principal of said [t]rust as the [t]rustees, in their sole discretion, shall deem proper for her health, support in reasonable comfort, best interests and welfare...." (Emphasis omitted; internal quotation marks omitted.) Corcoran v. Dept. of Social Services, supra, 271 Conn. at 703, 859 A.2d 533. This court reasoned that the language of the trust in Corcoran acted as a limitation on the discretion of the trustees because it provided a standard within which the trustees must operate in making expenditures. Id. On the other hand, the language of the trust in Zeoli, provided that "[w]ithout in any way limiting the absolute discretion of my [t]rustee, it is my fond hope that my trustee pay or apply the net income or principal of the trust for the maintenance, support, education, health and general welfare of those of my daughters who my [t]rustee believes would benefit most from a share of the income of this trust after considering the income of the beneficiaries from other sources." (Internal quotation marks omitted.) Zeoli v. Commissioner of Social Services, supra, 179 Conn. at 87 n. 2, 425 A.2d 553. This court concluded in Zeoli that "[t]he combination of express and precatory terms in the will attempts to grant the trustee flexibility to provide the support that would benefit either of the beneficiaries the most, that is, imposing on the trustee the legal duty to furnish only supplementary support." Id., at 91, 425 A.2d 553. We conclude that the language in the present case is more similar to that language in Zeoli and provides that the trustee is required to provide only supplemental support. We next consider the factual circumstances regarding the establishment of the trust, including the amount of the trust. In Zeoli, this court considered the fact that the testator's estate was a modest $9500 in 1975. Id., at 85, 425 A.2d 553. This court reasoned that, because the beneficiary had a mental impairment that required institutionalization, the modest trust assets would be exhausted quickly if it was treated as a general needs trust. Id., at 90, 425 A.2d 553. This court reasoned that these factual circumstances weighed in favor of understanding that the testator did not intend for the trust to be a general support trust. Id. In Corcoran, however, this court concluded that the testator intended to create a general support trust with a significantly larger estate-approximately $854,307. Corcoran v. Dept. of Social Services, supra, 271 Conn. at 682, 859 A.2d 533. In the present case, the testator had a relatively small estate. Indeed, the trust assets in the present case consisted mainly of the plaintiff's primary residence, the testator's home. In March, 2012, after the home was sold, the trust assets totaled $169,745.91. Much like the situation in Zeoli, the assets of the present trust would be quickly exhausted if they were applied to the expenses related to the plaintiff's impairment for which she has sought residential placement. Accordingly, we conclude that the factual circumstances surrounding the establishment of the trust in the present case further bolster our conclusion that it is a supplemental needs trust. On the basis of the foregoing, we conclude that the trial court improperly dismissed the plaintiff's appeal from the decision of the hearing officer determining that the trust in the present case is a general support trust and that, therefore, the assets are available to the plaintiff. Instead, we conclude that the trust in the present case is a supplemental needs trust and that, therefore, the assets are not available to the plaintiff for the purpose of determining eligibility for Medicaid benefits. The judgment is reversed and the case is remanded to the trial court with direction to render judgment sustaining the plaintiff's appeal. In this opinion the other justices concurred. We note that the Commissioner of Social Services acts on behalf of the department. For the sake of simplicity, references in this opinion to the department include the Commissioner of Social Services. "Medicaid is a federal program that provides health care funding for needy persons through cost-sharing with states electing to participate in the program." (Internal quotation marks omitted.) Corcoran v. Dept. of Social Services, 271 Conn. 679, 683 n. 4, 859 A.2d 533 (2004). In her complaint, the plaintiff also alleged that the hearing officer was barred by the doctrine of collateral estoppel from determining that the trust was a "general support trust" or that the assets were "available" to the plaintiff because the Probate Court had previously decided that the trust was a supplemental needs trust and that the plaintiff could not force the trustee to make any distributions. The trial court determined that the doctrine of collateral estoppel did not bar the hearing officer from determining that the trust was a general needs trust for the purpose of determining the plaintiff's eligibility for Medicaid benefits. On appeal, the plaintiff asserts that the trial court improperly determined that the hearing officer was not collaterally estopped from determining that the trust was a general needs trust. Because we conclude that the trial court improperly upheld the hearing officer's conclusion that the trust was a general needs trust and available to the plaintiff, we need not reach the issue of collateral estoppel. We note that § 17b-261 has been amended by our legislature since the events underlying the present appeal. See, e.g., Public Acts 2015, No. 15-69, § 17. These amendments are not, however, relevant to the present appeal. For the sake of simplicity, all references to § 17b-261 in this opinion are to the version appearing in the 2016 supplement to the General Statutes. The language of the trust in Zeoli provided as follows: "All of the rest, residue and remainder of my property and estate, real, person or mixed, of whatsoever the same may consist and wheresoever the same may be situated, all of which is hereinafter referred to as my residuary estate, shall be disposed of as follows: "(a) I give, devise and bequeath one-half . of my residuary estate unto my son . to be his absolutely and forever; "(b) I give, devise and bequeath one-half . of my residuary estate to my [t]rustee hereinafter named in trust [nevertheless], to hold in a single trust for and until the death of the survivor of my daughters, to invest and reinvest the principal of such trust and to dispose of the net income and principal thereof as follows: "To pay or apply so much of the net income or the principal of such trust to or among either one or both of my daughters as shall be living from time to time during the term of such trust, and in such proportions and amounts as my [t]rustee shall determine in his absolute and uncontrolled discretion. Such amounts of net income or principal may be paid or applied without regard to equality of distribution and regardless of whether any one of my daughters may be totally deprived of any benefit hereunder. My [t]rustee, in exercising his absolute and uncontrolled discretion, shall not be required to consider the amount of income from other sources of any beneficiary or the amount of any beneficiary's independent property or the extent to which any beneficiary may be entitled to support by a parent or any other person. The judgment of my [t]rustee as to the allocation of the net income or principal of this trust among the beneficiaries shall be final and conclusive upon all interested persons and upon making such payments or application my [t]rustee shall be fully released and discharged from all further liability or accountability therefor. My trustee shall not be required to distribute any net income of such trust currently and may, in his absolute and uncontrolled discretion, accumulate any part or all of the net income of such trust, which such accumulated net income shall be available for distribution to the beneficiaries as aforesaid. "Without in any way limiting the absolute discretion of my [t]rustee, it is my fond hope that my trustee pay or apply the net income or principal of the trust for the maintenance, support, education, health and general welfare of those of my daughters who my [t]rustee believes would benefit most from a share of the income of this trust after considering the income of the beneficiaries from other sources." (Internal quotation marks omitted.) Zeoli v. Commissioner of Social Services, supra, 179 Conn. at 86-87 n. 2, 425 A.2d 553.

12484831

STATE of Connecticut v. Efrain JOHNSON.

State v. Johnson

2016-05-10

No. 37577.

1108

1139

138 A.3d 1108

138

West's Atlantic Reporter, Third Series

Connecticut Appellate Court

Connecticut

2021-08-27T20:57:13.994284+00:00

Fastcase

STATE of Connecticut v. Efrain JOHNSON.

STATE of Connecticut v. Efrain JOHNSON. No. 37577. Appellate Court of Connecticut. Argued Oct. 13, 2015. Decided May 10, 2016. Glenn W. Falk, assigned counsel, for the appellant (defendant). Susann E. Gill, supervisory assistant state's attorney, with whom, on the brief, were John C. Smriga, state's attorney, Joseph T. Corradino, senior assistant state's attorney, and Peter D. Markle, assistant United States attorney, for the appellee (state). GRUENDEL, MULLINS and SULLIVAN, Js. The listing of judges reflects their seniority status on this court as of the date of oral argument.

16057

96408

SULLIVAN, J. The defendant, Efrain Johnson, appeals from the judgment of conviction, rendered after a jury trial, of one count of felony murder in violation of General Statutes § 53a-54c and one count of kidnapping in the first degree in violation of General Statutes § 53a-92 (a)(2)(A) for his participation in events that led to the death of the victim, Tina Johnson. On appeal, the defendant claims that (1) there was insufficient evidence to sustain either of his convictions and (2) the trial court improperly instructed the jury on the third element of felony murder. We affirm the judgment of the trial court. By way of an amended information dated December 18, 2013, the state charged the defendant with six offenses: as a principal in the felony murders of three individuals, namely, the victim, James Reid, and Basil Williams (counts one, two, and three, respectively), and as a principal in the kidnapping in the first degree for those same people (counts four, five, and six, respectively). On the basis of the evidence presented at trial, the jury reasonably could have found the following facts. For most of the time relevant to this case, Azibo Aquart headed a criminal organization selling crack cocaine and marijuana in certain cities in southern Connecticut. As part of this operation, Azibo used certain apartments at 215 Charles Street in Bridgeport, in particular using apartment 211 on the second floor to conduct transactions. Azibo considered the apartments his "turf" and had driven away competitors on prior occasions. Azibo's enterprise involved a number of individuals in a variety of tasks. Two such confederates were Azibo's brother, Azikiwe Aquart, and Rodney Womble. Other individuals employed by Azibo included: Frankie Hodges, who sold crack cocaine out of apartment 211 at 215 Charles Street; John Taylor, who sold marijuana on Azibo's behalf in Norwalk; Lashika Johnson, the defendant's sister, who sold crack cocaine and marijuana on behalf of Azibo and, later, Azikiwe, and who was dating Azibo for much of the time relevant to this case; and the defendant, who purchased marijuana from Azibo both for personal use and to resell. A number of the individuals working for Azibo's drug enterprise either began as customers or were otherwise users of Azibo's product themselves. During much of August, 2005, the victim, Reid, and Williams lived in apartment 101 at 215 Charles Street. Both the victim and Reid used crack cocaine and regularly purchased it from Azibo's operation in apartment 211. In early August, 2005, the quality of the crack cocaine that Azibo was selling in 215 Charles Street decreased substantially. At about this time, the victim stopped purchasing crack cocaine from Azibo's operation on the second floor and began selling crack cocaine out of apartment 101. As a consequence, Azibo began losing a number of customers. Azibo was displeased by the victim's actions and subsequently attempted on at least two occasions to break into apartment 101 with the assistance of various confederates. During one such instance, Hodges heard a knock on the door of apartment 211 in the middle of the night. Looking through the peephole, Hodges observed Azibo, who was wearing black clothing, a black bandana, and plastic gloves and motioning for Hodges to join him in the hallway. Azibo whispered to Hodges to go to the first floor and knock on the door to a specific apartment. As Hodges and Azibo headed downstairs, Hodges perceived that three people were in the second floor laundry room; although he avoided looking at the people's faces, he could see that all of them also were wearing plastic gloves. While Azibo hid in the stairwell, Hodges knocked on the door to apartment 101, but nobody came to the door. Relieved that no one had answered, Hodges informed Azibo and returned to the second floor while Azibo and the three other individuals went downstairs. Taylor also was present for two of the attempts to enter the first floor apartment. In the first attempt, Taylor received a phone call from Azibo. Taking the train from Norwalk to Bridgeport, Taylor met up with Azikiwe and Azibo; at Azibo's direction, the group drove to a Walgreens store, where Azibo purchased duct tape. The three then drove to the diner near 215 Charles Street. By the time they arrived at the diner, it was dark outside. The group waited at the diner until Azibo got a phone call, at which point they went out to the parking lot. The defendant met the three men in the parking lot of the diner. He brought two bats with him, giving one to Azikiwe and retaining the other. The bats were the first weapons that Taylor observed among the four men. In the parking lot, Azibo told Taylor, Azikiwe, and the defendant that there were people selling drugs out of his building, "[h]e had a problem" with this, and the group was going to go in and "confront them." The four men voluntarily put on masks and latex gloves provided by Azikiwe, entered the building, and waited down the hall while a young woman knocked on the door to apartment 101. When no one answered, Azibo, Azikiwe, and Taylor went upstairs, and the defendant left with the bats. A second attempt involving Taylor to enter apartment 101 occurred a few days after the first attempt. During the day on August 23, 2005, the defendant contacted Azibo about getting more marijuana. Azibo brought the marijuana over to the defendant and, giving the defendant two additional bags, stated that he might need a favor later. That evening, the defendant, with the assistance of Lashika and others, promoted a party at a Bridgeport club. Between approximately 1:30 to 2:30 a.m. on August 24, 2005, the group finished cleaning up and went to a restaurant in Orange. While there, Lashika received a phone call from Azibo, who asked to speak with the defendant. The defendant did not look upset after receiving this phone call. After finishing their meal, Lashika and the defendant left the restaurant in separate vehicles. Returning home, Lashika saw Azibo outside her apartment, though she did not see the defendant; after seeing Azibo, Lashika went to sleep. Taylor also received a phone call from Azibo and drove to Bridgeport that night, where he met up with Azibo and Azikiwe. Azikiwe drove the group to the parking lot underneath the apartments at 215 Charles Street. Exiting the car, Taylor saw the defendant walking up to them. The defendant again brought two bats with him, which were the first weapons that Taylor had observed among the four men on this occasion as well, and all of the men put on latex gloves and masks provided by Azikiwe. Taking care not to be seen, the group went upstairs to apartment 101. During this period, Taylor observed that both the defendant and Azikiwe were armed with baseball bats, while Azibo had a gun. Once there, one or more members of the group forced open the door to apartment 101, and the four men entered the apartment. Inside the apartment, Azibo instructed Taylor to stand by the living room window and to take a lookout position. Azibo and Azikiwe then proceeded to use duct tape to bind the victim and Reid in the first bedroom. While duct taping these two individuals, Azibo's gloves ripped, and he replaced them; Azikiwe similarly replaced his gloves while in the apartment. The defendant likewise participated in binding the victim's wrists and ankles to some degree. While in the apartment, Taylor also observed the defendant standing in the hallway by the bathroom near the first bedroom. Walking between the window at which he was stationed and the bedroom, Taylor saw both Azibo and Azikiwe strike the victim and Reid in the head multiple times with the baseball bats. At some point while the men were in the apartment, Williams was bound and injuries similar to those suffered by the victim and Reid were inflicted upon him. Additionally, one of the four participants inserted several screws into the doorjamb of the front door from the inside before leaving through the window. Again, Taylor did not observe the defendant being threatened by, or try to stop, Azibo and Azikiwe during their time in apartment 101. Eventually, the four left the apartment: Taylor and Azikiwe in one vehicle, and the defendant and Azibo in another. The defendant observed a black drill in a bag that Azibo brought with him to the car after leaving the apartment. The defendant, Azibo, and Azikiwe reconvened at Lashika's apartment, where the defendant frequently stayed. Lashika was awakened by voices in her living room, two of which she was able to identify as the defendant and Azibo. Leaving her bedroom, she discovered the defendant, Azibo, and Azikiwe sitting in the living room. Azibo and Azikiwe were wearing only undershirts, shorts, and socks. Azibo asked Lashika to take the garbage bags and a black electric drill belonging to Azibo to a dumpster down the street. Lashika disposed of the bags as requested, wearing plastic gloves to move the items. When she returned, Azibo asked her to move his car and retrieve clothing for him from his apartment, which she did. Azibo, Azikiwe, and the defendant were all there when she came back from this second errand. Later that morning, the victim's son, Leroy Whittingham, attempted to call his mother multiple times, but was unable to reach her. At or about 10 a.m., he walked over to his mother's apartment; getting no response when he knocked on her front door, he walked around the side of the building to the window of her bedroom. Discovering the window open, Whittingham pushed the blinds aside and saw the victim and Reid. Both parties were bound in duct tape on the floor, and there was blood on the floor and ceiling. Whittingham entered the apartment and called 911 from his cell phone. An ambulance and police were dispatched. Karen O'Donnell, an emergency medical technician for American Medical Response, and her partner, Rosanna Mendoza, received the call at approximately 10:15 a.m. Driving toward the address to which they were directed, O'Donnell saw a person waving them down and pointing to the apartment building behind the diner. O'Donnell and her partner entered the building; while they were walking up the stairs toward the apartment, Whittingham kicked open the front door. Discovering the victim and Reid in the first bedroom and Williams in the second bedroom, O'Donnell and her partner quickly determined that all three residents were deceased. Investigators processed the apartment over the course of three days. They discovered the screws that had been affixed to the front door and door frame from inside the apartment, which would have prevented the door from being opened. Investigators also discovered various items and removed them from the apartment for further examination; these items included pieces of latex and latex gloves, samples of blood-like substances, the duct tape used to bind the head, hands, and feet of the three residents, and two plastic bags stuck together with duct tape. Additionally, after removing the duct tape binding the victim's wrists, investigators discovered a piece of latex attached to the inside of the duct tape. No weapons were recovered from the apartment. The items collected were turned over to the state forensic laboratory, and forensic testing determined that many of the fingerprints that were discovered in the apartment or on the items seized as evidence were attributable to Azikiwe and Azibo. DNA was also extracted from the various gloves, latex fragments, and other items recovered from apartment 101, and was submitted for further testing. This testing compared DNA profiles developed from these recovered samples to profiles of known samples taken from the involved parties. The profiles developed for each sample were then cross-referenced with a database, which allows the technicians to determine the frequency with which an individual within the three major population groups of Connecticut (African-American, Caucasian, or Hispanic) would be expected to be a contributor. This testing identified Azikiwe, Azibo, and the defendant as contributors to the various samples, while none of the three of them or Taylor could be eliminated as a contributor to other samples. Only the defendant was a contributor to the sample of DNA taken from the latex fragment recovered from the duct tape binding the victim's wrists; each of the other known samples was eliminated. The expected frequency of a person being a contributor to that particular sample was one in seven billion individuals from the three population groups. Frank Evangelista, associate medical examiner for the state, conducted the autopsy of the victim in August, 2005. External and internal examinations revealed profound and substantial injuries to the victim's wrist, face, skull, and brain. These injuries, both external and internal, were consistent with blunt force trauma and would have required multiple blows. Consequently, Evangelista concluded that the victim's death had been caused by blunt head trauma inflicted by another party. The autopsies of Reid and Williams revealed that they had suffered similar injuries, which caused their deaths. A few days after August 24, 2005, the defendant went to a music concert with Lashika, Azibo, and Azikiwe, and when the defendant's sister drove him to Philadelphia a few weeks later, Azikiwe joined them. Although the defendant did not know that Azikiwe would be joining them on the trip to Philadelphia, he did not voice any reluctance about Azikiwe joining them. When Lashika eventually inquired about what happened at 215 Charles Street, the defendant responded that he had not hurt or killed anyone, though he had "roughed somebody up," that he had helped tie up someone, and that the group had gotten rid of the bats they had with them in the apartment. On March 6, 2007, the defendant was interviewed by Christopher Munger, a special agent with the Federal Bureau of Investigation (FBI), at its Bridgeport office. When asked about his involvement in the events at 215 Charles Street, the defendant changed his story multiple times. He first claimed that he had not been there for seven to nine years. When told that his DNA had been recovered from apartment 101, the defendant asked if he could "start over." In his second version of events, the defendant told the agent that he had been asked by Azibo on August 23, 2005, to go up to the door and pretend to be interested in buying crack cocaine, that he got into a verbal altercation with the woman who opened the door, that during this incident, he spit in her face, she slammed the door, and that he left afterward. When told that the DNA had been recovered from the latex glove fragment in the duct tape bindings, the defendant asked to start over again. This time, the defendant provided an account of his involvement that placed him in the apartment binding the victim's wrists and feet with duct tape on the day that she was killed. Over the course of the investigation, cell phones were seized from the defendant and Azikiwe, and investigating detectives became aware of a phone number that ultimately was attributed to Azibo. Information was obtained both from these cell phones, and from records of the associated service providers for these phones and numbers associated with Womble, Taylor, the victim, and Lashika. Analyzing this information, agents with the FBI were able to identify a number of calls during the days leading up to the murders between the phones associated with Azibo, Azikiwe, the defendant, and Taylor. In particular, this information showed that: the phone seized from the defendant had been in contact with the phone associated with Azibo seven times on August 24, 2005, the first time being at 1:47 a.m. and the last at 5:50 a.m.; the last phone to call the phone associated with Azibo was the phone associated with Taylor; there was no contact between the phone associated with Azibo and any other phone between 5:04 and 5:43 a.m.; and the first number that the phone associated with Azibo called after 5:43 a.m. on August 24, 2005, was the phone associated with the defendant. Following a jury trial, the defendant was found guilty of felony murder and kidnapping involving the victim; the jury also found the defendant not guilty as to all other charges and lesser included offenses. The trial court, Kavanewsky, J., sentenced the defendant to a total effective term of fifty years imprisonment. This appeal followed. Additional facts will be discussed as necessary. I First, the defendant claims that the evidence did not support his convictions for felony murder or kidnapping in the first degree, arguing that there was insufficient evidence to show that he possessed the requisite intent to commit an assault or kidnapping, respectively. We disagree. "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." (Internal quotation marks omitted.) State v. Crespo, 317 Conn. 1, 16, 115 A.3d 447 (2015). "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." (Internal quotation marks omitted.) Id., at 17, 115 A.3d 447. Both of the defendant's sufficiency claims go to whether he had the requisite specific intent to commit the crimes for which he was convicted. 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...." "Intent is generally proven by circumstantial evidence because direct evidence of the accused's state of mind is rarely available.... Therefore, intent is often inferred from conduct . and from the cumulative effect of the circumstantial evidence and the rational inferences drawn therefrom.... Intent is a question of fact, the determination of which should stand unless the conclusion drawn by the trier is an unreasonable one." (Citation omitted; internal quotation marks omitted.) State v. Booth, 250 Conn. 611, 656, 737 A.2d 404 (1999), cert. denied sub nom. Brown v. Connecticut, 529 U.S. 1060, 120 S.Ct. 1568, 146 L.Ed.2d 471 (2000). "[I]ntent may be inferred from the events leading up to, and immediately following, the conduct in question . the accused's physical acts and the general surrounding circumstances.... An accused's own words . constitute particularly compelling, direct evidence of his intent." (Citations omitted.) State v. Winot, 294 Conn. 753, 768, 988 A.2d 188 (2010). We will examine in turn the evidence regarding each of the defendant's convictions. A The defendant first argues that there was insufficient evidence that he entered the victim's apartment with the intent to commit an assault therein, which was required to sustain his conviction of the felony murder charge. We disagree. In count one of the amended information, the state charged the defendant with felony murder for the victim's death in the course of and in furtherance of a burglary in the third degree, specifically, a burglary in which the defendant and his associates unlawfully entered apartment 101 with the intent to commit an assault in the third degree. Section 53a-54c provides in relevant part: "A person is guilty of murder when, acting either alone or with one or more persons, such person commits or attempts to commit . burglary . and, in the course of and in furtherance of such crime or of flight therefrom, such person, or another participant, if any, causes the death of a person other than one of the participants...." "There is no requirement under the felony murder statute, nor was there such a requirement under common law felony murder, that the state prove that the respondent had the general intent to commit the murders.... The state must simply prove all the elements of the underlying felony and then prove that the deaths were in the course of and in the furtherance of that felony, or that the deaths were caused in flight from the commission of the felony." (Citation omitted.) In re Michael B., 36 Conn.App. 364, 372, 650 A.2d 1251 (1994). General Statutes § 53a-103 (a) provides in relevant part: "A person is guilty of burglary in the third degree when he enters . unlawfully in a building with intent to commit a crime therein." Finally, General Statutes § 53a-61 (a) provides in relevant part: "A person is guilty of assault in the third degree when . [w]ith intent to cause physical injury to another person, he causes such injury to such person or to a third person...." (Footnote added.) When appraising whether a party had the requisite intent to commit burglary, the jury could consider whether "[t]he time, manner and forcible nature of the entry permitted a reasonable inference, based on human experience, that the unlawful entry by the defendant was hardly without purpose, but rather was with the intent to commit a crime therein." (Internal quotation marks omitted.) State v. Drake, 19 Conn.App. 396, 400, 562 A.2d 1130 (1989), quoting State v. Little, 194 Conn. 665, 675, 485 A.2d 913 (1984). Similarly, with respect to whether an accused intended to commit an assault, "[i]ntent may be gleaned from circumstantial evidence such as the type of weapon used, the manner in which it was used, the type of wound inflicted and the events leading up to and immediately following the incident." (Internal quotation marks omitted.) State v. Ramirez, 107 Conn.App. 51, 64, 943 A.2d 1138 (2008), aff'd, 292 Conn. 586, 973 A.2d 1251 (2009). The evidence produced at trial demonstrated that Azibo previously had run out competitors to his drug operation in the apartments at 215 Charles Street and that he sought to protect his drug operation from the increased competition by the victim at the time when his product was suffering. The defendant brought baseball bats to a meeting among Azibo, Azikiwe, Taylor, and the defendant, at which Azibo articulated his issues with the victim's selling drugs in his building and his intention "to confront" the victim. Importantly, all four participants were involved in Azibo's drug operation. Subsequently, the defendant was involved in at least two attempts to enter the apartment on the first floor. Each of these attempts occurred late at night, and the group took efforts to evade detection or identification, including the use of masks and latex gloves and hiding from another resident of 215 Charles Street. During the first attempt in which both Taylor and the defendant participated, the group left when it became apparent that no one was going to answer the door. Further, although the defendant contended that he had not seen a weapon prior to entering apartment 101, the jury heard testimony that the defendant brought baseball bats to, and was armed with, one of these bats during at least two attempts to enter apartment 101, including the attempt that ultimately resulted in the deaths of the victim, Reid, and Williams. The jury also heard testimony that the group entered apartment 101 on August 24, 2005, only after Azibo kicked down the door. The jury reasonably could have relied on this evidence of a violent entry in determining that the entry into the apartment was for the purpose of an assault. See State v. Ramirez, supra, 107 Conn.App. at 64, 943 A.2d 1138 ; State v. Drake, supra, 19 Conn.App. at 400, 562 A.2d 1130 ; see also State v. DeMarco, 311 Conn. 510, 519-20, 88 A.3d 491 (2014) ("[i]t is the exclusive province of the trier of fact to weigh conflicting testimony and make determinations of credibility, crediting some, all or none of any given witness' testimony" [internal quotation marks omitted] ); State v. Meehan, 260 Conn. 372, 381, 796 A.2d 1191 (2002) ("[i]t is axiomatic that evidentiary inconsistencies are for the jury to resolve"). The evidence further demonstrated that Azibo and Azikiwe proceeded to bind the residents of the apartment, with some assistance from the defendant, immediately after entering the apartment, and that they used the baseball bats to strike both the victim and Reid in the head. During this period, both the defendant and Taylor served as lookouts, with the defendant positioned outside the bedrooms in the hall. Further, Taylor testified that he did not observe any of the four participants threatened or ordered to participate during either attempt, and that no one in the group tried to stop the beatings in the apartment. Lashika also testified that although she had never received a call from Azibo when he was trying to reach the defendant prior to August 24, 2005, the defendant did not look upset after getting such a call at the restaurant. She also stated that, when she inquired after the fact about what had occurred at 215 Charles Street, the defendant admitted that "he roughed somebody up" during the incident. Although he testified that he was merely present on the night that the murders occurred and that he participated only out of fear for his own safety, the defendant also agreed with the prosecutor that he knew that "trouble was coming" for the residents of apartment 101 and that, based on the size of the group and the dark clothing that they were wearing, that "[s]omething that ain't right" was about to occur. Taken as a whole, the evidence demonstrates that: the defendant brought baseball bats to a meeting after dark near the 215 Charles Street apartments; at this meeting, Azibo explained to the defendant and the others in attendance that he intended "to confront" the victim for selling in his building; subsequent to learning this, the defendant knowingly participated in two attempts to enter apartment 101; during each attempt, the participants took considerable pains to avoid identification or interference prior to entry into the apartment; and, during the second attempt to enter the apartment, the baseball bats that the defendant brought were used to beat the victim and Reid after the defendant assisted Azibo and Azikiwe in binding the victim's wrists and while the defendant stood as a lookout in the hallway. In support of his contention that there was insufficient evidence to demonstrate that he had the necessary intent, the defendant notes that there is no evidence that he knew, or had any particular vendetta against, the residents or that he personally committed any assaults directly on their person, which he argues weighs against a finding that he had a specific intent to commit an assault in the apartment. Neither proof of motive nor the actual commission of the intended crime on which a burglary conviction could be based is required, however, to find that the defendant had the specific intent to commit an assault at the time of his unlawful entry. The defendant further contends that merely bringing the baseball bats to apartment 101 does not prove his intent to commit an assault therein and that any reckless or negligent state of mind that could be proved is insufficient for the defendant to be liable for the crime alleged in the information. In support of these arguments, the defendant relies on two cases, State v. Crosswell, 223 Conn. 243, 612 A.2d 1174 (1992), and Warrick v. United States, 528 A.2d 438 (D.C.1987). Both of these cases are distinguishable from the facts before the court, as the evidence in each case demonstrated that, although the defendant or one of his associates was armed at the time of the illegal entry into the residence, the purpose of the invasion was to deprive the residents of property. Thus, the assault that occurred after the entry into the residence with the weapon meant to facilitate that purpose was not enough to show that the assault was intended or planned prior to the time of entry. See State v. Crosswell, supra, at 263-64, 612 A.2d 1174 ; Warrick v. United States, supra, at 442. In the present case, however, the clear weight of the evidence suggests that the purpose of the entry into apartment 101 was the assault itself, rather than a larceny or robbery in which one or more participants merely were willing to use force if required. "[W]hen a jury evaluates evidence of a defendant's intent, it properly rel[ies] on its common sense, experience and knowledge of human nature in drawing inferences and reaching conclusions of fact." (Internal quotation marks omitted.) State v. Winot, supra, 294 Conn. at 768, 988 A.2d 188 ; see also State v. Washington, 155 Conn.App. 582, 589, 110 A.3d 493 (2015) ( "[t]he juror must use all his [or her] experience, his [or her] knowledge of human nature, his [or her] knowledge of human events, past and present, his [or her] knowledge of the motives which influence and control human action, and test the evidence in the case according to such knowledge and render his [or her] verdict accordingly" [internal quotation marks omitted] ). In determining whether sufficient evidence existed that an accused party had the requisite intent for the crime of which he or she was convicted, we look to the totality of the evidence and all reasonable inferences that can be drawn from it. See State v. Best, 56 Conn.App. 742, 753-59, 745 A.2d 223, cert. denied, 253 Conn. 902, 753 A.2d 937 (2000) ; see also State v. Booth, supra, 250 Conn. at 654-58, 737 A.2d 404. Consequently, the jury reasonably could have determined that the defendant, by bringing baseball bats and participating in the attempts to enter apartment 101 with the knowledge that the plan to enter apartment 101 involved some degree of physical harm to the residents, and in light of the time and manner of entry and the relationship between the participants, shared Azibo's intent to inflict physical injury on the victim. See State v. Ortiz, 312 Conn. 551, 565, 93 A.3d 1128 (2014) ("it is a permissible, albeit not a necessary or mandatory, inference that a defendant intended the natural consequences of his voluntary conduct" [emphasis omitted; internal quotation marks omitted] ). Even assuming arguendo that evidence in the record could support that the defendant intended something other than an assault, it was the jury's responsibility to determine which of these alternative and supported explanations was the most likely. See State v. Booth, supra, 250 Conn. at 655, 737 A.2d 404. We, therefore, conclude that there was sufficient evidence on which the jury could have found the defendant guilty of the felony murder of the victim. B The defendant also claims that there was insufficient evidence to support his conviction for kidnapping in the first degree because there was insufficient evidence that he intended to inflict physical injury on the victim. We disagree. "A person is guilty of kidnapping in the first degree, pursuant to General Statutes § 53a-92 (a)(2)(A), if he abducts another person and . restrains the person abducted with intent to . inflict physical injury upon him.... General Statutes § 53a-91 (2) defines abduct as restrain[ing] 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. The term restrain is also defined in § 53a-91 (1) as restrict [ing] 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." (Internal quotation marks omitted.) State v. Wilcox, 254 Conn. 441, 464-65, 758 A.2d 824 (2000). In support of his claim that there was insufficient evidence that he intended to inflict injury on the victim, the defendant relies on his assertion that there was no evidence that he ever inflicted any physical injury on the victim. Even if we were to accept that there was no such evidence, we would reject this reliance. Not only does the statute merely require the intent to inflict physical injury, not the consummation of that intent; see General Statutes § 53a-92 (a)(2)(A) ; the jury was charged by the court that the defendant could be found liable either as a principal or as an accessory. Given the defendant's knowledge and actions prior to entering the apartment and the violent manner in which that entry was effected, the jury reasonably could have inferred that his actions in binding the victim's wrists and standing in the hallway as a lookout were for the purpose of aiding Azibo and Azikiwe, who were both armed with baseball bats that the defendant had brought to the apartment, in inflicting injury to the victim. Further, as we previously articulated in part I A of this opinion, on the basis of the evidence submitted at trial, the jury reasonably could have found that the defendant possessed the specific intent to inflict physical injury on the victim when he and his cohorts entered the apartment carrying baseball bats. Once inside the apartment, the defendant was given duct tape and participated, at least briefly, in using that duct tape to bind the victim's wrists and ankles. At some point after both the victim and Reid were bound, Azibo and Azikiwe, armed with the baseball bats that the defendant had brought to the apartment, used those bats to strike the victim and Reid while the defendant was standing in the hallway between the two bedrooms acting as a lookout. The defendant did not try to stop these beatings. Thus, because we already have determined in part I A of this opinion that the jury was permitted, although not required, to infer that "[the] defendant intended the natural consequences of his voluntary conduct"; (emphasis omitted; internal quotation marks omitted) State v. Ortiz, supra, 312 Conn. at 565, 93 A.3d 1128 ; we agree with the state that the jury reasonably could have found that the defendant possessed the same intent as his cohorts and, accordingly, conclude that there was sufficient evidence supporting the defendant's conviction for kidnapping in the first degree. II The defendant also claims that the trial court committed a number of errors in its jury instructions concerning the third element of felony murder. Under the relevant portion of § 53a-54c, a defendant is liable only for a death caused "in the course of and in furtherance of [the predicate crime] or of flight therefrom...." We disagree with each of the defendant's claims of error with respect to the trial court's instructions on this element and consider each one separately. A Instructions that Death Must Occur "in the Course of" the Burglary The defendant asserts that the court improperly instructed the jury with respect to the requirement that the death must occur "in the course of" the burglary in two respects. The defendant argues that the trial court, by adding certain language in its charge, (1) improperly expanded the scope of felony murder and (2) took a disputed issue away from the jury. 1 Preservation The state argues that neither of these claims was preserved because the defendant's request to charge and exceptions at trial were inadequate to alert the trial court to the errors. The state further argues that this court should not consider these unpreserved claims because the defendant either induced these errors or has waived them pursuant to State v. Kitchens, 299 Conn. 447, 10 A.3d 942 (2011). The defendant responds that these claims were preserved at trial and, to the extent that the claims were not preserved, review is appropriate under State v. Golding, 213 Conn. 233, 567 A.2d 823 (1989) ; see also In re Yasiel R., 317 Conn. 773, 781, 120 A.3d 1188 (2015) (modifying Golding's third condition). We agree with the defendant that his claims were preserved. The following additional facts are relevant to our consideration of these issues. On December 17, 2013, defense counsel submitted proposed jury instructions in court, which included an extensive charge on each element of felony murder. With respect to the third element, the defendant's proposed instructions provided in relevant part: "The third element of felony [murder] is that the defendant or another participant caused the death of Tina Johnson (as to Count One) James Reid (as to Count Two) and Basil Williams (as to Count Three) while in the course of, and in furtherance of, the commission or attempted commission of the crime of burglary in the third degree, or, in the immediate flight from the crime. This means that as to each count, the death occurred during the commission of the burglary and in the course of carrying out its objective. " 'In the course of the commission' of the burglary means during any part of the defendant's participation in the burglary. The phrase 'in the course of the commission' is a time limitation and means conduct occurring immediately before the commission, during the commission or in the immediate flight after the commission of the burglary. Thus, the respective deaths of Tina Johnson, James Reid, and Basil Williams must have occurred somewhere within the time span of the occurrence of the facts which constitute the charged burglary." On December 18, 2013, the court stated on the record that it had e-mailed portions of its proposed charge to counsel the prior evening and that full copies of the charge were being printed for counsel to review. At about noon, the court indicated that it would dismiss the jury until 2 p.m. and that, during this break, it would meet with counsel to discuss the full charge and provide copies to them. Subsequently, the parties met in chambers, where defense counsel attempted to articulate certain objections to the court's charge, and the trial court indicated that it would hear these objections on the record during the charge conference. When court reconvened later that afternoon, the court stated that it had e-mailed much of its proposed charge to counsel on December 17, 2013, that counsel had been given a full copy of the charge during the lunch recess, and that the court would make a few changes to its instructions. It then reviewed its proposed instructions with counsel and sought comments from counsel. In response to defense counsel's contention that she had only a few objections, the court noted that any objections covered by the defendant's written request to charge did not have to be restated. Consequently, defense counsel expressed concern only with the court's intention to give instructions on consciousness of guilt, which the court withdrew after closing arguments. On December 19, 2013, the court indicated on the record that it had made some changes to its felony murder charge suggested by defense counsel; the court, however, did not articulate those changes. It then charged the jury. During its charge on felony murder, the court recited the statutory language of § 53a-54c and charged the jury on each of the elements of felony murder. Following its charge, the court inquired whether either party had any exceptions. The prosecutor had none. Defense counsel, however, took exception to several aspects of the charge. She excepted to the court's charge on accomplice testimony. Defense counsel also excepted to the charge concerning the third element of felony murder, noting that it had included proposed language on both the "in the course of" and "in furtherance of" aspects, and that the court improperly had added the language "in the course of carrying out its objective" to its instructions defining the former aspect. Immediately following this exception and as defense counsel was about to articulate her exception to the instructions on the affirmative defense to felony murder, the trial court indicated that it considered preserved any requested instruction contained within the defendant's submitted request to charge that had not been given as proposed, regardless of whether the deviation concerned the omission of, or an addition to, the instruction as proposed. In light of these statements by the court, defense counsel briefly excepted to the court's instructions on the statutory defense to felony murder, duress, and kidnapping; the court then overruled the defendant's exceptions. Pursuant to Practice Book § 42-16, "[a]n appellate court shall not be bound to consider error as to the giving of, or the failure to give, an instruction unless the matter is covered by a written request to charge or exception has been taken by the party appealing immediately after the charge is delivered. Counsel taking the exception shall state distinctly the matter objected to and the ground of exception...." Thus, "a party may preserve for appeal a claim that an instruction, which was proper to give, was nonetheless defective either by: (1) submitting a written request to charge covering the matter; or (2) taking an exception to the charge as given.... Moreover, the submission of a request to charge covering the matter at issue preserves a claim that the trial court improperly failed to give an instruction on that matter." (Citations omitted.) State v. Ramos, 261 Conn. 156, 170, 801 A.2d 788 (2002), overruled in part on other grounds by State v. Elson, 311 Conn. 726, 754, 91 A.3d 862 (2014). Under either method, some degree of specificity is required, as a general request to charge or exception will not preserve specific claims. See State v. Ramos, supra, 261 Conn. at 170-71, 801 A.2d 788 ("[i]t does not follow, however, that a request to charge addressed to the subject matter generally, but which omits an instruction on a specific component, preserves a claim that the trial court's instruction regarding that component was defective" [emphasis in original] ); State v. Lee, 138 Conn.App. 420, 453 n. 19, 52 A.3d 736 (2012) ("[i]n order to preserve an objection to a proposed jury instruction, the defendant must plainly put the trial court on notice as to the specific basis for his objection" [internal quotation marks omitted] ). Thus, a claim concerning an improperly delivered jury instruction will not be preserved for appellate review by a request to charge that does not address the specific component at issue; see, e.g., State v. Ramos, supra, at 169-71, 801 A.2d 788 (proposed jury instructions on self-defense did not include charge on provocation exception); or by an exception that fails to articulate the basis relied upon on appeal with specificity. See State v. Payne, 121 Conn.App. 308, 318, 996 A.2d 302 (neither precharge objection nor postcharge exception included ground for objection), cert. denied, 297 Conn. 919, 996 A.2d 1193 (2010) ; see also State v. Lee, supra, at 453, 52 A.3d 736 (defense counsel voiced concern about definition of conspiracy but not about instruction on intent element of conspiracy). Where the defendant has submitted a request to charge with proposed instructions on the issue, however, our Supreme Court "never ha[s] required . [the] defendant . also to take an exception to a contrary charge, and such a requirement would contravene the plain language of [Practice Book § 42-16 ]." State v. Paige, 304 Conn. 426, 443, 40 A.3d 279 (2012) ; see also State v. Johnson, 316 Conn. 45, 55-56, 111 A.3d 436 (2015) (claim preserved by request to charge where court gave requested charge, but selectively omitted certain passages); State v. Ross, 269 Conn. 213, 337-38, 849 A.2d 648 (2004) (instructional claim that trial court used different word than statutory requirements preserved where defendant did not take exception, but had "file[d] a specific request to charge on the issue"). In the present case, the defendant filed a request to charge, which included proposed instructions on each element of felony murder. In it, the defendant included the phrase "in the course of carrying out its objective," but only at the beginning of the charge, where the phrase primarily serves as a gloss on the "in furtherance of" requirement. Consequently, the court added the proposed language in its charge in the place requested, but also included similar language elsewhere in the charge and added unrequested language concerning the specific "objective" of the burglary. Given that the defendant filed a request to charge and the trial court's charge deviated as to a specific component from these proposed instructions, the defendant's request to charge has preserved these issues for appeal. As we consider these claims preserved, we do not reach the defendant's or the state's claims concerning whether this court should address these claims if they were unpreserved. With respect to the state's arguments that the defendant induced the error of which he now complains, we briefly note that in addressing whether a defendant's claims of instructional error should not be reviewed pursuant to State v. Golding, supra, 213 Conn. 233, 567 A.2d 823, because they were induced, our Supreme Court has distinguished cases where the language to which the defendant objects is precisely that which the defendant requested from situations where the trial court has modified the language requested. See State v. Cruz, 269 Conn. 97, 106, 848 A.2d 445 (2004), discussing State v. Whipper, 258 Conn. 229, 780 A.2d 53 (2001), overruled in part by State v. Cruz, 269 Conn. 97, 106, 848 A.2d 445 (2004), and in part on other grounds by State v. Grant, 286 Conn. 499, 535, 944 A.2d 947, cert. denied, 555 U.S. 916, 129 S.Ct. 271, 172 L.Ed.2d 200 (2008). In the present case, the language "in the course of carrying out its objective" can be found in the defendant's request to charge, where it was used primarily to clarify the "in furtherance of" prong of the third element; neither the phrase nor the language concerning the precise "objective" of the burglary, however, appears in this section of the defendant's request to charge. The record also suggests that the court made changes to the felony murder charge, but it did not explain the extent of those changes, and the partial and complete charges that the court distributed to the parties prior to this statement have not been provided to this court. Therefore, this case is more analogous to Whipper than to Cruz, and we conclude that the errors from which the defendant appeals generally were not induced in his request to charge. 2 Merits We turn to the substance of the defendant's two claims of error with respect to the trial court's charge on the "in the course of" prong. With respect to the defendant's first claim of error, the defendant contends that the court erred by including the phrase "and in the course of carrying out its objective" when defining how this prong could be met. With respect to the second claim of error, he argues that the court's unequivocal statement that "the objective [of the burglary] was an assault" took away a disputed factual issue from the jury's consideration. "Our analysis begins with a well established standard of review. When reviewing the challenged jury instruction . we must adhere to the well settled rule that a charge to the jury is to be considered in its entirety, read as a whole, and judged by its total effect rather than by its individual component parts.... [T]he test of a court's charge is not whether it is as accurate upon legal principles as the opinions of a court of last resort but whether it 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.... 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.... "It is . constitutionally axiomatic that the jury be instructed on the essential elements of a crime charged.... The due process clause of the fourteenth amendment protects an accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged.... Consequently, the failure to instruct a jury on an element of a crime deprives a defendant of the right to have the jury told what crimes he is actually being tried for and what the essential elements of those crimes are.... "[I]n reviewing a constitutional challenge to the trial court's instruction, we must consider the jury charge as a whole to determine whether it is reasonably possible that the instruction misled the jury.... The test is whether the charge as a whole presents the case to the jury so that no injustice will result.... We will reverse a conviction only if, in the context of the whole, there is a reasonable possibility that the jury was misled in reaching its verdict.... A jury instruction is constitutionally adequate if it provides the jurors with a clear understanding of the elements of the crime charged, and affords them proper guidance for their determination of whether those elements were present.... An instruction that fails to satisfy these requirements would violate the defendant's right to due process of law as guaranteed by the fourteenth amendment to the United States constitution and article first, § 8, of the Connecticut constitution.... The test of a charge is whether it is correct in law, adapted to the issues and sufficient for the guidance of the jury.... The primary purpose of the charge is to assist the jury in applying the law correctly to the facts which they might find to be established.... The purpose of a charge is to call the attention of the members of the jury, unfamiliar with legal distinctions, to whatever is necessary and proper to guide them to a right decision in a particular case." (Citations omitted; internal quotation marks omitted.) State v. Griggs, 288 Conn. 116, 124-26, 951 A.2d 531 (2008). The defendant's first claim is that, by adding the phrase "in the course of carrying out its objective" to its instructions on the "in the course of" prong, the trial court improperly enlarged the scope of felony murder. Because "[i]t is axiomatic that the state is required to prove all the essential elements of the crimes charged beyond a reasonable doubt in order to obtain a conviction . [a] jury instruction that effectively relieves the state of its burden to prove an essential element of the crime charged implicates the defendant's right to due process." (Citations omitted; internal quotation marks omitted.) State v. Jacobson, 87 Conn.App. 440, 463, 866 A.2d 678 (2005), aff'd, 283 Conn. 618, 930 A.2d 628 (2007). In the present case, the trial court provided the following instructions on the requirement that the death must occur "in the course of" the underlying felony: "Now, in the course of the commission of the burglary means during any part of the defendant's participation in the burglary. The phrase, in the course of the commission, is a time limitation and means conduct occurring immediately before the commission or during the commission of the burglary and in the course of carrying out its objective. "Thus, the death of the decedent named in each count must have occurred somewhere within the time span of the occurrence of the facts which constitute the burglary and in the course of carrying out its objective. "Also, the immediate murder of a person to eliminate a witness to a crime or to avoid detection is also in the course of the commission. In this regard, if you find one or more persons-or one or more of the decedents, I should say-was killed simply to eliminate him as a witness to the crime or to avoid detection, that killing is also in the course of the commission of the underlying felony." The defendant argues that the burglary was complete at the point that he and the other men entered apartment 101. Therefore, as there was testimony at trial that the residents were still alive at the time the defendant left the building, the addition of the language by the trial court, the defendant contends, improperly expanded the time frame under which the jury could find that the death occurred "in the course of" the burglary. We disagree. "Felony murder occurs when, in the course of and in furtherance of another crime, one of the participants in that crime causes the death of a person who is not a participant in the crime.... The two phrases, in the course of and in furtherance of, limit the applicability of the statute with respect to time and causation." (Internal quotation marks omitted.) State v. Montgomery, 254 Conn. 694, 733, 759 A.2d 995 (2000). "The phrase in the course of focuses on the temporal relationship between the murder and the underlying felony.... We previously have defined the phrase in the course of for purposes of § 53a-54c to include the period immediately before or after the actual commission of the crime...." (Citation omitted; internal quotation marks omitted.) Id., at 734, 759 A.2d 995. Our Supreme Court previously has held that a jury instruction phrasing these two requirements in the disjunctive was in error because the statute requires that both prongs be met for this element to be satisfied. State v. Scognamiglio, 202 Conn. 18, 26, 519 A.2d 607 (1987). Thus, an instruction that would allow the jury to find this element met by evidence that satisfies only one prong would be in error. See id.; see also State v. Young, 191 Conn. 636, 641 n. 5, 469 A.2d 1189 (1983). We agree with the defendant that the primary purpose of the language as used in our model instructions seems to be as a gloss on the "in furtherance of" prong of this element. This does not mean, however, that the language "in the course of carrying out its objective" refers solely to the causality requirement of this element and not also to its temporal requirement. Indeed, we have relied on precisely this language in finding that a challenged instruction sufficiently instructed the jury as to the "in the course of" prong of this element. See State v. Cooke, 89 Conn.App. 530, 541-42, 874 A.2d 805 instructions adequately instructed jury on temporal requirements when "the court explained that the death must have been caused during the commission of the robbery and in the course of carrying out its objective " and explicitly stated that "the death must have occurred during the actual commission of robbery in the first degree" [emphasis added; internal quotation marks omitted] ), cert. denied, 275 Conn. 911, 882 A.2d 677 (2005). In the present case, the "in the course of carrying out its objective" language in the trial court's instructions on the "in the course of" prong was surrounded by language that focused upon the temporal requirements of this prong. In particular, the court instructed that "[t]he phrase, in the course of the commission, is a time limitation and means conduct occurring immediately before the commission or during the commission of the burglary...." It also stated that the death "must have occurred somewhere within the time span of the occurrence of the facts which constitute the burglary...." Further, under the facts of this case, there is not a reasonable possibility that any error in including this language could have misled the jury for two additional reasons. First, the phrase that the court used is expressed in the conjunctive rather than the disjunctive; therefore, under the defendant's theory that "in the course of carrying out its objective" requires proof comparable to "in furtherance of" prong, the state would be required to prove both the "in the course of" and the "in furtherance of" prong to prove the "in the course of" prong. Thus, the inclusion of this language does not mandate reversal, either in that its inclusion would have no effect on the outcome because proof of meeting, or failing to meet, this prong similarly would meet or fail to meet the "in furtherance of" prong, or, in the alternative, because it benefits the defendant by imposing a heavier burden on the state than is required. See, e.g., State v. Gradzik, 193 Conn. 35, 39, 475 A.2d 269 (1984) (instructional errors that benefit defendant not grounds for reversal); State v. Cochran, 191 Conn. 180, 187-88, 463 A.2d 618 (1983) (same). Second, although liability for a burglary premised on an unlawful entry attaches upon a defendant crossing the threshold; see State v. Little, supra, 194 Conn. at 675, 485 A.2d 913 ("the crime proscribed by § 53a-103 [a] is complete once there has been an unlawful entering . in a building with the intent to commit a crime in that building"); authority exists that a burglary, once begun, continues until all parties participating in the burglary have left the property. See 12A C.J.S. 207, Burglary § 55 (2014) ("burglary does not end when a burglar enters the premises, but continues for as long as the burglar is on the premises with the intent to commit the crime"), citing Flanders v. Meachum, 13 F.3d 600, 603 (2d Cir.1994) (applying Connecticut law) ; see also 12A C.J.S., supra, p. at 138 (liability of aider or abetter "is consider[ed] ongoing during the time that the perpetrator remains inside the structure"); 40 C.J.S. 481, Homicide § 62 (2014) ("[a] burglary is deemed to be in progress, for purposes of a felony-murder charge, while the burglar is on the premises"). Although we have not discovered any explicit statements in our precedent to this effect, our courts have upheld felony murder determinations when the predicate crime was a burglary and the deaths occurred at some point after an unlawful entry. See In re Michael B., supra, 36 Conn.App. at 374, 650 A.2d 1251 (probable cause existed to find that murders "occurred after the respondent unlawfully entered the home and before he left the . home . and therefore within the temporal limitation of when the alleged burglary began and ended"); see also State v. MacFarlane, 188 Conn. 542, 543, 450 A.2d 374 (1982) (homeowner, who had been asleep in residence when burglars entered, awoke and was strangled "during the course of the burglary"). The defendant did not argue at trial that his initial entry was lawful; rather, he relied at trial on the affirmative defense presented in § 53a-54c and on his claim that he acted only under duress. He has not presented any argument to the contrary on appeal. We also note that all of the evidence presented at trial indicates that the victim's death occurred inside apartment 101 and was committed while either the defendant or one of his associates was present. Therefore, we conclude that there is not a reasonable possibility that the inclusion of this language misled the jury. The defendant's second claim is that, by stating unequivocally that the objective of the burglary was an assault, the trial court committed error because the determination as to what the defendant, Azibo, Azikiwe, and Taylor intended in entering the apartment is solely within the province of the jury. He claims this instruction prejudiced his defense because it removed from the jury's consideration the possibility that the purpose of the burglary was a robbery and limited the defendant's ability to persuade the jury that he lacked the objective to commit an assault although he was present at the scene. We are not persuaded by this argument. In the present case, the court instructed the jury on the third element of felony murder, framing this element as follows: "The third element is that the defendant or another participant caused the death of the decedent named in each count while in the course of and in furtherance of the commission of the crime of burglary. This means that the death occurred during the commission of the burglary and in the course of carrying out its objective. And that objective was an assault." To begin, we note that the statement by the court "that [the] objective [of the burglary] was an assault" followed the court's reading of the amended information and the immediately preceding statements concerning the third element generally; thus, this statement would have been understood by the jury as relating the general elements of the crime to the specific allegations contained within the amended information in a manner that illustrated what the state had to prove. The risk that this statement would be perceived as an unequivocal direction to the precise purpose of the alleged burglary was also undercut by both the court's earlier instructions as to the state's general burden to prove each material element of any crime alleged and its detailed instructions on the state's specific burden to prove that the defendant committed the predicate burglary in the manner alleged by the state. Following the particular language at issue, the trial court again reminded the jury that the state bore the burden of proving beyond a reasonable doubt each of the four elements of felony murder. Finally, with the exception of the statement at issue, which, as previously noted, is equivocal in context, there were no other definite statements by the trial court that reasonably could have compelled the jurors to believe that the court was instructing them that the objective of the burglary must have been an assault. For these reasons, this case is distinguishable from those relied upon by the defendant. See State v. Theriault, 182 Conn. 366, 376-80, 438 A.2d 432 (1980) (in accessorial liability case, harm caused by "very conclusive nature" of trial court's instruction that "[n]o question" had been raised about defendant's mental state and jury could "treat him as having the mental state required for the commission of the crime if [it found] that he [was] the actual one that did it" not overcome by other portions of charge, including text that immediately followed challenged statement [internal quotation marks omitted] ); State v. Rodriguez, 7 Conn.App. 470, 475-76, 509 A.2d 72 (1986) (where state alleged hindering prosecution in first degree, unequivocal statements by court, which charged jury that murder had been committed and listed time, date, and party responsible for that murder, removed issue from jury's consideration). On the record before us, we conclude that there is not a reasonable possibility that the jury was misled by this statement. B Instructions that Death Must Occur "in Furtherance of" the Burglary The defendant's final claim of error concerns the court's instructions as to the requirement that the death of the victim must have occurred "in furtherance of" the burglary. The defendant argues that the charge that the court gave provided insufficient guidance to the jury as to a key aspect of his defense. We are not persuaded. In this case, the defendant requested the following instruction concerning the requirement that the death be in furtherance of the underlying felony: " 'In furtherance of' the burglary means that the killing must in some way be causally connected to or as a result of the burglary, or the flight from the burglary. The state would have to prove that the deaths of Tina Johnson, James Reid, and Basil Williams were caused by the defendant or another participant in the burglary in the course of, and in furtherance of the crime of burglary. The phrase 'in furtherance of such crime' imposes the requirement of a logical nexus between the felony and the homicide. The connection between the underlying felony and homicide must be more than the mere coincidence to time and place. The nexus or connection must be one of logic or plan. This means that the felony murder statute excludes those deaths which are so far outside the plan of the felony and its execution as to be unrelated to them. In other words, a felony murder does not include any killing incidentally committed with the felony but only includes those felonies in the attempted execution of the felony of burglary. Although the homicide itself need not be in the common design, the act which results in death must be in furtherance of the unlawful purpose. In other words, the victims' deaths must have been caused in furtherance of committing the burglary and not merely incidental to it. "For instance, a murder for personal motive is an example of a death that is so far outside the ambit of the plan of the felony and its execution as to be unrelated to them. A murder for personal motive, then, is not a death 'in furtherance of' the underlying felony." At trial, the court gave the following instruction to the jury: "In furtherance of the burglary means that the killing must be in some way causally connected to or as a result of the burglary. The actions of the defendant that caused the death of the decedent named in each count must be done to aid the burglary in some way or to further the purpose of the burglary. "It does not matter that the act that caused the death may have been committed unintentionally rather than with the intention to cause. The defendant is as guilty when committing this form of murder as he would be if he had intentionally committed the act that caused the death." Following the charge, the defendant objected that his request to charge had included language from Connecticut and New York cases concerning the "in furtherance of" prong. On appeal, he claims that by omitting the requested theory of defense instruction, the court provided insufficient guidance to the jury on his defense that "even if the Aquarts murdered the victims 'in the course of' the burglary, their personal, business-related motive for the murders was so far outside the plan of the underlying burglary with its alleged purpose of committing a misdemeanor assault that it was not 'in furtherance of' that burglary." We disagree. "Our review of the defendant's claim requires that we examine the [trial] court's entire charge to determine whether it is reasonably possible that the jury could have been misled by the omission of the requested instruction.... 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." (Internal quotation marks omitted.) State v. Baltas, 311 Conn. 786, 808-809, 91 A.3d 384 (2014). With respect to the defendant's framing of this argument, we agree with the state that the requested instruction on the "in furtherance of" prong goes to a material element of the crime itself and, thus, is not the type of theory of defense instruction that our courts are required to give. "A theory of defense instruction consists of an explanation of the defendant's theory of defense...." State v. Baltas, supra, 311 Conn. at 814, 91 A.3d 384. "Courts in Connecticut generally do not provide a theory of defense instruction at the defendant's request, nor is there any requirement that such an instruction be provided. Instead . [w]hen a defendant admits the commission of the crime charged but seeks to excuse or justify its commission so that legal responsibility for the act is avoided, a theory of defense charge is appropriate. A defendant must, however, assert a recognized legal defense before such a charge will become obligatory. A claim of innocence or a denial of participation in the crime charged is not a legally recognized defense and does not entitle a defendant to a theory of defense charge." (Citation omitted; internal quotation marks omitted.) Id., at 814-15, 91 A.3d 384. When the claim of error goes to a material element of a crime rather than a separate legal defense, that claim properly is characterized as a failure to instruct adequately on that element and will be reviewed accordingly. See id., at 816-18, 91 A.3d 384. Turning to the substance of the charge, our Supreme Court in State v. Young, supra, 191 Conn. at 640-41, 469 A.2d 1189, noted the genesis of the "in furtherance of" prong of § 53a-54c in New York law. The court then reviewed New York case law construing this requirement: "Faced with a claim that in furtherance of meant in aid of or in advancement of, the New York courts have construed the phrase to impose the requirement of a logical nexus between the felony and the homicide. . More than the mere coincidence to time and place . the nexus must be one of logic or plan. Excluded are those deaths which are so far outside the ambit of the plan of the felony and its execution as to be unrelated to them.... The phrase was viewed as incorporating into the New York felony murder provision the previous limitation upon the applicability of the felony murder rule adopted in People v. Wood, 8 N.Y.2d 48, [167 N.E.2d 736, 201 N.Y.S.2d 328] (1960) [abrogated by People v. Hernandez, 82 N.Y.2d 309, 624 N.E.2d 661, 604 N.Y.S.2d 524 (1993) ]. In that case, where the defendant had been indicted for the deaths of an accomplice as well as of an innocent bystander in a gun battle with the police, both of whom were shot by a tavern owner who was assisting the police, the court upheld the dismissal of the indictment. A felony murder embraces not any killing incidentally coincident with the felony . but only those committed by one of the criminals in the attempted execution of the unlawful end.... Although the homicide itself need not be within the common design . the act which results in death must be in furtherance of the unlawful purpose." (Citations omitted; emphasis in original; internal quotation marks omitted.) State v. Young, supra, at 641-42, 469 A.2d 1189. Our Supreme Court agreed with the manner in which New York courts had construed this language: "[T]he phrase in furtherance of was intended to impose the requirement of a relationship between the underlying felony and the homicide beyond that of mere causation in fact, similar to the concept of proximate cause in the law of torts. Primarily its purpose was to limit the liability of a person whose accomplice in one of the specified felonies has performed the homicidal act to those circumstances which were within the contemplation of the confederates to the undertaking, just as the liability of a principal for the acts of his servant is similarly confined to the scope of the agency. All who join in a common design to commit an unlawful act, the natural and probable consequence of the execution of which involves the contingency of taking human life, are responsible for a homicide committed by one of them while acting in pursuance of, or in furtherance of, the common design." (Emphasis omitted; internal quotation marks omitted.) Id., at 642, 469 A.2d 1189. Thus, "[t]he phrase serves to exclude those murders that are committed during the course of an underlying felony but that are wholly unrelated . but does not serve to exclude killings that were not intended." (Citation omitted.) In re Michael B., supra, 36 Conn.App. at 375, 650 A.2d 1251. Pursuant to New York law, a murder wholly caused by a personal motive of an accomplice does not occur "in furtherance of" the underlying felony just because it occurs during the felony. See, e.g., People v. Lewis, 111 Misc.2d 682, 685, 444 N.Y.S.2d 1003 (1981) ("[e]ven when the homicide is committed by one of the persons engaged in the underlying felony, if that person acts for a private purpose unrelated to the felony, the remaining members of the group are not liable for the murder"); see also People v. Wood, supra, 8 N.Y.2d at 52, 167 N.E.2d 736, 201 N.Y.S.2d 328 ("[w]here . the felon kills someone during the felony, but in a separate and distinct act and to satisfy his own end, his accomplice in the felony is not guilty of murder"). Neither our Supreme Court nor this court, however, has ever required affirmatively an instruction as to the effect of a separate personal motive on this prong. In State v. Allen, 216 Conn. 367, 386-88, 579 A.2d 1066 (1990), our Supreme Court considered a claim of instructional error similar to the one advanced by the defendant, but determined that the trial court's charge adequately instructed the jury on the required causal connection between the felony and the deaths. Further, we note that, prior to its decision in State v. Young, supra, 191 Conn. 636, 469 A.2d 1189, our Supreme Court upheld jury instructions that were substantially less descriptive as to the requirement that the resulting death must occur in furtherance of the defendant and his associates' shared design. See State v. MacFarlane, supra, 188 Conn. at 551, 450 A.2d 374 (court did not define "in furtherance of" in its charge). Finally, our courts have recognized that burglary is a crime that, by its nature, involves a recognizable risk of injury and death to others. See In re Michael B., supra, 36 Conn.App. at 376, 650 A.2d 1251 ("[i]t is very likely that in the course of committing a burglary a burglar will encounter an occupant of the dwelling, who may resist, and, in furtherance of the burglary, death of the dweller may likely result"), citing State v. MacFarlane, supra, 188 Conn. at 553, 450 A.2d 374. This risk of death is especially clear when the burglary itself is predicated on a plan to commit an assault. See People v. Henderson, 25 N.Y.3d 534, 541, 35 N.E.3d 840, 14 N.Y.S.3d 770 (2015) ("there is a clear logical nexus between defendant's felony of unlawfully entering the victim's apartment to assault him and the homicide, which was certainly not coincidental"). In this case, the trial court's instructions on the "in furtherance of" prong, which essentially mirror those in our model jury instructions; see Connecticut Criminal Jury Instructions (4th Ed.2008 [Rev. to November 17, 2015] ) § 5.4-1, available at http://jud.ct.gov/ji/criminal/Part5/5.4-1.htm (last visited April 29, 2016); adequately explained the causal connection required by this prong. The court's remaining instructions concerning the elements of felony murder, which either are unchallenged or which we already have determined were not in error; see part II B 2 of this opinion; included a direction that, to find that the defendant participated in the crime of burglary, he must have knowingly and unlawfully entered the apartment with the specific intent of committing an assault. Finally, the court instructed the jury on the defendant's affirmative defense pursuant to § 53a-54c and on his claim of duress, both of which advanced the concerns of the defendant's proposed instructions that he did not share the motivations of Azibo and Azikiwe in their execution of the burglary. Therefore, because the jury necessarily accepted that the defendant entered the apartment intending to commit an assault and there was evidence from multiple sources that the baseball bats that the defendant brought were likely the instruments causing the deaths of the residents, we cannot conclude that there was a reasonable possibility that the jury was misled because the act that caused the residents' death-specifically, being repeatedly struck by baseball bats -would have remained within the reasonable contemplation of the participants to this burglary. The judgment is affirmed. In this opinion the other judges concurred. The victim is unrelated to the defendant. The defendant was acquitted as to the counts arising from the felony murder and kidnapping of Reid (counts two and five) and Williams (counts three and six). Azibo is known by a number of nicknames, including "Dee" and "Dready." Like his brother, Azikiwe was known by a number of nicknames, including "Z," "Ziggy," and "Ozzie." Taylor did not observe anyone threatened, forced, or ordered to put on the gloves or masks. It is unclear whether the incident that Hodges observed was, in fact, the same unsuccessful attempt in which Taylor participated. Hodges did not recall seeing the defendant or Taylor there that night and did not see Azibo or his men holding weapons. Each of the decedents also was identified as a contributor to, or was not eliminated as a contributor to, many of the samples. This statistical frequency applies to all potential contributors to a sample. In particular, Evangelista's external examination of the body revealed multiple visible injuries to her head and face as well as a wrist fracture that, although not visible, could be felt clearly through the skin. During his subsequent internal examination, Evangelista observed numerous internal injuries consistent with blunt force trauma, including lacerations and bruises to the exterior of the victim's head, damage to her left eyeball, fractures in her skull and cheekbones, and bruising and bleeding in the brain. The defendant originally appealed to this court from the judgment of conviction on April 17, 2014. On November 6, 2014, the appeal was transferred from this court to the Supreme Court pursuant to Practice Book § 65-1 and General Statutes § 51-199(c). Subsequently, on February 4, 2015, the Supreme Court transferred this appeal back to this court. Subsequent to the defendant's 2013 conviction, § 53a-54c was amended by No. 15-211, § 3, of the 2015 Public Acts; these amendments made technical changes and added a separate predicate felony, neither of which are relevant to this appeal. Therefore, we refer to the current revision of the statute. General Statutes § 53a-3 (3), in turn, defines "physical injury" as "impairment of physical condition or pain...." The defendant provided a different account for the group's entry into the apartment, stating that: he had been instructed by Azibo to knock on the door, pretending to be a customer seeking crack cocaine, and then to get out of the way when the door opened; he knocked on the door as instructed; and once the door was opened, the remaining members of the group forced the defendant into the apartment in their efforts to get in themselves. This alternate account, even if believed, remains unhelpful to the defendant's position for two reasons. First, it corroborates Taylor's testimony that the group's entry into apartment 101 was accomplished by force, but merely changes the precise manner in which that entry was achieved. Second, in the context of appraising an accessory's liability for an assault accomplished or attempted by another, this court has held on two prior occasions that the accessory intended harm to the victim where he or she knew of the principal's motive and knew that the principal was armed, but nevertheless accompanied that principal to the victim's residence and attempted to get the victim in a favorable position for the principal to act. See State v. VanDeusen, 160 Conn.App. 815, 832-33, 126 A.3d 604, cert. denied, 320 Conn. 903, 127 A.3d 187 (2015) ; State v. Scheck, 106 Conn.App. 81, 85-87, 940 A.2d 871, cert. denied, 286 Conn. 918, 945 A.2d 979 (2008). Our Supreme Court has opined on the limited circumstances in which the absence of a proof of motive might be sufficient to prove lack of intent: "While motive is not an element of a crime that the state has the burden of proving, the presence of evidence of motive may strengthen the state's case.... It is conceivable that the evidence adduced in a particular case would be so inconclusive that without evidence of motive a judgment of acquittal might be required because the jury could not rationally find that the state had proved the elements of the charged offense beyond a reasonable doubt. In such a case, a judgment of acquittal might be required not because motive was an element of the offense, but because evidence of motive would strengthen the state's otherwise insufficient evidence of an element of the offense, such as identification or intent. There is, however, only a very limited category of cases in which a lack of proof of motive would mandate a judgment of acquittal." (Citation omitted.) State v. Pinnock, 220 Conn. 765, 773, 601 A.2d 521 (1992). The present case is "not in that category." Id., at 773-74, 601 A.2d 521. "The crime proscribed by the provisions of . § 53a-103, is committed completely once a person enters or remains unlawfully in a building with the intent to commit a crime therein.... Therefore, the state need not prove that a completed crime occurred to convict a defendant of burglary." (Citation omitted; emphasis in original; internal quotation marks omitted.) State v. Sherman, 127 Conn.App. 377, 383-84 n. 4, 13 A.3d 1138 (2011). Neither the defendant nor Taylor testified at trial that the defendant had injured anyone directly while in apartment 101. Lashika testified, however, that the defendant had told her, in seemingly contradictory terms, that he had "roughed somebody up" while in the apartment, but had not hurt or killed anyone. General Statutes § 53a-8 (a) provides: "A person, acting with the mental state required for commission of an offense, who solicits, requests, commands, importunes or intentionally aids another person to engage in conduct which constitutes an offense shall be criminally liable for such conduct and may be prosecuted and punished as if he were the principal offender." Although "[a]n accessory must have both the intent to help the principal and the intent to commit the crime"; State v. Vincent, 194 Conn. 198, 207, 479 A.2d 237 (1984) ; "[t]he mental state of an aider and abettor incorporated in § 53a-8 does not require that the accused know of or endorse every act of his coparticipant in crime." State v. McCalpine, 190 Conn. 822, 832, 463 A.2d 545 (1983). "Although we note that our Supreme Court recently granted certification to decide whether Kitchens should be overruled in State v. Herring, 151 Conn.App. 154, 94 A.3d 688, cert. granted, 314 Conn. 914, 100 A.3d 849 (2014), the holding in Kitchens presently remains binding upon this court." (Internal quotation marks omitted.) State v. Young, 161 Conn.App. 552, 562 n. 5, 129 A.3d 127 (2015). Neither of the court's drafts of its proposed charges is in the record or was otherwise submitted to this court. We rely on the preceding statements, presented by the defendant in his January 22, 2014 renewed motion for a judgment of acquittal or, in the alternative, for a new trial, to the extent that the state has not disputed them and nothing in the record contradicts them. See State v. Bharrat, 129 Conn.App. 1, 17 n. 9, 20 A.3d 9 (relying on factual assertions in state's brief that prior versions of charges not contained in record "encompassed the same instructions that the court ultimately delivered to the jury"), cert. denied, 302 Conn. 905, 23 A.3d 1243 (2011). In his posttrial motion, however, the defendant provided greater detail, noting that "the felony murder charge was revised after counsel for both parties consulted and agreed that the [trial court's] instruction was insufficient because it failed to articulate the elements of burglary, the predicate offense for felony murder." In particular, the court provided the following instructions on the third element of felony murder: "The third element is that the defendant or another participant caused the death of the decedent named in each count while in the course of and in furtherance of the commission of the crime of burglary. "This means that the death occurred during the commission of the burglary and in the course of carrying out its objective. And that objective was an assault. "Now, in the course of the commission of the burglary means during any part of the defendant's participation in the burglary. The phrase, in the course of the commission, is a time limitation and means conduct occurring immediately before the commission or during the commission of the burglary and in the course of carrying out its objective. "Thus, the death of the decedent named in each count must have occurred somewhere within the time span of the occurrence of the facts which constitute the burglary and in the course of carrying out its objective. "Also, the immediate murder of a person to eliminate a witness to a crime or to avoid detection is also in the course of the commission. In this regard, if you find one or more persons-or one or more of the decedents, I should say-was killed simply to eliminate him as a witness to the crime or to avoid detection, that killing is also in the course of the commission of the underlying felony. "In furtherance of the burglary means that the killing must be in some way causally connected to or as a result of the burglary. The actions of the defendant that cause the death of the decedent named in each count must be done to aid the burglary in some way or to further the purpose of the burglary. "It does not matter that the act that caused the death may have been committed unintentionally rather than with the intention to cause. The defendant is as guilty when committing this form of murder as he would be if he had intentionally committed the act that caused the death." Defense counsel stated the following: "On the felony murder instruction we had substituted proposed language on the 'in the course of' language to-that defined proximate cause. We had also included language that further defined 'in furtherance' that was taken from the Supreme Court decision[s] of State v. Allen [216 Conn. 367, 579 A.2d 1066 (1990) ] and State v. Young [191 Conn. 636, 469 A.2d 1189 (1983) ]. Those citations are in the request. "We had also articulated language from New York courts, which had been cited in the Allen case, that were consistent with our theory of defense, which is that it cannot be in furtherance of if it was-the homicide was committed for the personal motive of one of the participants involved. "Your Honor had added language to the 'in the course of' element to say that it could happen in the course of the burglary or in the course of carrying out its objective. And the carrying out of its objective portion, we submit, is not consistent with the law." The following exchange took place between the court and defense counsel: "The Court: I will say-and I appreciate your wish to articulate-but to the extent-just so that you have your record protected, to the extent that you filed a request to charge and I have not given the proposed instructions, I acknowledge that I have not . and you have those preserved. "[Defense Counsel]: Then the only thing I'll add just because it's not-it's the-Your Honor added language instead of failing to . incorporate what we proposed, is on the affirmative defense.... "The Court: Well-but again, I would say, if I failed to charge either by way of addition or subtraction, any deviation from your request to charge, I'll acknowledge that and you can have that on the record." (Emphasis added.) We note that both Paige and Johnson involved whether a party subsequently had waived an issue initially preserved by a request to charge by failing to also take an exception to the charge and involved slightly different factual circumstances, in that the defendant filed a request to charge, the court either failed completely to include the charge as given or omitted certain paragraphs from the requested language, and the defendant failed to take an explicit exception to the language. See State v. Johnson, supra, 316 Conn. at 53-57, 111 A.3d 436 ; State v. Paige, supra, 304 Conn. at 438-46, 40 A.3d 279. We do not believe, however, that the language acts solely as a gloss on the "in furtherance of" prong. See part II A 2 of this opinion. We, therefore, do not have to address whether the defendant's exception to the charge as given sufficiently stated the ground for the exception to preserve the claim on appeal. The defendant challenges three instances of the phrase "in the course of carrying out its objective" in the trial court's instructions to the jury on the third element of felony murder. The latter two such instances distinctly occurred during the trial court's discussion of the "in the course of" prong. In the first such instance, however, the trial court used the phrase in precisely the same manner that the defendant did in his request to charge. Thus, although the gravamen of the defendant's claim survives, the defendant cannot rely on this first instance because any error arising from it was induced. The defendant does not contest, however, that the actions which led to the victim's death occurred while the Aquarts were still in the apartment. The court, however, held that it was not reasonably possible that the jury was misled due to the remainder of the charge. See State v. Scognamiglio, supra, 202 Conn. at 26-28, 519 A.2d 607. "The third element [of felony murder] is that the defendant or another participant caused the death of <insert name of decedent> while in the course of, and in furtherance of, the commission or attempted commission of the crime of <insert underlying felony>, or, in immediate flight from the crime. This means that the death occurred during the commission of the <insert underlying felony> and in the course of carrying out its objective." Connecticut Criminal Jury Instructions (4th Ed.2008 [Rev. to November 17, 2015] ) § 5.4-1, available at http://jud.ct.gov/ji/criminal/Part5/5.4-1.htm (last visited April 29, 2016). In In re Michael B., supra, 36 Conn.App. at 373, 650 A.2d 1251, there was no direct evidence that the respondent had entered the home with the residents' permission, but circumstantial evidence supported an inference that the respondent had entered the residence in the late morning, when he knew none of the residents would be home. Further, although there was no direct evidence that the respondent had possessed the intent when he had entered the residence, there was circumstantial evidence that he had formed such an intent while he unlawfully remained when, inter alia, he shot the residents' dog and fired bullets into the bedrooms of the residents in the late morning or early afternoon. Id., at 367, 373-74, 650 A.2d 1251. Thus, as evidence suggested that the two deaths at issue occurred between 2:30 and 3:30 p.m. when the two of the residents returned home; id., at 367-68, 650 A.2d 1251 ; any burglary pursuant to § 53a-103 was potentially ongoing for several hours prior to the residents' deaths. See id., at 373-74, 650 A.2d 1251. Accordingly, we also reject the defendant's unpreserved claim that this same alleged instructional error necessitates a new trial on the kidnapping count as well. The trial court offered the following instructions: "The first element is that the defendant, acting either alone or with one or more person, committed the crime of burglary. Here, of course, the state claims that the defendant acted with one or more persons. "For purposes of the crime of felony murder, the state must prove that the defendant committed a burglary. The gist of the crime of burglary is the knowing and unlawful entry into a building with the intent to commit a crime therein.... "The state claims that the defendant intended to commit the crime of assault. An assault is the intention to cause physical injury to another person, coupled with causing such injury to such person or to a third person." The court then clarified what was required for the jury to find that the defendant acted intentionally and the manner in which the jury could determine such behavior before repeating that "the burden of proving intent beyond a reasonable doubt is on the state." The state does not contest that this claim is preserved. Relying on New York cases, the defendant in Allen requested the following instructions: "8. A murder for personal motive is an example of a death that is so far outside the ambit of the plan of the felony and its execution as to be unrelated to them. A murder for personal motive, then, is not a death in furtherance of the underlying felony.... "9. Similarly, where a felon kills someone during the commission of a felony, but in a separate and distinct act and to satisfy his own end, his accomplice in the felony is not guilty of murder." (Citation omitted; internal quotation marks omitted.) State v. Allen, supra, 216 Conn. at 386 n. 8, 579 A.2d 1066. "Specifically, the trial court in Allen instructed: [T]he State . would have to prove that the death of [the victim] was caused by [the defendant] or [his accomplice] in the course of, and in furtherance of the crimes of either burglary or robbery. The phrase in furtherance of such crime imposes the requirement of a logical nexus, that is a connection between the felony and the homicide. The connection between the underlying felony and homicide must be more than the mere coincidence of time and place. The nexus or connection must be one of logic or plan. This means that the felony murder statute excludes those deaths which are so far outside the plan of the felony and its execution as to be unrelated to that. In other words, a felony murder does not include any killing incidentally committed with the felony but only includes those felonies in the attempted execution of the felony of burglary and robbery. Although the homicide itself need not be in the common design, the act which results in death must be in furtherance of the unlawful purpose. In other words, [the victim's] death must have been caused in furtherance of committing the burglary or robbery and not merely incidental to it." (Internal quotation marks omitted.) State v. Allen, supra, 216 Conn. at 387-88, 579 A.2d 1066. "Pursuant to § 53a-54c, if a defendant charged with felony murder was not the sole participant in the underlying crime, that defendant may claim as an affirmative defense that he or she: (1) [d]id not commit the homicidal act or in any way solicit, request, command, importune, cause or aid the commission thereof; and (2) was not armed with a deadly weapon, or any dangerous instrument; and (3) had no reasonable ground to believe that any other participant was armed with such a weapon or instrument; and (4) had no reasonable ground to believe that any other participant intended to engage in conduct likely to result in death or serious physical injury. The defense is only effective if all four elements are met. The burden of proving these elements is on the defendant, who must prove their existence by a preponderance of the evidence." (Internal quotation marks omitted.) State v. Small, 242 Conn. 93, 99-100, 700 A.2d 617 (1997). General Statutes § 53a-14 provides: "In any prosecution for an offense, it shall be a defense that the defendant engaged in the proscribed conduct because he was coerced by the use or threatened imminent use of physical force upon him or a third person, which force or threatened force a person of reasonable firmness in his situation would have been unable to resist. The defense of duress as defined in this section shall not be available to a person who intentionally or recklessly places himself in a situation in which it is probable that he will be subjected to duress." We recognize that there was some testimony that Womble kept a table leg in apartment 211 and that the blood spatter located in apartment 101 would be consistent with the use of either a baseball bat or a table leg. Nevertheless, the weight of the testimony at trial, including the statements which the defendant's sister attributed to him, concerned baseball bats being brought to apartment 101, subsequently used in the murders, and discarded afterward.

12484826

HSBC BANK USA, NATIONAL ASSOCIATION v. Camille LAHR et al.

HSBC Bank USA, Nat'l Ass'n v. Lahr

2016-05-03

No. 37266.

1064

1069

138 A.3d 1064

138

West's Atlantic Reporter, Third Series

Connecticut Appellate Court

Connecticut

2021-08-27T20:57:13.994284+00:00

Fastcase

DiPENTIMA, C.J., and MULLINS and NORCOTT, Js.

HSBC BANK USA, NATIONAL ASSOCIATION v. Camille LAHR et al.

HSBC BANK USA, NATIONAL ASSOCIATION v. Camille LAHR et al. No. 37266. Appellate Court of Connecticut. Argued Dec. 7, 2015. Decided May 3, 2016. Nicholas Stanisci, Stratford, for the appellant (named defendant). William R. Dziedzic, Farmington, for the appellee (plaintiff). DiPENTIMA, C.J., and MULLINS and NORCOTT, Js.

2086

12780

DiPENTIMA, C.J. The defendant Camille Lahr, also known as Camille M. Russo-Lahr, appeals from the judgment of strict foreclosure rendered in favor of the plaintiff, HSBC Bank USA, National Association. On appeal, she claims that the court improperly denied her motion to open the judgment of strict foreclosure. Specifically, she argues that no further actions should have occurred in the case after she had filed a suggestion of death regarding the defendant Charles Lahr (decedent) until the plaintiff applied for an order to substitute the decedent's executor or administrator as provided in General Statutes § 52-599, the survival of cause of action statute. We affirm the judgment of the trial court. The following facts and procedural history are relevant to this appeal. On January 3, 2013, the plaintiff commenced a foreclosure action against the defendant and the decedent. In its complaint, the plaintiff alleged that they owed Opteum Financial Services, LLC, $187,000, and that this debt was secured by a mortgage on property located at 155 Lambert Drive in Stratford. The mortgage was transferred to the plaintiff, and it became the party entitled to collect the debt. The plaintiff claimed that the note and mortgage were in default by virtue of nonpayment as of June 1, 2011. The plaintiff sought a foreclosure of the mortgage, immediate possession of the property, a deficiency judgment, the appointment of a receiver to collect rents and profits, reasonable attorney's fees, and other such relief as required. On May 16, 2014, the court granted the plaintiff's motion to default the defendant for failing to plead. On June 5, 2014, the court granted the plaintiff's motion to default the decedent for failing to appear. On April 9, 2014, the plaintiff moved for a judgment of strict foreclosure. The defendant filed a suggestion of death on August 11, 2014. It stated that the decedent had died on January 27, 2014. It also referenced § 52-599 and indicated that "the action should be stayed until the plaintiff proceeds pursuant to [that statute]." On August 18, 2014, the court granted the plaintiff's motion for a judgment of strict foreclosure. It found the fair market value of the property to be $149,000, the debt to be $217,302.20, and attorney's fees in the amount of $3100. It also set the law day for October 14, 2014. The defendant's counsel did not attend the hearing on August 18, 2014. On September 9, 2014, the defendant moved to open the judgment of strict foreclosure. She again argued that because a suggestion of death had been filed prior to the rendering of judgment, the court should not have proceeded until the plaintiff complied with § 52-599. The court heard argument on September 29, 2014. The defendant's counsel requested that the court open and vacate the judgment of strict foreclosure because it was not "proper" for the court to render a judgment until the plaintiff substituted a representative of the estate for the decedent. The plaintiff's counsel countered that such a substitution was unnecessary because the plaintiff had filed a lis pendens on the land records, and, therefore, pursuant to General Statutes § 52-325, it was not obligated or required to take any further action. After hearing further argument, the court denied the defendant's motion. It set the new law day for November 18, 2014. This appeal followed. In her appellate brief, the defendant iterated her argument that § 52-599 caused the case to have no vitality after the suggestion of death had been filed and until a representative of the estate had been substituted for the decedent. She further contended that § 52-599 and 52-325 may be harmonized by requiring the plaintiff to substitute the decedent's executor following which § 52-325 would make all further proceedings binding on subsequent takers of the property. The plaintiff countered, inter alia, that § 52-325 controls, and that it was not required to make any substitution in this case. Following oral argument before this court, we ordered the parties to file supplemental briefs to address the applicability and effect of General Statutes § 52-600 in the present case. Section 52-600 provides: "If there are two or more plaintiffs or defendants in any action, one or more of whom die before final judgment, and the cause of action survives to or against the others, the action shall not abate by reason of the death. After the death is noted on the record, the action shall proceed." We conclude that as a result of § 52-600, the trial court did not abuse its discretion in denying the defendant's motion to open the judgment. As an initial matter, we identify the limited issue before us. Only the defendant has appealed from the denial of her motion to open the judgment of strict foreclosure rendered on August 18, 2014. "A motion to open and vacate a judgment . is addressed to the [trial] court's discretion, and the action of the trial court will not be disturbed on appeal unless it 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.) Bank of America, N.A. v. Thomas, 151 Conn.App. 790, 798, 96 A.3d 624 (2014) ; see also Wells Fargo Bank Minnesota, N.A. v. Russo, 148 Conn.App. 302, 306, 84 A.3d 1204, cert. denied, 311 Conn. 950, 91 A.3d 462 (2014). In the present case, the court rejected the defendant's argument that § 52-599 "stopped" or abated the proceedings until the plaintiff substituted a representative of the decedent's estate. We agree with this determination by the court, albeit on a different basis than the court's apparent acceptance of the plaintiff's position regarding § 52-325. Instead, we note that § 52-600 applies in the present case because the plaintiff had named both the defendant and the decedent in this foreclosure action. That statute specifically states that "[i]f there are two or more . defendants in any action, one or more of whom die before final judgment, and the cause of action survives to or against the others, the action shall not abate by reason of the death." General Statutes § 52-600. This application of § 52-600 is supported by our case law. For example, in Rocque v. DeMilo & Co., 85 Conn.App. 512, 522, 857 A.2d 976 (2004), the surviving defendants argued that the death of Frank DeMilo abated the action and deprived the court of subject matter jurisdiction. We rejected this argument, concluding: "The defendants, however, appear to overlook the fact that Frank DeMilo was one of three defendants in the action and that, after his death, the action continued as to his two codefendants.... As the action continued against the remaining defendants, the court maintained authority to issue orders regarding pending motions that affected the remaining defendants, including the motion to dismiss the counterclaim. Pursuant to the express statutory authority of § 52-600, the death of Frank DeMilo did not stay the proceedings as to the remaining defendants, and the court, therefore, retained jurisdiction to rule on the motion to dismiss." (Citation omitted; internal quotation marks omitted.) Id.; see also Warner v. Lancia, 46 Conn.App. 150, 153, 698 A.2d 938 (1997) (pursuant to § 52-600, case could proceed against surviving defendant regardless of whether executrix was substituted for deceased defendant). In the present case, the passing of the decedent did not stay the proceedings as to the defendant, the sole appellant in this case. Accordingly, we agree, albeit on different grounds, with the trial court that the foreclosure action in the present case was not abated following the suggestion of the death filed by the defendant. See Studer v. Studer, 320 Conn. 483, 486, 131 A.3d 240 (2016) (judgment of trial court may be affirmed on different grounds). The court, therefore, did not abuse its discretion in denying the defendant's motion to open the judgment of strict foreclosure. The judgment is affirmed and the case remanded for the purpose of setting new law days. In this opinion the other judges concurred. The plaintiff also named Mortgage Electronic Registration Systems, Inc., as a defendant by virtue of that entity's prior mortgage on the property. For convenience, we refer in this opinion to Camille Lahr as the defendant. One decision from the Superior Court has noted that in the absence of any appellate authority, "[a] suggestion of death, although not formally recognized by the Practice Book, is the preferred method of compliance with the written notification requirement of § 52-599." Liljehult v. Johnson, Superior Court, Judicial District of New London, Docket No. CV-11-6010384S, 2013 WL 5969170 (October 11, 2013). The defendant attached a copy of the certificate of death to the suggestion of death filed with the court. "The law governing strict foreclosure lies at the crossroads between the equitable remedies provided by the judiciary and the statutory remedies provided by the legislature.... Because foreclosure is peculiarly an equitable action . the court may entertain such questions as are necessary to be determined in order that complete justice may be done.... In exercising its equitable discretion, however, the court must comply with mandatory statutory provisions that limit the remedies available to a foreclosing mortgagee.... It is our adjudicatory responsibility to find the appropriate accommodation between applicable judicial and statutory principles. Just as the legislature is presumed to enact legislation that renders the body of the law coherent and consistent, rather than contradictory and inconsistent . [so] courts must discharge their responsibility, in case by case adjudication, to assure that the body of the law-both common and statutory-remains coherent and consistent." (Internal quotation marks omitted.) Wells Fargo Bank, N.A. v. Melahn, 148 Conn.App. 1, 7, 85 A.3d 1 (2014). "A notice of lis pendens is appropriate in any case where the outcome of the case will in some way, either directly or indirectly, affect the title to or an interest in real property." Corsino v. Telesca, 32 Conn.App. 627, 632, 630 A.2d 154, cert. denied, 227 Conn. 931, 632 A.2d 703 (1993). General Statutes § 52-325(a) provides in relevant part: "In any action in a court of this state . (1) the plaintiff or his attorney, at the time the action is commenced or afterwards . may cause to be recorded in the office of the town clerk of each town in which the property is situated a notice of lis pendens, containing the names of the parties, the nature and object of the action, the court to which it is returnable and the term, session or return day thereof, the date of the process and the description of the property, except that no such notice may be recorded in an action that alleges an illegal, invalid or defective transfer of an interest in real property unless the complaint or affirmative cause of action contains the date of the initial illegal, invalid or defective transfer of an interest in real property and such transfer has occurred less than sixty years prior to the commencement of such action. Such notice shall, from the time of the recording only, be notice to any person thereafter acquiring any interest in such property of the pendency of the action; and each person whose conveyance or encumbrance is subsequently executed or subsequently recorded or whose interest is thereafter obtained, by descent or otherwise, shall be deemed to be a subsequent purchaser or encumbrancer, and shall be bound by all proceedings taken after the recording of such notice, to the same extent as if he were made a party to the action. For the purpose of this section an action shall be deemed to be pending from the time of the recording of such notice; provided such notice shall be of no avail unless service of the process is completed within the time provided by law...." (Emphasis added.) The defendant argues that the interpretation of the various statutes at issue in this case requires this court to employ the plenary standard of review. We conclude, for the reasons stated in our analysis, and the procedural posture of this appeal, that the appropriate standard of review is abuse of discretion.

12484825

David M. FISHBEIN v. Toni MENCHETTI.

Fishbein v. Menchetti

2016-04-26

No. 37638.

1061

1064

138 A.3d 1061

138

West's Atlantic Reporter, Third Series

Connecticut Appellate Court

Connecticut

2021-08-27T20:57:13.994284+00:00

Fastcase

DiPENTIMA, C.J., and ALVORD and SHELDON, Js.

David M. FISHBEIN v. Toni MENCHETTI.

David M. FISHBEIN v. Toni MENCHETTI. No. 37638. Appellate Court of Connecticut. Argued March 10, 2016. Decided April 26, 2016. Richard P. Savitt, for the appellant (plaintiff). Gerald M. Still, for the appellee (defendant). DiPENTIMA, C.J., and ALVORD and SHELDON, Js.

1505

9100

PER CURIAM. The plaintiff, David M. Fishbein, appeals from the judgment, after a trial to the court, rendered in part in favor of the defendant, Toni Menchetti. On appeal, the plaintiff's primary claim is that the court improperly found that checks he issued on behalf of the defendant to a hospital and a medical group constituted gifts and not loans. We disagree, and, accordingly, affirm the judgment of the trial court. The following procedural history and facts, as set forth in the court's memorandum of decision, are relevant to this appeal. The parties began a romantic relationship in 2008, and lived together for a period of time. The defendant filed a voluntary bankruptcy petition in 2009. Her financial difficulties arose, in part, from her health issues, namely, significant back problems that caused her excruciating pain and limited her mobility. At some point in 2008, it was determined that the defendant required surgery. The defendant's health insurance provider declined coverage for her disc replacement surgery. The plaintiff issued two checks to pay the defendant's surgical expenses. The first check was payable to the Yale Medical Group in the amount of $33,500, and the second was payable to Yale-New Haven Hospital in the amount of $33,000. The plaintiff made the notation "Toni Menchetti loan from David Fishbein" on both checks. The plaintiff also provided additional loans to the defendant for other transactions not relevant to the plaintiff's appeal. At some point, the parties' romantic relationship ended. By service of a complaint dated August 28, 2012, the plaintiff commenced the present action against the defendant. He claimed that he had loaned the defendant a total of $71,769.29 and that the defendant had breached her contractual obligation to repay that amount. The plaintiff also alleged that he was entitled to recover all sums that he had loaned to the defendant under the equitable theories of unjust enrichment and quantum meruit. After a trial, the court issued a memorandum of decision on January 6, 2015. It determined that the plaintiff's breach of contract claim was barred by the statute of frauds. See General Statutes § 52-550(a)(6). With respect to the plaintiff's claims of unjust enrichment and quantum meruit, the court determined that the dispositive issue was whether the two checks written by the plaintiff constituted loans or gifts. The court noted that the plaintiff wrote the words "Toni Menchetti loan from David Fishbein" on the memorandum line of the two checks written for the defendant's surgery. Furthermore, the court observed that at the defendant's bankruptcy hearing, the plaintiff, attending as a " 'friend of the debtor,' " stated that he loaned the defendant money for her surgical expenses and expected to be repaid from the sale of properties owned by the defendant. The court, however, also credited the defendant's witnesses, all of whom "testified that the plaintiff told them that he intended to gift the surgery payments to the [defendant]." The court noted that these witnesses had not been impeached and that it found them credible. The court concluded: "The court finds that the plaintiff has presented evidence that, during the [bankruptcy] hearing, he intended to be reimbursed for the surgery payments. The defendant has presented evidence, however, that subsequent to the [bankruptcy] hearing, the plaintiff represented that he was going to pay and that he did not expect to be reimbursed. The court infers from these two facts that subsequent to the [bankruptcy] hearing, the plaintiff changed his mind...." As a result of its finding that the plaintiff had gifted the money to the defendant for her back surgery, the court determined that the plaintiff was not entitled to recover the $66,500 on any equitable theory. The court further concluded that the plaintiff's additional payments to the defendant for legal fees and insurance payments, in the amount of $5470, were not gifts. Accordingly, the court determined that the defendant had been unjustly enriched by her retention of that money and ordered her to repay it to the plaintiff. The court did not award any interest. This appeal followed. On appeal, the plaintiff first claims that the defendant committed a fraud on the court. This issue was raised for the first time in the plaintiff's postjudgment motion "to set aside or open judgment" and "to reargue," which was filed on January 28, 2015. The plaintiff, however, failed to raise this fraud claim at trial or in his posttrial brief; the first time it was mentioned was in the post-judgment motion. His appeal was taken from the court's judgment of January 6, 2015, and he has not amended the appeal to include the court's July 6, 2015 denial of his postjudgment motion. As a result, we decline to review this claim. See Jewett v. Jewett, 265 Conn. 669, 673 n. 4, 830 A.2d 193 (2003) ; Brown v. Brown, 190 Conn. 345, 350-51, 460 A.2d 1287 (1983) ; see also Practice Book § 61-9. The plaintiff's next claim of error is premised on his assumption that the court based its decision that the money he provided for the defendant's surgery constituted a gift in contemplation of marriage. He further contends that this was improper as a result of the defendant's fraudulent conduct. The flaw in this reasoning is that the trial court did not address the issue of a gift made in contemplation of marriage, and never used those words in its decision. As the plaintiff's claim is based on a faulty interpretation of the court's memorandum of decision, we need not address it further. See Moasser v. Becker, 107 Conn.App. 130, 142, 946 A.2d 230 (2008) (mischaracterization of trial proceedings prevents appellate review); Crotty v. Naugatuck, 25 Conn.App. 599, 603 n. 5, 595 A.2d 928 (1991) (claim based on mischaracterization of trial court's memorandum of decision has no merit). The plaintiff next claims that the court did not act reasonably and abused its discretion in finding that he made a gift to the defendant for her back surgery. To the extent that this claim is made with respect to the court's denial of his postjudgment motion to open and reargue, we already have explained that we will not review claims regarding that motion because he failed to amend his appeal to challenge that ruling. To the extent that the plaintiff has challenged the court's determination that the money for the surgery constituted gifts, we conclude such a challenge is without merit. Our Supreme Court has stated that the "burden of proving the essential elements of such a valid gift rests upon the party claiming the gift." Bergen v. Bergen, 177 Conn. 53, 56, 411 A.2d 22 (1979). "A gift is the transfer of property without consideration.... To make a valid gift inter vivos, the donor must part with control of the property which is the subject of the gift with an intent that title shall pass immediately and irrevocably to the donee." (Internal quotation marks omitted.) In re Probate Appeal of Mikoshi, 124 Conn.App. 536, 540, 5 A.3d 569 (2010) ; see also Wasniewski v. Quick & Reilly, Inc., 292 Conn. 98, 103-104, 971 A.2d 8 (2009). We note that it is the sole province of the trial court, as the trier of fact, to determine the credibility of the witnesses. Wasniewski v. Quick & Reilly, Inc., supra, 292 Conn. at 103, 971 A.2d 8. The court's determination that the defendant's witnesses were credible is beyond the scope of this court's review. Furthermore, we "give great deference to the trial court's factual determination of whether a gift has been made and will uphold the court's finding unless it is 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." (Citations omitted; internal quotation marks omitted.) Id. As there was evidence before the court to support its finding that the money paid to Yale-New Haven Hospital and Yale Medical Group on behalf of the defendant for her back surgery constituted a gift, and this court is not left with a firm and definite conviction that a mistake was committed, we cannot say that its finding was clearly erroneous. Accordingly, this claim must fail. The judgment is affirmed. The trial court denied this motion on July 6, 2015, stating that "it was not timely and it raised issues already addressed by the court." With respect to the other claims of error listed in the plaintiff's statement of issues, or mentioned briefly in his appellate brief, we decline to review them because they are not briefed adequately. See Carmichael v. Stonkus, 133 Conn.App. 302, 307, 34 A.3d 1026, cert. denied, 304 Conn. 911, 39 A.3d 1121 (2012).

12502467

Ann BROWNING et al. v. Van BRUNT, DuBiago & Co., LLC, et al.

Browning v. Brunt

2018-11-27

SC 20010

1123

1132

195 A.3d 1123

195

West's Atlantic Reporter, Third Series

Connecticut Supreme Court

Connecticut

2021-08-27T20:57:39.404739+00:00

Fastcase

Ann BROWNING et al. v. Van BRUNT, DuBiago & Co., LLC, et al.

Ann BROWNING et al. v. Van BRUNT, DuBiago & Co., LLC, et al. SC 20010 Supreme Court of Connecticut. Argued March 28, 2018 Officially released November 27, 2018 Kenneth A. Votre, for the appellants (plaintiffs). Daniel J. Krisch, with whom, on the brief, were Jeffrey F. Gostyla and Cory D. Olson, pro hac vice, for the appellees (defendant Thomas Olander et al.). Palmer, McDonald, Robinson, D'Auria, Mullins, Kahn and Vertefeuille, Js. The listing of justices reflects their seniority status on this court as of the date of oral argument.

4808

29718

KAHN, J. The sole question presented in this appeal is whether the trust beneficiaries are the proper parties to bring an action against third parties on behalf of the trust. The plaintiffs-Ann Browning, Richard Browning, Lance Browning, Karen Guinta, and Jill Milligan-are beneficiaries of a trust, and appeal from the judgment of the trial court dismissing their breach of contract claim against the defendants Dougherty & Company, LLC (Dougherty), the financial advisor for the trust, and Thomas Olander, an employee of Dougherty. Although the parties agree that the general rule is that beneficiaries of a trust lack standing to bring an action against a third party for liability to the trust, they disagree that the general rule applies under the facts of the present case. See 4 Restatement (Third), Trusts, § 107, p. 102 (2012). Specifically, the plaintiffs claim that they fit within an exception that allows beneficiaries to bring an action against third parties if the trustee improperly refuses or neglects to do so. The defendants respond that the plaintiffs do not fit within the exception to the general rule because they failed to demand that the current trustee bring an action and they did not allege in their complaint that the current trustee improperly neglected to sue the defendants. The defendants further argue that, because standing implicates subject matter jurisdiction, they properly raised the issue by way of a motion to dismiss. We conclude that the trial court properly determined that it lacked subject matter jurisdiction over the claim and, therefore, that the trial court properly granted the motion to dismiss. Accordingly, we affirm the judgment of the trial court. The allegations of the complaint, together with undisputed facts as evidenced in the record, establish the following factual and procedural background relevant to our resolution of this appeal. See, e.g., Cuozzo v. Orange , 315 Conn. 606, 615, 109 A.3d 903 (2015) (in reviewing trial court decision on motion to dismiss, reviewing court may consider facts as established by " 'the complaint supplemented by undisputed facts evidenced in the record' "). On June 23, 1993, Byram D. Browning (Byram) established a revocable, inter vivos trust for the benefit of his children, the five plaintiffs and their sister Victoria Peters. The trust corpus consisted of thirteen separate investment bonds and securities. When Byram died in May, 2006, the trust corpus was valued at $836,000, and Peters became the successor trustee. A secrecy clause in the trust prevented Peters from disclosing the percentage of the assets left to each of her siblings for five years, and from distributing any funds from the trust to the plaintiffs and herself until five years after Byram's death. Between 2006 and 2010, Peters drained hundreds of thousands of dollars from the trust for her personal use. In 2008, unable to obtain any information from Peters about the state of the trust, at least one of the plaintiffs filed a petition requesting that the Probate Court for the district of Darien-New Canaan order Peters to produce an accounting and disclose the terms of the trust. By June, 2010, when Peters had yet to provide any information regarding the trust, the Probate Court ordered her to produce an accounting, which revealed that the trust funds had become inseparably commingled with Peters' personal accounts and that the trust suffered from improper recordkeeping. Consequently, the Probate Court determined that Peters breached various fiduciary duties owed to the plaintiffs and ordered her to pay $182,553.48 in accounting and legal fees. The Probate Court accepted Peters' resignation as trustee and appointed Van Brunt, DuBiago & Co., LLC (Van Brunt), an accounting firm, as the successor trustee. The plaintiffs contend that at the time Van Brunt assumed its role as successor trustee, less than $70,000 remained in the trust, and, consequently, Nicholas DuBiago, the managing partner of Van Brunt, informed the parties that "it would be too costly [given the funds remaining in the trust] to reconstruct a complete and comprehensive accounting ." See footnote 2 of this opinion. The plaintiffs thereafter brought the present action, claiming breach of contract by the defendants. The complaint may be read to suggest that the defendants' contractual duty arose from the fact that, pursuant to the deed of trust signed by Byram, the assets of the trust were held in an investment account under the defendants' full possession and control. One provision in the deed of trust precluded the trustee from liquidating the assets of the trust and required all income, after taxes and expenses, to be reinvested. The plaintiffs claimed that the defendants breached the contractual duties that were allegedly created by the deed of trust by allowing Peters "to withdraw exorbitant amounts of money" from the trust. They did not allege that Van Brunt improperly refused to bring an action on behalf of the trust or that they had requested that it do so. Nor did the complaint allege that Van Brunt improperly neglected to bring an action on behalf of the trust. Rather, the plaintiffs' breach of contract claim against the defendants focused primarily on the defendants' failure to prevent Peters from violating her obligations under the deed of trust, and its only reference to Van Brunt was that its managing partner, DuBiago, had "determined that distributions from" the trust were "wrongfully withdrawn" by Peters. The defendants moved to dismiss count three of the complaint for lack of subject matter jurisdiction. They argued that the plaintiffs lacked standing to bring their claim under Connecticut law, which provides that the trustee is the appropriate party to bring an action against third parties for liability to the trust. The plaintiffs filed a memorandum in opposition to the defendants' motion to dismiss, contending that their claim fell within the exception that allows beneficiaries to bring an action against a third party after the trustee improperly refuses or neglects to bring the action on behalf of the trust. In their reply, the defendants responded that the plaintiffs failed to qualify for the exception because they never alleged that their current trustee, Van Brunt, improperly refused or neglected to pursue a claim against the defendants. Following argument at short calendar on the defendants' motion, the trial court dismissed the plaintiffs' breach of contract claim against the defendants, holding that, as beneficiaries, the plaintiffs lacked standing to maintain a breach of contract action against third parties for liability to the trust. The trial court reasoned that the plaintiffs "have not alleged that they first asked [Van Brunt] . to bring an action, and [Van Brunt] refused. They have offered no evidence to suggest that [Van Brunt] was somehow implicated in the alleged wrongdoing of . Peters . or otherwise acted imprudently so as to give them standing as beneficiaries to pursue their claims directly." Accordingly, the trial court rendered judgment for the defendants. This appeal followed. Because the issue in this appeal presents a question of law, we apply de novo review. See, e.g., Cuozzo v. Orange , supra, 315 Conn. at 614, 109 A.3d 903. Because the answer to the question of whether trust beneficiaries are prohibited from bringing an action against third parties on behalf of the trust determines whether the court's subject matter jurisdiction is implicated, we begin our discussion by addressing it. We conclude that the prohibition is based on a lack of standing. We find it helpful to review the general principles governing standing to sue. The question of whether a party has standing to bring an action implicates the court's subject matter jurisdiction. Arciniega v. Feliciano , 329 Conn. 293, 300, 184 A.3d 1202 (2018). "[A] court lacks discretion to consider the merits of a case over which it is without jurisdiction ." (Internal quotation marks omitted.) Reinke v. Sing , 328 Conn. 376, 382, 179 A.3d 769 (2018). Accordingly, "even if a challenge has not been raised to a party's standing, the court is obliged to consider it once it has come to the court's attention." Arciniega v. Feliciano , supra, at 300, 184 A.3d 1202 ; see also Fairfield Merrittview Ltd. Partnership v. Norwalk , 320 Conn. 535, 548, 133 A.3d 140 (2016). "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 . Standing requires no more than a colorable claim of injury; a [party] ordinarily establishes . standing by allegations of injury [that he or she has suffered or is likely to suffer]. Similarly, standing exists to attempt to vindicate arguably protected interests.... "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 challenged action], as distinguished from a general interest, such as is the concern of all members of the community as a whole. Second, the party claiming aggrievement must successfully establish that this specific personal and legal interest has been specially and injuriously affected by the [challenged action].... 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.) Wilcox v. Webster Ins., Inc. , 294 Conn. 206, 214-15, 982 A.2d 1053 (2009). With these principles in mind, we turn to the text of § 107 (1) of the Restatement (Third) of Trusts, which provides: "A trustee may maintain a proceeding against a third party on behalf of the trust and its beneficiaries." Comment (b) to this subsection explains that it sets forth the general rule: "As holder of the title to trust property . and as the representative of the trust and its beneficiaries, the trustee is normally the appropriate person to bring (and to decide whether to bring) an action against a third party on behalf of the trust. Except as provided in [s]ubsection (2), a beneficiary has no standing to sue a third party on behalf of the trust." 4 Restatement (Third), supra, § 107, comment (b), p. 103. The principle that the trustee, rather than the beneficiaries, is the proper party to sue third parties on behalf of the trust is rooted in the nature of the trustee's interest in the trust res. See id. A right to sue predicated on the nature of one's ownership interest in property is one that is paradigmatically rooted in standing. See, e.g., Wilcox v. Webster Ins., Inc. , supra, 294 Conn. at 214, 982 A.2d 1053 (in order to have standing, party must have " 'a legal or equitable right, title or interest in the subject matter of the controversy' "). The trustee holds legal title to the trust property, and his standing to sue arises from that legal title. See Palmer v. Hartford National Bank & Trust Co. , 160 Conn. 415, 425, 279 A.2d 726 (1971) (relying on trustees' legal title to trust fund in concluding that beneficiaries were not necessary parties to action); see also Naier v. Beckenstein , 131 Conn. App. 638, 646-47, 27 A.3d 104 (interpreting prohibition in § 281 of Restatement [Second] of Trusts to impose, as general rule, jurisdictional bar against beneficiary actions against third parties on basis that beneficiaries lack standing), cert. denied, 303 Conn. 910, 32 A.3d 963 (2011). In addition to having legal title to the trust property, the trustee "usually has its possession and a right to continue in possession, and almost always has all the powers of management and control which are necessary to make the trust property productive and safe. Any wrongful interference with these interests of the normal trustee is therefore a wrong to the trustee and gives him a cause of action for redress or to prevent a continuance of the improper conduct. Although the beneficiary is adversely affected by such acts of a third person, no cause of action inures to him on that account." G. Bogert & G. Bogert, Trusts and Trustees (2d Ed. Rev. 1995) § 869, pp. 112-13. Because the question of whether the plaintiffs, as beneficiaries, have standing to bring the present action implicates the court's subject matter jurisdiction, the proper vehicle to challenge the action is a motion to dismiss. " Practice Book § 10-30 (a) (1) provides in relevant part: 'A motion to dismiss shall be used to assert . lack of jurisdiction over the subject matter .' " Machado v. Taylor , 326 Conn. 396, 399 n.2, 163 A.3d 558 (2017). "A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction." (Internal quotation marks omitted.) Cuozzo v. Orange , supra, 315 Conn. at 614, 109 A.3d 903. Therefore, "[a] motion to dismiss shall be used to assert lack of jurisdiction over the subject matter, 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.) Kizis v. Morse Diesel International, Inc. , 260 Conn. 46, 51, 794 A.2d 498 (2002). By contrast, "[o]rdinarily, a motion to strike is the proper procedural vehicle for challenging the legal sufficiency of a complaint." Connecticut Energy Marketers Assn. v. Dept. of Energy & Environmental Protection , 324 Conn. 362, 370 n.11, 152 A.3d 509 (2016). We now turn to the primary issue presented in this appeal, namely, whether the trial court properly granted the motion to dismiss. "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." (Internal quotation marks omitted.) Cuozzo v. Orange , supra, 315 Conn. at 614, 109 A.3d 903. The plaintiffs contend that they fall under an exception to the general rule that beneficiaries lack standing to bring an action against third parties on behalf of the trust. Specifically, the plaintiffs argue that they meet the exception set forth in § 107 (2) (b) of the Restatement (Third) of Trusts, which provides in relevant part: "A beneficiary may maintain a proceeding related to the trust or its property against a third party . if . the trustee is . improperly failing to protect the beneficiary's interest." The comments to § 107 (2) (b) explain that, in order to demonstrate that they fall under this exception, beneficiaries must demonstrate that the trustee either is improperly refusing or improperly neglecting to bring an action on behalf of the trust. 4 Restatement (Third), supra, § 107, comment (c) (2), pp. 103-104. In their complaint, the plaintiffs have not alleged that Van Brunt either improperly refused or improperly neglected to bring an action against the defendants. We discuss improper refusal and improper neglect in turn. As to improper refusal, this court has held that, in order to invoke the exception on this basis, a beneficiary must first demand that the trustee bring an action against a third party and be refused by the trustee. See Preston v. Preston , 102 Conn. 96, 123, 128 A. 292 (1925) ("[i]t has generally been held that a beneficiary cannot sue the parties at law for any harm done [to] his trust estate without first asking his trustee to bring a proper action and receiving a refusal"). The plaintiffs have not alleged in their complaint that they asked Van Brunt to bring an action against the defendants and it refused. At oral argument before this court, counsel for the plaintiffs clearly conceded that they did not ask Van Brunt to bring an action against the defendants. In light of that concession, the plaintiffs cannot claim that they fall under the exception to the general rule barring them from suing third parties on behalf of the trust on the basis that Van Brunt improperly refused to sue the defendants. The plaintiffs also failed to allege that Van Brunt improperly neglected to bring an action. In reviewing the allegations of the complaint to determine whether the trial court properly granted the motion to dismiss, we are mindful that, although "[i]t is well established that, in determining whether a court has subject matter jurisdiction, every presumption favoring jurisdiction should be indulged"; (internal quotation marks omitted) Financial Consulting, LLC v. Commissioner of Ins. , 315 Conn. 196, 226, 105 A.3d 210 (2014) ; it is also "well settled that [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.) Id. The complaint in the present case does not expressly allege that Van Brunt improperly neglected to bring an action against the defendants. In determining whether the claim survives the motion to dismiss, however, we also consider facts necessarily implied from the allegations. See Cuozzo v. Orange , supra, 315 Conn. at 614, 109 A.3d 903. Our careful review of the entire complaint persuades us that the allegations therein do not necessarily imply factual allegations that Van Brunt improperly neglected to bring an action against the defendants. The plaintiffs rely on the facts alleged in count one of the complaint to argue that count three of the complaint alleged that Van Brunt had knowledge that was sufficient to lead a prudent fiduciary to bring an action against the defendants and that Van Brunt failed to do so. Those facts are not sufficient, however, to give rise to an implication that Van Brunt improperly failed to sue the defendants. Specifically, the first count alleges that Van Brunt knew that Peters' had breached her fiduciary duty to the plaintiffs by repeatedly withdrawing trust funds and commingling the trust assets with her personal funds until only $70,000 remained in the trust account. The plaintiffs' brief suggests that, because the complaint alleges that Van Brunt knew that Peters had stolen money from the trust and had taken the money for her personal use, Van Brunt, as trustee, could have sued the defendants on the basis that they breached their alleged contractual obligations to the plaintiffs by (1) failing to require Peters to follow the terms of the deed of trust and reinvest the income, after taxes and expenses, generated by the trust, (2) allowing Peters to continuously withdraw the investments from the trust despite the deed of trust's provisions and the defendants' knowledge that the plaintiffs' financial interests were being jeopardized, and (3) failing to notify the beneficiaries of Peters' unauthorized actions of withdrawing from the investments in violation of the deed of trust. Although the plaintiffs' allegations, if proven, demonstrate that they suffered harm due to Peters' actions and that the defendants did not take action to prevent the harm, they fall short of demonstrating that Van Brunt improperly failed to sue the defendants for their alleged breach. Nor does the complaint allege that the defendants had any authority to require Peters to reinvest income generated by the trust, to prevent Peters from withdrawing the funds or to inform the plaintiffs of the withdrawals-or that Van Brunt had any knowledge of the defendants' authority to under-take such actions. Additionally, the plaintiffs allege that DuBiago determined that there were insufficient funds in the trust to order a comprehensive accounting, calling into question the wisdom of expending trust funds to obtain the accounting as a basis to sue third parties. As comment (c) (2) to § 107 (2) (b) of the Restatement (Third) of Trusts emphasizes, not only is the trustee generally the proper party to bring an action on behalf of the trust against third parties, the trustee is also the proper person to decide "whether to bring" such an action. Because the allegations in the complaint are not sufficient to establish that Van Brunt improperly failed to bring an action against the defendants, the allegations are insufficient to demonstrate that the plaintiffs had standing to sue, and the trial court properly granted the motion to dismiss. The judgment is affirmed. In this opinion the other justices concurred. The plaintiffs 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. The three count complaint also contained counts brought against two additional defendants: Nicholas DuBiago, and the current trustee, Van Brunt, DuBiago & Co., LLC (Van Brunt), an accounting firm at which DuBiago was managing partner. As to both DuBiago and Van Brunt, count one of the complaint alleged breach of fiduciary duty and count two alleged negligence. Neither of these two counts was subject to the motion to dismiss and neither DuBiago nor Van Brunt was named in the breach of contract claim in count three. For that reason, all subsequent references to the defendants in this opinion are to Dougherty and Olander. We observe that, in its memorandum of decision, the trial court relied on § 281 and 282 of the Restatement (Second) of Trusts. Those two sections deal separately with actions at law by beneficiaries (§ 281) and suits in equity by beneficiaries (§ 282). See 2 Restatement (Second), Trusts § 281 and 282, pp. 42, 44 (1959). Section 107 of the Restatement (Third) of Trusts, which addresses beneficiary standing in any action against a third party, reflects the merger of actions at law and suits in equity and is therefore more consistent with contemporary procedures. We further observe that neither of the parties to the appeal contends that a different rule should apply to equitable, as opposed to legal, claims brought by beneficiaries. Accordingly, in this opinion, we rely on § 107 of the Restatement (Third) of Trusts. The plaintiffs also raise the additional claim that, because the primary dispute between the parties centers on whether the allegations of the complaint are sufficient to demonstrate that the plaintiffs have standing to sue, the defendants should have challenged the action through a motion to strike, not a motion to dismiss. The defendants assert that this claim is not preserved because it was not raised at the trial court. In light of our conclusion that the trial court properly concluded that it lacked subject matter jurisdiction, we need not resolve the question of whether the plaintiffs' additional claim was preserved. Following oral argument, this court ordered the parties to submit supplemental briefs addressing the following three questions: (1) "Are beneficiaries generally prohibited from filing actions against third parties because they lack standing to do so; see [4 Restatement (Third), supra, § 107, comment (b), p. 103]; or because they lack the authority to do so . ?" (2) "In the present case, are the plaintiffs aggrieved even if we conclude that the plaintiffs failed to allege that the current trustee improperly refused or neglected to bring an action against the third-party defendants . and therefore did not adequately allege that they fit within an exception to the general prohibition against trust beneficiaries bringing actions against third parties . ?" And (3) "In light of the first two questions, if we conclude that the plaintiffs did not adequately allege that they fit within an exception to the general prohibition against trust beneficiaries bringing actions against third parties, would the proper vehicle to dispose of the claim have been a motion to dismiss, or a motion to strike, and if a proper vehicle had been a motion to strike is there a valid claim of harmless error . ?" In their supplemental briefs, the parties agree that the threshold question before us relates to the plaintiffs' standing. As we explain in this opinion, the plaintiffs lack standing to bring the present action against the defendants. In light of that conclusion, as well as our conclusion that a motion to dismiss properly may be used to challenge a complaint that fails to sufficiently allege jurisdictional facts, we need not address the second and third questions. When he established the trust, Byram designated himself as trustor, trustee and settlor. William Peters briefly succeeded Victoria Peters as trustee but was removed by the Probate Court. We note that the parties and the trial court refer to Nicholas DuBiago as the successor trustee, but DuBiago accepted the appointment as trustee on behalf of Van Brunt, the accounting firm at which he was the managing partner. The plaintiffs rely on comment (e) to § 282 of the Restatement (Second) of Trusts to argue that they were not required to demand that Van Brunt bring an action on their behalf. That comment provides in relevant part that, "[i]f the trustee does not commit a breach of trust in failing to bring an action against the third person, as for example where it is prudent under the circumstances to refrain from bringing an action . the beneficiary cannot maintain a suit against the trustee and the third person." 2 Restatement (Second), Trusts § 282, comment (e), p. 46 (1959). Specifically, the plaintiffs assert that the comment bars an action against a third person by beneficiaries only when the "trustee does not commit a breach of trust" and that they did allege a breach by claiming that Van Brunt had knowledge sufficient to lead a prudent fiduciary to bring an action against the defendants and that it failed to do so-in other words, the plaintiffs contend that the complaint alleges facts sufficient to suggest that Van Brunt improperly neglected to sue the defendants. As a result, they claim that no demand on the trustee was necessary. Although the plaintiffs are correct that a beneficiary may meet the exception by alleging either that the trustee improperly refused their request to bring an action against third parties or by alleging that the trustee improperly neglected to sue, they have not met either of those burdens. As we explain in this opinion, the plaintiffs conceded that they made no demand, and the complaint neither alleges that the trustee improperly neglected to sue nor alleges facts that would necessarily imply that the trustee improperly neglected to sue. Although the plaintiffs failed to incorporate into the third count the vast majority of the facts set forth in the first count, we read the complaint broadly and assume for purposes of our analysis that count three incorporated the facts alleged in count one. We observe that, even if the deed of trust gave rise to contractual obligations on the part of the defendants, the plaintiffs do not allege in the complaint that the defendants were parties to the deed of trust. We emphasize that our conclusion is grounded on the failure of the complaint either to expressly allege that Van Brunt improperly neglected to sue the defendants on behalf of the trust or to allege facts that necessarily imply that it improperly neglected to do so. The plaintiffs contend that the trial court improperly failed to conduct an evidentiary hearing on the motion to dismiss to resolve whether "[Van Brunt] [committed] a breach of trust" by failing to sue the defendants. This claim lacks merit for several reasons. First, the plaintiffs did not request an evidentiary hearing at oral argument before the trial court on the defendants' motion to dismiss, and the record does not reflect that they submitted any affidavits in opposition to the motion to dismiss. Second, as we have explained in this opinion, the defect lies in the allegations themselves. We need not address the question of whether the plaintiffs would be able to establish standing if they were allowed to present evidence because they have failed to sustain their burden of alleging-in the complaint-facts sufficient to demonstrate standing. A party may not file a pleading that fails to set forth the allegations necessary to demonstrate standing and then seek-only at the appellate level-to have the opportunity to present evidence on the issue of standing. The plaintiffs' failure lies in defective pleading, not in a factual dispute.

12506735

DEUTSCHE BANK NATIONAL TRUST COMPANY, Trustee v. Jason M. GRANT et al.

Deutsche Bank Nat'l Trust Co. v. Grant

2019-03-26

AC 41826

1123

1123

202 A.3d 1123

202

West's Atlantic Reporter, Third Series

Connecticut Appellate Court

Connecticut

2021-08-27T20:57:45.555277+00:00

Fastcase

DEUTSCHE BANK NATIONAL TRUST COMPANY, Trustee v. Jason M. GRANT et al.

DEUTSCHE BANK NATIONAL TRUST COMPANY, Trustee v. Jason M. GRANT et al. AC 41826 Appellate Court of Connecticut. Argued March 7, 2019 Officially released March 26, 2019

33

206

Per Curiam. The judgment is affirmed.

12506734

Anthony SIMPSON et al. v. Damon LEE et al.

Simpson v. Lee

2019-04-02

AC 41475

1123

1123

202 A.3d 1123

202

West's Atlantic Reporter, Third Series

Connecticut Appellate Court

Connecticut

2021-08-27T20:57:45.555277+00:00

Fastcase

Anthony SIMPSON et al. v. Damon LEE et al.

Anthony SIMPSON et al. v. Damon LEE et al. AC 41475 Appellate Court of Connecticut. Argued March 12, 2019 Officially released April 2, 2019

30

178

Per Curiam. The judgment is affirmed.

12506733

Camila COPPEDGE v. Curtis TRAVIS

Coppedge v. Travis

2019-01-29

AC 40787

1116

1122

202 A.3d 1116

202

West's Atlantic Reporter, Third Series

Connecticut Appellate Court

Connecticut

2021-08-27T20:57:45.555277+00:00

Fastcase

Camila COPPEDGE v. Curtis TRAVIS

Camila COPPEDGE v. Curtis TRAVIS AC 40787 Appellate Court of Connecticut. Argued December 5, 2018 Officially released January 29, 2019 Kelly Grey, Southington, for the appellant (defendant). Katherine L. Matthews, Hartford, for the appellee (plaintiff). Elgo, Bright and Beach, Js.

2624

15651

BRIGHT, J. The defendant dog owner, Curtis Travis, appeals from the judgment of the trial court, rendered after a trial to the court, in favor of the plaintiff, Camila Coppedge, in this tort action, commenced pursuant to General Statutes (Rev. to 2013) § 22-357, commonly known as the dog bite statute. On appeal, the defendant claims that (1) "[t]he evidence supports a finding that . § 22-357 does not apply as the dog's conduct was innocent," and (2) "[t]he evidence does not support a finding of proximate cause." We affirm the judgment of the trial court. On the basis of the evidence presented at trial, the trial court found the following facts, which it set forth in a July 18, 2017 memorandum of decision. "On April 14, 2013, the plaintiff, who worked as a personal care assistant to elderly and disabled people, was carrying certain items into a motel room in East Hartford from a motor vehicle. The defendant, who was a long distance truck driver, was playing fetch with his dog on a grassy area next to the motel building. The defendant's dog was a one year old medium-sized Labradoodle named Lilly, with whom the defendant sometimes traveled. At the end of their exercise, the defendant and Lilly intended to return to the motel room where they were staying. Lilly, with no leash attached, bounded toward the motel ahead of the defendant. "The plaintiff saw Lilly coming, became startled and frightened, and tripped and fell as she tried to avoid the dog's advance. Lilly never actually made physical contact with the plaintiff, but came close and stood over the plaintiff as the plaintiff lay on the ground. "The defendant attempted to help the plaintiff up off the ground but words were exchanged about the presence of the dog. The defendant put Lilly in his motel room, away from the plaintiff, and helpfully called 911 for an ambulance. "It was obvious that the plaintiff was injured. She had fallen backwards with her right arm and wrist under her body as she landed. The plaintiff was in great pain. She was taken by ambulance to Manchester Memorial Hospital where she was examined, x-rayed, and treated. Her right wrist was fractured in two places. The plaintiff was discharged from the hospital with a cast on her right wrist." The court further found "that the exuberant, unleashed Lilly was a proximate cause of the plaintiff falling and injuring herself. There is no dispute that the defendant was, and still is, the owner and keeper of the dog. The court finds that the plaintiff has met her burden of proving all of the essential elements of a claim for damages under . § 22-357." Thereafter, on the basis of the evidence submitted on the question of damages the court entered the following damages award, subject to any applicable collateral source reduction: "[F]or physical and emotional pain and suffering, for loss of use of right hand and wrist for a temporary period during treatment and rehabilitation, and for current 8 [percent] permanent partial impairment which the court finds is related to this incident. Total: $ 45,000." This appeal followed. The defendant claims that (1) "[t]he evidence supports a finding that . § 22-357 does not apply as the dog's conduct was innocent," and (2) "[t]he evidence does not support a finding of proximate cause." We are not persuaded. We first address our standard of review. The defendant contends that "the standard of review in this case is limited to the standard of plain error." We disagree with this assertion and conclude that the plain error doctrine is not implicated in this case. Rather, the defendant's claims involve a challenge to the court's factual findings. Accordingly, we review the defendant's claims under the clearly erroneous standard of review. "On appeal, it is the function of this court to determine whether the decision of the trial court is clearly erroneous.... 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.... In a case tried before a court, the trial judge is the sole arbiter of the credibility of the witnesses and the weight to be given specific testimony.... On appeal, we will give the evidence the most favorable reasonable construction in support of the verdict to which it is entitled.... A factual finding may be rejected by this court only if it is 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." (Citations omitted; internal quotation marks omitted.) Murphy v. Buonato , 42 Conn. App. 239, 242, 679 A.2d 411 (1996), aff'd, 241 Conn. 319, 696 A.2d 320 (1997). Section 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 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...." "Specifically . § 22-357 imposes strict liability on the owner or keeper of a dog for harm caused by the dog, with limited exceptions. [The] principal purpose and effect [of § 22-357] was to abrogate the common-law doctrine of scienter as applied to damage by dogs to persons and property, so that liability of the owner or keeper became no longer dependent upon his knowledge of the dog's ferocity or mischievous propensity; literally construed the statute would impose an obligation on him to pay for any and all damage the dog may do of its own volition." (Footnote omitted; internal quotation marks omitted.) Giacalone v. Housing Authority , 306 Conn. 399, 405, 51 A.3d 352 (2012) ; see Granniss v. Weber , 107 Conn. 622, 625, 141 A. 877 (1928). The defendant first claims that § 22-357 does not apply to this case because the dog's conduct was innocent. He argues that under Atkinson v. Santore , 135 Conn. App. 76, 78-79, 41 A.3d 1095, cert. denied, 305 Conn. 909, 44 A.3d 184 (2012) (plaintiff, who claimed that she may have been exposed to rabies virus from defendant's dogs, could not sustain cause of action because statute does not extend to damage caused by dog's merely passive, innocent, and involuntary behavior), a dog must be engaged in vicious or mischievous conduct for its owner to be held strictly liable for its actions. We conclude that the court properly applied § 22-357 to the facts of this case. Although the court did not use the word mischievous or vicious in describing the dog's behavior, it found that the "exuberant" dog "bounded" toward the motel, where the plaintiff was removing things from her vehicle, which frightened the plaintiff. Accordingly, it implicitly found that the dog's actions were not passive, innocent or involuntary. Merriam-Webster's Collegiate Dictionary (10th Ed. 2001) defines "mischievous" as: "Harmful, injurious . able or tending to cause annoyance, trouble, or minor injury . irresponsibly playful ." The fact that the unleashed dog bounded toward her in an exuberant manner fits within the definition of mischievous. Accordingly, the defendant's claim that the dog's actions were innocent is without merit. The defendant's second claim contests the court's finding on the element of proximate cause, which we also review under the clearly erroneous standard. See Cammarota v. Guerrera , 148 Conn. App. 743, 755, 87 A.3d 1134 ("The question of proximate causation . belongs to the trier of fact because causation is essentially a factual issue.... It becomes a conclusion of law only when the mind of a fair and reasonable [person] could reach only one conclusion; if there is room for a reasonable disagreement the question is one to be determined by the trier as a matter of fact." [Internal quotation marks omitted.] ), cert. denied, 311 Conn. 944, 90 A.3d 975 (2014). The defendant argues that there was no evidence as to how far away the dog was from the plaintiff at the time she fell. He contends: "Certainly, if there [were] one hundred yards between [the dog] and the [plaintiff] when [the plaintiff] became startled and frightened, the causal nexus between the plaintiff's fall and the dog's conduct [would be] too attenuated to justify the imposition of liability." (Internal quotation marks omitted.) We disagree. "The liability of the owner or keeper extends to all damage to the person which is proximately occasioned by the dog.... The statute is drastic, and its purport is that a person who owns a dog does so at his peril.... The active efficient cause that sets in motion a train of events which brings about a result without the intervention of any force started and working actively from a new and independent source is the proximate cause." (Citations omitted.) Fellows v. Cole , 4 Conn. Cir. Ct. 677, 680, 239 A.2d 56 (1967). In Malone v. Steinberg , 138 Conn. 718, 723, 89 A.2d 213 (1952), our Supreme Court explained that for a defendant to be liable under the dog bite statute, it was sufficient for the plaintiff to establish that "the menacing attitude of the dog frightened the plaintiff and caused him to fall . even though it did not appear that the dog actually knocked him down." In that case, the parties had conceded that the dog did not come into actual contact with the plaintiff. Id. The court explained that contact was unnecessary under the statute and that "[t]he liability of a keeper extends to all damage to the person which is proximately occasioned by the dog." Id. In the present case, the court specifically found that the proximate cause of the plaintiff's injuries was that the dog, "with no leash attached, bounded toward the motel ahead of the defendant. The plaintiff saw Lilly coming, became startled and frightened, and tripped and fell as she tried to avoid the dog's advance. Lilly never actually made physical contact with the plaintiff, but came close and stood over the plaintiff as the plaintiff lay on the ground." The plaintiff testified that as she was getting things out of her vehicle to bring into her daughter's motel room, which was approximately four feet from the vehicle, she saw the defendant and his unleashed dog across the yard. She further testified that the dog then "start[ed] galloping. Coming, coming, coming towards me. So [she] was coming. I was scared. So I was trying to turn and run, and that's when I fell on my hand on the ground. And the dog . came over to me." The plaintiff was afraid that the dog was going to bite her as she quickly ran toward her. She then indicated that the dog charging toward her was what caused her to fall. The plaintiff was asked if she had spoken with the East Hartford Police Department about the incident. She responded that she had spoken with them and informed them that "the dog was charging at me, and I was scared, and I was trying to run and I tripped and fell. And [the officer] asked me [if] the dog [was] on a leash, and I said no." She then indicated that she fell backward while trying to avoid the dog. The plaintiff was asked by her attorney whether the dog could have been going someplace else. The plaintiff responded: "No, [she] was coming. [She] was coming straight where I was, and when I was on the ground, [she] was right there." She also testified that after she fell to the ground, the dog "came close to me.... The only thing [was that the dog] just was over me." On the basis of this evidence, the court reasonably could have found that the dog charging toward the plaintiff set in motion a chain of events that brought about her injuries. See Fellows v. Cole , supra, 4 Conn. Cir. Ct. at 680, 239 A.2d 56 ; see also Malone v. Steinberg , supra, 138 Conn. at 723, 89 A.2d 213. Furthermore, the plaintiff's testimony that the dog stood over her after she fell supported a reasonable inference that the dog was close enough to the plaintiff when she fell as to be the proximate cause of the plaintiff's fall. Accordingly, the court's finding of proximate cause was not clearly erroneous. The judgment is affirmed. In this opinion the other judges concurred. General Statutes (Rev. to 2013) § 22-357 was the version of the statute in effect when this incident occurred. The statute subsequently was amended by No. 13-223 of the 2013 Public Acts, which became effective October 1, 2013, and was amended several times thereafter. Hereinafter, all references to § 22-357 are to the 2013 revision unless otherwise indicated. "The plain error doctrine, which is 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.... [I]t 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.... 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.... [Thus, 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." (Internal quotation marks omitted.) Perricone v. Perricone , 292 Conn. 187, 218-19, 972 A.2d 666 (2009). The plaintiff argues that we should decline to review the defendant's claims because this case does not implicate the plain error doctrine, and the plaintiff does not request review under any other doctrine or standard of review. Because the parties have briefed the issues, our record is adequate, and we understand the defendant's claims and arguments, in the exercise of our discretion, we will review his claims under the appropriate standard of review. The defendant attempts to distinguish this case from Malone because there was no evidence that his dog was "barking, growling, salivating, or baring her teeth." Such behavior was not necessary, however, to prove that the dog acted mischievously. In fact, the defendant's counsel conceded during oral argument before this court that the defendant would be liable under the statute if the dog playfully had come into contact with the plaintiff and knocked her down.

12506732

PEOPLE'S UNITED BANK, NATIONAL ASSOCIATION v. Kevin PURCELL et al.

People's United Bank, Nat'l Ass'n v. Purcell

2018-11-26

AC 40408

1112

1115

202 A.3d 1112

202

West's Atlantic Reporter, Third Series

Connecticut Appellate Court

Connecticut

2021-08-27T20:57:45.555277+00:00

Fastcase

PEOPLE'S UNITED BANK, NATIONAL ASSOCIATION v. Kevin PURCELL et al.

PEOPLE'S UNITED BANK, NATIONAL ASSOCIATION v. Kevin PURCELL et al. AC 40408 Appellate Court of Connecticut. Submitted on briefs November 26, 2018 Officially released January 29, 2019 Loida John-Nicholson filed a brief for the appellant (named defendant). Robert J. Piscitelli, East Hartford, filed a brief for the appellee (plaintiff). Prescott, Elgo and Bear, Js.

1438

8811

PER CURIAM. The defendant Kevin Purcell appeals following the trial court's denial of his motion to open the judgment of foreclosure by sale and to dismiss the action. Specifically, the defendant claims that the trial court should have dismissed the action because it lacked personal jurisdiction over him due to insufficient service of process on him. We affirm the judgment of the trial court. The following facts and procedural history are relevant to this appeal. The plaintiff, People's United Bank, National Association, commenced this action against the defendant on June 3, 2016, seeking to foreclose on his mortgaged property located at 180 Palm Street in Hartford. The state marshal's return of service indicated that she served the defendant by leaving the writ of summons and a copy of the complaint at the defendant's usual place of abode, the 180 Palm Street address. On July 26, 2016, the defendant was defaulted for failure to appear. The court subsequently rendered a judgment of foreclosure by sale on October 31, 2016. On February 3, 2017, the defendant filed a motion to open the judgment and to dismiss the action, arguing that the court lacked jurisdiction over him because he was never served with the writ of summons and complaint. After an evidentiary hearing, at which both the defendant and the marshal who served him by abode service testified, the court denied the defendant's motion to open the judgment and to dismiss the plaintiff's action, and set a new sale date. The defendant next filed a motion to reargue his motion to open the judgment and for the court to reconsider its ruling, which the court also denied. The defendant then filed this appeal and subsequently moved for an articulation of the court's decision denying his motion to open the judgment and to dismiss the plaintiff's action. In its articulation, the trial court stated that it had credited the testimony of the marshal, noting that her testimony conformed with and expanded upon the information provided in her return of service. Moreover, the court also found that the defendant's testimony was "inconsistent and entirely incredible." On appeal, the defendant argues that the court improperly denied his motion to open the judgment of foreclosure by sale and to dismiss the action for lack of personal jurisdiction. We disagree. We first set forth the applicable legal principles and standard of review that guide our analysis. "We review a trial court's ruling on motions to open under an abuse of discretion standard.... Under this standard, we give every reasonable presumption in favor of a decision's correctness and will disturb the decision only where the trial court acted unreasonably or in a clear abuse of discretion. (Citations omitted; internal quotation marks omitted.) GMAC Mortgage, LLC v. Ford , 178 Conn. App. 287, 294-95, 175 A.3d 582 (2017). Further, "[t]he Superior Court . may exercise jurisdiction over a person only if that person has been properly served with process, has consented to the jurisdiction of the court or has waived any objection to the court's exercise of personal jurisdiction.... When . the defendant is a resident of Connecticut who claims that no valid abode service has been made upon her that would give the court jurisdiction over her person, the defendant bears the burden of disproving personal jurisdiction. The general rule putting the burden of proof on the defendant as to jurisdictional issues raised is based on the presumption of the truth of the matters stated in the officer's return. When jurisdiction is based on personal or abode service, the matters stated in the return, if true, confer jurisdiction unless sufficient evidence is introduced to prove otherwise." (Citations omitted; internal quotation marks omitted.) Knutson Mortgage Corp. v. Bernier , 67 Conn. App. 768, 771, 789 A.2d 528 (2002). "Whether a particular place is the usual place of abode of a defendant is a question of fact. Although the sheriff's return is prima facie evidence of the facts stated therein, it may be contradicted and facts may be introduced to show otherwise." (Internal quotation marks omitted.) Tax Collector v. Stettinger , 79 Conn. App. 823, 825, 832 A.2d 75 (2003). "It is well established that we review findings of fact under the clearly erroneous standard." Id., at 825, 832 A.2d 75. "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.... Because it is the trial court's function to weigh the evidence and determine credibility, we give great deference to its findings.... In reviewing factual findings, [w]e do not examine the record to determine whether the [court] could have reached a conclusion other than the one reached.... Instead, we make every reasonable presumption . in favor of the trial court's ruling" (Internal quotation marks omitted.) Gianetti v. Norwalk Hospital , 304 Conn. 754, 765-66, 43 A.3d 567 (2012). Our review of the record leads us to conclude that the defendant has not demonstrated that the court's findings of fact were clearly erroneous. The return states that the marshal served the defendant by leaving a true and attested copy of the complaint at 180 Palm Street, the defendant's usual place of abode. At the evidentiary hearing, the marshal testified that a neighbor of the defendant, when asked by the marshal, stated that the defendant lived at 180 Palm Street. Additionally, the plaintiff produced a letter from the defendant addressed to the plaintiff, which, in its upper right corner, stated the defendant's address as 180 Palm Street. Conversely, the defendant testified that he had not lived at 180 Palm Street for fourteen years and that his usual place of abode at the time of service was 86 Plainfield Street. When the defendant was asked to provide his name and address for the record, however, he provided two different addresses. Although the defendant submitted an affidavit, his driver's license, tax records, and other documents to show that he no longer resided at 180 Palm Street, and that his place of abode at the time of service was 86 Plainfield Street, the court was not required to conclude that service was required to be made at that location. See Tax Collector v. Stettinger , supra, 79 Conn. App. at 827, 832 A.2d 75. In fact, "[o]ne may have two or more places of residence within a [s]tate . and each may be a usual place of abode.... Service of process will be valid if made in either of the usual places of abode. " (Emphasis in original; internal quotation marks omitted.) Id. In summary, the defendant moved to open the judgment of foreclosure by sale and to dismiss the action for lack of personal jurisdiction over him. The court held an evidentiary hearing on the motion. The defendant and the marshal testified at the hearing. The court, after finding that the defendant's testimony was inconsistent and entirely incredible and that the marshal's testimony was credible, denied the motion. On appeal, the defendant has not demonstrated that the court's factual findings were clearly erroneous. The court properly weighed the credibility of the witnesses in making its findings of fact and in concluding that the defendant did not present sufficient evidence to show insufficient service of process on him. The court thus did not abuse its discretion in denying the defendant's motion to open the judgment and to dismiss the action. The judgment is affirmed and the case is remanded for the purpose of setting a new sale date. The other named defendants, Connecticut Light & Power Company, the city of Hartford, Esther Purcell, also known as Ester Purcell, and Saint Francis Hospital and Medical Center did not participate in this appeal. For clarity, we refer to Kevin Purcell as the defendant. Nonappearing parties included Nicole Morant, Unifund CCR Partners, and The Palisades Collection, LLC. Prior to the filing of the defendant's motion and the sale date, the court denied a motion to open the judgment that was filed by Esther Purcell, the defendant's mother and a co-owner of the property at issue. The sale date was subsequently reset for March 25, 2017. The defendant stated on the record that his home address was "196 Plainfield Street-Colebrook Street" in Hartford.

12489528

PRESIDENTIAL VILLAGE, LLC v. Melissa PHILLIPS et al.

Presidential Vill., LLC v. Phillips

2017-05-09

SC 19762

772

787

158 A.3d 772

158

West's Atlantic Reporter, Third Series

Connecticut Supreme Court

Connecticut

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

Fastcase

PRESIDENTIAL VILLAGE, LLC v. Melissa PHILLIPS et al.

PRESIDENTIAL VILLAGE, LLC v. Melissa PHILLIPS et al. SC 19762 Supreme Court of Connecticut. Argued December 7, 2016 Officially released May 9, 2017 Hugh D. Hughes, with whom, on the brief, was David E. Schancupp, for the appellant (plaintiff). Shelley A. White, for the appellee (named defendant). Rogers, C.J., and Palmer, Eveleigh, McDonald, Espinosa, Robinson and Vertefeuille, Js.

7742

48265

ROBINSON, J. The principal issue in this appeal is whether the trial court abused its discretion by relying on the "spirit" of certain regulations issued by the United States Department of Housing and Urban Development (department), which generally concern accommodations for handicapped persons, in support of an equitable defense to the eviction of a tenant who kept an "emotional support dog" in her federally subsidized rental apartment in violation of a pet restriction clause contained within her lease. The plaintiff, Presidential Village, LLC, appeals from the judgment of the trial court in favor of the named defendant, Melissa Phillips, in this summary process action. On appeal, the plaintiff contends that the trial court improperly: (1) relied on the "spirit" of the department's regulations because the defendant's niece, M, who lived in the defendant's apartment, was not disabled within the meaning of those regulations and, as such, federal disability law did not require the plaintiff to allow M to keep a dog in the apartment as a reasonable accommodation; (2) weighed the equities as a defense to eviction when the plaintiff lacked notice of the defense of equitable nonforfeiture and, thus, could not offer evidence about the purpose of the pet restriction; and (3) admitted into evidence, over the plaintiff's hearsay objection, a letter signed by a physician and social worker who had provided services to M. In response, the defendant contends to the contrary, and also argues that this court lacks subject matter jurisdiction because this appeal was rendered moot when the plaintiff commenced an ancillary summary process action against the defendant. We conclude that the plaintiff's appeal is not moot, and further conclude that the trial court abused its discretion by relying upon an improper ground in determining that the defendant was entitled to equitable relief from the forfeiture of her tenancy in accordance with Fellows v. Martin , 217 Conn. 57, 66-67, 584 A.2d 458 (1991). Accordingly, we reverse the judgment of the trial court and remand the case for a new hearing with regard to the defendant's equitable defense. The record reveals the following relevant facts and procedural history. For her entire life, the defendant has lived in an apartment in New Haven in a complex owned by the plaintiff. Her mother, the previous lease-holder, kept a dog named Mellow in the apartment prior to her death in August, 2013. After her mother's passing, the defendant obtained legal guardianship over four of her nieces and nephews, who also were living in the apartment. Mellow provides comfort in particular to M, who is the defendant's oldest niece. The defendant subsequently signed a new department model lease with the plaintiff. This lease included a clause prohibiting the defendant from keeping dogs on the property. The defendant was aware that the lease did not permit her to keep a dog in the apartment when she signed it, but nevertheless thought it was acceptable to keep Mellow because her mother had done so. On the basis of this fact, the defendant believed that the plaintiff would not enforce the pet restriction and, accordingly, continued to keep Mellow in her apartment in violation of her lease. In May, 2015, the plaintiff sent a pretermination notice in accordance with General Statutes § 47a-15 to the defendant, advising her that she had violated her lease by keeping a dog in her apartment. On June 23, 2015, the plaintiff served a notice to quit on the defendant and subsequently filed the present summary process action. The defendant, appearing as a self-represented party, responded by filing an answer to the complaint and the following special defense: "[T]he dog was originally mom's dog that occupied the apartment for [six] years prior to my leasing the place. Mom passed away in 2013 when I then took over residence. I have been able to keep the dog that the four children I am raising and myself have become attached to. Once I begin complaining again about the condition of the apartment I was given [fifteen] days to get rid of dog which was unreasonable. The dog has been given to brother on July 2, 2015. I tried to contact landlord but hasn't replied." The plaintiff subsequently denied the allegations in the special defense. During the first hearing before the trial court, Michelle Scott, the plaintiff's property manager, testified about the lease and confirmed that it included a clause restricting pets. Scott stated that she personally had no knowledge that a dog was living in the apartment prior to the defendant signing the lease with the plaintiff. The defendant then testified that the children and Mellow resided in her apartment. Specifically, the defendant stated that Mellow had resided in the apartment before she signed the lease, which is why she did not think that the plaintiff would enforce the pet restriction. The defendant then testified that she had tried to find a new home for Mellow with someone who could provide continuing access for the children in light of their emotional issues and their attachment to Mellow. The defendant stated that she had learned recently that she could get Mellow certified as a service animal and that she would like to obtain such a certification in order for Mellow to remain in the apartment. The defendant also stated that she did not know whether her mother had received notification from the plaintiff, prior to her death, about having to remove Mellow from the apartment. The trial court then continued the case in order to give the defendant additional time to find a new home for Mellow or to certify her as a service animal. At the second hearing date, the defendant still had not found a new home for Mellow. Rather, the defendant obtained a letter from M's physician and social worker indicating that Mellow provided comfort to M, who was dealing with a personal loss. In addition, the defendant obtained an Internet certificate declaring Mellow to be an "Emotional Support Dog." The trial court admitted both documents into evidence over the defendant's hearsay objections. The trial court then continued the hearing to permit additional evidence and arguments with respect to federal disability law and its application to the present case. Subsequently, on October 8, 2015, the defendant indicated to the court that Mellow does not accompany the children to school, that none of the children are physically disabled, and that Mellow was providing comfort to the children and, in particular, M. After the hearings, the trial court credited the defendant's testimony and found that Mellow had lived in the house for years prior to her mother's death, and that the plaintiff was aware of Mellow's presence in the apartment. The trial court also credited the defendant's testimony that M takes great comfort from Mellow and has started to " 'act out' " because of the emotional circumstances in her life. The trial court further noted that the letter from M's physician and social worker supported the defendant's testimony. Ultimately, the trial court determined that "the spirit of the [department's] regulations has been followed by the defendant in this case. She has established that [Mellow] acts as a therapy dog for [M]. Furthermore, the court has weighed the harm to the plaintiff that would come from [Mellow's] continued presence . and the harm that would come to [M] from having [Mellow] removed from the household and finds that the equities favor the defendant. Therefore, the court invokes its equitable powers to rule in favor of the defendant." This appeal followed. Additional facts will be set forth as necessary. I Because it implicates our subject matter jurisdiction; Housing Authority v. Lamothe , 225 Conn. 757, 762-64, 627 A.2d 367 (1993) ; we begin with the defendant's claim that this appeal is moot. Specifically, the defendant argues that this appeal cannot afford the plaintiff meaningful relief because, while this appeal was pending, the plaintiff commenced a second summary process action against her in March, 2016, the filing of which had the effect of affirmatively reinstating her tenancy. In supplemental briefing, the defendant contends, in the alternative, that the trial court's subsequent dismissal of the plaintiff's second action reinstated her lease, meaning that reversal of the judgment in this appeal will not result in an order granting possession to the plaintiff. In response, the plaintiff claims that the final judgment in favor of the defendant in the first action, which the plaintiff is challenging in this appeal, reinstated the defendant's lease. The plaintiff then argues that the second action does not affect this court's subject matter jurisdiction because the trial court dismissed the second action on the ground that the underlying notice to quit, which is a prerequisite to a summary process action, was invalid because it was served in the wrong month. The plaintiff contends that an invalid notice to quit is void and, as such, the status of the case before this court is as if the second action never occurred. We agree with the plaintiff that the second notice to quit, which was invalid and therefore void, did not operate to terminate the defendant's lease. Accordingly, we conclude that the present appeal is not moot. The defendant's mootness claim requires us to determine the effect of the service of an invalid notice to quit during the pendency of a landlord's appeal from a judgment in favor of the tenant in a prior summary judgment action. "Summary process is a statutory remedy which enables a landlord to recover possession of rental premises from the tenant upon termination of a lease.... It is preceded by giving the statutorily required notice to quit possession to the tenant.... Service of a notice to quit possession is typically a landlord's unequivocal act notifying the tenant of the termination of the lease. The lease is neither voided nor rescinded until the landlord performs this act and, upon service of a notice to quit possession, a tenancy at will is converted to a tenancy at sufferance." (Citations omitted.) Housing Authority v. Hird , 13 Conn.App. 150, 155, 535 A.2d 377, cert. denied, 209 Conn. 825, 552 A.2d 433 (1988). "A legally invalid notice to quit is, however, considered 'equivocal' because of that legal defect and, therefore, does not operate to terminate a lease." Waterbury Twin, LLC v. Renal Treatment Centers-Northeast, Inc. , 292 Conn. 459, 473 n.18, 974 A.2d 626 (2009) ; see also Bargain Mart, Inc. v. Lipkis , 212 Conn. 120, 134, 561 A.2d 1365 (1989) ("it is self-evident that if the notice [to quit] is invalid, then the legal consequence of 'termination' arising from the service of a valid notice [to quit] does not result"); id., at 135, 561 A.2d 1365 ("[b]ecause the trial court in the summary process action did not determine whether the notices to quit were valid, we have no basis for concluding that those notices terminated the . lease"); Bridgeport v. Barbour-Daniel Electronics, Inc. , 16 Conn.App. 574, 582-83, 548 A.2d 744 (notice to quit invalid because of untimely service did not terminate month-to-month tenancy and cannot serve as basis for summary process action, thus requiring service of second notice to quit), cert. denied, 209 Conn. 826, 552 A.2d 432 (1988). We find instructive the Appellate Court's decision in Housing Authority v. Hird , supra, 13 Conn.App. at 150, 535 A.2d 377. In Hird , the tenant entered into a written lease with the landlord on January 9, 1981. Id., at 152, 535 A.2d 377. In June, 1985, the landlord sent the tenant a written notice of proposed eviction because the tenant had violated the lease by maintaining the property in an unsanitary condition and keeping pets on the property. Id., at 152-53, 535 A.2d 377. In July, 1985, the landlord served the tenant with a notice to quit. Id., at 153, 535 A.2d 377. A summary process action resulted in a judgment for the tenant on November 6, 1985. Id. The landlord then served the tenant with a second notice to quit on November 15, 1985, alleging nonpayment of rent for that month as the reason for eviction. Id. The tenant moved to dismiss the second summary process action for failure to comply with federal regulations, and the landlord withdrew the second notice to quit in January, 1986. Id. While the second summary process action was pending, the tenant sought to reinstate the lease, which the landlord refused because of nonpayment of rent. Id., at 154, 535 A.2d 377. In January, 1986, the landlord served the tenant with a third notice to quit for nonpayment of rent for that month. Id. In the third summary process action, "[t]he trial court rendered judgment of possession for the [landlord], ruling that the [tenant] was then occupying her apartment under her lease as a tenant at will in January, 1986. Consequently, she had a duty to tender rent for that month's tenancy, which she breached." (Internal quotation marks omitted.) Id. The trial court determined that "the [tenant] was occupying her apartment under her lease as a tenant at will on January 1, 1986, because the judgment rendered on November 6, 1985, in [the tenant's] favor did not terminate the lease, and, therefore, had 'revived' the original lease arrangement, and because the eviction action following the November 15, 1985 notice to quit possession having been withdrawn, had no legal effect or consequence on the preexisting lease between the parties." Id., at 155, 535 A.2d 377. On appeal, the Appellate Court agreed. It held that "[t]he withdrawal of the [second] summary process action on January 29, 1986, effectively erased the court slate clean as though the eviction predicated on the November 15, 1985 notice to quit possession had never been commenced. The plaintiff and the defendant were 'back to square one,' and the continuation of their lease of January 9, 1981, was restored." Id., at 157, 535 A.2d 377. In the present appeal, the trial court's judgment in favor of the defendant in the first summary process action, which is the subject of this appeal, reinstated the lease between the two parties. The filing of this appeal from the trial court's decision in the first summary process action did not affect the reinstatement of the lease. The second notice to quit, which was deemed invalid, did not operate to terminate that lease, which continues in effect. See Waterbury Twin, LLC v. Renal Treatment Centers-Northeast, Inc. , supra, 292 Conn. at 473 n.18, 974 A.2d 626. Put differently, the status quo between the parties was restored when the second notice to quit was held invalid in the second summary process action; it became as if the plaintiff never filed a second notice to quit and the lease remained reinstated. Accordingly, we conclude that meaningful relief may be granted and that, therefore, this appeal is not moot. II We turn now to the plaintiff's claim that the trial court improperly determined that the equities in this case favored the defendant, particularly given that she followed "the spirit of the [department's] regulations" in establishing that allowing Mellow to remain in the apartment was a reasonable accommodation for M's disabilities. The plaintiff contends that the department's regulations are inapplicable because the defendant has not demonstrated that M has a handicap as defined by the relevant federal laws, namely, a disease or illness indicating the substantial alteration of a major life activity. See, e.g., 42 U.S.C. § 3602 (h) (2016). Additionally, the plaintiff contends that the trial court abused its discretion by using the spirit of the law to, in effect, rewrite federal law in order to allow such an accommodation, when those laws clearly do not extend to this case. Finally, the plaintiff claims that the trial court never adequately weighed the equities in this case because the plaintiff lacked notice to offer evidence about the purpose of its pet restriction. In response, the defendant claims that the trial court did not abuse its discretion in rendering a judgment in this summary process case based on equity. Specifically, the defendant contends that she proved her entitlement to equitable relief under Fellows v. Martin , supra, 217 Conn. at 66-67, 584 A.2d 458, by demonstrating: (1) that her breach was not wilful or grossly negligent; (2) that upon eviction, she will suffer a loss wholly disproportionate to the injury to the plaintiff; and (3) that the plaintiff's injury is reparable. Further, the defendant claims that she adequately pleaded equity as a special defense, which provided the plaintiff with notice of that issue. For the reasons which follow, we agree with the plaintiff that the trial court abused its discretion by relying on the spirit of the department's regulations to rule, in equity, for the defendant. "[E]quitable defenses and counterclaims implicating the right to possession are available in a summary process proceeding. If, then, the tenant's equitable claim was properly raised, it was properly before the trial court.... "Equitable principles barring forfeitures may apply to summary process actions . 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." (Citations omitted; internal quotation marks omitted.) Cumberland Farms, Inc. v. Dairy Mart, Inc. , 225 Conn. 771, 777-78, 627 A.2d 386 (1993). "A landlord's injury is reparable if it can be remedied by money instead of forfeiture of the tenancy." (Internal quotation marks omitted.) Connecticut Light & Power Co. v. Lighthouse Landings, Inc. , 279 Conn. 90, 97 n.8, 900 A.2d 1242 (2006). 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. See PIC Associates, LLC v. Greenwich Place GL Acquisition, LLC , 128 Conn.App. 151, 173-74, 17 A.3d 93 (2011) ; Fairchild Heights, Inc. v. Dickal , 118 Conn.App. 163, 178-79, 983 A.2d 35 (2009), aff'd, 305 Conn. 488, 45 A.3d 627 (2012). We employ the abuse of discretion standard when reviewing a trial court's decision to exercise its equitable powers. See Fellows v. Martin , supra, 217 Conn. at 67-68, 584 A.2d 458. "Although we ordinarily are reluctant to interfere with a trial court's equitable discretion . we will reverse where 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." (Citations omitted.) Id."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.) Elliott v. South Isle Food Corp. , 6 Conn.App. 373, 377, 506 A.2d 147 (1986). A We begin with the question of whether the trial court properly relied on the "spirit" of the department's regulations in exercising its equitable discretion. Because the apartment is federally subsidized by the department, the plaintiff is required to comply with the Fair Housing Act of 1968, 42 U.S.C. § 3601 et seq. (2016), the department's regulations concerning accommodations for handicapped persons; see 24 C.F.R. § 100.200 et seq. ; the Rehabilitation Act of 1973, 29 U.S.C. § 794 (2016), and the Americans with Disabilities Act of 1990, 42 U.S.C. § 12101 et seq. (2016). Each of these requires that a reasonable housing accommodation be given to a person with "(1) a physical or mental impairment which substantially limits one or more of such person's major life activities, (2) a record of having such an impairment, or (3) being regarded as having such an impairment ." 42 U.S.C. § 3602 (h) (2016) ; see also 24 C.F.R. § 8.3 and 100.201. These laws further define "[p]hysical or mental impairment" to include the following: "(1) Any physiological disorder or condition . or (2) Any mental or psychological disorder, such as mental retardation, organic brain syndrome, emotional or mental illness, and specific learning disabilities. ." 24 C.F.R. § 100.201 (a) ; see also 24 C.F.R. § 8.3 (a). Additionally, the term "[m]ajor life activities" is defined as "functions such as caring for one's self, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning and working." 24 C.F.R. § 100.201 (b) ; see also 24 C.F.R. § 8.3 (b). Thus, to qualify for a reasonable housing accommodation, one must demonstrate a physical or mental impairment that substantially limits one or more of such person's major life activities. We begin with a review of the record to determine whether it supported the trial court's decision to grant relief under the "spirit" of the federal regulations. At trial, the defendant did not claim that she, her nieces, or nephews have a qualifying disability, either physical or mental, that would necessitate a reasonable housing accommodation. Indeed, she testified that none of the occupants of the home have major life activities that are impacted by a qualifying disability, stating specifically that none of the four children have difficulty with daily activities such as brushing their teeth and getting dressed. Rather, the defendant testified that Mellow is an "emotional support dog" that she keeps for the "emotional comfort and the mental state" of M. The defendant explained that all of the children have emotional difficulties because their mother, the defendant's sister, essentially abandoned them, despite living across the street. Further, the children watched the defendant's mother, their grandmother, die while in hospice care in their home. Moreover, M herself had lost a child around the time the plaintiff brought the summary process action. Ultimately, the defendant described Mellow as being a source of comfort to the children in the home. Indeed, she testified that Mellow does not attend school in a therapeutic capacity for the children. A letter jointly authored by M's social worker, Lucia Venditti, and physician, Linda Fan, supports the defendant's testimony about M's emotional difficulties. Venditti and Fan state in the letter that M is a patient in their clinic, "has been dealing with a personal loss," and has found comfort in Mellow. The letter then describes, in a bullet point list, the health benefits associated with interacting with a pet. The letter does not, however, opine that M has a mental or physical disability as contemplated by federal law. The letter also does not describe with any level of specificity the health benefits that M receives from interacting with Mellow. Lastly, it is of note that at no time did M testify as to any mental or physical disability she suffers. Although one may be sympathetic to the emotional benefits that Mellow provides to the defendant and her family given their traumatic family history, we nevertheless disagree with the trial court's conclusion that allowing them to keep Mellow in the apartment is consistent with "the spirit of the [department's] regulations ." On the basis of the record, with no evidence demonstrating that any one of the residents of the apartment has a physical or mental disability affecting a major life activity, the trial court could not have reasonably concluded that the defendant satisfied the "spirit" of the relevant federal regulations, which provide relief only for specifically defined physical or mental disabilities. See, e.g., Mazzocchi v. Windsor Owners Corp. , 204 F.Supp.3d 583, 610-11 (S.D.N.Y. 2016) (assuming woman suffers from bipolar disorder, vague description of such disorder impacting various life activities not enough to fall within meaning of Fair Housing Act); cf. Chapman v. Pier 1 Imports (U.S.) Inc. , 631 F.3d 939, 945 (9th Cir. 2011) ("obedience to the spirit of the [Americans with Disabilities Act] does not excuse noncompliance with" governing federal regulations [internal quotation marks omitted] ). Put differently, the doctrine of equitable nonforfeiture does not provide a bypass of the proof necessary to establish qualification for a reasonable housing accommodation under federal disability laws. Accordingly, the trial court improperly relied on the spirit of the federal regulations to support its equitable decision in favor of the defendant. B We further conclude that the trial court abused its discretion in applying the doctrine of equitable nonforfeiture because the trial court's articulation demonstrates that its balancing of the harm to the parties was overwhelmingly influenced by its improper consideration of the "spirit" of the federal disability laws. Indeed, a review of the record demonstrates that, rather than consider the harm to the plaintiff that would result from affording the defendant relief from the pet restriction, the exclusive focus of the court and the parties was on whether federal law required the plaintiff to allow the defendant to keep Mellow in the apartment as a reasonable accommodation for M's alleged disability. Several key instances during the summary process hearings suggest that the trial court's exercise of its discretion was not influenced by a proper balancing of the relative harm to the parties with respect to the enforcement of the pet restriction. At the first hearing, the trial court specifically told the defendant that if Mellow was still in the apartment at the next court appearance, she would be required to vacate. The trial court then continued the hearing for two weeks, so that the defendant could demonstrate to both the court and the plaintiff that Mellow had been removed from the apartment permanently, or that the defendant could establish that she had registered Mellow as a service animal. At the second hearing, the defendant introduced the letter and the certificate into evidence. To that end, the trial court continued the hearing for one week so that the defendant could provide the court with more information about the organization that had certified Mellow. Finally, at the third hearing, the plaintiff's counsel focused its questioning of the defendant on whether anyone in the home was disabled, thus necessitating a reasonable housing accommodation according to a department legal memorandum, which the plaintiff produced at this hearing. In fact, after this memorandum was produced, the trial court inquired of the plaintiff's counsel whether he believed that the defendant's letter set out a prima facie case for disability, to which the plaintiff's counsel responded in the negative. It is clear to us that the present summary process action was not tried on the equities, but rather on the merits of whether the defendant qualified for a reasonable housing accommodation under federal law. Because of the trial court's focus on whether the defendant qualified for a reasonable housing accommodation, despite having notice of an equitable defense, the plaintiff did not proffer reasons grounded in equity, with supporting evidence, as to the reason for its pet restriction, and the potential harm that would come to it should the trial court rule in favor of the defendant. Further, this court may not place itself in the position of the trial court and rebalance the equities in the absence of the improper consideration of the "spirit" of the regulations. See, e.g., Hartford Whalers Hockey Club v. Uniroyal Goodrich Tire Co. , 231 Conn. 276, 283, 649 A.2d 518 (1994) ("equitable determinations that depend on the balancing of many factors are committed to the sound discretion of the trial court"). Accordingly, we conclude that the plaintiff is entitled to a new hearing with regard to the defendant's equitable defense. III Finally, we address the plaintiff's claim that the trial court improperly admitted the letter into evidence because it was inadmissible hearsay. The plaintiff argues that the letter was not admissible pursuant to the medical treatment report exception to the hearsay rule provided by General Statutes § 52-174 (b) because that statute is limited to personal injury cases. We disagree, and conclude that the trial court properly admitted the letter into evidence pursuant to § 52-174 (b). Ordinarily, "[w]hether the trial court improperly admitted evidence under § 52-174 (b) is an evidentiary question, and our review is for abuse of discretion." Rhode v. Milla , 287 Conn. 731, 742, 949 A.2d 1227 (2008). The plaintiff's claim that § 52-174 (b) is inapplicable in this summary process case because it is limited to personal injury cases presents, however, "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.... 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). As § 1-2z requires, we begin with the text of § 52-174 (b), which provides in relevant part as follows: "In all actions for the recovery of damages for personal injuries or death, pending on October 1, 1977, or brought thereafter, and in all court proceedings in family relations matters . or in the Family Support Magistrate Division, pending on October 1, 1998, or brought thereafter, and in all other civil actions pending on October 1, 2001, or brought thereafter, any party offering in evidence a signed report and bill for treatment of any treating physician . psychologist, social worker, [or] mental health professional . may have the report and bill admitted into evidence as a business entry and it shall be presumed that the signature on the report is that of such treating physician . psychologist, social worker, [or] mental health professional . and that the report and bill were made in the ordinary course of business. The use of any such report or bill in lieu of the testimony of such treating physician . psychologist, social worker, [or] mental health professional . shall not give rise to any adverse inference concerning the testimony or lack of testimony of such treating physician . psychologist, social worker, [or] mental health professional ." (Emphasis added.) Resolution of the plaintiff's claim that § 52-174 (b) is inapplicable in summary process cases depends on whether, for the purposes of application of the medical treatment records exception to the hearsay rule, summary process actions are "other civil actions." We conclude that they are. Because § 52-174 (b) does not define the term "civil action," in accordance with General Statutes § 1-1 (a), "we look to the common understanding expressed in dictionaries in order to afford the term its ordinary meaning." Lackman v. McAnulty , 324 Conn. 277, 287, 151 A.3d 1271 (2016). Black's Law Dictionary defines "civil action" in relevant part as, "[a]n action wherein an issue is presented for trial formed by averment of complaint and denials of answer or replication to new matter ." Black's Law Dictionary (Rev. 4th Ed. 1968). The statutory process by which eviction occurs in Connecticut is consistent with this definition. Specifically, if a tenant neglects or refuses to quit possession after having received a pretermination notice and a subsequent notice to quit; see General Statutes § 47a-23 ; "any commissioner of the Superior Court may issue a writ, summons and complaint which shall be in the form and nature of an ordinary writ, summons and complaint in a civil process ." (Emphasis added.) General Statutes § 47a-23a. At this point, the tenant may file an answer to the complaint and may allege any special defenses, a process facilitated by a standard form provided by the Judicial Branch. See Summary Process (Eviction) Answer to Complaint, Judicial Branch Form JD-HM-5; see also Practice Book § 17-30 (rule of civil practice governing default judgment for failure to appear or plead in summary process matter). After the pleadings are closed, a trial is scheduled. See General Statutes § 47a-26d. On the basis of the statute's plain and unambiguous language, we conclude that the medical treatment records exception of § 52-174 (b) applies to summary process actions. Accordingly, we conclude that the trial court properly admitted the letter into evidence. The judgment is reversed and the case is remanded for further proceedings in accordance with this opinion. In this opinion the other justices concurred. The 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. We note that, although two other individuals residing in the apartment, "John Doe" and "Jane Doe," were also named as defendants, they are not parties to the present appeal. For the sake of convenience, we refer to Phillips as the defendant hereinafter. M is the defendant's oldest niece. She was a minor when this action was commenced, but is over the age of eighteen. In an effort to protect her privacy given the factual circumstances of this case, we refer to her as M. Although not referred to elsewhere in the record, the dog is registered as "Mellow Phillips" on the purported "Emotional Support Dog" certificate. Accordingly, we refer to the dog as Mellow. Specifically, the lease provides in relevant part as follows: "The [t]enant agrees not to . [h]ave pets or animals of any kind in the unit without the prior written permission of the [l]andlord, but the landlord will allow the tenant to keep an animal needed as a reasonable accommodation to the tenant's disability, and will allow animals to accompany visitors with disabilities who need such animals as an accommodation to their disabilities ." Additionally, the plaintiff's "House Rules and Regulations" for the apartment complex provides in relevant part as follows: "No Animals or Pets are allowed in any of the units at any time; provided, however, elderly or disabled [t]enants may have a service or comfort pet of not more than thirty . pounds that otherwise meets [certain guidelines issued by the department]. Eviction may commence for [t]enants found in violation of this policy." General Statutes § 47a-15 provides in relevant part: "Prior to the commencement of a summary process action . if there is a material noncompliance by the tenant with the rental agreement or a material noncompliance with the rules and regulations adopted in accordance with section 47a-9, and the landlord chooses to evict based on such noncompliance, the landlord shall deliver a written notice to the tenant specifying the acts or omissions constituting the breach and that the rental agreement shall terminate upon a date not less than fifteen days after receipt of the notice. ." A copy of the lease and the plaintiff's house rules were admitted into evidence. See footnote 5 of this opinion. For a description of the letter, see part II A of this opinion. We note that the trial court originally rendered judgment for the defendant without issuing a written opinion. In response to a motion by the plaintiff after it filed the present appeal, the trial court issued an articulation containing its findings and conclusions. After the parties' briefs were filed in this appeal, the trial court, Avallone, J., dismissed the plaintiff's second summary process action. This court then sua sponte requested supplemental briefing on the mootness issue. The defendant also claims that the trial court lacked subject matter jurisdiction over this action because the defendant's pretermination notice did not comply with the requirements of federal law, namely, it did not include any information regarding the defendant's right to respond to the plaintiff within ten days of receipt of the pretermination notice as required by a department handbook. See United States Dept. of Housing and Urban Development, HUD Handbook 4350.3: Occupancy Requirements of Subsidized Multifamily Housing Programs (November, 2013), § 8-13 (B) (2) (c) (4), available at https://portal.hud.gov/hudportal/documents/huddoc?id=43503HSGH.pdf (last visited April 24, 2017). Although not raised before the trial court, we consider this issue on appeal because a question of subject matter jurisdiction may be raised at any time. See, e.g., Lopez v. Board of Education, 310 Conn. 576, 589-90, 81 A.3d 184 (2013). We conclude that this issue does not implicate the subject matter jurisdiction of the trial court, because the relevant provision of the department's handbook is not legally binding as a matter of federal law. In Thorpe v. Housing Authority, 393 U.S. 268, 274-76, 89 S.Ct. 518, 21 L.Ed.2d 474 (1969), the United States Supreme Court considered whether a department-issued circular was legally binding or merely advisory. In doing so, the court looked to language in the circular, as well as letters written by the department's Assistant Secretary for Renewal and Housing Assistance and by its Chief Counsel to determine the department's intended effect for the circular. Id., at 275-76, 89 S.Ct. 518. The court held that the circular was legally binding, as it set forth binding requirements necessary to fulfill federal responsibilities under a particular federal act. Id. However, the court distinguished this circular from other " 'handbooks' and 'booklets' issued by [the department that] contain mere 'instructions,' 'technical suggestions,' and 'items for consideration.' " Id., at 275, 89 S.Ct. 518. Accordingly, we look to the department's intent to determine whether the relevant provision of the department's handbook is legally binding. In the introduction of the department's handbook, § 1-1 (B) indicates that its purpose is to, inter alia, describe "the occupancy requirements and procedures governing . subsidized multifamily housing programs" and address "the procedures by which households apply for housing and the rights and responsibilities of in-place tenants and property owners." HUD Handbook 4350.3: Occupancy Requirements of Subsidized Multifamily Housing Programs, supra, § 1-1 (B). Although the handbook appears to describe department regulations, we conclude that the handbook itself is merely advisory because nowhere does it state that it is legally binding. See, e.g., Fairmount Heights Associates , L.P. v. Greystone Servicing Corp., United States District Court, Docket No. 3:06CV1206 (WWE) (D. Conn. August 29, 2007) (describing similar department handbook as "advisory" and concluding that "its provisions do not have the force of law and cannot be the basis of action for damages"). Accordingly, this issue does not implicate the trial court's jurisdiction. Title 29 of the United States Code, § 794, provides in relevant part as follows: "No otherwise qualified individual with a disability in the United States . shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance or under any program or activity conducted by any Executive agency ." We note that the department's regulations implementing this provision are codified in part 8 of Title 24 of the Code of Federal Regulations. We note that the regulations implementing the Americans with Disabilities Act specifically exclude emotional support animals from its definition of "service animals." See 28 C.F.R. § 36.104 ("Service animal means any dog that is individually trained to do work or perform tasks for the benefit of an individual with a disability . [T]he provision of emotional support, well-being, comfort, or companionship do not constitute work or tasks for the purposes of this definition." [Emphasis in original.] ) Accordingly, the Americans with Disabilities Act does not apply in the present case. It is of note that no testimony was presented as to the specific harm to the defendant, should a court order her to find a new home for Mellow or face eviction. The trial court, however, reasonably could have inferred that harm to the defendant from eviction would include the loss of her federally subsidized housing if evicted, and emotional harm to the children if the defendant and her family were allowed to remain on the property, but ordered to find a new home for Mellow. The defendant contends that she properly pleaded equitable nonforfeiture as a special defense in her answer to the plaintiff's summary process complaint. Given the broad reading that we give to pleadings, especially in light of the defendant's self-represented status at trial, we agree. "The fundamental purpose of a special defense, like other pleadings, is to apprise the court and opposing counsel of the issues to be tried, so that basic issues are not concealed until the trial is underway." (Internal quotation marks omitted.) Almada v. Wausau Business Ins. Co., 274 Conn. 449, 456, 876 A.2d 535 (2005). As noted previously in this opinion, the defendant pleaded the following special defense: "[T]he dog was originally mom's dog that occupied the apartment for [six] years prior to my leasing the place. Mom passed away in 2013 when I then took over residence. I have been able to keep the dog that the four children I am raising and myself have become attached to. Once I begin complaining again about the condition of the apartment I was given [fifteen ] days to get rid of dog which was unreasonable. The dog has been given to brother on July 2, 2015. I tried to contact landlord but hasn't replied." (Emphasis added.) "The interpretation of pleadings is always a question of law for the court . Our review of the trial court's interpretation of the pleadings therefore is plenary. . Furthermore, 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 upon 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. . Although essential allegations may not be supplied by conjecture or remote implication . the complaint must be read in its entirety in such a way as to give effect to the pleading with reference to the general theory upon which it proceeded, and do substantial justice between the parties." (Citations omitted; internal quotation marks omitted.) Grenier v. Commissioner of Transportation, 306 Conn. 523, 536-37, 51 A.3d 367 (2012). Affording the defendant, who at the time of filing her answer to the plaintiff's summary process complaint appeared as a self-represented party, appropriate solicitude; see, e.g., New Haven v. Bonner, 272 Conn. 489, 497-98, 863 A.2d 680 (2005) ; we agree with the defendant that she adequately pleaded a defense sufficient to apprise the plaintiff that she was asking the court to act equitably to resolve this case. Specifically, she admitted the lease violation, but averred that Mellow had been on the premises for a long time and that the plaintiff had acted unreasonably-in a manner akin to retaliatory eviction-by not taking adverse action until after she had exercised her rights to ask for repairs to the apartment. The defendant's admission in the special defense that Mellow had been in the apartment for more than six years was sufficient to alert the plaintiff that questions might be raised about why the plaintiff waited that long to enforce the pet restriction, and the related topic of the reasons underlying that clause in the lease. Indeed, nothing in the special defense indicated that the defendant had a right to keep Mellow on the premises as an accommodation under the relevant disability laws-in spirit or otherwise. Accordingly, we agree with the defendant's argument that her pleadings were sufficient to put the plaintiff on notice of the equitable nonforfeiture grounds upon which the trial court decided the present case. We address this issue, in the interest of judicial economy, because it is likely to arise on remand. See, e.g., Mueller v. Tepler, 312 Conn. 631, 646 n.14, 95 A.3d 1011 (2014). Accordingly, we need not reach the plaintiff's arguments regarding the residual hearsay exception. See Conn. Code Evid. § 8-9. We note that during oral argument before this court, counsel for the plaintiff stated that his understanding of the statute is that it only applies to personal injury cases. However, when counsel was read the full text of § 52-174 (b), he acknowledged candidly that his interpretation of the statute might be in error. We acknowledge that this court previously interpreted § 52-174 (b) as applicable only to personal injury cases. Specifically, in Lopiano v. Lopiano, 247 Conn. 356, 380-83, 752 A.2d 1000 (1998), we considered whether § 52-174 (b), as written in 1998, applied to a dissolution of marriage case. Relying on the purpose of the statute, which was to get "medical evidence before the jury in the absence of the treating physician," we explained that "this statutory exception [which] allow[s] for a substitute for testimony was clearly driven by economics due to the necessity for medical evidence in every personal injury action for damages." Id., at 383, 752 A.2d 1000. We concluded that there was "no such corresponding need in every dissolution action," and declined to extend § 52-174 (b) to dissolution actions. Id. We note, however, that the legislature subsequently enacted No. 01-15 of the 2001 Public Acts, which modified and expanded the scope of § 52-174 (b), to include "all other civil actions pending on [October 1, 2001], or brought thereafter ." (Emphasis added.) We briefly address the plaintiff's contention that the trial court improperly admitted the letter because: (1) it did not have an opportunity to cross-examine Fan; (2) there was no evidence that Fan works in the same clinic as Venditti; and (3) there was no cross-examination as to the source of the signatories' knowledge about M. A review of the record reveals that the plaintiff failed to object to the letter on these grounds before the trial court. Accordingly, we decline to review these claims under the well settled principles limiting appellate review of claims alleging improper evidentiary rulings to the grounds asserted before the trial court. See, e.g., State v. Taylor G., 315 Conn. 734, 769-70, 110 A.3d 338 (2015).

12488102

RETAINED REALTY, INC. v. Eileen M. LENAHAN, et al.

Retained Realty, Inc. v. Lenahan

2016-11-08

No. 37587

273

273

150 A.3d 273

150

West's Atlantic Reporter, Third Series

Connecticut Appellate Court

Connecticut

2021-08-27T20:57:14.005530+00:00

Fastcase

RETAINED REALTY, INC. v. Eileen M. LENAHAN, et al.

RETAINED REALTY, INC. v. Eileen M. LENAHAN, et al. No. 37587 Appellate Court of Connecticut. Argued October 17, 2016 Officially released November 8, 2016

43

257

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

12491477

Ellen MCFARLINE v. Patrick W. MICKENS, Jr., Administrator (Estate of Janet Mickens)

McFarline v. Mickens

2017-10-10

AC 39339

417

429

173 A.3d 417

173

West's Atlantic Reporter, Third Series

Connecticut Appellate Court

Connecticut

2021-08-27T20:57:28.835885+00:00

Fastcase

Ellen MCFARLINE v. Patrick W. MICKENS, Jr., Administrator (Estate of Janet Mickens)

Ellen MCFARLINE v. Patrick W. MICKENS, Jr., Administrator (Estate of Janet Mickens) AC 39339 Appellate Court of Connecticut. Argued April 19, 2017 Officially released October 10, 2017 Richard M. Franchi, for the appellant (plaintiff). Maciej A. Piatkowski, for the appellee (defendant). Lavine, Keller and Bishop, Js.

6068

36743

KELLER, J. In this negligence action, the plaintiff, Ellen McFarline, appeals from the summary judgment rendered by the trial court in favor of the defendant, Patrick W. Mickens, Jr., administrator of the estate of Janet Mickens (Mickens). The plaintiff claims that the court, in granting the defendant's motion for summary judgment, erred by (1) failing to consider the pleadings, affidavits and other proof submitted in deciding that there is no genuine issue as to any material fact; (2) considering facts outside the confines of this case; (3) violating her right to due process of law by failing to allow her to review evidence from other cases that the court utilized in deciding the motion for summary judgment; (4) failing to apply the "test" set forth in Sanzone v. Board of Police Commissioners, 219 Conn. 179, 592 A.2d 912 (1991), when determining if there was a chain of causation that included the defendant's negligence in sequence with a highway defect; and (5) denying her postjudgment motions to amend her revised complaint and to reargue the motion for summary judgment. We affirm the judgment of the court. The facts underlying this action, which the plaintiff commenced on January 2, 2015, are neither complicated nor, for purposes of summary judgment, in dispute. The action arises out of injuries that the plaintiff sustained while she was walking on a public sidewalk in Meriden on May 14, 2013. The sidewalk was adjacent to premises owned by Mickens. In her revised complaint of April 29, 2015, the plaintiff alleged that, "a dangerous, defective and unsafe condition existed on the aforementioned sidewalk . namely, a broken and cracked concrete sidewalk and adjacent curb with grass growing wildly through the crack and broken sections.... [The plaintiff] was walking on the aforementioned sidewalk when she came in contact with the defective, dangerous and unsafe condition, that being the broken and cracked concrete and a section of the broken concrete under her foot did break away from the curb causing her to slip and fall and causing her injuries and damages ." The plaintiff alleged that the sidewalk "is used by the public to transgress over." The plaintiff alleged that she sustained physical injuries, principally to her right leg, that necessitated medical treatment and that interfered with her employment and normal life pursuits. The plaintiff alleged that Mickens was negligent in that she "allowed and permitted the . [defect] to exist and remain . failed to repair and or remedy the . [defect] in a timely manner . allowed and permitted individuals to use the sidewalk although she knew or reasonably should have known of the presence of the . [defect] . failed to properly maintain the . premises including the sidewalk and curb . failed to inspect the premises including the sidewalks and curbs . failed to warn those upon said premises, including the plaintiff, of the presence of the aforementioned [defect] . failed to place devices, signs and or tape, so that as to make the [defect] visible and readily apparent to individuals . she failed to place devices, signs and or tape, so as to physically prevent individuals from using said sidewalk . failed to cut the grass on the sidewalk and/or remove any grass that was hiding defects on the sidewalk . [and] failed to have the curb properly constructed . pursuant to building ordinances in . Meriden." Following discovery, the defendant moved for summary judgment. In his memorandum of law in support of his motion, the defendant argued that he was entitled to judgment as a matter of law because, under the facts as alleged by the plaintiff, Mickens owed no duty to the plaintiff to maintain the sidewalk. The defendant asserted that "Connecticut law is clear that an abutting landowner is not liable for the unsafe condition of an adjacent public sidewalk unless the unsafe condition is actually caused by the abutting landowner. See Robinson v. Cianfarani... 314 Conn. [521, 529, 107 A.3d 375 (2014) ] ." The defendant observed that because the plaintiff did not assert in her complaint that Mickens caused the sidewalk defect by any "positive actions," Mickens did not owe a duty to the plaintiff to repair or warn of the defect. The defendant further reasoned that to the extent that Meriden ordinances imposed responsibilities on abutting landowners to maintain sidewalks, in the absence of state statutory authority, such ordinances cannot be interpreted as having shifted liability from Meriden and onto the defendant. Even if the city of Meriden could shift liability by ordinance, the defendant argued, those ordinances did not sufficiently express the intent to shift liability. In her memorandum in support of her objection to the motion for summary judgment, the plaintiff argued that the defendant's motion for summary judgment addressed only one of the causes of the plaintiff's injuries, specifically, the crack in the sidewalk. She argued that grass growing on the sidewalk, as alleged, was not a defect under our municipal defective highway statute, General Statutes § 13a-149 and, therefore, it was "the responsibility of the landowner to remove . [it] and to make the property safe for pedestrians ." The plaintiff argued § 180-42 of the Meriden City Code, which requires the abutting landowner to keep grass or weeds properly cut or removed in the area of the sidewalk, was controlling and that it shifted the burden of sidewalk maintenance to Mickens. The plaintiff also asserted that there was a genuine issue of material fact as to whether the defendant's failure to remove the "wildly growing grass" on the sidewalk was a proximate cause of her injury. The court agreed with the defendant and granted the motion for summary judgment. The court reasoned that Mickens owed no duty to the plaintiff because "the positive act exception to the general rule absolving property owners of liability for defective sidewalks cannot be established in the case of growing grass, since grass grows by itself." The court also observed that the "Meriden grass-cutting ordinance [on which the plaintiff relied] . does not shift liability to the individual with the specificity required by Willoughby v. New Haven, 123 Conn. 446, 451, 197 A. 85 (1937), and [that, in any event, the plaintiff] . expressly abandoned her reliance on the ordinance at argument." The plaintiff thereafter filed motions to amend her revised complaint and to reargue the motion for summary judgment, the contents of which we discuss in part III of this opinion. The court denied the motion to reargue. The record does not reflect that the court rendered a disposition on the motion to amend the revised complaint. This appeal followed. Additional facts will be provided as necessary. I We first address the plaintiff's related claims that the court erred in granting the defendant's motion for summary judgment (1) by failing to consider the pleadings, affidavits and other proof submitted in deciding that there was no genuine issue as to any material fact, and (2) by failing to apply the definition of a highway defect as set forth in Sanzone v. Board of Police Commissioners, supra, 219 Conn. at 179, 592 A.2d 912, when determining whether there was a chain of causation that included the defendant's negligence in sequence with a highway defect. We disagree. We observe the following principles relating to motions for summary judgment. Summary judgment shall be granted "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." Practice Book § 17-49. A fact is material when it will make a difference in the outcome of a case. DiPietro v. Farmington Sports Arena, LLC, 306 Conn. 107, 116, 49 A.3d 951 (2012). The party moving for summary judgment bears the burden of demonstrating the absence of any genuine issue of material fact. Lopes v. Farmer, 286 Conn. 384, 388, 944 A.2d 921 (2008). The trial court must view the evidence in the light most favorable to the nonmoving party. Id. Appellate review of the trial court's decision to grant summary judgment is plenary. Bozelko v. Papastavros, 323 Conn. 275, 282, 147 A.3d 1023 (2016). "[W]e must [therefore] decide whether [the trial court's] conclusions are legally and logically correct and find support in the facts that appear in the record." (Internal quotation marks omitted.) Mirjavadi v. Vakilzadeh, 310 Conn. 176, 191, 74 A.3d 1278 (2013). We dispose of each of these related claims as follows. A The plaintiff repeatedly asserts in a conclusory manner that, despite the court's judgment, two genuine issues of material fact remain. First, the plaintiff claims that there is a genuine issue of material fact with respect to whether the wildly growing grass that concealed the crack in the sidewalk hindered her ability to safely use the sidewalk and that, if it did not hinder her, the condition of the sidewalk did not meet the definition of a highway defect so as to confer liability exclusively on the city of Meriden. Whether the plaintiff was injured because the grass obstructed her view of the crack, or whether, for instance, the grass came into contact with her foot, causing her to slip and fall, however, is simply not material to a disposition of the motion for summary judgment in this case. See DiPietro v. Farmington Sports Arena, LLC, supra, 306 Conn. at 116, 49 A.3d 951 (fact is material if it makes difference in outcome of case). In part I B of this opinion, we discuss why the issue is not material and is therefore not a barrier to granting summary judgment in the defendant's favor. Second, the plaintiff asserts that a genuine issue of material fact exists with respect to whether the grass was a proximate cause of her alleged injuries. She argues that there is a genuine dispute as to whether "the wildly growing grass prevented the plaintiff from seeing the broken part of the sidewalk and this caused her to step on the broken sidewalk because she could not see it and it gave way causing her to fall." The defendant, however, for purposes of summary judgment, did not dispute that the plaintiff was injured after falling on the public sidewalk adjacent to Mickens' property, or that her fall was caused by "a broken and cracked concrete sidewalk and adjacent curb with grass growing wildly through the crack and broken sections." Accordingly, the claim that the trial court failed to consider the pleadings and other proof submitted in determining that there were no genuine issues of fact is without merit. B The plaintiff next argues that the court erred as a matter of law by failing to apply the definition of a highway defect as set forth in Sanzone v. Board of Police Commissioners, supra, 219 Conn. at 179, 592 A.2d 912. We disagree. As previously mentioned, the defendant argued, and the trial court agreed, that, absent proof of a positive act by Mickens that caused or contributed to the plaintiff's fall, Mickens owed no duty to the plaintiff to maintain the sidewalk, specifically, by keeping it free of wildly growing grass. We agree. "The essential elements of a cause of action in negligence are well established: duty; breach of that duty; causation; and actual injury." RK Constructors, Inc. v. Fusco Corp., 231 Conn. 381, 384, 650 A.2d 153 (1994). Our analysis in this case begins and ends with the first element, 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.... Because the court's determination of whether the defendant owed a duty of care to the plaintiff is a question of law, our standard of review is plenary.... Our Supreme Court has stated that the test for the existence of a legal duty of care 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.... The first part of the test invokes the question of foreseeability, and the second part invokes the question of policy." (Citations omitted; internal quotation marks omitted.) Abramczyk v. Abbey, 64 Conn.App. 442, 445, 780 A.2d 957, cert. denied, 258 Conn. 933, 785 A.2d 229 (2001). It has long been established that municipalities have the primary duty to maintain public sidewalks in a reasonably safe condition. Robinson v. Cianfarani, supra, 314 Conn. at 525, 107 A.3d 375. General Statutes § 13a-99 further provides in relevant part that "[t]owns shall, within their respective limits, build and repair all necessary highways and bridges except when such duty belongs to some particular person.... " When a sidewalk "along a public street in a city [has] been constructed and thrown open for public use, and used in connection with the rest of the street, [it] must, as a part of the street," be maintained by the city, and kept in such repair "as to be reasonably safe and convenient for . travelers ." Manchester v. Hartford, 30 Conn. 118, 121 (1861). "[This] duty is by law imposed primarily upon the city, and to the city the public and individuals have a right to look for security against accidents, as well as for indemnity for injury occasioned by its neglect." Id. This primary duty cannot ordinarily be delegated to or imposed upon a third party by contract or ordinance. "An abutting landowner, in the absence of statute or ordinance, ordinarily is under no duty to keep the public sidewalk in front of his property in a reasonably safe condition for travel." Wilson v. New Haven, 213 Conn. 277, 280, 567 A.2d 829 (1989). Abutting landowners, therefore, are generally not liable for injuries caused by defects on public sidewalks adjacent to their property. See Robinson v. Cianfarani, supra, 314 Conn. at 529, 107 A.3d 375. The common-law rule is that the abutting landowner is under no duty to keep a public sidewalk in front of his property in a reasonably safe condition for travel. Id. Moreover, shifting liability cannot be accomplished by inference or by alleging alternative theories of common-law negligence. Id., at 528, 107 A.3d 375. There are two exceptions. First, municipalities, in limited circumstances, can confer liability onto the abutting landowner through a charter provision, statute, or ordinance. Id. Second, landowners may be liable for injuries caused by defects they created by their own actions. Id. Specifically, our courts have long recognized "an exception to the general rule, in that the abutting landowners can be liable in negligence or public nuisance for injuries resulting from an unsafe condition of a public sidewalk caused by positive acts of the defendant." Gambardella v. Kaoud, 38 Conn.App. 355, 358-59, 660 A.2d 877 (1995). Examples of this exception include a landowner who maintained a gasoline pump inches away from a sidewalk which would spill gasoline onto the sidewalk, rendering it unsafe for travel; Hanlon v. Waterbury, 108 Conn. 197, 198-99, 142 A. 681 (1928) ; and a defendant who allowed grease from his restaurant to seep from the front of his building onto the public walk. Perkins v. Weibel, 132 Conn. 50, 51, 42 A.2d 360 (1945). Therefore, without a statute that confers liability or the creation by the abutting landowner of the cause of the injury to the plaintiff, the landowner owes no duty to members of the public traversing the public sidewalk. See Wilson v. New Haven, supra, 213 Conn. at 280-81, 567 A.2d 829. In her objection to the defendant's motion for summary judgment, the plaintiff did not attempt to argue that the defendant was liable to her on the basis of the cracked condition of the public sidewalk and curb. Instead, she maintained that, unlike the crack, the wildly growing grass that she alleges contributed to her injuries by concealing the crack is not a defect covered by the municipal highway defect statute, § 13a-149, because the grass, in and of itself, did not hinder her from walking on the sidewalk. She argued that abutting landowners, regardless of the lack of any ordinance or statute that shifted liability or proof of a positive act on the part of the landowner, are liable for "nonsidewalk defects." Similarly, on appeal, the plaintiff does not address the preceding authority regarding exceptions to the common-law rule that would shift liability for an unsafe public sidewalk from the municipality to an abutting property owner either by statute or ordinance or the positive act of the property owner. Rather, the plaintiff argues that because the grass did not constitute a "highway defect" under § 13a-149, as defined in Sanzone v. Board of Police Commissioners, supra, 219 Conn. at 179, 592 A.2d 912, the defendant is liable for the plaintiff's injury due to Mickens' failure to remove the grass that concealed the crack in the sidewalk. The plaintiff's argument is flawed. In Sanzone, the estate of a person injured in a motor vehicle accident sued a municipality, alleging that the accident was caused by the existence of simultaneous green traffic lights in perpendicular directions. Id., at 181, 592 A.2d 912. The issue was whether the traffic light was a "highway defect" for the purpose of § 13a-149. Under § 13a-149, municipalities can be held liable for injuries caused by highway defects on public roads. Our Supreme Court in Sanzone reiterated longstanding case law that a highway defect is defined as "[a]ny object in, upon, or near the traveled path, which would necessarily obstruct or hinder one in the use of the road for the purpose of traveling thereon, or which, from its nature and position, would be likely to produce that result ." (Internal quotation marks omitted.) Sanzone v. Board of Police Commissioners, supra, 219 Conn. at 202, 592 A.2d 912. Even if we were to assume, arguendo, that the growing grass failed to meet the definition of a highway defect, the outcome of this case would not be different. The main issue affecting summary judgment in this case is whether Mickens owed a duty to the plaintiff. Sanzone and § 13a-149 address municipality liability; neither are pertinent to whether Mickens owed a duty to the plaintiff and they are therefore inapplicable to this case. The plaintiff has not identified any authority in support of the contention that when dangerous "nonsidewalk" defects or naturally occurring conditions not created by an abutting landowner are present on a public sidewalk, the abutting landowner has an affirmative duty to rectify such defects and is subject to liability to third parties for any injuries if he or she fails to do so. Again, the controlling longstanding rule is that abutting landowners are not liable for injuries due to the lack of public sidewalk maintenance, unless there is a statute conferring liability or the landowner contributed to the creation of the accident-causing condition by positive act. See Hartford v. Talcott, 48 Conn. 525, 534 (1881) (landowner owes no duty to public for defects resulting wholly from operations of nature). The revised complaint does not allege, nor does the plaintiff claim, either that Mickens had possession of, or control over the sidewalk abutting her property. There also is no allegation in the plaintiff's revised complaint or in the documents she submitted in opposition to summary judgment that Mickens created the wildly growing grass on the sidewalk through any positive act. Rather, it alleges that Mickens failed to take affirmative steps to remediate an existing condition on what was indisputably a public sidewalk. See Robinson v. Cianfarani, supra, 314 Conn. at 528, 107 A.3d 375. As was noted previously in this opinion, the court observed that the plaintiff abandoned any claim that a Meriden ordinance had shifted liability to the defendant. Whether the plaintiff sustained the injury because the clump of grass obstructed her view of the crack or the grass caused her to trip or slip; see part I A of this opinion; the fact remains that the pleadings and other documents do not remotely suggest that Mickens through any positive act caused the grass to grow on the sidewalk. Grass is naturally occurring. As the court aptly noted, "grass grows by itself." Therefore, the plaintiff's alternative theory of common-law liability based on the Mickens' negligence for "nonsidewalk" defects is governed by the settled common-law rule that, in the absence of statute or ordinance, an abutting landowner ordinarily is under no duty to keep the public sidewalk in front of her property in a reasonably safe condition for travel. Accordingly there is no basis to impose liability on the defendant. II We next consider the plaintiff's related claims that in granting summary judgment, the court erroneously considered facts outside the confines of this case and in so doing, violated the plaintiff's right to due process of law by failing to allow her to review evidence from other cases that the court utilized in deciding the motion for summary judgment. The plaintiff claims that the court, by citing to its prior decision in Marino v. Branford, Superior Court, judicial district of New Haven, Docket No. 431477 (Oct. 12, 2000) (28 Conn. L. Rptr. 297, 2000 WL 1683426 ), in its memorandum of decision on the motion for summary judgment, relied on facts outside the record and violated the plaintiff's rights. These claims are entirely without merit. In Marino, the injured party fell when she stepped on a sidewalk defect that was concealed by weeds and grass. Id., at 297. The court determined that the abutting landowner was not liable, however, because grass grows naturally and, thus, the condition at issue was not created by a positive act. Id., at 298. In its memorandum of decision, the court in the present case reasoned: "For the reasons set forth in [ Marino ] . the objection to the motion for summary judgment must be overruled. As explained in Marino, 'the positive act exception to the general rule absolving abutting property owners of liability for defective sidewalks cannot be established' in the case of growing grass, since grass grows by itself.... The operative facts of Marino cannot be distinguished from the operative facts of this case, and, despite frequent entreaties by the court at argument, [the plaintiff] was unable to articulate any such distinction." There is no indication that the court considered the facts in Marino in lieu of the facts presented by the parties at summary judgment. A court may look to an opinion from a factually similar case, or any reported case, in fact, even if such case is nonbinding, for legal guidance in resolving the case before it. Cf. Turner v. Frowein, 253 Conn. 312, 341, 752 A.2d 955 (2000). The court here merely applied the "[r]easons set forth in Marino" because of the plaintiff's inability to distinguish "[t]he operative facts Marino" from the "operative facts of this case." In any event, for the reasons provided in parts I A and I B of this opinion, we conclude under a plenary standard of review that the defendant was entitled to judgment as a matter of law. The plaintiff's due process claim merits little discussion. Whether a party was deprived of his due process rights is a question of law to which appellate courts grant plenary review. Gagne v. Vaccaro, 154 Conn.App. 656, 671, 109 A.3d 500 (2015). The core interests protected by procedural due process concern the opportunity to be heard at a meaningful time and in a meaningful manner. Jones v. Connecticut Medical Examining Board, 309 Conn. 727, 736, 72 A.3d 1034 (2013). The plaintiff does not assert rights of this nature. Instead, the plaintiff argues that the court did not provide notice that it would cite to the Marino decision. The argument is wholly frivolous, and we further note that the defendant cited to Marino in his motion for summary judgment. For all of the foregoing reasons, we conclude that the court did not err in granting the defendant's motion for summary judgment. III The plaintiff's final claim is that the court erred by denying the plaintiff's postjudgment motions to amend her revised complaint and to reargue the motion for summary judgment. We disagree. We note the following additional facts relevant to this claim. The plaintiff's revised complaint alleges that she fell on May 14, 2014, and it refers to the defendant's decedent as Janice Mickens, rather than Janet Mickens. Through discovery, however, it was determined that the incident had in fact occurred on May 14, 2013. It is undisputed that Mickens died on January 4, 2014. The plaintiff did not correct these errors in her revised complaint prior to the granting of summary judgment. In its memorandum of decision granting summary judgment, the court observed that the plaintiff incorrectly referred to Janice Mickens and that Mickens had been dead for over four months at the time of the incident in question, thus leaving "the identity of the person actually responsible for the condition complained of . in considerable doubt." The court, however, acknowledged the incorrect date was "not the subject of the defendant's motion for summary judgment." After the court granted summary judgment, the plaintiff filed the two motions previously identified. The plaintiff sought to amend her revised complaint to fix the error as to the date of the incident and sought to reargue the motion for summary judgment because she argues the court rendered its decision "based upon [the] . erroneous facts" her amendment sought to cure. The court summarily denied the motion to reargue. The record does not indicate that the court ruled on the motion to amend. As she did before the trial court, the plaintiff argues that the court looked to incorrect details when deciding whether to grant summary judgment for the defendant. Therefore, the plaintiff argues that the record should be modified to allow for a "proper decision upon the facts." "[T]he purpose of a reargument is . to demonstrate to the court that there is some decision or some principle of law which would have a controlling effect, and which has been overlooked, or that there has been a misapprehension of facts.... It also may be used to address alleged inconsistencies in the trial court's memorandum of decision as well as claims of law that the [movant] claimed were not addressed by the court." (Citation omitted; internal quotation marks omitted.) Opoku v. Grant, 63 Conn.App. 686, 692, 778 A.2d 981 (2001). It is not meant for a second bite at the apple. Id. Denial of the motion to reargue is within the discretion of the trial court, and an appellate court applies abuse of discretion review. Weiss v. Smulders, 313 Conn. 227, 261, 96 A.3d 1175 (2014). The trial court's decision is affirmed if there is a reasonable basis for its conclusions. Biro v. Hill, 231 Conn. 462, 465, 650 A.2d 541 (1994). In ruling on the motion for summary judgment, the court merely acknowledged the confusion created by the incorrect date alleged in the complaint. The court expressly stated that the incorrect date was "not the subject of the defendant's motion for summary judgment." The principal issue on summary judgment was whether the owner of the property adjacent to the sidewalk in question owed the plaintiff a duty to maintain the sidewalk. The court concluded that the abutting landowner at the time of the plaintiff's accident, whether it was Mickens or her estate, could not be held liable. We are not persuaded that reargument based on the correct date of the plaintiff's fall, as argued, would have affected the court's judgment. Whether Mickens or her estate was the abutting landowner at the time of the incident in question was irrelevant to the court's analysis. For the foregoing reasons, the court did not abuse its discretion in denying the plaintiff's motion to reargue. To the extent that the plaintiff challenges the court's denial of her motion to amend, we observe that "[w]e cannot pass on the correctness of a trial court ruling that was never made." Fischel v. TKPK, Ltd., 34 Conn.App. 22, 26, 640 A.2d 125 (1994). Additionally, we observe that, having denied the motion to reargue, the court let the judgment in favor of the defendant stand and, thus, eliminated any possible basis for granting the motion to amend. The judgment is affirmed. In this opinion the other judges concurred. As several of the plaintiff's claims are interrelated, we address the plaintiff's first and fourth claims in part I of this opinion, the second and third claims in part II, and the fifth claim in part III. Mickens died on January 4, 2014. On March 15, 2014, the defendant became the administrator of her estate. Section 180-42 of the Meriden City Code provides: "Whenever a sidewalk has been laid in the city, the occupant or, if there is no occupant, the owner of any premises abutting upon such sidewalk shall keep the grass or weeds properly cut or removed in the area between the property line of such premises and the curbline." Section 180-41 of the Meriden City Code provides in relevant part: "A. After having been notified by the department of public works so to do, it shall be unlawful for any person not to properly repair any portion of a sidewalk adjoining his property within the time specified in such a notice. "B. Upon the default or neglect of any person to comply with such notice . the department may construct or repair such sidewalk, and the expense thereof shall be chargeable to the person whose duty it was to repair said sidewalk and shall be collectible by the city in the same manner that other debts due the city are collected, and said expense shall be a lien upon the premises adjoining such sidewalk...." General Statutes § 13a-149 provides in relevant part: "Any person injured in person or property by means of a defective road or bridge may recover damages from the party bound to keep it in repair.... No action for any such injury shall be maintained against any town, city, corporation or borough, unless written notice of such injury and a general description of the same, and of the cause thereof and of the time and place of its occurrence, shall, within ninety days thereafter be given to a selectman or the clerk of such town, or to the clerk of such city or borough, or to the secretary or treasurer of such corporation." In its memorandum of decision, however, the court noted that the defendant at oral argument, "expressly abandoned" her claim that Meriden Ordinance § 180-42, requiring abutting landowners to cut or remove grass or weeds from public sidewalks, effectively shifted liability to the landowner. Our legislature has enacted enabling legislation to permit municipalities to promulgate rules and regulations concerning sidewalks encompassed within municipal highway rights of way. Municipalities may require property owners to remove debris and other obstructions from abutting sidewalks. See General Statutes § 7-148 (c) (6) (C) (v). Pursuant to § 7-148, municipalities also may levy penalties against abutting landowners for their failure to remove such debris and obstructions. Id. Accordingly, the city of Meriden requires property owners to keep grass or weeds properly cut or removed in the area between the property line of the landowner's premises and the curbline. Meriden City Code § 180-42. But there is no language in this ordinance or in any statute that imposes upon the abutting property owner any liability to a third party for his injuries. Under General Statutes § 7-163a, municipalities may transfer to abutting property owners liability solely for injuries caused by ice and snow on public sidewalks. Section 7-148 is the only other source under which a municipality may delegate duties to abutting landowners with respect to sidewalks. Although § 7-148 authorizes municipalities to require abutting property owners to remove debris and other obstructions from public sidewalks, unlike § 7-163a, it does not authorize a municipality to shift liability for injuries to adjacent landowners. See Dreher v. Joseph, 60 Conn.App. 257, 261, 759 A.2d 114 (2000) (general rule of construction that even where ordinance imposes on property owners duty normally performed by municipality, there is no private cause of action unless plainly expressed in ordinance). As noted previously, during the hearing on the motion for summary judgment, the plaintiff abandoned any claim that § 180-42 of the Meriden City Code conferred liability on Mickens or her estate. It appears that, by using this terminology, the plaintiff may be referring to nonstructural sidewalk defects, which would exclude a lot of other conditions on or adjacent to public sidewalks that may constitute highway defects under § 13a-149, including ice and snow; Bellman v. West Hartford, 96 Conn.App. 387, 900 A.2d 82 (2006) ; loose gravel; Hickey v. Newtown, 150 Conn. 514, 517, 192 A.2d 199 (1963) ; defects such as holes in the traveled right of way that are not part of the actual concrete sidewalk; Angelillo v. Meriden, 136 Conn. 553, 555-56, 72 A.2d 654 (1950) ; and intrusive tree limbs; Comba v. Ridgefield, 177 Conn. 268, 270, 413 A.2d 859 (1979). General Statutes § 13a-149 provides: "Any person injured in person or property by means of a defective road or bridge may recover damages from the party bound to keep it in repair.... No action for any such injury shall be maintained against any town, city, corporation or borough, unless written notice of such injury and a general description of the same, and of the cause thereof and of the time and place of its occurrence, shall, within ninety days thereafter be given to a selectman or the clerk of such town, or to the clerk of such city or borough, or to the secretary or treasurer of such corporation." We do not necessarily agree with the plaintiff that grass growing over the crack in the public sidewalk was not a part of her description in her revised complaint of the defective, dangerous and unsafe condition on the sidewalk alleged to have caused her slip and fall. "Whether a highway is defective may involve issues of fact, but whether the facts alleged would, if true, amount to a highway defect according to the statute is a question of law ." Sanzone v. Board of Police Commissioners, supra, 219 Conn. at 201, 592 A.2d 912. "If in the use of the traveled portion of the highway . a condition exists which makes travel not reasonably safe for the public, the highway is defective." (Internal quotation marks omitted.) Ferreira v. Pringle, 255 Conn. 330, 344, 766 A.2d 400 (2001). As the plaintiff alleged in her affidavit accompanying her objection to the motion for summary judgment, the "wildly growing grass" contributed to the defective nature of the sidewalk because she averred that she "could not see the crack when I stepped on it because it was hidden by the grass." Since the grass was obstructing her ability to see the crack, the grass, by its nature and position, was as much a hindrance to her safe travel on the sidewalk as the crack beneath it. Photographs submitted by the plaintiff as exhibits accompanying her objection might have indicated to a trier of fact that if the grass had not been concealing the crack, the plaintiff might have seen it and been able to avoid the accident. See Parker v. Hartford, 122 Conn. 500, 503-504, 190 A. 866 (1937) (town liable under defective highway statute for foot-deep gulley partially concealed by grass in public street.) In fact, the allegation that the grass was "wildly growing" would be contrary to any claim that Mickens placed seeds or grass over the cracked area of the sidewalk. Compare the present matter with Gambardella v. Kaoud, supra, 38 Conn.App. at 359, 660 A.2d 877, in which the plaintiffs won reversal of summary judgment in favor of abutting landowners in a defective sidewalk case not because sand, sticks and debris had naturally accumulated on the sidewalk, but because the plaintiffs had alleged that the defendants caused the condition by a positive act.

12489798

TOWN OF MIDDLEBURY et al. v. CONNECTICUT SITING COUNCIL

Town of Middlebury v. Conn. Siting Council

2017-06-27

SC 19799

537

545

161 A.3d 537

161

West's Atlantic Reporter, Third Series

Connecticut Supreme Court

Connecticut

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

Fastcase

Rogers, C.J., and Palmer, Eveleigh, McDonald, Espinosa and Robinson, Js.

TOWN OF MIDDLEBURY et al. v. CONNECTICUT SITING COUNCIL

TOWN OF MIDDLEBURY et al. v. CONNECTICUT SITING COUNCIL SC 19799 Supreme Court of Connecticut. Argued January 17, 2017 Officially released June 27, 2017 Stephen L. Savarese, with whom was Dana D'Angelo, town attorney, for the appellants (plaintiffs). Robert L. Marconi, assistant attorney general, with whom were Clare E. Kindall, assistant attorney general, and, on the brief, George Jepsen, attorney general, for the appellee (defendant). Philip M. Small and Franca L. DeRosa, with whom, on the brief, was Kyle R. Johnson, for the appellee (intervening defendant). Rogers, C.J., and Palmer, Eveleigh, McDonald, Espinosa and Robinson, Js. This case originally was scheduled to be argued before a panel of this court consisting of Chief Justice Rogers and Justices Palmer, Eveleigh, McDonald, Espinosa and Robinson. Although Chief Justice Rogers was not present at oral argument, she has read the briefs and appendices, and has listened to a recording of oral argument prior to participating in this decision.

4165

27086

McDONALD, J. This appeal concerns a proviso contained in General Statutes § 16-50p, which precludes the defendant, Connecticut Siting Council, from granting a certificate of environmental compatibility and public need (certificate) for operation of an electric generating or storage facility unless the council, among other things, "considers neighborhood concerns" with respect to specified factors. The plaintiffs, the town of Middlebury and sixteen residents and entities situated in Middlebury and adjacent towns, appeal from the judgment of the trial court dismissing their appeal from the decision of the council granting the petition of CPV Towantic, LLC (CPV), to open and modify a certificate for an electric generating facility. The plaintiffs' principal claim is that the trial court improperly determined that the council adequately had considered neighborhood concerns, despite the absence of express findings or analysis in its decision addressing the plaintiffs' concerns about adverse impacts from the facility. We affirm the judgment of the trial court. The record reveals the following undisputed facts and procedural history. On June 23, 1999, the council granted CPV's predecessor a certificate, pursuant to General Statutes (Rev. to 1999) § 16-50k (a), permitting the construction, maintenance, and operation of a 512 megawatt electric generating facility in the town of Oxford. A citizen's group unsuccessfully challenged that decision. See Citizens for the Defense of Oxford v. Connecticut Siting Council , Superior Court, judicial district of Hartford-New Britain at New Britain, Docket No. CV-99-0497075-S, 2000 WL 1785118 (November 14, 2000). As of late 2014, the council had granted CPV several extensions of time to complete construction of the facility, but it was not yet completed and operational. On November 3, 2014, CPV submitted a petition to open and modify the certificate based on changed conditions, pursuant to General Statutes § 4-181a(b). The changed conditions identified therein included a greater need for electric capacity, the development of the electric market, advances in the use of renewable resources and combustion turbine technology, and more rigorous environmental regulations. On the basis of the identified changed conditions, CPV sought permission to update and upgrade its proposed electric generating facility to, among other things, provide approximately 50 percent more electricity (from 512 to 785 megawatts), expand its site from approximately twenty acres to twenty-six acres, and reconfigure its buildings and stacks for a lower profile. The council granted the petition as to the request to open the certificate, but opened the original docket in its entirety and thus did not limit the proceedings to the changed conditions alleged in CPV's petition. As a consequence, the plaintiffs and others sought to oppose the facility on the basis of other changed conditions that they claimed weighed against the facility as originally planned and as proposed. One of the individual plaintiffs was designated a party to the proceedings, other plaintiffs, including the town of Middlebury, were permitted to intervene in the proceedings, and others participated in the process by submitting public comments and/or speaking at the public hearings. Between January and March, 2015, the council conducted a public inspection of the site and held seven evidentiary hearings. At the evidentiary hearings, the parties and intervenors were permitted to submit evidence and question witnesses. In addition, the council sought information from parties and intervenors through interrogatories and requests for late-filed exhibits. The plaintiffs raised a broad range of concerns on the purported adverse effects of the facility on the environment and public safety, including, but not limited to, the impact of harmful pollutants on nearby residents, the effect of increased pollution, noise, and traffic on the rural setting of the neighboring localities, and the proximity of the facility to the Waterbury-Oxford Airport and its attendant risk to aviation safety. On May 14, 2015, the council issued a written decision granting the petition as to the request to modify the certificate and approving CPV's proposed modifications, with certain conditions. The decision was issued in three parts: "Findings of Fact" (sixty-three pages containing 314 separate findings); "Opinion" (ten pages of ultimate findings of fact and legal conclusions); and "Decision and Order." The council determined therein that conditions had changed since it issued the original certificate in 1999, citing most, but not all, of the changes alleged in CPV's petition. It acknowledged the anticipated adverse effects of the facility, but concluded that such effects were "not disproportionate either alone or cumulatively with other effects when compared to [the] benefit" and were therefore "not sufficient reason to deny the proposed project." The council concluded: "[T]he current CPV proposal significantly improves on th[e] original project. CPV's project utilizes state-of-the-art combustion technology to increase the reliability of the power supply. It is equally as protective of natural resources as the approved project, and, in a few cases, more so, as the technical standards for measuring, monitoring and maintaining protection have risen. Notwithstanding continued public opposition, which the [c ]ouncil both acknowledges and has tried to use constructively in this decision , it is the [c]ouncil's opinion that improvements offered by CPV's proposal do provide significant benefit to the public." (Emphasis added.) The plaintiffs appealed from the council's decision to the Superior Court pursuant to General Statutes § 4-183(a). On appeal, the plaintiffs principally claimed that (1) the council did not follow its statutory directive under § 16-50p(c)(1) to consider neighborhood concerns, (2) the council violated the plaintiffs' due process rights through numerous decisions during the proceedings that impaired their ability to make their case, and (3) the council's decision granting the certificate modification was not supported by substantial evidence. After oral argument, the trial court dismissed the appeal. The trial court concluded that the council had "extensively considered neighborhood concerns" because "there can be no genuine dispute that the council heard and admitted massive amounts of evidence about neighborhood concerns and made extensive findings on these matters in its decision." The court deemed the plaintiffs' due process and substantial evidence claims abandoned due to inadequate briefing, but nonetheless explained why those claims failed on the merits. The trial court concluded that "[t]he plaintiffs enjoyed a full opportunity to present their case" and, in any event, had failed to identify any harm flowing from the rulings they challenged. In addition, the trial court concluded that there was substantial evidence to support the council's decision approving CPV's modifications. Accordingly, the trial court rendered judgment dismissing the plaintiffs' appeal. The plaintiffs appealed to the Appellate Court, challenging the trial court's decision on the merits of their neighborhood concerns claim and on the abandonment of their due process and substantial evidence claims. We thereafter transferred the appeal to this court pursuant to General Statutes § 51-199(c) and Practice Book § 65-1. I The plaintiffs' principal claim is that the trial court improperly concluded that the council had discharged its duty under § 16-50p(c)(1) to consider neighborhood concerns in granting CPV's petition to open and modify its certificate. They disagree that it is sufficient for the council to entertain their evidence and broadly acknowledge their concerns. They contend, in effect, that, in order to "consider" neighborhood concerns, the council was required to formally acknowledge their individualized concerns in its decision and to articulate a response, if not to all of them, at least to their major concerns. Although they advance a broad attack on the council's decision, the plaintiffs specifically identify only one concern that they claim was ignored by the council-the possible effect of the facility's air emissions on local production of hay and timber. We disagree that the council failed to satisfy its statutory obligation to consider neighborhood concerns. The present case requires us both to discern the meaning of a statute and to ascertain whether that standard was met under the facts of the present case. As such, our analysis of § 16-50p(c)(1) is guided by General Statutes § 1-2z and well established principles of statutory construction. See Lieberman v. Ar o now , 319 Conn. 748, 756-58, 127 A.3d 970 (2015) ; see also Indian Spring Land Co. v. Inland Wetlands & Watercourses Agency , 322 Conn. 1, 11, 145 A.3d 851 (2016). "[O]ur fundamental objective is to ascertain and give effect to the apparent intent of the legislature." (Internal quotation marks omitted.) FairwindCT, Inc. v. Connecticut Siting Council , 313 Conn. 669, 680, 99 A.3d 1038 (2014). Statutory construction presents a question of law over which we exercise plenary review. See Indian Spring Land Co. v. Inland Wetlands & Watercourses Agency , supra, at 11, 145 A.3d 851. Section 16-50p(c)(1), part of the Public Utility Environmental Standards Act (act) under chapter 277a of the General Statutes, provides in relevant part: "The council shall not grant a certificate for a facility . either as proposed or as modified by the council, unless it finds and determines a public benefit for the facility and considers neighborhood concerns with respect to the factors set forth in subdivision (3) of subsection (a) of this section, including public safety." (Emphasis added.) We begin by acknowledging what is and is not at issue. There is no claim in the present case that the concerns raised by the plaintiffs failed to relate to the factors set forth in § 16-50p(a)(3), which focuses on environmental impact and public safety. See footnote 1 of this opinion. Nor is there a claim that the concerns raised were not ones affecting the "neighborhood," a term that is not defined in the act. Instead, the present case turns on the nature of the council's obligation to "[consider] neighborhood concerns ." General Statutes § 16-50p(c)(1). Nowhere in the act is the term "consider" defined, nor does the act elaborate procedural requirements that might indicate a meaning specific to this context. "In the absence of a definition of terms in the statute itself, [w]e may presume . that the legislature intended [a word] to have its ordinary meaning in the English language, as gleaned from the context of its use.... Under such circumstances, it is appropriate to look to the common understanding of the term as expressed in a dictionary." (Internal quotation marks omitted.) Studer v. Studer , 320 Conn. 483, 488, 131 A.3d 240 (2016) ; see General Statutes § 1-1(a) (directing courts to use common meaning). As the trial court observed, and the plaintiffs themselves acknowledge and accept, "consider" is defined in Webster's Third New International Dictionary (1986) as "to reflect on: think about with a degree of care or caution ." The American Heritage Dictionary of the English Language (5th Ed. 2011) similarly defines consider as "[t]o think carefully about," "[t]o take into account," and "[t]o look at thoughtfully ." These definitions simply refer to a deliberative process. Thus, although the council is required to take neighborhood concerns into account, notably absent from § 16-50p(c)(1) is any requirement that the council expressly articulate any such reflections or deliberations. By contrast, in that same subdivision of the statute, the legislature has provided that the council cannot grant a certificate for an electric generating facility "unless it finds and determines a public benefit for the facility ." (Emphasis added.) General Statutes § 16-50p(c)(1). Similarly, § 16-50p(a)(3)(B) -incorporated by reference in § 16-50p(c)(1) -directs the council to "find and determine . [t]he nature of the probable environmental impact of the facility . including a specification of every significant adverse effect" with respect to a nonexhaustive list of factors. (Emphasis added.) If the legislature intended for the council to make specific findings and determinations regarding neighborhood concerns, it presumably would have used similar language. Its failure to do so suggests an intent to place a lesser burden on the council with respect to neighborhood concerns. Indeed, in other contexts, the legislature has required the fact finder both to "consider" specified matters and to make written findings relating to the considered matters. See, e.g., General Statutes § 19a-639(a) (providing that, in deciding whether to grant certificate of need with respect to health-care facilities, Office of Health Care Access "shall take into consideration and make written findings" concerning enumerated guidelines and principles); see also General Statutes § 1-110a(b) (in determining whether public official and state or municipal employee convicted of crime related to his or her office should have his or her pension revoked or reduced, "the Superior Court shall consider and make findings" on listed factors); General Statutes § 17a-112(k) (in determining whether termination of parental rights is in best interest of child, "the court shall consider and shall make written findings" concerning listed factors). The absence of a similar requirement in § 16-50p(c)(1) as to neighborhood concerns evidences an intention that such concerns inform the council's decision to the extent that they are material but does not require the council to articulate how and to what extent each concern impacted its decision. This interpretation of § 16-50p(c)(1) is consistent with how our courts and other courts have interpreted statutes with similar language mandating consideration of particular information. See, e.g., Weiman v. Weiman , 188 Conn. 232, 234, 449 A.2d 151 (1982) (under General Statutes § 46b-82, providing that court " 'shall consider' " enumerated factors in determining whether to award alimony, "[t]he court is not obligated to make express findings on each of the statutory criteria"); Corcoran v. Connecticut Siting Council , 50 Conn. Supp. 443, 448-49, 934 A.2d 870 (2006) (under General Statutes § 16-50x [a], providing in relevant part that council " 'shall give such consideration to other state laws and municipal regulations as it shall deem appropriate,' " court concluded that council "did consider the town zoning regulations because they were presented to the council as part of [the] application" [emphasis omitted] ), aff'd, 284 Conn. 455, 934 A.2d 825 (2007) ; see also Gonzalez v. Napolitano , 684 F.Supp.2d 555, 562-63 (D.N.J. 2010) (collecting federal cases interpreting requirement to "consider" specified matter), aff'd, 678 F.3d 254 (3d Cir. 2012) ; Central Valley Chrysler-Jeep v. Witherspoon , 456 F.Supp.2d 1160, 1173 (E.D. Cal. 2006) ("a congressional requirement that a decision maker 'consider' a factor . requires an actor to merely 'investigate and analyze' the specified factor, but not necessarily act upon it"). In sum, the requirement to consider neighborhood concerns only obliges the council to reflect on the concerns of the neighborhood and take them into account when rendering a decision. There is no support for the more onerous interpretation proffered by the plaintiffs. Nevertheless, the plaintiffs argue that the council failed to satisfy its obligations even under this more limited interpretation because its failure to mention "neighborhood" anywhere in its findings of fact or decision suggests that the council did not consider neighborhood concerns. We disagree. We first observe that "there is a strong presumption of regularity in the proceedings of a public agency, and we give such agencies broad discretion in the performance of their administrative duties, provided that no statute or regulation is violated." Forest Walk, LLC v. Water Pollution Control Authority , 291 Conn. 271, 286, 968 A.2d 345 (2009) ; see also Brecciaroli v. Commissioner of Environmental Protection , 168 Conn. 349, 356, 362 A.2d 948 (1975) ("[i]t must be presumed . that the defendant's denial of the application [to conduct a regulated activity on wetlands] was based on the standards set forth in § 22a-33 of the General Statutes, which requires the hearing officer to 'consider the effect of the proposed work with reference to the public health and welfare, marine fisheries, shell-fisheries, wildlife, the protection of life and property from flood, hurricane and other natural disasters, and the public policy set forth in sections 22a-28 to 22a-35, inclusive' "). This presumption is supported by the council's statement in its decision regarding "public opposition, which the [c]ouncil both acknowledges and has tried to use constructively in this decision ." To place weight on the fact that the council declined to label the public opposition as "neighborhood concerns" would elevate form over substance. More fundamentally, it is plain that the council did address specific neighborhood concerns presented by the parties and intervenors in its 314 findings of fact and detailed decision. The council made specific findings with respect to the factors in § 16-50p(a)(3)(B) that would have the most profound effect on persons and entities from the surrounding localities, including on issues of air emissions, visibility, noise, traffic, wetlands, wildlife, and public safety. In addition, the council noted that it tried to incorporate those concerns raised in the public opposition to improve the project. Indeed, the only concern that the plaintiffs specifically identify that the council purportedly ignored was the possible effect of air emissions from the facility on the local production of hay and timber. In its air quality and vegetation impact analysis, however, the council specifically found that the deposition rates of pollutants were considerably less than the United States Environmental Protection Agency's screening criteria for protection of deposition to soils and vegetation uptake, and that the deposition rates were lower than what was associated with the previously approved project. Simply put, the plaintiffs have not met their burden of proving that the council acted contrary to law and ignored the neighborhood concerns that were presented to it. See Murphy v. Commissioner of Motor Vehicles , 254 Conn. 333, 343-44, 757 A.2d 561 (2000). Accordingly, we conclude that the trial court properly concluded that the council considered neighborhood concerns in accordance with § 16-50p(c)(1). II The plaintiffs also claim that the trial court improperly concluded that they had abandoned their due process and substantial evidence claims due to inadequate briefing. CPV contends, however, that this court cannot afford any practical relief on this claim because the plaintiffs have failed to challenge the trial court's alternative conclusions rejecting the claims on the merits. We agree with CPV. Consequently, we cannot review the plaintiffs' claim related to inadequate briefing, as it is moot. "Mootness is a question of justiciability that must be determined as a threshold matter because it implicates [a] court's subject matter jurisdiction ." (Internal quotation marks omitted.) In re Jorden R. , 293 Conn. 539, 555, 979 A.2d 469 (2009). It is well settled that "[a]n issue is moot when the court can no longer grant any practical relief." (Internal quotation marks omitted.) Wyatt Energy, Inc. v. Motiva Enterprises, LLC , 81 Conn.App. 659, 661, 841 A.2d 246 (2004). "In determining mootness, the dispositive question is whether a successful appeal would benefit the plaintiff or defendant in any way." (Internal quotation marks omitted.) In re Jorden R. , supra, at 556, 979 A.2d 469. "Where an appellant fails to challenge all bases for a trial court's adverse ruling on his claim, even if this court were to agree with the appellant on the issues that he does raise, we still would not be able to provide [him] any relief in light of the binding adverse finding[s] [not raised] with respect to those claims." (Internal quotation marks omitted.) State v. Lester , 324 Conn. 519, 526-27, 153 A.3d 647 (2017). In such cases, the challenged ground is rendered moot. See Doe v. Hartford Roman Catholic Diocesan Corp. , 317 Conn. 357, 379 n.23, 119 A.3d 462 (2015) ("where alternative grounds found by the reviewing court and unchallenged on appeal would support the trial court's judgment, independent of some challenged ground, the challenged ground that forms the basis of the appeal is moot because the court on appeal could grant no practical relief to the complainant" [internal quotation marks omitted] ); State v. Abushaqra , 151 Conn.App. 319, 326, 96 A.3d 559 (2014) (writ of error dismissed as moot where plaintiff in error failed to contest alternative holding of trial court). In the present case, the trial court decided the plaintiffs' due process and substantial evidence claims both on procedural grounds and on the merits. In their brief before this court, the plaintiffs do not challenge the trial court's conclusions that they had failed to establish the existence of a due process violation and that there was substantial evidence in the record to support the council's determination. As such, we cannot afford the plaintiffs any practical relief because, even if we were to agree that the trial court abused its discretion in concluding that they had abandoned their due process and substantial evidence claims due to inadequate briefing, the trial court's unchallenged decision on the merits would stand. Accordingly, the plaintiffs' claim is moot, and this court lacks subject matter jurisdiction to consider it. The judgment is affirmed. In this opinion the other justices concurred. General Statutes § 16-50p provides in relevant part: "(a) (1) In a certification proceeding, the council shall render a decision upon the record either granting or denying the application as filed, or granting it upon such terms, conditions, limitations or modifications of the construction or operation of the facility as the council may deem appropriate.... "(3) The council shall file, with its order, an opinion stating in full its reasons for the decision. The council shall not grant a certificate, either as proposed or as modified by the council, unless it shall find and determine: "(A) Except as provided in subsection (b) or (c) of this section, a public need for the facility and the basis of the need; "(B) The nature of the probable environmental impact of the facility alone and cumulatively with other existing facilities, including a specification of every significant adverse effect, including, but not limited to, electromagnetic fields that, whether alone or cumulatively with other effects, impact on, and conflict with the policies of the state concerning the natural environment, ecological balance, public health and safety, scenic, historic and recreational values, forests and parks, air and water purity and fish, aquaculture and wildlife; "(C) Why the adverse effects or conflicts referred to in subparagraph (B) of this subdivision are not sufficient reason to deny the application . "(c) (1) The council shall not grant a certificate for a facility described in subdivision (3) of subsection (a) of section 16-50i, either as proposed or as modified by the council, unless it finds and determines a public benefit for the facility and considers neighborhood concerns with respect to the factors set forth in subdivision (3) of subsection (a) of this section, including public safety...." Although § 16-50p has been amended by the legislature several times since the events underlying the present case; see, e.g., Public Acts 2016, No. 16-163, § 8 and 9; the amendments have no bearing on the merits of the appeal. In the interest of simplicity, we refer to the current revision of the statute. the plaintiffs are: Raymond Pietrorazio, Marian R. Larkin, Wayne McCormack, Paul Coward, Peter Polstein, John D. Retartha, Jay Halpern, Greenfields, LLC, Middlebury Land Trust, Inc., Oxford Greens Association, Inc., Naugatuck River Revival Group, Inc., Chester Cornacchia, Lake Quassapaug Association, Inc., Lake Quassapaug Amusement Park, Inc., Middlebury Bridle Land Association, Inc., and Oxford Flying Club, Inc. We note that some of the plaintiffs were made parties to the proceeding before the council, others were permitted to intervene in the proceeding, and others simply submitted comments or offered statements at the public hearing. Whether all of these plaintiffs are aggrieved by the council's decision is unclear. Nonetheless, we note that one of the plaintiffs, the town of Middlebury, had been determined to be aggrieved in two prior proceedings involving the proposed electric generating facility at issue. See Middlebury v. Connecticut Siting Council, Superior Court, judicial district of New Britain, Docket No. CV-07-4013143-S (November 1, 2007) (44 Conn. L. Rptr. 432, 433, 2007 WL 4106365) ; Middlebury v. Connecticut Siting Council, Superior Court, judicial district of New Britain, Docket No. CV-01-0508047-S, 2002 WL 442383 (February 27, 2002). In the present case, one brief was filed on behalf of all of the plaintiffs. Accordingly, we need not consider whether all of the plaintiffs are aggrieved. See Protect Hamden/North Haven from Excessive Traffic & Pollution, Inc. v. Planning & Zoning Commission, 220 Conn. 527, 529 n.3, 600 A.2d 757 (1991) (declining to resolve whether all plaintiffs were aggrieved when one plaintiff's standing to appeal is established). CPV was given permission to intervene as a party defendant after the plaintiffs appealed from the council's decision granting CPV's petition.

12489407

Donald BRIERE et al. v. GREATER HARTFORD ORTHOPEDIC GROUP, P.C., et al.

Briere v. Greater Hartford Orthopedic Grp., P.C.

2017-04-11

SC 19576

70

84

157 A.3d 70

157

West's Atlantic Reporter, Third Series

Connecticut Supreme Court

Connecticut

2021-08-27T20:57:14.014091+00:00

Fastcase

Donald BRIERE et al. v. GREATER HARTFORD ORTHOPEDIC GROUP, P.C., et al.

Donald BRIERE et al. v. GREATER HARTFORD ORTHOPEDIC GROUP, P.C., et al. SC 19576 Supreme Court of Connecticut. Argued December 15, 2016 Officially released April 11, 2017 Lorinda S. Coon, with whom was John W. Sitarz, for the appellants (defendants). Ron Murphy, with whom was Roger Kaye, for the appellees (plaintiffs). Roy W. Breitenbach and Michael J. Keane, Jr., filed a brief for the Connecticut Orthopaedic Society as amicus curiae. Claire V. Jackson and Michael G. Rigg filed a brief for the Connecticut Defense Lawyers Association as amicus curiae. James J. Healy and Cynthia C. Bott filed a brief for the Connecticut Trial Lawyers Association as amicus curiae. Rogers, C. J., and Palmer, Eveleigh, McDonald, Espinosa and Robinson, Js. ROGERS, C. J. In this certified appeal, we are tasked with clarifying the contours of the relation back doctrine, specifically as applied to medical malpractice claims. The plaintiff, Donald Briere, brought a cause of action against the defendants, Greater Hartford Orthopedic Group, P.C. (practice group), and David Kruger, an orthopedic surgeon, alleging medical malpractice during a spinal surgery resulting in the plaintiff suffering quadriparesis. After the expiration of the relevant statute of limitations, General Statutes § 52-584, the plaintiff sought to amend his complaint. Both the original and amended complaints included claims that Kruger failed to properly plan and to perform the surgery through the use of an instrumentality in his control. The plaintiff's original complaint, however, included detailed allegations of the improper usage of a skull clamp. In his proposed amended complaint, however, the plaintiff replaced those detailed allegations with allegations of the improper use of a retractor blade. The trial court denied the request to amend, narrowly construing the original complaint as limited to a claim of the negligent usage of the skull clamp and subsequently granted the defendants' motion for summary judgment because the plaintiff had abandoned the theory that negligent use of the skull clamp had caused his injury. The Appellate Court reversed the trial court's denial of the plaintiff's request to amend, broadly construing the original complaint as a claim of negligence in performing the surgery, which could be supported by either set of factual allegations. Briere v. Greater Hartford Orthopedic Group, P.C. , 158 Conn.App. 66, 118 A.3d 596 (2015). The defendants advocate for this court to adopt the narrower approach used by the trial court and to reverse the judgment of the Appellate Court. We decline to do so and affirm the judgment of the Appellate Court. The following facts and procedural history are relevant to this appeal. In November, 2009, the plaintiff initiated a cause of action against the defendants for injuries he suffered during a spinal surgery performed on May 21, 2008. In count one of the complaint, the plaintiff alleged that Kruger had failed to plan or to perform a safe and effective operation. The plaintiff made additional allegations in count one that Kruger was negligent in his use of a skull clamp to secure the plaintiff during the surgery. At the time that he filed his complaint, the plaintiff also filed a petition for an automatic extension of the statute of limitations. The trial court granted the petition, extending the expiration of the statute of limitations from May 21, 2010 to August 19, 2010. Six months before the expiration of the statute of limitations, the defendants filed a request to revise, in which they sought a more complete or particular statement of how Kruger had failed to plan or to perform a safe and effective surgery. The plaintiff objected to the request to revise, asserting that the allegations were not conclusory and that the proper mechanism to procure a more specific statement was through discovery. Prior to the expiration of the statute of limitations, the trial court, Holzberg, J. , sustained the plaintiff's objection. Subsequently, the plaintiff disclosed James Macon, a neurosurgeon, as an expert witness and indicated that Macon would testify that Kruger had been negligent when he improperly placed a retractor blade during surgery. The defendants deposed Macon five months after he was disclosed as an expert. The plaintiff then filed a request for leave to file an amended complaint. In the proposed amended complaint, the plaintiff removed the allegations related to the skull clamp and added allegations that Kruger had failed to properly apply a retractor blade during surgery. The defendants objected to the request on the ground that the allegations concerning the retractor blade were new allegations and did not relate back to the original pleading, and therefore were barred by the statute of limitations. In a written memorandum of decision, the trial court, Aurigemma, J. , sustained the defendants' objection. Subsequently, the defendants moved for summary judgment on the ground that the plaintiff could not prove medical negligence under the original complaint because he had not disclosed an expert who could testify concerning the skull clamp. Prior to responding to the defendants' motion for summary judgment, the plaintiff filed a motion in limine asking the trial court to rule on whether it would admit Macon's expert testimony on the retractor blade theory at trial in light of the court's denial of the plaintiff's request to amend the complaint to include the retractor blade allegations. In response to the motion in limine, the trial court, Aurigemma, J. , ruled that it would not admit Macon's testimony at trial. The plaintiff then filed a memorandum in opposition to the motion for summary judgment in which he argued that the trial court's denial of his request to amend and its ruling on the motion in limine were inconsistent with the trial court's previous ruling sustaining the plaintiff's objection to the defendants' request to revise, and that the rulings were fundamentally unfair. The plaintiff did not submit affidavits or other evidence that created a genuine issue of material fact concerning the negligent usage of the skull clamp. Judge Aurigemma rendered summary judgment in favor of the defendants on all counts on the ground that the plaintiff did not have an expert who could testify that improper skull clamp usage caused his injuries, which were the specific allegations in the complaint. Judge Aurigemma noted that her decision was dependent upon her previous denial of the plaintiff's request to amend the complaint. The plaintiff appealed to the Appellate Court. See id. The Appellate Court reversed the trial court's denial of the plaintiff's request to amend and its subsequent summary judgment rendered in favor of the defendants on the ground that the trial court improperly applied the relation back doctrine. Id., at 68, 118 A.3d 596. Specifically, the Appellate Court held that the retractor blade allegations related back to the original theory that Kruger was negligent during the surgery, as found in the allegations that Kruger had failed to plan or to perform a safe and effective surgery. Id., at 78, 118 A.3d 596. This appeal followed. The defendants claim that the Appellate Court improperly interpreted the allegations in the original complaint that Kruger failed to properly plan or to perform the surgery as independent from the allegations that he failed to properly use the skull clamp. Under this state's fact based pleading requirements, the defendants assert, the planning and performance allegations cannot stand alone because they are conclusory in nature and merely introduce the skull clamp allegations that form the factual basis for the plaintiff's claim. They further assert that the Appellate Court improperly interpreted the res ipsa locquitor allegations; see footnote 4 of this opinion; as support for a theory of negligence beyond improper skull clamp placement in the original complaint. The defendants claim that when the original complaint is properly read as a claim that Kruger improperly used the skull clamp during surgery, then the proposed amended allegations regarding the retractor blade do not relate back because they are an entirely different theory of negligence. The plaintiff asserts that the Appellate Court properly interpreted the original complaint as a theory that Kruger negligently planned and performed the surgery in one or more ways. He claims that the original allegations provided fair notice to the defendants that his theory of negligence related to Kruger's conduct during the surgery. The plaintiff further asserts that within the context of a medical malpractice case, where the plaintiff may not be able to discover the precise manner in which the defendant was negligent until after the parties engage in discovery, it would be unjust to hold a plaintiff to as narrow a pleading standard as the defendants advocate. We begin by setting forth the proper standard of review and applicable legal principles. "[T]he de novo standard of review is always the applicable standard of review for resolving whether subsequent amendments to a complaint relate back for purposes of the statute of limitations." We granted the petition by the defendants, Greater Hartford Orthopedic Group, P.C., and David Kruger, for certification on the following questions: "1. Did the Appellate Court properly determine that the trial court misapplied the relation back doctrine when it refused to allow the plaintiff [Donald Briere] to amend the complaint?" and "2. Did the Appellate Court properly determine that the trial court did not abuse its discretion when it sustained the plaintiff's objection to the defendants' request to revise?" Briere v. Greater Hartford Orthopedic Group, P.C., 319 Conn. 950, 950-51, 125 A.3d 529 (2015). The complaint was brought by Donald Briere and his wife, Nancy Briere. Nancy Briere's claims are for loss of consortium, which are derivative of Donald Briere's negligence claims. Therefore, for purposes of clarity and convenience, references herein to the plaintiff are to Donald Briere individually. General Statutes § 52-584 provides in relevant part: "No action to recover damages for injury to the person ... caused by negligence ... or by malpractice of a ... surgeon ... shall be brought but within two years from the date when the injury is first sustained or discovered or in the exercise of reasonable care should have been discovered ... except that no such action may be brought more than three years from the date of the act or omission complained of ...." Count one alleged negligence against Kruger. Count two alleged negligence under a theory of vicarious liability against the practice group. Count three alleged negligence against both defendants pursuant to a claim of res ipsa locquitor. Counts four and five alleged loss of consortium on behalf of Nancy Briere against each of the defendants, respectively. The plaintiff's complaint was accompanied by a certificate of good faith and a supporting letter from a similar health-care provider in which a board certified orthopedic surgeon opined that Kruger had been negligent in failing to properly secure the plaintiff's head in the skull clamp, causing it to move during surgery, and resulting in his injuries. The defendants assert that the lack of any allegations concerning the retractor blade in the similar healthcare provider letter supports a conclusion that the original cause of action was limited to the skull clamp. We are not persuaded. The purpose of requiring a letter by a similar health-care provider is to help eliminate some of the more questionable and meritless claims of medical malpractice. Wilcox v. Schwartz, 303 Conn. 630, 641, 37 A.3d 133 (2012). That purpose is served when the similar health-care provider is able to opine that the defendant breached the applicable standard of care and state the factual basis upon which the author believes that standard of care was breached; it does not require a detailed recitation of the method in which the breach occurred. Id., at 643-44, 37 A.3d 133 ; id., at 644, 37 A.3d 133 ("[This] interpretation of [General Statutes] § 52-190a [a] ... represents an appropriate balance between the two primary competing considerations identified by the legislature, namely, the need for enough specificity to support a good faith belief of the existence of medical negligence, on the one hand, and the fact that, at the time the written opinion is issued, the plaintiff will not yet have had the opportunity to engage in any formal discovery into the alleged malpractice, on the other. Although, in some cases, a more comprehensive explanation of the defendant's alleged negligence will be possible, a blanket requirement mandating a more onerous or stringent standard would serve to deter not only frivolous lawsuits but some meritorious ones, as well, a result that the legislature did not intend to achieve."). Therefore, a plaintiff should not be barred from amending a complaint to add specific allegations regarding how the defendant breached the standard of care merely because the similar health-care provider did not discuss those facts in his opinion letter. The defendants' motion for summary judgment was initially granted in part and denied in part by the court, Domnarski, J., whose denial was based in part on the deposition testimony of Macon. Due to the conflict between Judge Aurigemma's granting of the motion in limine to exclude Macon's testimony and Judge Domnarski's denial of the motion for summary judgment based upon the deposition of Macon, the defendants moved for the court to vacate the summary judgment ruling and to refer the matter to Judge Aurigemma for reargument. After discussion on the record with Judge Aurigemma, the plaintiff reluctantly stipulated to having Judge Domnarski vacate his ruling, and the motion for summary judgment was transferred to Judge Aurigemma. The defendants also challenge the ruling of Judge Holzberg sustaining the plaintiff's objection to their request to revise seeking more specific factual allegations of how Kruger negligently planned and performed the surgery. If the defendants were to prevail on this claim, the remedy would be to reverse the trial court's denial of their request to revise and remand the case to the trial court to allow the plaintiff to revise the complaint. Because we conclude that Judge Aurigemma should have allowed the plaintiff to amend his complaint, we do not reach the issue of whether the trial court should have required the plaintiff to do so at an earlier time. We acknowledge, as noted by Justice Robinson in his concurrence, that this court has previously stated that the standard of review is not settled. We disagree, however, with the approach advanced by Justice Robinson insofar as it blends the standard of review for whether an amended pleading relates back to an earlier pleading with the standard of review for whether to allow a party to amend the pleading. If the statute of limitations has expired and an amended pleading does not relate back to the earlier pleading, then the trial court has no discretion to allow an amendment. While the determination of whether a pleading relates back involves the issue of fair notice and may require a trial court to find, among other things, whether the original and amended complaint require similar evidence and experts, such determination is grounded in interpretation of the pleadings and is not the type of determination that a trial court is in a better position to make than an appellate court. Therefore, whether a pleading relates back is subject to plenary review. Where an amended pleading does relate back to an earlier pleading, the trial court may look to other factors, including the length of the delay, prejudice to the opposing party, and any negligence on the part of the party offering the amendment, to decide whether to allow the amendment. We agree with Justice Robinson that once the trial court finds that a pleading relates back, its decision whether to allow an amendment is subject to an abuse of discretion standard of review. In the present case, however, because the trial court denied the plaintiff's request for leave to file his amended complaint on the basis that the amended complaint did not relate back to the original complaint, we engage in plenary review.

7279

45464

(Emphasis omitted.) Sherman v. Ronco , 294 Conn. 548, 554 n.10, 985 A.2d 1042 (2010). "The relation back doctrine has been well established by this court." Alswanger v. Smego , 257 Conn. 58, 64, 776 A.2d 444 (2001). There is a " 'well settled' body of case law holding that 'a party properly may amplify or expand what has already been alleged in support of a cause of action, provided the identity of the cause of action remains substantially the same. . If a new cause of action is alleged in an amended complaint . it will [speak] as of the date when it was filed. . A cause of action is that single group of facts which is claimed to have brought about an unlawful injury to the plaintiff and which entitles the plaintiff to relief. . A change in, or an addition to, a ground of negligence or an act of negligence arising out of the single group of facts which was originally claimed to have brought about the unlawful injury to the plaintiff does not change the cause of action . It is proper to amplify or expand what has already been alleged in support of a cause of action, provided the identity of the cause of action remains substantially the same, but [when] an entirely new and different factual situation is presented, a new and different cause of action is stated.' . DiLieto v. County Obstetrics & Gynecology Group, P.C. , 297 Conn. 105, 140, 998 A.2d 730 (2010)." (Emphasis in original; footnote omitted.) Finkle v. Carroll , 315 Conn. 821, 837-38, 110 A.3d 387 (2015). "Our relation back doctrine provides that an amendment relates back when the original complaint has given the party fair notice that a claim is being asserted stemming from a particular transaction or occurrence, thereby serving the objectives of our statute of limitations, namely, to protect parties from having to defend against stale claims . Barrett v. Danbury Hospital , 232 Conn. 242, 263-64, 654 A.2d 748 (1995)." (Internal quotation marks omitted.) Alswanger v. Smego , supra, 257 Conn. at 65, 776 A.2d 444. "[I]n the cases in which we have determined that an amendment does not relate back to an earlier pleading, the amendment presented different issues or depended on different factual circumstances rather than merely amplifying or expanding upon previous allegations." Grenier v. Commissioner of Transportation , 306 Conn. 523, 560, 51 A.3d 367 (2012). More specifically, where the proposed allegations promote a change in or an addition to a ground of negligence arising out of a single group of facts we have allowed use of the relation back doctrine. Gurliacci v. Mayer , 218 Conn. 531, 549, 590 A.2d 914 (1991) ("new allegations did not inject two different sets of circumstances and depend on different facts . but rather amplified and expanded upon the previous allegations by setting forth alternative theories of liability" [citation omitted; internal quotation marks omitted] ); see DiLieto v. County Obstetrics & Gynecology Group, P.C. , supra, 297 Conn. at 139-43, 998 A.2d 730 (allegation that defendant physician failed to ensure that specific surgeon participated in surgery related back to allegation that defendant physician failed to communicate pathology results to that surgeon prior to surgery); Wagner v. Clark Equipment Co. , 259 Conn. 114, 119, 788 A.2d 83 (2002) (allegation that forklift was defective because backup alarm failed to sound when forklift was engaged in reverse did relate back to allegations that forklift was defective because it lacked, inter alia, backup alarm that sounded sufficiently distinct to warn plaintiff); Barnicoat v. Edwards , 1 Conn.App. 652, 654, 474 A.2d 808 (1984) (allegations of different defects in house construction related back to other claims of defect in house construction in breach of contract claim); Miller v. Fishman , 102 Conn.App. 286, 299-300, 925 A.2d 441 (2007) (allegations describing specific manner in which defendant obstetrician delivered minor plaintiff and precise injuries minor plaintiff sustained related back to allegations that defendant negligently managed delivery of minor plaintiff), cert. denied, 285 Conn. 905, 942 A.2d 414 (2008). On the other hand, where new allegations directly contradict those in the operative complaint we have held that they do not relate back to those in the operative complaint. Dimmock v. Lawrence & Memorial Hospital, Inc. , 286 Conn. 789, 806-808, 945 A.2d 955 (2008) (allegation that defendant surgeons used incorrect spinal fusion material during surgery contradicted, and therefore did not relate back to, allegation that surgeons should not have performed surgery at all on plaintiff); see also Alswanger v. Smego , supra, 257 Conn. at 61, 776 A.2d 444 (allegation of lack of informed consent regarding surgical resident's participation in surgery did not relate back to allegation that defendant physician and defendant hospital had failed to disclose all material risks in connection with plaintiff's surgery, care and treatment); Keenan v. Yale New Haven Hospital , 167 Conn. 284, 285-86, 355 A.2d 253 (1974) (allegation of lack of informed consent to surgery did not relate back to allegation of negligence in performing surgery). "When comparing [the original and proposed amended] pleadings, we are mindful that, '[i]n Connecticut, we have long 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 upon 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.' . Deming v. Nationwide Mutual Ins. Co. , [279 Conn. 745, 778, 905 A.2d 623 (2006) ]." Dimmock v. Lawrence & Memorial Hospital, Inc. , supra, 286 Conn. at 802, 945 A.2d 955. We acknowledge that in our prior cases applying the relation back doctrine we perhaps have not provided as much clarity as necessary for the trial court to apply the doctrine consistently. After a careful review of our case law, it is apparent that in order to provide fair notice to the opposing party, the proposed new or changed allegation of negligence must fall within the scope of the original cause of action, which is the transaction or occurrence underpinning the plaintiff's legal claim against the defendant. Determination of what the original cause of action is requires a case-by-case inquiry by the trial court. In making such a determination, the trial court must not view the allegations so narrowly that any amendment changing or enhancing the original allegations would be deemed to constitute a different cause of action. But the trial court also must not generalize so far from the specific allegations that the cause of action ceases to pertain to a specific transaction or occurrence between the parties that was identified in the original complaint. While these guidelines are still broad, a bright line rule would not serve the purpose of promoting substantial justice for the parties. If new allegations state a set of facts that contradict the original cause of action, which is the transaction or occurrence underpinning the plaintiff's legal claim against the defendant, then it is clear that the new allegations do not fall within the scope of the original cause of action and, therefore, do not relate back to the original pleading. But an absence of a direct contradiction must not end the trial court's inquiry. The trial court must still determine whether the new allegations support and amplify the original cause of action or state a new cause of action entirely. Relevant factors for this inquiry include, but are not limited to, whether the original and the new allegations involve the same actor or actors, allege events that occurred during the same period of time, occurred at the same location, resulted in the same injury, allege substantially similar types of behavior, and require the same types of evidence and experts. In the present case, the plaintiff alleged in paragraph 36 of count one of the original complaint that Kruger was negligent in one or more of the following ways: "A. [He] failed to plan a safe and effective operation. "B. [He] failed to perform a safe and effective operation. "C. [He] failed to position [the plaintiff] safely and securely on the operating table; and/or "D. [He] failed to make sure the skull clamp was safely and securely applied to [the plaintiff's] skull; and/or "E. [He] failed to make sure the locking device connecting the skull clamp to the [operating room] table was safely and securely applied; and/or "F. [He] failed to make sure that [the plaintiff's] positioning [in the surgical table apparatus] was safe and secure; and/or "G. [He] failed to make sure that [the plaintiff] would not move during the surgery." In support of his res ipsa locquitor claim, the plaintiff additionally alleged in paragraph 36 of count three of the original complaint that his injury could be presumed to be due to the defendants' negligence because: "A. The damage to [the plaintiff's] spinal cord at [C3 through C5] is ordinarily not seen in the course of surgery at [C6 through C7] in the absence of someone's negligence. "B. The injuries were caused by an instrumentality solely within the defendants' control; "C. The injury was not due to any voluntary action or contribution by [the plaintiff]; and "D. The explanation of the event is more accessible to the defendants than to [the plaintiff]." (Footnote added.) In his proposed amended complaint, the plaintiff replaced the allegations of negligence in count one of the original complaint with the following allegations found in paragraph 45 of count one of the amended complaint: "A. [Kruger] failed to plan a safe and effective operation, and/or "B. [He] failed to perform a safe and effective operation, and/or "C. [He] failed to apply the retractor at [C3 through C4] properly, and/or "D. [He] failed to apply the retractor at [C3 through C4] properly so that the blades would not shift when the retractor was opened. "E. The operative note is not a reasonably complete and accurate account of what happened during surgery. "F. The discharge summary is not a reasonably complete and accurate account of what happened during [the plaintiff's] hospitalization." The relevant allegations in the res ipsa locquitor claim contained in count three of the amended complaint remained the same as the allegations from the original complaint. In construing the original complaint, we hold that the plaintiff's cause of action is that Kruger negligently performed spinal surgery on the plaintiff, resulting in the plaintiff's injuries. While count one of the original complaint does focus on improper use of the skull clamp, read as a whole it includes more general allegations that Kruger failed to properly perform the surgery. Further, looking to the original complaint as a whole, the plaintiff provided additional notice of the nature of his cause of action to the defendants through his allegations in the res ipsa locquitor count that his injuries were caused by an instrumentality solely in Kruger's control when he performed the surgery on the plaintiff's spine. At the very least, this additional count put the defendants on notice that the plaintiff's claim was not limited to the skull clamp allegations. Reading the two counts together, the transaction or occurrence that formed the basis of the plaintiff's claim was that Kruger improperly used medical instruments during the plaintiff's spinal surgery, resulting in his injury. Therefore, the plaintiff adequately put the defendants on notice that his claim related to Kruger's conduct during the surgery and, more specifically, his use of medical instruments during the surgery. The plaintiff's amended complaint added new allegations that Kruger improperly used the retractor blade during surgery and removed the allegations related to the skull clamp. The retractor blade allegations do not contradict the theory that Kruger improperly used medical instruments during surgery. Instead, they constitute a change in and addition to an act of negligence, which is permitted under the relation back doctrine. Specifically, the single transaction or occurrence that constituted the cause of action was the negligent use of medical instruments during the plaintiff's spinal surgery in the operating room by Kruger, and this negligence caused the plaintiff to suffer quadriparesis. For the foregoing reasons, we conclude that the Appellate Court properly held that the amended complaint related back to the original complaint and that the trial court's denial of the plaintiff's request to amend and its subsequent granting of the defendants' motion for summary judgment should be reversed. The judgment of the Appellate Court is affirmed. In this opinion PALMER, EVELEIGH, McDONALD and ESPINOSA, Js., concurred. We note that the original pleading itself must provide the opposing party with notice of a cause of action that encompasses the proposed amended allegations. Insofar as the plaintiff in the present case advocates for this court to look to the discovery history to show the existence of notice to the defendant of the retractor blade theory, we reject this approach. A plaintiff may not rely solely on disclosures made during discovery to overcome his failure to plead a cause of action prior to the expiration of the statute of limitations that he later decides is a better claim. The plaintiff's concern that a defendant could prevent a plaintiff from bringing a legitimate cause of action by delaying discovery until after the expiration of the statute of limitations is addressed by the fact that a defendant's intentional concealment of his wrongful conduct tolls the statute of limitations. See General Statutes § 52-595. While we acknowledge the defendants' concern that a broad application of the relation back doctrine will encourage plaintiffs to make mere general accusations in their original complaint, such concern is already addressed in our rules of practice. Nothing in our decision today prevents a defendant from exercising his rights under Connecticut motion practice, including requests to revise and motions to strike, when a plaintiff makes mere conclusory allegations without any factual support in his complaint. The references herein to C3, C4, C5, C6 and C7 are to the sections of vertebrae located on one's spinal cord. We note that the defendants requested that the plaintiff revise the original complaint to include specific facts to support the allegation that Kruger failed to perform a safe and effective operation on the ground that the performance allegation was conclusory. By asking for a more detailed basis for the allegation that Kruger failed to properly perform the surgery, the defendants indicated that they were aware that in count one the plaintiff was making a broader claim than just the improper use of the skull clamp. In reaching this conclusion, we have considered whether the new retractor blade allegations would have required different evidence or experts than the original allegations. We note that the plaintiff's expert, Macon, was disclosed as a "board certified neurosurgeon with extensive experience in the kind of surgery performed on [the plaintiff] by orthopedic spine surgeon . Kruger," and this disclosure was not limited to Macon being an expert on retractor blade usage. At the time that the plaintiff moved to amend his complaint, the defendants had not yet disclosed their experts. We are mindful that whether new allegations require new evidence or experts must always be determined on a case-by-case basis and in other circumstances may weigh heavily against a finding that a new allegation relates back to the original complaint.

12489406

Luis ROJAS v. COMMISSIONER OF CORRECTION

Rojas v. Comm'r of Corr.

2017-03-21

AC 38238

709

714

157 A.3d 709

157

West's Atlantic Reporter, Third Series

Connecticut Appellate Court

Connecticut

2021-08-27T20:57:14.014091+00:00

Fastcase

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

Luis ROJAS v. COMMISSIONER OF CORRECTION

Luis ROJAS v. COMMISSIONER OF CORRECTION AC 38238 Appellate Court of Connecticut. Argued November 18, 2016 Officially released March 21, 2017 Michael W. Brown, for the appellant (petitioner). Melissa L. Streeto, senior assistant state's attorney, with whom, on the brief, were Gail P. Hardy, state's attorney, and Angela Macchiarulo, senior assistant state's attorney, for the appellee (respondent). DiPentima, C.J., and Beach and Pellegrino, Js.

2293

14478

PELLEGRINO, J. Following a grant of certification to appeal, the petitioner, Luis Rojas, appeals from the judgment of the habeas court denying his amended petition for writ of habeas corpus. The petitioner claims that the habeas court erred by not concluding that his trial counsel was ineffective for failing to negotiate a plea bargain on his behalf, and by not concluding that the petitioner was prejudiced by his trial counsel's failure to properly investigate his case. We affirm the judgment of the habeas court. In 2008, the petitioner was convicted, following a jury trial, of robbery in the first degree in violation of General Statutes § 53a-134(a)(4), burglary in the third degree in violation of General Statutes § 53a-103, and kidnapping in the first degree in violation of General Statutes § 53a-92(a)(2)(B). Thereafter, the trial court vacated the petitioner's kidnapping conviction and sentenced him on the remaining charges to a total effective term of twenty-five years in the custody of the respondent, the Commissioner of Correction, execution suspended after twenty years, and five years of probation. The petitioner appealed and this court affirmed his conviction. State v. Rojas , 124 Conn.App. 745, 6 A.3d 155, cert. denied, 299 Conn. 921, 10 A.3d 1054 (2010). The following underlying facts and procedural history are relevant to the petitioner's claim. On July 31, 2007, the trial court appointed the public defender's office to represent the petitioner. Id., at 747, 6 A.3d 155. Subsequently, on August 2, 2007, Special Public Defender Richard E. Cohen entered his appearance with the court as counsel for the petitioner. Id. On November 16, 2007, Cohen filed a motion to withdraw appearance, citing mistrust by the petitioner caused by disagreements over trial strategy, a lack of meaningful communication with the petitioner, and his belief that the attorney-client relationship was broken irretrievably. Id. After a hearing, the court denied Cohen's motion. Id., at 749, 6 A.3d 155. The petitioner appealed from his conviction, claiming that the trial court failed to make an adequate inquiry into the allegations that there was no meaningful communication with his trial counsel and that their attorney-client relationship had broken down irretrievably. Id., at 751, 6 A.3d 155. This court concluded, "the [trial] court was aware of the nature and scope of the [petitioner's] complaints . Accordingly, the court did not abuse its discretion by not enlarging its inquiry any further." Id., at 752, 6 A.3d 155. After this court affirmed his conviction, the petitioner filed a two count amended petition for writ of habeas corpus. In count one, the petitioner claimed ineffective assistance of counsel, alleging that his counsel failed to pursue plea negotiations with the state on his behalf and to properly investigate his case, and he made several other allegations that are not at issue in this appeal. In count two, the petitioner claimed prosecutorial impropriety. The petitioner proceeded to trial on count one only. After a one day trial held on May 25, 2012, the habeas court denied the petition in an oral decision from the bench. The court found that Cohen had failed to conduct any independent investigation of the petitioner's case, and failed to contact any witnesses other than one witness who testified for the prosecution. Additionally, the court found that "[the petitioner] was simply a difficult person who was unhappy with his representation," and that "he did everything he could to make things difficult." The court found that Cohen's performance was deficient for failing to conduct a proper investigation of the petitioner's case, but that his performance was not deficient for failing to pursue plea negotiations with the state on behalf of the petitioner. The court ultimately concluded, however, that despite any deficient performance, there was nothing that Cohen did or failed to do that was prejudicial to the petitioner. On June 25, 2012, the habeas court granted the petitioner's petition for certification to appeal. This appeal followed. Additional facts will be set forth as necessary. We begin by setting forth our general standard of review. "A criminal defendant is constitutionally entitled to adequate and effective assistance of counsel at all critical stages of criminal proceedings. . This right arises under the sixth and fourteenth amendments to the United States constitution and article first, § 8, of the Connecticut constitution. . As enunciated in Strickland v. Washington , [466 U.S. 668, 686-87, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) ], [our Supreme Court] has stated: It 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. . The claim will succeed only if both prongs are satisfied." (Internal quotation marks omitted.) Spearman v. Commissioner of Correction , 164 Conn.App. 530, 538, 138 A.3d 378, cert. denied, 321 Conn. 923, 138 A.3d 284 (2016). "[According to] Strickland , [an ineffective assistance of counsel] claim must be supported by evidence establishing that (1) counsel's representation fell below an objective standard of reasonableness, and (2) counsel's deficient performance prejudiced the defense because there was a reasonable probability that the outcome of the proceedings would have been different had it not been for the deficient performance." (Emphasis in original; internal quotation marks omitted.) Hall v. Commissioner of Correction , 124 Conn.App. 778, 782, 6 A.3d 827 (2010), cert. denied, 299 Conn. 928, 12 A.3d 571 (2011). "In its analysis, a reviewing court may look to the performance prong or to the prejudice prong, and the petitioner's failure to prove either is fatal to a habeas petition." (Internal quotation marks omitted.) Delvecchio v. Commissioner of Correction , 149 Conn.App. 494, 500, 88 A.3d 610, cert. denied, 312 Conn. 904, 91 A.3d 906 (2014). "To satisfy the prejudice prong, a claimant must demonstrate 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.) Banks v. Commissioner of Correction , 147 Conn.App. 331, 338-39, 82 A.3d 658 (2013), cert. denied, 311 Conn. 916, 84 A.3d 883 (2014). As to the performance prong, "[i]t is well established that when analyzing a claim of ineffective assistance, counsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment." (Internal quotation marks omitted.) Sanders v. Commissioner of Correction , 83 Conn.App. 543, 551, 851 A.2d 313, cert. denied, 271 Conn. 914, 859 A.2d 569 (2004). The facts found by the habeas court regarding trial counsel's representation of the petitioner will not be disturbed absent a showing that they were clearly erroneous. Banks v. Commissioner of Correction , supra, 147 Conn.App. at 338, 82 A.3d 658. The court's ultimate determination as to whether these findings satisfy the legal standard for ineffective assistance of counsel, however, is subject to plenary review. Id. I We first address the petitioner's claim that the habeas court erred by finding that his trial counsel did not render ineffective assistance by failing to pursue plea negotiations on his behalf. We do not agree. The habeas court found that trial counsel's representation of the petitioner was not deficient with respect to counsel's failure to pursue plea negotiations with the state on behalf of the petitioner. The court also found that the petitioner was not prejudiced by his trial counsel's performance. Specifically, the court found that the petitioner did not wish to engage in pretrial discussions with the state regarding a plea deal. The court succinctly stated: "It's clear from the transcripts. It was clear from [the petitioner's] testimony and demeanor here today; he was not interested at the beginning, middle, or end of his case [in] considering any pretrial offers. He wanted a trial." The petitioner presented no evidence at the habeas trial that he was, at any time, interested in a plea offer from the state. When testifying on this matter, the petitioner admitted, "I always said that I wasn't willing to take nothing [be]cause I was innocent of the crime and I wasn't trying to cop out to no time for a crime I didn't commit." On appeal, the petitioner argues that, despite his insistence on going to trial, his counsel had a duty to engage in pretrial plea negotiations with the prosecution. By failing to uphold this duty, the petitioner argues, his trial counsel's performance fell below an objective standard of reasonableness. The petitioner has cited to no case law in support of the proposition that defense counsel has an affirmative duty to engage in pretrial plea negotiations when his or her client has explicitly demanded to go to trial. The petitioner has also failed to point to any case law finding deficient performance by defense counsel at the plea negotiation stage where no plea offer was ever made by the prosecution. Moreover, the petitioner has further failed to show that his counsel's failure to pursue plea negotiations caused him any prejudice. Accordingly, the habeas court's conclusion that the petitioner's counsel was not ineffective for failing to pursue pretrial plea negotiations on the petitioner's behalf was properly reached. Therefore, the petitioner's first claim fails. II The petitioner also claims that the habeas court erred in determining that he was not prejudiced by his counsel's failure to properly investigate his case. Specifically, the petitioner argues that the habeas court's determination that there was no evidence to support a finding of prejudice was erroneous, because the court should have credited the petitioner's testimony regarding prejudice caused by his counsel's failure to contact potential defense witnesses. We agree with the habeas court that the petitioner failed to prove that he suffered prejudice as a result of his attorney's deficient performance. In analyzing a claim of ineffective assistance of counsel, the goal "is not to grade counsel's performance. If it is easier to dispose of an effectiveness claim on the ground of lack of sufficient prejudice . that course should be followed." (Internal quotation marks omitted.) Smith v. Commissioner of Correction , 141 Conn.App. 626, 632, 62 A.3d 554, cert. denied, 308 Conn. 947, 67 A.3d 290 (2013). In the present case, the habeas court found that the petitioner presented no credible evidence to demonstrate that he was prejudiced by his counsel's performance. There was no evidence that his counsel's failure to interview certain potential defense witnesses would have changed the outcome of his trial. In particular, the petitioner failed to have any potential witness testify at his habeas trial, and therefore offered no proof of any testimony that could have benefitted him during the criminal trial. Although the petitioner asserts that the habeas court was required to credit his testimony as proof of prejudice, the habeas court was under no requirement to do so. See Lane v. Commissioner of Correction , 129 Conn.App. 593, 599, 20 A.3d 1265 (habeas court, as trier of fact and sole arbiter of credibility of witnesses, was entitled to discredit petitioner's self-serving testimony), cert. denied, 302 Conn. 915, 27 A.3d 368 (2011). Because the petitioner was unable to show that he was prejudiced by his counsel's performance, the habeas court did not err in determining that the petitioner's right to the effective assistance of counsel was not violated. The judgment is affirmed. In this opinion the other judges concurred. We are aware of existing cases in which trial counsel failed to inform a client of a plea offer made by the prosecution, as well as cases in which trial counsel failed to properly advise a client regarding a plea offer made by the state. See, e.g., Missouri v. Frye, 566 U.S. 133, 145, 132 S.Ct. 1399, 182 L.Ed.2d 379 (2012) (defense counsel has duty to communicate formal offers from prosecution to accept plea on terms and conditions that may be favorable to accused); Lafler v. Cooper, 566 U.S. 156, 174, 132 S.Ct. 1376, 182 L.Ed.2d 398 (2012) (defense counsel ineffective for improperly advising defendant to reject plea that would have resulted in a three and one-half times lesser sentence than what defendant received after trial); Barlow v. Commissioner of Correction, 150 Conn.App. 781, 796-97, 93 A.3d 165 (2014) (counsel ineffective for failing to render any advice whatsoever to defendant regarding formal plea offer made by state). The present case is distinguishable, however, because the petitioner insisted on taking his case to trial, and no plea offer was ever made by the prosecution. The standard for prejudice where defense counsel's ineffective assistance causes the defendant to improperly reject a favorable plea offer was enumerated by the United States Supreme Court in Lafler v. Cooper, 566 U.S. 156, 132 S.Ct. 1376, 182 L.Ed.2d 398 (2012). Under the three part test set forth in that case, a defendant must show "that but for the ineffective advice of counsel there is a reasonable probability that the plea offer would have been presented to the court (i.e., that the defendant would have accepted the plea and the prosecution would not have withdrawn it in light of intervening circumstances), that the court would have accepted its terms, and that the conviction or sentence, or both, under the offer's terms would have been less severe than under the judgment and sentence that in fact were imposed." Id., at 164, 132 S.Ct. 1376. Here, due to the petitioner's insistence that his case be taken to trial, no plea offer was ever made by the prosecution. As a result, the petitioner cannot show prejudice under any prong of the three part test.

12485367

STATE of Connecticut v. Ernest FRANCIS.

State v. Francis

2016-08-02

No. 19378.

927

939

140 A.3d 927

140

West's Atlantic Reporter, Third Series

Connecticut Supreme Court

Connecticut

2021-08-27T20:57:13.996876+00:00

Fastcase

STATE of Connecticut v. Ernest FRANCIS.

STATE of Connecticut v. Ernest FRANCIS. No. 19378. Supreme Court of Connecticut. Argued Jan. 26, 2016. Decided Aug. 2, 2016. Margaret Gaffney Radionovas, senior assistant state's attorney, with whom, on the brief, were Gail P. Hardy, state's attorney, and Edward R. Narus, former supervisory assistant state's attorney, for the appellant (state). Christopher Duby, North Haven, assigned counsel, with whom, was Robert O'Brien, assigned counsel, for the appellee (defendant). ROGERS, C.J., and PALMER, ZARELLA, EVELEIGH, McDONALD, ROBINSON and VERTEFEUILLE, Js. This case originally was scheduled to be argued before a panel of this court consisting of Chief Justice Rogers and Justices Palmer, Zarella, Eveleigh, McDonald, Robinson and Vertefeuille. Although Justice Palmer was not present at oral argument, he has read the briefs and appendices, and listened to a recording of oral argument prior to participating in this decision.

6851

42058

PALMER, J. The state appeals from the judgment of the Appellate Court, which reversed the trial court's denial of the request of the defendant, Ernest Francis, for the appointment of counsel to represent him in connection with the filing of a motion to correct an illegal sentence arising out of his 1992 conviction of murder. In State v. Casiano, 282 Conn. 614, 627-28, 922 A.2d 1065 (2007), this court determined that, pursuant to General Statutes § 51-296(a), an indigent defendant has a right to the appointment of counsel for the purpose of determining whether a sound basis exists for him to file a motion to correct an illegal sentence, and, if such a basis is determined to exist, he also has the right to counsel for the purpose of pursuing the motion to its conclusion. On appeal, the state claims that the Appellate Court incorrectly concluded that the trial court was required to follow the procedure set forth in Anders v. California, 386 U.S. 738, 744, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), before it properly could deny the defendant's request for the appointment of counsel on the ground that no sound basis existed for him to file a motion to correct. We conclude that the Anders procedure is not strictly required to safeguard the defendant's statutory right to counsel in the context of a motion to correct an illegal sentence. We further conclude, however, that the trial court improperly failed to appoint counsel to assist the defendant in determining whether there was a sound basis for him to file such a motion. Because we also conclude that this error was harmful to the defendant, the case must be remanded to the trial court so that counsel may be appointed to represent the defendant in accordance with the dictates of Casiano. The opinion of the Appellate Court sets forth the following undisputed facts and procedural history. "Following [his direct] appeal, [t]he defendant filed his first motion to correct an illegal sentence in 2001, in which he alleged that the sentencing court denied his right to speak in mitigation of punishment, relied on inaccurate information and failed to rely on information solely within the record. The trial court . denied the motion on the merits. On appeal, the Appellate Court found that the trial court lacked jurisdiction to consider the motion to correct because the defendant's claims did not attack the validity of the sentence, and remanded the case with direction that the motion be dismissed.... The defendant filed a second motion to correct that was denied on the merits . [on] November 18, 2005. In that motion, the defendant alleged that the sentencing court improperly signed his arrest warrant and presided over his probable cause hearing. The Appellate Court summarily affirmed the [denial of the second motion to correct]...." (Internal quotation marks omitted.) State v. Francis, 148 Conn.App. 565, 567 n. 2, 86 A.3d 1059 (2014). Thereafter, "[t]he defendant, representing himself, filed [a third] motion to correct on July 12, 2010, and later amended it on October 12, 2010. On September 8, 2010, the date on which the [third] motion was initially scheduled for a hearing, the court, Gold, J., opened the hearing by engaging in the following colloquy with the defendant and [a] public defender, R. Bruce Lorenzen: "The Court: . This is [the defendant's] third motion to correct what he alleges is an illegal sentence. Are you doing this yourself or are you applying for the public defender to review the claim? "The Defendant: I'd like to represent myself, Your Honor. "The Court: Do you understand you have the right to apply for a public defender? The public defender would, pursuant to . State v. Casiano, [supra, 282 Conn. at 627-28, 922 A.2d 1065 ] review the file. If the public defender felt that there was some potential merit to your claim, the public defender would be appointed to represent you. If the public defender said no, that [is, that] he or she didn't think there was sufficient likelihood of success, then you could do it yourself if you wanted to. But do you want to skip that step and just represent yourself? "The Defendant: I was assuming that had happened when I first came in on . Casiano so we could save time. But I mean, if I-I'm going to apply for the public defender then. "[Attorney Lorenzen]: Judge- "The Court: Yes. "[Attorney Lorenzen]: [R.] Bruce Lorenzen, Public Defender's Office. The [court] clerk had alerted us to [the defendant's] claim. I have reviewed it. May I have just a moment? "[Attorney Lorenzen]: Judge, again, I was made aware of this case, and I've had an opportunity to review the motion as well as some previous files that our office has been involved in and my concern is not so much on legal merit but potentially on procedural grounds. There's a problem in terms of us being appointed. "The Court: All right. So are you going to try to get a special [public defender]? "[Attorney Lorenzen]: It's not a conflict situation. "The Court: It's not a conflict. So what are you proposing? "[Attorney Lorenzen]: Judge, I really sympathize with [the defendant's] position, and I've told him, there's an emotional merit to his claim because what he cites in his petition in terms of occurrences in court, as near as I can tell, did, in fact, occur. My concern is more, as the court started this proceeding by saying, that this is the third [motion], the problem is more whether or not it's been previously addressed. "The Court: All right. I guess- "[Attorney Lorenzen]: And so in the limited confines of Casiano, I think it would be my obligation to take the position that this claim does not have sufficient merit to justify appointment. But it's-as I'm probably sounding, it's a close call, and it's not-it's a question of whether previous courts have been wrong and the way they look at things. "The Court: The first order of business as far as I'm concerned on a motion to correct is to satisfy Casiano. So that's what I inquired [about]. He said yes. Are you reporting then to the [c]ourt that based on your review of the allegations and- "[Attorney Lorenzen]: It's my considered opinion that it does not have merit. "The Court: All right. Well, then, thank you. Then . you understand that means that you're going to pursue this either by hiring with the help of a lawyer that you hire yourself or else you'll do it yourself? "The defendant responded to the court's decision to deny his request for appointed counsel with the following objection to [Attorney] Lorenzen's failure to specify the grounds [on] which he had concluded that the motion to correct lacked sufficient merit to warrant appointing counsel thereon: "The Defendant: I understand the dictates of . Casiano. However, I think that . Casiano, everyone is overlooking [Anders ] . as well as Fredericks v. [Reincke, 152 Conn. 501, 208 A.2d 756 (1965) ], which is a Connecticut case on when a lawyer feels that a case has no merit. [Attorney] Lorenzen comes in and he doesn't have anything on paper to point . [to] issues that can, that I may be able to raise alternatively if he feels it has no merit. I think [the] United States Supreme Court has already spoken in [Anders ] that whenever a lawyer seeks to withdraw or seeks to say that there's no merit to a claim, the [s]ixth [a]mendment [affords a defendant the] right to have [the lawyer] file an [Anders ] brief. I just want to put that on the record. "The Court: All right. "The Defendant: I just want to put that on the record. If the [c]ourt feels that he doesn't have to file an [Anders ] brief, that's an issue I'll take up on appeal. "The Court: Yes. The [c]ourt's order is that [Attorney] Lorenzen has satisfied his responsibilities by having reviewed your third motion and having represented to me that he does not feel the appointment of a public defender or a special public defender is warranted in this case. "The defendant then reiterated his request that [Attorney] Lorenzen state the specific grounds [on] which he had relied in concluding that [the defendant's] motion to correct had no merit. This request was denied by the court in the following . colloquy with the defendant: "The Defendant: . I don't want to waste too much time on this issue. What I'm saying is I'd like to know what [Attorney Lorenzen's] official position as to why the case had no merits, so I can address that also. "The Court: Well- "The Defendant: So I don't have to ask for articulation or rectification for that. "The Court: I'm not going to require [Attorney Lorenzen] to assume that responsibility. [He] has assessed it, and it is his considered opinion, [Attorney] Lorenzen's, that this case, perhaps considering the prior court's rulings . deny[ing] [the] previous [motions to correct]. I'm going to accept what [Attorney] Lorenzen says. "The Defendant: Okay. "The Court: And I don't believe he's under any obligation to explain that any further. "The Defendant: I would just like to say that the issue was never addressed. It's not res judicata or collateral estoppel because it was never raised before. "The Court: Oh, I'm not-"The Defendant: [Attorney] Lorenzen's position that it was addressed before as he conveyed to me, this issue was never addressed. "The Court: I don't think that's what [Attorney] Lorenzen said at all. He mentioned prior proceedings, but he has assessed the merit of the claim that's now before this [c]ourt and has determined there's an insufficient likelihood of success and therefore has, pursuant to Casiano, indicated to me that his office should not be appointed. "The defendant went on to represent himself [in connection with] his [third] motion to correct at a hearing held on February 18, 2011. The court, Gold, J., denied that motion on the merits . on June 7, 2011." (Footnotes omitted; internal quotation marks omitted.) State v. Francis, supra, 148 Conn.App. at 570-74, 86 A.3d 1059. Thereafter, the defendant appealed to the Appellate Court, claiming, among other things, that the trial court had violated his right to counsel under § 51-296(a) by denying his request for the assistance of counsel without adhering to the procedure set forth in Anders v. California, supra, 386 U.S. at 744, 87 S.Ct. 1396. See State v. Francis, supra, 148 Conn.App. at 567, 575, 86 A.3d 1059. In Anders, the United States Supreme Court determined that, in order to effectuate and safeguard an indigent defendant's constitutional right to the effective assistance of counsel, "counsel [who] finds his case [on appeal] to be wholly frivolous, after a conscientious examination of it . should so advise the court and request permission to withdraw. That request must, however, be accompanied by a brief referring to anything in the record that might arguably support the appeal. A copy of counsel's brief should be furnished [to] the indigent [defendant] and time allowed [for] him to raise any points that he chooses; the court-not counsel-then proceeds, after a full examination of all the proceedings, to decide whether the case is wholly frivolous. If it so finds it may grant counsel's request to withdraw and dismiss the appeal insofar as federal requirements are concerned...." (Internal quotation marks omitted.) State v. Pascucci, 161 Conn. 382, 385, 288 A.2d 408 (1971). The Appellate Court agreed with the defendant that the trial court should have followed Anders in denying his request for appointed counsel. State v. Francis, supra, at 569, 86 A.3d 1059. In reaching its conclusion, the Appellate Court noted that, although Casiano established an indigent defendant's right to counsel for the purpose of determining whether a sound basis exists for a motion to correct, it did not address the requirements of "sound basis" review, in particular, what steps appointed counsel must take in advising a defendant and the trial court of his or her determination that no sound basis exists for the filing of the motion to correct, and the steps the trial court must take to validate that determination. Id., at 583-84, 86 A.3d 1059. The Appellate Court then concluded that, "because the express rationale in Casiano for extending the statutory right to counsel . from appeals to motions to correct is that such motions are functionally equivalent to appeals as vehicles for challenging the legality of criminal sentences, [a criminal defendant's] right to appointed counsel on a motion to correct must be identical to, and thus be protected by, the same procedural safeguards [that are] used to protect [the] right to appointed counsel on appeal." Id., at 584, 86 A.3d 1059. Having determined that Anders applied to the defendant's claim, the Appellate Court next considered whether the requirements of Anders were satisfied in the present case. The Appellate Court concluded that they were not satisfied in light of the trial court's "failure to appoint Lorenzen to represent the defendant's interests by conducting a conscientious first tier of review of relevant portions of the record in light of controlling legal authorities to determine whether the defendant's claim was wholly frivolous.... [The Appellate Court reasoned that] Lorenzen's failure to explain his findings to either the defendant or the court beyond a mere conclusory statement, as well as the court's failure to perform its own independent, second tier of review of the record in light of controlling legal authorities to make its own determination as to whether the defendant's claims were wholly frivolous, violated the minimum requirements of Anders . and the defendant's right to appointed counsel [in connection with] his motion under § 51-296(a)." Id., at 590, 86 A.3d 1059. Accordingly, the Appellate Court reversed the trial court's denial of the defendant's request for the appointment of counsel and remanded the case to that court for a new hearing on that motion. See id., at 591, 86 A.3d 1059. On appeal to this court, the state claims that the Appellate Court incorrectly determined that, pursuant to § 51-296(a), the trial court was required to follow the Anders procedure before denying the defendant's request for the appointment of counsel. Specifically, the state challenges the conclusion of the Appellate Court that a motion to correct an illegal sentence is sufficiently similar to a direct appeal that the same procedures must govern the appointment of counsel in both contexts. See id., at 585, 86 A.3d 1059. According to the state, the Anders procedure is not necessary to safeguard the statutory right to counsel in the limited context of a motion to correct and will serve only to complicate and delay the resolution of a motion that was intended to be an expeditious mechanism for correcting an illegal sentence. Finally, the state claims that any deficiency in the process surrounding the trial court's denial of the defendant's request for counsel was harmless because the defendant's motion to correct was subsequently denied by that court on its merits. Although we agree with the state that the Anders procedure is not needed to safeguard the statutory right to counsel in the context of a motion to correct an illegal sentence, our review of the record reveals that the trial court did not appoint counsel to represent the defendant even for the limited purpose of determining whether a sound basis existed for him to file his motion. We further conclude that this error was harmful to the defendant, and, consequently, the case must be remanded to the trial court so that counsel may be appointed to represent the defendant as required by Casiano. Our analysis of this issue is guided by several well established principles. First, it is axiomatic that "[t]he judicial authority may at any time correct an illegal sentence or other illegal disposition, or it may correct a sentence imposed in an illegal manner...." Practice Book § 43-22. A motion to correct an illegal sentence "constitutes a narrow exception to the general rule that, once a defendant's sentence has begun, the authority of the sentencing court to modify that sentence terminates.... Indeed, [i]n order for the court to have jurisdiction over a motion to correct an illegal sentence after the sentence has been executed, the sentencing proceeding [itself] . must be the subject of the attack.... Therefore, the motion is directed to the sentencing court, which can entertain and resolve the challenge most expediently." (Citations omitted; footnote omitted; internal quotation marks omitted.) State v. Casiano, supra, 282 Conn. at 624-25, 922 A.2d 1065. Although "the [federal constitutional] right to appointed counsel extends to the first appeal [as] of right, and no further"; Pennsylvania v. Finley, 481 U.S. 551, 555, 107 S.Ct. 1990, 95 L.Ed.2d 539 (1987) ; in Connecticut, a defendant who wishes to file a motion to correct an illegal sentence "has a [statutory] right [under § 51-296(a) ] to the appointment of counsel for the purpose of determining whether . [there exists] a sound basis for doing so. If appointed counsel determines that such a basis exists, the defendant also has the right to the assistance of such counsel for the purpose of preparing and filing such a motion and, thereafter, for the purpose of any direct appeal from the denial of that motion." State v. Casiano, supra, 282 Conn. at 627-28, 922 A.2d 1065. This court previously has not had occasion to consider the procedure to be employed under Casiano when an indigent defendant is denied the appointment of counsel in connection with the filing of a motion to correct an illegal sentence on the ground that there exists no sound basis for such a motion. As we previously indicated, the Appellate Court concluded that Anders should govern such decisions primarily because "Casiano expressly equated the importance of a motion to correct to that of a criminal appeal . and thus extended the same right to appointed counsel to the former as to the latter." State v. Francis, supra, 148 Conn.App. at 585, 86 A.3d 1059. We disagree with that conclusion for several reasons. First, the only issue before this court in Casiano was whether the phrase "any criminal action," as used in § 51-296(a) ; see footnote 2 of this opinion; was broad enough to encompass a motion to correct an illegal sentence. See State v. Casiano, supra, 282 Conn. at 620-21, 922 A.2d 1065. Thus, our sole purpose in considering the importance of a motion to correct within the overall framework of our justice system was to determine whether that motion constitutes a criminal action within the meaning of § 51-296(a). See id. We concluded that it does, stating in relevant part: "Because a motion to correct an illegal sentence is heard by the sentencing court and implicates the legality of the proceeding at which the original sentence was imposed, the motion necessarily bears a close and direct relationship to the original sentencing proceeding. The evident nexus between a motion to correct an illegal sentence and the original sentencing hearing, coupled with the fact that a criminal defendant is constitutionally entitled to the assistance of counsel at that original hearing . provides strong support for the defendant's claim that a motion to correct an illegal sentence falls within the purview of 'any criminal action' for purposes of § 51-296(a)." (Citation omitted.) Id., at 625, 922 A.2d 1065. We further concluded that, "because our criminal statutes provide for a first appeal as of right, a defendant who challenges the legality of his or her sentence on direct appeal is entitled to the assistance of counsel in connection with that appeal.... It would be odd for the legislature to deny the defendant the right to counsel merely because the defendant has chosen a wholly proper, alternate route to challenge the legality of his sentence, namely, a motion to correct an illegal sentence, rather than by way of a direct appeal." (Citation omitted.) Id., at 625-26, 922 A.2d 1065. However, in resolving the issue before us in Casiano -whether a motion to correct is a criminal action within the meaning of § 51-296(a) -we did not consider the entirely different question of whether the safeguards employed to protect a defendant's constitutional right to appointed counsel on direct appeal are also necessary to protect the statutory right to counsel in the much narrower context of a motion to correct an illegal sentence. In deciding that question now, we are mindful that the United States Supreme Court has categorically rejected the notion "that . Anders . should be applied to a state-created right to counsel [for] postconviction review just because [Anders ] applie[s] to the right to counsel on first appeal...." Pennsylvania v. Finley, supra, 481 U.S. at 556, 107 S.Ct. 1990. That court has concluded that, because there is no underlying constitutional right to appointed counsel in postconviction proceedings, criminal defendants have "no constitutional right to insist on the Anders [procedure] which [was] designed solely to protect that underlying constitutional right." Id., at 557, 107 S.Ct. 1990 ; see also Austin v. United States, 513 U.S. 5, 8, 115 S.Ct. 380, 130 L.Ed.2d 219 (1994) (right to Anders procedure "does not extend to forums for discretionary review"). Accordingly, states that elect to provide legal assistance in postconviction proceedings "have substantial discretion to develop and implement programs to aid prisoners seeking to secure postconviction review"; Pennsylvania v. Finley, supra, 481 U.S. at 559, 107 S.Ct. 1990 ; and any programs that they do adopt need not include "the full panoply of procedural protections that the [c]onstitution requires be given to defendants who are in a fundamentally different position-at trial and on first appeal as of right. In this context, [the United States Supreme Court has determined that] the [c]onstitution does not put [a] [s]tate to the difficult choice between affording no counsel whatsoever or following the strict procedural guidelines [set forth] in Anders. " Id. Nor do we believe that the state should be put to such a choice in the context of a postconviction motion to correct, which bears no resemblance to a direct appeal in terms of the number and complexity of issues that may be raised, a fact that necessarily bears on the question of whether the same procedures are required to protect the right to effective assistance of counsel in both situations. Cf. Mathews v. Eldridge, 424 U.S. 319, 334, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976) (even when constitutional rights are implicated, "[d]ue process is flexible and calls [only] for such procedural protections as the particular situation demands" [internal quotation marks omitted] ). It goes without saying that direct appeals are an essential and critical stage of a criminal proceeding, intended to ensure that any errors committed at trial did not deprive the defendant of his right to a fair trial. See, e.g., Gaines v. Manson, 194 Conn. 510, 515, 481 A.2d 1084 (1984) ("[a]lthough there is no constitutional right of appeal . the right to appeal, once granted, invokes so significant a protection of liberty that it must be made available to all persons convicted of crimes" [citation omitted] ). Claims that may be brought on direct appeal involve every aspect of the underlying proceeding, from arraignment to sentencing and virtually everything in between. To effectively prepare for such an appeal, therefore, appellate counsel must engage in an in-depth review of the entire record and applicable law, screening for all possible errors-including sentencing errors-that may have prejudiced the defendant and compromised his right to a fair trial. See, e.g., McCoy v. Court of Appeals of Wisconsin, District 1, 486 U.S. 429, 438, 108 S.Ct. 1895, 100 L.Ed.2d 440 (1988) ("[t]he appellate lawyer must master the trial record, thoroughly research the law, and exercise judgment in identifying the arguments that may be advanced on appeal"). In stark contrast, the claims that may be raised in a motion to correct an illegal sentence are strictly limited to improprieties that may have occurred at the sentencing stage of the proceeding. See, e.g., State v. Lawrence, 281 Conn. 147, 158, 913 A.2d 428 (2007) ("[i]n order for the court to have jurisdiction over a motion to correct an illegal sentence after the sentence has been executed, the sentencing proceeding, and not the trial leading to the conviction, must be the subject of the attack"). Thus, we previously have explained that, "for the trial court to have jurisdiction to consider the defendant's claim of an illegal sentence, the claim must fall into one of [several specific] categories of claims that, under the common law, the court has jurisdiction to review." Id., at 155, 913 A.2d 428. Those claims, which are typically identified by the defendant prior to any involvement by the court or appointed counsel, are that the sentence (1) exceeds the applicable statutory maximum limits, (2) violates a defendant's right against double jeopardy, (3) is ambiguous, (4) is internally inconsistent, or (5) was imposed in an illegal manner. State v. Parker, 295 Conn. 825, 839, 992 A.2d 1103 (2010). Sentences imposed in an illegal manner "have been defined as being within the relevant statutory limits but . imposed in a way [that] violates [a] defendant's right . to be addressed personally at sentencing and to speak in mitigation of punishment . or his right to be sentenced by a judge relying on accurate information or considerations solely in the record, or his right that the government keep its plea agreement promises...." (Internal quotation marks omitted.) Id. In light of the limited and straightforward nature of the claims that may be raised in a motion to correct, the potential merits of such a motion frequently will be apparent to the court and appointed counsel from a simple review of the sentencing record. Cf. State v. Cator, 256 Conn. 785, 804-805, 781 A.2d 285 (2001) (trial court properly determined that its original sentence for murder and felony murder violated defendant's right against double jeopardy and properly merged convictions); State v. Martin M., 143 Conn.App. 140, 147-48, 70 A.3d 135 (when record did not support defendant's claim that sentencing court improperly had relied on vacated kidnapping conviction, defendant could not establish that court relied on incorrect information in sentencing defendant), cert. denied, 309 Conn. 919, 70 A.3d 41 (2013) ; State v. Mungroo, 104 Conn.App. 668, 684, 935 A.2d 229 (2007) ("[p]lainly, the sentence of five years imposed by the [trial] court exceeds the statutory limit for the crime and must be corrected"), cert. denied , 285 Conn. 908, 942 A.2d 415 (2008) ; Gombert v. Warden, Superior Court, judicial district of Tolland, Docket No. CV-10-4003855-S, 2013 WL 4873470 (August 22, 2013) (review of plea canvass demonstrated that petitioner's claims concerning plea agreement were not part of that agreement). Accordingly, we can perceive no reason why appointed counsel, having carefully reviewed the record for possible sentencing errors in light of governing legal principles and determined that none exist, must then be required to file an Anders brief identifying anything in the record that might arguably support a countervailing view, or why the trial court should then be required to undertake a full and independent review of the record to determine whether it agrees with defense counsel's assessment of the defendant's claimed sentencing error. In reaching our conclusion, we are also mindful that "[t]he value of any prophylactic rule . must be assessed not only on the basis of what is gained, but also on the basis of what is lost." (Internal quotation marks omitted.) Montejo v. Louisiana, 556 U.S. 778, 793, 129 S.Ct. 2079, 173 L.Ed.2d 955 (2009). Suffice it to say that we do not believe that the potential benefits of requiring the Anders procedure in the present context outweigh the costs, most notable among them being delays that inevitably would occur in the adjudication of a motion intended "to provide prompt, direct access to an uncomplicated legal process for correcting the occasional erroneous or illegal sentence." Gaddie v. State, 566 N.E.2d 535, 537 (Ind.1991) ; see, e.g., United States ex rel. Green v. Washington, 917 F.Supp. 1238, 1276 (N.D.Ill.1996) (noting that "a properly prepared Anders [brief] is often more time-consuming than a merits brief" and "imposes special burdens not only on defense counsel, but also on the appellate tribunal itself, to scour the record to make certain that no [nonfrivolous] issues lurk there"). Such delays, moreover, would undoubtedly have an adverse effect on other criminal defendants by diverting already limited judicial resources away from their cases. This concern is no small matter in view of the fact that there is no limit to the number of motions to correct that may be filed by a particular defendant, as demonstrated by the defendant in the present case, who has now filed three such motions. We therefore conclude that, when an indigent defendant requests that counsel be appointed to represent him in connection with the filing of a motion to correct an illegal sentence, the trial court must grant that request for the purpose of determining whether a sound basis exists for the motion. See State v. Casiano, supra, 282 Conn. at 627, 922 A.2d 1065. If, after consulting with the defendant and examining the record and relevant law, counsel determines that no sound basis exists for the defendant to file such a motion, he or she must inform the court and the defendant of the reasons for that conclusion, which can be done either in writing or orally. If the court is persuaded by counsel's reasoning, it should permit counsel to withdraw and advise the defendant of the option of proceeding as a self-represented party. Finally, we must address the state's contention that any deficiency in the procedure employed by the trial court in denying the defendant's request for counsel constituted harmless error because the court ultimately addressed the merits of the defendant's motion to correct. We note that this court has never considered whether the denial of counsel for the purpose of determining whether a sound basis exists to file a motion to correct may be a structural error, which is not subject to harmless error analysis. See, e.g., State v. Gerardi, 237 Conn. 348, 362, 677 A.2d 937 (1996) ("[e]rrors that are not subject to harmless error analysis go to the fundamental fairness of the [proceeding]"). We need not decide that question now, however, because our review of the record persuades us that the denial was harmful to the defendant. As we previously indicated, the trial court did not appoint Lorenzen as the defendant's counsel so that he could conduct the sound basis review required by Casiano. Instead, as the Appellate Court explained, "Lorenzen was advised of the defendant's motion by the [court clerk] prior to the case being called, and he reviewed the motion and certain other, unspecified files in his office, never describing in detail to the court the substance of any discussions with the defendant about the claims he wished to make in his motion.... [A]t [no] time after making his determination that the defendant's claim lacked sufficient merit to justify [his] appointment [as counsel, however, did Lorenzen] explain his findings to the defendant, as any attorney, appointed or privately retained, must do, at a bare minimum, out of courtesy, professional loyalty, and respect for his own client." State v. Francis, supra, 148 Conn.App. at 588-89, 86 A.3d 1059. In light of the foregoing, we agree with the Appellate Court that "Lorenzen was not appointed to act as the defendant's personal counsel for the purpose of determining if the defendant's motion to correct was frivolous, but only to serve as a neutral agent of the court." Id., at 589, 86 A.3d 1059. Accordingly, we cannot accept the state's argument that the error was harmless merely in view of the fact that the defendant's motion was subsequently denied because that argument requires us to decide the harmlessness question on the basis of a motion that was prepared without the assistance of counsel. Because the defendant may have been entitled to the assistance of counsel in preparing the motion, and because such assistance might have aided the defendant in identifying a meritorious claim, we cannot say with any degree of confidence that the denial of counsel was harmless. The judgment of the Appellate Court is reversed and the case is remanded to that court with direction to remand the case to the trial court with direction to appoint counsel to represent the defendant, in connection with his motion to correct an illegal sentence, in accordance with the procedures set forth in this opinion. In this opinion the other justices concurred. This court upheld the defendant's murder conviction in State v. Francis, 228 Conn. 118, 120, 635 A.2d 762 (1993). General Statutes § 51-296(a) provides in relevant part: "In any criminal action, in any habeas corpus proceeding arising from a criminal matter, in any extradition proceeding, or in any delinquency matter, the court before which the matter is pending shall, if it determines after investigation by the public defender or his office that a defendant is indigent as defined under this chapter, designate a public defender, assistant public defender or deputy assistant public defender to represent such indigent defendant...." In Anders, 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. See Anders v. California, supra, 386 U.S. at 744, 87 S.Ct. 1396. 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. Id. 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. Id. The defendant represented himself before the Appellate Court. The defendant also claimed that the trial court deprived him of his right to appointed counsel under the due process and equal protection clauses of the state and federal constitutions. State v. Francis, supra, 148 Conn.App. at 575, 86 A.3d 1059. In light of its conclusion that Anders governs the right to counsel in connection with a motion to correct, the Appellate Court did not address those constitutional claims; see id., at 576-77 n. 11, 86 A.3d 1059 ; and, on appeal to this court, the defendant has not pursued them. We granted the state's petition for certification to appeal, limited to the following issue: "Did the Appellate Court properly determine that the trial court properly failed to follow a procedure similar to that set forth in Anders v. California, [supra, 386 U.S. 738, 87 S.Ct. 1396 ], in denying the defendant's motion to correct an illegal sentence?" State v. Francis, 314 Conn. 908, 100 A.3d 401 (2014). See, e.g., United States v. Myers, 524 Fed.Appx. 758, 759 (2d Cir.2013) (no federal constitutional right to counsel in connection with motion to reduce sentence); United States v. Ramos-Yanac, 454 Fed.Appx. 705, 706 (11th Cir.2011) (no right to counsel because motion to reduce sentence is not critical stage of criminal proceedings); United States v. Johnson, 580 F.3d 567, 569 (7th Cir.2009) (no right to counsel in connection with motion for sentence reduction); United States v. Harris, 568 F.3d 666, 668-69 (8th Cir.2009) (no sixth amendment right to appointed counsel in sentence modification proceedings); Pierce v. State, 289 Ga. 893, 894, 717 S.E.2d 202 (2011) (no constitutional right to counsel to pursue motion to vacate void and illegal sentence); Grandison v. State, 425 Md. 34, 55-59, 38 A.3d 352 (2012) (no constitutional right to counsel in connection with motion to correct illegal sentence), cert. denied, - U.S. -, 133 S.Ct. 844, 184 L.Ed.2d 667 (2013) ; Gould v. State, 151 P.3d 261, 269 (Wyo.2006) (motion to correct is not critical stage of criminal proceedings), cert. denied, 552 U.S. 854, 128 S.Ct. 125, 169 L.Ed.2d 88 (2007). We are mindful that, in construing a statute, under General Statutes § 1-2z, we may not look beyond the statutory language if that language, as applied to the facts of the case, is plain and unambiguous and does not yield a bizarre or unworkable result. In the present case, however, there is no dispute that the language of § 51-296(a) is not plain and unambiguous with respect to the question presented and, furthermore, that the legislative history surrounding it is silent on the issue. We note that the Appellate Court, in reaching a contrary conclusion, also relied on the fact that it "previously [had] applied the Anders procedure to motions by appointed counsel to withdraw from other postconviction proceedings in which their indigent clients had a statutory right to appointed counsel under § 51-296(a)." State v. Francis, supra, 148 Conn.App. at 585, 86 A.3d 1059. Specifically, the Appellate Court noted that, in Franko v. Bronson, 19 Conn.App. 686, 563 A.2d 1036 (1989), overruled in part on other grounds by Vazquez v. Commissioner of Correction, 88 Conn.App. 226, 869 A.2d 234 (2005), it had held that Anders governed the withdrawal of appointed counsel in habeas appeals. State v. Francis, supra, at 585-87, 86 A.3d 1059 ; see Franko v. Bronson, supra, at 691-92, 563 A.2d 1036. We are not persuaded that Franko supports the Appellate Court's determination, however, because the court in Franko provided no analysis or rationale for its decision, stating simply that, "[b]ecause the legislature has created a right to counsel in habeas corpus cases under § 51-296 [a], and in appeals therefrom . the right to appeal in habeas corpus actions should be extended the same protections as those set out in the Anders decision." Franko v. Bronson, supra, at 692, 563 A.2d 1036. We note that other courts that have considered the issue of whether to require the Anders procedure in postconviction proceedings have concluded that it is not required to safeguard a defendant's right to counsel in such proceedings. See People v. Serrano, 211 Cal.App.4th 496, 499 n. 2, 503, 149 Cal.Rptr.3d 706 (2012) (declining to require Anders -like procedure in context of appeal from denial of motion to vacate conviction and approving alternative procedure); see also Commonwealth v. Turner, 518 Pa. 491, 495, 544 A.2d 927 (1988) (declining to mandate Anders procedure in context of postconviction relief proceeding); cf. Shatney v. State, 755 A.2d 130, 136 (R.I.2000) (if it is determined that application for postconviction relief is without merit, then there is no right to counsel in connection with such application and any existing counsel may withdraw). We emphasize that, upon appointment, counsel must fully satisfy all applicable professional obligations to the defendant. Although appointed counsel's representation of the defendant ultimately may be of limited duration, it cannot be limited in any other respect because the defendant is entitled to the effective assistance of counsel appointed under § 51-296(a). See, e.g., State v. Anonymous, 179 Conn. 155, 160, 425 A.2d 939 (1979) ("[when] . a statute . or [rule of practice] . mandates the assistance of counsel, it is implicit that this means competent counsel"). Of course, if the court is not completely satisfied with the reasons for counsel's conclusion, it may direct counsel to provide additional substantiation for his opinion or deny counsel's request to withdraw. Our review of the record also suggests that Lorenzen's conclusion regarding the merits of the defendant's motion was based on the erroneous assumption that, because the defendant's motion was his third motion to correct an illegal sentence, it was barred by the doctrine of res judicata. At the hearing, Lorenzen stated that his concerns with regard to the motion were based "not so much on legal merit but potentially on procedural grounds." He then went on to state that the problem with the defendant's claim "is more whether or not it's been previously addressed." The record also establishes that Lorenzen conveyed these concerns as the reason for his ultimate conclusion that the motion should not proceed. In its memorandum of decision addressing the merits of the defendant's motion, however, the trial court concluded that the doctrine of res judicata did not apply to the defendant's motion and that he was not, therefore, precluded from advancing his claims. Accordingly, the trial court's determination raises serious doubts with respect to Lorenzen's conclusion regarding the merits of the defendant's motion to correct.

12498822

Eric Thomas KELSEY v. COMMISSIONER OF CORRECTION

Kelsey v. Comm'r of Corr.

2018-08-14

SC 19945

578

587

189 A.3d 578

189

West's Atlantic Reporter, Third Series

Connecticut Supreme Court

Connecticut

2021-08-31T19:05:39.044951+00:00

Fastcase

Eric Thomas KELSEY v. COMMISSIONER OF CORRECTION

Eric Thomas KELSEY v. COMMISSIONER OF CORRECTION SC 19945 Supreme Court of Connecticut. Argued February 20, 2018 Officially released August 14, 2018 Jo Anne Sulik, supervisory assistant state's attorney, with whom, on the brief, was Brian Preleski, state's attorney, for the appellant (respondent). Adele V. Patterson, senior assistant public defender, for the appellee (petitioner). Palmer, Robinson, D'Auria, Mullins, Kahn and Vertefeuille, Js. The listing of justices reflects their seniority status on this court as of the date of oral argument.

4877

29685

KAHN, J. The sole question presented in this certified public interest appeal is whether General Statutes § 52-470 divests the habeas court of discretion to determine when it should act on a motion by the respondent, the Commissioner of Correction, for an order to show cause why an untimely petition should be permitted to proceed. In the present case, the habeas court took no action on the motion of the respondent requesting the court, pursuant to § 52-470 (d) and (e), to order the petitioner, Eric Thomas Kelsey, to show cause why his petition should be permitted to proceed despite his delay in filing it. The court interpreted § 52-470 to deprive it of discretion to act on the respondent's motion prior to the close of all pleadings. Upon concluding both that this matter involved issues of substantial public interest and that further delay may work a substantial injustice, the Chief Justice granted the respondent's request to file an interlocutory appeal pursuant to General Statutes § 52-265a. In this appeal, we are presented with three proposed interpretations of § 52-470 regarding the degree to which, if at all, that statute constrains the discretion of the habeas court as to when it may act on the respondent's motion for an order to show good cause why a petition should be permitted to proceed when a petitioner has delayed in filing the habeas petition. The habeas court believed that § 52-470 (b) (1) required the court to wait until the close of all pleadings to act on the respondent's motion. The respondent contends that the court mistakenly relied on § 52-470 (b) (1) in declining to act on his motion. The respondent argues that § 52-470 (e) controls and requires that, once the court is presented with a timeliness challenge to the petition, the court must resolve that question before the action is allowed to proceed further. The petitioner agrees with the respondent that § 52-470 (e), rather than § 52-470 (b), applies, but argues that, under that subsection, the habeas court retains discretion to decide when to issue the order. We conclude that § 52-470 (e) applies and does not limit the discretion of the habeas court as to when it may act on a motion for an order to show cause why an untimely petition should be permitted to proceed. Accordingly, we conclude that the habeas court improperly determined that it lacked discretion to act on the respondent's motion for an order to show cause because the pleadings in the case were not yet closed. We therefore reverse the determination of the habeas court that it could not act on the respondent's motion for an order to show cause why the petition should be permitted to proceed. The following procedural background is relevant to our resolution of this appeal. The petitioner, following a jury trial, was convicted of felony murder in violation of General Statutes § 53a-54c and conspiracy to commit robbery in the first degree in violation of General Statutes § 53a-48 (a) and 53a-134 (a) (3). After the petitioner exhausted his direct appeals, he filed a petition for a writ of habeas corpus in August, 2007. Following a trial on the merits, the habeas court denied his petition in 2010. The Appellate Court dismissed his appeal from the judgment of the habeas court; Kelsey v. Commissioner of Correction , 136 Conn. App. 904, 44 A.3d 224 (2012) ; and this court denied certification to appeal from the Appellate Court's judgment. Kelsey v. Commissioner of Correction , 305 Conn. 923, 47 A.3d 883 (2012). The petitioner filed his second habeas petition in March, 2017, more than two years after the judgment was final on his prior petition. The respondent moved for an order directing the petitioner to show cause why his petition should be permitted to proceed when he filed his subsequent petition outside the two year limit set forth in § 52-470 (d) (1). In a brief order issued one week after the respondent filed the motion, the habeas court ruled that, pursuant to § 52-470 (b) (1), it would take no action on the motion until after the pleadings had closed. Shortly thereafter, the respondent moved for reconsideration, which the habeas court granted. In its memorandum of decision, issued seven days after the respondent filed the motion for reconsideration, the court denied the requested relief, explaining that the court interpreted § 52-470 to deprive it of discretion to act on the respondent's motion prior to the close of the pleadings. Relying on § 52-470 (b) (1), the court stated that "the language of . § 52-470 is clear and unambiguous as to the requirement that the pleadings be closed before a request for an order to 'show cause' may be entertained." Accordingly, the court upheld its earlier decision to take no action on the respondent's motion. This public interest appeal followed. The issue before the court is whether § 52-470 divests the habeas court of discretion to determine when it should act on a respondent's motion for an order to show cause why an untimely petition should be permitted to proceed. That issue presents a question of statutory interpretation over which we exercise plenary review, guided by well established principles regarding legislative intent. See, e.g., Kasica v. Columbia , 309 Conn. 85, 93, 70 A.3d 1 (2013) (explaining plain meaning rule under General Statutes § 1-2z and setting forth process for ascertaining legislative intent). We recently recognized that the 2012 amendments to § 52-470 were the result of "comprehensive habeas reform," and that the new provisions of § 52-470"are intended to supplement that statute's efficacy in averting frivolous habeas petitions and appeals. See Public Acts 2012, No. 12-115, § 1 [P.A. 12-115]." Kaddah v. Commissioner of Correction , 324 Conn. 548, 566-67, 153 A.3d 1233 (2017). Mindful of that legislative purpose, we begin our analysis with the language of § 52-470, which is comprised of seven subsections, five of which- § 52-470 (a) through (e) -are relevant to our analysis. We first review subsection (a), which existed in substantially identical form prior to the 2012 amendments to § 52-470 ; see General Statutes (Rev. to 2011) § 52-470 (a) ; and pertains to the proceedings during a trial on the merits. That subsection provides: "The court or judge hearing any habeas corpus shall proceed in a summary way to determine the facts and issues of the case, by hearing the testimony and arguments in the case, and shall inquire fully into the cause of imprisonment and thereupon dispose of the case as law and justice require." General Statutes § 52-470 (a). Subsection (a) makes clear that the primary goal of § 52-470 is to ensure that habeas actions "proceed in a summary way ." This court previously has construed the phrase "in a summary way" to mean that habeas proceedings must be conducted in a manner that is "prompt and without unreasonable and unnecessary delay." (Internal quotation marks omitted.) Hogewoning v. Hogewoning , 117 Conn. 264, 265, 167 A. 813 (1933). The language of § 52-470 (a), which was not substantively altered by P.A. 12-115, provides a helpful backdrop for understanding the remainder of the statute. As Hogewoning illustrates, the statute has always had the legislative purpose of ensuring the efficient and expeditious resolution of habeas petitions. We consider it significant that, notwithstanding the comprehensive nature of the 2012 habeas reform, through which five entirely new subsections were added to the statute, the legislature left intact the final clause of § 52-470 (a), which provides that the habeas court "shall . dispose of the case as law and justice require." Thus, the legislature retained language that makes clear that the expeditious resolution of habeas petitions must be accomplished in a manner that does not curtail a petitioner's right to due process. In other words, the two principles of expediency and due process must be balanced in effectuating the legislative intent of the 2012 habeas reform. The 2012 amendments are significant not because they effectuate an entirely new purpose, but because they provide tools to effectuate the original purpose of ensuring expedient resolution of habeas cases. The 2012 habeas reform added two procedural mechanisms to assist the habeas court in resolving the case "in a summary way ." General Statutes § 52-470 (a). The amendments to § 52-470 set forth procedures by which the habeas court may dismiss meritless petitions and untimely ones. Specifically, § 52-470 (b) addresses the dismissal of meritless petitions, whereas § 52-470 (c), (d) and (e) provide mechanisms for dismissing untimely petitions. We turn to § 52-470 (b), which the trial court relied on in concluding that it lacked discretion to act on the respondent's motion for an order to show cause. That subsection authorizes the habeas court to render a "summary dismissal without a trial" of all or part of a habeas petition if the court determines, either on motion by a party or sua sponte, that there is no good cause for trial. Kaddah v. Commissioner of Correction , supra, 324 Conn. at 568, 153 A.3d 1233. In order to establish "good cause for trial," the petitioner must "allege the existence of specific facts which, if proven, would entitle the petitioner to relief under applicable law ." General Statutes § 52-470 (b) (3). Section 52-470 (b) (1) expressly requires that the habeas court's "good cause for trial" determination be made "[a]fter the close of all pleadings" in the proceeding. The plain language of the statute, accordingly, makes clear that prior to the close of all pleadings, a habeas court would lack discretion to take action on a respondent's motion-or to act sua sponte-to issue an order to show good cause for trial pursuant to § 52-470 (b) (1). This constraint on the court's discretion is consistent with the nature of the court's inquiry. In order to determine whether there is good cause for trial, the court must by necessity wade-albeit in a preliminary manner-into the merits of the petition. The determination of whether good cause exists turns on the ultimate question of whether the petitioner would be entitled to relief under applicable law. As a practical matter, because that inquiry is a substantive one, the question would be premature prior to the close of all pleadings. Addressing the question of whether good cause for trial exists on the basis of incomplete information would, in turn, be inconsistent with the requirement of § 52-470 (a) that the court "dispose of the case as law and justice require." The procedures available for the "good cause for trial" inquiry confirm our conclusion that the court's threshold inquiry is substantive in nature. For example, § 52-470 (b) (2) contemplates that the parties may submit evidence to assist the court in making its determination, including, but not limited to "documentary evidence, affidavits and unsworn statements." Our conclusion is also consistent with the requirement that the petition and exhibits must "provide a factual basis upon which the court can conclude that evidence in support of the alleged facts exists and will be presented at trial ." General Statutes § 52-470 (b) (3). Finally, if the petition and the exhibits do not establish such good cause, "the court shall hold a preliminary hearing to determine whether such good cause exists." General Statutes § 52-470 (b) (3). The preliminary hearing is one at which the court considers "any evidence or argument by the parties ." General Statutes § 52-470 (b) (3). Essentially, § 52-470 (b) provides the habeas court with a means-short of holding a trial on the merits-to screen out meritless petitions in a manner that allows the petitioner every opportunity to meet the required good cause showing. Unlike § 52-470 (b), § 52-470 (c), (d) and (e) together address whether the petitioner can establish good cause for a delay in filing a petition. Accordingly, because the respondent's motion in the present case did not challenge whether there was good cause for trial, but, instead, requested that the court address the timeliness of the petition, we conclude that the habeas court incorrectly applied § 52-470 (b) to the respondent's motion. We now consider the provisions that set forth the applicable procedures for addressing a delay in filing the petition. Subsections (c) and (d) of § 52-470 establish a "rebuttable presumption" of delay without good cause for petitions filed outside the time limits set forth therein. Section 52-470 (d), which applies in the present case, sets forth several different time limits, depending on the circumstances of the case, for filing a petition subsequent to a judgment on a prior petition challenging the same conviction. The relevant time limit for purposes of this appeal is set forth in § 52-470 (d) (1), which requires that a petitioner file a subsequent petition within two years of the final judgment on the prior petition. Because the petitioner in the present case filed his petition outside that time limit, the "rebuttable presumption" of delay without good cause applied to his petition. See General Statutes § 52-470 (d) (1). In § 52-470 (e), the legislature outlined the procedure by which the respondent may rely on the rebuttable presumption established by § 52-470 (c) and (d) that no good cause exists for a delay in filing the petition. Section 52-470 (e) provides in relevant part: "In a case in which the rebuttable presumption of delay under subsection (c) or (d) of this section applies, the court, upon the request of the respondent, shall issue an order to show cause why the petition should be permitted to proceed...." We begin with two observations about § 52-470 (e). First, in contrast to the court's inquiry as to whether good cause exists for trial, which the court may undertake either on its own motion or by the motion of any party; General Statutes § 52-470 (b) (1) ; the court's duty to inquire whether there is good cause for a delay is triggered only upon the request of the respondent. If the respondent makes such a request, the court "shall" issue an order to show cause. Second, and more important, nothing in the language of § 52-470 (e) expressly clarifies or limits the timing of that order. As opposed to the language of § 52-470 (b), which specifically and expressly requires that the court wait until after the close of all pleadings to address whether there is good cause for trial, § 52-470 (e) contains no such time limit. If the legislature had intended to incorporate a time constraint into § 52-470 (e), it could have done so. "We are not permitted to supply statutory language that the legislature may have chosen to omit." (Internal quotation marks omitted.) Connecticut Light & Power Co. v. Dept. of Public Utility Control , 266 Conn. 108, 119, 830 A.2d 1121 (2003) ; id. (refusing to read into Connecticut's utility statute language that would limit application of statute). Notably, as compared to the procedures available under § 52-470 (b) to demonstrate that good cause exists for trial, § 52-470 (e) provides significantly less detail regarding the procedures by which a petitioner may rebut the presumption that there was no good cause for a delay in filing the petition. Specifically, § 52-470 (e) merely provides in relevant part that "[t]he petitioner or, if applicable, the petitioner's counsel, shall have a meaningful opportunity to investigate the basis for the delay and respond to the order. If, after such opportunity, the court finds that the petitioner has not demonstrated good cause for the delay, the court shall dismiss the petition. For the purposes of this subsection, good cause includes, but is not limited to, the discovery of new evidence which materially affects the merits of the case and which could not have been discovered by the exercise of due diligence in time to meet the requirements of subsection (c) or (d) of this section." Nothing in subsection (e) expressly addresses whether the petitioner may present argument or evidence, or file exhibits, or whether and under what circumstances the court is required to hold a hearing, if the court should determine that doing so would assist it in making its determination. The only express procedural requirement is stated broadly. The court must provide the petitioner with a "meaningful opportunity" both to investigate the basis for the delay and to respond to the order to show cause. General Statutes § 52-470 (e). The phrase "meaningful opportunity" is not defined in the statute. That phrase typically refers, however, to the provision of an opportunity that comports with the requirements of due process. See, e.g., State v. Fay , 326 Conn. 742, 754 n.12, 167 A.3d 897 (2017) ("[w]hether rooted directly in the [d]ue [p]rocess [c]lause of the [f]ourteenth [a]mendment or in the [c]ompulsory [p]rocess or [c]onfrontation [c]lauses of the [s]ixth [a]mendment, the [c]onstitution guarantees criminal defendants a meaningful opportunity to present a complete defense" [emphasis added; internal quotation marks omitted] ); State v. Harris , 277 Conn. 378, 380, 397, 890 A.2d 559 (2006) (trial court's admission into evidence of report by Psychiatric Security Review Board at continued commitment hearing did not deprive insanity acquittee of due process because he received "meaningful opportunity to be heard"); see also Mathews v. Eldridge , 424 U.S. 319, 348-49, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976) ("The essence of due process is the requirement that a person in jeopardy of serious loss [be given] notice of the case against him and opportunity to meet it.... All that is necessary is that the procedures be tailored, in light of the decision to be made, to the capacities and circumstances of those who are to be heard . to [e]nsure that they are given a meaningful opportunity to present their case." [Citations omitted; emphasis added; internal quotation marks omitted.] ) The lack of specific statutory contours as to the required "meaningful opportunity" suggests that the legislature intended for the court to exercise its discretion in determining, considering the particular circumstances of the case, what procedures should be provided to the petitioner in order to provide him with a meaningful opportunity, consistent with the requirements of due process, to rebut the statutory presumption. We envision that, in the majority of cases, the question of whether a petitioner has demonstrated good cause for delay will not require that the habeas court engage in an inquiry that is similar in scope to the one required for the screening of meritless petitions pursuant to § 52-470 (b). The absence of detailed procedural requirements in § 52-470 (e), as compared with those identified in § 52-470 (b), is consistent with that general expectation. In many cases, the habeas court will likely be able to resolve the question of whether there was good cause for delay soon after the respondent files a motion requesting an order to show cause. In some instances, however, the basis for a delay may be inextricably intertwined with the merits of the petition. Under such circumstances, the court will be required to engage in a more substantive inquiry, which will more closely resemble the type of inquiry contemplated under § 52-470 (b). Section 52-470 (e) expressly recognizes that possibility by stating "good cause" for delay may include "the discovery of new evidence which materially affects the merits of the case and which could not have been discovered by the exercise of due diligence in time to meet the requirements of subsection (c) or (d) of this section." (Emphasis added.) A classic example in which the basis for delay and the merits of the petition will be inextricably intertwined is when a petitioner has alleged that the state violated its duty to disclose exculpatory evidence under Brady v. Maryland , 373 U.S. 83, 87, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). In such a case, the inquiry into the basis for delay and the merits of the petition are one and the same. In applying § 52-470 (a), this court has stated that a "habeas court must fashion a remedy appropriate to the constitutional right it seeks to vindicate." James L. v. Commissioner of Correction , 245 Conn. 132, 148, 712 A.2d 947 (1998). That same principle guides our interpretation of § 52-470 (e). In the absence of any language in that subsection cabining the discretion of the habeas court with respect to the timing of the issuance of an order to show cause for delay, we conclude that the legislature intended that the court exercise its discretion to do so when the court deems it appropriate given the circumstances of the case. This conclusion strikes the appropriate balance between the principles of expediency and due process. See General Statutes § 52-470 (a). Our conclusion that the habeas court is not required to wait until the close of all pleadings to issue an order to show cause why the petition should be permitted to proceed when there is a rebuttable presumption of delay is consistent with the purpose underlying P.A. 12-115-to screen out meritless and untimely petitions in an expeditious manner. See Kaddah v. Commissioner of Correction , supra, 324 Conn. at 566-67, 153 A.3d 1233 (2012 amendments were "intended to supplement [ § 52-470's] efficacy in averting frivolous habeas petitions and appeals"). Our conclusion also protects the petitioner's right to due process by giving proper effect to the requirement in § 52-470 (e) that the habeas court provide the petitioner with a "meaningful opportunity" to rebut the presumption that he lacked good cause for the delay. As we have explained, in some instances, the provision of such "meaningful opportunity" will require the habeas court to determine whether, under the particular circumstances of the case, the basis for delay is intertwined with the merits of the petition. Our statutory construction is also consistent with the bedrock principle that "[t]he trial court possesses inherent discretionary powers to control pleadings, exclude evidence, and prevent occurrences that might unnecessarily prejudice the right of any party to a fair trial." (Internal quotation marks omitted.) Downs v. Trias , 306 Conn. 81, 102, 49 A.3d 180 (2012) ; see also Practice Book § 23-29 (3) ("[t]he judicial authority may, at any time . [determine] that . the petition presents the same ground as a prior petition previously denied and fails to state new facts or proffer new evidence not reasonably available at the time of the prior petition" [emphasis added] ); James L. v. Commissioner of Correction , supra, 245 Conn. at 143, 712 A.2d 947 ("Decisions concerning abuse of the writ are addressed to the sound discretion of the trial court . [T]heirs must be the judgment as to whether a second or successive application shall be denied without consideration of the merits." [Internal quotation marks omitted.] ). Finally, we observe that the rules of practice expressly recognize the habeas court's discretion over scheduling. See Practice Book § 23-34 ("[t]he judicial authority may establish such additional procedures as it determines will aid in the fair and summary disposition of habeas corpus petitions, including, but not limited to, scheduling orders"). The habeas court's exercise of its discretion to manage the case remains the best tool to guarantee that the case is disposed of "as law and justice require"; General Statutes § 52-470 (a) ; as the habeas judge is in the best position to balance the principles of judicial economy and due process. These concerns are particularly salient for writs of habeas corpus, the principal purpose of which is "to serve as a bulwark against convictions that violate fundamental fairness." (Internal quotation marks omitted.) Lozada v. Warden , 223 Conn. 834, 840, 613 A.2d 818 (1992). In the present case, the habeas court's decision to take no action on the respondent's motion was predicated on its mistaken belief that it lacked discretion to act. It is well established that when a court has discretion, it is improper for the court to fail to exercise it. See, e.g., State v. Lee , 229 Conn. 60, 73-74, 640 A.2d 553 (1994) ("[i]n the discretionary realm, it is improper for the trial court to fail to exercise its discretion"). The decision of the habeas court is reversed and the case is remanded to that court for further proceedings consistent with this opinion. In this opinion the other justices concurred. This court has construed § 52-265a to allow the Chief Justice to certify an appeal in matters of public importance even if the order challenged is not a final judgment. See, e.g., State v. Elias G. , 302 Conn. 39, 40 n.1, 23 A.3d 718 (2011) ; Laurel Park, Inc. v. Pac , 194 Conn. 677, 678-79 n.1, 485 A.2d 1272 (1984). In that case, this court construed General Statutes § 5897, a predecessor to § 52-470 (a). Hogewoning v. Hogewoning , supra, 117 Conn. at 265, 167 A. 813. General Statutes § 52-470 provides in relevant part: "(c) Except as provided in subsection (d) of this section, there shall be a rebuttable presumption that the filing of a petition challenging a judgment of conviction has been delayed without good cause if such petition is filed after the later of the following: (1) Five years after the date on which the judgment of conviction is deemed to be a final judgment due to the conclusion of appellate review or the expiration of the time for seeking such review; (2) October 1, 2017; or (3) two years after the date on which the constitutional or statutory right asserted in the petition was initially recognized and made retroactive pursuant to a decision of the Supreme Court or Appellate Court of this state or the Supreme Court of the United States or by the enactment of any public or special act. The time periods set forth in this subsection shall not be tolled during the pendency of any other petition challenging the same conviction. "(d) In the case of a petition filed subsequent to a judgment on a prior petition challenging the same conviction, there shall be a rebuttable presumption that the filing of the subsequent petition has been delayed without good cause if such petition is filed after the later of the following: (1) Two years after the date on which the judgment in the prior petition is deemed to be a final judgment due to the conclusion of appellate review or the expiration of the time for seeking such review; (2) October 1, 2014; or (3) two years after the date on which the constitutional or statutory right asserted in the petition was initially recognized and made retroactive pursuant to a decision of the Supreme Court or Appellate Court of this state or the Supreme Court of the United States or by the enactment of any public or special act. For the purposes of this section, the withdrawal of a prior petition challenging the same conviction shall not constitute a judgment. The time periods set forth in this subsection shall not be tolled during the pendency of any other petition challenging the same conviction. Nothing in this subsection shall create or enlarge the right of the petitioner to file a subsequent petition under applicable law...." General Statutes § 52-470 (f), which creates an exception to subsections (c) through (e) for petitioners "asserting actual innocence . challeng[ing] the conditions of confinement," or challenging capital convictions resulting in a death sentence, is not at issue in this appeal. The respondent contends that the language of § 52-470 (e) requires the habeas court to issue the show cause order immediately upon the respondent's request. Specifically, the respondent relies on the provision of that subsection that "the court, upon the request of the respondent, shall issue an order to show cause ." (Emphasis added.) General Statutes § 52-470 (e). The respondent argues that the word "shall" creates a mandatory, temporal restraint on the court's power to act on the respondent's motion. As we already have explained, however, nothing in the text of § 52-470 (e) refers to any time limit on the habeas court's authority to act on a motion requesting an order to show cause when there has been a delay-the respondent does not point to any language that expressly defines a time constraint on the court's power to act. The reasonable reading of the statutory language is that it merely clarifies that if the respondent requests that the habeas court address the issue of untimeliness, the court must do so. Nothing in the statute, however, requires that the court do so immediately. The respondent presumes that, in keeping "presumptively untimely petitions pending," the habeas court would let cases sit for years. We disagree. Accompanying the habeas court's enjoyment of discretion, however, is its responsibility to exercise that discretion appropriately. The statute requires that the habeas court ensure that the action proceed "in a summary way ." General Statutes § 52-470 (a). We are confident that the habeas court would exercise its discretion in a manner consistent with the statutory mandate.

12486184

STATE of Connecticut v. FRED C.

State v. Fred C.

2016-08-16

No. 37114.

1258

1267

142 A.3d 1258

142

West's Atlantic Reporter, Third Series

Connecticut Appellate Court

Connecticut

2021-08-27T20:57:13.998797+00:00

Fastcase

DiPENTIMA, C.J., and PRESCOTT and BISHOP, Js.

STATE of Connecticut v. FRED C.

STATE of Connecticut v. FRED C. No. 37114. Appellate Court of Connecticut. Argued May 16, 2016. Decided Aug. 16, 2016. Kirstin B. Coffin, assigned counsel, for the appellant (defendant). Jonathan M. Sousa, special deputy assistant state's attorney, with whom, on the brief, were Gail P. Hardy, state's attorney, and Richard Rubino, senior assistant state's attorney, for the appellee (state). DiPENTIMA, C.J., and PRESCOTT and BISHOP, Js. In accordance with our policy of protecting the privacy interests of the victims of the crime of criminal violation of a protective order, we decline to identify the victim or others through whom the victim's identity may be ascertained.

4328

25800

BISHOP, J. The defendant, Fred C., appeals from the judgment of conviction, rendered after a jury trial, of three counts of assault in the first degree in violation of General Statutes § 53a-59 (a)(3) and one count of criminal violation of a protective order in violation of General Statutes § 53a-223 (a). The defendant raises two claims on appeal. First, he claims that the court abused its discretion in denying his motion for a new trial as to one of the assault charges on the ground that forensic evidence demonstrated that it was physically impossible that he committed that assault. Second, he claims that his constitutional rights "to due process, [to] a fair trial, to present a defense, and to confront witnesses against him" were violated when the court issued a coercive perjury advisement to a witness and that, he argues, deprived him of exculpatory evidence at trial. We affirm the judgment of the trial court. The jury reasonably could have found the following facts. At approximately 2 a.m. on July 28, 2012, after following the victims, G, P, and R, to a residence in Hartford, the defendant stabbed all three of them with a curved knife. First, the defendant cut G's ear, then pinned her against a grill and stabbed her multiple times in her back and buttock, resulting in puncture wounds to her back, a collapsed lung, and a nearly torn off ear. The defendant then turned to P, stabbing her nine times in her chest and side, leaving her paralyzed. The defendant and P have two children together, but due to prior domestic violence, a full no contact protective order had been issued by the court against the defendant in favor of P. The order was in effect on July 28, 2012. As to the third victim, when R, P's mother, tried to intervene, the defendant stabbed her in her right leg. After the assaults of the victims, the defendant left the area. Hartford police officers responded to the scene and observed the victims, their injuries, and a significant amount of blood on the grass, courtyard, and walkway in the vicinity of the assaults. Paramedics transported the victims to the hospital, where officers collected their bloodstained clothing as evidence. Police later arrested the defendant and questioned him at the police station. At the time of the defendant's arrest, officers noticed bloodstains on his clothing and a dried bloodstain on his right hand. Officers collected the defendant's bloodstained clothing, swabbed the bloodstain on his hand, and collected a sample of his DNA. Thereafter, the police sent the clothing, the swab, and the defendant's DNA sample to the state forensics laboratory for testing. At the state forensics laboratory, state forensics technician Kristen Madel tested various cut out portions of bloodstains from the defendant's clothing, the swab from the blood found on his hand, and DNA samples from the defendant and all three victims. Madel's testing revealed P's DNA as contributing to the blood on the defendant's clothing and in the blood swabbed from his hand. Madel did not detect G's or R's DNA on any of the tested samples. On February 19, 2014, the state, in a long form information, charged the defendant with three counts of assault in the first degree in violation of § 53a-59 (a)(3), one count each for stabbing P, R, and G, and one count of criminal violation of a protective order in violation of § 53a-223 (a). The state also charged the defendant with two counts of violating his probation pursuant to General Statutes § 53a-32 by way of separate informations tried to the court. Following a jury trial, the defendant was convicted of all counts, and, subsequently, the court found the defendant to have violated his probation. On May 13, 2014, the court sentenced the defendant to a total effective sentence of twenty-one years and one day incarceration, followed by ten years of special parole. This appeal followed. Additional facts will be set forth as necessary to our assessment of the issues on appeal. I The defendant first claims that the court abused its discretion in denying his motion for a new trial. Specifically, the defendant argues that, with respect to the count alleging that he assaulted G, the jury's verdict was based on physically impossible factual conclusions. To support this argument, the defendant contends that the absence of G's DNA on his body and clothing renders his assault of her physically impossible. We disagree. The following additional facts and procedural history are relevant to our review of this claim. On March 31, 2014, following the guilty verdicts, the defendant filed a motion for a new trial, arguing "that the jury's verdict was clearly against the weight of the evidence...." More specifically, the defendant argued that there were inconsistencies between the DNA evidence and the eye-witness testimony that implicated him. On May 13, 2014, during the defendant's sentencing hearing, the court heard oral argument on the defendant's motion. At the hearing, the defendant argued that the absence of G's DNA from the tested blood samples contradicted the testimony of G and other eyewitnesses who stated that the defendant had stabbed G. According to the defendant, if he had stabbed G, her blood would have been found on his person or clothing and, reciprocally, the absence of her blood from the tested samples meant that he could not have stabbed her. Accordingly, he asserted, the jury's conclusion that he had stabbed G was undermined by the evidence. In response, the state argued that Madel's trial testimony had provided the jury with two reasonable explanations for the lab not detecting G's DNA on the tested samples. The state pointed out that Madel had testified that she did not test every single bloodstain on the defendant's clothing, but selected various stains on his clothing for testing. Additionally, the state noted that Madel had explained during her trial testimony that one DNA source could outcompete another DNA source, thereby concealing the presence of the outcompeted source on the material under examination. Accordingly, the state argued that Madel's explanations refuted the defendant's claim of physical impossibility. In reply, the defendant conceded that R's DNA could have been outcompeted because she was injured less severely and bled less heavily, but argued, nevertheless, that such an occurrence could not have prevented the detection of G's DNA because she had suffered more serious injuries. According to the defendant's reasoning, G's blood would have had to be present on the defendant if he were the perpetrator. After hearing argument, the court denied the defendant's motion for a new trial. "The proper appellate standard of review when considering the action of a trial court granting or denying a motion to set aside a verdict and a motion for a new trial is the abuse of discretion standard.... 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 where an abuse of discretion is manifest or where injustice appears to have been done." (Citations omitted; internal quotation marks omitted.) State v. Ward, 76 Conn.App. 779, 786, 821 A.2d 822, cert. denied, 264 Conn. 918, 826 A.2d 1160 (2003). "We do not . determine whether a conclusion different from the one reached could have been reached.... A verdict must stand if it is one that a jury reasonably could have returned and the trial court has accepted." (Internal quotation marks omitted.) Bolmer v. McKulsky, 74 Conn.App. 499, 510, 812 A.2d 869, cert. denied, 262 Conn. 954, 818 A.2d 780 (2003). "Although the jury is ordinarily the sole arbiter of the facts in a criminal case, its power is not absolute.... The court serves a supervisory function vis-a-vis the jury.... In passing upon a motion to set aside a verdict, the trial judge must do just what every juror ought to do in arriving at a verdict. The juror must use all his [or her] experience, his [or her] knowledge of human nature, his [or her] knowledge of human events, past and present, his [or her] knowledge of the motives which influence and control human action, and test the evidence in the case according to such knowledge and render his [or her] verdict accordingly. A juror who did not do this would be remiss in his [or her] duty. The trial judge in considering the verdict must do the same, or fail in the discharge of that function which the law has laid upon him [or her]; and if, in the exercise of all his [or her] knowledge from this source, he [or she] finds the verdict to be so clearly against the weight of the evidence in the case as to indicate that the jury did not correctly apply the law to the facts in evidence in the case, or were governed by ignorance, prejudice, corruption or partiality, then it is his [or her] duty to set aside the verdict.... In such a case, [a] verdict may be set aside even if the evidence was conflicting and there was direct evidence in favor of the party who prevailed with the jury.... "One cogent reason for overturning the verdict of a jury is that the verdict is based on conclusions that are physically impossible. [A] verdict should be set aside [w]here testimony is thus in conflict with indisputable physical facts, the facts demonstrate that the testimony is either intentionally or unintentionally untrue, and leave no real question of conflict of evidence for the jury concerning which reasonable minds could reasonably differ." (Citations omitted; internal quotation marks omitted.) State v. Hammond, 221 Conn. 264, 267-68, 604 A.2d 793 (1992). With that legal context, we turn to the defendant's specific arguments on appeal in support of his motion. On the basis of our review, we conclude that the defendant's arguments do not support a claim that the verdict was based on a physical impossibility. In essence, the defendant simply seeks to reargue the facts already assessed by the jury. He claims that if he had stabbed the three victims, as asserted by the state, DNA evidence from the blood of all three victims should have been found on him and the absence of any incriminating DNA of a particular victim rendered the state's accusations as to that victim physically impossible. At trial, however, the state's expert witness offered two reasonable explanations for the testing results. First, the expert explained that she did not test every specimen of blood, but selected a limited number of the bloodstain specimens for testing, and, second, she indicated that under certain circumstances, a DNA sample may be blanketed by another, more potent, specimen. From this explanation, the jury could reasonably have inferred that even though G's blood was not among the randomly tested samples, other evidence presented at trial inculpating the defendant-at trial, two eyewitnesses testified that the defendant stabbed the victims-provided a sufficient basis for his conviction. See Jones v. State, 165 Conn.App. 576, 604, 140 A.3d 238, cert. granted on other grounds, 322 Conn. 906, 140 A.3d 977 (2016). Additionally, as noted, the expert explained that the testing may not have identified G's DNA because some DNA sources can outcompete other DNA sources. For example, as Madel explained, a victim who bleeds more can washout the presence of DNA from a victim who bleeds less. Similarly, the blood of a victim who is stabbed after another victim can cover the prior victim's blood, rendering the prior victim's blood and DNA not detectable. In light of this testimony, the jury had a reasonable basis to convict the defendant of all three assaults, even in the absence of DNA evidence from all three victims. Because there was a reasonable interpretation of the evidence that supported a finding of guilt, the court's denial of the defendant's motion for a new trial was not an abuse of discretion. II The defendant next claims that the court violated his constitutional rights "to due process, [to] a fair trial, to present a defense, and to confront witnesses against him" by issuing a strongly worded perjury admonition to P during a suppression hearing, which, he argues, "intimidated [P] into testifying more favorably for the [state]" at trial. In response, the state argues that the court's perjury admonition was warranted because P had given factually inconsistent testimony, and, alternatively, that the court's advisement lacked the coercive force necessary to infringe on the defendant's sixth amendment right. We agree with the state. As a preliminary matter, we note that the defendant did not object to the court's perjury admonition and now seeks review of this unpreserved claim pursuant to State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989). Because the record is adequate for review, and the defendant's claim is of constitutional magnitude, we review it pursuant to Golding. The following additional facts and procedural history are relevant to our review of this claim. Following jury selection, the defendant moved to suppress certain statements he had given to police following his arrest. The court held a hearing on the defendant's motion on February 26, 2014, during which the state called P as a witness. In response to the state's line of questioning about whether she had seen the defendant at the crime scene during the incident, P gave three factually inconsistent responses. First, when the state asked P if she had seen the defendant stabbing G, P answered, "I don't see-I don't know, I didn't see nothing. I went toward there and after that, all I see is me on the floor and all I remember I'm on the floor." Next, when the state asked P if she had tried to stop "the defendant [from] stabbing [G]," P answered, "I know I approached him. I don't know what I did.... [A]fter that, I guess I got stabbed or whatever the case may be, and I ended up on the floor." Finally, P testified that she did not see the defendant at the crime scene, but that "[s]omebody was there. Honestly, somebody was there, I wouldn't-I approached [him]-somebody, I don't remember nothing, I was there, I approached him." In response to P's inconsistent testimony, the court asked the state whether she had given a written statement to the police. The state responded that P had not given a written statement. The court then advised P as follows: "The Court: Do you understand the penalty for perjury? "[P]: Yes. I do. "The Court: What is it? "[P]: That I go to jail. "The Court: Five years, five thousand dollars. "[P]: Okay. Okay. "The Court: You understand that? "[P]: Yes. I do. "The Court: You want a lawyer? "[P]: No. I don't. I'm not lying. Sir, you think I'm lying? "The Court: Yes. I think you're lying and I want to give you a chance to talk to a lawyer before you lie anymore. "[P]: So if you want, I'll get a lawyer, a paid lawyer. "The Court: And how are you going to pay a lawyer? "[P]: I will find money. I get money. I'll find it. "The Court: Who do you get money from? "[P]: I get money from the state. I just got my taxes. I do work. I could get a job. "The Court: Well if you can't, we'll appoint a lawyer for you." Defense counsel did not object to these comments and P concluded her testimony. Before dismissing P as a witness, the court again recommended that she consult an attorney before testifying at trial. The court commented: "All right. You're excused until [trial]. I would suggest you consult with an attorney between now and then and have an attorney with you." After the hearing and before the commencement of the trial, the court appointed counsel for P. At trial and while P was represented by counsel, the state called her as a witness. She testified that the defendant was at the crime scene during the incident, but that she did not see him stab either her or G. Counsel for the defendant did not cross-examine P about her conflicting suppression hearing testimony regarding the defendant's presence at the crime scene, and, after the state rested, the defendant did not call P as a witness for the defense. On appeal, the defendant argues that the court's strongly worded perjury admonition during the suppression hearing intimidated P to alter her testimony at trial in favor of the state regarding the defendant's presence at the crime scene. He further argues that the court's intimidating advisement deprived him of exculpatory evidence, specifically, testimony that he was not at the crime scene when P was stabbed. Accordingly, he contends the court's admonition violated his constitutional rights to due process, to a fair trial, to present a defense, and to confront witnesses against him. "The defendant has a fundamental constitutional right to present a defense.... The federal constitution require[s] that criminal defendants be afforded a meaningful opportunity to present a complete defense.... The sixth amendment . [guarantees] the right to offer the testimony of witnesses, and to compel their attendance, if necessary, [and] is in plain terms the right to present a defense, the right to present the defendant's version of the facts as well as the prosecution's to the jury so that it may decide where the truth lies.... The defendant's right to present a defense is not absolute, however; [t]he right may, in appropriate cases, bow to accommodate other legitimate interests in the criminal trial process.... The accused does not have an unfettered right to offer testimony that is incompetent, privileged, or otherwise inadmissible under standard rules of evidence.... "The function of the court in a criminal trial is to conduct a fair and impartial proceeding.... A trial judge in a criminal case may take all steps reasonably necessary for the orderly progress of the trial.... When the rights of those other than the parties are implicated, [t]he trial judge has the responsibility for safeguarding both the rights of the accused and the interests of the public in the administration of criminal justice.... Accordingly, it is within the court's discretion to warn a witness about the possibility of incriminating himself." (Citations omitted; internal quotation marks omitted.) State v. Tilus, 157 Conn.App. 453, 474-75, 117 A.3d 920, cert. granted on other grounds, 317 Conn. 915, 117 A.3d 854 (2015). In exercising such discretion, however, the court may not threaten a witness into remaining silent or "effectively [drive] that witness off the stand...." Webb v. Texas, 409 U.S. 95, 98, 93 S.Ct. 351, 34 L.Ed.2d 330 (1972). In Webb, the trial judge singled out one witness "for a lengthy admonition on the dangers of perjury." Id., at 97, 93 S.Ct. 351. The trial judge admonished the witness as follows: "Now you have been called down as a witness in this case by the [d]efendant. It is the [c]ourt's duty to admonish you that you don't have to testify, that anything you say can and will be used against you. If you take the witness stand and lie under oath, the [c]ourt will personally see that your case goes to the grand jury and you will be indicted for perjury and the [likelihood] . is that you would get convicted of perjury and that it would be stacked onto what you have already got, so that is the matter you have got to make up your mind on. If you get on the witness stand and lie, it is probably going to mean several years and at least more time that you are going to have to serve. It will also be held against you in the penitentiary when you're up for parole and the [c]ourt wants you to thoroughly understand the chances you're taking by getting on that witness stand under oath. You may tell the truth and if you do, that is all right, but if you lie you can get into real trouble. The court wants you to know that. You don't owe anybody anything to testify and it must be done freely and voluntarily and with the thorough understanding that you know the hazard you are taking." (Internal quotation marks omitted.) Id., at 95-96, 93 S.Ct. 351. After this admonition, the witness "refused to testify for any purpose and was excused by the court." Id., at 96, 93 S.Ct. 351. Upon review of the judge's admonition, the United States Supreme Court concluded that the judge had not merely warned the witness about his testimony, but had threatened the witness not to testify using "unnecessarily strong terms" which "exerted such duress on the witness' mind as to preclude him from making a free and voluntary choice whether or not to testify." Id., at 98, 93 S.Ct. 351. Consequently, the judge's admonition "effectively drove that witness off the stand" in violation of the defendant's constitutional rights. Id., at 98, 93 S.Ct. 351. In the case at hand, the court's comment was in direct response to P's question as to whether the court believed that she was lying. To that question, the court answered, "yes," and the court continued with an admonition to her to consult an attorney. Unlike Webb, the court, in the case at hand, did not threaten the witness. Although the court's answer to P's question was direct and forceful, it did not contain the character of coerciveness found on review in Webb. Rather, the court strongly advised P regarding the consequences of perjury, for which her factually inconsistent testimony provided a basis. At no point did the court tell or even suggest to P which version of her testimony-either that she saw the defendant, did not see the defendant, or did not remember anything-she should relay at trial. Rather, the court noted the presence of inconsistent testimony and, accordingly, advised the witness about the consequences of perjury. In giving this admonition, the court was fulfilling a judicial responsibility. See State v. Tilus, supra, 157 Conn.App. at 475, 117 A.3d 920. Further, unlike the procedural facts of Webb, P did not refuse to testify after the court's warning; instead, she consulted with counsel and then testified at trial. To the extent the defendant believed that P's suppression testimony was more favorable to him, he could have cross-examined her about the apparent inconsistencies between her suppression and trial testimony. See 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 defendant did not avail himself of this opportunity. Accordingly, the defendant was not deprived of the opportunity to elicit potentially beneficial testimony from P by the court's admonition to her regarding the potential consequences of perjury. Under these circumstances, we conclude that the court's strongly worded admonition did not drive P from the witness stand or infringe upon the defendant's constitutional rights. Thus, the defendant has failed to establish a violation of his constitutional rights as is required to satisfy the third prong of Golding. The judgment is affirmed. In this opinion the other judges concurred. The court, by way of two other separate informations, also found the defendant to be in violation of his probation pursuant to General Statutes § 53a-32. The defendant has not challenged that finding on appeal. Initially at trial, the defendant's motion for a new trial was based on the absence of G's and R's DNA from the various tested samples taken from his hand and clothing. Before the trial court, however, he waived his claim as it pertained to R and, accordingly, pursues his claim only as it relates to G on appeal. Pursuant to 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.... [T]he first two [prongs of Golding ] involve a determination of whether the claim is reviewable . and under those two prongs, [t]he defendant bears the responsibility for providing a record that is adequate for review of his claim of constitutional error." (Citations omitted; internal quotation marks omitted.) State v. Elson, 311 Conn. 726, 743-44, 91 A.3d 862 (2014) ; see also In re Yasiel R., 317 Conn. 773, 780-81, 120 A.3d 1188 (2015) (modifying third prong). According to the defendant, the exculpatory evidence that the court's admonition deprived him of was P's testimony that he was not at the crime scene during the incident. It is not clear how this testimony would tend to exculpate the defendant given that P's blood was found on the defendant's body and clothing. That finding, alone, would tend to refute P's suppression testimony that the defendant was not present when she was stabbed. In fact, given the defendant's acknowledgement in his first claim in this appeal that P's blood was found on him, his first and second claims before this court are inherently contradictory.

12489380

IN RE HARMONY Q.

In re Harmony Q.

2017-03-03

AC 39614

137

141

157 A.3d 137

157

West's Atlantic Reporter, Third Series

Connecticut Appellate Court

Connecticut

2021-08-27T20:57:14.014091+00:00

Fastcase

IN RE HARMONY Q.

IN RE HARMONY Q. AC 39614 Appellate Court of Connecticut. Argued February 3, 2017 Officially released March 3, 2017 David J. Reich, assigned counsel, for the appellant (respondent father). Evan O'Roark, assistant attorney general, with whom, on the brief, were George Jepsen, attorney general, Gregory T. D'Auria, solicitor general, and Benjamin Zivyon, assistant attorney general, for the appellee (petitioner). Sheldon, Keller and Prescott, 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. March 3, 2017, the date that this decision was released as a slip opinion, is the operative date for all substantive and procedural purposes.

2141

13407

PER CURIAM. The respondent father, Carlos Q., 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 daughter, Harmony Q. On appeal, the respondent claims that the court improperly concluded that (1) he had failed to achieve a sufficient degree of personal rehabilitation necessary to encourage a belief that he could assume a responsible position in Harmony's life within a reasonable period of time, and (2) termination of his parental rights was in the best interest of the child. We affirm the judgment of the trial court. The record reveals the following relevant facts, which are uncontested or were found by the trial court. The respondent is the father of five children, including Harmony. While living in Orlando, Florida, he married Myra M., who gave birth to the respondent's first two children. In 2004, he ended the relationship with Myra and moved to Hartford with the two children from that marriage. The respondent met another woman and fathered two more children. Those children have always resided with their mother. In 2009, he sent the two children who were residing with him back to Florida to live with their mother. Since 2009, none of his children has resided with him. In 2011, the respondent met Luz R. (mother), who gave birth to their daughter, Harmony Q., on August 29, 2013. One month before Harmony's birth, the respondent was arrested in Massachusetts for the illegal possession of a firearm. Prior to that incident, the respondent had been arrested in Connecticut nine times, between 2007 and 2013, on charges including assault and possession of narcotics. Harmony resided with the mother until she was arrested on November 7, 2013, and charged with the sale of illegal drugs, possession of narcotics, possession of drug paraphernalia, and risk of injury to a child. The Department of Children and Families (department) subsequently removed Harmony from the mother's home and placed her with her cousin, Juan N., and his wife, Nilda N. The respondent was released on bond that same month, after Harmony already had been placed with her maternal relatives. In March, 2014, Harmony was adjudicated neglected and committed to the care and custody of the commissioner. The respondent subsequently was sentenced to two years of incarceration, eighteen months mandatory, on the illegal possession of a firearm charge. He began serving that sentence on September 23, 2014. In the ten months between when he was released on bond and when he returned to serve his sentence, the respondent was referred by the department for multiple services, which he failed to complete. He also failed to attend court-mandated parenting and individual counseling, and was arrested for a tenth time in Connecticut in connection with an unrelated incident. The respondent, during those months, supported the mother's effort to reunify with Harmony. Nevertheless, he personally visited Harmony only periodically. Approximately one month before the respondent returned to Massachusetts to serve his sentence on the firearm charge, on August 24, 2014, Harmony's commitment was revoked and she was returned to the custody of the mother under a period of nine months of protective supervision by the department. Harmony resided with the mother for approximately four and one-half months before being removed from her custody a second time, because she was arrested again for selling narcotics out of her apartment. The department again placed Harmony with Juan N. and Nilda N. On January 16, 2015, Harmony was recommitted to the care and custody of the commissioner. Thereafter, the department brought Harmony to the prison for monthly supervised visits with the respondent. On May 12, 2015, the commissioner filed a petition seeking the termination of the respondent's and the mother's parental rights, alleging the ground of failure to rehabilitate as to both parents. The court approved, on November 10, 2015, a permanency plan of termination of parental rights and adoption. While in prison, the respondent participated in various programs offered by the Department of Correction in Massachusetts, which targeted parenting skills, financial wellness, and prevention relapses. The respondent's sentence ended on January 4, 2016, after which he moved back to Connecticut and obtained gainful employment and his own apartment. After his release, he was required, by court-ordered specific steps, to complete services with local providers. Not only did he fail to complete any of those services, but the respondent informed the assigned social worker, Ama Tandoh, that he had "done enough" and did not believe that he needed any additional services. The respondent was also offered weekly supervised two hour visits with Harmony. Between January, 2016, and March, 2016, the respondent failed to attend three scheduled visits with Harmony, citing work scheduling conflicts despite his knowledge that the visits could be scheduled to accommodate his work schedule. Two other visits were cancelled due to weather and a state holiday. Despite the department's offer to add time to the regularly scheduled visits, the respondent failed to stay at the visits for the scheduled two hours. In fact, he would often leave after one hour, without explanation. On March 14, 2016, the trial on the commissioner's petition to terminate the respondent's parental rights was held. During that trial, the respondent presented certificates that he had obtained while incarcerated, as evidence of his completion of some of the offered programs. Testimony from two department social workers, including Tandoh, however, evidenced that the certificates indicated only attendance at the programs, not that the respondent had internalized the programs' lessons. Tandoh testified that she had spoken with the provider who ran the only program for which the respondent had signed a release, and that that provider stated that the respondent had participated in those groups. Because the respondent failed to sign releases for the other programs, however, she was unable to obtain the same verification of participation. In regard to Harmony, Tandoh testified that she had established a bond with her maternal relatives and considered them her parents, because she was only in the care of her mother for three to four months out of the two and one-half years of her life. Similarly, Juan N. testified that he and his wife treated Harmony as their own daughter, and that they would seek to adopt her if the trial court granted the termination of parental rights petition. On August 5, 2016, the trial court granted the petition for the termination of the respondent's parental rights, finding that he had failed to rehabilitate within the meaning of General Statutes § 17a-112(j)(3)(B)(i), and that he was unable or unwilling to benefit, within a reasonable period of time, from the department's reasonable efforts to reunify Harmony with him. In particular, the court based its conclusion on the facts that the respondent (1) had been incarcerated for illegal gun possession when the child was born, (2) had been incarcerated throughout much of Harmony's life, (3) had refused to communicate and cooperate with the department when it requested to visit his residence, (4) had failed to complete a mental health screening and substance abuse evaluation, (5) had refused to take part in an interactional one-on-one parenting program with Harmony because he said he was going to prison and therefore did not want to be reunified with her, (6) had refused the department's referrals for services after his release from prison, and (7) had missed three scheduled visits with Harmony without explanation. The court further held that termination of the respondent's parental rights was in Harmony's best interest because it found that there was no reasonable probability that the respondent would be able to serve a meaningful role in her life within a reasonable period of time, and that Harmony was bonded to and stable with her foster family. This appeal followed. On appeal, the respondent claims that the court improperly found that he had failed to rehabilitate within the meaning of § 17a-112(j)(3)(B)(i), and argues that he had indeed rehabilitated by participating in a number of programs offered through the correctional facility at which he was incarcerated. He also claims that because he had rehabilitated, the court improperly found that termination of his parental rights was in the best interest of Harmony. The commissioner responds that the respondent had not rehabilitated, and that, accordingly, both of the respondent's claims fail. "To prevail in a nonconsensual termination of parental rights, the commissioner must prove by clear and convincing evidence that one of several grounds for termination exists." In re Michael R. , 49 Conn.App. 510, 512, 714 A.2d 1279, cert. denied, 247 Conn. 919, 722 A.2d 807 (1998). The respondent in this case has challenged the court's finding that he failed to rehabilitate, within the meaning of § 17a-112(j)(3)(B)(i). If the trial court concludes that failure to rehabilitate has been proved by the appropriate standard, it must still determine if termination of the respondent's parental rights is in the best interests of the child. See In re Sydnei V. , 168 Conn.App. 538, 551, 147 A.3d 147, cert. denied, 324 Conn. 903, 151 A.3d 1289 (2016). "A conclusion of failure to rehabilitate is drawn from both the trial court's factual findings and from its weighing of the facts in assessing whether those findings satisfy the failure to rehabilitate ground set forth in § 17a-112(j)(3)(B). Accordingly . the appropriate standard of review is one of evidentiary sufficiency, that is, whether the trial court could have reasonably concluded, upon the facts established and the reasonable inferences drawn therefrom, that the cumulative effect of the evidence was sufficient to justify its [ultimate conclusion]. . When applying this standard, we construe the evidence in a manner most favorable to sustaining the judgment of the trial court. . We will not disturb the court's subordinate factual findings unless they are clearly erroneous." (Citation omitted; internal quotation marks omitted.) In re Leilah W. , 166 Conn.App. 48, 68, 141 A.3d 1000 (2016). After a careful review of the record, we conclude that the cumulative effect of the evidence, construed in a manner most favorable to sustaining the judgment, was sufficient to justify the court's ultimate conclusion that the respondent failed to achieve sufficient rehabilitation that would encourage the belief that, within a reasonable time, he could assume a responsible position in Harmony's life. In addition, in the dispositional phase, we will reverse the court's determination of the best interest of the child only if the court's findings are clearly erroneous. In re Paul M ., 154 Conn.App. 488, 501-502, 107 A.3d 552 (2014). Similarly, we further conclude that the respondent's challenge to the court's best interest determination is also without merit because the basis for that claim is that he had rehabilitated. The court addressed each of the findings mandated by § 17a-112(k) in writing and we are persuaded that its determination was not clearly erroneous. See id., at 508, 107 A.3d 552. The judgment is affirmed. In the same proceeding, the court also terminated the parental rights of Harmony's mother, Luz R. She did not appeal from that judgment. We therefore refer to Carlos Q. as the respondent throughout this opinion. See General Statutes § 17a-112(j)(3)(B)(i). The respondent was represented by counsel throughout the underlying proceedings. The respondent was issued court-ordered specific steps on January 27, 2014, to facilitate the return of Harmony to his care. He failed to comply with those steps. One such program provided one-on-one parenting education. The respondent informed the parent educator at the program that he was "planning to go to prison, did not want to be reunified with his daughter and was not planning to be a full-time parent to this child." The respondent was subsequently discharged from that program. A nolle prosequi was entered as to that charge in August, 2014. The respondent was issued court-ordered specific steps, a second time, to facilitate the return of Harmony to his care. He failed to comply with those steps.

12485338

STATE of Connecticut v. Keith CHEMLEN.

State v. Chemlen

2016-05-31

No. 37429.

347

370

140 A.3d 347

140

West's Atlantic Reporter, Third Series

Connecticut Appellate Court

Connecticut

2021-08-27T20:57:13.996876+00:00

Fastcase

STATE of Connecticut v. Keith CHEMLEN.

STATE of Connecticut v. Keith CHEMLEN. No. 37429. Appellate Court of Connecticut. Argued March 14, 2016. Decided May 31, 2016. Jodi Zils Gagne, Bristol, for the appellant (defendant). Lisa Herskowitz, senior assistant state's attorney, with whom, on the brief, were Maureen Platt, state's attorney, and Marc G. Ramia, senior assistant state's attorney, for the appellee (state). LAVINE, ALVORD and PRESCOTT, Js.

11499

70228

PRESCOTT, J. The defendant, Keith Chemlen, appeals from the judgment of conviction, rendered after a jury trial, of forgery in the second degree in violation of General Statutes § 53a-139 (a)(3), and larceny in the third degree in violation of General Statutes § 53a-124 (a)(2). The defendant subsequently pleaded guilty to being a persistent serious felony offender in violation of General Statutes § 53a-40 (c), as charged in a part B information. On appeal, the defendant claims that (1) the trial court improperly excluded extrinsic evidence to impeach a state's witness; (2) his constitutional rights to due process and a fair trial were violated by the prosecutor's failure to correct the false testimony of a state's witness; and (3) the court improperly denied his motion for a judgment of acquittal on the basis of insufficiency of the evidence. We affirm the judgment of the trial court. The jury reasonably could have found the following facts. Daniel Brenes is the owner and sole officer of Global International, Inc., which is registered in Connecticut under the name of National Credit Masters. National Credit Masters performs credit repair services, including reviewing a client's credit report, analyzing any negative information contained therein, and developing a plan to remove any negative information. National Credit Masters does not negotiate or settle debt obligations to creditors. Brenes met the defendant in 2005 or 2006 at a business meeting. Subsequent to that initial encounter, Brenes and the defendant crossed paths at bars and in the surrounding area. Although Brenes' knowledge of the defendant was limited-he only knew the defendant's first name-he came to believe that the defendant was a great salesman. Thus, when the defendant applied for an open sales associate position at National Credit Masters in December, 2012, Brenes offered him an interview. During the interview, Brenes asked the defendant for identification so that he could perform a background check. The defendant provided Brenes with a state issued identification card on which was the name "Keith David." Brenes made a copy of the identification card and then returned it to the defendant. Brenes subsequently hired the defendant, whom he believed to be Keith David. The defendant began working at National Credit Masters in February, 2013. Brenes gave the defendant a training manual and instructed him that the company e-mail account was the only e-mail account to be used to contact clients. Brenes also told the defendant that clients could not pay their fees in cash and that he was not to settle debt obligations with creditors. In June or July, 2013, several people began stopping by National Credit Masters' office and claiming that they were clients, although Brenes had no knowledge of them. In one instance, Brenes received a telephone call from Michelle Garcia, who claimed to be a client of National Credit Masters. Garcia told Brenes that the defendant had arranged for Robert Nichols, an attorney and Brenes' landlord, to represent her on a debt-defense case. Brenes arranged a meeting between himself, Garcia, and Nichols, during which Nichols informed her that he never had represented any of National Credit Masters' clients and had not agreed to represent her. By the date of the meeting between Brenes, Garcia, and Nichols, the defendant had stopped coming into work and claimed to have a stomach virus. As time went on, the defendant failed to return Brenes' telephone calls, and Brenes began to call clients to confer on the status of their credit repairs. Through these calls, Brenes discovered that the defendant had violated company procedures by charging clients for debt negotiation and settlement, and by offering legal advice. Brenes terminated the defendant's employment and notified the police of these revelations. Detective Randy Watts of the Waterbury Police Department spoke with Brenes, Garcia, and nine other people who had been clients of the defendant. Through these interviews, it came to light that the defendant, in contravention of company policy, had accepted payments from clients, which National Credit Masters never received, in cash and through PayPal in his name. In exchange for these payments, the defendant had promised clients that he would negotiate and settle their debts and would remove negative information from their credit reports. Such promises often were not kept. In some instances, clients paid the defendant in cash or through a PayPal account linked to the defendant's personal e-mail to remove negative information from their credit reports. The defendant sent these clients fake credit reports from a personal e-mail address, showing that their credit scores had been improved, but, in actuality, their credit reports remained the same. In other instances, clients paid the defendant in cash to settle their debts. The defendant told these clients that the debts had been settled and paid, but, in actuality, the defendant never negotiated the debt amounts or paid the creditors. Additionally, all of the clients knew the defendant as "Keith" or "Keith David." The defendant's real name was not "Keith David" but, rather, was "Keith David Chemlen." On August 13, 2014, in an amended long form information, the defendant was charged with two counts of forgery in the second degree in violation of § 53a-139 (a)(3), and one count of larceny in the third degree in violation of § 53a-124 (a)(2). In the amended information, the state alleged that the defendant committed forgery in the second degree by altering a state issued identification card with the intent to defraud and deceive Brenes, and by possessing a state issued identification card that he knew to be altered with the intent to deceive Brenes. The state further alleged that the defendant committed larceny in the third degree by wrongfully obtaining money from clients by false promises to repair credit scores and settle debts. On August 19, 2014, a jury found the defendant guilty of all three counts. He subsequently pleaded guilty to being a persistent serious felony offender in violation of § 53a-40 (c), pursuant to a part B information. On October 10, 2014, at sentencing, the court vacated the verdict on the second count of forgery in the second degree and imposed a total effective sentence of fifteen years of incarceration, execution suspended after seven years, followed by five years of probation with special conditions. This appeal followed. Additional facts will be set forth as required. I The defendant first claims that the court improperly excluded extrinsic evidence that would have impeached Brenes by contradicting his statement that he did not know the defendant's last name at the time that he hired him. Specifically, he argues that he should have been allowed to impeach Brenes' testimony with extrinsic evidence of prior inconsistent statements because it related to a noncollateral matter, namely, whether he had the intent to deceive Brenes, as required to prove forgery in the second degree, if Brenes knew his last name at the time he hired him. The state responds that the court properly excluded the evidence at issue because it was unreliable, lacked authenticity, and would have confused the jury. We agree with the state. The following additional facts and procedural history are relevant to this claim. At trial, Brenes testified for the state that although he had met the defendant as early as 2005 or 2006, he did not know that the defendant's last name was "Chemlen" at the time that he hired him. Rather, he believed, on the basis of the identification card shown to him by the defendant, that the defendant's last name was "David." On cross-examination, Brenes testified that he had a post office box, but he had not authorized the defendant or DK Management, LLC, a limited liability company of which the defendant was the agent, to use it. Defense counsel showed Brenes two documents, which were marked for identification purposes only, in an attempt to establish that the defendant and Brenes had been in business together as early as 2008. The first document, defense exhibit A, was the articles of organization for DK Management, LLC. The articles of organization purported to show that both the defendant, whose full name was listed, and Brenes were members of DK Management, LLC, on March 24, 2008. The document, however, was signed only by the defendant, and Brenes testified that he had never been a member of DK Management, LLC. The defendant did not offer the articles of organization into evidence as a full exhibit. The second document, defense exhibit B, consisted of two applications for a post office box. On one of the post office box applications, dated January 29, 2008, both DK Management, LLC, and Brenes' name appeared. Brenes testified that he did not place DK Management, LLC, on the 2008 application. Only Brenes' name appeared on the second post office box application, dated February 13, 2009. The defense did not ask Brenes whether he filled out either post office box application or whether his handwriting was contained on either application. The defendant did not offer the two applications into evidence as a full exhibit at this time. After the state rested, the defendant attempted, in an often confusing fashion, to establish that Brenes knew the defendant's correct last name at the time that he hired him. According to the defendant, if Brenes knew his last name, he could not have intended to deceive Brenes by providing him with an identification card containing an alias, as required to prove forgery in the second degree. The defendant sought to establish this fact by offering the testimony of Paul Bianca, a postmaster, and, through him, several documents relating to Brenes' post office box. The state initially objected to the admission of the documents on the grounds of relevancy and the inadmissibility of extrinsic evidence to impeach a witness. In an attempt to lay a foundation as to the admissibility of the documents, the defendant offered the testimony of Bianca outside the presence of the jury. The documents that the defense sought to offer into evidence were marked for identification only as defense exhibits G, H, I, J, K (exhibits). Defense exhibit G is identical to defense exhibit B. Defense exhibit J is only the 2008 application to open a post office box. The 2008 application states that the post office box is assigned to DK Management, LLC, and was applied for by Brenes. It is allegedly signed by Brenes. Defense exhibit K is the 2009 application for a post office box. The 2009 application states that the post office box is assigned to Brenes and was applied for by Brenes. It purports to be signed by Brenes. The signature on the 2009 post office box application is drastically different from the signature on the 2008 post office box application. When questioned concerning the two different post office box applications, Bianca testified that he was not the clerk who handled either application, and he could assume only that the 2009 application was actually an application to change the lock on the post office box, not an application to open anew post office box. Bianca, however, conceded that nothing in exhibit K supported this assumption or established who filled out the application or signed it. Bianca also stated that an application to open a post office box has two pages, and both the 2008 post office box application and the 2009 post office box application were missing their second page. Defense exhibit H is the second page of an electronic document from the United States Postal Service that lists additional names that have access to a particular post office box. The names listed are Keith Chemlen, Brenes Industries Group, DK Management, LLC, and National Credit Masters. The document does not indicate with which post office box the information is associated. It does indicate, however, that it is the second of two pages, and the first page was not provided. Defense exhibit I is a handwritten note that was in a post office file concerning Brenes' post office box. The handwritten note states that Keith Chemlen is not permitted access to Brenes' post office box. The note is not dated, and the parties agreed that it was not written by Brenes. Bianca assumed, without firsthand knowledge, that it was written by a clerk. Brenes never testified on direct or cross-examination that he had signed either post office box application or had the lock changed on his post office box. Additionally, Brenes was never shown or questioned about the handwritten note in his post office file or the electronic document from the United States Postal Service. During the defendant's attempt to have these documents admitted into evidence, however, the defendant argued that the 2008 post office box application, which listed DK Management, LLC, as the assignee of the post office box, could be linked to the articles of organization for DK Management, LLC, which listed both Brenes and the defendant by full name as members, and, thus, established that Brenes knew the defendant's last name before he hired him. Throughout the defendant's lengthy attempt to have these exhibits admitted into evidence, the state made numerous objections and arguments concerning the inadmissibility of the exhibits. The state noted multiple authenticity concerns with the exhibits. For example, Bianca testified that he had no knowledge or documentation that could establish who filled out the 2008 and 2009 post office box applications or when the handwritten note was added to Brenes' post office file. Both post office box applications were missing their second page. There was no evidence that the signatures on the post office box applications belonged to Brenes. The electronic printout from the United States Postal Service, defense exhibit H, contained no information linking it to Brenes' post office box. The state further argued that even if the applications were authentic, there was no evidence admitted in the record that linked DK Management, LLC, to both the defendant and Brenes. Although DK Management, LLC, is listed on the 2008 post office box application, the defendant's name is not. The only document that links DK Management, LLC, to the defendant is the articles of organization (defense exhibit A), which was never offered by the defendant as a full exhibit and was only signed by the defendant, and, thus, does not prove that Brenes and the defendant were both associated with DK Management, LLC. The court sustained the state's objection to the admission of the exhibits. Although the court agreed with the defendant's argument that the court had discretion to admit extrinsic evidence of a prior inconsistent statement pursuant to Connecticut Code of Evidence § 6-10, it, nevertheless, held that the exhibits were inadmissible because they were too confusing and lacked authenticity and reliability. The court based its holding on the fact that there were "too many gaps, too many question marks, too may assumptions that would have to be made to reach a conclusion" that Brenes knew the defendant's last name in 2008. We begin by setting forth our standard of review. "[I]t is well settled that the trial court's evidentiary rulings are entitled to great deference.... The trial court is given broad latitude in ruling on the admissibility of evidence, and we will not disturb such a ruling unless it is shown that the ruling amounted to an abuse of discretion.... When reviewing a decision to determine whether the trial court has abused its discretion, we make every reasonable presumption in favor of upholding the trial court's ruling, and only upset it for a manifest abuse of discretion." (Citation omitted; internal quotation marks omitted.) Chief Information Officer v. Computers Plus Center, Inc., 310 Conn. 60, 97-98, 74 A.3d 1242 (2013). As an initial matter, we address the defendant's contention that the exhibits were extrinsic evidence of prior inconsistent statements. To be admissible as extrinsic evidence of a prior inconsistent statement under § 6-10 of the Connecticut Code of Evidence, the proffered evidence must be a prior statement made by the witness that contradicts something that the witness has testified to at trial. See State v. Ward, 83 Conn.App. 377, 393-94, 849 A.2d 860, cert. denied, 271 Conn. 902, 859 A.2d 566 (2004). Our Supreme Court "[has] stated that [t]he impeachment of a witness by extrinsic evidence [of a prior inconsistent statement pursuant to § 6-10 of the Connecticut Code of Evidence ] is somewhat limited. Not only must the inconsistent statements be relevant and of such a kind as would affect the credibility of the witness . but generally a foundation should be laid at the time of cross-examination." (Emphasis omitted; internal quotation marks omitted.) Chief Information Officer v. Computers Plus Center, Inc., supra, 310 Conn. at 118, 74 A.3d 1242. To be relevant, the inconsistent statement must relate to a noncollateral matter, otherwise the statement must be excluded. See State v. Diaz, 237 Conn. 518, 548, 679 A.2d 902 (1996) (extrinsic evidence is not admissible to impeach witness "by contradicting his or her testimony as to collateral matters, that is, matters that are not directly relevant and material to the merits of the case" [internal quotation marks omitted] ); State v. Dudley, 68 Conn.App. 405, 419, 791 A.2d 661 ("[a] matter is not collateral if it is relevant to a material issue in the case apart from its tendency to contradict the witness" [internal quotation marks omitted] ), cert. denied, 260 Conn. 916, 797 A.2d 515 (2002). Even if these requirements are met, the admission of extrinsic evidence to impeach is within the court's broad discretion. See State v. Dudley, supra, at 419, 791 A.2d 661 ; State v. Smith, 46 Conn.App. 285, 295, 699 A.2d 250, cert. denied, 243 Conn. 930, 701 A.2d 662 (1997). In seeking their admission, the defendant appeared to characterize the exhibits at trial as prior inconsistent statements, i.e., impeachment evidence, to refute Brenes' prior testimony that he did not know the defendant's last name. On the basis of the defendant's offer, the court ruled on the admissibility of the exhibits on the ground that they were extrinsic evidence of prior inconsistent statements under § 6-10(c) of the Connecticut Code of Evidence. The court implicitly found that the exhibits were prior inconsistent statements on a noncollateral issue, and, thus, the court proceeded on the assumption that it was within its discretion to admit them. See State v. Dudley, supra, 68 Conn.App. at 419, 791 A.2d 661 (court had broad discretion to admit extrinsic evidence of prior inconsistent statement). The court specifically stated that it was exercising its discretion to exclude the exhibits because they lacked authenticity and reliability and would have confused the jury. Not all of the exhibits, however, can be construed properly as prior statements by Brenes that contradict his testimony at trial. The only exhibit that arguably contains evidence of a prior inconsistent statement made by Brenes is the 2008 post office box application because it states that Brenes applied for a post office box for the use of DK Management, LLC. If true, this statement tends to establish that Brenes was associated with DK Management, LLC, in 2008. Brenes, however, testified that he had no connection to DK Management, LLC. Thus, the two statements contradict each other. The other exhibits contain no such potentially inconsistent statements made by Brenes. The 2009 post office box application contains no statement by Brenes that establishes that he was associated with DK Management, LLC, or knew the defendant's last name at that time. Although the articles of organization, the handwritten note in Brenes' post office file, and the electronic record from the United States Postal Service contain both the defendant's full name and Brenes' name, they are not even purportedly signed by Brenes and, thus, cannot be classified, without more, as prior statements made by Brenes. Although not evidence of prior inconsistent statements, these exhibits are arguably relevant nonetheless to a material issue, namely, whether the defendant had the intent to deceive Brenes as required by § 53a-139 (a)(3) if he thought that Brenes knew his name when he provided Brenes with the altered identification card. See Conn.Code Evid. § 4-1. The fact that some of the exhibits are not prior inconsistent statements, however, does not entirely dispose of our review of the trial court's decision to exclude the exhibits on the basis of confusion and lack of authenticity. In exercising its broad discretion to admit evidence, whether categorized as extrinsic evidence of a prior inconsistent statement or simply as evidence relevant to a material issue, the court may exclude evidence if its probative value is outweighed by other considerations. For example, relevant evidence may be excluded if its probative value is outweighed by the confusion it would cause. See Conn.Code Evid. § 4-3 ; Ancheff v. Hartford Hospital, 260 Conn. 785, 804, 799 A.2d 1067 (2002) ("[s]ection 4-3 . recognizes the court's authority to exclude relevant evidence when its probative value is outweighed by factors such as confusion of the issues or misleading the jury" [internal quotation marks omitted] ). "As we have stated, [o]ne of the chief roles of the trial judge is to see that there is no misunderstanding of a witness's testimony. The judge has a duty to comprehend what a witness says as much as it is his duty to see that the witness communicates with the jury in an intelligible manner. A trial judge can do this in a fair and unbiased way. His attempt to do so should not be a basis [for] error. Where the testimony is confusing or not altogether clear the alleged jeopardy to one side caused by the clarification of a witness's statement is certainly outweighed by the desirability of factual understanding. The trial judge should strive toward verdicts of fact rather than verdicts of confusion." (Internal quotation marks omitted.) Farrell v. St. Vincent's Hospital, 203 Conn. 554, 563-64, 525 A.2d 954 (1987). Furthermore, in determining whether to admit into evidence a writing, the court may consider the authenticity of the evidence. Pursuant to § 9-1 of the Connecticut Code of Evidence, "[a]uthentication is . a necessary preliminary to the introduction of most writings in evidence.... In general, a writing may be authenticated by a number of methods, including direct testimony or circumstantial evidence.... Both courts and commentators have noted that the showing of authenticity is not on a par with the more technical evidentiary rules that govern admissibility, such as hearsay exceptions, competency and privilege.... Rather, there need only be a prima facie showing of authenticity to the court.... Once a prima facie showing of authorship is made to the court, the evidence, as long as it is otherwise admissible, goes to the jury, which ultimately will determine its authenticity. . The requirement of authentication . is satisfied by evidence sufficient to support a finding that the offered evidence is what its proponent claims it to be." (Internal quotation marks omitted.) State v. Cooke, 89 Conn.App. 530, 548, 874 A.2d 805, cert. denied, 275 Conn. 911, 882 A.2d 677 (2005). One manner by which a document can be authenticated is by proof that the document is signed and the signature is verified either by the signer, a witness to the signing, or comparison to the alleged signer's known signature. See Shulman v. Shulman, 150 Conn. 651, 657, 193 A.2d 525 (1963) ; Tyler v. Todd, 36 Conn. 218, 222 (1869). Although not all of the exhibits that the defendant sought to admit are characterized properly as evidence of prior inconsistent statements, the essence of the defendant's argument in favor of admitting the exhibits is unaffected. The defendant argues that the exhibits should have been admitted into evidence because they were relevant to whether he had the intent to deceive Brenes, as required to prove forgery in the second degree. According to the defendant, if Brenes knew his last name at the time that he hired him, Brenes could not be deceived by the altered identification card. Contrary to the defendant's contention, the exhibits have little to no probative value concerning whether he had the requisite intent to deceive Brenes. The defendant contends that the exhibits establish that he did not intend to deceive Brenes because Brenes could not be deceived if he already knew the defendant's name. Whether Brenes was in fact deceived, however, is not an element of forgery in the second degree in violation of § 53a-139 (a)(3). See State v. Dickman, 119 Conn.App. 581, 588-89, 989 A.2d 613, cert. denied, 295 Conn. 923, 991 A.2d 569 (2010) ; part III A of this opinion. The belief of the victim is immaterial under § 53a-139 (a)(3) ; the only intent that matters is the intent of the defendant. State v. Dickman, supra, at 589, 989 A.2d 613. To the extent that the defendant argues that the exhibits establish that he did not have the intent to deceive Brenes because he believed that Brenes knew his last name when he hired him, the exhibits have minimal probative value. Even if Brenes knew the defendant's last name and placed it on the electronic record and the handwritten note as early as 2008, there is no evidence that the defendant knew at the time he presented the altered identification card to Brenes that Brenes had done so. No additional evidence was offered by the defendant to buttress the reliability of the exhibits or to relate them to the defendant's alleged understanding that Brenes knew his last name when he hired him. Even assuming that the exhibits have probative value, the trial court found such value to be undermined by the exhibits' lack of authenticity and their potential to confuse the jury, and, thus, excluded them. See Ancheff v. Hartford Hospital, supra, 260 Conn. at 804, 799 A.2d 1067 (relevant evidence may be excluded). Significant questions regarding the authenticity of the exhibits exist. Importantly, Brenes was never questioned concerning whether he had filled out and signed the 2008 and 2009 post office box applications. Moreover, the second pages of both applications were missing. Postmaster Bianca's testimony regarding the existence of and contrast between the two applications admittedly was based on assumption and speculation. The clerks who processed the applications did not testify, and there was no evidence to establish when the handwritten note was placed in Brenes' file. There was no other document offered by the defendant that linked Brenes, DK Management, LLC, and the defendant's full name. Moreover, it is unclear how the exhibits all fit together, and their probative value regarding whether Brenes knew the defendant's last name prior to hiring him is low. The defendant attempted to piece multiple documents together like a complex jigsaw puzzle in order to establish that Brenes knew the defendant's last name in 2008. For the pieces of this puzzle to fit together as the defendant contends, however, too many assumptions, speculation, and logical leaps were required, none of which were supported by evidence actually offered or admitted at trial. Additionally, the defendant's confusing attempts to link these incomplete, unauthenticated documents together naturally affected the court's exercise of its discretion to exclude them. Just as "[t]he judge [has] a duty to comprehend what a witness says," the court in this case had a duty to comprehend the information contained in the exhibits to ensure that their admission would not confuse the jury. (Internal quotation marks omitted.) Farrell v. St. Vincent's Hospital, supra, 203 Conn. at 563, 525 A.2d 954. In sum, the court did not abuse its discretion by determining that even if the exhibits had some probative value, the documents remained inadmissible because of their lack of authenticity and their likelihood to confuse the jury. Accordingly, we conclude that the court did not improperly exclude them. II The defendant next claims that his due process right to a fair trial was violated by the state's failure to correct the false testimony of a state's witness that the state knew to be false. He specifically contends that the state knew that Brenes was aware of the defendant's last name prior to hiring him because the state knew about the exhibits relating to Brenes' post office box. Although the defendant concedes that he did not preserve this claim properly at trial, he 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). For the reasons that follow, we find the record inadequate to review this claim. The following additional facts are relevant to this claim. During the defendant's attempt to establish the admissibility of the exhibits concerning Brenes' post office box, the court asked the defendant when he had become aware of the exhibits. The defendant responded that he had secured some of the documents prior to Brenes' testimony but not all of them. The prosecutor disagreed, stating that he had obtained all of the exhibits at issue from a postal inspector and had given copies of the exhibits to the defendant prior to the start of trial. The court then asked the prosecutor: "[I]s it your representation that you were in possession of [the exhibits], and a question was asked [to Brenes] and [his] testimony contradicted what was in [the exhibit]?" The prosecutor stated that he had questioned Brenes about the exhibits and that Brenes had told him that he had no connection to DK Management, LLC, and was not aware of the handwritten note in his file at the post office. The prosecutor also argued that he believed that Brenes testified truthfully and that the exhibits did not contradict his testimony because their authenticity never was established-specifically, Brenes never testified that he signed the post office box applications, the post office box applications were missing pages, and only the defendant signed the articles of organization. The rules governing our evaluation of a claim that a prosecutor failed to correct false or misleading testimony are derived from those first set forth by the United States Supreme Court in Brady v. Maryland, 373 U.S. 83, 86-87, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). "In Brady . the United States Supreme Court held that the prosecution's failure to disclose a codefendant's statement that exculpated the defendant after the defendant had specifically requested that statement constituted a violation of the defendant's due process right under the fourteenth amendment. [T]he suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution." (Footnote omitted; internal quotation marks omitted.) State v. Cohane, 193 Conn. 474, 495, 479 A.2d 763, cert. denied, 469 U.S. 990, 105 S.Ct. 397, 83 L.Ed.2d 331 (1984). "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." State v. Simms, 201 Conn. 395, 405, 518 A.2d 35 (1986). Brady and its progeny have been extended to include circumstances in which the state knowingly uses perjured testimony to obtain a conviction. United States v. Agurs, 427 U.S. 97, 103, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976). As our Supreme Court has stated, "the knowing presentation of false evidence by the state is incompatible with the rudimentary demands of justice. . Furthermore, due process is similarly offended if the state, although not soliciting false evidence, allows it to go uncorrected when it ap pears.... Regardless of the lack of intent to lie on the part of the witness . the prosecutor [must] 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." (Citations omitted; internal quotation marks omitted.) State v. Satchwell, 244 Conn. 547, 560-61, 710 A.2d 1348 (1998). With these legal principles in mind, we turn to whether this claim is reviewable under Golding. "The first two [prongs of Golding ] involve a determination of whether the claim is reviewable...." (Internal quotation marks omitted.) State v. Peeler, 271 Conn. 338, 360, 857 A.2d 808 (2004), cert. denied, 546 U.S. 845, 126 S.Ct. 94, 163 L.Ed.2d 110 (2005). Under the first prong of Golding, for the record to be adequate for review, the record must contain sufficient facts to establish that a violation of constitutional magnitude has occurred. State v. Brunetti, 279 Conn. 39, 55-56, 901 A.2d 1 (2006) ("we will not address an unpreserved constitutional claim [i]f the facts revealed by the record are insufficient, unclear or ambiguous as to whether a constitutional violation has occurred" [internal quotation marks omitted] ), cert. denied, 549 U.S. 1212, 127 S.Ct. 1328, 167 L.Ed.2d 85 (2007). We conclude that the defendant's claim fails under the first prong of Golding because the record is inadequate for review on the ground that it contains no factual findings by the court as to whether Brenes testified falsely and, if he did, whether the state knew about it. Moreover, in the absence of any such factual findings by the trial court, the facts in the record are insufficient, unclear, and ambiguous as to whether a Brady violation has occurred. On the basis of facts similar to those in the present case, our Supreme Court in State v. Brunetti, supra, 279 Conn. at 42-43, 901 A.2d 1, declined to review a constitutional claim on the ground that the record was inadequate for review under the first prong of Golding. In Brunetti, the defendant's mother declined to sign a consent to search form that would allow the police to search the family home, but the defendant's father signed the consent to search form. Id., at 42, 901 A.2d 1. At a hearing on a motion to suppress the evidence obtained during the search of the family home, the defendant argued only that the search was unlawful because the father's consent to the search had been coerced. Id., at 48-49, 901 A.2d 1. On appeal, the defendant claimed for the first time that there was no consent to search the home because his mother's refusal to sign the consent to search form, which had been admitted into evidence at the suppression hearing, established that she had refused to consent to the search. Id., at 52-53, 901 A.2d 1. In declining to review the defendant's Golding claim, the court found that the record lacked a critical factual finding by the trial court regarding consent to search because the refusal to sign a consent to search form is not necessarily the equivalent to refusing consent to search. Id., at 56, 901 A.2d 1. Our Supreme Court concluded that permitting Golding review of this unpreserved claim would be unfair to the state because the state was never put on notice that it was required to establish that the mother had consented to the search. Id., at 59, 901 A.2d 1. Because the state was not granted the opportunity to present evidence that the mother consented to the search and the trial court did not make a finding as to whether she did so, our Supreme Court held that, pursuant to the first prong of Golding, the record was inadequate to review the defendant's unpreserved claim. In the present case, because the defendant failed to raise this claim at trial, the record is silent with respect to two factual predicates necessary to establish his claim on appeal, namely, that Brenes testified falsely and the state knew or should have known that Brenes testified falsely. The defendant never sought any determination from the trial court that Brenes testified falsely and the state knew or should have known about it. Additionally, because the defendant did not pursue a Brady claim at trial, the state never was put on notice that it was required to present evidence regarding whether Brenes testified falsely and, if he did, whether the state knew his testimony was false. See State v. Polanco, 165 Conn.App. 563, 575-76, 140 A.3d 230 (2016) (holding record inadequate for review under first prong of Golding if state not put on notice of claim made on appeal, and, thus, not given opportunity to put on evidence regarding claim because record did not contain adequate facts and state prejudiced by lack of notice). The defendant, nonetheless, contends that the record contains evidence-the excluded exhibits concerning Brenes' post office box-that supports his assertion, and he merely asks this court to draw a reasonable inference from that evidence. In essence, the defendant is asking this court to supplant the role of the jury or the trial court and find facts by weighing evidence and drawing inferences therefrom. "We, as a reviewing court, [however] cannot find facts, nor, in the first instance, draw conclusions of facts from primary facts found...." (Internal quotation marks omitted.) State v. Kelly, 95 Conn.App. 31, 37, 895 A.2d 801 (2006). Because it is the function of the trial court, not this court, to make factual findings; see State v. Satchwell, supra, 244 Conn. at 562, 710 A.2d 1348 ; the defendant was required to seek a determination from the trial court of his fact-based claim that the state failed to correct testimony that it knew to be false. Because the defendant never did so, the record contains no findings to support his assertion. Because such findings are required to establish the defendant's Brady violation claim, we conclude that the defendant's claim fails under the first prong of Golding, and, thus, we decline to review it. III The defendant's final claim on appeal is that because the evidence was insufficient to support his conviction of forgery in the second degree in violation of § 53a-139 (a)(3) and larceny in the third degree in violation of § 53a-124 (a)(2), the court improperly denied his motion for a judgment of acquittal. Concerning his conviction of forgery in the second degree, the defendant contends that there was insufficient evidence to establish that he intended to deceive Brenes and that he altered a state issued identification card. Concerning his conviction of larceny in the third degree, the defendant contends that there was insufficient evidence in the record to establish that a theft had occurred. We are not persuaded. "It is well settled that a defendant who asserts an insufficiency of the evidence claim bears an arduous burden.... [F]or the purposes of sufficiency review . we review the sufficiency of the evidence as the case was tried.... [A] claim of insufficiency of the evidence must be tested by reviewing no less than, and no more than, the evidence introduced at trial.... 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.... "[T]he 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.... "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 [jury] is not required to accept as dispositive those inferences that are consistent with the defendant's innocence.... The [jury] may draw whatever inferences from the evidence or facts established by the evidence [that] it deems to be reasonable and logical.... "[O]n 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 jury's verdict of guilty." (Citations omitted; internal quotation marks omitted.) State v. VanDeusen, 160 Conn.App. 815, 822-23, 126 A.3d 604, cert. denied, 320 Conn. 903, 127 A.3d 187 (2015). In viewing the evidence, "[i]f [inadmissible] evidence is received without objection, it becomes part of the evidence in the case, and is usable as proof to the extent of the rational persuasive power it may have. The fact that it was inadmissible does not prevent its use as proof so far as it has probative value.... [T]herefore . appellate review of the sufficiency of the evidence . properly includes hearsay evidence even if such evidence was admitted despite a purportedly valid objection. Claims of evidentiary insufficiency in criminal cases are always addressed independently of claims of evidentiary error." (Internal quotation marks omitted.) State v. Eubanks, 133 Conn.App. 105, 113-14, 33 A.3d 876, cert. denied, 304 Conn. 902, 37 A.3d 745 (2012). A The defendant claims that there was insufficient evidence to establish all the elements of forgery in the second degree in violation of § 53a-139 (a)(3), specifically, that he intended to deceive Brenes and that he altered an identification card. The state responds that the defendant relies upon evidence not admitted at trial to support his argument that he did not have the requisite intent, and that the evidence admitted at trial supports the jury's finding of intent and that he altered an identification card. We agree with the state. The following additional facts and procedural history are relevant to resolve this claim. At the time that Brenes interviewed the defendant for the open sales associate position at National Credit Masters, the defendant provided Brenes with an identification card bearing the name "Keith David." Brenes made a photocopy of the identification card (photocopy) and then returned it to the defendant. At trial, Brenes testified that prior to interviewing the defendant, he did not know the defendant's last name and that after the interview, he believed the defendant's last name to be "David." Brenes further testified that he did not alter the identification card or the photocopy in any way. The state offered the photocopy into evidence. The photocopy was admitted as a full exhibit without objection by the defendant. The photocopy shows that the identification card was issued on April 17, 2002, and expired on July 17, 2006. Also admitted into evidence as a full exhibit without objection was a printout of an electronic record (electronic record) from the Department of Motor Vehicles (department) that establishes that the defendant was issued an identification card on April 17, 2002, and that it expired on July 17, 2006, but the name on the identification card was "Keith D Chemlen." Mary Graziosa-Norton, an analyst with the document integrity unit at the department, testified that the photocopy and the electronic record were comparable except for the last name. To convict the defendant of forgery in the second degree, the state had to prove beyond a reasonable doubt that: "with intent to defraud, deceive or injure another, he falsely [made], complete[d] or alter[ed] a written instrument . which is or purports to be, or which is calculated to become or represent if completed . (3) a written instrument officially issued or created by a public office, public servant or governmental instrumentality...." (Emphasis added.) General Statutes § 53a-139 (a). The defendant first argues that there is insufficient evidence to establish that he altered the identification card. Specifically, he contends that because the state offered only a photocopy of the allegedly altered identification card, rather than the actual identification card itself, the record lacks sufficient evidence to establish that he altered the identification card. He further contends that Brenes altered the photocopy. The state responds that because the defendant did not object to the admission of the photocopy, it was admitted into evidence as a full exhibit and could be used for the substantive purpose of establishing that the defendant altered the identification card. We agree with the state. As defined by General Statutes § 53a-137 (6), "[a] person 'falsely alters' a written instrument when (A) such person, without the authority of any person entitled to grant it, changes a written instrument, whether it be in complete or incomplete form, by means of erasure, obliteration, deletion, insertion of new matter or transposition of matter or in any other manner, so that such instrument in its thus altered form appears or purports to be in all respects an authentic creation of or fully authorized by its ostensible maker or drawer...." In determining the sufficiency of the evidence, we may consider no more and no less than the evidence admitted at trial. If "evidence is received without objection, it becomes part of the evidence in the case, and is usable as proof to the extent of the rational persuasive power it may have." (Internal quotation marks omitted.) State v. Eubanks, supra, 133 Conn.App. at 113, 33 A.3d 876. In the present case, the defendant did not object to the admission of the photocopy into evidence, nor did he object to the admission of the electronic record. Both documents were admitted without limitation and the jury weighed them as it deemed appropriate. The jury also reasonably may have credited Brenes' testimony that he did not alter the identification card or the photocopy. The weight to afford evidence is within the exclusive purview of the trier of fact, and we must defer to the jury's credibility assessment. See State v. Smith, supra, 46 Conn.App. at 296-97, 699 A.2d 250. On the basis of the testimony and evidence admitted into evidence at trial, the jury reasonably could have concluded that (1) the photocopy was a true and correct original of the identification card presented to Brenes by the defendant; (2) the identification card presented to Brenes had been altered because it had a different last name than the identification card issued by the department; and (3) the defendant had the identification card in his possession, thereby giving him the opportunity and motive to alter it. Thus, the jury further reasonably could have concluded that the defendant altered the identification card. The defendant next argues that the evidence in the record is insufficient to establish that he had the intent to defraud or deceive Brenes. Specifically, the defendant contends that Brenes knew his last name prior to interviewing him, and, thus, Brenes could not be deceived by the altered license. The state responds that no evidence was admitted at trial to support the defendant's contention, and, even if Brenes knew the defendant's last name when he interviewed him, Brenes' knowledge of that fact is immaterial to the defendant's intent. We agree with the state. "It is well settled . that the question of intent is purely a question of fact.... The state of mind of one accused of a crime is often the most significant and, at the same time, the most elusive element of the crime charged.... Because it is practically impossible to know what someone is thinking or intending at any given moment, absent an outright declaration of intent, a person's state of mind is usually proven by circumstantial evidence.... Intent may be and usually is inferred from conduct.... [W]hether such an inference should be drawn is properly a question for the jury to decide.... Intent may be inferred from circumstantial evidence such as the events leading to and immediately following the incident, and the jury may infer that the defendant intended the natural consequences of his actions." (Citation omitted; internal quotation marks omitted.) State v. Dickman, supra, 119 Conn.App. at 588, 989 A.2d 613. "It is important to note that the specific intent element of the forgery statute is satisfied by an intent to defraud as well as an intent to deceive. The ordinary meaning of the phrase 'to deceive' is 'to cause to believe the false.... Deceive indicates an inculcating of one so that he takes the false as true, the unreal as existent, the spurious as genuine.... In contrast, 'to defraud' means 'to take or withhold from (one) some possession, right, or interest by calculated misstatement or perversion of truth, trickery, or other deception.' " (Citations omitted.) State v. Yurch, 37 Conn.App. 72, 80-81, 654 A.2d 1246, appeal dismissed, 235 Conn. 469, 667 A.2d 797 (1995). The defendant's argument fails for two reasons. First, § 53a-139, like General Statutes § 53a-140, does not address the state of mind of the victim of forgery in the second degree. In other words, whether the victim was in fact deceived is not an element of the offense. State v. Dickman, supra, 119 Conn.App. at 589, 989 A.2d 613. "The statute sets forth the elements of the crime, including the intent of the accused. Whether an accused, in this case the defendant, was successful in an attempt to deceive is not the issue." Id. Thus, whether Brenes knew the defendant's last name is immaterial to the defendant's intent. The defendant argues that the jury reasonably could have inferred that because Brenes knew his last name at the time that Brenes hired him, the defendant could not have intended to deceive Brenes. The jury, however, reasonably could have inferred from the evidence in the record that the defendant would not have presented Brenes with an altered identification card if he thought that Brenes knew his last name. The jury reasonably could have inferred that because the defendant provided Brenes with an altered identification card with a fake last name, he intended to deceive Brenes. Second, the evidence that the defendant relies upon to establish that he did not intend to deceive Brenes-the exhibits concerning Brenes' post office box-were not admitted into evidence. In evaluating a sufficiency of the evidence claim, we can review no more and no less evidence than that which was admitted at trial. See State v. VanDeusen, supra, 160 Conn.App. at 822, 126 A.3d 604. Other than the excluded exhibits concerning Brenes' post office box, the defendant refers us to no evidence that was admitted at trial that may establish that he did not intend to deceive Brenes because he believed that Brenes knew his last name at the time he interviewed him. Accordingly, the jury reasonably concluded that the defendant intended to deceive Brenes. In sum, the evidence in the record is sufficient to support the jury's reasonable conclusion that the defendant altered the identification card and intended to deceive Brenes. Accordingly, we conclude that, viewing the evidence in the light most favorable to sustaining the verdict, the jury reasonably concluded that the cumulative force of the evidence established the defendant's guilt of forgery in the second degree in violation of § 53a-139 (a)(3) beyond a reasonable doubt. B The defendant next claims that the evidence was insufficient to establish all the elements of larceny in the third degree in violation of § 53a-124 (a)(2). Specifically, he argues that there is no evidence to support the jury's finding that he stole money from Damien Dawes, Edwin Garcia, or David Brown. He contends that both Dawes and Edwin Garcia paid a fee to National Credit Masters and that their credit was fixed by National Credit Masters. As for Brown, the defendant contends that Brown paid the fee to National Credit Masters, and subsequently requested that his money be returned prior to the defendant's having an opportunity to work on the case. Although not explicitly stated, the defendant's argument on appeal encompasses the argument that he made at trial in support of his motion for a judgment of acquittal. At trial, he argued that because he was an employee of National Credit Masters at the time that he accepted the money from the clients, the money that he allegedly stole was the property of National Credit Masters, not the clients, and, thus, he did not steal from Dawes, Edwin Garcia, or Brown. The jury reasonably could have found the following additional facts. Dawes paid the defendant $220 in cash in exchange for the defendant's promise to remove negative information on his wife's credit report in order for Dawes and his wife to qualify for a mortgage to buy a house. The defendant had told Dawes that it could take sixty to ninety days to repair his wife's credit score. After sixty days, Dawes contacted the defendant and was told that his wife's credit had been repaired. Dawes and his wife proceeded to apply for a mortgage but did not qualify because nothing had been done to fix his wife's credit score and it remained too low to qualify. Because Dawes and his wife were not able to get a mortgage in time, they could not close on the property that they had contracted to purchase. Dawes met with Brenes to discuss the defendant's actions, and Brenes offered to repair his wife's credit free of charge. Brenes did not receive the $220 fee that Dawes paid to the defendant. The defendant had told Brown that he would repair Brown's credit and would negotiate settlements on specific debts in exchange for a fee of $375. Brown paid the defendant the $375 fee through PayPal to an account for Sky Agency, which was associated with an e-mail address of [email protected]. The defendant informed Brown that it could be a couple of weeks to a couple of months before he would see results. The defendant later told Brown that he had reduced through negotiations a debt that Brown owed to Bolton Veterinary Clinic from $575 to $82, and instructed Brown to pay the defendant the $82 through PayPal to the Sky Agency account in order that the defendant could pay Bolton Veterinary Clinic. Brown paid the defendant $82 through PayPal. The defendant similarly told Brown that he had settled a debt owed to AT & T for $37, and instructed Brown to send him the money through PayPal, which Brown did. Brown subsequently received a telephone call from Brenes, notifying him that the defendant had accepted money from clients without doing the work or turning over the payments to National Credit Masters. After this telephone call concluded, Brown called the defendant, but there was no answer. Brown then contacted Bolton Veterinary Clinic, which informed him that his debt never had been settled, nor paid. Brown proceeded to obtain a copy of his credit report and discovered that none of his debts had been removed. Brown contacted PayPal and requested, and received, a refund of all the funds that he had paid to the defendant. Brenes did not receive the funds that Brown paid to the defendant. Edwin Garcia paid the defendant $275 in cash in exchange for the defendant to repair his credit, particularly to dispute three negative instances listed on his credit report. After paying the defendant, Edwin Garcia waited for an update from the defendant. When Edwin Garcia did not hear from the defendant, he left voice-mail messages for him. Edwin Garcia obtained a copy of his credit report and discovered that his credit had not been repaired. Edwin Garcia then contacted Brenes. Brenes had not received the $275 fee that Edwin Garcia paid to the defendant but offered to repair Edwin Garcia's credit without charge. "A person is guilty of larceny in the third degree when he commits larceny, as defined in section 53a-119, and . (2) the value of the property or service exceeds two thousand dollars...." General Statutes § 53a-124 (a). 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...." Larceny includes, but is not limited to, obtaining property by false promises. "A person obtains property by false promise when, pursuant to a scheme to defraud, he obtains property of another by means of a representation, express or implied, that he or a third person will in the future engage in particular conduct, and when he does not intend to engage in such conduct or does not believe that the third person intends to engage in such conduct. In any prosecution for larceny based upon a false promise, the defendant's intention or belief that the promise would not be performed may not be established by or inferred from the fact alone that such promise was not performed." General Statutes § 53a-119 (3). "Our courts have interpreted the essential elements of larceny as (1) the wrongful taking or carrying away of the personal property of another; (2) the existence of a felonious intent in the taker to deprive the owner of [the property] permanently; and (3) the lack of consent of the owner." (Internal quotation marks omitted.) State v. Friend, 159 Conn.App. 285, 294, 122 A.3d 740, cert. denied, 319 Conn. 954, 125 A.3d 533 (2015). "An 'owner' means any person who has a right to possession superior to that of a taker, obtainer or withholder." General Statutes § 53a-118 (a)(5). The defendant does not dispute whether he had the requisite intent to deprive an owner of property. Instead, he disputes only whether a theft in fact occurred because, according to his claim, the alleged victims received in kind services in exchange for their payment of funds. Specifically, he contends that in all three instances, a fee was paid to National Credit Masters and that National Credit Masters repaired each client's credit report. Concerning Dawes and Edwin Garcia, he contends that they paid National Credit Masters a fee to fix their credit scores and National Credit Masters fixed their credit scores, and, thus, no theft occurred. Concerning Brown, he contends that Brown paid National Credit Masters a fee to fix his credit score but because he was not willing to wait a few months for the defendant to do the work, he requested and received a refund of this fee, and, thus, no theft occurred. The evidence in the record supports the jury's finding that the defendant engaged in a scheme to defraud clients by promising, although never intending to do so, that he would repair their credit scores and settle debts in exchange for a fee. From the evidence in the record, the jury reasonably could have found that the defendant lied to Dawes, Edwin Garcia, and Brown about repairing their credit scores for the purpose of wrongfully taking funds from them. The jury further reasonably could have found that the defendant did not give these funds over to National Credit Masters, but kept these funds for himself, and, thus, intended to deprive Dawes, Edwin Garcia, and Brown of their funds permanently without their consent. Although Dawes, Edwin Garcia, and Brown paid the fees to the defendant with the expectation that the fees would be paid to National Credit Masters, the defendant's employer did not receive these fees. To find that the defendant did not steal their money because Brenes offered to repair their credit without charge would reward the defendant for Brenes' attempts to right the wrong that the defendant caused. Additionally, the refund that Brown received from PayPal does not negate the fact that the defendant stole money from him. If we accepted the defendant's logic, any time a defendant committed credit card fraud and the victim received a refund from his or her bank, the defendant would be alleviated of criminal responsibility. To the extent that the defendant's argument also implicitly includes the argument that he made at trial in support for his motion for a judgment of acquittal-that the owner of the stolen funds was National Credit Masters and not the clients-we similarly are not persuaded. According to the defendant, once the clients handed the money over to the defendant, National Credit Masters owned it and, thus, the defendant stole from his employer, not Dawes, Edwin Garcia, and Brown. This logic, however, would allow the defendant to benefit from his false promises and lies. The state must establish only that the defendant wrongfully caused the transfer of the property from the owner to the defendant. See State v. Friend, supra, 159 Conn.App. at 294, 122 A.3d 740. In this case, the defendant did this by falsely representing to Dawes, Edwin Garcia, and Brown that he would fix their credit scores in exchange for certain fees. The defendant conducted his scheme out of his employer's office, adding apparent legitimacy to it. Using his employer, however, as a means to deceive people to pay money does not lessen the fact that he stole money from Dawes, Edwin Garcia, and Brown. Although National Credit Masters has been victimized as well by the defendant's actions, it was Dawes, Edwin Garcia, and Brown from whom the defendant stole money. In sum, after reviewing the record before us, the jury reasonably found that the defendant wrongfully took property from Dawes, Edwin Garcia, and Brown without their consent. Accordingly, in viewing the evidence in the light most favorable to sustaining the verdict, we conclude that the jury reasonably concluded that the cumulative force of the evidence established the defendant's guilt of larceny in the third degree in violation of § 53a-124 (a)(2) beyond a reasonable doubt. The judgment is affirmed. In this opinion the other judges concurred. General Statutes § 53a-139 (a) provides in relevant part: "A person is guilty of forgery in the second degree when, with intent to defraud, deceive or injure another, he falsely makes, completes or alters a written instrument or issues or possesses any written instrument which he knows to be forged, which is or purports to be, or which is calculated to become or represent if completed . (3) a written instrument officially issued or created by a public office, public servant or governmental instrumentality...." (Emphasis added.) General Statutes § 53a-124 (a) provides in relevant part: "A person is guilty of larceny in the third degree when he commits larceny, as defined in section 53a-119, and . (2) the value of the property or service exceeds two thousand dollars...." General Statutes § 53a-119 provides in relevant part: "A person commits larceny when, with intent to deprive another of property or to appropriate the same to himself or a third person, he wrongfully takes, obtains or withholds such property from an owner...." On the basis of double jeopardy, the court vacated the verdict on the second count of forgery in the second degree, which alleged that the defendant possessed a state issued identification card that he knew to be forged. The trial court stated that it was confused by the presentation of the exhibits. Defense exhibit G, which is identical to defense exhibit B, is a single page document that has two different post office box applications on it. Each application is approximately one-half page in length. Because the two applications have different dates and are separate applications, the court had the document divided so each application was its own exhibit. The January 29, 2008 application became defense exhibit J, and the February 13, 2009 application became defense exhibit K. We note that the defendant's appellate brief does not address specifically which exhibits were excluded improperly, but rather he contends more generally that he was prevented from impeaching Brenes. Although the defendant's brief is unclear, we assume that this claim is directed at each of the exhibits that the defendant offered concerning Brenes' post office box, and address each in turn. Section 6-10 of the Connecticut Code of Evidence provides in relevant part: "(a) Prior inconsistent statements generally. The credibility of a witness may be impeached by evidence of a prior inconsistent statement made by the witness.... "(c) Extrinsic evidence of prior inconsistent statement of witness. If a prior inconsistent statement made by a witness is shown to or if the contents of the statement are disclosed to the witness at the time the witness testifies, and if the witness admits to making the statement, extrinsic evidence of the statement is inadmissible, except in the discretion of the court. If a prior inconsistent statement made by a witness is not shown to or if the contents of the statement are not disclosed to the witness at the time the witness testifies, extrinsic evidence of the statement is inadmissible, except in the discretion of the court." The court apparently found that the exhibits related to a noncollateral matter because if it had concluded that the exhibits related to a collateral matter, it would have likely excluded them on that basis. State v. Diaz, supra, 237 Conn. at 548, 679 A.2d 902. Section 4-1 of the Connecticut Code of Evidence provides: " 'Relevant evidence' means evidence having any tendency to make the existence of any fact that is material to the determination of the proceedings more probable or less probable than it would be without the evidence." Section 4-3 of the Connecticut Code of Evidence provides in relevant part: "Relevant evidence may be excluded if its probative value is outweighed by . confusion of the issues...." Section 9-1 of the Connecticut Code of Evidence provides in relevant part: "(a) Requirement of authentication. The requirement of authentication as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the offered evidence is what its proponent claims it to be...." "Under Golding review, as modified in In re Yasiel R., supra, 317 Conn. at 781, 120 A.3d 1188, 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. D'Amato, 163 Conn.App. 536, 543 n. 9, 137 A.3d 38, cert. denied, 321 Conn. 909, 136 A.3d 643 (2016). Although the court questioned the prosecutor about the possibility that he knew that Brenes testified falsely, this colloquy did not preserve the defendant's Brady claim on appeal. The defendant did not pursue the court's inquiry further, raise the issue of a potential Brady violation, or cite to any relevant legal authority concerning a Brady violation during trial. Furthermore, the issue was never raised postjudgment, and, therefore, the court never made a finding as to whether Brenes lied and whether the state knew his testimony was false. We note that if we required the state to offer into evidence the altered identification card in order to prove forgery in the second degree, we would reward defendants who destroy or hide evidence. The defendant does not challenge on appeal the sufficiency of the evidence in support of the jury's finding that he stole money from Michelle Garcia or Craig Kozloski. From the evidence presented at trial, the jury reasonably could have found that the defendant told Michelle Garcia that he had negotiated one of her debts with a creditor and that the debt would be removed from her credit report if she paid him $1141.50 in cash so that he could pay the creditor. Michelle Garcia gave the defendant $1142 in cash, which neither the creditor nor National Credit Masters received. Not only did the creditor never receive the money, but the defendant never negotiated the debt because the creditor removed the debt when it discovered that the social security number associated with the debt did not match Michelle Garcia's social security number. The jury also reasonably could have found that Kozloski paid the defendant $300 in cash to remove a bankruptcy and other negative information from his credit report. The defendant sent e-mails from a personal e-mail account to Kozloski with fake credit reports that stated that his credit score was improving. Once the defendant reported that all the negative information was removed from the credit report, Kozloski applied for a credit card and was denied because his credit score had remained the same, and the negative information and bankruptcy were listed still on his credit report. National Credit Masters did not receive the $300 that Kozloski paid to the defendant.

12485334

STATE of Connecticut v. William CASTILLO.

State v. Castillo

2016-05-24

No. 36435.

301

319

140 A.3d 301

140

West's Atlantic Reporter, Third Series

Connecticut Appellate Court

Connecticut

2021-08-27T20:57:13.996876+00:00

Fastcase

STATE of Connecticut v. William CASTILLO.

STATE of Connecticut v. William CASTILLO. No. 36435. Appellate Court of Connecticut. Argued March 8, 2016. Decided May 24, 2016. Richard Emanuel, New Haven, for the appellant (defendant). Nancy L. Chupak, senior assistant state's attorney, with whom, on the brief, were David S. Shepack, state's attorney, and Terri L. Sonnemann, senior assistant state's attorney, for the appellee (state). KELLER, PRESCOTT and HARPER, Js.

8415

52044

PRESCOTT, J. The defendant, William Castillo, appeals from the judgment of conviction, rendered after a jury trial, of attempt to commit robbery in the first degree in violation of General Statutes § 53a-49 and 53a-134 (a)(3), and attempt to commit robbery in the second degree in violation of General Statutes § 53a-49 and 53a-135 (a)(1)(A). The defendant, who was nearly seventeen years old at the time of his arrest and eventually was tried as an adult, claims on appeal that the trial court improperly denied his motion to suppress statements that he made to the police, including a written confession, because they were obtained in violation of his constitutional and statutory rights. In particular, the defendant contends that (1) the police subjected him to custodial interrogation without the benefit of adequate Miranda warnings because the juvenile Miranda waiver form administered to him prior to his questioning failed to advise him that any statements that he made could be used against him not only in any juvenile proceeding but in an adult criminal prosecution; (2) any statements that he gave to the police were involuntary and, thus, their admission at trial violated his right to due process; (3) his statements were inadmissible at trial pursuant to General Statutes § 46b-137 (c) ; and (4) even if the defendant's statements were lawfully obtained, this court should exercise its inherent supervisory authority to adopt a rule setting new standards governing "the admissibility of statements and confessions obtained through the interrogation of juveniles." We conclude that the trial court properly found that defendant was not "in custody" at the time he gave the statements at issue and, therefore, we need not address whether he was properly informed of his Miranda rights or consider the validity of his waiver of those rights. We further conclude that the trial court correctly determined that the defendant's statements were voluntary and not obtained in violation of his right to due process, nor were they admitted at trial in violation of § 46b-137, which is inapplicable in this context. Finally, because we conclude that the statements given by the defendant in the present case were not made during custodial interrogation, we decline to decide whether we should require, pursuant to our supervisory authority, that law enforcement provide juveniles who are subjected to custodial interrogation additional Miranda related warnings. In sum, we affirm the judgment of the trial court. The following facts, which reasonably could have been found by the jury on the basis of the evidence admitted at trial or were found by the court in deciding the motion to suppress, and procedural history are relevant to our review of the defendant's claims. On March 23, 2012, the defendant was a student at Torrington High School, and was less than one month from his seventeenth birthday. At about 8:30 p.m. on that date, he and several other teenagers left a high school dodgeball game together in a Jeep Grand Cherokee. The defendant and his friends spotted a group of middle school students leaving a minimart on foot, and they decided to "jump" the younger boys and steal their money. The older group of teenagers followed the three middle school students, eventually stopping the Jeep in front of them. After exiting the Jeep, the defendant and his friend assaulted the younger boys in an attempt to rob them. The defendant grabbed one of the boys, Liam, and pushed him into a nearby parked vehicle. He held a screwdriver to Liam's abdomen and demanded his money. When the defendant and his friends discovered that the younger boys had no money, they fled in the Jeep. Several neighbors witnessed all or part of the incident and gave statements to the police, who had responded to a report of an assault. Those statements included a description of the Jeep that the defendant and his friends were using and a partial license plate number. The police also later interviewed the victims, who, although unable to identify their attackers because they had disguised themselves by partially concealing their faces with their T-shirts, gave partial descriptions. At about the time of the incident in question, other police officers spotted a Jeep traveling at a high rate of speed in the vicinity. They followed the vehicle into an apartment complex at which time they initiated a stop, eventually identifying the passengers, including the defendant. Although the police were aware of the recent assault, they did not believe that they had enough evidence to arrest or otherwise detain the occupants of the Jeep. A week or so following the incident, the police received information that led them to believe that the occupants of the Jeep that they had stopped at the apartment complex were the same group that had attempted to rob the middle school boys. Police detectives interviewed each of the occupants that they had previously identified during the traffic stop. Detective Todd Fador, the lead investigator, first went to the defendant's apartment at 330 Highland Avenue on April 10, 2012, for the purpose of conducting an interview with the defendant; however, he found the defendant alone at that time. Because of the defendant's age, Fador would not conduct an interview without a parent present. Fador told the defendant that he would return another time and left a business card, which the defendant gave to his mother, Yocasta Monegro, thereby alerting her that the police had stopped by her home. Fador returned to the defendant's home on April 13, 2012, at approximately 5 p.m. Monegro, Monegro's boyfriend, two younger children, and the defendant were home at that time. Fador was accompanied by another detective, Keith Dablaine, and Officer Angel Rios. Fador had brought Rios along because Rios was fluent in Spanish, and, at their initial meeting on April 10, 2012, the defendant had told Fador that Monegro did not speak English. Fador and Dablaine carried sidearms and wore plain clothes with badges around their necks. Rios was dressed in a police uniform and also wore a sidearm. Monegro answered the door, at which point Rios explained to her, in Spanish, that the purpose of their visit was to speak with the defendant, who had been identified as a suspect. The interview of the defendant was conducted in the living room. The room had a sofa, a love seat, and a chair. In addition to the main entrance to the room, it had two other doors. The defendant was not immediately present when the police arrived, but Monegro indicated that she would get him. When the defendant entered the room, Fador advised the defendant and Monegro of their juvenile and parental rights, respectively. Rios translated Fador's advisement into Spanish. The defendant was presented with a juvenile waiver form that advised him of his rights, including his right to remain silent, to consult with an attorney, and to stop answering questions at any time. The defendant initialed six separate paragraphs on the form and signed the form. Monegro was given a parental consent form that contained a similar advisement of rights in English, which Rios translated for her prior to her initialing and signing the form. The defendant was calm throughout this procedure. As the trial court stated in its memorandum of decision denying the motion to suppress, after the waiver forms were signed, Fador "verbally advised the defendant that he was free to ask the officers to leave, that he was free to stop speaking to the officers, and that he did not have to speak to the officers at all.... [T]he defendant did not ask any questions about his rights, he did not appear to be confused, and he said that he understood his rights. "The defendant agreed to give a statement, asking Fador to write it out. [Fador] did so, stopping every few sentences to give [Rios] an opportunity to translate the defendant's statements to [Monegro]. The defendant was cooperative and did not appear to be worried, although it was apparent that [Monegro] was growing increasingly upset as her son progressed with his statement.... After the defendant finished making his statement, he reviewed what [Fador] had written and then signed the statement.... The entire visit took between forty-five minutes and one hour. At no time did anyone ask the officers to stop questioning the defendant or to leave the home.... "[N]one of the officers advised the defendant that his involvement in the robbery could ultimately lead to his deportation.... [W]hen [Monegro] asked about the risk of deportation, [Rios] replied that such an action is not within his jurisdiction but is, rather, an issue for the Bureau of Immigration and Customs Enforcement." (Citation omitted.) Although the defendant confessed, first orally and then in writing, to having participated in the events of March 23, 2012, and having attempted to steal money from one of the middle school students, he denied having used any weapon. The defendant was not arrested at that time, and the detectives and Rios left the apartment. Approximately one month later, on May 10, 2012, the defendant was arrested pursuant to a juvenile arrest warrant, charging him with the following delinquent acts: first degree robbery in violation of § 53a-134 ; risk of injury to a child in violation of General Statutes § 53-21 ; attempted larceny in the sixth degree in violation of General Statutes § 53a-49 and 53a-125b ; conspiracy to commit robbery in the first degree in violation of General Statutes § 53a-48 and 53a-134 ; assault in the third degree in violation of General Statutes § 53a-61 ; and carrying a dangerous weapon in violation of General Statutes § 53-206(a). He first appeared in Superior Court for juvenile matters on May 11, 2012. Because he was charged with committing a class B felony (first degree robbery), the case was then automatically transferred to the regular criminal docket pursuant to General Statutes § 46b-127 (a) and then to the part A docket in the Litchfield courthouse. The defendant subsequently entered pro forma pleas of not guilty to a five count information that included all the charges underlying the juvenile arrest warrant except for the charge of carrying a dangerous weapon. Just prior to jury selection, on August 26, 2013, the state filed a long form information charging the defendant in two counts with first degree robbery and second degree robbery. The defendant entered pleas of not guilty on both counts. On August 30, 2013, the defendant filed a motion to suppress his April 13, 2012 oral and written statements to the police, arguing that any waiver of his Miranda rights was not knowingly, intelligently, or voluntarily given and, even if the police satisfied Miranda, his statements were obtained involuntarily in violation of his due process rights under the state and federal constitutions. The state filed an opposition arguing that Miranda warnings were not necessary in the present case because the defendant was not "in custody" when the challenged statements were made and there simply was no evidence of any police coercion or other police activity necessary to support the defendant's due process claim. The court, Danaher, J., conducted a hearing on the motion to suppress at which time the court heard testimony from Fador, Rios, and Monegro. Following the hearing, on September 24, 2013, the court issued a written memorandum of decision agreeing with the arguments of the state and denying the motion to suppress. Prior to trial, on September 30, 2013, the state filed a substitute long form information, amending the charges against the defendant to one count of attempt to commit first degree robbery in violation of § 53a-49 and 53a-134 (a)(3), and one count of attempt to commit second degree robbery in violation of § 53a-49 and 53a-135 (a)(1)(A). The defendant pleaded not guilty to those charges, and the case proceeded to trial, following which the jury found the defendant guilty on both counts. The court sentenced the defendant to a total effective term of five years imprisonment, suspended after eighteen months, with five years of probation. This appeal followed. The sole claim raised on appeal is that the court improperly denied the defendant's motion to suppress his statements to the police. The defendant makes several arguments in support of his claim, each of which we will discuss in turn. "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.... [If] 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.... We undertake a more probing factual review when a constitutional question hangs in the balance." (Citation omitted; internal quotation marks omitted.) State v. Burroughs, 288 Conn. 836, 843, 955 A.2d 43 (2008). I We begin with the defendant's argument that he was entitled to suppression of his oral statements and written confession because they were the product of a custodial interrogation conducted without the benefit of proper Miranda warnings. According to the defendant, although he signed a form purporting to waive his Miranda rights prior to the police questioning him, that particular waiver form was intended for use in juvenile matters and was ineffective as a waiver of the defendant's rights in this case because it did not inform him that statements he made could be used against him not only in any subsequent juvenile proceeding but also in proceedings to convict him as an adult offender. Because we conclude that the defendant was not "in custody" when he gave his statements, and, therefore, not subjected to custodial interrogation by the police, Miranda warnings were not constitutionally required at that time, nor was it necessary for the police to obtain a valid waiver prior to questioning the defendant. Accordingly, we reject this aspect of the defendant's claim. Our Supreme Court has set forth the following principles regarding the requirement of Miranda warnings, which help guide our analysis of the defendant's argument. "Although [a]ny [police] interview of [an individual] suspected of a crime . [has] coercive aspects to it . only an interrogation that occurs when a suspect is in custody heightens the risk that statements obtained therefrom are not the product of the suspect's free choice.... This is so because the coercion inherent in custodial interrogation blurs the line between voluntary and involuntary statements.... Thus, the court in Miranda was concerned with protecting defendants against interrogations that take place in a police-dominated atmosphere, containing inherently compelling pressures [that] work to undermine the individual's will to resist and to compel him to speak [when] he would not otherwise do so freely.... By adequately and effectively appris[ing] [a suspect] of his rights and reassuring the suspect that the exercise of those rights must be fully honored, the Miranda warnings combat [the] pressures inherent in custodial interrogations.... In so doing, they enhance the trustworthiness of any statements that may be elicited during an interrogation.... Consequently, police officers are not required to administer Miranda warnings to everyone whom they question . rather, they must provide such warnings only to persons who are subject to custodial interrogation . To establish entitlement to Miranda warnings, therefore, the defendant must satisfy two conditions, namely, that (1) he was in custody when the statements were made, and (2) the statements were obtained in response to police questioning." (Citations omitted; emphasis added; footnote omitted; internal quotation marks omitted.) State v. Mangual, 311 Conn. 182, 191-92, 85 A.3d 627 (2014). In the present case, there is no dispute that the statements that the defendant sought to suppress were given in response to his questioning by the police. What is disputed is whether the defendant was "in custody" for purposes of Miranda when that questioning occurred. "As used in . Miranda [and its progeny], custody is a term of art that specifies circumstances that are thought generally to present a serious danger of coercion.... In determining whether a person is in custody in this sense . the United States Supreme Court has adopted an objective, reasonable person test . the initial step [of which] is to ascertain whether, in light of the objective circumstances of the interrogation . a reasonable person [would] have felt [that] he or she was not at liberty to terminate the interrogation and [to] leave.... Determining whether an individual's freedom of movement [has been] curtailed, however, is simply the first step in the analysis, not the last. Not all restraints on freedom of movement amount to custody for purposes of Miranda. [Accordingly, the United States Supreme Court has] decline[d] to accord talismanic power to the freedom-of-movement inquiry . and [has] instead asked the additional question [of] whether the relevant environment presents the same inherently coercive pressures as the type of station house questioning at issue in Miranda . "Of course, the clearest example of custody for purposes of Miranda occurs when a suspect has been formally arrested. As Miranda makes clear, however, custodial interrogation includes questioning initiated by law enforcement officers after a suspect has been arrested or otherwise deprived of his freedom of action in any significant way . Thus, not all restrictions on a suspect's freedom of action rise to the level of custody for Miranda purposes.... [T]he ultimate inquiry is whether a reasonable person in the defendant's position would believe that there was a restraint on [his or her] freedom of movement of the degree associated with a formal arrest.... Any lesser restriction on a person's freedom of action is not significant enough to implicate the core fifth amendment concerns that Miranda sought to address." (Citations omitted; emphasis altered; footnote omitted; internal quotation marks omitted.) Id., at 193-95, 85 A.3d 627. Among the factors that a court may consider in determining whether a suspect was "in custody" for purposes of Miranda, are the following: "(1) the nature, extent and duration of the questioning; (2) whether the suspect was handcuffed or otherwise physically restrained; (3) whether officers explained that the suspect was free to leave or not under arrest; (4) who initiated the encounter; (5) the location of the interview; (6) the length of the detention; (7) the number of officers in the immediate vicinity of the questioning; (8) whether the officers were armed; (9) whether the officers displayed their weapons or used force of any other kind before or during questioning; and (10) the degree to which the suspect was isolated from friends, family and the public." Id., at 197, 85 A.3d 627. In reviewing a trial court's determination of whether a person was "in custody" for Miranda purposes, we employ the following standard of review. "The trial court's determination of the historical circumstances surrounding the defendant's interrogation [entails] findings of fact . which will not be overturned unless they are clearly erroneous.... In order to determine the [factual] issue of custody, however, we will conduct a scrupulous examination of the record . in order to ascertain whether, in light of the totality of the circumstances, the trial court's finding is supported by substantial evidence.... The ultimate inquiry as to whether, in light of these factual circumstances, a reasonable person in the defendant's position would believe that he or she was in police custody of the degree associated with a formal arrest . calls for application of the controlling legal standard to the historical facts [and] . therefore, presents a . question of law . over which our review is de novo.... In other words, we are bound to accept the factual findings of the trial court unless they are clearly erroneous, but we exercise plenary review over the ultimate issue of custody." (Citation omitted; internal quotation marks omitted.) Id. "The defendant bears the burden of proving custodial interrogation." State v. Pinder, 250 Conn. 385, 409, 736 A.2d 857 (1999). Having scrupulously examined the record, we conclude, in agreement with the trial court and the state, that no reasonable person in the defendant's position would have believed that he was "in custody" for purposes of Miranda. The circumstances surrounding the defendant's interview simply do not support a claim that he was in custody prior to the time that he signed the juvenile waiver form and gave his statement and written confession. Significantly, the defendant was not questioned at a police station or other unfamiliar and inherently coercive location, but in the relative comfort and familiarity of his own home, with family present. As recognized by our Supreme Court, "an encounter with police is generally less likely to be custodial when it occurs in a suspect's home." State v. Mangual, supra, 311 Conn. at 206, 85 A.3d 627, citing, e.g., Miranda v. Arizona, 384 U.S. 436, 449-50, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966) ("[the suspect] is more keenly aware of his rights and more reluctant to tell of his indiscretions or criminal behavior within the walls of his home" [internal quotation marks omitted] ). We are, of course, also aware that Mangual instructs that, given the right set of circumstances, a person's home may be transformed into the type of police dominated atmosphere that could undermine an individual's decision to remain silent. State v. Mangual, supra, at 199-202, 206-207, 85 A.3d 627. Such circumstances, however, simply were not present here. The defendant's efforts to equate this case with the type of environment that existed in the Mangual case are unpersuasive. In Mangual, the defendant was questioned in her apartment during the execution of a search warrant. Id., at 186-87, 85 A.3d 627. The Supreme Court concluded that the defendant was "in custody" when the police elicited statements from her during that search because the totality of the circumstances surrounding the execution of the warrant by the police had transformed the defendant's home into the type of police dominated atmosphere that necessitated that the police advise the defendant of her Miranda rights prior to questioning her. Id., at 190-212, 85 A.3d 627. In particular, the court noted the following factors as being key to its determination that the defendant was "in custody." First, the police had initiated the contact, and were not invited into the apartment by the defendant, but "entered under the authority of a search warrant, an inherently coercive and intimidating police action." Id., at 199, 85 A.3d 627. The court considered the action particularly intimidating given that seven armed officers in tactical vests participated in the execution of the warrant. Id., at 186, 199, 201, 85 A.3d 627. Second, the officers brandished their weapons when they announced themselves and entered the small, four room apartment, actions that the court deemed an occupant reasonably could have associated with the police effecting an arrest. Id., at 199-201, 85 A.3d 627. The court found significant that the "officers prohibited the defendant from leaving or otherwise moving about the apartment. In such circumstances, it was reasonable for the defendant to perceive such an imposing display of authority as a clear indication that the police intended to assume and maintain full control over her and her daughters." Id., at 200, 85 A.3d 627. The court considered the relatively large number of officers, "many, if not all" of whom were present in the living room when the defendant was questioned, to be a third factor supporting a finding of custody, citing several federal Circuit Courts of Appeal for the proposition that "the presence of a large number of visibly armed law enforcement officers goes along way [toward] making the suspect's home a police-dominated atmosphere." (Internal quotation marks omitted.) Id., at 201, 85 A.3d 627. Fourth, the police exercised "complete control over the defendant and her surroundings before, during and after" her questioning. Id. As soon as the officers entered the apartment, they ordered the defendant to go to the living room, where she was confined to the couch and placed under guard. The court noted that "[t]his exercise of total control over the defendant stands in stark contrast to the far more relaxed environment that is a hallmark of interrogations in a suspect's home that have been found to be noncustodial." Id., at 201-202, 85 A.3d 627. Finally, the court indicated that the police never explained to the defendant "the nature, purpose, or likely duration of her detention." Id., at 202, 85 A.3d 627. Turning to the present case, our consideration of the circumstances surrounding the defendant's questioning leaves us unconvinced of the existence of a police dominated atmosphere akin to that present in Mangual. Although the police initiated contact with the defendant and his family, the police did not enter the house on their own authority, such as pursuant to a search warrant, but were invited in by Monegro. The police informed Monegro of the purpose for their visit before she allowed them to enter. There were only three officers present, one of whom was acting as a translator. The detectives wore plain clothes, not tactical gear. Although the defendant was asked to come into the living room to speak with the police, he was never threatened with arrest or searched, he was never handcuffed, and the police took no other action, either verbal or physical, to intimidate the defendant or to restrict his movement or confine him to that particular room. The detectives and Rios each carried sidearms, but they were never brandished at any point, nor did any of the officers threaten the use of force on the defendant or his family. Both Fador and Rios informed Monegro that she could end the interview at any time, and the defendant was told more than once that his presence was voluntary, and that he was free to leave and did not have to answer their questions. He was told this orally before any questions were ever asked, and the same instructions were provided to him in writing as part of the waiver form, which he signed prior to giving his oral statement and written confession. Such instructions were not provided to the defendant in Mangual. Id., at 204-205, 85 A.3d 627 ; see State v. Edwards, 299 Conn. 419, 437, 11 A.3d 116 (2011), and cases cited therein ("a fact finder reasonably might find that a reasonable person would feel free to leave when that person was told repeatedly that he could do so" [internal quotation marks omitted] ). There is no evidence in the record that the defendant was overly nervous or intimidated during the encounter. In terms of whether a reasonable person would feel that his freedom of movement was restrained to the degree associated with a formal arrest and, therefore, that he was "in custody," the circumstances surrounding the defendant's interview in the present case appear no more coercive or intimidating an atmosphere than was present in other cases in which our Supreme Court determined that a suspect questioned in a residence prior to an arrest was not "in custody" and, thus, not entitled to Miranda rights. See, e.g., State v. Kirby, 280 Conn. 361, 369-70, 392-94, 396, 908 A.2d 506 (2006) (defendant not "in custody" for Miranda purposes although five police officers arrived at his home at 4:30 a.m. to question him about kidnapping and assault because defendant invited officers into home, defendant knew why police were there, encounter lasted less than fifteen minutes, officer's guns stayed holstered, and defendant not handcuffed until after he admitted to kidnapping); State v. Johnson, 241 Conn. 702, 714-22, 699 A.2d 57 (1997) (defendant not "in custody" although confronted by two detectives and uniformed police officer in driveway of father's house prior to consenting to be questioned in kitchen). The defendant contends that the court based its conclusion that he was not in custody in part on an erroneous factual finding, namely, that he was present at the home when the police first arrived. According to the defendant, the evidence shows that he was not at home and that he had to be summoned to return, either by Monegro or her boyfriend. The defendant argues that whether he was at home when the police arrived is significant to our consideration of whether he was "in custody" because his absence "demonstrates that the defendant was in a position to be questioned by the police only because they first exercised their authority to compel his presence." (Emphasis in original.) The defendant asserts that, absent probable cause to arrest him, the police lacked authority to compel his presence for questioning, and that they used Monegro to accomplish what they could not do themselves. Even if we were to agree, however, with the defendant's contention that a juvenile summoned by a parent or guardian to return home to speak with the police would, in some manner, feel more coerced to cooperate and, thus, less free to leave and stop the interview than a juvenile already present at home when police arrived, we do not determine that the court's finding that the defendant was at home when the police arrived is clearly erroneous on the basis of the record before us. It is the function of the trial court to weigh the evidence before it and to determine the credibility of witnesses. State v. Lawrence, 282 Conn. 141, 154-55, 920 A.2d 236 (2007). At the suppression hearing, Monegro testified that the defendant was at home with the rest of the family when the police arrived. The court was free to credit that testimony, which was never directly contradicted. At best, the record is unclear whether the defendant, who undisputedly was not present in the room when Monegro answered the front door, initially was in another part of the home or elsewhere when the police arrived. The defendant notes that Fador testified at the suppression hearing that when the police told Monegro that they needed the defendant present, she stated that she would "get him there," and that the defendant arrived shortly thereafter. He further notes Rios' testimony that he thought Monegro's boyfriend made a phone call to reach the defendant, who "responded back to the house." Neither statement, however, directly contradicts or is necessarily inconsistent with Monegro's testimony or the court's factual finding that the defendant was home, as neither is determinative of where the defendant was before he was asked, either verbally or by phone, to come to the living room to speak to the police. Because the court's factual finding is supported by evidence in the record, it was not clearly erroneous. We conclude that the defendant was not "in custody" at the time he provided his statements to the police and, therefore, was not entitled to Miranda warnings. Having so concluded, we do not address the remaining aspects of the defendant's argument, including whether the use by the police of the juvenile Miranda waiver form in a case eventually tried in adult court properly effectuated a valid waiver of the defendant's Miranda rights or whether some additional warning was constitutionally required. II We turn next to the defendant's argument that, regardless of whether he was in custody, the court should have granted his motion to suppress because his statements and confession were obtained in violation of his rights to due process under the state and federal constitutions because they were involuntarily made. We are not persuaded because there is no evidence in the record that the defendant's statements were obtained as a result of any coercive behavior or wrongful action by the police affecting the voluntariness of the defendant's statements. The principles governing our review of a trial court's ruling on the voluntariness of a defendant's oral or written statements are well established. "[T]he use of an involuntary confession in a criminal trial is a violation of due process.... The state has the burden of proving the voluntariness of the confession by a fair preponderance of the evidence.... [T]he test of voluntariness is whether an examination of all the circumstances discloses that the conduct of law enforcement officials was such as to overbear [the defendant's] will to resist and bring about confessions not freely self-determined.... The ultimate test remains . Is the confession the product of an essentially free and unconstrained choice by its maker? If it is, if he has willed to confess, it may be used against him. If it is not, if his will has been overborne and his capacity for self-determination critically impaired, the use of his confession offends due process.... The determination, by the trial court, whether a confession is voluntary must be grounded upon a consideration of the circumstances surrounding it.... "Factors that may be taken into account, upon a proper factual showing, include: the [age] of the accused; his lack of education; his intelligence; the lack of any advice as to his constitutional rights; the length of detention; the repeated and prolonged nature of the questioning; and the use of physical punishment, such as the deprivation of food and sleep." (Internal quotation marks omitted.) State v. Lawrence, supra, 282 Conn. at 153, 920 A.2d 236. "[W]e review the voluntariness of a confession independently, based on our own scrupulous examination of the record." State v. Pinder, supra, 250 Conn. at 420, 736 A.2d 857. As our Supreme Court clarified in Pinder, "applying the proper scope of review to the ultimate issue of voluntariness requires us, not to ascertain whether the trial court's finding is supported by substantial evidence, but to conduct a plenary review of the record in order to make an independent determination of voluntariness." Id., at 421, 736 A.2d 857. Here, the defendant's argument that his statements to the police were involuntary and, thus, violative of due process finds no support in the record. The defendant was nearly seventeen years old at the time he was questioned, and there is no indication that he was poorly educated or developmentally challenged. The defendant was informed of his constitutional rights. The defendant was not alone when questioned; his mother was present. The defendant was not subjected to a prolonged and repeated interrogation; the whole process lasted no more than one hour. Ordinarily, a court will deem a statement or confession involuntary only if there is some coercive police conduct that is causally related to it. See State v. Reynolds, 264 Conn. 1, 54, 836 A.2d 224 (2003), cert. denied, 541 U.S. 908, 124 S.Ct. 1614, 158 L.Ed.2d 254 (2004). As we indicated in rejecting the defendant's Miranda claim, the atmosphere in which the police questioned the defendant was not in and of itself overly coercive in nature. Furthermore, the defendant has not directed our attention to any evidence in the record of deceptive or intimidating police behavior different from that underlying his argument that the police engaged in custodial interrogation, nor has our review disclosed any. In rejecting the defendant's argument that he was "in custody" when he gave his statements, we necessarily determined that the circumstances of his questioning by police reasonably could not be viewed as presenting any serious danger of having overborne the defendant's will to resist, thereby resulting in an involuntary statement. On the basis of our scrupulous review of the record, we conclude that the defendant's rights to due process under the state and federal constitutions were not violated. III The defendant next argues that the court should have granted his motion to suppress because, even if his statements were not the fruit of a custodial interrogation, they nevertheless were inadmissible in accordance with the criteria set forth in § 46b-137 (c). The state responds that the argument is meritless because, by its plain language, § 46b-137 is applicable only to juvenile court proceedings, not to proceedings in adult court. We agree with the state that § 46b-137 is inapplicable in the present case, and, thus, the defendant's argument fails on its merits. "Issues of statutory construction raise questions of law, over which we exercise plenary review.... The process of statutory interpretation involves the determination of the meaning of the statutory language as applied to the facts of the case, including the question of whether the language does so apply. " (Emphasis added; internal quotation marks omitted.) State v. Fernando A., 294 Conn. 1, 13, 981 A.2d 427 (2009). Here, § 46b-137 contains clear language limiting its applicability to proceedings in juvenile court. Section 46b-137, which is tellingly titled, "Admissibility of admission, confession or statement in juvenile proceedings, " provides in relevant part: "(b) Any admission, confession or statement, written or oral, made by a child sixteen or seventeen years of age to a police officer or Juvenile Court official, except an admission, confession or statement, written or oral, made by a child sixteen or seventeen years of age to a police officer in connection with a case transferred to the Juvenile Court from the youthful offender docket, regular criminal docket of the Superior Court or any docket for the presentment of defendants in motor vehicle matters, shall be inadmissible in any proceeding concerning the alleged delinquency of the child making such admission, confession or statement, unless (1) the police or Juvenile Court official has made reasonable efforts to contact a parent or guardian of the child, and (2) such child has been advised that (A) the child has the right to contact a parent or guardian and to have a parent or guardian present during any interview, (B) the child has the right to retain counsel or, if unable to afford counsel, to have counsel appointed on behalf of the child, (C) the child has the right to refuse to make any statement, and (D) any statement the child makes may be introduced into evidence against the child. "(c) The admissibility of any admission, confession or statement, written or oral, made by a child sixteen or seventeen years of age to a police officer or Juvenile Court official, except an admission, confession or statement, written or oral, made by a child sixteen or seventeen years of age to a police officer in connection with a case transferred to the Juvenile Court from the youthful offender docket, regular criminal docket of the Superior Court or any docket for the presentment of defendants in motor vehicle matters, shall be determined by considering the totality of the circumstances at the time of the making of such admission, confession or statement. When determining the admissibility of such admission, confession or statement, the court shall consider (1) the age, experience, education, background and intelligence of the child, (2) the capacity of the child to understand the advice concerning rights and warnings required under subdivision (2) of subsection (b) of this section, the nature of the privilege against self-incrimination under the United States and Connecticut Constitutions, and the consequences of waiving such rights and privilege, (3) the opportunity the child had to speak with a parent, guardian or some other suitable individual prior to or while making such admission, confession or statement, and (4) the circumstances surrounding the making of the admission, confession or statement, including, but not limited to, (A) when and where the admission, confession or statement was made, (B) the reasonableness of proceeding, or the need to proceed, without a parent or guardian present, and (C) the reasonableness of efforts by the police or Juvenile Court official to attempt to contact a parent or guardian." (Emphasis added.) The defendant argues in his brief that subsection (c) of § 46b-137 has never been judicially construed and that it appears to enlarge the Miranda type protections afforded to sixteen and seventeen year old offenders, as set forth in subsection (b), by "directing trial courts to consider a child's capacity to understand [such] warnings . without any requirement that the child was 'in custody' when the statement was made." (Emphasis in original.) The defendant, however, fails to address adequately the applicability of the statute, and ignores its plain language. The subject matter of both subsections (b) and (c) of § 46b-137 is the admissibility of statements made by sixteen and seventeen year olds, and, thus, the two subsections must be construed together. By its very terms, subsection (b) makes clear that these provisions only apply to "proceedings . concerning the alleged delinquency of the child...." General Statutes § 46b-137 (b). The language in subsection (c) that exempts from operation any cases originating from the youthful offender docket or regular criminal court reinforces the notion that the statute only applies in juvenile proceedings. Here, the operative charges against the defendant did not include allegations of delinquency. Rather, the defendant was tried for attempted robbery in an adult court. Our conclusion that subsections (b) and (c) of § 46b-137 are inapplicable in the present case is wholly consistent with, and, thus, is supported by, our Supreme Court's holding and analysis in State v. Ledbetter, 263 Conn. 1, 818 A.2d 1 (2003). In Ledbetter, the court held that subsection (a) of § 46b-137, which refers to statements made by children under sixteen years old, and makes a child's confession inadmissible in a delinquency proceeding unless it was made in the presence of the child's parent or a guardian, does not apply if the state seeks to use that confession in an adult criminal proceeding rather than in juvenile court. Id., at 12-18, 818 A.2d 1 ; see also In Re Samantha C., 268 Conn. 614, 644, 847 A.2d 883 (2004) ("[s]ection 46b-137 . by its language and purpose was enacted to afford certain constitutional rights to parents and children in juvenile matters " [citations omitted; emphasis added] ). Despite the defendant's arguments to the contrary, § 46b-137 has no bearing on the admissibility of statements offered in adult proceedings. Accordingly, it could not have provided an independent basis for granting the defendant's motion to suppress. The defendant's argument is, accordingly, without merit. IV Finally, the defendant argues, as alternative relief, that we should exercise our inherent supervisory authority over the administration of justice to adopt a new rule governing the admissibility of statements obtained during the interrogation of juveniles. Specifically, the defendant advocates for a per se rule requiring that whenever police investigating a felony give Miranda warnings to a juvenile, those warnings must include notice that any statement by the juvenile may be used against the juvenile in adult criminal court if the case is transferred there from juvenile court. We decline the defendant's request to exercise our supervisory authority. Our Supreme Court has set forth the scope of the supervisory powers held by the appellate courts of this state as follows: "It is well settled that [a]ppellate courts possess an inherent supervisory authority over the administration of justice.... Supervisory powers are exercised to direct trial courts to adopt judicial procedures that will address matters that are 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.... Under our supervisory authority, we have adopted rules intended to guide the lower courts in the administration of justice in all aspects of the criminal process.... 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.... Indeed, there is no principle that would bar us from exercising our supervisory authority to craft a remedy that might extend beyond the constitutional minimum because articulating a rule of policy and reversing a conviction under our supervisory powers is perfectly in line with the general principle that this court ordinarily invoke [s] [its] supervisory powers to enunciate a rule that is not constitutionally required but that [it] think[s] is preferable as a matter of policy." (Citations omitted; internal quotation marks omitted.) State v. Elson, 311 Conn. 726, 764-65, 91 A.3d 862 (2014). We are not convinced that it is necessary to the due administration of justice to invoke our supervisory authority in the present case. Although we are aware that there is "no ironclad requirement that we refrain from granting a defendant relief pursuant to our supervisory authority unless we first reject any relevant constitutional claim"; State v. Rose, 305 Conn. 594, 607, 46 A.3d 146 (2012) ; we nevertheless are mindful that we have determined in the present case that the defendant's Miranda rights were never implicated in the present case, and, thus, we believe it is appropriate to leave any discussion of the scope of such warnings for another time. To conclude otherwise seemingly would be incongruent with our jurisprudence requiring us to refrain from deciding issues absent an actual controversy or from giving advisory opinions. See State v. Preston, 286 Conn. 367, 374, 944 A.2d 276 (2008). Our supervisory authority is meant to be utilized sparingly and only in extraordinary circumstances, which simply are not present here. Because we have determined in the present case that Miranda warnings were not required because the defendant was not subjected to a custodial interrogation, any further discussion about the content of such warnings would be untethered to any actual controversy and, thus, premature. Further, even if we were inclined to consider the defendant's proposed new rule, the defendant has failed to adequately brief why we should adopt such a rule or why it should be applied retroactively in the present case to reverse the defendant's conviction. After noting that such rules normally operate prospectively, the defendant merely urges us to eschew that principle without proper analysis. In order to justify the use of such an extraordinary remedy, it is incumbent that a party provides adequate analysis. See State v. James, 237 Conn. 390, 434-35 n. 36, 678 A.2d 1338 (1996). In sum, we decline the defendant's request to adopt a per se rule regarding the administration of Miranda rights to juveniles. The judgment is affirmed. 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). The defendant speaks and understands English. Rios knew the defendant from a previous investigation, in which he had spoken with the defendant in English. That fall, when Liam began to attend Torrington High School, he heard from other students that the defendant had been one of the older students who had tried to rob him. Liam later approached the defendant in the cafeteria. The defendant confessed to Liam that he had tried to steal money from him, although he again denied having any weapon. General Statutes (Supp.2016) § 46b-127 (a) provides: "(1) The court shall automatically transfer from the docket for juvenile matters to the regular criminal docket of the Superior Court the case of any child charged with the commission of a capital felony under the provisions of section 53a-54b in effect prior to April 25, 2012, a class A felony, or a class B felony, except as provided in subdivision (3) of this subsection, or a violation of section 53a-54d, provided such offense was committed after such child attained the age of fifteen years and counsel has been appointed for such child if such child is indigent. Such counsel may appear with the child but shall not be permitted to make any argument or file any motion in opposition to the transfer. The child shall be arraigned in the regular criminal docket of the Superior Court at the next court date following such transfer, provided any proceedings held prior to the finalization of such transfer shall be private and shall be conducted in such parts of the courthouse or the building in which the court is located that are separate and apart from the other parts of the court which are then being used for proceedings pertaining to adults charged with crimes." Subdivision (3) of subsection (a) sets forth a different transfer process in cases in which a child has been charged with violating certain enumerated felonies that are not relevant here. Although there have been several revisions to § 46b-127 (a) since the time of the commission of the crimes at issue here, those changes are not relevant to this appeal. For convenience, we refer to the current revision of the statute. The situation faced by the defendant also appears no more custodial in nature than any number of cases in which a suspect who is not interviewed at home but transported for questioning to a police station was determined not to be "in custody" and, thus, not entitled to Miranda warnings because there was an insufficient indicia of an overly coercive atmosphere present. See, e.g., State v. Edwards, supra, 299 Conn. at 434-35, 11 A.3d 116 (defendant with mental limitations not in custody although taken from hospital by police to police station for questioning about suspicious death); State v. Britton, 283 Conn. 598, 612, 929 A.2d 312 (2007) (defendant not in custody although asked to accompany detectives to police station for questioning); State v. Pinder, supra, 250 Conn. at 397-98, 736 A.2d 857 (defendant not in custody during voluntary polygraph test). In addition to challenging the merits of the defendant's argument, the state contends that the defendant never raised the argument to the trial court, and, therefore, it is unpreserved for appellate review. The state further contends that the defendant is not entitled to 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), or to plain error review. Because it is apparent that the defendant cannot prevail on his claim of error as a matter of law, we assume without deciding that the argument is properly before us. See State v. Gaines, 257 Conn. 695, 713 n. 13, 778 A.2d 919 (2001) (reviewing potentially unpreserved claim without deciding whether claim preserved because party clearly could not prevail); State v. Haase, 243 Conn. 324, 338 n. 12, 702 A.2d 1187 (1997), cert. denied, 523 U.S. 1111, 118 S.Ct. 1685, 140 L.Ed.2d 822 (1998) (same). "Although the title of a statute is not determinative of its meaning, we often have looked to a statute's title as some evidence of that meaning." Burke v. Fleet National Bank, 252 Conn. 1, 13, 742 A.2d 293 (1999).

12485333

AXELA NEW BRITAIN GROUP, LLC v. LHPB REALTY, LLC.

Axela New Britain Grp., LLC v. LHPB Realty, LLC.

2016-05-24

No. 37723.

296

301

140 A.3d 296

140

West's Atlantic Reporter, Third Series

Connecticut Appellate Court

Connecticut

2021-08-27T20:57:13.996876+00:00

Fastcase

AXELA NEW BRITAIN GROUP, LLC v. LHPB REALTY, LLC.

AXELA NEW BRITAIN GROUP, LLC v. LHPB REALTY, LLC. No. 37723. Appellate Court of Connecticut. Argued Feb. 3, 2016. Decided May 24, 2016. Richard P. Weinstein, with whom, on the brief, was Sarah Black Lingenheld, Farmington, for the appellant (defendant). Patrick W. Finn, Waterbury, with whom, on the brief, was Tara L. Shaw, for the appellee (plaintiff). LAVINE, BEACH and PELLEGRINO, Js.

2381

14584

PELLEGRINO, J. The defendant, LHPB Realty, LLC, appeals from the judgment of the trial court declaring that a restrictive covenant in an agreement between the predecessors in interest of the defendant and the plaintiff, Axela New Britain Group, LLC, had expired. On appeal, the defendant claims that the court improperly interpreted the restrictive covenant in the agreement. We affirm the judgment of the trial court. The following undisputed facts are relevant to this appeal. The defendant owns a parcel of land located at 693 Farmington Avenue in New Britain (Sussman parcel). This parcel previously was owned by Harold M. Sussman, Paul G. Sussman, and Bernard S. Sussman (Sussmans). The plaintiff owns an abutting parcel of land located at 643 Farmington Avenue in New Britain (Ronsam parcel). This parcel previously was owned by Ronsam Properties, Inc. (Ronsam). On February 1, 1972, the Sussmans and Ronsam entered into a cross easement and maintenance agreement (agreement), which provided for easements and certain restrictions on the two parcels. At the time, the Sussmans operated a food supermarket on their property and Ronsam leased its parcel to Caldor's of New Britain, Inc. (Caldor's), for the operation of a discount department store. A food supermarket has been in continuous operation on the Sussman parcel since the execution of the agreement. Caldor's was operated continuously on the Ronsam parcel until it went out of business in March, 1999. Subsequently, Wal-Mart Real Estate Trust (Wal-Mart) leased the Ronsam parcel and operated a retail store on the parcel until August 31, 2009. Wal-Mart also went out of business, and the Ronsam parcel has been unoccupied and vacant since August, 2009. The agreement entered into by the Sussmans and Ronsam contained a restrictive covenant that is at issue in this appeal. Paragraph 5 of the agreement states: "Ronsam covenants and agrees that so long as the food supermarket is being operated on the Sussman Parcel, Ronsam will not enter into any lease or permit occupancy for any portion of the building shown as 'Department Store' on the plan entitled 'Exhibit B', annexed hereto, (or any addition thereto or any substitution thereof in the event the 'Department Store' building is subsequently demolished), the purpose of which shall be for the sale or display of delicatessen, meat, fish, fruit, produce, groceries, canned goods, ice cream, or bakery goods intended for consumption off the premises except that candies, cookies, pastries, nuts and doughnuts may be sold for consumption off the premises. This restriction shall be strictly construed to apply only to the building shown as 'Department Store' on Exhibit B and no other building or property of Ronsam. This restriction shall not apply to the sale of food for consumption on the premises, and this restriction shall continue for so long as the discount department store contemplated for construction on the Ronsam Parcel shall be occupied for such use, but in any event, shall be for a minimum of twenty (20) years from the date of this agreement. Ronsam acknowledges that this covenant herein is of vital importance to Sussmans, and in the event of any violation thereof, in addition to any other remedies available to them, Sussmans may apply for injunctive relief." The only other provision in the agreement that references a termination date is paragraph 21 of the agreement, which states: "This agreement, including but not limited to the easements and rights granted hereunder, shall terminate and be of no further force or effect fifty (50) years from the date hereof except for the restrictive covenants in Paragraph 5 aforesaid, which has a different termination date." On April 23, 2014, the plaintiff filed an amended complaint seeking a declaratory judgment, pursuant to Practice Book § 17-54 et seq., that the restrictive covenant is extinguished and/or void ab initio, has no legal effect, and is unenforceable as to the plaintiff or any successors. The plaintiff filed a motion for summary judgment, which the court granted on January 29, 2015. In its memorandum of decision, the court held that the "plain and unambiguous language of paragraph 5 provides that the restriction therein shall continue for a minimum of twenty years from the date of the agreement, but that the restriction may expire after twenty years if the discount department store building referenced in the paragraph is no longer occupied for such use." (Emphasis omitted.) The court noted that the twenty year period expired as of February 1, 1992, and that the discount department store building was no longer occupied for such use because it had been unoccupied and vacant since 2009. Thus, the court held that there were no genuine issues of material fact, the restriction in paragraph 5 had expired, and the plaintiff was entitled to summary judgment as a matter of law. This appeal followed. On appeal, the defendant claims that the court erred in its construction of the restrictive covenant and ignored the plain language of the covenant that provides that it remain in effect so long as a food supermarket is in operation on the Sussman parcel. According to the defendant, paragraph 5 sets forth two separate provisions, a main restriction to benefit the Sussman parcel and a carve out from such restriction to benefit the Ronsam parcel, with the main restriction remaining in effect so long as there is a food supermarket in operation on the Sussman parcel. There is currently a food supermarket in operation on the Sussman parcel and therefore, according to the defendant, the restrictive covenant remains in effect. We disagree with the defendant and hold that the trial court properly determined that the restrictive covenant expired as there is no dispute that twenty years had passed and the building on the Ronsam parcel was no longer operated as a discount department store. "This court's review of a grant of summary judgment is plenary." Darin v. Cais, 161 Conn.App. 475, 480, 129 A.3d 716 (2015). "The judgment sought 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." Practice Book § 17-49. Further, "[t]he interpretation of a contract presents a question of law subject to de novo review. . [O]n appeal [this court is not] bound by the trial court's interpretation of the contract provision at issue; rather, [this court has] an equal opportunity to consider the words of the contract within the four corners of the instrument itself." (Internal quotation marks omitted.) Sonson v. United Services Automobile Assn., 152 Conn.App. 832, 838, 100 A.3d 1 (2014). "The meaning and effect of the [restrictive covenant] are to be determined, not by the actual intent of the parties, but by the intent expressed in the deed, considering all its relevant provisions and reading it in the light of the surrounding circumstances.... The primary rule of interpretation of such [restrictive] covenants is to gather the intention of the parties from their words, by reading, not simply a single clause of the agreement but the entire context, and, where the meaning is doubtful, by considering such surrounding circumstances as they are presumed to have considered when their minds met.... A restrictive covenant must be narrowly construed and ought not to be extended by implication.... Moreover, if the covenant's language is ambiguous, it should be construed against rather than in favor of the covenant." (Citation omitted; internal quotation marks omitted.) Alligood v. LaSaracina, 122 Conn.App. 479, 482, 999 A.2d 833 (2010). We begin with the language itself. The covenant is four sentences long. The first sentence and the third sentence are of prime importance in this appeal. The first sentence states that "Ronsam covenants and agrees that so long as the food supermarket is being operated on the Sussman Parcel, Ronsam will not enter into any lease or permit occupancy for any portion of the building shown as 'Department Store' . the purpose of which shall be for the sale or display of [food] intended for consumption off the premises...." The third sentence states that "[t]his restriction shall not apply to the sale of food for consumption on the premises, and this restriction shall continue for so long as the discount department store contemplated for construction on the Ronsam Parcel shall be occupied for such use, but in any event, shall be for a minimum of twenty (20) years from the date of this agreement." The defendant argues that the two provisions are "ostensibly inconsistent" but that they can be reconciled when the covenant is recognized as providing for two separate things-a main restriction and a carve out from such restriction-each with a different termination. According to the defendant, the first sentence provides for the restriction to benefit the Sussman parcel and lasts as long as a food supermarket is in operation on that property. Further, according to the defendant, the third sentence sets forth a carve out in the beginning of the sentence, and the second reference to "this restriction" in the third sentence refers to that carve out. We are not convinced. The first sentence of the covenant sets out the restriction. "Ronsam covenants and agrees that so long as the food supermarket is being operated on the Sussman Parcel, Ronsam will not enter into any lease or permit occupancy [of the Department Store building], the purpose of which shall be for the sale or display of [food] intended for consumption off the premises...." Thus, the first sentence sets forth a restriction on Ronsam's ability to sell food items intended for consumption off the premises. The second sentence begins with "[t]his restriction," referring to the restriction set forth in the first sentence. The first clause of the third sentence also begins with "[t]his restriction," also referring to the restriction set forth in the first sentence. The second clause of the third sentence, which is separated from the first clause with a comma, also begins with "this restriction." There is nothing to indicate that the use of the words "this restriction" in the second clause of the third sentence refers to anything other than the restriction set forth in the first sentence of the covenant. The term "this restriction" is used in two other places in the covenant to refer to the restriction in the first sentence, and the use of the phrase in the second clause of the third sentence is no different. Thus, we must then look to the second clause of the third sentence, while keeping in mind that "this restriction" refers to Ronsam's restriction on the sale of food items intended for consumption off the premises. The second clause of the third sentence reads "this restriction shall continue for so long as the discount department store contemplated for construction on the Ronsam Parcel shall be occupied for such use, but in any event, shall be for a minimum of twenty (20) years from the date of this agreement." Therefore, the restriction was to continue for a minimum of twenty years, but may expire after twenty years, if the discount department store building referenced in the paragraph is no longer occupied as a discount department store. It is undisputed that the parties entered into the agreement on February 1, 1972, and the twenty year period expired as of February 1, 1992. It is also undisputed that the building on the Ronsam parcel, which previously was occupied by Caldor's and Wal-Mart, has been unoccupied and vacant since approximately August 31, 2009. Thus, the restriction has expired. The defendant argues that interpreting "this restriction" in the second clause of the third sentence as referring back to the restriction set forth in the first sentence would give no effect to the language of the first sentence. Specifically, the first sentence states that Ronsam agrees to a restriction on the sale of food items intended for consumption off the premises "so long as the food supermarket is being operated on the Sussman Parcel...." The defendant interprets this to mean that the restriction lasts so long as the food supermarket is in operation. We do not agree. "The individual 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). This first sentence of the covenant sets forth the restriction and notes that it is applicable only "so long as the food supermarket" is in operation on the Sussman parcel. The third sentence references the duration of the restriction. If the Sussman parcel no longer contains a food supermarket, then Ronsam, or the plaintiff as the current owner, is no longer under an obligation to abide by the restrictions set forth in the covenant. However, if the Sussman parcel continues to operate a food supermarket, then the expiration language in the third sentence becomes necessary. This construction is bolstered by the fact that paragraph 21 of the agreement, which includes the termination date for the agreement, specifically excludes paragraph 5 and states that the restrictive covenant in paragraph 5 has a "different termination date." Such termination date is found in the third sentence of the covenant. On the basis of our review of the agreement and the trial court's memorandum of decision, we conclude that the trial court properly determined that there was no genuine issue of material fact that the restrictive covenant had expired. Accordingly, the court properly granted summary judgment for the plaintiff. The judgment is affirmed. In this opinion the other judges concurred. The department store building was not constructed until after the agreement was signed. The second sentence provides that the covenant applies only to a certain building on the plaintiff's property, and the fourth sentence provides that the restriction was of vital importance and could be enforced by injunctive relief and other remedies.

12485329

Thomas BROCHARD v. Britt BROCHARD.

Brochard v. Brochard

2016-05-24

No. 37435.

254

263

140 A.3d 254

140

West's Atlantic Reporter, Third Series

Connecticut Appellate Court

Connecticut

2021-08-27T20:57:13.996876+00:00

Fastcase

Thomas BROCHARD v. Britt BROCHARD.

Thomas BROCHARD v. Britt BROCHARD. No. 37435. Appellate Court of Connecticut. Argued Feb. 9, 2016. Decided May 24, 2016. Britt Brochard, self-represented, the appellant (defendant). Thomas Brochard, self-represented, the appellee (plaintiff). BEACH, KELLER and WEST, Js.

4810

29778

WEST, J. The defendant, Britt Brochard, appeals from the postdissolution judgment of the trial court denying her motion for contempt. In her motion for contempt, the defendant claimed, inter alia, that the plaintiff, Thomas Brochard, had failed to provide her with an authorization form in compliance with the order of the court, Gordon, J. The defendant claims that the court, Gould, J., denied her motion based on the incorrect belief that it had already been ruled on. We reverse the judgment of the trial court. The record reveals the following relevant facts and procedural history. In a memorandum of decision dated July 6, 2011, the court, Gordon, J., dissolved the parties' marriage. In doing so, it set forth the following facts. The parties were married on August 27, 1995, in Ridgefield. They have two children. The plaintiff instituted the divorce action in 2008 following the parties' separation. The court found their marriage had irretrievably broken down. The court issued a number of orders, ruling that the plaintiff, who was employed, would pay alimony to the defendant, who was a homemaker. It ordered that the defendant would be awarded all right, title, and interest in the marital home and would be responsible for all costs associated with the home. On July 20, 2011, the defendant filed a postjudgment motion for an 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 attorney's fees and other charges. In the alternative, the defendant moves 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, that the plaintiff attend the foreclosure mediation sessions along with the defendant, and that the plaintiff agree to any resolution the defendant comes to with the bank." Judge Gordon held a hearing on the defendant's motion for an order on August 12, 2011. At the hearing, the plaintiff's attorney presented an authorization, claiming that the proffered authorization would satisfy the defendant's motion. The court 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...." On November 13, 2013, the defendant filed a motion for contempt, claiming that the plaintiff had violated Judge Gordon's August 12, 2011 order 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.' " The defendant's motion for contempt 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 mortgages." 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. She attached an order from the foreclosure court, Ecker, J., extending the sale date and noting that "the record in this matter does not indicate that [the plaintiff] has made any efforts whatsoever in this proceeding to resist foreclosure or assist his ex-spouse's ongoing attempts to save the home through mediation or negotiation." 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, and offered to quote from Judge Munro; Judge Gould told the plaintiff's attorney, "[y]ou don't have to . I recall this specifically." 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. The defendant filed the present appeal on November 24, 2014. She claims two grounds, but the essence of both is that Judge Gould's ruling on the motion for contempt for the plaintiff's failure to provide an authorization was an abuse of discretion because it was based on an incorrect understanding of the procedural history. In response, the plaintiff asserts that Judge Munro's statements at the November 14, 2013 hearing constituted a denial of the defendant's motion. Prior to oral argument before this court, on October 19, 2015, the defendant filed an amended appeal form amending the appeal to include a decision by Judge Gould from September 28, 2015. The September 28, 2015 memorandum of decision recounts that hearings on a number of postjudgment motions were held on June 3, 4, and 10, 2014, and April 20, 21, and 22, 2015. Among other issues, it discusses the defendant's motion for contempt from November 13, 2013, stating that the motion claimed that the plaintiff was in contempt because "the plaintiff was ordered to bring the outstanding mortgage on the family home, where the defendant resides with the two children, current from March, 2011 through July, 2011, that the plaintiff would be responsible for any attorney's fees, interest and/or penalties relating to foreclosure actions on the subject home, that the plaintiff was ordered to execute an authorization permitting the defendant to speak with the mortgage loan holder, and that the plaintiff was to provide the defendant with any and all communications received from the bank." (Emphasis added.) The decision does not reference the statements by Judge Gordon related to the authorization, but it does state 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." It also states that "[i]n 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 has 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." The court then denied the motion for contempt. At oral argument before this court on February 9, 2016, the parties discussed the impact of the September 28, 2015 decision. The defendant maintained that Judge Gould had not provided her with a chance to argue her case before issuing the decision. She conceded, however, that she had not filed transcripts of subsequent hearings, which would demonstrate that she was not afforded an opportunity to argue her position. The plaintiff asserted that the September 28, 2015 decision was based on Judge Munro's decision. The plaintiff did not claim, despite this court's questioning of the defendant, that a 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. The defendant claims that Judge Gould abused his discretion when he determined that the authorization issue raised by the defendant's motion for contempt was already decided, and when he purported to decide the issue in his September 28, 2015 memorandum of decision. We agree. We begin by setting forth our standard of review and the relevant legal principles. "Contempt is a disobedience to the rules and orders of a court which has power to punish for such an offense." (Internal quotation marks omitted.) In re Leah S., 284 Conn. 685, 692, 935 A.2d 1021 (2007). Our Supreme Court recently clarified that we should utilize a two step inquiry when analyzing a judgment of contempt: "First, 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.... Second, if we conclude that the underlying court order was sufficiently clear and unambiguous, we must then determine whether the trial court abused its discretion in issuing, or refusing to issue, a judgment of contempt, which includes a review of the trial court's determination of whether the violation was wilful or excused by a good faith dispute or misunderstanding." (Citations omitted.) Id., at 693-94, 935 A.2d 1021. "A finding of . contempt [occurring outside the presence of the court] must be established by sufficient proof that is premised on competent evidence presented to the trial court and based on sworn testimony.... A trial-like hearing should be held if issues of fact are disputed." (Internal quotation marks omitted.) Mekrut v. Suits, 147 Conn.App. 794, 803, 84 A.3d 466 (2014), see also Kennedy v. Kennedy, 88 Conn.App. 442, 443, 869 A.2d 1252 (denying motion for contempt without hearing from guardian ad litem was abuse of discretion), cert. denied, 275 Conn. 902, 882 A.2d 671 (2005). These principles provide guidance in how we should analyze the defendant's claim. In the context of this case, in order to rule on the motion for contempt, the trial court was required to determine whether the authorization forms proffered by the plaintiff complied with Judge Gordon's order of August 12, 2011. Our task is to determine whether any court ruled on the merits of this issue, and, if so, whether it did so following an evidentiary hearing. Determining whether a court ruled on an issue is a matter of law which, like whether an order is ambiguous, requires de novo review, while the issue of whether a hearing was required is reviewed under an abuse of discretion standard. See Mekrut v. Suits, supra, 147 Conn.App. at 804, 84 A.3d 466 ; Kennedy v. Kennedy, supra, 88 Conn.App. at 443, 869 A.2d 1252. The record contains several authorization forms which were signed by the plaintiff. An August 2, 2011 authorization was provided with a September 6, 2011 letter from the defendant's then attorney stating that the defendant "might as well use it if you can while we try to negotiate a more detailed authorization." It is signed by the plaintiff and states that "[t]he undersigned hereby authorizes the mortgage holder, Wells Fargo Bank, to converse and negotiate with Britt Brochard relative to all aspects of the mortgage and mediation process." An authorization titled "third party authorization form" and dated August 15, 2011, is signed by the plaintiff and states in pertinent part: "I/we Thomas C. Brochard give authorization to Wells Fargo Home Mortgage to discuss my loan with: Name: Britt Brochard...." A September 1, 2011 letter and authorization were attached to the plaintiff's November 26, 2013 objection to the motion for contempt, to which the September 28, 2015 memorandum of decision refers. This authorization states in pertinent part that "[t]he purpose of this authorization is to allow [the defendant] to have (1) full access to all communications and data concerning both mortgages (2) to be allowed to negotiate with the mortgage holders and to effectuate a modification of the mortgages (3) to acknowledge [the plaintiff] will fully cooperate with the mediation process by providing any data required and executing any settlement documents. This authorization is not meant to (a) expand any duties [the plaintiff] has pursuant to the divorce judgment in the above dissolution matter (b) it will not cause him to pay any funds towards the mortgage arrearage, refinance of the mortgages or any other costs associated with the mortgages or these modifications (c) it does not require him to execute any documents which increase his exposure under the existing loan agreements including, but not limited to, exposure for a deficiency judgment." Finally, an unsigned authorization dated August, 2011, states that the defendant would have "full and complete authority to negotiate, agree, and execute proposed settlements with said mortgagees." This mirrors the language to which the plaintiff objected before Judge Munro. The parties do not dispute that the plaintiff provided the defendant with an authorization providing access to information; Judge Gordon determined that such an authorization was insufficient. The defendant's contention is that the plaintiff is in contempt of Judge Gordon's order of August 12, 2011, because he has failed to sign an authorization making the defendant his "authorized agent for conversing, negotiating, entering into an agreement ." as ordered by Judge Gordon. On the basis of our review of the record, we conclude that Judge Munro never ruled on whether any of these authorizations met the requirements ordered by Judge Gordon because Judge Munro specifically stated that she would hold a further hearing. Although Judge Munro expressed that any authorization "should not be something that puts [the plaintiff] on the hook for any more liability than he has now," she continued to discuss the issue with the parties and, after the defendant asserted that the intention of Judge Gordon's ruling was for the loan to be modified, Judge Munro stated that it was a complicated problem that she would not rule on then. She also had previously stated that it was not her intention to get into the substance of the issue, and the defendant had asserted that she did not have the necessary documentation with her. Moreover, the plaintiff filed an objection to the defendant's motion following the hearing with Judge Munro, suggesting that he did not consider the matter settled at that point. Judge Munro therefore did not rule on the defendant's motion for contempt and did not interpret the substance of any authorization in light of Judge Gordon's order and the facts regarding the mortgage modification. Her statements indicate that the proper scope of the authorization was a complex issue that would require more extensive argument, a thorough examination of Judge Gordon's decision, and the presentation of evidence. Likewise, we conclude that Judge Gould did not rule on whether any authorization met the requirements ordered by Judge Gordon. Judge Gould's statements prior to his September 28, 2015 memorandum of decision indicate that he believed that the matter had been decided previously. He did not specify when it had been decided, and the September 28, 2015 ruling demonstrates that it was not ruled on prior to the September 28, 2015 memorandum of decision. We now turn to whether Judge Gould abused his discretion by denying the defendant's motion in his September 28, 2015 memorandum of decision. The record before us indicates that no evidentiary hearing was held before the decision was issued. The defendant asserted at oral argument that she needed an evidentiary hearing in order to provide evidence, including testimony from the mortgagee, regarding the scope of authorization that would be necessary to effectuate a modification of the mortgage. This is consistent with Judge Munro's statement that the authorization issue was a complex one requiring a more lengthy hearing. When asked at oral argument before this court whether Judge Gould gave both parties an opportunity to be heard regarding the authorization issue before issuing the memorandum of decision, the plaintiff again asserted that the hearing before Judge Munro was dispositive. The plaintiff did not suggest that the September 28, 2015 decision was based on a subsequent, full, hearing, but, rather, that it was based on the prior decision of Judge Munro. The decision itself does not state whether any argument related to the authorization occurred on the three hearing days that followed the November 6, 2014 denial of the defendant's motion to reargue, it does not refer to any evidentiary hearing on the authorization issue, and it does not find that a hearing would be unnecessary. We, therefore, conclude that Judge Gould's failure to conduct an evidentiary hearing constituted an abuse of discretion. The judgment is reversed with respect to the trial court's conclusion that the plaintiff was not in contempt for failing to provide an adequate authorization and the case is remanded for an evidentiary hearing on that issue consistent with this opinion. In this opinion the other judges concurred. Whether all costs associated with the home included payment of the mortgage was an additional matter brought before Judge Gordon at the August 12, 2011 hearing. The following exchange occurred regarding the authorization: "[The Plaintiff's Counsel]: Your Honor, if I might, I may save the court some time here. The alternative relief requested is for a signed authorization. [The plaintiff] has a signed authorization. I do-from him today that I can give counsel if that solves that. "[The Defendant's Counsel]: It doesn't solve everything, Your Honor. "The Court: It solves part of it. Okay. "[The Defendant's Counsel]: It solves, it solves part of it, and I'd be happy to take that- "The Court: Okay. Good. "[The Defendant's Counsel]: -signed authorization. I don't know that that-but that doesn't resolve- "The Court: Okay. "[The Defendant's Counsel]: -all of it, and I think this issue is addressed in some other motions as well. "[The Defendant's Counsel]: Just like to follow up with that. So, this is an authorization to converse and negotiate with Wells Fargo Bank depending on where all of this goes to, I'd like Your Honor's decision to address if in addition he needs to- "The Court: Well, it 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- "[The Plaintiff's Counsel]: If counsel will draft up an authorization that satisfies her, [the plaintiff] will sign it. "[The Defendant's Counsel]: I will draft an authorization. "The Court: Okay. Good." The following exchange occurred: "The Court: All right, I've reviewed the motion, the emergency motion, I've reviewed the objection to it, and I reviewed the response. My situation with this, unless I hear differently from one side or the other, is this has already been ruled upon and/or any additional information will be taken up at the time of the hearing which is my understanding is October 27 and 28, is that correct? "[The Plaintiff's Counsel]: That's correct, Your Honor. "The Court: All right. Ms. Brochard, anything else? "[The Defendant]: Yes. Judge Munro started to hear it, I have the entire transcript for you; she did not finish hearing it. She said it was complicated, that I had not given her the full goods. I want the opportunity to present my arguments, okay, because Judge Gordon's orders were not complied with, and I need that authorization in order to remove the house from foreclosure because the last time I went to foreclosure court, there were two things that were missing. One was that authorization because without- "The Court: And wasn't there a ruling that that authorization did not have to be provided? "[The Defendant]: No, there was not. "The Court: Well, that's my understanding. That's my understanding and my interpretation of it, ma'am. "[The Plaintiff's Counsel]: I have the transcript, Your Honor. "[The Defendant]: Yes, I have the transcript, too, Your Honor. At the end of the transcript, Judge Munro states, okay, that I have not given her the full goods and that she understood that it was complicated, that she heard me, and she was going to roll that into a hearing. There was no other part of the mortgage that was heard that day. Further, in a later transcript, several months later, which I included as part of my reply, Judge Munro states-asks us are there any financial motions on the table that are being sent to Middletown, and I named some of them and included in one of them the modification-the authorization on the house, and she said, I remember that. She never said she ruled on it because she did not. "The Court: I'm not indicating she ruled on it. I'm indicating it was ruled on previously; it did not have to be provided. That's going to- "[The Defendant]: No. "The Court: Going to remain the ruling today. "[The Defendant]: There was-there was- "The Court: Anything else? "[The Plaintiff's Counsel]: Thank you, Your Honor. "[The Defendant]: There was never any-when was it ruled on, Your Honor? There was never any ruling on it. "The Court: Ms. Brochard, I've ruled for today, thank you. "[The Defendant]: I don't understand your ruling, Your Honor, there was no ruling. "The Court: I've ruled for today, ma'am. Thank you." Practice Book § 63-1 provides that an appeal, or a motion to reargue extending the appeal period, should be filed within twenty days of the court's judgment. The defendant filed her motion to reargue twenty-three days after the judgment. This is a nonjurisdictional defect, the plaintiff has not moved to dismiss the appeal due to late filing, and we may exercise our discretion to consider the appeal. See Alliance Partners, Inc. v. Voltarc Technologies, Inc., 263 Conn. 204, 209-10, 820 A.2d 224 (2003) ( "[T]he twenty day time limit provided by Practice Book § 63-1(a) is not subject matter jurisdictional.... In the absence of jurisdictional barriers, appellate tribunals must exercise their discretion to determine whether a late appeal should be permitted to be heard." [Citations omitted; internal quotation marks omitted.] ). In this appeal, we address only the defendant's challenge to Judge Gould's determination of the authorization issue. The defendant acknowledged that Judge Gould did ask about the authorization again, but that the plaintiff's attorney stated that the issue was part of an appeal, and the defendant did not have all of her materials. The defendant later stated that the judge never took up the contempt issue again. If the authorization forms did not comply, it would be the task of the trial court to provide clarification as to what authorization was required. See Sablosky v. Sablosky, 258 Conn. 713, 722, 784 A.2d 890 (2001) ("[t]he doors of the courthouse are always open; it is incumbent upon the parties to seek judicial resolution of any ambiguity in the language of judgments"); but see In re Leah S., supra, 284 Conn. at 700, 935 A.2d 1021 (distinguishing Sablosky ). Although we were concerned during oral argument before this court regarding the defendant's failure to provide transcripts of all the hearings, we determine that the record is adequate for our review because there is no dispute regarding whether the court addressed the issue on a day for which we do not have the transcript; neither party claims that any argument or evidence related to the appeal was heard on those hearing days, and the court's memorandum of decision does not indicate that argument or evidence related to the authorization occurred on those hearing days. See O'Halpin v. O'Halpin, 144 Conn.App. 671, 675-76, 74 A.3d 465 (where parties disputed whether court addressed issue during hearing, appellant was required to provide transcript of that hearing), cert. denied, 310 Conn. 952, 81 A.3d 1180 (2013) ; Cianbro Corp. v. National Eastern Corp., 102 Conn.App. 61, 71-72, 924 A.2d 160 (2007) (same). In addition, the lack of analysis of Judge Gordon's order demonstrates an abuse of discretion. The September 28, 2015 memorandum of decision misstates the defendant's argument by stating that the defendant contended "that the plaintiff was ordered to execute an authorization permitting the defendant to speak with the mortgage loan holder...." It does not reference Judge Gordon's order of August 12, 2011, regarding the authorization, although it does reference other aspects of Judge Gordon's order. It references Judge Munro's statement regarding the plaintiff's liability, but not Judge Munro's statement that a further hearing was necessary. It also makes no mention of Judge Gould's September 11, 2014 ruling that the motion for contempt had already been decided, or his November 6, 2014 ruling that the prior ruling was with prejudice and that the defendant could appeal if she chose. It refers to the September 1, 2011 letter in which the plaintiff enclosed an authorization form, but does not refer to the contents of that authorization, or to whether the defendant had an opportunity to present argument regarding the adequacy of the authorization proffered with the September 1, 2011 letter. Finally, it refers to the "authorization referred to above," or "the subject authorization," referring back to the authorization referred to earlier in the memorandum of decision as the "authorization permitting the defendant to speak with the mortgage loan holder...." As previously stated, Judge Gordon had ordered that the plaintiff was required to furnish a more extensive authorization.

12485372

Michael ROGAN v. Sally RUNGEE.

Rogan v. Rungee

2016-05-03

No. 37398.

979

992

140 A.3d 979

140

West's Atlantic Reporter, Third Series

Connecticut Appellate Court

Connecticut

2021-08-27T20:57:13.996876+00:00

Fastcase

Michael ROGAN v. Sally RUNGEE.

Michael ROGAN v. Sally RUNGEE. No. 37398. Appellate Court of Connecticut. Argued Jan. 19, 2016. Decided May 3, 2016. Rose Longo-McLean, Bristol, for the appellant (plaintiff). Jon L. Schoenhorn, Hartford, for the appellee (defendant). BEACH, SHELDON and PRESCOTT, Js.

6563

40747

PRESCOTT, J. The plaintiff, Michael Rogan, appeals from the judgment of the trial court rendered, in part, in favor of the defendant, Sally Rungee, on her counterclaim for abuse of process, common-law vexatious litigation, and statutory vexatious litigation. On appeal, the plaintiff claims that the court improperly (1) awarded damages to the defendant for emotional distress for abuse of process, (2) awarded treble emotional distress damages, and (3) held that the plaintiff failed to prove his affirmative defense that he acted on the advice of legal counsel. We disagree and affirm the judgment of the trial court. The following facts, as found by the trial court or undisputed in the record, and procedural history are relevant to our review. "It began . with an ill conceived but straightforward complaint by [the plaintiff] that [the defendant] had 'falsely and maliciously accused [him] of creating a public disturbance . [an infraction] of which [she] knew he was innocent.' That accusation, the complaint went on to allege, caused him to be arrested and charged with that offense and to suffer damage to his reputation and extreme emotional distress. The complaint correctly alleged further that the charge was subsequently nolled. This alleged conduct by [the defendant] gave rise to four counts in the complaint, namely, malicious prosecution (count one), slander (count two), and intentional and negligent infliction of emotional distress (counts three and four)." (Footnote omitted.) This alleged malicious prosecution arose from events occurring in the early morning of January 3, 2008. The defendant had called the Berlin Police Department to complain about lights shining into her bedroom window from the rear of the plaintiff's house. Sergeant Chris Tralli and Officers Ryan Gould and Brian Falco of the Belin Police Department responded to the call. Although the plaintiff alleges that the lights in question were Christmas lights, upon arrival at the plaintiff's house, Officer Falco noted that "[t]he light in question was on the second story deck on the rear of [the plaintiff's] house and looked to be a blue LED strobe light similar to lights used in [vehicles] of volunteer firemen. The light was angled directly at [the defendant's] house and appeared to be done so deliberately." This was not the first time that the police had responded to a complaint about this light and had ordered the plaintiff to turn it off. Consequently, the plaintiff was issued an infraction ticket for creating a public disturbance. It was on the basis of receiving this infraction ticket that the plaintiff claimed that he was maliciously prosecuted by the defendant, although he was never arrested, never paid any fine, and never appeared in court concerning the infraction ticket. "On January 5, 2009, the court, Trombley, J., struck counts two, three, and four [of the plaintiff's complaint] for their failure sufficiently to allege the elements of the respective causes of action. [Although] the court denied the motion to strike count one [for malicious prosecution], it had barely survived, but it took three more years and a change in Connecticut law for count one of [the plaintiff's] complaint to be disposed of by summary judgment in favor of [the defendant].... "In the meantime, however, [the defendant] had upped the ante by filing a counterclaim that accused [the plaintiff] of abusing the court's process by bringing his malicious prosecution lawsuit 'not in pursuit of justice' but as 'improper retaliation for the efforts of [the defendant] to stop the harassing, bizarre, and criminal misconduct of [the plaintiff] over several years.' . [The defendant's] counterclaim sought damages also for intentional infliction of emotional distress, based on [the plaintiff's] alleged seeking of a warrant for [the defendant's] arrest for harassment, after she had made a telephone call to the fire department officials of the town of Berlin claiming that [the plaintiff, who was a volunteer firefighter] had engaged in inappropriate behavior and was mentally ill. A third count alleged a conspiracy between [the plaintiff] and Berlin fire and police officials to cause [the defendant] severe emotional distress. "After she obtained summary judgment on the malicious prosecution count of [the plaintiff's] complaint in 2012, [the defendant] amended her counterclaim to include counts for common-law (count four) and statutory (count five) vexatious litigation.... Because all of the counts of [the plaintiff's] complaint had been stricken or had been disposed of by summary judgment in favor of [the defendant], by the time this case came on for trial on February 26, 2014, the only issues before the court were those raised by the [defendant's] five count counterclaim." (Footnotes omitted; citation omitted.) A bench trial was held on February 26 and 27, and March 5, 2014. On July 23, 2014, the court issued a memorandum of decision with respect to liability only. The court held that the defendant had proved by a preponderance of the evidence all of the elements of abuse of process and common-law and statutory vexatious litigation. The court further held, however, that the defendant had failed to prove by a preponderance of the evidence all of the elements of intentional infliction of emotional distress and civil conspiracy. In the July 23, 2014 memorandum, the court deferred making a determination as to the appropriate amount of damages to award the defendant. On November 6, 2014, the court issued a memorandum of decision with respect to damages. The court determined that the defendant had proven $35,000 in emotional distress damages pursuant to her abuse of process (count one) and statutory vexatious litigation (count five) claims. The court trebled the emotional distress damages pursuant to General Statutes § 52-568(2), and awarded the defendant $105,000, as damages for those counts. The court further awarded the defendant the nominal sum of $1 in compensatory damages and $20,000 in reasonable attorney's fees as punitive damages for common-law vexatious litigation. In total, the defendant was awarded $125,001. This appeal followed. Additional facts will be set forth as necessary. I The plaintiff first claims that the court improperly awarded the defendant emotional distress damages for abuse of process. In support of this claim, the plaintiff sets forth two arguments. First, he contends that the award of emotional distress damages was improper because the court improperly found that the malicious prosecution action initiated by the plaintiff was the cause of the defendant's emotional distress. Second, he contends that the court improperly awarded emotional distress damages because the evidence in the record was insufficient to establish all the elements of abuse of process, in particular, that his primary purpose in bringing the malicious prosecution action was improper. Although the plaintiff frames this claim as a challenge to the award of emotional distress damages for abuse of process, his arguments, in essence, challenge the merits of the court's liability determination. We are not persuaded by either argument. A The plaintiff first contends that the award of emotional distress damages for abuse of process was improper as a matter of law because the court improperly found that the malicious prosecution action initiated by the plaintiff was the cause of the defendant's emotional distress. Specifically, the plaintiff argues that there is no evidence in the record to support the court's finding that the plaintiff's action caused the defendant's emotional distress. Rather, he argues, any emotional distress that the defendant experienced was due to other traumatic events that occurred at the time of the action, such as the defendant undergoing open heart surgery. In response, the defendant cites to multiple sections of her testimony at trial in which she described the emotional distress that she experienced as a direct result of the plaintiff's action. We are not persuaded by the plaintiff's argument. The following additional facts, which the trial court reasonably could have found on the basis of the record, are relevant to this argument. At trial, the defendant was questioned about how she reacted to being served with the plaintiff's action, to which she responded: "I was just beside myself. I said I can't believe that he's suing me because he broke the law." Then, in response to a question concerning how the action had affected her emotionally, the defendant stated that: "It changed my life dramatically, drastically.... I don't sleep well at night, I lock all my doors." Similarly, the defendant's husband testified at trial that the action had made her "very, very upset, distraught," and "[i]nconsolable." In its memorandum of decision, the court credited the defendant's testimony that the action had caused her emotional distress. "Damages suffered through an abuse of legal process not malicious must be compensatory, that is compensation for the natural consequences resulting, which would include injury to the feelings because of the humiliation, disgrace or indignity suffered, together with injury to the person and physical suffering...." McGann v. Allen, 105 Conn. 177, 184, 134 A. 810 (1926). Thus, for the court to properly award emotional distress damages for abuse of process, the abuse of process must have caused the defendant's emotional distress. Whether such causation exists is a question of fact. See Burton v. Stamford, 115 Conn.App. 47, 87, 971 A.2d 739, cert. denied, 293 Conn. 912, 978 A.2d 1108 (2009). Our review of the trial court's factual findings is limited to deciding whether such 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 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." (Citation omitted; internal quotation marks omitted.) Verspyck v. Franco, 274 Conn. 105, 113, 874 A.2d 249 (2005). "Because the trial court had an opportunity far superior to ours to evaluate the evidence . every reasonable presumption is made in favor of the correctness of its ruling...." (Internal quotation marks omitted.) Sorrentino v. All Seasons Services, Inc., 245 Conn. 756, 772, 717 A.2d 150 (1998). In the present case, the defendant testified about the impact of the plaintiff's action on her emotional state. She and her husband testified that the action upset her and caused insomnia. The court credited that testimony. Accordingly, we conclude that the record supports the court's finding that the plaintiff's action caused emotional distress to the defendant, and, thus, the court properly awarded emotional distress damages. B Second, the plaintiff contends that the court improperly awarded emotional distress damages for abuse of process because there was insufficient evidence in the record to support the trial court's conclusion that the defendant had met her burden to establish all the elements of abuse of process, particularly, that his primary purpose in bringing the malicious prosecution action was improper. Specifically, the plaintiff contends that the defendant produced no evidence that he had brought the malicious prosecution action in order to intimidate and harass her. We are not persuaded. The following additional facts are necessary to resolve this aspect of the plaintiff's claim. On April 5, 2012, the plaintiff e-mailed his attorney, John Williams, that "[t]he suit worked as far as I'm concerned by keeping the [defendant] at bay the last four years." Although Williams testified that he did not recall the plaintiff stating that the purpose of the malicious prosecution action was to keep the defendant "at bay," he did admit that he thought that "[d]eterrence [was] a legitimate basis for a legal action." In the court's July 23, 2014 memorandum of decision, it found that the plaintiff's action "was brought not for the purpose of obtaining just damages from [the defendant] but to continue the pattern of harassing behavior in which [the plaintiff] had previously engaged vis-à-vis the [defendant's] family and to intimidate [the defendant] from making any further complaints about him to the local authorities." In making this finding, the court found persuasive that the plaintiff "confirmed this [improper] intention on his part in an e-mail to his attorney on April 5, 2012...." Furthermore, the court drew an adverse inference against the plaintiff for not testifying at trial, although he was present, pursuant to General Statutes § 52-216c. We first set forth the applicable standard of review for a challenge to the sufficiency of the evidence. "[W]e 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.... We also must determine whether those facts correctly found are, as a matter of law, sufficient to support the judgment.... [W]e 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.) Bhatia v. Debek, 287 Conn. 397, 404, 948 A.2d 1009 (2008). Keeping this standard of review in mind, we turn to the elements of the tort of abuse of process. "An action for abuse of process lies against any person using a legal process against another in an improper manner or to accomplish a purpose for which it was not designed.... Because the tort arises out of the accomplishment of a result that could not be achieved by the proper and successful use of process, the Restatement Second (1977) of Torts, § 682, emphasizes that the gravamen of the action for abuse of process is the use of a legal process . against another primarily to accomplish a purpose for which it is not designed.... Comment b to § 682 explains that the addition of 'primarily' is meant to exclude liability when the process is used for the purpose for which it is intended, but there is an incidental motive of spite or an ulterior purpose of benefit to the defendant." (Citations omitted; emphasis omitted; internal quotation marks omitted.) Mozzochi v. Beck, 204 Conn. 490, 494, 529 A.2d 171 (1987). The plaintiff argues that the April 5, 2012 e-mail does not prove that he had an improper purpose for bringing the malicious prosecution action. We do not agree. The e-mail stated that the action "worked" by keeping the defendant "at bay." The court interpreted this phrase to mean that the action was successful because it achieved its intended purpose, to intimidate the defendant from making further lawful complaints to the police. The court's interpretation of the e-mail is reasonable, and, thus, we will defer to it. See Bhatia v. Debek, supra, 287 Conn. at 404, 948 A.2d 1009 ("[w]e give great deference to the findings of the trial court because of its function to weigh and interpret the evidence before it" [internal quotation marks omitted] ). If the plaintiff's statement in the e-mail about keeping the defendant "at bay" was meant in some other way, he had the opportunity to testify at trial as to what he actually meant by this statement. The plaintiff also could have offered testimony establishing that he had brought the malicious prosecution action for a legitimate purpose. The plaintiff chose not to avail himself of this opportunity and the court exercised its discretion, which is not challenged on appeal, by drawing an adverse inference against the plaintiff. See General Statutes § 52-216c. In light of this adverse inference, the April 5, 2012 e-mail supports the court's factual finding that the plaintiff's primary purpose in bringing the malicious prosecution action was improper. Accordingly, we conclude that there was sufficient evidence in the record to support the court's determination that all the elements of abuse of process were met, and, thus, the court properly awarded emotional distress damages. II The plaintiff next claims that the court improperly awarded treble damages for abuse of process. Specifically, the plaintiff argues that the court lawfully could treble damages only for statutory vexatious litigation pursuant to § 52-568(2), but that the court awarded them for abuse of process. The defendant responds that, viewing the judgment as a whole, it is clear that the court properly awarded treble damages for statutory vexatious litigation, and, that to the extent that the court entered treble damages for abuse of process in the concluding paragraph of the judgment, this was merely a clerical error that can be corrected at any time. We agree with the defendant that, in light of the judgment as a whole, the award of treble damages was proper. The following additional procedural history is relevant to this claim. The court issued a memorandum of decision with respect to liability only on July 23, 2014. The court, however, deferred making a determination as to the appropriate amount of damages to award the defendant. On November 6, 2014, the court issued a memorandum of decision with respect to damages (November 6, 2014 judgment). In the November 6, 2014 judgment, the court discussed the amount of damages awarded under each count separately. The court determined that the defendant was entitled to $35,000 for emotional distress for abuse of process. The court then ordered that "[b]ased on [its] finding for [the defendant] on count five of her counterclaim [for statutory vexatious litigation], the damages awarded on count one for emotional distress are trebled to $ 105,000 pursuant to General Statutes § 52-568(2)." In the concluding paragraph, containing a tally of all the damages awarded, however, the court indicated an award for compensatory damages in the amount of $105,000 under count one. There was no amount of damages entered under count five in the concluding paragraph. "The law of judgments . is well settled. The construction of a judgment is a question of law with the determinative factor being the intent of the court as gathered from all parts of the judgment.... As a general rule, the court should construe [a] judgment as it would construe any document or written contract in evidence before it.... Effect must be given to that which is clearly implied as well as to that which is expressed." (Internal quotation marks omitted.) Moasser v. Becker, 107 Conn.App. 130, 135, 946 A.2d 230 (2008). If "[f]aced with . an ambiguity, we construe the court's decision to support, rather than to undermine, its judgment." Culver v. Culver, 127 Conn.App. 236, 250-51, 17 A.3d 1048, cert. denied, 301 Conn. 929, 23 A.3d 724 (2011). "The judgment should admit of a consistent construction as a whole.... To determine the meaning of a judgment, we must ascertain the intent of the court from the language used and, if necessary, the surrounding circumstances.... We review such questions of law de novo." (International quotation marks omitted.) Racsko v. Racsko, 102 Conn.App. 90, 92, 924 A.2d 878 (2007). Additionally, "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." (Citations omitted; internal quotation marks omitted.) Brett Stone Painting & Maintenance, LLC v. New England Bank, 143 Conn.App. 671, 681, 72 A.3d 1121 (2013). For a court to properly award treble damages under a statute authorizing such damages, the fact finder must "[find] for the [party requesting the treble damages] under the statutory cause of action authorizing these extraordinary damages, and not for any other alleged cause of action." DeMilo v. West Haven, 189 Conn. 671, 676, 458 A.2d 362 (1983). Thus, in the present case, the award of treble damages was proper only if it was awarded under count five for statutory vexatious litigation pursuant to § 52-568(2). Our review of the November 6, 2014 judgment leads us to conclude that the only reasonable interpretation of that judgment is that the treble damages were awarded for statutory vexatious litigation, not for abuse of process. The court considered damages under each count separately. After discussing the damages that the defendant was entitled to for abuse of process, the court, in a separate paragraph, awarded damages for statutory vexatious litigation. The court specifically stated that it was trebling the emotional distress damages "[b]ased on [its] finding for [the defendant] on count five of her counterclaim . pursuant to General Statutes § 52-568(2)." Although the concluding paragraph of the judgment, if viewed in isolation, would suggest that the treble damages were awarded for abuse of process; see footnote 8 of this opinion; the court's statement that it was awarding emotional distress damages pursuant to the statutory vexatious litigation claim leads us to conclude that the judgment as a whole should be interpreted as an award of treble damages for statutory vexatious litigation, rather than for abuse of process. Accordingly, we conclude that the award of treble damages was proper. III Finally, the plaintiff claims that the court improperly held that, with regard to statutory and common-law vexatious litigation, the plaintiff failed to prove his affirmative defense that he relied on the advice of counsel. Specifically, he argues that the court improperly found that he did not give a full and fair statement of all the facts within his knowledge to his attorney, a necessary element of the defense. The defendant responds that the record supports the court's factual finding, especially in light of the adverse inference that the court reasonably drew against the plaintiff, pursuant to § 52-216c, because he did not testify at trial. We agree with the defendant. The following additional facts are necessary for our analysis of this claim. In the plaintiff's second revised complaint, the plaintiff alleged that "the defendant falsely and maliciously accused the plaintiff of creating a public disturbance in the vicinity of his . dwelling by having Christmas lights on his property." On the basis of this allegedly false accusation, the plaintiff claimed that the defendant's conduct constituted malicious prosecution, slander, intentional infliction of emotional distress, and negligent infliction of emotional distress. After the plaintiff's claims were disposed of and only the defendant's counterclaim remained to be tried, in his answer to the amended counterclaim, the plaintiff asserted the special defense that he relied on the advice of counsel. The plaintiff, although present throughout the trial, did not testify at trial. In lieu of testifying, a portion of the plaintiff's deposition transcript was admitted without objection as a full exhibit. In the portions of the deposition transcript admitted into evidence, the plaintiff did not discuss what he told his counsel, Williams, prior to Williams filing the complaint against the defendant for malicious prosecution, nor did he discuss what advice Williams gave and whether he relied on that advice. On the basis of the plaintiff's failure to testify at trial, the court drew an adverse inference against the plaintiff pursuant to § 52-216c. The plaintiff, however, did offer at trial the testimony of Williams. Williams testified that, when he wrote the complaint, he was under the impression that the blue lights, which were the basis for the infraction ticket for creating a public disturbance, were Christmas lights: "If I thought they were strobe lights, I wouldn't have characterized them as Christmas lights." Williams' belief that the lights in question were Christmas lights was based solely on what the plaintiff had told him. Williams could not recall whether he had viewed the police report from January 3, 2008, which was admitted into evidence at trial and stated that the lights in question "looked to be a blue LED strobe light similar to lights used in [vehicles] of volunteer firemen." Williams also could not recall whether, prior to filing the complaint, he had been aware of the fact that on December 30, 2007, four days prior to the night in question, there had been a complaint about the lights and a police officer had warned the plaintiff to turn the lights off at night, describing them as "a blue strobe light . facing and flashing towards the . [defendant's] bedroom." Williams also testified that he did not speak to anyone besides the plaintiff in preparing the complaint. He never spoke with the defendant or any of the police officers who were present when the plaintiff was issued the infraction ticket. He relied primarily on the plaintiff's version of events, although he did review some documents, including the infraction ticket. In its July 23, 2014 memorandum of decision, the court held that the plaintiff "failed to prove by a preponderance of the evidence the elements of his defense that he acted on the advice of counsel. In particular, he has failed to prove that the advice given him by counsel was given 'after a full and fair statement of all the facts within [the plaintiff's] knowledge, or which [the plaintiff] was charged with knowing.' " The court did not expand upon what evidence it relied upon in determining that the plaintiff did not give a full and fair statement of the facts to Williams, and the plaintiff did not seek an articulation on this finding. "Advice of counsel is a complete defense to an action of . [malicious prosecution or] vexatious suit when it is shown that the defendant . instituted his civil action relying in good faith on such advice, given after a full and fair statement of all facts within his knowledge, or which he was charged with knowing.... The defendant has the burden of proof with respect to this special defense.... Whether there was a full and fair disclosure of material facts as required by the advice of counsel defense is a question of fact . and [a]ppellate review of findings of fact is limited to deciding whether such findings were clearly erroneous." (Citations omitted; internal quotation marks omitted.) Verspyck v. Franco, supra, 274 Conn. at 112-13, 874 A.2d 249. Thus, we look to see whether there is any evidence in the record to support the court's factual finding. Id., at 113, 874 A.2d 249. "In a case tried before a court, the trial judge is the sole arbiter of the credibility of the witnesses and the weight to be given specific testimony.... It is within the province of the trial court, as the fact finder, to weigh the evidence presented and determine the credibility and effect to be given the evidence." (Internal quotation marks omitted.) Schaeppi v. Unifund CCR Partners, 161 Conn.App. 33, 43, 127 A.3d 304, cert. denied, 320 Conn. 909, 128 A.3d 953 (2015). Although a plaintiff is not required to testify in order to prove the defense of reliance on advice of counsel; see id., at 44, 127 A.3d 304 ("[no] specific evidence from designated witnesses must be introduced in order to satisfy the element of good faith reliance"); a plaintiff must prove both good faith reliance on counsel's advice and that he or she gave counsel a full and fair statement of the facts. Id., at 42, 127 A.3d 304. Furthermore, an adverse inference can be drawn against a plaintiff if he or she is present at trial but does not testify. See General Statutes § 52-216c. In determining whether a plaintiff gave a full and fair statement of the facts within his or her knowledge to counsel, "reliance on whether the omitted information would have had any impact on counsel's decision to bring the allegedly vexatious action . is irrelevant . because, as a matter of law, showing an impact on an attorney's ultimate course of action is not an element of the defense of reliance on counsel." (Citations omitted.) Verspyck v. Franco, supra, 274 Conn. at 118, 874 A.2d 249. The ultimate issue is whether the plaintiff failed to provide his or her counsel with a fact within his or her knowledge that was material to the action. See id., at 117-18 n. 13, 874 A.2d 249. In other words, a client should not be permitted to rely upon the defense of advice of counsel if the client did not disclose all of the material facts related to a potential claim, because the lawyer cannot render full and accurate legal advice regarding whether there is a good faith basis to bring the claim in the absence of knowledge of all material facts. In such instances, a client's reliance on the advice of counsel is unreasonable regardless of whether the material facts would have altered counsel's assessment of the validity of the claim. Accordingly, in the present case, the issue is whether the record supports the court's factual finding that the plaintiff failed to provide Williams with some fact within his knowledge that was material to the malicious prosecution action. The court did not specify the subordinate facts underlying its factual finding that the plaintiff failed to make a full and fair disclosure of material facts to his counsel. The burden, however, is on the appellant to seek an articulation, which the plaintiff failed to do. See Commission on Human Rights & Opportunities ex rel. Arnold v. Forvil, 302 Conn. 263, 284, 286, 25 A.3d 632 (2011) ("[W]e repeatedly have stated that it is the appellant's responsibility to provide an adequate record for review.... Noting . that the defendants failed to supplement this limited record by filing a motion for articulation, we defer to the trial court's judgment." [Internal quotation marks omitted.] ). The record, nonetheless, supports the court's factual finding. On the basis of the evidence in the record and the reasonable inferences drawn therefrom, the court reasonably could have found that the lights in question were LED strobe lights and that the plaintiff had not informed Williams of this fact. This omitted fact concerned the subject matter at the very heart of the plaintiff's malicious prosecution action, namely, whether the defendant falsely accused the plaintiff of creating a public disturbance. Whether the lights in question were Christmas lights or LED strobe lights would have affected significantly a court's determination of whether the defendant falsely accused the plaintiff of making a public disturbance. Thus, the court reasonably could have concluded that this omitted fact was material to the malicious prosecution action. The evidence in the record supports the court's factual finding that the plaintiff did not make a full and fair statement of all facts within his knowledge or which he was charged with knowing when he related to Williams that the defendant falsely and maliciously accused him of creating a public disturbance. Accordingly, we conclude that the court properly held that the plaintiff failed to prove his special defense of reliance on the advice of counsel. The judgment is affirmed. In this opinion the other judges concurred. General Statutes § 52-568 provides in relevant part: "Any person who commences and prosecutes any civil action or complaint against another . (2) without probable cause, and with a malicious intent unjustly to vex and trouble such other person, shall pay him treble damages." We note that the court's finding that the defendant suffered emotional distress entitled her to damages for abuse of process and statutory and common-law vexatious litigation, but because the defendant could be compensated only once for the same injury, she was awarded emotional distress damages only once. See Rowe v. Goulet, 89 Conn.App. 836, 849, 875 A.2d 564 (2005) ("The rule precluding double recovery is a simple and time-honored maxim that [a] plaintiff may be compensated only once for his just damages for the same injury.... Duplicated recoveries, furthermore, must not be awarded for the same underlying loss under different legal theories.... Although a plaintiff is entitled to allege respective theories of liability in separate claims, he or she is not entitled to recover twice for harm growing out of the same transaction, occurrence or event." [Citations omitted; internal quotation marks omitted.] ). Thus, the defendant could not be awarded $35,000 in emotional distress damages for abuse of process and also $105,000 in treble damages for statutory vexatious litigation, totaling $140,000, because this would amount to double recovery. By awarding the defendant only $105,001 in compensatory damages, the court properly limited the defendant to one instance of recovery for her emotional distress. In addition to these arguments, the plaintiff contends that court improperly awarded emotional distress damages for abuse of process because the defendant did not plead emotional distress damages in her counterclaim under count one for abuse of process. In count one of the amended counterclaim, the defendant alleged that she "suffered damages." Then, under her claim for relief, she requested "[c]ompensatory damages," which include emotional distress damages. See Commission on Human Rights & Opportunities ex rel. Arnold v. Forvil, 302 Conn. 263, 286, 25 A.3d 632 (2011) (compensatory damages may include award for emotional distress). Although the counterclaim could have alleged the nature of the relief sought more precisely, a party may plead adequately emotional distress damages as long as the pleading "fairly [apprises] the adverse party of the state of facts which it is intended to prove." Practice Book § 10-2 ; see Buckman v. People Express, Inc., 205 Conn. 166, 173-74, 530 A.2d 596 (1987). Additionally, at trial, the plaintiff did not object to the introduction of evidence concerning the defendant's mental and emotional distress caused by the plaintiff's filing of the malicious prosecution action. Moreover, the evidence presented at trial was sufficient to establish this claim. See Buckman v. People Express, Inc., supra, at 173-74, 530 A.2d 596. Under these circumstances and at this late date, the plaintiff is not entitled to attack the sufficiency of the counterclaim in this regard. The plaintiff also argues that, as a matter of law, the trebling of the emotional distress damages was improper because claims for statutory vexatious litigation may not be asserted in the same action as claims for common-law vexatious litigation. See Whipple v. Fuller, 11 Conn. 582, 586 (1836) ("these counts [for common-law and statutory vexatious litigation] could not, by law, be joined in one declaration"). Although the applicability of Whipple is questionable, because that case involved a general verdict and was decided prior to the adoption of statutes governing the joinder of different causes of action, we need not reach this issue because the plaintiff waived his right to raise it. The plaintiff's argument challenges the legal sufficiency of the complaint, which is properly raised in a motion to strike. See Practice Book § 10-39(a)(2). The plaintiff, however, did not file a motion to strike; rather, he filed an answer with a special defense to the amended counterclaim. Accordingly, he waived his right to raise this issue. See Practice Book § 10-6 and 10-7. We note that in his discussion on causation, the plaintiff sets forth one conclusory sentence that states: "[i]n the underlying proceeding, neither the testimony [of the defendant] nor any other evidentiary showing was made to establish the basis for [$35,000] for emotional distress." To the extent that the plaintiff's argument includes a challenge to the amount of the emotional distress damages as excessive or unsupported by the evidence, we determine that such a claim is inadequately briefed, and, thus, we decline to reach it. See Clelford v. Bristol, 150 Conn.App. 229, 233, 90 A.3d 998 (2014). Even if we were to reach this claim, we determine that there is sufficient evidence in the record from which the court could have found that $35,000 in noneconomic damages was fair, just, and reasonable for the defendant's insomnia and emotional upset. We note that although the court did not use the phrase "primary purpose," it did find that the plaintiff's purpose in bringing the action was to harass and intimidate. Further, the court found that the plaintiff did not bring the action to obtain damages. By finding that the plaintiff did not bring the action for a proper purpose-to obtain damages-the court, in essence, found that his primary purpose for bringing the action was improper. Thus, we infer from the court's findings that it found that the plaintiff's "primary purpose" in bringing the action was to harass and intimidate. General Statutes § 52-216c provides in relevant part: "[C]ounsel for any party to the action shall be entitled to argue to the trier of fact during closing arguments . that [it] should draw an adverse inference from another party's failure to call a witness who has been proven to be available to testify." Not only does the plaintiff not challenge on appeal the adverse inference drawn against him by the trial court, but he also admitted at oral argument to this court that it was within the trial court's discretion to draw such an inference and that he was not challenging the trial court's exercise of discretion to do so. Furthermore, because the plaintiff does not challenge the adverse inference drawn against him, we do not address whether the trial court properly applied § 52-216c in this case in which, although the plaintiff did not testify at trial, a portion of his deposition transcript was admitted into evidence as a full exhibit in lieu of his testimony. The concluding paragraph in the November 6, 2014 judgment states: "Judgment enters for [the defendant] on her counterclaim as follows: "Count one: Compensatory damages $105,000 "Count four: Compensatory damages $1 "Punitive damages $20,000 "Total damages $125,001" We recognize that the defendant filed a motion for clarification and asked the court to clarify the form of the judgment to reflect that the trebling of the emotional distress damages was pursuant to § 52-568(2) for statutory vexatious litigation. The court denied the motion without comment. To the extent that the concluding paragraph of the judgment, if viewed in isolation, contains an error, we hold that it is merely a clerical error, which the trial court may correct at any time. "Our Supreme Court has explained that [t]here is a distinction between corrections [of judgments] that change the substance of a court's disposition and corrections that merely remedy clerical errors.... [T]he distinction [is] that mere clerical errors may be corrected at any time even after the end of the term.... A clerical error does not challenge the court's ability to reach the conclusion that it did reach, but involves the failure to preserve or correctly represent in the record the actual decision of the court.... In other words, it is clerical error if the judgment as recorded fails to agree with the judgment in fact rendered...." (Internal quotation marks omitted.) Milazzo v. Schwartz, 88 Conn.App. 592, 596, 871 A.2d 1040 (2005). In the present case, any error in the conclusion of the judgment is merely an imprecise representation of the court's actual decision. Such an error is a matter of form, not substance, and, thus, is a clerical error. See Maguire v. Maguire, 222 Conn. 32, 39-40, 608 A.2d 79 (1992). The plaintiff challenges only the court's finding that he did not provide Williams with a full and fair statement of the facts. The court's wording, however, could be interpreted to mean that it found that the plaintiff did not meet any of the elements of his special defense, which include good faith reliance on counsel's advice and a full and fair statement of the facts to counsel. See Vandersluis v. Weil, 176 Conn. 353, 361, 407 A.2d 982 (1978). Neither party has briefed whether the plaintiff actually relied on counsel's advice. Because we conclude that the court's finding that the plaintiff did not give counsel a fair and full statement of the facts within his knowledge was not clearly erroneous, we need not reach this issue.

12489411

Carlton JOLLEY v. Captain VINTON et al.

Jolley v. Vinton

2017-01-06

AC 38826

755

755

157 A.3d 755

157

West's Atlantic Reporter, Third Series

Connecticut Appellate Court

Connecticut

2021-08-27T20:57:14.014091+00:00

Fastcase

Carlton JOLLEY v. Captain VINTON et al.

Carlton JOLLEY v. Captain VINTON et al. AC 38826 Appellate Court of Connecticut. Submitted on briefs January 6, 2017 Officially released March 14, 2017 Carlton Jolley, self-represented, the appellant (plaintiff), filed a brief. George Jepsen, attorney general, and Neil Parille, assistant attorney general, filed a brief for the appellees (defendants). Alvord, Keller and Beach, Js.

180

1148

PER CURIAM. The plaintiff, Carlton Jolley, appeals to this court claiming that the trial court improperly granted the motion to dismiss filed by the defendants, Captain Brian Vinton and Attorney General George Jepsen, based on statutory and sovereign immunity. The defendants claim that the court correctly granted the motion to dismiss with respect to Jepsen, but concede that the court should not have granted the motion to dismiss with respect to Vinton. After a careful review of the briefs to this court and the record, and in light of the defendants' concession, we agree with the defendants. The judgment of dismissal as to Vinton is reversed and the case is remanded for further proceedings according to law. The judgment is affirmed in all other respects.

12489803

Michael RUFF v. YALE-NEW HAVEN HOSPITAL, INC., et al.

Ruff v. Yale-New Haven Hosp., Inc.

2017-05-02

AC 37749

552

562

161 A.3d 552

161

West's Atlantic Reporter, Third Series

Connecticut Appellate Court

Connecticut

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

Fastcase

DiPentima, C.J., and Keller and West, Js.

Michael RUFF v. YALE-NEW HAVEN HOSPITAL, INC., et al.

Michael RUFF v. YALE-NEW HAVEN HOSPITAL, INC., et al. AC 37749 Appellate Court of Connecticut. Argued October 25, 2016 Officially released May 2, 2017 John Kardaras, for the appellant (plaintiff). Kim E. Rinehart, with whom, on the brief, was Erika L. Amarante, for the appellee (named defendant). DiPentima, C.J., and Keller and West, Js.

5531

34614

WEST, J. In this medical malpractice case, the plaintiff, Michael Ruff, appeals from the trial court's granting of the motion by the defendant Yale-New Haven Hospital, Inc., for a directed verdict and the judgment rendered in favor of the defendant. On appeal, the plaintiff claims, inter alia, that the court erred in: (1) precluding the expert testimony of his sole standard of care witness, Donna Maselli, a registered nurse; and (2) granting the defendant's motion for a directed verdict based on its preclusion of Maselli's testimony. We disagree and affirm the judgment of the trial court. The record reveals the following facts and procedural history. The plaintiff was a patient at the defendant hospital for a total right knee replacement surgery on February 4, 2010, performed by Dr. Richard Pelker. In advance of the surgery, and after the plaintiff was given anesthesia, the defendant Dianne Meltzer, a registered nurse and employee of the defendant hospital, inserted a Foley catheter into the plaintiff's bladder to drain his urine during and after the surgery. Pelker then performed the knee replacement surgery, and the catheter remained inserted in the plaintiff's bladder. Meltzer testified in her deposition that she did not meet any resistance when inserting the catheter, and that it was a "successful insertion" because the plaintiff's urine began draining immediately. Meltzer noted that the urine was "light red" with blood, which she testified could indicate that there was some irritation in the urethra from the procedure or that the patient was on medication that could cause bleeding. On February 8, 2010, the plaintiff was discharged from the hospital to Montowese Rehabilitation Facility in North Haven (Montowese) for rehabilitation of his knee. While there, he was having difficulty urinating and saw blood in his urine. The staff at Montowese changed his catheter and later sent him to the defendant hospital, where hospital staff "inserted about . three or four catheters." He returned to Montowese, and around February 16, 2010, his catheter was removed. By February 18, 2010, the plaintiff was not having trouble urinating and did not have blood in his urine. On March 14, 2010, however, the plaintiff was sent to the emergency room of the Hospital of Saint Raphael because he was unable to urinate. The emergency room nursing staff was unable to place a catheter, so the on-call urologist, Dr. Joseph Camilleri, treated him. Because of a stricture in the plaintiff's urethra, Camilleri had to dilate the plaintiff's urethra in order to insert a catheter to drain his urine. This procedure did not result in any blood in the plaintiff's urine. Camilleri thereafter became the plaintiff's urologist and was still his treating urologist at the time of trial. Before becoming a patient of Camilleri's, the plaintiff had been treated by other urologists for a long history of urological problems, including the inability to urinate, erectile dysfunction, and blood in his urine. The plaintiff testified that he had been catheterized "many times" during different surgical procedures prior to his knee replacement surgery and, after one such surgical procedure, he experienced difficulty urinating for "two to three months" and had to self-catheterize at home. In the 1980s, he was admitted to the hospital many times for the inability to urinate, was treated at a urology clinic, and was under the ongoing care of a urologist. In the 1990s, he was treated by his urologist for an enlarged prostate. In 1998, he was treated by his urologist for erectile dysfunction. In 2003, he was treated by his urologist because he was having difficulty urinating and also was experiencing "urine running down [his] leg." In 2004, he had a heart procedure, during which a Foley catheter was inserted into his bladder, which led to him having "dark, red urine with blood clots." At the time of his knee surgery, on February 4, 2010, the defendant was taking "twenty-five or so medications a day" for his various health conditions, including blood thinners and medication to treat his enlarged prostate. The plaintiff commenced this medical malpractice action on January 10, 2011, claiming that Meltzer negligently had inserted the Foley catheter on February 4, 2010, puncturing his prostate. He alleged that the defendant "through its agents, servant, employee and/or independent contractors under their control in treating and caring for the plaintiff . failed to exercise a degree of care, skill and diligence ordinarily exercised by hospitals engaged in the specialty of treating patients in the community with the need for surgery" and put forth a number of further allegations in support of that contention. He sought damages on the basis of his allegation that he sustained injuries from the catheter insertion and had to undergo additional testing, and medical and surgical procedures; had to take additional medication; had "extensive scarring, pain and suffering"; had lost the ability to ejaculate; had incurred additional medical expenses; and "[had] been deprived of his ability to carry out life's normal activities, recreation, social activities, and sexual activities." Prior to trial, the plaintiff disclosed to the defendant that registered nurse Maselli would testify as his sole standard of care expert. The defendant deposed Maselli on December 13, 2013, and she testified that since 1995, she had worked as a nurse consultant for the Department of Public Health (department). Her responsibilities in this position consisted of developing statewide health programs, writing guidelines and protocols for statewide programs, doing trainings and on-site visits, contract management, and grant writing and monitoring. She further testified that through her work with the department, she did not treat patients. She conceded that none of her work at the department involved clinical care nursing, which she had not done since 1995, when she was a nursing supervisor at a convalescent home. She also testified in her deposition that in addition to her job with the department, she was the chief executive officer, and sole employee, of Apex Medical Legal Consulting (Apex). Through her work at Apex, she reviewed medical records, and provided summaries, translation, and interpretation of those records. She did not testify, however, that she provided nursing services through her work with Apex. Maselli further testified that she also worked as an independent private duty nurse, and estimated that she worked an average of twenty hours per week in that capacity. She testified that she usually provided these services for family and friends and often did not charge for her services. In this capacity, she did not "do medications or treatments, the hospital staff [did] that" but provided "basic nursing care, fluids, ambulating, assessing, [and] deep breathing." She did not testify, however, that she provided any of these services under the direction of a licensed physician or advanced practice registered nurse. She also testified that she did not routinely place Foley catheters in her work, and, in fact, the last time she had placed a Foley catheter was in the 1980s, when she last worked in a hospital. Prior to the start of trial, the defendant filed a motion in limine to preclude Maselli from testifying at trial on the grounds that she was not qualified as a "similar health care provider" to Meltzer, a clinical care nurse, pursuant to General Statutes § 52-184c (b) and, therefore, she was "not qualified to offer opinions related to the standard of care applicable to a registered nurse inserting a Foley catheter on February 4, 2010." In support of this contention, the defendant argued that Maselli's testimony should be precluded because she was a nonspecialist, and, therefore, was subject to the five year provision of § 52-184c (b), which she could not satisfy because she lacked "active involvement in the practice or teaching of [nursing] within the five year period before" the plaintiff's knee surgery. The defendant further argued that Maselli did not qualify as an expert witness under the catch-all provision of § 52-184c (d) because the same five year rule applied. The court orally granted the defendant's motion on February 20, 2015, after the trial had started, and precluded Maselli's testimony pursuant to § 52-184c (b) and (d). In so doing, the court cited Maselli's deposition testimony regarding her employment history and stated: "The court concludes that pursuant to [§ 52-184c (b) (2) ] Maselli lacks active involvement in the practice or teaching of nursing within the five year period before February [4], 2010." It went on to state: "Since the court has concluded that Maselli is not a similar health care provider under subsection (b), the court must determine whether under [subsection] (d) she possesses sufficient training, experience and knowledge as a result of practice or teaching in a related field of nursing so as to be able to provide such expert testimony as to the prevailing standard of care in a given field of nursing. Such training, experience or knowledge shall be as a result of the active involvement in the practice or teaching of nursing within the five year period before the incident giving rise to the claim. Again, the court concludes based upon a careful review of Maselli's deposition testimony regarding her qualifications, that she lacks the required active involvement in the [practice] or teaching of nursing within the five year period before the incident giving rise to the claim. Accordingly, her testimony is also precluded under § 52-184c (d)." Additionally, the court issued a written memorandum of decision on February 24, 2015, and reiterated its granting of the defendant's motion to preclude Maselli's testimony. In so doing, the court stated: "In her deposition testimony, Maselli conceded that none of her work at [the department] involves clinical nursing care. The last time Maselli's job involved clinical patient care was in 1995, when she was a nursing supervisor at a convalescent home. In addition, Maselli has not worked in a hospital setting since the 1980s. Maselli testified that the last time she placed a Foley catheter was 'when I was working in the hospital, probably in-in-probably in the '80s, at some point.' . Maselli also testified that she provides independent private duty nursing services to family and friends, but she admitted that this work does not include the insertion of Foley catheters. Although there was some testimony from Maselli that she works private duty twenty hours per week, she later testified that her hours varied and that she worked twenty-four hours in the month of October, 2014. In addition, there is no indication that her private duty work included the insertion of Foley catheters." After the court precluded Maselli's testimony, the plaintiff rested. The defendant moved for a directed verdict "based on the [plaintiff's] inability to meet any of the elements of a medical malpractice case." The court granted the motion and directed a verdict in favor of the defendant, stating: "Based on the court's ruling . with respect to . Maselli as the standard of care expert which is . a required element and precluding her testimony, the court will grant the directed verdict." This appeal followed. I The plaintiff first claims that the court erred in precluding Maselli's testimony. Specifically, the plaintiff claims that Maselli's testimony satisfied the statutory criteria for expert testimony regarding the standard of care in a medical malpractice action, and, therefore, she should have been allowed to testify as an expert witness. In support of this contention, he argues that "a registered nurse working in a Hospital operating room is no different [than] a registered nurse doing home care or working for [the department], as Nurse Maselli has done for twenty (20) years." He further argues that "the act of catheterization is within the scope of duties of a registered nurse, [and] all that should be required of expert testimony as to the proper insertion of a catheter is that they are a licensed, registered nurse, that they have practiced nursing within the previous five (5) years." The plaintiff argues that by deciding the way it did, the court, in effect, has "created a subclassification of nurses not contemplated by the legislature [or] the appropriate licensure authorities." In turn, the defendant argues that the court's preclusion of Maselli's testimony was proper because she was not a similar health care provider pursuant to § 52-184c. We agree with the defendant. We first set forth our standard of review and the applicable legal principles, relevant to this claim. "The decision to preclude a party from introducing expert testimony is within the discretion of the trial court. . On appeal, that decision is subject only to the test of abuse of discretion." (Citation omitted; internal quotation marks omitted.) Wright v. Hutt , 50 Conn.App. 439, 451, 718 A.2d 969, cert. denied, 247 Conn. 939, 723 A.2d 320 (1998). "[T]he testimony of an expert witness is necessary to establish both the standard of proper professional skill or care . and that the defendant failed to conform to that standard of care." (Citation omitted; internal quotation marks omitted.) Campbell v. Palmer , 20 Conn.App. 544, 548, 568 A.2d 1064 (1990). "In order to render an expert opinion, the witness must be qualified to do so and there must be a factual basis for the opinion." (Internal quotation marks omitted.) Peatie v. Wal-Mart Stores, Inc. , 112 Conn.App. 8, 20, 961 A.2d 1016 (2009). "The standard of care required to be established and the qualifications of expert witnesses who may testify to establish that standard, in claims for damages alleged to have been caused by the negligence of a health care provider, are con-trolled by . § 52-184c. Whether a witness is qualified to testify as an expert is a matter that rests in the sound discretion of the trial court. . We have consistently held that the trial court's exercise of that discretion will not be disturbed unless it has been abused or the error is clear and involves a misconception of the law." (Citation omitted; internal quotation marks omitted.) Rodriguez v. Petrilli , 34 Conn.App. 871, 875-76, 644 A.2d 381 (1994). "[T]he test for admissibility of expert testimony involves, inter alia, a determination as to whether the witness has a special skill or knowledge directly applicable to a matter in issue ." (Emphasis in original; internal quotation marks omitted.) Sherman v. BristolHospital, Inc. , 79 Conn.App. 78, 85, 828 A.2d 1260 (2003) ; see also Hayes v. Decker , 263 Conn. 677, 683, 822 A.2d 228 (2003) ("[e]xpert testimony should be admitted when: [1] the witness has a special skill or knowledge directly applicable to a matter in issue, [2] that skill or knowledge is not common to the average person, and [3] the testimony would be helpful to the court or jury in considering the issues" [internal quotation marks omitted] ); Siladi v. McNamara , 164 Conn. 510, 513, 325 A.2d 277 (1973) ( "Generally, expert testimony may be admitted if the witness has a special skill or knowledge, beyond the ken of the average juror, that, as properly applied, would be helpful to the determination of an ultimate issue. . The special skill or knowledge, however, must be directly applicable to the matter specifically in issue." [Citation omitted.] ). Additionally, in medical malpractice cases specifically, "[a] trial court evaluating a prospective expert's qualifications to testify in a medical malpractice action must either decide that the expert is either a similar health care provider as defined by subsections (b) or (c) of § 52-184c, or make a discretionary determination [pursuant to § 52-184c (d) ] that, to the satisfaction of the court, [the expert] possesses sufficient training, experience and knowledge as a result of the practice or teaching in a related field of medicine, so as to be able to provide such expert testimony as to the prevailing professional standard of care in a given field of medicine. Such training, experience or knowledge shall be as a result of the active involvement in the practice or teaching of medicine within the five-year period before the incident giving rise to the claim." (Emphasis in original; internal quotation marks omitted.) Bennett v. New Milford Hospital, Inc. , 300 Conn. 1, 15, 12 A.3d 865 (2011). " Section 52-184c sets forth four distinct, yet closely intertwined subsections. Section 52-184c (a) requires the plaintiff to prove, by a preponderance of the evidence, that the defendant breached the 'prevailing professional standard of care for that health care provider. .' That subsection then defines the 'prevailing professional standard of care for a given health care provider [as] that level of care, skill and treatment which, in light of all relevant surrounding circumstances, is recognized as acceptable and appropriate by reasonably prudent similar health care providers .' " (Emphasis in original; footnote omitted.) Grondin v. Curi , 262 Conn. 637, 650, 817 A.2d 61 (2003). "To testify as an expert, the health care provider must qualify as a similar health care provider under subsection (b) or (c), or, if he is not a similar health care provider, must satisfy the court under subsection (d) that he has sufficient training, practice, and knowledge including practice or teaching within the five-year period to qualify." (Internal quotation marks omitted.) DiLieto v. County Obstetrics & Gynecology Group, P.C. , 265 Conn. 79, 95, 828 A.2d 31 (2003). The statute defines "similar health care provider" in two ways, depending on whether the defendant health care provider is a specialist or a nonspecialist. For specialists, a similar health care provider is defined by § 52-184c (c) as someone who "(1) is trained and experienced in the same specialty; and (2) is certified by the appropriate American board in the same specialty." For nonspecialists, a similar health care provider is defined by § 52-184c (b) as someone who "(1) is licensed by the appropriate regulatory agency of this state . and (2) is trained and experienced in the same discipline or school of practice and such training and experience shall be as a result of the active involvement in the practice or teaching of medicine within the five-year period before the incident giving rise to the claim." Section 52-184c (d) provides a "catch all" provision for experts who do not qualify as a "similar health care provider" under subsection (b) or (c). Under subsection (d) (2), a health care provider may testify if she "possesses sufficient training, experience and knowledge as a result of practice or teaching in a related field of medicine, so as to be able to provide such expert testimony as to the prevailing standard of care in a given field of medicine. Such training, experience or knowledge shall be as a result of the active involvement in the practice or teaching of medicine within the five-year period before the incident giving rise to the claim. " (Emphasis added.) General Statutes § 52-184c (d) (2). The court here analyzed Maselli's qualifications to testify under the nonspecialist standard pursuant to § 52-184c (b). Absent evidence of specialized training, registered nurses are considered nonspecialists under § 52-184c (b). Bell v. Hospital of Saint Raphael , 133 Conn.App. 548, 560, 36 A.3d 297 (2012) (registered nurse with bachelor of science in nursing treated as nonspecialist under § 52-184c [b]; because opinion letter did not represent that the nurse "had been trained and experienced in any specialty or had been certified by an American board as a specialist," she did not qualify as specialist pursuant to § 52-184c [c] ). Here, there is no evidence of, nor does the plaintiff argue, that Maselli should be considered a specialist for purposes of § 52-184c (c), nor is there any evidence that Meltzer was considered a specialist. Therefore, for purposes of being a "similar health care provider" to Meltzer, Maselli is considered a nonspecialist, and her qualifications to testify are analyzed under § 52-184c (b). There is no dispute that Maselli satisfies the first prong of the nonspecialist test, that she is "licensed by the appropriate regulatory agency of this state." The issue, therefore, is whether she was "trained and experienced in the same discipline or school of practice" as Meltzer, and whether such training and experience was "as a result of the active involvement in the practice or teaching of medicine within the five-year period before the incident giving rise to the claim." General Statutes § 52-184c (b) (2). The court determined that Maselli was not a similar health care provider pursuant to § 52-184c (b) (2) not because she was not trained or experienced in the same discipline or school of practice, but because she lacked "active involvement in the practice or teaching or [nursing] within the five-year period before [February 4, 2010]." In so doing, it highlighted the facts from Maselli's deposition testimony that she was not involved with "clinical care nursing," had not provided "clinical patient care" since 1995, had not worked in a hospital since the 1980s, and had not placed a Foley catheter since her time working in the hospital. The court also highlighted as instructive the fact that Maselli's testimony was precluded in a previous case because the court in that case, S. Richards, J. , found that her employment as an "independent medical-legal nurse consultant" and "private duty nurse" did not qualify her to testify as a similar health care provider to a practicing nurse employed by a hospital. See Patenaude v. Norwalk Hospital , Superior Court, judicial district of Fairfield, Docket No. CV-11-6022949-S, 2012 WL 5936179 (September 12, 2012). The court in the present case went on to state: "[A]fter carefully reviewing Maselli's deposition testimony regarding her qualifications, the court concludes that she does not qualify as a similar health care provider under § 52-184c (b) to offer expert opinions on the standard of care for a registered nurse inserting a preoperative Foley catheter in February 2010." Since the court determined that Maselli did not satisfy the requirements of being a "similar health care provider" pursuant to § 52-184c (b), it then turned to the residual provision of § 52-184c, subsection (d), to determine whether Maselli was qualified to testify as an expert pursuant to that section. The court, in its written memorandum of decision, stated: "Since the court has concluded that Maselli is not a similar health care provider under subsection (b), the court must determine whether under (d) she 'possesses sufficient training, experience and knowledge as a result of practice or teaching in a related field of [nursing] so as to be able to provide such expert testimony as to the prevailing professional standard of care in a given field of [nursing]. Such training, experience or knowledge shall be as a result of the active involvement in the practice or teaching of [nursing] within the five-year period before the incident giving rise to the claim.' Again, the court concludes that based upon a careful review of Maselli's deposition testimony regarding her qualifications, that she lacks the required active involvement in the practicing or teaching of nursing within the five year period before the incident giving rise to the claim. Accordingly, her testimony is also precluded under § 52-184c (d)." We conclude that it was not an abuse of discretion for the trial court to find that Maselli's deposition testimony did not support a determination that she was a "similar health care provider" to Meltzer pursuant to § 52-184c (b), nor that she was qualified to testify under the residual provision of § 52-184c (d). Though Meltzer and Maselli both were trained as registered nurses, Maselli was no longer involved with the type of "clinical care nursing" that Meltzer practiced in the hospital setting, and Maselli had not done so for far more than the five years prior to February 4, 2010. Additionally, while we note that Maselli testified that she had been providing some private duty nursing during the five years prior to February 4, 2010, she testified that she provided only "basic nursing care, fluids, ambulating, assessing, [and] deep breathing," but did not "do medications or treatments" because "the hospital staff [did] that," nor did she place preoperative Foley catheters. Additionally, we note that Maselli never testified that she provided any of this private duty nursing care under the "direction of a licensed physician . or advanced practice registered nurse" which is required by the definition of "the practice of nursing by a registered nurse," pursuant to General Statutes § 20-87a (a). After a careful review of the record, none of Maselli's training and experience seems to suggest that she was actively involved in the practice or teaching of nursing in the five year period prior to February 4, 2010. Therefore, the trial court did not abuse its discretion in determining that she did not satisfy the qualifications to be considered a "similar health care provider" for nonspecialists, pursuant to § 52-184c (b), nor does she satisfy the requirements of the residual provision, pursuant to § 52-184c (d). We conclude, on the basis of the record, that the trial court did not abuse its discretion in precluding Maselli's testimony. This finding by the trial court, that Maselli did not fit the statutory requirements to testify as an expert witness and, therefore, was not qualified to provide expert testimony, is supported adequately by the record and, in light of the foregoing, the exclusion of Maselli's testimony on that basis was not an abuse of discretion. II The plaintiff also claims that the court erred in granting the defendant's motion for a directed verdict because its decision was based on the erroneous preclusion of Maselli's testimony. We disagree. "We review a trial court's decision to direct a verdict for the defendant by considering all of the evidence, including reasonable inferences, in the light most favorable to the plaintiff. . A verdict may be directed where the decisive question is one of law or where the claim is that there is insufficient evidence to sustain a favorable verdict." (Internal quotation marks omitted.) Silano v. Cumberland Farms, Inc. , 85 Conn.App. 450, 453, 857 A.2d 439 (2004). In order to 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." (Internal quotation marks omitted.) Carrano v. Yale-New Haven Hospital , 279 Conn. 622, 656, 904 A.2d 149 (2006). "[E]xpert testimony is required to establish the standard of professional care to which the defendant is held ." Mather v. Griffin Hospital , 207 Conn. 125, 131, 540 A.2d 666 (1988). "A court should direct a verdict if, on the evidence, the jury reasonably and legally could not have reached any other conclusion. . A directed verdict is justified if the plaintiff fails to present any evidence as to a necessary element of his or her cause of action." (Citation omitted.) Poulin v. Yasner , 64 Conn.App. 730, 734-35, 781 A.2d 422, cert. denied, 258 Conn. 911, 782 A.2d 1245 (2001). We conclude that the court properly precluded the plaintiff's sole standard of care expert witness, Maselli, from testifying. Accordingly, the granting of the defendant's motion for a directed verdict was proper. The judgment is affirmed. In this opinion the other judges concurred. The plaintiff brought three other claims on appeal. He argues that the court erred in: (1) failing to order sua sponte that his complaint be amended in light of a new scheduling order; (2) precluding the causation testimony of expert witness Dr. Joseph Camilleri, a urologist who treated the plaintiff six weeks after his knee surgery; and (3) denying the plaintiff's motion to limit the testimony of Dr. Richard Pelker, the surgeon who performed the plaintiff's knee surgery. Because we affirm the court's granting of the defendant's motion for a directed verdict based on the plaintiff's lack of standard of care expert testimony, we need not address these claims. The plaintiff originally brought this action against the defendant hospital and Meltzer as codefendants but he later withdrew count two against Meltzer. Hereafter, we refer in this opinion to Yale-New Haven Hospital, Inc., as the defendant. A Foley catheter is a flexible tube that is inserted into the tip of the penis, through the urethra and into the bladder in order to drain urine. The plaintiff also alleged that the defendant: "[F]ailed to hire or retain appropriately trained Registered Nurses"; "failed to adequately supervise their Registered Nurses"; "appointed and/or hired Registered Nurses not qualified, experienced and/or with the background to insert a Foley catheter as part of preoperative care plan"; "failed [by and through its agents, servants and/or employees] to follow nursing protocol for insertion of a Foley catheter"; "failed [by and through its employees] to order and/or request a urology consult in the perioperative period"; "failed [by and through its employees] to request assistance from other RNs, APRNs, Residents, and/or physicians to insert the Foley catheter upon encountering resistance"; "failed to adequately require certification and recertification to perform Foley catheterizations"; "failed to have adequate staffing of supervisors, APRNs, residents, or attending physicians"; and "failed to install or maintain a chain of command protocol adequate to assist [Meltzer] in the event of complications in the insertion of a Foley catheter." General Statutes § 52-184c (b) provides: "If the defendant health care provider is not certified by the appropriate American board as being a specialist, is not trained and experienced in a medical specialty, or does not hold himself out as a specialist, a 'similar health care provider' is one who: (1) Is licensed by the appropriate regulatory agency of this state or another state requiring the same or greater qualifications; and (2) is trained and experienced in the same discipline or school of practice and such training and experience shall be a result of the active involvement in the practice or teaching of medicine within the five-year period before the incident giving rise to the claim." The defendant moved to preclude Maselli's testimony on the alternative ground that her testimony was "speculative, without factual basis, and inadmissible under § 7-4 (a) of the Code of Evidence and State v. Porter, 241 Conn. 57, [698 A.2d 739] (1997)." The court precluded her testimony on the grounds that she was not a similar health care provider and, therefore, did not address this argument. General Statutes § 52-184c (d) provides: "Any health care provider may testify as an expert in any action if he: (1) Is a 'similar health care provider' pursuant to subsection (b) or (c) of this section; or (2) is not a similar health care provider pursuant to subsection (b) or (c) of this section but, to the satisfaction of the court, possesses sufficient training, experience and knowledge as a result of practice or teaching in a related field of medicine, so as to be able to provide such expert testimony as to the prevailing professional standard of care in a given field of medicine. Such training, experience or knowledge shall be as a result of the active involvement in the practice or teaching of medicine within the five-year period before the incident giving rise to the claim." The court granted the defendant's motion for a directed verdict based on the preclusion of both of the plaintiff's expert witnesses, Camilleri and Maselli. Because Maselli was the only witness disclosed to testify on the element of standard of care, her preclusion was dispositive. The defendant argues that even if Maselli had qualified as a similar health care provider, her testimony still should have been precluded because it lacked factual foundation, and was speculative and unreliable pursuant to State v. Porter, 241 Conn. 57, 698 A.2d 739 (1997). Because we find that the court did not abuse its discretion in precluding Maselli's testimony pursuant to § 52-184c, we need not reach this alternative claim. General Statutes § 52-184c (c) provides"If the defendant health care provider is certified by the appropriate American board as a: specialist, is trained and experienced in a medical specialty, or holds himself out as a specialist, a 'similar health care provider' is one who: (1) Is trained and experienced in the same specialty; and (2) is certified by the appropriate American board in the same specialty; provided if the defendant health care provider is providing treatment or diagnosis for a condition which is not within his specialty, a specialist trained in the treatment or diagnosis for that condition shall be considered a 'similar health care provider.' " Maselli testified in her deposition that she was not an expert in urology, and that she did not have any specialized training or certifications in urology. General Statutes § 20-87a (a) provides: "The practice of nursing by a registered nurse is defined as the process of diagnosing human responses to actual or potential health problems, providing supporting and restorative care, health counseling and teaching, case finding and referral, collaborating in the implementation of the total health care regimen, and executing the medical regiment under the direction of a licensed physical, dentist or advanced practice registered nurse.A registered nurse may also execute orders issued by licensed physician assistants, podiatrists and optometrists, provided such orders do not exceed the nurse's or the ordering practitioner's scope of practice. A registered nurse may execute dietary orders written in a patient's chart by a certified dietitian-nutritionist." (Emphasis added.)

12489408

21ST MORTGAGE CORPORATION v. Christopher N. SCHUMACHER

21st Mortg. Corp. v. Schumacher

2017-03-14

AC 38219

714

723

157 A.3d 714

157

West's Atlantic Reporter, Third Series

Connecticut Appellate Court

Connecticut

2021-08-27T20:57:14.014091+00:00

Fastcase

21ST MORTGAGE CORPORATION v. Christopher N. SCHUMACHER

21ST MORTGAGE CORPORATION v. Christopher N. SCHUMACHER AC 38219 Appellate Court of Connecticut. Argued November 28, 2016 Officially released March 14, 2017 Richard Lewis, Stamford, for the appellant (defendant). S. Bruce Fair, for the appellee (plaintiff). Keller, Mullins and Sullivan, Js.

4524

27437

MULLINS, J. The defendant, Christopher N. Schumacher, appeals from the judgment of strict foreclosure rendered by the trial court in favor of the plaintiff, 21st Mortgage Corporation. On appeal, the defendant claims that the court improperly rendered summary judgment as to liability after finding that there was no genuine issue of material fact as to whether the plaintiff is the holder of the note and the party entitled to foreclose. We affirm the judgment of the trial court. The following facts inform our review. In its complaint, the plaintiff alleged that the defendant and Patriot Lending Group, Inc. (Patriot), executed a promissory note in the amount of $877,500 on February 28, 2006. The note was secured by a mortgage on the defendant's Bridgewater property in favor of Mortgage Electronic Registration Systems, Inc. (MERS), as nominee for Patriot. The mortgage was executed on February 28, 2006, and recorded on the Bridgewater land records on March 7, 2006. The complaint further alleged: (1) the mortgage then was assigned to GMAC Mortgage, LLC, on October 27, 2009, and the assignment was recorded on the land records on November 20, 2009; (2) the mortgage "is to be assigned" to the plaintiff by virtue of an assignment of mortgage "to be recorded" on the land records; and (3) the plaintiff is the holder of the note, the note is in default, and the plaintiff has elected to accelerate the balance due on the note, declare the note to be due in full, and to foreclose the mortgage securing the note. In response, the defendant filed an answer, which, in relevant part, left the plaintiff to its proof. The defendant also filed three special defenses, namely, (1) the plaintiff is not the owner of the debt or the holder of the mortgage, (2) the plaintiff's claim is based on the fraudulent dealings of the plaintiff or its assignors, and (3) the plaintiff's actions are a continuing course of dealing in violation of the Connecticut Unfair Trade Practices Act, General Statutes § 42-110b et seq. On November 26, 2014, before filing a responsive pleading to the defendant's special defenses; see Practice Book § 10-56 ; the plaintiff filed a motion for summary judgment as to liability, with a supporting affidavit and a memorandum of law. In that memorandum, the plaintiff also attacked each of the defendant's special defenses. After granting a continuance to the defendant, the court continued the plaintiff's motion for summary judgment to a short calendar hearing on May 4, 2015. On April 30, 2015, the defendant filed a motion entitled "Notice of waiver of oral argument and/or motion for continuance to hire local counsel." In that motion, the defendant asked for at least a thirty day continuance, and he requested that the court take the motion for summary judgment on the papers. It is not clear from the record whether the court took any action on this motion. On May 4, 2015, with the defendant not present, the court heard argument from the plaintiff on the merits of its motion for summary judgment. On May 26, 2015, the court, in a memorandum of decision, granted the plaintiff's motion for summary judgment as to liability, and, on July 20, 2015, it rendered a judgment of strict foreclosure. This appeal followed. Additional facts will be set forth as necessary. The defendant claims that the court improperly rendered summary judgment as to liability in the instant foreclosure action when there were genuine issues of material fact concerning the ownership of the note in question. The defendant argues that the court improperly relied on American Home Mortgage Servicing Inc. , v. Reilly , 157 Conn.App. 127, 132-34, 117 A.3d 500 (2015), because "[i]n this case, the note was not endorsed in blank , and, thus, the note was not bearer paper. As such, the plaintiff was not a holder as that term is defined in [General Statutes] § 42a-1-201 (b) (21) (A).... The issue here is not whether the party in possession of a note endorsed in blank is entitled to enforce the note, the issue is whether the plaintiff, or some unknown third party, owns the note ." (Emphasis in original.) Furthermore, the defendant argues that, in support of his opposition to the plaintiff's motion for summary judgment, he submitted a deposition from a prior foreclosure case between him and the most recent prior holder of the note, GMAC Mortgage, LLC. In that deposition, a spokesperson for GMAC Mortgage, LLC, admitted that there were additional endorsements to this note and that the note had broken off into two separate branches, with two different sets of allonges, thereby calling into question the plaintiff's status as the holder of the note and the party entitled to foreclose. He contends that the missing endorsements raised a genuine issue of material fact that must be answered and that summary judgment, therefore, is inappropriate. Although we agree that the defendant has demonstrated that there may be some discrepancies in the allonges to the note, we, nevertheless, conclude that the court properly granted summary judgment. The following additional facts, although somewhat cumbersome, are necessary to a full understanding of the plaintiff's claim and our analysis. The plaintiff, in support of its motion for summary judgment, submitted the November 13, 2014 affidavit of Tiffany Moyer, the legal coordinator for the plaintiff, attesting that the information contained in her affidavit was taken from the plaintiff's business records. She attested that the defendant and Patriot executed a note in the original amount of $877,500 and that the plaintiff, or its agent, has possession of the original note, the note has been duly endorsed, and a copy is attached to the affidavit as exhibit A. Moyer also attested that the defendant, on February 28, 2006, conveyed by mortgage deed his interest in his Bridgewater property to MERS, as nominee for Patriot, and that this mortgage deed was recorded on March 7, 2006 in volume 68 at page 933 in the Bridgewater land records. She attested that the mortgage deed is attached to her affidavit as exhibit B. Additionally, Moyer attested that the mortgage thereafter was assigned to GMAC Mortgage, LLC, on October 27, 2009, and then to the plaintiff on May 7, 2010. Copies of those assignments are attached to her affidavit as exhibit C. She further attested that the defendant was in default on the note, the plaintiff had accelerated the note, and the plaintiff was foreclosing on the mortgage. Interestingly, Moyer made no representations in her affidavit about the chain of title of the note. Exhibit A to Moyer's affidavit is the adjustable rate note between the defendant and Patriot in the amount of $877,500, executed on February 28, 2006, purportedly signed by the defendant, with several attached allonges. The allonges are as follows: (1) The first allonge to the note is from Patriot to the Ohio Savings Bank; it is not dated; (2) on that same allonge is an endorsement from Ohio Savings Bank to GMAC Bank; it also is not dated; (3) the next allonge is from Ally Bank formerly known as GMAC Bank to GMAC Mortgage, LLC, signed by Brenda Staehle, "Limited Signing Officer"; it also is not dated; and (4) the final allonge is from GMAC Mortgage, LLC, to 21st Mortgage Corporation "By: 21st Mortgage Corporation, it's attorney-in-fact," signed by Troy Fussell, vice president and authorized signatory, and notarized by Michelle A. Wilson on February 14, 2014. Exhibit B to Moyer's affidavit is an open-end mortgage deed. The document provides that the borrower is the defendant and that MERS is acting as nominee for Patriot. At the very top of the document are the volume and page numbers for the Bridgewater land records; page one provides that the document is filed in volume 068, at page 0933. Approximately one third of the way down page one, there is a line across the page with a notation in the middle that provides: "Space Above This Line For Recording Data." Above that line the document provides in relevant part: "After recording please return to: OHIO SAVINGS BANK ATTN: DOCUMENT CONTROL" along with an address. Exhibit C to Moyer's affidavit consists of two mortgage assignments. The first is recorded at volume 075, page 0907 of the Bridgewater land records, and provides that Patriot is assigning the defendant's mortgage to GMAC Mortgage, LLC. The assignment is dated October 27, 2009, and is from MERS, as nominee for Patriot, to GMAC Mortgage, LLC. The assignment is signed by Brenda Staehle, vice president of MERS. The second assignment is from GMAC Mortgage, LLC, to 21st Mortgage Corporation. The assignment is dated May 7, 2014, and is signed by Troy Fussell, vice president of GMAC Mortgage, LLC. In its memorandum of law in support of its motion for summary judgment, the plaintiff argued that there were no genuine issues of material fact concerning whether it was the holder of the note or whether it was entitled to foreclose on the mortgage due to the defendant's default on the note. The plaintiff, not having filed a responsive pleading, also addressed each of the defendant's special defenses, arguing that they "are not legally sufficient and/or they fail to give rise to any genuine issues of material fact." Specifically, as to the defendant's first special defense, namely, that the plaintiff is not the owner of the debt or the holder of the mortgage, the plaintiff contended that it had "duly demonstrated that there are no genuine issues of material fact concerning its holdership of the subject promissory note, which is endorsed in blank." As to the defendant's remaining special defenses, the plaintiff asserted that they failed as a matter of law because they did not set forth any supporting factual allegations, but, instead, relied on mere legal conclusions. On February 24, 2015, the defendant filed an objection to the plaintiff's motion for summary judgment, along with a memorandum of law and supporting affidavit, with exhibits. In his memorandum, the defendant argued that there were important issues of fact concerning the allonges to the note that were attached to the Moyer affidavit. He contended that the plaintiff's evidence called into question its ownership of the debt, the note, and the mortgage, in that the Moyer affidavit contained discrepancies from the allonges that were attached to her affidavit, some known allonges were omitted, many allonges contained no dates, and the allonge from GMAC Mortgage, LLC, to 21st Mortgage Corporation was not signed by anyone from GMAC Mortgage, LLC. The defendant also alleged that the Moyer affidavit raised questions as to the transfers of the title of the note. In support of his opposition, the defendant also provided his own affidavit. One of the documents attached to his affidavit was a January 11, 2012 deposition of Albert Augustine, a member of the document execution team of GMAC Mortgage, LLC, taken in a previous foreclosure action instituted by GMAC Mortgage, LLC, against the defendant. During his deposition, Augustine reviewed the endorsements to the defendant's note with Patriot, and he stated that they demonstrated that the note was assigned to Ohio Savings Bank from Patriot, and then from Ohio Savings Bank to GMAC Bank, and then from GMAC Bank to GMAC Mortgage. He acknowledged that the endorsements were not dated and that he had no idea when they took place. The defendant's attorney in that case then asked Augustine to examine additional allonges to the note that had been marked as exhibits. The following colloquy occurred: "Q. Okay. Flipping over to 0030, can you tell me what this is? "A. Allonge from Ohio Savings Bank to Residential Funding, LLC. "Q. Do you know who Residential Funding, LLC, is? "A. Yes. "Q. Who is Residential Funding, LLC?" "A. I know them to be an additional mortgage company, another mortgage company slash investor. "Q. Are they affiliated with GMAC? "A. No.... "Q. So, this appears to be an assignment or an allonge of the note from Ohio Savings Bank to Residential Funding Company. Do you know when this allonge took place? "A. No. "Q. Can you turn to your affidavit . This allonge is not connected to the note in that affidavit, correct? "A. No.... "Q. If you flip to GMAC 0031, seems to be another allonge. Have you ever seen this document before? "A. No. "Q. Can you tell me what it is? "A. It's another allonge endorsed in blank from Residential Funding.... "Q. In your affidavit, the allonges that you attached to the note in your affidavit show the note being transferred from Ohio Savings to GMAC Bank, but the allonge that is marked GMAC 0030 showed the note being transferred from Ohio Savings Bank to Residential Funding Company, LLC.... Just want to make sure that's correct. "A. Yeah. "Q. . Did Ohio Savings Bank endorse only part of the note to GMAC? "A. I don't know. "Q. Is it common for an entity to assign a portion of a note to another entity in your experience? "A. I don't know. "Q. Can there be more than one owner of a note in your experience? "A. Again, I don't know.... "Q. So, staying with exhibit A to your affidavit, the second allonge that is attached to your note, to the note in your affidavit, is from . Allied Bank formerly known as GMAC Bank to GMAC Mortgage, LLC, and that's signed by Brenda Staehle, but GMAC 0029 in exhibit D, which purports to be an allonge to GMAC Mortgage, LLC, from Allied Bank formerly known as GMAC Bank, [is signed by someone named] Alana Gerhart. So, these are two different allonges, correct? "A. Yes. "Q. Signed by two separate people? "A. Yes. "Q. Any idea why that's the case? "A. No. "Q. And, again, I think you already testified to this, but none of these allonges are . dated, correct? "A. No. "Q. So, you don't actually know when the note was negotiated to . [GMAC Mortgage, LLC] in this case, do you? "A. No." In a May 26, 2015 memorandum of decision, the court, after stating that it had examined the original note, which the plaintiff had presented at the May 4, 2015 hearing, granted the plaintiff's motion for summary judgment as to liability. The court recognized that, as the holder of the note, the plaintiff is presumed to be the owner of the note and debt. The court found that the plaintiff had made a prima facie showing, and that "there is no dispute that the plaintiff possessed the note that is endorsed to the plaintiff, nor is there any dispute that the plaintiff possessed the note prior to the commencement of this action." (Footnote omitted.) The court also concluded that the defendant's special defenses were insufficient, and that the plaintiff's prima facie showing was unrebutted. The court rendered summary judgment as to liability and, thereafter, rendered a judgment of strict foreclosure. The defendant contends that the court's summary judgment was improper because he had demonstrated the existence of genuine issues of material fact both by his examination of inconsistencies in the plaintiff's motion and accompanying documents and in the documents he provided in his opposition to the plaintiff's motion for summary judgment. He contends that "there can be no serious question that if the special endorsements into the plaintiff in this case are not valid or enforceable, then the plaintiff would not be entitled to summary judgment in this case, [and] it would not even have standing, thus implicating the court's subject matter jurisdiction.... This issue of fact concerning the missing endorsements, therefore, is material ." (Citation omitted.) The defendant contends that "merely being in possession of the original note does not itself create a presumption that the party in possession is the owner; the presumption is only created when the party in possession of the note is also a holder ." (Emphasis in original.) The defendant concludes by arguing that the plaintiff in this case "is not a holder as that term is defined in . § 42a-1-201 (b) (21) (A)... because the note at issue in this case was not endorsed in blank ." (Emphasis in original.) We disagree. "Under the applicable standard of review, our review of summary judgment rulings is plenary.... Pursuant to Practice Book § 17-49, 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 seeking summary judgment has the burden of showing the absence of any genuine issue [of] material facts which, under applicable principles of substantive law, entitle him to a judgment as a matter of law . and the party opposing such a motion must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact." (Citation omitted; internal quotation marks omitted.) J.E. Robert Co. v. Signature Properties, LLC , 309 Conn. 307, 333, 71 A.3d 492 (2013). "[B]ecause the . plaintiff sought summary judgment in a foreclosure action, which is an equitable proceeding, we note that 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 a matter for the discretion of the trial court.... "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." (Internal quotation marks omitted.) Bank of America, N.A. v. Aubut , 167 Conn.App. 347, 358-59, 143 A.3d 638 (2016). In the present case, the defendant's argument revolves around his claim that the plaintiff is not a "holder" of the note because the note is not endorsed in blank, but, rather, is specially endorsed to the plaintiff. At its core, the defendant's contention is that the plaintiff does not have standing to foreclose. 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.... Where a party is found to lack standing, the court is consequently without subject matter jurisdiction to determine the cause.... Our review of this question of law is plenary.... "A plaintiff's right to enforce a promissory note may be established under the [Uniform Commercial Code (UCC), General Statutes § 42a-1-101 et seq. ].... Under the UCC, a [p]erson entitled to enforce an instrument means [inter alia] (i) the holder of the instrument , [or] (ii) a nonholder in possession of the instrument who has the rights of a holder . A person may be a person entitled to enforce the instrument even though the person is not the owner of the instrument ." (Citations omitted; emphasis altered; footnotes omitted; internal quotation marks omitted.) J.E. Robert Co. v. Signature Properties, LLC , supra, 309 Conn. at 318-19, 71 A.3d 492. A "[p]erson" is defined by the UCC as "an individual, corporation, business trust, estate, trust, partnership, limited liability company, association, joint venture, government, governmental subdivision, agency or instrumentality, public corporation or any other legal or commercial entity." General Statutes § 42a-1-201 (b) (27). "If an endorsement makes a note payable to an identifiable person, it is a special endorsement, and only the identified person in possession of the instrument is entitled to enforce the instrument. General Statutes § 42a-1-201 (b) (21) (A), 42a-3-205 (a) and 42a-3-301." (Internal quotation marks omitted.) U.S. Bank, N.A. v. Ugrin , 150 Conn.App. 393, 402, 91 A.3d 924 (2014) ; see also footnote 11 of this opinion. The UCC defines the holder of a negotiable instrument as: "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." General Statutes § 42a-1-201 (b) (21) (A). In the present case, the plaintiff is the person in possession of the negotiable instrument that is payable specifically to the plaintiff. Clearly, then, the plaintiff, pursuant to the clear language of § 42a-1-201 (b) (21) (A) is the holder of the note, specially endorsed to the plaintiff. Because the plaintiff is the holder of the note, which is specially endorsed to it, it has standing to foreclose the mortgage, which it also holds. Although we acknowledge that the defendant presented some evidence that called into question the possible existence of other allonges to this note, that evidence, even if credited, does not negate the fact that the plaintiff possesses both the original note specially endorsed to it and an assignment of mortgage on the defendant's property, used to secure the note. On this basis, we conclude that the plaintiff had standing to foreclose and that the trial court properly rendered summary judgment in favor of the plaintiff. The judgment is affirmed. In this opinion the other judges concurred. "As one court has explained, MERS does not originate, lend, service, or invest in home mortgage loans. Instead, MERS acts as the nominal mortgagee for the loans owned by its members. The MERS system is designed to allow its members, which include originators, lenders, servicers, and investors, to assign home mortgage loans without having to record each transfer in the local land recording offices where the real estate securing the mortgage is located.... "The benefit of naming MERS as the nominal mortgagee of record is that when the member transfers an interest in a mortgage loan to another MERS member, MERS privately tracks the assignment within its system but remains the mortgagee of record. According to MERS, this system saves lenders time and money, and reduces paperwork, by eliminating the need to prepare and record assignments when trading loans.... "If, on the other hand, a MERS member transfers an interest in a mortgage loan to a non-MERS member, MERS no longer acts as the mortgagee of record and an assignment of the security instrument to the non-MERS member is drafted, executed, and typically recorded in the local land recording office." (Internal quotation marks omitted.) Equity One, Inc. v. Shivers, 310 Conn. 119, 122 n.1, 74 A.3d 1225 (2013). The record demonstrates that the mortgage was assigned to the plaintiff on May 7, 2014, and recorded on the Bridgewater land records on June 20, 2014. Practice Book § 10-56 provides: "The plaintiff's reply pleading to each of the defendant's special defenses may admit some and deny others of the allegations of that defense, or by a general denial of that defense put the defendant upon proof of all the material facts alleged therein." The date May 7, 2010, likely is a typographical error. The actual date of the assignment is May 7, 2014, approximately one month after the institution of this foreclosure action. Staehle also signed one of the allonges to the note from Ally Bank formerly known as GMAC Bank to GMAC Mortgage, LLC, as "Limited Signing Officer." On February 14, 2014, Fussell had signed the final allonge to the note from GMAC Mortgage, LLC, to 21st Mortgage Corporation. He signed that document as vice president and authorized signatory for 21st Mortgage Corporation, acting as the attorney-in-fact for GMAC Mortgage, LLC. The note at issue in this case, a copy of which is attached to Moyer's affidavit, is specially endorsed to the plaintiff, and not endorsed in blank. The defendant attested that the previous foreclosure case was dismissed without prejudice on August 9, 2012. The plaintiff did not move to strike any portion of the defendant's opposition, his affidavit, or its attachments. We note that the allonge in the record from Ally Bank formerly known as GMAC Bank to GMAC Mortgage, LLC, is signed by Brenda Staehle, "Limited Signing Officer." Staehle also is the signatory of the assignment of mortgage from Mortgage Electronic Registration Systems, Inc., as nominee for Patriot Lending Group, Inc., to GMAC Mortgage, LLC. On that assignment, Staehle signed as vice president of Mortgage Electronic Registration Systems, Inc. Augustine also attested that he personally knows Staehle and that she works with him in the foreclosure department. During oral argument before this court, the defendant expressed a concern that if there exists another allonge that is endorsed in blank, as testified to by Augustine during his deposition, the holder of that allonge could bring another action against the defendant. We find little merit in such an argument considering the existence of General Statutes § 49-1 : "The foreclosure of a mortgage is a bar to any further action upon the mortgage debt, note or obligation against the person or persons who are liable for the payment thereof who are made parties to the foreclosure and also against any person or persons upon whom service of process to constitute an action in personam could have been made within this state at the commencement of the foreclosure; but the foreclosure is not a bar to any further action upon the mortgage debt, note or obligation as to any person liable for the payment thereof upon whom service of process to constitute an action in personam could not have been made within this state at the commencement of the foreclosure. The judgment in each such case shall state the names of all persons upon whom service of process has been made as herein provided." We also note that the record establishes that the defendant has been in default since 2009, and that there is neither evidence nor an allegation that some other entity has sought to enforce the note. "The definitions of the terms blank endorsement and special endorsement are relevant to the defendant's claims. If an endorsement is made by the holder of an instrument . and the endorsement identifies a person to whom it makes the instrument payable, it is a special endorsement. When specially endorsed, an instrument becomes payable to the identified person and may be negotiated only by the endorsement of that person.... If an endorsement is made by the holder of an instrument and is not a special endorsement it is a blank endorsement. When endorsed in blank, an instrument becomes payable to bearer and may be negotiated by transfer of possession alone until specially endorsed. General Statutes § 42a-3-205 (a) and (b)." (Internal quotation marks omitted.) U.S. Bank, N.A. v. Ugrin, 150 Conn.App. 393, 396 n.6, 91 A.3d 924 (2014).

12488929

VILLAGE APARTMENTS, LLC v. Stanley P. WARD, Jr., et al.

Vill. Apartments, LLC v. Ward

2016-12-13

AC 38047

76

86

152 A.3d 76

152

West's Atlantic Reporter, Third Series

Connecticut Appellate Court

Connecticut

2021-08-27T20:57:14.008101+00:00

Fastcase

VILLAGE APARTMENTS, LLC v. Stanley P. WARD, Jr., et al.

VILLAGE APARTMENTS, LLC v. Stanley P. WARD, Jr., et al. AC 38047 Appellate Court of Connecticut. Argued September 21, 2016 Officially released December 13, 2016 Matthew G. Berger, New London, for the appellant (plaintiff). Garon Camassar, New London, for the appellees (named defendant et al.). Lavine, Alvord and Bear, Js.

5181

31499

BEAR, J. The plaintiff, Village Apartments, LLC, appeals from the judgment of the trial court rendered in favor of the defendants Stanley P. Ward, Jr., and Rose Mary Ward, after a trial to the court, quieting title to a claimed easement in the form of a right-of-way (right-of-way) over the defendants' real property (property). The court determined that the Marketable Title Act (act), General Statutes § 47-33b et seq., extinguished the right-of-way because it was not preserved in the roots of title of the parties as required by the act and did not meet the apparent easement exceptions in General Statutes § 47-33h. On appeal, the plaintiff claims that the court erred in finding that the act extinguished its right-of-way (1) because it predated and was not properly set forth in either root of title; and (2) although there were visible, physical indicators of the existence of the right-of-way. We affirm the judgment of the trial court. In the first count of its complaint against the defendants, the church, and Citizens Bank, dated July 9, 2012, and returned to the court on August 1, 2012, the plaintiff sought to quiet title to the alleged deeded right-of-way over the defendants' property and the church's property. The defendants alleged as a special defense, inter alia, that the act extinguished any rights that the plaintiff had to the claimed right-of-way. Following a trial to the court, the court, Moukawsher , J. , rendered judgment in favor of the defendants and Citizens Bank on June 9, 2015, and in favor of the plaintiff, as stipulated between it and the church. This appeal followed. The following factual findings of the court are relevant to this appeal. In 1877, an easement in the form of a right-of-way was created over property now owned separately by the defendants and the church in favor of property now owned by the plaintiff. Pursuant to the act, the plaintiff's root of title is a 1968 deed that conveyed the property "[t]ogether with and subject to such rights of way, pipe line and other easements and privileges as will of record appear." The defendants' roots of title are one or two 1944 deeds that referred to a "Frank Calvert" "right of way." The 1944 deeds did not set forth that the property is subject to the Frank Calvert right-of-way, did not describe the right-of-way's metes and bounds, and did not incorporate by volume and page the title transaction that created that right-of-way. The court found that as of the dates of the trial, the alleged right-of-way area showed no evidence of ruts or marks that might suggest that it had been used as a cart path or track as claimed by the plaintiff. Photographs in evidence showed that the only open area within the alleged right-of-way revealed nothing to suggest its use as a cart path or track. The photographs showed that much of the disputed area was strewn with boulders, was covered with mature trees, and was incapable of accommodating any kind of path. From this and other evidence, the court concluded that there were no signs of a cart path or track on the property. In its memorandum of decision, the court concluded that the defendants' muniments of title did not describe the right-of-way sufficiently to enforce it and that the muniments of title did not specifically identify the recorded title transaction that created the right-of-way. In its analysis, the court rejected the plaintiff's argument that references to the right-of-way in the 1944 deeds were necessary to determine the location of the five tracts conveyed therein. Consequently, the court concluded that the act extinguished the right-of-way unless an exception applied. The plaintiff argued that merestones marking the right-of-way, a wire fence running along it, and signs of a cart path were physical evidence sufficient to satisfy one of the § 47-33h exceptions. The court concluded that fences and merestones were not included in the list of exceptions contained in § 47-33h and, although roads and tracks were included in the list, there were no signs of a cart path or tracks on the property. Accordingly, the court found that § 47-33h did not apply. In light of these determinations, the court declared that the defendants' property was not subject, under General Statutes § 47-31, to the purported right-of-way described in volume 21, page 99, and volume 21, page 100 of the Montville land records. This appeal followed. I The plaintiff claims that the trial court erred in determining that the act extinguished the right-of-way because the right-of-way predated the roots of title. Specifically, it contends that the reference to the Frank Calvert right-of-way in the 1944 deeds that constitute the defendants' roots of title is a specific reference satisfying § 47-33h. Additionally, the plaintiff argues that reference to the right-of-way in the deeds puts a reasonable title searcher on notice of the existence of an easement and that determination of the location of the right-of-way was necessary to ascertain the location of the three parcels constituting the defendants' property. The defendants argue that their roots of title do not specifically identify a recorded title transaction creating the right-of-way and that the description of the right-of-way was too vague to convey it. We agree with the defendants. We begin by setting forth the applicable standard of review. "The interpretation of a statute, as well as its applicability to a given set of facts and circumstances, presents a question of law over which our review is plenary.... Furthermore, the meaning of language used in a deed also raises a legal issue such that, when faced with a question regarding the construction of language in deeds, the reviewing court does not give the customary deference to the trial court's factual inferences." (Citation omitted; internal quotation marks omitted.) Johnson v. Sourignamath , 90 Conn.App. 388, 393-94, 877 A.2d 891 (2005). "Pursuant to the act, any person who has an unbroken record chain of title to an interest in land for a period of forty years, plus any additional period of time necessary to trace the title back to the latest connecting title instrument of earlier record (which is the root of title under the act) has a marketable record title subject only to those pre-root of title matters that are excepted under the statute or are caused to reappear in the latest forty year record chain of title.... The act declares null and void any interest in real property not specifically described in the deed to the property which it purports to affect, unless within a forty year period, a notice specifically reciting the claimed interest is placed on the land records in the affected land's chain of title." (Footnotes added; internal quotation marks omitted.) Coughlin v. Anderson , 270 Conn. 487, 507, 853 A.2d 460 (2004). "Even marketable record title, however, may be subject to certain interests. Section 47-33d provides in relevant part: 'Such marketable record title is subject to: (1) All interests and defects which are created by or arise out of the muniments of which the chain of record title is formed .' Thus, if an easement over a subject piece of property arises out of one or more of the muniments, including the deeds, of which the chain of record title is formed, a property owner takes the land subject to that easement. This general provision is subject to a proviso contained in § 47-33d (1), however, which provides that 'a general reference in the muniments, or any of them, to easements, use restrictions or other interests created prior to the root of title are not sufficient to preserve them, unless specific identification is made therein of a recorded title transaction which creates the easement, use restriction or other interest .' " (Footnote added.) McBurney v. Cirillo , 276 Conn. 782, 808-809, 889 A.2d 759 (2006), overruled in part on other grounds by Batte-Holmgren v. Commissioner of Public Health , 281 Conn. 277, 284-89, 914 A.2d 996 (2007). Section 47-33d therefore requires either a specific reference in the muniments to easements, use restrictions, or other interests or a general reference to such interests accompanied by a specific identification of a recorded title transaction creating the easement. "The reason that a general reference to pre-root of title interests is not sufficient to preserve and prevent their extinguishment is to avoid any necessity for a search of the record back of the root of title, as well as to eliminate the uncertainties caused by such general references. Connecticut Bar Association, Connecticut Standards of Title (1999), standard 3.10, comment one. Effectively, it requires one claiming a deeded right-of-way over the property of another to establish conclusively that at some point, some owner in the servient estate's chain of title actually made a conveyance validly creating that right-of-way. Otherwise, an invalid or nonexistent right-of-way could ripen into existence over a period of time through the mere insertion into the land records of language asserting it." (Internal quotation marks omitted.) Johnson v. Sourignamath , supra, 90 Conn.App. at 401, 877 A.2d 891. "[T]he ultimate purpose of [the act] is to simplify land title transactions through making it possible to determine marketability by limited title searches over some reasonable period of the immediate past and thus avoid the necessity of examining the record back into distant time for each new transaction.... [The act is] designed to decrease the costs of title assurance by limiting the period of time that must be covered by a title search." (Citation omitted; internal quotation marks omitted.) Il Giardino, LLC v. Belle Haven Land Co. , 254 Conn. 502, 537, 757 A.2d 1103 (2000). In the present case, the parties agree that the defendants' roots of title are two 1944 deeds that refer to a Frank Calvert right-of-way. The two 1944 deeds do not provide that the property is subject to that right-of-way, do not describe the right-of-way's metes and bounds, and do not incorporate by volume and page the title transaction that created the right-of-way. The reference to the right-of-way is used only to describe the boundaries of certain tracts of land conveyed to the defendants' predecessor in title. Additionally, the deeds fail to provide any reference to a record title transaction creating the right-of-way as required by § 47-33d ; indeed, Frank Calvert is not named in the 1877 deed creating the right-of-way or in any other transaction in the defendants' chain of title. See Johnson v. Sourignamath , supra, 90 Conn.App. at 401, 877 A.2d 891 (purported interests and claims must appear in chain of title of property against which interest or claim is being made). Consequently, the court did not err in concluding that the right-of-way does not burden the defendants' property unless an exception delineated in the act applies. II The plaintiff claims that the court erred in finding that the act extinguished the right-of-way despite visible evidence of the right-of-way. Specifically, the plaintiff argues that the court erroneously concluded that merestones, the remnants of a fence, and the remnants of a cart path did not constitute physical evidence excepted by the nonexclusive list contained in § 47-33h. Essentially, the plaintiff argues that the statute allows for any physical evidence of an easement. The defendants counter that the statute does not include merestones, fence posts, or car tracks, but is limited to "large industrial equipment typically used by public service companies...." Although we disagree with both interpretations advanced by the parties, we conclude that the statutory exception contained in § 47-33h does not apply to preserve the right-of-way claimed by the plaintiff. We begin by setting forth the applicable standards of review. "The interpretation of a statute, as well as its applicability to a given set of facts and circumstances, presents a question of law over which our review is plenary." Johnson v. Sourignamath , supra, 90 Conn.App. at 393-94, 877 A.2d 891. Whether certain physical markers and conditions such as a fence, cart path, or merestones existed on the property are questions of fact to which we apply a clearly erroneous standard of review. See Reiner, Reiner & Bendett, P.C. v. Cadle Co. , 278 Conn. 92, 107, 897 A.2d 58 (2006) ("Questions of fact are subject to the clearly erroneous standard of review.... 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.... Because it is the trial court's function to weigh the evidence . we give great deference to its findings." [Internal quotation marks omitted.] ). Section 47-33h, which codifies certain exceptions to the act, provides in relevant part that the act "shall not be applied to . extinguish any easement or interest in the nature of an easement, or any rights granted, excepted or reserved by the instrument creating such easement or interest, including any right for future use, if (1) the existence of such easement or interest is evidenced by the location beneath, upon or above any part of the land described in such instrument of any pipe, valve, road, wire, cable, conduit, duct, sewer, track, hole, tower or other physical facility and whether or not the existence of such facility is observable...." (Emphasis added.) In the present case, the plaintiff argues that a cart path, fence, and merestones constitute "other physical evidence" of the easement. The court found that there were no physical signs of a "cart path" running over the contested property, and the evidence presented does not demonstrate that this conclusion was clearly erroneous. We must determine then, whether merestones and fences, as a matter of law, can be evidence of an apparent easement under § 47-33h that may have preserved the right-of-way and, specifically, whether either of these items is included as an "other physical facility." Our state courts have not expounded on the meaning and application of the term "other physical facility" as used in § 47-33h, and, therefore, its interpretation is an issue of first impression. "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.) Joseph General Contracting, Inc. v. Couto , 317 Conn. 565, 586, 119 A.3d 570 (2015). Because of the ambiguity of the statutory term "other physical facility," the doctrine of ejusdem generis is useful in determining its meaning. "[T]he rule of ejusdem generis, which explains that where a particular enumeration is followed by general descriptive words, the latter will be understood as limited in their scope to . things of the same general kind or character as those specified in the particular enumeration." (Internal quotation marks omitted.) Stratford v. Jacobelli , 317 Conn. 863, 871-72, 120 A.3d 500 (2015). "The principle of ejusdem generis applies when '(1) the [clause] contains an enumeration by specific words; (2) the members of the enumeration suggest a specific class; (3) the class is not exhausted by the enumeration; (4) a general reference [supplements] the enumeration . and (5) there is [no] clearly manifested intent that the general term be given a broader meaning than the doctrine requires.' 2A J. Sutherland, Statutory Construction (5th Ed. Singer 1992) § 47.18. Thus, '[t]he doctrine of ejusdem generis calls for more than . an abstract exercise in semantics and formal logic. It rests on particular insights about everyday language usage. When people list a number of particulars and add a general reference like "and so forth" they mean to include by use of the general reference not everything else but only others of like kind. The problem is to determine what unmentioned particulars are sufficiently like those mentioned to be made subject to the [clause's] provisions by force of general reference.' Id." 24 Leggett Street, Ltd. Partnership v. Beacon Industries, Inc. , 239 Conn. 284, 297, 685 A.2d 305 (1996). In the present case, the doctrine of ejusdem generis limits the definition of "other physical facility" to the relationship of the preceding class of terms. The defendants argue that the class is limited to the large industrial equipment of public utilities. The list includes however "road," "track," and "hole" as physical facilities that may evidence an easement. Although the facilities pipe, valve, cable, conduit, duct, sewer, and tower connote a class of public utility items, road, track, and hole are not limited to such uses. This court has applied the § 47-33h exception for roads to cases not involving uses by utility companies. See Simonds v. Shaw , 44 Conn.App. 683, 684-85, 689-90, 691 A.2d 1102 (1997) (holding § 47-33h excepted easement in roadway from prohibition of act). Additionally, § 47-33d clarifies that this portion of § 47-33h applies to apparent easements and interests in the nature of easements. Section 47-33h protects the interest of "the United States, of this state or any political subdivision thereof, of any public service company as defined in section 16-1 or of any natural gas company" apart from the enumeration herein described. Accordingly, the class enumerated in the statute cannot be limited to public utility uses. Defining the class as "those physical objects that evidence an easement that themselves effectuate the easement itself" includes all of the items enumerated in § 47-33h, but not dissimilar items. For example, the location of a sewer beneath a property would evidence a sewer easement, whereas the location of poles and wires traversing the property would evidence an easement to a telephone company or electrical company for such use. Stated this way, the class does not include items that may be found on a property that are not set forth in § 47-33h or otherwise within the class of those items, which are only, at best, mere indirect, possible indicators of an easement. After setting forth the proper class, it is clear that merestones and fences are not a part of the class of other physical facilities creating an exemption from the application of the act. Merestones are defined as markers of a boundary, but not necessarily of an easement in the form of a right-of-way within or across a parcel of land. A fence also is not necessarily a marker of an easement in the form of a right-of-way. It is common knowledge that a fence can have many uses aside from marking a boundary of a parcel of land; for example, it can separate one interior parcel of land from another, it can restrict pets or livestock to a certain area within a parcel of land, it can surround and protect against access to a hazardous condition, or it can be purely decorative. A fence or a merestone, even if visible on part on the defendants' property, is not necessary or integral to the definition, use, existence, or identification of the plaintiff's claimed right-of-way in this case in the way that a road, sewer, or pipe would identify and carry out the purposes of an easement excepted by § 47-33h. Moreover, although this court and the plaintiff might be able to imagine other physical evidence that could suggest the possibility, or even probability, of an easement, our legislature made its choice in creating a list of indicators of an apparent easement to achieve its goal of "simplify[ing] land title transactions through making it possible to determine marketability by limited title searches over some reasonable period of the immediate past and thus avoid the necessity of examining the record back into distant time for each new transaction." (Internal quotation marks omitted.) Il Giardino, LLC v. Belle Haven Land Co. , supra, 254 Conn. at 537, 757 A.2d 1103. To expand the excepted list of items contained in § 47-33h to include dissimilar items, such as fences and merestones, could expose landowners to stale claims against their properties and, thus, counteract the broad remedial purposes of the act. Accordingly, fences and merestones are not included as a matter of law within the definition of "other physical facility," and, therefore, the court did not err in concluding that the presence of a fence and merestones on the defendants' property did not except the plaintiff's claims to a right-of-way from application of the act. The judgment is affirmed. In this opinion the other judges concurred. St. John's Roman Catholic Church of Montville (church) and Citizens Bank, also known as RBS Citizens, N.A. (Citizens Bank), were also defendants in this action. In accord with a stipulation, the court rendered judgment, quieting title to and confirming a right-of-way over the church's property. The church and Citizens Bank have not appealed and, therefore, all references to the defendants herein are to Stanley P. Ward, Jr., and Rose Mary Ward. In the second and third counts of its complaint, the plaintiff alleged trespass and interference with its easement rights by the defendants. Because the plaintiff has not raised these claims in its appeal, they are not before us. The trial was held before the court, Hon. Thomas F. Parker, judge trial referee, on June 24, 2014. The parties submitted posttrial briefs and an additional hearing was held before Judge Parker on January 14, 2015, at which the parties waived the 120 day deadline for the issuance of a decision. On April 7, 2015, the court, Cole-Chu, J., transferred the case to the court, Moukawsher, J., without a decision having been rendered by Judge Parker. Judge Moukawsher reviewed the transcripts, exhibits, and briefs, and held an additional hearing for arguments on June 5, 2015. " 'Root of title' means that conveyance or other title transaction in the chain of title of a person, purporting to create or containing language sufficient to transfer the interest claimed by such person, upon which he relies as a basis for the marketability of his title, and which was the most recent to be recorded as of a date forty years prior to the time when marketability is being determined. The effective date of the root of title is the date on which it is recorded...." General Statutes § 47-33b(e). Although the court, Moukawsher, J., stated that the parties agreed that the defendants' root of title was a 1944 deed, the parties now argue, the chain of title reveals, and Judge Parker noted, that the defendants' roots of title are two deeds from 1944 conveying undivided one-half interests from Rose Sepowitz, individually and as executor of the estate of Peter Sepowitz, to John Sepowitz. In describing the property, the deeds are identical. Whether the defendants' root of title was one deed, or two deeds that were identical except for the parties thereto, it does not affect our analysis or conclusions. For convenience, we will refer to the defendants' root of title as the two 1944 deeds. The 1944 deeds conveyed five tracts. The defendants purchased only three of those tracts in 1986 with Paul Ward, and in 1990, they purchased Paul Ward's interest in those tracts. The so-called Frank Calvert right-of-way is not defined, explained, or set forth in the 1944 deeds or any other muniment of title. "The term 'muniments of title' is defined, in relevant part, as '[t]he records of title transactions in the chain of title of a person purporting to create the interest in land claimed by such person and upon which he relies as a basis for the marketability of his title, commencing with the root of title and including all subsequent transactions.' Black's Law Dictionary (6th Ed.1990)." Johnson v. Sourignamath, 90 Conn.App. 388, 398 n.14, 877 A.2d 891 (2005). A merestone is "[a] stone that marks land boundaries." Black's Law Dictionary (9th Ed. 2009). General Statutes § 47-31(a) provides in relevant part: "An action 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, either in fee, for years, for life or in reversion or remainder, or to have any interest in the property, or any lien or encumbrance on 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. Such action may be brought whether or not the plaintiff is entitled to the immediate or exclusive possession of the property." General Statutes § 47-33c provides: "Any person having the legal capacity to own land in this state, who has an unbroken chain of title to any interest in land for forty years or more, shall be deemed to have a marketable record title to that interest, subject only to the matters stated in section 47-33d. A person has such an unbroken chain of title when the land records of the town in which the land is located disclose a conveyance or other title transaction, of record not less than forty years at the time the marketability is to be determined, which conveyance or other title transaction purports to create such interest in land, or which contains language sufficient to transfer the interest, either in (1) the person claiming that interest, or (2) some other person from whom, by one or more conveyances or other title transactions of record, the purported interest has become vested in the person claiming the interest; with nothing appearing of record, in either case, purporting to divest the claimant of the purported interest." General Statutes § 47-33b(a) provides: " 'Marketable record title' means a title of record which operates to extinguish such interests and claims, existing prior to the effective date of the root of title, as are stated in section 47-33e...." General Statutes § 47-33e provides: "Subject to the matters stated in section 47-33d, such marketable record title shall be held by its owner and shall be taken by any person dealing with the land free and clear of all interests, claims or charges whatsoever, the existence of which depends upon any act, transaction, event or omission that occurred prior to the effective date of the root of title. All such interests, claims or charges, however denominated, whether legal or equitable, present or future, whether those interests, claims or charges are asserted by a person sui juris or under a disability, whether that person is within or without the state, whether that person is natural or corporate, or is private or governmental, are hereby declared to be null and void." General Statutes § 47-33d provides: "Such marketable record title is subject to: (1) All interests and defects which are created by or arise out of the muniments of which the chain of record title is formed; provided a general reference in the muniments, or any of them, to easements, use restrictions or other interests created prior to the root of title are not sufficient to preserve them, unless specific identification is made therein of a recorded title transaction which creates the easement, use restriction or other interest; (2) all interests preserved by the recording of proper notice or by possession by the same owner continuously for a period of forty years or more, in accordance with section 47-33f; (3) the rights of any person arising from a period of adverse possession or use, which was in whole or in part subsequent to the effective date of the root of title; (4) any interest arising out of a title transaction which has been recorded subsequent to the effective date of the root of title from which the unbroken chain of title of record is started; provided such recording shall not revive or give validity to any interest which has been extinguished prior to the time of the recording by the operation of section 47-33e ; (5) the exceptions stated in section 47-33h as to rights of reversioners in leases, as to apparent easements and interests in the nature of easements, and as to interests of the United States, this state and political subdivisions thereof, public service companies and natural gas companies." See footnote 5 of this opinion. We have also reviewed the 1986 and 1990 deeds conveying the defendants' property to them and Paul Ward. The defendants first purchased their property with Paul Ward as tenants in common from John Sepowitz as set forth in a deed recorded on the Montville town records on June 30, 1986. Paul Ward then conveyed his interest in the property to the defendants by a quitclaim deed recorded on May 24, 1990. The 1986 and 1990 deeds each contain a reference to the "Plan of the Sepowitz Property Jerome Road, Montville, Connecticut Date July, 1982 Scale: 1? = 50'," which was recorded on the Montville town records. That plan, however, does not depict any alleged right-of-way for the benefit of the plaintiff's property. General Statutes § 47-33h provides: "Sections 47-33b to 47-33l, inclusive, shall not be applied to bar any lessor or successor of the lessor as a reversioner of the right to possession on the expiration of any lease or to bar or extinguish any easement or interest in the nature of an easement, or any rights granted, excepted or reserved by the instrument creating such easement or interest, including any right for future use, if (1) the existence of such easement or interest is evidenced by the location beneath, upon or above any part of the land described in such instrument of any pipe, valve, road, wire, cable, conduit, duct, sewer, track, hole, tower or other physical facility and whether or not the existence of such facility is observable, or to bar, extinguish or otherwise affect any interest of the United States, of this state or any political subdivision thereof, of any public service company as defined in section 16-1 or of any natural gas company, or (2) such easement or interest is a conservation restriction, as defined in section 47-42a, that is held by a land trust or nonprofit organization." (Emphasis added.) Thus, by way of example, fences, merestones, trees, and shrubs, standing alone, in the absence of specific evidence of a road or track running between them, do not satisfy the requirements for a § 47-33h exception.

12488061

Benjamin CRUZ v. COMMISSIONER OF CORRECTION

Cruz v. Comm'r of Corr.

2016-11-22

No. 37669

1192

1192

150 A.3d 1192

150

West's Atlantic Reporter, Third Series

Connecticut Appellate Court

Connecticut

2021-08-27T20:57:14.005530+00:00

Fastcase

Benjamin CRUZ v. COMMISSIONER OF CORRECTION

Benjamin CRUZ v. COMMISSIONER OF CORRECTION No. 37669 Appellate Court of Connecticut. Argued October 27, 2016 Officially released November 22, 2016

27

185

Per Curiam. The appeal is dismissed.

12486207

DISCIPLINARY COUNSEL v. John R. WILLIAMS.

Disciplinary Counsel v. Williams

2016-06-28

No. 37319.

391

400

142 A.3d 391

142

West's Atlantic Reporter, Third Series

Connecticut Appellate Court

Connecticut

2021-08-27T20:57:13.998797+00:00

Fastcase

DISCIPLINARY COUNSEL v. John R. WILLIAMS.

DISCIPLINARY COUNSEL v. John R. WILLIAMS. No. 37319. Appellate Court of Connecticut. Argued March 7, 2016. Decided June 28, 2016. Norman A. Pattis, with whom, on the brief, was John R. Williams, New Haven, self-represented, for the appellant (defendant). Karyl L. Carrasquilla, chief disciplinary counsel, with whom was Desi Imetovski, assistant chief disciplinary counsel, for the appellee (plaintiff). Charles Kurmay, Stratford, filed a brief for the Connecticut Criminal Defense Lawyers Association as amicus curiae. LAVINE, BEACH and MULLINS, Js.

5026

29810

MULLINS, J. The defendant attorney, John R. Williams, claims in relevant part that his right to due process was denied when the court failed to provide him with proper notice of a disciplinary hearing and a meaningful opportunity to be heard before rendering a judgment suspending him from the practice of law for twenty days. We agree and, accordingly, reverse the judgment of the trial court and remand the case for a new hearing. The following facts, which are ascertained from the record and are not in dispute, inform our review. There are two underlying cases that are relevant to the instant matter; one is a state court case and the other is a federal court case. In the state court case, Williams represented criminal defendant Angelo Reyes during the course of Reyes' trial in the judicial district of New Haven. In that case, Reyes had been charged with two counts of arson in the second degree in violation of General Statutes § 53a-112 (a)(2), two counts of conspiracy to commit criminal mischief in the first degree in violation of General Statutes § 53a-48 (a) and 53a-115 (a)(1), and conspiracy to commit burglary in the first degree in violation of General Statutes § 53a-48 (a) and 53a-101 (a)(1). Before facing these charges in state court, however, Reyes had been tried in federal court on similar charges. He was acquitted of those federal charges. As jury selection was about to begin in the state court case, the court discussed with Williams and the prosecutor the federal court case in which Reyes had been acquitted. In particular, the court discussed the fact that counsel had met in chambers and agreed that the jury verdict in the federal case would not be mentioned during voir dire in Reyes' state court case. The court then stated: "And second . during the trial itself, the federal jury's verdict will not be mentioned by counsel or witnesses without prior permission of the court, and, if somebody wants to bring it up, it's a simple matter to say, Your Honor, may the jury be excused, and then, you know, address me seeking permission if that seems appropriate." The court then asked if that was agreeable to the parties, and both the prosecutor and Williams said "yes." Following jury selection, the court clarified that Williams had no outstanding motions on behalf of Reyes, which Williams confirmed, and it then addressed an outstanding motion in limine that the state had filed concerning the use of information from Reyes' federal court trial. The court reiterated its earlier ruling that "there was to be no mention of the verdict in the federal trial without prior consent of the court," and it asked the prosecutor if he was seeking an order that was even broader than that. After further discussion among the prosecutor, Williams and the court, the court then stated: "I'm going to stick with my original order, which is that the outcome of the federal proceeding may not be mentioned in the jury's presence without prior consent of the court." On October 1, 2014, during the evidentiary portion of Reyes' trial, the state called to the witness stand one of Reyes' alleged coconspirators, Osvaldo Segui, Sr. During direct examination, Segui testified in part about a specific plea agreement he had with federal authorities and his expectations related to his pending state criminal charges. On cross-examination, Williams inquired about, inter alia: Segui's conviction in his federal criminal case; the plea agreement Segui had with the federal prosecutor for a sentence that was less than the mandatory minimum sentence; the fact that Segui had testified against Reyes in Reyes' federal criminal trial as part of Segui's plea agreement for, inter alia, a reduced sentence; Segui's pending state charges; and Segui's agreement with the state, which was contingent on his testifying for the state in Reyes' state criminal trial. During cross-examination, the following colloquy occurred between Williams and Segui as Williams attempted to impeach Segui with a transcript from Segui's federal court sentencing hearing: "Q: Isn't it true, Mr. Segui, that in your presence, Assistant United States Attorney McConnell said-and counsel, for your benefit, it's page eleven: '... the verdict in the case is immaterial.' Do you remember him saying that? "A: I don't understand that-material stuff. "Q: You don't know what the word immaterial means? "A: No, I don't. "Q: It means it doesn't matter. "A: Okay. "Q: That was, in fact, your-that was, in fact, what the government told you; isn't that right? "A: I don't recall it, but yes-yes. "Q: All right. And then the [federal] judge spoke, and Judge Shea addressed you directly as well as the other people in the courtroom, do you remember that? "A: Yes.... "Q: Do you remember that Judge Shea said, 'I also want to add, I echo what Mr. McConnell said. While your assistance did not result in a conviction, the fact is-' "[The Prosecutor]: Objection. "The Court: Sustained. The jury will step out." (Emphasis added.) After the jury was excused, the colloquy continued: "The Court: Mr. Williams, I respect you a great deal, but you have expressed your outrage several times already at various things that happened. I think that this is actually pretty outrageous, because we specifically addressed the question of whether the jury should be informed of what [was] the outcome of the federal trial before, and it was agreed that you were not to mention that without the specific consent of the court, and you-you should know that if you wanted to get into this, you needed to obtain my consent prior to mentioning this in front of the jury. "Attorney Williams: You Honor, if I may. "The Court: Please. "Attorney Williams: I know that at an earlier stage of the proceeding that was said, however, subsequently in this room before Your Honor, on the record, when the state raised its-one of its motions in limine concerning the outcome of the federal case, we discussed at length the fact that this witness' testimony here and his understanding is profoundly influenced by everything that happened- "The Court: Nevertheless, you needed my permission, and you did not get it. "Attorney Williams: It was my understanding that Your Honor, by that order, was granting permission. I- "The Court: Your understanding is entirely erroneous, and you should know that. We will consult-in due time, transcripts will be consulted. You are certainly way out of line. Does the state wish a mistrial?" The prosecutor requested time to consult with his colleagues on the matter and indicated that he would like until 2 p.m. to decide whether to seek a mistrial. The court then stated in relevant part: "Mr. Williams, you are way out of line, and I will just tell you right now-and I'm going to ask you if there's going to be any doubt in your mind after I do this-that if you wish to mention or even imply the outcome of the federal trial before the jury in this case, you must get my express permission to do so. Is that clear?" Williams responded: "Yes it is, Your Honor." The court then recalled the jury, told it to "ignore the previous question," and permitted cross-examination to continue until the 1 p.m. luncheon recess. Following the luncheon recess, the court inquired as to whether the prosecutor was seeking a mistrial. The prosecutor stated that he was not seeking a mistrial but that he would like the court to give a curative instruction, to which the court agreed. The court then addressed Williams: "The Court: Mr. Williams, I'll just say now, I'm not gonna-I know you're in the middle of a criminal trial, and you're, of course, one of the-not only an experienced attorney but one of the most experienced attorneys in the state.... Having said that, I have certain responsibilities. I view what happened today as . a very grave matter. I have asked the court reporter to order-I've ordered two transcripts; one is the transcript of what happened at [12:40 p.m.] today, and the other . [is] the transcript of my pretrial order relating to this. "What I'm going to do in addition [to ] this is give you an opportunity-and this is not an urgent matter since a mistrial has not been declared-but with all deliberate speed as we can . to order a transcript of whatever may have occurred in court between my pretrial order and what happened at [12:40 p.m. ] that you say may have allowed you to do what you did, and all of that can be taken into account in a hearing that will be scheduled after the conclusion of this trial. "That's all I'm going to say right now, but you stand . alerted both to the fact that this court views the matter as very serious, and the court unhappily-and I emphasize unhappily-will have to pursue the matter, but only after a fair hearing and giving you an opportunity . to order a transcript of anything that may have occurred in court that . may . mitigate the situation . Is that clear? "Attorney Williams: It is." (Emphasis added.) The court proceeded to recall the jury and give a curative instruction, and Williams resumed cross-examination of Segui. On October 7, 2014, after the close of evidence, counsel engaged in closing arguments. Williams argued, in part: "Without a doubt, [Segui and his son] had a strong motivation to testify falsely. I know you were told and they recited the usual language-well . I'm only gonna get all . these perks, I'm gonna get these good things . if I tell the truth. But, you'll recall that both of them admitted that when they were in federal court, after having testified in federal court, and they came up to be sentenced for the crimes of which they are guilty, of which they admitted that they were guilty, what did the judge tell them? It's not-I'm not the one who decides whether they're telling the truth. The only person who decides is the prosecutor. If you please the prosecutor, you get the credits, and, in that particular [case], what did they get? They had [pleaded] guilty to crimes-not, by the way, crimes charged in this case-other crimes entirely, federal crimes, of which my client has never been convicted. They [pleaded] guilty to those crimes carrying a mandatory minimum sentence set by the Congress of the United States, a mandatory minimum sentence of at least seven years in prison, mandatory. And what did they get? In one case, three years. In the other case, four [years]." (Emphasis added.) Williams continued his summation, which encompasses several pages of transcript. Following closing argument, out of the presence of the jury, the prosecutor indicated to the court that, although he had not wanted to interrupt Williams during his summation, he objected to Williams' statement during closing argument that his client had not been convicted of any federal crime. The court indicated that it also saw this as troubling and stated that a hearing would be held on the matter. On October 9, 2014, the jury returned a guilty verdict on all counts against Reyes, and the court then scheduled a bail hearing for 2 p.m. that same day. Immediately following the bail hearing and the release of Reyes on bail with certain conditions, the court excused the prosecutor, and it requested that Williams remain in the courtroom. Immediately thereafter, the court proceeded to hold a hearing on Williams' actions and the possibility of sanctions. Williams told the court that he was not prepared to go forward at that time because he "had not anticipated that this hearing would be held this afternoon because [the court] had previously indicated that [he] would be given an opportunity [to] obtain such transcripts as [he] needed and review them in preparation [for the hearing]." Williams then informed the court that he had ordered the transcripts as the court had instructed him to do, but that they had not yet been delivered. As a result, he explained, he, therefore, had not had time to prepare for a hearing. Notwithstanding Williams' protestations, the court proceeded with the hearing, found that Williams had violated the order of the court on more than one occasion, and sanctioned him by suspending him from the practice of law for twenty days. This appeal followed. On appeal, Williams argues that the court caught him off guard at the end of his client's bail hearing by immediately holding a hearing regarding his actions during his client's trial. He argues that he tried to explain to the court that he was not prepared and that the court specifically had told him that he would be given time to obtain a transcript and to prepare for a hearing that would be scheduled after Reyes' trial. He contends that trial does not end until after sentencing and that it certainly does not end with a contested bail hearing. He further argues that he "was given no opportunity at all to prepare to meet the accusations against him, and, in fact, was not even given notice that his summation would be considered a separate ground for discipline." Under the particular circumstances of this case, we agree that Williams was not given adequate notice of and time to prepare for the hearing in which the court found him in wilful violation of its orders and ordered him suspended from the practice of law for twenty days. "It is well established that [j]udges of the Superior Court possess the inherent authority to regulate attorney conduct and to discipline the members of the bar.... It is their unique position as officers and commissioners of the court . which casts attorneys in a special relationship with the judiciary and subjects them to its discipline.... "In attorney disciplinary proceedings, two interests are of paramount importance. On the one hand, we must not tie the hands of . courts with procedural requirements so strict that it becomes virtually impossible to discipline an attorney for any but the most obvious, egregious and public misconduct. On the other hand, we must ensure that attorneys subject to disciplinary action are afforded the full measure of procedural due process required under the constitution so that we do not unjustly deprive them of their reputation and livelihood." (Citations omitted; internal quotation marks omitted.) Sowell v. DiCara, 161 Conn.App. 102, 129-30, 127 A.3d 356, cert. denied, 320 Conn. 909, 128 A.3d 953 (2015) ; see Thalheim v. Greenwich, 256 Conn. 628, 649, 775 A.2d 947 (2001) ("At their core, the due process clauses of the state and federal constitutions require that one subject to a significant deprivation of liberty or property must be accorded adequate notice and a meaningful opportunity to be heard.... These requirements apply to the imposition of sanctions [on attorneys]." [Citations omitted; internal quotation marks omitted.] ). "Suspension [of an attorney] may be summary, and is an inherent power of the . court.... As long as there is no denial of due process . [a court] may, for good cause, discipline attorneys who practice before it by suspending them from practice . for a reasonable and stated period." (Citation omitted.) In the Matter of Presnick, 19 Conn.App. 340, 351, 563 A.2d 299, cert. denied, 213 Conn. 801, 567 A.2d 833 (1989). "To satisfy the requirements of due process, attorneys subject to disciplinary action must receive notice of the charges against them.... [T]he notice afforded to an attorney subject to a disciplinary hearing may be oral or written, as long as it adequately informs the attorney of the charges against him or her and allows him or her to prepare to address such charges. Similarly, an attorney subject to disciplinary proceedings must be given reasonable notice of the charges against him or her before the proceedings commence...." (Citations omitted; emphasis altered; internal quotation marks omitted.) Burton v. Mottolese, 267 Conn. 1, 20-21, 835 A.2d 998 (2003), cert. denied, 541 U.S. 1073, 124 S.Ct. 2422, 158 L.Ed.2d 983 (2004). In addition, "ordinarily due process would require that a hearing be held before sanctions can be imposed...." In the Matter of Presnick, supra, 19 Conn.App. at 351, 563 A.2d 299 ; see Briggs v. McWeeny, 260 Conn. 296, 318, 796 A.2d 516 (2002). In this case, it is clear that the court did not issue a summary suspension. See Practice Book § 2-45. Here, the court told Williams that it would schedule a hearing after Reyes' trial. The court then informed Williams that he could order transcripts so that he would be prepared for that hearing. The court further explained to Williams that, at that hearing, Williams would be permitted to present his argument to the court that demonstrated that he did not wilfully violate the court's order. Specifically, the court told Williams during the October 1, 2014 proceedings that "this [was] not an urgent matter since a mistrial ha[d] not been declared [but that he should] order a transcript of whatever may have occurred in court between [the court's] pretrial order and what happened at [12:40 p.m.] that . may have allowed you to do what you did, and all of that can be taken into account in a hearing that will be scheduled after the conclusion of this trial." (Emphasis added.) On that direction, Williams did order a transcript of the proceedings. When the court, on October 9, 2014, immediately following Reyes' contested bail hearing, told Williams to remain in court and then proceeded to conduct a disciplinary hearing, Williams, as soon as the court gave him an opportunity, informed the court that he was not prepared to go forward at that time. He explained that he had not anticipated that the hearing would be held at that moment given that the court had told him to order a transcript in order to prepare for a hearing, which he had done. He also explained that the transcript was not yet available from the court reporter. The court, nevertheless, proceeded to conduct the hearing, for which Williams had not been given time to prepare. In sum, although the court clearly wanted to address this extremely serious matter as soon as possible, it, nevertheless, did not rule summarily at the time of the conduct that it found offensive. See Practice Book § 2-45. Rather, the court told Williams that he should order the relevant transcripts and be prepared for a hearing that would be scheduled after Reyes' trial and at which Williams would be given the opportunity to try to explain why his conduct was not a violation of the court's order. Williams, thus, was entitled to a properly noticed hearing regarding his conduct and whatever sanction might be appropriate, and he was entitled to time to prepare for that hearing. Accordingly, the judgment must be reversed and the case remanded to the trial court for a new hearing. The judgment is reversed and the case is remanded for further proceedings. In this opinion the other judges concurred. The entire colloquy regarding the state's motion in limine was as follows: "The Court: All right. Good morning. I've had a productive meeting at sidebar with counsel about the motions that are pending. Right now, Mr. Williams, as I understand, there are no defense motions that are claimed at this time? "Attorney Williams: That's correct, Your Honor. "The Court: Thank you. Turning to state motions, let me just go through this. First, I have a motion in limine regarding the federal trial. It was unclear at sidebar whether this seeks any relief other than what the court has previously ordered. The court previously ordered-and I believe there was no exception to this order-that there was to be no mention of the verdict in the federal trial without prior consent of the court. That's what the court ordered. "Obviously, it seems to me that if any witness for either party testifies and then on cross-examination the opposing party seeks to impeach that witness with some sort of prior inconsistent statement, it can always be said, sir, at a prior proceeding, did you not, on, you know, whatever date it is, did you not say that; and, that could certainly be done without mentioning the verdict. I don't know . whether you're seeking . any broader ruling of the court. "[The Prosecutor]: Not necessarily, Your Honor. I think the language that I- "The Court: Not necessarily. Well, just tell me what you are seeking. "[The Prosecutor]: Absolutely. Well, I think the language I use is a bit broader in the request because I think we'll go down a slippery slope if we start mentioning the investigations and the involvement of the federal case. We're just trying to avoid that, going down to the verdict and to the jury and- "The Court: Well, sure, but when a witness testifies-well, first, in terms of investigations, I'm guessing there's going to be prosecution witnesses who have investigated both the federal and the state case. "[The Prosecutor]: But we're not intending to elicit any testimony regarding the other matters. "The Court: Yes, but, certainly, that may be the case, but somebody can always be asked-I mean, if, for example, somebody can always be asked if he's aware of a fact and somebody could've become aware of a fact through a prior investigation, and it's not my rule to hamstring the defense on this. In fact, I think that while questions . can certainly be put in some sort of way that doesn't specifically name a prior investigation, at some point, it may become necessary to bring to the jury's attention that there was some sort of prior proceeding-for example-what I certainly anticipate-and this could be the case with either side-is that if any witness called by the prosecution or by the defense testifies in a way that is perceived to be different from their testimony in the federal proceedings, that witness can certainly be asked, is it not true, sir, that in a prior proceeding you said X, Y and Z? I don't see any way around that, and I've certainly had many cases like that where that's, for example, I've had several trials that have followed a mistrial; more benignly, it frequently happens that, say, a police officer or civilian witness might testify in motions perhaps, and then maybe testifies a little bit differently on the stand, and the way the lawyers usually couch the question is, sir, isn't it true that in a prior proceeding, you said X, Y, and Z. "[The Prosecutor]: I think that's perfectly appropriate. I'm not in any way trying to limit the use evidentiary-wise of a prior consistent or inconsistent- "The Court: So, that it may well come to the jury's attention it was some sort of prior proceeding. I don't know that it has to be identified. "[The Prosecutor]: That's our concern. "The Court: So, Mr. Williams, I'm certainly not here to hamstring you, and I can imagine circumstances in which the jury might have to know that there was a prior federal trial. But, I'm wondering if, for the most part, you could at least preliminarily be content with a form of the question, sir, in a prior proceeding on whatever date it was, did you not testify as to X, Y, and Z? That sort of thing. "Attorney Williams: Well, in that particular sort of situation, of course, that's traditionally the way we do it. "The Court: Sure. "Attorney Williams: But there's much more to it in this case. I mean, for heaven's sake, they're bringing in [Federal Bureau of Investigation] agents. "The Court: Sure. "Attorney Williams: [Federal Bureau of Investigation agents] don't conduct investigations of state cases. I mean, how am I going to . examine them on direct? How am I going to cross-examine them? "The Court: Well, I guess that we'll have to see. Yeah. "Attorney Williams: And we have all of these cooperation agreements. Those cooperation agreements aren't with the state's attorney; they're with the U.S. attorney . and the- "The Court: So maybe-so the rabbit may be well out of the hat. "Attorney Williams: Well out of the hat. "The Court: Yeah. You know . at this point, here's what I'm going to do with the state's motion. I'm going to stick with my original order which is that the outcome of the federal proceeding may not be mentioned in the jury's presence without prior consent of the court. It seems to me what Mr. Williams says is intuitively correct to me, that it will just have to be obvious when [Federal Bureau of Investigation] agents and the like testify or perhaps when a cooperation agreement comes into evidence that there was some sort of prior federal proceeding. That's something the court can live with, and, I mean, the most important thing is that the relevant evidence comes out. Whether the outcome of the federal proceeding is relevant-you know-right now, I don't see it. I mean, any-I go on the assumption anything is possible, but my prior consent has to be obtained. "So I'm not here to . force everybody into awkwardness by any means. I don't think it's particular[ly] prejudicial to either party for the jury to know that there may have been some sort of prior federal proceeding [in] which all these . agents and the like were investigating, [in] which some witnesses . may have signed cooperation agreements. We just have to see. So, at any rate, that's my order." Both Segui and his son, Osvaldo Segui, Jr., were alleged to have been Reyes' coconspirators, and both were convicted in federal court after entering into plea agreements. Additionally, both Segui and his son testified against Reyes in Reyes' federal court trial and in his state court trial. The court gave the following curative instruction: "Ladies and gentlemen, I just want to give you one instruction concerning the question that was put to you about the federal [judge's] sentencing remarks-this was [at approximately 12:40 p.m.] and you'll recall there was a question and you were excused. First, the objection to that question has been sustained, it's not part of the evidence; you should disregard it. "Second, it's no secret . that there was a federal proceeding in the fall of 2013 at which this witness . testified [and] in which Mr. Reyes was also involved, but the subject matter of the federal trial and the subject matter of this are quite different subject matters, and whatever happened in that trial, one way or the other-and there's no evidence of what happened in that trial one way or the other-must have no bearing on what happens here because your sworn duty as jurors in this case . is to decide the case based exclusively on the evidence presented in this court, and the legal instructions you're given by the court at the end of the case." After the prosecutor indicated that he had a concern with Williams' closing argument, the following colloquy occurred: "[The Prosecutor]: Yes. I just have a comment to make in regards to defense counsel's closing.... The comment that I was concerned about was in reference to-during the course of Mr. Williams' comments, he made a comment to the effect of-in referencing the federal convictions of [Mr. Segui and his son]-there was a comment to the effect of-and you recall those are crimes of which my client was never convicted. "The Court: I noticed that as well. Mr. Williams, the state did not object. I didn't want to interrupt, but, you know, I've explained already that this is a very grave matter. "Attorney Williams: That wasn't- "The Court: I have ordered a transcript from the reporter, and as I have told you, following the jury's verdict, there will be a hearing on what I have to do with you. I am not looking forward to that, but there will be such a hearing, at which point you will be allowed to say anything you want in your defense, but you must know that that remark certainly wouldn't be chalked in your favor. "Attorney Williams: You Honor, that remark was in no way a violation of your order. Your Honor, in fact- "The Court: That's what you say. "Attorney Williams: Well, it's more than that. The state elicited evidence, as I recall- "The Court: You said crimes of which your client has never been convicted. "Attorney Williams: That's correct. "The Court: That's a clear-well- "Attorney Williams: I never- "The Court: -it may be correct, but we have no evidence-evidence one way or the other of which-of what the outcome of the federal proceeding is. "Attorney Williams: There's no evidence that he was even charged with the crimes that they [pleaded] guilty to. That's my point. "The Court: Nevertheless, there is no evidence of the outcome of any federal proceeding, and we know that the court had repeatedly given orders on this. I'm not looking for argument at this time. You will be given an opportunity to say anything you want in your defense at the sanctions hearing, but you are-I am very sad to say-digging a grave that was pretty deep already, and that I'm going to have to consider in doing things that . I don't want to do." (Emphasis added.) We are aware that the court also told Williams, following his summation, that a hearing would take place following the jury's verdict. In light of the court's earlier statement, we are not persuaded that this statement gave Williams notice that the hearing would take place immediately after the bail hearing, or that it gave him adequate time to obtain the necessary transcripts and prepare for that hearing. We offer no opinion as to whether due process would permit the court to order a suspension from the practice of law in a summary proceeding.

12489405

Paul T. MCDONALD v. Francis M. MCDONALD, et al.

McDonald v. McDonald

2017-03-14

AC 38289

702

709

157 A.3d 702

157

West's Atlantic Reporter, Third Series

Connecticut Appellate Court

Connecticut

2021-08-27T20:57:14.014091+00:00

Fastcase

Paul T. MCDONALD v. Francis M. MCDONALD, et al.

Paul T. MCDONALD v. Francis M. MCDONALD, et al. AC 38289 Appellate Court of Connecticut. Argued November 16, 2016 Officially released March 14, 2017 Paul T. McDonald, self-represented, the appellant (plaintiff). John K. McDonald, Waterbury, with whom, on the brief, were Hugh D. Hughes New Haven, and Paul Pollock, for the appellees (named defendant et al.). David J. McDonald, Fairfield, for the appellee (defendant David J. McDonald, LLC). Alvord, Sheldon and Norcott, Js.

2926

17884

SHELDON, J. The plaintiff, Paul T. McDonald, appeals from the summary judgment rendered in favor of the defendants, Francis M. McDonald, James E. McDonald, John J. McDonald and Vincent J. McDonald, all of whom are his brothers, and David J. McDonald, LLC, a limited liability company organized by his nephew. On appeal, he claims that the trial court improperly concluded that his claim for partition of certain real property jointly owned by all of the parties was barred by res judicata because (1) the previous judgment that was relied upon by the trial court as having said preclusive effect was not a final judgment and (2) his right to partition is absolute. We affirm the judgment of the trial court. The trial court set forth the following relevant procedural history in its memorandum of decision granting the defendants' motion for summary judgment. "In his complaint [in this action], the plaintiff, Paul T. McDonald, alleges that he and the defendants . own, as tenants in common, real property located in Middlebury, Connecticut, on the north side of Route 64, known as 2328 Middlebury Road, consisting of an unsubdivided, irregularly shaped 17.35 acre parcel of residentially zoned land. He alleges that the parcel contains an older house in poor condition, that a portion of the parcel is leased to a swim club, and that that portion produces income to pay the taxes and other expenses of the property. "The plaintiff alleges that he holds a 3/21 or one-seventh interest therein, and that the defendants own the balance of the interests therein, in either 3/21, 4/21, or 1/10 interests. The complaint is pleaded in three counts, in which the plaintiff seeks, respectively, partition in kind, partition by sale, and partition by equitable distribution. "In support of the[ir] motion [for summary judgment], the defendants argue that the plaintiff's three counts are barred by res judicata. This argument is premised on a previous partition action brought in this court by the plaintiff, McDonald v. McDonald, Docket No. UWY-CV-11-6011618 (first action). In the first action, the plaintiff sought only a partition by sale. He did not seek partition in kind. "The first action was tried before this court in November, 2012. At trial, the plaintiff and another witness testified and exhibits were presented. The court viewed the property at issue in that action, including the property which is the subject of the current complaint, in the presence of the parties, on December 4, 2012. "After review of the parties' posttrial briefs in the first action, the court issued a memorandum of decision, dated January 28, 2013 (decision), finding that the plaintiff had not met his burden of proof. [The court found that the plaintiff failed to present any evidence that a physical division of the property was impractical or inequitable, or that a partition by sale would better promote the owners' interests than a partition in kind. The court thus declined the plaintiff's request for a partition by sale and judgment] was entered for the defendants. The plaintiff did not appeal the court's decision." (Footnotes altered.) On September 17, 2013, the plaintiff filed this action seeking partition of 2328 Middlebury Road. In his three count complaint, he asked that the property be partitioned, in kind, by sale or by equitable distribution. He essentially reiterated in this complaint the allegations from his complaint in the first action, but asserted three causes of action purporting to seek three possible alternative modes of partition. The defendants moved for summary judgment on the ground that the plaintiff's action was barred by the doctrine of res judicata because the claims asserted herein were litigated, or could have been litigated, in the first action. In response, the plaintiff argued that the doctrine of res judicata did not apply because his right to partition is absolute, the first action did not result in a final judgment that had any preclusive effect on this action, and the doctrine of res judicata is "not a hard and fast doctrine but one which must give way when the mechanical application would frustrate other social policies." On August 18, 2015, the court granted summary judgment in favor of the defendants, finding that the plaintiff's action was barred by the doctrine of res judicata. In so doing, the court explained: "[I]n the first action, the plaintiff litigated to conclusion his claims about several parcels, including that at issue here, resulting in a final judgment, from which the plaintiff took no appeal. No further determination of the matter litigated was required in connection with the first action." On that basis, the court rejected the plaintiff's claim that the first action had not concluded with a final judgment. The court further reasoned: "Comparison of the operative complaint and the judgment in the first action to the plaintiff's three count complaint in this action clearly shows that the transactional test for the application of res judicata has been met. The factual underpinnings of the current claims and those that were actually litigated in the first action are the same, in that the plaintiff brought and litigated through trial and judgment a prior partition action concerning the same property. It is apparent that the plaintiff's claims, all of which relate to the same group of facts comprising the 'transaction,' i.e., the parties' ownership of the property at issue, actually were or could have been brought in the first action.... While the plaintiff could have sought partition in kind in the first action, he expressly pleaded that it would be impractical or inequitable. In this action, he again seeks partition by sale, which he sought in the first action.... "On balance, the fact that the plaintiff had a complete opportunity, in the first action, to vindicate his right to partition, must be taken into account. In the first action, he intentionally adopted a restricted strategy concerning partition, both in terms of the relief he sought, and the evidence he chose to present. The defendants went to trial and judgment was rendered in their favor. The fact that the plaintiff did not emerge from the first action with a judgment of partition was entirely as a result of his own voluntarily undertaken approach." (Citations omitted; footnote omitted.) This appeal followed. Although the plaintiff does not challenge the trial court's determination that he litigated or had the opportunity to litigate his claims for partition in the first action, he argues that the judgment rendered in that action was not a final judgment that precludes him from raising his claims for partition again. He also claims that the trial court in the first action improperly deprived him of his absolute right to partition and that the absolute nature of that right prevents the application of res judicata to this action. We disagree. We first set forth the applicable standard of review and governing legal principles. " 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 . that the 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.... "The doctrine of res judicata holds that an existing final judgment rendered upon the merits without fraud or collusion, by a court of competent jurisdiction, is conclusive of causes of action and of facts or issues thereby litigated as to the parties and their privies in all other actions in the same or any other judicial tribunal of concurrent jurisdiction.... If the same cause of action is again sued on, the judgment is a bar with respect to any claims relating to the cause of action which were actually made or which might have been made.... Claim preclusion (res judicata) and issue preclusion (collateral estoppel) have been described as related ideas on a continuum.... More specifically, collateral estoppel, or issue preclusion . prohibits the relitigation of an issue when that issue was actually litigated and necessarily determined in a prior action between the same parties or those in privity with them upon a different claim.... 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.... "The applicability of the doctrines of collateral estoppel or res judicata presents a question of law that we review de novo.... Because these doctrines are judicially created rules of reason that are enforced on public policy grounds . we have observed that whether to apply either doctrine in any particular case should be made based upon a consideration of the doctrine's underlying policies, namely, the interests of the defendant and of the courts in bringing litigation to a close . and the competing interest of the plaintiff in the vindication of a just claim.... These [underlying] purposes are generally identified as being (1) to promote judicial economy by minimizing repetitive litigation; (2) to prevent inconsistent judgments which undermine the integrity of the judicial system; and (3) to provide repose by preventing a person from being harassed by vexatious litigation.... The 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." (Citations omitted; internal quotation marks omitted.) Powell v. Infinity Ins. Co ., 282 Conn. 594, 599-602, 922 A.2d 1073 (2007). "The right to partition is founded on the principle that no person can be compelled to remain the owner with another of real property, even if the party seeking partition willingly entered into the joint ownership.... General Statutes § 52-495 confers an absolute right of partition upon any person holding real property as a tenant in common with others.... In those cases where the court finds that a sale of the property would better promote the interests of the owners, the court may order such a sale. General Statutes § 52-500.... This jurisdiction has long favored partition in kind, or physical division, over partition by sale.... Because we presume that partition in kind is in the best interests of the owners, the burden of proof rests on the party seeking a sale to demonstrate that it is the better remedy.... This burden may be carried by satisfying two conditions: (1) the physical attributes of the property make partition in kind impracticable or inequitable; and (2) the interests of the owners would better be promoted by partition by sale.... A plaintiff in an action for partition seeks to sever or dissolve involuntary joint ownership in real property. In furtherance of that objective, a court is limited to rendering a judgment of either partition in kind or by sale of the real property . thus terminating the ownership relationship between the parties." (Citations omitted; footnotes omitted.) Wilcox v. Willard Shopping Center Associates, 208 Conn. 318, 325-26, 544 A.2d 1207 (1988). With these principles in mind, we address the plaintiff's claims in turn. I The plaintiff first claims that the trial court improperly determined that his claims in this action were barred by the doctrine of res judicata because the first action did not result in a final judgment that could have a preclusive effect on his current claims. Specifically, the plaintiff claims that there was no final judgment in the first action because the judgment in that action did not settle the controversy between him and the defendants in that it did not terminate his joint ownership of the subject property. We are not persuaded. Practice Book § 61-2 provides in relevant part: "When judgment has been rendered on an entire complaint, counterclaim or cross complaint . such judgment shall constitute a final judgment...." In the plaintiff's first action for partition, the court held that the plaintiff failed to satisfy his burden of proof for a partition by sale and thus found in favor of the defendants. Although the court's judgment did not sever the plaintiff's joint tenancy with the defendants, it fully and finally disposed of the sole claim advanced by the plaintiff in his complaint, denying the sole remedy that he sought therein. That ruling thus constituted a final judgment that was immediately appealable. In support of his claim that there was no final judgment in the first action, the plaintiff cites the case of LaBow v. LaBow , 69 Conn.App. 760, 765, 796 A.2d 592, cert. denied, 261 Conn. 903, 802 A.2d 853 (2002), for the proposition that: "Where the manner of partition has not been determined, there is no final judgment in a partition action." In LaBow , the court granted the relief of partition, but had not yet determined the appropriate mode of partition. Id. at 763, 796 A.2d 592. This court held that there was no final judgment on the ground that the rights of the parties had not been concluded because the manner of partition had not yet been determined. Id. at 766, 796 A.2d 592. This case is distinguishable from LaBow in that the plaintiff here sought only one mode of partition in the first action-partition by sale-and he failed to meet his burden of proving that he was entitled to that remedy under the circumstances presented. In denying the only relief that the plaintiff sought in the first action, the trial court concluded the entire controversy, as it had been pleaded by the plaintiff. The plaintiff's claim that there was no final judgment in the first action must therefore fail. II The plaintiff also claims that the trial court erred in concluding that his action was barred by res judicata because his right to partition is absolute. The plaintiff's claim in this regard is based upon two equally meritless arguments. First, the plaintiff contends that the trial court erred in granting summary judgment on the ground that his claims in this action were precluded by the judgment in the first action because the judgment in the first action "resulted from . the failure of the [trial] court in the prior action (1) to honor the plaintiff's absolute right to partition, (2) to award a partition sale under the pleadings, and (3) to award a partition sale as consistent with statutes and case law." These arguments constitute an impermissible collateral attack on the judgment in the first action, from which the plaintiff failed to appeal. See In re Shamika F. , 256 Conn. 383, 407-408, 773 A.2d 347 (2001) (collateral attack on judgment is procedurally impermissible substitute for appeal). Because the plaintiff failed to appeal from the judgment in the first action, we can afford him no remedy as to the claims of error that he has advanced regarding that judgment. Second, the plaintiff contends that his right to partition survives the judgment in the first action because that judgment did not sever his joint tenancy of the subject property, the severance of which is his absolute right. His argument is that because his right to partition is absolute, he can ask for it at any time, and many times, in serial actions. Under the plaintiff's theory, he would be entitled to bring serial actions for partition, even absent any intervening change in the nature or characteristics of the subject property, until he obtains the relief that he is seeking. In other words, the plaintiff is claiming that the doctrines of res judicata and collateral estoppel do not apply to partition actions. He has not, however, provided any legal authority to support his position. In the absence of any legal authority to support his claim, we cannot conclude that the important public policies underlying the doctrines of preclusion should not apply to partition actions. Moreover, although the relief sought in this action is not pleaded exclusively as a partition by sale, the plaintiff stressed in his brief to this court, as well as in his oral argument, that division of the property remains impractical, and thus that he is still seeking only a partition by sale. He has been unwavering in his insistence that a physical division of the property would be impractical and that a partition by sale is the only way to terminate the joint tenancy of the parties. Unfortunately for him, he did not prove that claim in his first partition action, where he had a full and fair opportunity to do so. The judgment is affirmed. In this opinion the other judges concurred. In the first action, the plaintiff sought partition of three properties, including 2328 Middlebury Road. Francis M. McDonald filed a motion for summary judgment, with which the remaining defendants joined.

12498831

Angelo TEDESCO, Trustee v. Resmije AGOLLI, et al.

Tedesco v. Agolli

2018-05-29

AC 40123

672

685

189 A.3d 672

189

West's Atlantic Reporter, Third Series

Connecticut Appellate Court

Connecticut

2021-08-31T19:05:39.044951+00:00

Fastcase

Angelo TEDESCO, Trustee v. Resmije AGOLLI, et al.

Angelo TEDESCO, Trustee v. Resmije AGOLLI, et al. AC 40123 Appellate Court of Connecticut. Argued March 14, 2018 Officially released May 29, 2018 Justin J. Garcia, Sacramento, for the appellants (named defendant et al.). Jeremy S. Donnelly, Hartford, for the appellee (substitute plaintiff Scott Tedesco, trustee of the Heritage Builders of Waterbury, LLC, 401 (k) Profit Sharing Plan). Lavine, Keller and Bear, Js.

6333

38594

PER CURIAM. The defendants, Resmije Agolli and Fikri Development, LLC (Fikri), appeal from the judgment of foreclosure by sale rendered in favor of the substitute plaintiff, Scott Tedesco, trustee of the Heritage Builders of Waterbury, LLC, 401 (k) Profit Sharing Plan. On appeal, the defendants challenge the trial court's findings with respect to the dates of disassociation and removal of Gina Antonios as member and Joseph Antonios as manager of Fikri. The defendants also claim that the court improperly found that Agolli, as a member of Fikri, had the authority to bind Fikri to the mortgage at issue in the present case. Angelo Tedesco, as trustee of the Angelo P. Tedesco Money Purchase Pension Plan, served a complaint seeking foreclosure of a mortgage on several parcels of real property in favor of the Angelo P. Tedesco Money Purchase Pension Plan. He alleged that he was the holder of the note and mortgage. The defendants filed an answer in which they denied all of the plaintiff's substantial allegations against them, and they asserted five special defenses. The defendants later stipulated that the plaintiff was the owner and holder of the note, and that the note was in default. The defendants also limited their special defenses to lack of consideration, duress, and no meeting of the minds. Following a trial to the court, the court found that the defendants had not met their burden of proof on the remaining special defenses and it rendered judgment in favor of the plaintiff as to liability. The court subsequently rendered judgment of foreclosure by sale in favor of the plaintiff. After examining the record and the briefs and considering the arguments of the parties, we are persuaded that the court correctly rendered judgment of foreclosure by sale in favor of the plaintiff. The issues raised by the defendants were resolved properly in the trial court's thorough and well reasoned memorandum of decision rendering judgment in favor of the plaintiff as to liability. We therefore adopt that memorandum of decision as the proper statement of the relevant facts, issues and applicable law. See Tedesco v. Agolli , Superior Court, judicial district of Waterbury, Complex Litigation Docket, Docket No. CV-12-6016130-S (June 21, 2016) (reprinted at 182 Conn. App. 294). It would serve no useful purpose for us to repeat the discussion contained therein. See Seminole Realty, LLC v. Sekretaev , 162 Conn. App. 167, 169, 131 A.3d 753 (2015), cert. denied, 320 Conn. 922, 132 A.3d 1095 (2016). The judgment is affirmed and the case is remanded for the purpose of setting a new sale date. APPENDIX ANGELO TEDESCO, TRUSTEE v. RESJIMI AGOLLI ET AL. Superior Court, Complex Litigation Docket at Waterbury File No. CV-12-6016130-S Memorandum filed June 21, 2016 Proceedings Action to foreclose a mortgage on certain real property owned by named defendant et al. Judgment for plaintiff as to liability. Jeremy S. Donnelly, for the substitute plaintiff Scott Tedesco, trustee of the Heritage Builders of Waterbury, LLC, 401 (k) Profit Sharing Plan. Justin J. Garcia, for the named defendant et al. Opinion DOOLEY, J. PRELIMINARY STATEMENT This is an action to foreclose a mortgage covering several parcels of real property located in Waterbury, Connecticut, each of which is owned by the defendant Fikri Development, LLC (Fikri). The properties at issue are: (1) 3743 East Main Street; (2) 3496 East Main Street; (3) 51 Matteson Road; and (4) 3514 Main Street. The defendant Resjimi Agolli (Agolli) is currently the sole member of Fikri. The defendants assert several special defenses to the foreclosure action. Trial was conducted over the course of three days in May, 2016. The court heard testimony from seven witnesses and admitted numerous documents into evidence. Simultaneous trial briefs were submitted on June 1, 2016. The court has considered the testimony and evidence introduced, the arguments set forth in the parties' memoranda, the authorities cited therein, and renders this decision based thereupon. For the reasons set forth below, judgment will enter in favor of the plaintiff as to liability. FACTUAL FINDINGS "In a case tried before a court, the trial judge is the sole arbiter of the credibility of the witnesses and the weight to be given specific testimony.... It is within the province of the trial court, as the fact finder, to weigh the evidence presented and determine the credibility and effect to be given the evidence." (Citation omitted; internal quotation marks omitted.) Cadle Co. v. D'Addario , 268 Conn. 441, 462, 844 A.2d 836 (2004). The court makes the following factual findings by a fair preponderance of the evidence, unless otherwise indicated, based upon the better, more credible evidence presented. Agolli came to the United States in 1967 from what is now Macedonia as a young woman newly married to Fikri Agolli. She and her husband settled in the Waterbury area where they raised three children. Eventually, Agolli's husband owned and operated a diner in Waterbury, at which Agolli sometimes worked. As the children grew, they helped in the diner as well. Ultimately, each of the children pursued careers of their own. In 2006, Agolli's husband was diagnosed with cancer, an illness to which he would eventually succumb. Agolli could not run the diner on her own and so arranged to sell it. At the time, there was an interested buyer for the diner but his interest was contingent upon a zoning change being made. The buyer paid Agolli $7500 per month as consideration for not selling the diner to someone else. Ultimately, the putative purchaser did not obtain the zone change and terminated the option to purchase. Thereafter, Agolli located a buyer and sold the diner for $375,000. During his life, Agolli's husband had purchased numerous parcels of undeveloped property in the Waterbury area. After his passing, Agolli became the owner of these parcels. Joseph Antonios was a local mortgage broker who ran his own business, Metro Mortgage. He also owned and operated The Private Mortgage Fund, LLC (The PMF), which financed mortgage loans. Fesnik Agolli (Nik), Agolli's son, worked for Antonios' mortgage brokerage business for approximately fourteen years. He is presently a police officer for the city of Waterbury. During the time that Nik Agolli worked for Metro Mortgage, Antonios became well known to and a friend of the Agolli family. He would often accompany Nik Agolli to Agolli's home for dinner. The Agollis liked and trusted Antonios. In 2007, Antonios began discussions with Agolli about developing her properties so that they would generate cash flow for Agolli. Fikri was formed and Agolli transferred all of her real estate holdings into Fikri, to include her personal residence. Agolli was a 50 percent member; Antonios' wife, Gina, was a 50 percent member; and Antonios was made the manager. The arrangement called for Antonios, as the manager, to develop the properties. The operating agreement gave Antonios broad and largely unfettered authority to act on behalf of Fikri. Between 2008 and 2010, Antonios borrowed hundreds of thousands of dollars on behalf of Fikri, securing these loans with the properties Agolli had transferred into Fikri. Some of these loans were financed by the Angelo P. Tedesco Money Purchase Pension Plan (ATMPPP). Angelo Tedesco was a local property developer. He had a business relationship with Antonios, and would, at times, provide the funds through which The PMF extended loans. In 2008, Antonios arranged for The PMF to loan Fikri $750,000. This debt was secured by a mortgage on the four properties at issue here, as well as Agolli's personal residence located at 375 Maybrook Road, Waterbury, Connecticut, and an undeveloped parcel of land located on Austen Road in Waterbury, Connecticut. In 2010, Tedesco, as Trustee of the ATMPPP, agreed to take an assignment of this note and mortgage. In connection therewith, Agolli, on behalf of Fikri, signed a Note and Mortgage Modification Agreement, to include a new Promissory Note dated January 12, 2010 (exhibit B). This transaction closed on or about January 12, 2010. The Promissory Note contained a 10 percent interest rate and a payment schedule of interest only for twelve months with the principal due in full on January 12, 2011. No discernible progress was made in the development of the properties. As a result, the properties did not generate any cash flow with which to service the enormous debt which had been taken on by Fikri. Fikri defaulted under the terms of the January, 2010 Note. By service of a writ of summons and complaint filed September 3, 2010, Angelo Tedesco as Trustee of the ATMPPP commenced a foreclosure action against Agolli and Fikri. Fikri and Agolli were represented by Attorney Timothy Sullivan of Mahaney, Geghan & Sullivan. Attorney Sullivan was a childhood friend of Nik Agolli and had known the Agolli family for many years. Nik Agolli asked Attorney Sullivan to defend the foreclosure with the primary objective being the securing and safeguarding of Agolli's personal residence on Maybrook Road in Waterbury, Connecticut. Although it is not clear precisely when the relationship between Agolli and Antonios soured, following the filing of the foreclosure action, the determination was made to remove both Joseph and Gina Antonios from any further involvement with Fikri. Also during this time period, Agolli spoke directly with Angelo Tedesco in an effort to resolve the foreclosure and satisfy Fikri's debt to the ATMPPP. She testified that she asked him whether he intended to leave her "out on the street" with nothing. Agolli wanted Tedesco to accept $500,000 from the anticipated sale of one of the parcels of property in full satisfaction of Fikri's debt. Attorney Sullivan eventually worked out a resolution of the foreclosure action with Tedesco, who was represented by Attorney Paul Margolis. The debt would be refinanced as follows. Fikri would consummate the sale of property located on Austen Road, Waterbury, Connecticut, from which $290,000 would be paid to Tedesco to pay down the outstanding Fikri debt. Fikri would sign a new Promissory Note in the reduced amount of approximately $571,000. The new Note would bear interest at 5 percent, instead of the previous interest rate of 10 percent. The new Note would be secured by the four properties at issue here, but Agolli's personal residence would no longer be on the mortgage, protecting her home in the event of future default. The new Note required no payments for approximately six months, to give Fikri time to either sell or develop the property, in a fashion that would permit Fikri to stay current on its debt obligations. Attorney Sullivan testified that he had regular communications with Nik Agolli, Suzi (Agolli) Zenko, as well as Agolli herself, regarding the terms of the refinance and settlement of the pending foreclosure. He testified that he sent all draft documents to Suzi because she is an attorney. Although there were a few discussions with Antonios, Attorney Sullivan was aware that Antonios was being removed from Fikri and he took his direction from the Agollis. Consistent with Attorney Sullivan's testimony, Antonios denied that he was the architect of the refinance or that he negotiated its terms on behalf of Fikri. He was being removed from Fikri, so that limited his involvement to participating in the execution of the negotiated agreement as necessary. However, Nik Agolli and Agolli testified that Attorney Sullivan never discussed the terms of the refinance with them until the morning of the closing. Agolli further testified that she believed Tedesco had accepted her proposal to resolve Fikri's debt by the payment of $500,000 from the proceeds of the Austen Road sale, contingent upon his receipt and review of the purchase and sale contract. She testified that she asked Attorney Sullivan to send the contract to Tedesco and that she believed he had done so. Based upon these discussions, Agolli testified that she believed that the closing which occurred was not a refinance at all, but a resolution of Fikri's debt to Tedesco. She testified that she was "surprised" to learn that she would be asked to sign a new Note or that there would continue to be mortgages on some of her property. Her testimony is not credited. To accept this testimony would be to completely ignore or discredit the testimony of Attorney Sullivan, Antonios, and Attorney Margolis, each of whom had the same understanding of how this refinance came to pass, and whose understanding is entirely consistent with the documents created and signed by Agolli on behalf of Fikri. On July 26, 2011, the closing on the refinance of the Fikri debt occurred in various stages at Attorney Sullivan's office. Present at various times was Agolli, Nik Agolli, Suzi (Agolli) Zenko, Attorney Sullivan, Attorney Margolis, Joseph Antonios and perhaps others. Fikri sold property located on Austen Road, Waterbury, Connecticut, to a disinterested purchaser. The sale proceeds were used to pay off encumbrances on that property, leaving approximately $290,000 for the paydown of the Tedesco debt. Gina and Joseph Antonios were removed from Fikri. The principals had already agreed that Agolli would become the only member of Fikri owning a 100 percent interest and Antonios would be removed as manager. To accomplish this shift, Antonios was to be given a mortgage in the amount of $88,000 secured by the four properties at issue here, though his mortgage was subordinated to the Tedesco note and mortgage. The debt subordination agreement (exhibit 4) was signed by Agolli, on behalf of Fikri, and Antonios and provided to Tedesco's counsel prior to the closing of the refinance. At this juncture, Antonios left Attorney Sullivan's office. Thereafter, Agolli, individually and on behalf of Fikri, executed the documents necessary to effectuate the settlement with Tedesco and the refinance of the debt. These include the Promissory Note (exhibit 1) at issue in this foreclosure and the Open End Mortgage Deed, Security Agreement and Fixture Filing (exhibit 2), which secured the Note. She understood that Fikri would remain indebted to Tedesco under the terms of the new Note and refinance. She understood that she was, at that time, the sole member of Fikri and that she was binding Fikri under the terms of the agreement. As agreed, Tedesco filed a withdrawal of the foreclosure action on July 27, 2011, indicating thereon that the dispute had been "resolved by discussion of the parties on their own." During this time, though it is not clear precisely when, Angelo Tedesco was diagnosed with cancer. Prior to his passing, Scott Tedesco, his son, became the Trustee of the ATMPPP. The note and mortgage were thereafter transferred to the current plaintiff, the Heritage Builders of Waterbury, LLC, for which Scott Tedesco is also the Trustee. The plaintiff remains in possession of the Note, signed by Agolli on behalf of Fikri. The first payment under the Note was due February 1, 2012. Fikri failed to make that payment and each payment due thereafter. The Note is in default. DISCUSSION "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." (Internal quotation marks omitted.) Wells Fargo Bank, N.A. v. Strong , 149 Conn. App. 384, 392, 89 A.3d 392, cert. denied, 312 Conn. 923, 94 A.3d 1202 (2014). Here, based upon the facts found above, the plaintiff has established its prima facie case. The plaintiff is the current holder of the Note and Mortgage Deed securing the Note and the Note is in default. The defendants do not dispute these findings and there are no conditions precedent to foreclosure which have been identified as unmet. The defendants rely instead upon several special defenses: no meeting of the minds; duress and lack of consideration. Each will be discussed in turn. "A valid special defense at law to a foreclosure proceeding must be legally sufficient and address the making, validity or enforcement of the mortgage, the note or both.... Where the plaintiff's conduct is inequitable, a court may withhold foreclosure on equitable considerations and principles.... [I]f the mortgagor is prevented by accident, mistake or fraud, from fulfilling a condition of the mortgage, foreclosure cannot be had ." (Internal quotation marks omitted.) Fidelity Bank v. Krenisky , 72 Conn. App. 700, 705-706, 807 A.2d 968, cert. denied, 262 Conn. 915, 811 A.2d 1291 (2002). The principle that a special defense must relate to the making, validity or enforcement of the note or mortgage "was . considered to include events leading up to the execution of the loan documents ." (Internal quotation marks omitted.) TD Bank, N.A. v. M.J. Holdings, LLC, 143 Conn. App. 322, 328, 71 A.3d 541 (2013). The defendants bear the burden of proving their special defenses. See Emigrant Mortgage Co. v. D'Agostino , 94 Conn. App. 793, 802, 896 A.2d 814, cert. denied, 278 Conn. 919, 901 A.2d 43 (2006). Although the defendants may rely upon more than one special defense, they need only establish one in order to defeat a finding of liability. See Union Trust Co. v. Jackson , 42 Conn. App. 413, 417, 679 A.2d 421 (1996). A Lack of Consideration "To be enforceable, a contract must be supported by valuable consideration.... The doctrine of consideration is fundamental in the law of contracts, the general rule being that in the absence of consideration an executory promise is unenforceable." (Citation omitted; internal quotation marks omitted.) Connecticut National Bank v. Voog , 233 Conn. 352, 366, 659 A.2d 172 (1995). "[C]onsideration is [t]hat which is bargained-for by the promisor and given in exchange for the promise by the promisee . [T]he doctrine of consideration does not require or imply an equal exchange between the contracting parties.... Consideration consists of a benefit to the party promising, or a loss or detriment to the party to whom the promise is made." (Internal quotation marks omitted.) Thoma v. Oxford Performance Materials, Inc. , 153 Conn. App. 50, 56, 100 A.3d 917 (2014). "Consideration . requires intent by the parties to incur benefits or detriments at the time an agreement is entered into." Id., at 57, 100 A.3d 917. "Whether an agreement is supported by consideration is a factual inquiry reserved for the trier of fact ." (Internal quotation marks omitted.) Viera v. Cohen , 283 Conn. 412, 442, 927 A.2d 843 (2007). The court concludes that the Note and Mortgage Deed were supported by consideration and are therefore enforceable. First, both the Note and the Mortgage Deed contain an acknowledgement by the defendants that both are signed upon receipt of consideration. The Note states that it is given "FOR VALUE RECEIVED." The Mortgage Deed provides: "KNOW YE, that Fikri Development, LLC . (the 'Mortgagor') for the consideration of One Dollar ($1.00) and other valuable consideration received to the Mortgagor's full satisfaction . does hereby give, grant ." Declarations such as these are generally sufficient to satisfy the consideration requirements of a binding contract. See Milford Bank v. Phoenix Contracting Group, Inc. , 143 Conn. App. 519, 529-30, 72 A.3d 55 (2013). Even absent these declarations, the evidence established that the defendants, in fact, received good and valuable consideration for the Note and Mortgage Deed. First and foremost, Angelo Tedesco withdrew the pending foreclosure action for which no defense had been asserted and which was poised to go to judgment. Furthermore, the debt was restructured at a lower interest rate; the Note allowed for a six month grace period during which no payments would be due; and the mortgage deed no longer extended to Agolli's personal residence, removing any risk that she would lose her home in the event of a future default. The defendants' arguments to the contrary are not persuasive. B Duress "The classical or common law definition of duress is any wrongful act of one person that compels a manifestation of apparent assent by another to a transaction without his volition.... The defendant must prove: [1] a wrongful act or threat [2] that left the victim no reasonable alternative, and [3] to which the victim in fact acceded, and that [4] the resulting transaction was unfair to the victim.... The wrongful conduct at issue could take virtually any form, but must induce a fearful state of mind in the other party, which makes it impossible for [the party] to exercise his own free will." (Citation omitted; internal quotation marks omitted.). Chase Manhattan Mortgage Corp. v. Machado , 83 Conn. App. 183, 189-90, 850 A.2d 260 (2004). The defendants presented no evidence to support this special defense. The defendants do not identify any wrongful act or threat by Tedesco. Agolli did not testify that she felt any fear or threat at the closing as a result of any conduct by Tedesco or otherwise. Agolli did not testify that her free will was overborne. The resulting transaction, as noted above, was not unfair to Fikri or Agolli and indeed provided an opportunity for Fikri to right its ship and for Agolli to keep her home from foreclosure. Agolli testified that she did not like the deal. Nik Agolli testified that in his opinion, his mother "had no choice." The testimony derives from the viewpoint that Antonios had defrauded Agolli and Fikri leaving her "with no choice" but to proceed with the refinance. This is insufficient. See Chase Manhattan Mortgage Corp. v. Machado , supra, 83 Conn. App. at 190, 850 A.2d 260 ("[w]e will not invalidate a mortgage agreement against the mortgagee unless it participated in the alleged duress or had reason to know of its existence"). The question is whether Tedesco's conduct placed Agolli under duress. It did not. See Noble v. White , 66 Conn. App. 54, 59, 783 A.2d 1145 (2001) ("[w]here a party insists on a contractual provision or a payment that he honestly believes he is entitled to receive, unless that belief is without any reasonable basis, his conduct is not wrongful and does not constitute duress or coercion under Connecticut law"). Further, even if Agolli consented to the transaction under protest, which does not appear to be the case, this does not establish duress. See id., citing Smedley Co. v. Lansing , 35 Conn. Supp. 578, 579, 398 A.2d 1208 (1978) ; see also Twachtman v. Hastings , Superior Court, judicial district of Tolland, Docket No. CV-95-57307-S, 1997 WL 433878 (July 23, 1997) (Hon. Harry T. Hammer , judge trial referee) (20 Conn. L. Rptr. 145 ), aff'd, 52 Conn. App. 661, 727 A.2d 791 (consent secured by the pressure of financial circumstance is not sufficient to establish duress), cert. denied, 249 Conn. 930, 733 A.2d 851 (1999). The defendants failed to prove the special defense of duress. C No Meeting of the Minds Last, the defendants claim that there was no meeting of the minds as between Agolli and Tedesco with respect to the Note and Mortgage Deed. The argument is twofold. The defendants claim that Agolli could not legally bind Fikri at the time she executed the Note and Mortgage Deed purporting to do so. The defendants also claim that she did not have an adequate understanding of the transaction. "In order for an enforceable contract to exist, the court must find that the parties' minds had truly met.... If there has been a misunderstanding between the parties, or a misapprehension by one or both so that their minds have never met, no contract has been entered into by them and the court will not make for them a contract which they themselves did not make." (Internal quotation marks omitted.) Milford Bank v. Phoenix Contracting Group., Inc. , supra, 143 Conn. App. at 527-28, 72 A.3d 55. " 'Meeting of the minds' is defined as 'mutual agreement and assent of two parties to contract to substance and terms. It is an agreement reached by the parties to a contract and expressed therein, or as the equivalent of mutual assent or mutual obligation.' Black's Law Dictionary (6th Ed. 1990). This definition refers to fundamental misunderstandings between the parties as to what are the essential elements or subjects of the contract. It refers to the terms of the contract, not to the power of one party to execute a contract as the agent of another." Sicaras v. Hartford , 44 Conn. App. 771, 784, 692 A.2d 1290, cert. denied, 241 Conn. 916, 696 A.2d 340 (1997). When an agreement is reduced to writing and signed by all parties, the agreement itself is substantial evidence that a meeting of the minds has occurred. See Tsionis v. Martens , 116 Conn. App. 568, 577-78, 976 A.2d 53 (2009) ("[i]n light of the fact that a contract existed in written form that was signed by both parties, the plaintiffs' argument that a meeting of the minds did not occur is contrary to the evidence provided to the court"); see also Reid v. Landsberger , 123 Conn. App. 260, 268, 1 A.3d 1149 ("[b]ecause the agreement existed in written form and was signed by all parties, [the defendant's] argument that a meeting of the minds did not occur is not supported by the evidence, at least where there is no mutual mistake as to the fundamental promises"), cert. denied, 298 Conn. 933, 10 A.3d 517 (2010). Nonetheless, the defendants argue that Agolli was inadequately advised as to the terms of the settlement and refinance by Attorney Sullivan; that Attorney Sullivan did not explain the content of the documents; that her lack of proficiency in reading and writing English prevented her from understanding the documents she signed. As noted previously, the court credited Attorney Sullivan's testimony that he not only negotiated the terms of the settlement and refinance with input from, and at the direction of, Agolli as well as her children, but also that he explained the closing documents to Agolli. Perhaps Agolli had hoped for a different outcome but she was represented by counsel, she was involved in the negotiation; counsel explained the documentation to her and she understood and agreed to the terms of the refinance. The special defense on this basis is therefore not proven. The defendants next argue that Agolli did not have the authority to bind Fikri. At the summary judgment phase of this litigation, the defendants relied upon the inconsistencies in the dates which appeared in the various closing documents to raise a genuine issue of material fact as to whether Joe and Gina Antonios were removed from Fikri prior to Agolli's signing of the Note and Mortgage Deed in which she purports to act on behalf of Fikri as its sole member. As a factual matter, that argument was laid to rest by, inter alia , Agolli's testimony: "Q. [By Attorney Donnelly]: Now, I want to bring you back, again, to that July 26th, 2011 closing. Do you understand? "A. Yes. "Q. Okay, Now your home was removed; we've been over that, correct? "A. Yes. "Q. In addition, the interest rate was lowered from 10 percent to 5 percent on the loan, correct? "A. Yes. Uh-huh. "Q. And you're aware that. Also, on that date, you were able to remove Mr. Antonios and Mrs. Antonios from being involved in Fikri Development, correct? "A. Yes. "Q. All right. So, the removed-they were removed on that day. "A. Yes. "Q. And after-and you signed those loan documents representing Fikri Development, correct? "A. Yes.... "Q. Well, I will rephrase. So, you just stated that Mr. and Mrs. Antonios were removed from the company, true? "A. Yes. "Q. Okay, so you were the only remaining member at the time you signed the documents that you signed on July 26th. "A. Yes. "Q. Okay, so, by doing so you represented to my client that you had the ability to sign for Fikri Development, correct? "A. Yes." (May 12, 2016 transcript, pp. 18-19.) Agolli's testimony is entirely consistent with the testimony of Antonios, Attorney Sullivan and Suzi Zenko as well as the executed closing documents. Faced with this testimony, the defendants argue that Attorney Sullivan, Joseph Antonios and Gina Antonios failed to comply with the procedures in the Connecticut Limited Liability Company Act, General Statutes § 34-100 et seq. (the Act), or the Operating Agreement in effectuating Antonios' removal as manager and Gina Antonios as a member. Thus, they argue, Agolli could not legally bind Fikri. This argument is largely premised on "facts" which are not supported by the body of evidence. The defendants assert that "[n]one of the formalities necessary for Fikri to validly execute documents were ever followed." Attorney Sullivan was not questioned about such "formalities," the requirements of the Act, or even what he did or did not do to effectuate the removal of Joe and Gina Antonios. The defendants assert further that "Mrs. Antonios never provided written notice to Fikri," as required under the Act. Mrs. Antonios was asked whether she gave written notice. She replied that she did not recall. This is not evidence from which the court can infer that no written notice was given. The defendants aver that "Mrs. Agolli and Mrs. Antonios never voted to remove Mr. Antonios as manager." The court recalls neither testimony nor documentary evidence to support this assertion. Ironically, the defendants aver that "there is no evidence Mrs. Agolli ever even spoke with Mrs. Antonios about removal of Mr. Antonios." It is likely there was no evidence because this issue was not adequately raised prior to trial. However, the lack of evidence as to whether the procedural mechanisms necessary to removal were complied with inures to the defendants' detriment. The defendants bear the burden of proof with respect to their special defense. See Emigrant Mortgage Co. v. D'Agostino , supra, 94 Conn. App. at 802, 896 A.2d 814. In any event, and most importantly, the evidence is both overwhelming and consistent that the removal of Joseph and Gina Antonios occurred prior to the closing on the refinance. For all of the foregoing reasons, the defendants failed to prove the special defense of no meeting of the minds. Judgment will enter in favor of the Plaintiff as to liability. The complaint also named GMA Real Estate Portfolio, LLC, as a defendant. Its involvement in the case is not relevant to this appeal and, thus, the term defendants refers to Agolli and Fikri. Following the death of Angelo Tedesco, the named plaintiff who commenced this action, Scott Tedesco, trustee of the Angelo P. Tedesco Money Purchase Pension Plan, was substituted as the plaintiff. The note and mortgage were later transferred to the Heritage Builders of Waterbury, LLC, 401 (k) Profit Sharing Plan. On February 17, 2015, Scott Tedesco, trustee of the Heritage Builders of Waterbury, LLC, 401 (k) Profit Sharing Plan was substituted as the plaintiff. For the purpose of this appeal, the term plaintiff refers to Scott Tedesco in his capacity as trustee of the Heritage Builders of Waterbury, LLC, 401 (k) Profit Sharing Plan. Fikri was formed in 2007 for the purpose of developing certain parcels of real property in Waterbury, and was formerly owned by Agolli and her late husband, Fikri Agolli. Affirmed. Tedesco v. Agolli , 182 Conn. App. 291, 189 A.3d 672 (2018). The court does not attempt to include in this decision all of the evidence relied upon in the court's factual findings. The court has considered all of the evidence admitted. The reference to any subset of the evidence presented should not be construed as identifying the exclusive basis for the court's finding, and the court's failure to identify or mention specific evidence should not give rise to an inference that such evidence has not been considered. Nik Agolli testified that Antonios approached he and his mother, while Antonios testified that the Agollis approached him. The court need not determine which account is accurate in this litigation. Gina Antonios did not personally invest in Fikri and was largely uninvolved or passive with respect to Fikri's activities. The purpose of Gina's involvement in, and the structure of Fikri, remains unclear. Antonios' conduct, as manager of Fikri, is the subject of a civil action captioned Fikri Development, LLC, et al. v. The Private Mortgage Fund, LLC, et al. , which is pending on this court's docket at CV-12-6013458. Therein, Fikri alleges that Antonios defrauded Fikri, borrowing against the property only to divert the funds to his own personal use. This trial does not require a determination as to where the money went or to what purposes it was put by Antonios. Although Fikri asserted Antonios' fraudulent conduct as a defense in this foreclosure, the court previously determined that there was no genuine issue of material fact that Tedesco was not a knowing participant in any such chicanery. Therefore, Antonios' purported fraud against Fikri and Agolli cannot be visited upon the plaintiff by way of special defense to this foreclosure. See Chase Manhattan Mortgage Corp. v. Machado , 83 Conn. App. 183, 850 A.2d 260 (2004) (fraud by a third party upon a mortgagor does not invalidate a mortgage as against the mortgagee unless the mortgagee in some way participated in or knew of the fraud). The foreclosure action was filed in Waterbury Superior Court and was captioned Angelo Tedesco, Trustee v. Resjimi Agolli et al. , Docket No. CV-10-6006609. This court is permitted to and does therefore take judicial notice of the file in that matter. See Jewett v. Jewett , 265 Conn. 669, 678 n.7, 830 A.2d 193 (2003) ; Wasson v. Wasson , 91 Conn. App. 149, 157, 881 A.2d 356, cert. denied, 276 Conn. 932, 890 A.2d 574 (2005). Notwithstanding this testimony, the defendants maintain in their posttrial submission that this court should, as a factual finding, conclude that Antonios, in collusion with Tedesco, was the person responsible for the negotiated terms of the settlement and refinance. This is but one example of the defendants' proposed findings of fact having little or no support in the evidence presented. The defendants argue that the testimony of both Attorney Sullivan and Attorney Margolis was not credible. They snidely suggest the testimony suffered from "convenient" lapses of memory and/or was self-serving to conceal their own exposure for what the defendants suggest was legal malpractice on their part. The defendants, however, presented no credible evidence to rebut the testimony of Attorneys Sullivan and Margolis and indeed, the court found their testimony forthright and believable. The events in question occurred almost five years ago and none of the witnesses questioned were completely confident in their recollection as to who was present at what time during the course of the day on July 26, 2011. Two of the mortgages paid off on the Austen Road property were paid to Antonios related entities. Those mortgages total approximately $233,000. The validity of those mortgages and Antonios' entitlement to those funds will be determined in the fraud case brought by Fikri against Antonios. It is worth noting that the defendants had been defaulted for failure to disclose a defense and the plaintiff had filed a motion for judgment by strict foreclosure, which, if granted, would have resulted in Agolli losing her home. For the first time, in their posttrial brief, the defendants assert that Tedesco released Fikri from all debt, as evidenced by exhibit E, a release of the 2010 Tedesco mortgage dated July 14, 2011, which was prepared in connection with the July 26, 2011 closing. The defendants never asserted any purported release as a special defense. It will not be further addressed. Indeed, the defendants argue that it was Antonios who "eliminated Mrs. Agolli's free will." The defendants claim that "Mr. Antonios and Mr. Tedesco created a trap for Mrs. Agolli with only one result possible for Mrs. Agolli and Fikri: loss of her land" is without support in the evidence. This court has previously determined that there was no genuine issue of material fact that Tedesco was neither involved in nor aware of any treachery on the part of Antonios. The evidence at trial did not alter this conclusion. Indeed, if Tedesco's nefarious goal was to ultimately take Agolli's land, he would simply have done so by way of the first foreclosure. The court had previously questioned whether the defendants' special defense of no meeting of the minds, as pleaded by the defendants, included the argument that Agolli could not bind Fikri. As a factual matter, it was first raised in the defendants' opposition to the plaintiff's motion for summary judgment. As noted at that time, this allegation does not appear in the defendants' special defenses. However, insofar as the issue was briefed without objection on this basis by the plaintiff, the court addressed the issue in the motion for summary judgment. Indeed, it was this argument as to which the court found a genuine issue of material fact and on which the court heard evidence at trial. Suzi Zenko testified as follows: "Q. With respect to the July 26, 2011 closing, what was the result of that closing: in essence, what did that closing accomplish? "A. We got rid of Joe. "Q. Okay. How did you get rid of Joe? "A. I mean, it was-he was removed. He withdrew from the LLC. Him and Gina were out." The broadest possible reading of the defendants' special defenses does not include such a claim, nor is this claim arguably within the scope of the issues addressed in the summary judgment motion. "Pleadings are intended to limit the issues to be decided at the trial of a case and [are] calculated to prevent surprise.... [The] purpose of pleadings is to frame, present, define, and narrow the issues, and to form the foundation of, and to limit, the proof to be submitted on the trial . It is axiomatic that the parties are bound by their pleadings." (Internal quotation marks omitted.) Brye v. State , 147 Conn. App. 173, 177, 81 A.3d 1198 (2013). Notwithstanding, the court addresses the argument.

12498824

Jack E. LYNN et al. v. Robert J. BOSCO, Sr., et al.

Lynn v. Bosco

2018-05-29

AC 39172

601

616

189 A.3d 601

189

West's Atlantic Reporter, Third Series

Connecticut Appellate Court

Connecticut

2021-08-31T19:05:39.044951+00:00

Fastcase

Jack E. LYNN et al. v. Robert J. BOSCO, Sr., et al.

Jack E. LYNN et al. v. Robert J. BOSCO, Sr., et al. AC 39172 Appellate Court of Connecticut. Argued November 16, 2017 Officially released May 29, 2018 Richard P. Weinstein, with whom, on the brief, was Sarah Black Lingenheld, for the appellants (defendant Aerospace Techniques, Inc., and plaintiffs). Dale M. Clayton, for the appellee (defendant Richard B. Polivy). Megan Youngling Carannante, with whom, on the brief, were Eliot B. Gersten and Johanna S. Katz, for the appellee (named defendant). Prescott, Elgo and Norcott, Js.

7828

47965

ELGO, J. This case is about the propriety of a judicial remedy binding a company that had been cited in as a party by the plaintiffs, Jack E. Lynn and Jeffrey Lynn, for notice purposes only and against whom no allegations had been pleaded. The defendant Aerospace Techniques, Inc. (company), appeals from the January 11, 2016 judgment of the trial court ordering the company to pay the owners of 141 shares of treasury stock issued to the defendants Clyde E. Warner, Robert J. Bosco, Sr. (Bosco), Anthony Parillo, Jr., and Richard B. Polivy in exchange for the return of the 141 shares to the company. The company claims that the trial court acted beyond the scope of its authority by entering an order that imposed a remedy on the company, although neither party made any allegations against or sought relief from the company in the operative complaint. We agree and, accordingly, reverse the judgment of the trial court. The following facts and procedural history are relevant to this appeal. In 1965, Jack Lynn and two other individuals incorporated the company under the laws of Connecticut. Jack Lynn was chairman of the company's board of directors (board) from that time until 2011. In June, 2011, the board, then consisting of Jack Lynn, Bosco, and Warner, met. The board voted to reaffirm Polivy as the company's corporate counsel. Bosco and Warner then voted for Bosco to replace Jack Lynn as chairman and for Bosco and Warner to replace Jack Lynn and Jeffrey Lynn in their respective positions as officers of the company. In October, 2011, Jack Lynn sent a letter to all shareholders of the company, indicating that he and Jeffrey Lynn needed thirty-nine shares of stock to exceed 50 percent ownership of the company, and offering to purchase the first forty-one shares offered to him. Later that month, at the annual shareholder meeting, Jack Lynn was removed from the board, which then was reconstituted with Bosco, Warner, Parillo, and Polivy as directors. On December 8, 2011, shareholder Joseph R. Dube sent a letter to Bosco, offering to sell his 141 shares to Bosco if the company did not purchase them. At a board meeting on December 14, 2011, the board agreed to seek approval from its bank for the company to purchase Dube's shares and agreed to reissue the shares at $2000 per share, to be sold and distributed as follows: forty-seven shares to Bosco, forty-seven shares to Parillo, forty-six shares to Polivy, and one share to Warner (Dube transaction). The plaintiffs were not aware of the transaction. After receiving the bank's approval, the company paid Dube $100,000 and issued him a promissory note for the outstanding balance of $82,000 in exchange for his 141 shares of stock. Bosco, Parillo, and Polivy each provided a promissory note to the company in exchange for their respective allocation of the shares, agreeing to pay the company in three installments. As the first installment, Bosco and Parillo each promised to pay $32,900, and Polivy promised to pay $32,200. Warner paid the $2000 he owed in cash. At the December 14, 2011 meeting, the board also agreed to award and pay performance bonuses of $32,900 to Bosco, $32,900 to Parillo, and $2000 to Warner. During the repayment period for their promissory notes, the board awarded additional bonuses to Bosco, Parillo, and Warner of approximately $100,000 each. Polivy never received a bonus. In December, 2012, the plaintiffs filed a two count complaint against the remaining shareholders. The plaintiffs claimed that Bosco, Parillo, Polivy, and Warner (individual defendants) (1) acquired stock from the company in violation of the plaintiffs' preemptive rights as stockholders and (2) breached their fiduciary duties to the plaintiffs by self-dealing and violating the plaintiffs' preemptive rights. The initial complaint did not name the company as a party. In January, 2013, the individual defendants moved to strike the plaintiffs' complaint, arguing, in part, that "the plaintiffs fail[ed] to join a proper and necessary party defendant for the declarative judgment sought . [The company] is a necessary party to any declaratory judgment regarding the preemptive rights held by its shareholders and any constructive trust that may (or may not) be created based on the defendants' alleged 'self-dealing.' Additionally, . [the company] is the entity which could grant and/or deny the plaintiffs preemptive rights, not the individual defendants." In response, the plaintiffs moved to add the company as a party defendant, arguing that although "the plaintiffs believe that the issue of whether [the company] is a necessary party may be debatable, in the interests of moving this case along the plaintiffs ask the court to grant their motion to cite in [the company] as a party defendant." The court, Robaina, J. , granted the plaintiffs' motion, and the plaintiffs filed an amended complaint, naming the company as a defendant with respect to their claim of a violation of preemptive rights only. The amended complaint did not include any allegations against or seek relief from the company. The court, Hon. Jerry Wagner, judge trial referee, thereafter denied the individual defendants' motion to strike, noting in its memorandum of decision that they had conceded that their argument regarding the plaintiffs' failure "to join a proper and necessary party defendant was moot." In October, 2013, the individual defendants filed their answer to the plaintiffs' complaint, therein asserting several affirmative and special defenses, and a two count counterclaim against the plaintiffs. The individual defendants did not assert a cross claim against or seek any relief from the company. In February, 2014, the company moved to strike the plaintiffs' complaint for failure "to state a cause of action against" it. The plaintiffs opposed the company's motion, noting that the company's "participation in this case is at the insistence of its board of directors," the individual defendants in this case. The plaintiffs noted that the complaint "merely identifies [the company] as an additional defendant in its count one in recognition of the fact that [the company] is, in essence, a mere stakeholder upon the plaintiff's claims, including for declaratory relief, to validate its preemptive rights in [the company's] stock ." The plaintiffs clarified that the company "is not accused of wrongdoing since its actions were only by virtue of the actions of the individual defendants." The court, Abrams, J. , denied the company's motion to strike, and the company remained named as a defendant. In May, 2014, the case proceeded to trial. At the commencement of the first day of the two day trial, the court, Hon. Lois Tanzer, judge trial referee, asked the parties about the status of the company's motion to strike. The plaintiffs' counsel explained that the motion had been denied and that the court had decided that "because it's a declaratory judgment action there doesn't need to be adversity against the [company], but it should have formal notice or be joined so the [company] is here." The plaintiffs' counsel further stated: "I did speak to [Mark Block, the company's counsel]. It's my understanding that he's here to represent the [company], but I maintain we are not adverse to the [company]. It's my understanding he's not an active participant." Attorney Block clarified "that as an indispensable party, the [company] should be afforded an opportunity to participate in the proceedings," and therefore reserved that right. The court noted that it believed that the company was brought in so that it could "protect [its] interest." Halfway through the first day of the trial, Attorney Block stated: "[M]y appearance on behalf of the [company] was as a necessary party to a declaratory judgment act, and I have no active role in the litigation, and I've discussed the same with counsel. They have no objection to my being released from the rest of the trial since there's no active role I intend to take at this point." The parties did not object. The plaintiffs' counsel further stated that "it's just an added expense for the [company] which I think under the circumstances is not even necessary." The court released Attorney Block, and he was not present for the remainder of the trial. Importantly, after the trial concluded on May 16, 2014, but before the court rendered judgment, Warner realigned himself with the plaintiffs, and, as a result, by October 10, 2014, the plaintiffs had become majority shareholders and regained control of the company's affairs. Prior to Warner's realignment, collectively, the plaintiffs held 950 shares, and the defendants held 1026 shares, of which 605 belonged to Warner. When Warner "teamed [up] with the [plaintiffs]," he and the plaintiffs became majority shareholders, together holding 1555 shares, and the remaining defendants holding 421 shares. On November 4, 2014, the plaintiffs moved to reopen the evidence, arguing that this reorganization provided them with "access [to] . some substantially damaging evidence which had otherwise been concealed and unknown to the plaintiffs and even to . Warner in regard to the conduct of Parillo, Polivy, and Bosco ." Soon thereafter, Attorney Block moved to withdraw his appearance, noting that he had been "requested to enter an appearance on behalf of the company to protect the interests of the company although the only allegations were against the individual defendants," and that the reorganization put him "in the position of representing a corporation which is now suing its controlling shareholders ." As the company's controlling shareholders, the plaintiffs did not hire a new attorney to represent the company's interests. In February, 2015, the court held a hearing on the plaintiffs' motion to reopen. The plaintiffs argued that the new information would "demonstrate that the testimony given to the court was not . accurate, not forthright in regard to the financial conditions of the company." On March 23, 2015, the court denied the motion, reasoning that the evidence proffered related "to the credibility of testimony and evidence relating to the financial conditions of [the company] at the time of the events complained of in the pleadings and not related to issues of a substantive or material nature." That same day, the court issued its memorandum of decision, in which it ruled in favor of the plaintiffs on count one of the complaint and for the individual defendants on count two. At the outset, the court noted that the company and Bosco, Jr., were "named as defendants in count one only and only for the purpose of notice." The court then found that the 141 shares of stock that the company reacquired from Dube and then sold to the individual defendants had been subject to preemptive rights. The court thus concluded that the Dube transaction violated the plaintiffs' preemptive rights. The court also found that Bosco, Parillo, and Warner had engaged in self-dealing by awarding themselves bonuses in connection with the Dube transaction but that, nevertheless, the plaintiffs had failed to satisfy all of the elements for a cause of action for breach of fiduciary duty. Specifically, the plaintiffs did not show that they had suffered damages or that any such damages were caused by the individual defendants' actions. Upon determining that the plaintiffs were entitled to equitable relief for the violation of their preemptive rights, the court ordered all parties to submit proposed remedies regarding disposition of the 141 Dube shares, noting that "[a]side from the form of remedy, there are questions concerning whether payment or reimbursement by the plaintiffs and/or to the defendants will be required and, if so, at what per share price." The plaintiffs, as well as Polivy and Parillo, filed proposed remedies. In April, 2015, the plaintiffs proposed that the 141 shares should be returned to the company as treasury stock and that the individual defendants should not receive payment for returning their shares because their "source of payment for the shares was the [company] itself through the self-dealing of the [individual] defendants." Additionally, the plaintiffs argued that "[i]n the event the court rejects this approach as to payment . the determination of whether or not payment is to be made to the [individual] defendants should await an adjudication of the [other] case" pending between these parties. See Lynn v. Bosco , Superior Court, judicial district of Hartford, Docket No. CV-14-6063040-S (Lynn II). In July, 2015, Parillo proposed "that the [c]ourt order rescission of the [individual] defendants' purchase of the Dube shares from [the company], with the shares returned to [the company's] treasury and [the company] simultaneously returning the consideration the [individual] defendants paid for these shares." Similarly, Polivy proposed that, upon his return of his shares to the company, the company should pay him the $92,000 he paid out of his personal funds for the shares. The plaintiffs responded that if the court ordered the company to return the $92,000 to Polivy, that money should be held in escrow until Lynn II was resolved. In December, 2015, the court held a hearing on the issue. In response to Polivy's and Parillo's proposed remedies, the plaintiffs argued that "there are no allegations in this case against the [company] and the idea of [the court] just being able to award money or order money from the [company] to be paid to one of the defendants without the [company] being named and given an opportunity to appear in regard to those issues . would be improper in this case." The plaintiffs suggested that the appropriate remedy would be for the court "to void the . transfer to the individual defendants and then the individual defendants can pursue the [company]" for reimbursement. On January 11, 2016, the court ordered that (1) the Dube transaction be set aside, (2) the 141 shares be restored to the company's treasury, (3) the company reimburse the owners of the 141 shares, and (4) whether to leave the 141 shares as treasury stock or to sell them be decided at the discretion of the board. In response, counsel for the company filed an appearance on January 26, 2016, and a motion for the court to reconsider paragraph 3 of its order, reminding the court that the company had been "named as a party only for notice purposes in the litigation pursuant . to the demand of the defendants" and that there had been no "allegations made against the [company] or any request for relief sought against the [company]." Polivy, Parillo, and Bosco objected to that motion. Following a hearing, the court sustained their objections and denied the company's motion to reconsider, reasoning that "the relief sought did include equitable relief and that's the way the order was fashioned. Also, with respect to notice for [the company] in this case, for notice purposes, and there was actual and constructive notice." The plaintiffs and the company appealed from the court's January 11, 2016 order. On appeal, the company claims that the trial court acted beyond the scope of its authority by entering an order that imposed a remedy on the company despite the fact that none of the pleadings contained any allegations against or sought relief from the company. In response, Bosco and Polivy argue that the court did not err because the plaintiffs had asked for declaratory judgments concerning ownership rights to the company's stock and equitable relief and that the remedy granted was within this prayer for relief. We agree with the company. We begin by setting forth the applicable standard of review and relevant law. "Any determination regarding the scope of a court's subject matter jurisdiction or its 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 309 (2013). Generally, "it is clear that [t]he court is not permitted to decide issues outside of those raised in the pleadings." (Internal quotation marks omitted.) Moulton Brothers, Inc. v. Lemieux , 74 Conn. App. 357, 361, 812 A.2d 129 (2002) ; see also Stafford Higgins Industries, Inc. v. Norwalk , 245 Conn. 551, 575, 715 A.2d 46 (1998) ("ordinarily a court may not grant relief on the basis of an unpleaded claim"); Willametz v. Guida-Seibert Dairy Co. , 157 Conn. 295, 302, 254 A.2d 473 (1968) ("[i]t 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] ). When reviewing the court's decisions regarding the interpretation of pleadings, "[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 upon 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." (Internal quotation marks omitted.) Provenzano v. Provenzano , 88 Conn. App. 217, 225, 870 A.2d 1085 (2005). "Pleadings have an essential purpose in the judicial process." (Internal quotation marks omitted.) Abdo v. Abdulrahman , 144 Conn. App. 574, 581, 74 A.3d 452 (2013). For instance, "[t]he purpose of the complaint is to put the defendants on notice of the claims made, to limit the issues to be decided, and to prevent surprise." (Internal quotation marks omitted.) KMK Insulation, Inc. v. A. Prete & Son Construction Co. , 49 Conn. App. 522, 526, 715 A.2d 799 (1998). "[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.) Grovenburg v. Rustle Meadow Associates, LLC , 174 Conn. App. 18, 82-83, 165 A.3d 193 (2017). "Whether a complaint gives sufficient notice is determined in each case with reference to the character of the wrong complained of and the underlying purpose of the rule which is to prevent surprise upon the defendant." (Internal quotation marks omitted.) Tedesco v. Stamford , 215 Conn. 450, 459, 576 A.2d 1273 (1990). "[I]t is imperative that the court and opposing counsel be able to rely on the statement of issues as set forth in the pleadings. . [A]ny judgment should conform to the pleadings, the issues and the prayers for relief." (Internal quotation marks omitted.) Abdo v. Abdulrahman , supra, 144 Conn. App. at 581, 74 A.3d 452 ; see also KawasakiKisen Kaisha, Ltd. v. Indomar, Ltd. , 173 Conn. 269, 272, 377 A.2d 316 (1977). "[A] plaintiff may not allege one cause of action and recover upon another." Fountain Pointe, LLC v. Calpitano , 144 Conn. App. 624, 642, 76 A.3d 636, cert. denied, 310 Conn. 928, 78 A.3d 147 (2013). "The requirement that claims be raised timely and distinctly . recognizes that counsel should not have the opportunity to surprise an opponent by interjecting a claim when opposing counsel is no longer in a position to present evidence against such a claim." Swerdloff v. AEG Design/Build, Inc. , 209 Conn. 185, 189, 550 A.2d 306 (1988). "[G]enerally . the allegations of the complaint provide the measure of recovery, and . the judgment cannot exceed the claims pleaded, including the prayer for relief. . These requirements . are based on the principle that a pleading must provide adequate notice of the facts claimed and the issues to be tried. . The fundamental purpose of these pleading requirements is to prevent surprise of the defendant.... The purpose of these general pleading requirements is consistent with the notion that the purpose of specific pleading requirements . is to promote the identification, narrowing and resolution of issues before the court." (Citations omitted; internal quotation marks omitted.) Todd v. Glines , 217 Conn. 1, 9-10, 583 A.2d 1287 (1991). "[If] the plaintiffs' prayer for relief seeks not only a declaratory judgment but also general equitable relief, the plaintiffs are entitled to invoke the long arm of equity to receive whatever relief the court may from the nature of the case deem proper. Any relief can be granted under the general prayer which is consistent with the case stated in the complaint and is supported by the proof provided the defendant will not be surprised or prejudiced thereby." (Internal quotation marks omitted.) Pamela B. v. Ment , 244 Conn. 296, 308-309, 709 A.2d 1089 (1998) ; see also Total Aircraft, LLC v. Nascimento , 93 Conn. App. 576, 580-81, 889 A.2d 950, cert. denied, 277 Conn. 928, 895 A.2d 800 (2006). Nevertheless, "[a]n equitable proceeding does not provide a trial court with unfettered discretion. The court cannot ignore the issues as framed in the pleadings." Warner v. Brochendorff , 136 Conn. App. 24, 34, 43 A.3d 785, cert. denied, 306 Conn. 902, 52 A.3d 728 (2012). In the present case, the pleadings were not framed in a way that apprised the company that the court might order a remedy that would require it to pay the individual defendants. The initial complaint did not name the company as a defendant. The plaintiffs only later cited in the company as a defendant in response to the motion to strike filed by the individual defendants. That motion focused on the court's inability to issue a declaratory judgment in the absence of the company. The individual defendants did not argue that the company was a necessary party with respect to the court's ability to grant any of the other relief requested. Even when broadly construed, the amended complaint did not contain any allegations against the company. See Provenzano v. Provenzano , supra, 88 Conn. App. at 225, 870 A.2d 1085 ("pleadings must be construed broadly and realistically" [internal quotation marks omitted] ). In response to the company's motion to strike for failure to state a cause of action against the company, the plaintiffs argued that the complaint "merely identifies [the company] as an additional defendant" because the company is "a mere stakeholder upon the plaintiff's claims, including for declaratory relief ." The plaintiffs did not argue that their complaint sought relief from the company. The only reference to the company in the plaintiffs' prayer for relief was their request for "a determination as to whether or not the stock of [the company] is subject to preemptive rights notwithstanding that said stock was acquired from treasury shares." The other requested remedies were for declaratory judgments concerning the disposition of the stock in question and the general prayer for "[s]uch legal or equitable relief as the court deems appropriate." Similarly, the individual defendants' answer, affirmative defenses, and counterclaim did not seek any relief from the company. Although "[a]ny relief can be granted under the general prayer [for equitable relief] which is consistent with the case stated in the complaint and is supported by the proof"; (internal quotation marks omitted) Pamela B. v. Ment , supra, 244 Conn. at 308, 709 A.2d 1089 ; "[t]he court cannot ignore the issues as framed in the pleadings." Warner v. Brochendorff , supra, 136 Conn. App. at 34, 43 A.3d 785. Here, the court ordered equitable relief that was inconsistent with the issues as framed in the pleadings and inconsistent with the court's finding that Bosco, Parillo, and Warner engaged in self-dealing, resulting in unfair surprise to the company. Throughout the trial, the attorneys and the court relied "on the statement of issues as set forth in the pleadings"; (internal quotation marks omitted) Abdo v. Abdulrahman , supra, 144 Conn. App. at 581, 74 A.3d 452 ; which did not involve any potential wrongdoing on the part of the company. Nor is there anything in the record that indicates that the parties litigated as if the court might order the company to reimburse the individual defendants. See Stafford Higgins Industries, Inc. v. Norwalk , supra, 245 Conn. at 575, 715 A.2d 46 ("a court may, despite pleading deficiencies, decide a case on the basis on which it was actually litigated"). The conduct of the attorneys and the court during and immediately following the trial was consistent with the pleadings, in that they did not act as if the parties had made any allegations against or sought relief from the company. At the start of the trial, the plaintiffs maintained that they were "not adverse to the [company]." The individual defendants did not indicate that they were adverse to the company or that they would later seek relief from the company. The court acknowledged the company's right to participate so that it could "protect [its] interest," and, because the company had no reason to believe its interests would be adversely affected, it acted accordingly. For instance, the company had no reason to file any counter-claims, present any evidence, or cross-examine any of the witnesses. After attending the morning of the first day of trial, Attorney Block requested to be released from the remainder of the trial because he did not intend to take an "active role in the litigation." The parties did not object, and the court released him. Throughout the trial, the parties made no allegations against the company. Immediately following trial, the plaintiffs regained control of the company, causing Attorney Block to withdraw as counsel for the company. The plaintiffs moved to reopen the evidence, arguing that the reorganization provided them with access to financial information that had "been concealed or unknown to the plaintiffs ." Following a hearing, at which the company was not represented by legal counsel, the court denied the plaintiffs' motion, reasoning that the company's financial conditions were not "of a substantive or material nature." This denial, in addition to the conduct of the parties and the court during the trial, further support the contention that the court's order surprised the company, particularly in light of the language the court used in its memorandum of decision regarding the trial. As the court emphasized in its memorandum of decision, the company and "Bosco, Jr., are named as defendants in count one only and only for the purpose of notice." As with the company, the parties did not assert any allegations against Bosco, Jr. Bosco, Jr., had been named as a defendant so that he could receive notice of the proceedings and not for the purpose of being bound by any court order. By classifying both the company and Bosco, Jr., as defendants "only for the purpose of notice," the court implied that the company, likewise, would not be bound by any order without the opportunity to be heard. Consistent with the absence of any allegations against the company in the pleadings, the parties' conduct at trial, and the court's classification of the company as a defendant for notice purposes, the court did not find that the company committed any wrongdoing. In its memorandum of decision, the court also found that the individual defendants violated the plaintiffs' preemptive rights and that Bosco, Parillo, and Warner engaged in self-dealing by awarding themselves bonuses in connection with the Dube transaction. The court concluded that the plaintiffs were entitled to equitable relief and requested that the parties submit proposed remedies. Specifically, the court noted that "[a]side from the form of the remedy, there are questions concerning whether payment or reimbursement by the plaintiffs and/or to the defendants will be required and, if so, at what per share price." Although the company was named as a defendant, the court observed that the company was a party for notice purposes only and did not indicate that the proposed remedies should address what role the company should play, if any, at the remedy stage. Nevertheless, in response to the court's request for proposed remedies, Parillo and Polivy proposed that the court order the company to reimburse the individual defendants. This was the first mention of that potential remedy, essentially asking the court to ignore the general rule that "the judgement cannot exceed the claims pleaded, including the prayer for relief." Todd v. Glines , supra, 217 Conn. at 9, 583 A.2d 1287. In opposing this proposed remedy, the plaintiffs' counsel argued that, "the idea of Your Honor just being able to award money or order money from the [company] to be paid to one of the defendants without the [company] being named and given an opportunity to appear in regard to those issues . would be improper in this case.... [T]here were no allegations by any of the defendants against the [company] saying that in the event this court decides to somehow order a rescission, what, if anything, the [company's] obligations to these individuals would be." Polivy's counsel replied that the court had "decided to provide equitable relief, [a]nd in providing equitable relief the court is free to really fashion any kind of remedy that does equity," including ordering the reimbursement to the individual defendants. Although the court had the authority to provide equitable relief by virtue of the plaintiffs' general prayer for equitable relief, "an equitable proceeding does not provide a trial court with unfettered discretion" to order relief against a party who was without notice of the claims against it. Warner v. Brochendorff , supra, 136 Conn. App. at 34, 43 A.3d 785. "The court cannot ignore the issues as framed in the pleadings." Id. The parties' pleadings did not frame the issues in terms of the company's wrongdoing or obligation to provide them with a remedy. Here, the first mention of this potential remedy did not occur until the court held its hearing on proposed remedies in December, 2015. The issuance of an order of relief against the company, in the absence of notice of a claim against it, is inconsistent with the fundamental purpose of pleading requirements, namely, "to prevent surprise of the [party] ." Todd v. Glines , supra, 217 Conn. at 10, 583 A.2d 1287. With no prior notice of any claims against it, the company was forced to have counsel file an appearance on its behalf and a motion for reconsideration on January 26, 2016, fifteen days after the court's order of relief. In its motion, the company reminded the court that it had been "named as a party only for notice purposes in the litigation" and that "[n]o claims were made against [the company]." The company also reminded the court of the plaintiffs' "motion to reopen the evidence so as to present [the company's] grave financial state," which the court denied. The company argued that it was not in a financial situation where it could obey the court's order and that "reconsideration is warranted to allow [the company] to address what is effectively a claim and request for relief directed to it." As the plaintiffs' counsel argued at a hearing on the motion, "without a complaint against [the company], without allegations, [the company] never had a chance to put on its own evidence, to put on a claim of recoupment or setoff or counterclaim." Nevertheless, the court denied the company's motion, stating that "the relief sought did include equitable relief and that's the way the order was fashioned. Also, with respect to notice for [the company] in the case, for notice purposes, and there was actual and constructive notice." Notice of the ongoing litigation, however, is distinct from notice that the litigants are making a claim against or seeking relief from a party. As evidenced by the pleadings as well as the conduct of the parties, the company had no notice that such relief would enter against it. Since May 5, 2014, when Attorney Block was excused during the first day of evidence, the parties had effectively acknowledged that the presence of counsel for the company was unnecessary given the posture of the case. Given that the company relied on the state of the pleadings and opted not to participate in the trial, we conclude that the court did not have the authority to order relief against the company. Accordingly, further proceedings are necessary. The judgment is reversed only as to the court's order that the company reimburse the present owners of the Dube shares and the case is remanded for further proceedings according to law. The appeal is dismissed as to the plaintiffs. In this opinion the other judges concurred. The company was originally named as a defendant in this action but thereafter came under the control of the plaintiffs. The plaintiffs also appealed from the judgment of the trial court. At oral argument before this court, they conceded that they lacked standing to bring this appeal. See, e.g., State v. Long , 268 Conn. 508, 531-32, 847 A.2d 862 (setting forth test for aggrievement), cert. denied, 543 U.S. 969, 125 S.Ct. 424, 160 L.Ed. 2d 340 (2004). We agree that they lack standing and, accordingly, dismiss the appeal as to the plaintiffs. Warner had purchased one of the 141 shares and was named as a defendant in the plaintiffs' complaint. Warner died during the pendency of the case, and the plaintiffs withdrew the complaint as to him after the court rendered judgment but before it ordered the remedy at issue. The plaintiffs also named Robert J. Bosco, Jr., as a defendant for notice purposes only, as discussed more fully in footnotes 7 and 20 of this opinion. We refer to him in this opinion as Bosco, Jr. Jeffrey Lynn and Parillo attended as observers. On cross-examination at trial, Bosco could not explain how the board had determined the amount of each bonus, instead stating that the bonuses equaled the first installments by coincidence, because it was expedient that they be the same amount, and because the board felt that these amounts were appropriate. Warner, in response to being asked whether he had paid "for that one share of stock with cash," testified, "[n]o, I was given a bonus for that." The company nevertheless contends, in its brief to this court, that "the burden should have been on Polivy to assert a claim against [the company] for the return of [the] funds" he had paid for his shares. Between January and April, 2012, four of the company's other shareholders directly sold their shares to Bosco and Parillo (direct transactions). Following these transactions, the company's remaining shareholders were Jack Lynn, Jeffrey Lynn, Bosco, Bosco, Jr., Parillo, Polivy, and Warner. As noted in footnote 3 of this opinion, Bosco, Jr., was named as a defendant for notice purposes only. As a shareholder, Bosco, Jr., had an interest in the proceedings but because he had not "purchased any of the disputed shares," neither party made allegations against him or called him as a witness at trial. See also footnote 20 of this opinion. The plaintiffs later filed a second amended complaint, which is the operative complaint in this case. It differed solely in the addition of a sentence clarifying that the transactions that had occurred between the four shareholders and Bosco and Parillo had occurred directly between them rather than through the company. Counsel for the individual defendants also withdrew his appearance because of the conflict created when Warner realigned himself with the plaintiffs. The court found for the plaintiffs on both counts of the individual defendants' counterclaim. Bosco filed an appeal from that judgment, which this court dismissed for lack of a final judgment because as of that time, the trial court had made only a finding of liability. The court reasoned that this issue previously had been decided by Judge Wagner on the individual defendants' January, 2013 motion to strike, and that, as that ruling was on a matter of law and was not clearly erroneous, it became the law of the case. In June, 2014, following the close of evidence, the plaintiffs in the present case (Lynn I ) initiated Lynn II against the individual defendants, as a derivative action on behalf of the company. Lynn v. Bosco , supra, Superior Court, Docket No. CV-14-6063040-S. We properly may take judicial notice of that pleading. See State v. Joseph , 174 Conn. App. 260, 268 n.7, 165 A.3d 241, cert. denied, 327 Conn. 912, 170 A.3d 680 (2017) ; see also Karp v. Urban Redevelopment Commission , 162 Conn. 525, 527, 294 A.2d 633 (1972) ("[t]here is no question . concerning our power to take judicial notice of files of the Superior Court, whether the file is from the case at bar or otherwise"); Folsom v. Zoning Board of Appeals , 160 Conn. App. 1, 3 n.3, 124 A.3d 928 (2015) (taking "judicial notice of the plaintiff's Superior Court filings in . related actions filed by the plaintiff"). The plaintiffs' initial complaint alleged, in part, that the individual defendants engaged in self-dealing in connection with the Dube and direct transactions, to "the special loss and damage of the [company]." In July, 2014, the individual defendants moved to transfer Lynn II from the judicial district of Hartford to the judicial district of Middlesex or, in the alternative, to the judicial district of New Britain for consolidation with Lynn I . The individual defendants also moved to stay Lynn II , pending the trial court's decision in Lynn I . In October, 2014, the court, Miller, J. , transferred Lynn II to the judicial district of New Britain but did not consolidate it with Lynn I , and also stayed Lynn II until thirty days following the decision in Lynn I . In May, 2015, after the plaintiffs became majority shareholders of the company, they cited in the company as an additional party plaintiff in Lynn II , so that it could pursue the action directly. The plaintiffs remained plaintiffs in Lynn II until they withdrew from the action in August, 2017, leaving the company as the sole plaintiff. The company has since amended the complaint in Lynn II to allege, essentially, that the individual defendants (1) breached their fiduciary duties to the company by self-dealing in connection with the Dube and direct transactions and by otherwise manipulating the company's affairs, (2) assisted each other in breaching their fiduciary duties, (3) were unjustly enriched, and (4) violated the Connecticut Unfair Trade Practices Act, General Statutes § 42-110a et seq. Notably, in May and June, 2017, Polivy and Bosco moved for summary judgment in Lynn II , arguing that Lynn II "is barred by the doctrine of res judicata" because "[a]ll claims advanced in Lynn II . are from the same transaction and were or could have been litigated in Lynn I ." In September, 2017, the court, Moll, J. , denied Polivy's and Bosco's motions, noting that "[the company] was named as a defendant for notice purposes only" and finding that "Polivy and Bosco . failed to demonstrate that the Lynns as then minority shareholders and [the company] were in privity at the relevant time in Lynn I ." Although an appearance was filed in this appeal on behalf of Parillo, that appearance was withdrawn on July 13, 2017. Parillo has not filed a brief in the present appeal. Bosco claims, in his appellate brief, that this court should dismiss this appeal for lack of aggrievement and, alternatively, as moot. Before reaching the merits of the company's appeal, we must first address these claims, as they relate to the subject matter jurisdiction of this court. Council v. Commissioner of Correction , 286 Conn. 477, 487, 944 A.2d 340 (2008) ; Seymour v. Seymour , 262 Conn. 107, 110, 809 A.2d 1114 (2002). First, Bosco claims that the plaintiffs and the company were not aggrieved because in "determining the ownership of the Dube shares of [the company's] stock," the plaintiffs got the relief they requested. As previously noted, at oral argument before this court, the plaintiffs' counsel conceded that the plaintiffs do not have standing. See footnote 1 of this opinion. We reject this claim as it applies to the company because the company has demonstrated "a possibility . that some legally protected interest . has been adversely affected" by the court ordering it to pay the individual defendants. (Internal quotation marks omitted.) See State v. Long , supra, 268 Conn. at 531-32, 847 A.2d 862 (setting forth test for standing's aggrievement requirement). Second, Bosco claims that the company paid him the amount ordered by the court and that this payment constituted a satisfaction of judgment that renders this appeal moot. "[T]he filing of a satisfaction of judgment does not render an appeal moot when there is a possibility of restitution or reimbursement ." (Citation omitted.) G Power Investments, LLC v. GTherm, Inc. , 141 Conn. App. 551, 561, 61 A.3d 592 (2013). Here, as the company's counsel argued at oral argument, such actions as the company's participation in preargument conferences and filing of a brief indicate that the company did not intend to abandon this appeal. Because this court could order restitution, this appeal is not moot. See, e.g., Wells Fargo Bank, NA v. Cornelius , 131 Conn. App. 216, 220, 26 A.3d 700, cert. denied, 302 Conn. 946, 30 A.3d 1 (2011). Additionally, we are mindful of the fact that the court's order of damages levied on a party against whom no allegations were made, if left unresolved by this court, would inject further uncertainty upon the pending litigation in Lynn II , where the court already has denied motions for summary judgment on the issue of res judicata. See footnote 13 of this opinion. In addition to claiming that the court exceeded its authority in entering an order against the company when none of the pleadings contained any allegations against or sought relief from the company, the company claims that the court's entry of the order violated its procedural due process rights to notice and an opportunity to be heard. With respect to this alternative claim, the company argues that it lacked "notice that relief could be entered against it in the form of required payments to the defendants" because "[the company] was only a nominal party against whom no claims had been made" and no party "had asserted a prayer for relief seeking any relief from" the company. Although we agree with the company as to its principal claim and, thus, need not reach this alternative ground, these claims nevertheless underscore the fact that pleading requirements are, at their core, a notice issue. See, e.g., Todd v. Glines , supra, 217 Conn. at 9-10, 583 A.2d 1287 ; KMK Insulation, Inc. v. A. Prete & Son Construction Co. , supra, 49 Conn. App. at 525, 715 A.2d 799. In cases in which the plaintiffs seek a declaratory judgment, "[a]ll persons who have an interest in the subject matter of the requested declaratory judgment that is direct, immediate and adverse to the interest of one or more of the plaintiffs or defendants in the action shall be made parties to the action or shall be given reasonable notice thereof." Practice Book § 17-56 (b). "This rule is not merely a procedural regulation. It is in recognition and implementation of the basic principle that due process of law requires that the rights of no man shall be judicially determined without affording him a day in court and an opportunity to be heard." (Internal quotation marks omitted.) Kolenberg v. Board of Education of Stamford , 206 Conn. 113, 124, 536 A.2d 577, cert. denied, 487 U.S. 1236, 108 S.Ct. 2903, 101 L.Ed. 2d 935 (1988) (interpreting Practice Book (1988) § 390 [now § 17-55] which provided "that the court will not render a declaratory judgment 'unless all persons having an interest in the subject matter of the complaint are parties to the action or have reasonable notice thereof' "). On appeal, the company claims, in the alternative, that the remedy was inequitable in light of the court's finding that Bosco, Parillo, and Warner engaged in self-dealing by awarding themselves bonuses to pay for the Dube shares. "An equitable award may be found to be error only if it is based on factual findings that are clearly erroneous . or if it is the result of an abuse of discretion." (Citation omitted.) LaCroix v. LaCroix , 189 Conn. 685, 689-90, 457 A.2d 1076 (1983). Because we reverse the judgment on other grounds, we need not address whether the court abused its discretion in fashioning this order. Polivy and Bosco, in their respective briefs to this court, argue that the individual defendants were "entitled to a return of the purchase price paid for [the Dube] stock" because "[t]he plaintiffs . failed to present any evidence to establish that [the company] . would suffer damage if it were found liable for the return of the funds ." In making this argument, Polivy and Bosco omit the undisputed fact that the individual defendants had been in control of the company throughout the trial and that after the plaintiffs gained control of the company, the court denied the plaintiffs' motion to reopen the evidence because the court did not consider the company's finances to be material. The court's unwillingness to hear evidence of the company's finances demonstrates that the court did not anticipate taking the company's finances into account when fashioning its order. Additionally, Polivy and Bosco's argument underscores the importance of the parties receiving notice of the claims to be decided so that they can present evidence relevant to those claims. Notably, the court in Lynn II heard argument from Polivy and Bosco that res judicata barred the company's claims because "[a]ll claims advanced in Lynn II . are from the same transaction and were or could have been litigated in Lynn I ." As that court found, and consistent with this court's holding herein, the company was never a plaintiff in this case or in privity with the plaintiffs and, therefore, had no opportunity to pursue these claims. On the second day of the trial, the following colloquy occurred: "The Court: . Counsel still in agreement with regard to the court's excusing Attorney Block for [the company]? "[The Defendants' Counsel]: Yes, Your Honor. "[The Plaintiffs' Counsel]: Yes, Your Honor. "The Court: All right. Anything before we begin? "[The Defendants' Counsel]: Along those same lines, I just wanted to point out . Bosco, Jr., was named as a defendant and not identified by either party as a witness. We haven't had him here because he owns three shares and he didn't purchase any of the disputed shares. "[The Plaintiffs' Counsel]: The allegations are the same in the complaint. It was merely to give him notice of the proceedings because he was a stockholder and in theory has an interest in the proceedings, but we didn't make any allegations against . Bosco, Jr. He's not required as far as we're concerned." The plaintiffs' counsel suggested that, in light of the court's finding that Bosco, Parillo, and Warner paid for these shares with bonuses they received through self-dealing and of issues outstanding in Lynn II concerning the propriety of Polivy's legal fees, the individual defendants should pursue the company directly for the amount each paid for the Dube shares. We also refer this matter to the chief administrative judge of the civil division to consider transfer to the Complex Litigation Docket for consolidation with the litigation pending in Lynn II .

12498823

Vivian GAGLIANO et al. v. ADVANCED SPECIALTY CARE, P.C., et al.

Gagliano v. Advanced Specialty Care, P.C.

2018-08-14

SC 19804

587

601

189 A.3d 587

189

West's Atlantic Reporter, Third Series

Connecticut Supreme Court

Connecticut

2021-08-31T19:05:39.044951+00:00

Fastcase

Vivian GAGLIANO et al. v. ADVANCED SPECIALTY CARE, P.C., et al.

Vivian GAGLIANO et al. v. ADVANCED SPECIALTY CARE, P.C., et al. SC 19804 Supreme Court of Connecticut. Argued February 22, 2018 Officially released August 14, 2018 Alinor C. Sterling, Bridgeport, with whom were Katherine L. Mesner-Hage and, on the brief, Joshua D. Koskoff, Bridgeport, for the appellants (plaintiffs). Michael G. Rigg, Hartford, for the appellee (defendant Danbury Hospital). Roy W. Breitenbach and Michael J. Keane, Jr., filed a brief for the Fairfield County Medical Association as amicus curiae. Kathryn Calibey, Sean J. Stokes,Hartford and Brendan Faulkner filed a brief for the Connecticut Center for Patient Safety as amicus curiae. Jennifer L. Cox and Jennifer A. Osowiecki, Hartford, filed a brief for the Connecticut Hospital Association as amicus curiae. Palmer, McDonald, D'Auria, Mullins and Kahn, Js. This case originally was scheduled to be argued before a panel of this court consisting of Justices Palmer, McDonald, D'Auria, Mullins and Kahn. Although Justice McDonald was not present when the case was argued before the court, he has read the briefs and appendices, and listened to a recording of the oral argument prior to participating in this decision.

7193

46276

McDONALD, J. The primary issue in this medical malpractice action is whether there was sufficient evidence from which the jury reasonably could have found that the defendant surgical resident, Venkata Bodavula, was an actual agent of the defendant hospital, Danbury Hospital, when he negligently performed a surgical procedure under the supervision of a member of the hospital's clinical faculty who was also the plaintiff's private physician. Upon our grant of certification, Vivian Gagliano (plaintiff) and her husband, Philip Gagliano (collectively, plaintiffs), appeal from the judgment of the Appellate Court reversing the trial court's judgment, in part, as to the hospital's vicarious liability for Bodavula's negligence. We conclude that the trial court properly determined that there was sufficient evidence to establish such an agency relationship, and that imposing vicarious liability on the hospital for Bodavula's actions was not improper. The opinion of the Appellate Court sets forth the following facts that the jury reasonably could have found, which we supplement in part I of this opinion, and procedural history. "On July 23, 2008, the plaintiff underwent hernia repair surgery at the hospital. The surgery was to be performed by [Joseph R. Gordon], her physician, who had recommended the procedure to the plaintiff during an examination at his office. [Gordon] was not employed by the hospital, but maintained staff privileges allowing him to attend to his patients admitted to the hospital. "Prior to the start of the procedure, but without the plaintiff's [specific] knowledge, a fourth year [surgical] resident, [Bodavula], was assigned to assist [Gordon] with the surgery. . [Gordon] asked [Bodavula] about his experience with a surgical device called an optical trocar, which was to be used in the surgery. [Bodavula] informed [Gordon] that he knew how to use the device. Under [Gordon's] supervision, [Bodavula] performed the initial insertion of the device into the plaintiff's abdomen. "As the surgery proceeded, [Gordon] became concerned that [Bodavula] was improperly [applying too much force in] using the optical trocar. At that point, [Gordon] took over for [Bodavula] and completed the plaintiff's surgery. Two days after the surgery, while recovering in the hospital, the plaintiff began to exhibit signs of infection, and her body went into septic shock. It was discovered that the plaintiff's colon had been perforated during the surgery. [As a consequence, the plaintiff ultimately sustained life threatening and life altering injuries.] . "The [plaintiff and her husband, respectively] filed negligence [and loss of consortium] claims against [Gordon], his practice, Advanced Specialty Care, P.C., [Bodavula], and the hospital. The plaintiffs alleged that [Gordon] and [Bodavula] were [actual or apparent] agents of the hospital, and, therefore, the hospital was vicariously liable for their actions. Prior to the commencement of trial, the plaintiffs settled with [Gordon] and Advanced Specialty Care, P.C., for an undisclosed sum. In May, 2014, a jury trial commenced to address the remaining claims against [Bodavula] and the hospital. "[At trial, evidence was adduced establishing that Bodavula] was enrolled in the surgical residency program at Sound Shore Medical Center in New Rochelle, New York. The program included rotations at Danbury Hospital. [Bodavula] testified that as a fourth year medical resident he spent approximately 50 percent of his time at the hospital. A rotation at the hospital would last one to two months. On the day of the plaintiff's surgery, the chief resident of the surgical residency program assigned [Bodavula] to assist [Gordon]. There was no evidence presented as to whether the chief resident was an employee of the hospital, but [Bodavula] testified that in regard to the chief resident, 'I'm also the same residence, as the same part of the same pool of residents.' "During his testimony, [Bodavula] was questioned about the hospital's House Staff Manual (manual). [Bodavula] testified that he could not recall whether he had received a copy of the manual. Despite not being able to recall if he had received the manual, he believed that he was expected to comply with the obligations that it established. "Later in the trial, the hospital stipulated that the manual had been distributed to residents in 2008. The entire 231 page manual was admitted into evidence as a full exhibit. The trial court ruled that the manual was relevant to the question of whether [Bodavula] was an agent of the hospital.... "The first section of the manual addressed resident policies, including selection to the program, resident evaluations, responsibilities, hospital safety, and benefits. The section on benefits included details about [the hospital's provision of] rent-free housing [or a housing stipend], vacation and sick leave, as well as [professional liability, health, disability, and life] insurance. It also stated: 'Danbury Hospital will provide a salary to the [r]esident, as specified in the Danbury Hospital Resident Agreement.' There was no evidence submitted as to a 'Residency Agreement' between [Bodavula] and the hospital. He testified that he was not paid by the hospital.... "Another section of the manual, titled 'Residency Program Information,' provided details for eight distinct residency programs . [including] surgery. "The chapter on the surgical residency program provided an overview of the program: 'Since 1999 Danbury Hospital has been an integrated part of the surgical residency at Sound Shore Medical Center in New Rochelle, [New York]. The residency is affiliated with New York Medical College. Ten general surgical residents from Sound Shore Medical Center rotate at Danbury Hospital at any given time. Surgical residents have an opportunity to study under attending surgeons who have had their own training at multiple academic institutions.' "This residency program section of the manual also established the hospital's expectations that residents must satisfy in order to be deemed proficient at six core competencies required by a national accreditation organization. The section goes on to describe the program's assessment procedures including surgical skills evaluation by faculty.... "[Gordon] testified that it was within his discretion to determine the resident's level of involvement during a surgical procedure. He also testified that throughout a surgical procedure he maintained the authority to end the resident's participation: '[A]s the attending surgeon, I have to sometimes exert my authority and just take over, and I say, I'm taking over, and the resident steps aside.' "After the plaintiffs rested their case, each defendant moved for a directed verdict. The trial court denied the motions. The jury returned a verdict in favor of the plaintiffs. The jury awarded the plaintiff $902,985.04 in economic damages and $9.6 million in noneconomic damages. Philip Gagliano was awarded $1.5 million in loss of consortium damages. [In its responses to interrogatories, the] jury found that [Bodavula] was an actual agent of the hospital. [Bodavula] and the hospital were found liable for 80 percent of the plaintiffs' damages. The remaining 20 percent of liability was assigned to [Gordon]. "After the verdict, the hospital and [Bodavula] filed separate motions to set aside the verdict, for judgment notwithstanding the verdict, and remittitur. The court denied the six motions. With respect to the hospital's motions, the trial court found that there was sufficient evidence to support the jury's finding that [Bodavula] was an agent of the hospital when he operated on the plaintiff. Specifically, the court found that credible evidence was presented to the jury that showed that [Bodavula] wore a hospital badge; treated patients according to the instructions of the chief resident; reported to and was evaluated by hospital staff; was required to follow hospital obligations, protocols and set rules; and was assigned to the plaintiff's surgery by the chief resident. [The court also substantially relied on the manual as evidence of the hospital's right to control Bodavula.]" (Footnotes added and omitted.) Gagliano v. Advanced Specialty Care, P.C. , 167 Conn. App. 826, 828-35, 145 A.3d 331 (2016). The record reveals the following additional procedural history. The trial court rendered judgment in accordance with the verdict, from which the hospital appealed. In its appeal to the Appellate Court, the hospital claimed that (1) there was insufficient evidence that Bodavula acted as the hospital's agent when performing the surgery, and (2) a conclusion that the hospital had the right to control Bodavula's surgical performance would contravene the public policy expressed in statutes generally barring the corporate practice of medicine. Id., at 828-29, 145 A.3d 331 and n.3. The Appellate Court agreed with the first ground and, therefore, did not reach the second. Id., at 829, 145 A.3d 331 n.3. Specifically, the Appellate Court held that the evidence did not establish that there was an understanding between Bodavula and the hospital that the hospital would be in control of Bodavula's performance of the surgery. Id., at 838, 145 A.3d 331. The court pointed to the plaintiffs' failure to introduce the residency agreement as a "glaring" evidentiary omission; id., at 841, 145 A.3d 331 ; and reasoned that the manual and the remaining evidence were insufficient to fill that void. Id., at 844, 145 A.3d 331. Largely in reliance on Gupta v. New Britain General Hospital , 239 Conn. 574, 687 A.2d 111 (1996), the Appellate Court reasoned that because of the dual functions of residency programs-employment and academic training-the jury lacked any basis to determine whether Bodavula was acting pursuant to the academic relationship, to which the "right to control" agency test would not even apply, without the residency agreement. Gagliano v. Advanced Specialty Care , P.C. , supra, at 840-46, 145 A.3d 331. Ultimately, it concluded that the evidence established that only Gordon, not the hospital, controlled Bodavula's performance of the surgery. Id., at 843, 145 A.3d 331. Accordingly, it reversed the judgment of the trial court as to the hospital. Id., at 851, 145 A.3d 331. We granted the plaintiffs' petition for certification to appeal, limited to the following issue: "Did the Appellate Court correctly determine that the evidence admitted at trial was insufficient to support the jury's finding of actual agency ." Gagliano v. Advanced Specialty Care, P.C. , 323 Conn. 926, 150 A.3d 229 (2016). The hospital filed a statement of an alternative ground for affirmance, renewing the legal claim that the Appellate Court did not reach. I We begin with the certified issue regarding evidentiary sufficiency. The plaintiffs contend that the Appellate Court improperly drew inferences against the verdict and tested the evidence against different and more demanding standards than the law under which the jury was charged. They further contend that the evidence supported the verdict under the charge given. We agree. We review a trial court's denial of a motion to set aside the verdict and a motion for judgment notwithstanding the verdict under the same standard. "A party challenging the validity of the jury's verdict on grounds that there was insufficient evidence to support such a result carries a difficult burden. In reviewing the soundness of a jury's verdict, we construe the evidence in the light most favorable to sustaining the verdict.... We do not ask whether we would have reached the same result. [R]ather, we must determine . whether the totality of the evidence, including reasonable inferences therefrom, supports the jury's verdict . If the jury could reasonably have reached its conclusion, the verdict must stand." (Citations omitted; internal quotation marks omitted.) Pestey v. Cushman , 259 Conn. 345, 369-70, 788 A.2d 496 (2002) ; accord Doe v. Hartford Roman Catholic Diocesan Corp. , 317 Conn. 357, 370-71, 119 A.3d 462 (2015). In the absence of a challenge to the trial court's charge to the jury, as in the present case, that charge becomes the law of the case. See, e.g., A-G Foods, Inc. v. Pepperidge Farm, Inc. , 216 Conn. 200, 212, 579 A.2d 69 (1990). The sufficiency of the evidence must be assessed in light of that law of the case. Id. The trial court's charge reflected the following principles. "The existence of an agency relationship is a question of fact"; Beckenstein v. Potter & Carrier, Inc. , 191 Conn. 120, 133, 464 A.2d 6 (1983) ; which "may be established by circumstantial evidence based upon an examination of the situation of the parties, their acts and other relevant information." Gateway Co. v. DiNoia , 232 Conn. 223, 240, 654 A.2d 342 (1995). Three elements are required to show the existence of an agency relationship: "(1) a manifestation by the principal that the agent will act for him; (2) acceptance by the agent of the undertaking; and (3) an understanding between the parties that the principal will be in control of the undertaking." (Internal quotation marks omitted.) Beckenstein v. Potter & Carrier, Inc. , supra, at 133, 464 A.2d 6. Although stated as a three part test, this court has also acknowledged there are various factors to be considered "in assessing whether [an agency] relationship exists [which] include: whether the alleged principal has the right to direct and control the work of the agent; whether the agent is engaged in a distinct occupation; whether the principal or the agent supplies the instrumentalities, tools, and the place of work; and the method of paying the agent.... In addition, [a]n essential ingredient of agency is that the agent is doing something at the behest and for the benefit of the principal." (Citations omitted; internal quotation marks omitted.) Id. It is exclusively this third element-an understanding between the parties that the principal will be in control of the undertaking-on which the Appellate Court's decision rested and on which the hospital defends that decision. Before turning to the evidence related to that element, two general points must be made. First, there can be no doubt that the "undertaking" must include Bodavula's performance of the surgery. It is, after all, the sole negligent act on which liability was premised. Nonetheless, we agree with the plaintiffs that the "undertaking" properly can be viewed more broadly as the surgical residency, such that evidence related to the hospital's general right to direct and control Bodavula's conduct as a medical resident could bear on the hospital's right to control his surgical performance. See Standard Oil of Connecticut, Inc. v. Administrator, Unemployment Compensation Act , 320 Conn. 611, 623, 134 A.3d 581 (2016) ("The decisive test is who has the right to direct what shall be done and when and how it shall be done? Who has the right of general control?" [Emphasis added; internal quotation marks omitted.] ); Thompson v. Twiss , 90 Conn. 444, 447, 97 A. 328 (1916) (same). Nonetheless, additional facts might demonstrate that there was an abandonment or change of agency with regard to the particular act giving rise to liability. See, e.g., 1 Restatement (Second), Agency § 227, p. 500 (1958) ("Servant Lent to Another Master"). Indeed, this was precisely the theory that the hospital advanced to the jury in its opening and closing arguments. Second, it is only the general right to control, and not the actual exercise of specific control, that must be established. See Jagger v. Mohawk Mountain Ski Area, Inc. , 269 Conn. 672, 693 n.16, 849 A.2d 813 (2004) ("a fundamental premise underlying the theory of vicarious liability is that an employer exerts control, fictional or not, over an employee acting within the scope of employment, and therefore may be held responsible for the wrongs of that employee"); Heath v. Day Kimball Hospital , Superior Court, judicial district of Hartford, Complex Litigation Docket, Docket No. X04-CV-11-6026678-S (December 16, 2013) (57 Conn. L. Rptr. 381, 383, 2013 WL 6989523) ("the law does not require proof that the principal look over the agent's shoulder and direct the agent in how to do his work"). Agents may be vested with considerable discretion and independence in how they perform their work for the principal's benefit, yet still be deemed subject to the principal's general right to control. 1 Restatement (Third), Agency § 1.01, comment (c), p. 20 (2006) ("a person may be an agent although the principal lacks the right to control the full range of the agent's activities, how the agent uses time, or the agent's exercise of professional judgment"); see 1 Restatement (Second), supra, § 220 (2), comment (i), p. 489 (noting that "skilled artisans employed by a manufacturing establishment, many of whom are specialists, with whose method of accomplishing results the employer has neither the knowledge nor the desire to interfere, are servants"); 1 Restatement (Second), supra, § 220 (1), comment (d), p. 487 ("[T]he control or right to control needed to establish the relation of master and servant may be very attenuated. In some types of cases which involve persons customarily considered as servants, there may even be an understanding that the employer shall not exercise control. Thus, the full-time cook is regarded as a servant although it is understood that the employer will exercise no control over the cooking."); see also Jefferson v. Missouri Baptist Medical Center , 447 S.W.3d 701, 712 (Mo. App. 2014) ("an employer's right to control may be attenuated, and an employee may have a significant degree of discretion in her work"); Brickner v. Normandy Osteopathic Hospital, Inc. , 746 S.W.2d 108, 115 (Mo. App. 1988) ("[l]iability premised on the theory of respondeat superior does not require [the] plaintiff to prove the employer had actual control over its employee's discretionary judgment as long as the employee's conduct is within the scope and course of employment"). Thus, the mere fact that resident physicians, like physicians generally, must be free to exercise independent medical judgment; see Jarmie v. Troncale , 306 Conn. 578, 606-609, 50 A.3d 802 (2012) ; does not preclude the trier of fact from finding the existence of a principal-agent relationship between a hospital and a resident physician. See Kelley v. Rossi , 395 Mass. 659, 663-64, 481 N.E.2d 1340 (1985) (resident physician can be servant of hospital even in absence of hospital's control over precise treatment decision). With these principles in mind, we turn to the evidence proffered by the plaintiffs to establish the agency relationship between Bodavula and the hospital. That evidence emanates from three sources, not all of which were addressed, or fully explored, by the Appellate Court: the hospital house staff manual, witness testimony, and a hospital consent form signed by the plaintiff. With regard to the manual, we underscore the significance of the fact that the 231 page manual, in its entirety , was admitted as a full exhibit, specifically as relevant to the issue of agency. The hospital made no request for any limiting instruction as to its use; see Conn. Code Evid. § 1-4 ("Limited Admissibility"); and no witness testified regarding its application to the present circumstances. Accordingly, the manual falls within the rule that "[a]n exhibit offered and received as a full exhibit is in the case for all purposes"; Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Cole , 189 Conn. 518, 525, 457 A.2d 656 (1983) ; "and is usable as proof to the extent of the rational persuasive power it may have." (Internal quotation marks omitted.) State v. Chemlen , 165 Conn. App. 791, 817, 140 A.3d 347, cert. denied, 322 Conn. 908, 140 A.3d 977 (2016). The manual included sections of general applicability to all residents and ones of specific applicability to surgical residents. The general sections set forth the following relevant mandates regarding structure of the clinic program, the program's goals, and the responsibilities of the hospital, the faculty, and the residents. With regard to general oversight, the manual provides that the hospital's executive vice president is charged with responsibility for the oversight and administration of the hospital's residency programs. A designated hospital official is "accountable for medical education." The hospital's medical education committee monitors all aspects of residency education and implements an internal review process. With regard to day-to-day oversight, the manual provides that "[a]ll patient care must be supervised by qualified faculty." The hospital provides such faculty to "ensure that residents receive appropriate supervision for all of the care they provide during their training." (Footnote added.) The manual sets forth the following compact between the resident physicians and the faculty: "To meet their educational goals, resident physicians must participate actively in the care of patients and must assume progressively more responsibility for that care as they advance through their training. In supervising resident education, faculty must ensure that trainees acquire the knowledge and the special skills of their respective disciplines while adhering to the highest standards of quality and safety in the delivery of patient care services." The manual includes various faculty commitments to residents, including: "to ensure that resident physicians have opportunities to participate in patient care activities of sufficient variety and with sufficient frequency to achieve the competencies required by their chosen discipline"; to "provide resident physicians with opportunities to exercise graded, progressive responsibility for the care of patients"; and to "evaluate each resident's performance on a regular basis ." With regard to such evaluations and recourse, the manual provides that "[u]nsatisfactory [r]esident evaluation may result in required remedial activities, temporary suspension from duties, or termination of employment and residency education." The resident is afforded a multistep grievance procedure, the first step commencing with the chief resident and the final step terminating with the designated institutional official for the hospital's executive vice president. In the section of the manual specific to the surgical residency program, the hospital touts the program as an opportunity to use the latest, cutting edge techniques, technology and equipment. Residents rotate among four surgical services. One rotation specifically mentions the performance of hernia surgeries. While on their rotations, residents are provided with "the opportunity for complex open and minimally invasive surgical cases." The chief resident sets the precise structure of the rotation with guidance from the attending staff, the hospital's surgery chairman, the hospital residency liaison and the Sound Shore Medical Center program director. "Surgical residents are expected to . [s]afely and correctly perform appropriate diagnostic and surgical procedures." Residents' "[m]anual dexterity [is] evaluated in the operating room and on the surgical floors by [a]ttending [s]urgeons and [c]hief [r]esidents as reflected by operative technique, performance of basic bedside procedures and quality of assistance during complex operative procedures." Surgical skills evaluation forms are used by faculty to make these assessments. The plaintiffs' standard of care expert, Thomas H. Gouge, testified that accreditation for a clinical setting requires that residents be subject to the setting's quality control. Gouge also testified that a teaching hospital benefits from a residency program because it affords such hospitals "highly trained, low cost" physicians to assist nurses and to provide patient care around the clock. Other proffered evidence demonstrated how the aforementioned obligations and procedures played out with regard to the plaintiff's surgery. A hospital consent form signed by the plaintiff prior to her surgery authorized a surgical resident to participate in performing part of the surgery. The consent form prominently displayed the hospital's name and logo; it provided no other indicia that residents or medical support positions listed on the form had any other affiliation. Testimony from Bodavula and Gordon established the following facts. The chief surgical resident assigned Bodavula to the plaintiff's surgery. Gordon did not request a resident and did not need a second surgeon to assist him. Gordon did not believe that it was in his patient's best interest to allow a resident to participate, but he did so to advance the hospital's expectation of involving its residents to the extent that it was safe to do so. Gordon understood that part of his responsibility as clinical faculty included his evaluation of resident performance. He acknowledged that, once a resident shows up in the operating room, he puts on the additional hat of being clinical faculty. Before commencing the surgery, the surgical team followed the hospital's safety checklist protocol. Gordon believed that use of the optical trocar was part of Bodavula's educational experience. Gordon provided Bodavula with instruction and supervision on the use of that device while Bodavula performed the surgical procedure. This evidence provides a sufficient basis for the jury to have concluded that the hospital had the general right to control Bodavula as a resident, such that he was the hospital's actual agent prior to and after he entered the operating room. The hospital agreed to oversee the provision of a specific medical education for residents in exchange for the provision of low cost labor and the prestige attached to being a teaching hospital. The hospital fulfilled that obligation by implementing systems whereby residents were provided opportunities to participate in progressively more difficult tasks, charging its faculty with executing that mission. Hospital officials overseeing the program had the right to constrain the activities in which Bodavula could participate and to take disciplinary action against him should he fail to provide patient care that satisfied the hospital's standards, which in turn could jeopardize his ability to complete the residency program and become a board certified surgeon. A reasonable inference from the evidence is that the chief surgical resident who assigned Bodavula to the plaintiff's surgery also was acting in furtherance of the hospital's obligations to surgical residents. The chief resident's alignment with the hospital was established by his or her place in the hospital's chain of command in resolving grievances, as well as his or her status as a member of the same pool of residents as Bodavula. To the extent that the manual suggested that the chief surgical resident also was acting for Sound View Medical Center, the goals of both entities appear to be squarely aligned such that the chief resident could act for both. See 1 Restatement (Second), supra, § 226, p. 498 ("[a] person may be the servant of two masters, not joint employers, at one time as to one act, if the service to one does not involve abandonment of the service to the other"); id., § 236, comment (a), p. 523 ("[a]lthough a person cannot, by the same act, properly serve two masters whose wills are opposed, he may, as stated in [§] 226, serve two masters both of whom are interested in the performance of the same act"). Moreover, it was eminently reasonable for the jury to conclude that Gordon was charged with fulfilling the hospital's obligation to afford surgical residents with the opportunity to participate in progressively more difficult surgical procedures. Gordon was acting in his capacity as hospital faculty when he allowed Bodavula to participate in the surgery. Although Gordon could dictate the extent of that participation, Gordon was not acting as Bodavula's principal, as it was not to Gordon's benefit to allow Bodavula to conduct part of the surgery. However, even if Gordon could be deemed to have derived some benefit insofar as his admitting privileges may have been conditioned on acting as clinical faculty, the jury was charged that Bodavula could be an agent for two principals. The mere fact that the hospital did not dictate the precise conditions under which Gordon could permit Bodavula to participate in the surgery or the limits thereto does not compel the conclusion that the hospital surrendered its general right to control Bodavula's participation in such procedures. As we previously indicated, there is ample authority recognizing that agents may be vested with considerable discretion and independence in how they perform their work for the principal's benefit, yet still be deemed subject to the principal's general right to control. Finally, we observe that the jury's verdict is in accord with case law from other jurisdictions. For example, the court in Brickner v. Normandy Osteopathic Hospital, Inc. , supra, 746 S.W.2d at 112, 115, concluded there was sufficient evidence to support a jury's finding that a second year resident was acting as a servant of a hospital despite that, at the time of the negligence, he was supervised by an attending physician who participated in the hospital's teaching program. That court explained: "The hospital hired [the resident physician] and allowed him to practice his medical skills by performing operations such as the one performed on [the patient]. [The resident's] employment was controlled by the hospital's 'Department of Surgery Resident's Training Program' syllabus, which set forth in detail the duties of a resident physician . Failure to satisfactorily perform any of his duties, including the performance of his surgical duties, could result in the hospital terminating his employment.... [A]t the time of surgery, [the resident] was performing the very work for which the hospital had hired and was paying him. . [The hospital] exercised control of each step over a resident physician's progress toward surgical certification. Throughout his resident training program, the hospital directed [the resident's] activities and authorized him to perform increasingly complex procedures. The hospital reaped the benefit of [the resident's] labor during his training period. While it did not and could not dictate [the resident's] every move while in surgery, the hospital had supervisory control over his performance as a resident and could at any time dismiss him for poor exercise of his medical judgment. Liability premised on the theory of respondeat superior does not require [the] plaintiff to prove the employer had actual control over its employee's discretionary judgment as long as the employee's conduct is within the scope and course of employment." (Citations omitted; footnote added.) Id., at 114-15 ; see also Jack & Jill, Inc. v. Tone , 126 Conn. 114, 119, 9 A.2d 497 (1939) (right of discharge is strong indicator of master-servant relationship); Nordland v. Poor Sisters of St. Francis Seraph of Perpetual Devotion , 4 Ill. App. 2d 48, 50, 55-57, 123 N.E.2d 121 (1954) (hospital intern employee was not independent contractor for purposes of workers' compensation because hospital maintained control of intern even when intern assisted in operating room). The hospital has brought no authority to our attention that compels a contrary conclusion. Accordingly, we conclude that the Appellate Court improperly held that the evidence was insufficient to support the jury's finding of actual agency. II We therefore turn to the hospital's alternative ground for affirmance. Specifically, the hospital contends that it was not legally permitted to control the professional judgment of a physician under Connecticut's statutory scheme regarding physicians and hospitals. The gravamen of the hospital's argument is that, because it is not licensed to practice medicine, it cannot (1) directly engage in the practice of medicine, or (2) indirectly engage in the practice of medicine through licensed employees or agents. Thus, it posits that it cannot be vicariously liable for Bodavula's negligence because, as a matter of law, it was precluded, directly and indirectly, from exercising any control over his surgical performance. This presents a question of law, which we review de novo. See, e.g., Batte-Holmgren v. Commissioner of Public Health , 281 Conn. 277, 294, 914 A.2d 996 (2007). We are not persuaded. We recently rejected effectively the same argument in Cefaratti v. Aranow , 321 Conn. 593, 141 A.3d 752 (2016), albeit in the context of liability under the theory of apparent agency. There, it was argued that "[a] hospital cannot practice medicine and therefore cannot be held directly liable for any acts or omissions that constitute medical functions." (Internal quotation marks omitted.) Id., at 610, 141 A.3d 752. In rejecting this argument, we stated that "it has never been the rule in this state that hospitals cannot be held vicariously liable for the medical malpractice of their agents and employees. To the contrary, this court, the Appellate Court and the Superior Court have consistently assumed that the doctrine of respondeat superior may be applied to hold hospitals vicariously liable for the medical malpractice of their agents and employees." (Footnote omitted.) Id., at 610-11, 141 A.3d 752 ; see, e.g., Weiss v. Surgical Associates, P.C. , Superior Court, judicial district of Fairfield, Docket No. CV-11-6022546-S, 2015 WL 3516842 (April 30, 2015) (rejecting hospital's argument that it cannot legally exert requisite control necessary to establish agency relationship because it was not created under General Statutes for purpose of practicing medicine); Noel v. Lawrence & Memorial Hospital , 53 Conn. Supp. 269, 287-88 (2014) (subjecting hospitals to claims of vicarious liability "does not mean that hospital corporate entities are making individualized medical judgments . [only] that hospitals are responsible for the negligence of the doctors who do make them"). We see no reason why Cefaratti would not dispose of the hospital's argument in the present case. Neither the hospital nor the amici curiae that have filed briefs in support of the hospital on this issue have asked this court to overrule or limit Cefaratti . Indeed, they did not acknowledge the case in their briefs to this court; nor did the hospital address it at oral argument, despite the fact that the plaintiffs' reply brief substantially relied on it to respond to the alternative ground for affirmance. Insofar as they advance arguments that could bear on the question of whether Cefaratti reflects sound public policy, we are not persuaded by such arguments. Holding hospitals vicariously liable continues to support this state's sound public policy of encouraging hospitals to formulate and implement effective quality control policies and to exercise better oversight of their employees and agents. We know of no authority to support the proposition that shifting such responsibility to a teaching hospital will, as the amicus curiae Connecticut Hospital Association claims, have an undue chilling effect on the number and scope of residency training opportunities. The evidence established that teaching hospitals receive direct financial benefits, including federal funding for, among other expenses, resident salaries, benefits, and professional liability insurance. Teaching hospitals also receive indirect benefits such as prestige in the health care community, and a group of highly trained, low cost physicians who can provide care to patients in the hospital twenty-four hours a day, seven days a week. As the amicus curiae Connecticut Center for Public Safety points out, national rankings suggest that teaching hospitals are viewed as delivering a higher quality of care, and obtaining better results, than other hospitals. See A. Comarow & B. Harder, "2017-18 Best Hospitals Honor Roll and Overview," U.S. News & World Report (August 8, 2017), available at https://health.usnews.com/health-care/best-hospitals/articles/best-hospitals-honor-roll-and-overview (last visited August 2, 2018). Finally, we underscore that the question before us is not whether residents or physicians generally are per se agents of hospitals. Rather, it is simply whether there was sufficient evidence in the present case to support the jury's finding that Bodavula was the hospital's actual agent. Given the unfettered use that the jury was permitted to make of the manual and other evidence, we are persuaded that there was sufficient evidence to support the jury's finding of actual agency. Similarly, we decline to create a per se rule that would absolve teaching hospitals of liability for the negligent acts of their employees and agents. The judgment of the Appellate Court is reversed only with respect to the hospital's liability and the case is remanded to that court with direction to affirm the judgment of the trial court; the judgment of the Appellate Court is affirmed in all other respects. In this opinion the other justices concurred. As we explain later in this opinion, a consent form signed by the plaintiff was admitted into evidence in which the hospital informed her of the possibility that a resident might assist in portions of the surgery. The jury found that Bodavula was not an apparent agent of the hospital. The jury was instructed in relevant part that apparent agency could exist "if the plaintiff accepted services from [Bodavula] in the reasonable belief that [Bodavula] worked for [the hospital] or was supervised or controlled by the hospital ." As we previously indicated, there was no evidence that the plaintiff knew that Bodavula was in fact going to perform part of the surgery. As we explain later in this opinion, there was undisputed evidence submitted regarding the benefits to the hospital from the residency program generally and the residents' provision of medical care to the hospital's patients specifically. In opening argument, the hospital's counsel stated: "It is true that you may find that [Bodavula] for certain purposes was an agent of the hospital. The bigger question is . when he stepped into that surgical arena , into that operating room with [Gordon], did he remain-if indeed that was your conclusion, did he remain the agent of the hospital ." (Emphasis added.) During closing argument, counsel stated that he "acknowledge[d] that for many purposes at [the hospital, Bodavula] may well have been an agent.... Not for this purpose ." The Appellate Court placed substantial weight on the plaintiffs' failure to proffer the residency agreement. Although a residency agreement may be significant evidence relevant to the presence or absence of an agency relationship, we have never held that the failure to produce such an agreement precludes a finding of agency. Gupta v. New Britain General Hospital , supra, 239 Conn. 574, 687 A.2d 111, on which the Appellate Court relied for its view, is inapposite. In Gupta , a physician brought an action challenging his dismissal from a hospital's surgical residency training program. Id., at 575, 687 A.2d 111. The physician claimed that the dismissal was a breach of the residency agreement, which he claimed was an employment contract. Id., at 580, 687 A.2d 111. Therefore, the terms and characterization of that agreement were necessarily essential to the resolution of that case. We also note that the Appellate Court's reliance on the hybrid academic and employment functions of a medical residency cited in Gupta should have had no bearing on the present case. This distinction was not advanced in the trial court proceedings; there was no request for a jury charge setting forth different standards for agency depending on which function Bodavula was undertaking when the negligent act occurred, as the Appellate Court suggested. See A-G Foods, Inc. v. Pepperidge Farm, Inc. , supra, 216 Conn. at 212, 579 A.2d 69 (claim of insufficient evidence must be examined in light of law of case, as charged to jury). After it became apparent to the plaintiffs that neither Bodavula nor Gordon had the requisite knowledge to lay a foundation for admission of the manual, a discussion ensued off the record about calling a hospital official as a witness to do so. After it was revealed that the official was unavailable to testify in the near term, the hospital stipulated that the manual could come in as a full exhibit. Accordingly, insofar as the Connecticut Hospital Association, in its amicus brief, attempts to limit the meaning or application of certain parts of the manual, we do not consider these arguments. The manual does not define "faculty" and provides no information as to the contours of the relationship between the hospital and its faculty. Nonetheless, Gordon admitted in his testimony that, insofar as the manual refers to faculty, it would be referring to the teaching faculty at the hospital, which would have included him with regard to the surgical residency program in 2008. He also acknowledged that, although he could not recall receiving the manual, the manual's recitation of the faculty's general responsibilities was consistent with Gordon's understanding of his role at the hospital as clinical faculty. Gordon also indicated that, in connection with the surgical residency program in 2008, he had no written agreement to serve in that capacity, and was not paid to perform in that capacity. He indicated that there was a "cultural understanding" that attending surgeons would teach residents. According to Gordon, the hospital executed a formal agreement with him to serve as faculty in 2010. The jury was given the following instruction: "A person may be the agent of two principals at the same time, so long as his service to one does not involve abandonment of his service to the other. The fact that a principal has permitted a division of control, does not lead to an inference he has surrendered it." This instruction was in accord with § 226 of the Restatement (Second) of Agency. See also 1 Restatement (Second), supra, § 227 ("Servant Lent to Another Master"); 1 Restatement (Second), supra, § 236 ("Conduct Actuated by Dual Purpose"). There was conflicting evidence as to whether the hospital paid Bodavula's salary. The manual indicated that it paid residents' salaries, but Bodavula testified that the hospital did not pay him. Putting aside the principle that we are required to conclude that the jury credited the manual over Bodavula because such a conclusion lends stronger support to the verdict, we note that there was no evidence to discount provisions in the manual indicating that the hospital provided numerous other financial benefits, in kind or direct, including meal allowances, housing, insurance, and uniforms. The hospital points out that, by statute, two types of corporate entities permissibly can engage physicians to practice medicine as their employees or agents: professional service corporations; see General Statutes § 33-182a et seq. ; and medical foundations. See General Statutes § 33-182aa et seq. The hospital asserts that it is neither type of entity. Contrary to the hospital's argument, Lieberman v. Connecticut State Board of Examiners in Optometry , 130 Conn. 344, 34 A.2d 213 (1943), does not support the conclusion that a hospital cannot be held vicariously liable for the negligence of its agents and employees, and that case does not adopt the corporate practice of medicine doctrine. Lieberman concerned the revocation of an optometrist's license on the basis of his business and compensation structure with a corporation that sold optical goods. A considerable portion of the optometrist's compensation came from commissions he received from the corporation based on his sale of the corporation's glasses to patients to whom he had issued optical prescriptions. Id., at 351, 34 A.2d 213. This court found that the situation compromised the undivided loyalty an optometrist owes to his patient, as the optometrist might be tempted to act contrary to the true interests of the patient by unnecessarily prescribing glasses or more expensive glasses. Id. This court also found that the store's advertising, done with the knowledge of the optometrist, could create in the public mind the belief that the corporation, and not the optometrist, was offering to render optometric services. Id., at 353, 34 A.2d 213. Although the board of examiners revoked his license in part on the basis of a finding that the optometrist's actions assisted the corporation in the unlicensed practice of optometry, this court did not reach that ground on appeal. Id., at 345, 353, 34 A.2d 213. This court upheld the revocation based solely on a finding that the optometrist engaged in unprofessional conduct because his compensation structure could have impaired his independent judgment and undivided loyalty to patients. Id.

12486187

In re DAVID B.

In re David B.

2016-07-22

No. 38665.

1277

1293

142 A.3d 1277

142

West's Atlantic Reporter, Third Series

Connecticut Appellate Court

Connecticut

2021-08-27T20:57:13.998797+00:00

Fastcase

In re DAVID B.

In re DAVID B. No. 38665. Appellate Court of Connecticut. Argued May 9, 2016. Decided July 22, 2016. David E. Schneider, Jr., for the appellant (respondent mother). Joshua Michtom, assistant public defender, for the appellee (substitute petitioner). Isidro Rueda, for the minor child. LAVINE, PRESCOTT and BEAR, 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. July 22, 2016, the date that this decision was released as a slip opinion, is the operative date for all substantive and procedural purposes.

9092

55681

PRESCOTT, J. The sole issue raised in the present appeal is whether the trial court, in adjudicating a petition to terminate parental rights originating in Probate Court, had the authority, following the death of the original petitioner and legal guardian of the minor child during the pendency of the proceedings, to grant a motion to substitute the child's newly appointed legal guardian as the petitioner in place of the decedent. We conclude that, under the unique set of circumstances presented here, such a substitution was both legally permissible and appropriate given that the newly appointed legal guardian is authorized to bring the termination action herself. The respondent mother, Carmen C., appeals from the judgment of the trial court rendered following a trial de novo on an amended petition to terminate her parental rights as to her son, David B. The respondent claims on appeal that the court's decision to terminate her parental rights should be reversed because, following the death of the original petitioner, Josefa G., who was David's maternal grandmother and his legal guardian, the court improperly granted a motion to substitute in Josefa's mother, Emma G., who, following Josefa's death, was duly appointed by the Probate Court as David's new legal guardian and as the executor of Josefa's estate. The respondent makes two arguments in support of her claim on appeal. First, she argues that General Statutes § 52-599, which, with limited exceptions, provides for the survival of an action or proceeding following the death of a party and authorizes the substitution of the executor or administrator of that party's estate, is inapplicable in proceedings on a petition to terminate parental rights. Accordingly, she argues that the court committed reversible error by allowing Emma's substitution in her capacity as the administrator of Josefa's estate. Second, she asserts that motions to substitute parties are not authorized in juvenile court proceedings, citing Practice Book § 34a-1 (b), and, therefore, the trial court should have treated the filing of the motion to substitute as "a ity," and the case should have proceeded "as if the motion had never been filed." To be clear, the respondent has raised no challenge on appeal either to the factual or legal merits of the court's decision to terminate her parental rights other than the court's decision on the motion to substitute. We conclude, contrary to the respondent's arguments, that the court had ample authority to permit the matter to move forward and grant the motion to substitute, and, accordingly, we affirm the judgment of the court terminating the respondent's parental rights. The record discloses the following relevant facts and procedural history, which largely are undisputed. David was born in March, 2003. In September, 2003, the Department of Children and Families (department) obtained an ex parte order granting it temporary custody of David due to the respondent's ongoing mental health issues and concerns about domestic violence and substance abuse by David's father. David subsequently was adjudicated uncared for, committed to the care of the Commissioner of Children and Families, and placed with his grandmother, Josefa, who also had temporary custody of David's older sibling, Emmanuel. David remained with Josefa until the commitment was revoked in 2005, at which time he was returned to the care of the respondent. In 2008, in response to a call from David's grandfather, the police found David living with the respondent in horrendous conditions, in poor health, and malnourished. The respondent consented to David being returned to Josefa's custody. At that time, Josefa's mother, Emma, also was living with Josefa. Shortly after David's removal from her care, the respondent and David's father submitted an application to the Probate Court for the district of Bridgeport seeking to remove themselves voluntarily as David's guardians and to appoint Josefa as David's sole legal guardian. Although David's parents later had a change of heart with regard to relinquishing guardianship of David, after extensive and contentious litigation, on June 21, 2010, Josefa was appointed as David's sole legal guardian. Litigation between Josefa and David's parents nevertheless continued regarding parental visitation. The visitation rights of David's father eventually were terminated in May, 2011, and the respondent's visitation rights also were severely restricted. On April 12, 2013, Josefa, as David's sole legal guardian, filed a petition with the Probate Court to terminate the parental rights of the respondent and David's father on the ground that David previously had been adjudicated uncared for and his parents had failed to achieve a sufficient degree of personal rehabilitation to encourage a belief that, within a reasonable period of time, they could assume a responsible position in David's life. See General Statutes § 45a-717 (g)(2)(D)(i). In a statement attached to the petition, Josefa alleged that David's parents had failed to support or take care of him, that they could not keep him safe, and that Josefa could no longer tolerate the parents' threats and arguments. The Probate Court, Ganim, J., ordered an investigation by the department and received a report on March 12, 2014, in which the department recommended that termination of his parents' parental rights was in David's best interest. The court held a hearing on April 28, 2014, and, on October 20, 2014, issued a decree terminating both parents' parental rights on the grounds of failure to rehabilitate and a lack of any parent-child relationship as set forth in § 45a-717 (g)(2)(C) and (D)(i). The father filed an appeal from the decree terminating his parental rights with the Superior Court on November 5, 2014. The respondent filed her own appeal on November 8, 2014. The appeals apparently were consolidated. On December 4, 2014, during the pendency of the probate appeal, Josefa died. On December 15, 2014, the Probate Court appointed Emma as David's new legal guardian. It also appointed Emma as the administrator of Josefa's estate on December 22, 2014. On February 23, 2015, the respondent and the father each filed a motion asking the court to "nonsuit" Josefa, in which they argued that a reply to their probate appeal had been due on December 11, 2014, but Josefa had passed away and her estate had not intervened. On March 17, 2015, Emma filed a handwritten motion asking the court to substitute her in for Josefa because she was now David's sole legal guardian. She did not assert in her motion that she was seeking substitution as the administrator of Josefa's estate. The respondent and David's father each filed objections to the motion for substitution. They argued that Emma is "only the legal guardian to [David]" and that she "has no legal authority to substitute in place of the decedent [Josefa]." On April 14, 2015, the trial court, Maronich, J., conducted a hearing on the motion to substitute. The arguments began in the morning with a discussion of whether the record reflected if Emma had been appointed as the administrator of Josefa's estate, as David's legal guardian, or both, and whether the parties were prepared to stipulate to any of those facts. The respondent's attorney argued that the respondent's objection to substitution was not based on whether Emma had been appointed as David's guardian, which he claimed was irrelevant to whether the court should permit substitution, but on whether "she has the authority to step into the shoes of the estate." Thus, the respondent appeared to take the position that the court only had the authority to grant substitution to a duly appointed representative for Josefa's estate. At no time during the argument on the motion to substitute did either the respondent's attorney or the attorney for the father argue or suggest that further action on the petition was no longer possible due to Josefa's death, or that the court lacked authority to substitute in a new party. The court, contrary to the respondent's position, indicated that it believed it was important to establish whether Emma had been appointed as David's legal guardian. The court admonished the attorneys, indicating that it had expected them to come to court "prepared with all proper documentation or in the alternative, to be able to at least agree on a basic set of facts." The court took a recess after instructing the lawyers to "get something definitive" from the Probate Court. When the matter resumed in the afternoon, the court agreed to take judicial notice of the entire Probate Court file, which the court noted included a decree dated December 15, 2014, appointing Emma as David's guardian, and a December 22, 2014 decree appointing her as the administrator of Josefa's estate. The court asked the respondent's attorney if the court properly understood his argument to be that Emma "needs something more than just simple appointment as guardian" to support substitution. The respondent's attorney first seemed to acknowledge that his argument against the motion to substitute likely had been rendered moot by the court's decision to take judicial notice of the decree appointing Emma as administrator for Josefa's estate. He then responded that his understanding of the case law was that Emma could be substituted in for Josefa only on the basis of her position as administrator for the estate, and that her position as legal guardian was irrelevant. Counsel for the father agreed with that analysis. When counsel for the minor child asked what case law the respondent's attorney was relying on in support of his argument, he indicated Burton v. Browd, 258 Conn. 566, 783 A.2d 457 (2001), in which our Supreme Court discusses § 52-599, Connecticut's so-called right of survival statute, and In re Lisa N., Superior Court, judicial district of New Haven, 1992 WL 184285 (July 28, 1992) (7 Conn. L. Rptr. 175 ), in which the court, Downey, J., held that proceedings on a petition to terminate parental rights may survive the death of the petitioner provided that an executor or administrator is substituted in for the decedent in accordance with § 52-599. Because counsel for the respondent was advancing the position that Judge Downey's decision was legally correct, and the trial court already had taken judicial notice that Emma had been appointed as the administrator for Josefa's estate on December 22, 2014, the court asked respondent's counsel if he was willing to concede that Emma could be substituted into the present action in place of Josefa. Counsel was not willing to make such a concession, however, explaining that he was "trying to preserve any appellate issues if there are any appellate issues." After hearing from all the parties, the court issued an oral decision denying the motions for nonsuit, granting the motion to substitute, and overruling the objections of the respondent and David's father. The court reasoned that it was unnecessary for it to rely upon Judge Downey's decision in In re Lisa N. or to discuss whether it agreed with that court's analysis of § 52-599. According to the court, Emma had been appointed as David's legal guardian and, as such, was a proper party to prosecute a petition to terminate parental rights in accordance with General Statutes § 45a-715. The court identified no other legal impediments to its exercising its discretion and allowing the substitution. Emma filed a motion on September 22, 2015, seeking permission to amend the termination petition to include as an additional ground for termination that there was no ongoing parent-child relationship between David and his parents and to allow further time to establish such a relationship would be detrimental to David's best interests. See General Statutes § 45a-717 (g)(2)(C). The court granted the motion over the objections of the parents. The court then conducted a trial de novo on the amended petition over the course of three days, beginning on October 21, 2015. Following trial, the court issued a written memorandum of decision on November 9, 2015, in which it granted the amended petition to terminate parental rights, concluding that the petitioner had proven by clear and convincing evidence both grounds alleged in the petition. Specifically, on the basis of its review of the evidence, the court found that neither the respondent nor David's father was fit to parent their son or even to engage in visitation, and there was no prospect that either would be able to do so at any time in the foreseeable future. The court further found that no positive emotional aspect of a parent-child relationship existed between David and either of his parents, and there was no reasonable prospect that that would change in the foreseeable future. Finally, the court found that termination was in David's best interest, and it reconfirmed Emma as David's legal guardian. This appeal followed. The sole claim raised by the respondent in this appeal from the court's decision to terminate her parental rights is that the court improperly granted the motion for substitution filed by David's current legal guardian, Emma, following the death of the original petitioner and David's former legal guardian, Josefa. Although the respondent does not claim any error with the court's decision on the merits of the petition, she nevertheless takes the position for the first time on appeal that the proceedings should not have been permitted to move forward following Josefa's death, and that Emma should have been required to file a new petition with the Probate Court. The respondent advances two primary arguments in support of her claim. First, she argues, contrary to the position she staked out before the trial court, that substitution of Emma was not authorized under § 52-599. Second, she argues that our rules of practice do not authorize the use of motions to substitute in juvenile matters, and, therefore, the court lacked the authority to consider Emma's motion. We address each argument in turn after first setting forth our standard of review and legal principles that will aid our consideration of the respondent's claim. "The decision whether to grant a motion for the addition or substitution of a party to legal proceedings rests in the sound discretion of the trial court.... In reviewing the trial court's exercise of that discretion, every reasonable presumption should be indulged in favor of its correctness . and only if its action discloses a clear abuse of discretion is our interference warranted." (Internal quotation marks omitted.) Youngman v. Schiavone, 157 Conn.App. 55, 65, 115 A.3d 516 (2015). Whether, in a given situation, a court has the legal authority to consider a particular motion presents a question of law over which we exercise plenary review. See Rome v. Album, 73 Conn.App. 103, 108, 807 A.2d 1017 (2002). Furthermore, to the extent that it is necessary to construe or gauge the applicability of a statute or provision of our rules of practice, our review is also plenary. See id.; Wiseman v. Armstrong, 295 Conn. 94, 99, 989 A.2d 1027 (2010). Section 45a-715(a) provides: "Any of the following persons may petition the Court of Probate to terminate parental rights of all persons who may have parental rights regarding any minor child or for the termination of parental rights of only one parent provided the application so states: (1) Either or both parents, including a parent who is a minor; (2) the guardian of the child; (3) the selectmen of any town having charge of any foundling child; (4) a duly authorized officer of any child care facility or child-placing agency or organization or any children's home or similar institution approved by the Commissioner of Children and Families; (5) a relative of the child if the parent or parents have abandoned or deserted the child; (6) the Commissioner of Children and Families, provided the custodial parent of such minor child has consented to the termination of parental rights and the child has not been committed to the commissioner, and no application for commitment has been made; provided in any case hereunder where the child with respect to whom the petition is brought has attained the age of twelve, the child shall join in the petition." (Emphasis added.) This statute, however, is silent regarding a court's authority to grant a motion to substitute a party once such a proceeding has been initiated. "[T]he termination of parental rights is a most serious and sensitive judicial action.... A judgment terminating a parent's rights not only severs the emotional and physical ties between parent and child, but also absolves that parent of all future support obligations." (Citation omitted; internal quotation marks omitted.) In re Bruce R., 234 Conn. 194, 200, 662 A.2d 107 (1995). "[C]hildren involved in termination proceedings have a strong interest in the speedy resolution of such proceedings, for regardless of their outcome, their final resolution promotes permanency in the children's family relationships and stability in their lives.... The promotion of those objectives may be put at risk, if not fatally compromised, by injecting undue delay for any purpose into a termination proceeding.... Due to the psychological effects of prolonged termination proceedings on young children, time is of the essence ." (Citation omitted; emphasis added; internal quotation mark omitted.) In re Quamaine K., Jr., 164 Conn.App. 775, 794, 137 A.3d 951, cert. denied, 321 Conn. 919, 136 A.3d 1276 (2016). The addition or substitution of parties to legal proceedings generally is favored in order to permit courts to make timely and complete determinations on behalf of parties with genuine interests in the outcome of controversies brought before them. See Fairfield Merrittview Ltd. Partnership v. Norwalk, 320 Conn. 535, 553 n. 21, 133 A.3d 140 (2016) ; Poly-Pak Corp. of America v. Barrett, 1 Conn.App. 99, 102, 468 A.2d 1260 (1983). To that end, our rules of practice contain multiple provisions authorizing courts to substitute parties in a variety of situations as the interests of justice require. See Practice Book § 9-18 through 9-22 ; see also General Statutes § 52-107 through 52-110. Section § 52-599 also authorizes the court to grant a motion to substitute following the death of a party. See footnote 2 of this opinion. It was enacted in order to abrogate a common-law rule that the death of a sole plaintiff or defendant automatically caused an action to abate, meaning that the court no longer had jurisdiction over the action and its erasure from the docket was required. See Burton v. Browd, supra, 258 Conn. at 570-71, 783 A.2d 457 ; Barton v. New Haven, 74 Conn. 729, 730, 52 A. 403 (1902). As our Supreme Court has recognized, "[o]ver-technical formal requirements have ever been a problem of the common law, leading [legislative bodies] at periodic intervals to enact statutes . which, in substance, told the courts to be reasonable in their search for technical perfection." (Internal quotation marks omitted.) Andover Ltd. Partnership I v. Board of Tax Review, 232 Conn. 392, 399-400, 655 A.2d 759 (1995). Section 52-599 expressly provides for the continuation of an action despite a party's death and for the substitution of the executor or administrator of the deceased party's estate in accordance with certain statutory parameters. The statute has been construed as being broadly applicable, and clearly reflects the general policy favoring the continuation and timely resolution of actions on the merits whenever possible. Our Supreme Court has described § 52-599 as having a "broad sweep" and that the only exceptions to its application "are those set forth in § 52-599(c) : (1) . any cause or right of action or . any civil action or proceeding the purpose or object of which is defeated or rendered useless by the death of any party thereto, (2) . any civil action or proceeding whose prosecution or defense depends upon the continued existence of the persons who are plaintiffs or defendants, or (3) . any civil action upon a penal statute." (Internal quotation marks omitted.) Commission on Human Rights & Opportunities v. Greenwich Catholic Elementary School System, Inc., 202 Conn. 609, 614, 522 A.2d 785 (1987). With these principles in mind, we turn now to the arguments raised by the respondent in support of her appeal from the judgment terminating her parental rights. I The respondent first argues that the court improperly allowed substitution of Emma in her capacity as administrator of Josefa's estate because § 52-599 is inapplicable in a proceeding to terminate parental rights. We are not persuaded by this argument for the following three reasons: (1) the court granted substitution to Emma in her capacity as David's legal guardian, not as administrator in accordance with § 52-599 ; (2) the respondent, and not the court, was the proponent for the applicability of § 52-599 in resolving the motion to substitute and should not be permitted to adopt a contrary position on appeal; and (3) we agree with the court that it is unnecessary to determine the applicability of § 52-599 on the present facts because it otherwise had the authority to grant the motion to substitute. First, it is a mischaracterization of the court's ruling to state that the court allowed substitution of Emma in her capacity as the administrator of Josefa's estate. Emma's handwritten motion clearly asked the court to grant her substitution in her capacity as David's legal guardian, not as administrator. It was the respondent and David's father who opposed substitution on the ground that Emma's status as guardian was insufficient to permit substitution, and they tacitly invoked § 52-599 by suggesting in their motions for nonsuit that the estate, presumably meaning a representative of the estate, properly should have intervened to answer the appeal. The respondent also raised § 52-599 at the hearing on the motion to substitute by citing to case law that addressed that statute and, in fact, appeared to advocate for the court's application of the statute in deciding the motion to substitute. The court, however, did not rely upon § 52-599 as the source of its authority to make the substitution. It expressly stated that it was not deciding whether § 52-599 generally was applicable. Instead, the court theorized that it had the authority to substitute in Emma for Josefa, not because Emma was the administrator of Josefa's estate, but because Emma was now a party with genuine interest in the outcome of the pending litigation, having obtained the authority as David's newly appointed legal guardian to prosecute a petition to terminate parental rights on his behalf pursuant to § 45a-715 (a). Accordingly, the court determined that Emma was the proper party to stand in the shoes of Josefa, David's prior guardian. Because the court did not rely on § 52-599 in rendering the judgment on appeal, the respondent's contention that it did so improperly is wholly unavailing. Second, to the extent that § 52-599 was injected as an issue in this case, it was the attorneys for the respondent and David's father who relied upon and urged the court at the hearing on the motion to substitute to apply § 52-599 in deciding the motion. The respondent, therefore, should not be heard on appeal with respect to a claim now arguing against the statute's applicability. It is a well settled principle of appellate review that a party cannot invite a trial court to take a position and then, after the court has adopted that position, claim error. This is because, if we were to endorse such behavior, we effectively would be sanctioning trial by ambush, which we have repeatedly stated we will not allow. "[A] party cannot take a path at trial and change tactics on appeal.... 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." (Citation omitted; footnote omitted; internal quotation marks omitted.) Gorelick v. Montanaro, 119 Conn.App. 785, 796-97, 990 A.2d 371 (2010). In both her written opposition to the motion for substitution and at the hearing on that motion, the respondent took the position that Emma could not be substituted into the action solely by virtue of her appointment as David's legal guardian, and that she needed first to be appointed as the administrator of Josefa's estate. After it was determined at the hearing by judicial admission that Emma also had been appointed as the administrator of Josefa's estate, the respondent all but conceded that its argument against substitution was moot. The respondent never argued in her written opposition or at the hearing on the motion for substitution that she believed that the termination proceedings could not survive the death of Josefa, as she now contends on appeal. To the contrary, as authority for the argument she was advancing at the hearing, the respondent cited favorably to Judge Downey's decision in In re Lisa N., supra, 7 Conn. L. Rptr. at 176, in which Judge Downey held, in reliance on § 52-599, that termination proceedings do survive the death of a petitioner, and that adjudication of the petition may proceed after the administrator or the executor of the deceased petitioner has been substituted in for the decedent. As we already have explained, the court's analysis did not involve application of § 52-599, and, therefore, no actual error was induced by the respondent's actions. The underlying principle that a party should be estopped from claiming error on appeal on the basis of a legal position directly in opposition to one advanced by the party before the trial court nonetheless remains apt, and its application here further countenances our decision to reject the respondent's argument regarding § 52-599. Third, and most significantly, we agree with the court that it was proper to substitute Emma as the petitioner because of her position as David's legal guardian, and, therefore, it is unnecessary to determine at this time whether a court properly could grant substitution to someone who ordinarily would not have standing to prosecute a petition but who was an executor or administrator of the estate of a deceased petitioner and, thus, potentially subject to § 52-599. As counsel for Emma readily admitted at oral argument before this court, application of § 52-599 to the facts of this case would not be a precise jurisprudential fit. By its express language, the applicability of § 52-599 reasonably can be viewed as limited to those civil cases in which, despite a party's death, the continuation of the litigation arguably could benefit the decedent's estate, typically in some pecuniary manner, such that permitting substitution of a representative for the decedent's estate would preserve both the adversarial nature of the proceedings and allow the action to move forward to a resolution with an interested party on each side of the litigation. Section 52-599, however, also appears to evince a somewhat broader policy consideration that can help to inform our resolution of the issue now before us. Namely, it represents a preference for the survival of actions over the common-law rule of abatement per se; see Craig v. Wagner, 88 Conn. 100, 103, 89 A. 916 (1914) ; and provides for the timely substitution of a party holding an interest in the litigation that is sufficiently equivalent in nature to the decedent to permit the action to be tried to a final resolution. A petition to terminate parental rights is not a typical civil action. Like a neglect petition, it is sui generis. See In re Allison G., 276 Conn. 146, 158, 883 A.2d 1226 (2005) (stating neglect petition is sui generis). It is not a creature of the common law, but a statutory action. It is, therefore, unclear whether any vestige of the old common-law rule requiring the abatement of an action following the death of a solitary party proponent would even apply to a termination proceeding. As previously indicated, § 45a-715 (a) sets forth a list of persons who may petition the Probate Court to terminate parental rights, but is silent regarding the substitution of parties once a petition has been brought. It is important to remember, however, that whoever initiates termination proceedings does so on behalf of the minor child. Although § 45a-715 (a) specifically includes the guardian of a child amongst those allowed to file a petition with the Probate Court, it does not mention the executor or administrator of a deceased guardian as a party authorized to prosecute a petition. Because § 52-599 only directly addresses the substitution of a representative of a decedent's estate, and such a representative is not authorized by statute to prosecute a petition to terminate parental rights, there is an incongruence in attempting to directly apply § 52-599 to the facts of the present case, and we do not purport to do so. Nevertheless, if we consider the more general policy implications underlying § 52-599 in conjunction with other statutory authority granted to courts acting on juvenile matters, we conclude that the court in the present case had sufficient authority to grant substitution. The general authority of the Superior Court to act in juvenile matters is set forth in General Statutes § 46b-121, titled, " 'Juvenile matters' defined. Authority of court." Subsection (a)(1) of § 46b-121 provides that juvenile matters include "appeals from probate concerning adoption, termination of parental rights and removal of a parent as guardian." Subsection (b)(1) of § 46b-121 provides in relevant part: "In juvenile matters, the Superior Court shall have authority to make and enforce such orders directed to parents . guardians, custodians or other adult persons owing some legal duty to a child or youth therein, as the court deems necessary or appropriate to secure the welfare, protection, proper care and suitable support of a child or youth subject to the court's jurisdiction or otherwise committed to or in the custody of the Commissioner of Children and Families...." (Emphasis added.) The court's authority to make orders directed at persons owing a legal duty to a child logically would extend to exercising that authority at the request of a party through a proper motion. Here, by granting Emma's motion, the court effectively made an order directed at Emma, David's guardian, to be substituted as the petitioner in place of Josefa. The broad statutory grant of authority found in § 46b-121 is, in our view, sufficient to encompass the authority to order the substitution of parties if the court deems that a substitution is necessary to protect the welfare of a child. Consideration of the broad scope of this authority in light of the broader policy considerations underlying § 52-599, which clearly favors the continuation of an action despite the death of a party provided that the purpose of the action is not defeated, supports the proposition that if the petitioner in a termination of parental rights proceeding dies prior to a final resolution of the petition, the action should be permitted to move forward following the timely substitution of a party who, on his or her own, has the authority to bring such a petition on behalf of the minor child, including a newly appointed guardian. Emma, as David's guardian, had standing to initiate her own action to terminate the respondent's parental rights on the basis of the exact same facts and legal authority raised in Josefa's petition. Requiring her to file a new petition with the Probate Court would have resulted in considerable and unnecessary delay in attaining permanency for David. Requiring such a duplicative procedure rather than allowing substitution into the existing action would undermine our stated policy to resolve termination proceedings in an expeditious fashion. See In re Quamaine K., Jr., supra, 164 Conn.App. at 794, 137 A.3d 951. The respondent's position is made that much more untenable in the present case due to the fact that the respondent has not challenged any aspect of the merits of the court's decision to terminate her parental rights. We are persuaded, without directly applying § 52-599 or determining its applicability under different facts, that a termination of parental rights action can proceed forward following the death of a sole petitioner provided that someone with the statutory authority to stand in the petitioner's shoes-i.e. someone authorized under § 45a-715 (a) to file a petition to terminate parental rights on behalf of the same child-is seasonably substituted into the proceedings in place of the decedent. For the foregoing reasons, we reject the respondent's argument that the court incorrectly applied § 52-599 in this case. II The respondent also argues that motions to substitute parties are not authorized for use in juvenile court proceedings. According to the respondent, the court should have treated the filing of the motion to substitute "as a ity" and granted the motions for nonsuit. We conclude that the respondent failed to properly preserve this argument for appellate review and, even if she had, the argument lacks merit. As we have already stated, "[a] party cannot present a case to the trial court on one theory and then seek appellate relief on a different one.... For this court to . consider [a] claim on the basis of a specific legal ground not raised during trial would amount to trial by ambuscade, unfair both to the [court] and to the opposing party." (Internal quotation marks omitted.) State v. Santana, 313 Conn. 461, 466-67, 97 A.3d 963 (2014) ; see also Practice Book § 60-5 ("court shall not be bound to consider a claim unless it was distinctly raised at the trial"). Although the respondent and David's father each filed oppositions to the motion to substitute, neither argued as a basis for denying the motion that it was procedurally improper or that, because this was a juvenile matter, the court was not authorized to consider a motion to substitute. Those arguments also were not made by the parties at the hearing on the motion to substitute. Simply opposing the motion to substitute on the ground that Emma's role as legal guardian was insufficient to permit her to be substituted in for Josefa did not preserve for appellate review any and all arguments that the respondent could have raised before the court in opposition but failed to do. See White v. Mazda Motor of America, Inc., 313 Conn. 610, 619-21, 99 A.3d 1079 (2014). Accordingly, because the respondent's argument was never considered or decided by the trial court, it is unpreserved. The judgment is affirmed. In this opinion LAVINE, J. concurred. In addition to terminating the parental rights of the respondent mother, the court also terminated the parental rights of David's father, who also had appealed from the underlying probate decree terminating his parental rights. The father has not appealed from the judgment of the trial court and, therefore, we refer to the mother as the respondent throughout this opinion. General Statutes § 52-599 provides: "(a) A cause or right of action shall not be lost or destroyed by the death of any person, but shall survive in favor of or against the executor or administrator of the deceased person. "(b) A civil action or proceeding shall not abate by reason of the death of any party thereto, but may be continued by or against the executor or administrator of the decedent. If a party plaintiff dies, his executor or administrator may enter within six months of the plaintiff's death or at any time prior to the action commencing trial and prosecute the action in the same manner as his testator or intestate might have done if he had lived. If a party defendant dies, the plaintiff, within one year after receiving written notification of the defendant's death, may apply to the court in which the action is pending for an order to substitute the decedent's executor or administrator in the place of the decedent, and, upon due service and return of the order, the action may proceed. "(c) The provisions of this section shall not apply: (1) To any cause or right of action or to any civil action or proceeding the purpose or object of which is defeated or rendered useless by the death of any party thereto, (2) to any civil action or proceeding whose prosecution or defense depends upon the continued existence of the persons who are plaintiffs or defendants, or (3) to any civil action upon a penal statute." Practice Book § 34a-1 provides in relevant part: "(a) Except as otherwise provided, the sections in chapters 1 through 7 shall apply to juvenile matters in the superior court as defined by General Statutes § 46b-121 "(b) The provisions of Sections 8-2, 9-5, 9-22, 10-12(a) and (c), 10-13, 1014, 10-17, 10-18, 10-29, 10-62, 11-4, 11-5, 11-6, 11-7, 11-8, 11-10, 11-11, 11-12, 11-13, 12-1, 12-2, 12-3, 13-1 through 13-11 inclusive, 13-14, 13-16, 13-21 through 13-32 inclusive, subject to Section 34a-20, 15-3, 15-8, 17-4, and 17-21 of the rules of practice shall apply to juvenile matters in the civil session as defined by General Statutes § 46b-121...." Emmanuel had been removed from the respondent's care while she was pregnant with David. The court stated in its memorandum of decision that "[w]hen the officers forced the door open they found [the respondent] and [David] living in squalid conditions. Dirty clothes and garbage were strewn about, and the shades were tightly drawn. Half empty prescription bottles lay on the floor amidst the refuse. The apartment was infested with roaches and bedbugs. [The respondent] was found in her room where she admitted to having spent the past three weeks smoking and vomiting. So severely swollen was [the respondent's] stomach that the EMTs believed she was pregnant. [David], now almost five years old, was found malnourished and so severely covered with insect bites that the EMTs believed he was suffering from chicken pox. [David's] behavior displayed marked regression. He was no longer walking, but crawling on all fours. He was visibly shaking and could barely talk, instead communicating with grunts and screams. He was in pain from a mouthful of rotted teeth. He later talked of eating garbage off the floor out of hunger. Both [David] and [the respondent] were transported to a hospital for emergency medical attention." Josefa also had adopted David's younger cousin, Jasmine, to whom David became bonded as a sister. With respect to the dispute over visitation rights, the court made the following observations: Josefa had tried to maintain a liberal policy of visitation from the time David was placed with her, but visitation sessions quickly became adversarial. The respondent tried to pick fights with Josefa in front of David, and the father used his sessions to interrogate David about Josefa's care. The Probate Court initially had ordered some overnight supervised visits with the father at his mother's home and also ordered supervised afternoon visitations at Josefa's home for the father once a week and on a more flexible schedule for the respondent. Those visits, however, did not go well, and David became "fearful, anxious and nervous, manifested by shaking, vomiting, fevers and weight loss." David reported to the department "that his father told him Emmanuel was not his 'real brother' and that his father berated him for talking to [the department]. [David] also reported that his father called grandmother Josefa a 'monkey' because of her dark complexion." The Probate Court suspended all visitations with both parents on February 7, 2011, until further order of the court. Although the father's visitation rights eventually were terminated outright, visitation between David and the respondent resumed, although limited to two hours on Saturday afternoons to be extended at the sole discretion of Josefa. Both parents continued to file numerous motions regarding visitation, both with the Probate Court and in the Superior Court. The respondent stopped exercising her court-ordered supervised visitation in early 2013, telling the department that she did not get along with Josefa and wanted nothing to do with her. As previously indicated, the Probate Court had granted termination of parental rights on this additional ground, although it was not expressly alleged in the original petition filed by Josefa. Again, the respondent has raised no issue regarding the amendment of the petition or challenged the grounds on which the petition was granted by the trial court. As the court informed the parties at the hearing on the motion to substitute, because the underlying Probate Court petition was not heard on the record as defined in General Statutes § 45a-186a, the trial court was obligated to conduct a trial de novo prior to ruling on the merits of the petition. See Baskin's Appeal from Probate, 194 Conn. 635, 641, 484 A.2d 934 (1984) (recognizing that "an appeal from probate is a de novo proceeding in which the Superior Court is not limited to the claims raised in the Probate Court"). We respectfully disagree with the concurring opinion's assertion that our reliance on § 52-599 or 46b-121 is dicta. In our view, our consideration of these provisions and the policies that underlie them is necessary in light of the lack of a specific statutory or Practice Book provision that squarely authorizes the Superior Court to grant a motion to substitute a petitioner in this type of proceeding. Indeed, the concurring opinion does not cite to any authority that explicitly authorizes the court to grant a motion to substitute. In the absence of such explicit authority, we conclude that it is both appropriate and necessary to draw on other legal authority from which such power can be inferred. Furthermore, we disagree with the concurring opinion's suggestion that we have reached a legal issue that the parties did not have a full and fair opportunity to address. In resolving a claim raised by the parties, we are not required to constrain our analysis to the law relied on by the parties. See Michael T. v. Commissioner of Correction, 319 Conn. 623, 635 n. 7, 126 A.3d 558 (2015) ; see also State v. Santiago, 319 Conn. 935, 939-40, 125 A.3d 520 (2015) ("when [a case] is properly before the court, the court is not limited to the particular legal theories advanced by the parties, but rather retains the independent power to identify and apply the proper construction of governing law" [internal quotation marks omitted] ). In the present case, the claim raised by the respondent is that the court lacked authority to grant a motion to substitute the new guardian as the petitioner. The respondent's failure to discuss all relevant sources of authority does not preclude us from considering them. Indeed, we are obligated to do so in resolving her claim. Even if the respondent had preserved this argument for review, it is unlikely she would have prevailed on its merits. In support of her argument that the court lacked authority to grant the motion to substitute, the respondent refers us to Practice Book § 34a-1. See footnote 3 of this opinion. Practice Book § 34a-1 sets forth the provisions of our rules of practice that are applicable "in juvenile matters," which includes "appeals from probate concerning . termination of parental rights" such as the present matter. See General Statutes § 46b-121. The respondent contends that Emma's motion to substitute was filed pursuant to Practice Book § 9-20, and that because that section is not one of the provisions set forth in Practice Book § 34a-1, the court lacked authority to hear the motion. That argument is unpersuasive, however, for several reasons. First, Practice Book § 34a-1 contains no language suggesting that the enumerated provisions are an exhaustive list or that a court hearing a juvenile matter otherwise lacks authority to apply or rely upon other provisions if required for the due administration of justice. Second, Practice Book § 9-20 was not cited in Emma's motion to substitute nor was it invoked at the hearing on the motion. Third, Practice Book § 9-20 is inapposite to the present situation because it relates to substitution in an action commenced in the name of a wrong person, which is not the issue here. Fourth, Practice Book § 9-22, which also addresses generally the addition and substitution of parties, is one of the provisions included in Practice Book § 34a-1 as applicable to juvenile matters. Fifth, and finally, as we already have discussed with respect to the respondent's first argument, General Statutes § 46b-121 (b)(1) gives broad authority to judges in juvenile matters to make any order that "the court deems necessary or appropriate to secure the welfare, protection, proper care and suitable support of a child...."

12485341

STATE of Connecticut v. Christopher TIERINNI.

State v. Tierinni

2016-05-31

No. 36903.

377

389

140 A.3d 377

140

West's Atlantic Reporter, Third Series

Connecticut Appellate Court

Connecticut

2021-08-27T20:57:13.996876+00:00

Fastcase

DiPENTIMA, C.J., and LAVINE and SCHALLER, Js.

STATE of Connecticut v. Christopher TIERINNI.

STATE of Connecticut v. Christopher TIERINNI. No. 36903. Appellate Court of Connecticut. Argued March 2, 2016. Decided May 31, 2016. Stephanie L. Evans, assigned counsel, for the appellant (defendant). Sarah Hanna, assistant state's attorney, with whom, on the brief, were Matthew C. Gedansky, state's attorney, and Elizabeth C. Leaming, senior assistant state's attorney, for the appellee (state). DiPENTIMA, C.J., and LAVINE and SCHALLER, Js.

5811

34842

DiPENTIMA, C.J. The defendant, Christopher Tierinni, appeals from the judgment of conviction, rendered after a jury trial, of four counts of sexual assault in the second degree in violation of General Statutes § 53a-71 (a)(1) and three counts of risk of injury to a child in violation of General Statutes § 53-21(a)(2). On appeal, the defendant claims that (1) he was denied his federal and state constitutional rights to due process and a fair trial when he was excluded from critical stages of the proceedings and (2) the court improperly instructed the jury. We affirm the judgment of conviction. The jury reasonably could have found the following facts. The victim met the defendant in the spring of 2011. At that time, the defendant was twenty-eight years old and the victim was fifteen years old. Near the end of May, 2011, the defendant kissed the victim. The defendant told the victim that he loved her and eventually they engaged in sexual activity at his apartment on several occasions. The victim started missing school and stayed at the defendant's apartment for extended periods. On June 17, 2011, the victim called the defendant and asked him to pick her up at a fast food restaurant near her home. The defendant arrived at the restaurant in his green minivan, which the victim entered. Police officers, who had been investigating the nature of the relationship between the defendant and the victim, effectuated a traffic stop and found the victim crouched in the back seat. Although the victim initially denied having a physical relationship with the defendant, she eventually disclosed the sexual activity to law enforcement personnel. In an amended substitute information, the state charged the defendant with five counts of sexual assault in the second degree in violation of § 53a-71 (a)(1) and four counts of risk of injury to a child in violation of § 53-21(a)(2). Following a trial, the jury returned a not guilty verdict with respect to counts one and two of the information alleging, respectively, sexual assault in the second degree and risk of injury to a minor for the time period of May 20, 2011 through May 31, 2011. The jury returned guilty verdicts for the remaining charges for conduct that occurred on June 6, 2011, June 7, 2011, and June 15, 2011. The court accepted the verdict, rendered judgment thereon, and sentenced the defendant to an effective term of eighteen years of incarceration and forty-two 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 federal and state constitutional rights to due process and a fair trial when he was excluded from a critical stage of the proceedings. Specifically he argues that his constitutional rights were violated by the court's practice of hearing arguments on evidentiary objections at sidebar. He also contends that as a result of this practice, the court failed to ensure that an adequate record was created for appellate review. The defendant concedes that this claim is unpreserved and seeks review pursuant to State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989), or, in the alternative, that we reverse his conviction pursuant to the plain error doctrine. The state counters that (1) the record is inadequate to review the defendant's claim, (2) the defendant waived this claim by expressly agreeing to the court's practice, (3) the defendant's brief is inadequate and (4) the claim fails on the merits. We agree with the state that the defendant waived this claim. The following additional facts aid our discussion. Prior to the start of evidence, the court engaged in the following colloquy with the prosecutor and defense counsel. "If there are no other matters that need to be clarified for counsel or rulings, I do want to mention to counsel it's my practice, in fact, I think you heard one of the prospective jurors, he was not accepted, complain about sitting here in a trial back in 2003, a civil case with an unnamed judge and unnamed lawyers, where he felt that they were constantly being sent out, there were constant problems. I've never had the comment about one of my trials yet. "What we're going to do, what my practice is, unless there is objection to [it ], is if you have a simple objection and you don't need any detailed argument, you know, then you state it: Objection, hearsay. "Let's say, for example, [defense counsel] objects to something and says, 'Objection, hearsay'; if [the prosecutor] is claiming the medical record exception, she'll simply say, 'Medical record exception,' and then I could rule and we'll move on. "If, however, one of you feels the need to further explain your position, of if, for example, it's a relevancy or a prejudice versus probative objection and you think that, perhaps correctly, that I don't know the context of this evidence yet, then you should ask for a sidebar. "[The prosecutor is] familiar with this. We did this the last trial she had here, but basically what I do, [defense counsel] is if you need to speak to me further, other than a very simple, very brief objection, such as objection, hearsay, then ask for a sidebar. We'll have a sidebar over there. We'll keep our voices low. The jury won't hear it. You'll make your pitch. You'll make your two points or whatever. [The prosecutor] will do the same. We'll go back on the record. I'll rule. The jury will not hear the substance of what you're saying so that there's no risk they'll be prejudiced by it. "At the next break, the next time the jury is out of the room, for example, the morning recess is half an hour later, the jury leaves for the morning recess, you then will have the opportunity, and I encourage you to put on the record the substance of any discussion we had if you wish it. "Now, sometimes in retrospect it turns out it wasn't important because of the answer or something of that nature, but basically that enables us to have discussions about evidentiary issues briefly without making the jury go in and out, in and out, and at a later time, the next break when the jury's out, to place the substance of your argument on the record, and all I ask in that regard is that if you give me two points at sidebar, then half an hour later, after we've moved on and I've overruled the objection, that I don't hear for the first time a third point being raised because it's too late for me to deal with it and I won't be happy. And I must say, in all the years I've done this, only one lawyer's done that and he won't ever do that again, I'm sure. "If there's [an ] objection, we won't follow that procedure, but I find it helps the trial move along and it keeps the [jurors] from feeling that they're getting kicked out, kicked out, kicked out all the time. I think it might also reduce annoyance with the attorneys or the judge, although I'm not concerned with that, from the jurors constantly having to leave. "And again, let me be very clear, if there's something you feel needs to immediately be put on the record, tell me as soon as we get to sidebar and I'll kick the jury out. I'm not trying to prevent anybody from making a record. You'll always have the chance to make a record at the next break. If you feel you need to make an immediate record, just tell me that too and I'll immediately excuse the jury. In no way am I trying to prevent a record from being made. I'm simply trying to keep the case moving along and reduce any annoyance on the part of the jury. Is there any objection to that procedure?" (Emphasis added.) Both counsel expressly responded, "No, Your Honor." During the first day of evidence, the state called the victim as a witness. At one point, she made reference to the defendant's jail cell number. Defense counsel objected and requested a sidebar. The court conducted a sidebar discussion and ordered that the comments regarding the defendant being in jail or his jail cell be stricken. A few moments later, defense counsel raised an objection when the state attempted to have state's exhibit A admitted into evidence. Specifically, defense counsel requested that the jury be excused but the court instead held a sidebar discussion, and at the conclusion admitted state's exhibit A into evidence. A few moments later, defense counsel raised an objection to the state's next exhibit and requested a sidebar conference. After that conference, defense counsel stated, on the record, that the basis for her objection was that state's exhibit B was more prejudicial than probative. The court overruled the objection, and stated that defense counsel would have the opportunity to elaborate in a few minutes. After the jury was excused for lunch, the court and counsel addressed the admission of state's exhibits A and B into evidence on the record. The court and the parties continued to use this practice during the trial and at times the jury was excused at the time an objection was made. At no point during the proceedings did the defendant raise any objection to this procedure. As we previously noted, the defendant seeks review of his unpreserved claim under the doctrine set forth in State v. Golding, supra, 213 Conn. at 239-40, 567 A.2d 823. "Under Golding review, as modified 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." (Emphasis in original; internal quotation marks omitted.) State v. D'Amato, 163 Conn.App. 536, 543 n. 9, 137 A.3d 38 (2016) ; see also State v. Yeaw, 162 Conn.App. 382, 388-89, 131 A.3d 1172 (2016). "In the usual Golding situation, the defendant raises a claim on appeal which, while not preserved at trial, at least was not waived at trial.... [A] constitutional claim that has been waived does not satisfy the third prong of the Golding test because, in such circumstances, we simply cannot conclude that injustice [has been] done to either party . or that the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial.... To reach a contrary conclusion would result in an ambush of the trial court by permitting the defendant to raise a claim on appeal that his or her counsel expressly had abandoned in the trial court.... "[W]aiver is [t]he voluntary relinquishment or abandonment-express or implied-of a legal right or notice.... In determining waiver, the conduct of the parties is of great importance.... [W]aiver may be effected by action of counsel.... When a party consents to or expresses satisfaction with an issue at trial, claims arising from that issue are deemed waived and may not be reviewed on appeal.... Thus, [w]aiver . involves the idea of assent, and assent is an act of understanding." (Citations omitted; emphasis omitted; internal quotation marks omitted.) State v. Cancel, 149 Conn.App. 86, 99-100, 87 A.3d 618, cert. denied, 311 Conn. 954, 97 A.3d 985 (2014). Put another way, "[w]e do not look with favor on parties requesting, or agreeing to, an instruction or a procedure to be followed, and later claiming that that act was improper." (Internal quotation marks omitted.) State v. Rosado, 147 Conn.App. 688, 702, 83 A.3d 351, cert. denied, 311 Conn. 928, 86 A.3d 1058 (2014) ; see also State v. Thompson, 146 Conn.App. 249, 259, 76 A.3d 273 (when party consents to or expresses satisfaction with issue at trial, claims arising from that issue deemed waived and not reviewable on appeal), cert. denied, 310 Conn. 956, 81 A.3d 1182 (2013) ; State v. Crawley, 138 Conn.App. 124, 134, 50 A.3d 349 (appellate court cannot permit defendant to elect one course at trial and then to insist on appeal that course which he rejected at trial be reopened), cert. denied, 307 Conn. 925, 55 A.3d 565 (2012). The defendant had a right to be present during his trial. "It has long been settled that an accused enjoys a right both at common law and pursuant to the sixth amendment's confrontation clause to be present at all stages of trial.... It is also well settled that under the due process clauses of the fifth and fourteenth amendments a defendant must be allowed to be present at his trial to the extent that a fair and just hearing would be thwarted by his absence." (Internal quotation marks omitted.) State v. Vines, 71 Conn.App. 751, 767, 804 A.2d 877 (2002), aff'd, 268 Conn. 239, 842 A.2d 1086 (2004) ; see also State v. Gonzalez, 205 Conn. 673, 688, 535 A.2d 345 (1987) (criminal defendant has federal and state constitutional rights, under confrontation and due process clauses, to be present at all critical stages of trial). The right to be present, however, may be waived. State v. Crawley, supra, 138 Conn.App. at 131, 50 A.3d 349 ; see also State v. Drakeford, 202 Conn. 75, 79, 519 A.2d 1194 (1987) (right to be present at criminal trial may be lost by consent, waiver or misconduct). In the present case, prior to the start of evidence, the court set forth its procedure for hearing evidentiary objections during the trial. It further explained that it preferred to use this approach "to keep the case moving and reduce any annoyance on the part of the jury." The court also stated that it would only use this procedure if neither side objected. Several opportunities were afforded for counsel to make a record, including the court's willingness to excuse the jury immediately if such a request was made. Defense counsel stated that she had no objection to the procedure outlined by the court. By agreeing to the court's procedure, the defendant effectively waived the claims raised in his appellate brief regarding the court's use of sidebars. "In determining waiver, the conduct of the parties is of great importance . [W]aiver may be effected by action of counsel . When a party consents to or expresses satisfaction with an issue at trial, claims arising from that issue are deemed waived and may not be reviewed on appeal.... Thus, [w]aiver . involves the idea of assent, and assent is an act of understanding." (Emphasis added; internal quotation marks omitted.) State v. McLaughlin, 135 Conn.App. 193, 198, 41 A.3d 694, cert. denied, 307 Conn. 904, 53 A.3d 219 (2012). The defendant accepted and acquiesced to the court's procedure and thus waived the claim that he was denied his right to be present at the sidebar discussions. As this court recently observed, "[s]imply put, a constitutional claim that has been waived does not satisfy the third prong of Golding. " Delahunty v. Targonski, 158 Conn.App. 741, 748, 121 A.3d 727 (2015) ; see also State v. Reddick, 153 Conn.App. 69, 82, 100 A.3d 439, cert. denied, 315 Conn. 904, 104 A.3d 757 (2014) ; State v. Arluk, 75 Conn.App. 181, 193, 815 A.2d 694 (2003). The defendant's constitutional claims, therefore, must fail. II The defendant next claims that the court improperly instructed the jury. Specifically, he argues that the court's instructions on constancy of accusation testimony confused the jury and failed to include an instruction that the jury could use the constancy testimony to impeach the victim. We conclude that the defendant failed to preserve this claim. The following additional facts are necessary for our discussion. The state's second witness was Jennifer Pinard, a therapist employed by the Wheeler Clinic. Pinard testified that she worked "with families for three to five months with a variety of children . [who had] truancy issues, running away behaviors, sometimes substance use, difficulties in the home, difficulties at school with academic performance." She worked with the victim following a referral from the Department of Children and Families. On June 15, 2011, Pinard went to the victim's home, and learned that the victim's grandmother had concerns about her association with an older man, who later was determined to be the defendant. Pinard testified that, approximately six weeks later, on July 27, 2011, the victim disclosed that she had engaged in oral sex with the defendant. Outside of the presence of the jury, after discussing certain evidentiary matters with counsel, the court indicated that it would provide the jury with a limiting instruction for the use of this testimony. Specifically, the court indicated that "[i]t's the instruction that this witness' testimony as to [the victim] telling [Pinard] about having fellatio with the defendant, the disclosure that [the victim] made on July 27, is-that it's admitted solely for the purposes of corroboration of [the victim's] testimony that there was such an incident and not for-only to corroborate her testimony." At the conclusion of Pinard's testimony, the court provided the jury with the following instruction. "Ladies and gentlemen, there was a portion-you will recall there was a portion of Mrs. Pinard's testimony where she relayed-related to you that [the victim] had had a previous-had previously had fellatio with the defendant. That portion of her testimony may be used for the sole purpose of corroborating [the victim's] accusation that she had fellatio with the defendant in that time-frame, if you find it does, in fact, corroborate it. And that portion of Ms. Pinard's testimony may be used for that purpose only. That direction applies only for that portion of the testimony where she related to you what [the victim] told her on July 27, with regard to claiming to have had fellatio with the defendant." The court then recessed for the day. The next morning, the court stated on the record that following a discussion in chambers with counsel, it would provide a corrected limiting instruction to the jury regarding Pinard's testimony as to what the victim had told her on July 27, 2011. After the jury entered the courtroom, the court stated: "Let me correct something I said at the very end of the day yesterday after Ms. Pinard testified. You'll recall that she testified that on July 27, [the victim] told Ms. Pinard about previously performing fellatio on the defendant, and I wish to correct my caution to you yesterday about the proper use of that portion of Ms. Pinard's testimony. That portion may be used only to assist you in assessing [the victim's] credibility and not as substantive proof of any alleged sexual assault." The defendant filed a request to charge, asking the court to give the jury the following instruction with respect to constancy of accusation evidence. "Witnesses have testified that [the victim] told them that she was the victim of a sexual assault, and these accounts of what happened are allowed as corroboration because it is natural for a victim of sexual assault to tell someone. The details of these accounts are likely to be the same if [the victim's] claims are true, but discrepancies are more likely if the incident did not happen." The court declined to give the charge as requested by the defendant. During its charge, the court instructed the jury on the use of evidence admitted for a limited purpose and constancy of accusation testimony. At the conclusion of the court's charge, the defendant renewed his objection to the court's constancy of accusation instruction. Specifically, the defendant objected solely on the basis of the court's decision not to incorporate his request to charge the jury on the use of the constancy testimony. As an initial matter, we set forth the general legal principles relating to claims of an improper jury instruction. "Our review of the defendant's claim requires that we examine the [trial] court's entire charge to determine whether it is reasonably possible that the jury could have been misled by the omission of the requested instruction.... [Although] 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." (Internal quotation marks omitted.) State v. Collin, 154 Conn.App. 102, 128, 105 A.3d 309 (2014), cert. denied, 315 Conn. 924, 109 A.3d 480 (2015). On appeal, the defendant argues that the court's two instructions limiting the use of the constancy of accusation testimony from Pinard, one given at the end of her testimony and one given the next day, and the court's charge on the use of constancy testimony were confusing. He further contends that as a result of this confusion, the court was obligated to instruct the jury that it "could consider the inconsistencies in the [victim's] testimony to discredit her testimony in court." The defendant also claims that the court improperly limited the use of the constancy testimony to the charge of sexual assault as set forth in count four of the information. The defendant claims that by filing his request to charge on the constancy of accusation evidence, he properly preserved his argument for appellate review, or, in the alternative, requests Golding review. Before reaching the merits of the defendant's argument relating to his claim of instructional error, we first must consider the state's assertion that these specific arguments were not preserved at trial and fail to meet the second prong of Golding, and therefore we should not review the merits of this argument. We agree with the state and conclude that the defendant's claim is not reviewable because it was not preserved at trial and is not of constitutional magnitude. As we recently stated, "[t]he proper time for the defendant to preserve a claim of error with respect to the court's instructions, however, is when the court proposes to give the challenged instruction or after it gives it to the jury." State v. Daley, 161 Conn.App. 861, 871, 129 A.3d 190 (2015), cert. denied, 320 Conn. 919, 132 A.3d 1093 (2016) ; see also Practice Book § 42-16. Neither the request to charge filed by the defendant nor his objection raised following the court's charge to the jury contained a claim that the court's instruction was confusing in light of the limiting instructions following Pinard's testimony or that it was limited improperly to a single count in the information. The request to charge and subsequent objection were limited to seeking an instruction that discrepancies between the victim's testimony and Pinard's testimony regarding the assault are more likely if the incident did not occur. The arguments raised by the defendant on appeal were not presented to the trial court in accordance with our case law and rules of practice. Accordingly, we conclude that the defendant failed to preserve this claim for appellate review. See, e.g., State v. Smith, 156 Conn.App. 537, 573, 113 A.3d 103, cert. denied, 317 Conn. 910, 115 A.3d 1106 (2015). We also conclude that the defendant's claim is not reviewable pursuant to State v. Golding, supra, 213 Conn. at 239-40, 567 A.2d 823. See State v. Cornelius, 120 Conn.App. 177, 181, 990 A.2d 927 (first two prongs of Golding involve determination of whether claim is reviewable), cert. denied, 296 Conn. 910, 993 A.2d 467 (2010). It is well established that "[n]ot every claim of instructional error is constitutional in nature.... Our Supreme Court repeatedly has noted that it has recognized instructional claims as raising constitutional issues only in matters relating to the elements of an offense, burden of proof and the presumption of innocence." (Citation omitted; internal quotation marks omitted.) State v. Inglis, 151 Conn.App. 283, 289, 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) ; see also State v. Rivera, 145 Conn.App. 344, 352, 76 A.3d 197, cert. denied, 310 Conn. 962, 83 A.3d 344 (2013). The defendant's claim here is not of constitutional magnitude. Specifically, claims of instructional error involving constancy of accusation are not constitutional in nature and therefore do not satisfy State v. Golding, supra, 213 Conn. at 239-40, 567 A.2d 823. "We have previously held that the failure of the trial court to give a limiting instruction concerning the use of evidence . is not a matter of constitutional magnitude.... Absent a claim of constitutional magnitude, the defendant's unpreserved claim fails to satisfy the second prong of Golding and is, therefore, not reviewable." (Internal quotation marks omitted.) State v. Wild, 43 Conn.App. 458, 467, 684 A.2d 720, cert. denied, 239 Conn. 954, 688 A.2d 326 (1996) ; see also State v. Farmer, 108 Conn.App. 82, 88, 946 A.2d 1262, cert. denied, 288 Conn. 914, 954 A.2d 185 (2008). Accordingly, we conclude that the defendant's claim of instructional error fails under the second prong of Golding. The judgment is affirmed. In this opinion the other judges concurred. In accordance with our policy of protecting the privacy interests of the victims of sexual assault and the crime of risk of injury to a child, we decline to identify the victims or others through whom the victims' identities may be ascertained. See General Statutes § 54-86e. Practice Book § 60-5 provides in relevant part: "The court shall not be bound to consider a claim unless it was distinctly raised at the trial or arose subsequent to the trial. The court may in the interests of justice notice plain error not brought to the attention of the trial court...." We have noted that "[t]he plain error doctrine is a rule of reversibility 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.... 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.... [Thus, 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." (Internal quotation marks omitted.) State v. Bialowas, 160 Conn.App. 417, 423-24, 125 A.3d 642 (2015) ; see also State v. Opio-Oguta, 153 Conn.App. 107, 118, 100 A.3d 461, cert. denied, 314 Conn. 945, 102 A.3d 1115 (2014). In his appellate brief, the defendant specifically references three objections made on each of the following days: January 14, 2014, January 16, 2014, January 17, 2014, January 23, 2014, and January 24, 2014. The defendant argued in his appellate brief that "the right to be present is personal and the defense attorney cannot waive that right for the defendant." The only authority for this statement is a passing reference to a dissenting opinion from the Colorado Supreme Court with no pinpoint citation. We decline to consider this contention because the defendant has not briefed it adequately. See State v. Day, 165 Conn.App. 137, 140-41 n. 4, 138 A.3d 459 (2016). The defendant's claim of plain error also fails as result of his waiver. "Plain error review 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.... Because we have concluded that the defendant waived [his] claim . there is no error to correct.... [A] valid waiver . thwarts plain error review of a claim." (Citations omitted; internal quotation marks omitted.) State v. Cancel, supra, 149 Conn.App. at 102-103, 87 A.3d 618 ; see also Mozell v. Commissioner of Correction, 291 Conn. 62, 70, 967 A.2d 41 (2009) ; State v. Rosado, supra, 147 Conn.App. at 702, 83 A.3d 351. "[T]he constancy of accusation doctrine traces its roots to the common-law concept of hue and cry whereby victims of violent crime were expected to cry out immediately and alert their neighbors that they had been violently assaulted.... In the context of sexual assault, evidence of a victim's hue and cry was a necessary prerequisite for a court to hear a rape case such that a woman who had not so complained could not have her case prosecuted.... Until 1974 in Connecticut, the state was required to offer evidence corroborating a victim's claims to obtain a conviction for sexual assault.... The General Assembly repealed this requirement of corroboration in Public Acts 1974, No. 74-131. Despite the repeal of the corroboration requirement, in cases such as the present one, the state often seeks to offer evidence corroborating the victim's complaint of sexual abuse.... "In State v. Troupe, 237 Conn. 284, 677 A.2d 917 (1996), our Supreme Court determined that the constancy of accusation doctrine should be modified to better accommodate the interest of the victim in being protected against the unwarranted, but nonetheless persistent, view that a sexual assault victim who does not report the crime cannot be trusted to testify truthfully about the incident . and the interest of the accused in being protected against an enhanced risk that the jury may be unduly swayed by the repeated iteration of the constancy of accusation testimony.... [The court] thus decided in Troupe to reject the then existing rule that a person to whom a sexual assault victim has complained may provide substantive testimony regarding the incident.... [It] concluded [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.... 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." (Citation omitted; internal quotation marks omitted.) State v. Gene C., 140 Conn.App. 241, 248-49, 57 A.3d 885, cert. denied, 308 Conn. 928, 64 A.3d 120 (2013). "It is well settled that, pursuant to Practice Book § 42-16, to preserve for appeal a claim that the court improperly failed to give a jury instruction on a matter, the defendant must [submit] a written request to charge, or take exception to the jury instructions when they are given by the trial court." (Emphasis in original; internal quotation marks omitted.) State v. Young, 161 Conn.App. 552, 560, 129 A.3d 127 (2015) ; see also State v. Bullock, 155 Conn.App. 1, 19, 107 A.3d 503, cert. denied, 316 Conn. 906, 111 A.3d 882 (2015). The court stated: "With regard to the [request to charge] from defense counsel, I think the subject is adequately covered in the constancy of accusation charge. I also question whether the exact language defense counsel used, although coming from a case, represents the state of the law. And obviously, it was somewhat skewed toward the defendant, which is to be expected, but I've elected not to give that postcharge because I think the charge that's in here, which is essentially from the jury instructions, the committee approved jury instruction is adequate." Specifically, the court instructed: "Constancy of accusation: The [victim] . 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. The state offered evidence of an out-of-court statement made by [the victim] to Ms. Pinard that the defendant sexually assaulted her, specifically that she performed fellatio on the defendant. Under our law the testimony of Ms. Pinard as to that out-of-court statement was limited in its scope to the fact and timing of [the victim's] complaint, the place and nature of the alleged sexual assault, and the identity of the alleged perpetrator. "This evidence is to be considered by you only in determining the weight and credibility you will give the [victim's] testimony as it pertains to the charge of sexual assault in count four. This evidence of an out-of-court statement by the [victim] 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. "In determining whether or not this out-of-court statement corroborates the [victim's] testimony in court, you should consider all of the circumstances under which it was made and to whom and whether the statement to Ms. Pinard was or was not consistent with the [victim's] testimony in court. "If you find any delay in her reporting the alleged incident, you may consider such delay and any reasons which you may find for such delay in evaluating her testimony in court. To the extent you find that what she has said outside the courtroom is consistent with her testimony in court, you may find her testimony in court to be corroborated or supported with respect to the fact and timing of her complaint, the time and place of that alleged sexual assault and the identity of the alleged perpetrator. "To the extent you find that what she has said outside the courtroom is inconsistent with her testimony in court, you may consider the degree of inconsistency that you find and you may consider the reasons which you may find for the inconsistency in evaluating her testimony given in court."

12486173

In re JAMES O., JR., et al.

In re James O.

2016-08-12

No. 19579.

1147

1162

142 A.3d 1147

142

West's Atlantic Reporter, Third Series

Connecticut Supreme Court

Connecticut

2021-08-27T20:57:13.998797+00:00

Fastcase

In re JAMES O., JR., et al.

In re JAMES O., JR., et al. No. 19579. Supreme Court of Connecticut. Argued May 5, 2016. Decided Aug. 12, 2016. David J. Reich, New London, for the appellant (respondent mother). Frank H. LaMonaca, assistant attorney general, with whom, on the brief, were George Jepsen, attorney general, Gregory T. D'Auria, solicitor general, Benjamin Zivyon, assistant attorney general, and Romiesha Briscoe, certified legal intern, for the appellee (petitioner). ROGERS, C.J., and PALMER, ZARELLA, EVELEIGH, McDONALD, ESPINOSA and ROBINSON, 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. August 12, 2016, the date that this decision was released as a slip opinion, is the operative date for all substantive and procedural purposes. This case originally was scheduled to be argued before a panel of this court consisting of Chief Justice Rogers and Justices Palmer, Zarella, Eveleigh, McDonald, Espinosa and Robinson. Although Chief Justice Rogers was not present when the case was argued before the court, she has read the briefs and appendices, and listened to a recording of the oral argument prior to participating in this decision.

8187

51997

ROGERS, C.J. The sole issue in this certified appeal is whether the trial court made an improper comparison between the respondent mother, Marjorie H., and Paula M., the therapeutic foster mother of the respondent's minor children, James O., Jr., and Jolene O., during the adjudicative phase of its judgment terminating the respondent's parental rights. The respondent appeals from the judgment of the Appellate Court affirming the trial court's decision to terminate her parental rights as to James and Jolene, and to appoint the petitioner, the Commissioner of Children and Families, as their statutory parent. In re James O., 160 Conn.App. 506, 508, 127 A.3d 375 (2015). The respondent claims that the Appellate Court improperly affirmed the trial court's judgment terminating her parental rights pursuant to General Statutes (Rev. to 2013) § 17a-112 (j)(3)(B) because the trial court engaged in an improper comparison between the parenting abilities of the respondent and those of Paula M. to support the court's conclusion that the respondent had failed to reach a sufficient level of personal rehabilitation. We disagree and affirm the judgment of the Appellate Court. The following facts, which the trial court found by clear and convincing evidence, and procedural history are relevant to the resolution of this appeal. During the spring of 2011, staff at James' school became concerned with the fact that James, then seven years old, was making suicidal and homicidal statements and was physically harming himself. The school staff attempted to work with the respondent to secure a psychological evaluation and appropriate treatment for James. Around the same time, James' therapist reported that James disclosed to her that he "had a secret, that he [heard] voices, and that he hurts himself at home." The therapist also recommended that James receive a psychological evaluation, but the respondent refused to allow an evaluation unless the school paid for both children to be evaluated. The therapist did not believe that the respondent grasped the seriousness of James' condition. School staff also referred James for Intensive In-Home Child and Adolescent Services (in-home services). The respondent refused to allow the services in her home. The respondent removed the children from the school, intending to homeschool them, claiming that James had psychotic episodes only at school and would behave normally at home. During 2011, the children's school made a referral for both children to the Department of Children and Families (department). On June 9, 2011, the petitioner filed neglect petitions and sought and received an order of temporary custody as to both children based on the children's exposure to substance abuse and domestic violence, evidence of James' serious mental health issues, the failure of both parents; see footnote 2 of this opinion; to follow through with recommended services for both children, and the withdrawal of the children from school and the resulting lack of visibility in the community. The petitioner included as an additional ground educational neglect arising from the children having missed thirty days of school. At the time of their removal from the respondent's custody, both children displayed highly disturbing behaviors. After removal, outside the presence of his parents, James disclosed to Danbury Hospital staff that he was hearing voices and that his head was telling him to do things. James threatened to harm another child in his first foster home, stating that he would kill and eat the child. Jolene, then six years old, displayed sexualized behavior including frequent public masturbation, talk about sex, and attempts to engage other children, including her brother, in inappropriate sexual acts. Based on Jolene's conduct, her first foster mother questioned whether Jolene had a history of sexual abuse. Despite Jolene's behavior, the respondent and the department reached an agreement whereby the order of temporary custody would remain in effect for James, who was to be hospitalized at Yale-New Haven Hospital for psychiatric treatment, while the order would dissolve for Jolene on June 23, 2011, upon the condition that the respondent would take Jolene to therapy. On June 24, 2011, during her therapy in-take interview, Jolene disclosed to the therapist that her father had physically abused her and inappropriately touched her. The department invoked a ninety-six hour hold and removed Jolene from the respondent's custody for the second time. While at Yale-New Haven Hospital, James continued to make suicidal statements and homicidal statements about killing and eating other children. The respondent attributed his conduct to a cartoon he watched on television. The hospital staff also reported bizarre interactions between James and Jolene. They observed that the parents did not set appropriate limits on the children's behavior. The department placed James and Jolene in a Safe Home placement, which would provide more stability, allow the children to receive mental health services directly at the facility, and allow the department to more directly assess their needs. While the children were at the Safe Home, the department determined that the children would need a family that would understand and be able to handle their ongoing behavioral issues. James was still having suicidal ideation, had a tendency to fixate, and had a fragile emotional state. In addition to sexual behavior, Jolene was reluctant to bathe, was very hyperactive and aggressive, cursed and made threats to others. She also exhibited excessive animal behaviors, at times walking on all fours and making animal noises, and had a skewed sense of reality. Safe Home staff described her "as one of the most traumatized children they have seen." The department determined that the children needed to be placed in a therapeutic foster home with a caregiver who could understand and manage their behaviors and provide more intensive therapeutic support. In October, 2011, the department placed the children with Paula M., a licensed therapeutic foster care provider. The trial court described Paula M. as "part of a team that includes [the department], the children's therapists, and Wheeler Clinic...." Paula M. met with the children's therapists weekly, attended special education planning and placement meetings, informed the children's therapists of issues that arose with the children, and helped to implement at home what the children learned in therapy, such as specific coping skills when they became anxious. Paula M. also worked with the in-home service providers in the home twice weekly, once with James and a second time without the children present to train her to work with James. Beginning in October, 2011, Jolene was referred for treatment to the Child Abuse Treatment Services Program at Klingberg Family Centers. That program uses trauma focused cognitive behavioral therapy to assist children who have experienced physical or sexual abuse or have witnessed domestic violence. At the time of the referral, the therapists were not able to begin trauma focused cognitive behavioral therapy with Jolene because the respondent refused to give her consent. In February, 2012, both children separately made disclosures of sexual abuse to Paula M. Using the coping skills he learned in therapy, James wrote a narrative that included numerous explicit descriptions of a variety of sexual contact involving James, Jolene, and their parents. While attending church with Paula M., Jolene asked for paper and a pencil and then drew figures of what looked like a child and an adult, including one that suggested sexual activity between the two figures. Paula M., in her capacity as a mandatory reporter, provided a copy of Jolene's drawings to the department. Jolene subsequently disclosed to her therapist that the drawings depicted her abuse. On June 19, 2012, after the trial court had already taken evidence in the contested neglect petitions over several days, the respondent and the children's father entered nolo contendere pleas to neglect. The court adjudicated the children neglected and committed them to the custody of the petitioner. Because of Jolene's commitment to the petitioner's custody, she was able to begin trauma focused cognitive behavioral therapy. The goal of her therapy was treatment of the symptoms of trauma and abuse, rather than investigation of alleged sexual abuse. Jolene was diagnosed with post-traumatic stress disorder (PTSD). By June, 2013, Jolene exhibited a successful reduction in trauma symptoms, developed coping and relaxation skills, and, as a result, was successfully discharged from the trauma focused cognitive behavioral therapy program. James also exhibited a marked improvement to his therapists. At the time of his initial commitment, James presented with suicidal ideation, hypervigilance, high anxiety, frequent tantrums, a great deal of fear, difficulty sleeping, and paranoia. He was diagnosed with PTSD and autism. By the time his most recent therapist was assigned to him in June, 2013, he was no longer presenting with suicidal ideations and his anxiety had decreased significantly. James continued to exhibit issues with boundaries and social skills, which caused behavioral issues for him at school. James' therapist noted that he required the lessons and skills he was taught in therapy to be mirrored in the parenting he received at home, with a caregiver who is firm, but also very calm, warm, and supportive of him. At the time that the respondent entered her nolo contendere pleas to neglect, the respondent agreed to specific steps to facilitate reunification with James and Jolene, including attending individual therapy for the purpose of gaining insight into domestic violence and its impact on the children, improving her communication skills, learning how to problem solve without escalating to violence, and understanding appropriate boundaries with respect to sexual abuse and the needs of children who have disclosed sexual abuse. The respondent declined to see a department recommended therapist and instead selected one who disagreed with most of the treatment goals outlined in the court-ordered specific steps. Rather than work with the respondent to address the steps provided by the court, the psychologist focused, instead, on discrediting the children's reports of sexual abuse. The trial court found that while the respondent attended individual therapy, she failed to advance any of the goals of such therapy as agreed to in her specific steps. During the children's commitment, the department provided the respondent with supervised visitation with the children and parent education support, as well as assistance with transportation to visitations. The respondent worked with two parent educators along with visitation supervisors. Both parent educators attempted to provide feedback to the respondent on her interactions with the children, but the respondent reacted negatively to any perceived criticism, at times yelling at the educators or the department social worker. The parent educators observed that the respondent continued to have difficulty setting appropriate limits for the children or setting consequences if the children failed to comply with limits. As part of her specific steps, the respondent was also required to improve her communication skills in order to allow her to effectively communicate and work with the children's therapy providers. The respondent was permitted, and encouraged, to communicate with the children's therapists and school social workers and psychologists. The respondent declined to do so. The respondent was also required to take steps to acknowledge her role in the removal of her children. The respondent focused, instead, on denying the allegations of sexual abuse. She also failed to acknowledge the disturbing behavior that initially led to her children's removal or the impact of substance abuse and domestic violence on the children. While she acknowledged that the children's father had a substance abuse issue and could be violent, she minimized the impact that his behavior had on the children and did not acknowledge her own propensity for violence. According to the respondent, the father's substance abuse and violence would not impact the children in the future because she was then divorced from the father and he did not have visitation rights under the dissolution agreement. The trial court found, however, that the respondent and the father entered into a visitation agreement in order for it to appear to the department that the respondent was protecting the children when, in reality, the respondent and the father still had a relationship and he was often present in her home. On April 24, 2013, the petitioner, pursuant to § 17a-112 (j)(3)(B), filed a petition to terminate the respondent's parental rights as to both children on the ground that she had failed to achieve the degree of personal rehabilitation that would encourage the belief that within a reasonable time, considering the age and particular needs of the children, she could assume a responsible position in their lives. On November 13, 2014, the trial court terminated the respondent's parental rights as to both children. The court found that the department had made reasonable efforts to reunify the respondent with both children, but that she failed to acknowledge the children's disturbing behavior and her role in causing their removal. The court further found that the respondent had failed to achieve a reasonable level of rehabilitation. The court finally found that it was in the best interest of the children for the court to terminate the respondent's parental rights. On March 3, 2015, the respondent appealed the trial court's termination of her parental rights to the Appellate Court, claiming that the court had made an improper comparison between the respondent and Paula M. in the adjudicative portion of its memorandum of decision. Thereafter, the Appellate Court affirmed the judgment of the trial court. In re James O., supra, 160 Conn.App. at 507, 528, 127 A.3d 375. The Appellate Court "construe[d] the language relied on by the respondent, not as making a direct comparison between the respondent and Paula M., so much as clarifying that the children needed and continued to need an environment that is calm, in which their needs are understood, and in which their caregiver can manage their anxiety in an appropriate manner." Id., at 520, 127 A.3d 375. This appeal followed. The respondent claims that the Appellate Court improperly held that the trial court did not engage in an improper comparison between the parenting abilities of the respondent and Paula M. in the adjudicative portion of its memorandum of decision terminating the respondent's parental rights. In the respondent's view, certain language in the trial court's memorandum of decision evidences its improper reasoning. The respondent contends that any comparison at all between a parent and a foster parent is a violation of Practice Book § 35a-7 (b), should be presumed to influence the trial court's determination in the adjudicatory phase, and requires reversal. The petitioner agrees that if the trial court based its determination that the respondent had failed to reach an adequate level of rehabilitation on a finding that Paula M. was a better parent or was a preferable parent to the respondent, that would be a due process violation and grounds for reversal. The petitioner contends that, when read within the context of the entire memorandum of decision, the challenged language does not constitute a comparison between the respondent and Paula M. Rather, the court was discussing the specific needs of the children as a predicate to considering the respondent's ability to meet those needs. Within this context, the examination of Paula M.'s role in the children's therapy and the environment of the foster home are merely evidence of what is actually required to meet the children's specific needs, which is a necessary consideration during the adjudicative phase of a termination of parental rights determination when the ground for termination is a failure to rehabilitate. The petitioner further emphasizes that the respondent failed to reach even a minimally sufficient ability to assume a role as an appropriate caregiver and refused to even acknowledge the children's particular needs. Therefore, according to the petitioner, the court did not make an improper comparison that would require reversal. We agree with the petitioner. We first set forth the applicable standard of review and general principles. "The interpretation of a trial court's judgment presents a question of law over which our review is plenary.... 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.... 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.... If there is ambiguity in a court's memorandum of decision, we look to the articulations that the court provides." (Citations omitted; internal quotation marks omitted.) Olson v. Mohammadu, 310 Conn. 665, 682, 81 A.3d 215 (2013). "In order to terminate a parent's parental rights under § 17a-112, the petitioner is required to prove, by clear and convincing evidence, that: (1) the department has made reasonable efforts to reunify the family; General Statutes § 17a-112 (j)(1) ; (2) termination is in the best interest of the child; General Statutes § 17a-112 (j)(2) ; and (3) there exists any one of the seven grounds for termination delineated in § 17a-112 (j)(3)." (Internal quotation marks omitted.) In re Melody L., 290 Conn. 131, 148-49, 962 A.2d 81 (2009), overruled in part on other grounds by State v. Elson, 311 Conn. 726, 746-47, 754, 91 A.3d 862 (2014). When the petitioner seeks to terminate a parent's parental rights on the ground that the parent has failed to rehabilitate, "[t]he trial court is required, pursuant to § 17a-112, to analyze the [parent's] rehabilitative status as it relates to the needs of the particular child, and further . such rehabilitation must be foreseeable within a reasonable time." (Emphasis added; internal quotation marks omitted.) In re Shane M., 318 Conn. 568, 585, 122 A.3d 1247 (2015). Therefore, the trial court must first determine the needs of the particular child before determining whether a parent has achieved a sufficient rehabilitative status to meet those needs. See, e.g., In re Shyliesh H., 56 Conn.App. 167, 175, 743 A.2d 165 (1999) (respondent's rehabilitative status viewed in light of child's medical and psychiatric conditions). Turning to the ability of a trial court to consider evidence of the abilities of a foster parent when adjudicating a petition to terminate parental rights, we have recognized that such determinations "are particularly vulnerable to the risk that judges or social workers will be tempted, consciously or unconsciously, to compare unfavorably the material advantages of the child's natural parents with those of prospective adoptive parents and therefore to reach a result based on such comparisons rather than on the statutory criteria." In re Juvenile Appeal (Anonymous ), 177 Conn. 648, 672-73, 420 A.2d 875 (1979). " 'It is . essential, in considering a petition to terminate parental rights, to sever completely the issues of whether termination is statutorily warranted and whether a proposed adoption is desirable. Although petitions for termination are presumably seldom brought unless prospective adoptive parents are available, there still must be a two-step process to determine, first, the threshold question of whether cause for termination . has been proved.' [Id., at 673, 420 A.2d 875 ]; see also Matter of Corey L. v. Martin L., 45 N.Y.2d 383, 391, 380 N.E.2d 266, 408 N.Y.S.2d 439 (1978). Accordingly, we have held that '[o]nly if a ground for termination exists may the suitability and circumstances of adoptive parents, in an appropriate proceeding, be considered.' In re Juvenile Appeal (Anonymous ), 181 Conn. 638, 645, 436 A.2d 290 (1980)." In re Baby Girl B., 224 Conn. 263, 275, 618 A.2d 1 (1992). We do not permit foster or preadoptive parents to intervene in termination proceedings because to do so would "permit them to shape the case in such a way as to introduce an impermissible ingredient into the termination proceedings." (Internal quotation marks omitted.) Id., at 278, 618 A.2d 1. We have never held, however, that a foster parent may not testify during the adjudicative phase of a termination proceeding or that a trial court may not consider evidence that arises within the context of a foster placement that is relevant to one of the statutory grounds raised for termination of parental rights. See In re Juvenile Appeal (Docket No. 10718 ), 188 Conn. 259, 266-67, 449 A.2d 165 (1982) (Shea, J., dissenting) ("Unquestionably the foster parents . would have been permitted to testify, as the foster mother did, during the adjudicative phase of the termination proceedings. The majority opinion does not question that her testimony was highly relevant to the grounds alleged for termination of parental rights."); see also In re Anthony H., 104 Conn.App. 744, 752, 936 A.2d 638 (2007) (trial court noted, and Appellate Court did not question, that child needed "a substantial amount of structure, which his prior therapeutic foster homes were able to provide" within context of specific needs of child), cert. denied, 285 Conn. 920, 943 A.2d 1100 (2008) ; In re Vincent D., 65 Conn.App. 658, 665-66, 783 A.2d 534 (2001) (foster parent may not intervene in adjudicative phase of proceeding, but may be called as witness for petitioner on issues that may be considered during dispositional phase); In re Shyliesh H., supra, 56 Conn.App. at 171-72, 743 A.2d 165 (child's interactions with foster mother, in contrast to interactions with others, were evidence of psychiatric condition relevant to specific needs of child in adjudicative phase). We must determine, therefore, whether the trial court properly considered evidence of the children's foster placement as relevant to an aspect of an adjudicatory ground for termination, or rather, as the respondent contends, it improperly reasoned that termination was warranted because Paula M. was a better or preferable parent than the respondent. Looking to the trial court's memorandum of decision, the court made the following findings that are relevant to this determination. At the outset of its analysis on the respondent's failure to rehabilitate, the trial court quoted law stating that rehabilitation must be assessed with reference to the needs of the particular children at issue. Thereafter, the court emphasized that "[p]ivotal to this court's findings and the starting point for its analysis is the . determination of the age and needs of James . and Jolene." The court went on to describe the children's history of disturbing behavior, the respondent's continuing failure to acknowledge that behavior, and her role in causing it, opining that such failure was an "enormous impediment to reunification." The trial court next noted that "[t]he most credible, persuasive and reliable evidence of the children's needs is the testimony of the children's therapists, as manifested by the therapeutic approach they utilized and the importance of the caregivers' role in helping the children address and heal from the trauma they have endured." The court went on to describe the goals of the children's therapy and the roles of various therapy providers, including Paula M., in documenting any disclosures made by the children. The next paragraph of the memorandum of decision is the subject of this appeal. In its entirety, it reads: "More important than the disclosures, however, is the clear and convincing evidence that the children have made extraordinary progress while living with Paula M., in an environment that is calm and understanding of the children's needs. As both therapists have made clear, the children have needed a caregiver who is calm, patient, able to set appropriate limits, willing to participate intensively in the children's therapy, and able to help the children with coping skills to manage their anxiety. The children have also needed someone who would believe their statements about the source of their trauma. [The children's therapist] credibly testified that the [trauma focused cognitive behavioral therapy ] model requires that a child be understood and treated in the context of their living environment. As the children's progress, relationship and work with Paula M. makes clear, the process of healing and recovery must also occur in a home environment which the children have come to learn is safe and caring. Given Paula M.'s training and participation in therapy sessions, it is clear that this process cannot be limited to the one hour per week session that a child has, even with a trusting therapist. In contrast, [the respondent] is volatile and prone to violence, unable to set appropriate limits, unwilling to talk with the children's therapists and, therefore, unable to help them use coping skills to manage their anxiety and ultimately, unwilling to believe the children's statements regarding the trauma. In short, [the respondent] has none of the qualities [that] the children have required to stabilize and to continue to heal from the traumas they experienced while in their parents' care." In the very next paragraph, the trial court reiterates that "the most credible and reliable evidence of the age and needs of the children, around which the [respondent's] rehabilitation is evaluated and assessed, necessarily comes from the work done by the children's therapeutic team, which includes the work of [Paula M.], the reliable and credible evidence regarding the children's severely disturbed behaviors and the degree to which the children's behaviors have greatly stabilized. The evidence that the children have, in fact, made such dramatic improvement in their functioning, under the conditions which their therapists and caregivers have been able to dictate and nurture, is itself confirmation of the expertise, skill and knowledge of these professionals." Thereafter, the trial court concluded the adjudicatory phase, finding "that the petitioner has met its burden, by clear and convincing evidence, [that] the [respondent has] failed to rehabilitate, given the age and needs of both children." After considering the challenged portion of the memorandum of decision within the context of the trial court's overall analysis, we conclude that the court's adjudicative findings are appropriately centered on the specific needs of James and Jolene, a necessary consideration when determining whether a respondent has failed to rehabilitate. The beginning of the court's analysis makes it abundantly clear that the court is focused on James' and Jolene's particular needs, as seriously traumatized children, and is assessing the respondent's state of rehabilitation with reference to those needs. Additionally, the court twice indicates its belief that the best evidence of those needs is an examination of the children's course of therapy and its positive results, including the roles of their therapists and caregivers. In essence, the court recognized that, whoever the children's caregiver is, he or she necessarily must play an important role in helping the children continue to address and heal from their trauma. It is within this overall framework that the trial court made the findings that the respondent alleges are an improper comparison of the respondent and Paula M. Here, while the court does specifically discuss Paula M., it does so in light of what the children's therapists have testified are the specific needs of the children. The court notes generally that, "[a]s both therapists have made clear, the children have needed a caregiver who is calm, patient, able to set appropriate limits, willing to participate intensively in the children's therapy, and able to help the children with coping skills to manage their anxiety. The children have also needed someone who would believe their statements about the source of their trauma." (Emphasis added.) The court is basing the level of care needed not on what Paula M. is providing to the children, but on what the children's therapists have testified the children need from a caregiver. Although the court then discusses the progress made by the children while they were living with Paula M., we interpret that discussion as merely evidence that supports the recommendations of the children's therapists as to the children's particular needs. In short, the improvements seen from Paula M.'s implementation of the therapeutic recommendations proved the need for and efficacy of the recommended approach. Importantly, the court never opined that only Paula M. could meet the children's needs or that Paula M. ought to be the person to meet their needs. The court merely explained that, when the children were in an environment that did meet their particular needs, they were able to make extraordinary progress. Appropriately, the trial court then began its assessment of the respondent's ability to meet the particular needs of the children. The respondent advocates that the sentence beginning "[i]n contrast" evidences an improper comparison of the abilities of the respondent and those of Paula M. Reading that sentence in context, however, we disagree. Rather, the language following "[i]n contrast" directly parallels the language the court previously had used to describe generally the qualities of a caregiver who would meet the children's particular needs. In establishing the children's particular needs, the court found that "the children have needed a caregiver who is calm, patient, able to set appropriate limits, willing to participate intensively in the children's therapy, and able to help the children with coping skills to manage their anxiety . [and] also . someone who would believe their statements about the source of their trauma." Then in evaluating the respondent, the court found that, "[i]n contrast, [the respondent] is volatile and prone to violence, unable to set appropriate limits, unwilling to talk with the children's therapists and, therefore, unable to help them use coping skills to manage their anxiety and ultimately, unwilling to believe the children's statements regarding the trauma." It is clear that the contrast drawn by the court is between the qualities of a caregiver who meets the particular needs of the children, as described by the children's therapists, and those of the respondent. Most importantly, after comparing the needs of the children with the abilities of the respondent, the trial court found that the respondent "has none of the qualities the children have required to stabilize and to continue to heal from the traumas they experienced while in their parents' care." (Emphasis added.) Quite simply, the court found that the respondent did not have the minimum ability to meet her children's particular needs and refused to even acknowledge what those needs were. While we are sensitive to the risks of a court comparing the abilities of a natural parent who can meet the basic needs of her children with the abilities of a foster parent who is more capable of meeting those needs and then making an adjudicatory determination based on who can better meet the needs of the particular children, those risks do not materialize when a court has found that a respondent has failed to achieve any level of rehabilitation and has none of the qualities necessary to meet the needs of the particular children. Therefore, because the trial court found that the respondent had none of the qualities necessary to meet her children's needs, we conclude that the court did not improperly compare the abilities of the respondent and Paula M. in making its finding during the adjudicatory phase that the respondent failed to achieve a reasonable degree of rehabilitation. The judgment of the Appellate Court is affirmed. In this opinion PALMER, EVELEIGH and ESPINOSA, Js., concurred. McDONALD, J., with whom ZARELLA and ROBINSON, Js., join, concurring. A complete, contextual review of the trial court's memorandum of decision compels the conclusion that the court improperly compared the superior parental attributes of the foster mother, Paula M., with the wanting parental attributes of the respondent, Marjorie H., the mother of the minor children, James O., Jr., and Jolene O. Although I fully acknowledge that there is nothing in the record that would suggest that the trial court intended to draw that comparison, the plain words contained in the memorandum of decision reveal that, at the very least, it unconsciously did so. Regardless of that error, the trial court's findings as to the respondent, in and of themselves, require affirmance of the judgment. As the majority properly recognizes, it is "essential, in considering a petition to terminate parental rights, to sever completely the issues of whether termination is statutorily warranted and whether a proposed adoption is desirable." (Internal quotation marks omitted.) In re Baby Girl B., 224 Conn. 263, 275, 618 A.2d 1 (1992). This is so because petitions "for termination of parental rights are particularly vulnerable to the risk that judges or social workers will be tempted, consciously or unconsciously, to compare unfavorably the material advantages of the child's natural parents with those of prospective adoptive parents and therefore to reach a result based on such comparisons rather than on the statutory criteria." In re Juvenile Appeal (Anonymous ), 177 Conn. 648, 672-73, 420 A.2d 875 (1979). The requirement that the trial court conduct a hearing on a petition for termination of parental rights in two distinct phases-the adjudicatory phase, at which the trial court determines whether a statutory ground for termination of parental rights exists, and the dispositional phase, at which the trial court determines whether termination is in the best interest of the child; In re Shane M., 318 Conn. 568, 582-83 n. 12, 122 A.3d 1247 (2015) ;-is intended to safeguard against such improper considerations tainting the threshold inquiry. Accordingly, during the adjudicatory phase, it is per se improper for a trial court to compare the attributes of a natural parent with those of a prospective parent. In re Baby Girl B., supra, 224 Conn. at 280, 618 A.2d 1. In the present case, the trial court's memorandum of decision was divided into four substantive parts: general findings of fact, a determination of whether the Department of Children and Families made reasonable efforts to reunify the respondent's family, a determination on the adjudicatory matter, and a determination on the dispositional matter. The court made specific findings of fact in support of each part. In the part resolving the adjudicatory matter, it clearly was proper for the trial court to analyze the respondent's rehabilitative status in relationship to the needs of her children. See In re Shane M., supra, 318 Conn. at 585, 122 A.3d 1247 ; see, e.g., In re Shyliesh H., 56 Conn.App. 167, 173, 743 A.2d 165 (1999). The court, however, also found certain facts that had no bearing on that essential issue. The court found that Paula M. and a social worker were "individuals whom the children deeply trust" and observed that they "care greatly for these children and have therefore earned the trust of these very emotionally fragile and otherwise guarded children...." The court also found that the "children want to remain in Paula M.'s home and be adopted by [her]...." The court further concluded that "the children have made extraordinary progress while living with Paula M., in an environment that is calm and understanding of the children's needs.... As the children's progress, relationship and work with Paula M. makes clear, the process of healing and recovery must also occur in a home environment which the children have come to learn is safe and caring." The court then stated: "Given Paula M.'s training and participation in therapy sessions, it is clear that [the therapeutic] process cannot be limited to the one hour per week session that a child has, even with a trusting therapist. In contrast, [the respondent] is volatile and prone to violence, unable to set appropriate limits, unwilling to talk with the children's therapists and therefore, unable to help them use coping skills to manage their anxiety and ultimately, unwilling to believe the children's statements regarding the trauma." (Emphasis added.) I must take the trial court's unambiguous comparison at face value. Whether this was a conscious comparison by the court or an inartful choice of words to compare the respondent to Paula M., the plain language of its decision evidences that such a comparison was made. The trial court's findings in its introductory part of the decision, although not limited to the issue in the adjudicatory phase, lend further support to this conclusion. See Olson v. Mohammadu, 310 Conn. 665, 682, 81 A.3d 215 (2013) (determinative factor when interpreting trial court's memorandum of decision "is the intention of the court as gathered from all parts of the judgment" [internal quotation marks omitted] ). The court repeatedly recited evidence discussing the positive attributes of Paula M.: "Paula M. attended therapy consistently every week and embraced as much education as possible in order to understand and help Jolene and [James] through their symptoms," and Mimi Akhand, James' therapist, observed "that the foster mother must be both firm with [James] but also very calm, warm and supportive of him.... Akhand noted that [Paula M.] is very skilled in this way and is also very good at processing with [James] his conduct when he misbehaves.... Akhand described [Paula M.] as being very understanding and very patient with [James]." While these findings can be construed as implicitly addressing the children's needs, they expressly emphasize Paula M.'s positive attributes. The absence of any reference to these facts in the dispositional part of the decision, along with the presence of similar references in the adjudicatory part of the decision, further demonstrates that Paula M.'s attributes influenced the court's decision in the adjudicatory phase. I recognize that certain statements read in isolation might be subject to an alternative interpretation, but the totality of the statements and the clear expression of comparison-"In contrast"-compel the conclusion that the trial court improperly compared Paula M. with the respondent. I would therefore conclude that the trial court improperly injected the dispositional issue of the children's best interests analysis into the adjudicatory phase of its decision. This concern, unfortunately, is not limited to the present case. The Appellate Court has repeatedly addressed similar claims, but ultimately construed language that is susceptible to suggesting a comparison in the manner that the majority does in the present case. See, e.g., In re Gabriella A., 154 Conn.App. 177, 191-94, 104 A.3d 805 (2014) (court allegedly considered best interest of child in adjudicatory phase), aff'd on other grounds, 319 Conn. 775, 777, 127 A.3d 948 (2015) ; In re Brian T., 134 Conn.App. 1, 18-21, 38 A.3d 114 (2012) (same); In re Zion R., 116 Conn.App. 723, 736-39, 977 A.2d 247 (2009) (same); In re Janazia S., 112 Conn.App. 69, 93-96, 961 A.2d 1036 (2009) (same). Given the fundamental right at stake, it is incumbent upon our courts to make abundantly clear that they are not engaging in such improper comparisons. See In re Juvenile Appeal (Anonymous ), supra, 177 Conn. at 673, 420 A.2d 875 (quoting passage from United States Supreme Court decision that "forcefully recognized th[e] danger" of comparing advantages of child's natural parents with prospective adoptive parents). Having concluded that the trial court's comparison was improper, I must consider whether this impropriety was harmless. E.g., In re Elvin G., 310 Conn. 485, 512-13, 78 A.3d 797 (2013) (applying harmless error analysis in termination of parental rights case), overruled in part on other grounds by In re Shane M., 318 Conn. 568, 587-88, 122 A.3d 1247 (2015). Even assuming, without deciding, that the petitioner, the Commissioner of Children and Families, would bear the burden of demonstrating harmlessness beyond a reasonable doubt; State v. Artis, 314 Conn. 131, 159, 101 A.3d 915 (2014) (state bore burden of demonstrating harmlessness beyond reasonable doubt when impropriety was of constitutional magnitude); see also In re Yasiel R., 317 Conn. 773, 782, 120 A.3d 1188 (2015) (termination of parental rights proceedings implicate constitutional rights); that standard clearly is satisfied in this case. The trial court's decision is replete with facts establishing that the respondent failed to rehabilitate, untainted by any comparison to Paula M. The court found, among other things, that the respondent: (1) "is a volatile and sometimes violent individual"; (2) never adequately addressed "her communication skills so that she could engage in cooperative relationships with professionals who provide services to her and her children"; (3) "failed to acknowledge responsibility for the conditions leading to the children's removal" such that the services offered to her "have essentially been ineffective"; (4) refused to communicate with her children's therapists; and (5) failed to acknowledge or appreciate the extent to which either domestic violence and substance abuse have been a significant source of trauma to her children or the significance of her children's behaviors, in and of themselves. Most significantly, the court found that the respondent "has none of the qualities the children have required to stabilize and to continue to heal from the traumas they experienced while in their parents' care." (Emphasis added.) Thus, it is clear that, even without considering the favorable attributes of Paula M., the court necessarily would have concluded that the respondent "failed to achieve such degree of personal rehabilitation as would encourage the belief that within a reasonable time, considering the age and needs of [her children, she] could assume a responsible position in" their lives. General Statutes (Rev. to 2013) § 17a-112 (j)(3)(B) ; see also In re Etta H., 146 Conn.App. 751, 759, 78 A.3d 295 (2013) (although "the standard is not full rehabilitation, the parent must show more than any rehabilitation" [internal quotation marks omitted] ). I therefore respectfully concur in the judgment. We granted the respondent's petition for certification to appeal limited to the following issue: "Did the Appellate Court properly determine that the trial court's comparison between the [respondent's] ability to parent and [Paula M.'s] abilities to parent did not improperly factor into the court's determination that the [respondent] had failed to rehabilitate?" In re James O., 319 Conn. 956, 125 A.3d 533 (2015). Because the Appellate Court concluded that the trial court did not make such a comparison, the issue before this court, more accurately rephrased, is whether the trial court made an improper comparison between the respondent and Paula M. during the adjudicatory phase of its decision. See State v. Ouellette, 295 Conn. 173, 184, 989 A.2d 1048 (2010) (court may reframe certified question to more accurately reflect issue). The trial court also terminated the parental rights of the children's father, James O., Sr. The respondent father has not appealed from that judgment. We refer to the mother as the respondent in this opinion. General Statutes (Rev. to 2013) § 17a-112 (j) provides in relevant part: "The Superior Court, upon notice and hearing as provided in sections 45a-716 and 45a-717, may grant a petition [terminating parental rights] if it finds by clear and convincing evidence that . (3) . (B) the child (i) has been found by the Superior Court or the Probate Court to have been neglected or uncared for in a prior proceeding . (ii) . and the parent of such child has been provided specific steps to take to facilitate the return of the child to the parent pursuant to section 46b-129 and has failed to achieve such degree of personal rehabilitation as would encourage the belief that within a reasonable time, considering the age and needs of the child, such parent could assume a responsible position in the life of the child...." Section 17a-112 (j)(3)(B) was amended in 2015. See Public Acts 2015, No. 15-159, § 1. For purposes of clarity, we refer to the 2013 revision of the statute, which was in effect at the time of the relevant proceedings. The respondent also raised two additional grounds for reversal: (1) that the trial court improperly concluded that the petitioner proved by clear and convincing evidence that the department had made reasonable efforts to reunify the respondent and the children; and (2) that the trial court abused its discretion in admitting into evidence two statements made by the children. The Appellate Court affirmed the judgment of the trial court with respect to the first additional ground and declined to review the second ground as it was inadequately briefed. See In re James O., supra, 160 Conn.App. at 525, 526, 127 A.3d 375. The respondent did not seek certification of these issues to this court. Practice Book § 35a-7 (b) provides: "In the discretion of the judicial authority, evidence on adjudication and disposition may be heard in a nonbifurcated hearing, provided disposition may not be considered until the adjudicatory phase has concluded." The respondent also claims that the comparison of the parenting skills of the respondent and Paula M. violated her due process rights and was plain error, both requiring reversal. Because both claims rely on a determination that the trial court improperly compared the respondent and Paula M., and we conclude that no such comparison was made, we do not reach these additional claims. We note that in the present case, the respondent did not seek an articulation of the trial court's memorandum of decision. In the absence of an articulation, "[w]e read an ambiguous trial court record so as to support, rather than contradict, its judgment." (Internal quotation marks omitted.) In re Jason R., 306 Conn. 438, 453, 51 A.3d 334 (2012). The concurring justices acknowledge that certain of the trial court's findings are susceptible to varying interpretations, yet construe them as undermining the judgment, contrary to this tenet. We note that, while not all foster parents are proposed adoptive parents, the consideration of the relative merits of a foster parent or an adoptive parent raises similar issues. See In re Juvenile Appeal (Docket No. 10718 ), 188 Conn. 259, 261-62, 449 A.2d 165 (1982) (foster parents do not have standing to intervene in proceeding on termination of parental rights of natural parents). In finding that the department had made reasonable efforts to reunify the respondent and the children, the trial court also emphasized that "both parents have seriously discounted and/or not acknowledged the extent to which domestic violence and substance abuse have been a significant source of trauma to their children. Having focused exclusively on the allegations of sexual abuse, the parents have failed to acknowledge the degree to which their children presented with profoundly disturbing behaviors, which has not been credibly disputed. Despite opportunities to talk to her children's therapists, [the respondent] has refused to do so and thus has actively chosen to ignore her children's problems and how their needs can be addressed." In light of this circumstance, we disagree with the reasoning of the concurrence that the trial court engaged in an impropriety, albeit a harmless one. In short, because the respondent, considered in isolation, had completely failed to reach the level of rehabilitation necessary to reunite her with her children, there simply was no practical reason for the court to engage in a comparison between her and Paula M., as the respondent was not going to regain custody regardless of their relative merits as parents. Stated otherwise, because the respondent herself clearly had failed to rehabilitate, the court did not, in violation of our jurisprudence, "compare unfavorably the material advantages of the [children's] natural parents with those of prospective adoptive parents and therefore . reach a result based on such comparisons rather than on the statutory criteria. " (Emphasis added.) In re Juvenile Appeal (Anonymous ), supra, 177 Conn. at 672-73, 420 A.2d 875. I do not intend to suggest that it is always proper to make such a comparison at the dispositional phase. I am not persuaded by the respondent's various contentions that the trial court's impropriety is not subject to harmless error analysis. First, even assuming that the impropriety was clear and obvious, it did not result in a manifest injustice in light of the trial court's other, proper findings that I subsequently discuss, and thus does not warrant automatic reversal under the plain error doctrine as the respondent contends. State v. Jamison, 320 Conn. 589, 596-97, 134 A.3d 560 (2016) ("party cannot prevail under plain error unless it has demonstrated that the failure to grant relief will result in manifest injustice"). Second, contrary to the respondent's contention, the impropriety in this case did not constitute structural error because it did not render the hearing fundamentally unfair in light of those same findings. State v. Lopez, 280 Conn. 779, 791, 911 A.2d 1099 (2007) (structural errors "render a trial fundamentally unfair" [internal quotation marks omitted] ). Finally, even assuming the trial court's improper comparison constituted a due process violation, harmless error analysis would still apply notwithstanding the respondent's argument to the contrary. In re Steven M., 264 Conn. 747, 762, 826 A.2d 156 (2003) (Fundamental "fairness required that the trial court hold a competency hearing. The failure to hold such a hearing in the present case, however, was harmless.").

12498548

STATE of Connecticut v. Gheorghe DIJMARESCU

State v. Dijmarescu

2018-05-22

AC 39745

111

127

189 A.3d 111

189

West's Atlantic Reporter, Third Series

Connecticut Appellate Court

Connecticut

2021-08-31T19:05:39.044951+00:00

Fastcase

STATE of Connecticut v. Gheorghe DIJMARESCU

STATE of Connecticut v. Gheorghe DIJMARESCU AC 39745 Appellate Court of Connecticut. Argued January 8, 2018 Officially released May 22, 2018 John L. Cordani, Jr., assigned counsel, for the appellant (defendant). Rita M. Shair, senior assistant state's attorney, with whom were Gail P. Hardy, state's attorney, and, on the brief, Michael J. Weber, Jr., senior assistant state's attorney, for the appellee (state). Alvord, Prescott and Bear, Js.

7167

43743

PRESCOTT, J. The defendant, Gheorghe Dijmarescu, appeals from the judgment of conviction, rendered after a jury trial, of one count of breach of the peace in the second degree in violation of General Statutes § 53a-181 (a) (2). On appeal, the defendant claims that the trial court (1) violated his sixth amendment right to counsel by improperly granting his attorney's motion to withdraw, (2) improperly admitted evidence of his uncharged misconduct, and (3) violated his right against self-incrimination by not canvassing him before he elected to testify. We disagree and, accordingly, affirm the judgment of the trial court. The jury reasonably could have found the following facts. The defendant and the victim, L, both are accomplished mountaineers. In 2000, the two met at a party hosted by the governments of Pakistan and Nepal after L successfully summited Mount Everest. In May, 2002, the couple was married in Connecticut. They have two children. During their marriage, the defendant and L climbed Mount Everest together several times. The defendant also occasionally went on climbing expeditions by himself, leaving L and the children behind at their home in Connecticut. When he was not away, the defendant managed his own construction company, while L took care of the couple's two children and the defendant's ailing father. On July 1, 2012, L went grocery shopping and discovered that the family's food stamp card was not working. She called the defendant at work and he became angry. At about 7 or 8 p.m., the defendant arrived home. L was in the kitchen cutting an onion. The two then got into an argument regarding the food stamp card. At one point during the argument L said something in her native language, and the defendant struck her. The defendant then left the house and drove away in his truck. After the defendant left, L called her friend and told her that the defendant hit her. L's friend advised her to call the police. L then spoke with her brother, who called the police on her behalf. Shortly thereafter, the police arrived and interviewed L. An ambulance and medical personnel also responded to the scene, but L refused to go with them because they would not allow her daughters to ride in the ambulance with her. L then indicated to one of the police officers that she did not feel safe at her home, so an officer took her and her two daughters to a hospital emergency department and arranged for them to stay at a shelter. L's examination at the emergency department revealed that she had suffered no visible injuries to her head, but that she did have several scratches on her left forearm. L did not return to the marital home, and she and the defendant ultimately obtained a divorce. Shortly after the incident, the defendant was arrested and charged with assault in the third degree and breach of the peace in the second degree. He was subsequently tried before a jury. At trial, the defendant elected to testify in his own defense. The jury found the defendant not guilty of assault in the third degree but found him guilty of breach of the peace in the second degree. He was sentenced to six months of incarceration, execution suspended, followed by one year of probation. Additional facts and procedural history will be set forth as necessary. I The defendant first claims that the trial court violated his sixth amendment right to counsel by granting the motion to withdraw filed by his private attorney, Raymond M. Hassett. Specifically, the defendant argues that the court improperly granted the motion to withdraw because the notice and good cause requirements set forth in Practice Book § 3-10 (a) were not met. Because we determine that, under the circumstances presented here, the defendant had no sixth amendment right to be represented by Hassett, our review of the defendant's claim is limited to whether the court abused its discretion in granting the motion to withdraw. We further conclude that the court did not abuse its discretion in granting the motion to withdraw. The following additional facts are relevant to the resolution of the defendant's claim. On July 17, 2012, the defendant was arraigned. On that day, Hassett filed an appearance on behalf of the defendant. On July 10, 2013, the defendant and Hassett appeared in court. At that time, Hassett requested that the court, Johnson , J. , allow him to withdraw as counsel. Hassett presented the court with a written motion, although he had not yet filed it. Hassett later filed the written motion to withdraw with the clerk's office. The court then held a hearing on Hassett's motion to withdraw. Hassett told the court that he previously had "numerous discussions with [the defendant]" and that he "believed that there ha[d] been somewhat of a breakdown of communication ." Hassett further stated that the defendant had been adamant "from day one that he want[ed] to proceed to trial," and that Hassett had "tried to prepare [the defendant] for trial and prepare the case for trial" and had "met some resistance." Hassett also represented that "the major reason why" he was asking to withdraw from the case was that he had difficulty getting the defendant to cooperate with him. Hassett told the court that he had advised the defendant that he needed to make a decision regarding whether he wanted to proceed with the family violence education program. See General Statutes § 46b-38c (h) (1). When the defendant elected not to apply for the program, Hassett explained to him the possible ramifications of going to trial. Finally, Hassett stated that, despite the fact that he liked the defendant, he believed that his ability to represent the defendant had been compromised. The court then heard from the state, which asked it to move the case to the trial list if the defendant chose not to apply for the family violence education program. Next, the court asked the defendant whether he agreed that he could no longer work with Hassett, to which the defendant responded that he did not want Hassett to withdraw because he thought Hassett was an excellent attorney who could provide him with the "best representation ." The defendant further stated that, although he and Hassett had encountered some obstacles, he believed that they could be overcome. The court then canvassed the defendant regarding his opportunity to apply for the family violence education program and informed the defendant that if he successfully participated in the program he would have his charges dismissed. The defendant responded that Hassett had informed him of the same many times, both verbally and in writing. The court then asked the defendant whether he understood that, if he proceeded to trial and was convicted, he faced the possibility of being sentenced to eighteen months incarceration and $3000 in fines. The defendant replied that he understood but nevertheless wanted to proceed to trial. After canvassing the defendant, the court concluded that "[b]ased on everything that I have heard, I am [going to] grant the motion to have counsel withdraw from the case. I agree with you. You have an excellent attorney. Your attorney probably has given you the best advice and has spent a considerable amount of time with you. At this time, he feels, based on his experience, that communication has broken down." The court then continued the case for approximately six weeks to allow the defendant time to hire a new attorney. On September 12, 2013, the defendant again appeared before the court. At that time, the defendant told the court that he had not yet retained an attorney because he no longer could afford one and wanted to represent himself. The court canvassed the defendant regarding the risks of representing himself and decided to allow the defendant to proceed as a self-represented litigant, with an attorney from the public defender's office acting as standby counsel. On April 9, 2014, however, the defendant was appointed a special public defender, Attorney Robert A. Cushman. Cushman subsequently entered a full appearance on behalf of the defendant and represented him throughout his trial, which began in December, 2015. A We first address whether the defendant had a sixth amendment right to counsel of choice that was implicated by the court's decision to grant Hassett's motion to withdraw over the defendant's objection. Whether the defendant's constitutional right to counsel of choice was implicated presents a question of law, over which our review is plenary. See State v. Peeler , 320 Conn. 567, 578, 133 A.3d 864, cert. denied, - U.S. -, 137 S.Ct. 110, 196 L.Ed.2d 89 (2016). The United States Supreme Court has stated that although "the right to select and be represented by one's preferred attorney is comprehended by the [s]ixth [a]mendment, the essential aim of the [a]mendment is to guarantee an effective advocate for each criminal defendant rather than to ensure that a defendant will inexorably be represented by the lawyer whom he prefers." Wheat v. United States , 486 U.S. 153, 159, 108 S.Ct. 1692, 100 L.Ed.2d 140 (1988). Indeed, "[t]he [s]ixth [a]mendment right to choose one's own counsel is circumscribed in several important respects . [including that] a defendant may not insist on representation by an attorney he cannot afford or who for other reasons declines to represent the defendant. " (Emphasis added.) Id."[T]he [s]ixth [a]mendment simply does not provide an inexorable right to representation by a criminal defendant's preferred lawyer.... [T]here is no constitutional right to representation by a particular attorney." (Citations omitted; internal quotation marks omitted.) United States v. Hughey , 147 F.3d 423, 428 (5th Cir.), cert. denied, 525 U.S. 1030, 119 S.Ct. 569, 142 L.Ed.2d 474 (1998) ; see also State v. Peeler , supra, 320 Conn. at 579, 133 A.3d 864 ; State v. Fernandez , 254 Conn. 637, 651, 758 A.2d 842 (2000) ("[T]he right to counsel of one's choice is not without limitation.... We never have held that the right to counsel necessarily encompasses the right to a specific attorney." [Citation omitted.] ), cert. denied, 532 U.S. 913, 121 S.Ct. 1247, 149 L.Ed.2d 153 (2001). Accordingly, we reject the defendant's claim that his sixth amendment right to counsel of choice was implicated by the motion to withdraw filed by Hassett. B Because we conclude that the motion to withdraw did not implicate the defendant's sixth amendment right to counsel, we need only determine whether the court abused its discretion in granting the motion. The defendant argues that the court improperly granted the motion because it failed to ensure that the notice and good cause requirements set forth in Practice Book § 3-10 (a) had been met. We disagree. We review the trial court's granting of a motion to withdraw pursuant to an abuse of discretion standard. State v. Gamer , 152 Conn. App. 1, 33, 95 A.3d 1223 (2014). Practice Book § 3-10 (a) provides in relevant part that "[n]o motion for withdrawal of appearance shall be granted unless good cause is shown and until the judicial authority is satisfied that reasonable notice has been given to other attorneys of record and that the party represented by the attorney was served with the motion and the notice required by this section or that the attorney has made reasonable efforts to serve such party...." The defendant first argues that the court improperly granted Hassett's motion to withdraw because the motion was filed the same day that it was argued and, therefore, did not comply with the notice requirements set forth in Practice Book § 3-10 (a). The defendant further argues that, because of this, he was not allowed an opportunity to repair his relationship with Hassett. Although it is true that Hassett did not file his written motion to withdraw before the court heard argument, the record makes clear that the defendant had actual notice of Hassett's intention to withdraw. In addressing the defendant, the court asked, "Mr. Dijmarescu, your attorney has indicated that it is his wish . that he no longer work with you on the criminal charge that is pending in this court today," to which the defendant responded, "[t ]hat's what I was told , Your Honor. Yes." (Emphasis added.) It is therefore apparent that the defendant was aware of Hassett's intention to withdraw prior to the court's consideration of the motion. Thus, although Hassett's motion was technically filed the same day it was addressed by the court, he nevertheless complied with the purpose of the notice provision set forth in Practice Book § 3-10 (a), which is "to inform the court, other attorneys of record, and the party represented by the attorney that he or she is seeking permission to withdraw." State v. Gamer , supra, 152 Conn. App. at 34, 95 A.3d 1223 ; see State v. Fernandez , supra, 254 Conn. at 650, 758 A.2d 842 (court did not abuse discretion in granting defense counsel's oral motion to withdraw where defendant's brother was present in court that day to accept from counsel unearned portion of retainer, making it unlikely that defendant was unaware of counsel's intention); see also State v. Gamer , supra, at 34, 95 A.3d 1223 (court did not abuse discretion in granting defense counsel's motion to withdraw even though motion did not specify date and time of hearing). Next, the defendant argues that the court abused its discretion in granting Hassett's motion to withdraw because it failed to make a finding of good cause as required by Practice Book § 3-10 (a). The defendant asserts that the court's conclusion that "communication ha[d] broken down" between Hassett and the defendant was insufficient. Rule 1.16 (b) of the Rules of Professional Conduct dictates when a lawyer may properly terminate representation, and provides, in relevant part, that "[e]xcept as stated in subsection (c), a lawyer may withdraw from representing a client if: (1) withdrawal can be accomplished without material adverse effect on the interests of the client . (6) the representation will result in an unreasonable financial burden on the lawyer or has been rendered unreasonably difficult by the client ; or (7) other good cause for withdrawal exists." (Emphasis added.) Thus, in accordance with rule 1.16 (b) (1), withdrawal is appropriate for any reason provided that it will not have a materially adverse effect on the client. Additionally, withdrawal is also appropriate if the representation has been rendered unreasonably difficult by the client. Thus, a breakdown in communication between attorney and client may properly constitute good cause to withdraw as counsel. See State v. Gamer , supra, 152 Conn. App. at 34-35, 95 A.3d 1223. Furthermore, to the extent that the court did not sufficiently explain, in detail, why it determined that Hassett had demonstrated good cause to withdraw, we conclude that any failure to do so did not result in an abuse of discretion because the court was entitled to rely on the representations of Hassett, who indicated that the defendant had made representation by him unreasonably difficult. "A trial court is entitled to rely on the representations of counsel, who is an officer of the court.... [I]t has long been the practice that a trial court may rely upon certain representations made to it by attorneys, who are officers of the court and bound to make truthful statements of fact or law to the court." (Citation omitted; internal quotation marks omitted.) Id., at 35, 95 A.3d 1223. Thus, we can assume that, in making its ruling, the court properly considered representations made to it by Hassett that he (1) tried to prepare the defendant for trial and met some resistance, and (2) had difficulty getting the defendant to cooperate with him-both of which support the court's conclusion that Hassett had good cause to withdraw as counsel. Moreover, the motion was filed long before trial actually commenced, and the defendant has not demonstrated any material adverse effect on him related to the timing of Hassett's withdrawal. We conclude, therefore, that the court did not abuse its discretion in granting Hassett's motion to withdraw. II The defendant next claims that the court improperly admitted evidence of his uncharged misconduct at trial. Specifically, the defendant argues that the evidence should have been excluded because (1) the state's failure to timely disclose it was prejudicial to the defendant, and (2) the evidence was not relevant or material to the defendant's intent, motive, or malice to engage in the charged conduct. For reasons we address fully below, we need not determine whether the court's admission of the uncharged misconduct evidence constituted an abuse of discretion because we conclude that any error was harmless. The following additional facts and procedural history are relevant to the resolution of this claim. On December 26, 2013, the defense filed a motion for notice of uncharged misconduct. On August 14, 2014, the defense made a request for disclosure regarding any uncharged misconduct that the state intended to offer at trial. The state did not provide notice of its intent to offer uncharged misconduct evidence at that time. On December 7, 2015, jury selection began. On that same day, the state notified the defendant, for the first time, of its intent to offer evidence of the defendant's uncharged misconduct. In its notice of intent, the state revealed that the uncharged misconduct evidence would be offered through the testimony of L, although it did not specify the particular acts of uncharged misconduct. The state also argued in its notice of intent that the uncharged misconduct of the defendant was relevant to show the defendant's intent, motive, and malice to engage in the charged conduct, as well as to corroborate crucial prosecution testimony. On December 10, 2015, the defendant filed a motion in limine, in which he sought to preclude the admission of any uncharged misconduct evidence. The defendant argued that such evidence should be precluded at trial because (1) the state's untimely notice of its intent to offer uncharged misconduct evidence violated the defendant's right to due process, and (2) the prejudicial effect of the evidence outweighed its probative value. On December 10 and 11, 2015, the court addressed the defendant's motion in limine. On the latter date, the state specified that it intended to offer evidence, through the testimony of L, of an incident that occurred on Mount Everest in 2004 during which the defendant allegedly struck L and knocked her unconscious. The court then issued a "preliminary" ruling denying the defendant's motion but stated that it would reserve the right to make a final judgment until it heard L's prospective testimony. On December 14, 2015, the state made an offer of proof outside the presence of the jury, through the testimony of L, regarding the defendant's uncharged misconduct. L testified that she and the defendant successfully summited Mount Everest in 2004 with a number of other individuals, and that the group stopped at base camp for a period of time during their descent from the mountain. L further testified that, while at base camp, she went into the dining tent to speak with the defendant about his poor treatment of their fellow climbers. L alleged that the defendant then became angry and punched her in her head, causing her to lose consciousness. When she woke up, she temporarily was unable to see through one of her eyes because blood had accumulated in it. After the state made its offer of proof, the court denied the defendant's motion in limine. With respect to the state's untimely disclosure of its intent to offer such evidence, the court determined that the defendant had not been prejudiced because "while the state was a little tardy in announcing the testimony about this incident, the defense has had it for approximately one year." The court appeared to be referencing the fact that, during the parties' divorce proceedings, L testified about the same alleged incident. The court further concluded that the evidence was more probative than prejudicial, provided that a proper limiting instruction was given to the jury. At trial, L testified consistent with the state's proffer. Her testimony was followed by a limiting instruction concerning the proper purpose for which the evidence could be considered by the jury. The court gave a similar instruction during its final charge. We now turn to the relevant law. Section 4-5 of the Connecticut Code of Evidence governs the admission of uncharged misconduct evidence, and provides that "[e]vidence of other crimes, wrongs or acts of a person is inadmissible to prove the bad character, propensity, or criminal tendencies of that person except as provided in subsection (b)." Conn. Code Evid. § 4-5 (a). Under § 4-5 (c), however, "[e]vidence of other crimes, wrongs or acts of a person is admissible for purposes other than those specified in subsection (a), such as 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." (Emphasis added.) Conn. Code Evid. § 4-5 (c). "To determine whether evidence of . [uncharged] 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 out-weigh the prejudicial effect of the . [uncharged misconduct] evidence.... Since 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 when it has abused its discretion or an injustice has occurred." (Internal quotation marks omitted.) State v. Urbanowski , 163 Conn. App. 377, 402-403, 136 A.3d 236 (2016), aff'd, 327 Conn. 169, 172 A.3d 201 (2017). The defendant argues that the court abused its discretion in admitting the uncharged misconduct testimony because (1) the state's failure to timely disclose it was prejudicial to him, and (2) the evidence was not relevant or material to the defendant's intent, motive, or malice in engaging in the charged conduct. Ordinarily, we would begin with an analysis of whether the court abused its discretion in admitting the uncharged misconduct evidence. See id. At oral argument before this court, however, the state conceded, despite arguing otherwise in its brief, that the trial court abused its discretion in admitting the uncharged misconduct evidence. Instead, the state argued that such error was harmless. Thus, for the purposes of our analysis, we will assume, without deciding, that the court abused its discretion in admitting the uncharged misconduct evidence and, therefore, need only determine whether the admission of the evidence was harmless. "The defendant bears the burden of showing that a nonconstitutional evidentiary error, such as the improper admission of prior uncharged misconduct . was harmful." State v. Martin V. , 102 Conn. App. 381, 388, 926 A.2d 49, cert. denied, 284 Conn. 911, 931 A.2d 933 (2007). "[W]hether [an improper evidentiary ruling that is not constitutional in nature] is harmless in a particular case depends on 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 [improperly admitted] 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. Urbanowski , supra, 163 Conn. App. at 407, 136 A.3d 236. We begin with the "most relevant factors to be considered," which are "the strength of the state's case and the impact of the improperly admitted evidence on the trier of fact." (Internal quotation marks omitted.) State v. Michael A. , 99 Conn. App. 251, 270-71, 913 A.2d 1081 (2007). With respect to the strength of the state's case, we conclude that there was overwhelming evidence to support the defendant's conviction of breach of the peace in the second degree. Section 53a-181 (a) provides in relevant part that "[a] person is guilty of breach of the peace in the second degree when, with intent to cause inconvenience, annoyance or alarm, or recklessly creating a risk thereof, such person . (2) assaults or strikes another ." With respect to the evidence that the defendant struck L, L testified that the defendant grabbed her by her hair and slammed the right hand side of her head into the kitchen table. Her testimony was strongly corroborated by both Officer Steven Chesworth of the Hartford Police Department, who testified that he found L holding her head when he responded to the scene, as well as Sheila Coleman, who worked at the women's shelter that L and her daughters were subsequently transported to, and similarly testified that L repeatedly touched the side of her head during her intake interview. Moreover, L was consistent in her claim that the defendant had struck her, as evidenced by the medical record of L's trip to the emergency room that night. The report, which was admitted as a full exhibit at trial and read to the jury, revealed that she told her treating physician that she was assaulted by her husband, who grabbed her by her hair and pushed her against a wood table, and that L complained of pain on the right side of her head. Finally, L testified that the defendant "tried to grab [her] and tried to twist [her] like a crocodile," and the medical record noted that she had sustained "scratch marks on her left forearm ." With respect to the evidence that the defendant intended to cause alarm to L, L testified that, as a result of the defendant's abuse, she feared him and did not want to return to the marital home. This testimony was also strongly corroborated by Chesworth, who testified that, when he arrived on the scene, L was "visibly upset," her hands were shaking, and he could "tell something happened ." He further testified that L made it very clear that she did not feel safe staying at the marital home, and in fact refused to return. Coleman similarly testified that L was visibly shaken when she arrived at the shelter. Perhaps most notably, L's testimony that she feared the defendant was corroborated by her own actions. Critically, despite the fact that she grew up in a different country, barely spoke English, and did not have a job, L never returned to the marital home after July 1, 2012. Instead, she and her two daughters lived in a women's shelter for eight months before moving to an apartment in West Hartford. Thus, because the defendant struck L, and because she suffered fear and emotional turmoil as a result of his actions, the jury was free to infer that the defendant intended the natural result of those actions. See State v. Ortiz , 312 Conn. 551, 565, 93 A.3d 1128 (2014) ("it is a permissible . inference that a defendant intended the natural consequences of his voluntary conduct" [emphasis omitted; internal quotation marks omitted] ); see also State v. VanDeusen , 160 Conn. App. 815, 826, 126 A.3d 604 (jury may properly infer that defendant intended natural consequences of his actions), cert. denied, 320 Conn. 903, 127 A.3d 187 (2015). In sum, considering the testimony of L, Chesworth, and Coleman, there was overwhelming evidence that the defendant intended to cause alarm to L by striking her. See State v. Franko , 142 Conn. App. 451, 470, 64 A.3d 807 (state's case strong in part because "[n]umerous law enforcement officers corroborated the fact that the victim was . visibly upset"; physical evidence of victim's scratches consistent with victim being struck), cert. denied, 310 Conn. 901, 75 A.3d 30 (2013). We next consider the impact of the uncharged misconduct evidence on the trier of fact. The principal issue in this case was whether the defendant did, in fact, strike L. The danger in a court improperly admitting evidence of the defendant's uncharged misconduct is that the jury will hear that evidence and assume that, because the defendant committed similar acts in the past, he or she is guilty of the charged offense. See State v. Bell , 152 Conn. App. 570, 582, 99 A.3d 1188 (2014). Thus, in the present case, the evidence admitted relating to the 2004 Mount Everest incident carried with it the risk that the jury would simply assume that the defendant struck L on July 1, 2012, because he had done so in the past. The risk that the jury would simply assume that the defendant has a general propensity to engage in the abusive behaviors toward L, however, was mitigated in part by the fact that the court issued a limiting instruction immediately following L's testimony and then again during its final charge to the jury regarding the proper purpose for which the uncharged misconduct could be considered. Absent evidence suggesting otherwise, we assume that the jury followed the court's instructions and did not consider the uncharged misconduct evidence for that improper purpose. Id., at 583, 99 A.3d 1188 ("[t]he jury is presumed to follow the instructions in full"). Thus, "any harm caused by the uncharged misconduct testimony was minimized by the court's limiting instruction." Id. Another factor to consider in determining whether the uncharged misconduct evidence prejudicially impacted the jury is the extent to which cross-examination of L, the state's key witness, was permitted. See State v. Urbanowski , supra, 163 Conn. App. at 407, 136 A.3d 236. In this case, defense counsel engaged in an extensive cross-examination of L intended to undermine her credibility and to present her as an instigator of any violence between her and the defendant. For example, with respect to the 2004 Mount Everest incident, defense counsel asked L whether it was true that she had (1) attacked a fellow climber on the trip because she was jealous that the climber had spent time with the defendant, (2) barged into the dining tent screaming at the defendant and asking for a divorce, and (3) told an attorney that an article written about the 2004 Mount Everest incident between her and her husband was fabricated. Defense counsel also asked L a series of questions relating to the July 1, 2012 incident, which gave rise to the charges against the defendant, in an effort to challenge her allegations that the defendant had attacked her and to suggest that it was L, in fact, who had attacked him. Specifically, defense counsel asked L whether it was true that, on July 1, 2012, she (1) yelled at the defendant, (2) threw an onion at the defendant, (3) lunged at the defendant, (4) did not call 911, (5) refused medical treatment, and (6) did not sustain any head injuries. In addition, defense counsel cross-examined L regarding a 2009 incident during which she allegedly called 911 because the defendant was about to leave on a climbing expedition and she was worried that he was going to have an extramarital affair. It is clear, therefore, that the defendant had the opportunity to cross-examine L extensively with respect to both the uncharged and charged conduct. The defendant argues that L's allegations regarding the 2004 Mount Everest incident were far more serious than the charged conduct, therefore strengthening the likelihood that the uncharged misconduct evidence was harmful. The two acts of abuse, however, are fairly similar. With respect to both the uncharged and charged conduct, L alleged that the defendant hit her in the head. We cannot conclude that punching her in the side of the head is more or less severe than repeatedly slamming her head into a wooden table. Certainly, the defendant's alleged conduct in the 2004 incident was not so much more severe than the charged conduct such that there was a substantial risk that the passions of the jury would be unduly aroused or swayed by emotion in assessing the other evidence against the defendant. The defendant also argues that the uncharged misconduct was harmful because the state mentioned it at the very end of its rebuttal closing argument, making it the last point the jury heard before beginning its deliberation. That instance, however, was the only mention by the state of the uncharged misconduct during the entirety of its closing and rebuttal arguments. In fact, rather than relying on the uncharged misconduct evidence, the state focused on the evidence relating to the charged offenses. Moreover, the one time the state did mention the uncharged misconduct evidence during its closing argument, it followed the reference with a reminder to the jury that "[t]he 2004 events are both in for a limited purpose. They're in for one purpose, and that is basically to show the defendant's malice, animus toward [L], and his intent to harm her; that's what they're in for." Thus, it is unlikely that the state's reference to the Mount Everest incident during closing argument improperly influenced the jury. In light of the overwhelming evidence supporting the defendant's conviction of breach of the peace in the second degree, the court's limiting instructions regarding the proper purpose for which the uncharged misconduct evidence could be considered, and the extent to which cross-examination of L was permitted, we are not persuaded that the defendant has met his burden to establish that the court's admission of the uncharged misconduct evidence substantially affected the verdict. We conclude, therefore, that the admission of such evidence was harmless and reject the defendant's claim. III Finally, the defendant claims that the court's failure to canvass him regarding his decision to testify violated his right against self-incrimination, as guaranteed by the fifth and fourteenth amendments to the federal constitution. The defendant argues that, in the absence of a canvass, his waiver of that right was not intelligent and voluntary. We disagree. To begin, we note that "[w]hether the defendant waived . fifth amendment privileges is a mixed question of law and fact over which our review is de novo." State v. Ross , 269 Conn. 213, 291, 849 A.2d 648 (2004). It is well established that there is no constitutional obligation on the court to canvass the defendant before he or she takes the witness stand and testifies. See State v. Woods , 297 Conn. 569, 573-77, 4 A.3d 236 (2010). Rather, because "a criminal defendant's decision to testify is often strategic or tactical, and is made only after serious consultation with counsel about the advantages and disadvantages thereof, it is one we are disinclined to second guess . We can only assume, without more than a bare assertion to the contrary, that counsel provided the defendant with the information necessary to make an informed decision whether to testify." (Internal quotation marks omitted.) Id., at 576, 4 A.3d 236, quoting State v. Castonguay , 218 Conn. 486, 492 n.2, 590 A.2d 901 (1991). Thus, because the defendant in the present case was represented by counsel throughout his trial, the court was under no obligation to inquire of the defendant whether his decision to testify was intelligent and voluntary. The defendant argues that even if no such constitutional requirement exists, this court should exercise its supervisory authority over the administration of justice and impose one. Specifically, the defendant argues that requiring a court to canvass a defendant regarding his right against self-incrimination before he testifies would be more impactful than consultation with an attorney. We decline the defendant's request to exercise our supervisory authority. "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.) State v. Elson , 311 Conn. 726, 765, 91 A.3d 862 (2014). We remain unpersuaded that the circumstances of the present case call for such an extraordinary remedy. See In re Daniel N. , 323 Conn. 640, 647-48, 150 A.3d 657 (2016) ("In almost all cases, [c]onstitutional, statutory and procedural limitations are generally adequate to protect the rights of the [appellant] and the integrity of the judicial system.... [O]nly in the rare circumstance [in which] these traditional protections are inadequate to ensure the fair and just administration of the courts will we exercise our supervisory authority ." [Citation omitted; internal quotation marks omitted.] ). Moreover, in light of State v. Woods , supra, 297 Conn. at 569, 4 A.3d 236, and State v. Castonguay , supra, 218 Conn. at 486, 590 A.2d 901, we conclude that any determination of whether a court should be required to canvass a defendant regarding his right against self-incrimination before he testifies is better left to our Supreme Court. The judgment is affirmed. In this opinion the other judges concurred. In accordance with our policy of protecting the privacy interests of the victims of family violence, we decline to identify the victim or others through whom the victim's identity may be ascertained. See General Statutes § 54-86e. L testified at trial that the defendant grabbed her by her hair and then twice slammed her head into the kitchen table. The jury ultimately found the defendant not guilty of assault in the third degree, which requires that the state prove physical injury. Although L suffered "several scratches to her left forearm," her medical records did not include any medical findings as to any visible injuries to her head, and only noted that she self-reported a headache and right ear pain. Thus, the jury may have declined to find the defendant guilty of the assault charge in the absence of evidence in L's medical records that she sustained physical injury to her head. Regardless, the jury must have found that the defendant struck L because it found him guilty of breach of the peace in the second degree in accordance with the state's allegation in count two of the information that the defendant struck L with the intent to cause alarm. The defendant has not raised a sufficiency of the evidence claim on appeal. The defendant testified that on July 1, 2012, he and L got into an argument because he asked her to make his father dinner and she became angry and attacked him. He further testified that he did not strike her at any point but had to put his hands up to defend himself. Hassett, who also represented the defendant in his dissolution of marriage case, did not seek to withdraw in that matter. Typically, a defendant's right to counsel of choice is implicated in circumstances in which both the defendant and the attorney want the representation to continue, but a third party moves to disqualify the attorney for one or more reasons. See, e.g., State v. Peeler , 265 Conn. 460, 465-68, 828 A.2d 1216 (2003), cert. denied, 541 U.S. 1029, 124 S.Ct. 2094, 158 L.Ed.2d 710 (2004). In circumstances in which a defendant's private attorney seeks to withdraw from representing the defendant, however, all the sixth amendment demands is "a reasonable opportunity to retain new counsel ." State v. Fernandez , supra, 254 Conn. at 650, 758 A.2d 842. Here, the defendant was permitted six weeks to obtain new private counsel, which was a sufficient period of time for sixth amendment purposes. See id. (two weeks was reasonable opportunity to seek new counsel). In a related context, our Supreme Court has been mindful of the dangers in forcing an attorney to represent a client in circumstances "devoid of the mutual trust and confidence that is critical to the attorney-client relationship. Such a strained and coerced relationship is inconsistent with the notion of the attorney-client relationship. The court should not perform such a shotgun wedding." Matza v. Matza , 226 Conn. 166, 184, 627 A.2d 414 (1993). The defendant further argues that even if the court did comply with the provisions set forth in Practice Book § 3-10 (a) in granting Hassett's motion to withdraw as counsel, any such finding of good cause was improper because the sole reason why Hassett wanted to withdraw was that he disagreed with the defendant's decision to go to trial. Hassett, however, represented to the court several valid reasons why he believed that withdrawal was appropriate apart from the defendant's insistence on going to trial. We therefore reject the factual premise of the defendant's argument. The state also notified the defendant that it intended to introduce uncharged misconduct evidence through the testimony of one other individual, but no such evidence was presented at trial. The court instructed the jury that "[t]here has been some testimony of acts of prior misconduct on the part of the defendant. Now, this is not being offered to prove bad character, propensity or criminal tendencies. Such evidence is admitted solely to show [that] if it, in your mind, does show the defendant's intent, malice upon the part of the defendant against the complainant, and a motive for the commission of the crimes that are alleged in today's information. You're not to consider such evidence as establishing a predisposition on the part of [the] defendant to commit any of the crimes charged or to demonstrate a criminal propensity. You may only [consider] such evidence for the three objects I have stated. If it is further found by you that it logically, rationally, and conclusively supports the issues for which it's being offered. If you don't believe it or if you find it does not logically and rationally and conclusively support the issues for which it is offered, that is, intent, malice, and motive, you may not consider it for any other purpose. You may not consider evidence of other misconduct of the defendant for any purposes other than the ones I just told you because it may predispose your mind to believe the defendant may be guilty of the offense here charge[d] or offenses merely because of other misconduct." At oral argument, the court remarked to the assistant state's attorney that "you've essentially acknowledged that it was an abuse of discretion that [the uncharged misconduct evidence] was admitted and you're saying that, despite that, it's harmless," to which the state responded, "[t]hat's right." The court further inquired, "[i]s that correct?" to which the state again responded, "right."

12489365

Oliver HOLMES et al. v. SAFECO INSURANCE COMPANY OF AMERICA

Holmes v. Safeco Ins. Co. of Am.

2017-03-21

AC 37936

1147

1153

157 A.3d 1147

157

West's Atlantic Reporter, Third Series

Connecticut Appellate Court

Connecticut

2021-08-27T20:57:14.014091+00:00

Fastcase

Oliver HOLMES et al. v. SAFECO INSURANCE COMPANY OF AMERICA

Oliver HOLMES et al. v. SAFECO INSURANCE COMPANY OF AMERICA AC 37936 Appellate Court of Connecticut. Argued September 15, 2016 Officially released March 21, 2017 H. Scott Williams, with whom was Edwin L. Doernberger, Trumbull, for the appellant (plaintiffs). Philip T. Newbury, Jr., Hartford, for the appellee (defendant). Beach, Sheldon and Gruendel, Js. The listing of judges reflects their seniority status on this court as of the date of oral argument.

3252

20074

SHELDON, J. The plaintiffs, Oliver Holmes and Hannah Sokol-Holmes, appeal from the summary judgment rendered in favor of the defendant, Safeco Insurance Company of America, on the plaintiffs' claim for breach of contract and breach of the implied covenant of good faith and fair dealing in connection with the defendant's failure and refusal to pay their claim for coverage under their homeowners' insurance policy with the defendant for losses due to ice damming on their property in February of 2011. The court granted the defendant's motion for summary judgment on the ground that the plaintiffs failed to commence an action within one year of the reported date of loss, as required by the time limitation provision of the subject homeowners' insurance policy. On appeal, the plaintiffs argue, as they did before the trial court, that the one year time limitation provision of their policy was superseded as a matter of law by the eighteen month limitation provision of Connecticut's standard fire insurance policy, as set forth in General Statutes (Rev. to 2011) § 38a-307, because the scope of coverage under their homeowners' policy extended to losses caused by fire, which are governed by that statute. For the following reasons, we agree with the trial court that that claim must be rejected in this case, which does not arise from or concern a fire loss, and thus that the court's judgment for the defendant must be affirmed. The trial court set forth the following relevant facts. "The plaintiffs are owners of [residential] property located in New Haven.... The defendant is a New Hampshire corporation with a principal place of business located in Boston, Massachusetts. The plaintiffs purchased a homeowners' insurance policy from the defendant that was effective from July 12, 2010 through July 12, 2011, which insured their New Haven property. The policy insured the residence and personal property located at the residence, and provided replacement cost coverage for damage to the dwelling up to a limit of $685,000, and for damages to personal property up to $479,850. Throughout December, 2010, and through February, 2011, significant snow and ice storms occurred throughout New Haven. During those storms, heavy amounts of snow and ice caused damage to the roofing and exterior walls of the property, resulting in damage to the property and the contents within. "The plaintiffs notified the defendant of the damage to the property on or about June 17, 2011, with a date of loss of February 15, 2011. The defendant inspected the property on June 26, 2011, and issued $9633.10 to the plaintiffs following its determination of the loss that was covered under the policy. On or about July 21, 2011, the plaintiffs obtained an estimate from a contractor for the cost to repair the damage to the home, which the contractor determined to be $271,302.79. The plaintiffs provided additional information, including the estimate, to the defendant. On August 4, 2011, the defendant responded to the estimate, and informed the plaintiffs that it would send a field specialist and an engineer to inspect and reevaluate the damage to the property. On August 11, 2011, the field specialist and engineer prepared separate investigations, and the engineer determined that the damage to the home was the result of long-term wear and tear, and was not the result of the weight of the snow and ice. On October 4, 2011, the defendant denied the plaintiffs' claim, indicating that the loss was not covered. "[The plaintiffs commenced this action on August 15, 2012, by service of process on the defendant . On May 15, 2013, the plaintiffs filed a two count amended complaint, which sounds in breach of contract and breach of duty of good faith and fair dealing.] In the complaint, the plaintiffs allege the following. The additional property damage that occurred as a result of the storms was covered under the terms and conditions of the policy, and the defendant owed the plaintiffs a duty to provide coverage for accidental direct physical loss caused by the snow and ice. The defendant refused, neglected and/or failed to pay the full replacement costs of the plaintiffs' lost and damaged property, in breach of its obligations pursuant to the terms of the policy. Furthermore, [the plaintiffs allege that] by denying the claim, the defendant has breached its duty of good faith and fair dealing owed to the plaintiffs under the policy." On December 18, 2013, the defendant filed a motion for summary judgment in which it asserted, inter alia, that the plaintiffs' action is time-barred because it was not brought within one year of the date of loss as required by their policy. The plaintiffs opposed the defendant's motion for summary judgment on the ground that their action was not barred by the one-year time limitation set forth in their insurance policy because said policy affords coverage against the peril of fire, and is thus a fire insurance policy that is governed by § 38a-307, which affords an insured eighteen months to commence suit. The court heard oral argument on the defendant's motion on December 22, 2014. By way of memorandum of decision dated April 16, 2015, the court granted the defendant's motion for summary judgment on the ground that the plaintiffs' action was subject to the one year time limitation set forth in their homeowners' insurance policy and they had failed to comply with that requirement. In so doing, the trial court explained, inter alia: "The defendant . argues that the plaintiffs' action is time-barred because the policy requires that suit be commenced within one year of the date of loss, the loss here occurred on February 15, 2011, and the plaintiffs did not commence the action until August 15, 2012. The defendant cites the 'Suit Against Us' provision in the plaintiffs' policy which reads: 'No action shall be brought against us unless there has been compliance with the policy provisions and the action is started within one year after the loss or damage.' "The plaintiffs counter that their action was timely filed because it was brought within the eighteen month suit limitations period mandated by . § 38a-307, the Standard Form Fire Policy Statute, as it existed at the time the plaintiffs' policy was in effect. Specifically, the plaintiffs argue that the defendant must conform to all provisions, stipulations, and conditions set forth in General Statutes [Rev. to 2011] § 38a-307 and 38a-308. "The defendant argues in reply that the eighteen month suit limitations period mandated in § 38a-307 applies to standard form fire insurance policies and the plaintiffs' policy is not a fire policy, but rather an 'all-risk policy' that includes coverage for loss resulting from various perils including fire. The defendant points out that § 38a-308 (b) was amended [by No. 12-162, § 3, of the 2012 Public Acts effective] July 1, 2012, to extend the eighteen month suit limitations period mandated in § 38a-307 to other losses besides fire which is further evidence that prior to July 1, 2012, § 38a-307 only applied to fire insurance policies and not all-risk policies such as the plaintiffs'." With that as background, the court distilled the issue before it to "whether the eighteen month suit limitations period mandated in § 38a-307 applie[d] to the plaintiffs' [insurance] policy in the present case." The court concluded that it did not. In so concluding, the court began by reciting the statutory language at issue in this case, and recognizing the interplay between § 38a-307 and 38a-308. The court reasoned, inter alia, that: "At the time the plaintiffs' policy was in effect, General Statutes (Rev. to 2011) § 38a-308 provided in relevant part that: 'No policy or contract of fire insurance shall be made, issued or delivered by any insurer or any agent or representative thereof, on any property in this state, unless it conforms as to all provisions, stipulations, agreements and conditions with the form of policy set forth in section 38a-307.... Such policy shall be clearly designated on the back of the form as 'The Standard Fire Insurance Policy of the State of Connecticut ' . [Section 38a-307 ] is the standard form for fire insurance policies and the standard form mandates that fire insurance policies conform to that section. 'The Connecticut legislature has enacted a standard form of fire insurance, with which all fire insurance policies issued in this state must conform. See General Statutes § 38a-308.' Wasko v. Manella, 269 Conn. 527, 535, 849 A.2d 777 (2004). Section 38a-307 contains the suit limitations provision, which provides that '[n]o suit or action on this policy for the recovery of any claim shall be sustainable in any court of law or equity unless all the requirements of this policy shall have been complied with, and unless commenced within eighteen months next after the inception of the loss.' In reviewing the plaintiffs' policy and comparing it to the standard form fire insurance provision in § 38a-307, it is clear that the policy does not resemble the standard form set forth in § 38a-307. There is no dispute that the plaintiffs' policy in the present case is an 'all-risk' homeowners' policy. " Section 38a-307 provides in relevant part that 'the standard form of fire insurance policy of the state of Connecticut . shall be as follows: In Consideration of the Provisions and Stipulations Herein or Added Hereto . this company . does insure [name of insured] and legal representatives . against all DIRECT LOSS BY FIRE, LIGHTNING AND BY REMOVAL FROM PREMISES ENDANGERED BY THE PERILS INSURED AGAINST IN THIS POLICY .' "A review of the language contained in the standard form fire insurance provisions in § 38a-307 and the plaintiffs' 'all-risk' policy clearly indicates that the plaintiffs' policy is a comprehensive all-risk homeowner's policy that insures against losses and damages from various perils, including the peril of fire. The standard form fire insurance provisions contained in § 38a-307 insures 'against all DIRECT LOSS BY FIRE .' "In addition, '[g]enerally, "all-risk" policies cover all causes of loss unless they are expressly excluded.' [M. Taylor et al., Connecticut Insurance Law (2d Ed. 2013) § 5-1, p. 142.] '[A]ll-risk policies . often contain express written exclusions and implied exceptions that have been developed by the courts over the years.' . Thus, 'a policy of insurance insuring against "all-risks" is to be considered as creating a special type of insurance extending to risks not usually contemplated, and recovery will usually be allowed, at least for all losses of a fortuitous nature, in the absence of fraud or other intentional misconduct of the insured, unless the policy contains a specific provision expressly excluding the loss from coverage.... Named-peril policies on the other hand, only insure against physical damage or loss caused by specific perils listed in the policy. A prime example of a named-peril policy is the standard fire policy .' [M. Taylor et al., supra, § 5-1, p. 142]." (Citation omitted; emphasis in original.) The court also noted that: "General Statutes (Rev. to 2011) § 38a-308 (b) [provides]: 'Any policy or contract which includes, either on an unspecified basis as to coverage or for an indivisible premium, coverage against the peril of fire and substantial coverage against other peril need not comply with the provisions of subsection (a) hereof, provided (1) such policy or contract shall afford coverage, with respect to the peril of fire, not less than the substantial equivalent of the coverage afforded by said standard fire insurance policy, (2) the provisions in relation to mortgagee interests and obligations in said standard fire insurance policy shall be incorporated therein without change, (3) such policy or contract is complete as to all of its terms without reference to any other document and (4) the commissioner is satisfied that such policy or contract complies with the provisions hereof.' " In applying § 38a-308 to this case, the court explained: "[U]pon review of the plaintiff's policy . it is clear that it is not a fire policy, but instead, it is a comprehensive 'all-risk' homeowner's policy that insures against physical losses and damages to the insured's home and personal property from various perils, including the peril of fire. In addition . the policy is complete as to all of its terms without reference to any other document and incorporates the substance of the provisions of the standard form policy with respect to mortgagee interests and obligations." The court concluded that the plaintiffs' homeowners' insurance policy was not a standard fire insurance policy that was governed by § 38a-307, and thus that it "need not comply with the provisions thereof, including the requirement of an eighteen month suit limitation period ." Accordingly, the court applied the one-year time limitation contained in the plaintiffs' insurance policy, and concluded that the plaintiffs did not satisfy that requirement and rendered summary judgment in favor of the defendant. This appeal followed. On appeal, the plaintiffs challenge the summary judgment rendered by the trial court. The plaintiffs do not dispute that their policy required that suit be commenced within one year of the date of loss. They argue, however, as they did before the trial court, that because their policy insured against the peril of fire, it is a fire insurance policy. On that basis, the plaintiffs claim that § 38a-307, the statute that prescribes the guidelines and requirements for standard fire insurance policies, prohibited the defendant from enforcing a suit limitations period shorter than the eighteen months prescribed by that statute. We are not persuaded. Our standard of review in an appeal from the granting of a motion for summary judgment is plenary. "Summary judgment shall be rendered forthwith if the pleadings, affidavits and 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.... The scope of our appellate review depends upon the proper characterization of the rulings made by the trial court.... 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.) Desrosiers v. Diageo North America, Inc., 314 Conn. 773, 781, 105 A.3d 103 (2014). The plaintiffs' claim that their loss is not subject to the one-year time limitation set forth in their homeowners' insurance policy, but, rather is governed by the eighteen month time limitation set forth in § 38a-307, presents an issue of statutory interpretation over which our review is also plenary. "The process of statutory interpretation involves the determination of the meaning of the statutory language as applied to the facts of the case, including the question of whether the language does so apply.... "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.... The test to determine ambiguity is whether the statute, when read in context, is susceptible to more than one reasonable interpretation." (Internal quotation marks omitted.) State v. Adams, 308 Conn. 263, 269-70, 63 A.3d 934 (2013). "As with all issues of statutory interpretation, we look first to the language of the statute.... In construing a statute, common sense must be used and courts must assume that a reasonable and rational result was intended.... Furthermore, [i]t is a basic tenet of statutory construction that the legislature [does] not intend to enact meaningless provisions.... [I]n construing statutes, we presume that there is a purpose behind every sentence, clause, or phrase used in an act and that no part of a statute is superfluous." (Internal quotation marks omitted.) Doe v. West Hartford , 168 Conn.App. 354, 147 A.3d 1083, cert. granted on other grounds, 323 Conn. 936, 151 A.3d 384 (2016). Our plenary review of the record leads us to the conclusion that the judgment of the trial court must be affirmed. In its thorough and well reasoned opinion, the court properly analyzed the application of our statutes governing standard fire insurance policies to the plaintiffs' homeowners' insurance policy. The loss sustained by the plaintiffs in this case was not caused by fire. The insurance policy under which they claim coverage is not a standard fire insurance policy; nor, by its form, does it purport to be a standard fire insurance policy. It is a homeowners' insurance policy that provides coverage for loss sustained by fire and several other perils. The inclusion of coverage against the peril of fire in the policy did not transform that policy, contrary to the plaintiffs' argument, into a standard fire insurance policy. By the plaintiffs' reasoning, if an insurance policy covers loss for fire, all provisions of that policy are subject to the time limitation set forth in § 38a-307 regardless of the cause of the loss. The plaintiffs' argument is belied by the plain language of § 38a-307, which clearly and unambiguously applied only to standard fire insurance policies. There was no language in that statute that could be construed to pertain to any and all policies that provide coverage against the peril of fire. That statute, as it existed at the time of the plaintiffs' loss, was devoid of any mention of all-risk policies. The trial court aptly recognized the distinction between a standard policy and a general homeowners' or all-risk policy that provides coverage for loss caused by fire. That distinction was recognized in § 38a-308, which differentiated between a standard fire insurance policy and an all-risk policy that insures against the peril of fire, in addition to other perils. On the basis of the foregoing, we agree with the trial court's well reasoned decision granting summary judgment in favor of the defendant on the ground that the plaintiffs' action was subject to the provision of their homeowners' insurance policy that required them to file suit within one year from the date of loss but that they failed to do so. The judgment is affirmed. In this opinion the other judges concurred. The plaintiffs' claim is based upon the versions of General Statutes § 38a-307 and 38a-308 that were in effect as of the date of their loss in February of 2011. Hereinafter, all references to § 38a-307 and 38a-308 are to the 2011 revision of those statutes. The trial court also rejected the plaintiffs' claims of estoppel and waiver. They have not challenged those rulings on appeal. The "Suit Against Us" provision of the policy provided: "No action shall be brought against us unless there has been compliance with the policy provisions and the action is started within one year after the loss or damage."

12488053

Marlik MOURNING v. COMMISSIONER OF CORRECTION

Mourning v. Comm'r of Corr.

2016-11-29

AC 37601

1166

1174

150 A.3d 1166

150

West's Atlantic Reporter, Third Series

Connecticut Appellate Court

Connecticut

2021-08-27T20:57:14.005530+00:00

Fastcase

Marlik MOURNING v. COMMISSIONER OF CORRECTION

Marlik MOURNING v. COMMISSIONER OF CORRECTION AC 37601 Appellate Court of Connecticut. Argued September 7, 2016 Officially released November 29, 2016 Peter G. Billings, assigned counsel, with whom, on the brief, was Sean P. Barrett, assigned counsel, New Haven, for the appellant (petitioner). Jennifer F. Miller, deputy assistant state's attorney, with whom, on the brief, were Maureen Platt, state's attorney, and Marc G. Ramia, senior assistant state's attorney, for the appellee (respondent). Lavine, Mullins and Mihalakos, Js.

3476

22687

MULLINS, J. Following the habeas court's denial of his amended petition for a writ of habeas corpus, the petitioner, Marlik Mourning, appeals from the habeas court's denial of his petition for certification to appeal. On appeal, the petitioner claims that the habeas court abused its discretion in denying his petition for certification to appeal because the record established that his criminal trial counsel rendered ineffective assistance by failing to move to exclude the testimony of the state's ballistics expert. We conclude that the court did not abuse its discretion in denying the petition for certification to appeal. Accordingly, we dismiss the appeal. As previously set forth by this court on direct appeal, the jury reasonably could have found the following facts. "In the late evening of July 8, 2003, Lamar Daniels, Deshon Thomas and the [petitioner] gathered in front of an establishment named Cobra's Place in what is known as the Sugar Bowl area of Waterbury, where the [petitioner] and Daniels often sold drugs. There they engaged in an argument with Desmond Williams and the victim, Trevor Salley, who recently had completed a sale in the area. After the argument ended, the individuals dispersed, and Daniels called his cousin, Sherita Norman, requesting that she pick him up. Several minutes later, Norman and her sister, Sharon Norman, arrived and drove Daniels and the [petitioner] away from the Sugar Bowl and back to Sherita Norman's apartment. Daniels entered the apartment and retrieved a silver .38 caliber revolver and an AK-47 assault rifle from a bedroom closet. At some point, Daniels handed the .38 caliber revolver to the [petitioner]. Sherita Norman then drove the [petitioner] and Daniels back to the Sugar Bowl and parked in a lot, enclosed by a fence, located behind Cobra's Place. As the [petitioner] and Daniels approached the fence, they saw the victim and Williams. Daniels called out to them and displayed the rifle, at which point the victim and Williams ran in the opposite direction. Daniels discharged the AK-47 assault rifle several times. The [petitioner] then fired the .38 caliber silver revolver. The gunshot that killed the victim came from the .38 caliber silver revolver fired at the scene. "The [petitioner] subsequently was charged by information with murder, conspiracy to commit murder and criminal possession of a pistol or revolver. After a jury trial, the [petitioner] was found guilty of manslaughter in the first degree with a firearm, conspiracy to commit murder and criminal possession of a pistol or revolver." State v. Mourning , 104 Conn.App. 262, 265-66, 934 A.2d 263, cert. denied, 285 Conn. 903, 938 A.2d 594 (2007). The petitioner was sentenced to a total effective sentence of forty years incarceration, five years of which were mandatory. This court affirmed the petitioner's convictions on appeal. Id., at 288, 934 A.2d 263. On September 19, 2012, the petitioner filed a petition for a writ of habeas corpus, which he amended on October 2, 2014. In his amended petition, the petitioner alleged that his trial counsel, David Channing, had rendered ineffective assistance in numerous ways. The only claim relevant to this appeal, however, is the petitioner's claim that his trial counsel had rendered ineffective assistance by failing to move to exclude the testimony of the state's ballistics expert. On December 17, 2014, the habeas court held an evidentiary hearing on the amended petition. In a memorandum of decision filed on January 2, 2015, the court denied the petitioner's amended petition. The petitioner then filed a petition for certification to appeal, which the habeas court denied. This appeal followed. Additional facts will be set forth as necessary. On appeal, the petitioner claims that the habeas court abused its discretion in denying his petition for certification to appeal because the record established that his trial counsel rendered ineffective assistance by failing to move to exclude the testimony of the state's ballistics expert. We are not persuaded. We first set forth our standard of review. "Faced with the habeas court's denial of certification to appeal, a petitioner's first burden is to demonstrate that the habeas court's ruling constituted an abuse of discretion.... A petitioner may establish an abuse of discretion by demonstrating that the issues are debatable among jurists of reason . [the] court could resolve the issues [in a different manner] . or . the questions are adequate to deserve encouragement to proceed further.... The required determination may be made on the basis of the record before the habeas court and the applicable legal principles.... "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 this court for determining the propriety of the habeas court's denial of the petition for certification. Absent such a showing by the petitioner, the judgment of the habeas court must be affirmed.... "[As it relates to the petitioner's substantive claims] [o]ur standard of review of a habeas court's judgment on ineffective assistance of counsel claims is well settled. 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." (Citation omitted; emphasis omitted; internal quotation marks omitted.) Roger B. v. Commissioner of Correction , 157 Conn.App. 265, 269-70, 116 A.3d 343 (2015). "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.... Because both prongs . must be established for a habeas petitioner to prevail, a court may dismiss a petitioner's claim if he fails to meet either prong.... Accordingly, a court need not determine the deficiency of counsel's performance if consideration of the prejudice prong will be dispositive of the ineffectiveness claim.... "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.... When a [petitioner] challenges a conviction, the question is whether there is a reasonable probability that, absent the errors, the factfinder would have had a reasonable doubt respecting guilt." (Internal quotation marks omitted.) Vazquez v. Commissioner of Correction , 128 Conn.App. 425, 430, 17 A.3d 1089, cert. denied, 301 Conn. 926, 22 A.3d 1277 (2011). In determining whether the habeas court abused its discretion in denying the petition for certification to appeal, we must consider the merits of the petitioner's underlying claims. Accordingly, we now turn to the merits of the petitioner's claim. The petitioner's sole claim on appeal is that trial counsel rendered ineffective assistance by failing to move to exclude the testimony of the state's ballistics expert. Specifically, the petitioner argues that trial counsel's performance was deficient because the conclusions of the ballistics expert "were not grounded in science at all and his expert testimony would not have withstood the admissibility requirements of [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) ] had they been challenged." Moreover, the petitioner claims that trial counsel's failure to exclude that testimony prejudiced him because, if the testimony had been excluded, there is a reasonable probability that the outcome of the trial would have been different. The respondent, the Commissioner of Correction, asserts that trial counsel did not render ineffective assistance. Specifically, the respondent argues that trial counsel's performance was not deficient, and, even if it were, the petitioner has failed to demonstrate that he suffered prejudice as a result of the alleged deficient performance. We agree with the respondent that even if we were to assume, without deciding, that trial counsel performed deficiently, the petitioner has failed to demonstrate that he was prejudiced by trial counsel's alleged deficient performance. The following additional facts are relevant to our review of the petitioner's claim. At the criminal trial, the state's ballistics expert was Marshall Robinson, a firearms examiner employed by the city of Waterbury. Robinson first testified as to the principles underlying the field of ballistics and the techniques he uses in identifying the firearm from which a particular bullet was fired. Regarding the petitioner's case, Robinson testified that, after examining the bullet that caused the victim's death, he concluded that it was fired from the .38 caliber revolver that the petitioner had used in the commission of this shooting. He also testified that the .38 caliber bullet that killed the victim could not have been fired from the AK-47 that Daniels, the codefendant, fired at the scene of the crime. Trial counsel did not object to the court recognizing Robinson as an expert in firearms identification. Furthermore, trial counsel did not move to suppress or limit Robinson's testimony, nor did he request a hearing pursuant to State v. Porter , supra, 241 Conn. 57, 698 A.2d 739. At the habeas trial, the petitioner called three witnesses: (1) Robinson, (2) Frank Riccio, a criminal defense attorney, and (3) Alicia Carriquiry, a statistician who researches firearm identification techniques. The respondent did not call any witnesses. Robinson mainly reiterated the testimony he gave at the criminal trial, providing an overview of the methodologies he employs in conducting ballistics analysis. Furthermore, he again opined that the .38 caliber bullet that killed the victim was fired from the revolver that the petitioner used in the shooting and that the bullet could not have been fired from the Daniels' AK-47. The petitioner's habeas counsel also inquired into Robinson's education, training, and professional experience. Riccio testified as to the types of pretrial motions criminal defense counsel might consider filing to controvert ballistics evidence. Carriquiry offered lengthy testimony indicating that she believed, as a result of her research, that ballistics identification techniques may be unreliable. Specifically, she claimed that the field of ballistics lacks scientific validity because (1) practitioners do not use a uniform standard of objective criteria in matching a bullet to a gun, (2) there is insufficient statistical evidence supporting the fundamental assumptions that every gun leaves unique markings and that every gun can reproduce the same markings over time, and (3) there is insufficient data with respect to how often practitioners make erroneous matches and how often coincidental matches occur. On the basis of the foregoing, Carriquiry opined that there was no "scientific basis" for Robinson's conclusions regarding the ballistics evidence in the petitioner's case. On cross-examination, Carriquiry acknowledged that she has never worked in the field of ballistics, that she has never examined a bullet, and that she does not have any training in ballistics. The habeas court denied the amended petition for a writ of habeas corpus on the grounds that trial counsel's performance was not deficient and that the petitioner did not suffer any prejudice even if trial counsel performed deficiently. With respect to prejudice, the habeas court concluded that because "there was sufficient evidence to justify the jury's verdict," there was "almost no likelihood" that the verdict would have been different absent trial counsel's allegedly deficient performance. In particular, the habeas court found that Robinson's testimony "at the trial level and . habeas case" was "clear, coherent, and believable," but that Carriquiry's testimony was not credible. We agree with the habeas court and conclude that the petitioner has failed to demonstrate that he was prejudiced by trial counsel's allegedly deficient performance. Accordingly, the petitioner has not shown that there is a reasonable probability that, but for counsel's failure to move to exclude the testimony of Robinson, the ballistics expert, the result of the criminal trial would have been different. The habeas court rejected the petitioner's prejudice claim on the basis of a credibility determination. In short, it discredited Carriquiry's testimony at the habeas trial, and it credited Robinson's testimony at both the criminal trial and habeas trial. As a result, the habeas court concluded that the impact of Carriquiry's testimony on the "believability of [Robinson's] testimony and conclusion" was "minimal at best," and, therefore, such testimony did not sufficiently demonstrate that trial counsel's challenge to Robinson's testimony at the criminal trial would have been successful. Accordingly, because Carriquiry's testimony was the only evidence supporting the petitioner's claim that the result of his criminal trial would have been different had trial counsel moved to exclude Robinson's testimony, this claim must necessarily fail. "It is well settled that the credibility of an expert witness is a matter to be determined by the trier of fact." Hayes v. Manchester Memorial Hospital , 38 Conn.App. 471, 474, 661 A.2d 123, cert. denied, 235 Conn. 922, 666 A.2d 1185 (1995). "The credibility of expert witnesses and the weight to be given to their testimony . is determined by the trier of fact." (Internal quotation marks omitted.) State v. James , 120 Conn.App. 382, 390, 991 A.2d 700, cert. denied, 297 Conn. 911, 995 A.2d 639 (2010). "[T]his 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." (Internal quotation marks omitted.) Fine v. Commissioner of Correction , 163 Conn.App. 77, 82-83, 134 A.3d 682, cert. denied, 320 Conn. 925, 133 A.3d 879 (2016). As a result, we conclude that the habeas court did not abuse its discretion in denying the petition for certification to appeal. The petitioner has not demonstrated that the issues he raises on appeal are debatable among jurists of reason, that a court could resolve the issues in a different manner, or that the questions raised deserve encouragement to proceed further. The appeal is dismissed. In this opinion the other judges concurred. Initially, the petitioner's amended petition contained ten counts. Prior to trial, the petitioner withdrew five counts. Additionally, the habeas court "summarily dismissed" two of the petitioner's remaining five counts because he abandoned those claims by failing to prosecute them at trial. As a result, only three counts were before the habeas court at trial. Those counts were the following: "Count Three-Ineffective Assistance of Trial Counsel: Failure to Challenge the State's Firearms Identification Expert"; "Count Four-Violation of Due Process of Law: Failure to Challenge State's Firearms Identification Expert"; and "Count Five-Ineffective Assistance of Trial Counsel: Failure to Support Defense." (Internal quotation marks omitted.) On appeal, the petitioner has not raised any of the seven counts that he withdrew or abandoned. With respect to the remaining three counts that were before the habeas court, the petitioner in this appeal has challenged only the habeas court's resolution of the count alleging that his trial counsel rendered ineffective assistance by not "challeng[ing] the state's firearms identification expert." (Internal quotation marks omitted.) Within that count, the petitioner had alleged in his amended petition that trial counsel's performance was constitutionally deficient in seventeen different ways. In this appeal, however, the petitioner has raised only one of those seventeen grounds, namely, that his trial counsel performed deficiently by failing to "seek to suppress or exclude [the testimony of the state's ballistics expert] pursuant to . State v. Porter, 241 Conn. 57, 67, 73-74, 77-81, 84-90, [698 A.2d 739] (1997) [cert. denied, 523 U.S. 1058, 118 S.Ct. 1384, 140 L.Ed.2d 645 (1998) ] ." Accordingly, we address only this specific claim, and not the other grounds that the petitioner had raised in his amended petition. The respondent also asserts that the petitioner's claim is unreviewable because the habeas court made findings only with respect to the claim that trial counsel performed deficiently by failing to call an expert to rebut the testimony of the ballistics expert, and not to the specific claim that the petitioner has raised on appeal. Indeed, the habeas court framed the issue before it as whether trial counsel performed deficiently by "failing to utilize an expert . to undermine the testimony of [the ballistics expert]," and it stated that the petitioner's claims "all pertain to the . failure to call an expert witness...." In his amended petition, however, the petitioner alleged broadly that trial counsel performed deficiently by not "challeng[ing]" the ballistics expert. Within that allegation, the petitioner listed seventeen distinct ways in which trial counsel should have challenged the testimony of the ballistics expert. See footnote 1 of this opinion. Both calling a rebuttal witness and moving to exclude the testimony of the ballistics expert were included in this list. In concluding that the petitioner was not prejudiced by trial counsel's allegedly deficient performance, the habeas court stated that regarding "the specific deficiencies alleged in the [petition] . there is no merit to any of the points raised by the petitioner." (Emphasis added.) Moreover, at the habeas trial, the petitioner presented the testimony of a criminal defense attorney who opined that trial counsel performed deficiently by not filing a pretrial motion to limit or exclude the testimony of the ballistics expert. Accordingly, after reviewing the record, we conclude that the petitioner's claim was rejected by the habeas court and properly is before this court. "Because both [Strickland ] prongs . must be established for a habeas petitioner to prevail, a court may dismiss a petitioner's claim if he fails to meet either prong." (Internal quotation marks omitted.) Hunnicutt v. Commissioner of Correction, 83 Conn.App. 199, 206, 848 A.2d 1229, cert. denied, 270 Conn. 914, 853 A.2d 527 (2004). "[A] reviewing court can find against a petitioner on either ground, whichever is easier." (Internal quotation marks omitted.) Roger B. v. Commissioner of Correction, supra, 157 Conn. App. at 271, 116 A.3d 343. "Accordingly, a court need not determine the deficiency of counsel's performance if consideration of the prejudice prong will be dispositive of the ineffectiveness claim." Griffin v. Commissioner of Correction, 98 Conn.App. 361, 366, 909 A.2d 60 (2006). In light of the foregoing, we decline to express any opinion on whether trial counsel's performance was deficient in this case. "Beyond [the] general requirements regarding the admissibility of expert testimony, [t]here is a further hurdle to the admissibility of expert testimony when that testimony is based on . scientific [evidence]. In those situations, the scientific evidence that forms the basis for the expert's opinion must undergo a validity assessment to ensure reliability.... In Porter, this court followed the United States Supreme Court's decision in 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 assessing the reliability of the methodology underlying the evidence and whether the evidence at issue is, in fact, derived from and based upon that methodology ." (Citations omitted; internal quotation marks omitted.) Prentice v. Dalco Elec., Inc., 280 Conn. 336, 342-43, 907 A.2d 1204 (2006), cert. denied, 549 U.S. 1266, 127 S.Ct. 1494, 167 L.Ed.2d 230 (2007). In particular, Riccio opined that trial counsel should have challenged the ballistics evidence by filing either a motion to suppress or a motion in limine. He did not, however, specifically suggest that trial counsel should have requested a Porter hearing.

12488052

STATE of Connecticut v. John YATES

State v. Yates

2016-11-22

AC 35731

1154

1166

150 A.3d 1154

150

West's Atlantic Reporter, Third Series

Connecticut Appellate Court

Connecticut

2021-08-27T20:57:14.005530+00:00

Fastcase

STATE of Connecticut v. John YATES

STATE of Connecticut v. John YATES AC 35731 Appellate Court of Connecticut. Argued December 11, 2014 Officially released November 22, 2016 John Yates, self-represented, the appellant (defendant). Jennifer F. Miller, deputy assistant state's attorney, with whom, on the brief, were Maureen Platt, state's attorney, and Eva B. Lenczewski, supervisory assistant state's attorney, for the appellee (state). Lavine, Prescott and Mihalakos, Js. Following oral argument, we stayed this appeal sua sponte, absent objection by the parties, pending our Supreme Court's decision in State v. Francis, 322 Conn. 247, 140 A.3d 927 (2016). The issue before the court in Francis was whether this court properly had determined that a trial court must follow procedures similar to those set forth in Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), before permitting counsel to withdraw from postconviction representation of a defendant in proceedings regarding a motion to correct an illegal sentence. On August 3, 2016, following the official release of the Supreme Court's decision in Francis, we lifted our stay and provided the parties with an opportunity to submit simultaneous supplemental briefs addressing the effect, if any, of the Francis decision on the claims raised in this appeal.

6491

39866

PRESCOTT, J. The defendant, John Yates, appeals from the judgment of the trial court dismissing his motion to correct an illegal sentence. The defendant claims on appeal that the court improperly (1) permitted appointed counsel to withdraw without first requiring him to articulate the reasoning behind his determination that there was no sound basis for the motion to correct an illegal sentence, and (2) concluded that his sentence had not been imposed in an illegal manner. We conclude that only the form of the judgment is improper, and, accordingly, we reverse the judgment dismissing the defendant's motion to correct an illegal sentence and remand the case to the trial court with direction to render judgment denying the defendant's motion. The record reveals the following relevant facts and procedural history. The defendant was arrested and charged in connection with an April 10, 2010 armed robbery of a liquor store. On October 4, 2010, pursuant to a plea agreement reached in accordance with State v. Garvin , 242 Conn. 296, 699 A.2d 921 (1997), the defendant entered guilty pleas to one count of robbery in the first degree in violation of General Statutes § 53a-134 (a) (2) and, on a part B information, to being a persistent dangerous felony offender in violation of General Statutes § 53a-40. In accordance with the Garvin agreement, the court, Damiani, J. , agreed to sentence the defendant to eighteen years of incarceration, suspended after fourteen years, with the right to argue down to a sentence of eighteen years, suspended after twelve years. The court, however, also advised the defendant that he remained exposed to a possible sentence of up to forty-two and one-half years, of which ten years was mandatory, and/or a fine of $ 15,000 if he violated the terms of the Garvin agreement either by failing to appear at the sentencing hearing, which was scheduled for December 7, 2010, or by being arrested with probable cause on any new charges prior to his sentencing. The defendant acknowledged that he understood the terms of the plea agreement. Nevertheless, the defendant did not appear for his sentencing hearing on December 7, 2010. Furthermore, three new arrest warrants were issued for the defendant regarding three robberies that he allegedly committed on November 2, 2010, after entering his plea. The defendant eventually was apprehended, and the court sentenced him on the original robbery and persistent offender charges at a hearing on February 9, 2011. At that hearing, the court concluded that the defendant had violated both conditions of his Garvin agreement. First, the court found that the defendant had failed to appear at the originally scheduled December 7, 2010 sentencing hearing. Second, after the defendant waived his right to a Stevens hearing, the court found on the basis of its review of the three arrest warrants and their affidavits that there was probable cause to support the warrants. On the basis of the defendant's failure to comply with the terms of his plea agreement, the court opted to impose a flat sentence of twenty-two years of incarceration, which, as a result, required the defendant to serve eight years more of unsuspended jail time than the originally agreed upon sentence under the Garvin agreement. On March 18, 2011, the defendant was arraigned on three counts of robbery in the first degree arising from the three new arrest warrants. At that hearing, the following colloquy occurred between Judge Damiani and the defendant: "The Court: [J]ust to make the record clear today, you were before me some time ago after you failed to appear for sentencing on a robbery of a liquor store, I believe, and the indicated sentence was something after-twenty after fourteen, I believe, and you had a right to argue down to twenty after twelve and you failed to show up in court, and then when they did apprehend you, they had these three new robbery warrants against you, and when I sentenced you, I read the affidavits. There was probable cause found by the judge who issued the warrants and I gave you twenty-two years on the old file and your lawyer explained to you, you could have had what they call a Steven 's hearing to force the state to bring in people to show there was probable cause for your new arrest. Remember that? "The Defendant: Yes. "The Court: And you don't want that hearing, right? "The Defendant: No. "The Court: Okay. And then I gave you the twenty-two years for the violation of the Garvin canvass, one for failing to appear in court-I'm going to the same place I told you, so don't be-be worried-and for the-the new arrests. Do you understand that? "The Defendant: Yes. "The Court: Okay. So now I asked the state-there was no sense in bringing these charges, but they bring the charges. The warrants were served against you on the three new robbery cases. The state has-we'll put on the record, they made contact with the victims. I'm going to put you to plea on each of these three robberies and I'm going to be giving you a year in jail on each robbery to run concurrent with each other for one year to serve on these three files-"The Defendant: Yeah. "The Court: -to be concurrent with the twenty-two years that I've-I've already given you the time for these three robberies when I upped you from fourteen to twenty-two. Understood? "The Defendant: Yes." (Emphasis added; footnote added.) The defendant then entered Alford pleas to each of the three robbery charges, and the court rendered sentences in accordance with the preceding canvass. The defendant expressed his appreciation to the court for its fairness in sentencing. Nevertheless, on December 14, 2012, the defendant filed a self-represented motion to correct what he now asserts is an illegal sentence. According to the defendant, his February 9, 2011 sentence was illegal because the court improperly considered as a sentencing factor the three pending arrest warrants and effectively sentenced him for the robberies alleged in those warrants, despite the fact that, at that time, he had not yet been arrested, charged, or arraigned on those alleged robberies. The court, Fasano, J. , appointed a special public defender for the limited purpose of reviewing the defendant's motion to correct and determining if a sound basis for such a motion existed in accordance with State v. Casiano , 282 Conn. 614, 922 A.2d 1065 (2007). On January 30, 2013, the defendant's appointed attorney, Joseph Yamin, reported back to the court. At that time, he indicated to the court that he had reviewed the defendant's motion and researched all the issues raised by the defendant therein. He then stated to the court that he did "not find a sound basis for going forward." The court asked if counsel had already spoken with the defendant, and Yamin responded in the affirmative, indicating that he had spoken with the defendant the day before. The court granted Yamin permission to withdraw his appearance at that time. The court instructed the defendant that he could proceed with the motion to correct by himself, and the defendant elected to continue to prosecute his motion as a self-represented party. The court held a hearing on the merits of the motion to correct an illegal sentence on March 13, 2013. One week later, the court issued a memorandum of decision in which it rejected the defendant's arguments that his sentence was imposed in an illegal manner, and concluded that the sentencing court's consideration of the pending arrest warrants fell well within the scope of information that could be considered by the court at sentencing, citing State v. Huey , 199 Conn. 121, 127, 505 A.2d 1242 (1986). The court found that the sentencing court properly had increased the defendant's sentence by eight years more than the original plea agreement because the defendant had "fail[ed] to appear for sentencing, a Garvin violation, and his picking up three new arrest warrants for which the court found probable cause; arguably, a Stevens violation." The court further explained: "Though, technically, the three arrest warrants had not been served at the time of the sentencing in question, and, therefore, were not new arrests as per Stevens , all parties were aware of the existence of the warrants (alleged street robberies to which the defendant had confessed) at the time of the sentencing; probable cause clearly existed for the arrests as was confirmed by the court, and the defense waived any hearing rights to question the existence of probable cause. To find, under these circumstances, that the technical difference between having three warrants pending and actually being arrested on the warrants places this case outside the parameters of Stevens , would be to exalt form over substance." (Emphasis in original.) Although Judge Fasano did not squarely address the defendant's suggestion that Judge Damiani, in effect, had sentenced him for the three robberies at that time, the court implicitly rejected that argument by noting that the defendant later pleaded guilty to the three robberies, for which he subsequently received concurrent sentences. Despite having addressed the merits of the defendant's motion to correct an illegal sentence, the court indicated that it was dismissing, rather than denying, the motion. This appeal followed. I The defendant first claims that the court improperly granted his appointed counsel's motion to withdraw his appearance without requiring him to articulate the reasoning behind his determination that there was no sound basis to pursue the defendant's motion to correct an illegal sentence. In his initial appellate brief, the defendant asked us to establish a new procedural right that would require an appointed counsel seeking to withdraw from representing a defendant regarding a motion to correct an illegal sentence to file a written memorandum with the court that outlines the claims raised by the defendant, the efforts counsel undertook to investigate the factual and legal bases for those claims, and the factual and legal bases for counsel's conclusion that the motion is frivolous. In response to our requests for supplemental briefing in light of our Supreme Court's recent decision in State v. Francis , 322 Conn. 247, 140 A.3d 927 (2016), however, the defendant modified his claim on appeal, stating in his supplemental brief that the court should not have allowed appointed counsel to withdraw because he failed to inform the defendant or the court, either in writing or orally, of the "reasoning" underlying his conclusion that there was no sound basis for the motion to correct an illegal sentence. Under the circumstances, we are not persuaded. We begin our discussion with Casiano , in which our Supreme Court first established that an indigent defendant has a limited right to postconviction assistance of counsel in connection with a motion to correct an illegal sentence. State v. Casiano , supra, 282 Conn. at 627-28, 922 A.2d 1065. Specifically, according to Casiano, "a defendant has a right to the appointment of counsel for the purpose of determining whether a defendant who wishes to file [a motion to correct an illegal sentence under Practice Book § 43-22 ] has a sound basis for doing so. If appointed counsel determines that such a basis exists, the defendant also has the right to the assistance of such counsel for the purpose of preparing and filing such a motion and, thereafter, for the purpose of any direct appeal from the denial of that motion." Id. There is no discussion in Casiano, however, about what particular procedure should be followed by counsel, or by the trial court, if counsel appointed pursuant to Casiano determines that there is no sound basis for a motion to correct an illegal sentence, including how such a determination should be communicated to counsel's client and to the court. Recently, however, in State v. Francis , supra, 322 Conn. at 247, 140 A.3d 927, our Supreme Court clarified the procedures that should be followed before a court may allow counsel appointed pursuant to Casiano to withdraw from representation. Our Supreme Court first rejected the opinion of this court, as set forth in State v. Francis , 148 Conn.App. 565, 569, 86 A.3d 1059 (2014), rev'd, 322 Conn. 247, 140 A.3d 927 (2016), that courts and appointed counsel should be required to follow Anders- like procedures before counsel can be permitted to withdraw. State v. Francis , supra, 322 Conn. at 251, 140 A.3d 927 ; see also Anders v. California , 386 U.S. 738, 744, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967) (establishing procedures for withdrawal of indigent defendant's appointed counsel in direct criminal appeals). Such procedures arguably could have included the requirements that counsel file a so-called " Anders brief," in which counsel would refer to anything in the record that might arguably support the defendant's position, and that the trial court make its own evaluation, independent of counsel's, regarding the merits of the defendant's claim that his sentence either is illegal or was imposed in an illegal manner. Our Supreme Court in Francis held, however, that "the Anders procedure is not strictly required to safeguard the defendant's statutory right to counsel in the context of a motion to correct an illegal sentence." State v. Francis , supra, 322 Conn. at 251, 140 A.3d 927. The court reasoned that Anders procedures were established to protect a criminal defendant's constitutional right to counsel on a first appeal, and that a defendant's right to appointed counsel in proceedings on a motion to correct an illegal sentence is not constitutional but statutory in nature, and, thus, does not warrant the same level of protection. Id. at 262-63, 140 A.3d 927 ; see also Pennsylvania v. Finley , 481 U.S. 551, 559, 107 S.Ct. 1990, 95 L.Ed.2d 539 (1987) (explaining that "full panoply of procedural protections that the [c]onstitution requires . at trial and on first appeal" are not needed when state elects to provide legal assistance to indigent defendants in postconviction proceedings). The court in Francis reasoned, in part, that unlike the varied and often complex issues that arise in direct criminal appeals, the issues that can be raised in a motion to correct an illegal sentence are far more limited and straightforward in nature, and "the potential merits of such a motion frequently will be apparent to the court and appointed counsel from a simple review of the sentencing record." State v. Francis , supra, at 265, 140 A.3d 927. As to the appropriate procedure to be followed, the Supreme Court in Francis stated as follows: "[If] an indigent defendant requests that counsel be appointed to represent him in connection with the filing of a motion to correct an illegal sentence, the trial court must grant that request for the purpose of determining whether a sound basis exists for the motion. See State v. Casiano , supra, 282 Conn. at 627, 922 A.2d 1065. If, after consulting with the defendant and examining the record and relevant law, counsel determines that no sound basis exists for the defendant to file such a motion, he or she must inform the court and the defendant of the reasons for that conclusion, which can be done either in writing or orally. If the court is persuaded by counsel's reasoning, it should permit counsel to withdraw and advise the defendant of the option of proceeding as a self-represented party." (Footnote omitted.) State v. Francis , supra, 322 Conn. at 267-68, 140 A.3d 927. In the present case, unlike in Francis , the court properly appointed counsel in accordance with Casiano to review the motion after the defendant filed it with the court and prior to any hearing on the merits of the motion. Counsel subsequently indicated to the court orally on the record that he had reviewed the motion, had researched all issues raised by the defendant, and had spoken with the defendant about the motion prior to reporting back to the court regarding his Casiano review. There is no indication that counsel failed to acted within the bounds of professional responsibility in both evaluating the motion as filed by the defendant and identifying any meritorious claim not raised in that motion. See Stephen S. v. Commissioner of Correction , 134 Conn.App. 801, 810, 40 A.3d 796 (counsel strongly presumed to have exercised reasonable professional judgment in making all significant decisions), cert. denied, 304 Conn. 932, 43 A.3d 660 (2012). Counsel indicated that, on the basis of this review, he had determined that there was no sound basis for pursuing the defendant's motion to correct an illegal sentence. It is true that counsel did not provide to the court a detailed discussion or legal analysis of the soundness of the defendant's claims. Nevertheless, in light of the generally limited scope of a motion to correct as recognized in Francis, we are not persuaded that this lacuna constitutes reversible error under the unique circumstances of this case. As discussed more fully in part II of this opinion, a review of the motion and the attached relevant sentencing transcripts reveals that, on its face, the defendant's motion lacks a sound basis to proceed because, among other things, it fails to recognize or challenge the fact that the defendant violated his Garvin agreement by failing to appear for his original sentencing hearing, which violation, in and of itself, exposed him to the sentence imposed by the court. The court had a copy of the defendant's motion before it and had an opportunity to review it, along with its attachments, which include transcripts of the proceedings before Judge Damiani, and the court file of the underlying sentencing record. As the court in Francis predicted, the potential merits of a motion to correct an illegal sentence often will be readily apparent from a simple review of the record. See State v. Francis , supra, 322 Conn. at 265, 140 A.3d 927. Here, the court was in a position to evaluate independently the nature of the claims raised in the motion and, if necessary, to question counsel regarding the reasoning underlying his no sound basis determination. On the basis of the unique record presented here, we are persuaded that counsel's reasoning for his no sound basis determination, although not fully articulated, was readily apparent to all from the face of the record, and it would elevate form over substance to conclude that a remand is necessary to vindicate the newly envisioned procedure set forth in Francis. Accordingly, we conclude that the trial court properly accepted counsel's determination that there was no sound basis for the defendant's motion and permitted him to withdraw from further representation of the defendant. II Turning to the merits of the defendant's motion to correct an illegal sentence, the defendant also claims on appeal that the court improperly determined that his sentence had not been imposed in an illegal manner and, thus, improperly dismissed his motion. The defendant asserts that the court mistakenly relied upon State v. Huey , supra, 199 Conn. at 121, 505 A.2d 1242, which the defendant maintains is irrelevant to his claim that his sentence was imposed in an illegal manner. Specifically, the defendant contends that rather than merely considering the three pending arrest warrants as factors in crafting an appropriate sentence, the court, in essence, sentenced him for the robberies alleged in those warrants. The state counters that the court properly relied on Huey in determining that the sentencing court had not imposed the defendant's sentence in an illegal manner in that the court properly considered the defendant's subsequent criminal conduct as a factor in increasing his sentence, along with his failure to appear for sentencing. The state further contends that the defendant's argument that he was sentenced on the unexecuted arrest warrants at that time simply is belied by the record. We agree with the state. We begin with general legal principles, including our standard of review. "[T]he jurisdiction of the sentencing court terminates once a defendant's sentence has begun, and, therefore, that court may no longer take any action affecting a defendant's sentence unless it expressly has been authorized to act. . Practice Book § 43-22, which provides the trial court with such authority, provides that [t]he judicial authority may at any time correct an illegal sentence or other illegal disposition, or it may correct a sentence imposed in an illegal manner or any other disposition made in an illegal manner. An illegal sentence is essentially one [that] either exceeds the relevant statutory maximum limits, violates a defendant's right against double jeopardy, is ambiguous, or is internally contradictory. . [A] defendant may challenge his or her criminal sentence on the ground that it is illegal by raising the issue on direct appeal or by filing a motion pursuant to § 43-22 with the judicial authority, namely, the trial court." (Citations omitted; internal quotation marks omitted.) State v. Tabone , 279 Conn. 527, 533-34, 902 A.2d 1058 (2006). "Ordinarily, a claim that the trial court improperly denied a defendant's motion to correct an illegal sentence is reviewed pursuant to the abuse of discretion standard." Id. at 534, 902 A.2d 1058. In State v. Huey , supra, 199 Conn. at 126-27, 505 A.2d 1242, our Supreme Court described the broad discretion that a sentencing court has in crafting a sentence and discussed the type of information that a sentencing court properly may consider in imposing a sentence within statutory limits. The court stated in part: "[I]f a sentence is within statutory limits it is not generally subject to modification by a reviewing court. . A sentencing judge has very broad discretion in imposing any sentence within the statutory limits and in exercising that discretion he may and should consider matters that would not be admissible at trial. . To arrive at a just sentence, a sentencing judge may consider information that would be inadmissible for the purpose of determining guilt . evidence of crimes for which the defendant was indicted but neither tried nor convicted . evidence bearing on charges for which the defendant was acquitted . and evidence of counts of an indictment which has been dismissed by the government." (Citations omitted; internal quotation marks omitted.) Id. at 126, 505 A.2d 1242. A trial court's discretion is not completely unfettered; however, "[a]s long as the sentencing judge has a reasonable, persuasive basis for relying on the information which he uses to fashion his ultimate sentence, an appellate court should not interfere with his discretion." Id. at 127, 505 A.2d 1242. Turning to the facts of the present case, the defendant originally entered into a Garvin agreement in which he agreed to plead guilty in exchange for a relatively favorable sentence that, assuming he complied with the terms of the agreement, imposed, at most, fourteen years of unsuspended prison time. That plea was specifically conditioned upon his promises both to appear for sentencing and to not be arrested with probable cause for any additional criminal conduct. The defendant does not claim on appeal that he failed to understand the terms of his Garvin agreement, and he does not challenge the court's factual findings at sentencing that he violated both conditions of that agreement. As the sentencing court correctly explained at the time it took the defendant's plea, his potential exposure if he violated the terms of the Garvin agreement amounted to forty-two and one-half years of incarceration, of which ten were mandatory. Thus, the court's sentence of a flat twenty-two years of incarceration fell well within the legal statutory limits and the defendant's Garvin agreement. The defendant nevertheless argues that the court unlawfully sentenced him because it considered and utilized the three unserved arrest warrants in determining his sentence and suggests that, for all intents and purposes, the court sentenced him for the robberies alleged in those warrants despite the fact that, at the time, he had not been arrested on any new charges. The defendant's arguments lack merit for several reasons. First, even if we were to conclude that, because the three pending warrants had not yet been served, the defendant technically had not breached the "no new arrests" provision of the Garvin agreement, it is undisputed that the defendant also had failed to comply with the Garvin agreement by failing to appear for the originally scheduled sentencing hearing. On the basis of that independent breach alone, the defendant forfeited his right to be sentenced under the Garvin agreement to no more than fourteen years of unsuspended prison time. Having clearly violated at least one aspect of the Garvin agreement, the defendant was now exposed to a possible sentence that included up to forty-two and one-half years of incarceration. Any sentence imposed by Judge Damiani up to that amount based on the defendant's failure to appear for sentencing was expressly permitted by the Garvin agreement and, thus, the sentence of twenty-two years was not imposed in an illegal manner. Second, the defendant makes much of the fact that the three arrest warrants had not yet been served on him at the time of sentencing. The defendant, however, does not challenge Judge Fasano's findings that he was fully aware of the warrants and the allegations that he had committed three additional robberies. It is undisputed that the defendant understood that, pursuant to the Garvin agreement, he was obligated to avoid an arrest on any additional offense for which there was probable cause. In essence, the defendant understood that if he wanted to secure the favorable benefits of the Garvin agreement, he could not engage in any additional criminal conduct prior to sentencing. The defendant elected not to challenge whether the three warrants were supported by probable cause; see State v. Stevens , supra, 278 Conn. at 1, 895 A.2d 771 ; and the sentencing court affirmed that they were. We agree with Judge Fasano's assessment that it would elevate form over substance, for purposes of determining whether the defendant had violated the terms of his Garvin agreement, to recognize any significance between having three valid warrants pending and actually having been arrested on those warrants. Third, as the trial court properly concluded in rejecting the motion to correct an illegal sentence, it was entirely appropriate under the broad discretion afforded to sentencing courts, as set forth in State v. Huey , supra, 199 Conn. at 126-27, 505 A.2d 1242, for the sentencing judge to have considered the pending arrest warrants and affidavits in deciding what sentence to impose in light of the defendant's failure to comply with the terms of the Garvin agreement. The defendant waived his right at the sentencing hearing to challenge whether those warrants were supported by probable cause, and he did not raise any challenge at sentencing concerning the authenticity or reliability of the three warrants. The defendant advanced no argument that the arrest warrants fell outside of the information properly considered by the sentencing court. Accordingly, there is nothing in the record before us to suggest that the warrants lacked the requisite minimal indicium of reliability necessary to be considered at sentencing. Finally, on the basis of our thorough review of the record, including the transcripts provided, we are satisfied that the court did not, as asserted by the defendant, render de facto sentences on the robbery charges associated with the new arrest warrants. It only considered the three additional robbery warrants in deciding to increase the defendant's sentence on the his conviction of the original robbery and persistent offender charges. The defendant was sentenced on those additional robbery charges only after he formally was arrested and had voluntarily entered Alford pleas. In arguing otherwise, the defendant relies on certain statements made by the sentencing judge at his arraignment and sentencing on the three robbery charges. In particular, the defendant references the court's statement that it had "already given [him] the time for these three robberies when [it] upped [him] from fourteen to twenty-two." Although we are aware that the colloquial language used by the court, read in isolation, could be misunderstood, we disagree with the defendant's interpretation that the eight year increase in his sentence on the original robbery and persistent offender charges included additional time directly associated with the three subsequent robberies. In context, the court merely was attempting to explain the basis for its decision to render relatively short and concurrent sentences for those later robberies following the defendant's Alford pleas. Because the court already had factored in the defendant's additional criminal conduct at the time it imposed the earlier sentence, it exercised its discretion to limit the additional sentences accordingly. There is simply no merit to the defendant's claim that the court sentenced him for the robberies prior to taking his plea on those charges. We note that the trial court, having properly rejected the arguments raised in the defendant's motion on their merits, technically should have denied rather than dismissed the motion to correct. Only if a defendant fails to state a claim that brings a motion within the purview of Practice Book § 43-22 should a court dismiss the motion for lack of jurisdiction. Here, the court never made a determination that the motion was jurisdictionally defective. Moreover, the defendant's motion did not merely raise a collateral attack on the judgment of conviction, but, on its face, attacked the legality of the sentence and/or the manner in which his sentence was imposed. Accordingly, the motion properly invoked the court's jurisdiction, and, thus, the form of the judgment is incorrect. See State v. McClean , 167 Conn.App. 781, 785, 144 A.3d 490 (2016). The form of the judgment is improper, the judgment dismissing the defendant's motion to correct an illegal sentence is reversed and the case is remanded with direction to render judgment denying the defendant's motion. In this opinion the other judges concurred. "A Garvin agreement is a conditional plea agreement that has two possible binding outcomes, one that results from the defendant's compliance with the conditions of the plea agreement and one that is triggered by his violation of a condition of the agreement." (Internal quotation marks omitted.) State v. Stevens, 278 Conn. 1, 7, 895 A.2d 771 (2006). The defendant also admitted to a violation of probation. The defendant previously was convicted in 2003 of robbery in the first degree for which he received a sentence of four years suspended after eighteen months, followed by thirty months of probation. The court explained the terms as follows: "If you're not here on that date or if you pick up a new arrest, I read the police report, there's probable cause for the arrest, you're exposed to forty-two and one half years, of which ten is mandatory. Understand that?" To which, the defendant responded: "Yes, Your Honor." The court reiterated: "Make sure you're here and no new arrests." In State v. Stevens, 278 Conn. 1, 11-13, 895 A.2d 771 (2006), our Supreme Court held that an enhanced sentence that is imposed on the basis of a defendant's arrest on new charges prior to sentencing in violation of a Garvin agreement does not violate due process provided that the defendant is given an opportunity to contest whether any such subsequent arrest was supported by probable cause. See also Council v. Commissioner of Correction, 286 Conn. 477, 483-84 n.9, 944 A.2d 340 (2008). At that time, the three arrest warrants had not been served; however, the state later executed the warrants and charged the defendant with three counts of first degree robbery in violation of § 53a-134 (a) (4). We note that Judge Damiani incorrectly recalled the precise terms of the Garvin agreement, which had an upper limit of eighteen years, not twenty. The court's failure to recall the precise terms, however, was inconsequential to the proceedings then before the court, and the error has not been raised by the parties in the present appeal. See North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970). Pursuant to our Supreme Court's decision in Casiano, "[a]lthough the [federal constitutional] right to appointed counsel extends to the first appeal [as] of right, and no further . in Connecticut, a defendant who wishes to file a motion to correct an illegal sentence has a [statutory] right [under § 51-296 (a) ] to the appointment of counsel for the purpose of determining whether . [there exists] a sound basis for doing so. If appointed counsel determines that such a basis exists, the defendant also has the right to the assistance of such counsel for the purpose of preparing and filing such a motion and, thereafter, for the purpose of any direct appeal from the denial of that motion." (Citation omitted; footnote omitted; internal quotation marks omitted.) State v. Francis, 322 Conn. 247, 260, 140 A.3d 927 (2016). The January 30, 2013 colloquy between the court and the parties was as follows: "Attorney Yamin: Good morning, Joseph Yamin for Mr. Yates . As Your Honor, as discussed in chambers, I was appointed pursuant to State v. Casiano to review Mr. Yates' motion to correct an illegal sentence. I have done so. I researched the issues brought up in that motion. At this point in time, I do not find a sound basis for going forward. "The Court: So Attorney [Yamin], have you already talked to the [defendant]? "Attorney Yamin: I have, Your Honor. I spoke with him yesterday. "The Court: All right. Mr. Yates, that doesn't foreclose you from going forward at some point. If you want to continue for the purposes of a hearing, but Attorney [Yamin] has found there's no merit under the guidelines with respect to the motion [to correct an] illegal sentence. The first issue is always whether or not this court even has jurisdiction. At this juncture Attorney [Yamin], after a Casiano review, finds there's no merit. So the motion, if this is by way [of] a motion to withdraw, that would be granted. "Attorney Yamin: He wants me to make clear, Your Honor, that I'm finding there's no sound basis for me to go forward as his attorney. "The Defendant: There could be merit but there's not foundation. "The Court: What's that? "The Defendant: There could be merit but not a sound basis. "The Court: After his review he found that there's no merit to the claim, I'm assuming that's what you're saying. "Attorney Yamin: Pursuant to Casiano, Your Honor, I'm finding no reason for me to go forward, that's correct. "The Court: All right. So, Mr. Yates, I'm going to put this down for a hearing, if you wanted to go forward. "The Defendant: Yes, Your Honor. I would want to go forward with this. I will ask for a two month continuance. "The Court: Well, it's going to be longer than that. "The Defendant: Longer than that. I need time to prepare to go for the case law to find everything on illegal sentence. "The Court: Not a problem. "The Defendant: And adequate time. "The Court: I'm going to put you down for March 13 at 2 p.m. "The Defendant: All right. Thank you very much." Although the court gave the defendant a six week continuance after indicating that the continuance was "going to be longer" than the two months requested, the defendant does not raise this as a claim of error on appeal or suggest that he needed additional time to prepare. Although our Supreme Court reversed the decision of this court, it nevertheless also determined that the trial court had failed to comply properly with Casiano in the first instance by not appointing counsel to review the defendant's motion to correct an illegal sentence to determine whether there was a sound basis for bringing the motion. State v. Francis, supra, 322 Conn. at 259, 140 A.3d 927. Counsel in Francis was "advised of the defendant's motion by the [court clerk] prior to the case being called, and he reviewed the motion and certain other, unspecified files in his office, never describing in detail to the court the substance of any discussions with the defendant about the claims he wished to make in his motion." (Internal quotation marks omitted.) Id. at 268, 140 A.3d 927. The Supreme Court determined that the trial court's error was not harmless because the defendant may have been entitled to assistance in preparing the motion, and because such assistance might have aided the defendant in identifying a meritorious claim. Id. at 269, 140 A.3d 927. The court remanded the case to this court with direction to remand the case to the trial court so that counsel could be appointed to represent the defendant in connection with his motion to correct an illegal sentence. Id. at 270, 140 A.3d 927. "An illegal sentence is essentially one which either exceeds the relevant statutory maximum limits, violates a defendant's right against double jeopardy, is ambiguous, or is internally contradictory. . Sentences imposed in an illegal manner have been defined as being within the relevant statutory limits but . imposed in a way which violates [a] defendant's right . to be addressed personally at sentencing and to speak in mitigation of punishment . or his right to be sentenced by a judge relying on accurate information or considerations solely in the record, or his right that the government keep its plea agreement promises ." (Citation omitted; internal quotation marks omitted.) State v. Parker, 295 Conn. 825, 839, 992 A.2d 1103 (2010). The record indicates that there was also some discussion between the parties and the court in chambers, but no details of that discussion were set forth on the record, and, thus, the record is unclear whether the merits of the motion or the rationale for counsel's sound basis determination were discussed at that time. It is important to note that counsel and trial courts should heed the importance of ensuring that the record contains more than a conclusory statement that there is no sound basis for a motion to correct an illegal sentence before permitting counsel to withdraw. As our Supreme Court stated in Francis, counsel should provide the reasons for such a conclusion both to the court and to the client.

12488038

John GRAHAM, et al. v. OLSON WOOD ASSOCIATES, INC., et al.

Graham v. Olson Wood Assocs., Inc.

2016-12-20

SC 19626

1123

1136

150 A.3d 1123

150

West's Atlantic Reporter, Third Series

Connecticut Supreme Court

Connecticut

2021-08-27T20:57:14.005530+00:00

Fastcase

John GRAHAM, et al. v. OLSON WOOD ASSOCIATES, INC., et al.

John GRAHAM, et al. v. OLSON WOOD ASSOCIATES, INC., et al. SC 19626 Supreme Court of Connecticut. Argued September 20, 2016 Officially Released December 20, 2016 Joseph J. Passaretti, Jr., with whom, on the brief, was Ryan D. Ellard, for the appellant (defendant Connecticut Insurance Guaranty Association). Christopher Meisenkothen, with whom was Catherine Ferrante, for the appellee (plaintiff Carmel Graham). Diane D. Duhamel, with whom, on the brief, was Denise L. Morelli, for the appellees (defendant F.D. Rich Housing Corporation et al.). Rogers, C.J., and Palmer, Zarella, Eveleigh, McDonald, Espinosa and Robinson, Js.

6786

43403

ROBINSON, J. In this appeal, we consider whether a Workers' Compensation Commissioner may reinstate an employer or insurer as a party to proceedings pending on the asbestos docket of the Workers' Compensation Commission (commission) when the claim against that party was dismissed prior to a determination of the claimant's compensability or date of final exposure. The defendant Connecticut Insurance Guaranty Association (association), appeals from the decision of the Workers' Compensation Review Board (board) affirming the decision of the Workers' Compensation Commissioner for the Eighth District (commissioner) granting motions joined by the plaintiff Carmel Graham and the defendants F.D. Rich Housing Corporation (F.D. Rich) and The Hartford Insurance Group (The Hartford) to reinstate the association as a party to proceedings brought pursuant to the Workers' Compensation Act (act), General Statutes § 31-275 et seq. On appeal, the association claims that the commissioner improperly reinstated it to the proceedings because: (1) in the absence of a timely appeal to the board, the order dismissing the claim against the association was a final decision entitled to res judicata effect pursuant to General Statutes § 31-300 and 31-301(a) ; and (2) the motions to reinstate the association did not satisfy the standards necessary to open an award pursuant to General Statutes § 31-315. We conclude that the commissioner properly reinstated the association as a party to the underlying proceedings because the commissioner's broad case management authority under General Statutes § 31-298, which extends to cases on the asbestos docket involving the apportionment of liability under General Statutes § 31-299b, permitted him to render a dismissal that was provisional, rather than final, in nature. Accordingly, we affirm the decision of the board. The record reveals the following undisputed facts and procedural history. In 2006, the plaintiff's decedent, John Graham (decedent); see footnote 4 of this opinion; filed several notices of claim on form 30C with the commission, alleging that he had sustained a lung injury from exposure to asbestos while working for several different employers, including F.D. Rich. The commission assigned the decedent's claims to its asbestos docket for adjudication, after which several informal and preformal hearings took place. After the decedent died in 2008, the plaintiff, his widow, filed a claim for dependent benefits in 2009 that was joined with the original claims. Subsequently, Reliance Insurance Company (Reliance), one of F.D. Rich's workers' compensation insurance carriers, became insolvent, and its liability transferred statutorily to the association. See footnote 1 of this opinion. On January 26, 2011, the commissioner conducted a formal hearing that was attended by numerous attorneys representing the decedent's various employers and their respective workers' compensation carriers, along with the association. The commissioner stated that the purpose of the formal hearing was to "clear the room of who doesn't need to be here and then we will get to the meat of the case at the next session." At that hearing, six of the employers, along with the association, moved to dismiss the claims against them for lack of exposure. With no objection from the plaintiff, the commissioner issued a "revised finding and decision" on June 9, 2011, which granted these motions to dismiss. On November 29, 2012, the commissioner conducted another formal hearing. At that hearing, five of the decedent's other employers and their respective insurers moved to dismiss the claims against them, three of which were granted with the plaintiff's consent. The commissioner then advised counsel for the association, who was present at the hearing as a courtesy to the commission, that: "I think we need to bring [the association] back in, and . you will be on the notice for the next hearing." At that hearing, counsel for The Hartford stated that he had reviewed the record and questioned whether the decedent had any claim arising from a very brief period of employment in the first quarter of 1977, during which The Hartford insured F.D. Rich. Counsel for The Hartford stated that his reading of the record "[involved the association again] as a potential party [defendant] and indeed . potentially a lead [defendant] under [§ 31-299b ]." He asked whether the plaintiff would need further participation from The Hartford, observing that, "if I drop out, then all the more reason for [the association] to become [involved again]." After some additional discussion, counsel for The Hartford agreed to file a motion to dismiss to which the plaintiff could respond after reviewing the record. The commissioner advised counsel for the association that an official request to cite the association back into the proceedings would be forthcoming. Subsequently, on February 6, 2013, the plaintiff filed a motion asking that the association be "cited back into this claim as a [defendant]," in which she contended that the order dismissing it was "interlocutory and provisional and . not an adjudication on the merits of the [plaintiff's] claims or [the association's] defenses." The plaintiff stated that The Hartford had filed a motion to dismiss for lack of causative exposure that, if successful, would have "implicated" the association under § 31-299b because the "next carrier on the risk would [have been] an insolvent carrier," namely, Reliance. On February 14, 2013, The Hartford filed a similar motion, joined by F.D. Rich, seeking to reinstate the association to the proceedings in light of The Hartford's pending motion to dismiss. The association opposed these motions. On January 29, 2014, the commissioner heard arguments from the parties on these motions at a formal hearing. On February 4, 2014, the commissioner granted the motions by the plaintiff and The Hartford to reinstate the association as a party to the case, rejecting the association's argument that the order dismissing it from the case was a "binding judgment and that, absent an appeal [to the board] within [twenty] days, it can only be undone by application of [§] 31-315." Specifically, the commissioner rejected the association's reliance on res judicata principles, observing that the record contained no evidence, findings, or formal stipulations that the association "had no liability to the [plaintiff]." He emphasized that, in "asbestos cases there are often so many potential [defendants] that the administrative preference for 'culling the herd' prior to a formal hearing is understandable. However, until the date of last exposure has been determined-and with it the identity of the party against whom an award would be made under [§] 31-299b-agreements to let out certain parties must be viewed as interlocutory." The commissioner further observed that bringing the association back into the case would not prejudice it or any other party because no exhibits had yet been admitted, the association reserved its right to recall the only witness who had testified, namely, the plaintiff, and the association "will be granted reasonable time to prepare for [the] continuation of the formal hearing." The association appealed from the commissioner's decision to the board. Acknowledging that, "over the years, certain procedural customs and conventions have evolved [that] are unique to the management of the asbestos docket," the board concluded that the governing statutes "provide the framework for assessing the merits of a claim," and that a "close reading" of § 31-299b"indicates quite clearly that the legislature intended that the apportionment of liability among the various [defendants] in these claims can only occur after the conclusion of litigation on the merits of the underlying claim." (Emphasis in original.) The board, therefore, agreed with the commissioner's conclusion that, "until the date of last exposure has been determined-and with it the identity of the party against whom an award would be made under [§] 31-299b-agreements to let out certain parties must be viewed as interlocutory." (Internal quotation marks omitted.) To this end, the board concluded that it did not matter whether the hearing at which the association's motion to dismiss was granted was "formal" or "informal," insofar as the "actual language" of § 31-299b contemplates apportionment only after the adjudication on the merits of the underlying claim. (Emphasis omitted; internal quotation marks omitted.) The board determined that the record demonstrated that the underlying merits of the plaintiff's claim, including compensability, had not yet been adjudicated at the time of the order dismissing the association. The board further observed that "[t]o allow a party to escape liability prematurely because of a procedural irregularity, thereby potentially thwarting an injured claimant's ability to collect an award of benefits, not only does violence to the plain meaning of the statute but also clearly runs counter to the remedial nature and humanitarian purpose of the [act]." Accordingly, the board affirmed the commissioner's decision granting the motions to reinstate the association as a party to this case. This appeal followed. See footnote 2 of this opinion. On appeal, the association claims that, under § 31-300 and 31-301(a), the failure, by the plaintiff and The Hartford, to appeal to the board rendered the commissioner's dismissal a final judgment. The association argues that the board's decision allowing it to be reinstated as a party "circumvented" § 31-300 and 31-301(a), even assuming that § 31-299b does not allow for dismissals of claims against apportionment respondents prior to a formal adjudication as a matter of law. The association contends that the board's characterization of the previous proceedings as having " 'merely excus [ed] [the association] by agreement' is a wild mischaracterization," insofar as there was a formal hearing at which all parties had the opportunity to participate. The association further contends that the plaintiff's decision not to challenge its motion to dismiss was in effect a "[surrender] of [the] claim against" it, and that the board's decision has the effect of creating "different tiers of formal proceedings ." Addressing an issue not reached by the board; see footnote 15 of this opinion; the association also argues that the commissioner improperly invoked § 31-315, which governs motions to open or modify awards, to support his decision to cite the association back into the case. Specifically, the association posits that § 31-315 does not support the commissioner's decision to reinstate it as a party because no conditions of fact changed between its dismissal and reinstatement. In response, the plaintiff contends, inter alia, that "[t]he fluidity with which [defendants] are cited into and dismissed from asbestos disease claims is properly within the procedural discretion of the commissioners," and is consistent with the remedial purpose of the act, which is to provide a simple and efficient procedure that effectuates "the sole remedy for employees and their dependents for work-related injuries and death." Green v. General Dynamics Corp. , 245 Conn. 66, 71, 712 A.2d 938 (1998). The plaintiff also relies on § 31-298, which provides that the commissioner is not bound by "ordinary common law or statutory rules of evidence or procedure," to argue that a motion to dismiss before the commission is not identical, for purposes of finality, to a motion to dismiss filed in the Superior Court. To this end, the plaintiff relies on the customary deference afforded to the board's construction of the act, and argues that principles of res judicata do not apply because the merits of the claims were never litigated, and that the dismissal was "merely administratively permitted" to facilitate the management of a factually complex occupational disease claim. The plaintiff, The Hartford, and F.D. Rich emphasize that the association was not prejudiced by the "provisional dismissal" insofar as the association, through counsel, reserved the right to participate or object if brought back into the case, did in fact participate throughout, and had suffered no due process deprivation because no evidence on the merits has been admitted other than the plaintiff's testimony establishing her dependency, which the association has reserved its right to cross-examine. In contrast, the plaintiff argues that "[s]trict adherence to purported rules of procedure in this complex asbestos workers' compensation claim would certainly result in surprise and injustice" for her, because she would be left with no § 31-299b carrier if the association were not reinstated and The Hartford's motion to dismiss were ultimately granted. We agree with the plaintiff, The Hartford, and F.D. Rich and conclude that the board properly determined that the initial dismissal was provisional, thus permitting the commissioner to reinstate the association as a party to the proceedings. "As a threshold matter, we set forth the [well established] standard of review applicable to workers' compensation appeals. . 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. . [Moreover, 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 . board. . Cases that present pure questions of law, however, invoke a broader standard of review than is ordinarily involved in deciding whether, in light of the evidence, the agency has acted unreasonably, arbitrarily, illegally or in abuse of its discretion. . We have determined, therefore, that the traditional deference accorded to an agency's interpretation of a statutory term is unwarranted when the construction of a statute . has not previously been subjected to judicial scrutiny [or to] . a governmental agency's time-tested interpretation . "Furthermore, [i]t is well established that, in resolving issues of statutory construction under the act, we are mindful that the act indisputably is a remedial statute that should be construed generously to accomplish its purpose. . The humanitarian and remedial purposes of the act counsel against an overly narrow construction that unduly limits eligibility for workers' compensation. . Accordingly, [i]n construing workers' compensation law, we must resolve statutory ambiguities or lacunae in a manner that will further the remedial purpose of the act. . [T]he purposes of the act itself are best served by allowing the remedial legislation a reasonable sphere of operation considering those purposes." (Citations omitted; internal quotation marks omitted.) Sullins v. United Parcel Service, Inc. , 315 Conn. 543, 550-51, 108 A.3d 1110 (2015). A brief review of the act's apportionment scheme illuminates the process by which the commission adjudicates occupational disease claims involving multiple employers or insurers, such as those pending on its asbestos docket. "[T]he last insurer on a risk for which other insurers also bear some liability is deemed initially liable for payment to the injured employee, with the right to recover proportional reimbursement from the other insurers. See General Statutes § 31-299b." Franklin v. Superior Casting , 302 Conn. 219, 221-22, 24 A.3d 1233 (2011). " Section 31-299b mandates that the last insurer on the risk . pay the claimant. There is no common-law joint and several liability among . insurers that would allow the claimant to choose from which insurer he will recover." Id., at 232-33, 24 A.3d 1233 ; see also Hatt v. Burlington Coat Factory , 263 Conn. 279, 312-13, 819 A.2d 260 (2003) ( § 31-299b applies only "to single instances of occupational diseases and repetitive trauma, and not to the consequences of separate injuries on separate occasions"). If the association stands in the shoes of the last insurer on the risk, it is responsible for that insurer's liability under § 31-299b, but may seek apportionment from the other employers or their insurers. Franklin v. Superior Casting , supra, at 232-33, 24 A.3d 1233. Finally, § 31-299b sets forth a three step process under which: "(1) an award of compensation is made to the claimant; (2) the current employer or employer's insurer 'shall be initially liable for the payment of such compensation'; and (3) the commissioner, 'within a reasonable period of time after issuing an award, on the basis of the record,' must make two determinations: (a) the identification of prior employers or insurers that are liable for a portion of the claimant's compensation; and (b) the extent of their liability. General Statutes § 31-299b." Ferraro v. Ridgefield European Motors, Inc. , 313 Conn. 735, 748, 99 A.3d 1114 (2014) ; see also id., at 750, 99 A.3d 1114 ("[a]llowing an agreement between insurers to constrain a commissioner's authority to make findings following a hearing on an apportionment claim would be inconsistent with our jurisprudence addressing a commissioner's authority to render a decision in the area of compensation claims"); Levarge v. General Dynamics Corp. , 282 Conn. 386, 391-92, 920 A.2d 996 (2007) (apportionment under § 31-299b is not ministerial act, but requires independent analysis of employment and medical evidence). The relative simplicity of the § 31-299b apportionment framework belies the factual complexity that often attends the adjudication of occupational disease claims such as those presented in this case. "Occupational diseases are, from a legal standpoint, peculiar in . that they arise, not from an accident or event happening at a precise moment, but from a day by day exposure to unhealthful conditions over an extended period; the exact time of their origin is necessarily obscure and their insidious progress is not revealed until, frequently after a long interval, the disability which they create manifests itself." (Internal quotation marks omitted.) Green v. General Dynamics Corp. , supra, 245 Conn. at 72-73, 712 A.2d 938. The parties agree that the nature of occupational disease claims often renders them factually complex because they may implicate numerous employers and their insurers, particularly at the outset of a claim brought by a claimant with a lengthy work history, when the periods of exposure have yet to be determined. For example, this case required the decedent, who had a thirty year career as a carpenter, to send notices of claim to twenty-nine employers, some of whom had multiple insurance carriers. As the board observed in its decision in this case, these complexities have resulted in the "evol[ution]" of "certain procedural customs and conventions . unique to the management of the [commission's] asbestos docket." The commission's management of these complicated apportionment matters is facilitated by its commissioners' extensive discretion over the conduct of hearings before them, conferred upon it by § 31-298. That statute dispenses with "formal pleadings . beyond any informal notices that the commission approves," and requires the trial commissioner to "proceed, so far as possible, in accordance with the rules of equity. He shall not be bound by the ordinary common law or statutory rules of evidence or procedure, but shall make inquiry, through oral testimony, deposition testimony or written and printed records, in a manner that is best calculated to ascertain the substantial rights of the parties and carry out the provisions and intent of this chapter." General Statutes § 31-298. The adjudicatory and case management authority conferred by § 31-298 is "broad ." Bailey v. State , 65 Conn.App. 592, 604, 783 A.2d 491 (2001) ; see also Bidoae v. Hartford Golf Club , 91 Conn.App. 470, 479-80, 881 A.2d 418 (given "the mandate of § 31-298 that the commissioner protect the substantial rights of the parties while exercising his broad, equitable powers to take evidence and to carry out the provisions of [the act], we hold that the commissioner did not abuse his discretion in precluding the plaintiff from admitting evidence from her vocational rehabilitation expert when she disregarded the commissioner's order to submit to an examination by the defendants' expert"), cert. denied, 276 Conn. 921, 888 A.2d 87 (2005), cert. denied, 547 U.S. 1112, 126 S.Ct. 1916, 164 L.Ed.2d 665 (2006) ; Walter v. State, 63 Conn.App. 1, 15, 774 A.2d 1052 (upon finding that employer had not been properly notified of hearing, and prior to issuance of award, commissioner "properly exercised his discretionary power under § 31-298" in granting employer's motion to open record because that "resulted in a hearing on the merits of the claim, rather than the conclusive presumption of liability provided by a granting of a motion to preclude"), cert. denied, 256 Conn. 930, 776 A.2d 1148 (2001). Most significantly, § 31-298 makes clear that practice and procedure before the commission does not mirror practice and procedure before the courts of the Judicial Branch, unless a statute specifically so provides. Cf. General Statutes § 31-301(e) ("[t]he procedure in appealing [to the board] from an award of the commissioner shall be the same as the procedure employed in an appeal from the Superior Court to the Supreme Court, where applicable"); General Statutes § 31-315 ("[t]he commissioner shall also have the same power to open and modify an award as any court of the state has to open and modify a judgment of such court"). This reflects that "the proceedings [before the commission] were designed to facilitate a speedy, efficient and inexpensive disposition and to reduce the necessity of legal counsel for the claimant." Menzies v. Fisher , 165 Conn. 338, 346, 334 A.2d 452 (1973) ; see also Schreck v. Stamford , 250 Conn. 592, 600, 737 A.2d 916 (1999) (recognizing value of legal counsel in workers' compensation proceedings, particularly those with complex legal or factual issues). Given the general informality of workers' compensation proceedings, the board has recognized that motions practice before the commission is relatively limited, with motions generally restricted to only those with a specific "statutory, regulatory or due process basis," namely, "motions to preclude, motions to re-open and modify, certain motions for discovery, motions to correct and motions to dismiss." Poventud v. Eagle Four , 6 Conn. Workers' Comp. Rev. Op. 72, 73 (1998); see id. (declining to review commissioner's refusal to rule on motion in limine filed to address admissibility of physician's testimony, despite widespread use of that motion in Superior Court, because "[o]ur legislators in 1913 did not envision that claims procedure would be encumbered with the pleading formalities required in the courts"); cf. Gonirenki v. American Steel & Wire Co. , 106 Conn. 1, 9, 137 A. 26 (1927) ("we do not understand that [commissioners] have ever adopted a procedure requiring pleadings as in our courts, or that demurrers, motions to dismiss, and like pleadings, are any part of the established procedure before them"). Indeed, commissioners necessarily have broad authority with respect to the scope of motions to dismiss, insofar as there is no statute or regulation specifically governing them beyond the fact that the "statutory language [of § 31-298 ] is capacious enough to include the power to dismiss a claim in an appropriate case." Pietraroia v. Northeast Utilities , 254 Conn. 60, 71, 756 A.2d 845 (2000) ; see also id., at 72, 756 A.2d 845 (commissioner has authority under § 31-298 to dismiss claim without adjudicating its merits, if claimant fails to appear for trial or independent medical examination because otherwise "claim would remain in a procedural limbo"). We have recognized that such dismissals have been made with or without prejudice. See id., at 69 n.11, 756 A.2d 845. Thus, in the absence of binding common law or statutory rules of evidence or procedure, the nature of motions practice in hearings before the commission is cabined only by procedural due process, which "requires not only that there be due notice of the hearing but that at the hearing the parties involved have a right to produce relevant evidence, and an opportunity to know the facts on which the agency is asked to act, to cross-examine witnesses and to offer rebuttal evidence." (Internal quotation marks omitted.) Testone v. C. R. Gibson Co. , 114 Conn.App. 210, 217, 969 A.2d 179, cert. denied, 292 Conn. 914, 973 A.2d 663 (2009) ; see also, e.g., Bryan v. Sheraton-Hartford Hotel , 62 Conn.App. 733, 741, 774 A.2d 1009 (2001) (in proceedings before commission, "[a]n integral premise of due process is that a matter cannot be properly adjudicated unless the parties have been given a reasonable opportunity to be heard on the issues involved" [internal quotation marks omitted] ). We conclude, therefore, that a commissioner, in managing complex multiparty cases such as those on the asbestos docket, has the authority under § 31-298 to dismiss a claim provisionally, and then, if necessary, reinstate the dismissed party into the proceedings prior to a final determination of the compensability of the claim and the apportionment of any liability under § 31-299b. We further conclude that the board properly deemed the order dismissing the association in this case to be provisional, rather than a final award subject to § 31-315, despite the lapse of the appeal period set forth in § 31-300 and 31-301 (a). First, consistent with the fact that the compensability of the decedent's illness had yet to be determined, the commissioner did not characterize the order dismissing the association in a manner suggesting its finality, such as by calling it "an award" or noting that the dismissal was "with prejudice." See Pietraroia v. Northeast Utilities , supra, 254 Conn. at 69 and n.11, 756 A.2d 845 (considering propriety of dismissal " 'with prejudice' " as result of claimant's failure to appear, and emphasizing that such dismissal meant "with finality-without the ability in the [claimant] to revive it"). Further, as the board noted, although the plaintiff, The Hartford, and F.D. Rich did not object to the association's initial motion to dismiss, neither did they at any time stipulate specifically to a lack of liability on its part on the record. This, coupled with the fact that compensability of the claim had not yet been determined for purposes of the first step under the § 31-299b apportionment process, strongly suggests that the dismissal of the association was not entitled to administrative finality with the effect of res judicata. See Marone v. Waterbury , 244 Conn. 1, 12-13, 707 A.2d 725 (1998) (noting that res judicata depends on lack of need for further action by court to determine matter); see also Coldwell Banker Manning Realty, Inc. v. Cushman & Wakefield of Connecticut, Inc. , 293 Conn. 582, 594, 980 A.2d 819 (2009) (grievance committee dismissal of arbitration request was not " 'mutual, final and definite' " award for purposes of General Statutes § 52-418 [a] ). Given the sheer multiplicity of respondents in the typical asbestos case, the commissioner must have the discretion under § 31-298 to, as the commissioner in this case put it, "clear the room" or "[cull] the herd," with the flexibility of reinstating parties or insurers to the proceedings should the date of last exposure be different than anticipated. (Internal quotation marks omitted.) Finally, the provisional nature of the order dismissing the association and the permissibility of reinstating the association as a party to the proceedings are both demonstrated by the fact that the record reveals no prejudice to the association from the commissioner's order granting the motions to reinstate it as a party. Out of an apparent abundance of caution, the association's attorney has prudently attended all proceedings before the commission, and there has been no fact finding yet with respect to the compensability of, and liability for, the benefits due to the plaintiff. Moreover, as was discussed at oral argument before this court, the record does not reveal any problems with respect to the loss of evidence occasioned by the association's dismissal. Finally, to the extent that any evidence has been admitted, that evidence consists of the plaintiff's very brief testimony to establish her entitlement to dependent benefits under the act; the commissioner granted the association the opportunity to recall her for cross-examination should it desire to do so. Cf. Marandino v. Prometheus Pharmacy , 294 Conn. 564, 586-87, 986 A.2d 1023 (2010) (failure to file formal motion to modify does not preclude modification of award pursuant to § 31-315 to obtain total incapacity benefits, given remedial purpose of act and fact that "the record demonstrates that the commissioner and the parties considered the plaintiff's application for total incapacity benefits to be the equivalent of a motion to open or modify," and there was no evidence of prejudice because defendant had adequate notice of hearing and "were able to participate, present evidence, and cross-examine witnesses"). Accordingly, because the order dismissing the association was provisional, rather than final, we conclude that the board properly affirmed the commissioner's decision to grant the motions to reinstate the association as a party to the workers' compensation proceedings. The decision of the Workers' Compensation Review Board is affirmed. In this opinion the other justices concurred. "The association is a nonprofit unincorporated legal entity created by General Statutes § 38-276 [now General Statutes § 38a-839 ] and composed of all insurers licensed to transact business in this state that write any kind of direct insurance, except for those specifically excluded from the application of the Connecticut Insurance Guaranty Association Act by General Statutes § 38-274 [now General Statutes § 38a-837 ]. . The association was established in order to reimburse, to a limited extent, covered claims against insolvent insurers." (Citation omitted; internal quotation marks omitted.) Franklin v. Superior Casting, 302 Conn. 219, 222 n.2, 24 A.3d 1233 (2011). Under General Statutes § 31-355(e), the commission has jurisdiction to determine the association's obligations with respect to workers' compensation claims, namely, those asserted against insolvent insurers. See Hunnihan v. Mattatuck Mfg. Co., 243 Conn. 438, 445-47, 705 A.2d 1012 (1997). The association appealed to the Appellate Court; see General Statutes § 31-301b ; and we transferred the appeal to this court pursuant to General Statutes § 51-199(c) and Practice Book § 65-1. We note that the order dismissing the claim against the association was issued by Commissioner Amado J. Vargas, while the order reinstating the association as a party was issued by Commissioner David Schoolcraft. In the interest of simplicity, we refer herein to both as the commissioner. The named plaintiff in the present case, John Graham, who was Carmel Graham's husband, filed the original claims for workers' compensation benefits in 2006. After he died in 2008, Carmel Graham filed a claim for dependent benefits that was joined with the original claims. In the interest of simplicity, all references to the plaintiff hereinafter are to Carmel Graham. Several other parties participated as defendants in the proceedings before the commission including, inter alios, the named defendant, Olson Wood Associates, Inc. These additional parties, however, are not relevant to the present appeal. General Statutes § 31-300 provides in relevant part: "As soon as may be after the conclusion of any hearing, but no later than one hundred twenty days after such conclusion, the commissioner shall send to each party a written copy of the commissioner's findings and award. . If no appeal from the decision is taken by either party within twenty days thereafter, such award shall be final and may be enforced in the same manner as a judgment of the Superior Court. ." Although § 31-300 has been the subject of certain technical amendments since the events underlying the present case; see, e.g., Public Acts 2011, No. 11-44, § 49; those amendments have no bearing on the merits of this appeal. In the interest of simplicity, we refer to the current revision of the statute. General Statutes § 31-301(a) provides in relevant part: "At any time within twenty days after entry of an award by the commissioner, after a decision of the commissioner upon a motion or after an order by the commissioner according to the provisions of section 31-299b, either party may appeal therefrom to the Compensation Review Board by filing in the office of the commissioner from which the award or the decision on a motion originated an appeal petition and five copies thereof. ." General Statutes § 31-315 provides in relevant part: "Any award of, or voluntary agreement concerning, compensation made under the provisions of this chapter . shall be subject to modification in accordance with the procedure for original determinations, upon the request of either party . whenever it appears to the compensation commissioner, after notice and hearing thereon, that the incapacity of an injured employee has increased, decreased or ceased, or that the measure of dependence on account of which the compensation is paid has changed, or that changed conditions of fact have arisen which necessitate a change of such agreement, award or transfer in order properly to carry out the spirit of this chapter. The commissioner shall also have the same power to open and modify an award as any court of the state has to open and modify a judgment of such court. The compensation commissioner shall retain jurisdiction over claims for compensation, awards and voluntary agreements, for any proper action thereon, during the whole compensation period applicable to the injury in question." General Statutes § 31-298 provides in relevant part: "Both parties may appear at any hearing, either in person or by attorney or other accredited representative, and no formal pleadings shall be required, beyond any informal notices that the commission approves. In all cases and hearings under the provisions of this chapter, the commissioner shall proceed, so far as possible, in accordance with the rules of equity. He shall not be bound by the ordinary common law or statutory rules of evidence or procedure, but shall make inquiry, through oral testimony, deposition testimony or written and printed records, in a manner that is best calculated to ascertain the substantial rights of the parties and carry out the provisions and intent of this chapter. ." General Statutes § 31-299b provides in relevant part: "If an employee suffers an injury or disease for which compensation is found by the commissioner to be payable according to the provisions of this chapter, the employer who last employed the claimant prior to the filing of the claim, or the employer's insurer, shall be initially liable for the payment of such compensation. The commissioner shall, within a reasonable period of time after issuing an award, on the basis of the record of the hearing, determine whether prior employers, or their insurers, are liable for a portion of such compensation and the extent of their liability. If prior employers are found to be so liable, the commissioner shall order such employers or their insurers to reimburse the initially liable employer or insurer according to the proportion of their liability. Reimbursement shall be made within ten days of the commissioner's order with interest, from the date of the initial payment, at twelve per cent per annum. If no appeal from the commissioner's order is taken by any employer or insurer within twenty days, the order shall be final and may be enforced in the same manner as a judgment of the Superior Court. ." The January 26, 2011 formal hearing was the product of a remand order from the board. Specifically, in June, 2009, the association moved to dismiss the proceedings for lack of jurisdiction. That motion was denied, and the association appealed to the board. In July, 2009, the board concluded that the association's appeal was premature without a record, and remanded the case for "a formal hearing or other appropriate action." The commissioner also observed that, by the time of the association's motion to dismiss, the board had already issued a decision, later upheld in Franklin v. Superior Casting, 302 Conn. 219, 232-33, 24 A.3d 1233 (2011), holding that if the association stands in the shoes of the last insurer on the risk, it is not relieved from liability under § 31-299b, but may seek apportionment from the claimant's other employers or their insurers. The commissioner also denied The Hartford's motion to dismiss, concluding that it would be more appropriate to consider its arguments with respect to lack of exposure after the close of the evidentiary record. The board further observed that, notwithstanding the custom and practice of "excus[ing], by agreement, certain participants from attending all of the hearings [that] occur during the prosecution of an asbestos claim, it may safely be said, given the sequence of events contemplated by § 31-299b... that any party who elects not to participate in hearings is doing so at its own risk." (Internal quotation marks omitted.) Given its conclusion that the order dismissing the association was not a final judgment, the board declined to consider whether the commissioner's granting of the motions to reinstate the association was a proper application of § 31-315, with respect to a motion to open. Given our conclusion that the order dismissing the association was not final, we, like the board, do not reach its claim that the order reinstating it was not consistent with § 31-315, which governs motions to open awards. See footnote 15 of this opinion. In Franklin v. Superior Casting, supra, 302 Conn. at 233-35, 24 A.3d 1233, this court distinguished its holding in Hunnihan v. Mattatuck Mfg. Co., 243 Conn. 438, 452-54, 705 A.2d 1012 (1997), that a solvent insurer that was the last insurer on a risk could not seek apportionment from the association under § 31-299b because such a claim, asserted by an insurer against the association, was not a "covered claim" for which the association is liable under General Statutes § 38a-841. In Hunnihan, the court recognized that "§ 31-299b, by placing initial liability on the last insurer in circumstances where a compensable injury is the responsibility of several insurers, may create a hardship for the last insurer in the event that a prior insurer has become insolvent ." Id., at 453-54, 705 A.2d 1012. Our more recent decision in Franklin, however, rejected the association's argument that "holding the solvent insurer . liable for the entire claim renders the only result that is consistent with Hunnihan, namely, that there can be no apportionment between the association and an insurer," and that "shifting liability to solvent insurers is consistent with the policies underlying the [Connecticut Insurance Guaranty Act, General Statutes § 38a-836 et seq. ], protecting the association's limited assets and the interests of consumers." Franklin v. Superior Casting, supra, at 226, 24 A.3d 1233. We note that it is well established that § 31-298 is not itself an independent source of jurisdiction, insofar as it "deals with the manner in which testimony is obtained and hearings are conducted. It does not provide the commissioner with any specific jurisdiction over particular types of claims or questions." Stickney v. Sunlight Construction, Inc., 248 Conn. 754, 765, 730 A.2d 630 (1999) ; see, e.g., Gill v. Brescome Barton, Inc., 317 Conn. 33, 42 n.11, 114 A.3d 1210 (2015) (§ 31-298 did not authorize reimbursement order); Leonetti v. MacDermid, Inc., 310 Conn. 195, 218-20, 76 A.3d 168 (2013) (§ 31-298 did not operate with General Statutes § 31-290c, workers' compensation fraud statute, to render commission "competent" to consider allegedly fraudulent conduct of claimant in entering into severance agreement purporting to resolve his workers' compensation claim because that conduct "related to the agreement does not affect the compensability of the claimant's injury"); Stickney v. Sunlight Construction, Inc., supra, at 765, 730 A.2d 630 (reference to " 'equity' " in § 31-298 does not provide commissioner with jurisdiction over coverage dispute between insurers); O'Neil v. Honeywell, Inc., 66 Conn.App. 332, 339-40, 784 A.2d 428 (2001) (equitable provisions of § 31-298 do not afford commissioner authority to open stipulated award, because that authority is governed by § 31-315 ), cert. denied, 259 Conn. 914, 792 A.2d 852 (2002). We acknowledge that the twenty day appeal period set forth in § 31-301(a) relates to the board's subject matter jurisdiction. See Stec v. Raymark Industries, Inc., 299 Conn. 346, 371, 10 A.3d 1 (2010). Accordingly, by holding that a motion to reinstate the dismissed party is an appropriate procedural vehicle with which to address a dismissal later deemed to have been improvident, we do not suggest that the provisional nature of the dismissal renders it appealable to the board outside of that statutory period. We disagree with the association's reliance on State v. Curcio, 191 Conn. 27, 31, 463 A.2d 566 (1983), for the proposition that the order dismissing it is a final judgment entitled to preclusive effect. Curcio is a well established gloss on the final judgment requirement of General Statutes § 52-263, which governs the appellate jurisdiction of this court and the Appellate Court with respect to reviewing judgments of the Superior Court. But see Dechio v. Raymark Industries, Inc., 299 Conn. 376, 400-401, 10 A.3d 20 (2010) (concluding that § 31-301 [a] does not impose final judgment requirement for appeals to board from decisions of trial commissioner, and noting that General Statutes § 31-301b does not impose final judgment requirement on appeals to Appellate Court from decisions of board). Nevertheless, there is a "distinction between finality for purposes of appeal" and finality "for purposes of res judicata," despite the fact that "the two often overlap." Marone v. Waterbury, 244 Conn. 1, 12, 707 A.2d 725 (1998). Curcio is, therefore, wholly inapposite because it concerns finality for the purpose of appealability, rather than finality for the purpose of preclusion.

12488037

STATE of Connecticut v. Max SPIELBERG

State v. Spielberg

2016-12-20

SC 19627

1118

1122

150 A.3d 1118

150

West's Atlantic Reporter, Third Series

Connecticut Supreme Court

Connecticut

2021-08-27T20:57:14.005530+00:00

Fastcase

STATE of Connecticut v. Max SPIELBERG

STATE of Connecticut v. Max SPIELBERG SC 19627 Supreme Court of Connecticut. Argued September 16, 2016 Officially released December 20, 2016 David B. Rozwaski, assigned counsel, for the appellant (defendant). Denise B. Smoker, senior assistant state's attorney, with whom, on the brief, was Stephen J. Sedensky III, state's attorney, for the appellee (state). Rogers, C. J., and Palmer, Zarella, Eveleigh, McDonald, Espinosa and Robinson, Js.

2474

14966

ESPINOSA, J. In this appeal, we are asked to decide whether the defendant, Max Spielberg, is entitled to erasure of the records of his conviction of possession of less than four ounces of marijuana in violation of General Statutes (Rev. to 2009) § 21a-279 (c), despite the lack of any factual record as to the amount of marijuana he possessed at the time of his arrest. The defendant appeals from the judgment of the trial court denying his petition for an order of erasure. He contends that because possession of less than one-half ounce of marijuana has been decriminalized; see Public Acts 2011, No. 11-71, § 2 (P.A. 11-71); the trial court improperly concluded that he was not entitled to erasure of the records of this conviction pursuant to General Statutes § 54-142d. Because this court's decision in State v. Menditto , 315 Conn. 861, 110 A.3d 410 (2015), clarified Connecticut case law while this appeal was pending, the judgment of the trial court is reversed and the case is remanded to that court to conduct an evidentiary hearing on the defendant's petition for an order of erasure. The record reveals the following undisputed facts. On August 18, 2010, officers from the Community Conditions Unit of the Danbury Police Department visited the defendant's residence because he was on probation and had failed to inform the Office of Adult Probation of his new address within the requisite period of time after he had moved. The officers detected a strong odor of marijuana throughout the residence and asked the defendant if he had any marijuana on his person or in the residence. He indicated that there was marijuana both on his person and in the residence. In the defendant's pockets, the officers found $44 and eight clear plastic bags containing marijuana. Elsewhere in the residence, the officers found additional marijuana, drug paraphernalia, cultivation supplies, and $380. Located near some of the drugs, drug paraphernalia, and cultivation supplies were toys and clothing that belonged to the defendant's four year old son who visited and slept at the residence. The defendant indicated that his son had left the residence moments prior to the officers' arrival. The defendant was arrested and subsequently, on April 1, 2011, pleaded guilty to possession of less than four ounces of marijuana in violation of General Statutes (Rev. to 2009) § 21a-279 (c), possession of marijuana within 1500 feet of a school in violation of General Statutes (Rev. to 2009) § 21a-279 (d), and risk of injury to a child in violation of General Statutes (Rev. to 2009) § 53-21 (a) (1). He received a total effective sentence of five years and one day of incarceration followed by seven years of special parole. On July 1, 2011, P.A. 11-71 became effective, reducing the penalty for possessing less than one-half ounce of marijuana from a potential term of imprisonment and/ or a large fine to a fine of between $150 and $500. See General Statutes § 21a-279a. The enactment of P.A. 11-71 raised the question of whether the legislature had "decriminalized" the possession of small amounts of marijuana, thus entitling some defendants who had been convicted of possession of less than four ounces of marijuana in violation of § 21a-279 (c), prior to 2011, to erasure of their records by virtue of § 54-142d. The trial court considered this claim in State v. Menditto , Superior Court, judicial district of Tolland, Docket No. CR-09-0095007-S, 2012 WL 447711 (January 25, 2012) (53 Conn. L. Rptr. 415). In that case, Nicholas Menditto was arrested for possession of approximately 0.15 and 0.01 ounces of marijuana on two occasions in 2009, and subsequently pleaded guilty to two counts of possession of less than four ounces of marijuana in violation of General Statutes (Rev. to 2009) § 21a-279 (c). Id., at 416. After the legislature amended § 21a-279 through P.A. 11-71, Menditto filed petitions for erasure pursuant to § 54-142d, arguing that § 54-142d applied to his convictions because P.A. 11-71 decriminalized the possession of less than one-half ounce of marijuana. Id. The trial court concluded that P.A. 11-71 did not "decriminalize" the possession of less than one-half ounce of marijuana for purposes of § 54-142d because those convictions remained violations and, therefore, the defendant was not entitled to erasure. Id., at 417-18. The Appellate Court agreed and affirmed the judgments of the trial court. State v. Menditto , 147 Conn.App. 232, 246, 80 A.3d 923 (2013). Pursuing a similar argument as Menditto, the defendant in the present case filed a petition for erasure pursuant to § 54-142d on March 5, 2013. Consistent with the trial court's decision in State v. Menditto , supra, 53 Conn. L. Rptr. at 415, the trial court in the present case denied the defendant's petition for erasure and subsequently denied the defendant's motion for reconsideration. This appeal followed. While this appeal was pending, the effect of P.A. 11-71 was clarified when this court decided State v. Menditto , supra, 315 Conn. at 861, 110 A.3d 410. In that case, we reversed the Appellate Court in part and concluded that P.A. 11-71 decriminalized the possession of less than one-half ounce of marijuana and, therefore, the records of Menditto's convictions were entitled to erasure pursuant to § 54-142d. Id., at 872-76, 110 A.3d 410. In contrast to State v. Menditto , supra, 315 Conn. at 861, 110 A.3d 410, however, in which there was a factual record of the amount of marijuana Menditto possessed at the time of his arrests, no such record exists in the present case. Under the current state of the law, the amount of marijuana that the defendant possessed-specifically whether he possessed less than one-half ounce of marijuana-is key to the determination of whether he is entitled to erasure pursuant to § 54-142d. The record in the present case merely reveals that the defendant pleaded guilty to possession of less than four ounces of marijuana. Because P.A. 11-71 only decriminalized the possession of less than one-half ounce of marijuana, and this court does not find facts, factual findings by the trial court as to the amount of marijuana the defendant possessed are necessary to a determination of whether he is entitled to erasure of the records relating to his conviction. The state contends that this court should affirm the denial of the defendant's petition for erasure because his conviction of possession of less than four ounces of marijuana was the basis for his conviction under the same docket number of possession of a controlled substance within 1500 feet of a school and risk of injury to a child. In order for the defendant to be entitled to erasure pursuant to § 54-142d of the records pertaining to any one offense of which he was convicted, the state contends that the records of the companion charges for which he was convicted under that same docket number also must be entitled to erasure because such a requirement is present in General Statutes § 54-142a, a related erasure statute. We disagree. Specifically, the state relies on § 54-142a (g), which is an exception to the general rules of erasure set forth in § 54-142a. Section 54-142a provides for the erasure of records in certain circumstances, including: the records of the police, the court, and the state's attorney when a person is acquitted or the charges are dismissed; General Statutes § 54-142a (a) ; when criminal charges are nolled; General Statutes § 54-142a (c) ; or when a person is pardoned. General Statutes § 54-142a (d). Section 54-142a (g), however, provides that the provisions of § 54-142a (a), (c) and (d) do not apply to "any information or indictment containing more than one count . when the criminal case is disposed of unless and until all counts are entitled to erasure in accordance with the provisions of this section ." (Emphasis added.) The state, in effect, asks this court to read the language of § 54-142a (g) into § 54-142d, the statute pertaining to the destruction of the records of decriminalized offenses. We decline to do so because the legislature clearly intended to treat these statutes differently. It is a well settled tenet of statutory construction that "[w]hen a statute, with reference to one subject contains a given provision, the omission of such provision from a similar statute concerning a related subject . is significant to show that a different intention existed. . That tenet of statutory construction is well grounded because [t]he General Assembly is always presumed to know all the existing statutes and the effect that its action or [nonaction] will have upon any one of them." (Internal quotation marks omitted.) State v. Heredia , 310 Conn. 742, 761, 81 A.3d 1163 (2013). It is undisputed that the limitation contained in § 54-142a (g) is omitted from § 54-142d, a statute that, similar to § 54-142a, also concerns the erasure of criminal records. This omission is evidence that the legislature intended to treat the erasure of records pertaining to charges that have been dismissed or nolled and records of people who have been acquitted or pardoned, differently than records pertaining to decriminalized offenses. The legislature's differential treatment, moreover, seems intentional given the legislature's subsequent amendments to § 54-142a (g). The legislature enacted § 54-142a (g) in 1975, and § 54-142d in 1983. In the forty-one years since its enactment, § 54-142a (g) has been amended no less than six times. In 1993, the legislature made the first amendment to § 54-142a (g) since its enactment of § 54-142d ; Public Acts 1993, No. 93-142, § 3; but did not reference decriminalized offenses or § 54-142d. In 1995, the legislature further amended § 54-142a (g). See Public Acts 1995, No. 95-133, § 1. Yet again, it made no mention of decriminalized offenses or § 54-142d. The legislature amended § 54-142a (g) three more times, in 1999, 2002, and 2008, and failed to reference decriminalized offenses or § 54-142d in these amendments. Moreover, in the thirty-three years since the enactment of § 54-142d, the legislature has never added restrictive language similar to § 54-142a (g). If the legislature intended that the limitation of § 54-142a (g) apply to the erasure of decriminalized offenses, it could have amended it to include the records of decriminalized offenses entitled to erasure under § 54-142d, or amended § 54-142d by adding a subsection similar to § 54-142a (g). It did not do so. We, therefore, decline to adopt the state's contention that, because the defendant's conviction of possession of less than four ounces of marijuana was the basis for the other charges of which he was convicted, he is not entitled to erasure. The judgment denying the petition for an order of erasure is reversed and the case is remanded with direction to conduct an evidentiary hearing to determine whether the defendant possessed less than one-half ounce of marijuana and the record of that conviction is therefore entitled to erasure under § 54-142d. In this opinion the other justices concurred. The defendant 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. The defendant also argues that this court should use its supervisory authority to vacate his conviction of the other two charges to which he pleaded guilty under the same docket number, possession of a controlled substance within 1500 feet of a school in violation of General Statutes (Rev. to 2009) § 21a-279 (d) and risk of injury to a child in violation of General Statutes (Rev. to 2009) § 53-21 (a) (1). We disagree. The present case does not present extraordinary circumstances sufficient for this court to exercise its supervisory authority. See State v. Edwards, 314 Conn. 465, 498, 102 A.3d 52 (2014) ; State v. Lockhart, 298 Conn. 537, 576, 4 A.3d 1176 (2010). At the time of the defendant's plea, General Statutes (Rev. to 2009) § 21a-279 (c) provided in relevant part: "Any person . who possesses or has under his control less than four ounces of a cannabis-type substance, except as authorized in this chapter, for a first offense, may be fined not more than one thousand dollars or be imprisoned not more than one year, or be both fined and imprisoned; and for a subsequent offense, may be fined not more than three thousand dollars or be imprisoned not more than five years, or be both fined and imprisoned." In addition to the offenses to which the defendant pleaded guilty, he also had been charged with an additional count of possession of a controlled substance within 1500 feet of a school in violation of General Statutes (Rev. to 2009) § 21a-279 (d), two counts of possession of a controlled substance with intent to sell within 1500 feet of a school in violation of General Statutes § 21a-278a (b), two counts of possession of drug paraphernalia within 1500 feet of a school in violation of General Statutes (Rev. to 2009) § 21a-267 (c), possession of a controlled substance with intent to sell in violation General Statutes § 21a-277 (b), and use of drug paraphernalia in violation of General Statutes (Rev. to 2009) § 21a-267 (a). The state entered a nolle prosequi for each of the remaining charges. At the time of his arrest the defendant was on probation for a 2006 conviction of criminal attempt to sell a hallucinogenic substance in violation of General Statutes § 21a-277 (a). As a result, he was also charged with violation of probation in violation of General Statutes (Rev. to 2009) § 53a-32 under a different docket number. The defendant pleaded guilty to violation of probation on January 19, 2011. General Statutes § 54-142d provides in relevant part: "Whenever any person has been convicted of an offense in any court in this state and such offense has been decriminalized subsequent to the date of such conviction, such person may file a petition with the [S]uperior [C]ourt . for an order of erasure, and the Superior Court . shall direct all police and court records and records of the state's or prosecuting attorney pertaining to such case to be physically destroyed." Section 54-142a (g) was first amended in 1981. Public Acts 1981, No. 81-218, § 1. The legislature did not reference decriminalized offenses in that amendment; that amendment, however, predated the enactment of § 54-142d. See Public Acts 1999, No. 99-215, § 18; Public Acts 2002, No. 02-132, § 60; Public Acts 2008, No. 08-151, § 1.

12488036

Anna Marie Gillotti BLAKELY, Administratrix (Estate of Benny A. Gillotti) v. DANBURY HOSPITAL

Blakely v. Danbury Hosp.

2016-12-20

SC 19461

1109

1117

150 A.3d 1109

150

West's Atlantic Reporter, Third Series

Connecticut Supreme Court

Connecticut

2021-08-27T20:57:14.005530+00:00

Fastcase

Anna Marie Gillotti BLAKELY, Administratrix (Estate of Benny A. Gillotti) v. DANBURY HOSPITAL

Anna Marie Gillotti BLAKELY, Administratrix (Estate of Benny A. Gillotti) v. DANBURY HOSPITAL SC 19461 Supreme Court of Connecticut. Argued December 9, 2015 Officially released December 20, 2016 Michael G. Rigg, for the appellant (defendant). Kevin P. Thornton, for the appellee (plaintiff). Rogers, C.J., and Palmer, Zarella, Eveleigh, McDonald, Espinosa and Robinson, Js.

4663

28870

McDONALD, J. The sole issue in this certified appeal is whether the lapse of a jurisdictional time limitation for commencing suit in a statutory cause of action gives a defendant immunity from suit, such that an interlocutory appeal would be permitted to challenge a decision concluding that the accidental failure of suit statute (savings statute), General Statutes § 52-592, saved an otherwise untimely action. We conclude that no immunity from suit arises under such circumstances. Consequently, a decision concluding that the savings statute permits a statutory cause of action subject to a jurisdictional time limitation to proceed cannot be the subject of an interlocutory appeal authorized under State v. Curcio , 191 Conn. 27, 31, 463 A.2d 566 (1983). The record reveals the following undisputed facts and procedural history. Pursuant to General Statutes § 52-555, a wrongful death action was timely filed in the name of the estate of Benny A. Gillotti against the defendant, Danbury Hospital. The defendant moved to dismiss that action on the ground that an estate is not a legal entity with the capacity to sue. The trial court, Doherty, J. , granted the motion and rendered judgment dismissing the action. See Gillotti v. Danbury Hospital , Superior Court, judicial district of Danbury, Docket No. CV-13-6011628-S (July 15, 2013). Months later, the plaintiff, Anna Marie Gillotti Blakely, commenced the present wrongful death action in her capacity as the administratrix of Gillotti's estate. The defendant moved for summary judgment, claiming that the plaintiff's action was time barred because (a) it had been filed after the two year time limitation for commencing a wrongful death action under § 52-555 had lapsed, and (b) the savings statute does not apply to an action that has been dismissed due to an attorney's ignorance of the law. The trial court, Roraback, J. , denied the motion for summary judgment. In a subsequent articulation, the court explained that it had concluded that the mistake of law at issue was a "matter of form" that could "properly be viewed as mistake, inadvertence or excusable neglect of a nature to permit resort to the protections of [the savings statute]." (Internal quotation marks omitted.) The defendant appealed from the denial of its motion for summary judgment, challenging the trial court's conclusion that the savings statute applied under these circumstances. Recognizing that its appeal prior to the trial court's adjudication on the merits of the plaintiff's wrongful death claim was interlocutory, the defendant invoked the second prong of the test set forth in Curcio as authority for its appeal. After a hearing, the Appellate Court issued an order dismissing the appeal for lack of a final judgment. This court thereafter granted the defendant's petition for certification to appeal seeking to challenge that determination. Blakely v. Danbury Hospital , 316 Conn. 905, 111 A.3d 471 (2015). The defendant claims that its appeal falls within the exception to the final judgment rule under the second prong of the Curcio test because the appeal seeks to vindicate a legal right, or at least a colorable claim to a legal right, to freedom from suit. Specifically, the defendant contends that the lapse of a jurisdictional statute of limitations like the one in § 52-555 gives rise to such a right. In support of this proposition, the defendant relies on a statement to this effect in St. Paul Travelers Cos. v. Kuehl , 299 Conn. 800, 815, 12 A.3d 852 (2011). In response, the plaintiff characterizes the statement in Kuehl as dicta, and asserts that the jurisdictional nature of the time limitation in § 52-555 is irrelevant in any event because the time limitation in the savings statute, which is not jurisdictional, controls. In support of this proposition, the plaintiff cites Isaac v. Mount Sinai Hospital , 210 Conn. 721, 731-32, 557 A.2d 116 (1989), which concluded that the wrongful death statute should be read as if the savings statute is incorporated, such that the time limitation of the latter modifies the former. We conclude that the characterization of the effect of a jurisdictional statute of limitations in Kuehl is not accurate for purposes of Curcio . It is well settled that "[t]he subject matter jurisdiction of our appellate courts is limited by statute to appeals from final judgments . [However], the courts may deem interlocutory orders or rulings to have the attributes of a final judgment if they fit within either of the two prongs of the test set forth in [Curcio ]." (Internal quotation marks omitted.) Radzik v. Connecticut Children's Medical Center , 317 Conn. 313, 318, 118 A.3d 526 (2015). The second prong of the Curcio test, on which the defendant relies in the present case, permits an appeal if the decision "so concludes the rights of the parties that further proceedings cannot affect them." State v. Curcio , supra, 191 Conn. at 31, 463 A.2d 566. That prong "focuses on the nature of the right involved. It requires the parties seeking to appeal to establish that the trial court's order threatens the preservation of a right already secured to them and that that right will be irretrievably lost and the [parties] irreparably harmed unless they may immediately appeal. . One must make at least a colorable claim that some recognized statutory or constitutional right is at risk. . In other words, the [appellant] must do more than show that the trial court's decision threatens him with irreparable harm. The [appellant] must show that that decision threatens to abrogate a right that he or she then holds. . The right itself must exist independently of the order from which the appeal is taken." (Citations omitted; emphasis in original; internal quotation marks omitted.) Hartford Accident & Indemnity Co. v. Ace American Reinsurance Co. , 279 Conn. 220, 226-27, 901 A.2d 1164 (2006). This court previously has determined that, "under the second prong of [Curcio ], a colorable claim to a right to be free from an action is protected from the immediate and irrevocable loss that would be occasioned by having to defend an action through the availability of an immediate interlocutory appeal from the denial of a motion to dismiss." Dayner v. Archdiocese of Hartford , 301 Conn. 759, 771, 23 A.3d 1192 (2011). The rationale for immediate appellate review is that "the essence of the protection of immunity from suit is an entitlement not to stand trial or face the other burdens of litigation." (Internal quotation marks omitted.) Id. The second prong of Curcio has been deemed satisfied under this rationale for actions that are claimed to violate: sovereign immunity; Shay v. Rossi , 253 Conn. 134, 164-67, 749 A.2d 1147 (2000), overruled in part on other grounds by Miller v. Egan , 265 Conn. 301, 325, 828 A.2d 549 (2003) ; immunity for statements made in judicial and quasi-judicial proceedings; Chadha v. Charlotte Hungerford Hospital , 272 Conn. 776, 787, 865 A.2d 1163 (2005) ; religious institutions' first amendment immunity; Dayner v. Archdiocese of Hartford , supra, at 771-72, 23 A.3d 1192 ; statutory immunity; Manifold v. Ragaglia , 94 Conn.App. 103, 112-13, 891 A.2d 106 (2006) ; the prohibition against double jeopardy; State v. Longo , 192 Conn. 85, 91, 469 A.2d 1220 (1984) ; and res judicata. Lighthouse Landings, Inc. v. Connecticut Light & Power Co. , 300 Conn. 325, 328 n.3, 15 A.3d 601 (2011). It is well established that no right to immunity from suit arises from the lapse of an ordinary statute of limitations. "The purpose of a statute of limitations is to prevent stale claims and unnecessary delays in the presentation of issues.... A plaintiff's timely filed action provides notice to the defendant and ensures that the defendant does not find itself in a situation where, because of the lapse of time, [the defendant] is unable to gather facts, evidence, and witnesses necessary to afford . a fair defense. . Statutes of limitations also allow 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 ." (Internal quotation marks omitted.) Doe v. Hartford Roman Catholic Diocesan Corp. , 317 Conn. 357, 422-23, 119 A.3d 462 (2015). Because such interests may be adequately vindicated by a trial judgment in the defendant's favor or on appeal, an adverse ruling on a statute of limitations defense has been deemed not to satisfy the second prong of Curcio . See State v. Coleman , 202 Conn. 86, 91, 519 A.2d 1201 (1987) ("As an affirmative defense, the statute of limitations provides the defendant with a shield, not against prosecution itself, but against successful prosecution.... [T]he rights afforded the defendant, via the remedy of the statute of limitations, were not concluded by the denial of her motion. Those rights, if they exist in this case, are still intact and may be enforced on trial or on appeal from a final judgment." [Citation omitted.] ); see also Santorso v. Bristol Hospital , 308 Conn. 338, 354 n.9, 63 A.3d 940 (2013) ( "the denial of a statute of limitations defense is not itself an appealable final judgment"). Our case law has long recognized, however, that time limitations in a statutorily created right of action with no common law antecedent, like a wrongful death action under § 52-555, are not ordinary statutes of limitations. See Korb v. Bridgeport Gas Light Co. , 91 Conn. 395, 397-402, 99 A. 1048 (1917) ; DeMartino v. Siemon , 90 Conn. 527, 528-29, 97 A. 765 (1916). In Korb , the court explained with regard to the predecessor to § 52-555 : "The [wrongful death] statute . creates a liability unknown to the common law, and contains a proviso that no action shall be brought upon it but within one year from the neglect complained of. This proviso is something more than an ordinary statute of limitations. It embodies an essential element of the cause of action created-a condition attached to the right to sue at all. The liability and the remedy are created by the same statutes, and the limitations of the remedy are, therefore, to be treated as limitations of the right. . It follows that the statutory provision or provisions prescribing the limitation must be strictly observed if liability is to attach to the claimed offender. Failure to show such observance results in a failure to show the existence of a good cause of action." (Citations omitted; internal quotation marks omitted.) Korb v. Bridgeport Gas Light Co. , supra, at 397, 99 A. 1048 ; see also Baxter v. Sturm, Ruger & Co. , 230 Conn. 335, 340, 644 A.2d 1297 (1994) ("[a] limitation period is considered 'one of the congeries of elements necessary to establish the right,' and therefore characterized as substantive, only when it applies to a new right created by statute"). In light of the essential and integral nature of such time limitations to the existence of the cause of action, this court has characterized them as jurisdictional. See Karp v. Urban Redevelopment Commission , 162 Conn. 525, 529, 294 A.2d 633 (1972) ("the general rule [is] that a time limitation on the enforcement of a right, created by statute and not existing at common law, is a part of the right and must be met in order to provide a court with jurisdiction to hear the cause of action"); see also Ecker v. West Hartford , 205 Conn. 219, 233, 530 A.2d 1056 (1987) (deeming wrongful death action jurisdictional under this general rule). This body of law provides the requisite background to address the court's statement in Kuehl , on which the defendant relies in the present case. In Kuehl , this court stated: "While a nonjurisdictional statute of limitations merely provides relief from liability, a jurisdictional statute of limitations provides freedom from suit ." (Emphasis added.) St. Paul Travelers Cos. v. Kuehl , supra, 299 Conn. at 815, 12 A.3d 852. The court cited no authority for this proposition, and the resolution of the appeal was not dependent on that distinction. Although the jurisdictional distinction in Kuehl may have accurately reflected that the party invoking the jurisdictional bar had certain legal rights under the facts of that case, it inaccurately characterizes this effect as giving rise to immunity from suit for purposes of Curcio . It is well settled that jurisdictional prerequisites to suit operate as a constraint on the court's ability to entertain the action, requiring dismissal of the action whenever that defect is manifested, even on appeal. Sousa v. Sousa , 322 Conn. 757, 770, 143 A.3d 578 (2016) ; St. Paul Travelers Cos. v. Kuehl , supra, 299 Conn. at 815, 12 A.3d 852. We have never suggested, however, that jurisdictional prerequisites to suit are intended to confer immunity from suit. If that were the case, an interlocutory appeal would be permitted every time a party challenged the satisfaction of any of the numerous justiciability matters that we have deemed to be jurisdictional in nature (standing, mootness, ripeness, political question doctrine); Office of the Governor v. Select Committee of Inquiry , 271 Conn. 540, 569, 858 A.2d 709 (2004) ; or any condition precedent to suit in a statutorily created cause of action that similarly has been deemed jurisdictional. See, e.g., Neighborhood Assn., Inc. v. Limberger , 321 Conn. 29, 45, 136 A.3d 581 (2016) (procedural requirements before initiating action to foreclose lien); Bristol v. Ocean State Job Lot Stores of Connecticut, Inc. , 284 Conn. 1, 5, 931 A.2d 837 (2007) (timely service of notice to quit in summary process action); Forbes v. Suffield , 81 Conn. 274, 275, 70 A. 1023 (1908) (timely notice of highway defect). Indeed, § 52-555 is only one of numerous statutes to which jurisdictional time limits apply. See, e.g., Paradigm Contract Management Co. v. St. Paul Fire & Marine Ins. Co. , 293 Conn. 569, 570-71, 576-77, 979 A.2d 1041 (2009) (actions to recover on bonds for labor or materials); Connecticut Steel Co. v. National Amusements, Inc. , 166 Conn. 255, 262-63, 348 A.2d 658 (1974) (actions to foreclose mechanic's liens); Avon Meadow Condominium Assn., Inc. v. Bank of Boston Connecticut , 50 Conn.App. 688, 699-700, 719 A.2d 66 (unfair trade practices actions), cert. denied, 247 Conn. 946, 723 A.2d 320 (1998) ; see also State v. Lombardo Bros. Mason Contractors, Inc. , 307 Conn. 412, 444, 54 A.3d 1005 (2012) (explaining general rule that time limitation "contained within a statute that creates a right of action that did not exist at common law" is deemed to be jurisdictional [internal quotation marks omitted] ). The appellate courts would be inundated with interlocutory appeals, in contravention of our intention that the Curcio exceptions to the final judgment rule be "narrow." State v. Garcia , 233 Conn. 44, 65, 658 A.2d 947 (1995), overruled in part on other grounds sub silentio by Sell v. United States , 539 U.S. 166, 179, 123 S.Ct. 2174, 156 L.Ed.2d 197 (2003) ; Burger & Burger, Inc. v. Murren , 202 Conn. 660, 664, 522 A.2d 812 (1987) ; see also Stroiney v. Crescent Lake Tax District , 197 Conn. 82, 85, 495 A.2d 1063 (1985). Moreover, because jurisdictional defects may be raised at any time and must be addressed before the court can proceed on the merits of an action; Broadnax v. New Haven , 270 Conn. 133, 153, 851 A.2d 1113 (2004) ; Jolly, Inc. v. Zoning Board of Appeals , 237 Conn. 184, 191 n.11, 676 A.2d 831 (1996) ; Chotkowski v. State , 213 Conn. 13, 17, 566 A.2d 419 (1989) ; a case implicating more than one such defect could give rise to multiple interlocutory appeals in a single action (i.e., initial appeal challenging standing and later appeal challenging compliance with time limits). Such a result would plainly contravene the purpose of the final judgment rule: "to discourage piecemeal appeals and to facilitate the speedy and orderly disposition of cases at the trial court level." (Internal quotation marks omitted.) Palmer v. Friendly Ice Cream Corp ., 285 Conn. 462, 468 n.7, 940 A.2d 742 (2008) ; accord Waterbury Teachers Assn. v. Freedom of Information Commission , 230 Conn. 441, 450, 645 A.2d 978 (1994). Accordingly, we are not persuaded that the jurisdictional effect of the time limitation itself brings the defendant's claim within the second prong of Curcio . Nor are we persuaded that the substantive distinction that gave rise to the jurisdictional effect of the time limit-limitation on the cause of action rather than limitation on the remedy-creates immunity from suit. This court previously has recognized that the lapse of a statute of repose is similarly viewed as extinguishing the right of action. See Baxter v. Sturm, Ruger & Co. , supra, 230 Conn. at 344-45, 644 A.2d 1297. Yet, the court has declined to treat all such statutes as materially different from ordinary statutes of limitations. See State v. Lombardo Bros. Mason Contractors, Inc. , supra, 307 Conn. at 443, 54 A.3d 1005. This is not to say that the distinction between the two types of time limitations has no material impact on the defendant's rights. A defendant's right to assert a defense based on a jurisdictional statutory time limit cannot be waived. St. Paul Travelers Cos. v. Kuehl , supra, 299 Conn. at 815, 12 A.3d 852. In the absence of any other statutory condition, the right to that defense vests upon the lapse of the time limitation. See Angelsea Productions, Inc. v. Commission on Human Rights & Opportunities , 248 Conn. 392, 407-408, 727 A.2d 1268 (1999) ; Hartford v. Freedom of Information Commission , 201 Conn. 421, 426-27, 518 A.2d 49 (1986) ; Hillier v. East Hartford , 167 Conn. 100, 109, 355 A.2d 1 (1974). As such, due process rights arise that constrain the legislature's ability to retroactively deprive a defendant of that defense. See Doe v. Hartford Roman Catholic Diocesan Corp. , supra, 317 Conn. at 415 n.44, 119 A.3d 462 ; Angelsea Productions, Inc. v. Commission on Human Rights & Opportunities , supra, at 407-408, 727 A.2d 1268 ; Hartford v. Freedom of Information Commission , supra, at 426-27, 518 A.2d 49 ; Hillier v. East Hartford , supra, at 109, 355 A.2d 1 ; see also Baxter v. Sturm, Ruger & Co. , supra, 230 Conn. at 340, 644 A.2d 1297 (recognizing that defendant retains defense even if action is brought in another jurisdiction for choice of law purposes; " 'if the limitation is so interwoven with . the cause of action as to become one of the congeries of elements necessary to establish the right, that limitation goes with the cause of action wherever brought' "). By contrast, a defendant's right to a defense under an ordinary statute of limitations may be waived; L. G. DeFelice & Son, Inc. v. Wethersfield , 167 Conn. 509, 513, 356 A.2d 144 (1975) ; and does not vest for purposes of due process until the defendant has successfully asserted that defense through a final judgment. See Doe v. Hartford Roman Catholic Diocesan Corp. , supra, at 414-15, 119 A.3d 462. The fact that a defendant may have a vested right to assert a time limitation defense, however, does not change the underlying purpose of that defense. As the court in Kuehl recognized, just like an ordinary statute of limitations, a jurisdictional time limitation serves the purpose of "securing finality and protecting against the enforcement of stale claims ." St. Paul Travelers Cos. v. Kuehl , supra, 299 Conn. at 814-15, 12 A.3d 852 ; see also id., at 809-10, 12 A.3d 852. As such, that interest may be vindicated by a favorable decision on the merits or on appeal. See State v. Coleman , supra, 202 Conn. at 91, 519 A.2d 1201. Accordingly, the lapse of the jurisdictional time limitation in the wrongful death action in the present case did not give rise to a right, even a colorable one, to immunity from suit. Nonetheless, the defendant argues in the present case that refusing to allow it to appeal pursuant to the second prong of Curcio would produce an absurd result because it could merely file a declaratory judgment action and obtain immediate appellate review in that action. We disagree. "Ordinarily, a declaratory judgment action will not be entertained if there is another action pending between the same parties in which the same issues are involved and may be adjudicated." Buchman v. Taylor , 151 Conn. 209, 211, 196 A.2d 111 1963) ; see also Beccia v. Waterbury , 185 Conn. 445, 454, 441 A.2d 131 (1981) ; Kolodney v. Kolodney , 2 Conn.App. 697, 700, 483 A.2d 622 (1984) ; Practice Book § 17-55 (3). Whether the defendant may have been able to immediately appeal an adverse decision in a declaratory judgment action filed before the present action does not bear on our resolution of the Curcio issue in this appeal. We conclude, therefore, that the Appellate Court properly dismissed the defendant's appeal for lack of a final judgment. We continue to adhere to our view, as expressed in both Isaac v. Mount Sinai Hospital , supra, 210 Conn. at 731, 557 A.2d 116, and Korb v. Bridgeport Gas Light Co. , supra, 91 Conn. at 402, 99 A. 1048, that the limitations period in our wrongful death statute, § 52-555, must be read in conjunction with the savings statute, § 52-592 (a), such that the time limitation contained in the latter modifies the time limitation contained in the former. Finally, we perforce observe that a review of our Curcio case law suggests that its standards, particularly with regard to whether a right is "colorable," have presented significant difficulties to litigants and courts alike. It may be that the time has come to modify or replace our Curcio jurisprudence. We leave that matter, however, to another day. We are persuaded that, in the present case, it is entirely appropriate to defer resolution of the timeliness of the present action until the conclusion of the merits in the underlying action. The judgment of the Appellate Court is affirmed. In this opinion the other justices 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 . 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." General Statutes § 52-555 (a) provides in relevant part: "In any action surviving to or brought by an executor or administrator for injuries resulting in death . such executor or administrator may recover from the party legally at fault for such injuries just damages together with the cost of reasonably necessary medical, hospital and nursing services, and including funeral expenses, provided no action shall be brought to recover such damages and disbursements but within two years from the date of death ." Although the plaintiff relies on Isaac, this court recognized as early as 1917 that even substantive time limits like the one in the wrongful death statute are not controlling if the savings statute applies. See Korb v. Bridgeport Gas Light Co., 91 Conn. 395, 402, 99 A. 1048 (1917) ("[w]e are of the opinion that the time limitation, forming an essential condition to the existence of a right of action under the [wrongful death statute], is one derived by reading together the proviso therein contained and [the savings statute], the latter section operating as a modification of the former"). Isaac v. Mount Sinai Hospital, supra, 210 Conn. at 731, 557 A.2d 116, underscored the vitality of the court's reasoning in Korb in the face of a claim that Korb had been undermined by subsequent case law deeming time limitations in a statutorily created action to be jurisdictional. The doctrine of collateral estoppel, in some instances, has also been deemed to satisfy the second prong of Curcio. Compare Convalescent Center of Bloomfield, Inc. v. Dept. of Income Maintenance, 208 Conn. 187, 195, 544 A.2d 604 (1988) (permitting interlocutory appeal of decision rejecting collateral estoppel defense to litigating issue decided adversely to appellees in prior administrative proceeding not subject to judicial review), with State v. Bacon Construction Co., 300 Conn. 476, 484-86, 15 A.3d 147 (2011) (declining to allow interlocutory appeal from denial of collateral estoppel defense to prejudgment remedy proceeding). After oral argument before this court, we issued an order directing the parties to file supplemental briefs addressing the following questions: "1. Should this court continue to characterize limitation periods contained within statutorily created rights of action as jurisdictional in nature; see State v. Lombardo Bros. Mason Contractors, Inc., 307 Conn. 412, 444, 54 A.3d 1005 (2012) ; or should this court apply the presumption in favor of subject matter jurisdiction to statutory time limitations for all other actions and determine whether strong evidence of legislative intent exists to overcome that presumption? See James L. v. Commissioner of Correction, 245 Conn. 132, 145-46, 712 A.2d 947 (1998). "2. If the court adopts the second approach, is there sufficient evidence of legislative intent to make the limitation period in the wrongful death statute, § 52-555, jurisdictional?" After our review of the parties' briefs, our case law, and legislative changes to § 52-555 subsequent to this court's characterization of the time limitation in § 52-555 as jurisdictional that did not overrule our case law, we conclude that we must continue to adhere to our long-standing jurisdictional characterization of such time limitations. In so concluding, we observe that our case law has established that this characterization is consistent with the general rule requiring strong evidence of legislative intent to overcome a presumption in favor of subject matter jurisdiction. See Neighborhood Assn., Inc. v. Limberger, 321 Conn. 29, 45-46, 136 A.3d 581 (2016) ; Williams v. Commission on Human Rights & Opportunities, 257 Conn. 258, 266, 777 A.2d 645 (2001). Kuehl was a declaratory judgment action in which the plaintiff insurer sought a declaration that a public act unconstitutionally had conferred jurisdiction on the workers' compensation commissioner to consider a claim, like that of the defendant claimant, that had been barred by a final judgment for failure to file a timely notice of claim. St. Paul Travelers Cos. v. Kuehl, supra, 299 Conn. at 801-802, 804, 12 A.3d 852. Prior to the commencement of the declaratory judgment action, the defendant claimant had filed a second claim with the commissioner invoking the new statutory exception added by the public act as a basis for the commissioner's jurisdiction. Id., at 807, 12 A.3d 852. While the second claim was pending before the commissioner, the trial court granted the plaintiff's motion for summary judgment in the declaratory judgment action, concluding that the public act was unconstitutional. Id. The defendant claimant appealed, arguing that the declaratory judgment action should have been dismissed on grounds of standing and ripeness in light of the pending claim before the commissioner. Id., at 808, 811, 12 A.3d 852. This court rejected those jurisdictional arguments. Id., at 811, 812, 12 A.3d 852. These facts reflect a notable distinction from the present case that sheds light on the court's comment in Kuehl regarding "freedom from suit." Id., at 815, 12 A.3d 852. At the time the injuries arose that gave rise to the claim for benefits in Kuehl, the only statute in existence bearing on the timeliness of the claim was the workers' compensation statute. Id., at 804-806, 12 A.3d 852. It was not until two years after all appeals from the disposition of the first claim had been exhausted that the legislature enacted the public act attempting to effectively revive the commissioner's jurisdiction in such cases. Id., at 806, 12 A.3d 852. Thus, in the preceding two year period, the plaintiff insurer properly could assert that the final judgment on the first claim precluded a change to the law exposing its insured to suit. In the present case, the savings statute and the wrongful death statute were concurrently in effect at the time the cause of action accrued.

12498827

Sharon CLEMENTS v. ARAMARK CORPORATION et al.

Clements v. Aramark Corp.

2018-05-29

AC 39488

644

652

189 A.3d 644

189

West's Atlantic Reporter, Third Series

Connecticut Appellate Court

Connecticut

2021-08-31T19:05:39.044951+00:00

Fastcase

Sharon CLEMENTS v. ARAMARK CORPORATION et al.

Sharon CLEMENTS v. ARAMARK CORPORATION et al. AC 39488 Appellate Court of Connecticut. Argued January 24, 2018 Officially released May 29, 2018 Gary W. Huebner, for the appellant (plaintiff). Dominick C. Statile, Glastonbury, with whom, on the brief, was Tushar G. Shah, Hartford, for the appellee (defendants). Keller, Prescott and Bright, Js.

4310

26166

BRIGHT, J. The principal issue in this appeal is the compensability, under the Workers' Compensation Act (act), General Statutes § 31-275 et seq., of an injury to an employee that occurred on an employer's premises when the employee became lightheaded, fell, and hit her head while walking to her work station before the start of her shift. The plaintiff, Sharon Clements, appeals from the decision of the Workers' Compensation Review Board (board) affirming the decision of the Workers' Compensation Commissioner for the Second District (commissioner) in favor of the defendant employer, Aramark Corporation (defendant), and the employer's insurer, Sedgwick CMS, Inc. The plaintiff claims that the board erred in holding that, because the plaintiff's fall was caused by her personal infirmity, rather than a workplace condition, her resultant head injury did not arise out of and in the course of her employment within the meaning of the act. We agree and, accordingly, reverse the decision of the board. The following undisputed facts, which are set forth in the commissioner's decision or are ascertained from uncontested portions of the record, are relevant to our consideration of the issue on appeal. The plaintiff, while employed by the defendant, served as a mess attendant at the Coast Guard Academy in New London (academy). Her duties included serving food and beverages, and cleaning up after meals. She typically worked during both breakfast and lunch. On the morning of September 19, 2012, the plaintiff drove to work, parked her vehicle at the academy at approximately 5:40 a.m., and exited her vehicle. She walked a short distance from her vehicle to a building. The path was short, not uphill or inclined in any way. The plaintiff did not trip. The plaintiff testified that, after entering the building and walking down a hallway, she "went through the door to go out to get into the next building," where she became lightheaded and passed out, falling backward "on the [asphalt]," and hitting her head on the ground. No one witnessed her fall. After she was discovered by coworkers, someone called for assistance. Members of the New London Fire Department arrived and found the plaintiff "lying on the ground" with "a bump on the back of her head," "unable to sign [a] consent form because of her level of consciousness ." The plaintiff was taken to Lawrence + Memorial Hospital (hospital). Hospital reports indicate that the plaintiff suffered from a syncopal episode and that she was diagnosed with ecchymosis and swelling. A treating physician, Neer Zeevi, and hospital records, indicate that the plaintiff's syncope likely was cardiac or cardiogenic in etiology. While in the emergency room, the plaintiff suffered from cardiac arrest. During her stay in the hospital, the plaintiff had a pacemaker inserted. In a discharge summary report, John Nelson, a neurologist, opined: "Apparently she had significant head trauma secondary to her fall. While in the emergency department, she again lost consciousness and was seen to have asystole on monitoring. [Cardiopulmonary resuscitation (CPR) ] was initiated and the patient had return of spontaneous rhythm and blood pressure shortly afterwards. Per the [emergency room] physician, CPR was reportedly begun within [twenty] seconds on onset of asystole and was only carried out for approximately [ten] seconds before the patient experienced spontaneous return of rhythm." (Footnote added.) The plaintiff has a history of cardiac disease, hypertension, hyperlipidemia, hypothyroidism, and an irregular heartbeat. She also has a family history of coronary disease. Her discharge records set forth, inter alia, the following diagnosis: asystolic arrest, cardiogenic syncope with concussive head injury, and hypothyroidism. On the basis of these findings, the commissioner determined that "the [plaintiff's] injury did not arise out of her employment with the [defendant], but was caused by a cardiogenic syncope." The plaintiff appealed from the commissioner's decision to the board. She claimed, in relevant part, that the commissioner had misapplied the law and improperly determined that her injury did not arise out of her employment. The board disagreed, concluding that "[t]here is no question that the [plaintiff] has been left with a significant disability as a result of the concussive injury which is the subject of this appeal. Nevertheless, the [plaintiff] provided the . commissioner with no evidence [that] would substantiate the claim that her employment contributed in any fashion to the fall [that] led to the injury or that the injury would not have occurred had the claimant been somewhere else at the time." Accordingly, the board affirmed the decision of the commissioner, ruling in favor of the defendant. This appeal followed. We begin by setting forth the standard of review applicable to workers' compensation appeals. "The commissioner has the power and duty, as the trier of fact, to determine the facts . and [n]either the . board nor this court has the power to retry facts . The conclusions drawn by [the commissioner] from the facts found [also] 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 . Cases that present pure questions of law, however, invoke a broader standard of review than is ordinarily involved in deciding whether, in light of the evidence, the agency has acted unreasonably, arbitrarily, illegally or in abuse of its discretion . [I]t is well established that, in resolving issues of statutory construction under the act, we are mindful that the act indisputably is a remedial statute that should be construed generously to accomplish its purpose . The humanitarian and remedial purposes of the act counsel against an overly narrow construction that unduly limits eligibility for workers' compensation . Accordingly, [i]n construing workers' compensation law, we must resolve statutory ambiguities or lacunae in a manner that will further the remedial purpose of the act . [T]he purposes of the act itself are best served by allowing the remedial legislation a reasonable sphere of operation considering those purposes." (Citations omitted; internal quotation marks omitted.) Hart v. Federal Express Corp. , 321 Conn. 1, 18-19, 135 A.3d 38 (2016). "Our scope of review of the actions of the board is similarly limited. . The role of this court 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." (Internal quotation marks omitted.) Wiblyi v. McDonald's Corp. , 168 Conn. App. 77, 86, 144 A.3d 1075 (2016). The plaintiff states that "[t]his appeal asks the court to determine whether the correct standard of law was applied to the facts as found by the trial commissioner." She claims that the board erred in holding that, because the plaintiff's fall at work was caused by her personal infirmity, rather than a workplace condition, her resultant head injury did not arise out of and in the course of her employment. She argues that her head injury was caused by her head striking the ground at her place of employment, not by any personal infirmity. The personal infirmity that caused her fall, she argues, did not involve a head injury ; rather, the head injury for which she is seeking benefits resulted from her head hitting the ground at her workplace. Accordingly, she argues, the board erred in concluding that her head injury did not arise out of and in the course of her employment. It is beyond dispute that the plaintiff's head injury was caused by her head hitting the ground after her fall. The plaintiff concedes that the fall, itself, was the result of a personal infirmity. The defendant contends that the plaintiff's head would not have hit the ground if she had not fallen as a result of a personal infirmity. Consequently, it argues, the injuries did not arise out of, or occur in the course of, her employment and are not compensable under the act. We begin our analysis with the relevant language of the act. Section 31-275 provides in relevant part: "(1) 'Arising out of and in the course of his employment' means an accidental injury happening to an employee . originating while the employee has been engaged in the line of the employee's duty in the business or affairs of the employer upon the employer's premises ." From this language our Supreme Court has derived a two part test. "It is well settled that, because the purpose of the act is to compensate employees for injuries without fault by imposing a form of strict liability on employers, to recover for an injury under the act a plaintiff must prove that the injury is causally connected to the employment. To establish a causal connection, a plaintiff must demonstrate that the claimed injury (1) arose out of the employment, and (2) in the course of the employment." (Internal quotation marks omitted.) Spatafore v. Yale University , 239 Conn. 408, 417-18, 684 A.2d 1155 (1996). "Proof that the injury arose out of the employment relates to the time, place and circumstances of the injury . Proof that the injury occurred in the course of the employment means that the injury must occur (a) within the period of the employment; (b) at a place the employee may reasonably be; and (c) while the employee is reasonably fulfilling the duties of the employment or doing something incidental to it." (Citation omitted; internal quotation marks omitted.) Id., at 418, 684 A.2d 1155. Although both factors of this two part test appear to merge into a single test of work-relatedness, "the phrase 'arising out of,' specifically, has been construed as referring to injury causation . whereas 'in the course of' relates to the time, place, and circumstances of the injury." Birnie v. Electric Boat Corp. , 288 Conn. 392, 407-408, 953 A.2d 28 (2008). Because the defendant concedes that the second factor of the test has been met; see footnote 4 of this opinion; we consider only whether the plaintiff's head injury arose out of her employment. The plaintiff argues that her head injury arose out of her employment because it occurred on the premises of her employer when she hit her head on the ground before the start of her morning shift. The plaintiff primarily relies on Savage v. St. Aeden's Church , 122 Conn. 343, 189 A. 599 (1937), to support her claim. The defendant argues that the plaintiff's injury was caused by her fall, which did not arise out of her employment, but was the result of a personal infirmity. It further argues that Savage is inapposite because "the injury in question [in that case] was caused by a 'hazard' that existed as a condition of the employment, [namely,] working on a ladder." On the basis of our Supreme Court's decision in Savage , we agree with the plaintiff. In Savage , the plaintiff brought a workers' compensation claim on behalf of the decedent, an employee of the defendant church, who had been found in the basement recreation room at the rectory, "lying flat on his back, his overalls partly on, a painter's cap by his head, and on the pool-table near by his bag with the paint brushes he expected to use in his work at the rectory. He had apparently fallen backward on the concrete floor and fractured his skull. The commissioner found that the proximate cause of his death was the fracture of his skull upon the concrete floor, and that the cause of his fall was unknown, though he also found that . he [had previously suffered] from a cystolic murmur at the apex of his heart. He further found that the fatal injury arose out of and in the course of the employment." Savage v. St. Aeden's Church , supra, 122 Conn. at 345, 189 A. 599. Our Supreme Court explained that it did not appear to be questioned that the decedent's injury was suffered in the course of his employment: "So far as appears it occurred within the period of the employment, at a place where [the decedent] might reasonably be, and while he was reasonably fulfilling the duties of the employment or doing something incidental to it." Id. What was questioned, however, was whether the injury arose out of the decedent's employment with the church. Id. The plaintiff alleged that the proximate cause of the decedent's injury was "the fracture of his skull on the concrete floor which resulted from his fall." Id., at 346, 189 A. 599. As in the present case, the defendants in Savage , however, argued that because the fall was due to causes unrelated to the employment, namely a heart attack or a fainting spell, "the resulting injury was not due to a hazard of the employment ." Id. The court determined that this was a question of proximate causation. Id. Looking to the case of Gonier v. Chase Companies, Inc. , 97 Conn. 46, 115 A. 677 (1921), our Supreme Court explained that "an injury received in the course of the employment does not cease to be one arising out of the employment merely because some infirmity due to disease has originally set in action the final and proximate cause of the injury. The employer of labor takes his workman as he finds him and compensation does not depend upon his freedom from liability to injury through a constitutional weakness or latent tendency. Whatever predisposing physical condition may exist, if the employment is the immediate occasion of the injury, it arises out of the employment because it develops within it." (Internal quotation marks omitted.) Savage v. St. Aeden's Church , supra, 122 Conn. at 346-47, 189 A. 599. Our Supreme Court, in addressing the defendants' argument in Savage , an argument that is strikingly similar to the argument advanced in the present case, namely, that the fall did not arise out of the employment because it was due to some personal infirmity and not some defect in the floor or other dangerous condition of employment, explained: "An injury which occurs in the course of the employment ordinarily arises out of the employment, because the fact that the employee is in the course of his employment is the very thing which subjects him to the risks which are incident to the employment . An act or omission for the exclusive benefit of the employee or of another than the master [however] is not ordinarily a risk incident to the employment . [W]hen an employee voluntarily departs from his duties . his injuries result from his own act and have their origin in a risk which he has created and which has no causal connection with his employment . Also, of course, death from natural causes, although occurring in the course of the employment, has no causal connection with it, as would have been the case here if a heart attack had been the direct cause of [the decedent's] death rather than the fall to the concrete floor. But, aside from situations such as these, where the injury arises from a cause which has no connection with the employment, an injury arising in the course of the employment ordinarily is the result of a risk incident to the employment ." (Citations omitted; emphasis added.) Id., at 347-48, 189 A. 599. The court further explained: "The hazard is peculiar to the employment because it is incidental to and grows out of the conditions of the employment and not because it should be foreseen or expected, or because it involves danger of serious bodily injury. We have never held that the conditions of the employment must be such as to expose the employee to extraordinary risks in order to entitle him to compensation in case of injury. The risk may be no different in degree or kind than those to which he may be exposed outside of his employment. The injury is compensable, not because of the extent or particular character of the hazard, but because it exists as one of the conditions of the employment." Id., at 348-49, 189 A. 599. In the present case, the defendant argues in its appellate brief that the board correctly determined that Savage is distinguishable from the present case because "the injury [in Savage ] was caused by a 'hazard' that existed as a condition of the employment, in that case, working on a ladder." We disagree. Our Supreme Court in Savage did not determine that the decedent in that case had fallen off a ladder. Rather, the court determined that the decedent had been standing on the ground , not on the ladder, when he fell backward and hit his head. See Savage v. St. Aeden's Church , supra, 122 Conn. at 350, 189 A. 599. The court explained that a "hazard" exists where an accident occurs incident to the employment; the accident, itself, is the hazard. See id., at 348, 349, 189 A. 599 ("It is not necessary that the place where the employee is working be in itself a dangerous one. It is enough if it turns out that there was a hazard from the fact that the accident happened."). In comparing the facts surrounding the Savage employee's injury to the injury of the employee in Gonier v. Chase Companies, Inc. , supra, 97 Conn. at 54, 58, 115 A. 677 (decedent's "employment brought him upon . scaffolding," and "as he stood up to continue his work he became faint and fell" and died), our Supreme Court explained in Savage that "[t]he decision [to award benefits in Gonier ] would have been the same had the fall [in Gonier ] been, as in the present case , simply to the floor upon which the employee was standing ." (Emphasis added.) Savage v. St. Aeden's Church , supra, 122 Conn. at 350, 189 A. 599. Clearly then, the court in Savage stated that the employee had been standing upon the floor when he fell. See id. Our Supreme Court reaffirmed its reasoning in Savage in the case of Blakeslee v. Platt Bros. & Co. , 279 Conn. 239, 902 A.2d 620 (2006). In Blakeslee , the plaintiff was injured when three coworkers attempted to restrain him while he was suffering a grand mal seizure. Id., at 240-41, 902 A.2d 620. The commissioner determined, and the board agreed, that the injuries were not compensable because they arose out of the seizure, which did not arise out of the plaintiff's employment. Id., at 241-42, 902 A.2d 620. Our Supreme Court, citing Savage , rejected the board's conclusion. Id., at 245-46, 902 A.2d 620. In doing so, the court opined that "it is evident that the commissioner and the board began with a single proposition from which all other conclusions inexorably followed, namely, that, if the plaintiff's seizure was a noncompensable injury, any injuries causally connected thereto similarly must be noncompensable. This essential proposition, however, cannot be sustained." Id., at 245, 902 A.2d 620. The court further relied on the language it first set forth in Savage and held that "[c]ompensibility also may not be denied simply because the plaintiff could have been exposed to a similar risk of injury from the administration of aid had he suffered the seizure outside of work. [A]n injury may arise out of an employment although the risk of injury from that employment is no different in degree or kind [from that] to which [the employee] may be exposed outside of his employment. The injury is compensable, not because of the extent or particular character of the hazard, but because it exists as one of the conditions of the employment." (Footnote added; internal quotation marks omitted.) Id., at 246, 902 A.2d 620. We conclude that the board and the commissioner have made a similar error in the present case to the one they made in Blakeslee . They concluded that, because the plaintiff's personal infirmity, which caused her to faint and fall, was a noncompensable injury, the injury resulting from her head striking the ground also must be noncompensable. On the basis of our Supreme Court's decisions in both Blakeslee and Savage , we disagree with this conclusion. In the present case, as in the Savage case, the plaintiff, due to a personal infirmity, fell backward and hit her head on the ground at her place of employment. Although the personal infirmity that caused her to fall did not arise out of her employment, the resultant injuries that were caused by her head hitting the ground at her workplace did arise out of her employment. Accordingly, the board improperly affirmed the commissioner's decision holding otherwise. The decision of the Workers' Compensation Review Board is reversed and the case is remanded to the board with direction to sustain the plaintiff's appeal. In this opinion the other judges concurred. In its brief, the defendant concedes that "[t]he facts as stated by the [plaintiff] are undisputed with the exception of references made regarding the locus of the [plaintiff's] fall giving rise to the subject claim. The [plaintiff] has averred that her fall occurred on 'concrete' giving rise to the subject injury. No facts were found as to the actual nature of the surface upon which the [plaintiff] fell. As such, no finding of fact in the record supports reference to the surface as concrete." We note, however, that the board repeatedly stated in its decision that the ground was concrete. During oral argument before this court, the plaintiff stated that it did not make a difference to her claim whether the ground was concrete or some other material. Stedman's Medical Dictionary (28th Ed. 2006) p. 1887, defines "syncope" as the "[l]oss of consciousness and postural tone caused by diminished cerebral blood flow." "Ecchymosis" is defined as "[a] purplish patch caused by extravasation of blood into the skin ." Stedman's Medical Dictionary (28th Ed. 2006) p. 606. Stedman's Medical Dictionary (28th Ed. 2006) p. 172, defines "asystole" as the "[a]bsence of contractions of the heart." In its appellate brief, the defendant, after setting forth the two factor causal connection test, specifically concedes that "[h]ere, the only disagreement is whether the injury arose out of the employment ." (Emphasis added.) Despite this very clear statement, however, when Judge Keller made a statement during appellate oral argument to the effect that the parties had agreed that the plaintiff's injury had occurred in the course of her employment , the defendant's counsel stated: "I don't agree to that. I never said that ." (Emphasis added.) We reject counsel's baseless assertion in light of the defendant's clear statement in its appellate brief. In addition, we thoroughly have reviewed the certified record in this case and have found that the defendant specifically told the commissioner in its trial brief that "[t]his incident occurred when [the plaintiff] arrived at her place of employment, walked from her car to the front door, and then fell to the ground. As such, the [defendant ] concede [s ] that the injury occurred while in the course of her employment . Any argument raised by the [plaintiff] in regard to the timing, location, incident to employment, or the mutual benefit doctrine must be disregarded by the [c]ommissioner, as . those facts only empower a finding that the accident occurred 'in the course of employment' and are immaterial in determining the dispositive issue at bar: whether the injury arose out of the employment." (Emphasis added.) In light of these clear concessions, we conclude that the defendant, in fact, has conceded the second factor despite its protestation during appellate argument. Accordingly, we do not address it. Although the workers' compensation statutes at the time of the Savage decision differ from the present statutes, neither the parties nor the board made any argument that the difference in the statutes affects the applicability or value of the Savage case. We conclude that the precedential value of Savage on this particular issue remains intact because Savage remains good law, having been cited or quoted recently by our Supreme Court. See Sullins v. United Parcel Service, Inc. , 315 Conn. 543, 552, 108 A.3d 1110 (2015) ; Blakeslee v. Platt Bros. & Co. , 279 Conn. 239, 246, 902 A.2d 620 (2006). We recognize that our Supreme Court and this court, at times, have made statements that appear to be inconsistent with this statement. For example, in Labadie v. Norwalk Rehabilitation Services, Inc. , 274 Conn. 219, 238, 875 A.2d 485 (2005), our Supreme Court quoted Larke v. Hancock Mutual Life Ins. Co. , 90 Conn. 303, 310, 97 A. 320 (1916), for the proposition that "conditions that arise out of employment are 'peculiar to [it], and not such exposures as the ordinary person is subjected to.' " Neither in Savage , which came after Larke , nor in Blakeslee , which came after Labadie , did the court apply this proposition. To the contrary, the court held in both cases that the injury was compensable even though the risk the employee faced was no greater than what he would have been exposed to outside of work. We also note that the board relied upon the dissent , rather than the majority, in Blakeslee v. Platt Bros. & Co. , supra, 279 Conn. at 259-60, 902 A.2d 620 (Sullivan, J. , dissenting), to support its conclusion. Taking guidance from Justice Sullivan's discussion of Professor Arthur Larson's framework designating risks as personal or neutral to assess compensability, it appears that the board overlooked the statement in the majority opinion that our Supreme Court "has not heretofore adopted this framework" and the fact that it "decline[d] to so in" that case. Blakeslee v. Platt Bros. & Co. , supra, at 251 n.9, 902 A.2d 620. The defendant points out that the board has reached the same conclusion in other cases involving injuries resulting from an employee's medical condition unrelated to his employment. In those cases the board also distinguished Savage on the misunderstanding that the plaintiff in Savage fell from a ladder. We certainly are not bound by those decisions.

12486301

Charles CORNELIUS v. COMMISSIONER OF CORRECTION.

Cornelius v. Comm'r of Corr.

2016-08-09

No. 37861.

1179

1183

143 A.3d 1179

143

West's Atlantic Reporter, Third Series

Connecticut Appellate Court

Connecticut

2021-08-27T20:57:13.998502+00:00

Fastcase

Charles CORNELIUS v. COMMISSIONER OF CORRECTION.

Charles CORNELIUS v. COMMISSIONER OF CORRECTION. No. 37861. Appellate Court of Connecticut. Argued April 12, 2016. Decided Aug. 9, 2016. Eric M. Creizman, pro hac vice, with whom were Brittany B. Paz and, on the brief, Norman A. Pattis and Melissa Madrigal, pro hac vice, for the appellant (petitioner.). Kathleen A. Campbell, certified legal intern, with whom were Steven R. Strom, assistant attorney general, and, on the brief, George Jepsen, attorney general, for the appellee (respondent). SHELDON, PRESCOTT and HARPER, Js.

1818

11230

PER CURIAM. The petitioner, Charles Cornelius, appeals from the judgment of the habeas court denying his petition for a writ of habeas corpus, in which he alleged that the respondent, the Commissioner of Correction, improperly rescinded risk reduction earned credits (RREC) that he had accumulated while he was incarcerated, on the basis of his alleged affiliation with a security risk group (SRG), namely, the Aryan Brotherhood. The respondent argues that the petitioner's claim is moot because he has completed his state sentence, and thus that there is no practical relief that this court can afford him. We agree with the respondent that the petitioner's claim is moot, and thus we dismiss the petitioner's appeal. The following procedural history is relevant to the petitioner's claim on appeal. On August 10, 2004, the petitioner entered guilty pleas to three charges: one count of attempted manufacture of a bomb in violation of General Statutes § 53a-49 and 53-80a ; and two counts of possession of an assault weapon in violation of General Statutes § 53-202c. On December 17, 2004, he was sentenced on those charges to a total term of incarceration of twenty-five years, execution suspended after twelve years, followed by ten years of special parole. On January 4, 2011, the petitioner's sentence was modified to ten years and six months incarceration, followed by ten years of special parole. On November 18, 2004, the petitioner was sentenced to a term of incarceration of eighteen months in the United States District Court for the District of Connecticut, in United States v. Cornelius, United States District Court, Docket No. 3:04-CR-127 (CFD) (D.Conn. November 18, 2004), after being convicted of importing or manufacturing firearms and fraud with identification documents. These federal charges arose from the same incident that underlay his state charges. His federal sentence was ordered to run consecutively to his state sentence. On June 20, 2014, the petitioner filed a petition for a writ of habeas corpus, alleging that he was being unlawfully confined because the respondent had improperly rescinded 456 days of good time credit that he had accumulated under the RREC program while serving his state sentence. The petitioner alleged that he was improperly determined to be a member of the prison and street gang known as the Aryan Brotherhood, which had been designated as an SRG. Upon being designated an SRG member, the petitioner was sanctioned by the loss of 456 days of RREC as well as by a prohibition from earning prospective credit. On January 20, 2015, and February 4, 2015, the habeas court held a two day trial. On March 10, 2015, the habeas court denied the petition for a writ of habeas corpus on the grounds that the petitioner's right to due process had not been violated by the respondent's rescission of the petitioner's RREC and that the rescission was supported by sufficient evidence. On March 20, 2015, the petitioner filed a petition for certification to appeal to this court, which was granted. On April 8, 2015, the petitioner timely filed this appeal. On May 20, 2015, the petitioner completed his state term of incarceration and was transferred to the custody of the United States Marshals Service, for delivery to the Federal Bureau of Prisons to begin serving his consecutive eighteen month federal sentence. The respondent claims that the petitioner's challenge to the rescission of his RREC is moot because he has completed his state sentence and is no longer in state custody. "[A]n actual controversy must exist not only at the time the appeal is taken, but also throughout the pendency of the appeal.... When, during the pendency of an appeal, events have occurred that preclude an appellate court from granting any practical relief through its disposition of the merits, a case has become moot."(Internal quotation marks omitted.) Putman v. Kennedy, 279 Conn. 162, 169, 900 A.2d 1256 (2006). Although the petitioner has completed his state term of incarceration, he argues that the collateral consequences exception to the mootness doctrine applies to his challenge to the rescission of the RREC that he had accumulated while serving his state sentence because if we rule in his favor on that challenge, the extra time he would thereby be found to have served on his state sentence due to the improper rescission could be credited against his current federal sentence. "[U]nder this court's long-standing mootness jurisprudence . despite developments during the pendency of an appeal that would otherwise render a claim moot, the court may retain jurisdiction when a litigant shows that there is a reasonable possibility that prejudicial collateral consequences will occur.... [T]o invoke successfully the collateral consequences doctrine, the litigant must show that there is a reasonable possibility that prejudicial collateral consequences will occur. Accordingly, the litigant must establish these consequences by more than mere conjecture, but need not demonstrate that these consequences are more probable than not. This standard provides the necessary limitations on justiciability underlying the mootness doctrine itself. Where there is no direct practical relief available from the reversal of the judgment . the collateral consequences doctrine acts as a surrogate, calling for a determination whether a decision in the case can afford the litigant some practical relief in the future." (Internal quotation marks omitted.) Id. Here, the petitioner has failed to produce any evidence tending to establish that there is a reasonable possibility that if his RREC were found to have been improperly rescinded, the extra time he would thereby be found to have served on his state sentence would be credited against his federal sentence. The only legal authority the petitioner has cited in support of that claim is 18 U.S.C. § 3585(b), which expressly provides that an inmate shall be afforded credit "for any time he has spent in official detention prior to the date the sentence commences" so long as "that [credit] has not been credited against another sentence." The federal courts have held that a federal prisoner is not entitled to credit for time spent serving a state sentence, even if the state sentence is later invalidated. See Meagher v. Clark, 943 F.2d 1277, 1281 (11th Cir.1991) ; id., at 1280 (citing Scott v. United States, 434 F.2d 11 [ (5th Cir.1970) ] ); see also Bagley v. Rogerson, 5 F.3d 325, 330 (8th Cir.1993) (noting that courts have not found a due process violation from the denial of federal credit for time served on a vacated state sentence, even when the service of the state sentence delayed the start of a federal sentence); Pinaud v. James, 851 F.2d 27, 31-32 (2d Cir.1988) ; Green v. United States, 334 F.2d 733, 736 (1st Cir.1964) (defendant not entitled to credit against federal sentence for time served on state sentence even though the state sentence was subsequently reversed), cert. denied, 380 U.S. 980, 85 S.Ct. 1345, 14 L.Ed.2d 274 (1965). Although the foregoing cases involve the application of 18 U.S.C. § 3568, the predecessor statute to § 3585, the enactment of § 3585, as it pertains to the facts at hand, simply codified the longstanding prohibition against affording federal inmates double credit for time they have spent serving sentences imposed by other jurisdictions, which was not explicit in the language of § 3568. Here, because the 456 days at issue in this case were initially credited against the petitioner's state sentence, the completion of which was necessary in order to trigger the commencement of his consecutive federal sentence, those days cannot be recredited against his federal sentence even if we determine that the state should not have required him to serve them by rescinding his RREC. The petitioner has thus failed to demonstrate that there is a reasonable possibility that a ruling from this court declaring that his RREC had been improperly rescinded would afford him any practical relief. We thus conclude that his claim is moot. The appeal is dismissed. General Statutes (Supp. 2016) § 18-98e provides in relevant part: "(a) 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-54a, 53a-54b, 53a-54c, 53a-54d, 53a-55, 53a-55a, 53a-70a, 53a-70c or 53a-100aa, or is a persistent dangerous felony offender or persistent dangerous sexual offender pursuant to section 53a-40, 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. "(b) An inmate may earn risk reduction credit for adherence to the inmate's offender accountability plan, for participation in eligible programs and activities, and for good conduct and obedience to institutional rules as designated by the commissioner, provided (1) good conduct and obedience to institutional rules alone shall not entitle an inmate to such credit, and (2) the commissioner or the commissioner's designee may, in his or her discretion, cause the loss of all or any portion of such earned risk reduction credit for any act of misconduct or insubordination or refusal to conform to recommended programs or activities or institutional rules occurring at any time during the service of the sentence or for other good cause. If an inmate has not earned sufficient risk reduction credit at the time the commissioner or the commissioner's designee orders the loss of all or a portion of earned credit, such loss shall be deducted from any credit earned by such inmate in the future...." We note that § 18-98e was amended in 2015; see Public Acts 2015, No. 15-216, § 9; however, the amendment is not relevant to this appeal. For convenience, we refer herein to the revision codified in the 2016 supplement to the General Statutes. Section 3585(b) of title 18 of the United States Code provides: "A defendant shall be given credit toward the service of a term of imprisonment for any time he has spent in official detention prior to the date the sentence commences- "(1) as a result of the offense for which the sentence was imposed; or "(2) as a result of any other charge for which the defendant was arrested after the commission of the offense for which the sentence was imposed; that has not been credited against another sentence."

12486300

Eddy PLACIDE v. COMMISSIONER OF CORRECTION.

Placide v. Comm'r of Corr.

2016-08-09

No. 37189.

1174

1179

143 A.3d 1174

143

West's Atlantic Reporter, Third Series

Connecticut Appellate Court

Connecticut

2021-08-27T20:57:13.998502+00:00

Fastcase

Eddy PLACIDE v. COMMISSIONER OF CORRECTION.

Eddy PLACIDE v. COMMISSIONER OF CORRECTION. No. 37189. Appellate Court of Connecticut. Argued April 6, 2016. Decided Aug. 9, 2016. Vishal K. Garg, Wethersfield, for the appellant (petitioner). Margaret Gaffney Radionovas, senior assistant state's attorney, with whom, on the brief, were Richard J. Colangelo, Jr., state's attorney, and Tamara A. Grosso, assistant state's attorney, for the appellee (respondent). ALVORD, KELLER and PELLEGRINO, Js.

2289

14615

PELLEGRINO, J. Following a grant of certification to appeal, the petitioner, Eddy Placide, appeals from the judgment of the habeas court denying his amended petition for a writ of habeas corpus. On appeal, he claims that the habeas court (1) improperly rejected his claim that his right to due process under the federal and state constitutions was violated because his decision to enter two guilty pleas was not made knowingly, intelligently, and voluntarily, and (2) erred in denying his claim of ineffective assistance of trial counsel. We affirm the judgment of the habeas court. The following facts and procedural history as set forth in the memorandum of decision by the habeas court are relevant to the present appeal. The petitioner was born in Port Au Prince, Haiti, and legally entered the United States in 2007 in the state of Florida. The petitioner became a legal permanent resident on August 8, 2007. On November 13, 2013, the petitioner entered guilty pleas and was sentenced for the crimes of assault in the second degree in violation of General Statutes § 53a-60 and assault in the third degree in violation of General Statutes § 53a-61. The petitioner received a total effective sentence of three years incarceration, execution suspended, followed by two years of probation. Two days after the sentencing for the two assault charges, the petitioner was arrested for another crime. He subsequently came to the attention of immigration officials, who took the petitioner into custody. On the sole basis of his conviction for assault in the second degree, the immigration court ordered the petitioner removed to Haiti. The petitioner was removed from the United States in May, 2015. The petitioner filed an amended three count petition for a writ of habeas corpus dated June 11, 2014, after he was taken into custody by immigration officials. Counts one and two are relevant to this appeal. In count one, the petitioner alleged that his constitutional right to due process was violated because his decision to enter guilty pleas to the charges of assault in the second degree and assault in the third degree was not made knowingly, intelligently, and voluntarily due to his lack of understanding of the probability of his deportation under the terms of the plea agreement. In count two, the petitioner alleged that his trial attorney rendered ineffective assistance of counsel with respect to the guilty plea for assault in the second degree by failing to properly investigate the petitioner's immigration status, and as a result, she failed to properly advise the petitioner of the immigration consequences of pleading guilty. The respondent, the Commissioner of Correction, denied the substance of all of the petitioner's claims in a return filed on June 11, 2014. On July 15, 2014, the court held a habeas trial, during which the petitioner presented documentary and testimonial evidence. Relevant to the issues on appeal, the petitioner presented the testimony of his trial attorney, his own testimony, and the testimony of an expert witness. The petitioner's trial attorney testified that early in her representation of the petitioner, she reviewed his "arrest report" (Uniform Arrest Report), which indicated that the petitioner's nationality was Haitian and that he was born in Haiti. The trial attorney testified that she inquired of the petitioner's immigration status, and that the petitioner stated he was a United States citizen. Additionally, the petitioner's trial attorney testified that "in an abundance of caution," she informed the petitioner that if he was not a citizen, he could be ordered deported and removed from the United States. The petitioner testified on his own behalf during the habeas trial and confirmed that before entering his pleas, he told his trial attorney that he was a United States citizen. The petitioner also testified that at the time of the pleas, he believed that his status as a legal permanent resident was the same as being a United States citizen for immigration purposes. Additionally, the petitioner testified that before entering his pleas, the court advised him that if he was not a United States citizen his pleas could result in his deportation. The expert witness, an expert in immigration law, testified on behalf of the petitioner that the assault in the second degree conviction was the only factual basis for the petitioner's removal to Haiti, and that in his expert opinion, the immigration consequences of the plea would have been "very foreseeable." On August 11, 2014, the habeas court rendered judgment denying the petitioner's amended habeas petition. In the court's memorandum of decision, it determined, inter alia, that the petitioner had failed to show ineffective assistance on the basis of his trial attorney's failure to further investigate the petitioner's immigration status. The court found that his trial attorney had testified credibly, and that she made appropriate inquiry as to the petitioner's immigration status on more than one occasion. Additionally, the court found that the petitioner's trial attorney informed the petitioner of the risks of deportation despite his claims of United States citizenship. Finally, the court found the testimony of the petitioner to lack credibility, finding that "the consequences that befell the petitioner appear to be the result of his lack of candor toward his counsel and the court, not due to a lack of understanding, faulty plea canvass, or deficient performance of counsel." This appeal followed. Additional facts will be set forth as necessary. On appeal, the petitioner claims that the habeas court erred when it concluded that (1) his due process rights were not violated, and (2) that his trial attorney did not render ineffective assistance by failing to inquire further into the petitioner's immigration status. We begin by setting forth the applicable standard of review. "The governing legal principles in cases involving claims of ineffective assistance of counsel arising in connection with guilty pleas are set forth in Strickland [v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) ] and Hill [v. Lockhart, 474 U.S. 52, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985) ]. According to [Strickland ], [an ineffective assistance of counsel] claim must be supported by evidence establishing that (1) counsel's representation fell below an objective standard of reasonableness, and (2) counsel's deficient performance prejudiced the defense because there was a reasonable probability that the outcome of the proceedings would have been different had it not been for the deficient performance." (Emphasis in original; internal quotation marks omitted.) Hall v. Commissioner of Correction, 124 Conn.App. 778, 782, 6 A.3d 827 (2010). "In its analysis, a reviewing court may look to the performance prong or to the prejudice prong, and the petitioner's failure to prove either is fatal to a habeas petition. The prejudice inquiry in claims arising from counsel's advice during the plea process differs from the analysis of claims following conviction after trial.... In Hill v. Lockhart, [supra, 474 U.S. 52, 106 S.Ct. 366 ], the Supreme Court of the United States articulated a modified prejudice standard for cases in which the conviction has resulted from a guilty plea.... In order to establish prejudice in such cases, the petitioner must demonstrate that there is a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial." (Citations omitted; footnote omitted; internal quotation marks omitted.) Delvecchio v. Commissioner of Correction, 149 Conn.App. 494, 500, 88 A.3d 610, cert. denied, 312 Conn. 904, 91 A.3d 906 (2014). "It is well established that when analyzing a claim of ineffective assistance, counsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment." (Internal quotation marks omitted.) Sanders v. Commissioner of Correction, 83 Conn.App. 543, 551, 851 A.2d 313, cert. denied, 271 Conn. 914, 859 A.2d 569 (2004). The factual findings made by a habeas court regarding trial counsel's representation of a petitioner will not be disturbed absent a showing that they were clearly erroneous. Banks v. Commissioner of Correction, 147 Conn.App. 331, 338, 82 A.3d 658 (2013), cert. denied, 311 Conn. 916, 84 A.3d 883 (2014). The court's ultimate determination as to whether these findings satisfy the legal standard for ineffective assistance of counsel, however, is subject to plenary review. Id. The petitioner asserts that the habeas court improperly found that his trial attorney adequately inquired into his immigration status and properly advised him of the potential immigration consequences to pleading guilty. Specifically, he maintains that his trial attorney acted unreasonably by failing to determine accurately the petitioner's immigration status despite having materials in her possession indicating that the petitioner was born in Haiti. We are not persuaded. The habeas court determined that the representation of the petitioner's trial attorney was not deficient relative to her questioning of the petitioner regarding his immigration status. The petitioner's trial attorney specifically asked the petitioner whether he was a United States citizen, and he responded in the affirmative. "The reasonableness of counsel's actions may be determined by or substantially influenced by the defendant's own statements or actions. Counsel's actions are usually based, quite properly, on informed strategic choices made by the defendant and on information supplied by the defendant.... [W]hen a defendant has given counsel reason to believe that pursuing certain investigations would be fruitless . counsel's failure to pursue these investigations may not later be challenged as unreasonable." Strickland v. Washington, supra, 466 U.S. at 691, 104 S.Ct. 2052. The presence of information in the arrest report regarding the petitioner's nationality and place of birth was not enough to notify his trial attorney of the petitioner's true immigration status, because the petitioner himself explicitly stated that he was a citizen. Even despite the petitioner's assurances that he was a United States citizen, his trial attorney, "in an abundance of caution" informed the petitioner of the various existing immigration statuses, and warned him that if he is not in fact a United States citizen, he could be deported as a result of pleading guilty. Moreover, the trial court also warned the petitioner during the plea canvass that his guilty plea could result in deportation if he was not a citizen. On the basis of our review of the factual findings made by the habeas court, the court properly concluded that the petitioner's trial attorney had not performed below an objective standard of reasonableness. Accordingly, the petitioner's claim of ineffective assistance of counsel fails the performance prong of Strickland. The petitioner also asserts that the habeas court erred in finding that his due process rights were not violated and that his pleas were made knowingly, intelligently, and voluntarily. Specifically, the petitioner argues that he erroneously believed that he was a United States citizen, and as a result, he was not aware that he would face adverse immigration consequences by pleading guilty. The petitioner's due process claim is a reformulation of his ineffective assistance of counsel claim in that the petitioner argues that his pleas were not knowing, intelligent, and voluntary due directly to his trial attorney's ineffective assistance in failing to properly advise him. Because we conclude that the habeas court properly found that the petitioner's trial attorney was not ineffective, this claim fails. Furthermore, in its memorandum of decision, the habeas court found that "the consequences that befell the petitioner appear to be the result of his lack of candor toward his counsel and the court, not due to a lack of understanding, faulty plea canvass, or deficient performance of counsel." On the basis of the habeas court's findings and our analysis of the petitioner's claim for ineffective assistance of counsel, we affirm the judgment denying the petitioner's claim for violation of due process. The judgment is affirmed. In this opinion the other judges concurred. The respondent filed a motion to dismiss on the basis of mootness. Both parties addressed the issue in briefs and at oral argument before this court. The record reflects that the conviction for assault in the second degree was the sole basis for the petitioner's deportation. See State v. Aquino, 279 Conn. 293, 298, 901 A.2d 1194 (2006) (for deported petitioner to establish that appeal is not moot, must establish that underlying conviction was sole basis of deportation). Further, we are not convinced that the petitioner's other conviction for assault in the third degree would bar reentry as a crime of moral turpitude. See St. Juste v. Commissioner of Correction, 155 Conn.App. 164, 109 A.3d 523, cert. granted, 316 Conn. 901, 111 A.3d 470 (2015). The respondent argues that under 8 U.S.C. § 1229b (a), the petitioner would not be eligible for cancellation of removal because he has not met the statutory seven-year resident requirement. However, the notice to appear, which stopped the accrual of residency, was based on the petitioner's conviction for assault in the second degree. If the conviction is vacated, we are not convinced that no relief could befall the petitioner. Accordingly, we decide the case on the merits. Because the petitioner has failed to meet the performance prong of Strickland, we need not reach the issue of prejudice under Hill v. Lockhart, supra, 474 U.S. 52, 106 S.Ct. 366. "It is well settled that [a] reviewing court can find against a petitioner on either ground, whichever is easier." (Internal quotation marks omitted.) 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).

12486183

STATE of Connecticut v. Devonte WEST.

State v. West

2016-08-02

No. 37676.

1250

1258

142 A.3d 1250

142

West's Atlantic Reporter, Third Series

Connecticut Appellate Court

Connecticut

2021-08-27T20:57:13.998797+00:00

Fastcase

STATE of Connecticut v. Devonte WEST.

STATE of Connecticut v. Devonte WEST. No. 37676. Appellate Court of Connecticut. Argued May 11, 2016. Decided Aug. 2, 2016. Daniel J. Krisch, assigned counsel, Hartford, for the appellant defendant. Laurie N. Feldman, special deputy assistant state's attorney, with whom, on the brief, were Michael L. Regan, state's attorney, and Rafael I. Bustamante, assistant state's attorney, for the appellee state. LAVINE, BEACH and BISHOP, Js.

4322

26069

LAVINE, J. The defendant, Devonte West, appeals from the judgment of conviction, rendered after a jury trial, on one count of assault on a public safety officer in violation of General Statutes § 53a-167c (a)(5), one count of interfering with an officer in violation of General Statutes § 53a-167a, and one count of breach of the peace in the second degree in violation of General Statutes § 53a-181 (a)(1). On appeal, the defendant claims that the trial court erred when it (1) failed to charge the jury on the quality of the police investigation, and (2) implied at sentencing that it was penalizing the defendant for asserting his constitutional right to stand trial. We disagree and, therefore, affirm the judgment of the court. The jury reasonably could have found the following facts. On June 16, 2013, at approximately 10:30 p.m., John Michaud, an officer of the New London Police Department (department), responded to a harassment call that did not implicate the defendant. The complainant claimed that her father, Kenneth Hack, who lived at 57 Jay Street, sent her harassing text messages and phone calls. Michaud requested police assistance and went to 57 Jay Street, a third floor residence in a duplex. The front door opened into a vestibule that separated the front door from a locked interior door. In response to Michaud's request, Deena Knott, Jeremy Zelinski, and Brian Griffin, all officers of the department, arrived at the scene. All four officers were wearing their police issued uniforms. Michaud and Knott opened the front door but could not open the interior door. Through the window of the interior door, Michaud could see the defendant. Michaud knocked on the window, but before he could announce why he was there, the defendant profanely stated that he was not going to let the officers inside the building because they did not have a warrant. One of the officers stated that they were not there for the defendant, but the defendant refused to open the interior door and walked away. When the officer again told the defendant that they were not there to speak with him, the defendant again yelled obscenities at the officers and told them to leave. Hack soon left the apartment, was arrested, and was placed in a police cruiser. At this point, Robert Pickett, a detective sergeant in the department, arrived. While Hack was being arrested, the defendant stood on the front step of the residence, continuing to yell obscenities at the officers. As the police officers prepared to leave, a minivan sped onto Jay Street and stopped in the middle of the road alongside the police cruisers. The defendant's mother, Henrietta Adger, exited the front passenger seat and ran to the cruiser Hack was sitting in, asking why the police had arrested her son. She realized that the defendant was not in the cruiser, but she told the officers that they had no business being on her property. When Michaud began to issue the operator of the van a motor vehicle violation, Adger became irate and yelled obscenities at the officers. Pickett and Griffin struggled with Adger to take her into custody. While Adger was being arrested, the defendant continued to yell and scream obscenities from the front steps. At one point, he went down the stairs while shouting at the officers. Michaud and Zelinski, who thought that the defendant was going to interfere with the arrest, approached him. The defendant retreated up the stairs. Michaud stood at the bottom of the stairs, while the defendant shouted at Michaud to stop beating his mother. The defendant also entreated Michaud to shoot him. At one point, Michaud thought that the defendant was going to charge down the stairs toward him. Knott came over next to Michaud and told the defendant to go back into the apartment. The defendant came halfway down the stairs and spat on or toward Knott. The defendant then ran up the stairs into the vestibule and shut the front door behind him. One of the officers kicked in the front door. When the officers attempted to arrest him, the defendant fought back by flailing his arms and kicking his legs. The officers struggled to arrest the defendant. When they were on the front lawn, the defendant failed to respond to a Taser warning. Pickett then tasered the defendant. The officers eventually were able to subdue the defendant and take him into custody. He was charged with two counts of assaulting a public safety officer, one count of interfering with an officer, and one count of breach of the peace in the second degree. At trial, the state presented its evidence through four of the five officers who were present at the scene. On cross-examination, defense counsel highlighted numerous alleged deficiencies in the police investigation. The defendant called five witnesses, including an expert witness, Bryce Linskey, who testified that the police investigation of the defendant's arrest was not consistent with good police practice. Linskey also testified that it was possible that the defendant had no intent to kick and flail, but did so because he was tasered. In addition, the defendant testified that he had had prior negative experiences with the police. He, however, admitted that he spat at Knott. The jury found the defendant guilty of three of the four charges, acquitting him of one count of assaulting a public safety officer. On December 5, 2014, the court sentenced the defendant to three years incarceration, execution suspended after nine months, and two years of probation. This appeal followed. Additional facts and procedural history will be set forth as necessary to address the defendant's claims. I The defendant first claims that the court improperly declined to charge the jury on the quality of the police investigation. The defendant argues that he presented evidence calling the adequacy of the police investigation into question in an effort to create reasonable doubt as to his guilt. The defendant argues that, as a matter of law, he was entitled to a jury charge regarding the adequacy of the police investigation. We disagree. The following additional facts are relevant to this claim. The defendant submitted a request to charge pertaining to the adequacy of the police investigation, but the court denied defense counsel's request. The court stated that, even though defense counsel had focused on the alleged inadequacy of the police investigation throughout the trial, it did not have a duty to charge the jury on whether an inadequate police investigation could give rise to reasonable doubt. It noted that this was particularly true because none of the state's witnesses were police informants or alleged accomplices. The court instructed the jury on witness credibility, which included an instruction on how to assess police officer testimony. It also instructed the jury that it was the state's burden to prove the defendant's guilt beyond a reasonable doubt. The defendant argues on appeal that, through cross-examination of the state's witnesses and through direct examination of his own witnesses, he produced sufficient evidence from which the jury could find that the police investigation was not thorough. He argues that because the investigation was inadequate, it could give rise to reasonable doubt of his guilt and, therefore, despite the fact that reasonable doubt is not a legally recognized defense, the court was obligated, as a matter of law, to instruct the jury as to the defendant's theory of defense. The defendant asserts that the court's failure to do so infringed on his constitutional right to due process. We set forth the applicable standard of review and the legal principles relevant to this claim. "Our standard of review in cases in which the defendant claims that the instructions were constitutionally deficient is whether it is reasonably possible that the instructions misled the jury.... In assessing the claim, the jury charge must be read as a whole, not in artificial isolation from the overall charge.... 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...." (Internal quotation marks omitted.) State v. Wright, 149 Conn.App. 758, 772, 89 A.3d 458, cert. denied, 312 Conn. 917, 94 A.3d 641 (2014). "[T]he test of a court's charge is not whether it is as accurate upon legal principles as the opinions of a court of last resort but whether it 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.... 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." (Internal quotation marks omitted.) State v. Cales, 95 Conn.App. 533, 535-36, 897 A.2d 657 (2006). The defendant's claim is controlled by State v. Wright, supra, 149 Conn.App. at 770-74, 89 A.3d 458. His claim fails because, as the court stated in Wright, it conflates "the concept of [beyond a] reasonable doubt" with a legal defense. Id., at 772, 89 A.3d 458. "[T]he concept of reasonable doubt is not a recognized defense to a crime . but a standard by which the state must prove its case.... The [reasonable doubt concept] provides concrete substance for the presumption of innocence-that bedrock axiomatic and elementary principle whose enforcement lies at the foundation of the administration of our criminal law." (Citations omitted; emphasis added; internal quotation marks omitted.) Id., at 772-73, 89 A.3d 458. In the present case, the defendant relies on the same rationale as did the defendant in Wright, which this court rejected, stating: "The defendant does not challenge any segment of the court's charge on reasonable doubt. He argues that the court erred by not including a charge instructing the jury that it was permitted to consider the quality of the police investigation in determining whether the state proved its case beyond a reasonable doubt . [but] the defendant was allowed to elicit testimony from witnesses to suggest that there were deficiencies in the police investigation and was allowed to argue this theory in closing argument." (Citation omitted.) Id., at 773-74, 89 A.3d 458. Additionally, as in Wright, the trial court in the present case properly instructed the jury that the state must prove the defendant's guilt beyond a reasonable doubt. Id., at 774, 89 A.3d 458. The defendant was not deprived the right to a fair trial because he was given the opportunity to present evidence and cross-examine the state's witnesses regarding the adequacy of the police investigation. See also id. We conclude that the jury was not misled by the instructions given, and the defendant was not entitled to a charge on the quality of the police investigation. II The defendant's next claim is that at sentencing, the trial court improperly implied that it was penalizing him for asserting his right to stand trial. We disagree. The following additional facts are relevant to this claim. During sentencing, the defendant interrupted the trial court and made a last minute request to represent himself. The trial court rejected his request because it was brought at "the eleventh hour," and there was nothing in the record "that would lead [the] court to believe that [defense counsel] [had] not engaged in [competent] and effective representation." The court noted that "the fact that [the defendant] may not like the results [of the trial] is a different story." The trial court also noted that "the clerk approached [the trial court] and indicated [that the defendant] was rather insistent on filing an application for waiver and appeal paperwork and, notwithstanding the fact that they tried to tell him numerous times, there is nothing to appeal and . nothing you can file, sir, until after the sentence." Before the trial court could finish explaining why the defendant's appeal papers could not be filed at that time, the defendant interrupted the trial court, stating, "[w]ell, a lot of my rights have," and the trial court interjected, stating, "Mr. West, whoa, I'm talking now." The trial court asked the defendant whether he would like to speak before the court sentenced him. The defendant stated that he did not want to address the court. The trial court indicated that it had reviewed the presentence investigation report and a medical evaluation of the defendant. Then, the trial court addressed the defendant as follows: "The Court: And I just want to say, you know, Mr. West, I think your attitude here today frankly says most of what this case is about. You know, you're disrespectful to your attorney, you're upset with your- "The Defendant: No I wasn't. "The Court: Mr. West, see, again, my turn now.... I just gave you an opportunity to speak, you said no . that's the second time you've interrupted me.... "[T]he way [the presentence investigation report] comes across . I'm thinking, the young man's got it, hit a home run, understands it, he just made a bone-headed move. And then I turn over to page two where, again, what the substance and sum of what happened here tonight is all about. You proceed to blame everything else in the world for what happened. I quote, 'I was accused of things and charged with things that are not true. Connecticut law officers took an oath and lied under oath. Now is that fair? I do not believe I had a fair case because of the color of my skin.' . "You admitted to cursing them out. You . admitted to going out the door and attempting to interfere with them while they were trying to arrest your mother. Who somehow-again, you're gonna try to interrupt me- "The Defendant: No. I wasn't. "The Court: . And you admitted to spitting at Officer Knott. You didn't deny that it hit her, or you admitted you spit at her.... [A]t a minimum, you admit to the breach, you admit to the interfering, and you admit at a minimum to attempting to assault a police officer by doing something as vile as spitting on them.... "The Defendant: Can I talk? "The Court: No. You had your chance. It is my turn now. So you stand-and even now you stand here before me and I can see your attitude.... I believe, in this case, that a jail sentence is appropriate because standing before me right now, after you got on the stand and testified in front of me that you breached the peace, interfered with police, and spit at a police officer, that you still stand here and believe that you didn't do anything wrong and that this entire case and circumstances are other people's fault because of the color of your skin, and that the police got on the stand and lied. "Those are your words, not mine.... If you had showed me that you accepted responsibility in full for what you did that day, you would walk out of here without a prison sentence, but because you can't do that, even now, with a good, qualified attorney who I know told you what you need to do to come in here and say, you're going to go to prison. And, hopefully, you'll learn the lesson that you can't poke the dog, right?" Thereafter, the trial court sentenced the defendant to three years incarceration, execution suspended after nine months, and two years of probation. The defendant claims that the trial court erred by implying that it was penalizing the defendant for asserting his constitutional right to stand trial. The defendant argues that the "trial court's remarks . created the appearance of impropriety"; State v. Elson, 311 Conn. 726, 784, 91 A.3d 862 (2014) ; in that it "create[d] the perception . that the defendant's sentence was a penalty for his choice to stand trial and his continued assertion of his innocence." (Citation omitted; internal quotation marks omitted.) We see no such implication in the trial court's remarks, nor do we discern any appearance of impropriety. We set forth the applicable standard of review and legal principles in this case. "[A] trial court possesses, within statutorily prescribed limits, broad discretion in sentencing matters. On appeal, we will disturb a trial court's sentencing decision only if that discretion clearly has been abused.... "In spite of that discretion, however, the [a]ugmentation of [a] sentence based on a defendant's decision to stand on [his or her] right to put the Government to its proof rather than plead guilty is clearly improper." (Citation omitted; internal quotation marks omitted.) State v. Kelly, 256 Conn. 23, 80-81, 770 A.2d 908 (2001). A trial court "must [therefore] carefully avoid any suggestions in its comments at the sentencing stage that it was taking into account the fact [that the] defendant had not pleaded guilty but had put the prosecution on its proof." (Internal quotation marks omitted.) State v. Elson, supra, 311 Conn. at 783, 91 A.3d 862. Accordingly, "a trial judge should not comment negatively on the defendant's decision to elect a trial during sentencing, given the appearance of impropriety of that consideration." Id., at 777, 91 A.3d 862. However, "[a] defendant's demeanor, criminal history, presentence investigation report, prospect for rehabilitation and general lack of remorse for the crimes of which he has been convicted remain legitimate sentencing considerations.... [A] sentencing court is not preclude [d] . from finding a lack of remorse based on facts other than the defendant's failure to plead guilty...." (Citations omitted; footnote omitted; internal quotation marks omitted.) Id., at 782-83, 91 A.3d 862. "Such information may come to the judge's attention from evidence adduced at the . trial itself, from a . presentence investigation . or possibly from other sources.... Thus, evidence adduced at trial detailing the nature and extent of the offenses charged, as well as the defendant's conduct during the trial . are among the considerations that the sentencing court may take into account...." (Citation omitted; internal quotation marks omitted.) State v. Coleman, 242 Conn. 523, 544, 700 A.2d 14 (1997). The facts in Elson are clearly distinguishable from those in the present case. Unlike the trial court in Elson, which stated that the defendant "wouldn't have put the victim through the trial" if he were truly apologetic for his actions; (emphasis omitted; internal quotation marks omitted) State v. Elson, supra, 311 Conn. at 733, 91 A.3d 862 ; the trial court in the present case did not make any statements concerning the defendant's election to stand trial. Rather, the trial court focused on the defendant's negative attitude and conduct during the presentation of evidence and at sentencing. The court also acknowledged the defendant's general lack of remorse for his conduct underlying the offenses, noting that the presentence investigation report indicated that the defendant "blame[d] everybody else in the world for what happened." Because the Supreme Court in Elson "[did] not in any way intimate that trial courts are precluded from considering or discussing at sentencing the defendant's conduct [or general lack of remorse] during the trial and sentencing proceedings"; id., at 781-82, 91 A.3d 862 ; the trial court here properly considered the defendant's behavior and lack of remorse when it addressed him at sentencing. Accordingly, we conclude that the trial court did not imply that it was penalizing the defendant for asserting his constitutional right to stand trial. The judgment is affirmed. In this opinion the other judges concurred. Knott testified that the defendant spat on her, while the defendant testified that he only spat toward Knott. For the purposes of the assault on a public safety officer charge, the discrepancy is a distinction without a difference because the crime can be accomplished when someone throws or hurls any bodily fluid, including saliva, "at such peace officer...." (Emphasis added.) General Statutes § 53a-167c (a)(5). The defendant testified that Knott had a history of harassing him. He also testified that during the incident, she was "picking on [him]" and that "she wanted [to get him]." The defendant requested the following charge: "It is a defense theory that the prosecution's investigation of this case was negligent, purposefully distorted and/or not done in good faith. For example, there has been testimony _ about. You are to assess the credibility of the evidence in light of this evidence together with all of the other evidence. Investigation which is thorough and conducted in good faith may be more credible while an investigation which is incomplete, negligent or in bad faith may be found to have lesser value or no value at all. In deciding the credibility of the witnesses and the weight, if any, to give the prosecution evidence, consider whether the investigation was negligent and/or conducted in bad faith." The trial court instructed the jury regarding the state's burden to prove the defendant's guilt beyond a reasonable doubt: "[A]s in all criminal cases, the defendant is presumed to be innocent unless and until proven guilty beyond a reasonable doubt.... The state has the burden of proving that the defendant is guilty of each crime charged. The defendant does not have to prove his innocence. This means that the state must prove beyond a reasonable doubt each and every element necessary to constitute each of the crimes charged.... The meaning of reasonable doubt can be arrived at by emphasizing the word reasonable. It is not a surmise, a guess or mere conjecture.... It is such a doubt as, in serious affairs that concern you, you would heed; that is, such a doubt as would cause reasonable men and women to hesitate to act upon it in matters of importance.... It is, in other words, a real doubt, an honest doubt, a doubt that has its foundation in the evidence or lack of evidence." With regard to witness credibility in general, the court specifically instructed: "In deciding what the facts are, you must consider all the evidence. In doing this, you must decide which testimony to believe and which testimony not to believe. You may believe all, none or any part of any witness' testimony. In making that decision, you may take into account a number of factors including, was the witness able to see, or hear, or know the things about which that witness testified? How well was the witness able to recall and describe those things? What was the witness' manner while testifying? Did the witness have an interest in the outcome of this case or any bias or prejudice concerning any party or any matter involved in the case? How reasonable was the witness' testimony considered in light of all the evidence in the case and was the witness' testimony contradicted by what that witness has said or done at another time, or by the testimony of other witnesses, or by other evidence? If you think that a witness has deliberately testified falsely in some respect, you should carefully consider whether you should rely upon any of that witness' testimony. In deciding whether or not to believe a witness, keep in mind that people sometimes forget things. You need to consider, therefore, whether a contradiction is an innocent lapse of memory or an intentional falsehood, and that may depend on whether the contradiction has to do with an important factor or with only a small detail.... The weight of the evidence presented does not depend on the number of witnesses. It is the quality of the evidence, not the quantity of the evidence, that you must consider." With regard to assessing police officer testimony, the court charged as follows: "Police officials have testified in this case. You must determine the credibility of police officials in the same way and by the same standards as you would evaluate the testimony of any other witness. The testimony of a police official is entitled to no special or exclusive weight merely because it comes from a police official. You should recall his demeanor on the stand and manner of testifying, and weigh and balance it just as carefully as you would the testimony of any other witness. You should neither believe nor disbelieve the testimony of a police official just because he is a police official." The defendant concedes that State v. Wright, supra, 149 Conn.App. at 770, 89 A.3d 458, is controlling precedent, but he attempts to distinguish it from the present case by asserting that this case is different because it involves a police investigation in a case in which a police officer was a victim and the state's only witnesses were police officers. This claimed distinction does not alter our analysis or our conclusion. In making its decision, the court in Wright did not rely on the particular facts of the case, but on the general principle that "reasonable doubt is not a recognized defense to a crime...." Id., at 772, 89 A.3d 458. In the alternative, the defendant asks this court en banc to overrule State v. Wright, supra, 149 Conn.App. at 758, 89 A.3d 458. The defendant, however, failed to file the appropriate motion before this case was assigned for oral argument, and any other request in this regard is premature. See Practice Book § 70-7 and 71-5. The state contends that the claim is not reviewable because it was not raised at trial. Nevertheless, because the defendant's brief minimally "identifies those portions of the record that form the factual basis for the unpreserved claim and a legal basis for the constitutional nature of that claim . the opposing party and [this] court are more than able to respond to or address that claim as a matter of reviewability." State v. Elson, 311 Conn. 726, 750, 91 A.3d 862 (2014).

12508525

Leroy MORRISON et al. v. Olive J. WALLACE

Morrison v. Wallace

2019-05-07

AC 41525

257

257

206 A.3d 257

206

West's Atlantic Reporter, Third Series

Connecticut Appellate Court

Connecticut

2021-08-27T20:57:49.725711+00:00

Fastcase

Leroy MORRISON et al. v. Olive J. WALLACE

Leroy MORRISON et al. v. Olive J. WALLACE AC 41525 Appellate Court of Connecticut. Argued April 15, 2019 Officially released May 7, 2019

29

175

Per Curiam. The judgment is affirmed.

12508523

Douglas FLEMING v. CITY OF MIDDLETOWN et al.

Fleming v. City of Middletown

2019-05-07

AC 41289

257

257

206 A.3d 257

206

West's Atlantic Reporter, Third Series

Connecticut Appellate Court

Connecticut

2021-08-27T20:57:49.725711+00:00

Fastcase

Douglas FLEMING v. CITY OF MIDDLETOWN et al.

Douglas FLEMING v. CITY OF MIDDLETOWN et al. AC 41289 Appellate Court of Connecticut. Argued April 16, 2019 Officially released May 7, 2019

29

178

Per Curiam. The judgment is affirmed.

12508522

STATE of Connecticut v. Haji Jhmalah BISCHOFF

State v. Bischoff

2019-04-02

AC 41367

253

256

206 A.3d 253

206

West's Atlantic Reporter, Third Series

Connecticut Appellate Court

Connecticut

2021-08-27T20:57:49.725711+00:00

Fastcase

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

STATE of Connecticut v. Haji Jhmalah BISCHOFF

STATE of Connecticut v. Haji Jhmalah BISCHOFF AC 41367 Appellate Court of Connecticut. Argued March 6, 2019 Officially released April 2, 2019 James B. Streeto, senior assistant public defender, with whom, on the brief, was Emily H. Wagner, assistant public defender, for the appellant (defendant). Jennifer F. Miller, assistant state's attorney, with whom, on the brief, were John C. Smriga, state's attorney, and Craig P. Nowak, senior assistant state's attorney, for the appellee (state). DiPentima, C.J., and Lavine and Harper, Js.

1322

8069

PER CURIAM. The defendant, Haji Jhmalah Bischoff, appeals from the judgment of the trial court dismissing his motion to correct an illegal sentence. After reviewing the record and the parties' briefs, we conclude that the defendant's claim is barred by appellate precedent. We further conclude that the form of the judgment is improper, and, accordingly, we reverse the judgment dismissing the defendant's motion to correct an illegal sentence and remand the case to the trial court with direction to render judgment denying the defendant's motion. The defendant was convicted of possession of heroin in violation of General Statutes (Rev. to 2013) § 21a-279 (a), possession of cocaine in violation of § 21a-279 (a), and possession of less than four ounces of a cannabis-type substance (marijuana) in violation of General Statutes (Rev. to 2013) § 21a-279 (c). State v. Bischoff , 182 Conn. App. 563, 569, 190 A.3d 137, cert. denied, 330 Conn. 912, 193 A.3d 48 (2018). The trial court merged the conviction of possession of heroin and possession of cocaine into a single conviction of possession of narcotics in violation of § 21a-279 (a), and sentenced the defendant to seven years incarceration, execution suspended after five years, and three years of probation. Id. On the defendant's conviction of possession of less than four ounces of marijuana, the court sentenced the defendant to a concurrent term of one year incarceration. Id. In his direct appeal, this court considered and rejected the defendant's claim that he was entitled to be resentenced as a result of the legislative amendment to the crime of possession of narcotics. Specifically, we stated: "The defendant finally claims that he is entitled to resentencing on his conviction of possession of narcotics because the legislature has retroactively reclassified the violation of § 21a-279, for a first offense, as a class A misdemeanor, which carries a maximum sentence of one year of incarceration. See Public Acts, Spec. Sess., June, 2015, No. 15-2, § 1. The defendant concedes, as he must, that this court's holding in State v. Moore , 180 Conn. App. 116, 124, [182 A.3d 696, cert. denied, 329 Conn. 905, 185 A.3d 595] (2018), in which this court held that the 2015 amendment to § 21a-279 (a), which took effect October 1, 2015, does not apply retroactively and is dispositive of his claim. The defendant's claim that he is entitled to be resentenced must therefore fail." State v. Bischoff , supra, 182 Conn. App. at 579-80, 190 A.3d 137. This court released the decision in the defendant's direct appeal on June 12, 2018. Id., 563, 190 A.3d 137. On September 20, 2018, our Supreme Court denied the defendant's petition for certification to appeal. State v. Bischoff , 330 Conn. 912, 193 A.3d 48 (2018). On May 11, 2017, the defendant filed the present motion to correct an illegal sentence. He argued that the legislature had intended the 2015 amendment to apply retroactively. According to the defendant, the sentence imposed for his violation of § 21a-279 (a) was illegal because it exceeded the maximum sentence allowed under the 2015 amendment. On December 22, 2017, the trial court issued a memorandum of decision dismissing the motion to correct an illegal sentence. It concluded that, in the absence of any language indicating that the amendment was to be applied retroactively to crimes committed prior to its effective date, the general rule in Connecticut is that courts apply the law in effect at the time of the offense. It also rejected the defendant's argument as to the amelioration doctrine, which provides that amendments that reduce a statutory penalty for a criminal offense are applied retroactively. Specifically, the trial court stated: "[B]oth our Supreme and Appellate Courts have rejected application of the amelioration doctrine based on the plain language of the savings statutes." See General Statutes § 54-194 and 1-1 (t). In his principal appellate brief, the defendant acknowledges that the present case is controlled by State v. Moore , supra, 180 Conn. App. 116, 182 A.3d 696, and State v. Kalil , 314 Conn. 529, 107 A.3d 343 (2014). In Moore , this court rejected a claim that the 2015 amendment to § 21a-279 (a) applied retroactively. State v. Moore , supra, 120-25, 182 A.3d 696. Specifically, we concluded that the 2015 amendment contained no language indicating a retroactive application and that the absence of such language was informative as to the legislature's intent. Id., 123-24, 182 A.3d 696. "Thus, if the legislature had intended the 2015 amendment to apply retroactively, it could have used clear and unequivocal language indicating such intent. It did not do so. A prospective only application of the statute is consistent with our precedent and the legislature's enactment of the savings statutes . and, therefore, the statutory language is not susceptible to more than one plausible interpretation." (Citation omitted.) Id., 123, 182 A.3d 696 ; see also State v. Bischoff , supra, 182 Conn. App. at 579-80, 190 A.3d 137. Additionally, in accordance with State v. Kalil , supra, 314 Conn. at 552-53, 107 A.3d 343, this court rejected the applicability of the amelioration doctrine in Connecticut. State v. Moore , supra, 124. In the present appeal, the defendant expressly asks us to overrule State v. Kalil , supra, 314 Conn. 529, 107 A.3d 343, State v. Moore , supra, 180 Conn. App. 116, 182 A.3d 696, and State v. Bischoff , supra, 182 Conn. App. 563, 190 A.3d 137. We reject this invitation. First, "[i]t 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. Montanez , 185 Conn. App. 589, 605 n.5, 197 A.3d 959 (2018) ; see also State v. Corver , 182 Conn. App. 622, 638 n.9, 190 A.3d 941, cert. denied, 330 Conn. 916, 193 A.3d 1211 (2018). Second, "[i]t is this court's policy that we cannot overrule a decision made by another panel of this court absent en banc consideration." State v. Joseph B. , 187 Conn. App. 106, 124 n.13, 201 A.3d 1108 (2019) ; State v. Carlos P. , 171 Conn. App. 530, 545 n.12, 157 A.3d 723, cert. denied, 325 Conn. 912, 158 A.3d 321 (2017) ; see also State v. Houghtaling , 326 Conn. 330, 343, 163 A.3d 563 (2017) (Appellate Court panel appropriately recognized it was bound by that court's own precedent), cert. denied, - U.S. -, 138 S.Ct. 1593, 200 L.Ed.2d 776 (2018). For these reasons, we conclude that the defendant's appeal has no merit. The form of the judgment is improper, the judgment dismissing the defendant's motion to correct an illegal sentence is reversed and the case is remanded with direction to render judgment denying the defendant's motion. Due in part to the timing of the ultimate resolution of the defendant's direct appeal and the filing of the motion to correct an illegal sentence, the state claimed, for the first time on appeal, that the defendant's claim is barred by res judicata. While we have considered a res judicata defense under similar circumstances; see State v. Martin M. , 143 Conn. App. 140, 150-57, 70 A.3d 135, cert. denied, 309 Conn. 919, 70 A.3d 41 (2013) ; State v. Osuch , 124 Conn. App. 572, 580-84, 5 A.3d 976, cert. denied, 299 Conn. 918, 10 A.3d 1052 (2010) ; we decline to travel that path in the present case.

12508521

Michael HOLBROOK v. COMMISSIONER OF CORRECTION

Holbrook v. Comm'r of Corr.

2019-04-02

AC 41165

246

253

206 A.3d 246

206

West's Atlantic Reporter, Third Series

Connecticut Appellate Court

Connecticut

2021-08-27T20:57:49.725711+00:00

Fastcase

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

Michael HOLBROOK v. COMMISSIONER OF CORRECTION

Michael HOLBROOK v. COMMISSIONER OF CORRECTION AC 41165 Appellate Court of Connecticut. Argued January 10, 2019 Officially Released April 2, 2019 Vishal K. Garg, assigned counsel, for the appellant (petitioner). C. Robert Satti, Jr., supervisory assistant state's attorney, with whom, on the brief, were John C. Smriga, state's attorney, and Emily D. Trudeau, assistant state's attorney, for the appellee (respondent). DiPentima, C.J., and Alvord and Flynn, Js.

2867

18094

FLYNN, J. The petitioner, Michael Holbrook, appeals from the judgment of the habeas court denying his amended petition for a writ of habeas corpus. On appeal, the petitioner claims that the court improperly concluded that he failed to prove (1) ineffective assistance of his prior habeas counsel, and (2) that the state suppressed exculpatory evidence at his criminal trial in violation of Brady v. Maryland , 373 U.S. 83, 87, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). We affirm the judgment of the habeas court. The following facts and procedural history surrounding the petitioner's conviction were set forth by this court in our decision on direct appeal affirming the petitioner's conviction: "John Fred Dean was shot and killed inside a Bridgeport nightclub known as the Factory. The state charged the [petitioner] . with Dean's murder. In 2003, the [petitioner's] first jury trial ended in a mistrial. After a second trial, in 2004, the jury found the [petitioner] not guilty of murder but found him guilty of the lesser included offense of manslaughter in the first degree with a firearm in violation of General Statutes § 53a-55a (a). The jury also made a finding that the [petitioner] had committed a class A, B or C felony with a firearm in violation of General Statutes § 53-202k. The trial court rendered judgment in accordance with the verdict and sentenced the [petitioner] to a total effective term of thirty-five years incarceration." State v. Holbrook , 97 Conn. App. 490, 492, 906 A.2d 4, cert. denied, 280 Conn. 935, 909 A.2d 962 (2006). In June, 2007, the petitioner filed a petition for a writ of habeas corpus, which was denied by the court, T. Santos, J. , following a trial. On appeal, this court affirmed the denial of the petition. Holbrook v. Commissioner of Correction , 149 Conn. App. 901, 87 A.3d 631, cert. denied, 311 Conn. 952, 91 A.3d 464 (2014). In June, 2014, the petitioner, who was then self-represented, filed a petition for a writ of habeas corpus. Thereafter, represented by counsel, the petitioner filed an amended petition alleging ineffective assistance of his trial counsel, Attorney Frank J. Riccio, for declining to call Cherise Thomas as a witness; ineffective assistance of prior habeas counsel, Attorney Michael Day, for failing to pursue a claim that trial counsel was ineffective for failing to call Thomas as a witness; and the failure of the state to produce exculpatory information to the petitioner. The court, Hon. John F. Mulcahy, Jr. , judge trial referee, denied the petition. The court thereafter granted the petition for certification to appeal. This appeal followed. I The petitioner claims that the court erred in concluding that Day did not render ineffective assistance for declining in the prior habeas proceeding to pursue a claim that Riccio was ineffective for failing to call Thomas as a witness in the underlying criminal trial. We do not agree. "It is well established that [a] criminal defendant is constitutionally entitled to adequate and effective assistance of counsel at all critical stages of criminal proceedings . This right arises under the sixth and fourteenth amendments to the United States constitution and article first, § 8, of the Connecticut constitution . As enunciated in Strickland v. Washington , [466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) ] . [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 . An ineffective assistance of counsel claim will succeed only if both prongs [of Strickland ] are satisfied." (Citations omitted; internal quotation marks omitted.) Sanders v. Commissioner of Correction , 169 Conn. App. 813, 823, 153 A.3d 8 (2016), cert. denied, 325 Conn. 904, 156 A.3d 536 (2017). "[When] applied to a claim of ineffective assistance of prior habeas counsel, the Strickland 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 . Therefore, as explained by our Supreme Court in Lozada v. Warden , 223 Conn. 834, 613 A.2d 818 (1992), a petitioner claiming ineffective assistance of habeas counsel on the basis of ineffective assistance of [trial] counsel must essentially satisfy Strickland twice: he must prove both (1) that his appointed habeas counsel was ineffective, and (2) that his [trial] counsel was ineffective . We have characterized this burden as presenting a herculean task ." (Citations omitted; internal quotation marks omitted.) Mukhtaar v. Commissioner of Correction , 158 Conn. App. 431, 438-39, 119 A.3d 607 (2015). The habeas court noted that Day, "in an abundance of caution," included twenty-seven claims in his habeas petition, but upon further analysis pursued only six of the listed claims, which did not include the claim of ineffective assistance of trial counsel for failure to call Thomas as a witness. The habeas court concluded that Day's procedure of "exercising professional judgment . in winnowing down from the long list of claims initially thought to be possibly viable" did not constitute deficient performance. We will not disturb the court's finding that Day's decision not to pursue the claim at issue was a reasonable strategic decision. "[A] reviewing court is required not simply to give [the trial attorney] the benefit of the doubt . but to affirmatively entertain the range of possible reasons . counsel may have had for proceeding as [he] did . [S]trategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable ." (Citation omitted; internal quotation marks omitted.) Michael T. v. Commissioner of Correction , 319 Conn. 623, 632-33, 126 A.3d 558 (2015). Additionally, "the failure to pursue unmeritorious claims cannot be considered conduct falling below the level of reasonably competent representation." (Internal quotation marks omitted.) Tillman v. Commissioner of Correction , 54 Conn. App. 749, 756-57, 738 A.2d 208, cert. denied, 251 Conn. 913, 739 A.2d 1250 (1999). The court further found that Strickland 's prejudice prong was not satisfied because, "based on the previous analysis of trial counsel's tactical decision regarding the Thomas statements," a reasonable probability did not exist that the result of the first habeas trial would have been different had Day pursued the claim that Riccio was ineffective for failing to call Thomas as a witness. In analyzing the merits of the underlying claim of ineffective assistance of trial counsel, the court concluded that Riccio, who had represented the petitioner in both criminal trials and who had died before the petitioner brought his second petition for a writ of habeas corpus, was "seasoned," and was an "exceedingly experienced, skilled and proficient criminal defense attorney." The court concluded that Riccio's strategic decision not to call Thomas to testify at the second criminal trial did not constitute deficient performance. Thomas was impeachable by virtue of her prior personal connection with the petitioner, whom she had known for years. Thomas gave two statements on different dates to the police, recounting the events that occurred at the Factory nightclub on the night of the shooting. Both statements were admitted as full exhibits at the second habeas trial. The second habeas court found that the two statements that Thomas had given to the police on separate dates were inconsistent. In the first statement, Thomas said there had been a fight and that the petitioner indicated that he had been "hit," but in her second statement she denied that a fight occurred and did not remember the petitioner stating that he had been hit. The court concluded that Thomas' first statement to the police that the petitioner had told her that he had been hit might "lend support" to the state's position that the petitioner had been involved in a physical fight with the victim, Dean, which precipitated the shooting that caused Dean's death. The court concluded that Riccio, who had been present during both of Thomas' statements to the police, inferentially made a "presumptively prudential decision" on whether to use Thomas' second statement that could have led to further impeachment evidence as to Thomas. The court noted that Riccio's trial strategy in not calling Thomas to the witness stand was influenced by the fact that the state's witnesses brought considerable " 'baggage' " in terms of prior criminal histories, inconsistent statements, losses of memory and recantations, and that where those witnesses recanted or professed some loss of memory their prior written signed statements were admitted for substantive purposes under authority 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). In his summation to the jury, Riccio pointed out the inconsistencies in the testimony of the state's witnesses. Riccio testified in the first habeas trial that "I've never seen it [ Whelan ] used as much as it was in this particular case." The second habeas court stated in its decision: "An offer and admission of the Thomas statements by the defense would introduce yet another (in the court's view, material) inconsistency, resulting quite likely in another Whelan admission, this time involving a defense witness. Such would render less persuasive a defense argument in summation that the state's witnesses were all over the place, could not remember, and were inconsistent." The court concluded that Riccio, who had heard and observed Thomas at the time of her statements, made a strategic decision not to have Thomas testify that "should not now be second-guessed." Michael T. v. Commissioner of Correction , supra, 319 Conn. at 632-33, 126 A.3d 558. As we have noted previously, reasonable strategic choices made after a thorough investigation are virtually unchallengeable. Id. After a careful review of the record, we conclude that the habeas court properly determined that the petitioner had failed to prove his claim of ineffective assistance of habeas counsel. II We next turn to the petitioner's claim that the court improperly rejected his claim that the prosecution suppressed evidence favorable to him in violation of Brady v. Maryland , supra, 373 U.S. 83, 83 S.Ct. 1194. Specifically, the petitioner claims that the prosecution failed to disclose that it had declined to make any plea offers to Gary Browning, an eyewitness who testified for the state, regarding his charges of robbery until he testified in the petitioner's 2004 criminal trial. We disagree. "Due process principles require the prosecution to disclose to the defense evidence that is favorable to the defendant and material to his guilt or punishment . In order to obtain a new trial for improper suppression of evidence, the petitioner must establish three essential components: (1) that the evidence was favorable to the accused; (2) that the evidence was suppressed by the state-either inadvertently or wilfully; and (3) that the evidence was material to the case, i.e., that the accused was prejudiced by the lack of disclosure . "The state's failure to disclose an agreement with a cooperating witness may be deemed to be the withholding of exculpatory evidence. Impeachment evidence falls within Brady 's definition of evidence favorable to an accused . Impeachment evidence is broadly defined in this context as evidence that could potentially alter the jury's assessment of a witness' credibility . Specifically, we have noted that [a] plea agreement between the state and a key witness is impeachment evidence falling within the . Brady doctrine." (Citations omitted; internal quotation marks omitted.) Marquez v. Commissioner of Correction , 330 Conn. 575, 592, 198 A.3d 562 (2019). "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." (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). "[A]n unexpressed intention of the state not to prosecute a witness does not fall within the ambit of the Brady principles concerning disclosure by the prosecution of evidence favorable to an accused." (Internal quotation marks omitted.) State v. Rucker , 177 Conn. 370, 376, 418 A.2d 55 (1979). "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." (Internal quotation marks omitted.) Lewis v. Commissioner of Correction , 116 Conn. App. 400, 407, 975 A.2d 740, cert. denied, 294 Conn. 908, 982 A.2d 1082 (2009). "Furthermore, the burden is on the defendant to prove the existence of undisclosed exculpatory evidence." State v. Floyd , 253 Conn. 700, 737, 756 A.2d 799 (2000). "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). The petitioner contends that the prosecution delayed making a plea offer to Browning until after Browning testified in the petitioner's 2004 criminal trial. This claim rests on a very slender reed. The first habeas court found Browning not to be a credible witness, and he did not testify before the second habeas court. The only evidence of the allegation of a delayed plea offer is in a statement by Browning made in the first habeas trial in which he stated: "No, they wouldn't give me an offer until after I testified." The habeas court made no finding that the prosecution had made any statement to that effect, and the petitioner's claim is not distinctly raised in his habeas petition. At oral argument before this court, the Brady claim morphed into a claim that the state had waited to make a plea offer to Browning, the cooperating witness, until after he gave testimony. However, not only is there nothing in the petition that raises this claim distinctly, there is no finding by the habeas court that the prosecution ever told Browning that an offer of a sentence would be made in return for his guilty plea, but not until after his testimony. The petitioner's counsel conceded at oral argument that there is no authority for the proposition urged by the petitioner that the state is under an obligation to make a plea offer to a witness who is himself facing criminal charges before he gives testimony in a case. Here, the court made a finding that "the petitioner has failed to present any credible evidence that there was an actual or implied agreement between the state and Gary Browning that the state failed to disclose." The petitioner's claim of a Brady violation is without merit. The judgment is affirmed. In this opinion the other judges concurred. The petitioner also claims that the court improperly concluded that he had failed to prove that his trial counsel was ineffective for declining to call a certain witness to testify at the underlying criminal trial. In its memorandum of decision, the habeas court dismissed the claim of ineffective assistance of trial counsel on the grounds that it was barred by res judicata and that it was successive. The court also determined that the claim was barred by laches and, alternatively, that the petitioner could not prevail on the merits. At oral argument before this court, the petitioner's counsel conceded that the claim of ineffective assistance of trial counsel, by itself, was successive. In light of this concession, we do not examine the merits of the petitioner's claim of ineffective assistance of trial counsel separately but only to the extent that his claim of ineffective assistance of prior habeas counsel is premised on such a claim. See Mukhtaar v. Commissioner of Correction , 158 Conn. App. 431, 438-39, 119 A.3d 607 (2015). The court in the petitioner's second habeas trial had ample evidence of the seasoned nature of Riccio's representation, including a transcript of Riccio's testimony in the petitioner's first habeas case that was admitted as a full exhibit in the second habeas proceeding. In the petitioner's first criminal trial, Riccio raised enough doubt that the jury was "hung," unable to agree on a verdict. In the petitioner's second criminal trial, Riccio succeeded in convincing the jury to return a not guilty verdict as to murder, and the petitioner was found guilty of the lesser included and less serious offense of manslaughter in the first degree in violation of § 53a-55a. Riccio testified at the first habeas trial that he had thirty-five to forty murder trials in Connecticut state courts, had tried twelve federal criminal cases to conclusion and had been involved in approximately 100 other federal criminal cases. The record shows that Riccio had wide experience and had twice obtained results in two successive criminal trials in which the petitioner was not convicted of the most serious crime with which he was charged, namely, murder.

12508518

GARDEN HOMES PROFIT SHARING TRUST, L.P. v. Robert CYR

Garden Homes Profit Sharing Trust, L.P. v. Cyr

2019-01-04

AC 41034

230

236

206 A.3d 230

206

West's Atlantic Reporter, Third Series

Connecticut Appellate Court

Connecticut

2021-08-27T20:57:49.725711+00:00

Fastcase

GARDEN HOMES PROFIT SHARING TRUST, L.P. v. Robert CYR

GARDEN HOMES PROFIT SHARING TRUST, L.P. v. Robert CYR AC 41034 Appellate Court of Connecticut. Submitted on briefs January 4, 2019 Officially released April 2, 2019 Thomas T. Lonardo, and Colin P. Mahon, Meriden, filed a brief for the appellant (plaintiff). Keller, Bright and Moll, Js.

3333

19926

KELLER, J. The plaintiff, Garden Homes Profit Sharing Trust, L.P., appeals from the trial court's judgment in favor of the defendant, Robert Cyr. The plaintiff claims that the court erred by (1) concluding that the plaintiff lacked statutory authority to proceed with the summary process action against the defendant in the absence of Susan Scribner, the owner of the mobile home where the defendant resides, (2) rendering judgment in favor of the defendant after concluding that the owner of the mobile home where the defendant resides was a necessary party to the action, and (3) denying the plaintiff's Practice Book § 11-11 motion to reargue the court's initial decision to dismiss the plaintiff's action. For the reasons set forth in this opinion, we reverse the judgment of the trial court and remand the case for further proceedings consistent with this opinion. We briefly set forth the procedural course of the case. The plaintiff commenced this summary process action against the defendant by writ of summons and complaint dated August 3, 2017. The complaint alleged that "[o]n or about August 18, 2014, the defendant . took occupancy of a certain mobile home located at 68 Apple Blossom Lane, Danbury, Connecticut, in the plaintiff's mobile home community." The complaint also alleged that the defendant "took occupancy of the premises pursuant to approval from the plaintiff community owner," and that the defendant "failed to comply with the community guidelines ." In particular, the complaint alleged that the defendant violated the following guideline: "Activity that threatens the health, safety or right to peaceful enjoyment of their residences by persons residing in the immediate vicinity of the premises; and/or any activity that threatens the health or safety of any onsite property management staff responsible for managing the premises." The complaint further alleged that despite the plaintiff causing "notice to be duly served on the defendant to quit occupancy of the premises on or before July 21, 2017," the defendant "still continues to occupy [the premises]." Accordingly, the plaintiff sought "[j]udgment for possession of the premises." The defendant filed his answer to the plaintiff's complaint on August 11, 2017, in which he indicated that he either disagreed with or had no knowledge of the allegations set forth in the complaint. He did not set forth any special defenses. After one continuance was granted, the case was scheduled for trial on October 16, 2017. That morning, the defendant filed another motion for a continuance, which was denied by the court. When the case was called, the defendant reiterated his request to continue the case. He informed the court that he was in severe pain and in need of medical treatment. The plaintiff's counsel indicated to the court that he was prepared for trial. While reconsidering the defendant's request for a continuance, the court sought to clarify the plaintiff's claim against the defendant. The plaintiff's counsel indicated to the court that the defendant is a guest of Scribner, the owner of a mobile home who leases a lot in the mobile home community owned by plaintiff. The plaintiff's counsel further stated that the defendant is neither a resident nor a tenant but was approved by the plaintiff to "stay with [Scribner] as a guest only." The court expressed concern that the plaintiff might have "standing issues" because the plaintiff was seeking to evict a cooccupant who neither rented directly from the plaintiff nor owned a mobile home situated in the plaintiff's mobile home park. The plaintiff's counsel indicated to the court that he had filed a brief that day addressing the court's concerns. The court then continued the matter for one week and indicated that it would consider the issue of "standing" at the next hearing. On October 23, 2017, the parties again appeared before the court. At the outset, the plaintiff's counsel indicated to the court that he was prepared to call two witnesses to testify in the matter. The defendant, however, made an oral motion to dismiss but stated no particular ground for his motion. The court then questioned how the plaintiff could seek to evict the defendant without also naming Scribner, the mobile home owner, with whom the defendant resided. The plaintiff's counsel argued that the plaintiff was not trying to take possession of the mobile home but, rather, the land underneath the mobile home. The plaintiff's counsel indicated to the court that the plaintiff was seeking "possession of it as it pertains to [the defendant]." The court stated: "You need to bring an action against [the mobile home owner] in order to get the mobile home off the land.... [Y]ou've got the land. But what you want to get rid of is the mobile home that houses [the defendant]." The plaintiff's counsel responded: "No, Your Honor, we want to get rid of [the defendant]." The court indicated that the plaintiff is unable to evict the defendant without bringing an action against Scribner. It then stated that the "[m]atter is dismissed as to [the defendant]." After the hearing was over, the court went back on the record without notice to and in the absence of the parties. The court indicated: "I believe I misspoke a few minutes ago when I stated that I was dismissing the case. I do not think this is a matter of jurisdiction. And I want to clarify that I am granting judgment to the defendant . on the basis of lack of statutory authority to proceed on the summary process action. "The plaintiff has brought the action against a man who is neither a tenant of [the plaintiff] nor [does it] own the mobile home in which [the defendant] resides. So, [it is] not the owner either. "[The plaintiff] represent[s] that [it is] the [owner] of the land on which the mobile home sits. But in order to evict . an occupant of a mobile home that's not owned by [the plaintiff, it has] to evict the owner of the mobile home as well as the tenant or at least bring the action against the mobile home owner plus her cooccupant in this case. "So, [the plaintiff] . was not seeking possession of the mobile home. [It] represent[s] that [it was] seeking possession of the land. [It] already [has] possession of the land. And in order to evict one occupant of a mobile home that [it does not] own, [it has] to bring the action against all occupants of the mobile home, and most particularly the owner, who in this case resides with [the defendant]. "So . judgment for the defendant is based on lack of statutory authority. I did not wish to and did not claim that the court had no jurisdiction. It's not dismissed. Judgment for the defendant for lack of statutory authority." (Footnote added.) On October 29, 2017, the plaintiff filed a motion for reargument on the basis of the court's October 23, 2017 decision, in which the plaintiff indicated that "the court sua sponte dismissed the plaintiff's summary process for lack of jurisdiction." (Emphasis in original.) In particular, the plaintiff argued that the court's decision was in direct conflict with applicable law because (1) "[Scribner] is not an indispensable party, and (2) even if she was indispensable, failure to join her in the action does not constitute a jurisdictional defect that warrants dismissal." The defendant filed an objection to the motion on October 31, 2017. On October 31, 2017, after the plaintiff already had filed his motion for reargument on the basis of the court's purported dismissal of the case, the court issued written notice to the parties of the corrected decision it had orally rendered in the absence of the parties on October 23, 2017. The written order stated: "The court is granting judgment in favor of the defendant on the basis of lack of statutory authority to proceed on the summary process action. The plaintiff brought this action against a defendant who is not [its] tenant, nor [is] the [plaintiff] the [owner] of the mobile home in which the defendant resides. The plaintiff represents that [it is] the [owner] of the land on which the mobile home sits. In order to evict the tenant of the mobile home, [it had] to bring the action against the mobile home owner in addition to the cooccupant. The plaintiff is seeking possession of the land, not the mobile home, and the plaintiff already has possession of the land." The court denied the plaintiff's motion for reargument on November 2, 2017. This appeal followed. On appeal, the plaintiff claims, among other things, that the court erred by concluding that the plaintiff lacked statutory authority to bring the summary process action against the defendant. In the plaintiff's view, the Landlord Tenant Act, General Statutes § 47a-1 et seq., enables it to evict a guest who is residing in a mobile home owned by another person on land owned by the plaintiff. It also claims that the court erroneously determined that Scribner, the mobile home owner, is a necessary party to this action and, even if the court was correct in concluding as such, it was still error for the court to render judgment in favor of the defendant for nonjoinder of Scribner without first allowing the plaintiff the opportunity to add Scribner to the action. We agree with the plaintiff that it should have been afforded the opportunity to add Scribner as a party. Accordingly, we reverse the judgment of the trial court and remand the case for further proceedings consistent with this opinion. At the outset, we note that the court's October 23, 2017 order, which was provided in writing to the parties on October 31, 2017, is not a model of clarity. The court indicated that it was "granting judgment in favor of the defendant on the basis of lack of statutory authority to proceed on the summary process action." It did not, however, cite to any law, but indicated that "[t]he plaintiff brought this action against a defendant who is not [its] tenant, nor [is the plaintiff the owner] of the mobile home in which the defendant resides." It also indicated that "[i]n order to evict the tenant of the mobile home, [the plaintiff would] have to bring the action against the mobile home owner in addition to the cooccupant." In its appellate brief, the plaintiff acknowledges some ambiguity with regard to the court's order. The plaintiff indicates that "[t]he court's ruling could reasonably be construed to mean that the plaintiff could not evict the defendant because a necessary party-Ms. Scribner-was excluded from the action. If this was the trial court's rationale, then the decision should be overturned because Ms. Scribner is not a necessary party." It also argues that to whatever extent the mobile home owner could be considered a necessary party, the "court's entry of judgment . was improper ." It argues that the court improperly raised sua sponte the issue of nonjoinder and, even if it could raise the issue sua sponte, rendering judgment in favor of the defendant was improper on this ground because the plaintiff should have been afforded an opportunity to cite in Scribner as a defendant. Although the court used language that there was a "lack of statutory authority to proceed" in this case, its rationale was based exclusively on the plaintiff's failure to bring the action against both Scribner, the mobile home owner, and her guest and cooccupant, the defendant. We interpret the court's ruling as raising the issue of nonjoinder. In effect, the court struck the plaintiff's complaint as legally insufficient on the basis that Scribner was a necessary party to the action. Thus, we construe the court's order as rendering judgment in favor of the defendant on the basis of the nonjoinder of Scribner. See Avery v. Medina , 174 Conn. App. 507, 517, 163 A.3d 1271 ("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.... The [order or] judgment should admit of a consistent construction as whole." [Internal quotation marks omitted.] ), cert. denied, 327 Conn. 927, 171 A.3d 61 (2017). Although the plaintiff argues that it was improper for the court to have raised the issue of nonjoinder on its own without a motion to strike filed by the defendant, General Statutes § 52-108 gives the court broad authority to address issues of nonjoinder and misjoinder that may arise in a case, including, as the court did in the present case, the authority to raise the issue sua sponte. To be sure, § 52-108 provides: "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." Concluding that the court properly raised the issue of nonjoinder, we turn now to consider whether the court properly rendered judgment in favor of the defendant on the basis of nonjoinder without giving the plaintiff an opportunity to add Scribner as a party. The plaintiff argues that § 52-108 and Practice Book § 9-19 and 10-44 make clear that an action shall not be defeated by the nonjoinder of a party and that "the proper remedy would have been to cite . Scribner into the case or to require the plaintiff to replead and bring . Scribner into the action." We begin with the standard of review. "The interpretive construction of the rules of practice is to be governed by the same principles as those regulating statutory interpretation.... The interpretation and application of a statute, and thus a Practice Book provision, involves a question of law over which our review is plenary." (Internal quotation marks omitted.) Meadowbrook Center, Inc. v. Buchman , 328 Conn. 586, 594, 181 A.3d 550 (2018) ; see also Wiseman v. Armstrong , 295 Conn. 94, 99, 989 A.2d 1027 (2010). Practice Book § 9-19, which largely mirrors General Statutes § 52-108, makes clear that "[e]xcept as provided in Sections 10-44 and 11-3no 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 requires." (Emphasis added.) The rules of practice also make clear that "the exclusive remedy for nonjoinder of parties is by motion to strike." Practice Book § 11-3. With those provisions in mind, Practice Book § 10-44 further instructs that "[w]ithin fifteen days after the granting of any motion to strike, the party whose pleading has been stricken may file a new pleading; provided that in those instances where an entire complaint . has been stricken, and the party whose pleading . has been so stricken fails to file a new pleading within that fifteen day period, the judicial authority may, upon motion, enter judgment against said party on said stricken complaint ." See Lund v. Milford Hospital, Inc. , 326 Conn. 846, 850, 168 A.3d 479 (2017) ("[a]fter a court has granted a motion to strike, [a party] may either amend his pleading [pursuant to Practice Book § 10-44 ] or, on the rendering of judgment, file an appeal" [internal quotation marks omitted] ). Thus, in the present case, after the court concluded that Scribner was a necessary party to the action, thereby determining that the plaintiff's complaint was legally deficient due to the nonjoinder of a party, its immediate rendering of judgment in favor of the defendant effectively struck the plaintiff's complaint without affording the plaintiff notice and at least fifteen days to add Scribner to the action. See Practice Book § 10-44. By doing so, the court ultimately defeated the plaintiff's summary process action on the basis of nonjoinder of a party despite being proscribed from summarily doing so. See General Statutes § 52-108 ; Practice Book § 9-19. Accordingly, we conclude that the trial court improperly rendered judgment in favor of the defendant. The judgment is reversed and the case is remanded for further proceedings consistent with this opinion. In this opinion the other judges concurred. We note that the defendant did not participate in this appeal. This court entered an order on July 23, 2018, providing that this appeal would be considered solely on the basis of the plaintiff's brief and the record, as defined by Practice Book § 60-4, in light of the defendant's failure to comply with this court's July 6, 2018 order requiring him to file a brief on or before July 20, 2018. The plaintiff, however, did not allege how the defendant became subject to the mobile home community guidelines. We believe that the court meant "occupant." The court previously referred to the defendant as an occupant, and the record demonstrates that the plaintiff indicated that the defendant was not a tenant. "Necessary parties . are those [p]ersons having an interest in the controversy, and who ought to be made parties, in order that the court may act on that rule which requires it to decide on, and finally determine the entire controversy, and do complete justice, by adjusting all the rights involved in it.... [B]ut if their interests are separable from those of the parties before the court, so that the court can proceed to a decree, and do complete and final justice, without affecting other persons not before the court, the latter are not indispensable parties." (Internal quotation marks omitted.) Bloom v. Miklovich , 111 Conn. App. 323, 334, 958 A.2d 1283 (2008). The plaintiff alleged in its complaint that the defendant took occupancy "of a certain mobile home located" in its mobile home park after giving him approval to do so. We surmise that the plaintiff, at Scribner's request, gave Scribner permission to allow the defendant to reside with her in her mobile home, perhaps subject to any conditions of the lease between the plaintiff and Scribner. We decline, however, to address the issue of whether Scribner was in fact a necessary party to the action because, as we explain subsequently in this opinion, the court committed reversible error by failing to give the plaintiff an opportunity to amend its pleading to either cite in Scribner or to replead its complaint such that the court may no longer deem it necessary to join Scribner as a party. Even if we were to assume that the court properly believed that it lacked statutory authority to proceed in this action because the plaintiff failed to plead an essential fact for obtaining relief under the applicable statute, our case law instructs that, if possible, the plaintiff should be given the opportunity to "amend the complaint to correct the defect ." (Internal quotation marks omitted.) In re Jose B. , 303 Conn. 569, 579, 34 A.3d 975 (2012) (explaining difference between lack of jurisdiction and lack of statutory authority). On the basis of the record before us, the plaintiff was not given the opportunity to add a party or to amend its complaint prior to the court rendering judgment in favor of the defendant, even though it is clear that the plaintiff could easily have done so. In view of our determination that the court committed reversible error by not providing the plaintiff with an opportunity to add Scribner to the case, we need not address the plaintiff's other claims because we cannot say that they are likely to occur on remand.

12510357

Kieran DAY et al. v. PERKINS PROPERTIES, LLC, et al.

Day v. Perkins Props., LLC

2019-05-14

AC 41357

718

723

209 A.3d 718

209

West's Atlantic Reporter, Third Series

Connecticut Appellate Court

Connecticut

2021-08-27T20:57:52.145563+00:00

Fastcase

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

Kieran DAY et al. v. PERKINS PROPERTIES, LLC, et al.

Kieran DAY et al. v. PERKINS PROPERTIES, LLC, et al. AC 41357 Appellate Court of Connecticut. Argued February 13, 2019 Officially released May 14, 2019 Matthew G. Berger, New London, for the appellants (defendants). Michael S. Bonnano, New London, for the appellees (plaintiffs). DiPentima, C.J., and Lavine and Flynn, Js.

1960

12091

FLYNN, J. The defendants, Perkins Properties, LLC, and Mark J. Perkins, Jr., appeal from the judgment of the trial court rendered in favor of the plaintiffs, Kieran Day and Jennifer Day. The defendants claim that the court improperly determined that a nuisance per se existed solely on the basis of violations of local zoning regulations. We agree that a violation of a local zoning ordinance in one town cannot be said to constitute a nuisance everywhere in the state of Connecticut as the nuisance per se doctrine requires and, accordingly, we reverse the judgment of the trial court. The following undisputed facts and procedural history are relevant. The plaintiffs own real property located at 572 Lantern Hill Road in Ledyard. Perkins is the sole member of Perkins Properties, LLC, the owner of real property abutting the plaintiffs' property located at 576 Lantern Hill Road in Ledyard. The defendants' property is a contiguous parcel that also encompasses 586Z Lantern Hill Road in North Stonington. The defendants' Ledyard and North Stonington properties are separated by Whitford Brook, and both are located in residential R-80 zones that prohibit commercial use of real property. In a separate action brought by the town of Ledyard and Joseph Larkin in his capacity as Ledyard's zoning enforcement officer against Perkins Properties, LLC, those parties entered into a stipulation on October 27, 2016. The written stipulation provided that Perkins Properties, LLC, was enjoined from operating a landscaping business, lawn care business, snow removal business, or other similar commercial operations at 576 Lantern Hill Road in Ledyard. It further provided that commercial activity and uses accessory to commercial activity were not permitted in residential zones pursuant to § 3.4 of the Ledyard Zoning Regulations, and that no building, structure, or any portion of the property shall be used for commercial activity or any purpose subordinate or incidental to commercial activity, including, but not limited to: vehicular or pedestrian access to commercial activity; employee parking for commercial activity; storage, maintenance, or repair of vehicles, equipment or machinery used in whole or in part in conducting commercial activity, except as permitted by paragraph 2 of the stipulation; assembly of employees of commercial activities other than farming or uses accessory to farming; storage of materials or products used in the course of the business of commercial activity, except as permitted by paragraph 2; and the storage of materials, products or by products generated in the course of business or commercial activity. The stipulation provided in paragraph 2 that activities that may constitute farming or a use accessory to farming under § 2.2 of the Ledyard Zoning Regulations may be permitted. The stipulation provided that these exceptions are to be strictly and narrowly construed. The court, Cosgrove J. , entered judgment in accordance with the stipulation on December 1, 2016. Ledyard and Larkin moved for contempt because of noncompliance by Perkins Properties, LLC, with the December 1, 2016 judgment, and the court, Cole-Chu, J. , granted the motion. The plaintiffs commenced the present action in 2015, and served their seven count fourth amended complaint in December, 2017. In the second count of that complaint, the plaintiffs alleged that the defendants' use of the Ledyard property for a landscaping business violated the Ledyard Zoning Regulations by reason of noise, safety, fumes and odors, and because commercial activity is prohibited in an R-80 zone. The plaintiffs sought injunctive relief and monetary damages. Following a trial, the court found that the plaintiffs proved only the allegations in the second count of the complaint. The court determined that there was a nuisance per se pursuant to the defendants' deliberate violation of the terms of the stipulated judgment, which enjoined the defendants, on the basis of the Ledyard Zoning Regulations, from conducting commercial activity and related accessory uses on the Ledyard property. The court determined that, although the defendants claimed to operate a nonconforming farm, the only agricultural activity that took place on the property was Perkins' ownership of an uncertain number of cows that were kept in various grazing spots. The court concluded that the activity at issue did not fall under the farming exception in the stipulated judgment, which permitted farming activity pursuant to the Ledyard Zoning Regulations. The court ordered that no nonfarming activity take place on the Ledyard property and that no direct vehicular access, including off road conveyances, be had between the defendants' adjoining Ledyard and North Stonington properties. This appeal followed. The issue before us is whether the trial court properly determined that a certain use of land constituted a nuisance per se. "Although the existence of a [public or private] nuisance generally is a question of fact, for which we invoke a clearly erroneous standard of review . where the court makes legal conclusions or we are presented with questions of mixed law and fact, we employ a plenary standard of review ." (Internal quotation marks omitted.) Sinotte v. Waterbury , 121 Conn. App. 420, 438, 995 A.2d 131, cert. denied, 297 Conn. 921, 996 A.2d 1192 (2010). Under our case law, the question as to what constitutes a nuisance per se is one of law for the court. See Warren v. Bridgeport , 129 Conn. 355, 360, 28 A.2d 1 (1942) ; Beckwith v. Stratford , 129 Conn. 506, 510, 29 A.2d 775 (1942). Accordingly, our review is plenary. See Sinotte v. Waterbury , supra, at 438, 995 A.2d 131. "A nuisance not originating in negligence is sometimes characterized as an absolute nuisance [or a nuisance per se]." (Internal quotation marks omitted.) Warren v. Bridgeport , supra, 129 Conn. at 360, 28 A.2d 1. Significantly for the decision to be made in this appeal, a "nuisance per se . exists where there is a condition which is a nuisance in any locality and under any circumstances.... Such a nuisance as regards the use of land seldom, if ever, occurs; the same conditions may constitute a nuisance in one locality or under certain circumstances, and not in another locality or under other circumstances. To constitute a nuisance in the use of land, it must appear not only that a certain condition by its very nature is likely to cause injury but also that the use is unreasonable or unlawful." (Citation omitted.) Beckwith v. Stratford , supra, 129 Conn. at 508, 29 A.2d 775. "Some things are unlawful or nuisances per se; others become so, only in respect to the time, place or manner of their performance." Whitney v. Bartholomew , 21 Conn. 213, 217 (1851). A landscaping business is not a use of land that, by its very nature, constitutes a nuisance at all times regardless of locality or circumstance. First, we note that our case law most often has dealt with what is not a nuisance per se. See Wood v. Wilton , 156 Conn. 304, 310, 240 A.2d 904 (1968) (refuse disposal operation not nuisance per se but may be nuisance in fact as result of manner of operation); Jack v. Torrant , 136 Conn. 414, 421, 71 A.2d 705 (1950) (undertaking establishment not nuisance per se); Murphy v. Ossola , 124 Conn. 366, 371, 199 A. 648 (1938) (mere possession or use of dynamite caps not nuisance per se); Udkin v. New Haven , 80 Conn. 291, 294, 68 A. 253 (1907) (accumulated snow on walkway did not constitute nuisances per se); Parker v. Union Woolen Co ., 42 Conn. 399, 402 (1875) (use of steam whistle not nuisance per se); Whitney v. Bartholomew , supra, 21 Conn. at 217 ("[t]he trade and occupation of carriage-making, or of a blacksmith, is a lawful and useful one; and a shop or building, erected for its exercise, is not a nuisance per se"). Second, the nature of the complaint and the court's findings limit any unreasonable use of the land to a specific locality and manner of performance. The allegations in the complaint limited the nuisance to a particular locality and stated, in essence, that the landscaping business was pursued in an improper place, namely, in an R-80 zone in Ledyard. The Ledyard Zoning Regulations, by their very nature, applied only to property located in Ledyard. Furthermore, the terms of the stipulated judgment applied only to 576 Lantern Hill Road in Ledyard and specified that certain activities were prohibited to the extent the activities constituted commercial activity and not farming. The court noted these limitations in its decision, stating that "the Ledyard injunction applies to the Ledyard property, of course," and on that basis did not find a nuisance per se for the same commercial landscaping activity occurring on the North Stonington property. The court found for the defendants on count one of the complaint, which alleged that the landscaping business constituted a private nuisance on the basis of employee mustering, aggressive and threatening behavior by employees, and noise. The violation of a local ordinance, which formed the basis of the stipulated judgment and the court's finding of nuisance per se, is not, as a matter of law, sufficient in itself to constitute a nuisance per se. In certain cases, a court may interpret local zoning regulations along with other factors to determine whether a private nuisance exists. See Cummings v. Tripp , 204 Conn. 67, 79, 527 A.2d 230 (1987). It is axiomatic that local zoning regulations apply only to a specific locality, and "[w]hat constitutes a nuisance in one locality may not in another." Jack v. Torrant , supra, 136 Conn. at 423, 71 A.2d 705. "[T]he mere violation of a municipal ordinance does not make the act in question a nuisance per se." 58 Am. Jur. 2d 581, Nuisances § 14 (2012). For the foregoing reasons, we conclude that the court's finding of a nuisance per se on the basis of violations of a local zoning ordinance, which the defendants were enjoined from violating under the terms of a stipulated judgment, was improper as a matter of law. The judgment is reversed and the case is remanded with direction to render judgment in favor of the defendants. In this opinion the other judges concurred. The defendants also claim that the court erred in enjoining them from direct vehicular access, including off road conveyances, between the defendants' adjoining Ledyard and North Stonington properties. The court found that the plaintiffs only proved the second count of their complaint alleging nuisance per se, and we reverse that judgment including any remedies awarded therein. Accordingly, we need not address the merits of this claim. The court clarified its judgment to note that the second count, as opposed to the third count which alleged nuisance per se as to the North Stonington property, had been proven. "A private nuisance is a nontrespassory invasion of another's interest in the private use and enjoyment of land.... The law of private nuisance springs from the general principle that [i]t is the duty of every person to make a reasonable use of his own property so as to occasion no unnecessary damage or annoyance to his neighbor.... The essence of a private nuisance is an interference with the use and enjoyment of land." (Citations omitted; internal quotation marks omitted.) Pestey v. Cushman , 259 Conn. 345, 352, 788 A.2d 496 (2002). Additionally, we note that count two of the complaint was not an action to enforce a zoning regulation. See e.g., Cummings v. Tripp , 204 Conn. 67, 78-80, 527 A.2d 230 (1987) (right of property owners to seek injunction and damages for nuisance affecting enjoyment of their property is supplemental to right to seek injunctive relief from zoning authorities for violation of zoning ordinance).

12505703

Luis Ariel RIVERA v. COMMISSIONER OF CORRECTION

Rivera v. Comm'r of Corr.

2018-12-11

AC 38837

701

706

200 A.3d 701

200

West's Atlantic Reporter, Third Series

Connecticut Appellate Court

Connecticut

2021-08-27T20:57:43.750727+00:00

Fastcase

Luis Ariel RIVERA v. COMMISSIONER OF CORRECTION

Luis Ariel RIVERA v. COMMISSIONER OF CORRECTION AC 38837 Appellate Court of Connecticut. Argued September 13, 2018 Officially released December 11, 2018 Temmy Ann Miller, assigned counsel, for the appellant (petitioner). Steven R. Strom, assistant attorney general, with whom, on the brief, was George Jepsen, attorney general, for the appellee (respondent). Alvord, Moll and Eveleigh, Js.

2984

18779

MOLL, J. The petitioner, Luis Ariel Rivera, appeals, following the granting of his petition for certification to appeal, from the judgment of the habeas court dismissing his petition for a writ of habeas corpus for lack of jurisdiction pursuant to Practice Book § 23-29 (1). On appeal, the petitioner claims that (1) the habeas court's articulation constitutes an improper modification of its original judgment and must be stricken from the record, and (2) the habeas court improperly dismissed his petition for lack of jurisdiction. We conclude that the habeas court lacked jurisdiction over the petition and, accordingly, affirm the judgment. The following procedural and statutory background is relevant to this appeal. In 2007, the petitioner was arrested and charged with manslaughter in the first degree in violation of General Statutes § 53a-55. In 2009, the petitioner pleaded guilty to that charge and was sentenced to twenty years of incarceration, execution suspended after fifteen years, followed by five years of probation. As a result of his conviction, the petitioner remains in the custody of the respondent, the Commissioner of Correction. In 2011, while the petitioner was incarcerated, the General Assembly enacted No. 11-51, § 22, of the 2011 Public Acts (P.A. 11-51), later codified in General Statutes § 18-98e (original legislation). The original legislation provided that certain classes of prisoners, which included the petitioner, convicted of crimes committed on or after October 1, 1994, "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 certain positive, statutorily described conduct. P.A. 11-51, § 22. The original legislation also conferred on the respondent the discretion to revoke earned (and even unearned) risk reduction credits for good cause. P.A. 11-51, § 22. Because a sentence for a violation of § 53a-55 was not disqualifying at the time, the original legislation rendered the petitioner eligible to earn risk reduction credit toward the advancement of his end of sentence date. In 2015, the General Assembly passed No. 15-216, § 9, of the 2015 Public Acts (P.A. 15-216), which amended § 18-98e to expand the list of persons ineligible to earn risk reduction credit toward the reduction of their sentences, including persons who have been sentenced for violating § 53a-55, the offense of which the petitioner had been convicted. Consequently, once the amendment became effective on October 1, 2015, the petitioner was no longer eligible to earn risk reduction credit toward the reduction of his sentence. See P.A. 15-216, § 9. On December 11, 2015, the petitioner, representing himself, filed his petition alleging that the application of P.A. 15-216 resulted in "[d]iscrimination" and "the violation of ex post facto." He alleged that, as of October 1, 2015, he became ineligible to earn risk reduction credit toward the reduction of his sentence, even though he had been earning such credit since the original legislation went into effect. The petitioner does not claim that he has been deprived of risk reduction credit already earned. On December 21, 2015, the habeas court dismissed the petition, sua sponte, pursuant to Practice Book § 23-29 (1), for lack of jurisdiction "over the claims set forth in the petition concerning the change in the [p]etitioner's eligibility date for parole consideration." The court did not hold a hearing prior to dismissing the petition. On December 31, 2015, the petitioner filed a petition for certification to appeal, contending that his petition was dismissed based on a ground not raised therein. On January 4, 2016, the habeas court granted the petition for certification to appeal. On January 11, 2016, the petitioner filed a request for the appointment of counsel and an application for waiver of fees, costs, and expenses. On January 13, 2016, the habeas court granted his request for appointment of counsel and application for waiver. This appeal followed. On May 31, 2016, the petitioner filed a motion for articulation, stating that "[t]he need for an articulation motion arises from the fact that the dismissal refers to a parole eligibility claim, and the claim raised is not such a claim. Articulation is needed because it is not clear how the perceived lack of jurisdiction over a 'change in the petitioner's eligibility date for parole consideration' pertains to the dismissal of a claim unrelated to parole eligibility." On July 12, 2016, the habeas court denied the motion for articulation. On July 19, 2016, the petitioner filed with this court a motion for review of the denial of his motion for articulation. On September 21, 2016, this court granted in part the petitioner's motion for review and ordered the habeas court "to articulate the legal basis for the court's determination that it lacks jurisdiction over the claims set forth in the petition concerning the change in the petitioner's eligibility for parole consideration." On January 17, 2017, in accordance with this court's order, the habeas court issued an articulation. The habeas court concluded that the application of P.A. 15-216 to the petitioner does not violate the ex post facto clause because it does not increase his term of confinement. The habeas court also concluded that the prospective opportunity to earn risk reduction credit pursuant to § 18-98e, as amended by P.A. 15-216, does not implicate a liberty interest upon which the petitioner may predicate habeas relief because the legislative amendment has at its foundation discretionary language authorizing, but not requiring, the respondent to grant such credit to qualifying inmates. I We first address the petitioner's claim that the habeas court improperly dismissed his petition for lack of jurisdiction. The petitioner argues that, pursuant to the proper jurisdictional analysis, the allegations in his petition are sufficient to invoke the jurisdiction of the habeas court. Additionally, the petitioner argues that a liberty interest in future unearned risk reduction credit is not required to establish jurisdiction over his discrimination and ex post facto claims. The respondent argues, to the contrary, that the habeas court properly dismissed the petition for lack of subject matter jurisdiction because the petitioner lacks a cognizable liberty interest in earning future risk reduction credit, and there is no colorable basis for an ex post facto claim. We agree with the respondent. To begin, we set forth the relevant standard of review and legal principles that govern the petitioner's claim on appeal. "[A] determination regarding a trial court's subject matter jurisdiction is a question of law and, therefore, we employ the plenary standard of review and decide whether the court's conclusions are legally and logically correct and supported by the facts in the record." (Internal quotation marks omitted.) Petaway v. Commissioner of Correction , 160 Conn. App. 727, 731, 125 A.3d 1053 (2015), cert. dismissed, 324 Conn. 912, 153 A.3d 1288 (2017). "[T]o 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.) Joyce v. Commissioner of Correction , 129 Conn. App. 37, 41, 19 A.3d 204 (2011) ; see also Perez v. Commissioner of Correction , 326 Conn. 357, 368, 163 A.3d 597 (2017) (to invoke habeas court's jurisdiction, petitioner must allege interest sufficient to give rise to habeas relief). "In order . to qualify as a constitutionally protected liberty . the interest must be one that is assured either by statute, judicial decree, or regulation." (Emphasis in original; internal quotation marks omitted.) Vitale v. Commissioner of Correction , 178 Conn. App. 844, 867-68, 178 A.3d 418 (2017), cert. denied, 328 Conn. 923, 181 A.3d 566 (2018). As this court previously has explained, "[o]ur 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 commissioner 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 (2018) ; see Holliday v. Commissioner of Correction , 184 Conn. App. 228, 235, 194 A.3d 867, A.3d (2018) (habeas court properly dismissed for lack of subject matter jurisdiction ex post facto claim based on 2013 statutory change regarding application of earned risk reduction credit toward parole eligibility); see also Perez v. Commissioner of Correction , supra, 326 Conn. at 370-73 (no liberty interest in early parole eligibility or risk reduction credit); Petaway v. Commissioner of Correction , supra, 160 Conn. App. at 733-34 (affirming judgment of habeas court based on lack of jurisdiction over ex post facto claim asserted in absence of allegation that 2013 statutory change regarding parole eligibility extended length of incarceration or delayed parole eligibility beyond time periods that existed at time of offense); Abed v. Commissioner of Correction , 43 Conn. App. 176, 182-83, 682 A.2d 558 (petitioner failed to state cognizable ex post facto claim based on prospective denial of discretionary, statutory good time credits), cert. denied, 239 Conn. 937, 684 A.2d 707 (1996). In the present case, the statutory scheme that created the opportunity to earn risk reduction credit did not exist at the time of the petitioner's offense. It was not until 2011, upon the passage of the original legislation, that the petitioner became eligible to earn risk reduction credit toward the reduction of his sentence pursuant to § 18-98e. Although the petitioner was no longer eligible to earn risk reduction credit after the passage of P.A. 15-216, the 2015 amendments did not increase the petitioner's overall sentence. Rather, the 2015 amendments simply returned the petitioner to the position that he was in at the time of his offense. See Perez v. Commissioner of Correction , supra, 326 Conn. at 378-80 (ex post facto inquiry requires comparison of challenged statute with statute in effect at time of offense). Furthermore, during the period in which the petitioner was eligible to earn risk reduction credit pursuant to § 18-98e, such credit could be awarded only at the discretion of the respondent. See P.A. 11-51, § 22 ("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 . may be eligible to earn risk reduction credit toward a reduction of such person's sentence . at the discretion of the Commissioner of Correction"); General Statutes (Rev. to 2013) § 18-98e (same). That is, the interest in earning risk reduction credit, as alleged by the petitioner, was not assured by § 18-98e at any time. Accordingly, the petitioner has not alleged a constitutionally protected liberty interest that would give rise to habeas relief. We conclude, therefore, that the habeas court lacked subject matter jurisdiction over the petitioner's ex post facto claim, and the petition was properly dismissed. See Perez v. Commissioner of Correction , supra, 326 Conn. at 369 ("if the habeas court reached the correct decision, but on mistaken grounds, this court will sustain the habeas court's action if proper grounds exist to support it"). II We next turn to the petitioner's claim that the habeas court's articulation improperly modified its original judgment and must be stricken from the record. The petitioner contends that, rather than issuing a proper articulation, the habeas court improperly offered an entirely new legal basis for its original judgment of dismissal. The petitioner argues further that the habeas court issued its modified decision more than four months after the original judgment in violation of General Statutes § 52-212a. Because we conclude, in part I of this opinion, that the habeas court lacked subject matter jurisdiction over the petitioner's claims regarding his eligibility to earn risk reduction credit pursuant to § 18-98e, we need not address the petitioner's remaining contention that the habeas court's articulation constitutes an improper and untimely modification of the original judgment of dismissal. See id. The judgment is affirmed. In this opinion the other judges concurred. Practice Book § 23-29 provides in relevant part: "The judicial authority may, at any time, upon its own motion or upon motion of the respondent, dismiss the petition, or any count thereof, if it determines that: (1) the court lacks jurisdiction ." General Statutes § 53a-55 provides: "(a) 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 (2) with intent to cause the death of another person, he causes the death of such person or of a third person under circumstances which do not constitute murder because he committed the proscribed act or acts under influence of extreme emotional disturbance, as provided in subsection (a) of section 53a-54a, except that the fact that homicide was committed under the influence of extreme emotional disturbance constitutes a mitigating circumstance reducing murder to manslaughter in the first degree and need not be proved in any prosecution initiated under this subsection; 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. "(b) Manslaughter in the first degree is a class B felony." Number 11-51 of the 2011 Public Acts, § 22, provides in relevant part: "(a) 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-54a, 53a-54b, 53a-54c, 53a-54d, 53a-70a or 53a-100aa, 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. "(b) An inmate may earn risk reduction credit for adherence to the inmate's offender accountability plan, for participation in eligible programs and activities, and for good conduct and obedience to institutional rules as designated by the commissioner, provided (1) good conduct and obedience to institutional rules alone shall not entitle an inmate to such credit, and (2) the commissioner or the commissioner's designee may, in his or her discretion, cause the loss of all or any portion of such earned risk reduction credit for any act of misconduct or insubordination or refusal to conform to recommended programs or activities or institutional rules occurring at any time during the service of the sentence or for other good cause. If an inmate has not earned sufficient risk reduction credit at the time the commissioner or the commissioner's designee orders the loss of all or a portion of earned credit, such loss shall be deducted from any credit earned by such inmate in the future." At the time of the original legislation, and again in 2013, the General Assembly amended the parole eligibility provisions set forth in General Statutes § 54-125a. Public Acts 2011, No. 11-51, § 25; Public Acts 2013, No. 13-3, § 59. The 2011 and 2013 amendments to § 54-125a are not at issue in this appeal. After the passage of P.A. 15-216, § 9, General Statutes § 18-98e provided in relevant part that "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-54a, 53a-54b, 53a-54c, 53a-54d, 53a-55, 53a-55a , 53a-70a, 53a-70c or 53a-100aa, or is a persistent dangerous felony offender or persistent dangerous sexual offender pursuant to section 53a-40 , 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 ." (Emphasis added.) See U.S. Const., art. I, § 10. The petitioner filed his petition using a state supplied form. In his petition, the petitioner stated in relevant part: "6. This petition claims that my incarceration/sentence is illegal because . "6d. Other (be specific): Due to Public Act 15-216, as of Oct [ober ] 1, 2015, I am ineligible to earn [risk reduction earned credit ] toward the reduction of my sentence, which I have been getting since pass [ed ] into law. Going back to 5/1/09 . "6e. State all facts and details regarding your claim: Discrimination. The effect of a law or established practice that confers privileges on a certain class. And the violation of ex post facto. Done or made after the fact having retroactive force of effect . "I am asking the court to . "5. Other (specify) Judge order correction the restart on my [risk reduction earned credit ] from Oct [ober ] 1, 2015, and retroactively until the present day of the order. That correction see that they are in violation of ex post facto. And discrimination ." (Emphasis added.) Because our resolution of this claim is dispositive of the petitioner's appeal, we address this claim first. Neither the petition nor the petitioner's principal brief in this court elaborates on the nature of his claim that the application of P.A. 15-216 results in discrimination. The petitioner specifies for the first time in his reply brief that his claim sounds in equal protection but goes no further. Construing the petition in a manner most favorable to the petitioner, we conclude that he failed to allege sufficient facts to invoke the jurisdiction of the habeas court over his discrimination claim.

12509286

Glenn GILMAN v. Brian SHAMES et al.

Gilman v. Shames

2019-05-07

AC 41412

1279

1291

208 A.3d 1279

208

West's Atlantic Reporter, Third Series

Connecticut Appellate Court

Connecticut

2021-08-27T20:57:51.962382+00:00

Fastcase

Glenn GILMAN v. Brian SHAMES et al.

Glenn GILMAN v. Brian SHAMES et al. AC 41412 Appellate Court of Connecticut. Argued February 5, 2019 Officially released May 7, 2019 Glenn Gilman, self-represented, the appellant (plaintiff). Michael G. Rigg, Hartford, for the appellees (defendants). Sheldon, Moll and Seeley, Js.

5403

34124

MOLL, J. The plaintiff, Glenn Gilman, appeals from the judgment of the trial court dismissing his action against the defendants Brian Shames, M.D., and the state of Connecticut (state). On appeal, the plaintiff claims that the court erred in concluding that it lacked subject matter jurisdiction over his bystander emotional distress claims on the grounds that (1) his claim against Shames, to the extent that the plaintiff was suing Shames in his individual capacity, was barred by statutory immunity pursuant to General Statutes § 4-165, and (2) his claim against the state was derivative of a wrongful death action that had not been brought and, as a result of the expiration of the limitations period set forth in General Statutes § 52-555, could not be brought by the estate of the decedent, Lisa Wenig. We affirm the judgment of the trial court. The following procedural history and facts, as alleged in the plaintiff's operative complaint or as undisputed in the record, are relevant to our resolution of the appeal. From about December 15, 2014 through August 19, 2015, Shames-who was at all relevant times a physician employed by the University of Connecticut Health Center, of which the John Dempsey Hospital (hospital) is a part -provided medical care and treatment to the decedent, who was the plaintiff's fiancée and domestic partner. The decedent died on October 1, 2015. In June, 2016, pursuant to General Statutes § 4-147, the plaintiff filed a notice of claim with the Office of the Claims Commissioner seeking permission to sue the state for damages on the basis of injuries he claimed to have suffered, including emotional distress and loss of consortium, stemming from medical malpractice allegedly committed against the decedent by Shames and the hospital. By way of a memorandum of decision dated February 23, 2017, the Claims Commissioner, absent objection, authorized the plaintiff to sue the state for damages of up to $ 500,000 for alleged medical malpractice by general surgeons or other similar health care providers who constitute state officers and employees, as defined by General Statutes (Rev. to 2015) § 4-141, of the hospital. On June 26, 2017, the plaintiff, representing himself, commenced the present action against Shames and the hospital. In his original two count complaint, the plaintiff raised claims sounding in bystander emotional distress directed to Shames and the hospital. On August 25, 2017, Shames and the hospital filed a motion to dismiss the action, which was accompanied by a separate memorandum of law, asserting that the court lacked subject matter jurisdiction over the plaintiff's bystander emotional distress claims. Specifically, they asserted that the plaintiff's claim directed to Shames was barred by sovereign immunity and/or by statutory immunity pursuant to § 4-165, and that the plaintiff could not pursue a bystander emotional distress action in the absence of a wrongful death action commenced by the decedent's estate, which had not brought a wrongful death action or received authorization from the Claims Commissioner to commence such an action. In addition, Shames and the hospital argued that the plaintiff improperly had brought suit against the hospital because the plaintiff had received authorization from the Claims Commissioner to sue the state only. On October 11, 2017, the plaintiff filed a motion to substitute the state as a party defendant in lieu of the hospital, which the trial court granted on October 24, 2017. On October 23, 2017, the plaintiff filed an objection and a separate memorandum of law in opposition to the motion to dismiss. On November 6, 2017, the defendants filed a reply brief, in which they argued additionally that the decedent's estate would be time barred from bringing a wrongful death action as a result of the expiration of the subject matter jurisdictional limitations period set forth in § 52-555. On November 13, 2017, the plaintiff filed his operative two count complaint raising claims sounding in bystander emotional distress directed to each of the defendants. He alleged, inter alia, that Shames had administered ineffective treatments to the decedent for approximately eight months and that, notwithstanding the lack of improvement in her condition, Shames had failed to alter the course of the treatments or to take "further diagnostic action as is consistent with standard practice," which constituted a substantial factor in the decedent's death. The plaintiff additionally alleged that he had been harmed by Shames' conduct and by the state's breach of its duty to the decedent to ensure that the state's agents, servants, and/or employees acted as "reasonably prudent medical professionals." More particularly, the plaintiff alleged that he had sustained injuries stemming from his "contemporary sensory perception of observing and/or experiencing the demise of the decedent, the decedent's suffering, the decedent's health deteriorating, the decedent's pain and suffering, the administration of life support and, ultimately, [the decedent's] death ." On December 4, 2017, the court heard argument on the defendants' motion to dismiss. On February 9, 2018, the court granted the motion to dismiss. With respect to the plaintiff's bystander emotional distress claim directed to Shames, the court concluded that (1) to the extent that the plaintiff was suing Shames in Shames' official capacity as an employee of the hospital, which was an agent of the state, the plaintiff's claim was barred by sovereign immunity, and (2) to the extent that the plaintiff was suing Shames in Shames' individual capacity, the plaintiff's claim was barred by statutory immunity pursuant to § 4-165. In addition, without limiting its analysis to the plaintiff's claim against the state, the court concluded that the plaintiff's bystander emotional distress "claims" were derivative claims that were not viable absent a predicate wrongful death action commenced by the decedent's estate, which had not commenced such an action and, as a result of the expiration of the limitations period set forth in § 52-555, could not commence such an action. This appeal followed. "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.... 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." (Internal quotation marks omitted.) Dubinsky v. Reich , 187 Conn. App. 255, 259, 201 A.3d 1153 (2019). On appeal, the plaintiff claims that the court erred in concluding that it lacked subject matter jurisdiction to entertain his bystander emotional distress claims. Specifically, the plaintiff asserts that (1) his claim directed to Shames in Shames' individual capacity was not barred by statutory immunity pursuant to § 4-165, and (2) the absence of a wrongful death action brought by the decedent's estate did not deprive the court of subject matter jurisdiction over his claim against the state. These claims are unavailing. I The plaintiff first claims that the court erroneously concluded that his bystander emotional distress claim directed to Shames in Shames' individual capacity was barred by statutory immunity pursuant to § 4-165. Specifically, he asserts that the facts pleaded in his operative complaint were sufficient to demonstrate that Shames' conduct was reckless and, thus, that Shames was not protected by statutory immunity under § 4-165. We disagree. Section 4-165 (a) provides: "No state officer or employee shall be personally liable for damage or injury, not wanton, reckless or malicious, caused in the discharge of his or her duties or within the scope of his or her employment. Any person having a complaint for such damage or injury shall present it as a claim against the state under the provisions of this chapter." "In other words, state employees may not be held personally liable for their negligent actions performed within the scope of their employment.... State employees do not, however, have statutory immunity for wanton, reckless or malicious actions, or for actions not performed within the scope of their employment. For those actions, they may be held personally liable, and a plaintiff who has been injured by such actions is free to bring an action against the individual employee.... "In the posture of this case, we examine the pleadings to decide if the plaintiff has alleged sufficient facts . with respect to personal immunity under § 4-165, to support a conclusion that the [defendant was] acting outside the scope of [his] employment or wilfully or maliciously.... The question before us, therefore, is whether the facts as alleged in the pleadings, viewed in the light most favorable to the plaintiff, are sufficient to survive a motion to dismiss on the ground of statutory immunity.... "We thus turn to the matter of whether the plaintiff has alleged facts that, if proven, are sufficient to demonstrate that the defendant acted wantonly, recklessly, or maliciously. In applying § 4-165, our Supreme Court has understood wanton, reckless or malicious to have the same meaning as it does in the common-law context.... Under the common law, [i]n order to establish that the [defendant's] conduct was wanton, reckless, wilful, intentional and malicious, the plaintiff must prove, on the part of the [defendant], the existence of a state of consciousness with reference to the consequences of one's acts . [Such conduct] is more than negligence, more than gross negligence.... [I]n order to infer it, there must be something more than a failure to exercise a reasonable degree of watchfulness to avoid danger to others or to take reasonable precautions to avoid injury to them.... It is such conduct as indicates a reckless disregard of the just rights or safety of others or of the consequences of the action.... [In sum, such] conduct tends to take on the aspect of highly unreasonable conduct, involving an extreme departure from ordinary care, in a situation where a high degree of danger is apparent." (Citations omitted; internal quotation marks omitted.) Lawrence v. Weiner , 154 Conn. App. 592, 597-98, 106 A.3d 963, cert. denied, 315 Conn. 925, 109 A.3d 921 (2015). "Claims involving . statutory immunity, pursuant to § 4-165, implicate the court's subject matter jurisdiction." (Internal quotation marks omitted.) Id., at 597, 106 A.3d 963. In his operative complaint, the plaintiff alleged in relevant part that: Shames treated the decedent from on or about December 15, 2014 through August 19, 2015; Shames' treatments, which included the administration of intravenous fluids to the decedent to fight an infection, did not improve her condition; and despite the lack of improvement in the decedent's condition, as well as the plaintiff and the decedent expressing to Shames that the treatments were not working, Shames continued to administer the ineffective treatments for approximately eight months and "failed grossly negligently and/or recklessly" to alter the course of treatments or to take "further diagnostic action as is consistent with standard practice." In paragraph thirty-seven of his operative complaint, the plaintiff alleged: "[Shames'] continuous and repeated grossly negligent treatment of [the decedent], cumulatively over the course of almost eight (8) months, constitute[d] a conscious disregard for the substantial likelihood of misdiagnosis and concomitantly of injury arising therefrom, and [was] thereby reckless." In its decision granting the defendants' motion to dismiss, the court determined that because the plaintiff's operative complaint, construed in the light most favorable to the plaintiff, failed to allege facts establishing that Shames' conduct "rose to the level of egregiousness necessary to be considered wanton, reckless, or malicious," Shames, in his individual capacity, was immune from suit pursuant to § 4-165. We agree with the court that the plaintiff failed to allege facts demonstrating that Shames acted in a reckless manner. Shames' conduct in treating the decedent over the course of approximately eight months, as pleaded by the plaintiff in his operative complaint, did not "[tend] to take on the aspect of highly unreasonable conduct, involving an extreme departure from ordinary care, in a situation where a high degree of danger is apparent." (Internal quotation marks omitted.) Lawrence v. Weiner , supra, 154 Conn. App. at 598, 106 A.3d 963. In addition, the plaintiff's conclusory use of the terms "reckless" and "recklessly" in describing Shames' conduct was not sufficient to establish that Shames' actions were reckless. See, e.g., Dumond v. Denehy , 145 Conn. 88, 91, 139 A.2d 58 (1958) ("Simply using the word 'reckless' or 'recklessness' is not enough. A specific allegation setting out the conduct that is claimed to be reckless or wanton must be made."). Thus, the court properly dismissed the plaintiff's claim directed to Shames in Shames' individual capacity on the basis of statutory immunity pursuant to § 4-165. II The plaintiff next claims that the court erroneously concluded that it lacked subject matter jurisdiction over his bystander emotional distress claim directed to the state on the basis that, as a derivative claim, his claim could not be raised in the absence of a predicate wrongful death action commenced by the decedent's estate. Specifically, he asserts that (1) his claim against the state was viable as a freestanding claim and was not dependent on the existence of a predicate wrongful death action commenced by the decedent's estate, and (2) the court's dismissal of his claim was improper because his failure to join the decedent's estate in the present action did not implicate the court's subject matter jurisdiction. We are not persuaded. A We first turn to the plaintiff's contention that his bystander emotional distress claim against the state was not dependent on the existence of a wrongful death action brought by the decedent's estate but, rather, was viable as a freestanding claim. The defendants argue that the plaintiff's bystander emotional distress claim against the state was a derivative claim that could not be brought in the absence of a predicate wrongful death action commenced by the decedent's estate. We agree with the defendants. In its decision granting the defendants' motion to dismiss, after concluding that the plaintiff's bystander emotional distress claim directed to Shames was barred by sovereign immunity and by statutory immunity, the court stated: "Turning to [the plaintiff's] bystander emotional distress claims, the defendants argue that the court lacks subject matter jurisdiction over these claims because they are derivative of the wrongful death [action] that was not brought, and due to the expiration of the statute of limitations established by [ § 52-555 ], now cannot be brought on behalf of [the decedent's] estate. The court agrees with the defendants. Like a loss of consortium claim, a claim for bystander emotional distress is a derivat[ive] claim. Squeo v. Norwalk Hospital Assn. , 316 Conn. 558, 564, [113 A.3d 932] (2015). Consequently, it cannot be brought as a freestanding claim where there is no valid underlying predicate action. See Jacoby v. Brinckerhoff , 250 Conn. 86, [88-95], [735 A.2d 347] (1999) (husband cannot maintain derivative action of loss of consortium where his wife failed to sue defendant [psychiatrist] for malpractice); see also Voris v. Molinaro , 302 Conn. 791, 798-801, [31 A.3d 363] (2011) (holding that settlement of predicate injury claim extinguishes derivative loss of consortium claim). Neither Squeo v. Norwalk Hospital Assn. , supra, at 558, 113 A.3d 932, nor any other Connecticut appellate authority holds otherwise. [The plaintiff's] failure to join his derivat[ive] bystander emotional distress action with a valid action brought on behalf of [the decedent's] estate is fatal to his claim. Absent a valid underlying predicate action brought on behalf of [the decedent's] estate, the court does not have subject matter jurisdiction to adjudicate [the plaintiff's] bystander emotional distress claim." We observe that "[b]ystander emotional distress is a derivative claim, pursuant to which a bystander who witnesses another person . suffer injury or death as a result of the negligence of a third party seeks to recover from that third party for the emotional distress that the bystander suffers as a result." Squeo v. Norwalk Hospital Assn. , supra, 316 Conn. at 564, 113 A.3d 932. "[B]ystander emotional distress derives from bodily injury to another . [B]ecause emotional distress, by itself, is not a bodily injury, it can be compensable only if it flows from the bodily injury of another person.... This is because but for the bodily injury to [another], the plaintiff would not . [suffer] any emotional injuries. In other words, the plaintiff's injuries are the natural and probable consequence of . having witnessed the accident . Therefore, the measure of the plaintiff's recovery is not governed by the fact that his separate damages arose out of the same accident, but by the fact that they arose out of the same bodily injury . Given the but-for relationship between the underlying injury and the derivative injury of bystander emotional distress, the bystander's emotional distress is causally connected to the underlying injury. Bystander emotional distress, therefore, by its very nature, results from and arises out of the underlying personal injury or death." (Citations omitted; emphasis in original; internal quotation marks omitted.) Velecela v. All Habitat Services, LLC , 322 Conn. 335, 340-41, 141 A.3d 778 (2016). The parties have not cited any appellate authority, and we are aware of none, specifically addressing whether a bystander emotional distress claim may be pursued without being joined to a predicate claim asserted by the injured principal. Our Supreme Court's decision in Jacoby v. Brinckerhoff , supra, 250 Conn. 86, 735 A.2d 347, which analyzed the viability of a plaintiff's loss of consortium claim in the absence of a predicate action commenced by the plaintiff's former spouse, is instructive, however. In Jacoby , the plaintiff brought an action against the defendant, a psychiatrist, asserting, inter alia, a loss of consortium claim on the basis of allegations that the defendant's treatment of the plaintiff's former spouse constituted a failure to render proper care. Id., at 88, 735 A.2d 347. The plaintiff's former spouse did not commence an action against the defendant, and she refused to join the plaintiff's action. Id., at 88-90, 735 A.2d 347. The trial court, in granting a motion to strike filed by the defendant, struck all counts in the plaintiff's operative complaint and subsequently rendered judgment in accordance with its ruling thereon. Id., at 89, 735 A.2d 347. The plaintiff appealed from that judgment to this court, and our Supreme Court transferred the appeal to itself. Id., at 89, 735 A.2d 347 n.3. On appeal in Jacoby , the plaintiff argued in relevant part that he was entitled to pursue his loss of consortium claim without joining it to a predicate claim brought by his former wife because the former wife's refusal to participate in his action rendered such joinder impossible. Id., at 89-90, 735 A.2d 347. Our Supreme Court rejected that argument. Observing that in a prior case it had stated, in dictum, that a loss of consortium claim would be barred when the injured spouse's action had been terminated by settlement or by an adverse judgment on the merits, the court determined that it could "discern no viable distinction between precluding a consortium claim when the injured spouse has settled with the alleged tortfeasor and precluding it when the injured spouse, as in this case, has declined altogether to sue the alleged tortfeasor. [Our Supreme Court's] statement reflects the premise, which the plaintiff does not challenge, that an action for loss of consortium, although independent in form, is derivative of the injured spouse's cause of action . Although the noninjured spouse has a right to choose whether to bring or to forgo a derivative consortium claim . there is logical appeal to linking that right to an existing viable claim by the injured spouse." (Citations omitted; internal quotation marks omitted.) Id., at 91-92, 735 A.2d 347. Without deciding whether the failure to join a predicate claim by an injured spouse with a derivative loss of consortium claim would be excusable under certain circumstances, the court concluded that the plaintiff's failure to join his loss of consortium claim with a predicate action brought by his former spouse was fatal. The court stated: "It is inherent in the nature of a derivative claim that the scope of the claim is defined by the injury done to the principal. The party pursuing a derivative cause of action may have a claim for special damages arising out of that injury, but he may not redefine the nature of the underlying injury itself. In the ordinary physical injury case, a person pursuing a derivative claim may be unable to proceed if the injured spouse's rights were compromised by that spouse's comparative responsibility for the injury.... It follows that, in the case of medical malpractice, a person pursuing a derivative claim may be barred from bringing suit if the injured spouse gave informed consent to the professional procedure that caused the patient's condition to change." (Citations omitted.) Id., at 93-94, 735 A.2d 347. The court proceeded to note that the record did not disclose why the plaintiff's former spouse had declined to sue the defendant and surmised that the former spouse, inter alia, may not have believed that the defendant's treatment had injured her. Id., at 94, 735 A.2d 347. The court stated: "We are not prepared to hold that a derivative cause of action may proceed upon the mere possibility that the plaintiff's spouse may have sustained an injury that resulted from negligent or intentional misconduct on the part of a psychiatrist.... A derivative cause of action for loss of consortium does not confer surrogate authority on the noninjured spouse to pursue a claim that does not yet exist. We conclude, therefore, that the plaintiff cannot pursue an action for loss of consortium in the absence of any basis in the record for a finding that his former spouse was injured as a result of her treatment by the defendant." (Citation omitted.) Id., at 94-95, 735 A.2d 347. Our Supreme Court's rationale in Jacoby guides our analysis. Here, the plaintiff's bystander emotional distress claim against the state, which was derivative in nature; Squeo v. Norwalk Hospital Assn. , supra, 316 Conn. at 564, 113 A.3d 932 ; was not brought in conjunction with a wrongful death action commenced by the decedent's estate. The record is devoid of any explanation as to why the decedent's estate has not brought a wrongful death action. Relying on our Supreme Court's rationale in Jacoby , we conclude that the plaintiff's derivative bystander emotional distress claim against the state is not viable in the absence of a predicate wrongful death action brought by the decedent's estate. See Jacoby v. Brinckerhoff , supra, 250 Conn. at 94-95, 735 A.2d 347 ; see also Voris v. Molinaro , supra, 302 Conn. at 797-801, 31 A.3d 363 (concluding that trial court properly granted defendant's motion to strike plaintiff's loss of consortium claim on ground that predicate negligence claim brought by plaintiff's spouse had been settled); Musorofiti v. Vlcek , 65 Conn. App. 365, 375, 783 A.2d 36 ("a derivative cause of action . is dependent on the legal existence of [a] predicate action"), cert. denied, 258 Conn. 938, 786 A.2d 426 (2001). Accordingly, the court correctly concluded that the plaintiff's bystander emotional distress claim directed to the state failed in the absence of a wrongful death action commenced by the decedent's estate. B The plaintiff also contends that the court erred in dismissing his bystander emotional distress claim directed to the state on the basis that his failure to join the decedent's estate in the present action deprived the court of subject matter jurisdiction. Specifically, he asserts that the nonjoinder of a party does not implicate a court's subject matter jurisdiction and, thus, the court erred in dismissing his claim. See General Linen Service Co. v. Cedar Park Inn & Whirlpool Suites , 179 Conn. App. 527, 532, 180 A.3d 966 (2018) ("It is well settled that the failure to join an indispensable party does not deprive a trial court of subject matter jurisdiction. See General Statutes § 52-108 and Practice Book § 9-18, 9-19 and 11-3.... [T]he failure to join an indispensable party results in a jurisdictional defect only if a statute mandates the naming and serving of [a particular] party." [Citations omitted; emphasis in original; internal quotation marks omitted.] ). The plaintiff misconstrues the court's decision. The court did not determine that the decedent's estate was an indispensable party, whose interests would be affected substantively by its adjudication of the plaintiff's bystander emotional distress claim and whose participation in the present case would, therefore, be necessary. Instead, the court properly concluded that it could not reach the merits of the plaintiff's derivative claim because it had not been joined to a predicate wrongful death action brought by the decedent's estate. Accordingly, we reject the plaintiff's argument. The judgment is affirmed. In this opinion the other judges concurred. For purposes of clarity, we refer to Shames and the state collectively as the defendants and individually by name. See General Statutes § 10a-251 ("[i]t is hereby found and determined that the John Dempsey Hospital of The University of Connecticut Health Center is a vital resource of The University of Connecticut and the state"). General Statutes § 4-147 provides in relevant part: "Any person wishing to present a claim against the state shall file with the Office of the Claims Commissioner a notice of claim, in duplicate, containing the following information: (1) The name and address of the claimant; the name and address of his principal, if the claimant is acting in a representative capacity, and the name and address of his attorney, if the claimant is so represented; (2) a concise statement of the basis of the claim, including the date, time, place and circumstances of the act or event complained of; (3) a statement of the amount requested; and (4) a request for permission to sue the state, if such permission is sought...." Relatedly, General Statutes § 4-160 provides in relevant part: "(a) Whenever the Claims Commissioner deems it just and equitable, the Claims Commissioner may authorize suit against the state on any claim which, in the opinion of the Claims Commissioner, presents an issue of law or fact under which the state, were it a private person, could be liable. "(b) In any claim alleging malpractice against the state, a state hospital or against a physician, surgeon, dentist, podiatrist, chiropractor or other licensed health care provider employed by the state, the attorney or party filing the claim may submit a certificate of good faith to the Office of the Claims Commissioner in accordance with section 52-190a. If such a certificate is submitted, the Claims Commissioner shall authorize suit against the state on such claim...." On November 29, 2017, the plaintiff filed a request to file a proposed surreply, which was attached thereto. The court granted the request on February 9, 2018, at which time the surreply was deemed filed. General Statutes § 52-555 provides: "(a) In any action surviving to or brought by an executor or administrator for injuries resulting in death, whether instantaneous or otherwise, such executor or administrator may recover from the party legally at fault for such injuries just damages together with the cost of reasonably necessary medical, hospital and nursing services, and including funeral expenses, provided no action shall be brought to recover such damages and disbursements but within two years from the date of death, and except that no such action may be brought more than five years from the date of the act or omission complained of. "(b) Notwithstanding the provisions of subsection (a) of this section, an action may be brought under this section at any time after the date of the act or omission complained of if the party legally at fault for such injuries resulting in death has been convicted or found not guilty by reason of mental disease or defect of a violation of section 53a-54a, 53a-54b, 53a-54c, 53a-54d, 53a-55 or 53a-55a with respect to such death." On appeal, the plaintiff does not challenge the court's ruling that his claim directed to Shames in Shames' official capacity as an employee of the hospital was barred by sovereign immunity. The plaintiff also asserts that the court implicitly ruled that his bystander emotional distress claim was barred by the doctrine of res judicata on the basis that the decedent's estate had not commenced a predicate wrongful death action. He contends that the court's implicit ruling was erroneous because no judgment has been rendered that would bar his bystander emotional distress claim. This claim is without merit, as the court's ruling contains no language to suggest that it was based on res judicata principles. In their respective appellate briefs, the parties interpret the court's decision as dismissing the plaintiff's bystander emotional distress claim directed to Shames solely on the basis of sovereign immunity and statutory immunity, and dismissing the plaintiff's bystander emotional distress claim directed to the state on the ground that his claim was not viable in the absence of a wrongful death action brought by the decedent's estate. We can think of no reason why the absence of a predicate wrongful death action brought by the decedent's estate could not serve as an independent ground upon which the plaintiff's claim directed to Shames could have been dismissed. Nevertheless, because neither party argues that the court dismissed the claim against Shames on that ground, we do not opine on this issue further. The plaintiff named a second defendant in the action, but he later with-drew his claims against that defendant. Jacoby v. Brinckerhoff , supra, 250 Conn. at 88 n.1, 735 A.2d 347. We note that in Jacoby v. Brinckerhoff, supra, 250 Conn. at 89, 735 A.2d 347, the trial court granted a motion to strike the plaintiff's loss of consortium claim and rendered judgment thereon, and our Supreme Court affirmed the trial court's judgment. See also Voris v. Molinaro , supra, 302 Conn. at 797-801, 31 A.3d 363 (affirming judgment rendered upon trial court's granting of defendant's motion to strike loss of consortium claim on ground that predicate negligence claim brought by plaintiff's spouse had been settled). The plaintiff does not raise a claim on appeal contesting the defendants' use of a motion to dismiss as opposed to a motion to strike, and we decline to address at this time whether a motion to dismiss is the proper vehicle to challenge a derivative claim based on the absence of a predicate claim that would fail on subject matter jurisdictional grounds. We observe, however, that this court and our Supreme Court have affirmed judgments granting motions to dismiss when, notwithstanding that the motions to dismiss were procedurally improper, the claims at issue were otherwise subject to motions to strike and the deficiencies in the plaintiffs' complaints could not be cured. See, e.g., Fort Trumbull Conservancy, LLC v. Alves , 262 Conn. 480, 501-502, 815 A.2d 1188 (2003) (affirming, in part, judgment of dismissal when trial court's granting of motion to dismiss, instead of motion to strike, as to certain claims, although procedurally improper, constituted harmless error when nothing in record suggested that plaintiff could amend complaint to state viable claim); McCutcheon & Burr, Inc. v. Berman , 218 Conn. 512, 527-28, 590 A.2d 438 (1991) (same); Mercer v. Rodriquez , 83 Conn. App. 251, 267-68, 849 A.2d 886 (2004) (relying on holding in Fort Trumbull Conservancy, LLC , to affirm judgment of dismissal when trial court's erroneous conclusion that it lacked subject matter jurisdiction over plaintiff's action was harmless). "Parties are considered indispensable when they not only have an interest in the controversy, but an interest of such a nature that a final decree cannot be made without either affecting that interest, or leaving the controversy in such condition that its final [disposition] may be . inconsistent with equity and good conscience.... Indispensable parties must be joined because due process principles make it essential that [such parties] be given notice and an opportunity to protect [their] interests by making [them] a party to the [action]." (Internal quotation marks omitted.) Bloom v. Miklovich , 111 Conn. App. 323, 333-34, 958 A.2d 1283 (2008).

12490771

RENAISSANCE MANAGEMENT COMPANY, INC. v. Andre BARNES et al.

Renaissance Mgmt. Co. v. Barnes

2017-08-22

(AC 38879).

530

537

168 A.3d 530

168

West's Atlantic Reporter, Third Series

Connecticut Appellate Court

Connecticut

2021-08-27T20:57:14.022556+00:00

Fastcase

RENAISSANCE MANAGEMENT COMPANY, INC. v. Andre BARNES et al.

RENAISSANCE MANAGEMENT COMPANY, INC. v. Andre BARNES et al. (AC 38879). Appellate Court of Connecticut. Argued March 16, 2017 Officially released August 22, 2017 Hugh D. Hughes, New Haven, with whom was David E. Schancupp, New Haven, for the appellant (plaintiff). Wesleigh Anderson, certified legal intern, with whom was Jeffrey Gentes, for the appellee (named defendant). Lavine, Mullins and Bear, Js.

3001

18959

BEAR, J. In this summary process action for possession of an apartment in New Haven, the plaintiff, Renaissance Management Co., Inc., appeals from the summary judgment of the trial court rendered in favor of the defendant Andre Barnes. The court granted the defendant's motion for summary judgment on the ground that the plaintiff was prohibited by the retaliatory eviction statute; General Statutes § 47a-20 ; from initiating the action and that the exceptions claimed by the plaintiff under General Statutes § 47a-20a, which would preclude application of § 47a-20 and thereby allow it to initiate the action, did not apply. On appeal, the plaintiff claims that the trial court erred when it (1) determined that this court's holding in Visco v. Cody , 16 Conn.App. 444, 547 A.2d 935 (1988), was inapplicable to the defendant's special defense of retaliatory eviction under § 47a-20 ; (2) determined that its complaint did not allege nonpayment of rent; and (3) interpreted the definition of rent in § 47a-20a to include the United States Department of Housing and Urban Development's payment of its share of the agreed total rent for the premises such that the total amount of money received by the plaintiff was unaffected by the defendant's alleged underpayment. Following oral argument before this court, but before this court rendered its judgment, the plaintiff obtained possession of the apartment. Notified of this fact, we ordered the parties to submit supplemental briefs on the issue of mootness. Following our review of the parties' supplemental briefs, we dismiss the appeal because it is moot and no exception to the mootness doctrine is applicable to the facts and circumstances of this appeal. The following facts and procedural history are not in dispute. The defendant was served with a notice to quit possession of the apartment on September 3, 2014. This summary process action was commenced on September 15, 2014. The defendant filed a special defense claiming that the retaliatory eviction statute, § 47a-20, barred the plaintiff's summary process action because he had complained to a municipal authority about housing code violations and such authority had found violations of the housing code within six months of the commencement of the action. On August 10, 2015, the defendant moved for summary judgment on the ground that § 47a-20 prohibited the plaintiff from maintaining a summary process action within six months of a complaint to, or notice by, a government agency of a housing code violation. On September 8, 2015, the plaintiff submitted its memorandum in opposition to the motion for summary judgment, arguing that the reason for the action was the "fraud committed by the defendant in failing to report his income, which constitut[ed] a material violation of his lease." The plaintiff also argued that Visco required that the claimed defects constituting a violation of the housing code materially affect health and safety, and that the defendant failed to submit detailed information regarding the requested repairs. The court granted the defendant's motion for summary judgment on February 5, 2016. In its corrected memorandum of decision, the court determined that § 47a-20 barred the plaintiff's action, and that the plaintiff had failed to demonstrate that any exception under § 47a-20a to the § 47a-20 bar applied. Specifically, the court concluded that, contrary to the plaintiff's assertion, the fitness and habitability requirements enunciated in Visco , relating to requested "repairs" as set forth in § 47a-20 (3), did not apply in the circumstance of a municipal agency's finding of housing code violations as set forth in § 47a-20 (2). The court determined that § 47a-20 (2) required an actual finding by a municipal agency of a code violation, and concluded that New Haven's Livable City Initiative, the relevant municipal agency in the present case, found the existence of such code violations in the defendant's apartment, thereafter entering an order requiring remediation by the plaintiff within twenty-one days under threat of criminal liability. The court also determined that the exception claimed by the plaintiff under § 47a-20a (a) (1) was inapplicable to the facts of this case. Accordingly, the court granted the defendant's motion for summary judgment. This appeal followed. The parties agree that, following oral argument before this court on March 16, 2017, the defendant vacated and relinquished possession of the plaintiff's property on May 10, 2017. After the parties apprised this court of this fact, we ordered supplemental briefing on the issue of mootness and any possible exceptions thereto because the sole remedy sought by, and available to, the plaintiff in its summary process action was possession of the premises. The parties have since submitted supplemental briefs, and each argues that the "capable of repetition, yet evading review" exception to mootness applies to this case. The plaintiff also argues in its supplemental brief that collateral consequences to the plaintiff will continue without a decision and, thus, the appeal is not moot. "Mootness is a question of justiciability that must be determined as a threshold matter because it implicates this court's subject matter jurisdiction." Wendy V. v. Santiago , 319 Conn. 540, 545, 125 A.3d 983 (2015). "Justiciability requires (1) that there be an actual controversy between or among the parties to the dispute . (2) that the interests of the parties be adverse . (3) that the matter in controversy be capable of being adjudicated by judicial power . and (4) that the determination of the controversy will result in practical relief to the complainant." (Internal quotation marks omitted.) State v. McElveen, 261 Conn. 198, 217, 802 A.2d 74 (2002). "An actual controversy must exist not only at the time the appeal is taken, but also throughout the pendency of the appeal.... When, during the pendency of an appeal, events have occurred that preclude an appellate court from granting any practical relief through its disposition of the merits, a case has become moot." (Internal quotation marks omitted.) In re Emma F. , 315 Conn. 414, 423-24, 107 A.3d 947 (2015). "This court has consistently held that an appeal from a summary process judgment becomes moot where, at the time of the appeal, the defendant is no longer in possession of the premises." (Internal quotation marks omitted.) Friedman v. Gomez , 172 Conn.App. 254, 260, 159 A.3d 703 (2017). As the defendant is no longer in possession of the property, the appeal is clearly moot, unless an exception applies and the parties do not contest this conclusion. Recognizing this, the parties argue that the issue raised on appeal, that this court's holding in Visco applies to retaliatory eviction defenses brought under § 47a-20 (2), satisfies the capable of repetition, yet evading review exception to the mootness doctrine. The plaintiff also argues that the collateral consequences doctrine applies because the court's interpretation of § 47a-20 (2) will allow other tenants to utilize it as a defense, and, therefore, the appeal is not moot. We determine that neither of the claimed exceptions applies and, thus, the appeal is moot. "To qualify under the capable of repetition, yet evading review exception, three requirements must be met. First, the challenged action, or the effect of the challenged action, by its very nature must be of a limited duration so that there is a strong likelihood that the substantial majority of cases raising a question about its validity will become moot before appellate litigation can be concluded. Second, there must be a reasonable likelihood that the question presented in the pending case will arise again in the future, and that it will affect either the same complaining party or a reasonably identifiable group for whom that party can be said to act as surrogate. Third, the question must have some public importance. Unless all three requirements are met, the appeal must be dismissed as moot." (Internal quotation marks omitted.) Wendy V. v. Santiago , supra, 319 Conn. at 545-46, 125 A.3d 983. "The first element in the analysis pertains to the length of the challenged action.... The basis for this element derives from the nature of the exception. If an action or its effects is not of inherently limited duration, the action can be reviewed the next time it arises, when it will present an ongoing live controversy. Moreover, if the question presented is not strongly likely to become moot in the substantial majority of cases in which it arises, the urgency of deciding the pending case is significantly reduced. Thus, there is no reason to reach out to decide the issue as between parties who, by hypothesis, no longer have any present interest in the outcome.... [A] party typically satisfies this prong if there exists a functionally insurmountable time [constraint] . or the challenged action had an intrinsically limited lifespan." (Citations omitted; internal quotation marks omitted.) In re Priscilla A. , 122 Conn.App. 832, 836-37, 2 A.3d 24 (2010). The present appeal fails to meet the first requirement of the capable of repetition, yet evading review exception. The action challenged in this case is that the plaintiff commenced a summary process action in violation of § 47a-20 (2) within six months of a finding by a municipal agency of a housing code violation. The specific legal issue raised by the plaintiff is whether the holding in Visco , that the defects alleged to be in need of repair must materially affect a leased unit's fitness and habitability to be a violation of § 47a-20 (3) (repairs), was also applicable in the circumstance of a municipal agency's finding of housing code violations pursuant to § 47a-20 (2). Our Supreme Court recently has reached the merits of appeals in summary process cases, including the residential summary process cases of Presidential Village, LLC v. Phillips , 325 Conn. 394, 158 A.3d 772 (2017), and Fairchild Heights, Inc. v. Dickal , 305 Conn. 488, 45 A.3d 627 (2012). This court recently also has reached the merits of appeals in summary process cases, including the residential cases of Holdmeyer v. Thomas , 167 Conn.App. 544, 144 A.3d 1052 (2016) (reversing trial court and holding that plaintiff failed to meet any exceptions to § 47a-20 ), Housing Authority v. Weitz , 163 Conn.App. 778, 134 A.3d 749 (2016) (judgment of possession reversed and trial court ordered to vacate default judgment), 136 Field Point Circle Holding Co., LLC v. Razinski , 162 Conn.App. 333, 131 A.3d 1213 (2016) (defendants entitled to hearing on merits of motion for judgment of possession), Kenosia Commons, Inc. v. DaCosta , 161 Conn.App. 668, 129 A.3d 730 (2015) (defendant subject to summary process proceedings as resident of mobile home park), and Konover Residential Corp. v. El a zazy , 148 Conn.App. 470, 87 A.3d 1114 (judgments of possession affirmed), cert. denied, 312 Conn. 908, 93 A.3d 592 (2014). In the present case, as previously noted in this opinion, the appeal was argued in March, 2017, approximately two and one-half years after the service of the September 3, 2014 notice to quit. When the defendant vacated the premises in May, 2017, this appeal was under consideration by this court. In light of this recent history, we are not persuaded that this court or our Supreme Court will not be able to resolve in a later appeal, with a more complete factual record concerning the fitness and habitability aspect of each of the code violations, whether the Visco fitness and habitability gloss to the meaning of repairs, as set forth in § 47a-20 (3), is applicable to a finding of code violations, pursuant to § 47a-20 (2). Accordingly, in the specific context of this appeal, after review of the parties' arguments in support of the application of the capable of repetition, yet evading review mootness exception, and in light of the somewhat limited contents of the factual record on which we must rely in part to resolve the Visco issue, we conclude that the first prong of that exception has not been satisfied by the parties. See In re Priscilla A. , supra, 122 Conn.App. 832, 2 A.3d 24. The plaintiff also argues that it faces collateral consequences from the decision of the trial court such that the appeal is not moot. "Our Supreme Court . has allowed us to retain jurisdiction where the matter being appealed creates collateral consequences prejudicial to the interests of the appellant, even though developments during the pendency of the appeal would other-wise render it moot.... [T]o invoke successfully the collateral consequences doctrine, the litigant must show that there is a reasonable possibility that prejudicial collateral consequences will occur. Accordingly, the litigant must establish these consequences by more than mere conjecture, but need not demonstrate that these consequences are more probable than not. This standard provides the necessary limitations on justiciability underlying the mootness doctrine itself. Whe[n] there is no direct practical relief available from the reversal of the judgment . the collateral consequences doctrine acts as a surrogate, calling for a determination whether a decision in the case can afford the litigant some practical relief in the future." (Citation omitted; internal quotation marks omitted.) Iacurci v. Wells , 108 Conn.App. 274, 277, 947 A.2d 1034 (2008). The plaintiff argues that the failure of this court in this appeal to determine whether the Visco fitness and habitability gloss previously applied to § 47a-20 (3) is also applicable to § 47a-20 (2) would give rise to prejudicial collateral consequences to landlords in future summary process cases. The plaintiff, however, argues for an overbroad application of the collateral consequences doctrine. Our appellate courts have applied the doctrine to instances in which the decision of the trial court gave rise to collateral consequences specific to a party to the case. In Putman v. Kennedy , 279 Conn. 162, 175, 900 A.2d 1256 (2006), our Supreme Court applied the doctrine in a mooted case where the trial court's decision would harm the defendant's reputation. Although there are a diverse "array of collateral consequences that will preclude dismissal on mootness grounds"; id., at 169, 900 A.2d 1256 ; we are not aware of our courts having applied the doctrine to collateral consequences that do not directly and specifically affect the appealing party. See, e.g., New Hartford v. Connecticut Resources Recovery Authority , 291 Conn. 489, 497 n.17, 970 A.2d 570 (2009) (contempt finding has collateral consequences on party as case continues); Office of the Governor v. Select Committee of Inquiry, 271 Conn. 540, 549-50, 858 A.2d 709 (2004) (appeal not rendered moot by investigative committee statement that it would not enforce subpoena directly "because of the collateral consequence of the potential for an article of impeachment on the basis, at least in part, of the governor's noncompliance with the subpoena"); Wallingford v. Dept. of Public Health, 262 Conn. 758, 769-70, 817 A.2d 644 (2003) (appeal not rendered moot by passage of special act addressing issue in case because administrative ruling that town is "water company" for purposes of possible construction of golf course on watershed land "potentially subjects" town to collateral consequences of Department of Public Health's jurisdiction and other statutory obligations); Williams v. Ragaglia, 261 Conn. 219, 227-31, 802 A.2d 778 (2002) (appeal from revocation of plaintiff's special study foster care license as consequence for violating foster care regulations was not rendered moot by grant to plaintiff of permanent custody of foster children at issue because of revocation's effect on her reputation and fact that revocation could be used against her in future Department of Children and Families proceedings if she wanted to become foster parent again); State v. McElveen , supra, 261 Conn. at 212-16, 802 A.2d 74 (appeal from conviction of violation of probation was not rendered moot by defendant's completion of sentence because conviction could impact his reputation and ability to obtain employment or preconviction bail in future); Crest Pontiac Cadillac, Inc. v. Hadley , 239 Conn. 437, 439-40 n.3, 685 A.2d 670 (1996) (outcome of other case party had pending affected by court's determination in appeal); Housing Authority v. Lamothe , 225 Conn. 757, 765, 627 A.2d 367 (1993) (potential prejudicial consequences to defendant in summary process action resulting from eviction, including ability to obtain future housing). In summary, the defendant has vacated and surrendered possession of the premises to the plaintiff. In the absence of either party demonstrating the application of a recognized exception to the mootness doctrine, the appeal is moot. The appeal is dismissed. In this opinion the other judges concurred. The plaintiff brought this action against Barnes, Jane Doe, and John Doe. Jane Doe and John Doe are not parties to this appeal and, therefore, all references to the defendant herein are to Barnes. The plaintiff also argues that other tenants may report minor potential housing code violations to authorities rather than to their landlord when the tenant is in violation of its lease to prevent eviction for six months. Without opining on the meaning of the provisions of § 47a-20 (2), we note that this may be one of those instances where the plaintiff's sought after remedy lies with the General Assembly because the current statutory language omits any requirement that a health code violation must implicate a leased unit's fitness and habitability. Additionally, the alleged consequences that are of concern to the plaintiff are general consequences potentially applicable to any residential landlord, not specific consequences unique to the plaintiff. We see this argument, therefore, as addressed to the capable of repetition and public interest prongs of the capable of repetition, yet evading review exception to mootness rather than the collateral consequences exception. The parties' arguments regarding the exceptions to mootness concern only the court's determination of the nonapplicability of Visco to § 47a-20 (2). Neither party has argued that the other claims raised on appeal are not moot or that an exception to mootness applies to them. The other claims also became moot when the defendant vacated and surrendered possession of the apartment to the plaintiff.

12490804

Anna ROCKHILL v. DANBURY HOSPITAL

Rockhill v. Danbury Hosp.

2017-08-29

AC 37864.

630

646

168 A.3d 630

168

West's Atlantic Reporter, Third Series

Connecticut Appellate Court

Connecticut

2021-08-27T20:57:14.022556+00:00

Fastcase

DiPentima, C.J., and Beach and Sheridan, Js.

Anna ROCKHILL v. DANBURY HOSPITAL

Anna ROCKHILL v. DANBURY HOSPITAL AC 37864. Appellate Court of Connecticut. Argued April 24, 2017 Officially released August 29, 2017 Michael G. Rigg, for the appellant (defendant). James P. Sexton, with whom were Michael S. Taylor and, on the brief, Marina L. Green, for the appellee (plaintiff). DiPentima, C.J., and Beach and Sheridan, Js. The listing of judges reflects their seniority status on this court as of the date of oral argument.

7699

47348

BEACH, J. The defendant, Danbury Hospital, appeals from the judgment of the trial court rendered in favor of the plaintiff, Anna Rockhill, following a trial to the court. On appeal, the defendant claims that the court erroneously found that (1) a defect on the defendant's property that allegedly caused the plaintiff to fall was a reasonably foreseeable defect; (2) the defect caused the plaintiff to fall; and (3) all of the plaintiff's medical expenses were caused by the fall rather than by her preexisting spinal stenosis. The defendant also claims that the court abused its discretion in admitting the testimony of the plaintiff's expert witness pertaining to the causation element of her negligence claim. We affirm the judgment of the trial court. The trial court's memorandum of decision sets forth the following relevant facts. On June 16, 2010, the plaintiff and her daughter, Cynthia Fusco, were visiting the plaintiff's husband, who was receiving medical care at Danbury Hospital. After their visit, the plaintiff and Fusco exited the hospital's main building and walked onto a walkway leading toward the parking lot. The plaintiff and Fusco were familiar with this walkway, as they had made this same trip several times in the past. While the plaintiff and Fusco were walking along the pathway, the plaintiff hit something with her foot and fell to the ground. As a result of the fall, she sustained injuries to her right foot and ankle. It later was determined that she had broken her big toe and damaged the fifth metatarsal of her right foot. Within minutes of the fall, the plaintiff was taken to the defendant's emergency department by hospital staff where she was examined and treated for her injuries. As a result of her fall, the plaintiff experienced chronic lower back pain from a protruded disk that required several epidural steroid injections and, eventually, a surgical decompression procedure. A trial to the court was held on August 26, 2014. On February 2, 2015, the court issued a memorandum of decision and rendered judgment in favor of the plaintiff. The court made detailed findings pertaining to both liability and damages. With respect to liability, the court noted that "the evidence [presented at trial] permits the court to find that the plaintiff struck her right toe against some obstacle while walking in or next to the crosswalk, which caused the fracture for which she was treated minutes later in the emergency department." The court further noted that the "area where the defect exists is contiguous with the crosswalk, a heavily traveled area used daily by patients and other invitees of the hospital." As to damages, the court found that the plaintiff's total damages were $181,076.45. The court further found that the plaintiff was contributorily negligent in each way alleged in the defendant's special defenses. The court found the plaintiff 40 percent at fault for the injuries she sustained. As a result, the court awarded judgment to the plaintiff in the amount of $108,645.87, plus taxable costs. This appeal followed. Additional facts will be set forth as necessary. I The defendant sets forth three claims challenging the factual findings of the trial court. Specifically, the defendant argues that the court erroneously found that (1) the divot that caused the plaintiff's injuries was a reasonably foreseeable hazard; (2) the divot actually caused the plaintiff to fall; and (3) the plaintiff's fall caused all of her medical expenses. We disagree. Before we address the defendant's individual claims, we set forth the guiding legal principles and our standard of review. "The essential elements of a cause of action in negligence are well established: duty; breach of that duty; causation; and actual injury. . If a plaintiff cannot prove all of those elements, the cause of action fails. . [I]n a negligence action . [a] causal relation between the defendant's wrongful conduct and the plaintiff's injuries is a fundamental element without which a plaintiff has no case ." (Citations omitted; internal quotation marks omitted.) Right v. Breen , 88 Conn.App. 583, 586-87, 870 A.2d 1131 (2005), rev'd on other grounds, 277 Conn. 364, 890 A.2d 1287 (2006). Notably, the present case was tried to the court. When the court is the finder of fact, "inferenc[es] of fact [are] not reversible unless the inferenc[es] [were] arrived at unreasonably. . We note as well that [t]riers of fact must often rely on circumstantial evidence and draw inferences from it. . Proof of a material fact by inference need not be so conclusive as to exclude every other hypothesis. It is sufficient if the evidence produces in the mind of the trier a reasonable belief in the probability of the existence of the material fact. . Moreover, it is the exclusive province of the trier of fact to weigh the conflicting evidence, determine the credibility of witnesses and determine whether to accept some, all or none of a witness' testimony. . Thus, if the court's dispositive finding . was not clearly erroneous, then the judgment must be affirmed." (Emphasis omitted; internal quotation marks omitted.) Palkimas v. Fernandez , 159 Conn.App. 129, 133-34, 122 A.3d 704 (2015). A The defendant first claims that the court erroneously found that the divot causing the plaintiff's injuries was a reasonably foreseeable trip hazard. In support of this claim, the defendant raises two arguments. First, the defendant argues that this finding was improper as a matter of law because the divot is insufficient in size to constitute a reasonably foreseeable hazard; that is, the divot is "trivial" as a matter of law. Second, it argues that the court's finding was speculative and unsupported by the record because the plaintiff failed to satisfy her burden of establishing that the divot was a reasonably foreseeable hazard. In response, the plaintiff argues that the size of the divot is presumptively a question for the finder of fact and that the trial court's finding that the divot was a reasonably foreseeable trip hazard is sufficiently supported by evidence in the record. We agree with the plaintiff. In its memorandum of decision, the court concluded that "[t]he evidence elicited at trial permits the court to find that in or near the crosswalk where the plaintiff alleges to have fallen, there did exist a portion of uneven surface where the blocks of cement or other materials meet to form the crosswalk and the adjacent walkway. In addition, a small edge of raised surface appeared to have been chipped or otherwise broken off." The court further noted that the area in question was "well worn" and that the defect "is a specific condition which existed for a sufficient length of time as to give the defendant constructive notice of its existence." The court also found that the divot "is easily visible when looked upon directly and . there [were] no express signs or paint or other warnings located in its proximity to point it out." After this court acted on the defendant's motion for review of the trial court's denial of the defendant's motion for articulation, the trial court articulated its ruling as to the "trivial defect" rule. The court stated that the divot, "which was the subject of extensive testimony and which was illustrated in the photographs comprising . [the] plaintiff's exhibit 1, was found by this court of sufficient size and orientation to permit the court to find that the plaintiff, Anna Rockhill, had proved, by a fair preponderance of the evidence, her allegation that it was the proximate cause of her fall on June 16, 2010, on the premises of the defendant . and that it was of sufficient size and duration so as to put the defendant on notice of its existence." We necessarily begin with the defendant's argument that the divot causing the plaintiff's injury was insufficient in size as a matter of law. In support of this argument, the defendant contends that our Supreme Court's decision in Older v. Old Lyme , 124 Conn. 283, 199 A. 434 (1938), demonstrates that Connecticut adheres to a trivial defect rule, as adopted by other jurisdictions. In essence, the defendant invites this court to examine the evidence and make its own factual finding to determine whether the divot was a reasonably foreseeable hazard or otherwise to conclude that the divot was too small to support liability as a matter of law. Neither approach is supported by our precedent. In Older , the plaintiff sustained injuries while she was walking on public property and sought to hold the municipality liable. The area in which she was walking was described by the court to be the outer edge of a sidewalk that extended "to the edge of the traveled portion of the adjoining highway." Id., at 285, 199 A. 434. While the plaintiff was walking in that area, "she caught the heel of one of her shoes, fell, and sprained her ankle." Id. The hole that the plaintiff caught her heel in was "about [two] inches in width and about [one] inch in depth." (Internal quotation marks omitted.) Id. Judgment was rendered in her favor. Id., at 284, 199 A. 434. Our Supreme Court reversed. It discussed liability pursuant to a statutory predecessor of General Statutes § 13a-149, the highway defect statute. Liability was determined by standards somewhat different from the more general considerations underlying common-law premises liability. The court defined a highway defect to be "such an object or condition in, upon or near the traveled path as would necessarily obstruct or hinder one in its use for the purpose of traveling, or which from its nature and position would be likely to produce that result or injury to one so traveling upon it." Id. The only obligation of the municipality was to keep streets and sideways in a reasonably safe condition for travel. Id. The court noted that the question of whether a condition constituted a highway defect depended on "a great variety of circumstances"; it "is in general [a question] of fact," but whether the facts found warrant the conclusion of liability could be a question of law. Id., at 285, 199 A. 434. The court concluded that the "subordinate facts as to its size and shape and especially its location at the extreme outer edge of the walk, comparable to the curb in usual forms of construction, and where persons would not ordinarily be expected to travel," did not support the conclusion of liability. Id. In Older , then, the factor that a person was not likely to walk in the location of the defect was a significant, perhaps controlling, factor. See id. ; see also Ferreira v. Pringle , 255 Conn. 330, 341-42, 766 A.2d 400 (2001) (seeking to hold municipality liable for defective highway, "may involve issues of [fact; however, whether] the facts alleged would, if true, amount to a highway defect according to the statute is a question of law" [internal quotation marks omitted] ). There is in Older no mention of a "trivial defect rule," nor need there be. There simply was a recognition that in any particular case, evidence may be insufficient to support an essential element of the cause of action. The court did not establish a minimum "depth" requirement for liability. In addition to its reliance on Older , the defendant also directs this court to authority in other jurisdictions that have adopted a less deferential standard of appellate review in determining whether a defect is "trivial" as a matter of law. In Alston v. New Haven , 134 Conn. 686, 60 A.2d 502 (1948), however, our Supreme Court declined to adopt such an approach. It stated that the defendants "cited numerous cases from other jurisdictions claimed by them to establish that in other states courts are much more inclined to rule on the character of the defect as a matter of law. A detailed analysis of those cases would serve no useful purpose. In many states the appellate court has more power than this court over questions of fact." Id., at 688, 60 A.2d 502. Our Supreme Court in Alston further stated that while "courts and juries have refused to hold municipalities liable for slight defects . in only one case [ Older v. Old Lyme , supra, 124 Conn. at 283, 199 A. 434 ] has such a defect been held too slight as a matter of law to form the basis of a judgment for the plaintiff." Alston v. New Haven , supra, 134 Conn. at 688, 60 A.2d 502. Furthermore, it noted that the alleged defect in Older "was not only slight but was in a place where pedestrians were not apt to walk." Id., at 689, 60 A.2d 502. Our Supreme Court ultimately reiterated our long-standing approach to questions of fact in negligence claims, which is that "[u]nless only one conclusion can reasonably be reached, the question is one of fact for the trier." Id., at 688, 60 A.2d 502. We are thus required by binding authority to reject the invitation to impose a firm "trivial defect" rule. Our resolution of this claim, then, is guided by the following traditional legal principles. It is undisputed that the plaintiff in the present case was a business invitee of the defendant. The fact finder is the exclusive arbiter in determining whether the elements of negligence are satisfied, including whether the defect causing injury is reasonably foreseeable. See Ruiz v. Victory Properties, LLC , 315 Conn. 320, 330, 107 A.3d 381 (2015). In order "to prevail on a negligence claim as a business invitee in a premises liability case, it [is] incumbent upon [the plaintiff] to allege and prove that the defendant either had actual notice of the presence of the specific unsafe condition which caused [his injury] or constructive notice of it. . [T]he notice, whether actual or constructive, must be notice of the very defect which occasioned the injury and not merely of conditions naturally productive of that defect even though subsequently in fact producing it. . In the absence of allegations and proof of any facts that would give rise to an enhanced duty . [a] defendant is held to the duty of protecting its business invitees from known, foreseeable dangers." (Internal quotation marks omitted.) Porto v. Petco Animal Supplies Stores, Inc ., 167 Conn.App. 573, 578-79, 145 A.3d 283 (2016). Furthermore, "whether the injury is reasonably foreseeable ordinarily gives rise to a question of fact for the finder of fact, and this issue may be decided by the court only if no reasonable fact finder could conclude that the injury was within the foreseeable scope of the risk such that the defendant should have recognized the risk and taken precautions to prevent it. . In other words, foreseeability becomes a conclusion of law only when the mind of a fair and reasonable [person] could reach only one conclusion; if there is room for reasonable disagreement the question is one to be determined by the trier as a matter of fact." (Citation omitted; internal quotation marks omitted.) Ruiz v. Victory Properties, LLC , supra, 315 Conn. at 330, 107 A.3d 381 ; see also Doe v. Saint Francis Hospital & Medical Center , 309 Conn. 146, 188, 72 A.3d 929 (2013) (question for fact finder to determine whether plaintiff's injuries were foreseeable). With these principles in mind, we turn to the question of whether the court's factual findings are sufficiently supported by the record. Two reports were introduced into evidence. While the plaintiff received medical attention at the scene, a Danbury Hospital security officer spoke to Fusco and prepared an incident report. That report provided in relevant part: "[The plaintiff] exited the hospital via the main lobby after visiting her husband . While crossing the main drive crosswalk she tripped and fell to the ground. She was assisted to the [emergency department] for examination." The security officer also transcribed Fusco's description of the incident in the report, which stated: "[The plaintiff] fell while walking across the main drive crosswalk. The witness believes that the right foot of her mother slipped into the crack causing her to fall." The report also noted the officer's personal observation and assessment of the location in question, and stated that the "[c]rosswalk path is slightly unlevel [and] at the end of the crosswalk near the elevator there is a crack where the slab's corner has been chipped." The report ended with a notation that photographs were taken of the incident location. The photographs were admitted into evidence. Second, the emergency department's medical staff prepared a report at the time of the plaintiff's admission to the emergency room on June 16, 2010, following her fall. That report provided in relevant part: "[T]his pleasant [seventy-nine] year old female fell out in the parking [area], and then had right foot pain for which she was brought in. Advanced triage [led to] two x-rays of the right foot and ankle . She is accompanied by her daughter who said that she is in pretty good health despite all of the medical problems she has, and there is no history of her feeling dizzy or having . neurologic symptoms which would cause her to have tripped and fallen. She has pain in her right foot in the front some pain in the ankle on any kind of movement but the worse pain is in the right foot frontal with the pain being fairly sharp worse with movement." The report also noted that the plaintiff's chief complaint was that she "fell in the hospital parking lot by the elevators where there is a bump in the walkway." In addition, both Fusco and the plaintiff testified at trial. Fusco was called first to testify and stated that when the plaintiff fell, she reached down to assist the plaintiff. While aiding the plaintiff, Fusco noticed "[t]hat there was this broken pavement at the corner where she-her right foot had hit." Fusco also testified that the plaintiff told her shortly after the fall that her "foot hit the pavement right there" and that she immediately complained of foot pain. Fusco also positively identified the gap in the concrete depicted in the plaintiff's exhibit 1 as the concrete gap that she referred to in her testimony. The plaintiff's recollection of the events was not as detailed as Fusco's. She testified that it felt like she had "hit a block with [her] big toe." The plaintiff further testified that she was walking "to the elevator and just hit that spot." It was the plaintiff's belief that the "spot" caused the fall, but she admitted that she did not actually see what caused her fall. The court reviewed the reports written by members of the defendant's security staff and medical staff, the photographs depicting the alleged defect and the surrounding area, and the testimony of the plaintiff and Fusco describing the fall and the divot. We conclude that there is adequate evidence in the record reasonably supporting the court's factual findings and conclusions. More specifically, the evidence presented at trial reasonably described a broken slab of pavement that contained a chip in a well traveled walkway that had existed for a sufficient period of time. This evidence sufficiently supports the court's findings. Accordingly, the court's findings relating to this claim were not clearly erroneous, and its conclusions were not unreasonable. B The defendant next claims that the plaintiff did not satisfy her burden of proving that the defect actually caused her injuries. Specifically, the defendant contends that, other than the evidence that the plaintiff's toe struck "something," nothing in the record supports the court's finding that the divot was the actual cause of her injuries. In response, the plaintiff argues that there is more than sufficient evidence supporting the court's findings pertaining to this claim. We agree. In its memorandum of decision, the trial court found that "the plaintiff struck her right toe against some obstacle while walking in or next to the crosswalk, which caused the fracture for which she was treated minutes later in the emergency department." The court further found that "where the plaintiff alleges to have fallen, there did exist a portion of uneven surface where the blocks of cement or other materials meet to form the crosswalk and the adjacent walkway. In addition, a small edge of raised surface appeared to have been chipped or otherwise broken off." The court identified that uneven surface as the area depicted in the photographs admitted into evidence. Before we address the defendant's claim, we set forth the following relevant legal principles. "To prevail on a negligence claim, a plaintiff must establish that the defendant's conduct legally caused the injuries. . The first component of legal cause is causation in fact. Causation in fact is the purest legal application of . legal cause. The test for cause in fact is, simply, would the injury have occurred were it not for the actor's conduct." (Citations omitted; internal quotation marks omitted.) Paige v. St. Andrew's Roman Catholic Church Corp ., 250 Conn. 14, 24-25, 734 A.2d 85 (1999). The defendant takes issue with the court's conclusion that the plaintiff struck her toe on "some obstacle" by arguing that this conclusion is too imprecise or speculative. The defendant further argues that this imprecise conclusion is based on the plaintiff's similarly imprecise testimony that she "felt her right toe strike something as she was walking ." Although these statements in a vacuum may perhaps be imprecise, there is significantly more evidence in the record supporting the court's finding that the divot was the actual cause of the plaintiff's injuries than the defendant sets forth. The opinion read as a whole shows that the court concluded that the plaintiff tripped on the defect identified by the witnesses. As noted in part I A of this opinion, Fusco testified at trial and described the plaintiff's fall and what she noticed thereafter. When Fusco was asked what she observed in the area immediately next to where the plaintiff fell, she testified that "there was this broken pavement at the corner where she-[the plaintiff's] right foot had hit." Fusco also was shown the photographs taken by the security officer to whom she indicated that the "gap in the concrete" was the cause of her mother's fall. The plaintiff corroborated Fusco's testimony through her own testimony and described the sensation of striking what felt like a "block" with her right foot during the incident in question. Additionally, the report prepared by the security officer stated that "at the end of the crosswalk near the elevator there is a crack where the slab's corner has been chipped." In our view, the court made several reasonable inferences from facts. We have found in the record evidence that (1) when the security officer examined the area, he identified only the defect in question; (2) the sensation that the plaintiff felt when striking her foot was the inside of the divot; and (3) the defect caused the fall based on the proximity of the plaintiff's location after the fall to the divot's location. We thus conclude that the court reasonably found that the divot was the actual cause of the plaintiff's fall. Accordingly, the court's findings with respect to this claim were not clearly erroneous. C Finally, the defendant claims that the court erroneously found that all of the plaintiff's medical bills were the result of her fall. Specifically, the defendant argues that "[d]espite the fact that [a medical expert] testified that only half of the 10 percent impairment he assigned to [the] plaintiff's back was related to the fall, the trial court concluded that 100 percent of the medical treatment was caused solely by the fall." In response, the plaintiff contends that the evidence at trial supports the court's conclusion that all of her medical bills were substantially caused by the fall. We agree with the plaintiff. In its memorandum of decision, the court found that "the plaintiff . has proven by a fair preponderance of the evidence that she did sustain the injuries and losses which she alleged in her complaint, including the injuries which exacerbated prior conditions of spinal stenosis and low back pain, and that those injuries and losses were caused by the negligence of the defendant ." Following this court's granting of the defendant's motion for review of the trial court's denial of its motion for articulation, the trial court articulated its decision in relevant part: "The evidence and testimony gave the court a factual basis for its finding that subsequent to her fall, the plaintiff underwent surgery, which required her to undergo rehabilitative care and treatment and which required her to purchase or otherwise acquire various items of rehabilitative equipment, drugs and miscellaneous items to promote her rehabilitation. As a proximate result of her fall, she incurred medical costs and expenses in a total amount of $131,076.45. The defendant offered no evidence or testimony which would permit the court to find that any of those expenses were incurred for anything other than the fractures which she sustained as a result of her fall on the defendant's premises on June 6, 2010, and the exacerbation of her preexisting back injuries." Our inquiry is guided by the following legal principles. As noted previously in this opinion, one of the elements that a plaintiff must prove in order to prevail on a claim of negligence is legal cause. Legal cause comprises two components: (1) cause in fact and (2) proximate cause. See Winn v. Posades , 281 Conn. 50, 56-57, 913 A.2d 407 (2007). We noted previously that "[t]he test for cause in fact is, simply, would the injury have occurred were it not for the actor's conduct." (Internal quotation marks omitted.) Gurguis v. Frankel , 93 Conn.App. 162, 167, 888 A.2d 1083, cert. denied, 277 Conn. 916, 895 A.2d 789 (2006). "The second component of legal cause is proximate cause . [T]he test of proximate cause is whether the defendant's conduct is a substantial factor in bringing about the plaintiff's injuries. . Further, it is the plaintiff who bears the burden to prove an unbroken sequence of events that tied his injuries to the [defendants' conduct]. . The existence of the proximate cause of an injury is determined by looking from the injury to the negligent act complained of for the necessary causal connection. . This causal connection must be based upon more than conjecture and surmise." (Internal quotation marks omitted.) Id., at 167-68, 888 A.2d 1083. We review challenges to the finding of causation under the clearly erroneous standard because the conclusion of negligence is factual. See Twin Oaks Condominium Assn., Inc . v. Jones , 132 Conn.App. 8, 11, 30 A.3d 7 (2011) ("[t]he conclusion of negligence is necessarily one of fact"), cert. denied, 305 Conn. 901, 43 A.3d 663 (2012) ; see also Gurguis v. Frankel , supra, at 168, 888 A.2d 1083 (reviewing challenge to finding of causation under clearly erroneous standard). Because the court concluded that the plaintiff's injuries were caused, at least in part, by an exacerbation of a prior condition, a discussion of the eggshell plaintiff doctrine is relevant to our inquiry. "The eggshell plaintiff doctrine states that [w]here a tort is committed, and injury may reasonably be anticipated, the wrongdoer is liable for the proximate results of that injury, although the consequences are more serious than they would have been, had the injured person been in perfect health. . The eggshell plaintiff doctrine is not a mechanism to shift the burden of proof to the defendant; rather, it makes the defendant responsible for all damages that the defendant legally caused even if the plaintiff was more susceptible to injury because of a preexisting condition or injury. Under this doctrine, the eggshell plaintiff still has to prove the nature and probable duration of the injuries sustained." (Internal quotation marks omitted.) Iazzetta v. Nevas , 105 Conn.App. 591, 593 n.4, 939 A.2d 617 (2008) ; see also W. Prosser & W. Keeton, Torts (5th Ed. 1984) § 43, p. 292. At trial, one of the plaintiff's treating physicians, David L. Kramer, testified as an expert witness with respect to her treatment and the cause of her accelerated need for surgery. Kramer testified that although he "did come up with an admittedly arbitrary apportionment, [he] still assigned 5 percent, or half of her accelerated need for surgery, to an underlying and natural degenerative condition." The defendant argues that Kramer's opinion was arbitrary, and that this statement indicates that the cause of her accelerated need for surgery was her degenerative condition. The defendant's argument misses the point and takes Kramer's testimony out of context. Kramer testified that it was his medical opinion that "at the end of the day a lot of this is degenerative in nature, but to some extent, as far as [he] understood it, [the plaintiff's] clinical picture deteriorated after the fall, and there may have been some acceleration in the need for surgery subsequent to that fall, and so to the extent that [he] had already minimized her impairment rating, [he] still apportioned a significant percentage of that to an underlying degenerative condition." Specifically, Kramer testified that in his opinion, the plaintiff's fall "may have contributed to some accelerated deterioration" leading to her subsequent medical treatment. Moreover, Kramer testified that spinal stenosis, like other advanced conditions, may show significant damage when viewed through a radiological image, but an individual with such a condition may feel no effects or be only slightly affected by the condition in her daily life and not require extensive medical treatment. A plaintiff with a "dormant" condition, such as the plaintiff's preexisting spinal stenosis here, is entitled to recover full compensation for a resulting disability. See Tuite v. Stop & Shop Cos. , 45 Conn.App. 305, 310-11, 696 A.2d 363 (1997). Contrary to the defendant's argument, the court was not required to find that the plaintiff's medical treatment and costs were "solely the result of the plaintiff's fall" in order to recover full compensation from the defendant. Instead, the proper inquiry to determine whether the defendant was liable for all the medical costs resulting from the plaintiff's fall is whether the fall was a "substantial factor in bringing about the plaintiff's injuries." (Internal quotation marks omitted.) Barry v. Quality Steel Products, Inc. , 263 Conn. 424, 433, 820 A.2d 258 (2003). In the present case, the court found that the plaintiff's fall was a substantial factor in bringing about her injuries and that finding is supported by the record. It was not illogical to conclude that all of the medical costs were substantially caused by the fall, even if the plaintiff had a preexisting condition. In addition to Kramer's testimony that the plaintiff's fall was a significant factor in her accelerated need for surgery, the relevant medical records admitted into evidence indicate that the plaintiff began significantly complaining of chronic back pain to Dr. Sanjay Gupta shortly after the incident and prior to seeking surgical treatment from Kramer. The record also includes Fusco's testimony and the plaintiff's medical records, which indicate that prior to the fall, despite the radiological presence of her preexisting condition, the plaintiff led an active and independent lifestyle. Parenthetically, there is nothing in the record to suggest that an intervening event broke the chain of causation. In short, the court's conclusion that the plaintiff's fall was a substantial factor in exacerbating her preexisting condition of spinal stenosis and, therefore, that the defendant was liable for all of the medical costs resulting therefrom is supported by the record. Accordingly, the court's findings relating to this claim are not clearly erroneous, nor are the conclusions unreasonable. II The defendant also claims that the court abused its discretion in denying its motion in limine seeking to exclude an expert witness' testimony. Prior to the introduction of Kramer's deposition testimony, the defendant made a motion in limine to exclude his testimony on the ground that he "lacked a factual basis upon which to predicate an opinion that claimed damages were related to the alleged occurrence." The court reserved decision on the motion pending evidence at trial. Later, in its memorandum of decision, the court denied the defendant's motion in limine. On appeal, the defendant claims that the court abused its discretion in admitting Kramer's testimony. We disagree. As an initial matter we note our standard of review. "[T]he trial court has broad discretion in ruling on the admissibility . of evidence . [and its] 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." (Internal quotation marks omitted.) Desrosiers v. Henne , 283 Conn. 361, 365, 926 A.2d 1024 (2007). In its memorandum of decision, the court noted the defendant's prior motion in limine to exclude Kramer's testimony on the grounds that he "lacked a factual basis upon which to predicate an opinion that claimed damages were related to the alleged occurrence." The court denied the motion and stated in relevant part: "Having taken into consideration the totality of the evidence offered at trial, the court has denied the defendant's motion in limine, which seeks the preclusion of Dr. Kramer's testimony, and has reviewed that deposition testimony and has given it the weight which the court finds it deserves." In the court's later articulation regarding its denial of the defendant's motion in limine pertaining to this claim, the court stated in relevant part: "In the instant case, the court found that the facts upon which Dr. Kramer's opinions are predicated are not without substantial value. His report states that based on the patient's history, as she reported it to him, and as set forth in the records of Dr. [S. Javed Shalid, a neurologist] and Dr. [David S. Kloth, a pain management specialist], which he reviewed, there was a factual basis on which to form his opinions that the fall was a significant factor in the need for her subsequent lumbar decompression, her increase in back pain and her lack of tolerance for standing and walking. The court found that Dr. Kramer's opinions were based on reasonable probabilities rather than mere speculation and, for that reason, they were admissible in establishing causation." Our standard regarding the admissibility of expert testimony is well settled. "Expert testimony should be admitted when: (1) the witness has a special skill or knowledge directly applicable to a matter in issue, (2) that skill or knowledge is not common to the average person, and (3) the testimony would be helpful to the court or jury in considering the issues. . In other words, [i]n order to render an expert opinion the witness must be qualified to do so and there must be a factual basis for the opinion." (Citations omitted; internal quotation marks omitted.) Sullivan v. Metro-North Commuter Railroad Co. , 292 Conn. 150, 158, 971 A.2d 676 (2009) ; see also Conn. Code Evid. § 7-2. We begin with the defendant's argument that Kramer lacked a sufficient factual basis for his opinion that the plaintiff's fall caused her accelerated need for surgery. The record indicates that the plaintiff advised Kramer of her medical history when she initially met with him on June 21, 2012. During this time, the plaintiff "complained of symptoms consistent with lumbar spinal stenosis, namely an inability to stand and walk for any length of time. She described a spinal history which was significant for three prior surgical procedures performed in the distant past." The plaintiff also informed Kramer that "she was involved in a slip and fall, subsequent to which her symptoms of spinal stenosis seemed to have progressed." Furthermore, in Kramer's narrative summary regarding the diagnosis and treatment of the plaintiff, Kramer concluded, inter alia, that "[w]ithin a reasonable degree of medical probability, the fall of June 16, 2010 seems to have intensified this patient's symptoms of spinal stenosis. Based upon this patient's history, the fall was a significant factor in the need for her subsequent lumbar decompression." This narrative was introduced into evidence at trial. "[O]ur case law is clear that a physician's medical opinion is not inadmissible because it is formed, in whole or in part, on the basis of hearsay statements made by a patient. See George v. Ericson , 250 Conn. 312, 320, 736 A.2d 889 (1999) (although "[i]t is the general rule that an expert's opinion is inadmissible if it is based on hearsay evidence . [o]ne exception to this rule . is the exception which allows a physician to testify to his opinion even though it is based, in whole or in part, on statements made to him by a patient for the purpose of obtaining from him professional medical treatment or advice incidental thereto" [citation omitted; internal quotation marks omitted] ). The rationale for this exception is that "the patient's desire to recover his health . will restrain him from giving inaccurate statements to a physician employed to advise or treat him." (Internal quotation marks omitted.) Milliun v. New Milford Hospital , 129 Conn.App. 81, 96, 20 A.3d 36 (2011), aff'd, 310 Conn. 711, 80 A.3d 887 (2013). Kramer's reliance on the plaintiff's statements to him pertaining to her medical history did not, then, render his opinion factually baseless. Moreover, the plaintiff's recitation of her medical history to Kramer was reinforced by other medical records admitted into evidence, which were also relied on by Kramer, describing her complaints regarding back pain shortly after the fall and the extensive treatment she received thereafter. We thus find no merit to the defendant's argument that Kramer lacked a sufficient evidentiary basis on which to base his opinion. Finally, the defendant challenges the admission of Kramer's opinion by again taking issue with Kramer's division of the cause of the plaintiff's 10 percent spinal stenosis injury equally between her preexisting condition and the fall, and his statement that it was "an admittedly arbitrary apportionment ." We addressed this issue in part I C of this opinion. There, we noted that the defendant took the challenged statement out of context. Although the precise calculation of the apportionment was characterized by Kramer as somewhat arbitrary, it was nonetheless his medical opinion that the plaintiff's fall was a significant factor in causing her accelerated need for surgery. Kramer's opinion was supported by the plaintiff's medical history, as evidenced by the plaintiff's conversations with Kramer and her medical records. Furthermore, as noted previously in this opinion, Kramer opined that the plaintiff's fall was a factor contributing to her accelerated need for surgery and that her symptoms appeared to progress significantly after the fall. Kramer also testified that his apportionment was "admittedly arbitrary ." This statement is not necessarily inconsistent with a finding that the fall was a substantial factor; in any event, it is "the exclusive province of the trier of fact to weigh the conflicting evidence, determine the credibility of witnesses and determine whether to accept some, all or none of a witness' testimony." (Emphasis omitted; internal quotation marks omitted.) Palkimas v. Fernandez , supra, 159 Conn.App. at 133, 122 A.3d 704. In the present case, the court, as the arbiter of credibility, was free to credit some, all or none of Kramer's testimony regarding his conclusion that the plaintiff's fall exacerbated her preexisting condition. We thus conclude that, in light of the sufficient evidentiary foundation supporting Kramer's testimony and his conclusion that the plaintiff's fall was a substantial contributing factor with respect to the plaintiff's accelerated need for surgery, his opinions had reasonable foundation. Accordingly, the court did not abuse its discretion in admitting Kramer's testimony. The judgment is affirmed. In this opinion the other judges concurred. In its memorandum of decision, the court noted that the defendant raised several special defenses alleging that the plaintiff "[1] failed to keep and maintain a reasonable and proper lookout; [2] failed to make reasonable and proper use of her senses and of her faculties; [3] failed to take the necessary and proper precautions to observe the conditions then and there existing; [4] failed to be watchful of her surroundings; [5] failed to use reasonable care for her own safety commensurate with the existing circumstances and conditions; and/or [6] failed to take into account a condition that was open and obvious; [7] failed to observe and avoid whatever dangers or conditions of dangers she alleges to have been presented at said time and place; [8] failed to be watchful of where she was walking and stepping; and/or [9] [f]ailed to use reasonable care for her own well-being/safety under the conditions and circumstances then and there existing." During the pendency of this appeal, the defendant filed a motion for articulation, which the court denied. The defendant then filed a motion for review of the trial court's decision denying the relief requested therein, which this court granted. The trial court then issued an articulation in compliance with this court's order. The court's articulation is discussed in more detail in this opinion. The parties erroneously used the word "divot" to refer to a shallow hole or decompression in the surface. From the photographs introduced into evidence, one can see, perhaps, some similarity to the disturbance of turf caused by a golf club. A "divot", however, is the turf dislodged by the swing, not the resulting hole. Merriam-Webster's Collegiate Dictionary (11th Ed. 2003). With this reservation, we will use the same terminology as the parties. Other jurisdictions have adopted a de minimis or trivial defect rule in which an alleged defect can be held to be insignificant or trivial as a matter of law. See, e.g., Czochanski v. Tishman Speyer Properties, Ltd., 45 Fed.Appx. 45, 47 (2d Cir. 2002) ("New York courts often rely on the judge's examination of photographs to determine whether a defect is trivial as a matter of law"); Ursino v. Big Boy Restaurants of America, 192 Cal.App.3d 394, 399, 237 Cal.Rptr. 413 (1987) (identifying trivial defect rule as procedural "check valve" to avoid imposing absolute liability upon property owner); Gleason v. Chicago, 190 Ill.App.3d 1068, 1069-70, 138 Ill.Dec. 351, 547 N.E.2d 518 (1989) (affirming court's grant of summary judgment because alleged defect too slight to be actionable). The court found that the walkway where the plaintiff fell was "a convergence of large, well-worn slabs of stone or some concrete material. The paint on the slabs is worn and flaked." On appeal, the defendant has not specifically contested the length of time that the defect existed. The defendant also argues that this court should review the photographs depicting the divot de novo. We disagree. We are cognizant that the trial court remains in a superior position to credit and weigh the evidence as it did in this case, including the photographs. As noted previously, the proper inquiry regarding the court's factual findings is whether the trial court could reasonably have drawn the inferences it did from the evidence presented. See Cagianello v. Hartford, 135 Conn. 473, 476, 66 A.2d 83 (1948). In light of our conclusion that the court's findings were not clearly erroneous, we need not further address this claim. Kramer testified in relevant part during his deposition: "[N]ot surprisingly, eighty year old people have the ugliest looking X-rays and [magnetic resonance imaging ] scans, and yet, as a group, they tend to have one of the lower incidents of neck and lower back pain. So, tempting as it is to look at that time and X-ray that shows severe arthritis, it does not necessarily require treatment. "[The plaintiff] was functioning apparently at a reasonably high level with radiographically severe spinal stenosis and may have been more vulnerable to even an innocuous physical insult like the fall she described. We see that all the time in the emergency room where elderly people have been living their lives and experiencing their subclinical degenerative changes with ongoing narrowing of the spinal canal and then they have a little slip and fall or a little car accident, and they become catastrophically [a]ffected if it's in the neck, for instance." In a related claim, the defendant contends that the trial court's articulation shifted the burden of proof to the defendant to prove that the plaintiff's expenses were not caused by her fall. Specifically, the defendant challenges the following portion of the court's articulation: "The defendant offered no evidence or testimony which would permit the court to find that any of those expenses were incurred for anything other than the fractures which she sustained as a result of her fall on the defendant's premises on June 6, 2010, and the exacerbation of her preexisting back injuries." For the following reasons we disagree with this claim. When a party claims that the trial court applied an incorrect burden of proof, an appellate court does not presume error in the absence of a clear expression of what burden the court actually employed. See Kaczynski v. Kaczynski, 294 Conn. 121, 131, 981 A.2d 1068 (2009). It appears to this court that the challenged language simply reiterated that the plaintiff had satisfied her burden and noted that there was no evidence introduced to the contrary. The language was a comment on the state of the evidence, not on the burden of proof. In any event, we do not presume error on the part of the trial court. Jalbert v. Mulligan, 153 Conn.App. 124, 145, 101 A.3d 279, cert. denied, 315 Conn. 901, 104 A.3d 107 (2014). Section 7-2 of the Connecticut Code of Evidence provides: "A witness qualified as an expert by knowledge, skill, experience, training, education or otherwise may testify in the form of an opinion or otherwise concerning scientific, technical or other specialized knowledge, if the testimony will assist the trier of fact in understanding the evidence or in determining a fact in issue." At the conclusion of its brief, the defendant, without any further analysis, claims that Kramer's opinions were not expressed to a reasonable degree of medical certainty. We will not review claims not supported by analysis. See Nowacki v. Nowacki, 129 Conn.App. 157, 164-65, 20 A.3d 702 (2011).

12510363

WACHOVIA MORTGAGE, FSB v. Pawel TOCZEK et al.

Wachovia Mortg., FSB v. Toczek

2019-05-14

AC 42225

725

732

209 A.3d 725

209

West's Atlantic Reporter, Third Series

Connecticut Appellate Court

Connecticut

2021-08-27T20:57:52.145563+00:00

Fastcase

WACHOVIA MORTGAGE, FSB v. Pawel TOCZEK et al.

WACHOVIA MORTGAGE, FSB v. Pawel TOCZEK et al. AC 42225 Appellate Court of Connecticut. Argued March 6, 2019 Officially released May 14, 2019 Aleksandra Toczek, self-represented, the appellant (intervening defendant). David M. Bizar, with whom, on the memorandum, was J. Patrick Kennedy, Hartford, for the appellee (substitute plaintiff). Alvord, Keller, Elgo, Bright and Moll, Js.

3457

20835

BRIGHT, J. In this foreclosure action, the self-represented defendant, Aleksandra Toczek, appeals from the judgments of the trial court granting the motion of the plaintiff Wells Fargo Bank, N.A., to reset the law days and denying her motions to open the judgment of strict foreclosure and extend the law days and to reargue. On November 2, 2018, the plaintiff filed a motion to dismiss the appeal as frivolous. On February 14, 2019, the plaintiff filed a second motion to dismiss this appeal as moot and the amended appeal as moot and frivolous. That motion followed this court's order of February 4, 2019, in which we raised the question of whether the trial court's order resetting the law days should be summarily reversed as being in contravention of the appellate stay. After considering the parties' written submissions on that question and hearing oral argument on the matter, we conclude that, under binding authority from our Supreme Court, the trial court acted in contravention of the appellate stay when it reset the law days. We, therefore, deny the plaintiff's motion to dismiss the appeal and reverse the court's judgment granting the plaintiff's motion to reset the law days and setting the law days. We agree, however, that the defendant's amended appeal is frivolous and, therefore, grant the plaintiff's motion to dismiss the amended appeal. The following procedural history is relevant to our analysis. In November, 2008, the original plaintiff, Wachovia Mortgage, FSB, filed this action seeking to foreclose a mortgage on real property located at 15 Kenilworth Drive West in Stamford. In February, 2014, the court, Mintz, J., rendered a judgment of strict foreclosure. The defendant appealed to this court, which dismissed her appeal for lack of diligence. The trial court then reentered the judgment of strict foreclosure in February, 2015. On appeal, this court affirmed the judgment and remanded the case to the trial court for the purpose of setting new law days. Wachovia Bank, FSB v. Toczek , 170 Conn. App. 904, 155 A.3d 830 (2017), cert. denied, 328 Conn. 914, 180 A.3d 961 (2018). The plaintiff filed a motion for order to reset the law days in accordance with this court's remand order, which the court, Genuario, J., granted, setting the first law day for July 24, 2018. On May 18, 2018, pursuant to Practice Book § 61-11 (d) and (e), the plaintiff filed a motion to terminate the automatic appellate stay in § 61-11 (a) prospectively for any subsequent appeals filed, which the court granted. On July 10, 2018, the defendant filed a third appeal from the court's resetting the law days. On July 16, 2018, the defendant filed a timely motion for review of the order of the trial court terminating the appellate stay. The plaintiff thereafter filed a motion to dismiss the third appeal as frivolous. On September 6, 2018, a panel of this court granted the plaintiff's motion to dismiss the third appeal as frivolous and granted the defendant's motion for review but denied the relief requested therein. On Monday, September 17, 2018, the defendant filed timely motions for reconsideration en banc of the September 6, 2018 decisions dismissing the third appeal as frivolous and denying relief from the termination of the appellate stay. On October 31, 2018, this court en banc denied the defendant's motions for reconsideration of the dismissal of the third appeal and the defendant's motion for review. On September 14, 2018, before the period for seeking reconsideration under Practice Book § 71-5 had expired, the plaintiff filed in the trial court a motion to reset the law days following this court's dismissal of the third appeal as frivolous. The defendant filed an objection, arguing that the trial court could not reset the law days during the pendency of her motions for reconsideration en banc of the dismissal of the third appeal and the prospective termination of the appellate stay. On October 15, 2018, while the defendant's motions for reconsideration en banc were still pending before this court, the trial court granted the plaintiff's motion to reset the law days and set the first law day for December 4, 2018. The defendant filed the present, and fourth, appeal on October 25, 2018, challenging the October 15, 2018 order of the trial court resetting the law days, and, thereafter, the plaintiff filed a motion to dismiss the appeal as frivolous. On November 26, 2018, the defendant filed a motion to open the judgment of strict foreclosure and extend the law days, which the trial court denied. The defendant filed a motion to reargue, which the court denied. The defendant amended her fourth appeal to add the trial court's denial of her motions to open and to reargue. The plaintiff then filed a motion to dismiss the original fourth appeal and the amended appeal as moot and the amended appeal as frivolous. On February 4, 2019, this court issued the following order: "[T]he parties are hereby ordered, sua sponte, to file memoranda not to exceed ten pages, on or before February 14, 2019, to give reasons, if any, why the trial court's October 15, 2018 order resetting the law days should not be summarily reversed and the matter remanded to the trial court to set new law days, as the trial court's order was in contravention of the appellate stay in effect while the defendant Aleksandra Toczek's September 17, 2018 timely motion to reconsider the motion for review of the termination of stay was pending. See RAL Management, Inc. v. Valley View Associates , [278 Conn. 672, 682-85, 899 A.2d 586 (2006) ] ; Practice Book § 71-5 and 71-6." Both parties filed the requested memoranda, and we heard argument on the issue on March 6, 2019. We set forth the following legal principles that guide our review. "Mootness implicates [the] court's subject matter jurisdiction and is thus a threshold matter for us to resolve.... It is a well-settled general rule that the existence of an actual controversy is an essential requisite to appellate jurisdiction; it is not the province of appellate courts to decide moot questions, disconnected from the granting of actual relief or from the determination of which no practical relief can follow.... An actual controversy must exist not only at the time the appeal is taken, but also throughout the pendency of the appeal.... When, during the pendency of an appeal, events have occurred that preclude an appellate court from granting any practical relief through its disposition of the merits, a case has become moot.... Because mootness implicates subject matter jurisdiction, it presents a question of law over which our review is plenary." (Citation omitted; internal quotation marks omitted.) New Hartford v. Connecticut Resources Recovery Authority , 291 Conn. 502, 506-507, 970 A.2d 578 (2009). "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.... As the holder of equitable title, also called the equity of redemption, the mortgagor has the right to redeem the legal title on the performance of certain conditions contained within the mortgage instrument.... The equity of redemption gives the mortgagor the right to redeem the legal title previously conveyed by performing whatever conditions are specified in the mortgage, the most important of which is usually the payment of money.... "Generally, foreclosure means to cut off the equity of redemption, the equitable owner's right to redeem the property.... The equity of redemption can be cut off either by sale or by strict foreclosure.... In Connecticut, strict foreclosure is the rule, foreclosure by sale the exception." (Citations omitted; internal quotation marks omitted.) Ocwen Federal Bank, FSB v. Charles , 95 Conn. App. 315, 322-23, 898 A.2d 197, cert. denied, 279 Conn. 909, 902 A.2d 1069 (2006). "Under our law, an action for strict foreclosure is brought by a mortgagee who, holding legal title, seeks not to enforce a forfeiture but rather to foreclose an equity of redemption unless the mortgagor satisfies the debt on or before his law day.... Accordingly, [if] 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 plaintiff, with a consequent and accompanying right to possession. The qualified title which the plaintiff had previously held under his mortgage had become an absolute one.... In other words, if the defendant's equity of redemption was extinguished by the passing of the law days, we can afford no practical relief by reviewing the rulings of the trial court now challenged on appeal, as doing so would have no practical effect or alter the substantive rights of the parties." (Citations omitted; internal quotation marks omitted.) Sovereign Bank v. Licata , 178 Conn. App. 82, 97, 172 A.3d 1263 (2017). There is no question that the December 4, 2018 law day set by the court on October 15, 2018, passed without the defendant redeeming her interest in the property. Thus, unless the running of the law day was stayed, title to the property has passed to the plaintiff and the defendant's appeal from the judgment granting the motion to reset the law days is moot. There also is no question that an appellate stay was in effect on October 15, 2018, when the trial court set the new law day of December 4, 2018. Although the trial court granted the plaintiff's motion to terminate the appellate stay, the defendant filed a timely motion for review on July 16, 2018, which continued the appellate stay. See Practice Book § 61-14. Following this court's denial of the relief requested in that motion, the defendant filed, on September 17, 2018, a timely motion for reconsideration en banc of the denial of the relief requested in her motion for review, and, therefore, an appellate stay was in effect when the trial court reset the law days on October 15, 2018. See Practice Book § 71-6. This court denied the motion for reconsideration en banc on October 31, 2018, and notice issued that same day. The stay remained in effect for twenty days, until November 20, 2018. See Practice Book § 63-2 and 71-6. The question, therefore, is whether the trial court's order resetting the law days violated the appellate stay. On the basis of our Supreme Court's decision in RAL Management, Inc. v. Valley View Associates , supra, 278 Conn. at 672, 899 A.2d 586, we conclude that it did. In RAL Management, Inc. , the court addressed whether the opening of a judgment of strict foreclosure to reset the law days violated the appellate stay that was in effect. In particular, the court stated that the threshold issue in the case was "whether the trial court properly opened the judgment while the appellate stay was in effect merely to change the law days" and concluded "that such an action was improper ." Id., at 682, 899 A.2d 586. The court reasoned that "the law days are ineffective pending the stay because to treat them otherwise would carry out the judgment in violation of the stay. It necessarily follows, therefore, that if the law days have no legal effect and necessarily will lapse pending the appeal . any change to those dates pending the appeal similarly has no effect. Indeed, the rules of practice anticipate such a circumstance by providing specific authority for the trial court to set new law days if the court's judgment is affirmed on appeal. See Practice Book § 17-10." (Citation omitted; footnotes omitted.) RAL Management, Inc. v. Valley View Associates , supra, at 683-84, 899 A.2d 586. The plaintiff argues that RAL Management, Inc. , is inapplicable to this case for two reasons. First, the plaintiff correctly notes that in RAL Management, Inc. , this court granted the defendants' motion for reconsideration and vacated the trial court's order terminating the appellate stay. Thus, the law days set by the trial court in RAL Management , Inc. , could not have any effect because of this court's order reimposing the stay. In fact, our Supreme Court in RAL Management, Inc. , noted that the trial court's order resetting the law days "could not be given effect, however, because the Appellate Court's order vacated that order, thus reviving the stay. Therefore, the trial court's action must be viewed as either a legal nullity or an action in contravention to the appellate stay barring actions to carry out or to enforce the judgment pending appeal." Id., at 684-85, 899 A.2d 586. According to the plaintiff, this language should be read to mean that, had this court denied the motion for reconsideration, which happened in the present case, the action of the trial court resetting the law days would have been proper. We disagree with the plaintiff's reading of RAL Management, Inc . This court's decision in that case vacating the trial court's termination of the appellate stay provided an additional reason why the law days set by the trial court were ineffective. The language used by our Supreme Court in RAL Management, Inc. , makes clear, however, that the court viewed the resetting of the law days itself, which occurred well before this court ruled on the motion for reconsideration, as violative of the appellate stay. The court reinforced this conclusion in a footnote that immediately follows the language relied on by the plaintiff in the present case. Regarding the actions of the trial court in resetting the law days, the court stated: "We surmise that the trial court did not act knowingly in violation of the stay. The record indicates that the defendants filed their motion for reconsideration of the Appellate Court's denial of their motion for review of the trial court's decision terminating the stay on the last day permitted for filing that motion. The plaintiff represented to this court that it had received a copy of the motion for reconsideration the following business day, after the trial court had held the hearing on the motion to open the judgment, the same day the court granted the motion." Id., at 685 n.12, 899 A.2d 586. Accordingly, the trial court violated the stay when it opened the judgment and reset the law days during the period of time when the defendants could still seek reconsideration of this court's denial of the motion for review. That is the exact scenario that confronts us in this case. Second, the plaintiff argues that by stating in RAL Management, Inc. , that this court's decision vacating the trial court's termination of the stay had the effect of "reviving" the stay, our Supreme Court necessarily implied that the stay ceased to exist until this court brought it back to life. Consequently, the plaintiff argues that because in this case we denied the defendant's motion for reconsideration, we never revived or brought back to life the stay that terminated when we initially denied the relief requested in the defendant's motion for review. We are not persuaded. First, this argument ignores the plain language of Practice Book § 71-6, which provides that any stay of proceedings remains in effect during the period of time for filing a motion for reconsideration, and, if such a motion is filed, until it is denied. See footnote 5 of this opinion. Second, the plaintiff's reliance on this one word in the Supreme Court's opinion ignores all of the other language noted previously in this opinion, which clearly provides that resetting the law days while the stay was in effect was in contravention of the stay, regardless of whether this court ultimately granted the motion for reconsideration. We agree that the actions that are prohibited during the appellate stay are only those that in some way execute or effectuate the judgment. See Ruiz v. Victory Properties, LLC , 180 Conn. App. 818, 832-33, 184 A.3d 1254 (2018) ("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"). Consequently, our Supreme Court repeatedly has held that the law days set in a judgment of strict foreclosure cannot be given any legal effect while the appellate stay is in effect. See, e.g., Farmers & Mechanics Savings Bank v. Sullivan , 216 Conn. 341, 347-48, 579 A.2d 1054 (1990), and cases cited therein. In RAL Management, Inc. , the court extended this principle to resetting law days while the appellate stay is in effect because doing so is an action to carry out or to enforce the judgment pending appeal. RAL Management, Inc. , v. Valley View Associates , supra, 278 Conn. at 685, 899 A.2d 586. Applying this holding to the facts of this case, we conclude that the trial court's October 15, 2018 order resetting the law days was in contravention of the appellate stay then in place. Consequently, the judgment of the trial court is reversed. Furthermore, because we conclude that the trial court erred in resetting the law days while the appellate stay was in effect, we also deny the plaintiff's motion to dismiss this appeal but grant the motion to dismiss the amended appeal as frivolous. The case is remanded to the trial court for the setting of new law days now that (1) the defendant's third appeal has been finally disposed of, and (2) we have denied the defendant's motion for reconsideration en banc of our denial of relief on her motion to review the trial court's order prospectively terminating any future appellate stays in this matter. The motion to dismiss the appeal is denied, the motion to dismiss the amended appeal as frivolous is granted and the judgment granting the plaintiff's motion to set new law days is reversed and the case is remanded for the purpose of setting new law days. In this opinion the other judges concurred. The complaint named Pawel Toczek and National City Bank as the defendants. After Pawel Toczek quitclaimed his interest in the property to her, Aleksandra Toczek filed a motion to intervene, which the court granted. We refer in this opinion to Aleksandra Toczek as the defendant. Wachovia Mortgage, FSB (Wachovia), commenced this foreclosure action. In June, 2013, the court granted Wachovia's motion to substitute Wells Fargo Bank, N.A. (Wells Fargo), as the plaintiff after Wachovia merged into Wells Fargo. We refer in this opinion to Wells Fargo as the plaintiff. "It is axiomatic that, with limited exceptions, an appellate stay of execution arises from the time a judgment is rendered until the time to file an appeal has expired. Practice Book § 61-11 (a). If an appeal is filed, any appellate stay of execution in place during the pendency of the appeal period continues until there is a final disposition of the appeal or the stay is terminated. Practice Book § 61-11 (a) and (e)." Sovereign Bank v. Licata , 178 Conn. App. 82, 99, 172 A.3d 1263 (2017). Practice Book § 61-14 provides in relevant part: "The sole remedy of any party desiring the court to review an order concerning a stay of execution shall be by motion for review under Section 66-6. Execution of an order of the court terminating a stay of execution shall be stayed for ten days from the issuance of notice of the order, and if a motion for review is filed within that period, the order shall be stayed pending decision of the motion, unless the court having appellate jurisdiction rules otherwise...." The plaintiff argues that pursuant to Practice Book § 61-14, any appellate stay ended when the court denied the defendant's motion for review. According to the plaintiff, because § 61-14 provides that a motion for review is a party's sole remedy from a trial court's decision terminating an appellate stay, a motion for reconsideration pursuant to Practice Book § 71-5, does not extend the stay. The plaintiff's argument is without merit. Practice Book § 71-6 expressly provides in relevant part that "[u]nless the chief justice or chief judge shall otherwise direct, any stay of proceedings which was in effect during the pendency of the appeal shall continue until the time for filing a motion for reconsideration has expired, and, if a motion is filed, until twenty days after its disposition, and, if it is granted, until the appeal is finally determined...." (Emphasis added.) Because § 71-6 applies to any stay of proceedings, it necessarily applies to a stay under § 61-14.

12510362

Rania NAHLAWI v. Mohamad NAHLAWI

Nahlawi v. Nahlawi

2019-05-14

AC 40793

723

725

209 A.3d 723

209

West's Atlantic Reporter, Third Series

Connecticut Appellate Court

Connecticut

2021-08-27T20:57:52.145563+00:00

Fastcase

Rania NAHLAWI v. Mohamad NAHLAWI

Rania NAHLAWI v. Mohamad NAHLAWI AC 40793 Appellate Court of Connecticut. Argued March 4, 2019 Officially released May 14, 2019 Roy W. Moss, Norwalk, for the appellant (defendant). George J. Markley, Fairfield, for the appellee (plaintiff). Lavine, Bright and Bear, Js.

869

5400

BEAR, J. The defendant, Mohamad Nahlawi, appeals from the judgment of the trial court dissolving his marriage to the plaintiff, Rania Nahlawi. On appeal, the defendant claims that the court erred in (1) awarding periodic alimony in the absence of any finding as to the actual amount of the parties' incomes, expenses and liabilities, or the value of their respective assets, (2) ordering the transfer of real property without any finding as to the actual value thereof, and (3) entering a final child custody and visitation order that referenced a pendente lite parenting plan stipulation that had been superseded by a subsequent pendente lite parenting plan stipulation that the parties and the court had intended would become the final order. The plaintiff concedes that the court's child custody and visitation order should have referred to the February 28, 2017 parenting plan stipulation rather than the December 8, 2016 stipulation that was referenced in the judgment. We reverse the judgment of the court with respect to the child custody and visitation order. We affirm the judgment in all other respects. The defendant, in his brief before this court, presents no facts and virtually no legal analysis in support of his first two claims. With respect to the alimony claim, the defendant's entire analysis and argument is that "[t]he court made no findings as to the amount of income or value of the parties' assets. It should be noted [that] the court did not find any concealment or misrepresentation of income, assets, or other financial circumstances on the part of the defendant. The court has broad discretion only so long as it considers all relevant statutory criteria . Under the foregoing circumstances, the award of periodic alimony was unsupported by the record, failed to adhere to the above comprehensive statutory criteria [in General Statutes § 46b-82 ], and therefore constituted an abuse of discretion." (Citation omitted.) His analysis of his real property claim is similarly limited. It is well established that "[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) ; see also Estate of Rock v. University of Connecticut , 323 Conn. 26, 33, 144 A.3d 420 (2016) ("[c]laims are 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] ). Accordingly, we decline to address the defendant's first two claims on the ground that they are inadequately briefed. The defendant next claims that the court erred in entering a final child custody and visitation order that referenced a pendente lite parenting plan stipulation that had been superseded by a subsequent pendente lite parenting plan stipulation that the parties and the court had intended would become the final order. The plaintiff concedes that the court incorrectly incorporated the earlier stipulation in its order, and indicated both in her brief and during oral argument before this court that she would not object to a correction of this mistake. In its memorandum of decision filed August 9, 2017, the court incorporated a parenting plan that had been agreed to by the parties and made an order of the court, Hon. Howard T. Owens, Jr. , judge trial referee, on December 8, 2016. Pursuant to this plan, the parties were to share joint legal custody of the minor children who resided with the plaintiff, the defendant was to have visitation rights as arranged by the parties, and neither party was to take the children outside the state of Connecticut without the agreement of the other parent or an order of the court. Although the parties initially had agreed to that plan, there is no dispute that the parties subsequently agreed that the later parenting plan dated and made an order of the court, Maureen M. Murphy, J. , on February 28, 2017, would be incorporated into the final judgment. The court, however, incorrectly incorporated the earlier stipulation when rendering its final judgment. The judgment is reversed only as to the child custody and visitation order and the case is remanded with direction to render judgment that incorporates the February 28, 2017 stipulation rather than the December 8, 2016 stipulation. The judgment is affirmed in all other respects. In this opinion the other judges concurred. In its memorandum of decision the court set forth the § 46b-82 factors and considered those factors in determining the amount and duration of the alimony.

12490815

Christopher P. MCCLANCY, et al. v. BANK OF AMERICA, N.A., et al.

McClancy v. Bank of Am., N.A.

2017-09-12

(AC 38568).

658

665

168 A.3d 658

168

West's Atlantic Reporter, Third Series

Connecticut Appellate Court

Connecticut

2021-08-27T20:57:14.022556+00:00

Fastcase

DiPentima, C.J., and Alvord and Bear, Js.

Christopher P. MCCLANCY, et al. v. BANK OF AMERICA, N.A., et al.

Christopher P. MCCLANCY, et al. v. BANK OF AMERICA, N.A., et al. (AC 38568). Appellate Court of Connecticut. Argued May 22, 2017 Officially released September 12, 2017 Kenneth A. Votre, for the appellants (plaintiffs). Pierre-Yves Kolakowski, for the appellee (named defendant). DiPentima, C.J., and Alvord and Bear, Js.

3391

21290

BEAR, J. In this litigation arising from an attempt to modify the payment terms of a promissory note and mortgage, the plaintiffs, Christopher P. McClancy and Loretta Giannone, appeal from the summary judgment of the trial court rendered in favor of the defendant, Bank of America, N.A. On appeal, the plaintiffs claim that the court erred (1) in rendering summary judgment when genuine issues of material fact existed with respect to their breach of contract claim; (2) in failing to determine that the plaintiffs' contract claim fell within an exception to the statute of frauds, General Statutes § 52-550 ; (3) in rendering summary judgment when genuine issues of material fact remained with respect to their negligent and reckless misrepresentation claims; and (4) in determining that no genuine issues of material fact existed with respect to the plaintiffs' claim of a violation of the Connecticut Unfair Trade Practices Act, General Statutes § 42-110a et seq. (CUTPA). We affirm the judgment of the trial court. The following uncontested facts and procedural history are relevant to this appeal. On May 8, 2007, the plaintiffs executed a note to the defendant and a mortgage to secure that note in favor of the defendant on property in Darien. The defendant serviced this home loan. In the summer and fall of 2011, the plaintiffs and the defendant communicated with respect to the possible modification of the plaintiffs' loan. After the plaintiffs, in November, 2011, had submitted a completed application for modification, on December 1, 2011, the defendant transferred its servicing rights to Bayview. In November, 2011, the defendant had given prior notice to the plaintiffs that this would occur and that Bayview would be responsible for continuing the modification discussions. Neither Bayview nor the defendant entered into a modification with the plaintiffs. On June 26, 2013, the plaintiffs commenced this action against the defendant and its predecessor in interest for actions purportedly taken and promises allegedly made while the plaintiffs were attempting to modify their loan. In the operative complaint filed June 24, 2014, the plaintiffs alleged claims of breach of contract, negligent misrepresentation, reckless misrepresentation, intentional misrepresentation-fraud, violation of CUTPA, and civil conspiracy against the defendant and its predecessor in interest. On May 20, 2015, the defendant filed a motion for summary judgment on all claims against it and its successor in interest. In support of its motion, the defendant submitted the adjustable rate note dated May 3, 2007, made and signed by the plaintiffs, to the defendant; a mortgage deed dated May 3, 2007, recorded May 4, 2007, and signed by the plaintiffs in favor of the defendant; a sworn affidavit of Tiffany Barnfield, assistant vice president, senior operations manager for the defendant; excerpts from the March 9, 2015 deposition of McClancy; and excerpts from the March 9, 2015 deposition of Giannone. The plaintiffs filed a memorandum in opposition to the motion for summary judgment. In support of the memorandum in opposition, the plaintiffs submitted an affidavit of McClancy, attached to which were a letter from the plaintiffs to the defendant's predecessor in interest dated June 16, 2011, authorizing an attorney to negotiate a modification of the loan on their behalf; letters from the defendant to the plaintiffs dated November 2, November 10, November 21, and two from November 25, 2011; and an assignment of the mortgage on the plaintiffs' property from the defendant to E*Trade. The November 10, 2011 letter informed the plaintiffs that the servicing rights to their loan would be transferred to Bayview effective December 1, 2011. The court rendered summary judgment on October 30, 2015. This appeal followed. We start by setting forth the applicable standard of review. "The standards governing our review of a trial court's decision to grant a motion for summary judgment are 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.... 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 seeking summary judgment has the burden of showing the absence of any genuine issue [of] material facts which, under applicable principles of substantive law, entitle him to a judgment as a matter of law . and the party opposing such a motion must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact.... A material fact . [is] a fact which will make a difference in the result of the case.... Finally, the scope of our review of the trial court's decision to grant the plaintiff's motion for summary judgment is plenary." (Internal quotation marks omitted.) Romprey v. Safeco Ins. Co. of America , 310 Conn. 304, 312-13, 77 A.3d 726 (2013). I The plaintiffs claim that the court erred in granting summary judgment on their breach of contract claims when genuine issues of material fact existed with respect to the existence of a contract. The court concluded that the plaintiffs had failed to present evidence that there was a contract between the plaintiffs and the defendant with respect to a modification of any of the terms of the note or mortgage, or as an independent agreement. Additionally, the court reasoned the defendant had the express right under the loan documents to transfer the note and mortgage at any time without notice to the plaintiffs and, therefore, it was not a breach of contract when it transferred its servicing rights. We conclude that the plaintiffs' claim that there were genuine issues of material fact on their contract claim is inadequately briefed. "We 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.... We do not reverse the judgment of a trial court on the basis of challenges to its rulings that have not been adequately briefed." (Citation omitted; internal quotation marks omitted.) Grasso v. Connecticut Hospice, Inc. , 138 Conn.App. 759, 768, 54 A.3d 221 (2012). The section of the plaintiffs' brief devoted to breach of contract is a single paragraph, contains no case citations, and fails to provide an analysis demonstrating why the court's conclusions were incorrect. Other than to state in a conclusory manner that facts were in dispute, the plaintiffs failed to cite evidence in the record supporting their claim on appeal that genuine issues of material fact existed as to the court's determination that they failed to put forth evidence of a contract. The plaintiffs' reply brief fares no better. Although they cite some evidence in the record and the statute of limitations for oral contracts, they still fail to analyze their claim by applying contract law to the evidence in the record. Consequently, based upon this inadequate briefing, we do not review this claim. II The plaintiffs also claim that the court erred in failing to find that their claims fell within an exception to the statute of frauds; specifically, promissory estoppel. We first note that our courts have not established a promissory estoppel exception to the statute of frauds. See Glazer v. Dress Barn, Inc. , 274 Conn. 33, 89-90 n.38, 873 A.2d 929 (2005) ( "This court previously has not addressed whether promises that otherwise would be subject to the requirements of the statute of frauds may be enforced on promissory estoppel grounds in the absence of compliance with the statute of frauds; see 1 Restatement (Second) [of Contracts § 139 (1981) ]; or whether a separate promise to put the agreement in writing may provide a basis to avoid the statute of frauds. See 10 S. Williston, [Contracts (4th Ed. 1999) ] § 27:14, pp. 128-33; annot., 56 A.L.R.3d 1057 [1974 and Supp. 2004].") The doctrine of equitable estoppel accompanied by the doctrine of part performance on the contract, however, bars the assertion of the statute of frauds as a defense. Id., at 60-63, 873 A.2d 929. We do not decide whether promissory estoppel bars the defense of statute of frauds because, even if it did, the plaintiffs failed to provide evidence of the promise claimed to have been made. "Under the law of contract, a promise is generally not enforceable unless it is supported by consideration.... [Our Supreme Court] has recognized, however, the development of liability in contract for action induced by reliance upon a promise, despite the absence of common-law consideration normally required to bind a promisor . Section 90 of the Restatement [ (Second) of Contracts] states that under the doctrine of promissory estoppel [a] promise which the promisor should reasonably expect to induce action or forbearance on the part of the promisee or a third person and which does induce such action or forbearance is binding if injustice can be avoided only by enforcement of the promise.... A fundamental element of promissory estoppel, therefore, is the existence of a clear and definite promise which a promisor could reasonably have expected to induce reliance. Thus, a promisor is not liable to a promisee who has relied on a promise if, judged by an objective standard, he had no reason to expect any reliance at all." (Citation omitted; internal quotation marks omitted.) Stewart v. Cendant Mobility Services Corp. , 267 Conn. 96, 104-105, 837 A.2d 736 (2003). The plaintiffs' claim is based on a purported promise to grant a loan modification once the required documentation was submitted. Having determined that there was no promise by the defendant to grant a loan modification, the court did not reach whether an alleged oral contract fell under an exception to the statute of frauds. In making this determination, the court cited McClancy's deposition testimony in which he acknowledged that the defendant never offered terms for a loan modification and that he never accepted terms for a modification. The court also explained that McClancy's affidavit submitted in opposition to the motion for summary judgment did not support a claim that the defendant promised to modify the loan. McClancy averred in his affidavit that the defendant represented to him that he would be considered for a loan modification once he supplied the required documentation; this, the court determined, did not support his claim of a promise to modify the loan. We agree with the court that, as it set forth, the plaintiffs failed to present evidence of a promise to modify the loan. Accordingly, there was no basis for a claim of promissory estoppel nor for any possible exception to the statute of frauds on that ground. III The plaintiffs claim that genuine issues of material fact remain on their claims of negligent misrepresentation and, therefore, the court improperly rendered summary judgment. The defendant argues that the plaintiffs failed to identify any specific representations made by it, and any representations that were knowingly false. Additionally, the defendant argues that the plaintiffs' reliance on the transfer of the loan as a basis for this claim is ineffectual because it had the express right under the mortgage to transfer the loan. "Guided by the principles articulated in § 552 of Restatement (Second) of Torts [our Supreme Court] has long recognized liability for negligent misrepresentation.... [Our Supreme Court has] 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.... Traditionally, an action for negligent misrepresentation requires the plaintiff to establish (1) that the defendant made a misrepresentation of fact (2) that the defendant knew or should have known was false . (3) that the plaintiff reasonably relied on the misrepresentation, and (4) suffered pecuniary harm as a result." (Citations omitted; footnote omitted; internal quotation marks omitted.) Coppola Construction Co. v. Hoffman Enterprises Ltd. Partnership , 309 Conn. 342, 351-52, 71 A.3d 480 (2013). In the present case, the court determined that "the plaintiffs . presented, at best, evidence that [the defendant] represented to them that it would evaluate their loan for a possible modification ." The court concluded, as do we, that the plaintiffs failed to present evidence that this representation was false when made. This representation appears to have been made in a November 2, 2011 letter to the plaintiffs. In a letter dated November 10, 2011, the defendant notified the plaintiffs that the servicing of their loan would be transferred to Bayview effective December 1, 2011. In that letter, the plaintiffs were informed that, if they were being considered for a loan modification, all documentation would be forwarded to Bayview, Bayview would be making all decisions on qualification for foreclosure avoidance programs, the transfer could extend the time needed for such a determination, and that they should continue to make loan payments to Bayview after the transfer. The evidence presented by the plaintiffs indicates that throughout the month of November, 2011, while still servicer of their loan, the defendant continued to consider their materials and it informed the plaintiffs that more information was being gathered and that a specialist had been assigned to their request. The plaintiffs failed to present evidence sufficient to raise a genuine issue of material fact that the representation was false when made. To the contrary, it appears that the defendant took steps to consider the plaintiffs' modification request while still servicing the loan. Standing alone, evidence that the defendant transferred the loan before making a decision on the modification is not evidence that its prior representation that it would consider the plaintiffs for a loan modification was false when made. Consequently, the plaintiffs raised no genuine issue of material fact and the court properly rendered summary judgment on the plaintiffs' claim of negligent misrepresentation. IV The plaintiffs claim that the court improperly granted summary judgment with respect to their CUTPA cause of action, which is based on their claim that the defendant acted in bad faith in its communications with the plaintiffs as they worked to submit a loan modification request and in transferring their loan during this process. "[ General Statutes §] 42-110b (a) provides that [n]o 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 federal trade commission 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-in other words, it is within at least the penumbra of some common law, statutory, or other established concept of unfairness; (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. A practice may be unfair because of the degree to which it meets one of the criteria or because to a lesser extent it meets all three.... Thus a violation of CUTPA may be established by showing either an actual deceptive practice . or a practice amounting to a violation of public policy." (Citation omitted; internal quotation marks omitted.) Ramirez v. Health Net of the Northeast, Inc. , 285 Conn. 1, 18-19, 938 A.2d 576 (2008). Having already determined that the plaintiffs failed to present evidence raising a genuine issue of material fact about whether the defendant made a promise to modify the loan or that the defendant misrepresented facts when it promised to review the loan for a possible modification, we determine that the plaintiffs' CUTPA claim is without merit. The note and the mortgage did not obligate the defendant to grant a loan modification, and the mortgage expressly gave the defendant the right to transfer the loan servicing rights. Accordingly, the plaintiffs failed to present evidence raising a genuine issue of material fact about whether the defendant engaged in unfair or deceptive practices, or violated any identifiable public policy in association with the plaintiffs' loan modification application. The judgment is affirmed. In this opinion the other judges concurred. The plaintiffs brought this action against Bayview Loan Servicing, LLC, (Bayview), E*Trade Savings Bank (E*Trade), Bank of America and Bank of America Home Loan Servicing, LP. On July 1, 2011, Bank of America, and Bank of America Home Loan Servicing, LP merged, leaving Bank of America as the sole surviving entity and successor in interest. Summary judgment was sought by and rendered in favor of Bank of America, individually and as successor in interest to Bank of America Home Loan Servicing, LP. Bayview and E*Trade, therefore, are not parties to this appeal, and all references to the defendant herein are to Bank of America, individually and as successor in interest to Bank of America Home Loan Servicing, LP. In their recitation of the facts and in their complaint, the plaintiffs claim that the note was signed in favor of a different lender. The only evidence of the original note and mortgage in the record was provided by the defendant in its appendix. Both the note and mortgage contain the names of the plaintiffs and the defendant, and were executed, where required, by them. Additionally, the plaintiffs submitted a copy of the assignment of the mortgage from the defendant to E*Trade in 2012, recorded on the Darien land records, that refers to the recording of the mortgage provided by the defendant in its appendix. The plaintiffs on appeal do not raise any issues related to their intentional misrepresentation or civil conspiracy claims. The mortgage was also signed by a nonparty, Patricia G. McClancy. Citing Bank of America, FSB v. Hanlon, 65 Conn.App. 577, 581, 783 A.2d 88 (2001), the defendant asserts that the burden on appeal is on the party opposing summary judgment to demonstrate that the court's decision to grant the movant's summary judgment motion was clearly erroneous. Our Supreme Court expressly has disavowed this description of the law: "In reciting the applicable standard of review when a trial court's decision to grant a motion for summary judgment is challenged on appeal, the Appellate Court correctly stated that such review is plenary.... The Appellate Court, however, also stated that, '[o]n appeal . the burden is on the . party [opposing summary judgment] to demonstrate that the trial court's decision to grant the movant's summary judgment [motion] was clearly erroneous. ' . We hereby disavow this latter statement as an inaccurate description of the law governing appellate review of summary judgment dispositions." (Citations omitted; emphasis in original; footnote omitted.) Recall Total Information Management., Inc. v. Federal Ins. Co., 317 Conn. 46, 51-52, 115 A.3d 458 (2015). The plaintiffs appear to assert that the court erred in dismissing their contract claims against all of the defendants. The court's decision applied only to the defendant individually and as successor in interest. Consequently, we cannot, and do not, address the contract claims against Bayview and E*Trade. To the extent that the plaintiffs' arguments can be read to raise a claim of promissory estoppel on the basis of any promise to consider a modification, that argument was not made before the trial court and, thus, we do not consider it. See Shook v. Bartholomew, 173 Conn.App. 813, 819, 165 A.3d 256 (2017) ; see also Practice Book § 60-5. To the extent that the plaintiffs claim that the court improperly rendered summary judgment on their claims of reckless and intentional misrepresentation, we consider these claims to be abandoned for inadequate briefing because the plaintiffs have failed to set forth the applicable law or analyze these claims. See Grasso v. Connecticut Hospice, Inc., supra, 138 Conn.App. at 768, 54 A.3d 221. That letter states: "We recently received your request for financial assistance with the above captioned loan. Bank of America, N.A. understands your situation and would like to evaluate your financial situation in order to determine whether we can help you."

12487902

In re Adelina A.

In re Adelina A.

2016-10-11

AC 38947

621

630

148 A.3d 621

148

West's Atlantic Reporter, Third Series

Connecticut Appellate Court

Connecticut

2021-08-27T20:57:14.002271+00:00

Fastcase

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

In re Adelina A.

In re Adelina A. AC 38947 Appellate Court of Connecticut. Argued September 7, 2016 Officially released October 11, 2016 David J. Reich, for the appellant (respondent mother). Tammy Nguyen-O'Dowd, assistant attorney general, with whom, on the brief, were George Jepsen, attorney general, Gregory T. D'Auria, solicitor general, and Benjamin Zivyon and Michael Besso, assistant attorneys general, for the appellee (petitioner). DiPentima, C.J., and Alvord and Pellegrino, 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. October 11, 2016, the date that this decision was released as a slip opinion, is the operative date for all substantive and procedural purposes.

4919

31311

ALVORD, J. The respondent mother, Kristina D., appeals from the judgment of the trial court terminating her parental rights with respect to her daughter, Adelina A., pursuant to General Statutes § 17a-112 (j). On appeal, the respondent claims that the trial court violated her substantive due process rights, as guaranteed by the fourteenth amendment to the United States constitution, by failing to (1) consider whether there was a less restrictive permanency plan available to "safeguard" her daughter than termination of her parental rights and (2) require the petitioner, the Commissioner of Children and Families, to "prove, by clear and convincing evidence, that there was no less restrictive" permanency plan than termination of parental rights. We determine that the record to support the respondent's constitutional claim is inadequate for review. Accordingly, we affirm the judgment of the trial court. I The following facts are undisputed or were found by the court by clear and convincing evidence. On July 27, 2013, at the age of six months, Adelina was placed by the agreement of the family and the Department of Children and Families (department) with her paternal grandfather and his fiancée, Monica, after Adelina's parents were arrested for using heroin in her presence. On September 19, 2013, the petitioner filed a neglect petition after the respondent and Adelina's father refused to cooperate with substance abuse evaluations. On December 5, 2013, the petitioner sought, and was granted, an order of temporary custody after the paternal grandfather was determined to be using heroin and abusing prescription drugs. On December 10, 2013, the paternal grandfather and Monica filed motions to intervene, but the motions were denied without prejudice. On March 24, 2014, Adelina was adjudicated neglected. That same day, the paternal grandfather and Monica renewed their motions to intervene, but, on March 31, 2014, the court denied the paternal grandfather's motion with prejudice because of his drug abuse and denied Monica's motion without prejudice because she resided with him. On April 1, 2014, Adelina was committed to the custody of the petitioner. Monica and one of the respondent's cousins continued to make efforts to intervene and become placement resources for Adelina, but by the fall of 2014, both relatives had indicated that they no longer wanted to be placement resources. At that time, the respondent and Adelina's father did not identify any additional relatives for placement, and Adelina continued to live with her legal risk foster family. On January 28, 2015, the petitioner filed a petition to terminate the respondent's parental rights. In the summer of 2015, the respondent's half brother, Victor, and his wife, Samantha, expressed their interest in becoming licensed foster parents for Adelina to the department. The respondent also indicated in her pretrial memorandum, dated July 6, 2015, that she would consider consenting to the termination of her parental rights if "a meaningful agreement for an open adoption can be reached or in the event that her brother, [Victor], is granted custody of Adelina and is ultimately able to adopt her." The department elected not to disrupt Adelina's current foster placement and not to pursue licensing Victor and Samantha. The department reasoned that because Victor and Samantha had not maintained any relationship with Adelina since her removal from her parents when she was six months old and Adelina had bonded with her current foster family, with whom she had resided since November, 2014, it was not in her best interests to have her placement altered again. The department encouraged Victor and Samantha to be a family support resource for Adelina, and they have visited with Adelina on a monthly basis. However, Victor and Samantha never filed a motion to intervene in this matter, and the respondent never filed a motion to transfer guardianship to them. On January 5 and 6, 2016, a trial was held to determine whether the court would grant the petition to terminate the respondent's parental rights. The respondent did not present any evidence concerning the viability of granting permanent guardianship to Victor and Samantha as an alternative to terminating her parental rights. However, during the trial, there was testimony from various individuals concerning Adelina's relationship with Victor and Samantha and the fact that Victor and Samantha had previously expressed interest in being placement resources for Adelina. Samantha also testified that she and Victor were still interested in being resources for Adelina. The respondent stated her preference for Adelina to be placed with Victor and Samantha during the trial as well. During her testimony, the respondent acknowledged that "[Adelina] would be best off with a family member, preferably my brother and his wife, Samantha ." During closing argument, the respondent's counsel also argued that, although the respondent was "not independently prepared to parent," termination was "not necessary because the evidence shows that she has family supports of her own that allow the child to, in fact, have stability and permanence within her own biological family." On January 22, 2016, the court granted the petition to terminate the respondent's parental rights after finding that inter alia, a statutory ground for termination existed pursuant to § 17a-112 (j) (3) (B) and that termination was in the best interests of Adelina. In a footnote in its written memorandum of decision, the court addressed the respondent's stated preference that Adelina be placed with Victor and Samantha. The court first noted that "[t]he only matter before the court is the [termination of parental rights] petition. No motion to revoke or transfer guardianship was filed and remained pending. As has been intimated throughout this memorandum, the evidence was clear that [the respondent] acknowledges she is not [in] a position to have Adelina reunified with her at any time soon." The court went on to acknowledge that the respondent's "desire is for Adelina to be placed with relatives." The court reviewed the unsuccessful efforts to place Adelina with the paternal grandfather, with Monica, and with the respondent's cousin. It also discussed how the respondent "belatedly suggested placement of the child with Victor and Samantha" and why the department decided not to disrupt Adelina's foster placement. The court concluded: "It is unknown and irrelevant if Victor and Samantha would have been approved for a foster care license due to [Victor's] past history. The issue of placement of the child is not before the court. 'Where [a child] should reside and with whom , however, are not questions that relate to whether it is in [the child's] best interests to terminate [her] relationship with [her] parents.' (Emphasis in original.) In re Denzel A. , 53 Conn.App. 827, 834, 733 A.2d 298 (1999)." (Footnote added.) This appeal followed. II On appeal, the respondent claims that the trial court violated her substantive due process rights, as guaranteed by the fourteenth amendment to the United States constitution, by failing (1) to consider whether there is a less restrictive permanency plan available to safeguard Adelina's well-being than termination of parental rights and (2) to require the petitioner to "prove, by clear and convincing evidence, that there was no less restrictive" permanency plan than termination of parental rights. The petitioner responds that the record is inadequate to review the underlying constitutional claim. We agree that the record is inadequate for review. Because the respondent did not preserve her due process claim at trial, she seeks review pursuant to State v. Golding , 213 Conn. 233, 567 A.2d 823 (1989). "Under Golding , a [party] 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 [party] 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 [party's] claim will fail. The appellate tribunal is free, therefore, to respond to the [party's] claim by focusing on whichever condition is most relevant in the particular circumstances." (Internal quotation marks omitted.) State v. Dixon , 318 Conn. 495, 511, 122 A.3d 542 (2015). "An appellant [that] has not preserved her claim before the trial court must overcome hurdles that are not imposed when the issue was properly presented to that court." In re Azareon Y. , 309 Conn. 626, 635, 72 A.3d 1074 (2013). As our Supreme Court "repeatedly has underscored . 'Golding is a narrow exception to the general rule that an appellate court will not entertain a claim that has not been raised in the trial court.' " (Emphasis in original.) Id. The court will review an unpreserved constitutional claim on appeal "only if the trial court record is adequate for appellate review." (Internal quotation marks omitted.) Id. "To determine whether the record is adequate to ascertain whether a constitutional violation occurred, we must consider the respondent's alleged claim of impropriety and whether it requires any factual predicates." Id. at 636, 72 A.3d 1074. The starting point of the respondent's argument is the proposition that due process requires a trial court to undertake a least restrictive means analysis during the adjudicative phase of a termination hearing. In her briefs and at oral argument before this court, however, the respondent repeatedly used the phrases "least restrictive placement," "least restrictive permanency plan," and "least restrictive alternative" interchangeably. The respondent never defined these similar but distinct phrases. The usage was confusing; thus, we are first compelled to clarify, here. In juvenile proceedings, there is a distinct difference between a "placement" and a "permanency plan." "Placement" refers to the temporary status of a child until such time that the court can approve a permanency plan for implementation. A placement can take a variety of forms. For example, a child can be voluntarily placed in the temporary legal and physical custody of a relative or nonrelative, or a child can be involuntarily placed in the legal custody of the petitioner, followed by a placement of the child in the physical custody of a relative or nonrelative foster parent. General Statutes § 46b-129 (d) and (j) (4). A respondent parent, relatives, and former guardians can contest a child's placement at various stages in the proceedings. For example, a respondent parent or a former legal guardian can try to change the child's placement by filing a motion to reinstate guardianship. General Statutes § 46b-129 (n) (establishing procedure for filing motion to reinstate guardianship in parent or former legal guardian). Similarly, relatives can seek to become the child's temporary custodian or guardian by filing a motion to intervene in the matter. See General Statutes § 46b-129 (d) (1) (A) and (B) (establishing right to file motion to intervene for purposes of seeking temporary custody); General Statutes § 46b-129 (d) (4) (establishing right to file motion to intervene for purposes of seeking guardianship). A "permanency plan" is the proposal for what the long-term, permanent solution for the placement of the child should be. General Statutes § 17a-111b (c) and 46b-129 (k). Our statutory scheme provides five permanency options: (1) reunification with a parent; (2) long-term foster care; (3) permanent guardianship; (4) transfer of either guardianship or permanent guardianship; or (5) termination followed by adoption. General Statutes § 17a-111b (c) and 46b-129 (k) (2). If during the course of the juvenile proceedings the child is placed in the care and custody of the petitioner, as occurred in this case, the petitioner must file a motion for review of a permanency plan within nine months of that placement. General Statutes § 46b-129 (k) (1) (A). When the petitioner files a motion to review a permanency plan, the respondent parents and qualifying relatives may file a motion in opposition to the proposed plan. General Statutes § 46b-129 (k) (1) (A). If the permanency plan is opposed, the court must hold an evidentiary hearing, at which "[t]he commissioner shall have the burden of proving that the proposed permanency plan is in the best interests of the child or youth ." General Statutes § 46b-129 (k) (1) (A). After the hearing, "the court shall approve a permanency plan that is in the best interests of the child . and takes into consideration the child's . need for permanency ." General Statutes § 46b-129 (k) (2). If the trial court approves a permanency plan of termination followed by adoption, the petitioner "shall file a petition for termination of parental rights not later than sixty days after such approval if such petition has not previously been filed ." General Statutes § 46b-129 (k) (6) (A). With this statutory framework in mind, the most precise phrase for the policy advocated by the respondent in her brief and at oral argument before this court is "least restrictive permanency plan." This selection reflects that the respondent's argument appears to be based on a synthesis of the following propositions. Due to the recognized fundamental right of parents in the care, custody, and control of their children, strict scrutiny must be applied to termination of parental rights proceedings. Strict scrutiny requires the state to advance a compelling state interest by employing the least restrictive means available. Consistent with that standard, the respondent argues that once a court determines that reunification with a respondent parent is not a viable permanency plan, it must consider whether any other permanency plan short of termination of parental rights exists that will protect the state's compelling interest in the child's best interests. It flows from the posited logic of the respondent's argument that "unless there is some valid alternative to termination, it cannot violate substantive due process to terminate parental rights. Therefore, the record must reflect whether there is a valid alternative permanency plan to termination and adoption" that adequately would safeguard the child's best interests. (Footnote omitted.) In re Azareon Y. , supra, 309 Conn. at 637, 639, 72 A.3d 1074. In this case, the respondent argues that granting temporary or permanent guardianship to Victor and Samantha was a less restrictive permanency plan than termination followed by adoption. Therefore, she argues that due process required the court to consider this alternative to termination followed by adoption and the petitioner to prove by clear and convincing evidence that this Victor-Samantha permanency plan was not in the best interests of Adelina. She further argues that the record is adequate to review this claim because, unlike in In re Azareon Y. , she did "identif[y] [this] least restrictive placement and the court did not consider that placement." The respondent is correct that one of the deficiencies in the record in In re Azareon Y. was the fact that the respondent mother never represented that the relative that actually had custody of the children, the children's aunt, was amenable to either long-term foster care or permanent guardianship, nor did she propose such an option to the trial court. In re Azareon Y. , supra, 309 Conn. at 637 n.7, 72 A.3d 1074. However, the precise reason that our Supreme Court held that the record was inadequate for review in In re Azareon Y. was that "there [was] an inadequate basis in the record for the trial court to determine whether there [were] available alternatives to termination that adequately would safeguard the children's best interests." (Emphasis added.) Id. at 638-39, 72 A.3d 1074. There are two problems associated with the record in this case. First, there was no evidence presented at trial concerning the viability of the Victor-Samantha permanency plan. The respondent never proposed guardianship with Victor and Samantha as an alternative permanency plan, nor did she, Victor, or Samantha ever file an application for permanent guardianship. While at trial Samantha testified that she and Victor would be willing to be resources for Adelina, as the trial court noted in its memorandum of decision, "[i]t is unknown . if Victor and Samantha would have been approved for a foster care license due to his past history." See footnote 8 of this opinion. "Thus, in order to make the requisite finding [of whether there is a valid alternative permanency plan to termination], the evidence would have to be opened. In cases of unpreserved constitutional claims, [our Supreme Court] consistently has refused to order a new trial when it would be necessary to elicit additional evidence to determine whether the constitutional violation exists." In re Azareon Y. , supra, 309 Conn. at 639, 72 A.3d 1074. Second, it is unclear whether the trial court concluded that the petitioner had proven by clear and convincing evidence that termination was the only option available to satisfy the best interests of Adelina. The trial court concluded that "termination of the parental rights of mother and father as to Adelina is in the best interests of such child." As the respondent conceded at the trial and on appeal to this court, reunification was not a viable permanency plan. The dearth of evidence as to whether Victor and Samantha would have committed to, and been approved for, long-term foster care or permanent guardianship would not have precluded the trial court from reasonably concluding that termination followed by adoption was the only permanency plan in the best interests of Adelina. "Under State v. Golding . '[i]f 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 [respondent's] claim.' " In re Azareon Y. , supra, 309 Conn. at 642, 72 A.3d at 1083. The judgment is affirmed. In this opinion the other judges concurred. The trial court also rendered judgment terminating the parental rights of the respondent father with the father's consent. Because the respondent father is not a party to this appeal, respondent in this opinion refers to Kristina D. In her brief to this court, the respondent alternatingly claimed that substantive due process requires the trial court (a) "to consider and place a child in the least restrictive placement that will safeguard the child" and (b) to "consider the least restrictive placement." (Emphasis added.) In her reply brief and at oral argument before this court, the respondent clarified that her position is that the trial court must consider , but is not required to place the child in, the least restrictive permanency location. Monica is also related to Adelina, as she is the cousin of Adelina's paternal grandmother. The December 24, 2014 social study for the termination of parental rights, which was entered into evidence, addressed the possibility of the respondent's half brother, Victor, being a placement resource. The report stated that "Mother reported [Victor] is unable to take on responsibility of caring for Adelina at this time. He has not contacted the Department to inquire about [Adelina] since she has been in foster care." Samantha testified at the termination hearing that she and Victor have a very distant relationship with the respondent, and they are "100 percent distanced . from the [respondent's] family because [Victor] knows that the more that you are around them, the more you, kind of, get sucked into that lifestyle, and he's just-has a zero tolerance policy for it, and we've, kind of, tried to keep our distance." Nevertheless, Victor and Samantha had seen Adelina occasionally prior to her removal from the respondent's care, and Victor saw her very briefly when he picked her up after the respondent was arrested in July 2013. Victor and Samantha did not have contact with her for a prolonged period after that. Samantha testified that she and Victor believed that Adelina remained in the care of Monica up until the summer of 2015. The trial concerned the termination of only the respondent's parental rights. On October 14, 2015, Adelina's father had executed a written consent to the termination of his parental rights, which the court accepted after canvassing him. The respondent did attempt to present evidence about the viability of placing Adelina with Victor and Samantha, but the court repeatedly sustained relevancy objections to this line of questioning because the only pending matter was a petition to terminate parental rights. The respondent does not challenge the court's evidentiary rulings on appeal. Victor was placed in residential treatment through juvenile parole in 1998 and was convicted of assault in the second degree in 2005. The addendum to the social study in support of the petition for termination of parental rights, which was admitted into evidence, also alluded to "substance abuse and mental health histories" in Victor and Samantha's household, but the trial court did not make any findings concerning that history in its memorandum of decision. The respondent contends that she preserved this constitutional issue for appeal by arguing at trial that termination was unnecessary because members of her own family could provide Adelina with stability and permanence and by stating her preference that Adelina be placed with Victor and Samantha. However, "[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." Practice Book § 60-5. The respondent never argued at trial that substantive due process, as guaranteed by the fourteenth amendment to the United States constitution, requires (1) the trial court to consider whether there is a less restrictive permanency plan available to safeguard a child's well-being than termination of parental rights and (2) the petitioner to prove, by clear and convincing evidence, that there is no less restrictive permanency plan other than termination of parental rights. By failing to raise this constitutional issue distinctly at trial, the respondent failed to preserve it for appeal. See In re Joseph M. , 158 Conn.App. 849, 859, 120 A.3d 1271 (2015) ("[A] hearing on a petition to terminate parental rights consists of two phases, adjudication and disposition.... In the adjudicatory phase, the trial court determines whether one of the statutory grounds for termination of parental rights . exists by clear and convincing evidence.... In the dispositional phase of a termination of parental rights hearing, the trial court must determine whether it is established by clear and convincing evidence that the continuation of the [parent's] parental rights is not in the best interests of the child.") (Internal quotation marks omitted.) "Any person or organization awarded the temporary custody of a minor under section 45a-607, shall have the following rights and duties regarding the minor: (1) The obligation of care and control; (2) the authority to make decisions regarding routine medical treatment or school counseling and emergency medical, psychological, psychiatric or surgical treatment; and (3) other rights and duties which the court of probate having jurisdiction may approve." General Statutes § 45a-608. A "guardian" is a person who has the authority and obligations of "guardianship," such as "[t]he obligation of care and control" and "the authority to make major decisions affecting the minor's education and welfare ." (Internal quotation marks omitted.) General Statutes § 45a-604 (5) and (6). " 'Permanent guardianship' means a guardianship . that is intended to endure until the minor reaches the age of majority without termination of the parental rights of the minor's parents...." General Statutes § 45a-604 (8). The Adoption and Safe Families Act (ASFA), Pub. L. No. 105-89, 111 Stat. 2115 (1997), and parallel state law, has established a clear preference for termination followed by adoption when reunification with a parent is not a viable permanency plan. For example, ASFA requires the petitioner to engage concurrent permanency planning from the inception of the case. 42 U.S.C. § 671 (a) (15) (F) (2012). See also General Statutes § 17a-110a. Concurrent permanency planning requires the petitioner "to identify permanent placements and prospective adoptive parents"; General Statutes § 17a-110a (b) ; while the department continues to make reasonable efforts to reunite the child with the parents. General Statutes § 17a-111b (outlining department's duties concerning reunification of child with his or her parent). This enables the court to commence permanent placement or adoption proceedings immediately after termination of parental rights is granted. General Statutes § 17a-110a (b). ASFA also requires the petitioner to file a petition for termination of parental rights if the child has been under the responsibility of the state for fifteen of the last twenty-two months, subject to limited exceptions. 42 U.S.C. § 675 (5) (E) (2012) ; see 45 C.F.R. § 1356.21 (i) ; see also General Statutes § 17a-111a (a). Finally, state law requires a court to find by clear and convincing evidence that adoption is not possible or appropriate prior to issuing an order for permanent legal guardianship. General Statutes § 46b-129 (j) (6) (B). These statutory mandates implicitly recognize that children develop attachments to the caregivers while in foster care, and they reflect the legislature's desire to shift the focus of juvenile proceedings from parental rights to the child's right to safety, stability, and permanency. See, e.g., General Statutes § 17a-110a (a) ("[i]n order to achieve early permanency for children, decrease children's length of stay in foster care, reduce the number of moves children experience in foster care and reduce the amount of time between termination of parental rights and adoption, the [petitioner] shall establish a program for concurrent permanency planning"). The respondent's argument of course assumes that the strength of her fundamental rights with respect to her child is undiminished by the time of a termination hearing. "The constitutionally protected interest of parents to raise their children without interference undeniably warrants deference . [but] [t]here are . limitations on . parental rights. Some of these limitations arise out of an appreciation of the state's long recognized interests as parens patriae. . Furthermore, it is unquestionable that in the face of allegations that parents are unfit, the state may intrude upon a family's integrity." (Citations omitted; internal quotation marks omitted.) In re Jeisean M. , 270 Conn. 382, 395-96, 852 A.2d 643 (2004), quoting Roth v. Weston , 259 Conn. 202, 224, 789 A.2d 431 (2002). That is why our Supreme Court has held that "it is clear that a requirement of an allegation such as abuse, neglect or abandonment would provide proper safeguards to prevent families from defending against unwarranted intrusions and would be tailored narrowly to protecting the interest at stake." (Internal quotation marks omitted.) Id. at 396, 852 A.2d 643, quoting Roth v. Weston , supra, at 224, 789 A.2d 431. Notably, the respondent in this case was not only accused of being an unfit parent, but she was twice adjudicated unfit. Prior to the termination hearing, the court found that Adelina was neglected and, therefore, committed her to the care of the petitioner. At the termination hearing, the court found by clear and convincing evidence that the respondent "is in no position to provide the care and attention that Adelina requires." Presumably, the least restrictive alternative will be either long-term foster care or permanent guardianship with an individual that will permit the parent to interact with the child when she desires to do so. The respondent does not address procedurally or substantively how the court can consider one of these less restrictive permanency plans if an alternative permanency plan or a petition for guardianship is never filed, as occurred in this case. The respondent relied extensively on the respondent's appellate brief in In re Azareon Y. , and therefore, the nature of their due process claims is virtually identical. Although, the record apparently did reflect that "[t]he aunt did indicate that she was amenable to an open adoption, an arrangement that would provide the respondent with visitation, but at the aunt's discretion." In re Azareon Y. , supra, 309 Conn. at 637 n.15, 72 A.3d 1074. In her opposition to the petitioner's permanency plan and in her proposed orders, the respondent maintained that reunification was still a viable permanency plan. It was only in closing argument that the respondent argued that termination was unnecessary because she had family resources she could rely on to help her appropriately care for Adelina until she could successfully rehabilitate herself. Victor did not testify at the termination hearing. It is noteworthy that, at the time of the termination hearing, Adelina had resided with nonrelative foster care providers for more than one year. A court cannot issue an order for permanent legal guardianship unless the court finds by clear and convincing evidence that a statutory ground for termination of parental rights exists, adoption is not possible or appropriate, and "[t ]he child . has resided with the proposed permanent legal guardian for at least a year ." (Emphasis added.) General Statutes § 46b-129 (j) (6) (A) and (D). Therefore, approving a permanency plan of permanent guardianship with Victor and Samantha would have deprived Adelina of a stable and permanent placement for at least another year. For a toddler, this is a significant period of time.

12489977

STATE of Connecticut v. Mitchell HENDERSON

State v. Henderson

2017-05-16

AC 38381

74

88

163 A.3d 74

163

West's Atlantic Reporter, Third Series

Connecticut Appellate Court

Connecticut

2021-08-27T20:57:14.018555+00:00

Fastcase

STATE of Connecticut v. Mitchell HENDERSON

STATE of Connecticut v. Mitchell HENDERSON AC 38381 Appellate Court of Connecticut. Argued January 9, 2017 Officially released May 16, 2017 Moira L. Buckley, assigned counsel, for the appellant (defendant). James M. Ralls, assistant state's attorney, with whom, on the brief, were Anne F. Mahoney and Gail P. Hardy, state's attorneys, for the appellee (state). Keller, Prescott and Harper, Js.

7013

43492

HARPER, J. The defendant, Mitchell Henderson, appeals from the judgment of the trial court denying his motion to correct an illegal sentence. The defendant was sentenced to a total effective term of forty-five years imprisonment, suspended after thirty-five years, with five years probation, following his conviction of robbery in the first degree, as enhanced for being a persistent dangerous felony offender, pursuant to General Statutes (Rev. to 1991) § 53a-40 (a), and attempt to escape from custody, as enhanced for being a persistent serious felony offender, pursuant to § 53a-40 (b). On appeal, the defendant claims that the court improperly denied his motion to correct an illegal sentence because his classification as a persistent dangerous felony offender and a persistent serious felony offender, and his subsequent enhanced sentence violated the multiple punishment prohibition of the double jeopardy clause. Alternatively, he claims that punishment under both persistent offender provisions runs contrary to the legislature's intent. We affirm the judgment of the court. In State v. Henderson , 37 Conn.App. 733, 658 A.2d 585, cert. denied, 234 Conn. 912, 660 A.2d 355 (1995), this court set forth the following facts and procedural history underlying the defendant's criminal conviction: "On the afternoon of January 17, 1992, the victim, Victorene Hazel, and her companion, Codella Webley, crossed Baltimore Street in Hartford after leaving the Shawmut Bank. When the two women reached the corner of Baltimore Street and Homestead Avenue, they were approached by the defendant who demanded that Hazel hand over her purse to him. The defendant was standing in front of Hazel, at a distance of one and one-half to two feet. Her view of the defendant was clear and unobstructed. After Hazel refused to turn over her purse, the defendant pulled out a knife, grabbed her by the shirt and hit her. When he grabbed Hazel, who had a heart condition, she experienced pain in her chest. The defendant threatened to kill her if she did not give him the purse. When he swung the knife, she freed herself from his grasp and ran in the direction of the Shawmut Bank with the defendant chasing her. Hazel's purse fell off her shoulder as she was running and the defendant picked it up. Hazel entered the bank screaming that she had been robbed and needed help. When Webley reached the bank, she noticed that Hazel was breathing heavily, holding her chest and saying, 'My heart, my heart.' "At approximately the same time, Howard Fraser and his cousin, Earl Forrest, were driving on Homestead Avenue when they stopped to look up a telephone number. As Forrest was looking for the number, Fraser noticed from a distance of five to seven yards the victim struggling with her assailant. As he and Forrest were about to drive off, he saw the defendant grab the purse from Hazel. When the victim began to scream, Fraser realized that she was being robbed. Fraser watched the defendant run up Baltimore Street and enter onto private residential property. Fraser realized that the defendant would have to exit on Kent Street, the street parallel to Baltimore Street. Fraser and Forrest drove to Kent Street in anticipation of seeing the defendant. They saw him running down Kent Street toward Albany Avenue with a purse under one arm. Fraser opened the passenger door as they drove up next to the defendant. Forrest told the defendant that they were the police and ordered him not to move. Fraser then jumped out the passenger door and grabbed the defendant. When the defendant resisted, Forrest joined Fraser in an attempt to subdue the defendant. Both Fraser and Forrest repeatedly called for help as they were struggling with the defendant. The defendant struck Fraser during the struggle, and Fraser suffered a wrist injury from striking the defendant. "Officer Douglas Frederick of the Hartford police department arrived approximately five minutes after the struggle had begun and saw the defendant holding the victim's purse. While the defendant was struggling with Forrest and Fraser, the victim's purse fell and its contents scattered onto the street. Frederick's attempt to handcuff the defendant was unsuccessful because he continued to resist fiercely. Frederick radioed for assistance and, finally, with the help of other police officers, managed to get the defendant into the police cruiser. Frederick then informed the defendant that he was under arrest. "At trial, Fraser identified the defendant in court as the man he had caught running down Kent Street with the victim's purse and who had earlier robbed Hazel on Homestead Avenue. "After Hazel and Webley left the bank, a man in a truck informed them that the robber had been apprehended on Kent Street. The man drove both women to Kent Street. After getting out of the truck, Hazel and Webley saw the defendant sitting in the police cruiser. Frederick had put the victim's purse on top of the cruiser for safekeeping while he was trying to restrain the defendant. Frederick noticed two women running down Kent Street toward his cruiser and he heard Hazel yelling, 'That's him, he robbed me.' Frederick asked both Hazel and Webley to make sure that the man in the cruiser was indeed the robber. Without any difficulty, both women positively identified the defendant as the robber. The weather was clear and there was adequate sunlight to enable the women to make the identification. Although Frederick was able to recover the purse, his search of the defendant did not produce a knife. "After telling the defendant that he was under arrest and placing him in the police cruiser, Frederick transported him from the scene. The defendant yelled obscenities and threatened to kill the officer. As Frederick drove down Kent Street toward Albany Avenue, the defendant became increasingly violent. The defendant kicked out the rear window of the cruiser and attempted to climb out while the cruiser was in motion. The defendant was able to get his upper torso out of the rear window. Frederick stopped the car and radioed for assistance and an ambulance. Frederick then pulled the defendant out of the cruiser and sat on him until help arrived. When the ambulance arrived, the defendant was put in a body bag and transported to St. Francis Hospital. The defendant was treated for several cuts he had sustained while attempting to climb out of the rear window of the cruiser." Id., at 736-39, 658 A.2d 585. The defendant subsequently was charged and, following a jury trial, convicted of robbery in the first degree in violation of General Statutes § 53a-134(a)(3), and attempt to escape from custody in violation of General Statutes § 53a-171 and 53a-49. In addition to the substantive criminal offenses, the defendant was also charged in two part B informations as a persistent dangerous felony offender pursuant to § 53a-40 (a) regarding his conviction of robbery in the first degree and as a persistent serious felony offender pursuant to § 53a-40 (b) and (g) regarding his conviction of attempted escape. The defendant pleaded guilty to both persistent felony offender charges under the Alford doctrine. On December 14, 1993, the court imposed an enhanced total effective sentence of forty-five years imprisonment, execution suspended after thirty-five years, and five years of probation. With respect to the defendant's conviction as a persistent dangerous felony offender, the court sentenced the defendant, pursuant to § 53a-40 (f), to twenty-five years imprisonment. With respect to the defendant's conviction as a persistent serious felony offender, the court sentenced the defendant, pursuant to § 53a-40 (g), to twenty years imprisonment, execution suspended after ten years, followed by five years of probation, consecutive to his robbery sentence. In 1995, this court affirmed the defendant's conviction on direct appeal. Id., at 736, 658 A.2d 585. On September 11, 2014, the defendant filed a motion to correct an illegal sentence. In support of his motion, the defendant claimed that his sentence was illegal because it violated the multiple punishment provision of the double jeopardy clause, and that his enhanced sentence runs contrary to the legislative intent of § 53a-40. The court denied the defendant's motion to correct an illegal sentence and issued a supporting memorandum of decision. In its memorandum of decision, the court concluded that the defendant's classification as a persistent dangerous felony offender and a persistent serious felony offender pursuant to § 53a-40 (a) and (b), respectively, and his subsequent enhanced sentence pursuant to § 53a-40 (f) and (g) did not violate the double jeopardy clause's prohibition against multiple punishments for the same offense, and that his conviction did not run contrary to the legislature's intent. With respect to the defendant's double jeopardy argument, the court reasoned that the defendant's two persistent felony offender sentence enhancements did not arise from the same transaction because the enhancements were not substantive criminal offenses, but simply a harsher penalty imposed for his conviction of robbery in the first degree and attempt to escape from custody. In rejecting the defendant's claim that his enhanced sentence runs contrary to the legislature's intent, the court observed that the plain language of the relevant persistent felony offender provisions did not support the defendant's claim that his classification as a persistent dangerous felony offender under § 53a-40 (a) precluded his classification as a persistent serious felony offender under § 53a-40 (b), or vice versa. On appeal, the defendant claims that the court improperly denied his motion to correct an illegal sentence in two respects: (1) his sentence violates the double jeopardy clause's prohibition against multiple punishments for the same offense; and (2) his sentence runs contrary to the legislature's intent. We address each of these arguments in turn. I The defendant asserts that the court improperly denied his motion to correct an illegal sentence because his classifications, and resulting enhanced sentence, as both a persistent dangerous felony offender and a persistent serious felony offender, violate the double jeopardy clause's prohibition against multiple punishments for the same offense. Specifically, he argues that the two persistent felony offender classifications arose out of the same occurrences because they were both based on his prior felony convictions. Further, he contends that § 53a-40 (a) and (b) are the same offense under Blockburger v. United States , 284 U.S. 299, 304, 52 S.Ct. 180, 76 L.Ed. 306 (1932), because § 53a-40 (b) does not require proof of any fact that § 53a-40 (a) does not also require. In response, the state argues that the defendant misapplies the Blockburger test because it is the elements of the underlying substantive charges of which he was convicted that are relevant in determining whether a double jeopardy violation exists, rather than the elements of the persistent felony offender charges which serve as the bases of the enhancement requirements of the persistent felony offender provisions, and the charges against the defendant arose from separate transactions. We agree with the state. As a preliminary matter, we review the trial court's authority to correct an illegal sentence. Our Supreme Court "has held that the jurisdiction of the sentencing court terminates once a defendant's sentence has begun, and, therefore, that court may no longer take any action affecting a defendant's sentence unless it expressly has been authorized to act. State v. Walzer , 208 Conn. 420, 424-25, 545 A.2d 559 (1988) ; see also State v. Mollo , 63 Conn.App. 487, 490, 776 A.2d 1176, cert. denied, 257 Conn. 904, 777 A.2d 194 (2001) ; State v. Tuszynski , 23 Conn.App. 201, 206, 579 A.2d 1100 (1990). Practice Book § 43-22, which provides the trial court with such authority, provides that [t]he judicial authority may at any time correct an illegal sentence or other illegal disposition, or it may correct a sentence imposed in an illegal manner or any other disposition made in an illegal manner. An illegal sentence is essentially one which either exceeds the relevant statutory maximum limits, violates a defendant's right against double jeopardy, is ambiguous, or is internally contradictory. State v. McNellis , 15 Conn.App. 416, 443-44, 546 A.2d 292, cert. denied, 209 Conn. 809, 548 A.2d 441 (1988). We previously have noted that a defendant may challenge his or her criminal sentence on the ground that it is illegal by raising the issue on direct appeal or by filing a motion pursuant to § 43-22 with the judicial authority, namely, the trial court. See Copeland v. Warden , 225 Conn. 46, 47 n.2, 621 A.2d 1311 (1993)." (Internal quotation marks omitted.) State v. Tabone , 279 Conn. 527, 533-34, 902 A.2d 1058 (2006). "Ordinarily, a claim that the trial court improperly denied a defendant's motion to correct an illegal sentence is reviewed pursuant to the abuse of discretion standard." Id., at 534, 902 A.2d 1058. In the present case, however, the defendant's double jeopardy claim presents a question of law, over which we exercise plenary review. See State v. Burnell , 290 Conn. 634, 642, 966 A.2d 168 (2009) ; State v. Tabone , supra, 279 Conn. at 534, 902 A.2d 1058. "The double jeopardy clause of the fifth amendment to the United States constitution provides: [N]or shall any person be subject for the same offense to be twice put in jeopardy of life or limb. The double jeopardy clause [applies] to the states through the due process clause of the fourteenth amendment.... This constitutional guarantee prohibits not only multiple trials for the same offense, but also multiple punishments for the same offense in a single trial.... Although the Connecticut constitution does not include a double jeopardy provision, the due process guarantee of article first, § 9, of our state constitution encompasses protection against double jeopardy.... "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. Blockburger v. United States [supra, 284 U.S. [at] 304 [52 S.Ct. 180] ]. This test is a technical one and examines only the statutes, charging instruments, and bill of particulars as opposed to the evidence presented at trial." (Internal quotation marks omitted.) State v. Bernacki , 307 Conn. 1, 9, 52 A.3d 605 (2012), cert. denied, 569 U.S. 918, 133 S.Ct. 1804, 185 L.Ed.2d 811 (2013). However, "we are not limited to a review of the state's information in order to determine whether the defendant's crimes arose from the same act or transaction." State v. Morales , 164 Conn.App. 143, 152, 136 A.3d 278, cert. denied, 321 Conn. 916, 136 A.3d 1275 (2016). "[R]ather, we are permitted to look at the evidence presented at trial." Id. A We turn first to whether the charges of which the defendant was convicted arose out of the same act or transaction. The defendant argues that his classification as a persistent dangerous felony offender and as a persistent serious felony offender arose from the same circumstances because his same, prior felony conviction served as the basis for both classifications and the resulting enhanced sentence. Although it is true that the defendant's same, prior felony conviction gave rise to both of his persistent felony offender classifications, he is mistaken that his prior conviction is the relevant "act or transaction" under a double jeopardy analysis. Our Supreme Court previously observed that "[a] person accused of being a persistent dangerous felony offender is not charged with a crime separate from the substantive crime which forms the first part of the indictment against him.... The only function of the separate judicial proceeding on the defendant's status as a persistent dangerous felon is to permit an enhanced sentence for conviction of the underlying substantive crime." (Internal quotation marks omitted.) State v. Jones-Richards , 271 Conn. 115, 121, 855 A.2d 979 (2004) ; see also State v. Velasco , 253 Conn. 210, 224, 751 A.2d 800 (2000) ("§ 53a-40 constitutes a sentence enhancement provision, and not an independent criminal offense"); cf. Graham v. West Virginia , 224 U.S. 616, 628, 32 S.Ct. 583, 56 L.Ed. 917 (1912) (recidivist information "is not an information of an offence . but of a fact, namely, that the prisoner has already been convicted of an offence" [internal quotation marks omitted] ). In light of the foregoing, the proper inquiry in determining whether the defendant's charges arose under the same transaction or occurrence is to examine the underlying facts supporting the defendant's conviction of robbery in the first degree and attempt to escape from custody. See State v. Morales , supra, 164 Conn.App. at 152-53, 136 A.3d 278. This court on direct appeal described two separate phases of the defendant's conduct that gave rise to his conviction. State v. Henderson , supra, 37 Conn.App. at 736, 658 A.2d 585. With respect to the defendant's conviction of robbery in the first degree, this court noted that the defendant demanded that the victim hand over her purse, pulled out a knife, and retrieved the purse as the victim fled. Id. With respect to the defendant's conduct supporting his conviction of attempt to escape from custody, this court noted that following the robbery, the defendant took several steps in an effort to avoid arrest. Id., at 737, 658 A.2d 585. In particular, the defendant initially resisted one police officer's attempt to restrain him, and his actions required the effort of several police officers to eventually arrest him. Id., at 738, 658 A.2d 585. Further, the defendant, while restrained in the police car, kicked out the rear window and attempted to climb out. Id. It is clear that the conviction of robbery in the first degree and attempt to escape from custody did not arise from the same act or transaction. The defendant's conduct relating to his conviction of robbery in the first degree is temporally and substantively distinct from his conduct relating to his conviction of attempt to escape from custody. Thus, the defendant has failed to prove that his charges arose from the same act or transaction. B Moreover, even if we were to conclude that the charges arose from the same act or transaction, the defendant's double jeopardy claim fails to satisfy the second prong of our inquiry because robbery in the first degree and attempt to escape from custody are not the same offenses. To satisfy the elements of robbery in the first degree pursuant to § 53a-134(a)(3), the state was required to prove that the defendant committed the crime of robbery, as defined in General Statutes § 53a-133, and "use[d] or threaten[ed] the use of a dangerous instrument." General Statutes § 53a-134(a)(3). "To prove that a defendant is guilty of robbery, the state must prove that the defendant had the specific intent to commit a larceny and that the larceny was committed through the use or threatened use of force.... [T]he intent element of robbery relates to the commission of the larceny and not to the use or threatened use of physical force.... Additionally, the specific intent required to prove an attempted robbery is no different from the specific intent required to commit a robbery, as [i]t is plain from a reading of General Statutes § 53a-49(a) that the intent required for attempt liability is the intent required for the commission of the substantive crime." (Citations omitted; internal quotation marks omitted.) State v. Jordan , 135 Conn.App. 635, 655-56, 42 A.3d 457 (2012), rev'd in part on other grounds, 314 Conn. 354, 102 A.3d 1 (2014). On the other hand, to satisfy the elements of attempt to escape from custody, the state was required to show that the accused was (1) in lawful custody, (2) charged with a felony, and (3) took a substantial step in a course of conduct planned to result in escape from such custody. See General Statutes § 53a-49(a)(2) and 53a-171. After review of the elements of the offenses of which the defendant was convicted, it is clear that his conviction of robbery in the first degree is a "conceptually separate and distinct offense"; State v. Santiago , 145 Conn.App. 374, 382, 74 A.3d 571, cert. denied, 310 Conn. 942, 79 A.3d 893 (2013) ; from his conviction of attempt to escape from custody. The offenses do not share any similar elements, and both require proof of facts that the other does not. See id., at 382-84, 74 A.3d 571. Thus, the defendant's conviction cannot constitute the same offense under Blockburger . Accordingly, we conclude that the defendant's felony offender classifications and the resulting enhanced sentences do not violate the double jeopardy clause's prohibition against multiple punishments for the same offense because the offenses of which the defendant was convicted did not arise out of the same act or transaction and do not constitute the same offense. II The defendant also claims that the court improperly denied his motion to correct an illegal sentence because our legislature did not intend to simultaneously punish an individual as both a persistent dangerous felony offender and as a persistent serious felony offender. The state contends the opposite. Specifically, the state argues that the plain language and the legislative history of the relevant persistent felony offender provisions do not limit the application of sentence enhancements to one offense when the defendant stands convicted of multiple qualifying offenses. We agree with the state. The following legal principles guide our discussion. "When the conclusion reached under Blockburger is that the two crimes do not constitute the same offense, the burden remains on the defendant to demonstrate a clear legislative intent to the contrary. See State v. Miranda , 260 Conn. 93, 127, 794 A.2d 506, cert. denied, 537 U.S. 902, 123 S.Ct. 224, 154 L.Ed.2d 175 (2002) ; State v. Snook , [210 Conn. 244, 264, 555 A.2d 390, cert. denied, 492 U.S. 924, 109 S.Ct. 3258, 106 L.Ed.2d 603 (1989) ] . State v. Gonzales , 123 N.M. 337, 342, 940 P.2d 185 (App. 1997) (burden does not shift away from defendant once it is determined that defendant's claim fails Blockburger test)." (Citation omitted; footnote omitted.) State v. Alvaro F ., 291 Conn. 1, 12-13, 966 A.2d 712, cert. denied, 558 U.S. 882, 130 S.Ct. 200, 175 L.Ed.2d 140 (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.... 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 ." (Internal quotation marks omitted.) State v. Tabone , supra, 279 Conn. at 534-35, 902 A.2d 1058. "It also is well established that, [i]n cases in which more than one [statutory provision] is involved, we presume that the legislature intended [those provisions] to be read together to create a harmonious body of law . and we construe the [provisions], if possible, to avoid conflict between them." (Internal quotation marks omitted.) State v. Victor O ., 320 Conn. 239, 248, 128 A.3d 940 (2016). We begin our analysis by first considering the text of the relevant persistent felony offender provisions. As we previously explained, the applicable provisions of the persistent felony offender statute, § 53a-40, provide in relevant part: "(a) A persistent dangerous felony offender is a person who (1) stands convicted of manslaughter, arson, kidnapping, sexual assault in the first or third degree, sexual assault in the third degree with a firearm, robbery in the first or second degree , or assault in the first degree; and (2) has been, prior to the commission of the present crime, convicted of and imprisoned under a sentence to a term of imprisonment of more than one year or of death, in this state or in any other state or in a federal correctional institution, for any of the following crimes: (A) The crimes enumerated in subdivision (1), the crime of murder, or an attempt to commit any of said crimes or murder . "(b) A persistent serious felony offender is a person who (1) stands convicted of a felony; and (2) has been, prior to the commission of the present felony, convicted of and imprisoned under an imposed term of more than one year or of death, in this state or in any other state or in a federal correctional institution, for a crime. This subsection shall not apply where the present conviction is for a crime enumerated in subdivision (1) of subsection (a) and the prior conviction was for a crime other than those enumerated in subsection (a) of this section...." (Emphasis added.) After review of the plain language of these provisions, it is clear that the language does not align with the defendant's argument that the legislature intended only one recidivist enhancement to apply to the conviction of multiple current charges. Instead, the relevant subsections permit a sentence enhancement as a persistent felony offender once certain conditions are met. Both of the substantive criminal charges of which the defendant was convicted satisfy those requirements, and nothing therein suggests that the conviction of only one of those charges is subject to an enhanced sentence. It is important to remember that the defendant's sentence was enhanced as a persistent dangerous felony offender and as a serious felony offender on the basis of two distinct underlying criminal offenses. The defendant's conviction of robbery in the first degree and attempt to escape from custody independently satisfy the requirements of the relevant provisions, and the conviction on each charge was subject to an enhanced sentence. If, for instance, the defendant was convicted solely of robbery in the first degree, and the state sought to enhance that sentence under § 53a-40 (b), the defendant's argument may have merit. That particular subsection expressly precludes an enhancement of a sentence on a conviction of robbery in the first degree. Under the circumstances of the present case, however, the sentence on the defendant's conviction of robbery in the first degree was enhanced pursuant to § 53a-40 (a), and his sentence on the conviction of attempt to escape from custody was enhanced pursuant to § 53a-40 (b). Thus, the defendant's status as a persistent felony offender and the resulting sentence enhancements therefrom, does not run contrary to the plain language of the relevant persistent felony offender provisions. Ordinarily, our analysis would end once "the meaning of [the relevant provision] is plain and unambiguous and does not yield absurd or unworkable results ." (Internal quotation marks omitted.) State v. Tabone , supra, 279 Conn. at 535, 902 A.2d 1058. The defendant, however, expressly bases his argument-which is that the legislature intended for one recidivist enhancement to apply to only one conviction when the defendant stands convicted of multiple current charges-on (1) a comment regarding the interpretation of the persistent felony offender statute by the Commission to Revise the Criminal Statutes, and (2) our Supreme Court's holding in State v. Ledbetter , 240 Conn. 317, 692 A.2d 713 (1997). We address each in turn. A First, the defendant argues that the comment by the Commission to Revise the Criminal Statutes regarding § 53a-40 supports his argument. The commission's comment states in relevant part: "This section creates a new scheme of sentencing relating to recidivists. It singles out three types of recidivists for special treatment: (1) persistent dangerous felony offender; (2) persistent serious felony offender; and (3) persistent larceny offender. "The purpose of the definition of persistent dangerous felony offender is to identify those persons who have shown themselves to be repeatedly physical dangerous to others. The essential elements of the definition of a persistent dangerous felony offender are: (1) a present conviction of the dangerous felonies listed in subsection (a) (1); and (2) at least one prior dangerous felony conviction and imprisonment therefor for more than one year. See prior section 54-121 for the comparable provisions. The consequence of being found to be a persistent dangerous felony offender is that the court may . impose a life sentence as for a class A felony. Whether to do so is a matter left to the discretion of the court. "A persistent [serious] felony offender (as opposed to a persistent dangerous felony offender) is one who stands convicted of a felony and who has at least once before been convicted of a felony and imprisoned therefor for more than one year. The consequence of being found to be a persistent [serious] felony offender is that the court may, in its discretion, impose the sentence authorized for the next more serious degree of felony. Thus, a person convicted of a class C felony who has a prior felony conviction and imprisonment on his record may be sentenced as a class B felon. The purpose of the last section of subsection (b) is to make clear . that this escalation to the next higher degree does not apply where the present conviction is for one of the dangerous felonies listed in subsection (a) (1), since the authorized maximum sentences for those offenses are already high, and it would otherwise be possible to reach a life sentence under subsection (b) where the requirements of subsection (a) had not been met." Commission to Revise the Criminal Statutes, Penal Code Comments, Conn. Gen. Stat. Ann. § 53a-40 (West 2012), commission comment, p. 661. The defendant takes issue with the final sentence of the commission's comment, which provides that "the last section of subsection (b) is to make clear, however, that this escalation to the next higher degree does not apply where the present conviction is for one of the dangerous felonies listed in subsection (a) (1), since the authorized maximum sentences for those offenses are already high, and it would otherwise be possible to reach a life sentence under subsection (b) where the requirements of subsection (a) had not been met." Id. The defendant argues that his conviction of robbery in the first degree, an offense listed in subsection (a)(1) of § 53a-40, precludes a sentence enhancement under subsection (b) of § 53a-40. This argument is without merit. The commission's comment simply clarifies that subsection (b) limits the sentence for certain enumerated offenses, those described in subsection (a) (1), from being enhanced under subsection (b) because those enumerated offenses already carry a harsh punishment. On the other hand, subsection (a) provides that the sentence for those serious offenses, excluded under subsection (b), are still subject to an enhancement under subsection (a). When these provisions are read together, it is clear that certain enumerated offenses may only be subject to an enhanced sentence under subsection (a), whereas the remaining offense may be subject to an enhanced sentence under subsection (b). In sum, the commission's comment clarifies that the enumerated offenses in subsection (a) (1) may be subject to an enhanced sentence only when the prior felony was similarly as serious. The defendant's sentence was properly enhanced with respect to his conviction of robbery in the first degree because his conviction of prior felony charges was similarly as serious pursuant to subsection (a). Further, the defendant's sentence with respect to his conviction of attempt to escape from custody was properly enhanced under subsection (b) because that offense was not enumerated in subsection (a) (1), and the remaining conditions were satisfied. In sum, the commission's comment does not support the defendant's argument that the legislature intended to enhance one present conviction only when the defendant stands convicted of multiple current charges. B Second, the defendant contends that the underlying reasoning and policy considerations in our Supreme Court's decision in State v. Ledbetter , supra, 240 Conn. at 327, 692 A.2d 713, should be extrapolated to the present case. Specifically, the defendant argues that our Supreme Court's decision in Ledbetter suggests that the legislature did not intend for more than one recidivist enhancement to apply to the conviction of multiple current charges because he was not afforded the opportunity to reform. We disagree with the defendant for several reasons. The primary issue our Supreme Court considered in Ledbetter was whether § 53a-40(d) "applies to a defendant who, prior to the commission of a third felony, entered simultaneous guilty pleas to two separate felonies." Id., at 319, 692 A.2d 713. Our Supreme Court held that § 53a-40(d)"precludes the use of two felony convictions rendered simultaneously as the basis for a conviction as a persistent felony offender." Id., at 328, 692 A.2d 713. After reviewing the plain language of the statute, and the relevant legislative history, our Supreme Court concluded that § 53a-40(d) is part of a "statutory scheme that defines, and provides sentencing guidelines for, the habitual offender categories recognized in Connecticut"; id., at 332-33, 692 A.2d 713 ; and that "the words of this statute, together with its legislative history, make clear that the legislature intended this section to apply only to those repeat offenders who, despite having been given the opportunity to reform, not once but twice, nevertheless persist in a career of crime." Id., at 339, 692 A.2d 713. Our Supreme Court relied on the notion of "sequentiality"; id. ; meaning that before the persistent offender provisions applied, the scheme requires "a strict sequence of offense, conviction [and] punishment for each prior felony conviction." Id., at 339-40, 692 A.2d 713. In support of its conclusion, our Supreme Court reasoned that the simultaneous conviction of two offenses, which otherwise qualify under the persistent felony offender provisions, would not afford the accused the opportunity to reform his conduct. Id., at 339, 692 A.2d 713. Thus, a sentence enhancement as a persistent felony offender without a conviction of two separate charges runs contrary to the legislature's intent behind § 53a-40(d). Id., at 328, 692 A.2d 713. The most obvious reason why our Supreme Court's decision in Ledbetter is inapposite to the present case is that an entirely separate subsection of § 53a-40 was at issue, subsection (d). Unlike the situation in Ledbetter , the provisions at issue before us, § 53a-40(a) and (b), subsection (d) contains distinct language indicating that the accused must "at separate times prior to the commission of the present felony, [have] been twice convicted of a felony other than a class D felony." General Statutes § 53a-40(d). Our Supreme Court observed that this language, in conjunction with the legislative history, indicates that the present felony, that is, the felony subject to enhancement, cannot be construed as "separate" from the commission of the present felony under § 53a-40(d)(2). State v. Ledbetter , supra, 240 Conn. at 339-40, 692 A.2d 713. In the present case, the underlying policy consideration, which is that the defendant's conviction of the charges be in sequence, is not an issue. The basis for the defendant's persistent felony offender sentence enhancements was not his present conviction of robbery in the first degree and attempt to escape from custody, but his prior felony convictions. Unlike the situation in Ledbetter , the sequence of the defendant's convictions is not an issue because the defendant, prior to the present case, had been convicted of and imprisoned for several other felony offenses. Those prior felony convictions gave rise to his classification as a persistent felony offender, which, in turn, enhanced the sentences on his more recent conviction of robbery in the first degree and attempt to escape from custody. The state in Ledbetter attempted to rely on the defendant's conviction of multiple current charges as the basis for a sentence enhancement as a persistent felony offender and sought to enhance his sentence on the conviction of those offenses. Thus, the sequence of the defendant's offenses in Ledbetter was problematic because he was not charged, convicted, and sentenced at a prior time. That issue simply is not present here on the basis of the defendant's history of felony convictions. The specific persistent felony offender provisions at issue here each required that the defendant be convicted once prior to his conviction of the current charges. Specifically, subsection (a) of § 53a-40 provides in relevant part that the enhancement provision may apply when the defendant "has been, prior to the commission of the present crime, convicted of and imprisoned, under a sentence to a term of imprisonment of more than one year or of death, in this state or in any other state or in a federal correctional institution" for certain crimes. General Statutes § 53a-40(a). Section 53a-40(b) provides in relevant part that the enhancement provision may apply when the defendant "has been, prior to the commission of the present felony, convicted of and imprisoned, under an imposed term of more than one year or of death, in this state or in any other state or in a federal correctional institution, for a crime...." Thus, subsections (a) and (b) are clearly distinct from subsection (d), which requires two predicate convictions. Furthermore, another underlying policy consideration noted in Ledbetter , which is that the legislature intended to punish recidivists under § 53a-40(d) who had two opportunities to reform their conduct, but nevertheless pursued a career of crime, is adhered to in the case before us. It is clear from the record that the defendant had ample opportunity to reform his criminal conduct, as he had several felony convictions prior to the most recent conviction of robbery in the first degree and attempt to escape from custody. Had the defendant in Ledbetter been convicted as a persistent felony offender, on the basis of multiple current charges, he would have been denied that opportunity. In the present case, the defendant clearly had that opportunity to reform, but did not. Accordingly, we conclude that the court did not improperly deny the motion to correct an illegal sentence on these grounds. The judgment is affirmed. In this opinion the other judges concurred. General Statutes (Rev. to 1991) § 53a-40 provides in relevant part: "(a) A persistent dangerous felony offender is a person who (1) stands convicted of manslaughter, arson, kidnapping, sexual assault in the first or third degree, sexual assault in the third degree with a firearm, robbery in the first or second degree, or assault in the first degree; and (2) has been, prior to the commission of the present crime, convicted of and imprisoned under a sentence to a term of imprisonment of more than one year or of death, in this state or in any other state or in a federal correctional institution, for any of the following crimes: (A) The crimes enumerated in subdivision (1), the crime of murder, or an attempt to commit any of said crimes or murder . "(b) A persistent serious felony offender is a person who (1) stands convicted of a felony; and (2) has been, prior to the commission of the present felony, convicted of and imprisoned under an imposed term of more than one year or of death, in this state or in any other state or in a federal correctional institution, for a crime. This subsection shall not apply where the present conviction is for a crime enumerated in subdivision (1) of subsection (a) and the prior conviction was for a crime other than those enumerated in subsection (a).... "(f) When any person has been found to be a persistent dangerous felony offender, and the court is of the opinion that his history and character and the nature and circumstances of his criminal conduct indicate that extended incarceration and lifetime supervision will best serve the public interest, the court, in lieu of imposing the sentence of imprisonment authorized by section 53a-35a for the crime of which such person presently stands convicted . may impose the sentence of imprisonment authorized by said section for a class A felony. "(g) When any person has been found to be a persistent serious felony offender, and the court is of the opinion that his history and character and the nature and circumstances of his criminal conduct indicate that extended incarceration will best serve the public interest, the court in lieu of imposing the sentence of imprisonment authorized by section 53a-35a for the crime of which such person presently stands convicted . may impose the sentence of imprisonment authorized by said section for the next more serious degree of felony...." Hereinafter, all references to § 53a-40 are to the 1991 revision of the statute unless otherwise noted. See North Carolina v. Alford, 400 U.S. 25, 37, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970). As we noted in part I A of this opinion, the relevant inquiry in a double jeopardy claim involves examination of the substantive criminal offenses, i.e., robbery and attempted escape, not the persistent felony offender enhancement provisions. General Statutes (Rev. to 1991) § 53a-40(d) provides in relevant part: "A persistent felony offender is a person who (1) stands convicted of a felony other than a class D felony; and (2) has, at separate times prior to the commission of the present felony, been twice convicted of a felony other than a class D felony."

12489976

Dean S. LEE v. COMMISSIONER OF CORRECTION

Lee v. Comm'r of Corr.

2017-05-23

AC 38417

702

707

163 A.3d 702

163

West's Atlantic Reporter, Third Series

Connecticut Appellate Court

Connecticut

2021-08-27T20:57:14.018555+00:00

Fastcase

DiPentima, C.J., and Sheldon and Blue, Js.

Dean S. LEE v. COMMISSIONER OF CORRECTION

Dean S. LEE v. COMMISSIONER OF CORRECTION AC 38417 Appellate Court of Connecticut. Argued March 21, 2017 Officially released May 23, 2017 Craig A. Sullivan, assigned counsel, for the appellant (petitioner). Denise B. Smoker, senior assistant state's attorney, with whom, on the brief, were Michael Dearington, state's attorney, and Adrienne Maciulewski, deputy assistant state's attorney, for the appellee (respondent). DiPentima, C.J., and Sheldon and Blue, Js. Opinion

2915

17980

BLUE, J. The petitioner, Dean S. Lee, 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 certification to appeal and (2) improperly denied his ineffective assistance of counsel claim based on trial counsel's asserted failure to request certain pretrial bond increases. Because the petitioner did not demonstrate that the habeas court abused its discretion in denying the petition for certification to appeal, we dismiss the appeal. On appeal, the petitioner seeks credit for twenty-seven days of presentence confinement pursuant to General Statutes § 18-98d. The presentence confinement for which he seeks credit occurred while he was confined in lieu of bail for a charge on which he was never sentenced. Instead, he subsequently was sentenced for two distinct crimes that were committed after he had posted bond in the first matter. Under these circumstances, both the relevant statute, § 18-98d, and considerations of public policy prohibit the award of presentence confinement credit that the petitioner seeks. The following facts and procedural history are relevant to this appeal. On three separate occasions in 2010 and 2011, the petitioner was arraigned in the New Haven judicial district, geographical area number 23, on four different charges. Here is the chronology of relevant events: • September 2, 2010. The petitioner was arraigned on a warrant charging him with possession of narcotics with intent to sell. The petitioner was confined in lieu of bond. We will refer to this case as case no. 1. • September 28, 2010. The petitioner posted bond on case no. 1, having spent twenty-seven days in pretrial confinement. This twenty-seven day period of pretrial confinement turns out to be the cynosure of the case now before us. • October 23, 2010. The petitioner sold narcotics to an undercover officer. We will refer to the case arising from this incident as case no. 2. • June 3, 2011. The petitioner was arraigned on case no. 2. The court, Licari, J. , set bond of $5,000. The petitioner posted bond on the same date. • July 25, 2011. The petitioner allegedly twice sold narcotics to cooperating witnesses. We will refer to the cases arising from these incidents as case no. 3 and case no. 4. • August 8, 2011. The petitioner was arraigned on case no. 3 and case no. 4. The court, Frechette, J. , set bond of $100,000 in each case. At the arraignment, the petitioner's trial attorneys did not request bond increases in cases nos. 1 and 2. The petitioner was confined in lieu of bond. • November 21, 2011. The petitioner pleaded guilty in cases nos. 2 and 3 to two counts of possession of narcotics with intent to sell in violation of General Statutes § 21a-277(a). The court, Holden, J. , sentenced him in each case to ten years incarceration, execution suspended after five years, followed by a conditional discharge for three years. The sentences were to be served concurrently. The total effective sentence, therefore, was ten years, execution suspended after five years, followed by a conditional discharge for three years. Imposition of the sentence was stayed until January 5, 2012. At sentencing, the petitioner requested that the court order presentence confinement credit for the confinement spent in case no. 1. In response, the court stated that, "[h]e's entitled to the credit afforded by the Department of [Correction]." • January 5, 2012. The stay was lifted on the sentences imposed in cases nos. 2 and 3. The prosecutor entered a nolle prosequi with respect to cases nos. 1 and 4 as well as an unrelated earlier charge. • July 22, 2013. The court granted a motion for "jail credit" in case no. 2 and ordered credit from August 8, 2011 to October 6, 2011. • September 12, 2013. The court granted a motion for "jail credit" in case no. 3 and ordered credit from August 8, 2011 to January 5, 2012. On July 26, 2012, the petitioner, initially self-represented, filed an application for a writ of habeas corpus in the Superior Court for the judicial district of Tolland. His amended petition, filed by appointed counsel, claimed that his trial counsel had been ineffective because "she failed to ensure that the petitioner would receive presentence jail credit for the time he spent incarcerated on all of his pending cases." The amended petition requested that the judgments imposed in cases nos. 2 and 3 be vacated, that the petitioner be released from confinement, and that the court grant "whatever other relief that law and justice require." The petition was tried to the habeas court, Fuger, J. On August 13, 2015, the habeas court denied relief. It stated that, "[t]here is no sentence of any court anywhere to which those twenty-seven days of jail credit can be applied." The habeas court further reasoned that, "even if it was deficient performance not to request an increase in bond [in cases nos. 1 and 2], there is no prejudice that accrued to [the petitioner] because he did, in fact, receive the jail credit he would have received had the bond been raised in both files on August 8, 2011." On September 11, 2015, the habeas court subsequently denied a petition for certification to appeal. An appeal to this court followed. At oral argument before this court, the petitioner made it clear that he was no longer seeking to vacate any of his convictions or sentences. The sole remedy he seeks is a judicial order that twenty-seven days of pretrial confinement credit, served with respect to case no. 1, be applied to the sentences imposed on cases nos. 2 and 3. 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 ineffective assistance of counsel. Specifically, he argues that because this issue is debatable among jurists of reason, a court could resolve the issues differently or the issues should proceed further, the habeas court abused its discretion in denying his petition for certification to appeal. We disagree. "Faced with a 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, [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 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." (Internal quotation marks omitted.) Duncan v. Commissioner of Correction , 171 Conn.App. 635, 644-45, 157 A.3d 1169 2017). With these principles in mind, we turn to the substantive claims of the petitioner. The petitioner claims that the habeas court improperly concluded that, even if his trial counsel provided deficient performance in not seeking bond increases on cases nos. 1 and 2 at his August 8, 2011 arraignment, he was not prejudiced as a result. With respect to the issue of prejudice, we conclude that the petitioner's argument is unavailing and, therefore, his claim of ineffective assistance of counsel must fail. As a result, we conclude that the habeas court did not abuse its discretion in denying the petitioner's certification to appeal from the denial of the petition for habeas corpus. See Duncan v. Commissioner of Correction , supra, 171 Conn.App. at 635, 157 A.3d 1169 (reviewing court considered merits of petitioner's claims as to performance and prejudice and concluded that because there was no prejudice, petitioner could not establish abuse of discretion in denial of certification to appeal). The question of whether a petitioner's constitutional right to the effective assistance of counsel has been violated is governed by a familiar test. To succeed on a claim of ineffective assistance of counsel, a habeas petitioner must satisfy the two-pronged test articulated in Strickland v. Washington , 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). The petitioner has the burden to establish that "(1) counsel's representation fell below an objective standard of reasonableness, and (2) counsel's deficient performance prejudiced the defense because there was a reasonable probability that the outcome of the proceedings would have been different had it not been for the deficient performance." (Emphasis in original.) Johnson v. Commissioner of Correction , 285 Conn. 556, 575, 941 A.2d 248 (2008). It is well established that § 18-98d"excludes from [pretrial confinement] credit any time that a prisoner spends incarcerated for a prior conviction before sentencing on a separate, pending charge." Washington v. Commissioner of Correction , 287 Conn. 792, 800, 950 A.2d 1220 (2008). The petitioner does not argue that he is entitled to such credit as a matter of statutory right. Rather, he claims a violation of his right to effective assistance of counsel under the sixth amendment to the United States constitution, invoking Gonzalez v. Commissioner of Correction , 308 Conn. 463, 68 A.3d 624, cert. denied sub nom. Dzurenda v. Gonzalez , - U.S. -, 134 S.Ct. 639, 187 L.Ed.2d 445 (2013). Gonzalez , however, is readily distinguishable. In that case, the petitioner, Odilio Gonzalez, like the petitioner here, was arrested on a series of occasions and, like the petitioner, was represented by counsel who failed to request a bond increase on an earlier charge when he was subsequently arraigned on a later charge. Id., at 465-66, 68 A.3d 624. Our Supreme Court held that the constitutional requirement of effective assistance requires counsel "to take the necessary and available steps during critical stages of the proceedings to protect his client's statutory right to receive his full presentence confinement credit." Id., at 491, 68 A.3d 624. In the present case, the habeas court assumed for the sake of argument, as we did, that the petitioner's trial counsel, in not requesting bond increases in cases nos. 1 and 2 on August 8, 2011, failed to provide effective representation. The similarities between Gonzalez and the petitioner's case, however, end there. Gonzalez was sentenced on the charge for which he had been held in pretrial confinement during the disputed period of time. Our Supreme Court consequently found prejudice on the ground that "counsel's failure to request that the bonds be raised at the third arraignment prejudiced the petitioner by exposing him to seventy-three additional days in jail for which he received no credit." (Internal quotation marks omitted.) Id., at 490, 68 A.3d 624. The petitioner in the present case, in contrast, was not sentenced on the charge in case no. 1 for which he had been held in confinement during the twenty-seven days in dispute here. Even if his trial counsel successfully had requested a bond increase in case no. 1 on August 8, 2011, the petitioner's current sentences would not have been reduced because no sentence was ever imposed in case no. 1. His sentences instead were imposed in cases nos. 2 and 3. Although the trial court in its discretion could have considered such pretrial confinement in its sentencing determination; Gonzalez v. Commissioner of Correction , supra, 308 Conn. at 467-68 n.3, 68 A.3d 624 ; the trial court here chose to leave calculation of the appropriate credit to the Department of Correction. Under these circumstances, the petitioner is unable to establish that his trial counsel's failure to request a bond increase on the charge in case no. 1 resulted in any ascertainable prejudice. The petitioner attempts to counter this reasoning by arguing that, "had such requests been made and granted, there was a reasonable probability that the petitioner and the state would have negotiated a plea agreement" on the charge in case no. 1. This argument is entirely speculative and is not based on any finding of either the trial court or the habeas court. We also note that, as mentioned, the petitioner at oral argument before this court expressly abandoned any argument that either his guilty pleas or his sentences should be vacated on the ground of ineffective assistance of counsel. The sole relief he seeks is a judicial order that the sentences he is now serving in cases nos. 2 and 3 be credited with the twenty-seven days of pretrial confinement spent on the charge in case no. 1. Under these circumstances, this is relief we are unable to grant. The award of credit that the petitioner seeks not only would be contrary to the express requirements of § 18-98d, but also would conflict with well established public policy. "The principle that extra time served on a criminal sentence may not be banked is strongly rooted in the public policy that individuals should not be encouraged to commit crimes knowing they have a line of credit that can be applied against future sentences." (Internal quotation marks omitted.) Payton v. Albert , 209 Conn. 23, 34, 547 A.2d 1 (1988), overruled in part on other grounds by Rivera v. Commissioner of Correction , 254 Conn. 214, 255 n.44, 756 A.2d 1264 (2000). That public policy is particularly compelling in the context of the present action. The crimes for which the petitioner has been convicted and sentenced occurred after the period of pretrial confinement for which he now seeks credit. An order mandating such credit would involve moral hazard. The knowledge of a person who has been released on bond after a period of pretrial confinement on an earlier charge that he now has a line of credit that can be applied to a sentence received for future crimes at least would increase marginally his incentive (or reduce his disincentive) to commit such future crimes. We do not choose to proceed down this path. For these reasons, we conclude that the habeas court properly rejected the pretrial confinement credit claim made by the petitioner. Because no reasonable jurist could disagree with this conclusion, we further determine that the habeas court did not abuse its discretion in denying the certification to appeal with respect to this claim. The appeal is dismissed. In this opinion the other judges concurred. General Statutes § 18-98d(a)(1) provides in relevant part: "Any person who is confined to a community correctional center or correctional institution for an offense committed on or after July 1, 1981 . because such person is unable to obtain bail or is denied bail shall, if subsequently imprisoned, earn a reduction of such person's sentence equal to the number of days which such person spent in such facility from the time such person was placed in presentence confinement to the time such person began serving the term of imprisonment imposed ." A nolle prosequi was eventually entered on a fifth charge involving an earlier arrest, which is unimportant for purposes of the pretrial confinement credit issues presented by the petitioner in this appeal. The record does not reflect the bond amount. Docket No. CR10-0109371. Docket No. CR11-0118215. Docket No. CR11-01200324. Docket No. CR11-0120325. In addition to ignoring the absence of trial or habeas court findings, the petitioner fails to discuss the mechanics of the alternative scenario he proposes. The plea agreement into which the petitioner actually entered involved pleas and concurrent sentences for two different crimes-the charges in cases nos. 2 and 3. The alternative agreement he now proposes would have involved a plea agreement involving only one crime-the charge in case no. 1. We simply do not know whether the prosecutor and the court would have agreed to such an arrangement if proposed. In any event, the petitioner does not claim that his trial counsel was ineffective in failing to propose an agreement along these lines on November 21, 2011. His sole claim is that his trial counsel was ineffective for failing to request a bond increase on August 8, 2011. These claims are entirely distinct. In addition, there is no evidence in the record that the petitioner has, at any stage of the proceedings, testified that, had he known he would not be entitled to the presentence confinement credit he now seeks, he would not have accepted the negotiated settlement in question.

12489973

Lubecca JOHNSON, Administratrix (Estate of Willie Brown, Jr.) v. RAFFY'S CAFÉ I, LLC, et al.

Johnson v. Raffy's Café I, LLC

2017-05-16

AC 38268

672

689

163 A.3d 672

163

West's Atlantic Reporter, Third Series

Connecticut Appellate Court

Connecticut

2021-08-27T20:57:14.018555+00:00

Fastcase

Lubecca JOHNSON, Administratrix (Estate of Willie Brown, Jr.) v. RAFFY'S CAFÉ I, LLC, et al.

Lubecca JOHNSON, Administratrix (Estate of Willie Brown, Jr.) v. RAFFY'S CAFÉ I, LLC, et al. AC 38268 Appellate Court of Connecticut. Argued January 19, 2017 Officially released May 16, 2017 Erick Bennett, self-represented, the appellant (defendant). Jeremiah J. O'Connor, for the appellee (plaintiff). Alvord, Mullins and Norcott, Js.

7467

46128

MULLINS, J. In this wrongful death action, the self-represented defendant, Erick Bennett, appeals from the judgment of the trial court rendered in favor of the plaintiff, Lubecca Johnson, administratrix of the estate of Willie Brown, Jr. On appeal, the defendant claims that the court improperly (1) denied his motion to dismiss for lack of subject matter jurisdiction, (2) denied his motion to set aside a default for failure to plead, and (3) denied his motion for a new trial. We affirm the judgment of the trial court. The following facts and procedural history are relevant to our consideration of the defendant's claims on appeal. The plaintiff commenced this action against the defendant, Raffy's Café I, LLC, doing business as Raffy's Café (Raffy's Café), and Rafael Robles on July 8, 2010. In her complaint, the plaintiff alleged that the defendant fatally stabbed Willie Brown, Jr. during an altercation at Raffy's Café in Meriden on July 10, 2009. The first two counts of the four count complaint were directed at Raffy's Café and its proprietor, Robles. The first count sounded in dram shop liability, and the second sounded in common-law recklessness. The last two counts of the complaint were directed at the defendant. The third count sought recovery on the theory that the defendant's intentional conduct wrongfully caused Brown's death. The fourth count alleged that the defendant's negligence wrongfully caused Brown's death. On August 30, 2010, the defendant filed an appearance, representing himself. The defendant also had been arrested and charged with murder as a result of the stabbing incident. Consequently, this civil matter and the defendant's criminal case were occurring simultaneously. However, the criminal matter concluded on August 26, 2011, when the trial court rendered a judgment of conviction and sentenced the defendant to fifty years of incarceration in accordance with the jury's guilty verdict. At no point during the duration of the criminal proceedings did the defendant file a responsive pleading in this civil matter. Even after the criminal matter concluded, the defendant neglected to file any responsive pleading to the plaintiff's complaint. Accordingly, on October 13, 2011, nearly two months after the conclusion of the criminal case, the plaintiff filed a motion for default for failure to plead. On October 20, 2011, the clerk granted that motion. Three years later, on November 21, 2014, the plaintiff filed a certificate of closed pleadings and requested a hearing in damages. In the three year period between the entering of the default and the closing of the pleadings, the defendant neither filed a responsive pleading nor sought to set aside the default. However, the defendant filed his first motion to dismiss during that period, on May 7, 2014. The plaintiff objected to the defendant's first motion to dismiss on June 4, 2014, and the court sustained the objection on June 23, 2014. The defendant has not challenged the court's ruling with respect to the first motion to dismiss. On December 8, 2014, after the plaintiff already had filed a certificate of closed pleadings, the defendant filed a motion to set aside the default. The court denied that motion on December 22, 2014. Subsequently, on December 26, 2014, the defendant filed a second motion to dismiss. In that motion, he argued that the court lacked subject matter jurisdiction. On February 5, 2015, the defendant, who was incarcerated, filed an application for a writ of habeas corpus ad testificandum seeking permission to attend court for a hearing on this motion. The court granted the application. Thereafter, on February 9, 2015, the defendant attended the hearing on the motion. Following the hearing, on April 6, 2015, the court issued a memorandum of decision denying the motion. The defendant has challenged the court's denial of his second motion to dismiss in this appeal. On April 27, 2015, the court held a hearing in damages. As with the hearing on his second motion to dismiss, the defendant was incarcerated at the time of the hearing in damages. However, unlike the hearing on his second motion to dismiss, the defendant did not file an application for a writ of habeas corpus ad testificandum. Consequently, the defendant did not appear at the hearing in damages. As a result of the hearing, the court rendered judgment in favor of the plaintiff, awarding $9217.74 in economic damages and $1,292,200 in noneconomic damages. On June 15, 2015, the defendant filed a motion for a new trial, to which the plaintiff objected on June 23, 2015. The court sustained the plaintiff's objection on July 7, 2015. This appeal followed. I MOTION TO DISMISS FOR LACK OF SUBJECT MATTER JURISDICTION The defendant claims that the trial court erred in denying his motion to dismiss for lack of subject matter jurisdiction. Specifically, the defendant argues that the court improperly rejected the following five attacks on the court's subject matter jurisdiction: (1) the plaintiff's probate certificate authorizing her to bring this lawsuit as administratrix was invalid because it lacked the valid raised seal of the Probate Court; (2) the probate certificate itself did not authorize the plaintiff to bring this suit; (3) the defendant was entitled to "sovereign immunity" from suit; (4) principles of double jeopardy barred this suit; and (5) by granting summary judgment for the codefendants, Raffy's Café and Robles, the court also was required to dismiss the counts against the defendant. The plaintiff responds that none of these grounds deprived the court of subject matter jurisdiction. We agree with the plaintiff. We first set forth our standard of review. "Our standard of review of a trial court's findings of fact and conclusions of law in connection with a motion to dismiss is well settled. A finding of fact will not be disturbed unless it is clearly erroneous.... [If] 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 . Thus, 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.) Property Asset Management, Inc. v. Lazarte , 163 Conn.App. 737, 746, 138 A.3d 290 (2016). The first jurisdictional defect alleged by the defendant is that the plaintiff's probate certificate "lacks the court of probate seal impressed on the certificate, as required by the certificate." We conclude that this claim lacks merit. The trial court found, after examining the probate certificate, that the certificate in fact contained the proper probate seal. The defendant has presented nothing to show that the trial court's finding, based on its review of the probate certificate, was clearly erroneous. The defendant's second alleged jurisdictional defect is that the plaintiff's probate certificate, which states that the "fiduciary has no power to buy, sell, or with-draw assets of the estate," prohibits the plaintiff from bringing this suit. However, the trial court found that the probate certificate expressly authorizes the plaintiff to bring this suit because it provides that "[t]he fiduciary may . make claims on behalf of the estate." Moreover, the court also concluded that "the plaintiff's civil action is an exercise of one of the express powers granted to the fiduciary by General Statutes § 45a-234 (18)." See General Statutes § 45a-234 (18) (administratrix of estate has authority to "compromise, adjust, arbitrate, sue on or defend, abandon, or otherwise deal with and settle claims in favor of or against . estate or trust as [she] shall deem advisable"). After reviewing the record, we conclude that the court's determination that the plaintiff had the authority to bring this suit is legally correct and factually supported. The defendant's third attack on the trial court's subject matter jurisdiction is that he was immune from suit by virtue of "sovereign immunity." Specifically, the thrust of the defendant's claim is that he is a "sovereign in [his] own realm" because he is a "noncorporate human being." Consequently, according to the defendant, this status as "a sovereign" means that he is not subject to the jurisdiction of our courts, which are "arms" of "the Commercial Corporate State of Connecticut." We agree with the trial court that the defendant does not meet the criteria necessary to claim sovereign immunity. "[T]he fact that the state is not named as a defendant does not conclusively establish that the action is not within the principle which prohibits actions against the sovereign without its consent.... The vital test is to be found in the essential nature and effect of the proceeding.... [There are] four criteria [used in] determin[ing] whether an action is in effect, one against the state and cannot be maintained without its consent: (1) a state official has been sued; (2) the suit concerns some matter in which that official represents the state; (3) the state is the real party against whom relief is sought; and (4) the judgment, though nominally against the official, will operate to control the activities of the state or subject it to liability." (Citation omitted; internal quotation marks omitted.) Miller v. Egan , 265 Conn. 301, 308, 828 A.2d 549 (2003). Our review of the record leads us to conclude that the defendant's claim is without merit because he failed to present any factual or legal support demonstrating (1) that he is a state official, (2) that this suit concerns a matter in which he represents the state, (3) that the state is the real party, and (4) that the judgment will operate to control the activities of the state or subject it to liability. Simply put, this suit is an action that was brought against a private person in his individual capacity for monetary damages arising out of private conduct. Accordingly, we conclude that the trial court's rejection of the defendant's sovereign immunity claim was legally correct and factually supported. The defendant's fourth attack on the trial court's subject matter jurisdiction is essentially a claim that the principles of double jeopardy bar this suit. Specifically, the defendant argues: "[Since] the plaintiff's appointment by the corporate state of Connecticut as administratrix makes her a [n] agent for the state, and the plaintiff [is] [represented] by a commissioner/attorney of the state . this civil suit [is] in fact the state seeking to punish the defendant twice for the same [conduct] as in his criminal case ." We agree with the trial court that the protections against double jeopardy are not implicated in this case. "It is well settled that prosecutions or convictions for double jeopardy purposes arise only from proceedings that are essentially criminal ." (Emphasis added; internal quotation marks omitted.) State v. Burnell , 290 Conn. 634, 645, 966 A.2d 168 (2009). "A proceeding is criminal for double jeopardy purposes, if it imposes a sanction intended as punishment ." (Emphasis added.) State v. Smith , 207 Conn. 152, 176, 540 A.2d 679 (1988). The instant proceeding, which is a civil lawsuit, is not criminal because the state is not seeking to criminally punish the defendant. Rather, a private party is seeking recovery of monetary damages pursuant to a civil cause of action. Therefore, contrary to the defendant's contention, jeopardy does not attach to this civil action. Accordingly, we conclude that the trial court's determination that double jeopardy principles did not deprive it of subject matter jurisdiction was legally correct and factually supported. The defendant's final challenge to the trial court's subject matter jurisdiction is that the court was compelled to dismiss the counts against him because it previously granted summary judgment on the counts against Raffy's Café and Robles. In rejecting this contention, the trial court reasoned: "[T]he court's granting of summary judgment applied only to the dram shop claim in count one of the complaint and the reckless service of alcohol claim in count two.... [The] counts [directed against the defendant] turn on a different set of facts, the veracity of which are unaffected by the granting of summary judgment in favor of Raffy's Café and Robles." After reviewing the record, we conclude that this determination was legally correct and factually supported. Accordingly, we conclude that the court properly denied the defendant's motion to dismiss for lack of subject matter jurisdiction. II MOTION TO SET ASIDE THE DEFAULT FOR FAILURE TO PLEAD The defendant next claims that the trial court abused its discretion in denying his motion to set aside the default for failure to plead. Specifically, the defendant asserts that his failure to plead was justified on the following three grounds: (1) he was exercising his fifth amendment right against self-incrimination; (2) requiring him to plead in this case while he simultaneously was facing criminal charges placed him under duress; and (3) he mistakenly believed that an affidavit that he provided to the codefendants for use with their motion for summary judgment served as an answer to the plaintiff's complaint. The plaintiff responds that the defendant's reliance on these three grounds is unavailing, and, therefore, the trial court properly denied the motion to set aside the default. We agree with the plaintiff. We first set forth our standard of review and the relevant legal principles. "It is well established that [the] determination of whether to set aside [a] default is within the discretion of the trial court . [and] such a determination will not be disturbed unless that discretion has been abused or where injustice will result. In the exercise of its discretion, the trial court may consider not only the presence of mistake, accident, inadvertence, misfortune or other reasonable cause . factors such as [t]he seriousness of the default, its duration, the reasons for it and the degree of contumacy involved . but also, the totality of the circumstances, including whether the delay has caused prejudice to the nondefaulting party." (Internal quotation marks omitted.) Chevy Chase Bank, F . S . B . v. Avidon , 161 Conn.App. 822, 833, 129 A.3d 757 (2015). "A motion to open a default for failure to plead is governed by Practice Book § 17-32 and 17-42. The opening of a default when a claim for a hearing in damages has been filed is controlled by Practice Book § 17-42 because that is the rule of practice that addresses the setting aside of a default by the judicial authority.... The distinction between whether Practice Book § 17-32 applies or Practice Book § 17-42 applies is whether a claim for a hearing in damages is filed before, or after, a motion to set aside the default is filed." (Footnote omitted; internal quotation marks omitted.) Bohonnon Law Firm, LLC v. Baxter , 131 Conn.App. 371, 380, 27 A.3d 384, cert. denied, 303 Conn. 902, 31 A.3d 1177 (2011). In the present case, the defendant filed a motion to set aside the default after the plaintiff already had requested a hearing in damages. Therefore, the motion to open in this case is governed by Practice Book § 17-42. As such, the default could be set aside only after the court found that good cause existed to set aside the default. After reviewing the defendant's grounds for setting aside the default and the record as a whole, we conclude that the trial court did not err in concluding that the defendant failed to establish that there was good cause for setting aside the default. The defendant's first ground is that he was excused from pleading because he had been exercising his privilege against self-incrimination in the criminal action against him and in this civil action. We are unpersuaded. Although the privilege against self-incrimination affords a person "the right to refuse to answer questions in a civil proceeding where the answers might incriminate him in a future criminal proceeding"; Tyler v. Shenkman-Tyler , 115 Conn.App. 521, 526, 973 A.2d 163, cert. denied, 293 Conn. 920, 979 A.2d 493 (2009) ; it is "not self-executing [and] must be expressly invoked at the time that allegedly incriminatory evidence is sought to be compelled or introduced." Dunham v. Dunham , 217 Conn. 24, 32, 584 A.2d 445 (1991), over-ruled on other grounds by Santopietro v. New Haven , 239 Conn. 207, 682 A.2d 106 (1996). "A [party] may not use the privilege [against self-incrimination] as a sword freeing him from his civil discovery obligations and his responsibilities at trial." United States v. Talco Contractors, Inc. , 153 F.R.D. 501, 505 (W.D.N.Y. 1994). "The privilege applies not only at trial but also at the pleading stage.... However, . a proper invocation of the privilege [does not] mean that a defendant is excused from the requirement to file a responsive pleading; he is obliged to answer those allegations that he can and to make a specific claim of the privilege as to the rest.... [The privilege] protects an individual not only from involuntarily becoming a witness against himself in a criminal proceeding but also from answering specific allegations in a complaint.... But for one to invoke this privilege the party claiming it must not only affirmatively assert it, he must do so with sufficient particularity to allow an informed ruling on the claim.... [A] blanket refusal to answer or respond [i]s not sufficient [to invoke the privilege.]" (Citations omitted.) North River Ins. Co. v. Stefanou , 831 F.2d 484, 486-87 (4th Cir. 1987) ; see also Beth Israel Medical Center v. Smith , 576 F.Supp. 1061, 1072 (S.D.N.Y. 1983) ("The defendants, of course, are entitled to assert their Fifth Amendment privilege in their answer. It is equally plain, however, that an answer must be filed and a decision made whether and to what extent the defendants wish to assert the privilege."). Here, the record reveals that the defendant never affirmatively asserted a specific claim of the privilege against self-incrimination prior to filing his motion to set aside the default. Rather, he simply failed to file any pleading responding to the allegations set forth in the plaintiff's complaint. The failure to do so was not excused by virtue of the defendant's purported-but never properly asserted-claim of privilege. Consequently, the trial court reasonably determined that the defendant's purported invocation of the privilege against self-incrimination was not good cause justifying the opening of the default. Moreover, the fact that this civil action was pending while the defendant's criminal trial was occurring does not excuse his failure to timely assert the privilege. The record reveals that the defendant had ample time to assert his privilege after the criminal trial concluded. The defendant was sentenced on August 26, 2011, and the plaintiff did not file a motion for a default until two months later. Furthermore, after the clerk entered a default on October 20, 2011, more than three years passed before the plaintiff filed a certificate of closed pleadings and requested a hearing in damages on November 21, 2014. During that period, the defendant could simply have filed an answer to the plaintiff's complaint, and, pursuant to Practice Book § 17-32 ; see footnote 7 of this opinion; the clerk would have been required to open the default. We note that the defendant certainly was not incapable of filing this or any other motion, as the record reflects that he made other filings during this period, including his first motion to dismiss. He simply never attempted to cure his default by filing an answer, nor did he, in this civil action, properly assert his privilege against self-incrimination. Accordingly, it was reasonable for the trial court to conclude that the defendant's purported invocation of his privilege against self-incrimination was not good cause excusing his failure to plead. The defendant's second ground for setting aside the default is related to the defendant's purported invocation of his privilege against self-incrimination. Specifically, the defendant argues: "The plaintiff brought suit against . the defendant . while [he] was awaiting his criminal trial for the same accusation, placing [him] under duress, so [he] chose to exercise his fifth amendment right to silence during such time ." We are unpersuaded. "The classical or common law definition of duress is any wrongful act of one person that compels a manifestation of apparent assent by another . without his volition.... The defendant must prove: [1] a wrongful act or threat [2] that left the victim no reasonable alternative, and [3] to which the victim in fact acceded, and that [4] the resulting transaction was unfair to the victim." (Citations omitted; internal quotation marks omitted.) Chase Manhattan Mortgage Corp. v. Machado , 83 Conn.App. 183, 189, 850 A.2d 260 (2004). After reviewing the record, we conclude that the defendant failed to present the trial court with any factual or legal basis supporting the duress claim. The defendant's claim does not satisfy a critical element of duress because there was no evidence presented of a wrongful act or threat undertaken by the court or a party to the action. To begin, it was not "wrongful" for the plaintiff to maintain this civil action and to expect the defendant to file a pleading responding to the allegations in her complaint. Indeed, as previously explained, notwithstanding his purported invocation of the privilege against self-incrimination, the defendant still was required to file a responsive pleading and could be held in default for failing to do so. Thus, it also was not "wrongful" for the court to require the defendant's compliance with the rules of practice governing pleading in civil actions. More fundamentally, the alleged source of duress was the simultaneous occurrence of this civil action and the criminal action. However, once the defendant was sentenced in the criminal action, the alleged source of that duress necessarily was eliminated. As previously explained, the defendant could have filed an answer during the two month period separating the sentencing and the entering of a default; he also could have cured the default simply by filing an answer during the three year period separating the entering of a default and the plaintiff's request for a hearing in damages. He did neither. Accordingly, we conclude that the trial court reasonably rejected that this claim of duress was good cause excusing the defendant's failure to plead. The defendant's third ground for setting aside the default is that he believed that he filed an answer by providing an affidavit to Raffy's Café and Robles for use with their motion for summary judgment. Like the trial court, we are not persuaded by this claim. As an initial matter, the defendant has failed to identify any authority or rule of practice providing that an affidavit attached to another party's summary judgment motion can be construed as the legal equivalent of an answer. Nevertheless, even if we were to construe the defendant's submission of the affidavit as an attempt to file an answer, we would conclude that it failed to respond sufficiently to the allegations actually directed at the defendant . As previously set forth, two of the complaint's four counts were directed at the defendant and alleged that he intentionally or negligently caused Brown's death by stabbing him. The complaint's remaining two counts were directed at Raffy's Café and Robles and alleged that Raffy's Café served the defendant alcohol on the night of the incident. Although the affidavit addressed the allegations relating to the service of alcohol by Raffy's Café, it did not address at all the allegations relating to the defendant's stabbing of Brown. Therefore, our review of the record leads us to conclude that, even when taking into consideration the affidavit, the defendant never made any filing that reasonably could be construed as answering the operative allegations made against him. Accordingly, the trial court reasonably determined that the defendant's purported mistaken belief regarding his affidavit was not good cause excusing his failure to plead. After reviewing the record as a whole, we conclude that the trial court reasonably determined that the defendant failed to demonstrate good cause for setting aside the default. Although the defendant was incarcerated and facing criminal charges when this civil action commenced, he had ample time after his criminal trial concluded to cure the default simply by filing a responsive pleading. We are mindful "that although we allow [self-represented] litigants some latitude, the right of self-representation, however, provides no attendant license not to comply with relevant rules of procedural and substantive law." (Internal quotation marks omitted.) Chevy Chase Bank, F . S . B . v. Avidon , supra, 161 Conn.App. at 834 n.7, 129 A.3d 757. Accordingly, the trial court's denial of the defendant's motion to set aside the default for failure to plead was not an abuse of discretion. III MOTION FOR A NEW TRIAL The defendant's final claim is that the trial court improperly denied his motion for a new trial. In particular, he argues that the court erred in rejecting his claim that a new trial should have been ordered on the grounds that he was denied a reasonable opportunity to appear and defend the suit, that new evidence was discovered, and that the judgment was obtained through fraud. The plaintiff responds that the trial court did not abuse its discretion in denying the defendant's motion for a new trial because none of the defendant's asserted grounds warranted the ordering of a new trial. We agree with the plaintiff. "[O]ur standard of review of the trial court's denial of a motion for a new trial is limited to a determination of whether, by such denial, the court abused its discretion.... As a reviewing court considering the trial court's decision granting or denying a motion for a new trial, we must be mindful of the trial judge's superior opportunity to assess the proceedings over which he or she has personally presided." (Citations omitted; internal quotation marks omitted.) In re James L. , 55 Conn.App. 336, 345, 738 A.2d 749, cert. denied, 252 Conn. 907, 743 A.2d 618 (1999). "[A] party is entitled to a new trial on the ground of newly discovered evidence if such evidence is, in fact, newly discovered, will be material to the issue on a new trial, could not have been discovered and produced, on the trial which was had, by the exercise of due diligence, is not merely cumulative and is likely to produce a different result.... New trials are not granted upon newly discovered evidence which discredits a witness unless the evidence is so vital to the issues and so strong and convincing that a new trial would probably produce a different result.... The basic question which the trial court has to decide is whether upon all the evidence an injustice had been done. In deciding this question, the court has the exercise of a sound legal discretion, and its action cannot be disturbed unless this discretion has been abused." (Internal quotation marks omitted.) Id. "Evidence is newly discovered if it was not available at the time of trial, or it could not have been obtained by the exercise of reasonable diligence." Carter v. State , 159 Conn.App. 209, 223, 122 A.3d 720, cert. denied, 319 Conn. 930, 125 A.3d 204 (2015). "To entitle a party to a new trial for newly-discovered evidence, it is indispensable that he should have been diligent in his efforts fully to prepare his cause for trial; and if the new evidence relied upon could have been known with reasonable diligence, a new trial will not be granted." (Internal quotation marks omitted.) LaCroix v. Glens Falls Ins. Co. , 107 Conn.App. 332, 335, 945 A.2d 489 (2008). "[O]ur Supreme Court [has] imposed four requirements on those seeking relief from a judgment secured by fraud: (1) There must have been no laches or unreasonable delay by the injured party after fraud was discovered. (2) There must have been diligence in the original action, that is, diligence in trying to discover and expose the fraud. (3) There must be clear proof of the perjury or fraud. (4) There must be a substantial likelihood that the result of the new trial will be different." (Footnote omitted; internal quotation marks omitted.) Duart v. Dept. of Correction , 116 Conn.App. 758, 769, 977 A.2d 670 (2009), aff'd, 303 Conn. 479, 34 A.3d 343 (2012). "The want of a reasonable opportunity to appear and defend is ground for a new trial only when the movant also establishes that a just defense in whole or in part existed ." (Internal quotation marks omitted.) In re Juvenile Appeal (84-1) , 1 Conn.App. 298, 301, 471 A.2d 662 (1984). "[A] motion for a new trial will not be granted . on the ground of lack of opportunity to defend unless a good defense existed." Steve Viglione Sheet Metal Co. v. Sakonchick , 190 Conn. 707, 712, 462 A.2d 1037 (1983). With the proper legal framework in mind, we now consider the specific grounds asserted by the defendant in his motion for a new trial. Although the parties have characterized the defendant's claim as asserting three distinct grounds for a new trial, the claim appears to assert only two grounds. We conclude that both of those grounds are without merit. The defendant's first ground appears to blend the theories of fraud and newly discovered evidence. The thrust of the first ground is that law enforcement, the state's attorney, witnesses called by the state at the defendant's criminal trial, the judge who presided over the criminal trial, and the plaintiff all participated in "conspiratorial fraud." That is, pursuant to "a chain of conspiracy," these individuals fraudulently suppressed, concealed, and withheld evidence favorable to the defense during the defendant's criminal trial. In particular, the defendant contends that (1) the state had suppressed phone records and emergency calls from the night of the stabbing; (2) the state had failed to provide the defendant with part of the medical examiner's report concerning Brown's autopsy; and (3) the affidavit to the defendant's arrest warrant had "omitted vital essential facts" from several witness statements, phone records, emergency calls, and the medical examiner's autopsy report. According to the defendant, the allegedly suppressed and concealed evidence exculpates him from Brown's death. The defendant claims to have acquired newly discovered evidence of the foregoing "conspiratorial fraud," but it is unclear from the defendant's motion and brief when the defendant discovered such new evidence. After reviewing the record, we conclude that the trial court did not abuse its discretion in rejecting the defendant's first ground for a new trial. Insofar as that ground alleges fraud, the trial court reasonably could have concluded that the defendant failed to meet his burden of demonstrating that "[t]here [was] clear proof of the [alleged] fraud." Duart v. Dept. of Correction , supra, 116 Conn.App. at 769, 977 A.2d 670. Our review of the record reveals that the defendant failed to offer any evidence substantiating his sundry and far-reaching allegations of "conspiratorial fraud." More generally, those allegations actually appear to attack the defendant's criminal conviction, and the defendant fails to connect them to an allegedly fraudulently procured judgment in this civil action. Moreover, insofar as the defendant's first ground alleges that he acquired newly discovered evidence, the trial court reasonably concluded that such allegations of new evidence did not require the ordering of a new trial. Assuming arguendo that the defendant did discover evidence of fraud occurring in the criminal trial, he failed to present the trial court with sufficient facts demonstrating that such evidence was newly discovered. The defendant's motion for a new trial is unclear as to when he discovered such evidence. At one point, the defendant asserts that the evidence "was discovered through this civil suit," suggesting that he had acquired the evidence in the course of this litigation and, thus, could have used that evidence in this suit before judgment was rendered. At another point, he contends that he discovered the purported evidence "on or about November 2012," which was more than one year after the defendant's criminal trial ended. This date also was approximately two years before the pleadings were closed and twenty-nine months before the trial court rendered judgment after holding a hearing in damages. Irrespective of the precise date of discovery, the representations in the defendant's motion indicate that he is claiming that the discovery occurred before a hearing in damages was requested. Thus, his claim must fail because he knew, or through due diligence could have known, the alleged information before the lapse of the opportunity to open the default and contest the plaintiff's allegations. See Baker v. Whitnum-Baker , 161 Conn.App. 227, 243, 127 A.3d 330 (2015) ("Even if the information offered were presumed to be 'evidence,' the information was either already known or could have readily been discovered through due diligence in advance of the trial . This 'evidence,' such as it is, could have been discovered before the dissolution trial began , and it does not warrant a new trial ." [Emphasis added.] ), cert. denied, 321 Conn. 922, 138 A.3d 282 (2016), petition for cert. filed (U.S. Sept. 6, 2016) (No. 16-8757). The defendant's second ground alleges that he was deprived of a reasonable opportunity to appear and defend the plaintiff's claims. Specifically, he argues that the trial court erred in failing to sua sponte issue a writ of habeas corpus ad testificandum ordering the department of correction to transport him from prison to the hearing in damages. We conclude that the trial court did not abuse its discretion in rejecting this claim. First, the record reveals that the defendant failed to establish that he had a just defense. See In re Juvenile Appeal (84-1) , supra, 1 Conn.App. at 301, 471 A.2d 662 ("[t]he want of a reasonable opportunity to appear and defend is ground for a new trial only when the movant also establishes that a just defense in whole or in part existed" [internal quotation marks omitted] ). As previously addressed in part I of this opinion, the trial court properly denied the defendant's motion to set aside the default entered against him for failure to plead. Critically, the defendant does not contend on appeal that he lacked notice of the hearing in damages that occurred as a result of his default. Even if the defendant had appeared at the hearing in damages, however, he would not have been able to contest liability. See Practice Book § 17-34 (a) ("[i]n any hearing in damages upon default, the defendant shall not be permitted to offer evidence to contradict any allegations in the plaintiff's complaint, except such as relate to the amount of damages, unless notice has been given to the plaintiff of the intention to contradict such allegations . nor shall the defendant be permitted to prove any matter of defense, unless written notice has been given to the plaintiff of the intention . to prove such matter of defense"); Practice Book § 17-35 ("The notices required by [§] 17-34 shall be [made in compliance with the rules governing service of pleadings in civil actions].... [N]otice of defenses must be filed within ten days after notice from the clerk to the defendant that a default has been entered."). Accordingly, having failed to provide the proper notice of his intention to contradict the plaintiff's allegations or to present a defense, the defendant cannot establish that he would have had a proper defense at the hearing in damages. Second, the record reveals that the defendant's absence at the hearing in damages was the result of his own failure to exercise due diligence. See Jacobs v. Fazzano , 59 Conn.App. 716, 724, 757 A.2d 1215 (2000) ("[d]ue diligence is a necessary condition to success in prosecuting a [motion] for a new trial"). Again, the defendant does not claim on appeal that he lacked notice of the hearing in damages. Furthermore, the trial court indicated at the hearing in damages that it believed that the defendant could have taken the necessary steps to attend the hearing: "I'll note for the record, [the defendant] had the opportunity to be here. He didn't file a [m]otion for a [h]abeas to bring him in. He had done so in the past. So, he's fully aware of the ability to do that." Indeed, the record reveals that the defendant previously had filed an application for a writ of habeas corpus ad testificandum requesting transportation to court for oral argument on his motion to dismiss. Thus, the trial court reasonably could have concluded that the defendant knew how to arrange for his appearance in court and that his failure to do so with respect to the hearing in damages resulted from him not acting diligently. Accordingly, we conclude that the trial court did not abuse its discretion in denying the defendant's motion for a new trial. The judgment is affirmed. In this opinion the other judges concurred. Raffy's Café I, LLC, doing business as Raffy's Café, and Rafael Robles also were cited as party defendants in this action, but they are not involved in this appeal. Therefore, we refer to Bennett as the defendant in this opinion. The defendant does not present his challenge to the denial of his motion to dismiss as the first claim in his brief. However, because that motion implicates subject matter jurisdiction, we address the denial of his motion as a threshold issue. Raffy's Café and Robles moved for summary judgment on these two counts, and the trial court granted their motion. A writ of habeas corpus ad testificandum is "[a] writ used in civil and criminal cases to bring a prisoner to court to testify." Black's Law Dictionary (10th ed. 2014). We note that the defendant's "sovereign immunity" claim more resembles a "sovereign citizen" argument than a traditional invocation of sovereign immunity. "The sovereign citizens are a loosely affiliated group who believe that the state and federal governments lack constitutional legitimacy and therefore have no authority to regulate their behavior." United States v. Ulloa, 511 Fed.Appx. 105, 106 n.1 (2d Cir. 2013). "Th [is] defense has no conceivable validity in American law." (Internal quotation marks omitted.) United States v. Jonassen, 759 F.3d 653, 657 (7th Cir. 2014), cert. denied, - U.S. -, 136 S.Ct. 152, 193 L.Ed.2d 114 (2015). Noting that "[t]he defense of collateral estoppel is a civil law analogue to the criminal law's defense of double jeopardy"; (internal quotation marks omitted) Wiacek Farms, LLC v. Shelton, 132 Conn.App. 163, 167 n.4, 30 A.3d 27 (2011), cert. denied, 303 Conn. 918, 34 A.3d 394 (2012) ; the trial court also addressed whether the principles of collateral estoppel deprived the court of jurisdiction. We conclude that the court's determination that "collateral estoppel . is not a ground to challenge the court's subject matter jurisdiction" was correct. See, e.g., State v. T.D., 286 Conn. 353, 360 n.6, 944 A.2d 288 (2008) ("[T]he doctrine of collateral estoppel does not implicate a court's subject matter jurisdiction.... Even when applicable, therefore, collateral estoppel does not mandate dismissal of a case." [Citations omitted.] ). Practice Book § 17-42 provides in relevant part: "A motion to set aside a default where no judgment has been rendered may be granted by the judicial authority for good cause shown ." Practice Book § 17-32 (b) provides in relevant part: "If a [defendant] who has been defaulted under this section files an answer before a judgment after default has been rendered by the judicial authority, the default shall automatically be set aside by operation of law unless a claim for a hearing in damages . has been filed." Raffy's Café and Robles successfully moved for summary judgment on the counts directed at them that sounded in dram shop liability and reckless service of alcohol. They had argued that they were not liable for Brown's death because it was undisputed that they did not serve the defendant alcohol on the night of the stabbing. The defendant apparently agreed to provide them with an affidavit wherein he attested to, in pertinent part, the following: "On July 10, 2009, I was the owner of 159 Springdale Avenue, Meriden, Connecticut.... Raffy's Café is located directly adjacent to 159 Springdale Avenue, Meriden, Connecticut, with only a small driveway separating the properties.... In the roughly three- to four-hour period before 11:30 p.m. on July 10, 2009, I had been hanging out in the parking area of 159 Springdale Avenue.... At no time did I enter Raffy's Café on July 10, 2009.... At no time did anyone from Raffy's Café serve alcohol to me on July 10, 2009." The defendant's pleading that requested a new trial was entitled "Petition for a New Trial." (Emphasis added.) The trial court, however, characterized the pleading as a motion for a new trial. Although the defendant called the pleading "Petition for a New Trial," "[w]hen a case requires the court to determine the nature of a pleading, courts are not required to accept the label affixed by the moving party." Redding v. Elfire, LLC, 98 Conn.App. 808, 818, 911 A.2d 1141 (2006). After reviewing the record, we conclude that the pleading was "the functional equivalent of a motion, not a petition." Id., at 816, 911 A.2d 1141 ; see also id., at 819-20, 911 A.2d 1141 (pleading called "petition for a new trial" was properly treated as motion for new trial where pleading, although served upon adverse party, was not filed in separate action and was denied rather than dismissed by trial court). Specifically, we note: (1) the defendant did not serve the pleading upon the plaintiff by writ and complaint; (2) the defendant did not commence a separate proceeding by filing it in a new action instead of the action for which he was seeking a new trial; and (3) the trial court treated it as a motion by referring to it as a "motion" and by denying it rather than dismissing it. As explained in more detail below, we address the defendant's allegations of fraud and newly discovered evidence together because the gravamen of the defendant's claim is that he acquired newly discovered evidence of fraud. For instance, the defendant asserts that the phone records call into doubt whether he was present at the time of the stabbing. Regarding the medical examiner's report, the defendant claims that the state suppressed seven pages wherein it was supposedly concluded that Brown's cause of death was a gunshot wound. Furthermore, he asserts that the allegedly suppressed emergency calls demonstrate that the arrest warrant omitted that an emergency caller reported that she (1) saw someone other than the defendant push Brown during the altercation; (2) heard a gunshot; and (3) saw and heard someone other than the defendant make a phone call after the stabbing and admit to killing Brown. The defendant has not identified any authority imposing a duty on the court to arrange for an incarcerated self-represented party's appearance in a civil matter by issuing, sua sponte, a writ of habeas corpus ad testificandum. Likewise, we are unaware of any such authority. We do note, nevertheless, that the decisional law appears to suggest that no such duty exists. In McDuffee v. McDuffee, 39 Conn.App. 412, 664 A.2d 1164 (1995), an incarcerated party in postjudgment dissolution proceedings claimed that the trial court's refusal to grant her a continuance for child custody hearings violated her due process rights. Id., at 415, 664 A.2d 1164. In rejecting this claim, this court reasoned: "[The appellant] confuses her own inaction in failing to arrange to be present or to provide testimony at the hearing with an affirmative action by the trial court denying her the right to be present. This is a private custody dispute, and the court did nothing to prevent the [appellant] from appearing. The record is devoid of any indication that the [appellant] availed herself of any of the procedures that would have allowed her to provide evidence or to be present." (Emphasis omitted; footnote omitted.) Id., at 416, 664 A.2d 1164. We noted that procedures that the appellant could have used in securing her appearance at the hearings included "seek[ing] a writ of habeas corpus ad testificandum." Id., at 416, 664 A.2d 1164 n.5. See also In re J.F., 113 S.W.3d 698, 701 (Mo. App. 2003) ("[a] . court is not obligated to order, sua sponte, an inmate's appearance at a hearing in a civil case [to which he is a party]" [internal quotation marks omitted] ); cf. Muhammad v. Warden, Baltimore City Jail, 849 F.2d 107, 111-12 (4th Cir. 1988) ("Ideally, . a [party] should be present . [because] [n]ot only the appearance but the reality of justice is obviously threatened by his absence. The law recognizes this of course, but it also recognizes that there are countervailing considerations of expense, security, logistics, and docket control that prevent according prisoners any absolute right to be present."); In re Colburn, 30 Ohio St.3d 141, 141-42, 507 N.E.2d 1138, 1139-40 (1987) ("[t]he rule advanced here and elsewhere governing issuance of the writ [of a habeas corpus ad testificandum] in civil actions is that a litigant, including a [self-represented] prisoner, whether plaintiff or defendant, does not have an absolute right to issuance of the writ" [footnote omitted] ).

12487873

Enrico Vaccaro v. Shell Beach Condominium, Inc., et al.

Vaccaro v. Shell Beach Condo., Inc.

2016-10-18

AC 37811

1123

1147

148 A.3d 1123

148

West's Atlantic Reporter, Third Series

Connecticut Appellate Court

Connecticut

2021-08-27T20:57:14.002271+00:00

Fastcase

Enrico Vaccaro v. Shell Beach Condominium, Inc., et al.

Enrico Vaccaro v. Shell Beach Condominium, Inc., et al. AC 37811 Appellate Court of Connecticut. Argued May 17, 2016 Officially released October 18, 2016 Enrico Vaccaro, self-represented, with whom, on the brief, was Emily A. Gianquinto, for the appellant (plaintiff). Sharon Baldwin, for the appellee (named defendant). Daniel J. Krisch, with whom was Joshua M. Auxier, for the appellees (defendant Andrew Hames et al.). Sheldon, Prescott and Bear, Js.

12132

74421

BEAR, J. The plaintiff, Enrico Vaccaro, appeals from the summary judgment rendered by the trial court in favor of the defendants, Shell Beach Condominium, Inc. (association), and certain individual members of its board of directors, Andrew Hames, Frank Meolli, Michael Gagliardi, Michelle Augliera, and Raymond Vermette (individually named defendants), on the basis that all of the plaintiff's claims arising from the deprivation of the use of a particular garage were time barred. The plaintiff argues that the court erred in rendering summary judgment in favor of the defendants, because, inter alia: (1) the trial court applied the wrong statute of limitations to count one of his complaint, which sought to enforce the condominium instruments; and (2) genuine issues of material fact exist as to whether the applicable statutes of limitations were tolled by virtue of the continuing course of conduct doctrine. We affirm the judgment of the court. Evidence concerning the following facts and procedural history appears in the record. Shell Beach Condominium (condominium) is a condominium complex located in East Haven and organized pursuant to the Condominium Act of 1976 (Condominium Act), General Statutes § 47-68a et seq. It is comprised of forty-seven residential units and fifty-two garages, and includes a number of open-air parking spaces. The association is a nonstock corporation, owned by the unit owners of the condominium; membership in the association occurs immediately upon acquisition of title in a unit. The affairs of the condominium are conducted by a board of directors (board), all of whom are unit owners. See General Statutes § 47-80 (c) (1) (bylaws required to contain, inter alia, "[t]he election from among the unit owners of a board of directors"). Each of the individually named defendants was a member of the board when the plaintiff commenced this action. In 1999, the plaintiff became a unit owner in the condominium when he purchased his individual unit from Salvatore Amendola, who was assisted in the sale by his daughter, Rosalie Porrello. The warranty deed, dated May 26, 1999, and recorded May 27, 1999, purported to convey unit 14 and garage 49. During this transaction, the plaintiff was informed that garage 49 was the garage that would be conveyed with unit 14. Neither Amendola nor Porrello, however, discussed with the plaintiff any use of or ownership in garage 14. Further, although Amendola was a member of the board at the time of the transaction, he was selling a unit that he personally owned. Apart from his conversations with Amendola, the plaintiff did not speak with any member on the board at the time of the conveyance, nor did he speak with any of the individually named defendants, at or before the time of the closing. The plaintiff did not receive the condominium declaration prior to or during the closing; instead, the association mailed it to him at some point thereafter. Although the plaintiff received a copy of the declaration in 1999, he admittedly did not review that document until 2009. In January, 2009, the plaintiff received a tax assessment that he believed to be substantially higher than prior assessments. He contacted the assessor, and was informed that he was being assessed for both garage 14 and garage 49. After this conversation, the plaintiff examined the condominium instruments and came to believe that he was entitled to the exclusive use of garage 14, not garage 49. The plaintiff contacted the board and demanded that it, on behalf of the association, take action to provide him with use of garage 14 pursuant to the applicable statutory authority and provisions of the condominium instruments. After the board denied the plaintiff's request, the plaintiff commenced this action by summons and a seven count complaint on each of the defendants in July, 2009, in which he alleged, inter alia, that the defendants had deprived him of the use of garage 14 in violation of the condominium instruments and the Condominium Act. The defendants filed a motion for summary judgment on January 23, 2012, in which they claimed, inter alia, that the statutes of limitations had run on all seven counts of the plaintiff's complaint. After the court allowed additional time for the parties to conduct discovery, and the parties had filed additional briefs, the court heard argument on October 20, 2014. In a memorandum of decision dated February 9, 2015, the court granted the defendants' motion for summary judgment as to all counts, making several determinations relevant to this appeal. First, it determined that, pursuant to the declaration, garages are limited common elements of the condominium, rather than units as the defendants had contended. Second, it also determined that the declaration did not require that particular garages or parking areas be assigned to any particular units, and the defendants therefore had no ongoing duty to ensure that the plaintiff, as title owner of unit 14, be assigned garage 14. Having already concluded that there was no genuine issue of material fact concerning whether the applicable statute of limitations as to each count had run, the court accordingly rendered judgment for the defendants on all counts. The plaintiff filed a motion for reargument and/or reconsideration, which the court denied. This appeal followed. I The plaintiff argues that the court erred in rendering summary judgment on the first count of his complaint, in which he claimed that the defendants, by their conduct, had violated General Statutes § 47-75 (a), because it improperly relied upon the wrong limitations period in ruling on the timeliness of that claim. In this respect, the plaintiff makes two separate and distinct claims. First, he argues that the court erred in determining that any statute of limitations applies to count one because a claim under § 47-75 is equitable in nature. Second, he argues that, even if the court properly determined that the claim pleaded in his first count is subject to a statute of limitations, the court erred in determining that the applicable limitations period is the three year limitations period for tort actions. The determination of which statute of limitations applies to a given action is a question of law over which our review is plenary. See Fleet National Bank v. Lahm , 86 Conn.App. 403, 405, 861 A.2d 545 (2004), cert. denied, 273 Conn. 904, 868 A.2d 744 (2005). We address each of the plaintiff's claims in turn. A With respect to his first claim, the plaintiff argues that the court improperly determined that count one is subject to any statute of limitations because an action pursuant to § 47-75 is equitable, and equitable proceedings are not subject to statutes of limitations. We disagree. The following facts are relevant to the resolution of this claim. In the first count of the complaint, the plaintiff alleges that the defendants, pursuant to both § 47-75 and article 15 of the declaration, are required to comply with and enforce the condominium instruments and the Condominium Act. Pursuant to the declaration, the plaintiff alleges that garages are limited common elements, and that he, as the title owner of unit 14, is entitled to an exclusive easement in garage 14. He further alleges that the declaration forbids any attempt to convey or mortgage the title to a unit without conveying all appurtenant interests or any attempt to sell or transfer an appurtenant interest except as part of the unit to which it is attached, and that the defendants, "in violation of the condominium instruments and the Condominium Act," have "wilfully allowed and/or permitted and/or caused" the interest in garage 14 to be severed from unit 14 and unit 14 to be sold to the plaintiff without the exclusive use of garage 14, and have "wilfully allowed and/or caused and/or permitted and/or continue to permit" another unit owner to use garage 14. (Internal quotation marks omitted.) Further, the plaintiff alleges that the defendants have failed to correct this situation, despite demands by the plaintiff that they "comply with and enforce the condominium instruments, the Condominium Act . and the easement in favor of the plaintiff for the exclusive use of" the garage. (Internal quotation marks omitted.) As a result of the defendants' actions, the plaintiff alleges a number of injuries, including that he has been denied the use of garage 14 and has suffered financial harm because, inter alia, he has been assessed for and has paid taxes on that garage, paid for electricity for that garage, and the fair market value of his property has been substantially reduced. Counts two through seven of his complaint rely on most of the same operative facts as count one. In his prayer for relief, he seeks, inter alia, various forms of injunctive relief pursuant to § 47-75 and compensatory damages, but does not attempt to allocate any particular relief to any particular count. Our case law draws a distinction where statutes of limitations are concerned between purely equitable proceedings and actions where a party can seek both legal and equitable relief. "[I]n an equitable proceeding, a court may provide a remedy even though the governing statute of limitations has expired, just as it has discretion to dismiss for laches an action initiated within the period of the statute.... Although courts in equitable proceedings often look by analogy to the statute of limitations to determine whether, in the interests of justice, a particular action should be heard, they are by no means obliged to adhere to those time limitations." (Citations omitted.) Dunham v. Dunham , 204 Conn. 303, 326-27, 528 A.2d 1123 (1987), overruled in part on other grounds by Santopietro v. New Haven , 239 Conn. 207, 213 n.8, 221, 682 A.2d 106 (1996). The situation is different, however, where a party asserts a cause of action, pursuant to which it rightfully could seek both legal and equitable relief. "[W]here a party seeks equitable relief pursuant to a cause of action that would also allow that party to seek legal relief, concurrent legal and equitable jurisdiction exists, and the statute of limitations that would be applicable to bar the legal claim also applies to bar the equitable claim." (Internal quotation marks omitted.) Gager v. Sanger , 95 Conn.App. 632, 641-42, 897 A.2d 704, cert. denied, 280 Conn. 905, 907 A.2d 90 (2006). For instance, in Dowling v. Finley Associates, Inc. , 49 Conn.App. 330, 334-35, 714 A.2d 694 (1998), rev'd on other grounds, 248 Conn. 364, 727 A.2d 1245 (1999), this court held that the plaintiff's claims for equitable relief pursuant to a provision of the Connecticut Uniform Securities Act, General Statutes § 36b-29 (a), were barred by the time limitation set forth in that statute. A party asserting a claim pursuant to the Condominium Act can seek either legal or equitable relief; see General Statutes § 47-75 (a) ; and a fair reading of count one of the plaintiff's complaint and the prayer for relief therein suggests that the plaintiff sought both. Further, the plaintiff has pleaded the same essential facts in each of the counts on which he bases his claims for legal and equitable relief. See Certain Underwriters at Lloyd's, London v. Cooperman , 289 Conn. 383, 411, 957 A.2d 836 (2008) (affirming trial court's determination that, where legal claims for statutory theft and conversion were time barred, "the plaintiffs' equitable claims based on the same facts also [were] time barred" [emphasis added] ). Under these circumstances, the court has concurrent equitable and legal jurisdiction, and the running of the applicable limitation period would bar both the plaintiff's legal and equitable claims brought pursuant to § 47-75. B The plaintiff next argues that, even if the court properly determined that count one alleging a violation of § 47-75 is subject to a statute of limitations, it improperly determined that count one was subject to the three year limitations period set forth in General Statutes § 52-577, which governs torts generally. Noting "the unique nature of condominiums," he asserts that the Condominium Act is concerned with property rights and that the declaration provides that both the relevant statutory provisions and the condominium instruments are covenants that run with the land. Arguing that the appropriate limitations period therefore must be grounded in property law and asserting that his claims are similar to adverse possession claims, the plaintiff contends that the only potentially applicable limitations period is the fifteen year period prescribed for such an action by General Statutes § 52-575 (a). The individually named defendants and the association disagree with the plaintiff and with each other as to which statute of limitations applies to claims brought pursuant to § 47-75. The individually named defendants assert that, because the plaintiff repeatedly contends that the defendants violated the Condominium Act, count one asserts a claim for a statutory violation and, thus, is subject to § 52-577. In contrast, the association claims that the plaintiff's first cause of action asserts a violation of the defendants' duties pursuant to the declaration and, therefore, is governed by General Statutes § 52-576 (a), or, if interpreted as asserting a violation of the Condominium Act, by § 52-577. We conclude that either § 52-576 or § 52-577 would apply to bar this cause of action. "[W]hen 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." Bellemare v. Wachovia Mortgage Corp ., 284 Conn. 193, 199, 931 A.2d 916 (2007) ; see also 51 Am. Jur. 2d 533, Limitation of Actions § 129 (2000) ("The nature of the cause of action or of the right sued upon is the test by which to determine which statute of limitations applies and whether the action is barred by the running of the limitation period. Thus, for an action under a state statute that lack[s] an express limitations period, the courts look to analogous causes of action for which express limitations periods are available, either by statute or by case law." [Footnote omitted.] ). A number of cases have addressed whether an action sounds in contract or in tort. See, e.g., Meyers v. Livingston, Adler, Pulda, Meiklejohn & Kelly, P.C. , 311 Conn. 282, 290-93, 87 A.3d 534 (2014) ; Bellemare v. Wachovia Mortgage Corp ., supra, 284 Conn. at 200-204, 931 A.2d 916 ; Gazo v. Stamford , 255 Conn. 245, 262-67, 765 A.2d 505 (2001). "[T]he fundamental difference between tort and contract lies in the nature of the interests protected.... The duties of conduct which give rise to [a tort action] are imposed by the law, and are based primarily upon social policy, and not necessarily upon the will or intention of the parties.... Furthermore, other courts have held that, when a plaintiff seeks to recover damages for the breach of a statutory duty, such an action sounds in tort." (Citation omitted; internal quotation marks omitted.) Bellemare v. Wachovia Mortgage Corp ., supra, at 200, 931 A.2d 916. "On the other hand, [c]ontract actions are created to protect the interest in having promises performed. Contract obligations are imposed because of [the] conduct of the parties manifesting consent, and are owed only to the specific individuals named in the contract.... In short, [a]n action in contract is for the breach of a duty arising out of a contract; an action in tort is for a breach of duty imposed by law." (Citation omitted; internal quotation marks omitted.) Id. In this case, we are not required to resolve whether count one sounds in contract or in tort. The court in its memorandum of decision determined that the applicable statute of limitations for each count of the plaintiff's complaint began to run in May, 1999, when the plaintiff purchased unit 14 in a deed dated May 26, 1999, and recorded on May 27, 1999. The plaintiff has not argued on appeal that the court erred in relying on this date. Thus, as it also is uncontested that this action was commenced in July, 2009, count one would be outside the limitations period provided under either § 52-576 or 52-577 and, in the absence of an equitable basis for tolling the limitations period, would be barred. In this light, we now consider the plaintiff's arguments that the most applicable limitations period is not one governing claims sounding in tort or in contract, but rather the time period provided in § 52-575, which defines a claimant's right to title based on adverse possession. "[T]o establish title by adverse possession, the claimant must oust an owner of possession and keep such owner out without interruption for fifteen years by an open, visible and exclusive possession under a claim of right with the intent to use the property as his own and without the consent of the owner.... A finding of adverse possession is to be made out by clear and positive proof.... The burden of proof is on the party claiming adverse possession." (Internal quotation marks omitted.) Caminis v. Troy , 300 Conn. 297, 311, 12 A.3d 984 (2011). The courts of this state frequently have referred to the fifteen year period provided in § 52-575 (a) as a statute of limitations. See, e.g., id. ; Pollansky v. Pollansky , 162 Conn.App. 635, 654, 133 A.3d 167 (2016) ; Eberhart v. Meadow Haven, Inc ., 111 Conn.App. 636, 645-46, 960 A.2d 1083 (2008). A determination that an adverse possessor meets the requirements of § 52-575 (a) prevents the original title owner from recovering on equitable claims based on title to the property. See Caminis v. Troy , supra, at 299-300, 12 A.3d 984 (affirming trial court judgment against plaintiff seeking declaratory and injunctive relief on alternative ground that claims were "barred because they were brought outside the fifteen year limitations period"). A proper framing of the plaintiff's theory of recovery and of the relationships among the parties reveals compelling reasons to reject the plaintiff's proposal to use the limitations period set forth in our adverse possession statute. In the plaintiff's analogy, he is the rightful owner or possessor of garage 14 by virtue of the condominium instruments; therefore, if the analogy were to hold, he would be suing the defendants as the adverse possessors of the property. He does not allege or present any evidence, however, that the association or the individually named defendants, in their roles as directors of the board of the condominium, are in actual possession, or have been in possession, of garage 14 since the allegedly impermissible severance of that interest from unit 14, and no evidence in the record supports such a finding. Nor does he allege in his complaint or present any evidence showing that the current owner and user of garage 14, who has never been made a party to this action, is using it pursuant to the type of agreement or relationship with the defendants from which it could be inferred that the defendants, through that occupant, have been making the type of adverse and hostile use of the property in derogation of the plaintiff's interest that would constitute adverse possession. Cf. Richmond v. Stahle , 48 Conn. 22, 23 (1880) (possession by tenant of adversely possessing landlord may be tacked onto landlord's use when determining whether landlord has held property against third parties' possessory interest for statutory period). Instead, the plaintiff's entire theory of recovery against the defendants rests on the assertion that they breached their statutory and contractual duties to him by causing or failing to prevent the severance of garage 14 from unit 14 and by failing thereafter to take any action to return possession of the garage to him. Actions that assert a breach of a duty sound in contract or tort, depending on the source of the duty alleged. See Bellemare v. Wachovia Mortgage Corp ., supra, 284 Conn. at 200, 931 A.2d 916. It is undisputed that the court is required in cases such as this one to determine what is the most analogous statute of limitations, given the "nature of the cause of action or of the right sued upon." Id., at 199, 931 A.2d 916. The analysis employed by our Supreme Court in Bellemare could support the application in this case of either the general tort or written contract statute of limitations. Determining that an action seeking damages for violation of General Statutes § 49-8, the mortgage release statute, sounded in tort, our Supreme Court noted that, despite the presence of a contract, the duty contemplated arose entirely by statute and would exist even without any specific terms in a mortgage contract. Id., at 200-201, 931 A.2d 916 ("the mortgage contract may be silent with regard to the issuance of a release, may provide for a longer or shorter time period for the issuance of a release, or may be vague or uncertain as to the period for the issuance of a release"). Unlike this case, however, the court in Bellemare also noted that "[t]here [was] no allegation in this count of the complaint that a term of the mortgage contract had been breached"; id., at 201, 931 A.2d 916 ; and that "the record and case file do not contain a copy of the mortgage contract" at issue there. Id., at 201 n. 8. Additionally, accepting the plaintiff's adverse possession argument would result in one of two unfavorable outcomes. First, at a bare minimum, it would require the courts to apply different limitations periods to a single duty, which is something that we generally seek to avoid because it would lead to an unpredictable result. See id., at 201-202, 931 A.2d 916 (rejecting interpretation of § 49-8 that would, inter alia, result in different limitations periods depending on specific claim brought). Alternatively, it would necessitate that we apply a fifteen year statute of limitations period to all claims pursuant to § 47-75 (a), regardless of the type of claim asserted, the source of the right sued upon, or the particular relief requested. "[I]t is axiomatic that those who promulgate statutes . do not intend to promulgate statutes . that lead to absurd consequences or bizarre results." (Internal quotation marks omitted.) State v. Courchesne , 296 Conn. 622, 710, 998 A.2d 1 (2010). Although we note that the plain language of the statute might support an argument for the application of two statutes of limitations-one for those coming from the condominium instruments, another for those duties specifically arising from the Condominium Act; see General Statutes § 47-75 (a) (liability results from failure to comply "with [the Condominium Act], the condominium instruments, and the rules and regulations adopted pursuant thereto"); we conclude that the plaintiff has not presented any reason for us to risk either further confusion or a patently absurd result by applying yet a third potential limitations period that finds no explicit support within the section's text. Finally, although the nature of the relief requested can be indicative of the nature of the right or cause of action at issue; see Gazo v. Stamford , supra, 255 Conn. at 265-66, 765 A.2d 505 (action seeking damages for, inter alia, pain and suffering sounded in tort, not contract); it is by no means determinative in every case. See Bellemare v. Wachovia Mortgage Corp ., supra, 284 Conn. at 200-204, 931 A.2d 916 (relying on numerous factors, including source of underlying duty, desirability of having one statute of limitations for duty created by statute, and similarity of claim pursuant to § 49-8 to common-law action for slander of title, to determine that § 49-8 claim sounds in tort); see also Bellemare v. Wachovia Mortgage Corp. , 94 Conn.App. 593, 600-605, 894 A.2d 335 (2006) (relying on additional factors, such as structure of complaint's allegations, "distinct relief" requested for each count, and legislative history and statutory scheme of § 49-8 ), aff'd, 284 Conn. 193, 931 A.2d 916 (2007). The nature of the right or cause of action alleged by the plaintiff in count one is not similar in its essence to an adverse possession claim, and we reject the plaintiff's argument that the only appropriate statute of limitations for that cause of action is that set forth in § 52-575. Accordingly, the trial court properly concluded that the first count of the plaintiff's complaint was time barred. II The plaintiff next argues that the court improperly rendered summary judgment because it erroneously determined that five counts of his complaint were time barred due to his failure to demonstrate a genuine issue of material fact as to the applicability of the continuing course of conduct doctrine. We disagree. "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 seeking summary judgment has the burden of showing the absence of any genuine issue [of] material facts which, under applicable principles of substantive law, entitle him to a judgment as a matter of law . and the party opposing such a motion must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact.... A material fact . [is] a fact which will make a difference in the result of the case.... Finally, the scope of our review of the trial court's decision to grant the [defendant's] motion for summary judgment is plenary.... Summary judgment may be granted where the claim[s] [are] barred by the statute of limitations.... Summary judgment is appropriate on statute of limitations grounds when the material facts concerning the statute of limitations [are] not in dispute . "[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." (Citation omitted; internal quotation marks omitted.) Flannery v. Singer Asset Finance Co., LLC , 312 Conn. 286, 309-310, 94 A.3d 553 (2014). The plaintiff does not argue that the court erred in relying upon the transfer of the unit from Amendola to the plaintiff in May, 1999, as the relevant point for determining when the various statutes of limitations began to run. Additionally, beyond his arguments concerning the appropriate statute of limitations, if any, governing count one, he does not contest that, without the application of a ground to justify the equitable tolling of the statute of limitations, each of the five remaining counts would be barred as beyond the applicable limitations period. See Rickel v. Komaromi , 144 Conn.App. 775, 782, 73 A.3d 851 (2013) (trespass claims subject to three year limitations period in § 52-577 ); Blinkoff v. O & G Industries, Inc. , 113 Conn.App. 1, 8, 965 A.2d 556 ("General Statutes § 42-110g [f], which governs CUTPA claims, provides: An action under this section may not be brought more than three years after the occurrence of a violation of this chapter" [internal quotation marks omitted] ), cert. denied, 291 Conn. 913, 969 A.2d 175 (2009) ; Ahern v. Kappalumakkel , 97 Conn.App. 189, 192 n.3, 903 A.2d 266 (2006) ("[b]reach of fiduciary duty is a tort action governed by the three year statute of limitations contained within . § 52-577 "); Bellemare v. Wachovia Mortgage Corp. , supra, 94 Conn. App. at 610, 894 A.2d 335 ("a claim brought pursuant to a contract, alleging a breach of the implied covenant of good faith and fair dealing, sounds in contract . [and] is therefore subject to the six year contract statute of limitations as provided in § 52-576 ); see also part I B of this opinion (determining whether § 52-577 or 52-576 is applicable statute of limitations to cause of action in count one unnecessary under facts of this case). Instead, the plaintiff asserts that these limitations periods were tolled by the continuing course of conduct doctrine. "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." (Citations omitted; internal quotation marks omitted.) Flannery v. Singer Asset Finance Co., LLC , supra, 312 Conn. at 311, 94 A.3d 553. "[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 ." (Citations omitted; internal quotation marks omitted.) Targonski v. Clebowicz , 142 Conn.App. 97, 108-09, 63 A.3d 1001 (2013). "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." (Internal quotation marks omitted.) Flannery v. Singer Asset Finance Co., LLC , supra, 312 Conn. at 313, 94 A.3d 553. "[I]f there is no genuine issue of material fact with respect to any one of the three prongs . summary judgment is appropriate." Cefaratti v. Aranow , 154 Conn.App. 1, 11, 105 A.3d 265 (2014), rev'd on other grounds, 321 Conn. 593, 141 A.3d 752 (question certified in plaintiff's petition), aff'd, 321 Conn. 637, 138 A.3d 837 (question certified in defendants' petition) (2016). In support of his claim that the continuing course of conduct doctrine applies, the plaintiff makes the following contentions. First, he asserts that, pursuant to the declaration, garage 14 is assigned as a limited common element to unit 14. Other provisions of the declaration, he contests, forbid the severance of the garage from the unit, and, pursuant to the Condominium Act and the condominium instruments, the defendants had the power and obligation to both prevent this severance and take the necessary actions to correct the continuance thereof. Thus, although the plaintiff asserted varying theories of recovery in his complaint, some of which do not require the existence of a duty of care, the central underlying ground for each of the plaintiff's arguments concerns the duties owed to the plaintiff "from the [Condominium] Act and the condominium instruments, which place the obligation of enforcing their provisions on the association." "Duty is a legal conclusion about relationships between individuals, made after the fact . 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." (Internal quotation marks omitted.) Lawrence v. O & G Industries, Inc. , 319 Conn. 641, 649, 126 A.3d 569 (2015). "A duty . may arise from a contract [or] . from a statute ." Coburn v. Lenox Homes, Inc. , 186 Conn. 370, 375, 441 A.2d 620 (1982). Reviewing the plaintiff's claims requires us to consider and interpret those provisions of the Condominium Act and the condominium instruments relevant to the issues raised; we restate the principles that govern this analysis. "[C]onstruing a statute is a question of law." Somers West Towne Houses, Inc. v. LAS Properties Ltd. Partnership , 108 Conn.App. 426, 432, 949 A.2d 483 (2008). "The principles that govern statutory construction are well established. 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 ." (Internal quotation marks omitted.) Mickey v. Mickey, 292 Conn. 597, 613-14, 974 A.2d 641 (2009). Determining the defendants' responsibilities under the condominium instruments on which the plaintiff relies-specifically, the declaration and the bylaws-also requires resolution of questions of law. Oronoque Shores Condominium Assn. No. 1, Inc. v. Smulley , 114 Conn.App. 233, 237, 968 A.2d 996 ("The interpretation of a condominium's declaration presents a question of law.... We also conduct plenary review of corporate articles and bylaws." [Citation omitted; internal quotation marks omitted.] ), cert. denied, 292 Conn. 922, 974 A.2d 722 (2009). "Because the [condominium] declaration operates in the nature of a contract, in that it establishes the parties' rights and obligations, we apply the rules of contract construction to the interpretation of [the declaration]." (Internal quotation marks omitted.) Harbour Pointe, LLC v. Harbour Landing Condominium Assn., Inc ., 300 Conn. 254, 259, 14 A.3d 284 (2011). "[W]e first attempt to ascertain the parties' intent from the language they used in their contract, looking at the contract as a whole and giving the contract's words their ordinary meaning and one that renders its provisions consistent.... Only if the language in the contract is truly capable of more than one reasonable interpretation will we look to evidence beyond the contract language for guidance as to what the parties intended." (Citation omitted.) C & H Electric, Inc. v. Bethel , 312 Conn. 843, 853, 96 A.3d 477 (2014). "The rules of construction dictate giving effect to all the provisions of a contract, construing it as a whole and reconciling its clauses. . Where two clauses which are apparently inconsistent may be reconciled by a reasonable construction, that construction must be given, because it cannot be assumed that the parties intended to insert inconsistent and repugnant provisions." (Internal quotation marks omitted.) Regency Savings Bank v. Westmark Partners , 59 Conn.App. 160, 166, 756 A.2d 299 (2000). "[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.) Harbour Pointe, LLC v. Harbour Landing Condominium Assn., Inc. , supra, 300 Conn. at 260-61, 14 A.3d 284. Even if we were to accept the plaintiff's argument that the declaration, at its inception, required the allocation of garage 14 to unit 14, and unit 14 alone, and that the defendants had breached the declaration by causing or permitting the garage to be severed from that unit, the plaintiff still would have to prove that any duty owed by the defendants to the plaintiff was continuing. As previously noted, the plaintiff relies on the applicable provisions of the Condominium Act and the condominium instruments as the sources of that alleged duty of care. Section 47-75 (a) provides in relevant part: "Each unit owner, and the association of unit owners, shall comply with this chapter, the condominium instruments, and the rules and regulations adopted pursuant thereto. Failure to so comply shall be ground for an action to recover damages or for injunctive relief, or for any other relief to which the party bringing such action may be entitled. Such action may be brought by the association of unit owners against any unit owner or owners or, in any proper case, by one or more aggrieved unit owners on their own behalf or as a class action...." Article 15 of the declaration contains very similar language to § 47-75. See footnote 17 of this opinion. Turning to the bylaws, § 4 (b) provides in relevant part: "The Board of Directors shall have the powers and duties necessary for the administration of the affairs of the Association and shall do all such acts or things except as by law or by the Declaration or by these Bylaws may not be delegated to the Board of Directors by the Unit Owners.... The Board of Directors shall have the power to enforce the obligations of the Unit Owners . and to do anything and everything else necessary and proper for the sound management of the Association." That section also contains a number of illustrative "powers and duties" of the board. Examining these provisions, none of them defines how the board of directors or association is to execute its power in any enforcement action, or when, if ever, it rightly may choose not to act at all; rather, they merely provide that the defendants "shall have the powers" to enforce the Condominium Act or the condominium instruments. Thus, any duty owed by the association is not an absolute duty to act in all cases. Furthermore, we note that these provisions stand in stark contrast to other provisions of the Condominium Act, the declaration, and the bylaws that affirmatively require certain actions be taken or the manner in which those actions are to be taken. Finally, none of these provisions establishes any requirement that the association redress prior breaches of its duty to enforce the Condominium Act or the condominium instruments. In support of his claim that the defendants had an ongoing responsibility to remedy a past breach of its duties, the plaintiff also relies on § 10 (g) of the bylaws. That subsection provides: "The violation of any rule or regulation adopted by the Association, or the breach of any Bylaw contained herein, or the breach of any provision of the Declaration, shall give the Association the right, in addition to any other rights set forth in these Bylaws: "i. [T]o enter the Unit in which, or as to which, such violation or breach exists and to summarily abate and remove, at the expense of the defaulting Unit Owner, any structure, thing, or condition that may exist therein contrary to the interest and meaning of the provisions hereof and the Association shall not be there by deemed guilty of trespass; or "ii. [T]o enjoin, abate, or remedy by appropriate legal proceedings, either at law or in equity, the continuance of any such breach." This provision, however, like those previously discussed, gives the board "the right" to take action, but does not dictate the manner in which that right is to be exercised or the circumstances under which the board may refrain from acting. The subsection cannot be read to impose an absolute ongoing duty on the defendants to remedy any and all breaches of the Condominium Act or condominium instruments, no matter how minor the breach or how distant in the past the violation occurred. Even more damaging to the plaintiff's argument, however, is that the basic nature of the continuing course of conduct doctrine counsels strongly against the plaintiff's position that whatever duty that the association might have had was ongoing. "[T]he continuing course of conduct doctrine reflects the policy that, during an ongoing relationship, lawsuits are premature because specific tortious acts or omissions may be difficult to identify and may yet be remedied." (Emphasis added; internal quotation marks omitted.) Flannery v. Singer Asset Finance Co., LLC , supra, 312 Conn. at 312, 94 A.3d 553. This court has similarly observed that "[t]he doctrine . is better suited to claims where the situation keeps evolving after the act complained of is complete . rather than one where the situation cannot change ." Sanborn v. Greenwald , 39 Conn.App. 289, 297-98, 664 A.2d 803 (1995). We also note our Supreme Court's statements in the recent case of Watts v. Chittenden , 301 Conn. 575, 22 A.3d 1214 (2011). There, "examining the use of the continuing course of conduct doctrine, [our Supreme Court was] mindful of the nature of the doctrine as [then] Chief Judge Richard Posner of the Seventh Circuit Court of Appeals has explained . [that] [a] violation is called continuing signifying that a plaintiff can reach back to its beginning even if that beginning lies outside the statutory limitations period, when it would be unreasonable to require or even permit him to sue separately over every incident of the defendant's unlawful conduct. The injuries about which the plaintiff is complaining in [these] case[s] are the consequence of a numerous and continuous series of events.... When a single event gives rise to continuing injuries . the plaintiff can bring a single suit based on an estimation of his total injuries, and that mode of proceeding is much to be preferred to piecemeal litigation despite the possible loss in accuracy. But in [cases in which the continuing course of conduct doctrine is applicable, each incident increases the plaintiff's injury]. Not only would it be unreasonable to require him, as a condition of preserving his right to have [the full limitations period] to sue . to bring separate suits [during the limitations period] after each [incident giving rise to the claim]; but it would impose an unreasonable burden on the courts to entertain an indefinite number of suits and apportion damages among them." (Internal quotation marks omitted.) Fradianni v. Protective Life Ins. Co. , 145 Conn.App. 90, 98-99, 73 A.3d 896, cert. denied, 310 Conn. 934, 79 A.3d 888 (2013). Rather, the doctrine applies to cases "that involv[e] a continuing course of conduct which over a period of years cause[s] injury. Since usually no single incident in a continuous chain of tortious activity can fairly or realistically be identified as the cause of significant harm, it seems proper to regard the cumulative effect of the conduct as actionable." (Internal quotation marks omitted.) Watts v. Chittenden, supra, at 592, 22 A.3d 1214, quoting Twyman v. Twyman , 790 S.W.2d 819, 821 (Tex. App. 1990), rev'd on other grounds, 855 S.W.2d 619, 620 (Tex. 1993). In the present case, the original wrong, if any, was completed either upon the 1986 purported conveyance of garage 14 separate from the like numbered unit or, at the absolute latest, upon the 1999 transfer of unit 14 to the plaintiff without garage 14. All of the injuries claimed by the plaintiff arise from either, or both, of those acts or occurrences, and the plaintiff has pointed to no separate injuries that have arisen as a result of any ongoing failure by the defendants to enforce his alleged rights under the documents. These circumstances do not present the type of case that merits the application of the continuing course of conduct doctrine. Additionally, the plaintiff has not produced any evidence that the defendants have breached any ongoing duty to enforce the condominium instruments. In particular, we note that, although the provisions of the Condominium Act and condominium instruments delineate the defendants' powers to address violations, no evidence or law has been presented by the plaintiff in support of his claims that there are genuine issues of material fact or that summary judgment is incorrect as a matter of law, from which we could conclude that the defendants' failure to do so under the facts of this case is an abuse of their discretion. No evidence or law has been presented concerning the circumstances under which the choice not to enforce a provision of the condominium instruments constitutes a breach of the association's duty. Further, we also note that there is evidence that the deed purporting to convey garage 14 separately from unit 14 was executed in 1986 by the developer; see footnotes 23 and 25 of this opinion; and no evidence has been submitted that the garage and unit, if they were originally required by the declaration to be conjoined, ever have been conjoined in the same owner. In summary, the plaintiff has not raised a genuine issue of material fact in this case that requires or justifies application of the continuous course of conduct doctrine, and we therefore decline the plaintiff's invitation to apply it. The judgment is affirmed. In this opinion the other judges concurred. Because we affirm the judgment on the basis that the plaintiff's claims are time barred, we do not consider the plaintiff's arguments that the court improperly determined that other grounds existed for granting the motion for summary judgment as to his claims of trespass and unfair trade practices in violation of the Connecticut Unfair Trade Practices Act (CUTPA), General Statutes § 42-110a et seq. Although a point of contention in the trial court, we do not need to determine conclusively whether the court properly determined that, pursuant to the terms of the condominium declaration, garages are limited common elements and not separate units. Even if we were to conclude that the court properly determined that garages are limited common elements under the declaration, the plaintiff cannot prevail on the remaining aspects of his claim that the defendants owed, and continuously breached, any duty they had as to him. Consequently, we also do not address the plaintiff's arguments that certain actions by the defendants in 2009 tolled the statute of limitations, as the plaintiff explicitly premises these arguments on this court's determination that, contrary to the trial court's memorandum of decision, the garages are separate units. Pursuant to the warranty deed, the plaintiff received "all that certain real property . known as 2 Old Town Highway, Unit #14, and Garage #49, East Haven, CT ." On the date of this conveyance, however, Porrello, and not Amendola, was the record owner of garage 49. There is no indication in the record that Amendola or Porrello ever had used or owned garage 14, which, from April 1, 1986, appears to have been owned and used by the owner of unit 19. See footnotes 23 and 25 of this opinion. Indeed, Amendola was not a party to the underlying action, and the court noted in its memorandum of decision granting summary judgment that "the plaintiff has not alleged any legal relationship or agency between the defendants and Amendola." In fact, most of the individually named defendants were not unit owners when the plaintiff purchased his unit. Pursuant to General Statutes § 47-68a (d), " '[c]ondominium instruments' " include: the declarations, bylaws, survey maps, and plans recorded and filed pursuant to chapter 825 of the General Statutes; any exhibit, schedule, or certification appended to, and recorded or filed with, any declaration, bylaw, survey map, or plan; and any amendment or certification of a declaration, bylaw, survey map, or plan made in accordance with the Condominium Act. Certain other facts informed the plaintiff's belief that he had an exclusive right to garage 14. Garage 14 is attached to the building in which the plaintiff's unit is located; however garage 49 is considerably farther away. Additionally, at least some of the garages do not have separate meters for electricity, but, instead, are metered through the like numbered unit to which they are attached. In this complaint, the plaintiff asserted the following causes of action against the defendants: violation of General Statutes § 47-75 (count one); breach of fiduciary duty (count two); fraudulent misrepresentation (count three); trespass (count four); CUTPA (count five); negligent infliction of emotional distress (count six); and "tortuously" breaching the implicit covenant of good faith and fair dealing (count seven). At the time that the defendants filed their motion for summary judgment, the defendants were represented jointly by the same law firms. Subsequently, on August 31, 2012, counsel for the association withdrew representation as to the individually named defendants, and the association and the individually named defendants are represented separately in this appeal. Pursuant to § 47-68a (g), a limited common element within the meaning of the Condominium Act "means and includes those common elements designated in the declaration as reserved for the use of a certain unit or units to the exclusion of other units." A common element, in turn, is any part of a condominium that is not a unit. General Statutes § 47-68a (e). Subsections (d) and (h) of the declaration explicitly incorporate these definitions, but then each provide specific examples of what shall be considered a common element and limited common element, respectively, in the condominium. A "unit" in the Condominium Act is defined by § 47-68a (b) as "a part of the property including one or more rooms or designated spaces located on one or more floors or a part or parts thereof in a building, intended for any type of independent use, and with a direct exit to a public street or highway or to common elements leading to such street or highway." In light of our decision, it is not necessary for us to determine if garage 14 is a unit or a limited common element. Article 2 (b) of the declaration defines a unit as "a part of the property including one or more rooms or enclosed spaces or recessed balconies and recessed decks located on one or more floors or parts thereof in a building intended for the uses as are more particularly defined in Article 9 of this Declaration, and with a direct exit to a common element leading to a public street or highway. It shall comprise one of the separate and numbered units which are designated in Schedule C attached hereto and made a part hereof, each of which is more particularly described in the Floor Plans of the building referred to in Article 4 hereof, excluding, however, all spaces and improvements lying beneath the undecorated and/or unfinished inner surfaces of the perimeter walls, trim, and floors, and above the undecorated and/or unfinished inner surfaces of the ceilings, and further excluding all spaces and improvements lying beneath the undecorated and/or unfinished inner surfaces of all interior bearing walls and/or bearing partitions, and partition walls between separate Units and between Units and the Common Elements and Facilities, and further excluding all pipes, ducts, wires, conduits and other facilities running through any interior wall or partition for the furnishing of utility services to other Units or Common Elements. A [U]nit shall include all doors installed within or providing access to a Unit and the heating facility and all window glass installed in any wall or partition in or adjacent to a Unit." Although disposing of the entire case by determining that there was not a genuine issue of material fact and that the defendants were entitled to judgment as a matter of law with respect to their statutes of limitations defenses, the court also determined that separate grounds existed for granting the motion as to the fraudulent misrepresentation, trespass, CUTPA, and negligent infliction of emotional distress claims. On appeal, the plaintiff does not challenge the court's decision as to his fraudulent misrepresentation and negligent infliction of emotional distress claims. We address a preliminary matter before considering the merits of the plaintiff's arguments. It is uncontested that the condominium in question was created prior to January 1, 1984, and, therefore, generally is governed by the terms of the Condominium Act and not the Common Interest Ownership Act, General Statutes § 47-200 et seq. (Common Interest Ownership Act). See General Statutes § 47-214. Despite this uncontested fact, certain defined provisions of the Common Interest Ownership Act are applicable to preexisting common interest communities. See General Statutes § 47-216. Because the parties generally have neither raised nor briefed the potential applicability of these provisions, however, we will analyze the issues raised primarily pursuant to the applicable provisions of the Condominium Act. General Statutes § 47-75 (a) provides: "Each unit owner, and the association of unit owners, shall comply with this chapter, the condominium instruments, and the rules and regulations adopted pursuant thereto. Failure to so comply shall be ground for an action to recover damages or for injunctive relief, or for any other relief to which the party bringing such action may be entitled. Such action may be brought by the association of unit owners against any unit owner or owners or, in any proper case, by one or more aggrieved unit owners on their own behalf or as a class action. If any such action results in a final judgment or decree in favor of the party instituting such action, such judgment or decree may incorporate a provision for reasonable attorney's fees, as specified in such judgment or decree, to be paid by the party against whom such judgment or decree is entered." To support his claim that a claim brought pursuant to § 47-75 is equitable in nature, the plaintiff urges us to take cognizance of the "unique amalgamation of property, contract, and tort law" at work in the Condominium Act. Thus, he asserts that an action to enforce the condominium instruments and the Condominium Act is akin to an action to enforce a restrictive covenant, which may be enforced by an injunction, and relies upon both the nature of the relief that he seeks as well as the equivalent provision in the Common Interest Ownership Act to show that a § 47-75 action is equitable. See General Statutes § 47-278 (a) ("A declarant, association, unit owner or any other person subject to this chapter may bring an action to enforce a right granted or obligation imposed by this chapter, the declaration or the bylaws. The court may award reasonable attorney's fees and costs."). The pertinent language of article 15 of the declaration essentially incorporates the text of § 47-75 (a) and broadens its application. Article 15 provides in relevant part: "All present and future Owners, tenants, and occupants of Units and the Association of Unit Owners shall be subject to and shall comply with [the Condominium Act], the provisions of this Declaration, and the Bylaws, attached hereto and as they may be amended from time to time, as well as to such regulations as may be adopted by the Board of Directors of the Association, pursuant thereto. Failure to so comply shall be ground for an action to recover damages or for injunctive relief or for any other relief to which the party bringing such action may be entitled. Such action may be brought by the Association against any Unit Owner or Owners, or, in any proper case, by one or more aggrieved Unit Owners on their own behalf or as a class action." Because of this determination, the plaintiff's remaining arguments require little attention. We note that the plaintiff's contention that his action is similar to one to enforce a restrictive covenant would not necessarily exempt his cause of action from being time barred. See General Statutes § 52-575a ("[n]o action or any other type of court proceeding shall be brought to enforce a private restriction recorded in the land records of the municipality in which the property is located or a notation on a filed map pertaining to the use of privately owned land . unless such action or proceeding shall be commenced within three years of the time that the person seeking to enforce such restriction had actual or constructive knowledge of such violation"). 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." "[T]he three-year limitation of § 52-577 is applicable to all actions founded upon a tort which do not fall within those causes of action carved out of § 52-577 and enumerated in [General Statutes] § 52-584 or another section." (Internal quotation marks omitted.) Travelers Indemnity Co. v. Rubin , 209 Conn. 437, 441, 551 A.2d 1220 (1988). "The date of the act or omission complained of is the date when the . conduct of the defendant occurs ." (Internal quotation marks omitted.) Certain Underwriters at Lloyd's, London v. Cooperman , supra, 289 Conn. at 408, 957 A.2d 836 ; see also Farnsworth v. O'Doherty , 85 Conn.App. 145, 150, 856 A.2d 518 (2004) ("[t]he 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" [internal quotation marks omitted] ). Given this characterization, as well as the clear centrality to the plaintiff's claim of the provisions in the declaration that forbid the severance of interests appurtenant to a unit, we note the failure of the parties to consider the potential applicability of General Statutes § 52-575a. See footnote 18 of this opinion. Because the parties have limited their arguments to three potential statutes of limitations, however, and have not briefed this issue, we do not consider whether this statute of limitations governs the plaintiff's claim. General Statutes § 52-575 (a) provides: "No person shall make entry into any lands or tenements but within fifteen years next after his right or title to the same first descends or accrues or within fifteen years next after such person or persons have been ousted from possession of such land or tenements; and every person, not entering as aforesaid, and his heirs, shall be utterly disabled to make such entry afterwards; and no such entry shall be sufficient, unless within such fifteen-year period, any person or persons claiming ownership of such lands and tenements and the right of entry and possession thereof against any person or persons who are in actual possession of such lands or tenements, gives notice in writing to the person or persons in possession of the land or tenements of the intention of the person giving the notice to dispute the right of possession of the person or persons to whom such notice is given and to prevent the other party or parties from acquiring such right, and the notice being served and recorded as provided in sections 47-39 and 47-40 shall be deemed an interruption of the use and possession and shall prevent the acquiring of a right thereto by the continuance of the use and possession for any length of time thereafter, provided an action is commenced thereupon within one year next after the recording of such notice. The limitation herein prescribed shall not begin to run against the right of entry of any owner of a remainder or reversionary interest in real estate, which is in the adverse possession of another, until the expiration of the particular estate preceding such remainder or reversionary estate." General Statutes § 52-576 (a) provides in relevant part: "No action . on any contract in writing . shall be brought but within six years after the right of 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.... 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 for determining the appropriate date when a statute of limitations begins to run is to establish the time when the plaintiff first successfully could have maintained an action. That is, an action cannot be maintained until a right of action is complete and hence, the statute of limitations cannot run before that time.... A cause of action does not accrue for the purposes of a statute of limitations until all elements are present, including damages, however trivial. However, the occurrence of an act or omission . that causes a direct injury, however slight, may start the statute of limitations running against the right to maintain an action even if the plaintiff is not aware of the injury, and even if all resulting damages have not yet occurred; it is sufficient if nominal damages are recoverable for the breach or for the wrong, and where that is the case, it is unimportant that the actual or substantial damage is not discovered or does not occur until later. The fact that the extent of the damages cannot be determined at the time of the wrongful act does not postpone the running of the statute of limitations." (Citations omitted; footnote omitted; internal quotation marks omitted.) Rosenfield v. I. David Marder & Associates, LLC , 110 Conn.App. 679, 685-86, 956 A.2d 581 (2008). In a warranty deed dated April 1, 1986, however, the developer, Shell Beach, Inc., purportedly conveyed garage 14 to the purchaser of unit 19, George J. Lepofsky, trustee. The deed provided that "Residential Unit No. 19 of Shell Beach Condominium . and Garage Unit Nos. 14 and 15 of Shell Beach Condominium . are conveyed ." We reiterate that we do not determine which of these two statutes of limitations-§§ 52-576 (a) or 52-577 -definitively applies to count one. Even if we were to accept the plaintiff's invitation and apply the limitations period within § 52-575 to count one of the plaintiff's complaint, his claim still would be time barred. The developer assigned the interest in garage 14 separately from unit 14 in 1986, when it included garage 14 in the deed conveying unit 19. See footnote 23 of this opinion. No evidence has been presented that, since 1986, garage 14 was ever used or owned by an owner of unit 14, or that any of the defendants have had a possessory interest in that garage. Further, the deed transferring unit 14 to the plaintiff in 1999 did not make any reference to garage 14. Thus, this action, commenced in 2009, would have occurred twenty-three years after the "wrong" committed in 1986 by the developer, e.g., the definitive act, occurrence, or breach for the purpose of beginning the limitations period within § 52-575, 52-576, or 52-577. See footnote 13 of this opinion. We note that the plaintiff alleges that the defendants "tortiously" breached the covenant of good faith and fair dealing in count seven. Although the court does not have to accept the label that a party appends to its cause of action; see, e.g., Meyers v. Livingston, Adler, Pulda, Meiklejohn & Kelly, P.C. , supra, 311 Conn. at 290, 87 A.3d 534 ("[O]ne cannot bring an action [under both theories, however] merely by couching a claim that one has breached a standard of care in the language of contract.... [T]ort claims cloaked in contractual language are, as a matter of law, not breach of contract claims." [Internal quotation marks omitted.] ); we recognize that "the same course of conduct may sound both in tort and in contract . and the court should apply the relevant statute of limitations to each claim." (Citation omitted.) Hill v. Williams , 74 Conn.App. 654, 660, 813 A.2d 130, cert. denied, 263 Conn. 918, 822 A.2d 242 (2003). Nevertheless, even if we were to accept that this count sounds in tort, and not in contract, it would not help the defendant. If § 52-576 is inapplicable, this claim would be governed then by General Statutes § 52-577 or 52-584, both of which are subject to a three year repose period. During oral argument before this court, the plaintiff referred to the ongoing duty of the defendants as a "continuing duty of disclosure." The plaintiff did not brief this theory, however, instead asserting that the duty of the defendants was to enforce the condominium instruments and remedy any breaches thereof. "[I]t is well settled that arguments cannot be raised for the first time at oral argument." J.E. Robert Co. v. Signature Properties, LLC , 309 Conn. 307, 328 n.20, 71 A.3d 492 (2013). For instance, "in Connecticut, [t]he essentials of an action for trespass are: (1) ownership or possessory interest in land by the plaintiff; (2) invasion, intrusion or entry by the defendant affecting the plaintiff's exclusive possessory interest; (3) done intentionally; and (4) causing direct injury." (Internal quotation marks omitted.) Boyne v. Glastonbury , 110 Conn.App. 591, 601, 955 A.2d 645, cert. denied, 289 Conn. 947, 959 A.2d 1011 (2008). We note that, although the plaintiff contends that "Connecticut courts have concluded that condominium associations owe duties to unit owners . [and] [s]everal courts have expressly concluded that condominium instruments create duties owed to unit owners," he does not attempt to define more specifically, in either analysis or through citation to relevant authority, the particular type of duty that he contends exists in this case. (Citations omitted.) Rather, the plaintiff grounds his entire argument as to both the existence and ongoing nature of the defendants' duty strictly on the applicable statutory authority and provisions of the condominium instruments. An amendment, executed subsequent to the commencement of this action, modifies the language in § 4 (b) (14) of the bylaws in ways nonmaterial to this analysis. Indeed, § 47-75 (a) itself suggests that the responsibility to enforce the Condominium Act or the condominium instruments is not exclusively in the association in all cases, as it explicitly allows a unit owner to enforce the condominium instruments and the Condominium Act "in any proper case." In another context, our Supreme Court has opined as to the proper method for appraising a decision by an association: "When a court is called upon to assess the validity of [an action taken] by a board of directors, it first determines whether the board acted within its scope of authority and, second, whether the [action] reflects reasoned or arbitrary and capricious decision making." (Internal quotation marks omitted.) Weldy v. Northbrook Condominium Assn., Inc. , 279 Conn. 728, 734, 904 A.2d 188 (2006). Further, various provisions of the Restatement (Third) of Property similarly suggest that the association and the board, although owing duties to unit owners in the exercise of their authority, are not required to take action in all cases. See 2 Restatement (Third), Property, Servitudes § 6.13 (1), p. 233 (2000) ("[i]n addition to duties imposed by statute and the governing documents, the association has the following duties to the members of the common-interest community . to act reasonably in the exercise of its discretionary powers including . enforcement " [emphasis added] ); see also id., § 6.14, p. 268 ("[t]he directors and officers of an association have a duty to act in good faith, to act in compliance with the law and the governing documents, to deal fairly with the association and its members, and to use ordinary care and prudence in performing their functions"). Finally, certain provisions of the Common Interest Ownership Act clarify which actions by an association are mandatory and which are discretionary, and support a clear inference that enforcement, on the whole, is generally subject to the association's and the directors' discretion. See General Statutes § 47-244 (a) ; see also Public Acts 2009, No. 09-225, § 20 (clarifications making more explicit which duties are discretionary and which are mandatory in § 47-244 [a], applicable as of date of passage, July 8, 2009). Other provisions provide that the board of directors is not required to take any enforcement action if it determines that one of four specified circumstances is met; General Statutes § 47-244 (g) ; and allows the board to choose to take an enforcement action in one case, but not another, as long as the choice is not arbitrary or capricious. General Statutes § 47-244 (h). These latter provisions, which would generally be applicable to condominiums that were created before 1984; see General Statutes § 47-216 (a) ; are technically inapplicable in this case, as they became effective after this case had commenced. See Public Acts 2009, No. 09-225, § 21 (added subsections [g] and [h] to § 47-244, effective July 1, 2010). Nevertheless, their existence provides further support for our position, in that they demonstrate legislative affirmance of preexisting common law principles. For instance, General Statutes § 47-84 (a) provides in relevant part that "damage to or destruction of any building or improvement located on the condominium parcel or serving the condominium shall be promptly repaired and restored by . the association, using the proceeds of insurance, if any, on such building or improvement for that purpose ." See also General Statutes § 47-71 (h) and (i ) (requiring association to record specified information on annual basis). Article 25 (e) of the declaration requires the association to provide its books and records to a first mortgagee when the request is received reasonably in advance of the examination and in writing. Article 26 provides that the association "shall at all times keep an adequate reserve fund for the replacement of common elements" and that the fund be maintained through monthly payments rather than special assessments. Prior to an amendment in 1987 that removed the article from the declaration, article 27 required that the association maintain a separate budget for the operation, care, and upkeep of the swimming pool, tennis court, and community building that would have been built on a separate tract. Section 4 (i) of the bylaws requires that the board must elect certain officers at the annual organization meeting of each new board. Section 5 (d) makes it "the duty of the Secretary to mail a notice for each annual or special meeting" to all unit owners and dictates the timing and contents of such notice. Section 10 (f) requires the association to provide various information to any unit owner that requests it in writing and, depending on the information requested, requires that information be delivered either promptly or within fifteen days of the association's receipt of the request. An amendment, executed subsequent to the commencement of this action, modifies the language in § 10 (g) (iv) of the bylaws in ways nonmaterial to this analysis. Indeed, circumstances falling between these two extremes generally will not merit the application of the continuing course of conduct doctrine. See Brusby v. Metropolitan District , 160 Conn.App. 638, 664, 127 A.3d 257 (2015) ("In between the case in which a single event gives rise to continuing injuries and the case in which a continuous series of events gives rise to a cumulative injury is the case in which repeated events give rise to discrete injuries . [In such a case] the damages from each discrete act . would be readily calculable without waiting for the entire series of acts to end. There would be no excuse for the delay. And so the violation would not be deemed continuing." [Internal quotation marks omitted.] )

12489970

Enrico MANGIAFICO v. TOWN OF FARMINGTON

Mangiafico v. Town of Farmington

2017-05-16

AC 37976

631

642

163 A.3d 631

163

West's Atlantic Reporter, Third Series

Connecticut Appellate Court

Connecticut

2021-08-27T20:57:14.018555+00:00

Fastcase

Enrico MANGIAFICO v. TOWN OF FARMINGTON

Enrico MANGIAFICO v. TOWN OF FARMINGTON AC 37976 Appellate Court of Connecticut. Argued January 3, 2017 Officially released May 16, 2017 Kenneth R. Slater, Jr., with whom, on the brief, was Kelly C. McKeon, for the appellant (defendant). Jon L. Schoenhorn, for the appellee (plaintiff). Alvord, Keller and Beach, Js.

4658

28708

ALVORD, J. The defendant, the town of Farmington (town), appeals from the judgment rendered by the trial court, Scholl, J. , in favor of the plaintiff, Enrico Mangiafico, on his "Petition to Reopen Assessment." The plaintiff's petition challenged the town's issuance of various citations for violations of the town's blight ordinance. On appeal, the town claims that the court, Robaina, J. , improperly (1) denied its motion to dismiss the plaintiff's action for lack of subject matter jurisdiction, and (2) determined that the town was judicially estopped from arguing that the plaintiff's claims were not ripe for adjudication because it had taken an inconsistent position in a prior action between the parties. We agree with the town's claims and, accordingly, remand the case to the trial court with direction to dismiss the plaintiff's action. The following facts, as either alleged in the petition or undisputed by the parties, and procedural history are relevant to the resolution of the claims on appeal. The plaintiff's residence, located on Lakeview Drive in Farmington, suffered extensive damage prior to 2009, rendering it uninhabitable for a lengthy period of time. Delays in rebuilding were occasioned by his insurance carrier. He filed an action against the carrier, and they reached a settlement in August, 2011. In July, 2012, a group of residents in the plaintiff's neighborhood filed a complaint with the town manager concerning the appearance of the plaintiff's property. Shortly thereafter, a town official notified the plaintiff of the complaint. Prior to 2012, the town adopted chapter 88 of the Code of the Town of Farmington (code) as one of its municipal ordinances. The provisions of chapter 88 address vacant blighted buildings that adversely affect property values within the town and that threaten the health, safety and general welfare of its residents (blight ordinance). Section 88-4 of the blight ordinance sets forth procedures for placing properties on a blighted property list. The ordinance further allows the town manager, or his designee, to issue citations and to impose a penalty of not more than $100 per day for violations of the blight ordinance. Section 88-5 of the blight ordinance and chapter 91 of the code, titled "citation hearing procedure," provide property owners with an administrative procedure for contesting liability for the blight citations and assessments. On August 14, 2012, the town council voted to add the plaintiff's property to the town's blighted property list. The town issued citations and imposed fines from September 4 through October 15, 2012, in the amount of $4000. At a hearing held on October 15, 2012, the building citation hearing officer reduced the amount of the plaintiff's fines to $2000 and entered an assessment in that amount. When the plaintiff failed to pay the assessed fines, the town placed a municipal real estate lien on the plaintiff's property. Subsequently, the town issued additional citations and imposed fines of $100 per day from January 1 to February 19, 2013. The amount of those fines totaled $4700. The town placed a second municipal real estate lien on the plaintiff's property for his failure to pay the $4700 assessed by the hearing officer on February 21, 2013. Instead of appealing the assessments entered by the hearing officer to the Superior Court through the administrative procedure set forth in the code and General Statutes § 7-152c (g), the plaintiff brought an action alleging a violation of his due process rights and a taking under the federal and state constitutions, and the intentional infliction of emotional distress. He sought declaratory and injunctive relief, damages, and a discharge of the municipal real estate liens. Judge Scholl granted the town's motion to dismiss four of the five counts of the plaintiff's complaint on the ground that he failed to exhaust his administrative remedies. Judge Scholl granted the town's motion for summary judgment on the remaining count after concluding that the plaintiff could not collaterally attack the validity of the assessments underlying the municipal real estate liens. The plaintiff appealed, and we affirmed the judgment of the trial court. See Mangiafico v. Farmington , 173 Conn.App. 158, 163 A.3d 689 (2017). On various dates between September 9, 2013, and May 27, 2014, the town again issued citations and imposed fines of $100 per day for the plaintiff's alleged violations of the town's blight ordinance. The fines totaled $25,800. The plaintiff requested a hearing before the building citation hearing officer in order to challenge the factual and legal basis for the citations. By letter dated September 8, 2014, the town informed the plaintiff that his request for a hearing was "premature" because the town had not sent him a notice regarding the issued citations, pursuant to § 88-5 (B) of the code, which would commence enforcement of the issued citations. The letter concluded: "If the Town chooses to pursue enforcement of such citations, notice will be issued in accordance with the ordinance." On October 6, 2014, the plaintiff commenced the present action against the town, seeking judicial review of the town's "alleged assessment" pursuant to § 7-152c, General Statutes § 7-148aa and Practice Book § 23-51. On October 31, 2014, the town filed a motion to dismiss the plaintiff's action "because the claims set forth therein are not ripe for adjudication and the statutory requirements to enable a Practice Book § 23-51 hearing have not been met. As a result, the [trial court] lacks subject matter jurisdiction to hear this case." In support of its motion, the town filed a memorandum of law and an affidavit by Kathleen A. Eagan, the town manager. In her affidavit, the town manager attested that no notices for any of the citations at issue had been sent to the plaintiff pursuant to § 7-152c(c), that no hearing officer had been appointed in this matter, that no assessments had been entered with respect to any of the citations at issue, and that no municipal blight liens had been recorded by the town regarding those citations. The plaintiff filed an opposition to the town's motion to dismiss on December 1, 2014. The plaintiff argued that the matter was "ripe for review," and that, in any event, the town "should be precluded from arguing the absence of ripeness . due to judicial estoppel as a result of the contrary argument it made regarding the right to a de novo hearing in a pending 2013 action involving a different set of citations, where it successfully precluded even an injunction, based upon its assurances to the court that the plaintiff possessed the right to bring a challenge pursuant to § 7-152c." By order issued February 10, 2015, Judge Robaina denied the town's motion to dismiss. The notice of the denial provided: "The [town's] position is inconsistent with its prior argument in Mangiafico v. Town of Farmington [Docket No.] CV-13-6045140-S, which was adopted by the court." On May 1, 2015, Judge Scholl rendered judgment in favor of the plaintiff without trial. This appeal followed. I The town's first claim is that Judge Robaina improperly denied its motion to dismiss for lack of subject matter jurisdiction. The town argues that the matter was not ripe for adjudication because the plaintiff was not entitled to a hearing before the building citation hearing officer until after the town began enforcement proceedings with respect to the issued citations by sending the plaintiff a notice pursuant to § 7-152c(c). A notice pursuant to § 7-152c(c) would provide the plaintiff with the opportunity to request a hearing to contest liability. Following the hearing, the hearing officer would enter an assessment. The plaintiff, if dissatisfied, could then appeal from the assessment to the Superior Court pursuant to § 7-152c(g). Before addressing the town's claims on appeal, we first address an issue raised by the plaintiff in his appellate brief and during oral argument before this court. The plaintiff claims that the town's appeal is moot because the town did not send a notice to the plaintiff pursuant to § 7-152c(c) within twelve months from the expiration of the final period for the uncontested payment of fines; see General Statutes § 7-152c(d) ; and, therefore, a hearing officer cannot enter assessments for the citations at issue in this appeal. Because the town did not pursue the enforcement of those citations within the requisite time period, the plaintiff argues that the town "forfeited any right in the future to schedule a hearing or collect any of these fines, and neither this court nor the Superior Court can render a judgment in its favor." "Mootness is a threshold issue that implicates subject matter jurisdiction, which imposes a duty on the court to dismiss a case if the court can no longer grant practical relief to the parties. . Mootness presents a circumstance wherein the issue before the court has been resolved or had lost its significance because of a change in the condition of affairs between the parties. . [T]he existence of an actual controversy is an essential requisite to appellate jurisdiction; it is not the province of appellate courts to decide moot questions, disconnected from the granting of actual relief or from the determination of which no practical relief can follow. . Mootness . rais[es] a question of law over which we exercise plenary review." (Citation omitted; internal quotation marks omitted.) Batchelder v. Planning & Zoning Commission , 133 Conn.App. 173, 180, 34 A.3d 465, cert. denied, 304 Conn. 913, 40 A.3d 319 (2012). In the present case, the town appeals from Judge Robaina's February 10, 2015 denial of its motion to dismiss for lack of subject matter jurisdiction. That interlocutory ruling was not immediately appealable. "The general rule is that the denial of a motion to dismiss is an interlocutory ruling and, therefore, is not a final judgment for purposes of appeal." (Internal quotation marks omitted.) Cimmino v. Marcoccia , 149 Conn.App. 350, 354 n.4, 89 A.3d 384 (2014). Accordingly, the town was required to wait until Judge Scholl rendered judgment in favor of the plaintiff on May 1, 2015, to bring its appeal. The town's issues on appeal are addressed solely to Judge Robaina's denial of its motion to dismiss. If we agree with the town's claims, which we do, there is practical relief that we can provide. By remanding the case to the trial court with direction to grant the motion to dismiss, and vacating the judgment rendered by Judge Scholl, the town is afforded its remedy. Even though the town may be time-barred from pursuing assessments for the citations at issue in this appeal, our decision will eliminate the judgment against it from which claims of res judicata or collateral estoppel might be asserted in subsequent proceedings between the parties, if any. We conclude that the town's appeal is not moot. We now address the town's first claim that Judge Robaina should have granted its motion to dismiss the plaintiff's action for lack of subject matter jurisdiction because his claims were not ripe for adjudication. "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.... A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction.... 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.) Manifold v. Ragaglia , 94 Conn.App. 103, 117, 891 A.2d 106 (2006). The town argues that the plaintiff's claims in its petition were not justiciable because no assessments had been entered by a hearing officer and, therefore, the claims were not ripe for adjudication. The issue of ripeness implicates the court's subject matter jurisdiction. Chapman Lumber, Inc. v. Tager , 288 Conn. 69, 85, 952 A.2d 1 (2008) ; Hamilton v. United Services Automobile Assn. , 115 Conn.App. 774, 781, 974 A.2d 774, cert. denied, 293 Conn. 924, 980 A.2d 910 (2009). "[J]usticiability comprises several related doctrines, namely, standing, ripeness, mootness and the political question doctrine, that implicate a court's subject matter jurisdiction and its competency to adjudicate a particular matter.... Justiciability requires (1) that there be an actual controversy between or among the parties to the dispute . (2) that the interests of the parties be adverse . (3) that the matter in controversy be capable of being adjudicated by judicial power . and (4) that the determination of the controversy will result in practical relief to the complainant.... Finally, because an issue regarding justiciability raises a question of law, our appellate review is plenary." (Citation omitted; internal quotation marks omitted.) Cadle Co. v. D'Addario , 111 Conn.App. 80, 82, 957 A.2d 536 (2008). "[T]he rationale behind the ripeness requirement is to prevent the courts, through avoidance of premature adjudication, from entangling themselves in abstract disagreements . Accordingly, in determining whether a case is ripe, a trial court must be satisfied that the case before [it] does not present a hypothetical injury or a claim contingent upon some event that has not and indeed may never transpire." (Internal quotation marks omitted.) Id., at 82-83, 957 A.2d 536. "[R]ipeness is a sine qua non of justiciability ." (Internal quotation marks omitted.) Milford Power Co., LLC v. Alstom Power, Inc. , 263 Conn. 616, 624, 822 A.2d 196 (2003). In the present case, there is a statutory procedure for contesting liability for assessments entered by a hearing officer for blight ordinance violations. As previously noted, the provisions set forth in chapters 88 and 91 of the code are the same in all material respects to the provisions set forth in § 7-152c. We must determine whether the plaintiff followed the requisite administrative procedure when he filed his "Petition to Reopen Assessment" in the Superior Court. "Appeals to courts from administrative agencies exist only under statutory authority.... A statutory right to appeal may be taken advantage of only by strict compliance with the statutory provisions by which it is created.... Such provisions are mandatory, and, if not complied with, the appeal is subject to dismissal." (Emphasis in original; internal quotation marks omitted.) Lawson v. Commissioner of Motor Vehicles , 134 Conn.App. 614, 619, 39 A.3d 1174, cert. denied, 305 Conn. 914, 47 A.3d 388 (2012). General Statutes § 7-148(c)(7)(H)(xv) grants a municipality the power to make and enforce regulations for the prevention and remediation of housing blight and to prescribe civil penalties for the violation of such regulations of not less than ten or more than $100 for each day that a violation continues. If such civil penalties are prescribed, the municipality must adopt a citation hearing procedure in accordance with the statutory requirements of § 7-152c. Pursuant to that statutory authorization, the town enacted chapters 88 and 91 of the code. The town council voted to add the plaintiff's property to the town's blighted property list. Thereafter, the town issued citations and imposed fines of $100 per day for the plaintiff's alleged violations of the town's blight ordinance. With respect to citations issued prior to September 9, 2013, the town commenced enforcement proceedings by sending the plaintiff written notice pursuant to § 7-152c(c). See footnote 9 of this opinion. The plaintiff did not opt to admit liability pursuant to § 7-152c(d). See footnote 11 of this opinion. Instead, the plaintiff requested hearings, a hearing officer was appointed, and the hearing officer entered assessments. The plaintiff failed to appeal those assessments through the administrative procedure set forth in the code and § 7-152c(g). See Mangiafico v. Farmington , supra, 173 Conn.App. at 158, 163 A.3d 689. The town placed liens on the plaintiff's property when he failed to pay those assessments. See footnote 7 of this opinion. The citations and fines at issue in this appeal are those imposed on various dates between September 9, 2013, and May 27, 2014. Unlike the previous citations, however, the town did not send the plaintiff a notice pursuant to § 7-152c(c), which would have commenced enforcement proceedings. The town had twelve months from the expiration of the period for the uncontested payment of the imposed fines in which to send the plaintiff a notice informing him of the allegations against him, the amount of the fines due, his ability to contest liability before a citation hearing officer, and, upon failure to request a hearing, the entering of assessments against him. Id. That notice never was sent. Accordingly, following the expiration of the time period set forth in § 7-152c(c), the town lost its ability to seek assessments and enforce the citations issued between September 9, 2013, and May 27, 2014. Nevertheless, even though he had not received a § 7-152c(c) notice, the plaintiff requested a hearing to contest liability. The town responded in its September 8, 2014 letter that the plaintiff's request for a hearing was premature because the town had not commenced enforcement proceedings. The plaintiff then brought the present action by filing a petition to reopen assessments pursuant to § 7-152c(g). That statutory provision, however, provides for an appeal from "an assessment [that] has been entered ." Here, no hearing officer had been appointed and no assessments had been entered. The plaintiff did not comply with the statutory administrative procedure and, accordingly, the Superior Court lacked jurisdiction over his administrative appeal. The plaintiff's claims, as set forth in his petition, were not ripe for adjudication because they were contingent upon an event that never transpired. The town did not seek enforcement of the citations at issue and the time for doing so has expired. The plaintiff's claims, therefore, are not justiciable, the trial court lacked jurisdiction to entertain them, and the court should have granted the town's motion to dismiss. The plaintiff argues, however, that the town should be judicially estopped from raising a ripeness claim because it took inconsistent positions with respect to enforcement of the citations issued and fines imposed prior to September 9, 2013. See Mangiafico v. Farmington , supra, 173 Conn.App. at 158, 163 A.3d 689. "Typically, judicial estoppel will apply if: 1) a party's later position is clearly inconsistent with its earlier position; 2) the party's former position has been adopted in some way by the court in the earlier proceeding; and 3) the party asserting the two positions would derive an unfair advantage against the party seeking estoppel.... We further limit judicial estoppel to situations where the risk of inconsistent results with its impact on judicial integrity is certain." (Internal quotation marks omitted.) Assn. Resources, Inc. v. Wall , 298 Conn. 145, 170, 2 A.3d 873 (2010). In Judge Robaina's ruling denying the town's motion to dismiss, he stated: "The [town's] position is inconsistent with its prior argument in Mangiafico v. Town of Farmington [Docket No.] CV-13-6045140-S, which was adopted by the court." The town claims that that determination was erroneous, and we agree. As discussed previously in this opinion, the prior proceeding was procedurally different because the town sent the plaintiff a § 7-152c(c) notice and, thereby, commenced enforcement proceedings against him. The plaintiff requested hearings, a hearing officer was assigned, and the hearing officer entered assessments. Accordingly, an appeal pursuant to § 7-152c(g) would have been appropriate to contest those assessments. Here, with respect to the citations at issue, the town did not commence enforcement proceedings with a § 7-152c(c) notice, a hearing officer was not assigned to review those citations, and no assessments were entered by a hearing officer. Therefore, the town's claim that the appeal procedure set forth in § 7-152c(g) was not available under these circumstances was correct and was not inconsistent with its prior position. The judgment in favor of the plaintiff is vacated and the case is remanded with direction to grant the defendant's motion to dismiss and to render judgment dismissing the plaintiff's action. In this opinion the other judges concurred. See our decision in the plaintiff's related appeal, which was released on the same date as this opinion. Mangiafico v. Farmington, 173 Conn.App. 158, 163 A.3d 689(2017). "[L]ack of subject matter jurisdiction may be found in any one of three instances: (1) the complaint alone; (2) the complaint supplemented by undisputed facts evidenced in the record; or (3) the complaint supplemented by undisputed facts plus the court's resolution of disputed facts." (Internal quotation marks omitted.) Conboy v. State, 292 Conn. 642, 651, 974 A.2d 669 (2009). The procedures for challenging assessments for blight violations, as set forth in chapters 88 and 91 of the code, are the same in all material respects to the provisions set forth in General Statutes § 7-152c, titled "Hearing procedure for citations." See footnote 6 of this opinion. Section 88-5 (B) of the code is the same in all material respects to the provisions set forth in General Statutes § 7-152c(c). See footnote 9 of this opinion. General Statutes § 7-152c(g) provides: "A person against whom an assessment has been entered pursuant to this section is entitled to judicial review by way of appeal. An appeal shall be instituted within thirty days of the mailing of notice of such assessment by filing a petition to reopen assessment, together with an entry fee in an amount equal to the entry fee for a small claims case pursuant to [General Statutes §] 52-259, at a superior court facility designated by the Chief Court Administrator, which shall entitle such person to a hearing in accordance with the rules of the judges of the Superior Court." General Statutes § 7-148aa provides: "Any unpaid penalty imposed by a municipality pursuant to the provisions of an ordinance regulating blight, adopted pursuant to subparagraph (H) (xv) of subdivision (7) of subsection (c) of section 7-148, shall constitute a lien upon the real estate against which the penalty was imposed from the date of such penalty. Each such lien may be continued, recorded and released in the manner provided by the general statutes for continuing, recording and releasing property tax liens. Each such lien shall take precedence over all other liens filed after July 1, 1997, and encumbrances except taxes and may be enforced in the same manner as property tax liens." Practice Book § 23-51 provides: "(a) Any aggrieved person who wishes to appeal a parking or citation assessment issued by a town, city, borough or other municipality shall file with the clerk of the court within the time limited by statute a petition to open assessment with a copy of the notice of assessment annexed thereto. A copy of the petition with the notice of assessment annexed shall be sent by the petitioner by certified mail to the town, city, borough or municipality involved. "(b) Upon receipt of the petition, the clerk of the court, after consultation with the presiding judge, shall set a hearing date on the petition and shall notify the parties thereof. There shall be no pleadings subsequent to the petition. "(c) The hearing on the petition shall be de novo. There shall be no right to a hearing before a jury." General Statutes § 7-152c(c) provides in relevant part: "Any such municipality, at any time within twelve months from the expiration of the final period for the uncontested payment of fines, penalties, costs or fees for any citation issued under any ordinance adopted pursuant to section 7-148 . for an alleged violation thereof, shall send notice to the person cited. Such notice shall inform the person cited: (1) Of the allegations against him and the amount of the fines, penalties, costs or fees due; (2) that he may contest his liability before a citation hearing officer by delivering in person or by mail written notice within ten days of the date thereof; (3) that if he does not demand such a hearing, an assessment and judgment shall be entered against him; and (4) that such judgment may issue without further notice...." The parties agree that the town presented no evidence on May 1, 2015, which was the scheduled date of the hearing on the plaintiff's petition. A cited person also has the option of admitting liability pursuant to § 7-152c(d). General Statutes § 7-152c(d) provides in relevant part: "If the person who is sent notice pursuant to subsection (c) of this section wishes to admit liability for any alleged violation, he may, without requesting a hearing, pay the full amount of the fines, penalties, costs or fees admitted to in person or by mail to an official designated by such municipality. Such payment shall be inadmissible in any proceeding, civil or criminal, to establish the conduct of such person or other person making the payment. Any person who does not deliver or mail written demand for a hearing within ten days of the date of the first notice provided for in subsection (c) of this section shall be deemed to have admitted liability, and the designated municipal official shall certify such person's failure to respond to the hearing officer. The hearing officer shall thereupon enter and assess the fines, penalties, costs or fees provided for by the applicable ordinances ." Moreover, even if we were to conclude that the appeal is now moot, we agree with the town's argument that the order it seeks to have reviewed is "capable of repetition, yet evading review." Loisel v. Rowe, 233 Conn. 370, 660 A.2d 323 (1995). "First, the challenged action, or the effect of the challenged action, by its very nature must be of a limited duration so that there is a strong likelihood that the substantial majority of cases raising a question about its validity will become moot before appellate litigation can be concluded. Second, there must be a reasonable likelihood that the question presented in the pending case will arise again in the future, and that it will affect either the same complaining party or a reasonably identifiable group for whom that party can be said to act as surrogate. Third, the question must have some public importance." Id., at 382, 660 A.2d 323. The plaintiff argues that we should decline to review the town's claim because it did not provide an adequate record on appeal. According to the plaintiff, the town should have provided a transcript of the May 1, 2015 proceeding wherein Judge Scholl rendered judgment for the plaintiff without trial. We are not persuaded. The town appeals solely from Judge Robaina's rulings on its motion to dismiss. It is a jurisdictional issue, i.e., a question of law over which we exercise plenary review. Accordingly, the record is adequate for review of the town's claim. The statute expressly provides that it is the citation hearing officer who enters the assessments for the ordinance violations. See General Statutes § 7-152c(d), (e), and (f). The plaintiff seems to argue that the town was somehow required to send the § 7-152c(c) notice in order to "grant him an opportunity to contest" the citations. Similar arguments have failed when a party has argued that a town is required to institute actions or proceedings to enforce its zoning regulations. See Greenfield v. Reynolds, 122 Conn.App. 465, 472-73, 1 A.3d 125 (enforcement of zoning regulations is a discretionary act), cert. denied, 298 Conn. 922, 4 A.3d 1226 (2010). Simply put, the statutory provisions of § 7-152c do not require the town to commence enforcement proceedings on all issued citations. If, as argued by the plaintiff, the procedure is unfair, it is within the province of the legislature to amend the statutory provisions.

12489969

Solomon LAMAR v. Francis BREVETTI, et al.

Lamar v. Brevetti

2017-05-16

AC 37893

627

631

163 A.3d 627

163

West's Atlantic Reporter, Third Series

Connecticut Appellate Court

Connecticut

2021-08-27T20:57:14.018555+00:00

Fastcase

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

Solomon LAMAR v. Francis BREVETTI, et al.

Solomon LAMAR v. Francis BREVETTI, et al. AC 37893 Appellate Court of Connecticut. Argued December 6, 2016 Officially released May 16, 2017 Daniel S. DiBartolomeo, filed a brief for the appellant (plaintiff). Daniel J. Foster, with whom, on the brief, was Joseph A. Mengacci, for the appellees (defendants). DiPentima, C.J., and Prescott and Alander, Js.

1765

11231

PER CURIAM. The plaintiff, Solomon Lamar, appeals from the summary judgment rendered in favor of the defendants, Francis Brevetti, Michael Guglioti, Vernon Riddick, Jr., Fernando Spagnolo, David Janetty (individual defendants) and the city of Waterbury (city). On appeal, the plaintiff contends that the court improperly rendered summary judgment with respect to (1) his negligence and recklessness claims against the individual defendants, (2) his negligent and intentional infliction of emotional distress claims against Brevetti and (3) his claims against the city pursuant to General Statutes § 7-465 and 7-101a. We affirm the judgment of the trial court. In his complaint filed on August 19, 2010, the plaintiff alleged twenty-four counts against the six defendants. The genesis of this action was the arrest of the plaintiff by Brevetti, a Waterbury police officer, on July 31, 2008. The other individual defendants were high ranking members of the Waterbury Police Department. On August 31, 2010, the defendants removed the action to United States District Court for the District of Connecticut (District Court). On September 26, 2012, the District Court granted the defendants' motion for summary judgment with respect to the plaintiff's claims of civil rights violations, false arrest, malicious prosecution and false imprisonment. In that decision, the District Court set forth the following facts. On July 31, 2008, Brevetti responded to a report of a disturbance. Lamar v. Waterbury , Docket No. 3:10CV1390 (RNC), 2012 WL 4481677, *1 (D. Conn. September 26, 2012). Accompanied by police officer Michael Modeen, Brevetti interviewed the two complainants, Hector Ramos and Jessie Stein, who stated that the plaintiff had been yelling obscenities and making threats. Id. Ramos and Stein directed the officers to the home of the plaintiff, who answered the door in a state of undress and appeared nervous. Id. During the officers' questioning, the plaintiff admitted to having a dispute with his neighbors. Id. Brevetti placed the plaintiff under arrest for breach of peace. Id. The plaintiff indicated that he needed to get a pair of pants, and walked up the stairs. Id. The officers followed him to the top of the stairs, where they placed him in handcuffs. Id. At that point, the officers observed, in plain view, "a clear plastic bag containing a white rock-like substance [later determined to be crack cocaine], together with a small scale and a box of sandwich bags." Id. The plaintiff was charged with breach of peace in the second degree and various narcotics offenses. As a result of this arrest, the Superior Court conducted a hearing on May 13, 2009, on whether the plaintiff had violated a conditional discharge he had received as a part of his sentence on a prior conviction. Id., at *2. The court, Fasano, J. , determined that the plaintiff, by virtue of this new arrest, had violated his conditional discharge, notwithstanding some discrepancy between Ramos' testimony and the police report completed by Brevetti. Id. Judge Fasano opened the judgment and sentenced the plaintiff to three and one-half years incarceration. Id. On September 24, 2009, Brevetti was arrested after narcotics were found in his vehicle. Id. He subsequently pleaded guilty to tampering with evidence and possession of a controlled substance. Id. The state elected not to prosecute the plaintiff for the charges stemming from the July 31, 2008 incident. Id. Following the plaintiff's release from custody on March 26, 2010, he commenced the present action. Id. The defendants moved for summary judgment in the District Court. In ruling on that motion, the District Court determined that "[i]n this case, uncontested facts establish that the plaintiff's arrest [for breach of peace and the narcotics charges] was supported by probable cause.... Because probable cause existed for the plaintiff's arrest, the plaintiff cannot prevail on his claims under [ 42 U.S.C.] § 1983 and state law for false arrest, false imprisonment and malicious prosecution as a matter of law and, accordingly, the defendants are entitled to summary judgment on these claims." Id., at *3. The District Court then declined to exercise supplemental jurisdiction over the remaining state law claims and remanded the case to the Superior Court. Id. On January 27, 2014, the defendants filed a motion for summary judgment in the Superior Court as to the plaintiff's remaining claims. The plaintiff filed his objection on July 24, 2014. The court, Roraback, J. , held a hearing and subsequently issued a memorandum of decision granting the defendants' motion for summary judgment. This appeal followed. As an initial matter, we set forth the legal principles and the standard of review that guide our resolution of this appeal. "The standards governing our review of a trial court's decision to grant a motion for summary judgment are 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.... 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 seeking summary judgment has the burden of showing the absence of any genuine issue [of] material facts which, under applicable principles of substantive law, entitle him to a judgment as a matter of law . and the party opposing such a motion must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact.... A material fact . [is] a fact which will make a difference in the result of the case." (Internal quotation marks omitted.) Rivera v. CR Summer Hill, Ltd. Partnership , 170 Conn.App. 70, 74, 154 A.3d 55 (2017) ; see also Heisinger v. Cleary , 323 Conn. 765, 776-77, 150 A.3d 1136 (2016). Our review of the granting of a motion for summary judgment is plenary; accordingly, we must decide whether the trial court's conclusions were legally and logically correct and find support in the record. Mariano v. Hartland Building & Restoration Co. , 168 Conn.App. 768, 777, 148 A.3d 229 (2016) ; see also Straw Pond Associates, LLC v. Fitzpatrick, Mariano & Santos, P.C. , 167 Conn.App. 691, 704-705, 145 A.3d 292, cert. denied, 323 Conn. 930, 150 A.3d 231 (2016). After a review of the record, the briefs of the parties, and the applicable law, we conclude that the court properly rendered summary judgment in favor of the defendants with respect to the entirety of the complaint. First, it properly determined that the alleged negligent actions of the individual defendants were discretionary, and not ministerial, acts. See Smart v. Corbitt , 126 Conn.App. 788, 800, 14 A.3d 368 (police functions generally categorized as discretionary acts), cert. denied, 301 Conn. 907, 19 A.3d 177 (2011). Thus, the doctrine of governmental immunity applied and barred the plaintiff's claims of negligence. See Haynes v. Middletown , 314 Conn. 303, 312, 101 A.3d 249 (2014) ; Coley v. Hartford , 312 Conn. 150, 161-62, 95 A.3d 480 (2014). Further, the individual defendants were not subject to any exception to governmental immunity claimed by the plaintiff. Specifically, the plaintiff failed to demonstrate that there was a triable issue with respect to the imminent harm requirement. See Brusby v. Metropolitan District , 160 Conn.App. 638, 657-58, 127 A.3d 257 (2015) ; see also Haynes v. Middletown , supra, at 322-23, 101 A.3d 249. The facts and circumstances of this case preclude any finding that the plaintiff's arrest and subsequent imprisonment were likely to cause him imminent harm. Second, the court properly rendered summary judgment in favor of the individual defendants as to the negligent and intentional infliction of emotional distress counts. The plaintiff expressly conceded, pursuant to our Supreme Court's decision in Brooks v. Sweeney , 299 Conn. 196, 209, 9 A.3d 347 (2010), that "if the arrest by . Brevetti was supported by and based upon probable cause, then an absolute bar would exist to [his] common law tort claims." The existence of probable cause, under the facts and circumstances of this case, is irrefragable and therefore the court properly rendered summary judgment as to the negligent and intentional infliction of emotional distress counts. Third, the plaintiff failed to adequately brief his challenge to the rendering of summary judgment on the recklessness counts. See, e.g., State v. Fetscher , 162 Conn.App. 145, 155-56, 130 A.3d 892 (2015), cert. denied, 321 Conn. 904, 138 A.3d 280 (2016) ; Heyward v. Judicial Dept. , 159 Conn.App. 794, 802-804, 124 A.3d 920 (2015). We decline, therefore, to consider the plaintiff's claims with respect to these counts. Fourth, the plaintiff's various claims against the city, whether framed as direct liability or indemnification, are derivative of his claims against the individual defendants. In light of our conclusion that the individual defendants are entitled to judgment as a matter of law on all claims, the city also is entitled to judgment as a matter of law on the claims asserted against it. Brooks v. Sweeney , supra, 299 Conn. at 221-22. The judgment is affirmed. The complaint set forth claims of negligence, negligent infliction of emotional distress, recklessness, false arrest, malicious prosecution, false imprisonment, intentional infliction of emotional distress and civil rights violations by Brevetti, negligence, recklessness and civil rights violations by Gugliotti, Riddick, Spagnolo, and Janetty, and civil rights violations by the city. The complaint further alleged that the city was negligent and liable for the conduct of the individual defendants. As the result of the prior conviction, the plaintiff was subject to a conditional discharge that required him to obey the law and avoid new arrests. Lamar v. Waterbury, supra, 2012 WL 4481677, at *2 n.2. The plaintiff's counsel did not appear for oral argument before this court and subsequently did not provide us with any explanation for his absence. In Brooks, our Supreme Court stated: " We note that the plaintiff does not challenge the trial court's determination that the existence of probable cause defeats her claims of malicious prosecution and intentional and negligent infliction of emotional distress. We therefore limit our analysis to whether the trial court properly determined that probable cause existed for the plaintiff's arrest." (Emphasis added.) Brooks v. Sweeney, supra, 299 Conn. at 210 n.14, 9 A.3d 347. Given the plaintiff's concession, we likewise limit our analysis of these claims to the question of whether no genuine issue of material fact existed with respect to the existence of probable cause.

12489968

STATE of Connecticut v. Laquan JONES

State v. Jones

2017-05-16

AC 36557

622

627

163 A.3d 622

163

West's Atlantic Reporter, Third Series

Connecticut Appellate Court

Connecticut

2021-08-27T20:57:14.018555+00:00

Fastcase

STATE of Connecticut v. Laquan JONES

STATE of Connecticut v. Laquan JONES AC 36557 Appellate Court of Connecticut. Argued November 29, 2016 Officially released May 16, 2017 Matthew C. Eagan, assigned counsel, with whom were Michael S. Taylor, assigned counsel, and, on the brief, James P. Sexton, assigned counsel, Hartford, for the appellant (defendant). Rita M. Shair, senior assistant state's attorney, Rocky Hill, with whom were Gail P. Hardy, state's attorney, Waterbury, and, on the brief, Robin Krawczyk, senior assistant state's attorney, for the appellee (state). Keller, Prescott and West, Js.

2652

16119

WEST, J. The defendant, Laquan Jones, appeals from the judgment of the trial court finding that he violated his probation by carrying a pistol without a permit during his probationary period. On appeal, the defendant claims that the court improperly revoked his probation because there was insufficient evidence to establish a violation during his probationary period. We conclude that this claim is moot because the defendant subsequently pleaded guilty to the conduct that served as the basis for the violation of probation, and, thus, we dismiss the appeal. The record reflects the following facts and procedural history. On December 20, 2011, the defendant pleaded guilty to assault in the first degree for discharging a firearm in violation of General Statutes § 53a-59 (a) (5). The defendant was sentenced to ten years incarceration, execution suspended, and five years probation. The conditions of the defendant's probation required that he, inter alia, (1) not violate any criminal law of the United States, this state, or any other state or territory, (2) not be in possession of any weapons, and (3) have no new arrests. The defendant's probationary period commenced on December 20, 2011. Thereafter, the defendant was arrested for an incident that occurred on March 10, 2013. Lorenzo Christian, the victim, was shot in the leg, and witnesses identified the defendant as the shooter. The defendant was charged with violation of probation, pursuant to General Statutes § 53a-32. The trial court, Alexander, J. , presided over the three day trial on the violation of probation charge. The adjudicatory phase was tried on September 9 and September 11, 2013, and the dispositional phase was tried on September 16, 2013. The court found that the state had met its burden of showing that the defendant had violated a condition of his probation by committing the felony of carrying a pistol without a permit in violation of General Statutes § 29-35. The court revoked the defendant's probation, and imposed a ten year period of incarceration, which had previously been suspended when he was convicted of assault in 2011. On October 29, 2013, the defendant entered a guilty plea, pursuant to the Alford doctrine, to carrying a pistol without a permit in violation of § 29-35(a). The court allowed the entry of an Alford plea because the defendant contested the facts underlying the violation of probation finding. The defendant was ultimately sentenced, on the firearm charge, to four years incarceration, one year of which was mandatory, to run concurrent with his previous sentence of ten years. On February 19, 2014, the defendant filed this appeal, from the violation of probation ruling, to challenge the sufficiency of the evidence that formed the basis for that finding. He did not file, however, a timely appeal to challenge the voluntariness of his subsequent Alford plea to the firearm charge on the basis that he would not have entered the plea if he had understood that it would cause his appeal from the probation matter to become moot. The defendant subsequently filed a motion for permission to file a late appeal with this court on November 7, 2016. In the motion, the defendant claimed, as the basis for good cause to file a late appeal, that his current counsel had been unaware that he had previously pleaded guilty, pursuant to the Alford doctrine, to the firearm charge. On November 10, 2016, we denied the defendant's motion to file a late appeal to challenge his Alford plea to the firearm charge. Additional facts will be set forth as necessary. Although neither party briefed the issue of whether this appeal is moot in light of the defendant's Alford plea, the question involves this court's subject matter jurisdiction and was addressed by both parties during oral argument to this court. See Haynes v. Middletown , 306 Conn. 471, 474, 50 A.3d 880 (2012). Thus, we must consider at the outset whether we have subject matter jurisdiction to decide the defendant's challenge to the finding that he violated his probation. The defendant raised the issue of subject matter jurisdiction over the present appeal in his motion to file a late appeal to challenge the validity of his Alford plea. At oral argument, the defendant claimed that, despite his Alford plea to the charge that constituted the factual basis for the violation of his probation, this court has subject matter jurisdiction over his challenge to the trial court's finding that he violated his probation because he had filed a motion to file a late appeal, thus preserving a live controversy. Additionally, he argued that the present appeal is not moot because the court, during the criminal proceeding, had attempted to preserve the defendant's right to appeal by allowing him to enter an Alford plea, and that the court and the defendant's attorney had failed to recognize that entering the Alford plea would preclude him from challenging on appeal the violation of probation finding. In particular, he argues that the trial court, during the criminal proceeding for the same incident that formed the basis for the violation of probation finding, "indicated to the defendant its belief that entering an Alford plea would not impact his appellate rights in the violation of probation matter." During oral argument to this court, the state, in turn, alleged that even if the defendant entered the Alford plea unknowingly and involuntarily, this court lacks subject matter jurisdiction over this appeal because, pursuant to State v. T.D. , 286 Conn. 353, 360, 944 A.2d 288 (2008), and its progeny State v. Rodriguez , 320 Conn. 694, 695, 132 A.3d 731 (2016), no live controversy existed once the defendant pleaded guilty to the firearm charge under the Alford doctrine. Once he entered the Alford plea, he effectively admitted to the criminal conduct underlying the violation of probation. Additionally, the state argued that any failure of the defendant's trial counsel to understand that the entry of the Alford plea would cause this appeal to become moot is more appropriately the subject of a petition for a writ of habeas corpus. We agree with the state that the appeal is moot. "Mootness implicates a court's subject matter jurisdiction and, therefore, presents a [claim] over which we exercise plenary review." State v. T.D. , supra, 286 Conn. at 361, 944 A.2d 288. To be justiciable, a case must contain "an actual controversy between or among the parties to the dispute . [T]he requirement of an actual controversy . is premised upon the notion that courts are called upon to determine existing controversies, and thus may not be used as a vehicle to obtain advisory judicial opinions on points of law.... Moreover, [a]n actual controversy must exist not only at the time the appeal is taken, but also throughout the pendency of the appeal.... When, during the pendency of an appeal, events have occurred that preclude an appellate court from granting any practical relief through its disposition of the merits, a case has become moot." (Citations omitted; footnote omitted; internal quotation marks omitted.) In re Allison G. , 276 Conn. 146, 165, 883 A.2d 1226 (2005). Our Supreme Court's decision in State v. T.D. , supra, 286 Conn. 353, 944 A.2d 288, is dispositive of the defendant's claim. In that case, the court opined that "it is the fact of a conviction itself, regardless of the route by which it has been obtained, that eliminates any controversy over whether a violation of probation has occurred. As this court repeatedly has indicated, a conviction based on a guilty plea is the functional equivalent of a conviction following a guilty verdict by a jury." Id., at 364, 944 A.2d 288. The court in T.D. concluded that "[i]f a defendant has been convicted of criminal conduct, following either a guilty plea, Alford plea or a jury trial, and the defendant does not challenge that conviction by timely appealing it, then the conviction conclusively establishes that the defendant engaged in that criminal conduct. An appeal challenging a finding of violation of probation based on that conduct is, therefore, moot." Id., at 366, 944 A.2d 288 ; see also State v. McElveen , 261 Conn. 198, 218, 802 A.2d 74 (2002) ( "[T]he defendant is seeking review of the trial court's determination that he violated probation by virtue of his criminal conduct . By admitting to that very conduct by virtue of his guilty plea and the resultant judgment of conviction . the defendant has eliminated the controversy before the court."). A recent decision of our Supreme Court confirms and further illustrates the mootness of the current appeal: "When a criminal defendant has been found to have violated the terms of his probation on the basis of allegations that he has committed a new crime while on probation, his appeal from the finding of violation of probation, contending that there was insufficient evidence for the trial court to conclude that he committed the new crime, is rendered moot if, subsequent to that finding, he either pleads guilty to or is convicted at trial of having committed the new crime. This is true because, as a matter of law, when a condition of probation is that the offender is to refrain from violating any criminal laws, conviction of a new crime conclusively establishes a probation violation." State v. Rodriguez , supra, 320 Conn. at 695, 132 A.3d 731. The court in Rodriguez acknowledged that T.D. carved out a narrow exception to this rule, in that it held that "when a defendant under these circumstances takes a timely direct appeal from his conviction on the new criminal charge, his violation of probation cannot be presumed, and an appellate court is not barred from considering the merits of the probation violation appeal" because a live controversy remains. Id. ; see State v. T.D. , supra, 286 Conn. at 360, 944 A.2d 288. The defendant here claimed, during oral argument, that this appeal is not moot because the trial court allegedly assured him that, by entering the Alford plea to the underlying criminal conduct that formed the basis for the violation of probation finding, he would not be precluded from bringing a subsequent appeal to challenge the violation of probation finding. We hold that this claim is both factually and legally incorrect, and, thus, we dismiss the appeal. We conclude, upon a review of the record, that the defendant's claim is factually incorrect because the court never promised the defendant that, by entering an Alford plea, he would not be precluded from appealing the violation of probation finding. At the October 29, 2013 plea hearing, the defendant's attorney stated that "[m]y only concern is . I'm thinking I might need a nolo plea. I don't know what effect this is going to have on his potential [probation] appeal and if nolo would preserve that or not." Although the defendant's attorney expressed concern about filing a subsequent appeal to challenge the probation violation finding, he did not specify that he was concerned, in particular, with a mootness issue in regard to filing an appeal on that ground. The court, in response to the concern of the defendant's attorney, stated that it would "note [the plea] as an Alford plea because clearly [the defendant] was contesting the underlying facts which formed the violation of probation. So, again, it's not being used as an admission against [the defendant]. It's being used so that he can take advantage of a plea agreement." From this colloquy, we conclude that the court never expressly assured the defendant that, by entering an Alford plea, that plea would not create a mootness issue in a subsequent appeal to challenge the violation of probation finding. It is not, as the defendant argues, clear that the court was attempting to preserve his right to appeal the violation of probation finding. Rather, the transcript reflects an attempt, by the court, to ensure that the plea reflected the defendant's disagreement with the underlying facts that constituted the basis for the violation of probation finding. Thus, the defendant's claim that the court provided an assurance that this appeal would not become moot is not supported by the record. The defendant's claim that this appeal is not moot because of the trial court's assurances is also legally incorrect. To the extent that the defendant argues that this appeal is not moot because the court allegedly guaranteed him that entering an Alford plea would preserve for appeal his challenge to the violation of probation finding, he is incorrect because the court cannot promise a result that is counter to existing case law. Potvin v. Lincoln Service & Equipment Co. , 298 Conn. 620, 650, 6 A.3d 60 (2010) ("[a] trial court may not overturn or disregard binding precedent"). Under T.D. , the fact of a conviction itself, regardless of the route by which it has been obtained, eliminates any controversy over whether a violation of probation has occurred. State v. T.D. , supra, 286 Conn. at 366, 944 A.2d 288. An Alford plea is a guilty plea, resulting in a conviction. Thus, in the present matter, the defendant was precluded, under T.D. and Rodriguez , from challenging the violation of probation finding once he had entered an Alford plea to an offense constituting the same conduct that served as the basis for that finding, because the conviction of that crime conclusively established a probation violation. Moreover, the defendant cannot demonstrate that the facts of this case fall within the narrow exception articulated in T.D. , which would allow us to consider the merits of his insufficiency of the evidence challenge, because he failed to timely file a direct appeal to challenge the validity of his Alford plea and his motion to file a late appeal was denied. State v. T.D. , supra, at 366-67, 944 A.2d 288. As the defendant conceded at oral argument, we are bound by precedent and, therefore, conclude that this appeal is moot because his conviction, stemming from the same conduct that served as the basis for the violation of probation, conclusively established that the defendant engaged in that criminal conduct. Thus, there is no live controversy left for us to resolve. The appeal is dismissed. In this opinion the other judges concurred. See North Carolina v. Alford, 400 U.S. 25, 37, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970). The following portion of the transcript from the defendant's plea hearing is relevant to this appeal: "[Defense Counsel]: My only concern is, Your Honor, I'm thinking I might need a nolo plea. I don't know what effect this is going to have on his potential appeal and if nolo would preserve that or not. "The Court: Do you want to call it an Alford plea? So he disagrees with the facts- "[Defense Counsel]: Yes. "The Court: -and-but he wants to take the plea agreement rather than the risk of a trial on this matter. So we'll note it as an Alford plea because clearly he was contesting the underlying facts which formed the violation of probation. So, again, it's not being used as an admission against him. It's being used so that he can take advantage of a plea agreement." The defendant states, in his motion for permission to file a late appeal from the firearm conviction, that he was "unaware of the potential jurisdictional defect his guilty plea created in his appeal of the violation of probation." See State v. Crenshaw, 210 Conn. 304, 309, 554 A.2d 1074 (1989) ("every valid guilty plea must be demonstrably voluntary, knowing and intelligent" [internal quotation marks omitted] ).

12487871

State of Connecticut v. Timothy J. Quail, Sr.

State v. Quail

2016-10-04

AC 38308

1092

1105

148 A.3d 1092

148

West's Atlantic Reporter, Third Series

Connecticut Appellate Court

Connecticut

2021-08-27T20:57:14.002271+00:00

Fastcase

State of Connecticut v. Timothy J. Quail, Sr.

State of Connecticut v. Timothy J. Quail, Sr. AC 38308 Appellate Court of Connecticut. Argued March 10, 2016 Officially released October 4, 2016 Daniel J. Foster, assigned counsel, for the appellant (defendant). James M. Ralls, assistant state's attorney, with whom, on the brief, were Patricia M. Froehlich, state's attorney, and Matthew A. Crockett, senior assistant state's attorney, for the appellee (state). Beach, Keller and Bishop, Js.

7576

45741

KELLER, J. The defendant, Timothy J. Quail, Sr., appeals from the judgment of conviction, rendered following a jury trial, of murder in violation of General Statutes § 53a-54a, and larceny in the fifth degree in violation of General Statutes § 53a-125a. The defendant claims that the court improperly denied his motion to suppress physical evidence, including the results of forensic testing performed on such physical evidence, that the police seized during a warrantless search of his sister's residence. We affirm the judgment of conviction. On the basis of the evidence presented at trial, the jury reasonably could have found the following facts. In December, 2009, the defendant was in a romantic relationship with the victim, Robin Cloutier. At or near that time, the defendant, who was unemployed, was not a licensed driver, and did not own an automobile, began residing with the victim at her apartment in Pomfret. Prior to the events underlying this appeal, the defendant expressed his desire to sell the victim's possessions without her permission. In a phone call to his son, which occurred while the victim was alive, the defendant conveyed that he had "things to sell," and wanted to meet with him on December 14, 2009. In the evening hours of December 13, 2009, the defendant and the victim drove together in the victim's truck to the apartment of the defendant's sister, Theresa Quail, in Plainfield. The defendant and the victim spent a portion of the evening at Theresa Quail's apartment, where they socialized and consumed alcohol with Theresa Quail and her boyfriend. Theresa Quail's son, Jesse Cousineau, and his girlfriend also were present. Later that evening, the victim and the defendant, who had displayed anger toward the victim that evening, abruptly left in the victim's truck; they subsequently returned to the victim's apartment. At some point after the defendant and the victim left Theresa Quail's apartment on December 13, 2009, but prior to the evening of December 14, 2009, the defendant struck the victim multiple times, both on her head and on other parts of her body, with a baseball bat. Using a knife, the defendant also stabbed the victim multiple times in her neck and torso. The physical assault occurred in the victim's bedroom, and the victim died as a result of the physical injuries inflicted by the defendant. At or about the time that the defendant caused the victim's death, he took possession of numerous items that belonged to the victim by removing them from her residence and putting them inside of her truck. These items included a leather jacket, a desktop computer, a television, several cable television receivers, a collection of foreign currency, a new video game console in its original packaging, and loose change. At some point on December 14, 2009, the defendant left the victim's residence in her truck. At this point, the victim's cell phone had been turned off, the telephone at her apartment had been disconnected, her bedroom door was locked, the blinds in her apartment had been closed, and the doors to the apartment were locked. The defendant walked the victim's dog. At or around noon on December 14, 2009, the defendant, driving the victim's truck alone, traveled to the residence of his mother, Gertrude Quail. During the course of conversation, the defendant's mother inquired about the victim's whereabouts. Although the victim was unemployed at that time, and was collecting unemployment compensation benefits, the defendant replied that the victim was "working." The victim's mother expressed her belief that the victim had been laid off, but the defendant disagreed. The defendant also stated that he had to pick the victim up from work later that afternoon, at 5 p.m. Later, on December 14, 2009, the defendant traveled in the victim's truck to a pawn shop in East Windsor. There, he sold the video game console, the desktop computer, and some of the foreign currency for $225. The owner of the pawn shop asked the defendant why he was selling a new, unopened video game console during the holiday season at the pawn shop. The defendant replied that he was separating from the person to whom he had intended to give it as a gift. On that same day, the defendant drove alone to a gentleman's club in East Windsor. The defendant spent time at the bar inside of the club, and in front of a stage where a female dancer, whom he tipped well that day, was performing. A short time thereafter, the defendant spoke with the dancer outside of the club, and he used her cell phone. When the dancer was leaving the club for the day, the defendant removed the victim's leather jacket from the victim's truck and gave it to her. The defendant contacted his son in an attempt to sell some of the other items that had belonged to the victim, telling his son that he was moving and that he needed money. Later, the defendant drove the victim's truck to Springfield, Massachusetts, where he abandoned it in a parking lot with empty tractor trailer trucks. The defendant abandoned the victim's television and cable television receivers in one of the empty trailers. The police did not retrieve the truck until December 23, 2009. In the early morning hours of December 15, 2009, the defendant arrived at a Sunoco gas station in Springfield. The store manager at the gas station spoke with the defendant, who appeared to be intoxicated and edgy; the defendant told him that his truck had been towed and that he needed to make a telephone call. After he used a telephone at the store, the defendant instructed the store manager to tell anyone who might call back that he would be at a nearby Mobil gas station. The defendant walked to the Mobil station and approached Michael Proulx, who was fueling his vehicle. The defendant asked Proulx if he could drive him to Enfield, and Proulx agreed. The defendant told Proulx that he had traveled to a liquor store in Massachusetts with his brother and his girlfriend, the police had towed his truck away while he was at the store, and his brother had been arrested. The defendant, who was carrying a backpack and appeared to be under the influence of drugs, told Proulx that his belongings were in the truck that had been towed away. Later that morning, Proulx left the defendant in Enfield, near the residence of the defendant's brother, Joel Quail. For several hours following his arrival at his brother's residence, the defendant hid inside a boat that was located in his brother's yard. At approximately 11 a.m. on December 15, 2009, the defendant knocked on the door to his brother's residence, and was greeted by his brother. He told Joel Quail that he had been walking all night because the Springfield police had confiscated his truck after finding a large knife in it. Later that day, Joel Quail drove the defendant to Theresa Quail's apartment in Plainfield. They were met there by their older sister, Linda Quail, who also was residing at the apartment. The defendant, Linda Quail, and Joel Quail spent several hours together. Eventually, they were joined by Theresa Quail, Theresa Quail's boyfriend, Cousineau, Cousineau's girlfriend, and other acquaintances of Theresa Quail. During a conversation between the defendant, Cousineau, and Linda Quail, the defendant stated that "he was going to be on the news and [despite] whatever they saw not to think differently of him." The defendant then hugged Cousineau. Cousineau asked the defendant about his relationship with the victim, but the defendant gestured that he did not want to talk about it. Shortly thereafter, Cousineau attempted to reach the victim by telephone, but he reached her voicemail. Later during the evening of December 15, 2009, the defendant became involved in an argument with Theresa Quail and her boyfriend, and he was asked to leave Theresa Quail's residence. Before he left, Theresa Quail asked the defendant about the victim's whereabouts. The defendant replied that she was at work. After he left Theresa Quail's residence, the defendant went to the residence of one of Theresa Quail's neighbors, Todd Houston, who was also a friend of his. Houston was socializing with his girlfriend and another friend when the defendant arrived at his apartment. The defendant was in possession of several bottles of beer and a bottle of the prescription medicine Xanax that bore the victim's name. During the course of conversation, Houston inquired about the victim. In reply, the defendant stated to Houston that the victim "[was] not doing too good," he and the victim had been in an argument, he "may or may not have hit her with a baseball bat," and the victim was dead. The defendant calmly yet tearfully related that he was with the victim, at her residence, when they observed a neighbor's dog outside. He stated that he and the victim brought the dog some type of straw bedding. Later, the neighbor who owned the dog arrived at the victim's apartment, armed with a gun. The defendant stated that he tried to calm the neighbor, but the defendant ultimately crawled to the bedroom, escaped from the apartment by means of a bedroom window, and crawled to the front of the apartment complex. He then stated "[s]omething to the effect that there was an argument and he may or may not have hit [the victim] with a baseball bat." Additionally, the defendant "said something to the effect that he was going to be on the news." Houston, believing that the defendant was joking about harming the victim, reacted to the defendant's statements by expressing his disbelief. Houston asked the defendant how he had arrived at his apartment, to which the defendant replied that he had hitchhiked, and that the victim's truck was "gone." Some of this conversation was overheard by Houston's girlfriend, Paula Peloquin, who overheard the defendant state his belief that he had struck the victim with a baseball bat. The defendant left Houston's apartment after approximately forty-five minutes. After departing Houston's residence either in the late evening hours of December 15, 2009, or the early morning hours of December 16, 2009, the defendant ultimately returned to Theresa Quail's apartment. He fell asleep in Linda Quail's bedroom, which was unoccupied. In the early afternoon of December 16, 2009, Cousineau and several others entered the bedroom. They found the defendant, lying on the floor and clad in boxer shorts. He was wrapped in blankets and a towel, unresponsive, and struggling to breathe. Cousineau called 911. Emergency medical personnel arrived at the apartment and transported the defendant to a nearby hospital. On December 16, 2009, the victim's father, Thomas Audrain, who believed that the victim feared the defendant, went to the victim's apartment twice, once in the morning and once in the late afternoon, after he learned from the victim's children that she had failed to pick them up from her former husband's home. Audrain observed that the victim's truck was not parked outside, and he did not observe any signs of forced entry into to the residence. He observed the victim's purse, wallet, and driver's license on the kitchen table therein. During his second visit to the residence in search of the victim, he used tools to forcibly open the victim's locked bedroom door. He discovered the victim's lifeless body lying in a pool of blood on the bedroom floor. Audrain noticed evidence of a violent struggle in the bedroom, a broken television was on the floor, and a bloody baseball bat was on the victim's bed. Audrain sought help from a neighbor of the victim, who called 911, after he realized that the telephones in the victim's residence had been disconnected. On the basis of the evidence at the crime scene, the police determined that the victim's murder occurred in her bedroom. On April 11, 2012, the state charged the defendant with committing murder and larceny in the fifth degree. Following a seven day trial, a jury found the defendant guilty of both charges. The court imposed a total effective sentence of sixty years of incarceration. This appeal followed. With respect to the ruling at issue in this appeal, the following additional facts are relevant. At trial, the state offered in evidence the defendant's clothing and wallet that the police seized from Linda Quail's bedroom in Theresa Quail's residence during a warrantless search on December 16, 2009, as well as the results of forensic tests that had been performed on these seized items. On April 18, 2012, which was the fourth day of the defendant's trial, the defendant moved to suppress all of these items. In the memorandum of law in support of the motion, the defendant argued, inter alia, that the seized items should have been suppressed because they were seized without a warrant, without probable cause, and outside of any exception to the warrant requirement. Furthermore, the defendant argued in his memorandum of law in support of the motion that the results of the subsequent search of the seized items should have been suppressed because the evidence yielded by such subsequent searches were fruits of the poisonous tree. The defendant argued that the police had seized items of personal property from an area in which he, as an overnight guest in the bedroom, had a reasonable expectation of privacy, and that the seizure occurred at a time when he was not present and, in fact, was unresponsive and incapable of consenting to the seizure. He argued in relevant part that no third party had consented to the seizure of the items, and that "[t]here was nothing about the seized items of personal property that indicated [that] they were associated with any crime against the alleged victim; nor did such indicator of criminality associated with the defendant's clothes appear in plain view. Even if the police were standing in a permissible area [of the residence searched], the mere sight of the items did not provide them probable cause to believe that these were the same clothes worn at the time of the killing of the alleged victim. The police acted not from probable cause or even reasonable suspicion, but rank speculation in seizing the defendant's property." On April 19, 2012, the court held a hearing on the motion to suppress. At the suppression hearing, state police Sergeant John Turner testified in relevant part as follows. He was the supervisor of the crime scene investigation at the victim's apartment on the night when her body was discovered, December 16, 2009. When he and other state police officers arrived at the victim's apartment on that night, they interviewed Audrain, who identified himself as the victim's father. After interviewing Audrain, the state police learned that the victim had a boyfriend, whom they later identified as the defendant, and that he had a sister, Theresa Quail, who lived in Plainfield. The state police contacted Plainfield police and asked them if they knew of anyone with the defendant's last name, to which the police responded that they were aware that a person with that last name, the defendant, had just been transported to Backus Hospital from Theresa Quail's apartment in the afternoon on December 16, 2009, and that he had been in an unconscious state. Turner then dispatched state police detectives Priscilla Vining and Daniel Cargill to Theresa Quail's apartment in order to interview any witnesses, to determine the circumstances surrounding the defendant's transport to the hospital, the nature of the defendant's relationship to the victim, and the whereabouts of the defendant in relation to the victim's death. Furthermore, Turner testified that Vining and Cargill returned to the victim's apartment shortly after midnight on December 17, 2009, and obtained statements from Linda and Theresa Quail, and collected evidence-the defendant's clothing and wallet-from Linda Quail's bedroom in Theresa Quail's apartment. Turner testified that when Vining and Cargill returned to the victim's apartment, he instructed them to turn over the defendant's clothing to the evidence officer "for use . in the investigation should it become necessary," which they ultimately did. Turner testified: "At this point in time there was . no real connection . with [the defendant] and the murder, but I certainly believe that if he did become a suspect later on that that clothing could be evidence in the future. Based on knowing what the [crime] scene looked like and how bloody it was, one . could certainly believe that there'd be blood on that clothing, whether visible or not." Vining also testified in relevant part as follows at the April 19, 2012 suppression hearing. When she went to the victim's apartment on the night of December 16, 2009, she and other state police officers learned that the victim never arrived at her former husband's home to pick up her two children on that day, which was her scheduled day of the week to have custody of them. Furthermore, Vining testified that when she arrived at the victim's apartment, she learned that, several hours earlier, the defendant, with whom the victim had been living, had been transported, in an unconscious state, from Theresa Quail's Plainfield apartment to a hospital. State police then searched a database for the defendant and determined that he was a registered sex offender and that he had been arrested multiple times in the past for violent and drug-related crimes. Vining testified that, pursuant to Turner's orders, she and Cargill went to Theresa Quail's apartment at approximately 10 p.m. that night. Theresa Quail invited them inside the apartment when they arrived, and she and Cargill interviewed Linda Quail and Theresa Quail. Vining testified that Linda Quail, who had been living in Theresa Quail's apartment, then led her and Cargill up to her bedroom after the interview. Linda Quail's bedroom was cluttered with clothing and household items. There was no indication that the defendant lived in that room but Linda Quail told her and Cargill that some clothing on the bedroom floor belonged to the defendant, specifically a denim jacket, a pair of blue jeans, a pair of socks, and a pair of sneakers. Vining testified that blood was not visible on the clothing, but based upon her training and experience, the perpetrator of a crime such as the crime against the victim probably would have had blood on their clothing, so she seized it. On April 20, 2012, the court issued an oral decision from the bench denying the defendant's motion to suppress. It stated: "Having heard the evidence that was adduced yesterday . the court finds that the collective knowledge of the state police at the time that . Vining and . Cargill arrived at [Theresa Quail's apartment], which was sometime around [10 p.m.] that night, indicates that there was no evidence of forced entry to [the victim's] apartment . that it was an extremely bloody scene so that there was likely transfer of blood to any perpetrator's clothing; the state police found a baseball bat which was probably at least one of the instruments used in committing the crime and that type of instrument would, of course, cause blood spattering. And it was very obvious from the photographs and from anybody that looked at the bat that it had blood like stains contained on it. "The evidence also shows that the defendant had been living with [the victim], but was not present at the apartment at the time that her body was discovered. The state police also knew that the defendant was a registered sex offender and had numerous arrests for violent crimes in the past. The state police, learning from . Audrain that the defendant was [the victim's] boyfriend, called the Plainfield police, who indicated to them that the defendant had been taken by ambulance to Backus Hospital approximately [three] hours earlier because of either an extreme intoxication and/or a drug overdose. "Although all civilian witnesses that have testified in this case indicate that the last time that [the victim] was seen alive on, I believe, Sunday, December [13, 2009] this information was not known to the state police at the time that they went to [Theresa Quail's apartment], therefore they could have reasonably assumed that [the victim] was killed on December [16, 2009] when the body was discovered. "The testimony at the hearing further shows that Detectives Vining and Cargill went to [Theresa Quail's apartment] in Plainfield; that they knocked on the door; that they identified themselves to the person who answered the door and explained why they were there; that they asked who the name of the person who had answered the door and that woman indicated she was . Theresa Quail; that the detectives explained to Theresa Quail and also Linda Quail why they were there and after further discussions . Cargill with Linda Quail and . Vining with [Theresa] Quail . Vining and Cargill and Linda Quail went up to Linda Quail's bedroom which was on the second floor at the top of the stairs. "The testimony indicated that Linda Quail led the state police up there. Entering the room . Vining observed the room to have on the floor certain items including a mattress, a lot of clothing-female clothing primarily-as well as household items. Linda Quail also indicated that certain clothing on the floor belonged to the defendant. "Based upon the fact that the crime scene was very bloody and that a baseball bat at a minimum was involved . Vining knew from her training and experience that any perpetrator would likely have blood spatter and/or transfers on his clothing; therefore . Vining seized that clothing as potential evidence. "The court finds that the state police were lawfully in Linda Quail's bedroom based on Linda Quail's consent to allow them into her room. The testimony indicates that while downstairs the state police explained to Linda Quail why they were at [Theresa Quail's apartment] and that Linda Quail voluntarily thereafter led them upstairs. "At the hearing, there was not a scintilla of evidence adduced indicating that Linda Quail was forced, threatened, or coerced into bringing the state police upstairs to her bedroom. The state need only prove the lawfulness of a search and seizure by a preponderance of the evidence. Although in this case the evidence of consent is not overwhelming, there is no evidence which demonstrates that Linda Quail did not really consent. "Accordingly, on this record, the court finds that Linda Quail did consent to a search of her bedroom. Once in the bedroom, Linda Quail pointed out clothing that belonged to the defendant. The court finds that that testimony was not hearsay, in that it was introduced to show the effect on the hearer and to explain why . Vining would seize the clothing that she did. "The clothing that was seized was seized in plain view on the floor of the room and upon seeing it, it was immediately apparent to . Vining, based on her training and experience and in light of the bloody crime scene that she had observed, that this clothing was potentially incriminatory. "Moreover, this evidence-in other words, the clothing-is of a type that, if not seized at that time because of its location and mobility, it could have been lost, stolen, destroyed or in some way tampered with. "Therefore, for all of the foregoing reasons, the court finds that the state police lawfully seized the defendant's clothing from the bedroom of Linda Quail on December 16 and 17, 2009; therefore, the court denies the defendant's motion to suppress." On April 24, 2012, which was the next day on which trial proceedings took place, the court once again took up the matter of the defendant's motion to suppress, at which point it stated the following: "Okay. So let me put the following additional [statements] on the record. And it amplifies, I guess, the decision that I rendered last Friday on the motion to suppress. The defense did raise a Crawford v. Washington [supra, 541 U.S. 36, 124 S.Ct. 1354 ] issue with respect to the motion to suppress and rightly indicated that there is-[that is] a case of first impression here in Connecticut. In this court's opinion, there is no Crawford v. Washington issue, so I [do not] need to rule on that with respect to this particular case. "Number one, the state did not offer any statements of Linda Quail to prove consent to search or seize. And, secondly, the sole statement of Linda Quail offered by the state was her statement-[Linda Quail's] statement that certain clothing in the room belonged to the defendant. And as [I have] already indicated previously, that was not hearsay because it was offered to show the effect on the hearer. In other words, why . Vining seized the clothing that she did. "All right. With respect to that clothing, the court has previously determined that the clothing was immediately apparent to . Vining, as likely containing evidence of the crime of murder. The court has also previously found that the-at [10 p.m.] on December 16, 2009, the state police reasonably believed that the murder had occurred on December 16, 2009, the day that the body was found. Stated differently, they had no reason to believe that the murder did not occur on . December 16, 2009. "The court failed to state [in its earlier decision on the motion to suppress] that because the state police were only called to the crime scene on December 16, it was reasonable for them to conclude that the murder took place on December 16, and thus also it was reasonable for them to conclude that the defendant had been wearing the clothing found in Linda Quail's bedroom at the time of the murder, or on December 16, 2009. "And the final loose end with respect to the suppression hearing, is that in the motion to suppress, in addition to moving that the defendant's clothing be suppressed, the defendant has also moved that the results of any testing of the clothing be suppressed. The state counters [that] the testing was conducted after the state police obtained a [warrant pursuant to State v. Joyce , 229 Conn. 10, 639 A.2d 1007 (1994) (Joyce warrant) ]. The defense does not contest the validity of the Joyce warrant, but rather argues that the results of any testing should be suppressed as the fruit of the initial poisonous warrantless [seizure] of the clothing. "As an aside, the court does take judicial notice that a Joyce warrant was issued for the blue jeans, sneakers, socks, and shirt on June 14, 2011. That warrant authorized the forensic science lab[oratory] to test the defendant's clothing for the presence of evidence of the crime of murder. The court's understanding from argument here is that the test results [that] the state intends to introduce were obtained by the lab[oratory] after June 14, 2011; thus, the tests were conducted in accordance and under the authority of the [Joyce ] warrant. "The court has previously found that the warrantless seizure of the defendant's clothing was not unlawful; therefore, the court now extends that reasoning to find that the test results obtained were not the result of the fruit of any poisonous tree or any illegal warrantless seizure of the clothing. Accordingly, the court also denies the defendant's motion to suppress the test results." After the court issued its decision denying the defendant's motion to suppress, the state presented, inter alia, the following evidence: the defendant's clothing and wallet that were seized from Linda Quail's bedroom; the results of DNA and forensic tests performed on those items pursuant to the Joyce warrant, which testing revealed that the defendant's shirt and blue jeans contained blood like stains that tested positive for the victim's DNA; and Vining's testimony about her and Cargill's visit to Theresa Quail's apartment on the night of December 16, 2009. Before this court, the defendant does not contest that Theresa Quail, as a co-occupant of the bedroom, validly consented to the police search of the bedroom in which he had been an overnight guest prior to the time at which he was transported to the hospital on December 16, 2009. Relying on arguments that he advanced before the trial court, the defendant challenges the court's denial of his motion to suppress on the ground that the warrantless seizure of his clothing and personal effects from the bedroom at Theresa Quail's residence violated his rights under the fourth amendment to the United States constitution. The defendant argues that Linda Quail did not consent to the seizure of his clothing and personal effects and that even if she had done so, such consent was invalid because she did not have the authority to so consent. The state argues, in essence, that the seizure of the defendant's items by the police, which occurred after the defendant had been transported to the hospital in an unconscious state, was lawful because it occurred "pursuant to valid consent" by Theresa Quail, and any subsequent testing of the items occurred pursuant to a Joyce warrant. Alternatively, relying on the other evidence presented at trial, the state argues that any error in the denial of the defendant's motion to suppress and subsequent admission of the evidence at issue was harmless beyond a reasonable doubt. "It is well settled that constitutional search and seizure violations are not structural improprieties requiring reversal, but rather, are subject to harmless error analysis. . Accordingly, we often have declined to decide fourth amendment issues attendant to the legality of a search or seizure when it is clear that any erroneous admission into evidence of the fruits of the search was harmless beyond a reasonable doubt. . The harmless error doctrine is rooted in the fundamental purpose of the criminal justice system, namely, to convict the guilty and acquit the innocent. . Therefore, whether an error is harmful depends on its impact on the trier of fact and the result of the case. . This court has held in a number of cases that when there is independent overwhelming evidence of guilt, a constitutional error would be rendered harmless beyond a reasonable doubt . [but] the state bears the burden of proving that the error was harmless . [W]e must examine the impact of the evidence on the trier of fact and the result of the trial. . If the evidence may have had a tendency to influence the judgment of the jury, it cannot be considered harmless. . That determination must be made in light of the entire record [including the strength of the state's case without the evidence admitted in error]. . "Whether a constitutional violation is harmless in a particular case depends upon the totality of the evidence presented at trial. . If the evidence may have had a tendency to influence the judgment of the jury, it cannot be considered harmless. . Whether such error is harmless in a particular case depends upon a number of factors, such as the importance of the [evidence] in the prosecution's case, whether the [evidence] was cumulative, the presence or absence of evidence corroborating or contradicting the [evidence] . 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. . The state bears the burden of proving that the error is harmless beyond a reasonable doubt." (Citation omitted; internal quotation marks omitted.) State v. Smith , 156 Conn.App. 537, 560-62, 113 A.3d 103, cert. denied, 317 Conn. 910, 115 A.3d 1106 (2015). To the extent that we may dispose of the appeal on the ground of harmless error, without having to resolve the fourth amendment claim raised by the parties, it is consistent with our jurisprudence that we do so. See Moore v. McNamara , 201 Conn. 16, 20, 513 A.2d 660 (1986) ("[t]his court has a basic judicial duty to avoid deciding a constitutional issue if a nonconstitutional ground exists that will dispose of the case"). We carefully have discussed the facts that the jury reasonably could have found on the basis of the evidence presented at trial. In the present case, there was ample and compelling circumstantial evidence that demonstrated the defendant's guilt. We have repeatedly acknowledged that "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." (Internal quotation marks omitted.) State v. Davis , 283 Conn. 280, 330, 929 A.2d 278 (2007). The state presented evidence that the defendant, who was living at the victim's residence and who accompanied the victim home on the night of her murder, had ample opportunity to murder the victim. The evidence concerning the crime scene and the steps taken by the assailant to conceal the victim's death, such as disconnecting the victim's phone and locking doors in her residence, suggested that the victim was murdered by someone, like the defendant, who had access to her residence and was known by the victim. There was evidence that, like the defendant, the victim's assailant was a smoker and that the assailant had smoked in the victim's bedroom. The state presented evidence that the defendant had a motive to kill the victim. In the days prior to her death, the defendant, who was unemployed, expressed his interest in selling the victim's belongings without her knowledge. On the night of the victim's murder, the defendant quarreled with the victim. There was evidence that immediately following the victim's murder, the defendant took possession of the victim's truck and other items belonging to the victim, and that he sold many of these items. There was evidence that the defendant either discarded or gave away other items belonging to the victim, behavior that strongly suggested that he knew that the victim no longer would have a need for these possessions. The state presented evidence that the defendant was conscious of his guilt and had attempted to avoid detection for his involvement in the victim's death. There was compelling evidence that the defendant made several false statements concerning the victim's whereabouts following her murder. Among these statements, he stated to his mother that he had to pick the victim up from a job that she did not have. The defendant also made false and conflicting statements to others with respect to the victim's truck and his activities in Springfield. Additionally, it sheds light on the defendant's state of mind that, after a tire on the victim's truck deflated, he simply abandoned the truck in Springfield. He neither called the victim to tell her what had occurred nor sought her assistance in returning to Connecticut. In addition to this conduct, the evidence demonstrated that, upon arriving at his brother's residence in Enfield on the morning of December 15, 2009, the defendant hid for several hours in a boat that was stored on his brother's property, an unusual act that undoubtedly shed light on his continued effort to conceal himself and his whereabouts. Most compelling, however, was the evidence that, prior to the time at which the victim was discovered dead in her residence, the defendant essentially confessed to the victim's murder. "[C]onfessions have a particularly profound impact on the jury, so much so that we may justifiably doubt [the jury's] ability to put them out of mind even if told to do so." (Internal quotation marks omitted.) State v. Miguel C ., 305 Conn. 562, 581, 46 A.3d 126 (2012). Houston unambiguously testified that the defendant told him the tale about a visit from the victim's angry neighbor and, subsequently, that he himself had struck the victim with a baseball bat (one of the murder weapons in the present case), and that he believed her to be dead. Houston's girlfriend, Peloquin, testified that she recalled Houston asking the defendant about the victim. Peloquin stated that the defendant replied: "I think I hit her with a bat." Peloquin testified that the defendant told a story about an angry neighbor who owned a dog and his having crawled out of the house through a window. Peloquin added that, later that evening, the defendant started crying. It adds to their probative value that these highly incriminatory statements were made by the defendant, while he was emotional, to a friend. Prior to telling this chilling version of events, and prior to the discovery of the victim's body, the defendant made statements to Cousineau and his sister, Linda Quail, which conveyed that the defendant would be "on the news," and that they should not think any differently of him. Plainly, these statements reflected the defendant's awareness that he soon would be the subject of media attention for something that would tend to make his family members think poorly of him. These statements, viewed in conjunction with the other evidence presented in this case, was independent and overwhelming evidence of the defendant's guilt. Additionally, the DNA evidence from the clothing discovered during the police search of the bedroom was not the only evidence of a forensic nature that linked the defendant to the victim's murder. The state presented evidence that the defendant could not be eliminated as a contributor to the DNA collected from the grip of the bloody baseball bat found at the crime scene. The state presented evidence that the defendant was a contributor to DNA collected from the inside neck and shoulder area of a shirt that was found at the crime scene and the blood like stains on the shirt contained the DNA of the victim. We recognize, as the defendant argues, that in particular criminal convictions, DNA evidence may be the most compelling evidence of an accused's guilt. See, e.g., State v. Smith , 280 Conn. 285, 309, 907 A.2d 73 (2006). In the present case, however, the result of the forensic testing performed on the clothing that was discovered by the police in the defendant's bedroom was, by far, not the most compelling evidence of his guilt. There was other forensic evidence that tied the defendant to the crime scene, where he resided with the victim, including forensic evidence that suggested that the defendant had used the murder weapon. Apart from forensic evidence, however, was the ample evidence of the defendant's admissions of involvement in the victim's death, the defendant's false statements concerning the victim's whereabouts following the murder, his motive to kill the victim, his conduct with respect to items that he took from the victim's residence following her death, his hiding in a boat following her death, and his contradictory and false statements concerning his activities following her death. Against this evidentiary backdrop, we conclude that the state has succeeded in demonstrating that it presented overwhelming evidence of guilt independent of the evidence at issue in the present claim. Additionally, the state has demonstrated that, in light of the strength of the state's case, the evidence at issue in the present claim cannot reasonably be viewed as having impacted the result of the trial. Thus, even if the court improperly denied the motion to suppress, we conclude that such denial was harmless error in the present case. The judgment is affirmed. In this opinion the other judges concurred. There was evidence that, following the violent incident that led to the victim's death, a shirt had been placed on the victim's bed and that a cigarette had been smoked in the victim's bedroom. One of the victim's neighbors, Corri Degray, last saw the victim on either December 12 or 13, 2009, and observed the defendant walking the victim's dog on the morning of December 14, 2009. The state presented evidence with respect to a shirt with blood like stains that was found in the victim's living room. Nicholas Yang, a forensic examiner, testified that the blood like stains on the shirt revealed the presence of the victim's DNA and that the defendant was a contributor to DNA samples collected from the inside neck and shoulder seams of the shirt. The results of DNA tests performed on the bat, which were presented at trial, reflected that the defendant's DNA could not be eliminated as a contributor in a test of the bat's grip. One of the victim's neighbors, Ellen Silva, testified that she occasionally saw the victim and the defendant sitting outside of the victim's apartment and that, on at least one occasion, she observed the defendant using a baseball bat to hit a ball for the victim's dog to fetch. Also, Silva testified that, on December 14 and 15, 2009, she heard the victim's dog whining in the victim's apartment. As set forth in our earlier recitation of the facts, during the late evening hours of December 15, 2009, or the early morning hours of December 16, 2009, the defendant returned to Theresa Quail's residence and slept in the bedroom, which was unoccupied at the time. Cousineau and others found the defendant in the bedroom in the early afternoon of December 16, 2009. At this point in Vining's testimony at the suppression hearing, defense counsel objected to any testimony with respect to Linda or Theresa Quail's consent to the police searching Linda Quail's bedroom. Defense counsel also asked the court to extend the reasoning of Crawford v. Washington , 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), and Davis v. Washington , 547 U.S. 813, 126 S.Ct. 2266, 165 L.Ed.2d 224 (2006), to the admissibility of consent. Specifically, defense counsel argued: "Since this is a threshold hearing, which is more than likely going to be dispositive of the whole case, we think those elements which have been addressed in Crawford certainly should extend to a suppression hearing with such dramatic results, depending on how the court rules. For those reasons, the official objection is to any testimonial hearsay regarding the issue of consent that came out of the mouth of anyone who's not here to testify." In response, the state argued, in relevant part: "Anything that Detective Vining testifies to as to what the occupants of the house told her is offered not for the truth of the matter, but for the effect on the [hearer] and what the officer did as it relates to the subject of what it is that the defendant wants to suppress. This is not-what she's testifying to is not testimonial and Crawford [does not] apply." The court overruled defense counsel's objection. There were also items in the pockets of the clothing, including a wallet, a nail clipper, and a toothbrush. At the suppression hearing, defense counsel indicated that they were not seeking to suppress the sneakers and the socks collected from Linda Quail's bedroom, but that they were only seeking to suppress the pants, the shirt, and the wallet. Pursuant to Practice Book § 64-1, the court subsequently signed a transcript of its oral decision and filed it with the clerk of the trial court. In his brief, the defendant also cites to article first, § 7, of the Connecticut constitution, but has not adequately analyzed a claim thereunder. In support of his claim, the defendant relies, inter alia, on Arizona v. Hicks , 480 U.S. 321, 327, 107 S.Ct. 1149, 94 L.Ed.2d 347 (1987), United States v. Matlock , 415 U.S. 164, 171, 94 S.Ct. 988, 39 L.Ed.2d 242 (1974), and State v. Edwards , 214 Conn. 57, 75, 570 A.2d 193 (1990). In addition to presenting evidence of these statements made by the defendant prior to the time that the victim's body was discovered, the state presented evidence that, on May 15, 2010, while he was incarcerated, he spoke on the telephone with his son. The defendant asked if there was any news about the investigation of the victim's murder. His son replied that there was a story in the news in which the defendant was reported to have told one of Theresa Quail's neighbors, on the night before the defendant was transported to the hospital, that he had killed the victim with a baseball bat. Rather than stating that he did not kill the victim, the defendant essentially replied that this conversation had occurred, but that the events described therein were untrue. Furthermore, the state presented evidence that, in a telephone conversation that took place on March 13, 2010, while the defendant was incarcerated but prior to the forensic testing of the clothing seized from his bedroom at Linda Quail's residence, the defendant stated to his brother that there was no blood on his clothing or the victim's truck. Consistent with our analysis of the evidence presented by the state, we observe that the evidence related to the clothing seized from Theresa Quail's residence was not a prominent feature of the prosecutor's closing argument to the jury. During the state's initial closing argument, the prosecutor once referred, in general, to the "forensic science evidence" in this case. During the state's rebuttal closing argument, the prosecutor discussed the ample circumstantial evidence that supported a finding of guilt and, only at the end of her argument, referred to the evidence that the victim's blood had been found on the clothing seized by the police as "one last piece of the puzzle" that demonstrated the defendant's guilt.

12487869

STATE of Connecticut v. Anthony COLLYMORE

State v. Collymore

2016-10-11

AC 37703

1059

1092

148 A.3d 1059

148

West's Atlantic Reporter, Third Series

Connecticut Appellate Court

Connecticut

2021-08-27T20:57:14.002271+00:00

Fastcase

STATE of Connecticut v. Anthony COLLYMORE

STATE of Connecticut v. Anthony COLLYMORE AC 37703 Appellate Court of Connecticut. Argued January 14, 2016 Officially released October 11, 2016 Susan M. Hankins, assigned counsel, for the appellant (defendant). Robert J. Scheinblum, senior assistant state's attorney, with whom, on the brief, were Maureen Platt, state's attorney, and Cynthia S. Serafini, senior assistant state's attorney, for the appellee (state). Gruendel, Lavine and Mullins, Js. The listing of judges reflects their seniority status on this court as of the date of oral argument.

16004

98116

GRUENDEL, J. It is well established that the state may immunize from prosecution a witness called in its case-in-chief. See generally General Statutes § 54-47a. The primary question in this appeal is whether the state, after immunizing such a witness for testimony given during the state's case-in-chief, may decline to extend that immunity to the same witness in connection with his testimony during the defense case-in-chief. Here, we conclude that the state was not required to grant three prosecution witnesses additional immunity for their testimony during the defense case-in-chief, and that the court's refusal during the defense case-in-chief to compel those witnesses to testify when they invoked their fifth amendment right to remain silent was proper as to some testimony and harmless as to the rest. Accordingly, because we conclude that the remainder of the defendant's claims-three evidentiary claims and a claim that the court improperly penalized the defendant at sentencing for electing to go to trial-also lack merit, we affirm the judgment of conviction. The defendant, Anthony Collymore, appeals from that judgment, rendered after a jury trial, of (1) felony murder in violation of General Statutes § 53a-54c ; (2) attempt to commit robbery in the first degree in violation of General Statutes § 53a-49 (a) (2) and 53a-134 (a) (2) ; (3) conspiracy to commit robbery in the first degree in violation of General Statutes § 53a-48 (a) and 53a-134 (a) ; and (4) criminal possession of a firearm in violation of General Statutes § 53a-217 (a) (1). At trial, the jury reasonably could have found the following facts. On January 18, 2010, the defendant and two of his friends, Rayshaun Bugg and Vance Wilson (Vance), were driving around Waterbury in a white, four door, rental Hyundai that the defendant's aunt and uncle had lent to him, looking to rob someone. Eventually the three men drove into the Diamond Court apartment complex, which comprises eight apartment buildings. Halfway down the main road of the complex, the men saw an expensive-looking, black Acura sport utility vehicle (SUV) and decided to rob its driver. They drove down a small road behind the apartments, where the defendant and Vance pulled out their guns and exited the Hyundai, saying that they were going to rob the driver of the SUV. The defendant had a .38 revolver and Vance had a .357 revolver. Bugg drove to the end of the small road and waited. The defendant and Vance reached the SUV, saw two young children running toward its driver, and decided to call off the robbery. The SUV drove away. The defendant and Vance then saw seventeen year old John Frazier (victim) and decided to rob him. As they were trying to rob him, he slapped away one of their guns and ran toward his apartment, at the entrance to the complex. The defendant and Vance both fired shots at the victim. Bugg drove up, the defendant and Vance ran over to the Hyundai and got in, and they sped off to the apartment of Jabari Oliphant, a close friend who lived in Waterbury. There, the defendant and Vance explained to Bugg and Oliphant what had just transpired at Diamond Court, namely, that they had intended to rob the man in the SUV but decided not to when they saw his young children; instead, they tried to rob the victim and shot him when he resisted. They then asked Oliphant if he had something to clean their guns. Police arrived at Diamond Court within minutes of the shooting and found the fatally wounded victim in front of his family's apartment. An autopsy revealed that a single .38 class bullet through the victim's heart had killed him. The defendant was arrested and tried. At trial, the state's case included more than thirty witnesses, who testified over the course of fifteen days. A jury found the defendant guilty, and the court imposed a sentence of eighty-three years in prison. The defendant now appeals from that conviction. I The defendant's first claim is that the court improperly failed to compel three defense witnesses to testify. Specifically, the defendant argues that the court improperly allowed the state to revoke the immunity of three prosecution witnesses when they were called as defense witnesses, then improperly allowed those witnesses to invoke their fifth amendment right and refuse to testify, and that these two errors combined to unconstitutionally deny the defendant these witnesses' exculpatory testimony. A The following additional facts and procedural history are relevant to this claim. At the defendant's trial, the state granted immunity to three witnesses-Bugg, Vance, and Oliphant-in exchange for their testimony during the state's case-in-chief. Although they were called as prosecution witnesses, once they began to testify, these witnesses repudiated prior statements inculpating the defendant and testified so as to exonerate him, reiterating their exculpatory testimony when the defense cross-examined them. The defendant sought to examine those witnesses again during his case-in-chief but, this time, each witness invoked his fifth amendment right and refused to answer many or all questions asked. The inculpatory evidence from these three witnesses came from recorded statements they gave before trial to various authorities, which the court admitted for substantive purposes. The statements differed markedly from the trial testimony, and each of the three witnesses repudiated his statements at length during the state's direct examination and the defendant's cross-examination. We discuss each witness in turn. 1 Bugg was the first of the three witnesses granted immunity. When the state called him to testify in its case-in-chief, he communicated through his attorney that he would be invoking his fifth amendment right against self-incrimination, fearing that the state might bring drug charges against him for his activities on the night of the shooting and perjury charges if he contradicted the testimony he had given at the defendant's probable cause hearing. The state told the court: "Your Honor, based on our review of the statute, the state intends to give [Bugg] use immunity for any drug activity he was engaged in on January 18, 2010.... [In addition] the state does not intend to prosecute [Bugg] for any perjury that he may have committed at the probable cause hearing." The court informed Bugg that as a result, "your [immunity under the statute] doesn't exist, because the state has removed [the possibility of prosecution that] would otherwise allow you to [claim the immunity]." Bugg indicated that he understood. The court instructed the jury that "under [§] 54-47a, [Bugg] has been compelled to testify ." a Bugg's Testimony during State's Case-in-Chief When the state examined Bugg during its case-in-chief, he testified that on January 18, 2010, he, the defendant and Vance drove to Diamond Court to buy drugs from "the weed man," and then drove to Oliphant's apartment. Bugg acknowledged under questioning that this story differed from the police statement he gave on February 10, 2011, and from his testimony at the defendant's probable cause hearing on August 30, 2011. In repudiating his earlier statements, he claimed, however, that the police had forced him to sign the statement after writing it themselves and that he had testified falsely at the probable cause hearing in exchange for a plea deal. On cross-examination, Bugg reiterated that, on January 18, 2010, there was never any plan to rob someone, they were "going to get some weed, that was the whole thing," and he did not see the defendant or Vance with a gun that night. Bugg testified that he signed the police statement in exchange for a plea deal and because the police beat him, and that his testimony at the probable cause hearing was part of the same plea deal. b Bugg's Prior Inconsistent Statements The state submitted the two statements made by Bugg prior to his testimony at trial, both of which were admitted into evidence for substantive purposes under 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). First, the state introduced Bugg's police statement, made on February 10, 2011, through Lieutenant Michael Slavin, one of the detectives who had taken it. Slavin testified that Bugg had agreed with the statement he had given to the police and that the police did not beat or threaten Bugg. The court admitted the statement as a full exhibit. Bugg stated to the police that on January 18, 2010, he, the defendant and Vance were driving around when the defendant and Vance saw a black Acura SUV at Diamond Court, pulled out their guns, told Bugg that they were going to rob its driver, and got out of the car. Bugg saw the defendant with a .38 revolver and Vance with a .357. Soon, Bugg heard five or six gunshots and saw the defendant and Vance running up. They got into the Hyundai and told Bugg to drive, and he sped away. When they arrived at Oliphant's apartment, Vance and the defendant explained to Bugg that "the guy in the Acura had a baby in it, so they felt bad; instead [they] took the young nigga." The defendant told Bugg that Vance "ha[d] his gun to the [victim's] chest" while they were trying to rob him, "and the [victim] tried to grab it and they started to tussle over the gun, [and] that is why he shot him." While the defendant was talking, Vance asked for some ammonia so that he could clean off his gun. Second, Bugg's probable cause hearing statement, made on August 30, 2011, was admitted into evidence through the testimony of the court reporter who had recorded and transcribed it. At the probable cause hearing, Bugg had testified that the defendant and Vance decided to rob the man in the Acura SUV, that they went to do so, that he heard gunshots, that the defendant and Vance came running to the Hyundai, that they got in and he drove off, and that at Oliphant's apartment they had stated that they robbed someone else instead. c Bugg's Testimony during Defense Case-in-Chief When the defense told the court that it would be calling Bugg as a witness, the state told the court that "the state's granting of immunity to the-the prosecution witnesses does not extend to them as defense witnesses ." The court told Bugg that there was "an issue as to whether or not the immunity that the state gave [him] when [he was] here before applie[d] to [his] testimony now, because now [he was] being called by the defendant . and that issue, whether or not the immunity attache[d] [was] unclear," so "what [he] should do is be guided by what [his] attorney," who would be sitting next to him during his testimony, "advise[d] [him] as to answering any of the questions." When the state added that, "notwithstanding the court's position, it is the state's that [Bugg] is not being given . immunity for his testimony at this point in time," the court clarified, "I want to be sure this is clear for the record. I believe what I said to [Bugg] is that the law is unclear as to whether or not the immunity he was given by the state relates to his testimony as a defense witness." In response to questions about the night of January 18, 2010, Bugg testified that he was driving the Hyundai that night, that he "thought they was going to get some weed," and that he did not know where the shooting occurred because he "was in a car." Bugg asserted his fifth amendment rights when asked where he drove after the defendant and Vance exited the car, and where he was when he heard gunshots. Bugg also answered defense counsel's questions about various phone calls he had made from prison and asserted his fifth amendment rights for only one such question-after testifying that his cousin, Marquise Foote, had stolen from him, he asserted his fifth amendment rights when asked what was stolen. As to his testimony at the probable cause hearing, Bugg agreed with the defense counsel that he had testified at that hearing "for the purpose of getting a deal," but asserted his fifth amendment rights when asked if his testimony at that hearing was true. 2 Vance was the second of the three witnesses granted immunity. When the state called him to testify, he waived his fifth amendment right against self-incrimination. The state later clarified that it had granted Vance immunity "for a claim of false statement ." a Vance's Testimony during State's Case-in-Chief During the state's case-in-chief, Vance testified that on January 18, 2010, he and Bugg accompanied the defendant to Diamond Court to collect $3000 from someone so that the defendant could repay Vance for heroin Vance had given the defendant. Vance believed that they were "going to ask [the man] where the money is. That's all." When they arrived, that man drove off, Vance punched the defendant in the jaw and, believing that the defendant was "reaching for something," Vance shot at the defendant with a .357 Taurus Magnum revolver as he ran away. Vance testified that he had never seen the defendant with a gun but had seen him with a knife. Soon, the defendant got back into the car with Vance and Bugg, and they drove off. The state asked Vance about his two prior accounts of the shooting-his statement to police on February 22, 2011, and his guilty plea on February 21, 2012-both of which differed from his trial testimony. Vance claimed that he signed the police statement only because he had been threatened with the death penalty and that he entered his guilty plea in exchange for a sentence of only thirty to fifty years' incarceration. When questioned about his police statement and guilty plea, Vance repudiated both and persisted in his story about driving to Diamond Court to collect money owed him for heroin. On cross-examination, Vance essentially reiterated his testimony given on direct examination. b Vance's Prior Inconsistent Statements The state submitted the two statements made by Vance prior to his testimony at trial, both of which were admitted into evidence for substantive purposes under State v. Whelan , supra, 200 Conn. at 753, 513 A.2d 86. First, the state introduced Vance's police statement, made on February 22, 2011, through Slavin, who testified that Vance had signed at the bottom of each page and that no one threatened or forced him to do so. In Vance's statement, he said that on January 18, 2010, he, the defendant and Bugg drove to Diamond Court where they saw a black Acura SUV and decided to rob its driver. Vance took out a .357 revolver, the defendant took out a .38 revolver, and they exited the car and ran up to the SUV, but they then saw two young children, causing them "to let it go." The SUV drove off. Vance and the defendant then saw the victim walking by and decided to rob him. The defendant stuck his gun in the victim's chest, saying, "you know what it is," but the victim slapped the gun away and took off running. The defendant and Vance each fired two or three shots in the victim's direction before getting into their car and driving to Oliphant's apartment. There, the defendant asked for Vance's gun so he could dispose of it and his gun. Second, Vance's guilty plea statement was admitted into evidence through the testimony of the court monitor who recorded and transcribed it. At the guilty plea hearing, Vance had admitted that the defendant asked him to commit a robbery; that he, the defendant, and Bugg decided to rob the man in the SUV; that both he and the defendant had guns; that the defendant's gun was a .38; that they decided against robbing the SUV when they saw its driver had young children; that they tried to rob the victim instead; that the defendant ran up to the victim first and put a gun to his chest; that Vance fired two or three shots when the victim ran; that the defendant fired shots as well; and that back at Oliphant's apartment on Walnut Street, Vance gave his gun to the defendant when asked. c Vance's Testimony during Defense Case-in-Chief When the defense called Vance as a witness, the state asserted that "it is the state's position that any testimony that he gives at this portion of the proceeding is not covered by . immunity." The court repeated to Vance the same advisement it had given Bugg concerning immunity and told him to "be guided by the advice of your attorney and that's-that's the way we should proceed." The court asked for an offer of proof outside the presence of the jury, during which defense counsel asked what the police said when they took Vance's statement, whether Vance shot the victim, and whether Vance called a person named Karen Atkins in June, 2012. Vance replied: "Based on the advice of my counsel, I'm going to invoke my fifth amendment right." Although the defendant argued that Vance had no valid fifth amendment right to assert, the state and Vance's attorney argued that Vance had yet to be sentenced on a guilty plea to various charges arising from the January 18, 2010 shooting; that the plea deal allowed a sentence in the range of thirty to fifty years; and that until Vance was sentenced his fifth amendment right against self-incrimination continued to apply to the events of January 18, 2010. The court held that Vance's fifth amendment right continued to apply until after sentencing and that, because the state "sa[id] on the record that [Vance] is not being immunized with respect to his testimony as a defense witness," therefore he "properly, in my view, invoked his fifth amendment privilege." Because it would be improper to call a witness for the sole purpose of having him invoke the fifth amendment in front of the jury; see State v. Person , 215 Conn. 653, 660-61, 577 A.2d 1036 (1990), cert. denied, 498 U.S. 1048, 111 S.Ct. 756, 112 L.Ed.2d 776 (1991) ; the court excused Vance without having him testify as a defense witness. 3 Oliphant was the third of the three witnesses granted immunity in connection with the defendant's trial. When the state called him to testify, he communicated through his attorney that he would be invoking his fifth amendment right against self-incrimination. Oliphant's attorney discussed with the court Oliphant's fear that the state might bring false statement charges against him if he contradicted his statement to police, and hindering prosecution charges for his interactions with the defendant, Vance, and Bugg after the shooting. After a colloquy with the prosecutor, the court told Oliphant, "you don't have a fifth amendment privilege because . you have been given transactional immunity by the state." Oliphant said that he understood. a Oliphant's Testimony during State's Case-in-Chief During questioning in the state's case-in-chief, Oliphant testified that on the night of January 18, 2010, he was at the apartment on Walnut Street when the defendant, Vance, and Bugg came over. Privately, Vance told Oliphant that he had just killed someone, and wanted to kill Bugg and the defendant "because he didn't want to leave no witnesses." A couple of days later, Bugg told Oliphant that the defendant, Vance, and he had been driving around drinking and smoking that night, when Vance "saw somebody walking down the street, hopped out [of] the car, [and] tried to rob him. The [victim] fought [Vance] off and [Vance] shot [the victim]. [Vance] jumped back in the car and they sped off." Oliphant further testified that the defendant never talked about the shooting with him, and that Oliphant had never seen the defendant with a gun, but that he had seen Vance with a .357 caliber gun before the January 18, 2010 shooting. Oliphant acknowledged that this story differed from the statement he had given to the police on February 2, 2011. He claimed, however, that the police made him sign that statement after beating him for hours, while he was high on PCP and alcohol. When the state questioned Oliphant line by line, he again repudiated his statement and persisted in his story that he was told that Vance got out of the car alone and robbed a passerby. On cross-examination, defense counsel examined Oliphant extensively about his statement, which Oliphant repudiated and said he signed only because police beat him and a prosecutor "was offering [him] deals to perjure [him]self ." b Oliphant's Prior Inconsistent Statement The state submitted Oliphant's police statement into evidence and the court admitted it for substantive purposes under State v. Whelan , supra, 200 Conn. at 753, 513 A.2d 86. The state again called Slavin as a witness, who testified that he had taken Oliphant's police statement in the same manner he had taken Bugg's and Vance's statements, and that no one forced or threatened Oliphant to sign. In the statement, Oliphant said that on the night of January 18, 2010, at the apartment on Walnut Street, Vance and the defendant both told Oliphant that they had been driving around with Bugg looking to rob someone when they saw the victim in the Diamond Court apartment complex. They told Oliphant that they tried to rob the victim, but when he fought back and ran toward his apartment, Vance shot him in the back. At some point, Bugg also spoke with Oliphant and told him that the defendant, Vance, and he were driving around in the white car on January 18, 2010, looking for someone to rob, that they saw the victim in the Diamond Court apartment complex, and that Vance shot the victim as he ran away. Oliphant previously had seen Vance with a .357 caliber gun and the defendant with a .38 caliber revolver. c Oliphant's Testimony during Defense Case-in-Chief When the defense tried to call Oliphant as a witness, the state told the court that "it's the state's position that the immunity that was given to Mr. Oliphant when he testified as a prosecution witness in the state's casein-chief . ended . and he has no immunity for anything that goes on today." The court advised Oliphant concerning immunity as it had Bugg and Vance and told him to "be guided . by [his] attorney's advice ." Oliphant's attorney said that Oliphant would not answer any questions "[b]ased on the representation that immunity will not be extended to him being called as a defense witness." During an offer of proof outside the presence of the jury, defense counsel asked several questions about Oliphant's February 2, 2011 statement to the police. Oliphant invoked the fifth amendment when asked if he was beaten on that date and what he had meant by part of his trial testimony as a prosecution witness, but he did testify that, on February 2, 2011, he was arrested with a man named Jamel, whom he had not known for long. The state asked three questions on cross-examination-how, and for how long, had Oliphant known Jamel before their arrest; and did they have narcotics when arrested. Oliphant asserted his fifth amendment rights in response to each question. The state argued that Oliphant could not selectively assert his fifth amendment rights, testifying about a subject for the defense but refusing to answer the state's questions about the same subject. Defense counsel agreed that if Oliphant did so, then he would be unavailable for cross-examination and so the court would have to strike his testimony. See State v. Marsala , 44 Conn.App. 84, 92-93, 688 A.2d 336 (court properly struck defendant's entire testimony where he refused to answer questions on cross-examination), cert. denied, 240 Conn. 912, 690 A.2d 400 (1997). The court held that, because Oliphant "indicated he is not going to respond to any of the questions asked on cross-examination by the state," it would be futile to call him as a witness only to have his testimony stricken. Accordingly, the court released Oliphant from the subpoena with which he had been served, and he did not testify as a defense witness. B With that factual history in mind, we now turn to the defendant's first claim on appeal, which is that the court improperly (1) allowed the state to revoke the immunity of Bugg, Vance, and Oliphant, three prosecution witnesses, when they were called as defense witnesses; and (2) failed to compel those three witnesses to testify when they asserted their fifth amendment rights as defense witnesses, thus denying the defendant crucial, exculpatory testimony. We address each argument in turn. 1 The defendant argues that the court improperly allowed the state to "revoke" its grant of immunity to Bugg, Vance, and Oliphant when they were called as defense witnesses and, that the revocations violated the defendant's rights to due process and a fair trial under the fourteenth amendment to the United States constitution, as well as his rights to compulsory process and to present a defense under the sixth amendment to the United States constitution. As we have noted, the state initially had granted each witness immunity during the prosecution's case-in-chief, pursuant to § 54-47a. When the defendant called those same witnesses for his case-in-chief, the state told each of them that they no longer had immunity. The defendant characterizes this as a "revocation" of immunity and argues that such a revocation violated his constitutional rights because it effectively prevented the witnesses from testifying. By contrast, the state argues that it "did not revoke grants of immunity to any of its witnesses" and that the real question is whether the court properly held that the state need not grant additional immunity to those witnesses. (Emphasis added.) We agree with the state that, because it did not revoke the witnesses' immunity and the court properly held that the state was under no obligation to grant them additional immunity, the defendant's constitutional rights were not violated. First, to the extent that the defendant claims that the court violated his constitutional rights by misapplying § 54-47a to permit the state to revoke immunity previously granted under § 54-47a, we must interpret that statute. "To the extent that the [defendant's] claim requires us to interpret the requirements of [a statute], our review is plenary." In re Nevaeh W. , 317 Conn. 723, 729, 120 A.3d 1177 (2015). We begin with the statute's text and relationship to other statutes, and consider other evidence of its meaning only if the text itself is either ambiguous or yields absurd results. Id., 729-30, 120 A.3d 1177. Section 54-47a has two parts. Section 54-47a (a) provides in relevant part: "Whenever in the judgment of . a state's attorney . the testimony of any witness . in any criminal proceeding involving . felonious crimes of violence . or any other class A, B or C felony . [is necessary to obtain] sufficient information as to whether a crime has been committed or the identity of the person or persons who may have committed a crime . [and] is necessary to the public interest . the state's attorney . may, with notice to the witness, after the witness has claimed his privilege against self-incrimination, make application to the court for an order directing the witness to testify ." Section 54-47a (b) provides in relevant part: "Upon the issuance of the order such witness shall not be excused from testifying . on the ground that the testimony . may tend to incriminate him or subject him to a penalty or forfeiture. No such witness may be prosecuted or subjected to any penalty or forfeiture for or on account of any transaction, matter or thing concerning which he is compelled to testify . and no testimony . so compelled, and no evidence discovered as a result of or otherwise derived from testimony . so compelled, may be used as evidence against him in any proceeding, except that no witness shall be immune from prosecution for perjury or contempt committed while giving such testimony ." The plain language of § 54-47a (b) thus provides that, if a witness is compelled to testify about a "transaction, matter or thing," then the witness cannot be "prosecuted or subjected to any penalty or forfeiture for or on account of" that transaction, matter, or thing. Nothing in the statute suggests that a prosecutor may later revoke that immunity, before or after the witness testifies, and decide to prosecute the witness after all. Indeed, if the state had such power, then the immunity promised under § 54-47a would be an empty gesture. We conclude that, in the absence of special circumstances, once the state grants a witness immunity under § 54-47a, it plainly lacks the power to revoke that immunity. Accordingly, to the extent that Bugg, Vance, or Oliphant was compelled under § 54-47a to testify about a transaction, matter, or thing during the state's case-in-chief, then, from that point on, the state could no longer prosecute them for or on account of it. The state argues, and we agree, that it "did not revoke grants of immunity to any of its witnesses." (Emphasis added.) Given the constraints imposed by § 54-47a, the state's comments to the three witnesses are best understood not as a "revocation" of the immunity that they already had, but rather as a refusal to grant those witnesses additional immunity. To wit, the state did not wish to grant them both transactional immunity from prosecution for any transactions discussed for the first time during the defense case-in-chief, and use or derivative use immunity that would bar the state from using their defense testimony-or evidence derived from it-in any potential prosecutions against them that the state could still legally pursue. The question is not one of revocation. Rather, the question is whether any of the constitutional provisions cited by the defendant required the state to grant that additional immunity to those witnesses. We therefore turn to whether the state was required to grant the three witnesses additional immunity for their testimony as defense witnesses. "As a threshold matter, we must first determine the applicable standard of review that governs our examination of the defendant's claims. The issue of whether a defendant's rights to due process and compulsory process require that a defense witness be granted immunity is a question of law and, thus, is subject to de novo review. . "[A] defendant has a right under the compulsory process and due process clauses to present [his] version of the facts as well as the prosecution's to the jury so [that] it may decide where the truth lies. . The compulsory process clause of the sixth amendment generally affords an accused the right to call witnesses whose testimony is material and favorable to his defense . "We begin our analysis with the statutory provision concerning prosecutorial immunity for witnesses. [Section] 54-47a authorizes the prosecution to grant immunity to state witnesses under certain circumstances. We explicitly have held that § 54-47a confers no such authority upon the courts with regard to defense witnesses. . Indeed, this court has held repeatedly that there is no authority, statutory or otherwise, enabling a trial court to grant immunity to defense witnesses. . We have no occasion to revisit those holdings today. "We recognize that other courts have held that under certain compelling circumstances the rights to due process and compulsory process under the federal constitution require the granting of immunity to a defense witness. The federal Circuit Courts of Appeals have developed two theories pursuant to which the due process and compulsory process clauses entitle defense witnesses to a grant of immunity. They are the effective defense theory, and the prosecutorial misconduct theory . "Under the effective defense theory . the trial court has the authority to grant immunity to a defense witness when it is found that a potential defense witness can offer testimony which is clearly exculpatory and essential to the defense case and when the government has no strong interest in withholding . immunity . The Third Circuit [Court of Appeals] has held explicitly that under the effective defense theory [i]mmunity will be denied if the proffered testimony is found to be ambiguous [or] not clearly exculpatory . "The prosecutorial misconduct theory of immunity is based on the notion that the due process clause [constrains] the prosecutor to a certain extent in [its] decision to grant or not to grant immunity. . Under this theory, however, the constraint imposed by the due process clause is operative only when the prosecution engages in certain types of misconduct, which include forcing the witness to invoke the fifth amendment or engaging in discriminatory grants of immunity to gain a tactical advantage, and the testimony must be material, exculpatory and not cumulative , and the defendant must have no other source to get the evidence. " (Citation omitted; emphasis added; internal quotation marks omitted.) State v. Kirby , 280 Conn. 361, 403-404, 908 A.2d 506 (2006). Our Supreme Court previously has declined to decide whether either of these theories is correct, in the absence of circumstances that would then warrant reversal of a judgment on that basis. Id., 405. The present case again provides no occasion to reach the correctness of either theory. To succeed under the effective defense theory, a defendant must show that the testimony at issue was " 'essential' " to the defense. Id. ; see, e.g., United States v. MacCloskey , 682 F.2d 468, 475, 479 (4th Cir.1982) (reversing judgment of conviction where "primary defense witness" refused to answer some questions before jury as to certain directly relevant details of alleged conspiracy, although "testimony she gave in . voir dire was detailed and contradicted, or offered innocent explanations to, [the] damaging testimony" of state's primary witness). Here, by contrast, there is no reason to believe that the three witnesses' testimony during the defense case-in-chief would have been anything other than a rehash of their prosecution testimony, which, if believed, already tended to exonerate the defendant from each of the crimes charged. Each testified at length, favorably to the defendant, both when the state examined them during its case-in-chief and when the defendant cross-examined them. Although it is possible that the witnesses would have provided additional exculpatory details when called as defense witnesses, nothing in the record indicates what those details would have been. See United States v.Triumph Capital Group, Inc. , 237 Fed.Appx. 625, 630 (2d Cir.2007) ("[N]o one knows what [the witnesses] would have testified to since they refused to comment on the matter. [The defendant's] speculation that [they] would have testified in [his] favor is not sufficient to prove that their testimony would have been exculpatory."). The defendant has failed to show that any additional testimony the three witnesses may have provided as defense witnesses was essential to his defense. Likewise, under the prosecutorial misconduct theory, a defendant must show that the testimony at issue was "not cumulative" and that he had "no other source to get the evidence." State v. Kirby , supra, 280 Conn. at 404, 908 A.2d 506. The defendant has provided no indication of what new exculpatory testimony he would have elicited from these three witnesses during his case-in-chief. At oral argument before this court, the defendant's counsel was specifically asked what additional details the defendant was prevented from eliciting from these three witnesses, and she provided none. Accordingly, the defendant has failed to show that the witnesses' excluded testimony would not have been cumulative and that he had no other source to get the evidence. We thus conclude that the state was not constitutionally required to grant additional immunity to Bugg, Vance, and Oliphant when they testified as defense witnesses. 2 The defendant also argues that the court improperly failed to compel Bugg, Vance, and Oliphant to testify when they asserted their fifth amendment rights as defense witnesses, because at that point, as a result of the immunity that the state had granted them during its case-in-chief, they were no longer exposed to prosecution and thus had no valid fifth amendment right to assert. We conclude that the court properly refused to compel these witnesses to answer some questions, that the court improperly refused to compel them to answer other questions, and that any error was harmless because all of the testimony improperly excluded was cumulative. We begin with our standard of review. "A ruling on the validity of a witness' fifth amendment privilege is an evidentiary determination that this court will review under the abuse of discretion standard. . It is well settled that the trial court's evidentiary rulings are entitled to great deference. . The trial court is given broad latitude in ruling on the admissibility of evidence, and we will not disturb such a ruling unless it is shown that the ruling amounted to an abuse of discretion." (Internal quotation marks omitted.) State v. Luther , 152 Conn.App. 682, 699, 99 A.3d 1242, cert. denied, 314 Conn. 940, 108 A.3d 1123 (2014). "[W]hen an improper evidentiary ruling is not constitutional in nature, the defendant [also] bears the burden of demonstrating that the error was harmful . [W]hether [the improper exclusion of a witness' testimony] is harmless in a particular case depends upon a number of factors, such as . whether the testimony was cumulative . [and] the extent of cross-examination otherwise permitted . 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. Payne , 303 Conn. 538, 558-59, 34 A.3d 370 (2012). "The standard for determining whether to permit invocation of the privilege against self-incrimination is well established. To reject the invocation it must be perfectly clear, from a careful consideration of all the circumstances in the case, that the witness is mistaken, and that the answer[s] cannot possibly have [a] tendency to incriminate the witness. . The right to the privilege does not depend upon the likelihood of prosecution but upon the possibility of prosecution." (Citations omitted; emphasis in original; internal quotation marks omitted.) State v. Giraud , 258 Conn. 631, 640, 783 A.2d 1019 (2001). Here, all but three of the questions as to which Bugg, Vance, and Oliphant asserted their fifth amendment rights during the defendant's case-in-chief were questions that they had already answered during the state's case-in-chief. The three new questions were: (1) to Bugg, what his cousin stole from him; (2) to Vance, whether he called a person named Karen Atkins in June, 2012; and (3) to Oliphant, what he meant when he testified during the state's case-in-chief that he felt guilty about Vance. As to the three new questions, we are unable to conclude that the court abused its discretion in sustaining the witnesses' invocation of their fifth amendment rights. We note that "[i]n appraising a fifth amendment claim by a witness, a judge must be governed as much by his personal perception of the peculiarities of the case as by the facts actually in evidence." (Internal quotation marks omitted.) Martin v. Flanagan , 259 Conn. 487, 495-96, 789 A.2d 979 (2002). "To sustain the privilege, it need only be evident from the implications of the question, in the setting in which it is asked, that a responsive answer to the question or an explanation of why it cannot be answered might be dangerous because injurious disclosure could result." (Internal quotation marks omitted.) Id., 495. As to the first question, the nature of what Bugg's cousin stole from him could have incriminated Bugg if the item was contraband. As to the second and third questions, the record sheds little light on their significance. Accordingly, on this record, we cannot second-guess the determination of the trial court. We conclude that the court did not abuse its discretion in sustaining the witnesses' invocation of their fifth amendment rights when they were asked about these three transactions, as to which they lacked immunity. By contrast, as to those questions that the witnesses had already answered during the state's case-in-chief, § 54-47a foreclosed any possibility of prosecution for the transactions, matters, and things at issue. Accordingly, further questions about those same issues did not implicate the witnesses' fifth amendment right against self-incrimination. The court abused its discretion in sustaining the witnesses' invocations of their fifth amendment rights as to those issues. We conclude, however, that this error was harmless. Here, each witness already had testified and been cross-examined at length, on the same issues, during the state's case-in-chief. We thus conclude that the defendant has failed to meet his burden of proving that the improper exclusion of these witnesses' testimony to the same effect during his case-in-chief was harmful. Because the court did not permit the state to revoke these witnesses' immunity and properly held that the state need not grant them additional immunity when they were called as defense witnesses, and because the court's failure to compel these three witnesses to reiterate testimony as defense witnesses was harmless, the defendant's first claim fails. II The defendant's second group of claims entails three alleged evidentiary errors: (1) that the court improperly admitted uncharged misconduct evidence suggesting that the defendant had a gun one week before the shooting and four months after the shooting; (2) that the court improperly admitted a prior inconsistent statement by Bugg to impeach his trial testimony that he had never discussed the shooting with his cousin; and (3) that the court improperly permitted the state's lead detective, Slavin, to testify, in the course of describing how the investigation proceeded, about various witnesses' statements to the police. We begin by setting forth the standard of review. "We review the trial court's decision to admit evidence, if premised on a correct view of the law . for an abuse of discretion." State v. Saucier , 283 Conn. 207, 218, 926 A.2d 633 (2007) ; see also State v. Douglas F. , 145 Conn.App. 238, 246, 73 A.3d 915 (because "[t]he trial court has broad discretion in ruling on the admissibility . of evidence . [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] ), cert. denied, 310 Conn. 955, 81 A.3d 1181 (2013). "In determining whether there has been an abuse of discretion, every reasonable presumption should be given in favor of the trial court's rulings on evidentiary matters." (Internal quotation marks omitted.) State v. Gauthier , 140 Conn.App. 69, 79-80, 57 A.3d 849, cert. denied, 308 Conn. 907, 61 A.3d 1097 (2013). "[W]hen an improper evidentiary ruling is not constitutional in nature, the defendant bears the burden of demonstrating that the error was harmful. . [W]hether [the improper admission of a witness' testimony] 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 [improperly admitted] 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. Payne , supra, 303 Conn. at 558-59, 34 A.3d 370. We address each of the defendant's three evidentiary claims in turn. A The defendant first challenges the court's admission of testimony from two witnesses about whether he possessed a gun on two occasions other than the night of the shooting, arguing that such evidence of uncharged misconduct was more prejudicial than probative. Even if the court improperly admitted this testimony, which we do not conclude, nevertheless, it was harmless. In this regard, the defendant first challenges the court's admission of a portion of Oliphant's testimony during which the prosecutor asked if Oliphant had told the police about an incident on January 9, 2010, when the defendant allegedly shot someone in the groin at a bar fight. Initially, the state sought to admit this testimony for substantive purposes, to prove that the defendant possessed a gun nine days before the Diamond Court robbery and thus had the means to commit the Diamond Court robbery. The defense objected that it was more prejudicial than probative. The court ruled that the state could ask Oliphant only whether the defendant had a gun on January 9 because gun possession then was relevant to "an element of the fifth count of the information," and "[t]hat is an exception where [the evidence is relevant to] an element of the crime, [and that] is one of the reasons why uncharged misconduct can be allowed." See Conn. Code Evid. (2009) § 4-5 (b) ("[e]vidence of other crimes, wrongs or acts of a person is admissible . to prove . an element of the crime"). The state, however, sought to ask about the details of the January 9, 2010 incident as well, to the extent that Oliphant had described them in his statement to the police but repudiated that statement at trial. The prosecutor made an offer of proof outside the presence of the jury, during which she examined Oliphant line by line on his police statement about the January 9 incident. Oliphant categorically denied that he ever gave such a statement and added that he had "never seen [the defendant] with a gun." After the proffer, the defense renewed its objection to the testimony. The court ruled that it would allow the questions "only for purposes of [the] impeachment and credibility of Mr. Oliphant," and, when the jury returned to the courtroom, the court instructed it accordingly. The state then examined Oliphant line by line on the statement he had given to police about the defendant shooting another person in the groin one week before the Diamond Court shooting. Oliphant categorically denied giving such a statement to the police and added that he had "never seen [the defendant] with a gun ever." The second piece of uncharged misconduct evidence that the defendant claims the court improperly admitted is the portion of his uncle Omar's testimony in which Omar said that he saw the defendant with a gun on May 8, 2010. Initially, the state sought to admit the testimony to prove that the defendant possessed a gun four months after the Diamond Court shooting; the defense objected that such testimony was more prejudicial than probative; and the court ruled that the testimony was admissible under § 4-5 (b) of the (2009) Connecticut Code of Evidence as relevant to an element of the fifth count of the information. After an extensive offer of proof by the state, the defense also objected that the testimony was not relevant to the gun possession charge in count five because the May 8, 2010 gun was not the gun that the defendant allegedly possessed on January 18, 2010. The state argued that the defendant's possession of a different gun four months later was still relevant to whether the defendant possessed a gun on the night of the Diamond Court shooting. The court ruled that Omar's testimony that the defendant possessed a different gun four months after the Diamond Court shooting was not relevant to establish an element of the fifth count of the information but was admissible together with the testimony about gun possession on January 9, 2010, and January 18, 2010, as evidence of "a system of criminal activity" of gun possession engaged in by the defendant, offered to prove the defendant's intent to rob the victim at Diamond Court. See Conn. Code Evid. (2009) § 4-5 (b) ("[e]vidence of other crimes, wrongs or acts of a person is admissible . to prove . a system of criminal activity"). Omar then testified that he saw the defendant with a handgun on May 8, 2010. In its jury charge, the court instructed the jury that the testimony about gun possession on May 8, 2010, was admitted "solely to show or establish a system of criminal activity being engaged in by the defendant." Even if the court had improperly admitted both of these portions of testimony, which we do not conclude, we hold that the defendant has nevertheless failed to carry his burden of proving that the jury's verdict was substantially swayed by its admission. See, e.g., State v. Sanseverino , 287 Conn. 608, 637, 949 A.2d 1156 (2008) ("[e]ven if we were to assume, without deciding, that the trial court improperly admitted the evidence . we conclude that the defendant failed to meet his burden of providing that such impropriety was harmful"), overruled in part on other grounds 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), overruled in part on other grounds by State v. Payne , 303 Conn. 538, 548, 34 A.3d 370 (2012). The defendant acknowledges that his claim is evidentiary, not constitutional, in nature. "[W]hen an improper evidentiary ruling is not constitutional in nature, the defendant bears the burden of demonstrating that the error was harmful. . [W]hether [the improper admission of a witness' testimony] 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 [improperly admitted] 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. Payne , supra, 303 Conn. at 558-59, 34 A.3d 370. First, this testimony was not particularly important to the prosecution's case. Whether the defendant had a gun on January 9, 2010, or on May 8, 2010, was ancillary to the central issue of the case, namely, whether the defendant participated in the robbery and shooting of the victim on January 18, 2010. The state presented ample evidence of the robbery, as discussed subsequently in connection with the strength of the prosecution's case. Second, evidence that the defendant possessed a gun weeks before or months after the shooting was largely superfluous because there was also evidence that he possessed a gun on the night of the shooting. Third, as to corroborating or contradictory evidence, multiple witnesses either testified or admitted in statements to the police, which the state previously had submitted into evidence, that they saw the defendant with a gun on the night of the shooting or on other nights, while several witnesses-most notably Bugg and Vance, in direct contradiction to their police statements-testified that they had never seen the defendant with a gun. Neither Oliphant's nor Omar's testimony was unique or pivotal in this regard. Fourth, the defendant was able adequately to cross-examine both Oliphant and Omar. Oliphant testified favorably to the defense during both direct and cross-examination. Fifth and finally, the prosecution's case was strong. The state's case comprised more than thirty witnesses and more than 200 exhibits over the course of fifteen days of testimony. The victim's mother testified that, from the family apartment, she saw two people with physiques similar to the defendant and Vance both shoot at the victim at approximately 9:40 p.m. on January 18, 2010. The victim's brother testified that, from the family apartment, he saw the defendant and a second man both shoot at the victim a little after 9:30 p.m. on January 18, 2010. The state submitted the prior statements and testimony of the defendant's two accomplices, Bugg and Vance, both of whom initially confessed to the armed robbery in those statements and testimony. Although they recanted their confessions once they received plea deals and testified favorably to the defense at trial, the state impeached them with phone call recordings in which Bugg seemingly asked various relatives to help him coordinate his testimony with Vance, saying at one point that Vance had agreed to "take the whole charge" in exchange for some money. Oliphant and his then girlfriend, Sade Stevens, both gave statements to police that they had heard the defendant and Vance confess to robbing and shooting the victim when they came to Oliphant's apartment on the night of January 18, 2010, although they, too, partially recanted those statements at trial and claimed instead that Vance alone confessed that he robbed and shot the victim. The state's crime scene technicians and its ballistics expert determined that the four bullet cores recovered from the crime scene plus the intact bullet recovered from the victim's body were .38 class bullets, fired from a .38 Special revolver, a .357 Magnum revolver, or a nine millimeter pistol. Because pistols eject bullet casings when fired, however, the state's ballistics expert testified that the lack of casings found at the crime scene was consistent with the shots being fired from a revolver. Multiple witnesses either testified or gave statements to police that were admitted into evidence to the effect that the defendant had a .38 revolver and that Vance had a .357 revolver, which they had with them on the night of the shooting. Phone records showed that, at approximately the time of the shooting, the defendant's cell phone reflected several calls from the area of Diamond Court. Various neighbors saw a four door white car driving through Diamond Court just before the shooting and speeding out of Diamond Court just after the shooting. The defendant's aunt testified that, on the night of the shooting, she had lent the defendant her rental car-a four door, white Hyundai-and that they returned the car to the rental company the next day. The defendant himself testified that, on the night of the shooting, he and Vance dressed all in black and drove to Diamond Court with Bugg in the defendant's white rental car; that they parked behind the apartments; that the defendant and Vance exited the car and walked first toward the man in the SUV, then toward the victim after they realized the man in the SUV had children; that Vance fired shots in the victim's direction; that Bugg pulled up in the car; that the defendant and Vance got in; and that Bugg drove off. The defendant claimed, however, that they never agreed or tried to rob anyone; Vance had gotten into an unrelated altercation with the victim, on his own, and shot him for that reason. The state introduced into evidence phone call recordings in which the defendant repeatedly told his mother to convince one of the prosecution witnesses to invoke her fifth amendment rights if called to testify. As a result, we conclude that the defendant has failed to carry his burden of proving that the jury's verdict was substantially swayed by the admission of evidence that he had a gun one week before or several months after the shooting. B As to Bugg's prior inconsistent statement, the defendant challenges the court's admission of the testimony of Bugg's cousin, Foote, about Bugg's confession to him during a car ride several weeks after the shooting. We conclude that the court properly admitted that testimony for the limited purpose of impeaching Bugg's credibility. The following additional facts and procedural history are relevant to this claim. Initially, the state sought to admit the challenged testimony for substantive purposes, arguing that, although it was hearsay, it fell under the coconspirator exception to the prohibition on hearsay, but the state later conceded that the coconspirator exception did not apply. Instead, the state sought to admit the testimony solely for impeachment purposes, as extrinsic evidence of a prior inconsistent statement by Bugg. The state argued that, under the Connecticut Code of Evidence, "it's within the judicial discretion of the trial court whether to admit the impeaching statements where no foundation has been laid." See Conn. Code Evid. § 6-10 (c) ("[i]f a prior inconsistent statement made by a witness is not . disclosed to the witness at the time the witness testifies, and if the witness admits to making the statement, extrinsic evidence of the statement is inadmissible, except in the discretion of the court " [emphasis added] ). The defense objected to the testimony as hearsay and argued that, if the state wished to use it as an inconsistent statement, then it should have disclosed it to Bugg when he testified. After reviewing the transcript of Bugg's earlier trial testimony, the court noted that Bugg twice had denied confessing to Foote, once when asked directly if "there came a point in time where [he] told [Foote] what had happened on Diamond Court"-Bugg replied, "[n]o"-and, second, when Bugg was asked if his statement to police that "[t]he only one [he] told about this [was his] cousin Marquis[e] Foote" was true-Bugg replied, "[n]o." The court ruled that Foote could testify to Bugg's prior inconsistent statement, but that such testimony would be admissible only for the limited purpose of impeaching Bugg. Accordingly, before Foote testified to his conversation with Bugg, the court instructed the jury as follows: "Ladies and gentlemen, I talked to you when we first began the trial about evidence admitted for a limited purpose. Any comments that Mr. Bugg made to Mr. Foote, they can be used by you only for purposes of evaluating the credibility of Mr. Bugg; you can't use them for any other purpose. So, to the extent that you find them [relevant] you can use them, but only insofar as they relate to the credibility of Mr. Bugg; they are not to be used by you . these statements are not to be used by you for substantive purposes. So, this is a limit[ed] inquiry, credibility only, not for substantive purposes." Foote testified that three or four weeks after the shooting, he and Bugg were driving around smoking pot when Bugg confided in him what had happened on the night of the shooting. Foote recalled that Bugg had said that he, Vance, and the defendant were out looking to rob someone that night. They saw the victim and decided to rob him. The defendant and Vance got out of the car and put a gun in the victim's face, which he pushed away. The victim then ran away and the defendant and Vance shot him. The state asked if Bugg had ever told Foote that, on the night of the shooting, he, the defendant, and Vance were there to buy marijuana, or to settle a debt. Foote testified that Bugg had not told him such a story. At the end of the trial, the court again instructed the jury: "The testimony of Marquise Foote was admitted only for impeachment purposes as to Rayshaun Bugg. Any other use of that testimony would be improper." We begin by setting forth the applicable law. Section 6-10 (a) of the Connecticut Code of Evidence provides: "The credibility of a witness may be impeached by evidence of a prior inconsistent statement made by the witness." Our Supreme Court has held that "[i]mpeachment of a witness by the use of a prior inconsistent statement is proper only if the two statements are in fact inconsistent. . Moreover, the inconsistency must be substantial and relate to a material matter." (Citations omitted; emphasis omitted.) State v. Richardson , 214 Conn. 752, 763, 574 A.2d 182 (1990). Section 6-10 (c) of the Connecticut Code of Evidence provides in relevant part that "[i]f a prior inconsistent statement made by a witness is not . disclosed to the witness at the time the witness testifies, extrinsic evidence of the statement is inadmissible, except in the discretion of the court. " (Emphasis added.) This court has held that "[w]e have no inflexible rule regarding the necessity of calling the attention of a witness on cross-examination to his alleged prior inconsistent statements before either questioning him on the subject or introducing extrinsic evidence tending to impeach him." (Internal quotation marks omitted.) State v. Gauthier , supra, 140 Conn.App. at 79, 57 A.3d 849. Rather, trial "[c]ourts have wide discretion whether to admit prior inconsistent statements that have not satisfied the typical foundational requirements in § 6-10 (c) of the Connecticut Code of Evidence...." (Internal quotation marks omitted.) Id., 80. Here, the defendant argues that the court abused its discretion in admitting Foote's testimony under § 6-10 (c) of the Connecticut Code of Evidence, as extrinsic evidence of a prior inconsistent statement by Bugg. In view of all the circumstances, we conclude that the court reasonably decided (1) that Bugg's confession to Foote was substantially inconsistent with both his denial of having made such a confession and with his testimony at trial about driving to Diamond Court only to buy marijuana from the "weed man" on the night of the shooting; and (2) that the issue of whether the jury should believe Bugg's statement to police that the defendant and Vance committed the crimes charged, or Bugg's testimony at trial that they merely attempted to buy marijuana, was material to the defendant's guilt or innocence. Accordingly, the court did not abuse its discretion in admitting the challenged testimony for the limited purpose of impeaching Bugg. C The defendant dresses his third and final evidentiary claim in constitutional garb, arguing that "the trial court erred in permitting lead detective . Slavin to testify about and comment on hearsay information police received from the state's witnesses, [that the admission of this testimony] violated the defendant's rights to confrontation and cross-examination, [that the admission of this testimony] invaded the province of the jury as to both witness credibility and critical disputed facts, and [that the admission of this testimony] was contrary to the rules of evidence." (Internal quotation marks omitted.) The defendant argues that the court permitted Slavin to testify as a "super-witness" who filtered the testimony of other witnesses for the jury. We conclude that the court properly admitted Slavin's testimony for the limited purpose of explaining how the police investigation proceeded. The following additional facts and procedural history are relevant to this claim. Near the end of the state's case-in-chief, the state recalled Slavin as a witness so that he could testify about how the police investigation of the January 18, 2010 shooting proceeded. As part of this testimony, the state planned to ask Slavin about the statements that various witnesses had given to police. The defense objected that such testimony would be both improper hearsay and improper commentary on the testimony of other witnesses. The court ruled that such testimony was admissible, but only "with respect to individuals that have already testified," and "only for the purpose of [showing] how that affected the [police] investigation . [not] for any other purpose." The court added that it would be giving the jury a limiting instruction and, accordingly, instructed the jury as follows: "You're also going to hear testimony about what some of the witnesses said to the police-witnesses that have already testified here in front of you. That-those comments by Lieutenant Slavin about what a witness said, that is not intended in any way to affect your individual determination of the credibility of that witness as they-as they sat here on the [witness ] stand and testified. The whole purpose of this testimony by Lieutenant Slavin is to give you, in context, how the police investigation proceeded. So, there are going to be some comments about other things you've heard here from other witnesses. That's not to be used for any purpose other than how the police reacted to those responses. So, you've got-we talked about compartments. You've got a compartment for the witness and what the witness testified to. Then you've got a compartment, comments that Lieutenant Slavin may make about what those witnesses said. Again, only to give you the context of the police investigation. "You've got to separate that so the fact that I'm going to allow him to make comments on what somebody else said doesn't mean in any way, shape, or form that you should treat that testimony any differently than I instructed you to treat all the testimony, which is to take everybody individually and treat them by the same standard. " (Emphasis added.) The court clarified, "[and] if I said, what they said, I didn't mean in any [way] to support anything that anybody said. I'm just trying to apply the rules as best I can. You've got to determine the credibility. That's your job, not my job." Slavin testified as follows about the investigation and the role that various witnesses' police statements played in it. Ten days after the shooting, the police received a tip. On the basis of that tip, he entered two nicknames into a police database and came up with the names of the defendant and Oliphant. He searched the Judicial Branch website for those names and found that the defendant received a ticket a few days before the shooting. From the police report of that incident, he obtained the defendant's phone number and a description of the car he drove, which matched the car seen on the night of the shooting. He also learned of a third individual, Vance, who was with the defendant when he was ticketed. One year later, on January 5, 2011, Foote was arrested on unrelated charges and told police that he had information about the January 18, 2010 shooting. Foote confirmed that the defendant, Oliphant, and Vance were involved and added a fourth name-Bugg. Foote told police that those individuals tried to rob the victim on the night of the shooting, that the victim "disrespected" the attempted robbery, that they shot him for that reason, and that Bugg was the getaway driver. Foote did not give the police a written statement at that time. The police next interviewed Oliphant and his then girlfriend, Stevens, who both gave written statements on February 2, 2011, denying that Oliphant was involved and asserting that the defendant, Vance, and Bugg were the culprits. On February 10, 2011, the police interviewed Bugg, who gave a written statement confessing that he, the defendant, and Vance, but not Oliphant, attempted the robbery on the night of January 18, 2010. Bugg's statement that the defendant and Vance initially planned to rob a man in an Acura SUV, but changed plans when they saw he had two children caused one of the detectives to remember a phone call he received shortly after the shooting from a friend who was at Diamond Court picking up his children on the night of the shooting. On February 16, 2011, police interviewed him and took a written statement. On February 18, 2011, the police interviewed Vance's then girlfriend, Vondella Riddick, who gave a written statement. Finally, police traveled to North Carolina where they interviewed Vance, who gave a written statement on February 22, 2011, confessing that he, the defendant, and Bugg attempted to rob the victim and ended up shooting him. At that point, the police arrested the defendant, Vance, and Bugg. Prior to trial, the police conducted additional interviews, including a second interview with Stevens and an interview with the defendant's aunt, both of whom gave written statements. After the state finished questioning Slavin, the defense cross-examined him. The defense previously had cross-examined each of the witnesses whose police statements Slavin discussed in his testimony. The court's final charge to the jury at the end of the trial reiterated that the jurors were "the sole judges of the facts," and that they "must determine the credibility of police personnel in the same way and by the same standards as [they] would evaluate the testimony of any other witness." The charge did not specifically reference Slavin's testimony, but instructed the jury generally that, "[y]ou will recall that I have ruled that some testimony and evidence has been allowed for a limited purpose. Any testimony or evidence which I identified as being limited to a purpose you will consider only as it relates to the limits for which it was allowed, and you shall not consider such testimony or evidence in finding any other facts as to any other issue." Although the defendant frames his objection to this testimony in constitutional terms, invoking the sixth amendment's confrontation clause and the fair trial component of the fourteenth amendment's due process clause, his claim is in reality evidentiary in nature. See State v. Smith , 110 Conn.App. 70, 86, 954 A.2d 202 ("[r]obing garden variety claims [of an evidentiary nature] in the majestic garb of constitutional claims does not make such claims constitutional in nature" [internal quotation marks omitted] ), cert. denied, 289 Conn. 954, 961 A.2d 422 (2008). As to the defendant's confrontation clause claim, the United States Supreme Court has stated that "when the declarant appears for cross-examination at trial, the Confrontation Clause places no constraints at all on the use of his prior testimonial statements." Crawford v. Washington , 541 U.S. 36, 60 n. 9, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004). Here, the court "allow[ed] comments [only] with respect to individuals that ha[d] already testified" at trial, on statements that "ha[d] already been presented to the jury ." The defendant had an opportunity to cross-examine those witnesses about their statements and so the confrontation clause was not implicated. As to the defendant's fair trial claim, because we conclude that the court properly admitted the challenged testimony and properly instructed the jury as to its use, the defendant's right to a fair trial was not implicated. Proceeding then to the defendant's evidentiary claims, the defendant objects to the testimony on two grounds: (1) as improper commentary on the testimony of other witnesses, and (2) as improper hearsay. Neither objection has merit. First, the defendant argues that "Slavin's testimony in this case . placed an improper gloss on the testimony of other witnesses." (Internal quotation marks omitted.) Our Supreme Court has held that "it is improper to ask a witness to comment on another witness' veracity." State v. Singh , 259 Conn. 693, 706, 793 A.2d 226 (2002). "[I]t is never permissible . to ask a witness to characterize the testimony or statement of another witness ." (Internal quotation marks omitted.) Id.; see also id. ("improper to ask question designed to cause one witness to characterize another's testimony as lying"); id. ("question to defendant of whether victim lied in testimony improper because it sought information beyond defendant's competence"). Here, however, Slavin did not comment on the testimony of other witnesses. Although Slavin did testify about the same underlying facts as other witnesses, such as the statements that various witnesses gave to the police, the defendant has cited to no rule that bars two witnesses from testifying about the same underlying facts. Nor are we aware of any. Moreover, the defendant's argument that Slavin improperly colored the jury's perception of other witnesses' testimony ignores that Slavin's testimony was not admitted for substantive or credibility purposes. The court admitted Slavin's testimony for the limited purpose of explaining how the police investigation proceeded, instructed the jurors that his testimony was "not to be used for any [other] purpose," and specifically instructed the jurors that Slavin's testimony should not "in any way . affect your individual determination of the credibility of [other] witness[es] as they . sat here on the [witness] stand and testified." See State v. L.W. , 122 Conn.App. 324, 335 n. 7, 999 A.2d 5 (court's cautionary instructions relevant to analysis of whether evidence properly admitted), cert. denied, 298 Conn. 919, 4 A.3d 1230 (2010). "We presume that the jury followed the instructions as given." State v. Webster , 308 Conn. 43, 58 n. 11, 60 A.3d 259 (2013). "[I]t is well established that, [i]n the absence of a showing that the jury failed or declined to follow the court's instructions, we presume that it heeded them." (Internal quotation marks omitted.) Hurley v. Heart Physicians , P.C. , 298 Conn. 371, 402, 3 A.3d 892 (2010). Accordingly, we conclude that Slavin's testimony was not improper commentary on the testimony of other witnesses. Second, the defendant argues that "Slavin's testimony about what codefendants and other witnesses told police consisted of first level, double, triple and quadruple hearsay." On the contrary, the court did not admit Slavin's testimony for its truth, but only to explain "how the police investigation proceeded." "An out-of-court statement offered to prove the truth of the matter asserted is hearsay and is generally inadmissible unless an exception to the general rule applies." (Emphasis added; internal quotation marks omitted.) State v. Rosario , 99 Conn.App. 92, 108, 912 A.2d 1064, cert. denied, 281 Conn. 925, 918 A.2d 276 (2007). Evidence offered for another purpose, however, "is admissible not as an exception to the hearsay rule, but because it is not within the rule." State v. Sharpe , 195 Conn. 651, 661, 491 A.2d 345 (1985). For instance, "the state may . present evidence to show the investigative efforts made by the police and the sequence of events as they unfolded, even if that evidence would be inadmissible if offered for a different reason." State v. Vidro , 71 Conn.App. 89, 95, 800 A.2d 661, cert. denied, 261 Conn. 935, 806 A.2d 1070 (2002). Here, the state did exactly that. Accordingly, the challenged testimony was not improper hearsay. The court properly admitted Slavin's testimony for the limited purpose of explaining how the police investigation proceeded. III The defendant's fifth and final claim is that the court improperly penalized him with a longer sentence for electing to go to trial, as revealed by the court's remarks at sentencing. The following additional facts and procedural history are relevant to this claim. Before being sentenced, the defendant addressed the court to explain that although "I do accept responsibility for my actions [insofar as] . I feel that if I was living a better life in 2010, I wouldn't be sitting right here. [Nevertheless] I did not shoot [the victim]. I didn't do it. What I did was see what happened and didn't say anything, when the police questioned me . [a]nd I guess that's the reason why I'm sitting here today because . I was the first person they questioned in this case, [and] if I [had] told the truth [about] what happened [then] the prosecutor wouldn't be over there saying [I] deserve the maximum, she would have been offering me a deal like she was offering Bugg to lie . [at] my probable cause hearing. And I would be free in-in another five years, maybe. . But since I didn't say anything this is what I have to-this is what I have to live with. . Once again, I'm sorry, for y'all loss, but the facts . of the matter, Your Honor, [are that] on these five counts . I'm innocent." After briefly addressing the victim's family, the court addressed the defendant: "Anthony Collymore, your actions on the night of January 18th, 2010, were completely random, totally senseless and just vicious in nature. You shattered [the victim's] family, left them with a loss that will linger with them forever. Your actions clearly demonstrate total indifference to the laws of our society and a complete disregard for others. "Furthermore, you are still unwilling to accept full responsibility for your actions. I cannot get inside your mind to determine your motives that night to commit such a senseless act. You should have known that the decisions that you took that night were going to lead to a tragic end, and they did." (Emphasis added.) The court concluded by noting the defendant's lengthy, violent criminal record. At the outset, we note that this unpreserved claim by the defendant "is reviewable under the first two prongs of State v. Golding , [213 Conn. 233, 239, 567 A.2d 823 (1989) ] because: (1) the record is adequate for review as the trial court's remarks during sentencing are set forth in the transcripts in their entirety; and (2) the claim is of constitutional magnitude, as demonstrated by the defendant's discussion of relevant authority in his main brief." (Footnote omitted.) State v. Elson , 311 Conn. 726, 756, 91 A.3d 862 (2014). We thus turn to the third prong of Golding , to determine whether "the alleged constitutional violation . exists and . deprived the [defendant] of a fair trial." (Internal quotation marks omitted.) In re Yasiel R. , 317 Conn. 773, 781, 120 A.3d 1188 (2015). As to whether a constitutional violation exists, it is "clearly improper" to increase a defendant's sentence "based on [his or her] decision to stand on [his or her] right to put the [g]overnment to its proof rather than plead guilty ." (Emphasis omitted; internal quotation marks omitted.) State v. Elson , supra, 311 Conn. at 758, 91 A.3d 862. Nevertheless, a defendant's " 'general lack of remorse' "; id., 761-62, 91 A.3d 862 ; and " 'refusal to accept responsibility' "; id.; for crimes of which he was convicted are " 'legitimate sentencing considerations' ." Id., 761. "[R]eview of claims that a trial court lengthened a defendant's sentence as a punishment for exercising his or her constitutional right to a jury trial should be based on the totality of the circumstances. . [T]he burden of proof in such cases rests with the defendant." (Internal quotation marks omitted.) Id., 759. Here, the defendant argues that the court's comment at sentencing that he was "still unwilling to accept full responsibility for [his] actions" proves that the court improperly lengthened his sentence as punishment for electing to go to trial. We disagree. In context, that language was a comment on the defendant's remarks at sentencing, in which the defendant continued to blame his predicament in large part on his quality of life and on the prosecutor, rather than accept full responsibility for his own actions. In context, the court's remark was proper commentary on the defendant's " 'general lack of remorse' "; State v. Elson , supra, 311 Conn. at 761-62, 91 A.3d 862 ; and " 'refusal to accept responsibility' ." Id. ; see also State v. West , 167 Conn.App. 406, 419, 142 A.3d 1250 (2016) (rejecting similar claim). The judgment is affirmed. In this opinion the other judges concurred. The defendant was also found guilty of a second count of attempted robbery in the first degree in violation of § 53a-49 (a) (2) and 53a-134 (a) (4), but the court vacated that finding at sentencing, pursuant to State v. Polanco , 308 Conn. 242, 245, 61 A.3d 1084 (2013). The state's ballistics expert noted that a .38 class bullet could be fired from a nine millimeter pistol, a .38 Special revolver, or a .357 Magnum revolver. See State v. Whelan , 200 Conn. 743, 753, 513 A.2d 86 ("[w]e, therefore, adopt today a rule allowing the substantive use of prior written inconsistent statements, signed by the declarant, who has personal knowledge of the facts stated, when the declarant testifies at trial and is subject to cross examination"), cert. denied, 479 U.S. 994, 107 S.Ct. 597, 93 L.Ed.2d 598 (1986). The multiple, overlapping nature of these witnesses' testimony requires a more detailed presentation of the facts than is ordinarily necessary. The following colloquy occurred during defense counsel's questioning of Oliphant: "[Defense Counsel]: Now, you testified at the trial that you felt guilty, that-you felt guilty about Vance Wilson. Can you explain that? "[The Witness]: I plead the fifth. . "[Defense Counsel]: You indicated during your direct testimony that you felt guilty. What was that reference? "[Oliphant's Counsel]: He took the fifth amendment to that question." The sixth amendment rights to compulsory process and to present a defense are made applicable to the states through the fourteenth amendment's due process clause. State v. Andrews , 313 Conn. 266, 272 n. 3, 96 A.3d 1199 (2014). Although the defendant argues in his brief that the state's conduct violated both the federal and state constitutions, he has provided no independent analysis under the state constitution, as required by State v. Geisler , 222 Conn. 672, 684-86, 610 A.2d 1225 (1992), and so we limit our review to the federal constitutional claim. See State v. Allen , 289 Conn. 550, 580 n. 19, 958 A.2d 1214 (2008). At trial, the state never specified by what authority it immunized the three witnesses. The state asserts on appeal, however, that it relied on § 54-47a for Bugg and Oliphant. As to Vance, the state argues that the record of his immunity is inadequate to review, but argues in the alternative that its grant of immunity to Vance was proper, citing a § 54-47a case, State v. Giraud , 258 Conn. 631, 635 n. 3, 638, 783 A.2d 1019 (2001). At no point before the trial court or this court has the state asserted any other source for its authority to immunize witnesses. Accordingly, we confine our review to § 54-47a. See Furs v. Superior Court , 298 Conn. 404, 411-13, 3 A.3d 912 (2010) (declining to review claim that state has "inherent authority" to immunize witnesses, because it was not raised before trial court). Here, the state proceeded in the opposite order, first telling the court that it was granting the witnesses immunity and then having the court instruct the witnesses that they could no longer refuse to testify on the basis of their fifth amendment right against self-incrimination. Because a grant of immunity pursuant to § 54-47a necessarily includes transactional immunity, all three witnesses received such immunity when the state immunized them during its case-in-chief. See Furs v. Superior Court , 298 Conn. 404, 411, 3 A.3d 912 (2010) ("the General Assembly intended to provide both transactional and derivative use immunity to witnesses compelled under the statute to testify"). Section 54-47a also confers use and derivative use immunity, meaning that, in addition, the state cannot use testimony compelled under § 54-47a-or evidence found as a result of that testimony-to prosecute the witness for another offense about which the witness did not testify. See id. ; but see Cruz v. Superior Court , 163 Conn.App. 483, 490 n. 5, 136 A.3d 272 (2016) (treating use and derivative use immunity as wholly contained subset of transactional immunity). For its part, the trial court never explicitly stated whether it viewed the issue as one of revoking existing immunity or granting additional immunity, but its comments suggest that it took the latter view. At oral argument before this court, the defendant did argue that trial counsel was barred during cross-examination in the state's case-in-chief from asking certain questions, as they were beyond the scope of the state's direct examination, then barred from asking those same questions during the defense case-in-chief because the witnesses asserted their fifth amendment rights, and that this sufficed to show that the defense was denied essential testimony. We disagree, for two reasons. First, as a legal matter it is not potentially exculpatory questions but actually exculpatory answers that the defendant must show to sustain his burden under the effective defense theory. See United States v. Triumph Capital Group, Inc. , 237 Fed.Appx. 625, 629-30 (2d Cir.2007) (questions alone not sufficient); see also United States v. MacCloskey , supra, 682 F.2d 475-77, 479 (reversing conviction where witness had previously answered questions during voir dire outside jury's presence and answers were detailed and exculpatory). Here, we cannot speculate as to what the answers to the defendant's questions might have been. 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" [internal quotation marks omitted] ). Second, as a factual matter, even if we could speculate as to the answers to the questions that were asked, we would conclude that such testimony was cumulative or otherwise obtainable because, here, the witnesses did answer the vast majority of questions at some point during the trial, and the only questions that remained unanswered were highly tangential to the actual issues at hand. See part I B 2 of this opinion. We note that the state, in its brief, did not address the defendant's argument that the court improperly sustained these witnesses' invocation of their fifth amendment rights. As to the three new questions, the court's failure to compel Bugg, Vance, and Oliphant to testify did not violate the defendant's constitutional rights because the witnesses asserted a valid fifth amendment right. See State v. Simms , 170 Conn. 206, 209-10, 365 A.2d 821 (in conflict between witness' fifth amendment right against self-incrimination and defendant's right to compulsory process, fifth amendment right prevails), cert. denied, 425 U.S. 954, 96 S.Ct. 1732, 48 L.Ed.2d 199 (1976). The defendant also claims, as a procedural matter, that the court erred by not individually assessing whether each question implicated the witness' fifth amendment right to remain silent, and instead permitting a "blanket" assertion of that right. We do not address this claim because we conclude that, even if the procedure was improper, these questions did not implicate the fifth amendment. As to these questions, the court's failure to compel Bugg, Vance, and Oliphant to testify did not violate the defendant's constitutional rights because the same testimony already had been presented during the state's case-in-chief, and the defendant has identified no compelling tactical reason why that testimony needed to be repeated in the defense case-in-chief. See State v. West , 274 Conn. 605, 624-25, 877 A.2d 787 ("[t]he federal constitution require[s] that criminal defendants be afforded a meaningful opportunity to present a complete defense . [which is] in plain terms the right to . present the defendant's version of the facts as well as the prosecution's to the jury so that it may decide where the truth lies" [internal quotation marks omitted] ), cert. denied, 546 U.S. 1049, 126 S.Ct. 775, 163 L.Ed.2d 601 (2005). The defendant argues that this error was structural and thus not subject to harmlessness analysis. We disagree. "[W]e forgo harmless error analysis only in rare instances involving a structural defect of constitutional magnitude . Structural defect cases defy analysis by harmless error standards because the entire conduct of the trial, from beginning to end, is obviously affected ." (Emphasis altered; internal quotation marks omitted.) State v. Artis , 314 Conn. 131, 150, 101 A.3d 915 (2014). "[S]tructural defect cases contain a defect affecting the framework within which the trial proceeds, rather than simply an error in the trial process itself. . Such errors infect the entire trial process . and necessarily render a trial fundamentally unfair . Examples of such structural errors include, among others, racial discrimination in the selection of a grand jury or petit jury and the denial of a defendant's right to counsel, right to a public trial, or right to self-representation." (Citations omitted; internal quotation marks omitted.) Id., 151. Here, the court's various evidentiary rulings improperly excluding testimony that the jury had already heard neither were an error of constitutional magnitude nor "infect[ed] the entire trial process . necessarily render[ing] [the] trial fundamentally unfair ." (Internal quotation marks omitted.) Id. The fifth count of the information, which charged the defendant with criminal possession of a firearm in violation of § 53a-217 (a) (1), alleged that "on or about January 18, 2010, at approximately 9:42 p.m., at or near [Diamond Court, the defendant] possessed a firearm and had been convicted of a felony." See footnote 18 of this opinion. The defendant was charged with two counts of attempted robbery in the first degree in violation of § 53a-49 and 53a-134, one count of conspiracy to commit robbery in the first degree in violation of § 53a-48 and 53a-134, and one count of felony murder with a predicate felony of robbery. The court instructed the jury that it could use the testimony about January 9, 2010, only to assess Oliphant's credibility, not for substantive purposes. The defendant argues that the jury would have ignored this clear instruction and instead used the evidence substantively. "[I]t is well established that, [i]n the absence of a showing that the jury failed or declined to follow the court's instructions, we presume that it heeded them." (Internal quotation marks omitted.) Hurley v. Heart Physicians, P.C. , 298 Conn. 371, 402, 3 A.3d 892 (2010). Nevertheless, in determining whether evidence is more prejudicial than probative, a court must assess the risk that a jury will ignore such instructions and use evidence for an improper purpose. See State v. Busque , 31 Conn.App. 120, 124-25, 129-32, 623 A.2d 532 (1993) (reversing conviction where evidence was such that jury likely used it for improper purpose, despite court's clear instruction), appeal dismissed, 229 Conn. 839, 643 A.2d 1281 (1994). Because the defendant here does not challenge the admission of the January 9 gun possession testimony to the extent that the jury properly used it to assess Oliphant's credibility, in our analysis of harmlessness we consider the risk that the jury improperly used that testimony for substantive purposes. See Conn. Code Evid. § 8-3 ("[t]he following are not excluded by the hearsay rule . [1] . [a] statement that is being offered against a party and is . [D] a statement by a coconspirator of a party while the conspiracy is ongoing and in furtherance of the conspiracy"). The defendant also argues that Foote's testimony was improper hearsay. We disagree. "An out-of-court statement offered to prove the truth of the matter asserted is hearsay and is generally inadmissible unless an exception to the general rule applies." (Emphasis added; internal quotation marks omitted.) State v. Rosario , 99 Conn.App. 92, 108, 912 A.2d 1064, cert. denied, 281 Conn. 925, 918 A.2d 276 (2007). Evidence offered for another purpose, however, "is admissible not as an exception to the hearsay rule, but because it is not within the rule." State v. Sharpe , 195 Conn. 651, 661, 491 A.2d 345 (1985). Here, the court twice instructed the jury that the evidence was admitted solely for impeachment. "It is a fundamental principle that jurors are presumed to follow the instructions given by the judge." (Internal quotation marks omitted.) State v. Williams , 258 Conn. 1, 15 n. 14, 778 A.2d 186 (2001). The sixth amendment to the United States constitution provides in relevant part: "In all criminal prosecutions, the accused shall enjoy the right . to be confronted with the witnesses against him ." The sixth amendment right to confrontation is made applicable to the states through the due process clause of the fourteenth amendment. See, e.g., Pointer v. Texas , 380 U.S. 400, 403, 85 S.Ct. 1065, 13 L.Ed.2d 923 (1965). The defendant argues that this testimony violated his "right to have his jury determine issues of credibility and fact" and that this "state[s] [a claim] of constitutional magnitude." Although he does not specify under what provision of the constitution he asserts this right, we gather from the cases he cites that it is essentially a "fair trial" claim under the due process clause of the fourteenth amendment to the United States constitution, which provides in relevant part: "nor shall any State deprive any person of life, liberty or property, without due process of law ." Although Slavin did testify, in one instance, to the out-of-court statement of a nonwitness, we conclude that the defendant waived any challenge to that testimony. At trial, the state asked Slavin how the police first learned who was involved in the shooting. Slavin began to say that they had received a tip but defense counsel interrupted, objecting "as to what the tip might have been" on the ground that it was hearsay. The state claimed it for its effect on the listener, the court overruled the objection, and Slavin testified that the police "received a tip from a young lady who overheard some people talking on a bus that a party named Rex and Stacks or . Dreads were . the ones responsible for killing [the victim]." The court then excused the jury and held a sidebar, at which defense counsel asked the court to strike the testimony about "the tip information" but expressly agreed that the state could "ask the question, you heard something, you got a tip, and then as a result of that tip, what did you do. It doesn't have to have what the tip is." The court adopted that position, ruling that Slavin could testify that "the authorities [got] a tip and act[ed] on that" but could not testify that "the tip said (a), (b), or (c)." When the court reiterated that the state could ask about "[t]he fact . [that police] got a tip," the state asked, "[b]ut that's where the objection would l[ie] for [defense counsel]," and the court replied: "That's not what I heard. What I heard was, the issue was with respect to the content of the conversation from someone outside of the authorities. Am I correct in that?" (Emphasis added.) Defense counsel replied, "Yes." The court then brought the jury back into the courtroom, instructing the jurors that it was striking the testimony they had heard about the tip and that although Slavin would be testifying about what others had said, such testimony was "not to be used for any purpose other than how the police reacted to those responses . to give [jurors] the context of the police investigation." The state then elicited the following testimony from Slavin: "Q. Okay. And now you indicated that at some point in time a tip came into the Waterbury police?" "A. Yes. "Q. And when was that? "A. It was on, I believe, January 28th, 2010. "Q. Okay. And based on that tip, what did you do? "A. Based on that tip, the-the names that I had to work with, the nicknames-we have a database of nicknames, street names, that we've been compiling-particularly another sergeant and I-since-for almost ten years now. We had those nicknames in this list, and the nicknames came out to be Stacks, which would be [the defendant], and Rex or Dreads, which turned out, we believed, to be Mr. Oliphant-Jabari Oliphant." Defense counsel did not object to this testimony. Against this background, "[w]e deem this claim waived, and, therefore, we decline to review it." State v. Phillips , 160 Conn.App. 358, 369, 125 A.3d 280, cert. denied, 320 Conn. 903, 127 A.3d 186 (2015). On several of his claims, the defendant also asks this court to invoke its supervisory powers to reverse the judgment of the trial court and remand the case for a new trial. We decline to do so. "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." (Emphasis omitted; internal quotation marks omitted.) State v. Lockhart , 298 Conn. 537, 576, 4 A.3d 1176 (2010). This is not such a case. Finally, the defendant asks this court "to review the sealed exhibit [submitted to the court at trial, containing the personnel files of several detectives who testified] and [to] grant appropriate relief." (Citation omitted.) The state does not dispute the propriety of such review, but argues that "unless the sealed exhibit contains information . so compelling that it could have impacted the outcome at trial," the court did not abuse its discretion in denying the defendant's request for those files. At trial, the court agreed to review the files to determine whether any information in them should be disclosed to the defendant. It appears that no such information was disclosed. We have reviewed the sealed files ourselves and conclude that the court did not abuse its discretion in denying the defendant's request.

12487868

STATE of Connecticut v. Angel AGRON

State v. Agron

2016-11-22

SC 19499

1052

1059

148 A.3d 1052

148

West's Atlantic Reporter, Third Series

Connecticut Supreme Court

Connecticut

2021-08-27T20:57:14.002271+00:00

Fastcase

STATE of Connecticut v. Angel AGRON

STATE of Connecticut v. Angel AGRON SC 19499 Supreme Court of Connecticut. Argued September 20, 2016 Officially released November 22, 2016 Paul A. Catalano, for the plaintiff in error (3-D Bail Bonds, Inc.). Timothy F. Costello, assistant state's attorney, with whom, on the brief, were Kevin T. Kane, chief state's attorney, Michael Dearington, former state's attorney, and Leah Hawley, supervisory assistant state's attorney, for the defendant in error (state). Rogers, C.J., and Palmer, Zarella, Eveleigh, McDonald, Espinosa and Robinson, Js.

3247

20162

EVELEIGH, J. This case is before us on a writ of error brought by the plaintiff in error, 3-D Bail Bonds, Inc. (plaintiff), who claims that the trial court improperly denied its motion seeking relief from its obligation on a surety bail bond (bond) pursuant to General Statutes § 54-65c, which the trial court had ordered forfeited after the principal on that bond, Angel Agron, who is the criminal defendant in the underlying case, failed to appear for a scheduled court date. The defendant in error, the state of Connecticut, responds that the trial court properly denied the motion, claiming that the plaintiff had not satisfied the requirements of § 54-65c because Agron was not "detained" for purposes of § 54-65c when he was personally confronted by fugitive recovery bail enforcement agents in Puerto Rico, and the state refused to extradite him to Connecticut. We conclude that the trial court properly denied the plaintiff's motion and, therefore, dismiss the writ of error. The record reveals the following relevant facts. In 2006, Agron was arrested and charged with several offenses. The trial court set bail on these charges in an amount totaling $20,000. The plaintiff executed a bond in that amount and Agron was subsequently released from custody. Agron failed to appear for a scheduled court date on June 23, 2014, and the trial court ordered the total amount of the bond forfeited. Pursuant to General Statutes (Rev. to 2013) § 54-65a (a), the court ordered a six month stay of execution of the forfeiture. Upon being notified of Agron's failure to appear, the plaintiff initiated an investigation that revealed that Agron fled to Puerto Rico and remained there. On December 17, 2014, Agron was personally confronted by bail enforcement agents in Puerto Rico. The state's attorney, however, declined to initiate extradition proceedings. On December 21, 2014, the plaintiff filed a motion with the trial court to release the plaintiff from its obligation on the bond pursuant to § 54-65c. In support of its motion, the plaintiff filed an affidavit from one of its employees, Andrew J. Bloom, who attested that he spoke with the State's Attorney's Office and informed it that bail enforcement agents had personally confronted Agron. Bloom further averred that, although he requested an authorization for extradition, a representative of the state's attorney had declined his request. The plaintiff also submitted an affidavit in which Agron attested that he was "detained" in Puerto Rico by bail enforcement agents and made aware of his warrants for failure to appear in Connecticut. Agron further attested that he was told that the state was not authorizing extradition and that he was free to go. A photocopy of Agron's identification card and a photograph of him holding a Puerto Rican newspaper dated December 17, 2014, were also attached to the motion. The trial court denied the motion and the plaintiff sought reconsideration. After considering briefs from both parties and conducting a hearing, the trial court denied the plaintiff's motion for reconsideration. In its memorandum of decision, the trial court reasoned as follows: "[Agron] has not been proven to be in custody of the authorities in Puerto Rico; rather, bail enforcement agents made contact with him and he refused to consent to return. The [plaintiff] has not met the burden placed upon it by the statute, namely that [Agron] be detained or incarcerated." (Emphasis added.) The plaintiff thereafter filed a writ of error. The plaintiff claims that the trial court improperly denied its motion for relief from bond under § 54-65c because the trial court incorrectly interpreted the term "detained" as used in the statute. Specifically, the plaintiff asserts that the legislature intended the term "detained" to include action by a bail enforcement agent to capture the principal. In response, the state asserts that for the purposes of § 54-65c, the term "detained" requires state action. Specifically, the state asserts that, to satisfy the "detained" requirements of § 54-65c, a surety holder must show that the principal is detained by the government of another state, territory or country, not simply the personal contact made by a bail enforcement agent. We agree with the state and conclude that the trial court properly concluded that the plaintiff had not met the requirements of § 54-65c. At the outset, we set forth the standard of review that applies to the plaintiff's claim. The question of whether § 54-65c affords relief for a surety holder upon demonstrating that the principal has been located and personally confronted by a bail enforcement agent presents a question of statutory construction. "When construing a statute, [o]ur fundamental objective is to ascertain and give effect to the apparent intent of the legislature.... 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.... The test to determine ambiguity is whether the statute, when read in context, is susceptible to more than one reasonable interpretation.... 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...." (Internal quotation marks omitted.) Chairperson, Connecticut Medical Examining Board v. Freedom of Information Commission, 310 Conn. 276, 283, 77 A.3d 121 (2013). The issue of statutory interpretation presented in this case is a question of law subject to plenary review. See id., at 282-83, 77 A.3d 121. We begin with the text of the statute. Section 54-65c provides as follows: "A court shall vacate an order forfeiting a bail bond and release the professional bondsman, as defined in section 29-144, or the surety bail bond agent and the insurer, as both terms are defined in section 38a-660, if (1) the principal on the bail bond (A) is detained or incarcerated (i) in another state, territory or country, or (ii) by a federal agency, or (B) has been removed by United States Immigration and Customs Enforcement, and (2) the professional bondsman, the surety bail bond agent or the insurer provides satisfactory proof of such detention, incarceration or removal to the court and the state's attorney prosecuting the case, and (3) the state's attorney prosecuting the case declines to seek extradition of the principal." Resolution of the plaintiff's claim requires us to determine whether Agron was "detained" for purposes of § 54-65c when the bail enforcement agents personally located him and confronted him in Puerto Rico. "Detained" is not defined in § 54-65c. In accordance with General Statutes § 1-1 (a), we, therefore, look to the common usage of the word "detain" to discern the definition intended by the legislature in § 54-65c. See, e.g., Potvin v. Lincoln Service & Equipment Co. , 298 Conn. 620, 633, 6 A.3d 60 (2010). "In the absence of a definition of terms in the statute itself, [w]e may presume . that the legislature intended [a word] to have its ordinary meaning in the English language, as gleaned from the context of its use.... Under such circumstances, it is appropriate to look to the common understanding of the term as expressed in a dictionary." (Internal quotation marks omitted.) State v. Saturno , 322 Conn. 80, 90, 139 A.3d 629 (2016). The term "detain" is defined with substantial similarity in a number of dictionaries. Webster's Third New International Dictionary (2002) defines "detain" as, inter alia, "to hold or keep in or as if in custody...." The American Heritage College Dictionary (4th Ed. 2007) similarly defines "detain" as, inter alia, "[t]o keep in custody or temporary confinement." Finally, the American Heritage Dictionary of the English Language (5th Ed. 2011) also defines "detain" as, inter alia, "[t]o keep in custody or confinement...." Applying the dictionary definition of "detain" supports that the legislature intended § 54-65c to require governmental action. "When determining the legislature's intended meaning of a statutory word, it also is appropriate to consider the surrounding words pursuant to the canon of construction noscitur a sociis. McCoy v. Commissioner of Public Safety , 300 Conn. 144, 159, 12 A.3d 948 (2011). By using this interpretive aid, the meaning of a statutory word may be indicated, controlled or made clear by the words with which it is associated in the statute. State v. Roque , 190 Conn. 143, 152, 460 A.2d 26 (1983)." (Footnote in original.) State v. LaFleur , 307 Conn. 115, 133, 51 A.3d 1048 (2012). In § 54-65c, the legislature chose to use the word "detained" in association with the term "incarcerated." "Incarcerated" necessarily indicates confinement by government. See The American Heritage College Dictionary, supra (defining "incarcerate" as "[t]o put into jail"); Webster's Third New International Dictionary, supra (defining "incarcerate" as "to put in prison: imprison"). A review of other statutes in which the legislature has used the term "detained" in connection with the term "incarcerated" demonstrates that in using the two words together, the legislature intended to refer to custody by a government agent. See General Statutes § 54-142g (d) (4) (all persons "detained or incarcerated in any correctional facility in this state"); General Statutes (Supp. 2016) § 18-81cc (a) ("[a]ny agency of the state or any political subdivision of the state that incarcerates or detains adult or juvenile offenders, including persons detained for immigration violations, shall, within available appropriations, adopt and comply with the applicable standards recommended by the National Prison Rape Elimination Commission for the prevention, detection and monitoring of, and response to, sexual abuse in adult prisons and jails, community correction facilities, juvenile facilities and lockups"). Therefore, the legislature's use of the term "incarcerated" in connection with "detained" in § 54-65c is further indication that the legislature intended "detained" to require governmental action. Furthermore, a review of other statutes reveals that the legislature has repeatedly used the term "detained" to refer to governmental action. For instance, in General Statutes § 46b-133, the term "detain" or "detained" is used throughout the statute to refer to the process by which a governmental authority may hold a child in custody when a child is arrested. See General Statutes § 46b-133 (c) ("[u]pon the arrest of any child by an officer, such officer may [1] release the child to the custody of the child's parent or parents, guardian or some other suitable person or agency, [2] at the discretion of the officer, release the child to the child's own custody, or [3] seek a court order to detain the child in a juvenile detention center"). In General Statutes § 54-108d, the term "detain" is used to describe the process by which a probation officer may hold a person in custody. See General Statutes § 54-108d (a) ("[a] probation officer may, in the performance of his or her official duties, detain for a reasonable period of time and until a police officer arrives to make an arrest [1] any person who has one or more unexecuted state or federal arrest warrants lodged against him or her, and [2] any person who such officer has probable cause to believe has violated a condition of probation and is the subject of a probation officer's authorization to arrest pursuant to subsection [a] of section 53a-32"). In General Statutes § 14-12h, the legislature used the term "detain" to describe the process by which a police officer may address an unregistered motor vehicle being driven on the highway. See General Statutes § 14-12h (b) (1) ("[i]f any police officer observes a motor vehicle being operated upon the public highway, and such motor vehicle is displaying registration number plates identified as suspended . such police officer may . stop or detain such vehicle and its occupants"); see also General Statutes § 54-126 ("the [Chairman of the Board of Pardons and Paroles] may detain any convict or inmate pending approval by the panel of such retaking or reimprisonment"); General Statutes § 54-192h (b) (addressing requirements for law enforcement officer to detain individual pursuant to civil immigration detainer); General Statutes § 54-53a (addressing detention of individuals accused of crimes who have not made bail in community correction centers); General Statutes § 7-135a (addressing reimbursement for town operating lockup "wherein prisoners are detained for arraignment before, or trial by, the Superior Court"). An examination of these statutes demonstrates that the legislature has consistently used the term "detain" to require governmental action. It is axiomatic that, when interpreting the terms of one statute, "we are guided by the principle that the legislature is always presumed to have created a harmonious and consistent body of law.... Legislation never is written on a clean slate, nor is it ever read in isolation or applied in a vacuum. Every new act takes its place as a component of an extensive and elaborate system of written laws.... Construing statutes by reference to others advances [the values of harmony and consistency within the law]. In fact, courts have been said to be under a duty to construe statutes harmoniously where that can reasonably be done.... Moreover, statutes must be construed, if possible, such that no clause, sentence or word shall be superfluous, void or insignificant...." (Internal quotation marks omitted.) Standard Oil of Connecticut, Inc. v. Administrator, Unemployment Compensation Act , 320 Conn. 611, 645, 134 A.3d 581 (2016). Applying this principle to the terms of § 54-65c, we conclude that the plain language of § 54-65c, as read in connection with other statutes, demonstrates that the legislature intended the word "detained" as used in that statute to require custody by a governmental entity. The plaintiff seems to assert, however, that reading § 54-65c so as to require custody by a governmental entity leads to absurd or unworkable results. Specifically, the plaintiff claims that such an interpretation of the statute prevents a surety from obtaining recourse under § 54-65c based on the state's decision not to extradite the principal. We disagree. First, the plaintiff's bail contract was between itself and Agron. The state was not a party to that contract and has no responsibilities under that contract. The plaintiff does not assert that the state or any other governmental entity promised that it would extradite Agron in the event that he fled to another country. As we explained in State v. Sheriff , 301 Conn. 617, 628, 21 A.3d 808 (2011), "even if we assume that the chief state's attorney could have extradited [the principal] from Jamaica, in the absence of any promise by the chief state's attorney that he would seek extradition of [the principal] in the event that he fled, the chief state's attorney had no obligation to [the surety] to extradite [the principal] from Jamaica in order to fulfill the obligations that [the surety] willingly undertook. As one court has observed, '[t]he state is not the surety's surety.' Umatilla County v. Resolute Ins. Co. , 8 Or.App. 318, 322, 493 P.2d 731 (1972).... The fact that [the surety] cannot compel [the principal] to return to this state so that [the surety] can fulfill its obligation is primarily the result of [the principal's] decision to flee to Jamaica, and [the surety] must accept the consequences of that decision." Similarly, in the present case, we are not persuaded that our interpretation of § 54-65c leads to absurd or unworkable results merely because the plaintiff is required to forfeit the bond when Agron fled to a United States territory and the state decided not to extradite him. Instead, we conclude that our interpretation of § 54-65c requires the plaintiff to abide by the terms of the bond agreement, namely, to forfeit the bond if Agron did not appear in court. On the basis of our conclusion that § 54-65c requires that Agron be incarcerated or detained by a governmental entity, we conclude that the trial court properly denied the plaintiff's motion for relief from bond in the present case. It is undisputed that Agron was not incarcerated or detained by any governmental entity in the present case, accordingly, the plaintiff did not meet the requirements of § 54-65c. The writ of error is dismissed. In this opinion the other justices concurred. Agron was charged with sexual assault in the fourth degree in violation of General Statutes (Rev. to 2005) § 53a-73a and risk of injury to a child in violation of General Statutes (Rev. to 2005) § 53-21. The plaintiff also asserts that the trial court incorrectly failed to afford it relief under General Statutes § 54-65 (b). Section 54-65 (b) provides that "[i]f the principal of a surety in a recognizance in criminal proceedings absconds, such surety may apply, prior to six months after the date the bond is ordered forfeited, to a judge of the Superior Court to be released from such bond. The judge may release such surety from such bond for good cause shown." A careful review of the record demonstrates that the plaintiff did not assert a claim under § 54-65 (b) before the trial court and, therefore, the trial court did not decide the issue of whether relief was proper under § 54-65 (b) in the present case. "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.... [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." (Citation omitted; internal quotation marks omitted.) White v. Mazda Motor of America, Inc. , 313 Conn. 610, 619-20, 99 A.3d 1079 (2014). Accordingly, we do not reach the plaintiff's claim under § 54-65 (b). Noscitur a sociis translates from Latin, "it is known by its associates...." (Citations omitted; internal quotation marks omitted.) Graham County Soil & Water Conservation District v. United States ex rel. Wilson , 559 U.S. 280, 287, 130 S.Ct. 1396, 176 L.Ed.2d 225 (2010). The plaintiff cites to General Statutes § 17a-484 and 53a-119a without analysis. To the extent that the plaintiff is asserting that these statutes demonstrate that the word "detained" does not require state action or that a bail enforcement agent is authorized to "detain" an individual for purposes of § 54-65c, we are not persuaded. First, § 17a-484, which addresses regional mental health boards, does not contain the word "detain" at all. Second, although § 53a-119a (a) and (b) does grant shopkeepers and library agents the authority to "detain" suspected shoplifters and vandals, it only allows that detention "for a time sufficient to summon a police officer to the premises." Nothing in these statutes supports the plaintiff's reading of § 54-65c.

12487867

STATE of Connecticut v. Adam BENEDICT

State v. Benedict

2016-12-06

SC 19549

1044

1052

148 A.3d 1044

148

West's Atlantic Reporter, Third Series

Connecticut Supreme Court

Connecticut

2021-08-27T20:57:14.002271+00:00

Fastcase

Rogers, C.J., and Palmer, Zarella, McDonald and Vertefeuille, Js.

STATE of Connecticut v. Adam BENEDICT

STATE of Connecticut v. Adam BENEDICT SC 19549 Supreme Court of Connecticut. Argued September 14, 2016 Officially released December 6, 2016 William J. Ward, for the appellant (defendant). Harry Weller, senior assistant state's attorney, with whom, on the brief, were David S. Shepack, state's attorney, and David R. Shannon, senior assistant state's attorney, for the appellee (state). Rogers, C.J., and Palmer, Zarella, McDonald and Vertefeuille, Js.

4158

25130

ROGERS, C.J. The sole issue in this certified appeal is whether the trial court deprived the defendant, Adam Benedict, of his right to a fair trial by denying his request to strike a juror for cause when the defendant had shown that the juror was a police officer with possible ties to the agency investigating the defendant's case. In his second trial, the jury, including the challenged juror, found the defendant guilty of one count of sexual assault in the fourth degree in violation of General Statutes § 53a-73a (a) (6), and not guilty of two additional counts under the same statute. The defendant appeals from the judgment of the Appellate Court affirming the trial court's judgment after concluding that the trial court properly had denied his challenge of the juror for cause. State v. Benedict , 158 Conn.App. 599, 620, 119 A.3d 1245 (2015). The defendant claims that the challenged juror's bias should have been conclusively presumed because the juror was a Southbury police officer who reported to a Connecticut state trooper and other Connecticut state troopers who investigated the defendant's criminal charges. We disagree and affirm the judgment of the Appellate Court. The record reveals the following facts and procedural history which are relevant to this appeal. The victim made a report to the Connecticut state police in Litchfield alleging that when she was seventeen years old and a high school senior, the defendant, a substitute teacher and coach at her high school, invited her to his residence and, after she arrived, engaged in sexual conduct with her. Samantha McCord, a Connecticut state trooper assigned to Troop L in Litchfield, investigated the complaint. The defendant was tried before a jury in January, 2010, on an amended information charging him with three counts of sexual assault in the fourth degree in violation of § 53a-73a (a) (6), and one count of harassment in violation of General Statutes § 53a-183. McCord was a key witness for the state. The jury acquitted the defendant of harassment, but could not reach a verdict on the sexual assault counts. Consequently, the trial court declared a mistrial on those counts, and the case was rescheduled for a second jury trial. During the first day of jury selection for the second trial, the defendant exhausted his peremptory challenges. Later that day, a venireperson, identified as J.J., was individually questioned. As an initial inquiry, the trial court asked what J.J. did for work, and he responded that he was a police officer for the town of Southbury. J.J. later stated that "in Southbury, my boss . is a state police sergeant," and also that he "work [ed] under the state police." When questioned whether he knew any of the specific state troopers who were going to testify at the defendant's trial, J.J. stated that he did not know any of the names that defense counsel had provided to him. Upon questioning by the trial court and the parties, J.J. stated that he would not consider a witness more credible because of his or her role as a police officer, and he agreed that "[j]ust because somebody's a police officer and comes in here and testifies, that [does not] mean that [they are] telling the truth ." He also stated that the defendant would not be "sitting at any disadvantage at all" due to the fact that J.J. worked under the state police and it was the state police that had arrested the defendant. The defendant challenged J.J. for cause on the ground that J.J. "works for the very people who are going to be testifying." The state disagreed that J.J. worked for the investigating agency, instead describing the Southbury police as "a police department unto themselves with the exception [being] they have a sergeant from the state police who is on loan to them ." The state noted that J.J.'s employer was the town of Southbury. Furthermore, according to the state, the trooper assigned to Southbury "doesn't even work for Troop L. That's a different troop. That's a Southbury troop. That's not even Troop L." In response to the defendant's challenge to J.J. for cause, the trial court seemed to address both actual and implied bias challenges for cause, stating that "[u]nless you have a case which tells me that a police officer is per se ineligible to serve on a jury in a criminal case, I have found nothing in the answers from this juror that would indicate that he couldn't be a fair and impartial juror." The court then denied the defendant's challenge for cause, observing that J.J. "does not know any of the officers involved in the case, not even remotely." The next morning, before continuing with voir dire, the defendant renewed his challenge to J.J. for cause, specifically claiming implied bias due to an "on-going employment relationship with a prosecutorial arm of the case ." In advocating for J.J. to be removed due to implied bias, defense counsel alleged that "[J.J.] essentially works under the department that arrested [the defendant]. He's testified to that. He works for the state trooper down there in Southbury. Also, Trooper McCord said that she'd been transferred. The likelihood [of] [J.J.] running into Trooper McCord or one of the other officers during the course of his career is very likely. He works with the prosecutorial arm." In response, the state asserted that J.J. was "not employed by the Connecticut Division of Criminal Justice. He's not even employed by the state police. He's employed by the town of Southbury. So, it's a totally different situation." The trial court responded to the defendant's renewed challenge to remove J.J. for cause as follows: "I had a juror here who happened to be a police officer, a prospective juror, who answered the questions to the court's satisfaction that he would be fair and impartial. He had the educational background. [J.J.] was on the force for about four years. He's a relatively new police officer. My recollection of his testimony was he does not do any type of investigations regarding sexual assault cases. And I think another issue that would probably be raised in future proceeding[s], is the nature of this trial. I mean, I believe the trial will boil down to the credibility of two witnesses against [the defendant]. And I know that from the last trial that there was [an] investigation done by an officer and she was one of the key witnesses; I will give you that much, that she was a key witness involved in the investigation. [J.J.] doesn't know that person and I could not-to start speculating as to whether or not he would be embarrassed to go back to his police department because of something that he heard at this trial regarding the testimony of an investigating officer, is so speculative and so tenuous, I'd-I would have to-if I removed him [for] cause it would basically be because per se, he was a police officer. And I am not going to do that. So, I am not going to excuse him for cause. So, your renewed challenge to remove [J.J.] for cause is denied." The second jury trial was conducted in April, 2010. After two days of deliberation, the jury, which included J.J., found the defendant guilty of one count of sexual assault in the fourth degree and not guilty of the remaining two counts. Subsequently, the trial court sentenced the defendant to one year of incarceration, execution suspended after ninety days, followed by three years of probation with special conditions. The defendant appealed to the Appellate Court, raising four claims, including that the trial court had violated his state and federal constitutional rights to a fair trial by denying his challenge to J.J. for cause. State v. Benedict , 136 Conn.App. 36, 38 and n.2, 43 A.3d 772 (2012). Because the Appellate Court held that a separate confrontation clause claim was dispositive of the defendant's appeal, it reversed his conviction and remanded the case for a new trial without addressing his other claims. Id. Thereafter, this court reversed the Appellate Court's judgment, holding that there had been no confrontation clause violation, and remanded the case to the Appellate Court to decide the defendant's remaining claims. State v. Benedict , 313 Conn. 494, 515-16, 98 A.3d 42 (2014). On remand, the Appellate Court held that the defendant had failed to meet his burden of proving a master-servant relationship between the state police and the officers of the Southbury Police Department and, therefore, that the trial court had not abused its discretion in denying the defendant's juror challenge for cause with respect to J.J. State v. Benedict , supra, 158 Conn.App. at 611, 119 A.3d 1245. This appeal followed. The defendant asserts that the trial court should have removed J.J. for cause based on a principal challenge, where implied bias is conclusively presumed and disqualification is required as a matter of law, because he was a police officer with a close employment relationship with the state police who had investigated the criminal case. The defendant concedes that mere employment as a police officer is not sufficient to require that a juror be removed for cause, but contends that such employment plus some additional factor may require removal. According to the defendant, J.J. satisfied that test because he was a Southbury police officer whose supervisor was a trooper with the Connecticut state police, which was the law enforcement agency that had investigated the criminal case. Accordingly, the defendant contends that J.J. had a prohibitively close employment relationship with the investigating agency. The state responds that a master-servant relationship between a juror and an investigating agency, as opposed to a prosecuting agency, does not meet the criteria for a principal challenge. In the state's view, principal challenges based on a master-servant relationship are limited to relationships between a juror and a party, and, while a prosecuting authority is a party to a criminal case, an investigating agency is not. The state further claims that, even if this court were to hold that a police officer employed by the investigating agency should be removed for implied bias, the defendant failed to meet his burden of establishing such a relationship during voir dire. The state points to the fact that the record strongly suggested that J.J. was employed by the town of Southbury and not directly by the state police. The state contends further that the investigating troop covers a geographic region of the state that does not include Southbury, and that J.J. did not personally know any of the troopers named on the witness list. Although we disagree with the state that a juror's employment with an investigating agency can never be grounds for dismissal due to implied bias, we nevertheless agree that the defendant in this case failed to establish the factual basis necessary to compel the trial court to grant his principal challenge to J.J. Specifically, the defendant did not show that J.J. was employed by the state police. We first set forth the applicable standard of review and general principles. While a trial court is generally accorded deference in making determinations of a juror's competency to serve; State v. Esposito , 223 Conn. 299, 310, 613 A.2d 242 (1992) ; once a defendant establishes the existence of a prohibited relationship under a principal challenge, removal of the challenged juror is required as a matter of law. Morgan v. St. Francis Hospital & Medical Center , 216 Conn. 621, 624, 583 A.2d 630 (1990). "As a preliminary matter, we note the settled principle that '[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.' . State v. Brown , [235 Conn. 502, 522-23, 668 A.2d 1288 (1995) ]." State v. Johnson , 288 Conn. 236, 248, 951 A.2d 1257 (2008). " 'In Connecticut, the disqualification of a juror may be based upon the General Statutes or upon the rules of the common law.' Johnson v. New Britain General Hospital , 203 Conn. 570, 580, 525 A.2d 1319 (1987) ; McCarten v. Connecticut Co. , 103 Conn. 537, 542, 131 A. 505 (1925) ; see General Statutes § 51-217 (c) (1)." Morgan v. St. Francis Hospital & Medical Center , supra, 216 Conn. at 623, 583 A.2d 630. In the present case, the defendant does not raise a claim under § 51-217 (c) (1), but relies solely on the common law. "At common law, challenges to the suitability of a juror may be either peremptory (without a stated basis) or for cause (for an articulated reason)." Id., at 624, 583 A.2d 630. " '[A] challenge [for cause] to an individual juror for bias or prejudice can be either a principal challenge or a challenge to the favor. McCarten v. Connecticut Co. , [supra, 103 Conn. at 542, 131 A. 505 ]. A principal challenge may arise when the connection between the prospective juror and either party is of so close a nature that, when the facts concerning the relationship or interest are proven or when the prospective juror "has formed or expressed an opinion on the question at issue," the disqualification is conclusively presumed. Id. ; see, e.g., State v. Kokoszka , 123 Conn. 161, 164, 193 A. 210 (1937). A challenge to the favor, on the other hand, is one where the connection, being more remote, tends to show bias but does not create a conclusive presumption of bias. McCarten v. Connecticut Co. , supra, 542-43, 131 A. 505.' Johnson v. New Britain General Hospital , [supra, 203 Conn. at 581-82, 525 A.2d 1319 ]." State v. Esposito , supra, 223 Conn. at 309, 613 A.2d 242. "The reason for disqualifying a whole class [of jurors] on the ground of bias is the law's recognition that if the circumstances of that class in the run of instances are likely to generate bias, consciously or unconsciously, it would be a hopeless endeavor to search out the impact of these circumstances on the mind and judgment of a particular individual. That is the reason why the influences of consanguinity or of financial interest are not individually canvassed." Dennis v. United States , 339 U.S. 162, 181, 70 S.Ct. 519, 94 L.Ed. 734 (1950) (Frankfurter, J., dissenting); see id., at 171-72, 70 S.Ct. 519 (majority holding that mere fact of juror's government employment not ground for principal challenge). This court has sought to avoid creating "a set of unreasonably constricting presumptions that jurors be excused for cause"; State v. Clark , 164 Conn. 224, 228, 319 A.2d 398 (1973) ; since a defendant's right to an impartial jury is also protected through a showing of actual bias or prejudice. We previously have indicated that, in Connecticut, the "[g]rounds for a principal challenge include, 'relationship to either party to the suit, a former service as arbitrator on either side, an interest in the outcome of the suit, either personal or as a member of a corporation, or the relation of master or servant , steward, attorney, landlord or tenant to either party , or that the prospective juror has conversed with either party upon the merits of the case, or has formed or expressed an opinion on the question at issue.' McCarten v. Connecticut Co. , [supra, 103 Conn. at 542, 131 A. 505 ]." (Emphasis added.) State v. Esposito , supra, 223 Conn. at 309-10 n.7, 613 A.2d 242. "These relationships are 'held to import absolute bias or favor and require the disqualification of the juror as a matter of law.' State v. Kokoszka , supra, 123 Conn. at 164, 193 A. 210." Morgan v. St. Francis Hospital & Medical Center , supra, 216 Conn. at 624, 583 A.2d 630. Once the factual basis for the principal challenge has been proven by a party, the disqualification is conclusively presumed. See McCarten v. Connecticut Co. , supra, at 542, 131 A. 505. "Connecticut has no common-law rule or statute prohibiting or exempting an active police officer from service on a jury solely because of his occupation . See General Statutes [Rev. to 1972] § 51-219. We find ourselves in agreement with the holding of the Circuit Court of Appeals for the Second Circuit which . stated in Mikus v. United States , 433 F.2d 719, 724 [ (2d Cir. 1970) ]... '[t]he mere fact of membership on a police force is not presumptively a disqualification for service on a jury in a criminal case.' " State v. Clark , supra, 164 Conn. at 227, 319 A.2d 398. This rule is in accord with other jurisdictions. See United States v. Alexander , Docket No. 94-5154, 69 F.3d 548, 1995 WL 631813, *1 (10th Cir. October 27, 1995) (decision without published opinion, 69 F.3d 548 [1995] ) (police officer); United States v. McIntyre , 997 F.2d 687, 697-98 (10th Cir. 1993) (former police officer); United States v. Mitchell , 556 F.2d 371, 378-79 (6th Cir. 1977) (former police officer who knew witness); State v. Foster , 150 La. 971, 985, 91 So. 411 (1922) (deputy sheriff); State v. Carter , 106 La. 407, 408, 30 So. 895 (1901) (constable); State v. Edwards , 716 S.W.2d 484, 487-88 (Mo. App. 1986) (city police reserve officer, no connection to county police department investigating crime); State v. Cosgrove , 16 R.I. 411, 412, 16 A. 900 (1889) (constable); Burns v. State , 12 Tex.App. 269, 278 (1882) (deputy sheriff); State v. Parker , 104 Vt. 494, 497-98, 162 A. 696 (1932) (deputy sheriff). Contrary to the state's argument, however, reviewing courts have at times approved the removal of police officers or other law enforcement officials from juries, for cause, when certain other circumstances are present. This is the case even though the police, an investigating agency, are not truly a party to the criminal matter. In these instances, the prospective juror who worked in law enforcement typically had a close relationship with one or more of the police witnesses who would be testifying in the case. See State v. Petty , 610 S.W.2d 126, 127 (Mo. App. 1980) (juror was former police officer who knew police witnesses). In particular, where the prospective juror works in law enforcement and falls under the chain of command of a key witness, courts have reasoned that the risk of bias is too great and removed the juror under a principal challenge. See Tate v. People , 125 Colo. 527, 538-40, 247 P.2d 665 (1952) (juror was special deputy sheriff who reported to prosecuting witness); State v. Butts , 349 Mo. 213, 219-20, 159 S.W.2d 790 (1942) (juror was police officer, fellow officers and chief of police were key witnesses). In all of these cases, the juror's relationship to a witness was of so close a nature that it was likely to produce, consciously or unconsciously, bias on the part of the juror. In light of these authorities, which we find persuasive, we are not willing to adopt a categorical rule that principal challenges are limited to those cases in which a prospective juror has a prohibited relationship with a party to the case, rather than a witness. We reaffirm today that a potential juror's employment as a police officer, standing alone, is not a ground to remove that juror under a principal challenge. We clarify, however, that if a defendant establishes that under the circumstances of a particular case, the specific relationship between the challenged juror and the investigating authority is of so close a nature that it is likely to produce, consciously or unconsciously, bias on the part of the juror, then the court should grant the defendant's motion to remove that juror under a principal challenge. When reviewing a trial court's ruling on a principal challenge on appeal, we will look to the facts as established by the party asserting the challenge during voir dire to determine whether a prohibited relationship, likely to impart bias, exists. In the present case, the defendant elicited the following facts during voir dire. J.J. was employed as a police officer in the town of Southbury. Although J.J. stated that his "boss" was a Connecticut state police sergeant, and that he "work[ed] under the state police," the defendant did not question him further to establish the specifics of that relationship, such as who directed J.J.'s day-to-day work or evaluated his performance. The defendant did not elicit from J.J. any information concerning the precise nature of the relationship between the Southbury police and the Connecticut state police. It is unclear from the record, for example, whether the state police sergeant who J.J. considered his "boss" received day-to-day supervision from the state police, or rather, from the town of Southbury. Moreover, the defendant did not elicit any statement from J.J. or present any other evidence that the Southbury police fell under the chain of command of the state police troop in Litchfield who investigated this case. Importantly, J.J. confirmed that he did not personally know any of the state troopers named on the witness list. There also was no information elicited from J.J. that indicated whether J.J. worked directly with any state troopers other than the sergeant assigned to Southbury. On the basis of the foregoing, we cannot conclude that the defendant met his burden of showing that J.J. had a direct relationship with the investigating agency or any state troopers who were involved in the investigation, much less a close relationship. As a result, the defendant did not meet his burden of establishing a close relationship between J.J. and a party or witness that would require his removal for cause. In sum, because there was an insufficient factual basis for the trial court to find the type of close relationship between J.J. and a party or witness that would require disqualification as a matter of law, we conclude that the trial court properly denied the defendant's principal challenge with respect to J.J. The judgment of the Appellate Court is affirmed. In this opinion the other justices concurred. We granted the defendant's petition for certification to appeal limited to the following issue: "Did the trial court deprive the defendant of a fair trial by refusing to strike a prospective juror for cause when the juror was a police officer whose supervisor was a member of the same department that investigated the defendant's criminal case?" State v. Benedict , 319 Conn. 924, 125 A.3d 200 (2015). Because the Appellate Court concluded that the defendant did not meet his burden to prove that the juror's supervisor was a member of the investigating police department, the issue before this court, more accurately rephrased, is whether the Appellate Court properly concluded that the trial court did not deprive the defendant of his right to a fair trial by denying his request to strike a juror for cause when the defendant had shown that the juror was a police officer with possible ties to the agency investigating the defendant's case. See State v. Ouellette , 295 Conn. 173, 184, 989 A.2d 1048 (2010) (court may reframe certified question to more accurately reflect issue). In accordance with our policy of protecting the privacy interests of the victims of sexual assault, we decline to identify the victim or others through whom her identity may be ascertained. General Statutes § 54-86e. To protect the privacy interests of the venireperson, we refer to him by his first and last initials. State v. Gonzalez , 315 Conn. 564, 569 n.3, 109 A.3d 453 (2015). The Appellate Court also rejected the defendant's claims that the trial court improperly had denied his request for a continuance and had admitted certain evidence. See State v. Benedict , supra, 158 Conn.App. at 615, 620, 119 A.3d 1245. These claims are not part of the present appeal. While not categorically barring all police officers who work for the agency that investigated the criminal case, we agree that "a law enforcement agency employee with a close working relationship with testifying officers from the same agency has at least the same risk of inherent prejudice as has an employee of the prosecuting agency. In fact, because of the closer proximity to criminal activity and the often dangerous nature of the work done by agencies like the police department here, employees of such agencies may more likely be seen as impliedly biased against criminal defendants than are employees of a prosecuting agency." United States v. Mitchell , 690 F.3d 137, 151 (3d Cir. 2012) (Jordan, J., concurring in part and dissenting in part).

12489948

Doreen SPIOTTI v. TOWN OF WOLCOTT, et al.

Spiotti v. Town of Wolcott

2017-07-11

SC 19691

46

55

163 A.3d 46

163